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UNITED STATES LABOR PARTY v. CODD

March 11, 1975

UNITED STATES LABOR PARTY, a/k/a National Caucus of Labor Committees, et al., Plaintiffs,
v.
Michael J. CODD, Individually and as Commissioner of the Police Department of the City of New York, Defendant


Weinstein, District Judge.


The opinion of the court was delivered by: WEINSTEIN

MEMORANDUM and ORDER

WEINSTEIN, District Judge:

 Plaintiffs began this action in the summer of 1974 while gathering petitions in connection with state and national elections. They sought injunctions against the defendants to prevent enforcement of that portion of section 435-6.0 of New York City's Administrative Code requiring a $5.00 fee for each permit to use a sound amplification device in addressing the public. The ordinance is set out in an appendix to this memorandum.

 Preliminary evidentiary hearings were held within a few days after the action was commenced. The evidence showed a high probability that the plaintiff was without sufficient funds to pay the fees required in its projected street election campaign. There was a substantial probability that the ordinance would be declared unconstitutional. With the detriment to plaintiffs' First Amendment rights substantial and the possible loss to the defendants slight, immediate relief was warranted. Accordingly, the court granted a preliminary injunction requiring the defendants to issue a specified number of permits to plaintiffs without prepayment of fees.

 Plaintiffs will continue to require permits in future campaigns. In no sense can this case be deemed mooted by the 1974 elections. Cf. Cousins v. Wigoda, 419 U.S. 477, 95 S. Ct. 541, 42 L. Ed. 2d 595 (1975); Williams v. Rhodes, 393 U.S. 23, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968).

 A full evidentiary hearing has now been held. For the reasons stated below the ordinance is found to be unconstitutional insofar as it requires payment of fees in political campaigns. A permanent injunction is granted.

 Facts

 The evidence was overwhelming that the city's collection and issuance cost was over $10.00 per permit. At least six forms and a number of telephone calls are required. A detailed time and motion study might easily justify a cost to the city four or five times the fee charged.

 There is little doubt that the city would save money were it to issue permits without fee at the precinct level, thus eliminating the need for extensive recordkeeping and processing. No overwhelming need, therefore, has been demonstrated for the City's charging a $5.00 fee. By contrast, there is a substantial detriment to small, poorly financed groups, or to individuals, wishing to conduct a continuing political campaign on city streets. The cost of paying fees each day over the course of a political campaign for a small number of amplification devices could easily run up to many hundreds of dollars. It might inhibit campaigning with a cheap, battery-operated, bullhorn, in a way the speaker considered effective.

 Law

 On any current constitutional scale, the right to speak publicly on electoral matters is "fundamental," "preferred," and "implicit in the concept of ordered liberty," and subject only to the least practicable interference by government when it demonstrates the most "compelling state interest." See, e.g., Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S. Ct. 444, 446, 80 L. Ed. 660 (1936); Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 152, 82 L. Ed. 288 (1937); Lovell v. City of Griffin, Ga., 303 U.S. 444, 450, 58 S. Ct. 666, 668, 82 L. Ed. 949 (1938); Hague v. Committee for Industrial Organization, 307 U.S. 496, 515-516, 59 S. Ct. 954, 964, 83 L. Ed. 1423 (1939); Murdock v. Pennsylvania, 319 U.S. 105, 115, 63 S. Ct. 870, 876, 87 L. Ed. 1292 (1943); Kramer v. Union Free School District, 395 U.S. 621, 626, 630, 89 S. Ct. 1886, 1889, 1891, 23 L. Ed. 2d 583 (1969); Lubin v. Panish, 415 U.S. 709, 94 S. Ct. 1315, 1320, 39 L. Ed. 2d 702 (1974). Since elections are involved, we deal here with a right "preservative of other basic civil and political rights." Reynolds v. Sims, 377 U.S. 533, 562, 84 S. Ct. 1362, 1381, 12 L. Ed. 2d 506 (1964); Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S. Ct. 1064, 1074, 30 L. Ed. 220 (1885); Wesberry v. Sanders, 376 U.S. 1, 17, 84 S. Ct. 526, 535, 11 L. Ed. 2d 481 (1964) ("Other rights, even the most basic, are illusory if the right to vote is undermined"). The city ordinance at issue here penetrates what Professor Henkin has characterized as "a zone of prima facie autonomy, of presumptive immunity from regulation." Henkin, Privacy and Autonomy, 74 Colum.L.Rev. 1410, 1425 (1974).

 It is true that a line of cases has validated fees for processions on public streets and other exercises of First Amendment rights where the amount of the fee is reasonably related to the "expense incident to the administration of the act." Cox v. State of New Hampshire, 312 U.S. 569, 577, 61 S. Ct. 762, 766, 85 L. Ed. 1049 (1941). See, also, Faria v. Violette, 32 F. Supp. 239 (D.Mass.1940) (validated $25 per year or $3.00 per day amplifier fee); Commonwealth ex rel. Hines v. Winfree, 408 Pa. 128, 182 A.2d 698 (1962) (validated $25.00 per day amplifier fee); Posner v. Cooper, 194 Misc. 640, 83 N.Y.S.2d 460 (S. Ct.1948) (validated $25.00 per day amplifier fee); cf. Moffett v. Killian, 360 F. Supp. 228, 231-232 (D.Conn.1973) (fee for legislative lobbying unconstitutional where fees in excess of administrative costs); NAACP v. Chester, 253 F. Supp. 707 (E.D.Pa.1966) (declaring a $25.00 fee invalid when the defendant submitted no evidence with respect to the cost of processing an application for a permit).

 But, in a parallel line of cases with more current vitality, the Supreme Court has declared such fees unconstitutional as a "tax" on the exercise of a constitutional right. Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S. Ct. 870, 87 L. Ed. 1292 (1943); Follett v. Town of McCormick, S.C., 321 U.S. 573, 64 S. Ct. 717, 88 L. Ed. 938 (1944); Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966). See T. I. Emerson, The System of Freedom of Expression, 310-311, 359 (1970). Cf. Wulp v. Corcoran, 454 F.2d 826 (1st Cir. 1972) (ordinance requiring the wearing of a badge and $.75 fee unconstitutional); Strasser v. Doorley, 432 F.2d 567 (1st Cir. 1970) (ordinance requiring registering and wearing badge and $.50 fee unconstitutional); International Society for Krishna Consciousness v. Conlisk, 374 F. Supp. 1010 (N.D.Ill.1973) (peddler's license requirements invalid as applied to plaintiff); Gall v. Lawler, 322 F. Supp. 1223 (E.D.Wisc.1971) (ordinance requiring $5.00 peddler's fee and $100 transient merchant's fee invalid as applied to "underground" newspaper); Busey v. District of Columbia, 78 U.S.App.D.C. 189, 138 F.2d 592 (1943) ($1.00 fee on literature invalid); City of Blue Island v. Kozul, 379 Ill. 511, 41 N.E.2d 515 (1942) (person "can not be compelled to purchase, through a license fee or a license tax, the privilege freely granted by the constitution").

 
No person,
 
"can be required to pay a tax for the exercise of that which the First Amendment has made a high constitutional privilege." Follett v. Town of McCormick, ...

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