90 Misc. 2d 561 | N.Y. Sup. Ct. | 1977
The plaintiffs seek judgment declaring section 352 of chapter VII of the Ordinances of the City of Buffalo unconstitutional, illegal and void. The ordinance in question prohibits in the broadest possible terms, the use or display within the City of Buffalo of any and all types of "for sale” or "sold” signs or other on-site advertising designed or intended to publicize the availability for purchase, or the sale of certain specified types of residential property.
The complaint alleges multiple causes of action founded
Subsequent to argument and submission of the instant motion, the United States Supreme Court granted certiorari to review the Circuit Court’s afffirmance of the subject legislation in the Linmark case (supra). The purpose, language and sanctions of that legislation being substantially similar to the ordinance here in question, it was agreed that decision of this motion should be withheld pending a presumably determinative pronouncement by the Supreme Court. On May 2 the court held the Willingboro legislation to be in violation of the First Amendment to the United States Constitution (Linmark Assoc. v Willingboro, 431 US 85.) After careful review, I find that decision to be, in fact, determinative of the principal issues raised herein.
Like the municipal legislation of Gary, Indiana, Willingboro, New Jersey, Shaker Heights, Ohio and Oak Park, Michigan (briefs of amici curaie, Linmark Assoc. Township of Willingboro, supra), the Buffalo ordinance represents a reasoned, well-intended effort to eliminate the unscrupulous real estate activities and substantial community damage that are so undeniably associated with racial "blockbusting” and the fear-engendered "panic selling” of residential property by white residents (cf. Barrick Realty v City of Gary, Ind., 354 F Supp 126, affd 491 F2d 161). The proponents of such legislation contend, with good reason, that the display of "sold” and "for sale” signs form an integral part of "blockbusting” activity and constitute unnecessarily visible evidence of neighborhood change and serve to create unfounded, unreasonable fears of diminished property values and neighborhood deterioration
Legislative restraint of free speech is prohibited by the Constitutions of the United States and the State of New York (US Const, 1st Amdt; NY Const, art I, § 8). The latter provides in pertinent part that "Every citizen may freely speak, write, or publish his sentiments on all subjects * * * and no law shall be passed to restrain or abridge the liberty of speech or of the press” (NY Const, supra). This right to speak freely on every subject admittedly extends to and includes all forms and manner of "speech”, however it is spoken, written, published, communicated or conveyed, and clearly includes the right to convey information by means of appropriate signs or other public advertising. This much the defendants admit. They contend, however, that there exists a distinction between commercial communication and "pure” or noncommercial speech and that commercially motivated communications such as "for sale” or "sold” signs enjoy a lesser degree of constitutional protection than that which is afforded conventional, non- commerical speech. Under this supposed exception to the rule of constitutionally guaranteed free speech, a municipality is said to be authorized to regulate and even prohibit such commercial communications as may be deemed to be detrimental to the legitimate interests of the community (cf. Barrick Realty v City of Gary, Ind., supra). But such an exception is unrecognized by our highest court.
Linmark Assoc. v Willingboro (431 US 85, supra) and the earlier cases of Virginia State Bd. of Pharmacy v Virginia Citizens Council (425 US 748) and Bigelow v Virginia (421 US 809) have now made it abundantly clear that any constitutional distinction between commercial and noncommercial speech is more apparent than real. These cases clearly hold that "commercial speech is not 'wholly outside the protection
In holding Willingboro’s ordinance to be unconstitutional, the court withheld comment on whether the en masse exodus of white residents and rapid resegregation of formerly white neighborhoods factually established by the record in Barrick (Barrick Realty v City of Gary, Ind., 491 F2d 161, supra) would constitute such an emergency as was referred to by Mr. Justice Brandéis. The court specifically expressed no view as to the present validity of the Barrick decision (Linmark Assoc. v Willingboro, 431 US 85, 95, n. 9, supra). Even assuming the continued validity of that holding, however, the instant motion must be granted as the defendant city has offered absolutely no factual support of its conclusory allegations concerning "blockbusting”, "panic selling” and other evidentiary criteria upon which the Barrick decision and the city’s position herein are founded. Opposition to an appropriately supported motion for summary judgment must be similarly sup