People v. Taub | Cases | Westlaw

Respondent, a candidate for the local school board, was convicted by the City Court of Buffalo for using sound amplification equipment on a public street corner without first having obtained the permit required by section 1703 of chapter XXV of that city's ordinances. The Erie County Court reversed her conviction, finding the ordinance an unconstitutional infringement of First Amendment rights. The People now appeal.

We agree with the County Court that the ordinance, as presently written, is unconstitutional.

The use of streets and other public places for the exercise of the right to free speech and peaceable assembly, to which the sound amplifying equipment here was but an adjunct, has ‘from ancient times, been a part of the privileges, immunities *532 rights, and liberties of citizens.’ (Hague v. C.I.O., 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423.) Implementation of these individual rights has given frequent rise to problems of fair accommodation to the competing right of the State to preserve public order and safety.

Against this background, we turn now to the cases which have dealt specifically with the questions raised by the use of sound equipment by individuals to communicate their views in public places. The basic guidelines evolve from a pair of cases decided by the United States Supreme Court. The first of these was Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574. There the court, confronted with municipal legislation which gave complete discretion to the local police chief to decide who should be allowed the use of amplification equipment, held the ordinance unconstitutional. In dicta it also seemed to indicate that the First Amendment allowed no restrictions whatever to be placed on the use of such equipment.

However, only months later, in Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513, the court cut back markedly on the scope of its pronouncements *533 in Saia. (See Comment, 62 Harv.L.Rev. 1228.) Reviewing an ordinance which simply forbade all ‘loud and raucous' use of sound equipment upon vehicles on public streets, alleys and thoroughfares, but left no broad Saia -like discretion in the police, the court found it constitutionally valid.

The City of Buffalo relies heavily on Kovacs, in fact asserting here that the ordinance before us was written with that case in mind. It is true that the ordinance, in specifying the volumes and distances which delimit permissible noise levels, not only speaks to the specific area of regulation with which Kovacs treats, but also, in supplying more precise standards, does not suffer from the vagueness which made the ***306 Kovacs ordinance less than ideal.^* (See Grayned v. City of Rockford, 408 U.S. 104, 108—114, 92 S.Ct. 2294, 33 L.Ed.2d 222, Supra.) For similar reasons, those parts of the ordinance which list the times and places where sound equipment may not be used and spell out criteria, such as congested traffic conditions, street repairs, or overcrowding caused by overlap of permits, to guide the police in determining whether considerations of public safety are extensive enough to permit limitations on the granting of a permit in the first instance, cannot be attacked for insufficient specificity. (Contrast Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, Supra (freedom of religion); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, Supra (freedom of the press); Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, Supra (freedom of speech).)

**757 First, it requires persons desiring permits to apply for them at least five days before they are to be used. Such a long delay could cast a chill over the freedom of speech in a number of areas by rendering its subject matter stale if not entirely moot. The political arena comes to mind immediately as a good example. There time is often of the essence, and the desire to publicize views or reply to accusations, some of *534 which may even have had the advantages of the speed of such media as radio and television, might be frustrated completely by the need to wait five days. Mere administrative convenience does not justify an impediment which so seriously undermines the exercise of a constitutional right. (Le Flore v. Robinson, 5 Cir., 434 F.2d 933; cf. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225.) The vice of this portion of the ordinance is compounded by the fact that, although provision is made for review of denials, it is only an administrative one and no time limit is specified within which even that may be had. Thus an applicant unjustifiably denied a permit is left with an indefinite wait for relief.

Second, the ordinance requires that the name of every person who will speak through the equipment be disclosed on the application; it further mandates that permits be denied when any person involved has been convicted of a crime or of disorderly conduct. The almost ***307 necessary result is to bar free speech, and for no permissible reason. For example, neither replacement of unavailable scheduled speakers nor the addition of newly available speakers is permitted. Even more fundamentally, the object of regulation here being the use of sound equipment rather than the right to speak per se, the applicant's name should suffice and the superfluous request for the additional names is a form of consorship. (Thomas v. Collins, 323 U.S. 516, 539—541, 65 S.Ct. 315, 89 L.Ed. 430.)

The mandate against persons with convictions adds but another, though even more absolute, exclusion. That provision reads: ‘No permit shall be issued where it appears that The applicant or any other person whose name appears on the application as a participant in the broadcasting of such sound, or under whose auspices such sound is to be broadcast, has been convicted of a crime or disorderly conduct.’ (s 1703, subd. (14); emphasis added.)

Denial of a permit on such grounds constitutes not only a classic instance of impermissible overbreadth but also a prior restraint on freedom of speech. (Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574, Supra; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, Supra; Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, Supra; Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, Supra.)

Finally, the ordinance requires that applicants for permits describe the nature of the subject matter to be broadcast. This too constitutes a form of prior restraint, and it also falls squarely within that portion of the ruling in Saia which held *535 excessive discretion to decide what may be broadcast over amplifying equipment may not be left in the hands of the police. (See, also, Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471, Supra.)

As we have had occasion to say in the past (People v. Katz, 21 N.Y.2d 132, 135, 286 N.Y.S.2d 839, 841, 233 N.E.2d 845, 847): ‘It is, of course, appropriate for municipalities to enact legislation designed to promote general convenience on public streets. On the other hand, streets have always been recognized as a proper place for the dissemination and exchange of ideas (Kovacs v. Cooper, supra, 336 U.S. p. 87, 69 S.Ct. 448). Where a statute is couched in such broad language that it is subject to discriminatory application, the resulting infringement on the exercise of freedom of speech far outweighs the public benefit sought to be achieved.’

That mention is not made of the other detailed provisions of this statute should not be taken as indicative or significant. **758 It suffices for the disposition of this appeal to draw attention to the infirmities which have been noted.

***308 Accordingly, the ordinance in its present form must be held to be unconstitutional and the order of the Erie County Court reversing defendant's conviction left to stand.

Order affirmed.