Section 240.20 Disorderly Conduct

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

1. He engages in fighting or in violent, tumultuous or threatening behavior; or
2. He makes unreasonable noise; or
3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or
4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or
5. He obstructs vehicular or pedestrian traffic; or
6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or
7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.

Posted by TAG - July 12, 2006 | Legal Library, Resources

A1 Felonies
150.20 Arson In The First Degree
105.17 Conspiracy In The First Degree
220.21 Criminal Possession Of A Controlled Substance In The First Degree
220.43 Criminal Sale Of A Controlled Substance In The First Degree
135.25 Kidnapping In The First Degree
125.27 Murder In The First Degree
125.25 Murder In The Second Degree
A2 Felonies
220.18 Criminal Possession Of A Controlled Substance In The Second Degree
220.41 Criminal Sale of A Controlled Substance In The Second Degree
B Violent Felonies 120.11 Aggravated assault upon a police officer or police officer
130.70 Aggravated sexual abuse in the first degree
150.15 Arson in the second degree
120.10 Assault in the first degree
140.30 Burglary in the first degree
130.75 Course of sexual conduct against a child in the first degree
265.04 Criminal possession of a weapon in the first degree
265.13 Criminal sale of a firearm in the first degree
265.09 Criminal use of a firearm in the first degree
120.07 Gang assault in the first degree
215.17 Intimidating a victim or witness in the first degree
135.20 Kidnapping in the second degree
125.20 Manslaughter in the first degree
130.35 Rape in the first degree
165.15 Robbery in the first degree
130.50 Sodomy in the first degree
120.11 Aggravated assault upon a police officer or police officer
130.70 Aggravated sexual abuse in the first degree
150.15 Arson in the second degree
120.10 Assault in the first degree
140.30 Burglary in the first degree
130.75 Course of sexual conduct against a child in the first degree
265.04 Criminal possession of a weapon in the first degree
265.13 Criminal sale of a firearm in the first degree
265.09 Criminal use of a firearm in the first degree
120.07 Gang assault in the first degree
215.17 Intimidating a victim or witness in the first degree
135.20 Kidnapping in the second degree
125.20 Manslaughter in the first degree
130.35 Rape in the first degree
165.15 Robbery in the first degree
130.50 Sodomy in the first degree
B Non-Violent Felonies 176.35 Aggravated insurance fraud
200.12 Bribe receiving in the first degree
200.04 Bribery in the first degree
105.15 Conspiracy in the second degree
115.08 Criminal facilitation in the first degree
145.12 Criminal mischief in the first degree
220.16 Criminal possession of a controlled substance in the third degree
165.54 Criminal possession of stolen property in the first degree
220.44 Criminal sale of a controlled substance in or near school grounds
220.39 Criminal sale of a controlled substance in the third degree
155.42 Grand larceny in the first degree
176.30 Insurance fraud in the first degree
230.32 Promoting prostitution in the first degree
215.13 Tampering with a witness in the first degree
158.25 Welfare fraud in the first degree
C Violent Felonies
130.67 Aggravated sexual abuse in the second degree
120.08 Assault on a peace officer, police officer, fireman, or EMT
140.25 Burglary in the second degree
265.03 Criminal possession of a weapon in the second degree
265.12 Criminal sale of a firearm in the second degree
265.14 Criminal sale of a firearm with the aid of a minor
265.08 Criminal use of a firearm in the second degree
120.06 Gang assault in the second degree
160.10 Robbery in the second degree
C Non-Violent Felonies
150.10 Arson in the third degree
200.11 Bribe receiving in the second degree
200.03 Bribery in the second degree
156.27 Computer tampering in the first degree
178.25 Criminal diversion of prescription medications first degree
115.05 Criminal facilitation in the second degree
220.09 Criminal possession of a controlled substance in the fourth degree
170.30 Criminal possession of a forged instrument in the first degree
221.30 Criminal possession of marijuana in the first degree
158.50 Criminal possession of public benefit cards in the first degree
165.52 Criminal possession of stolen property in the second degree
220.34 Criminal sale of a controlled substance in the fourth degree
265.16 Criminal sale of a firearm to a minor
220.65 Criminal sale of a prescription for a controlled substance
221.55 Criminal sale of marijuana in the first degree
100.13 Criminal solicitation in the first degree
190.42 Criminal usury in the first degree
170.15 Forgery in the first degree
155.40 Grand larceny in the second degree
176.25 Insurance fraud in the second degree
125.15 Manslaughter in the second degree
230.30 Promoting prostitution in the second degree
200.27 Receiving reward for official misconduct in the first degree
200.22 Rewarding official misconduct in the first degree
165.73 Trademark counterfeiting in the first degree
263.05 Use of a child in a sexual performance
125.13 Vehicular manslaughter in the first degree
158.20 Welfare fraud in the second degree
D Violent Felonies
125.45 Abortion in the first degree
130.66 Aggravated sexual abuse in the third degree
120.05 Assault in the second degree
130.80 Course of sexual conduct against a child in the second degree
265.02 Criminal possession of a weapon in the third degree
265.11 Criminal sale of a firearm in the third degree
215.16 Intimidating a victim or witness in the second degree
130.65 Sexual abuse in the first degree
D Non-Violent Felonies
215.52 Aggravated criminal contempt
165.11 Auto-stripping in the first degree
215.57 Bail jumping in the first degree
200.45 Bribe giving for public office
215.20 Bribe receiving by a juror
180.25 Bribe receiving by a labor official
215.05 Bribe receiving by a witness
200.50 Bribe receiving for public office
200.10 Bribe receiving in the third degree
200.00 Bribery in the third degree
180.15 Bribery of a labor official
215.19 Bribing a juror
215.00 Bribing a witness
140.20 Burglary in the third degree
135.65 Coercion in the first degree
156.26 Computer tampering in the second degree
105.13 Conspiracy in the third degree
178.20 Criminal diversion of prescription medications second degree
145.10 Criminal mischief in the second degree
220.06 Criminal possession of a controlled substance in the fifth degree
170.25 Criminal possession of a forged instrument in the second degree
170.40 Criminal possession of forgery devices
221.25 Criminal possession of marijuana in the second degree
158.45 Criminal possession of public benefit cards in the second degree
165.50 Criminal possession of stolen property in the third degree
220.31 Criminal sale of a controlled substance in the fifth degree
221.50 Criminal sale of marijuana in the second degree
100.10 Criminal solicitation in the second degree
145.20 Criminal tampering in the first degree
140.17 Criminal trespass in the first degree
220.55 Criminally using drug paraphernalia in the first degree
235.22 Disseminating indecent material to minors in the first degree
260.34 Endangering the welfare of a vulnerable elderly person in the first degree
205.15 Escape in the first degree
170.10 Forgery in the second degree
170.75 Fraudently making of an electronic access device in the second degree
155.35 Grand larceny in the third degree
205.65 Hindering prosecution in the first degree
180.53 Impairing the integrity of a pari-mutuel betting system first
176.20 Insurance fraud in the third degree
235.07 Obscenity in the first degree
195.08 Obstructing governmental administration by means of a self-defense spray device
230.06 Patronizing a prostitute in the first degree
210.15 Perjury in the first degree
263.15 Promoting a sexual performance by a child
263.10 Promoting an obscene sexual performance by a child
205.25 Promoting prison contraband in the first degree
230.25 Promoting prostitution in the third degree
130.30 Rape in the second degree
120.25 Reckless endangerment in the first degree
160.05 Robbery in the third degree
130.45 Sodomy in the second degree
180.40 Sports bribing
120.60 Stalking in the first degree
215.12 Tampering with a witness in the second degree
175.25 Tampering with public records in the first degree
165.08 Unauthorized use of a vehicle in the first degree
120.04 Vehicular assault in the first degree
125.12 Vehicular manslaughter in the second degree
158.15 Welfare fraud in the third degree
E Felonies
260.00 Abandonment of a child
125.40 Abortion in the second degree
205.19 Absconding from a community treatment facility
205.17 Absconding from temporary release in the first degree
120.12 Aggravated assault upon a person less than eleven years old
240.31 Aggravated harassment in the first degree
240.32 Aggravated harassment of an employee by an inmate
150.05 Arson in the fourth degree
165.10 Auto-stripping in the second degree
215.56 Bail jumping in the second degree
145.23 Cemetary desecration in the first degree
180.08 Commercial bribe receiving in the first degree
180.03 Commercial bribing in the first degree
156.25 Computer tampering in the third degree
156.10 Computer trespass
105.10 Conspiracy in the fourth degree
240.15 Criminal anarchy
215.51 Criminal contempt in the first degree
178.15 Criminal diversion of prescription medications third degree
115.01 Criminal facilitation in the third degree
190.26 Criminal impersonation in the first degree
220.46 Criminal injection of a narcotic drug
240.71 Criminal interference with health care services or religious worship in the first degree
145.05 Criminal mischief in the third degree
240.46 Criminal nuisance in the first degree
156.35 Criminal possession of computer-related material
221.20 Criminal possession of marijuana in the third degree
220.60 Criminal possession of precursors of controlled substances
158.40 Criminal possession of public benefit cards in the third degree
165.45 Criminal possession of stolen property in the fourth degree
221.45 Criminal sale of marijuana in the third degree
100.08 Criminal solicitation in the third degree
158.35 Criminal use of a public benefit card in the first degree
190.76 Criminal use of an access device in the first degree
190.40 Criminal usury in the second degree
125.10 Criminally negligent homicide
135.50 Custodial interference in the first degree
195.20 Defrauding the government
235.21 Disseminating indecent material to minors in the second degree
250.05 Eavesdropping
