Opinion
Argued May 5, 1976
Decided July 13, 1976
Appeal from the Supreme Court in the First Judicial Department, MAX H. GALFUNT, J.
Alan H. Levine and Ronald E. Sternberg for appellant.
W. Bernard Richland, Corporation Counsel (L. Kevin Sheridan and Murray L. Lewis of counsel), for respondent.
In 1974 the defendant Ronald Remeny was arrested for distributing handbills in violation of subdivision 5 of section 755(2)-7.0 of the Administrative Code of the City of New York. The handbills contained advertisements for certain jazz concerts and at the time of his arrest the defendant was distributing them on the sidewalk in front of Madison Square Garden. The city ordinance states: "No person shall throw, cast or distribute, or cause or permit to be thrown, cast or distributed, any handbill, circular, card, booklet, placard or other advertising matter whatsoever, in or upon any street or public place, or in a front yard or courtyard, or on any stoop, or in the vestibule of any hall in any building, or in a letter box therein; provided that nothing herein contained shall be deemed to prohibit or otherwise regulate the delivery of any such matter by the United States postal service, or prohibit the distribution of sample copies of newspapers regularly sold by the copy or by annual subscription. This section is not intended to prevent the lawful distribution of anything other than commercial and business advertising matter."
After a trial the defendant was found guilty as charged and was sentenced to pay a fine of $10 or serve a term of two days in jail. The defendant paid the fine and appealed to the Appellate Term which affirmed, with one Justice dissenting.
On this appeal it is conceded that the defendant was distributing handbills in a public place and that the handbills naming the performances and listing the time, place and price of the concerts, constitute "advertising matter" within the meaning of the ordinance. The question is whether this ordinance prohibiting the distribution of commercial leaflets in all public places, at all times and under all circumstances, violates the First Amendment.
In 1942 the Supreme Court considered the constitutionality of this ordinance. At that time it was held valid under the so-called commercial speech exception to the First Amendment (Valentine v Chrestensen, 316 U.S. 52). Several months ago the Supreme Court held that "commercial speech, like other varieties, is protected" under the First Amendment (Virginia Pharmacy Bd. v Virginia Consumer Council, 425 U.S. 748, 770). However the court went on to note that this did not mean that commercial speech can never be regulated in any way. The city now urges that the ordinance can still be upheld as a reasonable regulation. However in our view this is not the type of regulation or restriction which can be imposed on constitutionally protected speech.
It is settled that an ordinance which prohibits the distribution of leaflets or handbills in all public places, at all times and under all circumstances, cannot be considered a reasonable regulation of constitutionally protected speech (see, e.g., Lovell v Griffin, 303 U.S. 444; Hague v CIO, 307 U.S. 496; Schneider v State, 308 U.S. 147; Jamison v Texas, 318 U.S. 413; Talley v California, 362 U.S. 60). Indeed even in Valentine there was no suggestion that the ordinance could be sustained on this ground. On the contrary it is clear that the court in fact "concluded that, although the First Amendment would forbid the banning of all communications by handbill" this ordinance could be upheld on the now abandoned theory that the First Amendment "imposed `no such restraint on government as respects purely commercial advertising' 316 U.S., at 54" (Virginia Pharmacy Bd. v Virginia Consumer Council, supra, at p 758). If an ordinance absolutely prohibiting all distribution of handbills containing constitutionally protected statements on political, social and religious topics is invalid, then this ordinance relating to commercial speech, now also constitutionally protected, suffers from the same infirmity.
The city of course has a legitimate interest in seeing that the exercise of the right does not contribute to the litter on the streets or otherwise violate the law. Thus they may enact reasonable regulations governing the time, place and circumstances of the distribution. But in our view they cannot enact an ordinance absolutely prohibiting all distribution of commercial handbills on city streets and call it a reasonable regulation of the activity. Although we sympathize with the city's desire to eliminate litter from the streets, we have concluded that the ordinance, as presently worded, is unconstitutional.
