Appeal from the District Court of the United States for the Southern District of New York.
Before SWAN, CLARK, and FRANK, Circuit Judges.
This case presents another aspect of the much litigated question as to the validity of municipal prohibitions against the distribution of handbills in streets and public places. Lovell v. City of Griffin, 303 U.S. 444, 58 S. Ct. 666, 82 L. Ed. 949; Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155; Hague v. C.I.O., 307 U.S. 496, 518, 59 S. Ct. 954, 83 L. Ed. 1423. The prohibition here involved is found in New York City Sanitary Code, § 318 (Health Department Regulations, Art. III, § 318), but with a saving sentence limiting its application to "commercial and business advertising matter." Upon this limitation the defendant city police commissioner rests his case herein, since he regards plaintiff's handbills as commercial advertising. But on application for an injunction pendente lite, the district court held the regulation entirely invalid in an opinion reported in 34 F.Supp. 596, 598, though not of record here, notwithstanding Federal Rule 75(g), 28 U.S.C.A. following section 723c. And after a hearing on the merits wherein the facts were stipulated, the court entered its decree perpetually enjoining defendant from enforcing the regulation as against distribution of plaintiff's handbills. This appeal followed. A further contention involving a city park regulation was decided adversely to plaintiff and is not the subject of appeal.
Plaintiff, a citizen of Florida, is the owner of the former U.S. Navy Submarine S-49, "a $2,000,000 fighting monster," as his handbill assets. He has exhibited this submarine in various cities, and in 1940 applied to the city for permission to dock at city-owned docks off Battery Park. This was refused, apparently because permission had been denied other boats to operate as night clubs, restaurants, and dance halls. Plaintiff then secured permission to dock at a state-owned pier in the East River and thereupon prepared handbills to advertise the submarine as docked at Pier 5, East River, two minutes away from Battery Park. This draft of handbill was a direct bid for patronage. It contained a cut of the submarine, a statement that competent guides would take a person from one end of it to the other, insistent directions to see several featured points - the torpedo compartment, the sleeping quarters, the kitchen, and finally "See how men live in a Hell Diver" - and a schedule of "popular prices" (adults 25? and children 15?). Defendant or his agents having informed plaintiff that distribution of this handbill would be illegal, but that bills containing only information or a public protest could be distributed, plaintiff revised his material to the form which is the subject matter of this suit.
In its final form much of the material of the first handbill was preserved; included was the cut of the submarine and the map showing the approach to Pier 5 in the East River opposite Battery Park; but elided were all references to the sale of tickets or the price thereof. In place of the schedule of prices appeared the statement, "The only submarine used for exhibition in the world"; instead of the insistent commands to "see" the described points of interest were only the drab statements that "Submarine S-49 contains" the torpedo compartment, the sleeping quarters, the kitchen, etc.; and the invitation to see life in a hell diver vanished entirely. On the reverse side of this bill appeared four paragraphs of rather closely spaced type, over plaintiff's name as "Exhibitor of the former U.S. Navy Submarine S-49" and under the title, "Submarine Refused Permission to Dock At Any City Owned Pier By Commissioner of Docks McKenzie." Herein appeared a spirited protest against the "almost unbelievable" action of "dictatorial" subordinates of "a mayor who is one of the outstanding liberals of the United States" in refusing a plaintiff permission to tie up to city-owned piers, contract to his treatment in many other named cities. The protest concluded with the statement that it was only because the State of New York allowed plaintiff the use of Pier 5 in the East River that the people of New York were now able to see this submarine. "While not as convenient for the visitors as Battery Park, by following the diagram on the other side of this paper, if may be reached in about two (2) minutes."
Defendant's agents, being shown a printer's proof of this handbill, still asserted its illegality, but told plaintiff that the protest appearing on its reverse side could be distributed without police restraint if separated from "the commercial advertising matter" remaining on the face. Plaintiff nevertheless caused the handbill to be printed, defendant restrained its distribution, and plaintiff brought this action for an injunction. Jurisdiction rests upon diversity of citizenship of the parties, there being more than $3,000 involved, and also upon the deprivation of a constitutional right. 28 U.S.C.A. § 41(1) and (14); Hague v. C.I.O., Supra.