260.32 Endangering the welfare of a vulnerable elderly person in the second degree
205.10 Escape in the second degree
240.60 Falsely reporting an incident in the first degree
175.10 Falsifying business records in the first degree
130.85 Female genital mutilation
170.65 Forgery of a vehicle identification number
155.30 Grand larceny in the fourth degree
241.05 Harassment of a rent regulated tenant
205.60 Hindering prosecution in the second degree
170.70 Illegal possession of a vehicle identification number
180.52 Impairing the integrity of a pari-mutuel betting system second
176.15 Insurance fraud in the fourth degree
215.15 Intimidating a victim or witness in the third degree
175.40 Issuing a false certificate
210.40 Making an apparently sworn false statement in the first degree
120.13 Menacing in the first degree
260.06 Non-support of a child in the first degree
235.06 Obscenity in the second degree
195.07 Obstructing governmental administration in the first degree
175.35 Offering a false instrument for filing in the first degree
230.05 Patronizing a prostitute in the second degree
210.10 Perjury in the second degree
240.62 Placing a false bomb in the first degree
263.16 Possessing a sexual performance by a child
263.11 Possessing an obscene sexual performance by a child
225.20 Possession of gambling records in the first degree
225.10 Promoting gambling in the first degree
130.25 Rape in the third degree
200.25 Receiving reward for official misconduct in the second degree
120.01 Reckless assault of a child by a child day care provider
180.57 Rent gouging in the first degree
200.20 Rewarding official misconduct in the second degree
240.06 Riot in the first degree
190.65 Scheme to defraud in the first degree
130.40 Sodomy in the third degree
180.45 Sports bribe receiving
120.55 Stalking in the second degree
135.55 Substitution of children
145.45 Tampering with a consumer product in the first degree
180.51 Tampering with a sports contest in the first degree
215.11 Tampering with a witness in the third degree
215.40 Tampering with physical evidence
165.72 Trademark counterfeiting in the second degree
165.06 Unauthorized use of a vehicl in the second degree
156.30 Unlawful duplication of computer-related material
215.70 Unlawful grand jury disclosure
135.10 Unlawful imprisonment in the first degree
165.07 Unlawful use of secret scientific material
190.39 Unlawfully concealing a will
170.60 Unlawfully using slugs in the first degree
120.03 Vehicular assault in the second degree
158.10 Welfare fraud in the fourth degree
A Misdemeanors
205.18 Absconding from a furlough program
205.16 Absconding from temporary release in the second degree
240.30 Aggravated harassment in the second degree
120.00 Assault in the third degree
165.09 Auto-stripping in the third degree
215.55 Bail jumping in the third degree
145.22 Cemetary desecration in the second degree
135.60 Coercion in the second degree
180.05 Commercial bribe receiving in the second degree
180.00 Commercial bribing in the second degree
215.45 Compounding a crime
156.20 Computer tampering in the fourth degree
105.05 Conspiracy in the fifth degree
215.50 Criminal contempt in the second degree
215.65 Criminal contempt of a temporary state commission
215.60 Criminal contempt of the legislature
215.66 Criminal contempt of the state commision on judicial conduct
178.10 Criminal diversion of prescription medications fourth degree
115.00 Criminal facilitation in the fourth degree
190.25 Criminal impersonation in the second degree
240.70 Criminal interference with health care services or religious worship in the second degree
145.00 Criminal mischief in the fourth degree
220.03 Criminal possession of a controlled substance in the seventh degree
170.20 Criminal possession of a forged instrument in the third degree
145.70 Criminal possession of a taximeter accelerating device
265.01 Criminal possession of a weapon in the fourth degree
221.15 Criminal possession of marijuana in the fourth degree
165.40 Criminal possession of stolen property in the fifth degree
190.27 Criminal sale of a police uniform
221.40 Criminal sale of marijuana in the fourth degree
100.05 Criminal solicitation in the fourth degree
170.45 Criminal stimulation
145.15 Criminal tampering in the second degree
140.15 Criminal trespass in the second degree
158.30 Criminal use of a public benefit card in the second degree
190.75 Criminal use of an access device in the second degree
220.45 Criminally possessing a hypodermic instrument
220.50 Criminally using drug paraphernalia in the second degree
135.45 Custodial interference in the second degree
240.21 Disruption or disturbance of religious service
250.20 Divulging an eavesdropping warrant
260.10 Endangering the welfare of a child
260.25 Endangering the welfare of an incompetent or physically disabled person
205.05 Escape in the third degree
190.20 False advertising
240.55 Falsely reporting an incident in the second degree
175.05 Falsifying business records in the second degree
170.05 Forgery in the third degree
185.00 Fraud in insolvency
185.05 Fraud involving a security interest
165.30 Fraudulent accosting
185.10 Fraudulent disposition of mortaged property
185.15 Fraudulent disposition of property subject to a conditional sale contract
165.20 Fraudulently obtaining a signature
200.30 Giving unlawful gratuities
195.12 Harming an animal trained to aid a person with a disability in the first degree
120.16 Hazing in the first degree
205.55 Hindering prosecution in the third degree
240.08 Inciting to riot
176.10 Insurance fraud in the fifth degree
175.45 Issuing a false financial statement
165.25 Jostling
195.06 Killing or injuring a police animal
240.37 Loitering for the purpose of engaging in prostitution offense
190.55 Making a false statement of credit terms
210.45 Making a punishable false written statement
210.35 Making an apparently sworn false statement in the second degree
145.60 Making graffiti
265.10 Manufacture, transport, disposition and defacement of weapons and dangerous instruments and appliances
120.14 Menacing in the second degree
165.00 Misapplication of property
215.30 Misconduct by a juror in the first degree
260.30 Misrepresentation by a child day care provider
260.05 Non-support of a child in the second degree
235.05 Obscenity in the third degree
195.15 Obstructing firefighting operations
195.05 Obstructing governmental administration in the second degree
175.30 Offering a false instrument for filing in the second degree
195.00 Official misconduct
230.04 Patronizing a prostitute in the third degree
210.05 Perjury in the third degree
155.25 Petit larceny
240.61 Placing a false bomb in the second degree
225.30 Possession of a gambling device
140.35 Possession of burglar’s tools
250.10 Possession of eavesdropping devices
225.15 Possession of gambling records in the second degree
190.45 Possession of usurious loan records
225.05 Promoting gambling in the second degree
205.20 Promoting prison contraband in the second degree
230.20 Promoting prostitution in the fourth degree
245.11 Public display of offensive sexual material
120.20 Reckless endangerment in the second degree
180.56 Rent gouging in the second degree
205.30 Resisting arrest
240.05 Riot in the second degree
190.60 Scheme to defraud in the second degree
190.70 Scheme to defraud the state by unlawfully selling prescriptions
125.55 Self-abortion in the first degree
130.60 Sexual abuse in the second degree
130.20 Sexual misconduct
120.50 Stalking in the third degree
145.40 Tampering with a consumer product in the second degree
215.25 Tampering with a juror in the first degree
180.50 Tampering with a sports contest in the second degree
215.10 Tampering with a witness in the fourth degree
175.20 Tampering with public records in the second degree
165.15 Theft of services
165.71 Trademark counterfeiting in the third degree
165.05 Unauthorized use of a vehicle in the third degree
156.05 Unauthorized used of a computer
215.80 Unlawful disposition of assets subject to forfeiture
135.05 Unlawful imprisonment in the second degree
165.17 Unlawful use of credit card, debit card or public benefit card
260.20 Unlawfully dealing with a child in the first degree
158.05 Welfare fraud in the fifth degree
B Misdemeanors
130.38 Consensual sodomy
105.00 Conspiracy in the sixth degree
240.45 Criminal nuisance in the second degree
170.47 Criminal possession of an anti-security item
221.10 Criminal possession of marijuana in the fifth degree
221.35 Criminal sale of marijuana in the fifth degree
145.14 Criminal tampering in the third degree
140.10 Criminal trespass in the third degree
250.35 Failing to report criminal communications
250.15 Failure to report wiretapping
190.23 False personation
240.50 Falsely reporting an incident in the third degree
165.35 Fortune telling
240.25 Harassment in the first degree
195.11 Harming an animal trained to aid a person with a disability in the second degree
190.05 Issuing a bad check
240.36 Loitering in the first degree
120.15 Menacing in the third degree
190.35 Misconduct by corporate official
230.03 Patronizing a prostitute in the fourth degree
230.40 Permitting prostitution
145.65 Possession of graffiti instruments
230.00 Prostitution
245.00 Public lewdness
145.25 Reckless endangerment of property
195.10 Refusing to aid a peace or a police officer
180.55 Rent gouging in the third degree
125.50 Self-abortion in the second degree
130.55 Sexual abuse in the third degree
120.45 Stalking in the fourth degree
215.23 Tampering with a juror in the second degree
250.25 Tampering with private communications
240.10 Unlawful assembly
190.50 Unlawful collection practices
215.75 Unlawful disclosure of an indictment
140.40 Unlawful possession of radio devices
260.21 Unlawfully dealing with a child in the second degree
250.30 Unlawfully obtaining communications information
170.55 Unlawfully using slugs in the second degree
Violations
240.40 Appearance in public under the influence of narcotics or a drug other than alcohol
100.00 Criminal solicitation in the fifth degree
240.20 Disorderly conduct
245.01 Exposure of a person
215.58 Failing to respond to an appearance ticket
240.26 Harassment in the second degree
120.17 Hazing in the second degree
240.35 Loitering
215.28 Misconduct by a juror in the second degree
245.05 Offensive exhibition
245.02 Promoting the exposure of a person
140.05 Trespass
265.06 Unlawful possession of a weapon upon school grounds
221.05 Unlawful possession of marijuana
240.65 Unlawful prevention of public access to records
145.30 Unlawfully posting advertisements

