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DISTRIBUTION SYS. OF AMERICA v. VILLAGE OF OLD WES

September 30, 1994

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



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

 SPATT, District Judge:

 Freedom of the press from government imposed prior restraints is a hard fought right of our democracy that the courts must guard with vigilance. As the esteemed commentator of the common law William Blackstone wrote in 1765, "the liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published." 4 W. Blackstone, Commentaries *151-152.

 In the present case, the Court is presented with a constitutional challenge to an ordinance passed by the Village of Old Westbury ("defendant" or "Village") which according to the plaintiff imposes a prior restraint on the press. The ordinance forbids the distribution of "unsolicited print or other written materials" to Village residents who have filed a notice with the Village Clerk requesting that all such materials not be delivered to their homes. The plaintiff moves for summary judgment in its favor pursuant to Fed. R. Civ. P. 56(a), and seeks (1) to have the Village ordinance declared unconstitutional on its face and as applied to the plaintiff, (2) to permanently enjoin the Village from enforcing or attempting to enforce the ordinance, (3) an inquest to prove its damages under 42 U.S.C. § 1983, and (4) attorneys' fees and costs pursuant to 42 U.S.C. § 1988. The defendant moves for partial summary judgment in its favor, contending the ordinance is a constitutionally valid time, place and manner restriction on the distribution of unsolicited written material to Village residents.

 BACKGROUND

 1. Procedural History.

 This is the second time that the plaintiff Distribution Systems of America, Inc. ("plaintiff" or "DSA") has appeared before the Court in this case to challenge an ordinance enacted by the Village that allegedly restricts the distribution of DSA's weekly newspaper, This Week. The earlier history and facts underlying the present controversy are recounted in the Court's first decision in this matter, reported at 785 F. Supp. 347 (E.D.N.Y. 1992), and are briefly summarized here.

 DSA distributes newspapers, magazines and other periodicals, including a weekly newspaper entitled This Week. According to the complaint, This Week contains "substantial timely and topical editorial content and news items of local and general interest." The publication also contains advertisements. A review of a copy of This Week submitted by the plaintiff reveals that the publication contains some local and general news stories, but predominantly carries local advertisements. The complaint further alleges that This Week is distributed by numerous independent carriers to homes on Long Island free of charge. According to the plaintiff, delivery of This Week can be terminated by calling a telephone number printed at the front of the newspaper.

 The plaintiff commenced this action against the Village on December 23, 1991, by filing a complaint challenging, under the First Amendment, the constitutionality of Chapter 149, §§ 149-4 and 149-5 of the Village Code. Those sections of the Village Code essentially provided that it was unlawful for a person or company to solicit or distribute written material on the streets of the Village or at residents' homes without first obtaining a license from the Village. In order to obtain a license, the ordinance required that an application be filed with the Mayor of the Village. The application was to contain various specified information about the applicant, including "such other information as the Board of Trustees may require." After submission of the license application, the Board of Trustees would approve all "bona fide" applicants who complied with the filing provisions.

 At the same time that it filed its complaint, DSA moved by an order to show cause to temporarily and preliminarily enjoin the Village from enforcing sections 149-4 and 149-5 of the Village's Code against DSA and its distribution of This Week.

 The Court heard oral argument on the plaintiff's motion on January 10, 1992, and at that time granted DSA's motion for a preliminary injunction. On February 28, 1992, the Court issued its written decision on the motion. In its decision, the Court first concluded that DSA had standing to challenge the Village ordinance, and that This Week was noncommercial speech. See 785 F. Supp. at 353. The Court next considered the merits of the controversy, and held that the ordinance at issue violated the First Amendment because it "constitutes a prior restraint, [and] puts unbridled discretion in the hands of the Village Board of Trustees" with respect to the issuance of the license. Id. at 356.

 On February 18, 1992, prior to the Court's issuing its written decision, the Village repealed Chapter 149 and enacted a new ordinance which, according to the Village, corrects the constitutional errors of the old law. It is this new ordinance, entitled Chapter 153 or "Local Law 2," that the plaintiff presently challenges.

 The Village moved for summary judgment on June 15, 1992 to dismiss the complaint and vacate the preliminary injunction, on the grounds that the action had become moot as a result of repealing the old law. DSA opposed the motion, and moved to amend the complaint in order to allege that new Local Law 2 also violated the First Amendment. The plaintiff further argued that the case was not moot because the matters of damages and attorneys' fees were unresolved. In a Decision and Order issued on October 10, 1992, the Court denied the Village's motion for summary judgment, and granted the plaintiff's motion to amend the complaint.

 2. The Amended Complaint and Local Law 2.

 Local Law 2 essentially makes it unlawful to distribute "unsolicited print or other written materials" to Village residents who have filed a notice with the Village Clerk requesting that all such materials not be delivered to their homes. Prior to distributing written material to Village residents, distributors must first register with the Village Clerk and obtain a list of all such residents who do not want to receive written materials.

 According to the law's preamble, the legislative purpose of Local Law 2 is to protect the privacy rights of Village residents who do not wish to receive "unwanted print or other written materials", to "deter the accumulation of unsolicited literature" that might signal a house is unoccupied and thus precipitate a burglary, and "to prevent littering and protect the aesthetic appearance of the Village."

 Section 2 of the law provides in relevant part that the Village is to maintain a list of Village residents who do not want to receive unsolicited written material:

 
List of Residents Directing that they not Receive Unsolicited Print or Other Written Materials.
 
A. The Village Clerk shall maintain a list of all Village residents, by address, who have filed a written notice with the Village Clerk requesting that all, or certain, unsolicited print or other written materials not be delivered onto their premises.

 Part B of Section 2 provides that the written notice sent to the Village Clerk by the resident shall be effective for two years, and that the list shall be revised from time to time as new notices are submitted. Part B also provides that the Village Clerk need not verify any change in occupancy of a residence, and that the Village shall not be liable for any errors or omissions on the list.

 Section 3 of the law provides that no person or company can distribute "any unsolicited print or other written material" upon the property of a Village resident without first registering with the Village Clerk, providing certain information to the Village Clark, and receiving a copy of the list of residents who do not wish to receive unsolicited material:

 
Registration of Distributor of Unsolicited Print or other Written Materials
 
A. No person, organization, society, association, company or corporation, or their agents or their representatives, may distribute or deliver any unsolicited print or other written material upon the property of any Village resident without first having registered with the Village Clerk prior to such distribution or delivery. The registration shall be signed and duly acknowledged by a person who is an owner or authorized agent and accepts responsibility for the receipt of the list of residents described in Section 2 hereof and for the compliance by delivery persons and carriers with the provisions of this local law.
 
B. The registrant shall also provide to the Village Clerk the name of the print or other written material to be distributed, the name, addresses and telephone number of the distributor, a list containing the names and addresses of all carriers and delivery persons who will be distributing or delivering its print or other written material in the Village, and a list of the license plate numbers of any motor vehicles used by the carriers and delivery persons in making their deliveries. The authorized agent shall be responsible for updating and keeping these lists current with the village.

 Section 4 is the operative section of the law, and provides that no person or company can distribute "any unsolicited print or other written material" upon the property of a Village resident who appears on the list of residents ...


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