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MATTER SOL GORDON v. FRANK WALKLEY (06/07/73)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT 1973.NY.42077 <http://www.versuslaw.com>; 344 N.Y.S.2d 233; 41 A.D.2d 493 June 7, 1973 IN THE MATTER OF SOL GORDON, AS DIRECTOR, FAMILY PLANNING AND POPULATION INFORMATION CENTER, RESPONDENT,v.FRANK WALKLEY, AS COMMISSIONER OF AGRICULTURE AND MARKETS, APPELLANT Appeal from a judgment of the Supreme Court at Special Term (Harold J. Hughes, J.), entered August 29, 1972 in Albany County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, for an order annulling the determination of the respondent. Thomas G. Conway for appellant. Jules L. Smith for respondent. Main, J. Herlihy, P. J., and Kane, J., concur with Main, J., in a separate opinion by Herlihy, P. J.; Greenblott and Cooke, JJ., dissent and vote to affirm in separate opinions. Author: Main


Appeal from a judgment of the Supreme Court at Special Term (Harold J. Hughes, J.), entered August 29, 1972 in Albany County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, for an order annulling the determination of the respondent.

Main, J. Herlihy, P. J., and Kane, J., concur with Main, J., in a separate opinion by Herlihy, P. J.; Greenblott and Cooke, JJ., dissent and vote to affirm in separate opinions.

Author: Main

 This is an appeal from a judgment of the Supreme Court at Special Term, entered in Albany County on August 29, 1972, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, for an order annulling the determination of the respondent.

In the spring of 1971, after his associates had discussed plans for an exhibit with the New York State Fair officials, petitioner was granted free exhibit space in the Art and Home Center of the fair. No mention was made at this time of a comic book, so-called, entitled "Zing Comix -- Ten Heavy Facts about Sex". Only after the 1971 Fair was in progress did the fair staff learn that the petitioner's group was distributing this comic at their exhibit. An official who was in charge of the Art and Home Center requested that the petitioner's group limit distribution of the comics to adults, and the petitioner refused. On the next day, the Director of the State Fair went to petitioner's exhibit and personally requested that distribution be discontinued entirely. The petitioner's group or organization agreed to remove the comic from the counter. However, the next day the Fair Director discovered that the group was furtively distributing the booklet or pamphlet by inserting it into a packet of other materials which were being handed out to patrons at the petitioner's exhibit.

In 1972 the petitioner was denied complimentary exhibiting space. When he sought rental space, he was informed that his request would be considered if he would give reasonable assurance to fair officials that the comic book would not be made available to or distributed to minors without the consent of their parents or any other adult responsible for the care of a child attending the fair. The petitioner rejected the proposal and, when his counter proposal to limit distribution of the pamphlet, if possible, to infants over the age of 14 years was rejected, this proceeding ensued.

The court below annulled the determination of the appellant which denied petitioner permission to establish an exhibit and to distribute his booklet at the 1972 New York State Fair and appellant here appeals. Consideration of this matter is not rendered moot by the fact that the dates for the 1972 Fair have long since passed. This type of controversy is likely to recur and, as such, it is well settled that an appeal will be entertained (East Meadow Community Concerts Assn. v. Board of Educ. of Union Free School Dist. No. 3, 18 N.Y.2d 129, 135).

At the outset, we must recognize that a duty is statutorily imposed upon the appellant Commissioner to hold a State Fair (Agriculture and Markets Law, ยง 31-b). This same section gives the appellant wide discretion in the conduct of such Fair. The appellant "may make, alter, suspend or repeal needed rules relating to such fair, including * * * the terms and conditions of entries and admissions, exhibits", etc. (Id.) It was in the exercise of this wide discretion that the appellant determined that space would not be available to the petitioner for the 1972 State Fair.

The particular object of this controversy is a comic, booklet or pamphlet on the subject of sex education. Its title is "Zing Comix -- Ten Heavy Facts about Sex". We are reluctant to characterize or even describe it, for people's judgments and appraisals vary widely on presentations of this kind, as well as upon the subject matter with which the pamphlet deals. While the parties concede that the pamphlet is not obscene, it is fair to say that it suggests that sodomy is acceptable and it surely condones and encourages homosexuality and bisexuality, if one is so inclined, while conceding that the majority of people favor heterosexuality. In addition, the pamphlet chides and belittles parents, doctors and counselors and school sex educational programs and courses. Such references as "your parents don't tell you" and "that your doctors and counselors ain't talking about" and "your school is steppin' light aroun'" amply support such a conclusion.

