Vanasco v. Schwartz

• Decision Date: 12 January 1976
• Docket Number: No. 74 Civ. 1533 (MAC),No. 74 Civ. 5346 (HFW).,74 Civ. 1533 (MAC),74 Civ. 5346 (HFW).
• Citation: 401 F. Supp. 87
• Parties: Roy G. VANASCO and Joseph Ferris, Plaintiffs, v. Arthur H. SCHWARTZ, Individually and in his capacity as Chairman of the New York State Board of Elections, et al., Defendants. Robert I. POSTEL, Plaintiff, v. Arthur H. SCHWARTZ, Individually and in his capacity as Chairman of the New York State Board of Elections, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

401 F. Supp. 87

Roy G. VANASCO and Joseph Ferris, Plaintiffs, v. Arthur H. SCHWARTZ, Individually and in his capacity as Chairman of the New York State Board of Elections, et al., Defendants.

Robert I. POSTEL, Plaintiff, v. Arthur H. SCHWARTZ, Individually and in his capacity as Chairman of the New York State Board of Elections, et al., Defendants.

No. 74 Civ. 1533 (MAC), No. 74 Civ. 5346 (HFW).

United States District Court, S. D. New York, E. D. New York.

July 14, 1975.

As Amended August 4, 1975.

Judgment Affirmed January 12, 1976.

New York Civil Liberties Union, New York City, by Alan H. Levine, Thomas R. Litwack, New York City, of counsel, American Civil Liberties Union, New York City, by Melvin L. Wulf, New York City, of counsel, Paul H. Asofsky, New York City, for plaintiff Roy G. Vanasco and Joseph Ferris.

Brashich, Finley & Postel, New York City, by Deyan Ranko Brashich, New York City, of counsel, for plaintiff Robert I. Postel.

David E. Blabey, Sp. Counsel, Edward R. Patrick, Deputy Counsel, New York State Board of Elections, Albany, N. Y., Guy L. Heinemann, Chief Attorney, New York City, Stanley L. Zalen, Deputy Attorney, New York City, New York State Board of Elections, New York City, for defendants Arthur H. Schwartz, and others.

Before MOORE, Circuit Judge, and COSTANTINO^* and WERKER,^** District Judges.

Judgment Affirmed January 12, 1976. See 96 S.Ct. 763.

OPINION

WERKER, District Judge.

The New York State Board of Elections ("Board") was created as part of the recently enacted "New York State Campaigns, elections and procedures law" (N.Y. Election Law § 465 et seq. (McKinney's Consol. Laws, c. 17, Supp. 1974). Pursuant to its authorized powers under § 472 of the Election Law, the Board promulgated a "Fair Campaign Code" ("Code") for the purpose, inter alia, of "stimulating just debate" in political campaigns.¹ Plaintiffs in these two cases have challenged the constitutionality of those sections of the Code (and of the statute, Election Law § 472(a)) which prohibit "during the course of any campaign for nomination or election to public office or party position," by means of "campaign literature, media advertisements or broadcasts, public speeches, press releases, writings or otherwise," "attacks on a candidate based on race, sex, religion or ethnic background" (§ 6201.1(c)); any "misrepresentation of any candidate's qualifications" including the use of "personal vilification" and "scurrilous attacks" (§ 6201.1(d)); any "misrepresentation of a candidate's position" (§ 6201.1(e)); and any "misrepresentation of any candidate's party affiliation or party endorsement" (§ 6201.1(f)).² The State argues that the Code and the statute constitute a narrowly drawn regulatory scheme covering an area of unprotected expression. We disagree and hold that the challenged sections of the Code and of the statute are repugnant to the right of freedom of speech guaranteed by the First Amendment and are unconstitutional on their face.

I.

Roy Vanasco was the unsuccessful Republican party candidate for the New York State Assembly in the 57th Assembly District. His incumbent opponent filed a complaint with the Board in which he claimed that Vanasco had distributed palm cards using the phrase "Republican-Liberal" when in fact Vanasco was only on the ballot as a candidate of the Republican party. The complaint also alleged that the palm cards implied that Vanasco currently held the position of Assemblyman.³ After a hearing held on October 16, 1974⁴ the Board issued a decision in which it found that the use of the phrase "Republican-Liberal" "misrepresented his Vanasco's party endorsement, since he was not the candidate of the Liberal Party" (a violation of § 6201.1(f) of the Code). Concluding that the printing on the palm card "does not clearly indicate that he Vanasco is currently an Assemblyman" the Board refused to find that Vanasco had also violated § 6201.1(d) of the Code. The Board then ordered Vanasco to surrender all campaign literature which contained the phrase "Republican-Liberal" or to submit a plan for re-marking the literature. Vanasco complied with the Board's order by remarking his campaign literature.⁵

