Strasser v. Doorley

• Decision Date: 25 February 1970
• Docket Number: Civ. A. No. 4241.
• Citation: 309 F. Supp. 716
• Parties: Arnold E. STRASSER, Roger Friedman, Daniel W. Bickel, Marion Fish, Joseph Arsenault and Marjory Lou Foley, by her mother and next friend, Eleanor Rose Foley, individually and on behalf of all others similarly situated, and Extra, an unincorporated Association, Plaintiffs, v. Joseph A. DOORLEY, Jr., Mayor, City of Providence, Rhode Island; Harry Goldstein, Public Safety Commissioner, City of Providence; Col. Howard A. Franklin, Chief of Police, City of Providence; Capt. Edward P. Aptt, Providence Police; Joseph C. Scuncio, Chairman, Bureau of Licenses, City of Providence; Frank Lazarus and John J. Sheehan, Jr., Members of the Bureau of Licenses, City of Providence; and Robert J. McOsker, City Solicitor, City of Providence, Defendants.
• Court: U.S. District Court — District of Rhode Island

309 F. Supp. 716

Arnold E. STRASSER, Roger Friedman, Daniel W. Bickel, Marion Fish, Joseph Arsenault and Marjory Lou Foley, by her mother and next friend, Eleanor Rose Foley, individually and on behalf of all others similarly situated, and Extra, an unincorporated Association, Plaintiffs, v. Joseph A. DOORLEY, Jr., Mayor, City of Providence, Rhode Island; Harry Goldstein, Public Safety Commissioner, City of Providence; Col. Howard A. Franklin, Chief of Police, City of Providence; Capt. Edward P. Aptt, Providence Police; Joseph C. Scuncio, Chairman, Bureau of Licenses, City of Providence; Frank Lazarus and John J. Sheehan, Jr., Members of the Bureau of Licenses, City of Providence; and Robert J. McOsker, City Solicitor, City of Providence, Defendants.

Civ. A. No. 4241.

United States District Court D. Rhode Island.

January 13, 1970.

Supplemental Opinion February 25, 1970.

COPYRIGHT MATERIAL OMITTED

Barry A. Fisher, R. I. Legal Services, Charles G. Edwards, Edwards & Angell, Providence, R. I., for plaintiffs.

David J. Kehoe, Law Dept., City of Providence, Ronald H. Glantz, Asst. City Solicitor, Providence, R. I., for defendants.

Hayden C. Covington, Barrington, R. I., amicus curiae.

OPINION

PETTINE, District Judge.

This is a civil action brought pursuant to 42 U.S.C. § 1983 et seq. by plaintiffs on their own behalf and on behalf of all others similarly situated, to declare unconstitutional on its face and as applied, an ordinance¹ adopted by the City of Providence, Rhode Island, to enjoin pending and future prosecutions by defendants under said ordinance and to enjoin the defendants from otherwise interfering with activities of the plaintiffs that are protected by the First and Fourteenth Amendments to the Constitution of the United States.

JURISDICTION

The jurisdiction of the court arises under 28 U.S.C. §§ 1343, 2201 and 2202.

CASE OR CONTROVERSY

Defendants have argued that plaintiffs' case must be dismissed in that plaintiffs have never applied for permits, and not having so applied, do not now present a fully ripened controversy for the court to decide. Phrased differently, defendants say, and the record supports, that had plaintiffs applied for the permits, they would have received them, thus rendering this law suit unnecessary. Defendants' principal reliance is upon Kingsley Inter. Pic. Corp. v. City of Providence, R. I., 166 F.Supp. 456 (D.R.I.1958) in which a three-judge federal district court dismissed an equity suit challenging the constitutionality of Providence's motion picture licensing statute. The court there stated at p. 460:

"It would be an unwise and injudicious act on our part to hold legislation unconstitutional where the complaining party may not be adversely affected by such legislation."

Of course, in the instant case certain of the plaintiffs claim already to have been adversely affected by the ordinance here in question in that they have been arrested and prosecuted for violation of it. Clearly, it would be permitted them to raise the unconstitutionality of this ordinance in defense to the criminal charges brought against them, nothwithstanding their failure to have applied for the licenses. See Staub v. Baxley, 355 U.S. 313, 319, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958); Lovell v. Griffin, 303 U.S. 444, 452-453, 53 S.Ct. 666, 82 L.Ed. 949 (1938). Their prosecutions having been commenced, it would seem strange to deny them the standing in a federal equity suit which they would clearly have in their state criminal suit. See Russo v. Reed, 93 F.Supp. 554, 558 (D.Me.1950). Moreover, it would appear now to be settled that where a state statute is attacked for facial unconstitutionality by virtue of a First Amendment violative licensing procedure, there is no need to resort first to the very scheme sought to be held unconstitutional. Shuttlesworth v. Birmingham, 394 U.S. 147, 151 & n. 3, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). See City of Chicago v. Atchison, Topeka & S. F. Ry. Co., 357 U.S. 77, 89, 78 S.Ct. 1063, 2 L.Ed.2d 1174 (1958). The court therefore holds that plaintiffs have presented a sufficiently crystallized controversy to require this court to adjudicate, inter alia, the constitutionality of the Providence newsboy's permit ordinance.

