Appeal from an order entered in the United States District Court for the Eastern District of New York, Anthony J. Travia, Judge, denying plaintiffs' motion for a preliminary injunction pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983.
Smith, Mulligan and Oakes, Circuit Judges. Mulligan, Circuit Judge (concurring).
This appeal from denial of a motion for preliminary injunction in the United States District Court for the Eastern District of New York, Anthony J. Travia, Judge, involves the narrow issue of whether plaintiffs are entitled to a preliminary injunction to restrain the police departments of two Long Island counties from enforcing local solicitation ordinances against plaintiffs' door-to-door educational and fund-raising campaign. We stress this narrow scope, because while it is true that underlying this case is the always delicate balance between one man's right to express himself and another's right to be left alone, that troublesome issue is not presented in this appeal. Rather we are asked -- as was the district court -- to determine whether under state and local law the plaintiffs are completely exempt from local solicitation ordinances which even they concede to be fundamentally valid.*fn1 For a number of reasons, we agree that it would have been improper for the district court to have made that determination on motion for a preliminary injunction based on nothing more than the conflicting declarations of the parties. We affirm the denial of preliminary injunction.
Citizens for a Better Environment ("CBE") is a non-profit, tax-exempt organization registered as such with the Internal Revenue Service under § 501 of the Internal Revenue Code.*fn2 CBE is also registered with the New York State Department of Social Services and the state Attorney General's Office pursuant to New York statutes regulating the activities of "charitable" organizations. However, it must be noted at the outset that such registration means only that the registrant holds itself out as a charity, since the broad statutory definition of "charitable organization" includes:
Any benevolent, philanthropic, patriotic, or eleemosynary person or one purporting to be such.
New York Social Welfare Law, § 481.1 (1966) [emphasis added].
CBE's primary activity is sending its employees -- a number of whom are individual plaintiffs in this action -- door-to-door to talk with residents about environmental problems, distribute the organization's literature, and solicit contributions for CBE and other environmental groups. Plaintiffs note that in these solicitations, no employee has ever been charged with trespass, disturbing the peace, or a violation of any other law designed to protect life or property.*fn3
But between January and May of 1973, at least twenty-six CBE employees were issued appearance tickets for violating local "Hawkers, Peddlers and Solicitors" ordinances in Nassau and Suffolk Counties.*fn4 Though the details of these ordinances vary slightly, they all require the licensing of those within their ambit and limit somewhat the time and scope of their solicitations.*fn5 However, the ordinances also uniformly exempt "charitable" organizations, and it is, therefore, on the interpretation of such exemptions that this case will ultimately turn.
CBE contends that its non-profit nature, together with its registration under the state solicitation statutes, demonstrates conclusively that it is so exempt. The county officials counter that the state registration proves only that CBE has declared itself a "charitable organization" to state authorities who, while registering CBE, have carefully declined to put their imprimatur on it as a true "charity."*fn6 The officials further argue that the fact that CBE raises funds for other environmental groups makes it a "professional fund raiser," and not a charity, under the same state law:*fn7
Professional fund raiser. Any person who for compensation or other consideration plans, conducts, manages, or carries on any drive or campaign in this state for the purpose of soliciting contributions for or on behalf of any charitable organization or any other person, or who engages in the business of, or holds himself out to persons in this state as independently engaged in the business of soliciting contributions for such purpose. A bona fide officer or employee of a charitable organization shall not be deemed a professional fund raiser.
New York Social Welfare Law § 482-e(1).
Finally, they argue that the fact that CBE allows its employees to keep twenty-five percent of all they solicit, makes the individual plaintiff-employees "solicitors" ...