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Supreme Court, Appellate Division, First Department, New York.

Reverend David KALKE, et al., Petitioners-Respondents-Appellants, v. CITY OF NEW YORK, et al., Respondents-Appellants-Respondents.

Decided: December 30, 1997

Before MURPHY, P.J., and WALLACH, MAZZARELLI and ANDRIAS, JJ. Yueh-Ru Chu, for Petitioners-Respondents-Appellants. Ellen B. Fishman, for Respondents-Appellants-Respondents.

Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered April 2, 1996, which enjoined enforcement of the City's Special Guideline (56 RCNY 1-05[t] ) to the extent that it interfered with petitioners' distribution and demonstration of condoms at their annual outdoor basketball tournament, unanimously modified, on the law, to declare the regulation unconstitutional only insofar as it completely prohibits non-commercial demonstration of any products in City parks, and otherwise affirmed, without costs.

 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, 94 S.Ct. 2727, 2729-2730, 41 L.Ed.2d 842).   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, 109 S.Ct. 2746, 105 L.Ed.2d 661).   In granting this authority, the regulation does not vest the Commissioner with such unbridled discretion as to constitute a prior restraint of expression (cf., City of Lakewood v. Plain Dealer Publ. Co., 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771).   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 520 U.S. 1251, 117 S.Ct. 2408, 138 L.Ed.2d 174), and is therefore unconstitutional in that respect.


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