People v. Taub

• Decision Date: 21 October 1975
• Citation: 337 N.E.2d 754,375 N.Y.S.2d 303,37 N.Y.2d 530
• Parties: , 337 N.E.2d 754 The PEOPLE of the State of New York, Appellant, v. Robin TAUB, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 303

375 N.Y.S.2d 303

37 N.Y.2d 530, 337 N.E.2d 754

The PEOPLE of the State of New York, Appellant, v. Robin TAUB, Respondent.

Court of Appeals of New York.

Oct. 21, 1975.

Leslie G. Foschio, Corp. Counsel, Buffalo (Louis N. Blatt, Buffalo, of counsel), for appellant.

David Gerald Jay, Buffalo, for respondent.

FUCHSBERG, Judge.

Respondent, a candidate for the local school board, was convicted by the City Court of Buffalo for using sound amplification equipment on a public street corner without first having obtained the permit required by section 1703 of chapter XXV of that city's ordinances. The Erie County Court reversed her conviction, finding the ordinance an unconstitutional infringement of First Amendment rights. The People now appeal.

We agree with the County Court that the ordinance, as presently written, is unconstitutional.

The use of streets and other public places for the exercise of the right to free speech and peaceable assembly, to which the sound amplifying equipment here was but an adjunct, has 'from ancient times, been a part of the privileges, immunities rights, and liberties of citizens.' (Hague v. C.I.O., 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423.) Implementation of these individual rights has given frequent rise to problems of fair accommodation to the competing right of the State to preserve public order and safety.

The search for permissible limits of regulation and order of priorities between First Amendment rights and the police power has taken the case law through a tortuous and nondefinitive course. At times it has resulted in the application of 'a clear and present danger' standard (Herndon v. Lowry, 301 U.S. 242, 258, 57 S.Ct. 732, 81 L.Ed. 1066), at others in a delicate Ad hoc balancing of the interests in free speech against those to be protected by a particular restriction (Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572), or has rested on a determination of whether there is a direct incitement to unlawful action (Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235), or in the recognition of full protection for the right of expression as distinguished from action (see Black, A Constitutional Faith, ch. 3). Despite their disparate approaches, the decisions make clear that the power of the State to infringe on the freedoms embodied in the First Amendment is a limited one, defined not by mere rationality of purpose but by a more stringent requirement of real necessity. (Cox v. Louisiana, 379 U.S. 536, 550--558, 85 S.Ct. 453, 13 L.Ed. 471; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131; Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049; Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Hague v. C.I.O., supra; Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280; Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280; Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Coates v. City of Cincinnati, 402 U.S. 611, 615, 91 S.Ct. 1686, 29 L.Ed.2d 214; Grayned v. City of Rockford, 408 U.S. 104, 114--117, 92 S.Ct. 2294, 33 L.Ed.2d 222.)

Against this background, we turn now to the cases which have dealt specifically with the questions raised by the use of sound equipment by individuals to communicate their views in public places. The basic guidelines evolve from a pair of cases decided by the United States Supreme Court. The first of these was Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574. There the court, confronted with municipal legislation which gave complete discretion to the local police chief to decide who should be allowed the use of amplification equipment, held the ordinance unconstitutional. In dicta it also seemed to indicate that the First Amendment allowed no restrictions whatever to be placed on the use of such equipment.

However, only months later, in Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513, the court cut back markedly on the scope of its pronouncemen in Saia. (See Comment, 62 Harv.L.Rev. 1228.) Reviewing an ordinance which simply forbade all 'loud and raucous' use of sound equipment upon vehicles on public streets, alleys and thoroughfares, but left no broad Saia -like discretion in the police, the court found it constitutionally valid.

The City of Buffalo relies heavily on Kovacs, in fact asserting here that the ordinance before us was written with that case in mind. It is true that the ordinance, in specifying the volumes and distances which delimit permissible noise levels, not only speaks to the specific area of regulation with which Kovacs treats, but also, in supplying more precise standards, does not suffer from the vagueness which made the Kovacs ordinance less than ideal. ^* (See Grayned v. City of Rockford, 408 U.S. 104, 108--114, 92 S.Ct. 2294, 33 L.Ed.2d 222, Supra.) For similar reasons, those parts of the ordinance which list the times and places where sound equipment may not be used and spell out criteria, such as congested traffic conditions, street repairs, or overcrowding caused by overlap of permits, to guide the police in determining whether considerations of public safety are extensive enough to permit limitations on the granting of a permit in the first instance, cannot be attacked for insufficient specificity. (Contrast Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, Supra (freedom of religion); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, Supra (freedom of the press); Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, Supra (freedom of speech).)

But in other crucial respects the ordinance contains provisions which on their faces impinge impermissibly upon the rights of free speech and assembly. In our discussion of them it should be noted that while we agree with its result, we do not adopt all the reasons relied on in an earlier case in Erie County Court (People v. Dominick, 68 Misc.2d 425, 326 N.Y.S.2d 466), which also found the statute unconstitutional.

First, it requires persons desiring permits to apply for them at least five days before they are to be used. Such a long delay could cast a chill over the freedom of speech in a number of areas by rendering its subject matter stale if not entirely moot. The political arena comes to mind immediately as a good example. There time is often of the essence, and the desire to publicize views or reply to accusations, some of which may even have had the advantages of the speed of such media as radio and television, might be frustrated completely by the need to wait five days. Mere administrative convenience does not justify an impediment which so seriously undermines the exercise of a constitutional right. (Le Flore v. Robinson, 5 Cir., 434 F.2d 933; cf. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225....