"Because of the affluence of our residents, the attractiveness of their homes and cars, and the privacy screening around most homes, our Police force is very alert to the potential for burglaries. . . . we are well aware of how easy it is for burglars to enter a house and escape . . . along the Long Island Expressway, Jericho Turnpike, or Glen Cove Road" (PP7, 10).
The remainder of Mr. Doerrie's affidavit reviews the village and county's "911" program and prevention of burglaries when residents are away on vacation.
C. Affidavit of Rosemarie Buscarello, Village Clerk
Ms. Buscarello addresses the licensing procedure which is implemented once a person/organization makes a request to canvass or solicit in the Village of Old Westbury. According to the Clerk,
" . . . I respond, in writing, by providing them with a copy of the VILLAGE's licensing requirements . . . thereafter, if the individual or group files an application, I review it for completeness, and then give it to the Mayor and Board of Trustees.
7. The application is then placed on the Board of Trustees agenda for its monthly meeting. I notify the applicant of the meeting date and ask that someone attend the meeting to present the application to the Board.
8. To my knowledge, no application for a permit has ever been denied . . .
9. With regard to the $ 25 fee, that amount is a reasonable approximation of the administrative costs involved in processing the application."
In 1979, Ms. Buscarello notes, upon the adoption of the current licensing requirements set forth in Chapter 149, a letter was sent to all of the Village residents advising them that if they did not wish to be solicited by "political action groups, public interest groups and religious groups" (P11), they should so advise the Village Clerk in writing. As a result, the Village Clerk maintains a non-solicitation list grouped by street.
III. THE GOVERNING LAW
In Jackson Dairy Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam), the Second Circuit set forth the applicable standard in this Circuit in order to obtain preliminary injunctive relief. According to Jackson Dairy, the movant must clearly establish the following:
"(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief" (id.).
See also Alan Skop, Inc. v. Benjamin Moore, Inc., 909 F.2d 59, 60 (2d Cir. 1990) (per curiam); Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 972 (2d Cir. 1989).
A showing of irreparable harm is perhaps considered the single most important requirement (see Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d 904, 907 [2d Cir. 1990]). Essential to a showing of irreparable harm is the unavailability or at least inadequacy of a money damages award (see, e.g., Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 72 L. Ed. 2d 91, 102 S. Ct. 1798, 1803  ["The Court has repeatedly held that the basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies"]). Also, the applicant must establish more than a mere "possibility" of irreparable harm; rather, it must show that irreparable harm is "likely" to occur (see JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 [2d Cir. 1990]). A preliminary injunction is considered an "extraordinary remedy that should not be granted as a routine matter" ( JSG Trading Corp. v. Tray-Wrap, Inc., supra, 917 F.2d at p. 80; see also Patton v. Dole, 806 F.2d 24, 28 [2d Cir. 1986]; Medical Soc'y v. Toia, 560 F.2d 535, 538 [2d Cir. 1977]).
Finally, Fed. R. Civ. P. 52(a) requires that the district court sufficiently set forth its findings to permit appellate review (see Society for Good Will to Retarded Children, Inc. v. Cuomo, 902 F.2d 1085, 1088 [2d Cir. 1990]; Weitzman v. Stein, 897 F.2d 653 [2d Cir. 1990]).
The defendant Village of Old Westbury contends that the plaintiff has no standing to sue in this matter because DSA has not applied for a license and has not been turned down for one. However, in a First Amendment case, one may facially challenge a statute or scheme that delegates overly broad discretion whether or not he has applied for a license (see City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 108 S. Ct. 2138, 2143, 100 L. Ed. 2d 771  [appellee may bring a facial challenge to ordinance without first applying for, and being denied, a permit]; see also Sentinel Communications Co. v. Watts, 936 F.2d 1189 [11th Cir. 1991]).
The Village also argues that the plaintiff does not have a reasonable probability of success on the merits because This Week is commercial speech. Counsel adds that even if the publication is non-commercial speech (a point which the defendant does not concede), such speech is subject to regulation where there are "substantial governmental interests to be advanced" (Defendant's Memorandum of Law at p. 5).
