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DISTRIBUTION SYS. OF AMERICA v. VILLAGE OF OLD WES

February 28, 1992

DISTRIBUTION SYSTEMS OF AMERICA, INC. Plaintiff, against VILLAGE OF OLD WESTBURY, Defendant.


The opinion of the court was delivered by: ARTHUR D. SPATT

OPINION AND ORDER

 SPATT, District Judge.

 Much has been made of our Constitution's "most majestic guarantee" *fn1" -- the freedom of speech. No doubt one of the more familiar theories of free speech is the often-quoted passage of Justice Holmes that "the best test of truth is the power of the thought to get itself accepted in the competition of the market" ( Abrams v. United States, 250 U.S. 616, 630, 63 L. Ed. 1173, 40 S. Ct. 17, 22 [1919] [Holmes, J., joined by Brandeis, J., dissenting]).

 It is the very "marketplace of ideas" theory that provides the foundation for the controversy now before the Court, namely, the distribution of a local newspaper. In addition to the right to freely circulate one's ideas, the law of the land also protects the public's right to receive those ideas (see Authors League of America, Inc., v. Oman, 790 F.2d 220, 223 [2d Cir. 1986]). With this in mind, the Court turns to the plaintiff's application.

 The plaintiff moved by order to show cause, dated December 23, 1991, seeking a preliminary injunction and temporary restraining order pursuant to Fed. R. Civ. P. 65(a) and (b), enjoining the defendant Village of Old Westbury from "continuing, attempting or threatening to enforce Chapter 149 of the Code of the Village of Old Westbury or taking any action to prevent, interfere with, or threaten plaintiff, and its employees, agents, and assigns from distributing or otherwise delivering the newspaper entitled This Week to the residents of the municipal defendant."

 I. FACTUAL BACKGROUND

 The plaintiff Distribution Systems of America ("DSA") is engaged in the dissemination of newspapers, magazines and other periodicals. This Week is circulated to approximately 1.1 million homes in Nassau, Suffolk and Queens counties and is published in more than sixty different local editions.

 According to the plaintiff, This Week is distributed exclusively by independent carriers, free of charge to Long Island residents. It contains "substantial timely and topical editorial content and news items of local and general interest and provides an important public service by, among other things, alerting the public in its circulation area to local and general news events, offering a medium of expression on issues of local concern and providing a conduit through which local merchants can make themselves and their goods and/or services known to their communities" (Duffy Affidavit, P5).

 The plaintiff asserts that a sample issue of This Week contains items of local interest, including:

 (1) a "Community Calendar" -- lists and promotes events conducted by non-profit organizations, free of charge;

 (2) "Community Briefs" -- announcing births, graduations, engagements, weddings, and grand openings;

 (3) 'School News' --information on local schools;

 (4) Various regular columns devoted to the home, fashion, cooking, lifestyles, automobiles and a profile of local merchants.

 DSA also acknowledges that the paper contains a substantial number of advertisements. However, it notes that unlike larger regional newspapers, most of the ads in This Week call attention to local businesses operating in the small circulation areas for which each edition is targeted. The revenue generated by the ads allows the paper to be delivered free of charge.

 II. PROCEDURAL SETTING

 Chapter 149-4 of the Old Westbury Code provides as follows:

 "§ 149-4. License required for certain activities.

 It shall be unlawful for any person, organization, society, association, company or corporation or their agents or representatives to proselytize, canvass or to distribute handbills, pamphlets or other written material or solicit donations or contributions of money or property or financial assistance of any kind upon the streets, in the offices of business buildings, upon private property, by house to house canvass or in public places in the Village of Old Westbury without a license previously issued pursuant to this chapter.

 To qualify for a license, a person must file an application with the Mayor of the Village of Old Westbury. Section 149-5 outlines this procedure:

 "A. Applications for a license, as provided for in this chapter shall be in writing and addressed to the Mayor of the Village of Old Westbury and shall contain the following information:

 (1) Name, address and purpose of the cause for which the license is sought.

 (2) Names and addresses of the officers and directors of the organization, firm, society, association, company or corporation.

 (3) Time for which permission is sought and localities and places of activity.

 (4) Legal and tax status of any organization, firm, society, association, company or corporation so applying.

 (5) Whether or not any commissions, fees, wages or emoluments are to be expended in connection with such activity.

 (6) Such other information as the Board of Trustees may require" (emphasis supplied).

 The plaintiff further notes that:

 "Pursuant to Chapter 149, the Village Board is exclusively authorized to issue licenses to distributors of newspapers upon receipt of a bona fide application. Thus, pursuant to this Chapter, the Village Board has the unfettered discretion to determine whether any additional information is required and to withhold ...


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