Defendant's claim is that the face of the handbill constituted commercial or business advertising matter within the interdiction of the city ordinance or regulation. This enactment in some analogous form goes bake for many years. In 1938, it was transmuted into the present health department regulation, and the important second or final sentence was added to make the entire provision read as follows:
"Handbills, cards and circulars. - No person shall throw, cast or distribute, or cause or permit to be thrown, cast or distributed, any handbill, circular, card, booklet, placard or other advertising matter whatsoever, in or upon any street or public place, or in a front yard or court yard, or on any stoop, or in the vestibule or any hall of any building, or in a letter box therein; provided, that nothing herein contained shall be deemed to prohibit or otherwise regulate the delivery of any such matter by the United States postal service or prohibit the distribution of sample copies of newspapers regularly sold by the copy or by annual subscription. This section is not intended to prevent the lawful distribution of anything other than commercial and business advertising matter."
Without the last sentence, either expressed or implied, it seems quite clear that the regulation is invalid under the Supreme Court cases cited, as abridging the freedom of speech and of the press secured against state invasion by the Fourteenth Amendment of the Constitution. Since the claimed purpose of the regulation is to protect public health by preventing the littering of streets, it might be doubted whether the regulation thus truncated accomplishes enough to be worth saving. The city officials, however, support the regulation as limited, on the ground that partial prevention of street littering is better than none at all.*fn1 Moreover, they view the 1938 limitation as merely embodying previous state judicial rulings and as bringing about a discriminating type of handbill regulation which is within the Supreme Court precedents.
So far as State Judicial history is concerned, there is authority for their position, although, as we view it, rather less persuasive or compelling than their argument presupposes. The prohibition seems to have been pretty thoroughly upheld in the early case of People v. Horwitz, 1912, 27 N.Y.Cr.R. 237, 140 N.Y.S. 437, although in People v. Lookstein, 78 Misc. 306, 139 N.Y.S. 680, a conviction of the person furnishing the circulars as an abettor was reversed. In 1921, however, in People v. Johnson, 117 Misc. 133, 191 N.Y.S. 750, the court upheld the ordinance only by restricting it to commercial advertising and actually dismissed the complaint against the then defendant. Thereafter, until the recent case of People v. La Rollo, Misc. , 24 N.Y.S.2d 350, this regulartion and similar city ordinances seem regularly to have been set aside, at least as to the persons actually before the court, with or without suggestion of the distinction made in the Johnson case. See Estey v. Coleman, 174 Misc. 780, 21 N.Y.S.2d 829; City of Rochester v. Parr, 165 Misc. 182, 1 N.Y.S.2d 771; People ex rel. Gordon v. McDermott, 169 Misc. 743, 9 N.Y.S.2d 795; People v. Ribinovich, 171 Misc. 569, 13 N.Y.S.2d 135; People v. DeJulis, 174 Misc. 836, 21 N.Y.S.2d 995.*fn2 A regulation requiring a license to sell merchandise was held invalid as applied to pamphlets in People v. Banks, 168 Misc. 515, 6 N.Y.S.2d 41, not applicable to pamphlets in People v. Finkelstein, 170 Misc. 188, 9 N.Y.S.2d 941, and valid as to song sheets, which were "essentially commercial" publications, in People v. Samuels, Misc. , 28 N.Y.S.2d 113. In Walters v. Valentine, 172 Misc. 264, 12 N.Y.S.2d 612, Justice McCook held invalid a regulation prohibiting advertising by sandwich men, but excepting pickets, even against the city's suggested distinction between commercial and noncommercial advertising.
Finally, after the decision below, came People v. La Rollo, supra, where the city magistrate did accept the distinction between commercial and noncommercial advertising as ground for upholding the present form of § 318. The court took pains, however, to distinguish our case here as on the border line between commercial advertising and protest, and hence not applicable to the case then before it.
With such a record of uncertainty as to the validity and effect of the regulation, with the further necessity - adverted to below - of making refined distinctions between circulars " primarily" commercial or otherwise and enterprises entered into "primarily" for commercial purposes to sustain the regulation and make it workable, the able Corporation Counsel and his skilled staff might well have paused before attempting to sustain only the remnants of the original prohibitory scheme; or might well have preferred to try their hand at the devising of an ordinance "narrowly drawn" (Cantwell v. Connecticut, 310 U.S. 296, 307, 311, 60 S. Ct. 900, 84 L. Ed. 1213, 128 A.L.R. 1352) to secure at once the legitimate objectives of the city without the chance of infringing on the cherished constitutional rights of the individual. That the city officers chose nevertheless to apply the regulation as against the plaintiff is due, we think, to a failure to accord due force to all the several rulings in Schneider v. State, supra.