While we most certainly do not share the author's views, we recognize his right to his own opinion and his constitutional right to express those views. However, his right to impose those views upon the young, the impressionable, the unguided, and the immature, in our opinion, is not an unbridled right (Ginsberg v. New York, 390 U.S. 629).

Our governments have long realized and acknowledged that experience and maturity, measured as best they can be by age, are prerequisite to the exercise of certain rights and privileges and so have provided that the attainment of a certain age is necessary in order to exercise that right or to accept that privilege. Our voting and licensing laws, minimum age for service in public office, are but a few examples. Indeed, our Penal Law, in its sections dealing with sex offenses, uses age as a standard, in some instances, in determining the degree of the crime. We have obviously recognized, and rightly so, that experience and maturity, hopefully acquired with age, enable one, or, in any event, should enable one to make a wiser choice or decision and provide one with a better base for making decisions and judgments.

Here the Commissioner of Agriculture, upon learning of the content and circulation of the pamphlet in 1971, sought to prevent its distribution to the young. After agreeing to remove the pamphlet from the stand, petitioner again began to distribute the pamphlet by inserting it in a packet or package with other material. His application for space the year following was rejected because of his refusal to reasonably limit distribution and because of his failure to comply with his agreement with the Commissioner.

It is to be remembered that the State Fair, like other exhibitions of its kind, attempts to and does appeal to the very young. The scheduled events and contests and the displays are most usually designed to attract the attention of the young. 4-H Clubs, scout troops, cub scout troops, church organizations for the young, as well as grade school units, are invited to and do participate in the activities of the Fair. The petitioner's refusal to restrict the distribution of the pamphlet demonstrates a desire to place his booklet or pamphlet in the hands and in the minds of children of early age.

In view of all of the foregoing, we cannot conclude that the Commissioner has acted in an arbitrary or capricious manner, nor do we conclude that his action was discriminatory. We feel that his determination was justified. "The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated" (Adderley v. Florida, 385 U.S. 39, 47). In the case at hand, the area in which petitioner desired to exhibit was the Art and Home Center of the Fair and is devoted to home and family types of exhibits. People who desire to propagandize their views do not have a constitutional right to do so whenever and however and wherever they please (Adderley v. Florida, supra). Property rights need not yield to the exercise of First Amendment rights where alternate means of communication exist (Lloyd Corp. v. Tanner, 407 U.S. 551). Certainly, there are other means by which the petitioner might distribute his comic, other than through an exhibit at the State Fair. It should also be remembered that the appellant did not issue a blanket denial to the petitioner's request for space. The grant of space to the petitioner was merely conditioned upon the petitioner's assurance that the comic would not be given to minors, without the consent of either a parent or lawful guardian. In setting this condition, appellant is again well-supported by the law. Society may secure the healthy, well-rounded growth of its young people with a "broad range of selection". (Prince v. Massachusetts, 321 U.S. 158, 168.) Even in areas of protected freedoms, the State may control the conduct of children to an extent far greater than its scope of authority over adults (Ginsberg v. New York, 390 U.S. 629, supra). Indeed, because of its exigent interest in keeping objectionable material from children, the State may bar distribution to them of books recognized to be suitable for adults (Bookcase, Inc. v. Broderick, 18 N.Y.2d 71, app. dsmd. 385 U.S. 12), and, most importantly, material may be determined to be objectionable for children, without regard to the traditional legal concept of "obscenity". (Bookcase, Inc. v. Broderick, 49 Misc. 2d 355, 357, affd. 18 N.Y.2d 71.)

Justice Stewart, concurring in Ginsberg v. New York (supra), reaches the heart of the matter. The constitutional guarantee of a society of free choice presupposes a citizenry with the capacity to choose. Where that capacity is lacking or not fully developed, as in children, government regulation is consistent with, and even implements, the First Amendment. Thus, the State may keep harmful ...


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