People v. Duryea | Cases | Westlaw

The indictment charges that the defendant Perry B. Duryea, Jr., the Speaker of the Assembly of the State of New York, and two of his aides, the defendants Henry A. Mund (Executive Assistant to the Speaker) and I. Lynn Mueller (Special Assistant to the Speaker), together with the defendant John E. Kingston, the Majority Leader of the Assembly, and the defendant Alfred A. Delli Bovi, a Member of the Assembly, conspired to promote the election of certain candidates to the Assembly in 1972 by means of acts constituting a violation of Section 457 of the Election Law (said conspiracy itself constituting a violation of Section 446 of the Election Law). The indictment also charges that these defendants committed the substantive crime of violating Section 457 of the Election Law.

According to the indictment, during a period of several months prior to the general election of 1972 there was in existence a political committee, known as the 1972 Republican Assembly Campaign Committee, with the objective of promoting the election of Republican candidates for the Assembly in that election. The defendant Kingston was the chairman of this committee, the defendant Mund was its treasurer, and the defendant Duryea maintained ultimate authority over all its political and financial decisions.

The indictment alleges that the defendants, on behalf of this committee, in order to promote the election of Republican candidates for the Assembly in the 1972 election in twelve ‘marginal’ assembly districts (districts where an analysis by defendants allegedly revealed that any ‘appreciable’ support for the Democratic candidate would cause the defeat of the Republican candidate), planned and carried out a scheme to distribute approximately 80,000 printed letters to enrolled **982 Liberal Party voters in these districts, urging them to vote for the Liberal Party assembly candidates.

Part of this scheme, the indictment states, was to conceal the true source of these letters, which was the Republican Assembly Campaign Committee, by having the letters bear the signature of one Harold J. Relkin, over the designation ‘Chairman, Action Committee for the Liberal Party’. It is alleged that Relkin, *951 a resident of New Jersey, was neither a registered voter in New York nor held any office or title in the Liberal Party; that the purpose of the scheme was to encourage Liberal Party voters to vote their party affiliation, thereby promoting the election of the Republicans; that in each of the twelve districts chosen, some 6,500 copies of the letters were to be distributed; and that the letter was in fact disseminated in the last week of October, 1972, shortly before the election.

The statute that is the center of attention in this case is a relatively esoteric one, and should therefore be set forth at the outset. It provides as follows:

The grounds for defendant's constitutional claims are that Section 457 violates the First Amendment freedoms of speech and association and of the press, the Fourteenth Amendment Due Process Clause, and the comparable provisions of the New York State Constitution, Article I, Sections 8 and 9 and Article I, Section 6, respectively. The applicable portions of these constitutional provisions are set forth in the margin.³

The broad principles of constitutional law applicable to the attack on Section 457 on First Amendment grounds shall initially be summarized.

The term ‘preferred position’ has two facets. It imports the weighty consideration that First Amendment freedoms must be accorded in balancing them against the countervailing interests which are alleged to underly encroaching statutes. It also means that the First Amendment has a character transcendent of mere parties and **984 controversies in litigation. It is more than another rule of law that is the means to just a result. The pursuit of its highest aims is an end in itself.

*953 To attempt a further grading of rights to those within the First Amendment is an unnecessary exercise; for, as Jefferson noted, the Framers “guard(ed) in the same sentence, and under the same words, the freedoms of religion, of speech, and of the press: insomuch, that whatever violates either, throws down the sanctuary which covers the others . . .” 8 Jefferson, Works 464—465 (Ford.ed.1904), quoted in Time, Inc. v. Hill, 385 U.S. 374, 400 n. 2, 87 S.Ct. 534, 548, 17 L.Ed.2d 456 (1967) (Black, J., concurring). Nevertheless, the free discussion of political affairs must be considered as among the most carefully protected of our liberties. It has been said that ‘there is practically universal agreement that a major purpose of (the First) Amendment was to protect free discussion in government affairs' (Mills v. Alabama, 384 U.S. 214, 218—219, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966)), and that we have a ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’ (New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964).)

