Percikow v. Morris

Order, entered July 29, 1965, denying petitioner’s application for a permit to hold poetry readings in Washington Square Park, County of New York, unanimously reversed, on the law and on the facts, without costs, and the cause remanded to respondent for reconsideration in accordance herewith and the provisions of the New York City Charter and the Rules and Regulations of the Department of Parks. On this record it would appear that the respondent required submission in advance of “ the type of poetry ” proposed to be read. The Rules and Regulations of the Department of Parks are within constitutional limits because their objective, in the light of the provisions of the New York City Charter (§ 532, subds. 3, 4), is the “ safety, comfort and convenience of the people of the city in their appropriate uses of its public parks.” (People v. Nahman, 298 N. Y. 95, 103.) The petitioner contends that the acts of the respondent are in the nature of censorship. The respondent’s communication of June 3, 1965 is susceptible of that interpretation. It is clear, and the respondent does not otherwise contend, that under the applicable statute and rules “No power to suppress the publication of facts or opinions is thereby conferred ”. (People v. Hass, 299 N. Y. 190, 193; People v. Nahman, supra, pp. 102-103.) Section 21a of the Rules and Regulations of the Department of Parks requires the issuance of a permit and sets forth the grounds 746 upon which it may be refused. Where, as here, there is the suggestion of prior restraint, the respondent has the burden of establishing that his determination is within constitutional limits and towards that end should demonstrate that its objective is within appropriate park purposes. (See Freedman v. Maryland, 380 U. S. 51; Matter of Rockwell v. Morris, 12 A D 2d 272, affd. 10 N Y 2d 721.) On this record the basis for the refusal of the application does not appear. Concur — Botein, P. J., Breitel, Rabin, McNally and Stevens, JJ.