The Offense Level

New York State grades felonies from A to E. A is the most serious and E is the least serious. The least serious felony is punishable by more than one year in State Prison. Each felony is also labeled violent or nonviolent. Usually the rating of violence reflects the actual violence involved in the crime but not always. Burglary in the Second Degree, for example, is considered a “violent” crime even though violence has nothing to do with Burglary in the Second Degree.

Criminal History Category

This refers to the criminal history category of the accused.

*No Priors* – If the person in question has no felony convictions ever, that person falls in the “no priors” category. Someone also qualifies for the “no priors” category if he has no felony convictions in the last ten years. The ten years does not begin until the person is released from jail on a previous case. Youthful Offender findings do not count as prior convictions. Felony convictions in other states, the Federal system, or even other countries can be considered convictions in New York. The determination with respect to non-NY convictions can be extremely complex.

*Non-Violent Predicate* – A non violent predicate is a person who has been convicted of a non violent felony within the last ten years.

*Violent Predicate* – A violent predicate is a person who has been convicted of a violent felony within the last ten years.

*Persistent Felony Offenders* – If a person has two or more felony convictions in his past he may be a persistent felony offender and face LIFE in prison.

*Juvenile Offender* – Children 16 and younger can be prosecuted in adult criminal court for certain very serious crimes. Nevertheless, these children do not face the same jail sentences that adults face. We do not address Juvenile Offender sentences in the chart that follows.

*Youthful Offender* – People under 19 years old at the time of the alleged offense are usually eligible for Youthful Offender Treatment. If a person is found to be a “Youthful Offender” the person is not considered to be convicted of a crime by New York State. Also, a Youthful Offender is sentenced according to different rules from adults. A Youthful Offender can receive a maximum sentence of 1 1/3 – 4 years in prison. Youthful Offender treatment does not necessarily prevent the Federal Government from considering it a conviction for Immigration purposes.

Jail Time New York

Level A felonies are not listed here. They are the most serious of crimes for New York and all carry potential LIFE sentences. In the case of murder in the first degree, the potential for the DEATH penalty exists.

No Priors Non Violent Predicate Violent Predicate
B Violent Felony Lowest: 5 years in prison
Highest: 25 years in prison
Lowest: 8 years in prison
Highest: 25 years in prison
Lowest: 10 years in prison
Highest: 25 years in prison
B Non Violent Felony Lowest: 1 – 3 years prison
Highest: 8 1/3 – 25 years prison
Lowest: 4 1/2 – 9 years prison
Highest: 12 1/2 – 25 years
Lowest: 4 1/2 – 9 years prison
Highest: 12 1/2 – 25 years
C Violent Felony Lowest: 3 1/2 years in prison
Highest: 15 years in prison
Lowest: 5 years in prison
Highest: 15 years in prison
Lowest: 7 years in prison
Highest: 15 years in prison
C Non Violent Felony Lowest: No Jail (Probation possible)
Highest: 5 – 15 years in prison
Lowest: 3 – 6 years in prison
Highest: 7 1/2 – 15 years in prison
Lowest: 3 – 6 years in prison
Highest: 7 1/2 – 15 years in prison
D Violent Felony Lowest: 2 years in prison
Highest: 7 years in prison
Lowest: 3 years in prison
Highest: 7 years in prison
Lowest: 5 years in prison
Highest: 7 years in prison
D Non Violent Felony Lowest: No Jail (Probation possible)
Highest: 2 1/3 – 7 years in prison
Lowest: 2 – 4 years in prison
Highest: 3 1/2 – 7 years in prison
Lowest: 2 – 4 years in prison
Highest: 3 1/2 – 7 years in prison
E Violent Felony Lowest: 1 1/2 years in prison
Highest: 4 years in prison
Lowest: 2 years in prison
Highest: 4 years in prison
Lowest: 3 years in prison
Highest: 4 years in prison
E Non Violent Felony Lowest: No Jail
Highest: 1 1/3 – 4 years in prison
Lowest: 1 1/2 – 3 years in prison
Highest: 2 – 4 years in prison
Lowest: 1 1/2 – 3 years in prison
Highest: 2 – 4 years in prison
A Misdemeanor Lowest: No Jail
Highest: 1 year in jail
Lowest: No Jail
Highest: 1 year in jail
Lowest: No Jail
Highest: 1 year in jail
B Misdemeanor Lowest: No Jail
Highest: 90 days in jail
Lowest: No Jail
Highest: 90 days in jail
Lowest: No Jail
Highest: 90 days in jail
Violation Lowest: No Jail
Highest: 15 days in jail
Lowest: No Jail
Highest: 15 days in jail
Lowest: No Jail
Highest: 15 days in jail

U.S. Supreme Court
HEALY v. JAMES, 408 U.S. 169 (1972)
408 U.S. 169
HEALY ET AL. v. JAMES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 71-452.
Argued March 28, 1972
Decided June 26, 1972
Petitioners, seeking to form a local chapter of Students for a Democratic Society (SDS) at a state-supported college, were denied recognition as a campus organization. Recognition would have entitled petitioners to use campus facilities for meetings and to use of the campus bulletin board and school newspaper. The college president denied recognition because he was not satisfied that petitioners’ group was independent of the National SDS, which he concluded has a philosophy of disruption and violence in conflict with the college’s declaration of student rights. Petitioners thereupon brought this action for declaratory and injunctive relief. The District Court first ordered a further administrative hearing, after which the president reaffirmed his prior decision. Approving the president’s judgment, the District Court held that petitioners had failed to show that they could function free from the National SDS and that the college’s refusal to approve the group, which the court found “likely to cause violent acts of disruption,” did not violate petitioners’ associational rights. The Court of Appeals, purporting not to reach the First Amendment issues, affirmed on the ground that petitioners had failed to avail themselves of the due process accorded to them and to meet their burden of complying with the prevailing standards for recognition. Held:

1. The courts erred in (1) discounting the cognizable First Amendment associational interest that petitioners had in furthering their personal beliefs and (2) assuming that the burden was on petitioners to show entitlement to recognition by the college rather than on the college to justify its nonrecognition of the group, once petitioners had made application conformably to college requirements. Pp. 180-185.

2. Insofar as the denial of recognition to petitioners’ group was based on an assumed relationship with the National SDS, or was a result of disagreement with the group’s philosophy, or was a consequence of a fear of disruption, for which there was no support in the record, the college’s decision violated the petitioners’ First Amendment rights. A proper basis for nonrecognition might have [408 U.S. 169, 170] been afforded, however, by a showing that the group refused to comply with a rule requiring them to abide by reasonable campus regulations. Since the record is not clear whether the college has such a rule and, if so, whether petitioners intend to observe it, these issues remain to be resolved. Pp. 185-194.

445 F.2d 1122, reversed and remanded.

POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and DOUGLAS, BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined. BURGER, C. J., filed a concurring opinion, post, p. 195. DOUGLAS, J., filed a separate opinion, post, p. 196. REHNQUIST, J., filed a statement concurring in the result, post, p. 201.

Melvin L. Wulf argued the cause for petitioners. With him on the brief were Eugene Z. DuBose, Jr., Alvin Pudlin, and Sanford Jay Rosen.

F. Michael Ahern, Assistant Attorney General of Connecticut, argued the cause for respondents. With him on the brief was Robert K. Killian, Attorney General.

Briefs of amici curiae urging affirmance were filed by Evelle J. Younger, Attorney General of California, and Donald B. Day, Deputy Attorney General, for the Board of Trustees of California State Colleges; by Frank G. Carrington, Jr., and Alan S. Ganz for Americans for Effective Law Enforcement, Inc.; and by Morris I. Leibman and Philip B. Kurland for the American Association of Presidents of Independent Colleges and Universities.

MR. JUSTICE POWELL delivered the opinion of the Court.

This case, arising out of a denial by a state college of official recognition to a group of students who desired to form a local chapter of Students for a Democratic Society (SDS), presents this Court with questions requiring the application of well-established First Amendment principles. While the factual background of this [408 U.S. 169, 171] particular case raises these constitutional issues in a manner not heretofore passed on by the Court, and only infrequently presented to lower federal courts, our decision today is governed by existing precedent.

As the case involves delicate issues concerning the academic community, we approach our task with special caution, recognizing the mutual interest of students, faculty members, and administrators in an environment free from disruptive interference with the educational process. We also are mindful of the equally significant interest in the widest latitude for free expression and debate consonant with the maintenance of order. Where these interests appear to compete the First Amendment, made binding on the States by the Fourteenth Amendment, strikes the required balance.

I

We mention briefly at the outset the setting in 1969-1970. A climate of unrest prevailed on many college campuses in this country. There had been widespread civil disobedience on some campuses, accompanied by the seizure of buildings, vandalism, and arson. Some colleges had been shut down altogether, while at others files were looted and manuscripts destroyed. SDS chapters on some of those campuses had been a catalytic force during this period. [1]1 Although the causes of campus disruption were many and complex, one of the prime consequences of such activities was the denial of the lawful exercise of First Amendment rights to the majority of students by the few. Indeed, many of the most cherished characteristics long associated with institutions of higher learning appeared to be endangered. Fortunately, [408 U.S. 169, 172] with the passage of time, a calmer atmosphere and greater maturity now pervade our campuses. Yet, it was in this climate of earlier unrest that this case arose.

Petitioners are students attending Central Connecticut State College (CCSC), a state-supported institution of higher learning. In September 1969 they undertook to organize what they then referred to as a “local chapter” of SDS. Pursuant to procedures established by the College, petitioners filed a request for official recognition as a campus organization with the Student Affairs Committee, a committee composed of four students, three faculty members, and the Dean of Student Affairs. The request specified three purposes for the proposed organization’s existence. It would provide “a forum of discussion and self-education for students developing an analysis of American society”; it would serve as “an agency for integrating thought with action so as to bring about constructive changes”; and it would endeavor to provide “a coordinating body for relating the problems of leftist students” with other interested groups on campus and in the community. [2]2 The Committee, while satisfied that the statement of purposes was clear and unobjectionable on its face, exhibited concern over the relationship between the proposed local group and the National SDS organization. In response to inquiries, representatives of the proposed organization stated that they would not affiliate with any national organization and that their group would remain “completely independent.”

In response to other questions asked by Committee members concerning SDS’ reputation for campus disruption, the applicants made the following statements, [408 U.S. 169, 173] which proved significant during the later stages of these proceedings:

“Q. How would you respond to issues of violence as other S. D. S. chapters have?

“A. Our action would have to be dependent upon each issue.

“Q. Would you use any means possible?

“A. No I can’t say that; would not know until we know what the issues are.

. . . . .

“Q. Could you envision the S. D. S. interrupting a class?

“A. Impossible for me to say.”

With this information before it, the Committee requested an additional filing by the applicants, including a formal statement regarding affiliations. The amended application filed in response stated flatly that “CCSC Students for a Democratic Society are not under the dictates of any National organization.” [3]3 At a second hearing before the Student Affairs Committee, the question of relationship with the National organization was raised again. One of the organizers explained that the National SDS was divided into several “factional groups,” that the national-local relationship was a loose one, and that the local organization accepted only “certain ideas” but not all of the National organization’s aims and philosophies.