With the facts thus cited and the law thus summarized, the shape of this classic First Amendment test emerges. The attack on Section 457 may be conceived as a two-phased assault. The first is a claim that the behavior here alleged is protected by the First Amendment, and that Section 457, which purports to forbid it, is ‘unconstitutional as applied’ to these facts. The second phase is a retreat from the first claim to the alternative contention that even if a proper statute, narrowly drawn to forbid the behavior alleged, would survive First Amendment scrutiny, the statute being attacked here unnecessarily and improperly sweeps within its prohibitions other activity that *956 is protected by the First Amendment, and is therefore unconstitutionally overbroad. Attached to this second claim is the assumption that the **987 defendants, via the overbreadth doctrine, have the standing to challenge the statute as such and, if successful, reap the victory of a dismissal of the charges as a consequence of the striking down of the statute.

The First Amendment defense of this statute is correspondingly a dual one, with the loss of either round spelling defeat for the statute. In the first instance, the argument is that the conduct alleged must be regulated in favor of an overriding interest and therefore is not protected by freedom of speech. Then the full impact of the statute on free expression must be justified by an exigent need which compels the regulation, or, in the alternative, it must be established that the attacking party lacks standing to raise the statute's overbreadth because its strictures apply more to conduct incidental to speech than to speech itself.

It is a clever argument, that avoids the crucial question. Defendants cannot seriously claim at this stage, if ever, that the allegations in the indictment do not spell out a crime under the statute, i.e., that they could not be factually guilty of non-identification by virtue of false identification, nor do they ever concede that their own alleged behavior is unprotected by the Constitution. What they do attempt, however, is to escape an assessment of the constitutional validity of prohibiting their *957 alleged activity by virtue of some legal legerdemain. They simply neglect to discuss the First Amendment aspects of the conspiracy alleged in the indictment. Then, while we are urged to keep our eyes on the statutory pea, they deftly switch the shells marked ‘unconstitutional as applied’ and ‘overbroad’ and argue the overall impact of the statute.

Turning to the contention that Section 457 is unconstitutionally overbroad, it is apparent that the decision herein involves a more delicate balancing of interests. On the one hand is the impact of Section 457 on free expression. On the other is the exigency of the interest claimed to underly this statute as viewed through the statute's narrow focus thereon.

The impact of the loss of anonymity in free expression is clear. Anonymity has been, historically, the medium of dissidents, shielding them from the retaliatory power of the establishment and, whether their fears or reprisal were justified or not, encouraging them to express unpopular views. Anonymous writings have an honored place in our political heritage. Their importance to the establishment of our democracy was recounted by the Supreme Court (per Black, J.) in Talley v. California:

In a series of significant constitutional decisions, the chilling impact of the loss of ananymity on First Amendment freedoms was clearly recognized, and resulted in the striking down of various identification requirements. In **990 Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945), the Supreme Court invalidated a statute requiring union organizers to register and carry identity cards and to exhibit them on request. Said the Court (at p. 540, 65 S.Ct. at p. 327): ‘If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them * * *. If one who solicits support for the cause of labor may be required to register as a condition to the exercise of his right to make a public speech, so may be who seeks to rally support for ny social, business, religious or political cause.’

In United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770 (1953) the court sustained the reversal of the contempt conviction of a person who refused to provide a Congressional Committee with the names of persons who had purchased political literature from his group, the Committee for Constitutional Government. The court, noted (at p. 46, 73 S.Ct. at p. 546) that ‘the power to inquire into all efforts of private individuals to influence public opinion through books and periodicals * * * raises doubts of constitutionality in view of the prohibition of the First Amendment’, held the congressional subpoena invalid under a strict construction of the committee's enabling legislation. Mr. Justice Douglas in a concurring opinion joined by Mr. Justice Black, stated (at. p. 57, 73 S.Ct. at p. 551): ‘A requirement that a publisher disclose the identity *960 of those who buy his books, pamphlets, or papers is indeed the beginning of surveillance of the press. True, no legal sanction is involved here. Congress has imposed no tax, established no board of censors, instituted no licensing system. But the potential restraint is equally severe.’