In reviewing one issue of This Week, the Court found a public service announcement cautioning readers not to drink and drive over the New Year holiday and reminding them of the dram shop law. Two subsequent pages were filled with advertisements. A fourth page showed the results of a survey completed in connection with the trial of William Kennedy Smith. Other pages reflected the following items: New Year's Eve fashions; a photo and story concerning the Grumman Hellcat airplane; a community calendar listing December and January events in local theaters, health centers and libraries; a "lifestyles" column addressing people who have trouble socializing at work or school; the "merchant of the week"; information on local eateries; and finally, the crossword puzzle.
In asserting its claim that This Week is non-commercial speech, the plaintiff relies on Ad World, Inc. v. Township of Doylestown, 672 F.2d 1136, 1139 [3d Cir. 1982], in which the Third Circuit determined that a community newspaper entitled Piggy Back was noncommercial speech for First Amendment purposes, notwithstanding the fact that only a few pages of consumer and community information were included among extensive advertising. Having reviewed the facts as well as the holding of Ad World, Inc., the Court finds the Third Circuit's decision to be directly on point. The Court therefore holds that the content of This Week is noncommercial speech.
The defendant further contends that the plaintiff has failed to establish likelihood of irreparable harm. However, it has long been accepted in this Circuit that improper conduct for which monetary remedies cannot provide adequate compensation suffices to establish irreparable harm ( Paulsen v. County of Nassau, 925 F.2d 65, 68 [2d Cir. 1991]; Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., supra, at p. 72). Our courts have held that our "historical commitment to expressive liberties dictates that 'the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury'" ( Paulsen v. County of Nassau, supra, quoting Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673, 2689 ) (emphasis supplied).
The plaintiff is faced with the prospect of receiving a summons arising out of the distribution of its newspaper in the Village of Old Westbury without the prior permission of the Village via its licensing requirement. The threat of ongoing enforcement of the code provisions and the potential for continuing summonses exists (see Youth Int'l Party v. McGuire, 572 F. Supp. 1159, 1162 [S.D.N.Y. 1983]). That threatened injury -- the deprivation of the plaintiff's constitutional rights resulting from the defendant's conduct -- is ample demonstration of irreparable harm (see Hull v. Petrillo, 439 F.2d 1184 [2d Cir. 1971] [Mount Vernon ordinance providing that "no person shall sell or peddle any goods . . . without first obtaining a license from the city" and paying $ 15 fee held to be unconstitutional]).
The affidavits proffered by the defendant focus much of their energy on the notion that regulating the distribution of This Week will help cut down on potential crime in the Village of Old Westbury, which already suffers from increasing numbers of burglaries, by keeping potential thieves, in the guise of newspaper carriers, out of the neighborhood. However, courts have held that ordinances which curtail the freedom to distribute information to further purposes of crime prevention are unconstitutional (see Martin v. City of Struthers, 319 U.S. 141 143, 63 S. Ct. 862, 863, 87 L. Ed. 1313 ). Again, in Ad World Inc. v. Township of Doylestown, supra, 672 F.2d at 1139, the Third Circuit found that the Township, though wishing to stop the door to door delivery of plaintiff's Piggy Back newspaper because the paper was left visible to passers-by and because possible accumulation might tip-off burglars that a home was unoccupied, had failed to provide evidence of a strong connection between accumulation of papers and the incidence of burglary.
The Court finds significant the additional restrictions on a license as outlined in § 149-6 and reiterated by Mayor Colombo. Any license approved granted by the Board is subject to the following restrictions: "(A) All activity must be conducted during reasonable hours established by the Board; (B) Any organization . . . shall not have more than six individuals engaged in the activity at any one time; (C) The Board shall not grant permission for the activity with respect to residents who have advised the Board in writing that they do not desire noncommercial solicitation; (D) The license shall be effective for no more than thirty days; and (E) Every individual who engages in the activity shall demonstrate that he is insured against any injury or harm suffered either through negligence or otherwise while engaged in activity authorized by the license . . ."
Counsel for the defendant Village draws the Court's attention to § 149-5, subdivision C which states the following:
"Upon receiving such application, the Mayor shall present the same to the Board of Trustees at its next regular meeting. The Board of Trustees shall approve the application of all bona fide applicants who have complied with the above provisions" (emphasis supplied).
The defendant submits that the language "shall issue the license" takes away the element of discretion and thereby eliminates the issue of constitutionality. The Court disagrees and finds that the key language "bona fide applicants" from § 149-5(C) as well as "such other information as the Board of Trustees may require" from § 149-5(A) places absolute discretion in the hands of the Board.