By a vote of six to two the Committee ultimately approved the application and recommended to the President [408 U.S. 169, 174] of the College, Dr. James, that the organization be accorded official recognition. In approving the application, the majority indicated that its decision was premised on the belief that varying viewpoints should be represented on campus and that since the Young Americans for Freedom, the Young Democrats, the Young Republicans, and the Liberal Party all enjoyed recognized status, a group should be available with which “left wing” students might identify. The majority also noted and relied on the organization’s claim of independence. Finally, it admonished the organization that immediate suspension would be considered if the group’s activities proved incompatible with the school’s policies against interference with the privacy of other students or destruction of property. The two dissenting members based their reservation primarily on the lack of clarity regarding the organization’s independence.

Several days later, the President rejected the Committee’s recommendation, and issued a statement indicating that petitioners’ organization was not to be accorded the benefits of official campus recognition. His accompanying remarks, which are set out in full in the margin, [4]4 indicate several reasons for his action. He [408 U.S. 169, 175] found that the organization’s philosophy was antithetical to the school’s policies, [5]5 and that the group’s independence was doubtful. He concluded that approval should [408 U.S. 169, 176] not be granted to any group that “openly repudiates” the College’s dedication to academic freedom.

Denial of official recognition posed serious problems for the organization’s existence and growth. Its members were deprived of the opportunity to place announcements regarding meetings, rallies, or other activities in the student newspaper; they were precluded from using various campus bulletin boards; and – most importantly – nonrecognition barred them from using campus facilities for holding meetings. This latter disability was brought home to petitioners shortly after the President’s announcement. Petitioners circulated a notice calling a meeting to discuss what further action should be taken in light of the group’s official rejection. The members met at the coffee shop in the Student Center (“Devils’ Den”) but were disbanded on the President’s order since nonrecognized groups were not entitled to use such facilities. [6]6 [408 U.S. 169, 177]

Their efforts to gain recognition having proved ultimately unsuccessful, and having been made to feel the burden of nonrecognition, petitioners resorted to the courts. They filed a suit in the United States District Court for the District of Connecticut, seeking declaratory and injunctive relief against the President of the College, other administrators, and the State Board of Trustees. Petitioners’ primary complaint centered on the denial of First Amendment rights of expression and association arising from denial of campus recognition. The cause was submitted initially on stipulated facts, and, after a short hearing, the judge ruled that petitioners had been denied procedural due process because the President had based his decision on conclusions regarding the applicant’s affiliation which were outside the record before him. The court concluded that if the President wished to act on the basis of material outside the application he must at least provide petitioners a hearing and opportunity to introduce evidence as to their affiliations. 311 F. Supp. 1275, 1279, 1281. While retaining jurisdiction over the case, the District Court ordered respondents to hold a hearing in order to clarify the several ambiguities surrounding the President’s decision. One of the matters to be explored was whether the local organization, true to its repeated affirmations, was in fact independent of the National SDS. Id., at 1282. And if the hearing demonstrated that the two were not separable, the respondents were instructed that they might then review the “aims and philosophy” of the National organization. Ibid. [408 U.S. 169, 178]

Pursuant to the court’s order, the President designated Dean Judd, the Dean of Student Affairs, to serve as hearing officer and a hearing was scheduled. The hearing, which spanned two dates and lasted approximately two hours, added little in terms of objective substantive evidence to the record in this case. Petitioners introduced a statement offering to change the organization’s name from “CCSC local chapter of SDS” to “Students for a Democratic Society of Central Connecticut State College.” They further reaffirmed that they would “have no connection whatsoever to the structure of an existing national organization.” [7]7 Petitioners also introduced the testimony of their faculty adviser to the effect that some local SDS organizations elsewhere were unaffiliated with any national organization. The hearing officer, in addition to introducing the minutes from the two pertinent Student Affairs Committee meetings, also introduced, sua sponte, portions of a transcript of hearings before the United States House of Representatives Internal Security Committee investigating the activities of SDS. Excerpts were offered both to prove that violent and disruptive activities had been attributed to SDS elsewhere and to demonstrate that there existed a national organization that recognized and cooperated with regional and local college campus affiliates. Petitioners did not challenge the asserted existence of a National SDS, nor did they question that it did have a system of affiliations of some [408 U.S. 169, 179] sort. Their contention was simply that their organization would not associate with that network. Throughout the hearing the parties were acting at cross purposes. What seemed relevant to one appeared completely immaterial to the other. This failure of the hearing to advance the litigation was, at bottom, the consequence of a more basic failure to join issue on the considerations that should control the President’s ultimate decision, a problem to which we will return in the ensuing section.

Upon reviewing the hearing transcript and exhibits, the President reaffirmed his prior decision to deny petitioners recognition as a campus organization. The reasons stated, closely paralleling his initial reasons, were that the group would be a “disruptive influence” at CCSC and that recognition would be “contrary to the orderly process of change” on the campus.

After the President’s second statement issued, the case then returned to the District Court, where it was ordered dismissed. The court concluded, first, that the formal requisites of procedural due process had been complied with, second, that petitioners had failed to meet their burden of showing that they could function free from the National organization, and, third, that the College’s refusal to place its stamp of approval on an organization whose conduct it found “likely to cause violent acts of disruption” did not violate petitioners’ associational rights. 319 F. Supp. 113. 116.

Petitioners appealed to the Court of Appeals for the Second Circuit where, by a two-to-one vote, the District Court’s judgment was affirmed. The majority purported not to reach the substantive First Amendment issues on the theory that petitioners had failed to avail themselves of the due process accorded them and had failed to meet their burden of complying with the prevailing standards for recognition. 445 F.2d 1122. 1131-1132. Judge [408 U.S. 169, 180] Smith dissented, disagreeing with the majority’s refusal to address the merits and finding that petitioners had been deprived of basic First Amendment rights. Id., at 1136. This Court granted certiorari and, for the reasons that follow, we conclude that the judgments of the courts below must be reversed and the case remanded for reconsideration.

< align="center"p> IIAt the outset we note that state colleges and universities are not enclaves immune from the sweep of the First Amendment. “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent School District, [8]393 U.S. 503, 506 (1969). Of course, as Mr. Justice Fortas made clear in Tinker, First Amendment rights must always be applied “in light of the special characteristics of the . . . environment” in the particular case. Ibid. And, where state-operated educational institutions are involved, this Court has long recognized “the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.” Id., at 507. Yet, the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Shelton v. Tucker, [9]364 U.S. 479, 487 (1960). The college classroom with its surrounding environs is peculiarly the “`marketplace of ideas,'” and we break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic [408 U.S. 169, 181] freedom. Keyishian v. Board of Regents, [10]385 U.S. 589, 603 (1967); Sweezy v. New Hampshire, [11]354 U.S. 234, 249 -250 (1957) (plurality opinion of Mr. Chief Justice Warren), 262 (Frankfurter, J., concurring in result).

Among the rights protected by the First Amendment is the right of individuals to associate to further their personal beliefs. While the freedom of association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly, and petition. See, e. g., Baird v. State Bar of Arizona, [12]401 U.S. 1, 6 (1971); NAACP v. Button, [13]371 U.S. 415, 430 (1963); Louisiana ex rel. Gremillion v. NAACP, [14]366 U.S. 293, 296 (1961); NAACP v. Alabama ex rel. Patterson, [15]357 U.S. 449 (1958) (Harlan, J., for a unanimous Court). There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right. The primary impediment to free association flowing from nonrecognition is the denial of use of campus facilities for meetings and other appropriate purposes. The practical effect of nonrecognition was demonstrated in this case when, several days after the President’s decision was announced, petitioners were not allowed to hold a meeting in the campus coffee shop because they were not an approved group.

Petitioners’ associational interests also were circumscribed by the denial of the use of campus bulletin boards and the school newspaper. If an organization is to remain a viable entity in a campus community in which new students enter on a regular basis, it must possess the means of communicating with these students. Moreover, the organization’s ability to participate in the intellectual give and take of campus debate, and to pursue its stated purposes, is limited by denial of access to the customary media for communicating with the administration, [408 U.S. 169, 182] faculty members, and other students. [16]8 Such impediments cannot be viewed as insubstantial.

Respondents and the courts below appear to have taken the view that denial of official recognition in this case abridged no constitutional rights. The District Court concluded that

“President James’ discretionary action in denying this application cannot be legitimately magnified and distorted into a constitutionally cognizable interference with the personal ideas or beliefs of any segment of the college students; neither does his action deter in any material way the individual advocacy of their personal beliefs; nor can his action be reasonably construed to be an invasion of, or having a chilling effect on academic freedom.” 319 F. Supp., at 116.

In that court’s view all that was denied petitioners was the “administrative seal of official college respectability.” [17]9 Ibid. A majority of the Court of Appeals agreed that petitioners had been denied only the “college’s stamp of approval.” 445 F.2d, at 1131. Respondents take that same position here, arguing that petitioners still may meet as a group off campus, that [408 U.S. 169, 183] they still may distribute written material off campus, and that they still may meet together informally on campus – as individuals, but not as CCSC-SDS.

We do not agree with the characterization by the courts below of the consequences of nonrecognition. We may concede, as did Mr. Justice Harlan in his opinion for a unanimous Court in NAACP v. Alabama ex rel. Patterson, [18]357 U.S., at 461 , that the administration “has taken no direct action . . . to restrict the rights of [petitioners] to associate freely . . . .” But the Constitution’s protection is not limited to direct interference with fundamental rights. The requirement in Patterson that the NAACP disclose its membership lists was found to be an impermissible, though indirect, infringement of the members’ associational rights. Likewise, in this case, the group’s possible ability to exist outside the campus community does not ameliorate significantly the disabilities imposed by the President’s action. We are not free to disregard the practical realities. MR. JUSTICE STEWART has made the salient point: “Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.” Bates v. City of Little Rock, [19]361 U.S. 516, 523 (1960). See also Sweezy v. New Hampshire, [20]354 U.S., at 263 (Frankfurter, J., concurring in result); Watkins v. United States, [21]354 U.S. 178, 197 (1957).

