208 Misc. 236 | New York City Magistrates' Court | 1954
The defendants are charged with violating section 603-11.0 of chapter 24 of the Administrative Code of the City of New York, which relates to “ Soliciting of contributions in public ” in the city of New York. Subdivision a thereof, which is the only provision pertaining to the issues in this case, reads: “It shall be unlawful for any person, organization, society, association or corporation or their agents or representatives to solicit money, donations of money or property, or financial assistance of any kind upon the streets, in office or business buildings, by house to house canvass, or in public places in the city, except upon a license issued by the commissioner of welfare ”.
It is charged in the complaint that, without being in possession of the foregoing license, defendants have solicited “ money, donations of money or property or financial assistance ” in studio 51, which is a broadcasting studio operated by the Columbia Broadcasting Company in what was formerly a New York City theatre. This studio 51 is still licensed by the appropriate municipal departments for use as a theatre. It is claimed that such solicitation occurred during the televising of a certain national television program known as ‘ ‘ Strike It Rich. ’ ’ Except for the inclusion of television cameras, television sets, broadcasting microphones, broadcasting booths and other equipment used for the broadcasting and televising of programs from the stage of said “ theatre,” studio 51 is arranged for a gathering of a large group of people to witness what occurs on stage. This audience is admitted free of charge by ticket procured from the sponsors of the program or from the Columbia Broadcasting Company, or even without ticket when seats are available. There is no question that the studio audience may be excluded from studio 51 either by the sponsors of the program or by the Columbia Broadcasting Company. If the “Strike It Rich” program were not televised in the presence of a studio audience, it would be necessary for me to dismiss the charge against the defendants without further discussion because of the decision made by the Third Circuit Court of Appeals in 1950 and approved by the Supreme Court of the United States in Allen B. Dumont
Before dealing with those issues it is necessary for me to dispose of one serious contention made by the defendants: that this proceeding was instituted at the direction of the commissioner of welfare of the City of New York because he seeks to force the ‘ ‘ Strike It Rich ’ ’ program ‘ ‘ off the air. ’ ’ Defendants have made reference to a letter from the commissioner to the Federal Communications Commission in which he attacked the ‘1 Strike It Rich ’ ’ program and asked the commission to take action against the continuance of that program. They have also produced an article written by the commissioner, in a nationally read magazine, attacking the value of that program to the general public. They have also urged that various newspapers in this city are doing, without complaint by the commissioner, in essence, in their opinion, what they are doing during the projection of their program — helping people in need.
I am aware of the fact that the commissioner, who is charged with the responsibility of administering to the needy of this city in accordance with modern concepts, namely: with dignity
With respect to defendants’ contention that they are not engaged in solicitation within the meaning of the ordinance: I had a visual demonstration'of the programs which were telecast in the presence of studio audiences — I was shown, by motion pictures, what actually took place at fourteen different telecastings. Those motion pictures were acknowledged by the defendants to constitute an actual representation of what one, in the studio audience, would see on any one of the fourteen different days those telecastings had occurred. Those films showed that the defendant Hull acted as the primary speaker or master
Defendants argue that they did not engage in solicitation of funds because they did not use any words directly asking anyone to send in money or financial assistance of any kind whatsoever. This contention is without merit. The word “ solicit ” as used in the ordinance does not make any distinction between solicitations by oral conduct and solicitations by mute conduct, for when a license is obtained and a licensee uses “ collection boxes or containers ” (subd. e. of the ordinance) he may use them “ in person ” or by “ placing ” them in certain places under certain conditions. Obviously the placement of the container in a permitted location would be ‘ ‘ solicitation ’ ’ without anyone saying a single Avord. But, apart from the foregoing, in the ordinary
The defendants urge that inasmuch as they have the power to exclude the studio audience, the acts committed by them in the presence of such studio audience, do not constitute the solicitation of funds in a “ public place.” Studio 51, is a “ public place ” within the meaning of the current ordinance. There are various types of broadcast studios; some provide few or no facilities for the accommodation of an audience; others provide for a select audience; and others admit their audience indiscriminately. With the increase in the size of the audience, established theatres have been converted into broadcast studios. As such, they must be classified as broadcast theatres with all the characteristics of places to which the public is invited. Theatres, being affected by matters in direct relation to the public welfare, it is necessary that there be local regulation as part of the municipal government’s exercise of its reserved police powers (People ex rel. Burnham v. Flynn, 189 N. Y. 180). Although the studio audience at the fourteen telecastings I viewed could have been refused admission, the sponsors, by admitting the public, converted studio 51 into a public place during the time of the telecastings, even though it contained a temporary assemblage. A public place is one to which members of the public, by general invitation, attend for reasons of entertainment, business, instruction, or the like.
