
    The People of the State of New York, Respondent, v. Marion A. Stover and Webster Stover, Appellants.
    Argued February 26, 1963;
    decided May 9, 1963.
    
      
      Paul B. Zuber for appellants.
    I. The constitutional guarantees of freedom of speech and right to assemble peaceably and to petition government may not be abridged by an arbitrary and discriminatory abuse of the police power. (Hague v. C. I. O., 307 U. S. 496; Palko v. Connecticut, 302 U. S. 319; Herndon v. Lowry, 301 U. S. 242; De Jonge v. Oregon, 299 U. S. 353; People v. Kopezak, 153 Misc. 187, 266 N. Y. 565; Matter of Lerner v. Casey, 2 A D 2d 1; City of Reno v. District Court, 59 Nev. 416; People v. Carolene Prods. Co., 345 Ill. 166; In re Porterfield, 28 Cal. 2d 91; Whitney v. California, 274 U. S. 357; Hughes v. Superior Court, 339 U. S. 460; Stromberg v. California, 283 U. S. 359; Thomas v. Collins, 323 U. S. 516.) II. Section 4-3.7 of the General Ordinances of the City of Bye was not made in accordance with a comprehensive plan designed to lessen congestion in the streets, to secure safety from fire, panic and other dangers. (Matter of Barker v. Switzer, 209 App. Div. 151, 238 N. Y. 624; Matter of Melita v. Nolan, 126 Misc. 345; Meyer v. Burns, 36 Misc 2d 252; Matter of Oppen
      
      heimer v. Kraus, 221 App. Div. 773, 246 N. Y. 559; Greenberg v. City of New Rochelle, 206 Misc. 28, 284 App. Div. 891, 308 N. Y. 736; Connell v. Town of Granby, 12 A D 2d 177; Matter of Consolidated Edison Co. v. Village of Briarcliff Manor, 208 Misc. 295; Matter of Bonan Realty Corp. v. Young, 16 Misc. 2d 119; Apton v. City of Rochester, 22 Misc 2d 113; Seattle Trust Co. v. Roberge, 278 U. S. 116.)
    
      Leonard Rubenfeld, District Attorney, and Anthony T. Antinoszi, Corporation Counsel, for respondent.
    The ordinance prohibiting clotheslines without a permit is constitutional. (Johnson v. City of New York, 274 N. Y. 411; Rodgers v. Village of Tarrytown, 302 N. Y. 115; New York State Thruway Auth. v. Ashley Motor Court, 12 A D 2d 223; Bond v. Cooke, 237 App. Div. 229; Wiggins v. Town of Somers, 4 N Y 2d 215; Lincoln Bldg. Associates v. Barr, 1 N Y 2d 413; Gail Turner Nurses Agency v. State of New York, 17 Misc 2d 273; Mallinson v. Village of Tarrytown, 14 Misc 2d 5; Hempstead T-W Corp. v. Town of Hempstead, 13 Misc 2d 1054, 7 A D 2d 637; People v. Arlen Serv. Stas., 284 N. Y. 340; Matter of Wulfsohn v. Burden, 241 N. Y. 288; Kerr’s Appeal, 294 Pa. 246; In re Appeal of Parker, 214 N. C. 51; Fifth Ave. Coach Co. v. City of New York, 194 N. Y. 19, 221 U. S. 467; Village of Larchmont v. Sutton, 30 Misc 2d 245; People ex rel. Armstrong v. Warden of City Prison, 183 N. Y. 223; Matter of Brous v. Smith, 304 N. Y. 164.)
   Fuld, J.

The defendants, Mr. and Mrs. Stover, residents of the City of Bye since 1940, live in a 2%-story 1-family dwelling, located in a pleasant and built-up residential district, on the corner of Bye Beach and Forest Avenues. A clothesline, filled with old clothes and rags, made its first appearance in the Stovers’ front yard in 1956 as a form of 11 peaceful protest” against the high taxes imposed by the city. And, during each of the five succeeding years, the defendants added another clothesline to mark their continued displeasure with the taxes. In 1961, therefore, six lines, from which there hung tattered clothing, old uniforms, underwear, rags and scarecrows, were strung across the Stovers’ yard — three from the porch across the front yard to trees along Forest Avenue and three from the porch across the side yard to trees along Bye Beach Avenue.