The opinions below also assumed that petitioners had the burden of showing entitlement to recognition by the College. [22]10 While petitioners have not challenged the procedural requirement that they file an application in conformity with the rules of the College, [23]11 they do [408 U.S. 169, 184] question the view of the courts below that final rejection could rest on their failure to convince the administration that their organization was unaffiliated with the National SDS. For reasons to be stated later in this opinion, we do not consider the issue of affiliation to be a controlling one. But, apart from any particular issue, once petitioners had filed an application in conformity with the requirements, the burden was upon the College administration to justify its decision of rejection. See, e. g., Law Students Civil Rights Research Council v. Wadmond, [24]401 U.S. 154, 162 -163 (1971); United States v. O’Brien, [25]391 U.S. 367, 376 -377 (1968); Speiser v. Randall, [26]357 U.S. 513 (1958). It is to be remembered that the effect of the College’s denial of recognition was a form of prior restraint, denying to petitioners’ organization the range of associational activities described above. While a college has a legitimate interest in preventing disruption on the campus, which under circumstances requiring the safeguarding of that interest may justify such restraint, a “heavy burden” rests on the college to demonstrate the appropriateness of that action. See Near v. Minnesota, [27]283 U.S. 697, 713 -716 (1931); Organization for a Better Austin v. Keefe, [28]402 U.S. 415, 418 (1971); Freedman v. Maryland, [29]380 U.S. 51, 57 (1965).

< align="center"p> IIIThese fundamental errors – discounting the existence of a cognizable First Amendment interest and misplacing [408 U.S. 169, 185] the burden of proof – require that the judgments below be reversed. But we are unable to conclude that no basis exists upon which nonrecognition might be appropriate. Indeed, based on a reasonable reading of the ambiguous facts of this case, there appears to be at least one potentially acceptable ground for a denial of recognition. Because of this ambiguous state of the record we conclude that the case should be remanded, and, in an effort to provide guidance to the lower courts upon reconsideration, it is appropriate to discuss the several bases of President James’ decision. Four possible justifications for nonrecognition, all closely related, might be derived from the record and his statements. Three of those grounds are inadequate to substantiate his decision: a fourth, however, has merit.

< align="center"p> AFrom the outset the controversy in this case has centered in large measure around the relationship, if any, between petitioners’ group and the National SDS. The Student Affairs Committee meetings, as reflected in its minutes, focused considerable attention on this issue; the court-ordered hearing also was directed primarily to this question. Despite assurances from petitioners and their counsel that the local group was in fact independent of the National organization, it is evident that President James was significantly influenced by his apprehension that there was a connection. Aware of the fact that some SDS chapters had been associated with disruptive and violent campus activity, he apparently considered that affiliation itself was sufficient justification for denying recognition. [30]12

Although this precise issue has not come before the Court heretofore, the Court has consistently disapproved [408 U.S. 169, 186] governmental action imposing criminal sanctions or denying rights and privileges solely because of a citizen’s association with an unpopular organization. See, e. g., United States v. Robel, [31]389 U.S. 258 (1967); Keyishian v. Board of Regents, [32]385 U.S., at 605 -610; Elfbrandt v. Russell, [33]384 U.S. 11 (1966); Scales v. United States, [34]367 U.S. 203 (1961). In these cases it has been established that “guilt by association alone, without [establishing] that an individual’s association poses the threat feared by the Government,” is an impermissible basis upon which to deny First Amendment rights. United States v. Robel, supra, at 265. The government has the burden of establishing a knowing affiliation with an organization possessing unlawful aims and goals, and a specific intent to further those illegal aims. [35]13

Students for a Democratic Society, as conceded by the College and the lower courts, is loosely organized, having various factions and promoting a number of diverse social and political views, only some of which call for unlawful action. [36]14 Not only did petitioners proclaim their complete independence from this organization, [37]15 but they also [408 U.S. 169, 187] indicated that they shared only some of the beliefs its leaders have expressed. [38]16 On this record it is clear that the relationship was not an adequate ground for the denial of recognition.

< align="center"p> BHaving concluded that petitioners were affiliated with, or at least retained an affinity for, National SDS, President James attributed what he believed to be the philosophy of that organization to the local group. He characterized the petitioning group as adhering to “some of the major tenets of the national organization,” including a philosophy of violence and disruption. [39]17 Understandably, he found that philosophy abhorrent. In an article signed by President James in an alumni periodical, and made a part of the record below, he announced his unwillingness to “sanction an organization that openly advocates the destruction of the very ideals and freedoms upon which the academic life is founded.” He further emphasized that the petitioners’ “philosophies” were “counter to the official policy of the college.”

The mere disagreement of the President with the group’s philosophy affords no reason to deny it recognition. As repugnant as these views may have been, especially to one with President James’ responsibility, the mere expression of them would not justify the denial of First Amendment rights. Whether petitioners did in fact advocate a philosophy of “destruction” thus becomes immaterial. The College, acting here as the instrumentality of the State, may not restrict speech or association simply because it finds the views expressed [408 U.S. 169, 188] by any group to be abhorrent. As Mr. Justice Black put it most simply and clearly:

“I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.” Communist Party v. SACB, [40]367 U.S. 1, 137 (dissenting opinion) (1961).

< align="center"p> CAs the litigation progressed in the District Court, a third rationale for President James’ decision – beyond the questions of affiliation and philosophy – began to emerge. His second statement, issued after the court-ordered hearing, indicates that he based rejection on a conclusion that this particular group would be a “disruptive influence at CCSC.” This language was underscored in the second District Court opinion. In fact, the court concluded that the President had determined that CCSC-SDS’ “prospective campus activities were likely to cause a disruptive influence at CCSC.” 319 F. Supp., at 116.

If this reason, directed at the organization’s activities rather than its philosophy, were factually supported by the record, this Court’s prior decisions would provide a basis for considering the propriety of nonrecognition. The critical line heretofore drawn for determining the permissibility of regulation is the line between mere advocacy and advocacy “directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action.” Brandenburg v. Ohio, [41]395 U.S. 444, 447 (1969) (unanimous per curiam opinion). See also Scales v. United States, [42]367 U.S., at 230 -232; Noto v. United States, [43]367 U.S. 290, 298 (1961); [408 U.S. 169, 189] Yates v. United States, [44]354 U.S. 298 (1957). In the context of the “special characteristics of the school environment,” [45]18 the power of the government to prohibit “lawless action” is not limited to acts of a criminal nature. Also prohibitable are actions which “materially and substantially disrupt the work and discipline of the school.” Tinker v. Des Moines Independent School District, [46]393 U.S., at 513 . Associational activities need not be tolerated where they infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education.

The “Student Bill of Rights” at CCSC, upon which great emphasis was placed by the President, draws precisely this distinction between advocacy and action. It purports to impose no limitations on the right of college student organizations “to examine and discuss all questions of interest to them.” (Emphasis supplied.) But it also states that students have no right (1) “to deprive others of the opportunity to speak or be heard,” (2) “to invade the privacy of others,” (3) “to damage the property of others,” (4) “to disrupt the regular and essential operation of the college,” or (5) “to interfere with the rights of others,” [47]19 The line between permissible speech and impermissible conduct tracks the constitutional requirement, and if there were an evidential basis to support the conclusion that CCSC-SDS posed a substantial threat of material disruption in violation of that command the President’s decision should be affirmed. [48]20 [408 U.S. 169, 190]

The record, however, offers no substantial basis for that conclusion. The only support for the view expressed by the President, other than the reputed affiliation with National SDS, is to be found in the ambivalent responses offered by the group’s representatives at the Student Affairs Committee hearing, during which they stated that they did not know whether they might respond to “issues of violence” in the same manner that other SDS chapters had on other campuses. Nor would they state unequivocally that they could never “envision . . . interrupting a class.” Whatever force these statements might be thought to have is largely dissipated by the following exchange between petitioners’ counsel and the Dean of Student Affairs during the court-ordered hearing:

Counsel: “. . . I just read the document that you’re offering [minutes from Student Affairs Committee meeting] and I can’t see that there’s anything in it that intimates that these students contemplate any illegal or disruptive practice.”

Dean: “No. There’s no question raised to that, counselor . . . .” App. 73-74.

Dean Judd’s remark reaffirms, in accord with the full record, that there was no substantial evidence that these particular individuals acting together would constitute [408 U.S. 169, 191] a disruptive force on campus. Therefore, insofar as nonrecognition flowed from such fears, it constituted little more than the sort of “undifferentiated fear or apprehension of disturbance [which] is not enough to overcome the right to freedom of expression.” Tinker v. Des Moines Independent School District, [49]393 U.S., at 508 .

align=”center”D

These same references in the record to the group’s equivocation regarding how it might respond to “issues of violence” and whether it could ever “envision . . . interrupting a class,” suggest a fourth possible reason why recognition might have been denied to these petitioners. These remarks might well have been read as announcing petitioners’ unwillingness to be bound by reasonable school rules governing conduct. The College’s Statement of Rights, Freedoms, and Responsibilities of Students contains, as we have seen, an explicit statement with respect to campus disruption. The regulation, carefully differentiating between advocacy and action, is a reasonable one, and petitioners have not questioned it directly. [50]21 Yet their statements raise considerable question whether they intend to abide by the prohibitions contained therein. [51]22 [408 U.S. 169, 192]

As we have already stated in Parts B and C, the critical line for First Amendment purposes must be drawn between advocacy, which is entitled to full protection, and action, which is not. Petitioners may, if they so choose, preach the propriety of amending or even doing away with any or all campus regulations. They may not, however, undertake to flout these rules. MR. JUSTICE BLACKMUN, at the time he was a circuit judge on the Eighth Circuit, stated:

“We . . . hold that a college has the inherent power to promulgate rules and regulations; that it has the inherent power properly to discipline; that it has power appropriately to protect itself and its property; that it may expect that its students adhere to generally accepted standards of conduct.” Esteban v. Central Missouri State College, 415 F.2d 1077, 1089 (CA8 1969), cert. denied, [52]398 U.S. 965 (1970).

Just as in the community at large, reasonable regulations with respect to the time, the place, and the manner in which student groups conduct their speech-related [408 U.S. 169, 193] activities must be respected. [53]23 A college administration may impose a requirement, such as may have been imposed in this case, that a group seeking official recognition affirm in advance its willingness to adhere to reasonable campus law. Such a requirement does not impose an impermissible condition on the students’ associational rights. Their freedom to speak out, to assemble, or to petition for changes in school rules is in no sense infringed. It merely constitutes an agreement to conform with reasonable standards respecting conduct. This is a minimal requirement, in the interest of the entire academic community, of any group seeking the privilege of official recognition.

