Opinion
December 30, 1997
Appeal from Supreme Court, New York County (Alice Schlesinger, J.).
Petitioners' distribution and demonstration of condoms, in the context of their peer education program for AIDS/HIV awareness and prevention, constitute expressive conduct sufficiently imbued with elements of communication falling within the protection of the First Amendment ( see, Spence v. Washington, 418 U.S. 405, 409-410). Respondents' regulation, which, inter alia, prohibits the non-commercial distribution of all products and/or materials, other than printed or similarly expressive material, in City parks, without a permit, serves the legitimate governmental purpose of preserving the quality and character of those parks ( see, Ward v. Rock Against Racism, 491 U.S. 781). In granting this authority, the regulation does not vest the Commissioner with such unbridled discretion as to constitute a prior restraint of expression ( cf., Lakewood v. Plain Dealer Publ. Co., 486 U.S. 750). However, insofar as it completely prohibits any demonstration of products in the parks whatsoever, it is broader than what is necessary to further the expressed governmental interest, in effect cutting off an entire medium of expression ( see, Bery v. City of New York, 97 F.3d 689, 697, cert denied ___ US ___, 138 L Ed 2d 174), and is therefore unconstitutional in that respect.
Concur — Murphy P.J., Wallach, Mazzarelli and Andrias, JJ.