
    The People of the State of New York, Respondent, v. Elliot Katz, Appellant.
    Argued October 30, 1967;
    decided December 28, 1967.
    
      Isidore Silver for appellant.
    I. Section 692h-1.0 of the Administrative Code is unconstitutional on its face because it prohibits lawful and ordinary conduct, in violation of the Constitution of the State of New York and the due process clause of the Fourteenth Amendment of the United States Constitution. (Good Humor Corp. v. City of New York, 290 N. Y. 312; Associated Transp. v. City of Syracuse, 196 Misc. 1031.) II. The section is unconstitutional on its face because it is overbroad and proscribes conduct protected by the First and Fourteenth Amendments to the United States Constitution. (Cox v. Louisiana, 379 U. S. 536; Hague v. C. I. O., 307 U. S. 496; Thornhill v. Alabama, 310 U. S. 88; Kovacs v. Cooper, 336 U. S. 77; Kelly v. Page, 335 F. 2d 114; Hurwitt v. City of Oakland, 247 F. Supp. 995; Williams v. Wallace, 240 F. Supp. 100; Ashton v. Kentucky, 384 U. S. 195; People v. Carcel, 3 N Y 2d 327; United States v. Jones, 244 F. Supp. 181, 365 F. 2d 675; People v. Firth, 3 N Y 2d 472; People v. Bookcase, Inc., 14 N Y 2d 409.) III. The section as applied to the facts of this case is an unconstitutional abridgement of defendant’s rights to freedom of speech and to petition the Government for redress of .grievances. (Kovacs v. Cooper, 336 U. S. 77; Schneider v. State, 368 U. S. 147; People v. Finkelstein, 170 Misc. 188; People v. Strauss, 48 Misc 2d 1006; Yick Wo v. Hopkins, 118 U. S. 356.) IV. The State cannot constitutionally make criminal the act of placing a 3-foot-square table along a building on a 20-foot-wide public street, where such table bears materials germane to public issues. (Shuttlesworth v. Birmingham, 382 U. S. 87; Valentine v. Chrestensen, 316 U. S. 52; Dombrowski v. Pfister, 380 U. S. 479.) V. If appellant was convicted under a statute other than section 692h-1.0 of the Administrative Code, then such conviction violates due process of law. (De Jonge v. Oregon, 299 U. S. 353; Thompson v. Louisville, 362 U. S. 199.)
    
      Thomas J. Mackell, District Attorney (Sidney Baumgarten of counsel), for respondent.
    I. Section 692h-1.0 of the Administrative Code is constitutional on its face and as applied to the facts of this case. (Whitney v. California, 274 U. S. 357; People v. Carcel, 3 N Y 2d 327; Thornhill v. Alabama, 310 U. S. 88; Cox v. Louisiana, 379 U. S. 536; Good Humor Corp. v. City of New York, 290 N. Y. 312; Hurwitt v. City of Oakland, 247 F. Supp. 995; Shuttlesworth v. Birmingham, 382 U. S. 87; People v. Strauss, 48 Misc 2d 1006; People v. Utica Daw’s Drug Co., 16 A D 2d 12.) II. Appellant was convicted under section 692h-1.0 of the Administrative Code.
   Keating, J.

Elliot Katz, a 20-year-old college student, set up a 3-foot by 3-foot card table near the corner of Roosevelt Avenue and Main Street in Queens. Pinned to the table was a sign which stated: ‘‘ Stop the War in Viet Nam. ’’ On the table were various pamphlets containing information relating to the' Vietnam situation. People who stopped at the table were requested to write to either their Congressman or the President protesting the present U. S. policies in Vietnam.

Mr. Katz stands convicted of violating section 692h-1.0 of the Administrative Code of the City of New York, which provides: ‘‘ It shall be unlawful for any person * * * to incumber or obstruct any street * * * with any article or thing whatsoever.” He contends that this statute is unconstitutional on its face, while the People urge that it merely represents a lawful and reasonable exercise of the police power, designed to promote the public interest.

In proscribing any obstruction ‘ ‘ whatsoever ’ ’, section 692h-1.0 has placed upon law enforcement officers the burden of determining in each case what, in their judgment, constitutes an obstruction. The police officer who testified in this case, for example, admitted that he had at times seen tables on the streets of New York and that he had not issued a summons in every case. He stated at the trial: “ If I feel they are violating the law I will ask them to remove the table ’’.

Although there is no allegation in this case that the police officer was guilty of discriminatory enforcement of section 692h-1.0, the broad prohibitive language of the statute together with the lack of any defined standards for judging violations renders it peculiarly susceptible to arbitrary enforcement. Broad regulatory statutes such as section 692h-1.0 have been held unconstitutional, particularly where they operate to restrain the exercise of First Amendment rights.

Cox v. Louisiana (379 U. S. 536) dealt with a statute prohibiting all willful obstructions. It was admitted that, in practice, some parades and meetings were permitted by local officials. In declaring this statute unconstitutional, the court stated (p. 557): “ [T]he lodging of such broad discretion in a public official allows him to determine which expressions of view will be permitted and which will not. This thus sanctions a device for the suppression of the communication of ideas and permits the official to act as a censor.”

In Thornhill v. Alabama (310 U. S. 88, 97-98) a statute prohibiting all picketing at the place of employment was declared unconstitutional, partly because of its susceptibility to arbitrary enforcement: ‘ ‘ The existence of such a statute, which readily lends itself to harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure, results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview.”

In Saia v. New York (334 U. S. 558, 562) the Supreme Court held unconstitutional an ordinance prohibiting the use of sound trucks, except with the permission of the Chief of Police. The majority noted that “ Courts must balance the various community interests in passing on the constitutionality of local regulations of the character involved ’’.