Petitioners have not challenged in this litigation the procedural or substantive aspects of the College’s requirements governing applications for official recognition. Although the record is unclear on this point, CCSC may have, among its requirements for recognition, a rule that prospective groups affirm that they intend to comply with reasonable campus regulations. Upon remand it should first be determined whether the College recognition procedures contemplate any such requirement. If so, it should then be ascertained whether petitioners intend to comply. Since we do not have the terms of a specific prior affirmation rule before us, we are not called on to decide whether any particular formulation would or would not prove constitutionally acceptable. Assuming the existence of a valid rule, however, we do conclude that the benefits of participation in the internal life of the college community may be denied to any [408 U.S. 169, 194] group that reserves the right to violate any valid campus rules with which it disagrees. [54]24

< align="center"p> IVWe think the above discussion establishes the appropriate framework for consideration of petitioners’ request for campus recognition. Because respondents failed to accord due recognition to First Amendment principles, the judgments below approving respondents’ denial of recognition must be reversed. Since we cannot conclude from this record that petitioners were willing to abide by reasonable campus rules and regulations, we order the case remanded for reconsideration. We note, in so holding, that the wide latitude accorded by the Constitution to the freedoms of expression and association is not without its costs in terms of the risk to the maintenance of civility and an ordered society. Indeed, this latitude often has resulted, on the campus and elsewhere, in the infringement of the rights of others. Though we deplore the tendency of some to abuse the very constitutional privileges they invoke, and although the infringement of rights of others certainly should not be tolerated, we reaffirm this Court’s dedication to the principles of the Bill of Rights upon which our vigorous and free society is founded.

Reversed and remanded.

Footnotes

[ [55]Footnote 1 ] See Report of the President’s Commission on Campus Unrest (1970); Report of the American Bar Association Commission on Campus Government and Student Dissent (1970).

[ [56]Footnote 2 ] The statement of purposes is set out as an Appendix to the Second Circuit’s opinion and appears following the dissent thereto. 445 F.2d 1122, 1135-1139 (1971).

[ [57]Footnote 3 ] 445 F.2d, at 1133. During the Committee’s consideration of petitioners’ application, one of the group’s representatives was asked why, if it indeed desired to remain independent, it chose to use a nationally known name. The witness’ response was that “the name brings to mind the type of organization we wish to bring across, that is, a left-wing organization which will allow students interested in such to express themselves.”

[ [58]Footnote 4 ] The President stated:

“Though I have full appreciation for the action of the Student Affairs Committee and the reasons stated in their minutes for the majority vote recommending approval of a local chapter of Students for a Democratic Society, it is my judgment that the statement of purpose to form a local chapter of Students for a Democratic Society carries full and unmistakable adherence to at least some of the major tenets of the national organization, loose and divided though that organization may be. The published aims and philosophy of the Students for a Democratic Society, which include disruption and violence, are contrary to the approved policy (by faculty, students, and administration) of Central Connecticut State College which states:

“`Students do not have the right to invade the privacy of others, to damage the property of others, to disrupt the regular and essential [408 U.S. 169, 175] operation of the college, or to interfere with the rights of others.’

“The further statement on the request for recognition that `CCSC Students for a Democratic Society are not under the dictates of any National organization’ in no way clarifies why if a group intends to follow the established policy of the college, they wish to become a local chapter of an organization which openly repudiates such a policy.

“Freedom of speech, academic freedom on the campus, the freedom of establishing an open forum for the exchange of ideas, the freedoms outlined in the Statement on Rights, Freedoms, and Responsibilities of Students that `college students and student organizations shall have the right to examine and discuss all questions of interest to them, to express opinion publicly and privately, and to support causes by orderly means. They may organize public demonstrations and protest gatherings and utilize the right of petition’ – these are all precious freedoms that we cherish and are freedoms on which we stand. To approve any organization or individual who joins with an organization which openly repudiates those principles is contrary to those freedoms and to the approved `Statement on the Rights, Freedoms, and Responsibilities of Students’ at Central.” App. 15-16.

[ [59]Footnote 5 ] In 1969, CCSC adopted, as have many other colleges and universities, a Statement on Rights, Freedoms and Responsibilities of Students. This statement, commonly referred to as the “Student Bill of Rights,” is printed as an Appendix to the Second Circuit’s majority opinion in this case, 445 F.2d, at 1135-1139, see n. 2, supra. Part V of that statement establishes the standards for approval of campus organizations and imposes several basic limitations on their campus activities:

“A Care shall be taken in the establishment and organization of campus groups so that the basic rights, freedoms and responsibilities of students will be preserved.

“B. Student organizations shall submit a clear statement of purpose, criteria for membership, rules of procedures and a list of officers as a condition of institutional recognition. They shall not be required to submit a membership list as a condition of institutional recognition.

“C. Membership in campus organizations shall be limited to [408 U.S. 169, 176] matriculated students (day or evening) at the college. Membership shall not be restricted by race, religion or nationality. The members shall have sole power to determine organization policy consistent with the regulations of the college.

“D. Each organization is free to choose its own adviser. Advisers to organizations shall advise but not control the organizations and their policies.

“E. College students and student organizations shall have the right to examine and discuss all questions of interest to them, to express opinion publicly and privately, and to support causes by orderly means. They may organize public demonstrations and protest gatherings and utilize the right of petition. Students do not have the right to deprive others of the opportunity to speak or be heard, to invade the privacy of others, to damage the property of others, to disrupt the regular and essential operation of the college, or to interfere with the rights of others.”

[ [60]Footnote 6 ] During the meeting petitioners were approached by two of the College’s deans, who served petitioners with a memorandum from the President stating:

“Notice has been received by this office of a meeting of the [408 U.S. 169, 177] `C. C. S. C.-S. D. S. on Thursday – November 6 at 7:00 p. m. at the Devils’ Den.’

“Such meeting may not take place in the Devils’ Den of the Student Center nor in or on any other property of the college since the C. C. S. C.-S. D. S. is not a duly recognized college organization.

“You are hereby notified by this action to cease and desist from meeting on college property.”

[ [61]Footnote 7 ] 319 F. Supp. 113, 114 (1970). The hearing officer, over petitioners’ objection, ruled that the statement was inadmissible, apparently on the ground that it would constitute an amendment to the original application and would be beyond the permissible scope of the hearing. Whatever the merits of this ruling, the statement was in the record reviewed by the President and was relied on in the subsequent District Court opinion without reference to its prior exclusion. Ibid.

[ [62]Footnote 8 ] It is unclear on this record whether recognition also carries with it a right to seek funds from the school budget. Petitioners’ counsel at oral argument indicated that official recognition entitled the group to “make application for use of student funds.” Tr. of Oral Arg. 4. The first District Court opinion, however, states flatly that “[r]ecognition does not thereby entitle an organization to college financial support.” 311 F. Supp. 1275, 1277. Since it appears that, at the least, recognition only entitles a group to apply for funds, and since the record is silent as to the criteria used in allocating such funds, we do not consider possible funding as an associational aspect of nonrecognition in this case.

[ [63]Footnote 9 ] These statements are in contrast to the first opinion by the District Court, which reflected a full appreciation of the constitutional significance of petitioners’ claim. 311 F. Supp., at 1280-1282.

[ [64]Footnote 10 ] 445 F.2d, at 1131; 319 F. Supp., at 116.

[ [65]Footnote 11 ] The standards for official recognition require applicants to provide a clear statement of purposes, criteria for membership, rules of procedure, and a list of officers. Applicants must limit membership [408 U.S. 169, 184] to “matriculated students” and may not discriminate on the basis of race, religion or nationality. The standards further state that groups may “examine and discuss all questions of interest,” and they may conduct demonstrations and utilize their right of petition, but they are prohibited from interfering with the rights of other students. See n. 5, supra. Petitioners have not challenged these standards and their validity is not here in question.

[ [66]Footnote 12 ] See n. 4, supra, for the complete text of the President’s statement.

[ [67]Footnote 13 ] In addition to the cases cited in the text above, see also Law Students Civil Rights Research Council v. Wadmond, [68]401 U.S. 154, 164 -166 (1971); In re Stolar, [69]401 U.S. 23, 28 (1971); Aptheker v. Secretary of State, [70]378 U.S. 500 (1964); Noto v. United States, [71]367 U.S. 290, 299 -300 (1961).

[ [72]Footnote 14 ] See Hearings before a Subcommittee of the House Committee on Appropriations, 92d Cong., 2d Sess., pt. 1, p. 916 (1972), in which the former Director of the Federal Bureau of Investigation, J. Edgar Hoover, stated that while violent factions have spun off from SDS, its present leadership is “critical of bombing and violence.”

[ [73]Footnote 15 ] Petitioners asserted their independence both orally and in a written submission before the Student Affairs Committee. They restated their nonaffiliation in a formal statement filed prior to the court-ordered hearing. The only indication to the contrary is their unwillingness to eschew use of the SDS name altogether. But see n. 3, supra.

[ [74]Footnote 16 ] Representatives of the group stated during the Student Affairs Committee meetings that they did not identify with all of the National’s statements, but wished simply to “pick . . . certain ideas” from that organization.

[ [75]Footnote 17 ] See n. 4, supra.

[ [76]Footnote 18 ] Tinker v. Des Moines Independent School District, [77]393 U.S. 503, 506 (1969).

[ [78]Footnote 19 ] See n. 5, supra.

[ [79]Footnote 20 ] It may not be sufficient merely to show the existence of a legitimate and substantial state interest. Where state action designed to regulate prohibitable action also restricts associational rights – as nonrecognition does – the State must demonstrate that the action [408 U.S. 169, 190] taken is reasonably related to protection of the State’s interest and that “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” United States v. O’Brien, [80]391 U.S. 367, 377 (1968). See also NAACP v. Alabama ex rel. Flowers, [81]377 U.S. 288 (1964); Gibson v. Florida Legislative Investigation Committee, [82]372 U.S. 539, 546 (1963); NAACP v. Alabama ex rel. Patterson, [83]357 U.S. 449 (1958). On this record, absent a showing of any likelihood of disruption or unwillingness to recognize reasonable rules governing campus conduct, it is not necessary for us to decide whether denial of recognition is an appropriately related and narrow response.

[ [84]Footnote 21 ] See n. 5, supra.

