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


Decided: February 22, 1999

LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, THOMAS R. SULLIVAN and GLORIA GOLDSTEIN, JJ. Kittay, Gold & Gershfeld, P.C., White Plains, N.Y. (David Kittay, Michael Lord, and Barry Gold of counsel), for appellant. James R. Sandner, New York, N.Y. (Conrad W. Lower of counsel), for respondents.

In an action, inter alia, for injunctive relief and a declaration that the defendants have no right to distribute certain literature to private donors of the plaintiff, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), dated December 15, 1997, which denied its motion for a preliminary injunction and granted the defendants' cross motion to dismiss the complaint.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Westchester County, for the entry of a judgment, inter alia, declaring that the defendants may distribute certain literature to the donors of the plaintiff.

 The defendant Greenburgh Eleven Teachers' Union Federation of Teachers, Local 1532 (hereinafter the Union) sent a letter to potential donors of the plaintiff which the plaintiff claims “portrays [it] and the School District as corrupt, racist and engaged in the deliberate suppression of constitutional rights”.   The plaintiff sought, inter alia, a preliminary and permanent injunction enjoining the defendants from interfering with its solicitation of private donations by “directly contacting by mail, telephone, facsimile, or other electronic device * * * any person they have reason to believe to be a private donor that has previously made or intends to make charitable contributions of any kind” concerning it.

 The plaintiff's proposed restriction on the Union constitutes a prior restraint on free speech, and is therefore violative of the First Amendment.   Despite the plaintiff's contention, it is the content of the speech that is involved here.   Regulations of speech which focus on the direct impact of the content of the speech upon the listeners are content-based, subject, therefore, to “the most exacting scrutiny”, and are presumptively invalid (see, Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 99 L.Ed.2d 333;  see also, R.A.V. v. St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305).   The fact that the plaintiff seeks to stifle laudatory speech in addition to what it perceives as critical speech does not render the restriction content-neutral (see, Planned Parenthood Assn./Chicago Area v. Chicago Tr. Auth., 592 F.Supp. 544 (N.D.Ill. 1984), affd. 767 F.2d 1225).

 Before a content-based restriction may be imposed, it must be shown that the restriction is necessary to serve a compelling state interest, and is narrowly tailored to achieve that end (see, Perry Educ. Assn. v. Perry Local Educators Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794).   No compelling state interest is served by banning free speech because of speculation about the financial impact the speech may have on the possible reduction of the plaintiff's services (see, Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 [no prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court] ).

Finally, even if an injunction were proper, the proposed relief is not narrowly tailored to eliminate the exact alleged private wrong.

Accordingly, the Supreme Court did not err in dismissing the second cause of action set forth in the complaint and in denying the plaintiff's motion for a preliminary injunction.   However, we note that since the first cause of action was for a declaratory judgment, the Supreme Court should have directed the entry of a declaration in favor of the defendant (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670, cert. denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).

The plaintiff's remaining contentions are without merit.


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