In N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) and Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960), the court held that civil rights organizations had the right to withhold the names of their members and contributors, with the court stating in N.A.A.C.P. (357 U.S. at p. 462, 78 S.Ct. at p. 1171): ‘It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute (an) effective * * * restraint on freedom of association * * *. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.’ (Also, see Louisiana ex rel. Gremillion v. N.A.A.C.P., 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301 (1961).) More significantly, in Talley v. California, Supra, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559, the court ruled unconstitutional ‘on its face’ a Los Angeles ordinance prohibiting the anonymous distribution of ‘any handbill in any place under any circumstances' (362 U.S. 60—63, 80 S.Ct. 536, 538, 4 L.Ed.2d 559). Said the court (at pp. 64—65, 80 S.Ct. at p. 538): ‘There can be no doubt that such an identification requirement would tend to restrict freedom **991 to distribute information and thereby freedom of expression. * * *. We have recently had occasion to hold in two cases that there are time and circumstances when states may not compel members of groups engaged in the dissemination of ideas to be publicly identified. Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; N.A.A.C.P. v. Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 2 L.Ed.2d 1488. The reason for these holdings was that identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance. This broad Los Angeles ordinance is subject to the same infirmity.’

Following Talley, in People v. Mishkin, 17 A.D.2d 243, 234 N.Y.S.2d 342 (1st Dept. 1962), affd., 16 N.Y.2d 671, 255 N.Y.S.2d 881, 204 N.E.2d 209 (1964), the courts of New York had the occasion to consider Section 330(2) of the General Business Law, which had provided that every publication other than newspapers and magazines should ‘conspicuously have imprinted * * * the true name and address of the publisher or printer.’ The court, in a brief memorandum, struck down the provisions as unconstitutional relying on Talley.

Another New York decision was Matter of Figari v. New York Tel. Co., 32 A.D.2d 434, 303 N.Y.S.2d 245 (2d Dept. 1969), where the court held ‘unconstitutional per se’ a telephone company regulation requiring subscribers who disseminated recorded messages to incoming callers to *961 state their name and address on the recording. The regulation was challenged by a group known as ‘Let Freedom Ring’, whose mission was to play anti-communist messages over the telephone. The court stated (at p. 442, 303 N.Y.S.2d a p. 259) that ‘anonymity may be necessary to preserve’ First Amendment freedoms, and that ‘it is self-evident that, for society to choose widely among the best views, all ideas must be made available without restriction.’

Potentially the most significant of all these decisions was Zwickler v. Koota, 290 F.Supp. 244 (E.D.N.Y.1968), where a special three-judge court ruled on identical predecessor to the statute under attack in the instant case unconstitutionally overbroad. The decision was later reversed as moot, however, by the Supreme Court (sub nom., Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969)) which did not reach the constitutional issue, so that the District Court's decision is not binding authority. Zwickler had been convicted in Kings County of violating Penal Law s 781—b, later recodified without change in the Election Law as Section 457 (L.1965, c. 1031 s 43, eff. Sept. 1, 1967), for distributing anonymous handbills ‘no more than mildly critical’ of a speech delivered on the floor of the House of Representatives by a Congressman standing for re-election. This conviction was then reversed by the Appellate Term on the grounds that the People failed to establish distribution of anonymous literature ‘in quantity’, with that tribunal not reaching the constitutional issue (290 F.Supp. 244, 246 n. 4). The reversal was affirmed (without opinion) by the New York Court of Appeals ( **992 People v. Zwickler, 16 N.Y.2d 1069, 266 N.Y.S.2d 140, 213 N.E.2d 467 (1965).) The Congressman, in the meantime, had become a judge. Nevertheless, Zwickler invoked the jurisdiction of the Federal District Court seeking a declaration that Penal Law s 781—b was unconstitutional. The court held that Zwickler's action was not mooted by the retirement of the Congressman to more respectable pursuits, and held that the statute was unconstitutionally overbroad.

Nevertheless, the District Attorney's contention, which impliedly concedes the importance of anonymity to freedom of expression, is that there is no absolute right to communicate anonymously when there abides an overriding public interest which calls for identification. Thus, cite the People, a reporter must identify the source of a published news story before a grand jury (Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972)) and a person must identify himself in order to obtain a license to lobby before Congress (United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); *962 hold a meeting in a public park (Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105 (1953)); solicit for money door to door (Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940)) and make use of second class mail (Lewis Pub. Co. v. Morgan, 229 U.S. 288, 33 S.Ct. 867, 57 L.Ed. 1190 (1913)).