[ [85]Footnote 22 ] The Court of Appeals found that petitioners “failed candidly to respond to inquiries whether they would resort to violence and disruption on the CCSC campus, including interruption of classes.” 445 F.2d, at 1131. While petitioners’ statements may be read as intimating a rejection of reasonable regulations in advance, there is in fact substantial ambiguity on this point. The questions asked by members of the Student Affairs Committee do not appear to have been propounded with any clear distinction in mind between that which the petitioners might advocate and the conduct in which they might engage. Nor did the Student Affairs Committee attempt to obtain a clarification of the petitioners’ ambiguous answers by [408 U.S. 169, 192] asking specifically whether the group was willing to abide by the Student Bill of Rights governing all campus organizations.

Moreover, this question was not among those referred by the District Court to the administrative hearing, and it was there addressed only tangentially. The group members who had made statements before the Student Affairs Committee did not testify, and their position was not clarified. Their counsel, whose tactics were characterized as “disruptive” by the Court of Appeals, elected to make argumentative statements rather than elicit relevant testimony. Id., at 1126. Indeed, the District Court’s failure to identify the question of willingness to abide by the College’s rules and regulations as a significant subject of inquiry, coupled with the equivocation on the part of the group’s representatives, lends support to our view that a remand is necessary.

[ [86]Footnote 23 ] See, e. g., Adderley v. Florida, [87]385 U.S. 39, 47 -48 (1966); Cox v. Louisiana, [88]379 U.S. 536, 558 (1965); Louisiana ex rel. Gremillion v. NAACP, [89]366 U.S. 293, 297 (1961).

[ [90]Footnote 24 ] In addition to the College administration’s broad rulemaking power to assure that the traditional academic atmosphere is safeguarded, it may also impose sanctions on those who violate the rules. We find, for instance, that the Student Affairs Committee’s admonition to petitioners in this case suggests one permissible practice – recognition, once accorded, may be withdrawn or suspended if petitioners fail to respect campus law. See, e. g., University of Southern Mississippi Chapter of Mississippi Civil Liberties Union v. University of Southern Mississippi, 452 F.2d 564 (CA5 1971); American Civil Liberties Union v. Radford College, 315 F. Supp. 893 (WD Va. 1970). [408 U.S. 169, 195]

MR. CHIEF JUSTICE BURGER, concurring.

I am in agreement with what is said in the Court’s opinion and I join in it. I do so because I read the basis of the remand as recognizing that student organizations seeking the privilege of official campus recognition must be willing to abide by valid rules of the institution applicable to all such organizations. This is a reasonable condition insofar as it calls for the disavowal of resort to force, disruption, and interference with the rights of others.

The District Judge was troubled by the lack of a comprehensive procedural scheme that would inform students of the steps to be taken to secure recognized standing, and by the lack of articulated criteria to be used in evaluating eligibility for recognition. It was for this reason, as I read the record, that he remanded the matter to the college for a factual inquiry and for a more orderly processing in a de novo hearing within the college administrative structure. It is within that structure and within the academic community that problems such as these should be resolved. The courts, state or federal, should be a last resort. Part of the educational experience of every college student should be an experience in responsible self-government and this must be a joint enterprise of students and faculty. It should not be imposed unilaterally from above, nor can the terms of the relationship be dictated by students. Here, in spite of the wisdom of the District Court in sending the case back to the college, the issue identified by the Court’s opinion today was not adequately addressed in the hearing.

The relatively placid life of the college campus of the past has not prepared either administrators or students for their respective responsibilities in maintaining an atmosphere in which divergent views can be asserted [408 U.S. 169, 196] vigorously, but civilly, to the end that those who seek to be heard accord the same right to all others. The “Statement on Rights, Freedoms and Responsibilities of Students,” sometimes called the “Student Bill of Rights,” in effect on this campus, and not questioned by petitioners, reflected a rational adjustment of the competing interests. But it is impossible to know from the record in this case whether the student group was willing to acknowledge an obligation to abide by that “Bill of Rights.”

Against this background, the action of the Court in remanding on this issue is appropriate.

MR. JUSTICE DOUGLAS.

While I join the opinion of the Court, I add a few words.

As Dr. Birenbaum [91]* says, the status quo of the college or university is the governing body (trustees or overseers), administrative officers, who include caretakers, and the police, and the faculty. Those groups have well-defined or vaguely inferred values to perpetuate. The customary technique has been to conceive of the minds of students as receptacles for the information which the faculty have garnered over the years. Education is commonly thought of as the process of filling the receptacles with what the faculty in its wisdom deems fit and proper.

Many, inside and out of faculty circles, realize that one of the main problems of faculty members is their own re-education or re-orientation. Some have narrow specialties that are hardly relevant to modern times. History has passed others by, leaving them interesting relics of a bygone day. More often than not they represent those who withered under the pressures of McCarthyism or other forces of conformity and represent [408 U.S. 169, 197] but a timid replica of those who once brought distinction to the ideal of academic freedom.

The confrontation between them and the oncoming students has often been upsetting. The problem is not one of choosing sides. Students – who, by reason of the Twenty-sixth Amendment, become eligible to vote when 18 years of age – are adults who are members of the college or university community. Their interests and concerns are often quite different from those of the faculty. They often have values, views, and ideologies that are at war with the ones which the college has traditionally espoused or indoctrinated. When they ask for change, they, the students, speak in the tradition of Jefferson and Madison and the First Amendment.

The First Amendment does not authorize violence. But it does authorize advocacy, group activities, and espousal of change.

The present case is minuscule in the events of the 60’s and 70’s. But the fact that it has to come here for ultimate resolution indicates the sickness of our academic world, measured by First Amendment standards. Students as well as faculty are entitled to credentials in their search for truth. If we are to become an integrated, adult society, rather than a stubborn status quo opposed to change, students and faculties should have communal interests in which each age learns from the other. Without ferment of one kind or another, a college or university (like a federal agency or other human institution) becomes a useless appendage to a society which traditionally has reflected the spirit of rebellion.

APPENDIX TO OPINION OF DOUGLAS, J.

“A compulsory ghetto fails as a community because its inhabitants lack the power to develop common goals and to pursue them effectively together. It fails too [408 U.S. 169, 198] because of a fatal disconnection between the possession and use of power and the cognition that knowledge, as a form of power, carries with it political responsibility. In these respects the campus is now like the compulsory ghetto.

“Those who deplore a view of the university in terms of its powerful political role in American society must account for the institution’s use of political power in its own terms, for its own purposes. I have come to feel lately – partly, I guess, because of the legal reasoning styles to which I have been exposed – that those playing around with the structure of their universities these days are playing with tinker toys. New committees, new senates and new student-participation formulae do not necessarily mean that anything has changed. Indeed, if Berkeley, Columbia, Harvard and Chicago are valid examples, restructuring turns out to be one of the brilliant new inventions for sustaining the status quo. The vested interests and essential privileges involved in current efforts to restructure the university have yet completely to surface. A substantial part of our melting iceberg is still below the waterline.

“That part of the student critique of the university which most deserves our attention bears upon what we teach, how we teach it, and the terms on which it is taught. One of the interesting things their critique points out is that our building programs, corporate investments, relationships to the immediate community and to the society, and our views of citizenship inside the university, all turn out to be projections and applications of what we call or have called education. Their critique suggests the perfectly absurd conclusion that there is a relationship between their long hair and our long war, between being a nurse and being a Negro, between the freshman political-science course and the pollution of fresh air, between education for freedom and [408 U.S. 169, 199] being free. Obviously, the contemporary American student activist is crazy.

“We have probably made a mistake by revealing to our students that there really is too much to know, and only one way to learn it – our way. They have come to accept this as gospel, and it has encouraged them to view curriculum development as essentially a sophisticated art of selection, interpretation and emphasis in which they have a vested interest. Understanding this, naturally they have begun to ask the key political questions bearing upon our vested interests and privileges: What experience and talent should be empowered to select? Who should be empowered to employ those who will interpret, and to deploy the wealth required to support the enterprise?

“Obviously the control over who will be kept out and over punishment-and-reward systems inside is extremely important. While our students still generally concede that the older adults who teach them may know something they don’t they are also asserting the uniqueness of their own experience, claiming that they may know something which those now in charge don’t. They have returned to the kindergarten level to rediscover a principle long revered in American education – that the student plays a positive and active role, that he has something definite and essential to contribute to his own education.

“The young – suspended precariously in a society obsessed by Vietnam violence, race violence, crime violence and culture violence – are restating the eternal questions about education: What is important to learn, and how may people best learn together? Regarding these enduring questions, they are also asking the eternal question of a society which officially encourages its young to grow up free (even while keeping them in bondage), namely: Who shall judge? Regarding the problems [408 U.S. 169, 200] these questions suggest, academic tradition responds through an uptight delineation of jurisdictions and powers within the university.

. . . . .

“Today’s campus disruptions were born in the years 1776 to 1787. Although the mind of Thomas Jefferson was anchored in the traditions of Heidelberg, Oxford, Paris, Bologna, Rome, Greece, the religions of the early Christians and the ancient Hebrews, minds like his transformed the old into something quite new, as in the case of his proposal for a university in Virginia. What was created then was not, of course, the latest thing, nor was it necessarily the Truth. But it was an adventure, a genuine new departure, unlike most of the institutions of learning we have created in this country since the Morrill Act – that is, most of our higher-education establishment.

“The traditions of the university in the West are anti- if not counter-revolutionary. Operating within these traditions, the university has produced revolutionary knowledge, but institutionally the uses of the knowledge have been directed mainly toward the confirmation of the status quo, particularly the political and cultural status quo. The themes of peace, integration, equality, freedom and the humane uses of knowledge are ones which traditionally fall beyond the purview of the university.

“But in principle the main themes of our society run counter to this deployment of knowledge. In spite of Vietnam, poverty, racism and the overbearing logic of our technology – in spite of Bedford-Stuyvesant – the main themes of our country, in principle, were and still are revolutionary. They are reflected in such questions as these: Can the revolutionary knowledge developed in the universities be used humanely, to conform with what Jefferson and his colleagues apparently meant? What [408 U.S. 169, 201] does equality mean, and whatever it meant or means, can we still achieve a version of it consistent with this adventure? Are reason and democracy really consistent? Is war in behalf of peace, given what we know now, realistic? Can Negroes who were once property suddenly become people? Are some genocides more decent than others, some cesspools more fragrant than others?