Accordingly, the order of the Appellate Term should be reversed, the conviction set aside and the information dismissed on the ground that the ordinance is unconstitutional.
I concur in the majority's decision today that the ordinance before us is, as presently worded, unconstitutional. As I see it, the difference in our views basically rests on the extent to which any regulation drawn to replace the one stricken here could, even in lesser measure, contain a commercial-noncommercial distinction. For, on my analysis, the defect here goes beyond overbreadth.
Pamphlets, leaflets and brochures have traditionally played an important role in the distribution of ideas and information in our Nation. More often than not, they have been the only means open to persons who are without access to more widespread forms of communication. The right to their use is no less important today than it has been in the past.
Neither the Federal Constitution nor our State Constitution specifies that one kind of speech is to be preferred over another. In my view, it is not, therefore, for us to decide whether commercial speech is less important than speech which is more overtly political or social in nature. That determination is itself a matter of individual freedom. To one citizen, the most important subject on which to communicate may be politics, constitutional rights, or the administration of justice; to another it may be what merchandise is available in the market at what price. Indeed, as a practical matter, most communications may have a thread of both the commercial and the noncommercial running through them.
Does a consumer's concern with the rising price of electricity lose its commercial character when he campaigns for the election of a legislator who espouses sterner utility regulation? Is one citizen's desire to lobby for tax reforms to his own financial benefit somehow less economic in nature than another's interest in obtaining goods at the lowest price? I think not.
Until recently, however, handbilling has been the subject of regulation according to whether it was commercial or noncommercial in nature, based on the United States Supreme Court's holding in the now largely repudiated case of Valentine v Chrestensen ( 316 U.S. 52), which involved the predecessor to the very ordinance now before us. Indeed, no one would dispute that much of the Valentine holding was cast aside by the Supreme Court itself in Bigelow v Virginia ( 421 U.S. 809, 818, 819). The Bigelow court did, however, remark that Valentine might still have viability to the extent that it purported to be a "reasonable regulation of the manner" in which commercial messages were given to the public (421 US, at p 819).
The Bigelow case involved newspaper advertisements in Virginia for an abortion referral service located in New York State. Such services were legal in New York but not in Virginia. The Supreme Court invalidated the law under which the editor of the newspaper had been convicted at least in part because the content of the advertisement he printed was addressed to a medical problem of serious social dimensions (at p 822). Understandably, the court left open the extent to which commercial speech of a more mundane nature might be regulated, saying, "We need not decide in this case the precise extent to which the First Amendment permits regulation of advertising that is related to activities the State may legitimately regulate or even prohibit" (at p 825).
Now, in Virginia Pharmacy Bd. v Virginia Consumer Council ( 425 U.S. 748), the Supreme Court appears to have answered the question it left open in Bigelow in the negative, making clear that commercial speech which "does `no more than propose a commercial transaction'" (Virginia Pharmacy Bd., supra, at p 762, quoting Pittsburgh Press Co. v Human Relations Comm., 413 U.S. 376, 385) is fully entitled to constitutional protection.
Significantly, the respondent, urging the conclusion that commercial handbilling may still be forbidden while noncommercial activity of the same sort may be permitted, cites to the echoes of Valentine in the Bigelow case as though the Virginia Pharmacy Bd. case had changed nothing. It finds the ordinance here justified by the "significant governmental interest" involved and by the availability of "alternative channels for communication", which concededly are conditions laid down by Virginia Pharmacy Bd., but it ignores the United States Supreme Court's further requirement, enunciated in that case, that the restriction must also be "justified without reference to the content of the regulated speech" (at p 771).
A regulation which permits handbilling of noncommercial material and forbids the same activity when commercial material is involved is inescapably a regulation which makes "reference to the content" of the handbills so forbidden. Indeed, it is a regulation which rests entirely on the content of the commercial handbill as somehow less protected than other, loftier kinds of speech. As I read it, Virginia Pharmacy Bd. wipes out such distinctions, on the grounds that they are unnecessary in a free society and, as a practical matter, incapable of being drawn on any rationally defensible basis.
