Chrestensen v. Valentine
Citation | 34 F. Supp. 596 |
Parties | CHRESTENSEN v. VALENTINE. |
Decision Date | 26 August 1940 |
Court | U.S. District Court — Southern District of New York |
Winthrop, Stimson, Putnam & Roberts, of New York City, for plaintiff.
William C. Chanler, Corp. Counsel, of New York City, for defendant.
Plaintiff moves for an order enjoining, pendente lite, the defendant and members of the Police Department of New York City, acting by and under the direction of the defendant, from interfering with the distribution by plaintiff, or his agents, servants and employees, of handbills in the streets and on the sidewalks in the City of New York, including streets and sidewalks contiguous to and within Battery Park in the Borough of Manhattan, City of New York and from interfering with "sandwich men" employed by plaintiff on sidewalks adjacent to said park.
Jurisdiction is claimed to exist because this is a civil action to redress the deprivation, under color of state law, ordinance and regulation, of rights, privileges and immunities secured by the Constitution of the United States, and of rights secured by laws of the United States providing for equal rights of citizens of the United States and of all persons within the jurisdiction of the United States; that the amount in controversy exceeds $3,000, and that the suit arises under the Constitution and laws of the United States.
Plaintiff is a citizen of Florida, and the defendant is a citizen of New York.
Plaintiff owns and maintains, for the purpose of exhibition to the public at a fixed admission fee, a former U. S. Navy submarine (S-49).
When he brought this vessel to New York he sought a berth for it at the City-Owned Battery wharf, from which most pleasure vessels, operated for profit in our harbor, embark and discharge passengers. His application having been denied in accordance with the established policy of the municipality he then secured facilities at a State-Owned Barge Canal terminal, Pier 5 East River, claimed to be a much less desirable location, just above South Ferry.
In order to advise the public, attracted to the Battery by its accomodations for recreation and entertainment, and solicit patronage, plaintiff designed a circular or handbill which he intended to have distributed on the public thoroughfares and sidewalks in and adjacent to Battery Park, and submitted same to the New York City Police Department, and was informed that such practice would be a violation of the provisions of the New York Sanitary Code and the Health Department Rules relating specifically to parks.
Plaintiff then had printed on the reverse side of the circular or handbill, a protest against the action of the Dock Commissioner of the City of New York in refusing his application for docking facilities. The Police Commissioner has restrained its distribution.
The chief question presented for determination is whether the plaintiff's fundamental rights and liberties of freedom of speech and freedom of the press, protected by the First Amendment to the United States Constitution from infringement by Congress, and extended by the Fourteenth Amendment against invasion by State action, have been abridged.
It is conceded by the defendant that the distribution of a handbill, except on public park property, if confined to the criticism of the action of the Commissioner of Docks, would be permissible on the streets without police molestation. But, he contends, in combination with commercial advertising it loses its privileged status.
Section 318 of the Sanitary Code of the City of New York reads as follows:
Article II, Section 6, of the Park Regulations of the City of New York reads as follows:
A public park has been defined by the New York Court of Appeals as "a piece of ground inclosed for purposes of pleasure, exercise, amusement or ornament." Perrin v. N. Y. C. R. R. Co., 36 N.Y. 120.
The public visit their parks to enjoy the beauties of nature, to rest, and sometimes to put aside their cares, or if to meditate upon them, to do so in solitude. However, counsel for the plaintiff has not pressed convincingly his application so far as the regulation pertaining to the Battery Park is concerned, and I find it to be without merit and dismiss it from further consideration.
Ordinarily the constitutionality of statutes is reserved to the appellate courts, and when the trial court undertakes to pass upon the question it must be satisfied of the unconstitutionality of the Act beyond a reasonable doubt before so deciding.
The United States Supreme Court in Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 667, 82 L.Ed. 949, held unconstitutional an ordinance of the City of Griffin, Georgia, which provided:
In delivering the opinion of the court, Mr. Chief Justice Hughes said (page 451 of 303 U.S., page 668 of 58 S.Ct., 82 L.Ed. 949):
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Chrestensen v. Valentine, 358.
...But on application for an injunction pendente lite, the district court held the regulation entirely invalid in an opinion reported in 34 F.Supp. 596, 598, though not of record here, notwithstanding Federal Rule 75(g), 28 U.S.C.A. following section 723c. And after a hearing on the merits whe......
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United States v. Starling
...that attaches to all federal statutes. This presumption must be rebutted beyond a reasonable doubt. See Chrestensen v. Valentine, D.C.N.Y. 1940, 34 F.Supp. 596; United States v. Whiting Milk Co., D.C.Mass.1937, 21 F. Supp. 321; United States v. Josephson, D.C.N.Y.1947, 74 F.Supp. 958; Unite......
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In re Cunningham
...doubt before so deciding." In Re Baker, et al., 5 B.R. 397, 6 BCD 747, 749 (Bkrtcy.W.D.Mo., 1980), citing Chrestensen v. Valentine, 34 F.Supp. 596, 598 (S.D.N.Y.1940). A clear reading of the subsection reveals congressional intent to have a majority of the provisions of the Code be applied ......
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Matter of Baker
...question it must be satisfied of the unconstitutionality of the Act beyond a reasonable doubt before so deciding." Chrestensen v. Valentine, 34 F.Supp. 596, 598 (S.D.N.Y.1940). "Trial courts should limit the exercise of their power to declare acts of Congress unconstitutional to cases in wh......