Rockwell v. Morris

Decision Date14 February 1961
Citation211 N.Y.S.2d 25,12 A.D.2d 272
PartiesApplication of George L. ROCKWELL, Petitioner-Appellant, v. Newbold MORRIS, as Commissioner of Parks of the City of New York, Respondent-Respondent, for an order pursuant to Article 78 of the Civil Practice Act, directing him to issue a permit for a public speech in Union Square Park, and Department of New York Jewish War Veterans of the United States, Inc., Intervenor-Respondent.
CourtNew York Supreme Court — Appellate Division

Emanuel Redfield, New York City, of counsel, for appellant.

Seymour B. Quel, New York City, of counsel (Saul Moskoff, New York City, on the brief; Charles H. Tenney, Corp. Counsel, New York City), for respondents.

Theodore Brooks, Brooklyn, of counsel, for intervenor-respondent.

Before BREITEL, J. P., and RABIN, VALENTE, STEVENS and EAGER, JJ. BREITEL, Justice Presiding.

Rockwell, a self-styled American Nazi and, reputedly, a rabid racist, applied to the Commissioner of Parks on May 17, 1960, for a permit to use Union Square Park to make a public political speech the following July 4. The park is located in New York City in a traffic and pedestrian-congested area which is also a transfer point for a number of rapid transit lines. Respondent Commissioner denied the application June 22, 1960, without offering Rockwell an alternative time or place. This proceeding under Article 78 of the Civil Practice Act was instituted August 11, 1960 to review the Commissioner's determination.

Special Term dismissed the petition. The nub of its reasoning was that Rockwell had by speech and pamphlet accused more than two and a half million residents of New York City of being traitors, identified by their ethnic and religious classification; that he was a 'self-confessed advocate of violence' and Hitlerian methods; and that if he spoke it was 'inevitable that public disorder and riot will result'.

Rockwell has appealed urging that the Commissioner did not comply with the very regulation under which he purported to act, and that, if he had such power under the regulation, it is void for unconstitutionality. Respondent Commissioner contends that under the regulation he has the power, constitutionally, to refuse a permit to one whose activities would create serious disorder--a clear and present danger. Respondent also urges that the date requested, July 4, 1960, having passed, the matter has been rendered moot, and the petition should be dismissed.

The order of Special Term must be reversed and the petition granted in part. The Commissioner did not comply with his own regulation. In any event, such a power, as arrogated by the Commissioner, would be unconstitutional. Because the regulation requires provision of an alternative time and place, and the issue is of such vital constitutional significance, the proceeding has not been rendered moot.

First: The record does not support the grounds subsequently assigned by the Commissioner for his action.

At or about the time Rockwell made his application for a permit the metropolitan newspapers were filled with material about him, all to his evident satisfaction and purpose. His activities in his favorite haunt, Washington, D. C., near his home in Virginia, were publicized, including his arrest for creating public disorder by highly offensive, rabid, racist speeches. As a result, several organized groups in this City were aroused, the Mayor made public pronouncements, and the Commissioner in due course denied Rockwell's application, without at that time assigning any reasons. In fact, all the Commissioner had before him, and that is still the only original administrative record, is a stark application, which, except for the designation 'American Nazi Party', and a reference to 'Storm Leader', suggests none of the things for which Rockwell stands or may be responsible. 1

Later, in the judicial proceeding the Corporation Counsel endeavored to supplement the bare administrative record by annexing newspaper cuttings and leaflets distributed, purportedly, by Rockwell and his group. These reveal or represent the characteristic emissions of certain extremist, often paranoid, groups, not large in number, but often responsible for disorder in sensitive places in the Nation. Characteristically too, equivocal language is used suggesting dire acts of violence and destruction but not quite related to any immediacy in time. Group hate and fear are stimulated and expressly intended to be stimulated in those ripe for it. Whether the authors intend to attain their ends by unlawful or lawful means is not made clear, and undoubtedly purposely so. In this case the evidentiary relevance for these additions is never quite established. Not only were they not before the Commissioner, but no proper authenticating foundation was laid.