In emphasizing the difficulty in characterizing the content of speech as "commercial" or "non-commercial" altogether, the court pointed to the fact that, even under its own past cases, speech is protected even when it is "carried in a form that is `sold' for profit" (at p 761, citing Smith v California, 361 U.S. 147, 150 [books]; Joseph Burstyn, Inc. v Wilson, 343 U.S. 495, 501 [motion pictures]; Murdock v Pennsylvania, 319 U.S. 105, 111 [religious literature]). And it is protected even when the speaker has a purely economic interest in the subject under discussion (at p 762, citing to numerous labor cases upholding union members' rights to disseminate their views on a particular economic dispute with an employer). Indeed, the speech of a pharmacist such as the one before the court in the Virginia Pharmacy Bd. case itself would be protected under prior cases if he had disguised his commercial message in a format of factual information about the problems involved in intelligent purchasing of drugs by consumers (at p 765, citing to the Bigelow case, and Thornhill v Alabama, 310 U.S. 88, 102). Said the court, "We see little point in requiring him to do so, and little difference if he does not" (at p 765).
Further, in holding the commercial doctrine inimical to a self-governing democracy, the court made clear that, "even if the First Amendment were thought to be primarily an instrument to enlighten public decisionmaking in a democracy * * * the free flow of commercial information", "is indispensable to the proper allocation of resources in a free enterprise system" (at p 765). Thus, the same economy which supplies the basis for the Supreme Court's holding that the free flow of information to consumers is vital also supplies the basis for holding that free access to less expensive channels of communication is vital to entrepreneurs who would speak to the public. Needless to say, not every business is as profitable as its fellows; not everyone can easily afford expensive newspaper and television advertising. The margin between success and failure is often very narrow. Clearly, the smaller the business the more this tends to be the case. But the right, if not the need, is universal.
To be sure, that is not to say that, under the Supreme Court's new formulation of permissible areas of regulation, some forms of communication with the public can never be forbidden, even, for that matter, for conventionally sacred political communications, when the State's interest is sufficiently "significant". Certainly we presently regulate the use of our sidewalks and streets, our parks and other places, where the public safety so requires (cf., e.g., Cox v Louisiana, 379 U.S. 559; Grayned v City of Rockford, 408 U.S. 104; Kovacs v Cooper, 336 U.S. 77; People v Taub, 37 N.Y.2d 530; People v Katz, 21 N.Y.2d 132).
But we can do so only without "reference to the content" of the speech and because other interests require acknowledgment. If that results in the closing of one channel of communication, at least at certain times and in certain places, the fact that other channels are open plays an important part in our right to so regulate I believe. What we should not do now is close one channel only to commercial speech, while leaving that same channel open to others whose utterances are somehow more acceptable.
In sum, handbilling has long occupied a special, almost indispensible place in our society (see Lovell v Griffin, 303 U.S. 444; Schneider v State, 308 U.S. 147, 162). For that reason alone, a total ban on handbilling without respect to its content is not acceptable; the only alternative must be to permit commercial handbilling as well. Both may be subject to reasonable regulation, of course provided the attempts to do so meet the other criteria set forth above and are not so vague as to violate the prohibition upon unwarranted police discretion set forth in Cox v Louisiana ( 379 U.S. 559, supra; see, also, People v Katz, 21 N.Y.2d 132, supra). If commercial and noncommercial handbilling may not be distinguished, then neither may be banned. Instead, both must then be permitted.
In my view the present record does not provide an adequate basis for a determination of the constitutionality of the ordinance, facially or as applied, under which defendant has been convicted.