In August of 1961, the city enacted an ordinance prohibiting the erection and maintenance of clotheslines or other devices for hanging clothes or other fabrics in a front or side yard abutting a street (General Ordinances, § 4^3.7). However, the ordinance provides for the issuance of a permit for the use of such clotheslines if there is “ a practical difficulty or unnecessary hardship in drying clothes elsewhere on the premises ’ ’ and grants a right of appeal to the applicant if a permit is denied.

Following enactment of the ordinance, Mrs. Stover, the record owner of the property, applied for a permit to maintain clotheslines in her yard. Her application was denied because, she was advised, .she had sufficient other property available for hanging clothes and she was directed to remove the clotheslines which were in the yards abutting the streets. Although no appeal was taken from this determination and no permit ever issued, the clotheslines were not removed. Belying upon the ordinance, the city thereupon charged the defendants with violating its provisions. They were tried and convicted and their judgments of conviction have been affirmed by the County Court of Westchester County. Upon the trial the defendant Webster Stover disputed the sufficiency of the evidence to connect him with the erection or maintenance of the clotheslines but he does not do so here, urging instead that the ordinance, as it has been applied to him and his wife, is unconstitutional both as an interference with free speech and as a deprivation of property without due process.

It is a fair inference that adoption of the ordinance before us was prompted by the conduct and action of the defendants but we deem it clear that, if the law would otherwise be held constitutional, it will not be stricken as discriminatory or invalid because of its motivation. (Of. Town of Hempstead v. Goldblatt, 9 N Y 2d 101, affd. 369 U. S. 590.) Our problem, therefore, is to determine whether the law violates First Amendment rights or otherwise exceeds the police power vested in a city on the ground that it was enacted without regard to considerations of public health, safety and welfare.

The People maintain that the prohibition against clotheslines in front and side yards was ‘ ‘ intended to provide clear visibility at street corners and in driving out of driveways, and thus avoid and reduce accidents; to reduce distractions to motorists and pedestrians; and to provide greater opportunity for access in the event of fires ”. Although there may be considerable doubt whether there is a sufficiently reasonable relationship between clotheslines and traffic or fire safety to support an exercise of the police power, it is our opinion that the ordinance may be sustained as an attempt to preserve the residential appearance of the city and its property values by banning, insofar as practicable, unsightly clotheslines from yards abutting a public street. In other words, the statute, though based on what may be termed aesthetic considerations, proscribes conduct " which offends sensibilities and tends to debase the community and reduce real estate values.

There are a number of early decisions, both in this State (see People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N. Y. 126) and elsewhere (see, e.g., Varney & Green v. Williams, 155 Cal. 318; City of Chicago v. Gunning System, 214 Ill. 628; City of Passaic v. Paterson Bill Posting Adv. & Sign Painting Co., 72 N. J. L. 285; Bryan v. City of Chester, 212 Pa. 259), which hold that aesthetic considerations are not alone sufficient to justify exercise of the police power. But since 1930 this court has taken pains repeatedly to declare that the issue is an open and “ unsettled ” one in New York. (People v. Rubenfeld, 254 N. Y. 245, 248-249; see, also, Perlmutter v. Greene, 259 N. Y. 327, 332; New York State Thruway Auth. v. Ashley Motor Ct., 10 N Y 2d 151, 156-157.) In addition, we have actually recognized the governmental interest in preserving the appearance of the community by holding that, whether or not aesthetic considerations are in and of themselves sufficient to support an exercise of the police power, they may be taken into account by the legislative body in enacting laws which are also designed to promote health and safety. (See, e.g., Matter of Wulfsohn v. Burden, 241 N. Y. 288, 303; Dowsey v. Village of Kensington, 257 N. Y. 221, 230; Perlmutter v. Greene, 259 N Y. 327, 331-332, supra; Baddour v. City of Long Beach, 279 N. Y. 167, 174; Matter of Presnell v. Leslie, 3 N Y 2d 384, 389; New York State Thruway Auth. v. Ashley Motor Ct., 10 N Y 2d 151, 157, supra.) 11 .¿Esthetic considerations ”, this court wrote in Dowsey v. Village of Kensington (257 N. Y. 221, 230, supra), “ are, fortunately, not wholly without weight in a practical world.” Once it be conceded that aesthetics is a valid subject of legislative concern, the conclusion seems inescapable that reasonable legislation designed to promote that end is a valid and permissible exercise of the police power. If zoning restrictions “ which implement a policy of neighborhood amenity ” are to be stricken as invalid, it should be, one commentator has said, not because they seek to promote aesthetic objectives ” but solely because the restrictions constitute 1 ‘ unreasonable devices of implementing community policy.” (Dukeminier, Zoning for Aesthetic Objectives: A Reappraisal, 20 Law & Contemp. Prob. 218, 231.) Consequently, whether such a statute or ordinance should be voided should depend upon whether the restriction was an arbitrary and irrational method of achieving an attractive, efficiently functioning, prosperous community — and not upon whether the objectives were primarily aesthetic.” (Dukeminier, loo. cit.) And, indeed, this view finds support in an ever-increasing number of cases from other jurisdictions which recognize that aesthetic considerations alone may warrant an exercise of the police power. (See, e.g., Berman v. Parker, 348 U. S. 26, 33; General Outdoor Adv. Co. v. Department of Public Works, 289 Mass. 149, 187-188, app. dsmd. 297 U. S. 725; Sunad, Inc., v. City of Sarasota, 122 So. 2d 611 [Fla.]; State ex rel. Civello v. New Orleans, 154 La. 271, 284-285; Best v. Zoning Bd. of Adjustment, 393 Pa. 106, 116-117; State ex rel. Saveland Park Holding Corp. v. Wieland, 269 Wis. 262, 271-272, cert. den. 350 U. S. 841; Churchill & Tait v. Rafferty, 32 P. I. 580, app. dsmd. 248 U. S. 591; see, also, 8 McQuillin, Municipal Corporations [3d ed.], § 25.31.) As Mr. Justice Douglas, writing for a unanimous court in Berman, put it (348 U. S., at p. 33) :