As has already been stated, freedom of speech is not an unfettered right, so the contention that there is no absolute right to anonymity must certainly be a correct one. But the People's claim and the circumstances in this case must be placed in their proper First Amendment perspective. All but one of the precedents cited by the District Attorney involves licensing, which indirectly curtails full anonymity but does not necessarily prevent individual anonymous statements. Full-blown identification requirements, however, by their existence are designed to prevent all anonymous utterances within their ambit (see Zwickler v. Koota, Supra, 290 F.Supp. 244, 254 n. 15; cf. Thomas v. Collins, Supra, Matter of Figari v. New York Tel. Co., Supra, 32 A.D.2d 434, 444, 303 N.Y.S.2d 245). Also, all of the above citations, save Branzburg, concern the regulation of ‘speech plus'. (Harriss, it should be noted, specifically dealt with the registration of paid professional lobbyists who have direct contact with Congressmen.) The only Supreme Court precedent for limiting anonymity, therefore, which does not involve the licensing of conduct is Branzburg, which is not an identification requirement but at most a limited incursion on freedom of the press in favor of the principle that the state has the right to every man's evidence within the secret and limited confines of a grand jury investigating criminal conduct. Unlike those cases, this statute is an absolute identification requirement designed to regulate pure speech involving political affairs at the fateful hour of the political process, that of an election for public office.

**993 Attempting to use the political nature of the speech herein involved to his advantage, however, the District Attorney argues that the need for integrity in contests for public office is a concernment which outweights the right to anonymity where campaign literature is concerned. Section 457, it is claimed, furthers fair and honest election campaigns because the requirement of identification deters defamatory personal and ethnic attacks on candidates and, in addition, also fosters the enforcement of various Federal and State requirements regulating campaign contributions and expenditures.⁹

*963 But the statute in question here is not limited to deterring defamation or personal attacks, nor is it limited to campaign literature sponsored by candidates or political parties.

Perhaps a statute strictly limited to the activities of campaign organizations would survive First Amendment scrutiny, justified by the same interests that spawned the contribution and expenditure laws, if it did not otherwise infringe on First Amendment rights. (See American Civil Liberties Union v. Jennings, 366 F.Supp. 1041 (D.D.C.1973).) But that is not the provision before this court.

Perhaps a statute strictly limited to preventing ethnic, racial or religious slurs in an election campaign would be consistent with freedom of expression, justified by the clear interest in preventing the polarization of our society and maintaining, at the very least, a modicum of decency in political campaigns. But that is not the statute before this court.

Perhaps a statute strictly limited to attacks on the purely personal character of a candidate would pass constitutional muster, although that is a much more doubtful proposition inasmuch as the difficulty in distinguishing between the personal and political attributes of a candidate might deter the free and uninhibited exchange of views guaranteed under New York Times Co. v. Sullivan, Supra. (But see Canon v. Justice Court, 61 Misc.2d 446, 39 Cal.Rptr. 228, 393 P.2d 428 (Sup.Ct.1964).)¹⁰ Again, however, that is not the provision before this court.

**994 It is noteworthy that arguments strikingly similar to the instant claim of the dual purposes of Section 457 were raised and rejected in several of the cases cited above which recognized the impact of the loss of anonymity on free speech. In Talley v. California, Supra, the court noted (362 U.S. at p. 64, 80 S.Ct. at p. 538): ‘Counsel has urged that this ordinance is aimed at providing a way to identify those responsible for fraud, false advertising and libel. Yet the ordinance is in no manner so limited, nor have *964 we been referred to any legislative history indicating such a purpose.’ In People v. Mishkin, (supra), the court stated (17 A.D.2d 243 at p. 244, 234 N.Y.S.2d 342 at p. 343): ‘The District Attorney suggests that the statute may be found constitutional if its application is limited to obscene publications for there would be a purpose in facilitating the discovery of the publisher. But the statute itself is not so limited, and there is nothing to indicate that this was the legislative purpose. We do not reach the question whether such a purpose would validate the statute.'¹¹ In Matter of Figari v. New York Tel. Co., Supra, the court rejected the argument therein raised that identification would deter defamatory messages: ‘On a balancing of interests, democratic government is best served when citizens may freely speak out on question of public concern, even if thereby some individual is wrongfully calumniated’ (32 A.D.2d at p. 448, 303 N.Y.S.2d at p. 260). In Zwickler v. Koota, Supra, the court stated: ‘Nor does it avail defendant to urge upon us that s 781—b ‘protects the integrity of the electoral process * * * by facilitating the enforcement of various anti-corruption provisions in the Election Law’ * * *. A constitutional right of those privileged to speak with anonymity unbreached, however, may not be disregarded to facilitate the prosecution of others who by their offending may have forfeited that right * * *. The current attitude of the Courts is to place emphasis on the protection of the freedom of the many to advocate conduct or to reprehend misconduct in public affairs, not to redress the wrongs, real or fancied, of the individual office holder or aspirant for what is uttered concerning his past or **995 prospective management of those affairs * * *. The more efficient administration of the ancillary procedures which *965 concern the Attorney General must give room to the ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. “ (290 F.Supp. at p. 254, citing New York Times Co. v. Sullivan, Supra, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686.)¹²

