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The streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and, 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. It is 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 highways by the people in fulfillment of the public use to which streets are dedicated.
Respondent owned a submarine, which he exhibited for profit. In order to advertise his venture, he prepared for distribution a printed advertisement, which he planned to circulate in the city streets. Respondent was advised by the police commissioner that to do so violated New York City, N.Y., Sanitary Code § 318, but that if the circular consisted solely of a protest against political action it would be not be a violation of the ordinance. Respondent then prepared a two-sided circular, one side of which contained a political protest and the other an advertisement copy. When on a second occasion respondent was advised against distributing the circular, he filed suit to enjoin interference on the basis of U.S. Const. amend. XIV; he was granted the injunction, which was affirmed on appeal. The United States Supreme Court granted a writ of certiorari.
Under the circumstances, was the application of New York City, N.Y., Sanitary Code § 318 to the respondent’s activity an unconstitutional abridgment of the freedom of the press and of speech?
The Court held that the Constitution imposed 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, were matters for legislative judgment. According to the Court, 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. In this case, the Court found that free speech violations could not have occurred because respondent's only purpose in adding the political protest was avoidance of an ordinance. Accordingly, the Court reversed the order prohibiting petitioner's interference with respondent's circulation of an advertising circular on the city streets.