The opinion of the court was delivered by: PIERCE
This is a § 1983 civil rights action brought by plaintiffs Cobb and Cordero for injunctive relief and a declaration that a New York City ordinance, requiring that an American flag be displayed at assemblies and parades, unconstitutionally infringes upon federally protected rights of free speech and assembly.
On June 7, 1975, Paul Kreingold, a member of the steering committee of the New York City local of the U.S. Labor Party, was arrested at a rally for the Party for failure to have an American flag on display in violation of New York City Administrative Code § 435-8.0. On June 28, 1975, Robin Taub, another member of the U.S. Labor Party, was arrested for violation of the same ordinance. Present at that second rally was Nereida Cordero, also a member of the Party local and a plaintiff herein. Kreingold's summons was made returnable in the Criminal Court of the City of New York on July 8; Taub's summons was similarly returnable on July 28.
Plaintiffs Cobb and Cordero, both members of the New York local of the U.S. Labor Party, subsequently filed a complaint in this Court on June 24, 1975. The suit, characterized by plaintiffs as a class action, sought declaratory relief to the effect that § 435-8.0 of the Administrative Code is unconstitutional on its face and sought an injunction restraining defendants from the enforcement of that ordinance. On June 30, 1975, this Court issued to defendants an order to show cause why they should not be temporarily restrained from enforcing the ordinance against plaintiffs, and a hearing was set down for July 2, 1975. Following the hearing, this Court on July 3, 1975 entered a temporary restraining order enjoining defendants and their agents from enforcing the ordinance against the two named plaintiffs in this action, pending the determination of the motion for a preliminary injunction. That motion, based on undisputed facts, having been fully briefed by the parties, the Court determines that the preliminary injunction must issue as to the named plaintiffs herein.
According to affidavits supplied by plaintiffs, both Cobb and Cordero were scheduled to be deployed organizing, selling papers, and talking to people at rallies of the U.S. Labor Party scheduled in the weeks following the filing of the complaint herein and before the return dates of the state criminal summonses. However, as of the date of the complaint, neither plaintiff had been arrested for violation of the challenged ordinance, although their moving affidavit states a continuing fear that such arrests will be made. It is not disputed that members of the U.S. Labor Party have been warned several times of the requirement that an American flag be at their rallies and that there has been no attempt to comply with the ordinance.
Section 435-8.0 of the Administrative Code of the City of New York reads, in pertinent part, as follows:
" Public assemblies; display of flag. -- a. All assemblies, warranted by law, held in any of the streets of the city, where public discussions are held, shall have the American flag, the dimensions of which shall be not less than thirty-six inches by forty-eight inches, conspicuously displayed at all times during the whole of such assembly and every parade or procession must have at or near its head the American flag, of similar dimensions, conspicuously displayed at all times during the formation of such parade or procession.
"c. Any person or member of a group of persons who shall violate any provision of this section shall upon conviction thereof, be punished by a fine of not more than one hundred dollars or by imprisonment not exceeding ten days or both such fine and imprisonment."
Subsection (b) of the ordinance, prohibiting the display of certain other flags and banners, is not at issue in this case. According to the Corporation Counsel for the City, this action is the first to challenge the validity of the American flag requirement since its adoption by the Board of Aldermen in 1917.
Section 435-8.0 does not apply to all public assemblies; rather, it applies only to those "warranted by law", such as rallies at which a sound amplification device is employed. These are the type of assemblies which the U.S. Labor Party hold; see United States Labor Party v. Codd, 391 F. Supp. 920 (E.D.N.Y. 1975).
Plaintiffs urge that this Court has jurisdiction over the present action by nature of 28 U.S.C. §§ 1343 and 2201, and the Court so concludes. This is an action to redress alleged deprivation of federally protected constitutional rights under the first and fourteenth amendments, brought against state officials pursuant to 42 U.S.C. § 1983.
Plaintiffs bring this action on behalf of "all others similarly situated" but at this juncture no class determination has yet been sought pursuant to Rule 23 Fed.R.Civ.P., it being clear to all parties, and to this Court, that the first issue to be ...