“ The concept of the public welfare is broad and inclusive. * * * The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. * * * If those who govern the District of Columbia decide that the Nation’s Capital ■should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.”

Cases may undoubtedly arise, as we observed above, in which the legislative body goes too far in the name of aesthetics (cf. Matter of Mid-State Adv. Corp. v. Bond, 274 N. Y. 82; Dowsey v. Village of Kensington, 257 N. Y. 221, supra; Dukeminier, Zoning for Aesthetic Objectives: A Reappraisal, 20 Law & Contemp. Prob. 218, 231) but the present, quite clearly, is not one of them. The ordinance before us is in large sense regulatory rather than prohibitory. It causes no undue hardship to any property owner, for it expressly provides for the issuance of a permit for clotheslines in front and side yards in cases where there is practical difficulty or unnecessary hardship in drying .clothes elsewhere on the premises. Moreover, the ordinance imposes no arbitrary or capricious standard of beauty or conformity upon the community. It simply proscribes conduct which is unnecessarily offensive to the visual sensibilities of the average person. It is settled that conduct which is similarly offensive to the senses of hearing and smell may be a valid subject of regulation under the police power (see, e.g., People v. Rubenfeld, 254 N. Y. 245, supra), and we perceive no basis for a different result merely because the sense of sight is involved.

Nor is there any warrant or justification for a charge — which seems to have been abandoned on this appeal — that the ordinance is being enforced solely against the defendants or that there is a pattern of discrimination consciously being practiced against them. As the court below noted, the building superintendent testified, without contradiction, that all applications for permits were checked and investigated, that other applications for permits had been denied and that the defendants were the only persons who refused to remove clotheslines violative of the ordinance.

Having concluded that the ordinance here in question is validly grounded on a proper exercise of the police power, we turn to the defendants’ principal contention, that it is invalid as applied to them because it constitutes an unconstitutional infringement of their freedom of speech. The defendants erected the six clotheslines on their property as a protest against their tax assessment. This form of nonverbal expression is, we shall assume, a form of speech within the meaning of the First Amendment. (See Stromberg v. California, 283 U. S. 359, 369 [exhibition of red flag]; Board of Educ. v. Barnette, 319 U. S. 624, 632-633 [flag salute]; Garner v. Louisiana, 368 U. S. 157, 201 [sit-in demonstration] [per Hablait, J., concurring].) However, it is perfectly clear that, since these rights are neither absolute nor unlimited (see, e.g., Kovacs v. Cooper, 336 U. S. 77; Chaplinsky v. New Hampshire, 315 U. S. 568; Stromberg v. California, 283 U. S. 359, 368, supra; Gitlow v. New York, 268 U. S. 652), they are subject to such reasonable regulation as is provided by the ordinance before us. Although the city may not interfere with nonviolent speech, it may proscribe conduct which incites to violence or works an injury on property, and the circumstance that such prohibition has an impact on speech or expression, otherwise permissible, does not necessarily invalidate the legislation.