For present purposes the ordinance forbids the distribution of commercial handbills in any street or public place in the City of New York. On my analysis it is useful first to identify certain constitutional precepts which I think relevant. In the first place, while the situation was formerly otherwise (e.g., Valentine v Chrestensen, 316 U.S. 52), the Supreme Court has now held that commercial speech is not wholly outside the protection of the First and Fourteenth Amendments (Virginia Pharmacy Bd. v Virginia Consumer Council, 425 U.S. 748; Bigelow v Virginia, 421 U.S. 809). Secondly, the distribution of literature, pamphlets and handbills to persons willing to receive them is a protected form of expression and accordingly any absolute prohibition is unconstitutional (e.g., Talley v California, 362 U.S. 60; Lovell v Griffin, 303 U.S. 444). Finally, regulation of the right of expression (e.g., as to time, manner, or place) is permissible, provided that the restrictions thereon "serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information". (Virginia Pharmacy Bd. v Virginia Consumer Council, 425 U.S. 748, 771, supra.)
The first of these precepts, obviously applicable to our present inquiry, precludes a summary rejection of defendant's challenge on the ground that the material distributed by him was a form of commercial speech and thus outside the scope of First Amendment protection. Rather, the constitutionality of the ordinance under scrutiny must turn on analysis of the second two precepts, thus presenting the question whether this ordinance would effect an absolute prohibition of a constitutionally protected means of expression (e.g., handbilling), and is thus unconstitutional, or whether it rather represents a permissible regulation of such activity and is thus constitutional. In determining whether the ordinance constitutes a prohibition or a regulation, it serves first to recognize that by the threshold definition of the category of communication activity to be used as the frame of judicial reference the issue as to prohibition or regulation may largely be predetermined. That is, any regulation may literally be characterized as a prohibition to the extent of its proscriptive effect. Thus, in the present instance, if the communication category be defined as "handbilling", evidently the present ordinance would not operate as an absolute prohibition, for its bar extends only to commercial handbilling; there is no restriction whatsoever as to the distribution on the streets of New York of noncommercial handbills. On the other hand, if the category of reference be defined as "commercial handbilling" then the ordinance lays down what amounts practically to a total prohibition.
In my view, the communication category within which the present ordinance must be judged is "handbilling" (cf. Talley v California, 362 U.S. 60, supra; Jamison v Texas, 318 U.S. 413; Schneider v State, 308 U.S. 147; Hague v CIO, 307 U.S. 496; Lovell v Griffin, 303 U.S. 444, supra). From this perspective, because this ordinance does not entirely prohibit such activity, it is properly to be classified as regulatory rather than prohibitory.
There remains then the crucial issue — can it be concluded that the restrictions imposed by this ordinance serve a significant governmental interest and also make allowance for sufficient alternative channels for communication (Virginia Pharmacy Bd. v Virginia Consumer Council, 425 U.S. 748, 771, supra)?
Whether these requirements are met cannot be determined on the record before us. When this case was tried the parties and the Trial Judge all understandably regarded Valentine v Chrestensen (supra) as authority for the proposition that commercial speech was not protected under the First Amendment. The controversy at nisi prius appears to have centered on contentions by defendant that, because he had no financial stake in these jazz concerts, his activities did not fall within the proscription of the ordinance and in any event that the advertising of any jazz concerts was noncommercial speech and thus entitled to First Amendment protection. The record was made on the assumption that these were the determinative issues. So far as appears from this record, defendant did not — and, since Virginia Pharmacy Bd. had not yet been handed down, would not have had reason to — challenge either the existence of a sufficient governmental interest justifying a regulatory ordinance or the availability of other means of dissemination of the information sought to be communicated. Nor did the city ever address what subsequently have been identified as the dispositive issues. The trial court likewise addressed neither of these issues but sustained the ordinance on the authority of the now discredited Valentine case. As already noted, under the Virginia Pharmacy Bd. decision very much more is now required to sustain the constitutionality of a local ordinance that regulates the distribution of commercial handbills against a challenge that the ordinance abridges First Amendment rights.
Since, in my view, the present record is wholly inadequate to resolve the question of constitutionality as now formulated by the Supreme Court, the case should be remitted for development of proof as to whether the requirements delineated in Virginia Pharmacy Bd. can be met.