The court commented that no standards were prescribed for the issuance or withholding of permits. While it may be necessary to regulate the use of sound trucks, the court found that total prohibition, together with the possibility of arbitrary application of the ordinance, constituted a harsh encroachment on First Amendment rights. A narrowly drawn ordinance regulating hours, places of use and volume of sound would achieve, in the court’s view, the proper balance between the public need for convenience and the necessary safeguarding of constitutional rights.

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, p. 87). Where á 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. While we are in sympathy with the general purpose of the statute involved in this case, its susceptibility to arbitrary enforcement and its use of total prohibition rather than reasonable regulation render it unconstitutional.

A narrowly drawn ordinance can achieve the public convenience on the streets without sacrificing either individual constitutional rights or the public right to free discussion of matters of public concern.

The judgment should be reversed and the charge dismissed.

Van Voorhis, J. (dissenting).

We are at a loss to understand how a statute can he unconstitutional which makes it unlawful to incumber or obstruct the streets of a city ‘ ‘ with any article or thing whatsoever.” In this instance defendant-appellant assumed the right to set up and maintain for an indefinite time a three by three-foot table on the public sidewalk near the corner of Roosevelt Avenue and Main Street in the Borough of Queens. Pinned to the table was a sign which read: ‘‘ Stop the War in Viet Nam.”

The maintenance of this physical obstruction to the full use of the sidewalk is not rendered illegal for the reason that it displays a placard urging a national policy contrary to a war in which the country is involved, but neither does exhibiting this display sign make lawful an obstruction of the sidewalk which would otherwise be illegal. The occupation of a portion of a highway by an individual is a mere obstruction and nuisance for which no lapse of time would enable him to prescribe ” and No acquiescence on their part [the highway officials] in any act of the plaintiff could deprive the public of the right to use the whole highway, or in any degree lessen the duty of the defendants to remove obstructions, when that removal was necessary ” (Driggs v. Phillips, 103 N. Y. 77, 82-83). Numerous other decisions are to the same effect (St. Vincent Female Orphan Asylum v. City of Troy, 76 N. Y. 108; Bliss v. Johnson, 94 N. Y. 235; Mangam v. Village of Sing Sing, 26 App. Div. 464, affd. on opn. below 164 N. Y. 560.)

The Legislature, by virtue of its general control over public streets and highways, has power to authorize structures in the streets for the convenience of business, which, without such authority and under the common law, would be held to be encroachments and obstructions. This power it may delegate to the governing body in a municipal corporation (Hoey v. Gilroy, 129 N. Y. 132). A similar power may, of course, be exercised by local law in the case of municipalities. This power is frequently exercised in the case of permitting awnings over sidewalks in front of business establishments, use of the sidewalk or street for building materials or temporary structures in the erection and demolition of buildings, fruit stands, newsstands, unloading trucks on the street for the purpose of removing their contents to adjacent stores or warehouses and the like. Power to issue licenses for such uses may be and usually is delegated to city officials (Matter of McCoy v. Apgar, 241 N. Y. 71). In the absence of such a revocable permit, however, an obstruction of the public street or sidewalk constitutes a public nuisance (Matter of Green v. Miller, 249 N. Y. 88, 93).

The licensing power is adapted to situations of this character since it enables temporary private use' of streets in methods sanctioned by long-continued usage, from which the public ultimately benefits, but without sanctioning uses of this character which may seriously interfere with street purposes. It may well be that if this defendant had applied for a sidewalk permit it would have been granted. If it were refused arbitrarily, its denial could have been reviewed in an article 78 proceeding. The point is that defendant applied for no license, claiming that he is entitled to this occupation of the sidewalk as matter of right. It is true that he blocked the use of only part of the sidewalk, which may or may not have caused inconvenience to passersby. The question before us is not whether this particular obstruction, for such it was, was serious, but whether the public authorities have any power or control over such situations. In this day of sit-ins and defiance of public and private rights to the use of streets and other public or semi-public places, it is particularly important that the power of the municipal authorities should be upheld to regulate private uses of streets and not be set at naught.

It is no defense to say that police officers sometimes enforce the law regulating obstructions of streets and sometimes allow the law to go unenforced. Unless lack of enforcement is virtually total, omission to enforce in one instance does not bar enforcement in another (People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N. Y. 280).

There is nothing ambiguous in the language of this statute, which has no resemblance to the statutes involved in Thornhill v. Alabama (310 U. S. 88, 97-98); Cox v. Louisiana (379 U. S. 536) or the ordinance in Saia v. New York (334 U. S. 558, 562).

For the reasons stated the determination of the Appellate Term which affirmed a judgment of conviction by the Criminal Court of the City of New York, Queens County, should be affirmed.

Chief Judge Fuld and Judges Burke, Bergan and Breitel concur with Judge Keating ; Judge Van Voorhis dissents and votes to affirm in an opinion in which Judge Scileppi concurs.

Judgment reversed, etc. 
      
      . This ordinance has been found unconstitutional as applied to a fact situation similar to the one involved in this case in People v. Strauss (48 Misc 2d 1006).
     
      
      . Of course, not every object on a public street necessarily obstructs or tends to obstruct it.
     
      
      . The court noted that it need not consider the constitutionality of a statute which was applied nondiscriminatorily and which prohibited all parades. It is, of course, far easier to show discriminatory application of this type of statute than it is of a general obstruction statute like section 692h-1.0.
     
      
      . In Kovacs v. Cooper (336 U. S. 77) the court upheld an ordinance prohibiting the use of “ loud and raucous ” sound trucks. The court stressed the use of the terms “ loud and raucous ”, apparently viewing these adjectives as sufficiently specific.
     