Kalke v. City of New York ( 1997 )

—Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered April 2, 1996, which enjoined enforcement of the City’s Special Guideline (56 RCNY 1-05 [t]) to the extent that it interfered with petitioners’ distribution and demonstration of condoms at their annual outdoor basketball tournament, unanimously modified, on the law, to declare the regulation unconstitutional only insofar as it completely prohibits noncommercial demonstration of any products in City parks, and otherwise affirmed, without costs.

Petitioners’ distribution and demonstration of condoms, in the context of their peer education program for AIDS/HIV awareness and prevention, constitute expressive conduct sufficiently imbued with elements of communication falling within the protection of the First Amendment (see, Spence v Washington, 418 US 405, 409-410). Respondents’ regulation, which, inter alia, prohibits the non-commercial distribution of all products and/or materials, other than printed or similarly expressive material, in City parks, without a permit, serves the legitimate governmental purpose of preserving the quality and character of those parks (see, Ward v Rock Against Racism, 491 US 781). In granting this authority, the regulation does not vest the Commissioner with such unbridled discretion as to constitute a prior restraint of expression (cf., Lakewood v Plain Dealer Publ. Co., 486 US 750). However, insofar as it completely prohibits any demonstration of products in the parks whatsoever, it is broader than what is necessary to further the expressed governmental interest, in effect cutting off an entire medium of expression (see, Bery v City of New York, 97 F3d 689, 697, cert denied 520 US 1251), and is therefore unconstitutional in that respect. Concur—Murphy, P. J., Wallach, Mazzarelli and Andrias, JJ.