Tillman v. Distribution Systems of America, Inc.

• Decision Date: 07 October 1996
• Citation: 224 A.D.2d 79,648 N.Y.S.2d 630
• Parties: , 25 Media L. Rep. 1110 Kenneth TILLMAN, et al., Respondents, v. DISTRIBUTION SYSTEMS OF AMERICA, INC., Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 630

648 N.Y.S.2d 630

224 A.D.2d 79, 25 Media L. Rep. 1110

Kenneth TILLMAN, et al., Respondents, v. DISTRIBUTION SYSTEMS OF AMERICA, INC., Appellant, et al., Defendant.

Supreme Court, Appellate Division Second Department.

Oct. 7, 1996.

Berg and Duffy, Mineola (James P. Duffy III, Dennis C. Carletta, and Paul C. White, of counsel), for appellant.

Kenneth J. Glassman, New York City, for respondents.

Rogers & Wells, New York City (David A. Schultz, Jerome L. Wilson, and David E. McCraw, of counsel), for New York Newspaper Publishers Association, Inc., amicus curiae.

Before BRACKEN, J.P., and O'BRIEN, RITTER and JOY, JJ.

BRACKEN, Justice Presiding.

We hold that neither a publisher nor a distributor has any constitutional right to continue to throw a newspaper onto the property of an unwilling recipient after having been notified not to do so (see, City of Fredonia v. Chanute Tribune, 7 Kan.App.2d 65, 638 P.2d 347). "Traditionally the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off * * * [The State may leave] the decision as to whether distributers (sic) of literature may lawfully call at a home where it belongs--with the homeowner himself. [The State] can punish those who call at a home in defiance of the previously expressed will of the occupant" (Martin v. City of Struthers, 319 U.S. 141, 147-148, 63 S.Ct. 862, 865-866, 87 L.Ed. 1313; see also, City of Watseka v. Illinois Public Action Council, 796 F.2d 1547, affd. 479 U.S. 1048, 107 S.Ct. 919, 93 L.Ed.2d 972; Citizens for a Better Environment v. City of Park Ridge, 567 F.2d 689, 691; Hall v. Commonwealth, 188 Va. 72, 49 S.E.2d 369; Alternatives for California Women v. County of Contra Costa, 145 Cal.App.3d 436, 449, 193 Cal.Rptr. 384; City of Fredonia v. Chanute Tribune, 7 Kan.App.2d 65, 638 P.2d 347, supra). "[W]e perceive of no reason crucial to defendant's First Amendment rights that would require a householder to retrieve an unwanted paper from his lawn" (City of Fredonia v. Chanute Tribune, supra, at 69, 638 P.2d at 350).

The plaintiffs reside in Jericho, New York. The defendant Distribution Systems of America, Inc., (hereinafter DSA) is a domestic corporation which is in the business of distributing newspapers and other publications. The defendant Newsday, Inc., (hereinafter Newsday) is a domestic corporation which is the parent of DSA and which is itself a wholly-owned subsidiary of the Times Mirror Company. Newsday admittedly avails itself of DSA's services in the making of deliveries. DSA is engaged in the distribution, on a saturation basis, of a publication known as "This Week".

According to the plaintiff Kenneth Tillman, the unsolicited newspapers, together with pull-out advertisements, were typically enclosed in a plastic bag and placed on Mr. Tillman's driveway; on other occasions, they were left on the front lawn or jammed in between the storm door and the front door of the house.

Beginning in 1990, Mr. and Mrs. Tillman made repeated requests to DSA, seeking to have these unwanted deliveries discontinued. According to Mr. Tillman, agents of DSA repeatedly promised to stop the deliveries. The Tillmans were eventually forced to resort to a lawyer, and the lawyer's requests were likewise met with assertions that the deliveries had been or would be stopped. Notwithstanding these assertions, it eventually became clear that DSA was either unwilling, as a matter of principle, or unable, as a matter of internal mismanagement, to comply with the Tillmans' request.

The present action was commenced in the Supreme Court, Nassau County on or about June 22, 1994. The plaintiffs sought (1) an injunction restraining the defendants from delivering any unsolicited free newspapers or advertisements to their property, (2) a money judgment in the sum of $250,000 representing compensatory damages, (3) a money judgment in the sum of $250,000 based on an alleged violation of Oyster Bay Town Code § 24-2, and (4) punitive damages. An answer with several affirmative defenses was served on or about July 15, 1994, including the assertion that the defendants' conduct was "protected in whole or in part" by the Federal and State Constitutions.

