1. A municipal ordinance forbidding distribution in the streets
of printed handbills bearing commercial advertising matter,
held constitutional. P.
316 U. S.
54.
2. A constitutional right to distribute in the streets handbills
of printed commercial advertising matter, contrary to a municipal
ordinance, cannot be acquired by adding to the handbills matter of
possible public interest which, by itself, might be privileged but
which is added with the purpose of evading the prohibition of the
ordinance with respect to the advertising matter. P.
316 U. S.
55.
122 F.2d 511, reversed.
CERTIORARI, 314 U.S. 604, to review a decree which affirmed a
decree,
34 F.
Supp. 596, permanently enjoining the Police Commissioner of the
City of New York from interfering with distribution of respondent's
handbills.
MR. JUSTICE ROBERTS delivered the opinion of the Court.
The respondent, a citizen of Florida, owns a former United
States Navy submarine which he exhibits for profit.
Page 316 U. S. 53
In 1940 he brought it to New York City and moored it at a State
pier in the East River. He prepared and printed a handbill
advertising the boat and soliciting visitors for a stated admission
fee. On his attempting to distribute the bill in the city streets,
he was advised by the petitioner, as Police Commissioner, that this
activity would violate § 318 of the Sanitary Code, which forbids
distribution in the streets of commercial and business advertising
matter, [
Footnote 1] but was
told that he might freely distribute handbills solely devoted to
"information or a public protest."
Respondent thereupon prepared and showed to the petitioner, in
proof form, a double faced handbill. On one side was a revision of
the original, altered by the removal of the statement as to
admission fee but consisting only of commercial advertising. On the
other side was a protest against the action of the City Dock
Department in refusing the respondent wharfage facilities at a city
pier for the exhibition of his submarine, but no commercial
advertising. The Police Department advised that distribution of a
bill containing only the protest would not violate § 318, and would
not be restrained, but that distribution of the double faced bill
was prohibited. The respondent, nevertheless, proceeded with the
printing of his proposed bill and started to distribute it. He was
restrained by the police.
Page 316 U. S. 54
Respondent then brought this suit to enjoin the petitioner from
interfering with the distribution. In his complaint, he alleged
diversity of citizenship; an amount in controversy in excess of
$3,000; the acts and threats of the petitioner under the purported
authority of § 318; asserted a consequent violation of § 1 of the
Fourteenth Amendment of the Constitution, and prayed an injunction.
The District Court granted an interlocutory injunction, [
Footnote 2] and, after trial on a
stipulation from which the facts appear as above recited, granted a
permanent injunction. The Circuit Court of Appeals, by a divided
court, affirmed. [
Footnote
3]
The question is whether the application of the ordinance to the
respondent's activity was, in the circumstances, an
unconstitutional abridgement of the freedom of the press and of
speech.
1. This court has unequivocally held that the streets are proper
places for the exercise of the freedom of communicating information
and disseminating opinion, and that, though the states and
municipalities may appropriately regulate the privilege in the
public interest, they may not unduly burden or proscribe its
employment in these public thoroughfares. We are equally clear 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
Page 316 U. S. 55
highways by the people in fulfillment of the public use to which
streets are dedicated. If the respondent was attempting to use the
streets of New York by distributing commercial advertising, the
prohibition of the code provision was lawfully invoked against his
conduct.
2. The respondent contends that, in truth, he was engaged in the
dissemination of matter proper for public information, nonetheless
so because there was inextricably attached to the medium of such
dissemination commercial advertising matter. The court below
appears to have taken this view, since it adverts to the the
difficulty of apportioning, in a given case, the contents of the
communication as between what is of public interest and what is for
private profit. We need not indulge nice appraisal based upon
subtle distinctions in the present instance, nor assume possible
cases not now presented. It is enough for the present purpose that
the stipulated facts justify the conclusion that the affixing of
the protest against official conduct to the advertising circular
was with the intent, and for the purpose, of evading the
prohibition of the ordinance. 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.
The decree is
Reversed.
[
Footnote 1]
"Handbills, cards and circulars. -- 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 court yard, or on any stoop, or in the
vestibule or any hall of any building, or in a letterbox 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."
[
Footnote 2]
34 F. Supp.
596.
[
Footnote 3]
122 F.2d 511.