It must be borne in mind that the ordinance here in question is, in the language of a recent Supreme Court case (Edwards v. South Carolina, 372 U. S. 229, 236), a “ precise and narrowly drawn regulatory statute evincing a legislative judgment that certain specific conduct be limited or proscribed.” (See, also, Schneider v. State, 308 U. S. 147, 160-161.) As the court aptly observed in the Schneider case (308 U. S. 147, 160-161, supra), “ a person could not exercise [his freedom of speech] by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to the stoppage of all traffic; a group of distributors could not insist upon a constitutional right to form a cordon across the street and to allow no pedestrian to pass who did not accept a tendered leaflet; nor does the guarantee of freedom of speech or of the press deprive a municipality of power to enact regulations against throwing literature broadcast in the streets. Prohibition of such conduct would not abridge the constitutional liberty since such activity bears no necessary relationship to the freedom to speak, write, print or distribute information or opinion.”

This reasoning is equally applicable to the case before us. The prohibition against clotheslines is designed to proscribe conduct which offends the sensibilities and tends to depress property values. The ordinance and its prohibition bear 1 ‘ no necessary relationship ” to the dissemination of ideas or opinion and, accordingly, the defendants were not privileged to violate it by choosing to express their views in the altogether bizarre manner which they did. It is obvious that the value of their ‘ protest ’ ’ lay not in its message but in its offensiveness.

The judgment appealed from should be affirmed.

Vast Voorhis, J. (dissenting).

My concern in this case is not with limitation of free speech nor whether aesthetic considerations are enough in themselves to justify zoning regulations in prescribed instances, but with the extent to which a municipality can go in restricting the use of private property. The ordinance whose validity is now being upheld prohibits the erection and maintenance of clotheslines in a front or side yard abutting a street. Exceptions may be granted, and we were told upon the argument that 26 exceptions have been allowed in Bye, with the practical result that this ordinance is enforced against few others, if any, than the appellants. Even if that be held not to undermine the ordinance, it seems to me to exceed zoning powers for municipalities such as this to dictate to owners of houses and lots where they may put their clotheslines. The validity of ordinances may be tested in court according to whether the exercise of power delegated to the municipality is reasonable or arbitrary (People ex rel. City of Olean v. Western N. Y. & Pa. Traction Co., 214 N. Y. 526; Commissioners of Palisades Interstate Park v. Lent, 240 N. Y. 1). In the case last cited it was said that “ What is reasonable is in large part tested by what is ordinary usage and common experience” (p. 8). What has happened here is that these defendants conceived the unusual idea of hanging what the majority opinion describes as “ tattered clothing, old uniforms, underwear, rags and scarecrows ” across their yard as a form of protest against the amount of their taxes. The city, at the instance of other residents in the area, fought back by adopting this ordinance from the operation of which almost every other property owner applying for a permit has been excepted. Although the origin of this dispute is evidently political in nature, the validity of this ordinance is sought to be upheld entirely on the basis of aesthetic considerations, e.g., that the eye is offended by what hangs from these clotheslines. No cases have been cited from this or any other jurisdiction holding that a municipal corporation or political subdivision can direct house and lot owners where they shall hang their clothes. Aesthetic considerations, in a certain sense, underlie all zoning, usually in combination with other factors with which they are interwoven. Lot area, setback and height restrictions, for example, are based essentially on aesthetic factors. Occasionally public safety considerations are blended with aesthetics, such as the tendency of billboards to distract the attention of automobile drivers or of high hedges to block their view at street intersections. Aesthetic factors are given effect, in such cases, but have been limited to specific situations and not extended to anything which offends the taste of the neighbors or of the local legislature. One may assume, for example, that a clothesline ordinance would be invalid which permitted the hanging of white but not red blankets, or allowed shirts to be put out to dry after washing but not underwear. Probably, at least until the next step in zoning law, a municipality would be held unauthorized to direct house owners what colors their homes should be painted, or what kinds of trees or shrubbery they should be allowed to grow and where they should be planted. Nevertheless if they can be told where to hang their clothes in their yards, these items would be but a small step beyond the present holding, or to prescribe /what architectural designs should be adopted so as to harmonize with the designs of the neighbors. To direct by ordinance that all buildings erected in a certain area should be one-story ranch houses would scarcely go beyond the present ruling as a question of power, or to lay down the law that they should be all of the same color, or of different colors, or that each should be of one or two or more color tones as might suit the aesthetic predilections of the city councillors or zoning boards of appeal.