I believe that the majority's approach is overly simplistic. Of course, commercial speech is protected by the First Amendment. The finer question, not considered by the majority, is whether commercial speech, historically treated differently from other forms of communication, is protected to the same extent as other speech. In my view, the First Amendment, as the Supreme Court has now twice stated, requires that a court, in passing upon the constitutionality of a legislative enactment affecting commercial speech, engage in balancing the competing societal interests represented. The court in reaching its decision does not take into consideration the relevant factors, which in my view render the ordinance constitutional. Accordingly, I dissent.
The defendant, convicted of distributing commercial handbills on the public sidewalk in front of Madison Square Garden, challenges the constitutionality of an ordinance prohibiting the distribution of purely commercial and business advertising handbills on the streets of the City of New York.
In 1974, defendant Ronald Remeny was arrested for distributing handbills promoting two musical concerts. The leaflet, which was labeled "Concert News", identified the performers by name and by photograph, set forth the dates and places of the concerts, the price scales of the admission tickets, and listed places and telephone numbers through which interested persons might purchase tickets or obtain further information. After trial, defendant was found guilty of violating subdivision 5 of section 755(2)-7.0 of the Administrative Code of the City of New York and was sentenced to a fine of $10 or a term of two days' imprisonment. The Appellate Term, with one Justice dissenting, affirmed the judgment of conviction.
The section, in its entirety, provides: "No person shall throw, cast or distribute, or cause or permit to be thrown, cast or distributed, any handbill, circular, card, booklet, placard or other advertising matter whatsoever, in or upon any street or public place, or in a front yard or courtyard, or on any stoop, or in the vestibule of any hall in any building, or in a letter box therein; provided that nothing herein contained shall be deemed to prohibit or otherwise regulate the delivery of any such matter by the United States postal service, or prohibit the distribution of sample copies of newspapers regularly sold by the copy or by annual subscription. This section is not intended to prevent the lawful distribution of anything other than commercial and business advertising matter." Violations are punishable by a fine of up to $100 and/or imprisonment for a period of up to 30 days. (Subd 8.)
Defendant has paid the fine.
This case does not involve the total prohibition of commercial and business advertising as ample alternative channels for communication of the information are available. The ordinance also does not attempt to regulate or censor the content of the commercial message, but, rather, regulates the place and the manner of communication to the public. What is at issue is whether the City of New York, in prohibiting the distribution of all purely commercial and business advertising leaflets on its streets and thoroughfares, unconstitutionally infringes the freedom of speech.
That the First Amendment protection of the freedom of speech may attach to the dissemination of some kinds of commercial information can no longer be disputed. (Virginia Pharmacy Bd. v Virginia Consumer Council, 425 U.S. 748.) The fact that commercial speech may be constitutionally protected does not end discussion, thereby dooming the antilittering ordinance to unconstitutionality. Whatever constitutional protection commercial speech has, the protection is not absolute and commercial speech itself is not inviolate. As with other forms of speech, commercial speech may be regulated as to time, place, and manner, in furtherance of a substantial governmental interest. Thus, to resolve the issue, it is necessary to consider the extent of the First Amendment protection accorded commercial advertisers, as well as the countervailing interest of the city in regulating traffic and commerce on its streets, particularly the control of littering. This, regrettably, the majority fails to do.
Historically, information and opinion disseminated in a commercial context, because of its mercantile origins and self-serving nature, has not been afforded First Amendment protection. Understandably, commercial speech was considered less essential to society than political, social and religious expression, all of which contribute to essential public debate and enlightenment, and are not motivated by personal financial profit. However, in more modern times, increasing recognition has been given to the strong relationship between commercial speech and our system of free personal economic choice. Since our economy is predicated primarily upon free enterprise, it is essential that the aggregate of private, economic decisions be intelligent and well informed.
