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TROYER v. TOWN OF BABYLON

January 4, 1980

RONALD J. TROYER, DANIEL STEIN, and LINDA CHRISTENSEN, Plaintiffs, against TOWN OF BABYLON, TOWN OF HUNTINGTON, TOWN OF RIVERHEAD, TOWN OF SOUTHAMPTON, Defendants.


The opinion of the court was delivered by: WEINSTEIN

MEMORANDUM AND ORDER

Fifteen years ago defendant, the Town of Southampton, adopted an ordinance designed to (1) reduce solicitors' leaving of printed materials which target empty houses for would-be burglars and create problems of litter; and (2) protect its inhabitants' privacy and its tourist population against victimization by solicitors. Plaintiffs are members and missionaries of the Holy Sprit Association for the Unification of World Christianity. To aid their evangelical activities Church members solicit support both in the streets and other areas where people congregate, and door-to-door, tendering literature, flowers and other merchandise for cash offerings. They seek an order enjoining enforcement of the ordinance and declaring it unconstitutional as applied to them on the grounds that it abridges their exercise of freedom of speech and religion and deprives them of the equal protection of the law.

 Southampton has 45,756 inhabitants who occupy 145 square miles, making its density one person per two acres. The population multiplies in the summer months to accommodate vacationers; much of the year many homes are vacant and substantial neighborhoods are virtually unattended.

 Founded in 1640, the town is successor to the first English settlement in New York. A group from Lynn, Massachusetts sought good farm land, religious freedom and privacy on the east end of Long Island. See generally Robertson, Purcell B., Profiles of the Early Settlers of the Town of Southampton, Long Island (1977); Adams, James Truslow, History of the Town of Southampton (1918); Pelletreau, William S., Old Southampton, The Long Island Magazine, Vol. 1, No. 2, p. 22 (Sept. 1893); Howell, George Rogers, History of Southampton with Genealogies (2d ed. 1887).

 Poor roads kept Southampton fairly isolated and the town's people closely knit. "One of the most fundamental aspects (of life in Southampton) was the screening of all prospective newcomers with the right of acceptance (usually preceded by a trial period of six months) or rejection." Robertson, Purcell B., Profiles of the Early Settlers of the Town of Southampton, Long Island, 9 (1977); I Southampton Town Records, p. 111 (1965). Town approval had to be acquired before a house or property could be sold. Adams, James Truslow, History of the Town of Southampton, 98-99 (1918). In the case of transients, bonds were required from their hosts. Id. at 98; II Southampton Town Records, p. 181 (1691).

 At the trial of this action the town's people's continuing strong sense of privacy was stressed. Somewhat facetious repeated references during the trial to witnesses who had not been born in the town but had lived there for "only" decades suggested a widespread suspicion of strangers.

 I. ORDINANCE

 The Southampton ordinance prohibits door-to-door distribution of religious literature and the solicitation of funds without the prior consent of the occupants, but exempts from its operation any person who has resided or maintained a place of business in the town for at least six months. It reads as follows:

 
Ordinance No. 43
 
Solicitors on Private Property
 
No person shall enter upon any private residential property in the Town of Southampton, Suffolk County, New York, for the purpose of vending, peddling, or soliciting orders for any merchandise, device, book, periodical or printed matter whatsoever; nor for the purpose of soliciting alms, or a subscription or a contribution to any church, charitable or public institution whatsoever; nor for the purpose of distributing any handbill, pamphlet, tract, notice or advertising matter, nor for the purpose of selling or distributing any ticket or chance whatsoever, without the consent of the occupant of said premises previously given.
 
Nothing herein contained shall be construed to apply to any person who has been a bona fide resident of the Town of Southampton, New York, for a period of at least six (6) consecutive months last past, nor to any person who has maintained a place of business in the Town of Southampton for a period of at least six (6) consecutive months, prior thereto, or his duly authorized representative. Any person violating this Ordinance shall be subject to a penalty of not more than One Hundred ($ 100.00) Dollars for each violation thereof.
 
Any violation of this Ordinance shall constitute disorderly conduct, and the person violating the same shall be a disorderly person.

 II. LAW

 Defendant's concern for its residents' privacy and the protection of their property, privacy and aesthetic enjoyment of the area is entitled to consideration. So, too, are plaintiffs' constitutional rights of free speech and religion and the rights of those in the town to receive plaintiffs' information.

 The Church is controversial and some of its public activities have been said to have a higher content of the secular e. g., selling flowers, candy and other objects for cash than is usual in most organized religions today. See, e. g., F. Sontag, Sun Myung Moon and the Unification Church (1977); I. L. Horowitz, Science, Sin and Scholarship (1978); C. Edwards, Crazy for God, 156-170 (1979); A. Nelson, God, Man and the Rev. Moon, The Nation, p. 325, March 31, 1979; C. Trillin, Bayou La Batre, Alabama, New Yorker, p. 99, March 27, 1978. Yet there is little doubt that its canvassing activities must be characterized as religious for purposes of the first amendment. There is a "reasonable possibility (1) that the conviction (of plaintiffs) is sincerely held and (2) that (their beliefs are) based upon what can be characterized as theological, rather than secular e. g., purely social, political or moral views." Stevens v. Berger, 428 F. Supp. 896, 899 (E.D.N.Y.1977). See also, e. g., Note, "Mind Control" or Intensity of Faith: The Constitutional Protection of Religious Belief, 13 Harv. Civil Rights Civil Liberties L.Rev. 751 (1978).

 Where there is a conflict between rights, our pragmatic society usually attempts to preserve as much of the interests of all parties as possible. We recognize that the extension of the freedoms of some often has a tendency to encroach upon those claimed by others. Nevertheless, the burdens placed on plaintiffs' free expression of ideas are not easily justified by balancing them against local interests in privacy and property. See, e. g., Tribe, American Constitutional Law §§ 12-2 et seq. (1978); Frantz, The First Amendment in the Balance, 71 Yale L.J. 1424 (1962). Here the issue is whether the town has drawn a proper constitutional balance by preferring residents' religious ...


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