It thereby prohibits, for example, a congregant from anonymously distributing leaflets on behalf of an amendment to the State Constitution which is against the wishes of his religious sect. It prevents a group of workers from anonymously publicizing a candidate or ballot proposition unacceptable to their employer. It prevents a government contractor from anonymously criticizing the performance of its incumbent benefactor. In short it prevents anyone from anonymously propagandizing on behalf of candidates or ballot issues that the powers-that-be dislike. It deters anyone who fears retribution, whether his anxieties are justified or not, from freely expressing his positions on political matters at the crucial time of an election. Its subtle message is to conform. Toe the party line. Publicly identify yourself if you disagree. Let everyone know who you are. Otherwise be silent and abide with the Status quo.

*966 What exigent interest compels restrictions on a private individual simply handing out flyers on a street corner criticizing the performance of a candidate seeking re-election? What overriding need is there for a regulation inhibiting a group of citizens from communicating **996 its views on the merits of a constitutional amemdment or a sewer bond issue?

The District Attorney suggests that anonymity is no longer necessary, relevant or beneficial to the political process. Fear of reprisals are largely illusory now, the prosecutor claims, and anonymity is most often the vehicle of the irresponsible. Moreover, it is argued, ideas are best evaluated when their source is known.

Then was Junius the last patriot when he wrote, anonymously, that we ‘detest the pageantry of a king, and the supercilious hypocrisy of a bishop’ (Letters, No. 35, December 19, 1769)? People are rarely beheaded nowadays, but was the regime of George III the last tyrannical establishment?

Of course, the identity of the source is helpful in evaluating ideas. But ‘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, 40 S.Ct. 17, 63 L.Ed. 1173 (1919) (Holmes, J.).) Don't underestimate the common man. People are intelligent enough to evaluate the source of an anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message, as long as they are permitted, as they must be, to read that message. And then, once they have done so, it is for them to decide what is ‘responsible’, what is valuable, and what is truth.

For the foregoing reasons, it is apparent that, assuming these defendants have the standing to raise the overbreadth issue, Section 457 of the Election Law of the State of New York must be declared unconstitutional as overly broad in that it unfairly and unnecessarily sweeps within its criminal sanctions activity that is the protected right of every citizen under the First Amendment.

The only question that remains to be decided, then, is whether these defendants have the standing to raise the overbreadth issue and thereby bring about the striking down of this statute, even though this Court has decided that the defendants' own alleged misrepresentation is not protected by the First Amendment.

The defendants, therefore, have standing. Section 457 of the Election Law of the State of New York is declared unconstitutional by virtue of its overbreadth.

The motion to dismiss the indictment is granted.

For the foregoing reasons, the court finds it unnecessary to reach defendants' claim that Section 457 is so vague and indefinite as to deprive them of due process of law under the Fourteenth Amendment of the United States Constitution and Article I, s 6 of the Constitution of the State of New York. (See *968 e.g. Rabe v. Washington, 405 U.S. 313, 315, 92 S.Ct. 993, 31 L.Ed.2d 258 (1972); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Also, see People v. Scott, 26 N.Y.2d 286, 309 N.Y.S.2d 919, 258 N.E.2d 206 (1970).)