In Lovell v. Griffin, 303 U.S. 444, 82 L. Ed. 949, 58 S. Ct. 666 (1938), the Supreme Court struck down an ordinance that gave a municipal official the right to pass upon applications to distribute literature in the form of circulars or handbooks. The ordinance did not make any specific reference to the content of the literature; however, it still gave the government official the right to bar completely the distribution of particular forms of literature. In striking down that ordinance, the Supreme Court quoted from Ex parte Jackson, 6 Otto 727, 733, 96 U.S. 727, 733, 24 L. Ed. 877 (1877) as follows:
"liberty of circulating is as essential to [the right of freedom of speech] as liberty of publishing; indeed, without the circulation, the publication would be of little value" ( Lovell v. Griffin, supra, at p. 452).
In reviewing the facts of the instant case, the Court finds that the plaintiff has established irreparable harm in the ongoing prior restraint exercised by the Village against the plaintiff's distribution of its newspaper.
Turning to the second prong of the test -- establishing a likelihood of success on the merits -- the Court must look to the nature of the property on which the expression at issue occurs. Although the streets of a town may be "narrow and of a residential character, they are nevertheless traditional public fora"; Carey v. Brown, 447 U.S. 455, 65 L. Ed. 2d 263, 100 S. Ct. 2286 ; and therefore municipal ordinances "must be judged against the stringent standards this Court has established for restrictions on speech in such fora" ( Frisby v. Schultz, 4487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 , quoting Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 74 L. Ed. 2d 794, 103 S. Ct. 948 ).
The First Amendment restricts a municipality's capacity to enact laws affecting freedom of expression ( Grayned v. City of Rockford, 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294 ; Miami Herald Pub. Co. v. City of Hallandale, 734 F.2d 666, 673 [11th Cir. 1984]). In Grayned, the Supreme Court stated that
"The right to use a public place for expressive activity may be restricted only for weighty reasons. Clearly, government has no power to restrict such activity because of its message. Our cases make equally clear, however, that reasonable 'time, place and manner' regulations may be necessary to further significant governmental interests, and are permitted" (408 U.S. at 115).
However, to be permissible, such time, place and manner restrictions must be "content neutral" and "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication" ( United States v. Grace, 461 U.S. 171, 75 L. Ed. 2d 736, 103 S. Ct. 1702 ; Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. at p. 45).
As the Eleventh Circuit noted in Miami Herald Pub. Co. v. City of Hallendale, supra, to qualify as narrowly tailored, a content neutral ordinance "must avoid vesting city officials with discretion to grant or deny licenses" (734 F.2d at p. 673). The court went on to note
"It is settled by a long line of recent decisions of this Court that an ordinance which . . . makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official -- as by requiring a permit or license which may be granted or withheld in the discretion of such official -- is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms" ( Miami Herald Pub. Co. v. City of Hallendale, supra, at p. 673, quoting Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 151, 22 L. Ed. 2d 162, 89 S. Ct. 935 ).
This principle applies in cases where the discretion is exercised by more than one person as well. For example, where a city commission had the right, under an ordinance, to determine whether a license applicant received a business permit or denied him such a license, the court found that this function necessarily involved the exercise of considerable discretion (id.). In the area of free expression, a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship ( City of Lakewood v. Plain Dealer Pub. Co., supra, 108 S. Ct. at 2143) (emphasis supplied). In addition, "accompanying such discretion is the opportunity to discriminate against a licensee on the basis of what the licensee intends to say, which in the context of licensing newspaper distribution raises the spectre of prior restraint" ( Miami Herald Pub. Co. v. City of Hallendale, supra, at p. 675; International Society for Krishna Consciousness v. Rochford, 585 F.2d 263 [7th Cir. 1978]).
A permit system must "leave no factors to be assessed, judgments to be made, or discretion to be exercised by the appropriate licensing official" ( Hynes v. Mayor of Oradell, 425 U.S. 610, 48 L. Ed. 2d 243, 96 S. Ct. 1755 ). In the context of a first amendment challenge upon the facial validity of a licensing statute, it is the very existence of official discretion that gives rise to a threat of injury sufficient to warrant injunction ( Miami Herald Pub. Co. v. City of Hallandale, supra, 734 F.2d at 674). Broad comprehensive regulations, specifically local ordinances regulating the distribution of literature, have been repeatedly struck down ( Lovell v. City of Griffin, 303 U.S. 444, 82 L. Ed. 949, 58 S. Ct. 666 ; Schneider v. State, 308 U.S. 147, 84 L. Ed. 155, 60 S. Ct. 146 ; Cantwell v. State of Connecticut, 310 U.S. 296, 84 L. Ed. 1213, 60 S. Ct. 900 ).