It does not necessarily follow, however, that commercial speech, and the methods by which commercial information is communicated to the consuming public, can never be regulated in any way. As with other forms of expression, significant governmental interests may require some regulation. There is no doubt that government could, in the name of peace and quiet, prohibit sound amplification equipment from blaring prerecorded "jingles" at all hours of the night. Surely a prohibition against the posting of political, religious, social or commercial posters on public bridges, buildings and trees would be a form of regulation of free speech that would not infringe the First Amendment interest. Likewise, a regulation prohibiting the distribution of any kind of material in mailboxes would certainly be constitutional. Nor can it be said that the Constitution licenses a commercial enterprise to hire a helicopter to drop tons of advertising leaflets onto the streets of Times Square. I mention only a few examples to illustrate that all forms of speech, commercial as well as other varieties, although protected, can be regulated, provided a significant governmental interest is served and ample alternative channels for communication of information are available. Hence, a regulation reasonably restricting the time, place and manner of distribution of otherwise protected speech material does not constitutionally infringe upon the freedom of speech. Since I believe that the New York City antilittering ordinance is a reasonable limitation on the manner in which commercial advertising can be distributed in particular places, the public streets, I would affirm the order of Appellate Term.
The constitutionality of this antilittering ordinance has been tested once before in the 1942 case of Valentine v Chrestensen ( 316 U.S. 52). Acting under the ordinance, the police restrained the distribution of leaflets advertising the availability of paid tours through a former United States Navy submarine. Chrestensen thereupon appended to the other side of his leaflet a "protest" against the city's denial of permission to use a public pier for exhibition of his submarine. When the police prevented him from circulating his amended leaflet, he sought injunctive relief in the Federal courts. The Supreme Court ruled that the lower courts erred in granting the requested injunction. The court took note of the many earlier cases in which it was held that the streets are proper places for the communication and dissemination of information and opinion and that while the government could regulate the use of the streets, it could not impose burdensome conditions nor prohibit such use entirely. (See Hague v CIO, 307 U.S. 496; Lovell v Griffin, 303 U.S. 444; Schneider v State, 308 U.S. 147.) It was concluded that "the Constitution imposes no such restraint on government as respects purely commercial advertising. Whether, and to what extent, one may promote or pursue a gainful occupation in the streets, to what extent such activity shall be adjudged a derogation of the public right of user, are matters for legislative judgment. The question is not whether the legislative body may interfere with the harmless pursuit of a lawful business, but whether it must permit such pursuit by what it deems an undesirable invasion of, or interference with, the full and free use of the highways by the people in fulfillment of the public use to which streets are dedicated." (316 US, at pp 54-55 [emphasis added].) The court also rejected Chrestensen's attempt to evade the scope of the ordinance by appending a protest to his handbill. "If that evasion were successful, every merchant who desires to broadcast advertising leaflets in the streets need only append a civic appeal, or a moral platitude to achieve immunity from the law's command." (316 US, at p 55.)
The broad statement in Chrestensen that government may freely regulate commercial advertising, without regard to First Amendment considerations, has been disapproved in more recent cases and is no longer controlling. (Virginia Pharmacy Bd. v Virginia Consumer Council, 425 U.S. 748, 758-760, supra; Bigelow v Virginia, 421 U.S. 809, 820.) Although the "sweeping proposition that advertising is unprotected per se" has not survived close scrutiny, the Supreme Court has made it clear that the narrow holding in Chrestensen remains unshaken, stating recently that "the ordinance was upheld as a reasonable regulation of the manner in which commercial advertising could be distributed." (Bigelow v Virginia, supra, at p 819.)