After the decision in Lovell v. City of Griffin, supra, four state courts of high authority proceeded to uphold ordinances involving handbills on various grounds, in each case distinguishing Lovell v. City of Griffin. Three of these decisions involved prohibition against the distribution of handbills; while one concerned the regulation of canvassing and soliciting. This difference in the cases is important to an understanding of Schneider v. State, supra, which reversed all four cases. Of the three handbill cases, the most important here is the reversal of People v. Young, supra, for involved in that case was a handbill giving a notice of a meeting under the auspices of "Friends Lincoln Brigade," at which speakers were to discuss the war in Spain. On the handbill were the words "Admission 25 and 50 ." The state court said of this, as qoted by the Supreme Court, 308 U.S. at page 155, n. 3, 60 S. Ct. at page 148, 84 L. Ed. 155: "Whatever traffic in ideas the Friends Lincoln Brigade may have planned for the meeting, the cards themselves seem to fall within the classification of commercial advertising rather than the expression of one's views. But if this be so, our conclusion is not thereby changed." When, however, the Supreme Court rendered its decision in the handbill cases, it pointed out that none of them purported "to license distribution but all of them absolutely prohibit it in the streets and, one of them, in other public places as well." 308 U.S. at page 162, 60 S. Ct. at page 151, 84 L. Ed. 155. It was held that "the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance on a public street from handing literature to one willing to receive it," that "there obvious methods of preventing littering," such as punishment of those who actually throw papers on the street, and that all the ordinances were invalid. Hence it seems clear that a handbill containing advertising matter, even a schedule of admission charges, is not in itself rendered outside the pale of protection against such an absolute and complete prohibition.
The fourth case involved an ordinance of the City of Irvington, New Jersey, carefully drawn to protect and license the privilege of canvassing and soliciting. It was "not limited to those who canvass for private profit," but required generally a submission to the judgment of a police officer as to granting of the permit, fingerprinting, photographing, and so on.*fn3 The court held this ordinance invalid as against the petitioner, a member of Jehovah's Witnesses, who was distributing tracts. It went on to say, 308 U.S. at page 165, 60 S. Ct. at page 152, 84 L. Ed. 155: "We are not to be taken as holding that commercial soliciting and canvassing may not be subjected to such regulation as the ordinance requires. Nor do we hold that the town may not fix reasonable hours when canvassing may be done by persons having such objects as the petitioner. Doubtless there are other features of such activities which may be regulated in the public interest without prior licensing or other invasion of constitutional liberty."
Moreover, the Court now made express what previous decisions had implied, namely, that the explicit constitutional protection accorded freedom of expression made support of the legislative preference less imperative, but that, indeed, "the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions." 308 U.S. at page 161, 60 S. Ct. at page 151, 84 L. Ed. 155; see 40 Col.L.Rev. 531. This admonition is repeated in almost identic words in Thornhill v. Aladbama, 310 U.S. 88, 95, 60 S. Ct. 736, 84 L. Ed. 1093, while the different rule applicable where more important sovereign rights are involved is contrasted in the "flag salute" case, Minersville School District v. Gobitis, 310 U.S. 586, 595, 60 S. Ct. 1010, 1013, 84 L. Ed. 1375, 127 A.L.R. 1493. In the latter case the court, referring to the interest there involved, national unity, which was the basis of national security, said: "To deny the legislature the right to select appropriate means for its attainment presents a totally different order of problem from that of the propriety of subordinating the possible ugliness of littered streets to the free expression of opinion through distribution of handbills. Compare Schneider v. State, 308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155." See, also, Cox v. New Hampshire, 61 S. Ct. 762, 85 L. Ed. 1049, 133 A.L.R. 1396.
We think, therefore, that interpretation of the conclusions of the Schneider case is not doubtful. Absolute prohibition of expression "in the market place" is illegal, not to be saved by any commercial taint attached to the expression; reasonable regulation of soliciting, not preventing freedom of expression, is permissible.*fn4 And in the latter case, where the soliciting is for profit, steps to identify, even to license, the solicitor may be upheld to prevent fraud upon or inconvenience to the public. (Note that this distinction between forms of solicitation may be made clear, definite, and workable, since it has a common-sense purpose in mind and deals with regulation, not prohibition; with it may be contrasted the distinctions hereinafter discussed.) And borderline cases are to be resolved not in favor of the regulation, but in favor of the cherished right.