This ordinance is unrelated to the public safety, health, morals or welfare except insofar as it compels conformity to what the neighbors like to look at. Zoning, important as it is within limits, is too rapidly becoming a legalized device to prevent property owners from doing whatever their neighbors dislike. Protection of minority rights is as essential to democracy as majority vote. In our age of conformity it is still not possible for all to be exactly alike, nor is it the instinct of our law to compel uniformity wherever diversity may offend the sensibilities of those who cast the largest numbers of votes in municipal elections. The right to be different has its place in this country. The United States has drawn strength from differences among its people in taste, experience, temperament, ideas, and ambitions as well as from differences in race, national or religious background. Even where the use of property is bizarre, unsuitable or obstreperous it is not to be curtailed in the absence of overriding reasons of public policy. The security and repose which come from protection of the right to be different in matter of aesthetics, taste, thought, expression and within limits in conduct are not to be cast aside without violating constitutional privileges and immunities. This is not merely a matter of legislative policy, at whatever level. In my view, this pertains to individual rights protected by the Constitution.

Aesthetic factors have always played an important part in zoning, as they have in the licensing of television and radio. Theatre and entertainment, as well as other forms of music, art, philosophy and literature are closely involved in aesthetics, which are not a veneer but are fundamental to the human mind and spirit. Nor are aesthetics confined to landscape gardening, tract development or architectural design. The avoidance by courts, sometimes seemingly to the point of evasion, of sustaining the constitutionality of zoning solely on aesthetic grounds has had its origin in a wholesome fear of allowing government to trespass through aesthetics on the human personality. In this instance, hanging tattered clothing, underwear, rags and scarecrows on a clothesline can scarcely be regarded as articulating a protest against excessive taxation, but to prohibit it by law upon the ground that it offends the aesthetic sensibilities of the neighbors or of the public officials of the municipality means — unless well defined and effectively enforced limits are placed upon this power to rule aesthetics by government — opening the door to the invasion by majority rule of a great deal of territory that belongs to the individual human being. It was once said of a famous lady of history that she had so much taste, and all of it so bad. Individual taste, good or bad, should ordinarily be let alone by government.

In authorizing the regulation of setback lines, yard areas, height of buildings and many permitted uses, the dominant factor has often been and should be aesthetic. But it is important not to allow general or unlimited power in government to regulate aesthetics in zoning or other departments of municipal administration. Extending aesthetic factors to the regulation of clotheslines suggests that zoning power, in the future, may extend to many other types of regulation also, since municipal boards and councils are being authorized in large degree to impose their ideas of aesthetics, and may be expected to do so on an expanding scale to placate the wishes of other property owners who constitute a larger segment of the electorate. Unless clotheslines create traffic or health hazards, it seems, to me that they should not be interfered with by law in suburban or rural areas. More important than this, however, does it seem that extensions of categories of local legislation for purely aesthetic purposes should be defined and limited, and, if they are to be enlarged, it should not be under reasoning which sets no ascertainable bounds to what can be done or attempted under this power.

The judgments of conviction of appellants should be reversed and the charges against them dismissed.

Chief Judge Desmond and Judges D'ye, Burke, Foster and Scileppi concur with Judge Fuld ; Judge Van Voorhis dissents in an opinion. ________

Judgment affirmed! 
      
      . The full text of the ordinance reads in this way (General Ordinance, § 4-3.7):
      “ Clothes lines. No clothes lines, drying racks, poles or other similar devices for hanging clothes, rags or other fabrics shall be erected or maintained in a front yard or side yard abutting a street. If there is a practical difficulty or unnecessary hardship in drying clothes elsewhere on the premises, a permit shall be issued by the City Clerk permitting the use of said front or side yard for such purpose upon approval of and a finding by the Building Inspector that drying of clothes elsewhere on the premises would create a practical difficulty or unnecessary hardship. If a permit is denied, the applicant may appeal to the Board of Appeals of this city. The provisions of this section shall be applicable to existing conditions.”
     
      
      . We merely note that the proof of Mr. Stover’s participation is more than ample to support the conviction. He not only acknowledged, at a public hearing before the Rye City Council, that he had erected the lines as a protest against his taxes and was leaving them there “ until he got some action on his assessment” but he alleged the same thing in a complaint in a declaratory judgment action which he and his wife had instituted against the city.
     