Joseph Ferris was the Democratic-Liberal candidate for an Assembly seat in the 51st Assembly District. Ferris was elected to office. His incumbent opponent, Vincent Riccio, complained to the Board that Ferris had misrepresented Riccio's voting record in a leaflet distributed by Ferris and by making certain remarks which had been quoted in a newspaper article. The leaflet claimed that Riccio voted himself a $17,000 salary increase; received his salary for less than 100 days work; opposed increased funds for recreation for the aging and opposed aid to community colleges.⁶ A hearing was held and a decision filed on November 4, 1974, one day before the election, wherein the Board found that Ferris had misrepresented Riccio's voting record (a violation of § 6201.1(e)) and had done so "with actual knowledge of its falsity or with reckless disregard of its falsity."⁷ Like Vanasco, Ferris was ordered to surrender his campaign literature or submit a plan for re-marking it. Ferris complied with the Board's order.

On October 29, 1974 Vanasco and Ferris filed suit against the Board in the Eastern District of New York⁸ in which they sought the convening of a three-judge court to declare the statute and the Code unconstitutional on their face and as applied to them, and preliminary and permanent injunctive relief against enforcement of the Code and the statute by the Board. An application for a temporary restraining order was filed and denied and the complaint and application for a three-judge court were dismissed by the district court on October 20, 1974. The United States Court of Appeals for the Second Circuit denied a motion for a stay pending appeal on November 4, 1974, but on the same day filed a decision reversing the order of the district court and ordered the convening of a three-judge court. Vanasco v. Schwartz, 506 F.2d 524 (2d Cir. 1974).

Plaintiff Robert Postel received a notice from the Board on October 25, 1974, informing him that his opponent for the Democratic nomination for Assemblyman in the 68th Assembly District, A. B. "Pete" Grannis, had filed a complaint with the Board alleging violations of § 6201.1(d) and (f). Specifically, Grannis charged that certain Postel campaign literature misrepresented that Grannis had a "patronage job" in the State Department of Environmental Conservation; received major financial support from Republican "big whigs" such as Laurence Rockefeller and Henry Diamond; that the New York Court of Appeals had directed a new election after having adduced proof that a number of Republicans had voted illegally in a Democratic primary; that a complaint against Grannis had been filed with the U. S. Commission on Civil Rights and that Grannis was a registered Republican in 1973.⁹

Postel's hearing before the Board was started on October 25, 1974 and continued on October 26. By an interim order dated October 28, Postel was ordered to cease and desist the distribution of any and all literature containing any language complained of in the proceeding before the Board. Before his hearing was continued, Postel filed suit in the Southern District of New York in which he asked for relief similar to that in Vanasco and Ferris' suit.¹⁰ The District Court granted Postel's application for a temporary restraining order against further Code hearings by the Board. Subsequently, this three-judge court was convened and ordered to consider both the Postel and Vanasco and Ferris cases. At a pre-trial conference held on March 20, 1975 it was agreed that the Court would consider a facial attack on the constitutionality of the Code. All parties have now moved for summary judgment.

II.

Before considering the specifically challenged sections of the Code and the statute, the fundamental question which must be answered is: To what extent may a state regulate the speech of those persons who are seeking public office? The plaintiffs argue that only those "well-defined and narrowly limited" classes of speech including the "lewd and obscene, the profane, the libelous, and the insulting or `fighting' words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace,"¹¹ fall outside the protection of the First Amendment. The asserted target of several of the Code sections — the deliberate calculated falsehood — would in plaintiffs' view be constitutionally protected speech. According to plaintiffs, the answer to false campaign speech does not lie in regulation by the state but rather in criticism and rebuttal in the "marketplace of ideas." See Whitney v. California, 274 U.S. 357, 375-77, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). Far from enhancing the political process, regulation of campaign speech will in plaintiffs' words "undermine its most powerful safeguard."

While recognizing that the First Amendment enjoys a "preferred position" among those rights guaranteed by the Constitution, the Board contends that the statute and the Code prohibit only that expression which is unprotected by the First Amendment. Unprotected speech, the Board argues, would include those statements made "with `actual malice' — that is, with knowledge that they were false or with reckless disregard of whether they were false or not." New York Times v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964). Whether the deliberate false statement is the basis of a civil defamation suit by a public official (Times) or a "public figure" (Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967)) or of a criminal libel prosecution (Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964)) or, as in these cases, regulation of campaign speech by the state, the Board argues that if the statement is made with ...