To avoid the conclusion to which this reasoning necessarily points, defendant suggests a different interpretation of the governing precedents, resting upon certain assumptions and distinctions which he presses with vigor. First to meet the issue that handbills containing at least some advertising matter have been protected, he suggests that the prohibition does not apply unless the handbill is "primarily" commercial. On this ground he distinguishes People v. Taylor, 33 Cal. App. 2d, Supp., 760, 85 P.2d 978, for there the circular supported as against the San Diego ordinance did contain advertising matter - of subscriptions to a daily paper, of books and pamphlets, and of a book store - but it was a"publication of a radical but not incendiary nature, mainly devoted to political discussion but containing certain advertising matter." 33 Cal. App. 2d, Supp., at page 762, 85 P.2d at page 979. Again, it is suggested that a commercial advertisement is to be distinguished from a noncommercial advertisement - or matter "exclusively or primarily calculated to attract the attention and patronage of the public to a non-commercial enterprise, i.e., one entered into primarily for considerations other than pecuniary gain." On this basis the Los Angeles handbill considered in Schneider v. State, supra, is denominated noncommercial. And so also are distinguished other cases holding broadly that such handbill ordinances are illegal. People v. Armstrong, 73 Mich. 2888 41 N.W. 275, 2 L.R.A. 721, 16 Am.St.Rep. 578; City of Chicago v. Schultz, 341 Ill. 208, 173 N.E. 276. Still other precedents are distinguished as applying merely to ordinances entirely vague or discriminatory against certain kinds of advertising only. Cleveland Shopping News Co. v. City of Lorain, 37 O.L.R. 527, 13 O.L.A. 265; In re Thornburg, 55 Ohio App. 229, 9 N.E.2d 516; Ex parte Johns, 129 Tex.Cr.R. 487, 88 S.W.2d 709; Ex parte Pierce, 127 Tex.Cr.R. 35, 75 S.w.2d 264. Thus a rather impressive array of judicial precedents is put aside, once we accept the assumptions urged upon us.
Perhaps we can pass the fact that the distinctions argued for are not explicitly stated in either legislation or decision (except perhaps in People v. La Rollo, supra), since the necessity of drawing lines, of making narrow distinctions, is so usual a part of interpretation and adjudication. But we still have the question as to the reasonable and rational consequences of the particular location of the line and how well it effectuates the objectives to be subserved or balances the opposing policies. And at once we are faced with the question, How much is "primarily?" "Primarily commercial" presumably signifies a test quantitative in amount; a limited dross of commercialism does not vitiate, though a more substantial amount may, and presumably will. In contrast, however, when we turn to the other assumed definition, we must presumably weigh motives or intent to determine the noncommercial nature of an enterprise "primarily for considerations other than pecuniary gain." In net result the police officers administering the regulation are to be arbiters - just as they undertook to be here - of the quantum of advertising as against protest and of the purpose of the citizen in speaking and writing. The test seems to be therefore both objective and subjective, though, as defendant concedes, the Supreme Court decisions above cited "have shifted the initial constitutional inquiry from abstract 'aim' to concrete operation." If the police are to weigh purpose and intent, as well as the effect of the literary product, "concrete operation" hre will pretty surely result in prohibiting freedom of expression in ways and to an extent quite unconnected with problems of city sanitation.*fn5
Plaintiff's handbill furnishes a good example of the uncertainty, not to speak of unreality, of the suggested distinctions. Sheer number of words favors the protest as against all the rest of the handbill, whether it be considered advertising or mere factual information concerning the submarine. Spacing and display give at least equal place to the protest. But if intent and purpose must be measured, how can we say that plaintiff's motives are only or primarily financial?*fn6 Is he just engaged in an advertising plot, or does he really believe in his wrongs? We know how opposition to oppression, real or fancied, grows upon a person, and we can suspect that by now plaintiff regards himself as a crusader against injustice. If so, he is in the democratic tradition and within the protection of the Bill of Rights, which safeguards the right of the individual even more than that of the group or party. Indeed, we think it is a misconception of the great freedom here involved to hold it more applicable to group protest for abstract religious or political principle than to individual protests for concrete business injuries. Not such was the attitude of the founding fathers; was it not against a tax on tea that one of our most cherished blows for freedom was struck? Of course, we recognize the need, as well as the common sense, of distinguishing between profitmaking and nonprofit-making activities for many relevant matters, as in use of the mails, levy of customs duties, and other similar examples which defendant cites to us. But we think it is quite a different thing to say that expression in public places by handbill or circular must be, not regulated, but forbidden to the ...