On December 7, 1994, the plaintiffs made a motion for summary judgment. In support, Mr. Tillman submitted an affidavit attesting to the circumstances surrounding the delivery of the unwanted newspaper and advertisements to his home. He stated his grievance succinctly, asserting "[t]here is no reason that we have to clean up DSA's mess". He asserted that "[l]ittering on a public street is unlawful [and i]t should likewise be unlawful to litter on [his] property". The plaintiffs' attorney echoed these arguments, with some embellishment, asserting, for example, that the United States Supreme Court "has traditionally respected the right of a householder to bar, by order or notice, solicitors, hawkers, and peddlers from his property" (Rowan v. U.S. Post Off. Dept., 397 U.S. 728, 737, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736). The plaintiffs in effect requested summary judgment pursuant to this principle.

The circulation director for DSA submitted an affidavit in opposition. He asserted that DSA's policy is to "strive to honor stop delivery requests" and that it had been "trying to honor Mr. and Mrs. Tillman's request". Unable to rebut the evidence produced by Mr. Tillman in support of his allegation that DSA's deliveries had continued despite repeated promises to the contrary, DSA's circulation director conceded that "to err is human" and chided Mr. Tillman for being "less than divine" in his reaction which, as DSA would have it, "seem[ed] totally out of proportion to the minor inconvenience that he and his wife may have experienced as a result of [unwanted] deliveries". He emphasized that, in relation to two million total deliveries, a rate of error in DSA's compliance with stop-delivery requests of only 1.5% would still mean "about 30,000 mistakes". This, DSA argued, was as "close to perfection as one can likely get".

The defendants' attorney submitted an affidavit in opposition referring to DSA's delivery of "First Amendment protected material". He also claimed that the plaintiffs had abandoned so much of their action as requested a money judgment.

By decision and order dated March 30, 1995, the Supreme Court granted the plaintiffs summary judgment on their first cause of action for a permanent injunction, and dismissed the second and third causes of action. In the judgment entered thereon, the court permanently enjoined DSA "from making deliveries of unsolicited newspapers and/or advertisements upon plaintiffs' property located at 21 Clinton Lane, Jericho, New York". This appeal followed.

The defendants argue on appeal that the material delivered by DSA is "non-commercial speech" (citing, e.g., Distribution Systems of America v. Village of Old Westbury, 862 F.Supp. 950), and that the Supreme Court's injunction prohibiting the delivery of this material to the plaintiffs' home constitutes "State action" which limits such speech (citing, e.g., Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161). Based on these and related arguments, the defendants argue that the granting of the plaintiffs' application for an injunction infringed on their constitutional right of free speech. We disagree. Assuming, without deciding, that the issuance of an injunction prohibiting a threatened trespass may be regarded as "State action", we conclude that such state action in this case did not infringe on the defendants' constitutionally protected freedom of speech or on the freedom of the press.

"The ancient concept that 'a man's home is his castle' into which 'not even the king may enter' has lost none of its vitality, and none of the recognized exceptions includes any right to communicate offensively with another" (Rowan v. U.S. Post Off. Dept., 397 U.S. 728, 737, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736; see also, State by Humphrey v. Casino Mktg. Group, 491 N.W.2d 882 [Minn. Sup. Ct.]; H & L Messengers v. City of Brentwood, 577 S.W.2d 444 [Tenn. Sup. Ct.]; Van Nuys Publ. Co. v. City of Thousand Oaks, 5 Cal.3d 817, 97 Cal.Rptr. 777, 489 P.2d 809). "An individual's right to communicate must be balanced against the recipient's right 'to be let alone' in places in which the latter possesses a right of privacy" (People v. Shack, 86 N.Y.2d 529, 536, 634 N.Y.S.2d 660, 658 N.E.2d 706, quoting Rowan v. U.S. Post Off. Dept., supra, at 736, 90 S.Ct. at 1490). In accordance with this general principle, it has been held that a vendor has no right under the Constitution or otherwise to send unwanted material into the home of another, even if the flow of valid ideas is impeded by such prohibition (Rowan v. U.S. Post Off. Dept., supra). In Rowan v. U.S. Post Off. Dept. supra, at 736-737, 90 S.Ct. at 1490-1491 (emphasis added) the court upheld a statute pursuant to which a person could require the removal of his name from a mailing list stating in relevant part:

"In today's complex society we are inescapably captive audiences for many purposes, but a sufficient measure of individual autonomy must survive to permit every householder to exercise control over unwanted mail. To make the householder the exclusive and final judge of what will cross his threshold undoubtedly has the effect of impeding the flow of ideas, information, and arguments that, ideally, he should receive and consider. Today's merchandising methods, the plethora of mass mailings subsidized by low postal rates, and the growth of the sale of large mailing lists as an industry in itself have changed the mailman from a carrier of primarily private communications, as he was in a more leisurely day, and have made him an adjunct of the mass mailer who sends unsolicited and often unwanted mail into every home. It places no strain on the doctrine of judicial notice to observe that whether measured by pieces or pounds,...