The defendants argue that the Court of Appeals, by its decision in Madison Products Co. v. Coler (242 N. Y. 467, supra), demonstrated that only places which had characteristics as public as “ streets ” were intended to be “ public places ” within the
That brings me, now, to the question of whether the City of New York is precluded from enforcing the ordinance because of the Federal Communications Act (U. S. Code, tit. 47, ch. 5) and the Dumont case (supra). The law is settled that a State is not precluded from exercising its police powers in a matter which might have some effect upon interstate commerce until Congress has evidenced an intent to completely close the field of legislation by comprehensively legislating on the subject itself (Sligh v. Kirkwood, supra; Lake Shore & Mich. South Railway v. Ohio, 173 U. S. 285; People ex rel. Hill v. Hesterberg, 184 N. Y. 126, affd. sub nom. Silz v. Hesterberg, 211 U. S. 31).
In the Sligh case (supra), the Supreme Court of the United States upheld the right of the State of Florida to stop the exportation of fruit in a condition unfit for consumption on the ground that it was in the public interests of the People of the State of Florida to protect their business reputation for growing and selling good, sound fruits. The court further said (p. 60) that the State’s police power might be called into play notwithstanding “ by doing so interstate commerce may be remotely * * * affected ” (emphasis supplied). In support of that holding, it cited its earlier decision in the Hill case (supra). Concerning the Hill case, it wrote (p. 61): “ it was held that the State might punish the sale of imported game during the closed season in New York * * * the law being sustained upon the ground that, while foreign commerce was incidentally affected, the State might prohibit the sale of such game in order to protect local game during the closed season ”. (Emphasis supplied.) Thus, even though interstate commerce is remotely affected or incidentally affected, the State may exercise its police powers — if, of course, the Federal Government has not specifically covered the subject in question. Although the televised program might even be remotely affected or incidentally affected by requiring defendants to obtain a license before soliciting funds in the presence of a studio audience, that, according to the afore-mentioned authorities, is not enough to preclude the City of New York from exercising its police powers in that regard.
In the field of labor-management, as it affects interstate commerce, the National Labor Eelations Act (U. S. Code, tit. 29, ch. 7) is supposed to be comprehensive legislation. Our own Court of Appeals in Goodwins, Inc., v. Hagedorn (303 N. Y. 300), said that the State could exercise its own police power even though the exercise thereof affected interstate commerce, where the question was not covered by the National Labor Eelations Act. While it might be argued that the determination made in the Goodwins case may be subject to attack by reason of the later case of Garner v. Teamsters Union (346 U. S. 485) —it is clear that in the Garner case, the Supreme Court of the United States held that a State might exercise its police power even though in doing so it might be encroaching upon Federal jurisdiction over interstate commerce.
Notwithstanding the statement made in the Dumont case (184 F. 2d 153, supra), to the effect that Congress allegedly pre-empted the field of television, I find nothing in the Federal statute, or in the decisions of the Supreme Court of the United States which precludes State action merely because the defendants are engaged in interstate commerce in the presence of the studio audience. There is no Federal statute or regulation governing the relations between sponsors and a studio audience. That relationship is purely a matter of local concern. It is not a necessary phase of the transit of the program. The exercise of local police powers in reference to it does not impair the telecasting of the program over the airwaves to home viewers. (Regents v. Carroll, 338 U. S. 586.)
The defendants further argue that the enforcement of this ordinance constitutes an impairment of rights guaranteed to them by the First and Fourteenth Amendments of the Federal Constitution. No right of free speech is affected by the requirement that the defendants procure a license to engage in solicita
I find that the defendants, Walter Framer and Warren Hull, by their conduct and actions in relation to the studio audience that was present during the presentation of the television shows violated the provisions of section 603-11.0 of chapter 24 of the Administrative Code of the City of New York.