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SUPREME COURT OF NEW YORK, NEW YORK COUNTY 1968.NY.42172 <>; 291 N.Y.S.2d 145; 56 Misc. 2d 1050 June 17, 1968 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.ALLEN SOLOMONOW, DANIEL DUE, EILEEN MORRIS, RUTH PINCO AND IGAL RODENKO, DEFENDANTS Frank S. Hogan, District Attorney (Bennett L. Gershman of counsel), for plaintiff. Alan H. Levine for defendants. Arthur Braun, J. Author: Braun

Arthur Braun, J.

Author: Braun

 The defendants sought to protest the arrest and trial of four writers in the Soviet Union. The Soviet Union's U. N. Embassy is located on 67th Street between Third and Lexington Avenues on the south side of the street.

The police allocated to the protesters an area adjacent to a National Guard Armory on the southwest corner of 67th Street and Lexington Avenue, about one block away.

There were about 20 pickets in all. After a time, apparently having concluded that their protest was not being communicated to the Embassy, the target of their protest, a few of the pickets crossed to the east side of Lexington Avenue.

There was no testimony that there was any disturbance or that they interfered with vehicular or pedestrian traffic in any way.

The police had erected barricades partially across the northeast and southeast corners of 67th Street. Vehicular traffic was permitted on that street and about three feet of each sidewalk was open for pedestrians.

Four of the five arrests were made within a few feet east of the barricades and the fifth in front of the police precinct on the same block where that defendant had wandered while seeking the Soviet Union's building. The arrests were made after the police officers stated that the defendants would be arrested if they passed the barricades. They did not heed the warning. It is conceded that the pickets were not violent nor did they threaten violence.

The police justify their order denying picketing before the Embassy on the grounds that there is a security problem in protecting the Soviet Embassy. This prohibition affected picketing whether or not it was peaceful. This policy was established by the Police Department and is not contained in any ordinance or statute.

Neither the city nor the police may permanently close a public street to persons using it for lawful purpose, particularly to those using the streets in the exercise of their First Amendment rights. (City of New York v. Rice, 198 N. Y. 124.)

In Hague v. C. I. O. (307 U.S. 496, 515, 516) the Supreme Court stated: "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the street and parks for communication of views on national questions may be regulated in the interest of all; it is also absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied."

In Jamison v. Texas (318 U.S. 413, 416) it was said that: "One who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in orderly fashion." Schneider v. State (308 U.S. 147, 163) held that liberty of expression is not to be "abridged on the plea that it may be exercised in some other place."

In Saia v. New York (334 U.S. 558, 561) the court invalidated a prohibition of loud speakers because they are "indispensable instruments of effective public speech."

Cox v. New Hampshire (312 U.S. 569, 574) has been quoted often as illustrative as to whether rules or regulations "deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places."

It is true of course that First Amendment activities may be restrained as stated in Cantwell v. Connecticut (310 U.S. 296, 308): "When clear and present danger of riot, disorders, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious. Equally obvious is it that a State may not unduly ...

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