While it is true that petitioner has not replied to the answer interposed in the judicial proceeding, that is of no moment. In the first place, respondent makes no point of it. Moreover, the answer, since it annexes, as required by the statute, the evidentiary material in support of the affirmative allegations, establishes internally the insufficiency in law of the affirmative defenses. Consequently, petitioner is not procedurally disadvantaged by his failure to serve a reply to the conclusory allegations or to evidentiary matter that fails to support the conclusions (22 Carmody-Wait, N.Y.Prac., pp. 475, 479-80). Where a point of law is involved with respect to the answer petitioner may but is not bound to serve a reply; he may elect to raise the issue by oral motion on the return date (Civil Practice Act, § 1293).

It is in the very spirit and purpose of proceedings under Article 78 to provide a summary remedy, so summary, indeed, as to dispense with the need or occasion for the application for summary judgment under rule 113 of the Rules of Civil Practice (Civ.Prac.Act §§ 1291, 1292, 1293; Ackerman v. Kern, 256 App.Div. 626, 630, 11 N.Y.S.2d 374, affirmed 281 N.Y. 87, 22 N.E.2d 247; Third Annual Report of N.Y. Judicial Council [1937] pp. 185-187; 22 Carmody-Wait, N.Y.Prac., supra, pp. 475, 479-80; Tripp, A Guide to Motion Practice [rev. ed.] p. 283; cf. Clark v. Allen, 7 A.D.2d 144, 146, 181 N.Y.S.2d 84, 86, leave to appeal denied 6 N.Y.2d 707, 188 N.Y.S.2d 1025; O'Brien v. Commissioner of Education of State of New York, 3 A.D.2d 321, 325-326, 160 N.Y.S.2d 754, 759, appeal dismissed, 4 N.Y.2d 140, 173 N.Y.S.2d 265, appeal dismissed, certiorari denied, sub nom. Murphy v. Commissioner of Education of New York, 361 U.S. 117, 80 S.Ct. 207, 4 L.Ed.2d 154). Above all, to decide this important matter on so technical a procedural point not raised, and therefore waived, would hardly be helpful to the authorities in meeting their responsibilities. And the question would come up again soon enough (see, infra, Fifth). But, in the light of the provisions of section 1296, and the nature of the answer and supporting affidavits, petitioner did not omit any procedural steps.

Consequently, there is no competent record upon which the Commissioner, Special Term, or this Court, could reach the conclusion, even if otherwise legally permissible, that Rockwell's proposed speech on July 4, 1960 was likely to create the disorders, upon the basis of which his application was denied.

Second: The Commissioner did not follow the regulation of his own department.

The Commissioner acted under section 21-a of the Rules of the Department of Parks. 2 It provides express standards. These bar all private or commercial uses. In addition, the rule bars various uses affecting adversely the physical facilities in the park, or the priorities of convenience. No standards are provided or suggested related to speech content. The rule mandates that, whenever a permit is denied for any but commercial or private uses, alternative suitable location and date must be offered to the applicant. This last the Commissioner did not do.

The regulation is one carefully and consciously drawn in the light of recent judicial constitutional pronouncements (People v. Nahman, 298 N.Y. 95, 81 N.E.2d 36; Saia v. People of State of New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574; Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049). Thus, the regulation depends for validity upon the fact that it does not authorize censorship of speech content, condemned in the Saia case. There, in striking down a municipal ordinance adopted in this State, Mr. Justice Douglas said on behalf of the court:

'The present ordinance has the same defects [as in Cantwell v. Connecticut, infra, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; and Hague v. C. I. O., infra, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423]. The right to be heard is placed in the uncontrolled discretion of the Chief of Police. He stands athwart the channels of communication as an obstruction which can be removed only after criminal trial and conviction and lengthy appeal. A more effective previous restraint is difficult to imagine.' 334 U.S. at pages 560-561, 68 S.Ct. at page 1150.

Notably, in the Nahman case, a prosecution for displaying placards without a permit and involving section 21 (not section 21-a) of the Park Department regulations, the then Commissioner represented to the court as follows:

'Meetings and other public events are never prohibited through the permit procedure but are merely scheduled and located as to area and time in an orderly way by making necessary adjustments in the place and time stated in the application for a permit where such adjustment is necessary in the interest of the comfort, convenience and protection of the general public in the use of the parks. The application procedure is used so as to limit the use of available areas to one group at a time and provide for proper police and other supervision where necessary so that meetings and other events will be orderly and without danger to the safety of others using the parks.' 298...

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