I would not rest on the blind authority of Chrestensen alone, for I would also conclude that the interest of the city in regulating traffic and commerce on its streets and thoroughfares outweighs the interest, in favor of commercial advertisers, in distributing commercial handbills to pedestrians. The city ordinance is primarily designed to guard against the cumulation of litter in the streets. The ordinance also serves to guard against the obstruction of pedestrian and vehicular traffic and the harassment of passersby. (Cf. Administrative Code of City of New York, § 435-10.1 [prohibiting persons from standing in front of stores and, by using a variety of methods, including distribution of handbills, from enticing passersby to enter such stores].) The municipality has a manifest interest in maintaining order on its streets and insuring the free flow of traffic on its thoroughfares. In our urbanized society, the streets and public ways are the focal points of human social and business activity. Particularly in the central city where vehicular traffic is frequently, if not usually snarled and curtailed, the streets and sidewalks are the convenient, if not the only, means of moving from one point to the next. In short, the streets are where the people are and, thus, where the potential audience is. By merely standing on the sidewalk of a busy, crowded thoroughfare, a speaker gains access to the vast numbers of people whom necessity places within the range of his voice or the reach of his arm. Leafletting is an inexpensive, time-honored means of delivering information and opinion directly, literally, into the hands of the public, whose natural reaction is to immediately accept or reject the tendered leaflet and continue on the way. Common experience teaches that the leaflet is either retained for future study or cast, sometimes after a hurried glance, into the street.
Since the formation of the American Republic, leafletting has been an accepted and protected form of political, social and religious communication. (E.g., Schneider v State, 308 U.S. 147, 162, supra.) Commercial interests now seek to obtain the same privilege. Although commercial speech is protected, to some measure, by the First Amendment, the majority overlooks the simple fact that not every type of protected speech occupies the same position on the scale of values. The considerations that compel protection of political, social and religious pamphleteering simply do not apply when the message sought to be communicated is purely commercial. The stream of commercial speech, directed solely at the solicitation of business, may be more closely regulated than other forms of communication, provided that the free flow of consumer information is not unduly impaired.
In this case, the city has not attempted to prevent the advertising of any particular commercial information. Nor has the city foreclosed advertisers from using other mediums of communication, including other means of addressing the consumer on the street. For example, advertisers may place posters on specially designed kiosks, on billboards, on buses and taxicabs, and on the sides of waste receptacles. The city has only prohibited the form of commercial advertising that contributes, most directly and significantly, to the cumulation of litter in the streets — the throw-away leaflet handed to passing members of the public. I also note that another form of advertising, the free sample, is frequently distributed on the city streets. Since the item distributed is of economic value, there is little danger of clutter in the streets caused by the casual toss-away and the ordinance does not prohibit this practice. Thus, although one channel has been closed, the stream of commercial information flows unabated.
I take cognizance of the crushing financial plights of the central cities in this State. Caught between inflation-spiraled expenditures and a dwindling tax base, the central cities have been hard put to maintain the present level of essential municipal services, not the least of which is sanitation. It is one thing to hold that municipalities, and through them their citizens, must bear the cost of removing from the streets the litter left in the aftermath of political, social and religious expression. This is part of the price imposed by our democratic process. However, it is quite another matter to suggest that the cities must bear the burden of cleansing the streets of leaflets distributed in the name of the profit motive. Recent experience in New York City indicates that litter related sanitation problems are by no means an insignificant health hazard.
Finally, it should be noted that the New York City ordinance applies with equal force to the person, who upon receipt of any kind of leaflet, political or commercial, casually discards it onto the street. It is readily apparent that, in large crowds or on crowded sidewalks, enforcement directed at the litterer can be sporadic and random, at best. Recognizing that any of the myriad of businesses and commercial enterprises located within the city might attempt to advertise by leaflet, the city has moved to effectively eliminate one of the major potential sources of litter. I believe that this is a reasonable effort, one without substantial prejudice to businesses within New York City, and has been prompted by the demands of real necessity. (See People v Taub, 37 N.Y.2d 530, 532, and cases cited.)
Hence, I conclude that the New York City ordinance prohibiting the distribution of commercial leaflets in the streets is a reasonable and constitutionally permissible manner and place regulation of commercial speech. Accordingly, I dissent and vote to affirm the order of the Appellate Term.
Judges GABRIELLI and COOKE concur with Judge WACHTLER; Judge FUCHSBERG concurs in result in another opinion; Judge JONES dissents in part and votes to modify in a separate opinion; Judge JASEN dissents and votes to affirm in another separate opinion in which Chief Judge BREITEL concurs.
Order reversed and the information dismissed.