Since this is an attack for facial unconstitutionality, the court will first present its conclusions of law as to this facet of the case.

CONSTITUTIONALITY OF THE ORDINANCE

Plaintiffs argue that the prior restraint effectuated by the Providence newsboy's permit ordinance on the exercise of their First Amendment right to distribute the news is unconstitutionally overbroad and vague and embodies a direct impermissible restraint upon the peaceable and orderly exercise of essential free press rights. Defendants argue that it is within the police power to require the granting of permits to newsboys and that the Providence newsboy's permit ordinance, if narrowly construed, is a reasoned means to accomplish the police power purpose of newsboy identification.

That the distribution of news constitutes an essential and important facet of the operation of a free press is too fundamental to require citation. So too is it certain that the regulation of the streets of a city is a fundamental constitutionally permissible concern of city governments. However, it is in no sense certain that this Providence newsboy's permit law genuinely regulates the use of the streets—certainly it includes no language regarding time, place, or manner of distribution. Instead, it requires all newsboys as a condition precedent to the right to distribute news to file for a permit. What legitimate interest of the city is served by the identification of newsboys? Defendants point to Manchester v. Leiby, 1 Cir., 117 F.2d 661, 666 (1941) to support their claim that the protection of purchasers of newspapers from fraudulent solicitation is a reasonable police purpose. If that be the purpose of this ordinance then, of course, Martin v. City of Struthers, 319 U.S. 141, 147, 63 S.Ct. 862, 87 L.Ed. 1313 (1943), decided after Leiby, makes it indisputably clear that alternative measures, less inhibitory of First Amendment rights, exist to accomplish the purpose. There, the Court, speaking of a handbill distribution ordinance, said at p. 147, 63 S.Ct. at p. 865:

"The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas."

See Comment: Less Drastic Means and the First Amendment, 78 Yale L.J. 464, at 469 and footnotes 26 and 27 (1969). Additionally, the use of identification permits as a regulatory process in the distribution of news, sanctioned by Leiby appears to have been condemned by the subsequent Supreme Court decision in Thomas v. Collins, 323 U.S. 516, 538-543, 65 S.Ct. 315, 89 L.Ed. 430 (1945). It is true that the Court there dealt with a labor union solicitors' registration requirement. But, that affords no distinction to this case, for the Court there acknowledged Texas citation of and reliance upon Leiby and went on to rule on the registration requirement in generic terms applicable to permit laws bearing directly upon the exercise of First Amendment rights.

Finally, even if it be assumed that Leiby retains some vitality after Martin v. City of Struthers, supra and Thomas v. Collins, supra, there is the still further vice of this ordinance, as distinguished from the New Hampshire ordinance at issue in Leiby, that it allows a discretionary judgment of the "good character" of the permit applicant as a condition precedent to the granting of the permit. This vague category brings this case directly into the long line of Supreme Court decisions dealing with similar vague permit laws and renders this Providence Ordinance unconstitutional on its face. E. g., Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938). See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 and note 3, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969).

Accordingly, I declare the Providence newsboy's permit ordinance unconstitutional as an impermissible direct restraint upon freedom of press and as a licensing scheme which vests overly broad and vague discretionary powers in the Chief of Police and the members of the licensing bureau.

ABSTENTION

The court has been requested by the defendants to abstain on the issue of the unconstitutionality of the ordinance in question in order to permit the Rhode Island Supreme Court so to construe the ordinance as to avoid a holding of unconstitutionality. Of course, given the court's holding on the unconstitutionality of the ordinance under Thomas v. Collins, supra, and Martin v. City of Struthers, supra, there is no means by which the Rhode Island Supreme Court could construe the ordinance, for even if the Court construed it to be a purely ministerial identification law, it would, nevertheless, violate the First Amendment. And, as was recently stated in Karalexis et al. v. Byrne, et al., 306 F.Supp. 1363 (D.Mass.1969) (Three-Judge Court to Declare Massachusetts Obscenity Statute Unconstitutional), citing Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967):

"* * * abstention may still be warranted if there is a reasonable likelihood that the state court may construe its statute so as to avoid constitutional issues, but abstention is not appropriate simply to allow the state court to be the one to decide the statute's basic conflict with the federal constitution."

Moreover, even if Thomas v. Collins, supra, and Martin v. City of Struthers, supra do not render this statute unconstitutional, the Rhode Island Supreme Court could not save the ordinance, as did the New Hampshire Supreme Court in Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941) for to do so the...