People v. Nahman

Each of the thirteen defendants stands convicted of exhibiting placards in City Hall Park in the city of New York without having obtained a permit therefor, contrary to section 21 of article III of the Rules and Regulations of the Department of Parks of the city. The acts complained of were committed on March 15, 1946, while Mr. Winston Churchill was entering the city hall for an official reception. On the placards that were then and there held aloft by the defendants were such declarations as "No American shall die for Churchill's empire" and "No American Sweat Blood and Tears for a Churchill's World War 3". There was evidence that the defendants also shouted, "We want peace Churchill wants war." But there was no charge of disorderly conduct. The one and only offense imputed to the defendants was an unauthorized carrying of placards in a public park. As appellants here, they challenge the permit requirement as a direct invasion of the right of freedom of speech and assembly which is guaranteed by the Fourteenth Amendment of the Federal Constitution and by sections 8 and 9 of article I of the Constitution of this State.

The pertinent text of the challenged regulation is as follows (Rules and Regulations of N.Y. City Agencies, Dept. of Parks, § 21):

"Meetings, Exhibitions, Parades, Racing, etc. No person shall erect any structures, stand or platform, hold any meeting, perform any ceremony, make a speech, address or harangue; exhibit or distribute any sign, placard, notice, declaration or appeal of any kind or description; exhibit any dramatic performance, or the performance in whole or in part of any interlude, tragedy, comedy, opera, ballet, play, farce, minstrelsy, dancing, entertainment, motion picture, public fair, circus, juggling, rope-walking or any other acrobatics, or show of any kind or nature; or run or race any horse, or other animal, or, being in or on a vehicle, race with another vehicle or horse, whether such race be founded on any stake, bet or otherwise; in any park or upon any park street except by permit. No parade, drill or manoeuver of any kind shall be conducted, nor shall any procession form for parade or proceed in any park or park street without a permit."

Such strong prohibitory words may on the face of them at first seem to suggest an unbounded power of antecedent administrative censorship that would obviously be void (cf. Schneider v.State, 308 U.S. 147, 162; Largent v. Texas, 318 U.S. 418,422). But the challenged regulation does not stand alone. Authority therefor is to be found in chapter 21 of the Charter of the City of New York. Subdivision a of section 531 thereof says: "There shall be a department of parks the head of which shall be the commissioner of parks who shall be appointed by the mayor." Section 534 thereof says: "a. The commissioner shall have power to establish and enforce rules and regulations for the government and protection of public parks * * * which * * * so far as practicable shall be uniform in all boroughs and shall have the force and effect of law. b. Any violation of the rules or regulations of the commissioner shall be triable by a city magistrate and punishable by not more than thirty days' imprisonment, or by a fine of not more than fifty dollars, or by both."

The limits of the jurisdiction so granted are indicated in section 532 of the same chapter 21 of the city charter by these words: "The commissioner shall have the power and it shall be his duty: * * * 3. To maintain the beauty and utility of all parks, squares, public places and playgrounds and other recreational properties, except those within the jurisdiction of the department of education, and to institute and execute all measures for the improvement thereof for ornamental purposes and for the beneficial uses of the people of the city." This last charter provision brings to light the real character and meaning of the regulation in question. No power to suppress the publication of facts or opinions is thereby conferred and the sole standard of official action thereby countenanced is the promotion of the beauty and utility of the public parks of the city — an objective which undoubtedly goes far to secure the safety, comfort and convenience of a population of more than eight million people. A permit process adapted to these charter purposes — if administered without discrimination — is, in our judgment, an entirely admissible procedure.

As is well known, there are areas of the park system of the city of New York — e.g., children's playgrounds and horticultural gardens — that cannot be used for meetings, parades and like affairs. More than that, such affairs, when held in other areas of the system, must be so placed that ornamental improvements — e.g., lawns and shrubbery — will not be damaged, and also must be so scheduled in point of time and separateness as not unduly to interfere with the beneficial uses of the system by the people of the city. For the public parks of that vast and congested community are the only places where a great part of its population can have any real opportunity for recreation in the open air and the only places where large numbers of its children can safely play.

In an unchallenged communication which is appended to the brief here submitted by the People, the commissioner of parks of the city sets forth the manner in which the regulation in question has heretofore been administered. He there says: "Meetings and other public events are never prohibited through the permit procedure but are merely scheduled and located as to area and time in an orderly way by making necessary adjustments in the place and time stated in the application for a permit where such adjustment is necessary in the interest of the comfort, convenience and protection of the general public in the use of the parks. The application procedure is used so as to limit the use of available areas to one group at a time and provide for proper police and other supervision where necessary so that meetings and other events will be orderly and without danger to the safety of others using the parks." The commissioner further shows this fact: Out of a total of 700 formal applications for permits to hold meetings or similar events, only 34 were denied in the period from January 1, 1946, to April 1948, and on each denial, the applicant was offered an alternative location. Thus the regulation in question appears to have been administered in the manner which we now construe it to require.

The regulation, we repeat, confers no power to suppress the publication of facts or opinions. On the contrary, as we have tried to demonstrate, it is in essence a nondiscriminatory provision which has for its sole objective the safety, comfort and convenience of the people of the city in their appropriate uses of its public parks. To our minds, the regulation — so read — is a reasonable measure of local control which affects civil liberties only in an allowable minor degree. (See Cox v. NewHampshire, 312 U.S. 569, where the relevant constitutional propositions are stated. Cf. Saia v. New York, 334 U.S. 558.)

The judgment should be affirmed.

LEWIS, CONWAY, DESMOND, THACHER, DYE and FULD, JJ., concur.

Judgment affirmed.