The defendant criticizes the plaintiff's reliance upon City of Lakewood v. The Plain Dealer Publishing Co., 486 U.S. 750, 108 S. Ct. 2138, 100 L. Ed. 2d 771 (1988), wherein the Supreme Court found a local ordinance regulating the location of newspaper racks to be unconstitutional. The thrust of the criticism focuses on the fact that this was a 4-3 decision, with two Justices not taking part in the case. Notwithstanding the fact that City of Lakewood was not a unanimous decision, this Court must recognize that City of Lakewood is still the law of the land.
The cases relied upon by the plaintiff establish that there is a constitutional right to freely circulate one's ideas. They also establish the public's right to receive those ideas (see Authors League of America Inc. v. Oman, 790 F.2d at 223 [2d Cir. 1986].
Finally, there is nothing in Chapter 149 that prevents content censorship, particularly with such an open-ended provision allowing screening for "such other information as the Board of Trustees may require." With this kind of licensing qualification, the Village can reject any applicant for any reason. As this Court held in Paulsen v. Lehman, 745 F. Supp. 858 (E.D.N.Y. 1990), the speech at issue here clearly implicates First Amendment rights. In addition, in relation to the $ 25 Village fee for a license, it has long been established that "a state may not impose a charge for the enjoyment of a right granted by the Federal Constitution" ( Hull v. Petrillo, 439 F.2d at p. 1185, quoting Murdock v. Pennsylvania, 319 U.S. 105, 87 L. Ed. 1292, 63 S. Ct. 870 ). Further, significantly, there is nothing in Chapter 149 which says anything about reasonable time, place and manner restrictions. If left undisturbed, this local law will, in the Court's view, cause the plaintiff to suffer irreparable harm.
It is apparent that the face of the ordinance itself contains no explicit limits on the discretion of the Board of Trustees. The Village asks the Court to presume that the Board will never deny a license application, or that it will do so only for reasons related to the health, safety, or welfare of Old Westbury citizens. This, of course, presumes that the Board will act in good faith and adhere to certain standards presently stated in this law suit -- standards which are not set forth in the ordinance. As the Supreme Court has noted, "this is the very presumption that the doctrine forbidding unbridled discretion disallows" ( City of Lakewood v. Plain Dealer Pub. Co., supra, 108 S. Ct. at p. 2150). This Court cannot presume non-binding limits into a silent ordinance granting the Village unbridled censorship discretion.
The fact that the statute says that the Board of Trustees shall approve the application is watered down considerably, if not totally, by the language "of all bona fide applicants" (emphasis supplied). The question is, "Who is a bona fide applicant?" One who leaves newspapers in front of a house on the hook of a mail post possibly attracting burglars? There are no standards for the definition of "bona fide applicants."
Therefore, the Court holds that Chapter 149-4 of the Village Code of Old Westbury constitutes a prior restraint, puts unbridled discretion in the hands of the Village Board of Trustees, and violates the First Amendment of the Constitution of the United States.
For all of these reasons, the plaintiff's request for a preliminary injunction is granted. The Village of Old Westbury, its successors, agents, servants, employees, officers, officials, attorneys, and assigns are hereby enjoined from continuing, attempting or threatening to enforce Chapter 149 of the Code of the Village of Old Westbury with regard to this plaintiff, or from taking any action to prevent, interfere with, or threaten the plaintiff, its employees, agents, and assigns from distributing or otherwise delivering the newspaper entitled This Week to the residents of the Village of Old Westbury pending the final hearing and determination of this action.
In accordance with Federal Rule of Civil Procedure 65(c), the plaintiff DSA was advised at oral argument on January 10, 1992, to post a bond in the amount of $ 5,000 within ten (10) days and to file proof of such undertaking with the Clerk of the Court on or before January 20, 1992.
Dated: Uniondale, New York
February 28, 1992
ARTHUR D. SPATT
United States District Judge