“In any event, I know that Bedford-Stuyvesant is crammed full of red-white-and-blue Americans. They really believe that we ought to practice what we preach, and that’s the problem. We’ve oversold America to ourselves, and so many of my very good friends – looking at the street violence and the circuses in the courts and on the campuses – who believe we confront a deeply un-American phenomenon, who think we face a serious threat to American values, completely misread what is going on there. We face a vibrant, far-reaching reassertion of what this country claims, what it has always claimed it is.” W. Birenbaum, Something For Everybody Is Not Enough 67-69, 248-249.

[ [92]Footnote * ] See the Appendix to this opinion.

MR. JUSTICE REHNQUIST, concurring in the result.

While I do not subscribe to some of the language in the Court’s opinion, I concur in the result that it reaches. As I understand the Court’s holding, the case is sent back for reconsideration because respondents may not have made it sufficiently clear to petitioners that the decision as to recognition would be critically influenced by petitioners’ willingness to agree in advance to abide by reasonable regulations promulgated by the college.

I find the implication clear from the Court’s opinion that the constitutional limitations on the government’s acting as administrator of a college differ from the limitations on the government’s acting as sovereign to enforce its criminal laws. The Court’s quotations from Tinker [408 U.S. 169, 202] v. Des Moines Independent School District, [93]393 U.S. 503, 506 (1969), to the effect that First Amendment rights must always be applied “in light of the special characteristics of the . . . environment,” and from Esteban v. Central Missouri State College, 415 F.2d 1077, 1089 (CA8 1969), to the effect that a college “may expect that its students adhere to generally accepted standards of conduct,” emphasize this fact.

Cases such as United Public Workers v. Mitchell, [94]330 U.S. 75 (1947), and Pickering v. Board of Education, [95]391 U.S. 563 (1968), make it equally clear that the government in its capacity as employer also differs constitutionally from the government in its capacity as the sovereign executing criminal laws. The Court in Pickering said:

“The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” [96]391 U.S., at 568 .

Because of these acknowledged distinctions of constitutional dimension based upon the role of the government, I have serious doubt as to whether cases dealing with the imposition of criminal sanctions, such as Brandenburg v. Ohio, [97]395 U.S. 444 (1969), Scales v. United States, [98]367 U.S. 203 (1961), and Yates v. United States, [99]354 U.S. 298 (1957), are properly applicable to this case dealing with the government as college administrator. I also doubt whether cases dealing with the prior restraint imposed by injunctive process of a court, such as Near v. Minnesota, [100]283 U.S. 697 (1931), are precisely comparable to this case, in which a typical sanction imposed was the requirement that the group abandon its plan to meet in the college coffee shop. [408 U.S. 169, 203]

Prior cases dealing with First Amendment rights are not fungible goods, and I think the doctrine of these cases suggests two important distinctions. The government as employer or school administrator may impose upon employees and students reasonable regulations that would be impermissible if imposed by the government upon all citizens. And there can be a constitutional distinction between the infliction of criminal punishment, on the one hand, and the imposition of milder administrative or disciplinary sanctions, on the other, even though the same First Amendment interest is implicated by each.

Because some of the language used by the Court tends to obscure these distinctions, which I believe to be important, I concur only in the result. [408 U.S. 169, 204]

New York State Consolidated Laws : Penal (NOTE: SDS activists have been threatened with criminal trespass when exercising first amendment rights – TM Good)

TITLE I
OFFENSES INVOLVING DAMAGE TO AND INTRUSION UPON PROPERTY
ARTICLE 140
BURGLARY AND RELATED OFFENSES
Section 140.00 Criminal trespass and burglary; definitions of terms.
140.05 Trespass.
140.10 Criminal trespass in the third degree.
140.15 Criminal trespass in the second degree.
140.17 Criminal trespass in the first degree.
Sec. 140.00 Criminal trespass and burglary; definitions of terms.

The following definitions are applicable to this article:

1. “Premises” includes the term “building”, as defined herein, and any real property.

2. “Building,” in addition to its ordinary meaning, includes any structure, vehicle or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein, or used as an elementary or secondary school, or an inclosed motor truck, or an inclosed motor truck trailer. Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building.

3. “Dwelling” means a building which is usually occupied by a person lodging therein at night.

4. “Night” means the period between thirty minutes after sunset and thirty minutes before sunrise.

5. “Enter or remain unlawfully.” A person “enters or remains unlawfully” in or upon premises when he is not licensed or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privilege unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless such notice is given by posting in a conspicuous manner. A person who enters or remains in or about a school building without written permission from someone authorized to issue such permission or without a legitimate reason which includes a relationship involving custody of or responsibility for a pupil or student enrolled in the school or without legitimate business or a purpose relating to the operation of the school does so without license and privilege.

Sec. 140.05 Trespass.

A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises. Trespass is a violation.

S 140.10 Criminal trespass in the third degree.

A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real prop- erty

(a) which is fenced or otherwise enclosed in a manner designed to exclude intruders; or

(b) where the building is utilized as an elementary or secondary school in violation of conspicuously posted rules or regulations govern- ing entry and use thereof; or

(c) located within a city with a population in excess of one million and where the building or real property is utilized as an elementary or secondary school in violation of a personally communicated request to leave the premises from a principal, custodian or other person in charge thereof; or

(d) located outside of a city with a population in excess of one million and where the building or real property is utilized as an elementary or secondary school in violation of a personally communicated request to leave the premises from a principal, custodian, school board member or trustee, or other person in charge thereof; or

(e) where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof; or

(f) where a building is used as a public housing project in violation of a personally communicated request to leave the premises from a hous- ing police officer or other person in charge thereof; or

(g) where the property consists of a right-of-way or yard of a rail- road or rapid transit railroad which has been designated and conspicu- ously posted as a no-trespass railroad zone, pursuant to section eight- y-three-b of the railroad law, by the city or county in which such property is located.

Criminal trespass in the third degree is a class B misdemeanor.

S 140.15 Criminal trespass in the second degree.

A person is guilty of criminal trespass in the second degree when he knowingly enters or remains unlawfully in a dwelling. Criminal trespass in the second degree is a class A misdemeanor.

S 140.17 Criminal trespass in the first degree.

A person is guilty of criminal trespass in the first degree when he knowingly enters or remains unlawfully in a building, and when, in the course of committing such crime, he:

1. Possesses, or knows that another participant in the crime possesses, an explosive or a deadly weapon; or

2. Possesses a firearm, rifle or shotgun, as those terms are defined in section 265.00, and also possesses or has readily accessible a quantity of ammunition which is capable of being discharged from such firearm, rifle or shotgun; or

3. Knows that another participant in the crime possesses a firearm, rifle or shotgun under circumstances described in subdivision two. Criminal trespass in the first degree is a class D felony.

The PEOPLE of the State of New York
v.
John GRAY, John Kaehny, Charles Komanoff, Stephen Kretzmann, Jonathan Orcutt and Ann Sullivan, Defendants
Criminal Court of the City of New York,
New York County, Jury 10
150 Misc. 2d 852 (1991)

[p. 853] LAURA SAFER-ESPINOZA, Justice.

Each of the defendants in this case is charged with disorderly conduct, (Penal Law 240.20, subdivisions 5 and 6). These charges are a result of their participation in a demonstration organized by Transportation Alternatives on October 22, 1990, at the entrance to the south outer roadway of the Queensboro Bridge, in opposition to the opening to vehicular traffic of the one lane that had been reserved for bicycles and pedestrians, during evening rush hours.

Pursuant to an agreement with the Manhattan District Attorney’s office, defendants stipulated to the facts constituting the People’s direct case. In substance, they admitted their presence on the south outer roadway of the Queensboro Bridge at approximately 4:00 p.m. on October 22, 1990. They also admitted that at about 4:15 p.m., a New York City Police Officer ordered them to move, and that they did not comply with that order until they were placed under arrest, at which time they moved voluntarily and did not resist in any way.

In return for this stipulation, the prosecution agreed not to offer any objections to the presentation of a necessity defense by these defendants.

A non-jury trial was held before this Court on February 5th and 6th, 1991. The People’s case consisted of the above-mentioned stipulation. Defendants presented their own testimony, as well as that of several witnesses, including Dr. Steven Markowitz, a specialist in community medicine with the Division of Environmental and Occupational Medicine at Mount Sinai Medical Center and former Commissioner of Transportation, Ross Sandler, as expert witnesses. Several exhibits consisting of Department of Transportation memos were then entered into evidence by the People as rebuttal.

THE NECESSITY DEFENSE AND CITIZEN INTERVENTION

The necessity defense is fundamentally a balancing test to determine whether a criminal act was committed to prevent a greater harm. The common elements of the defense found in virtually all common-law and statutory definitions include the following: (1) the actor has acted to avoid a grave harm, not of his own making; (2) there are not adequate legal means to avoid the harm; and (3) the harm sought to be avoided is greater than that committed. A number of jurisdictions, New York among them, have included two additional requirements–first, the harm must be imminent, and second, the action [p. 854] taken must be reasonably expected to avert the impending danger.

Extensive research revealed that while judges in New York (with one partial exception, discussed infra) have so far declined to rule that a necessity defense has been sufficiently established to allow the trier of fact to consider it in their deliberations in cases involving defendants who have engaged in citizen intervention/civil disobedience, numerous state trial judges in other jurisdictions, as well as some federal district court judges, have so charged juries or acquitted defendants after bench trials in similar cases.

Moreover, when the necessity defense is actually submitted to the trier of fact in such cases, defendants have usually been acquitted (see, e.g., United States v. La Forge and Katt, No Cr 4-84-66 [US Dist Ct Minn Nov 8, 1984]; People v. Brown, No. 78CM2520-40 [Lake City, Ill Jan 1979]; California v. McMillan [San Luis Obispo Jud. Dist. # D00518, 1988]. Other citations omitted for purposes of publication). There are also a number of cases in which charges were dropped after the judge’s rulings that a necessity defense would be permitted (see, e.g., United States v. Braden, PL 139/20 [WD Ky.1985]; New Jersey v. Driscoll, PL 172/50 [Mun Ct., New Brunswick, # S5484432, 1986]. Other citations omitted for purposes of publication). While far from an exhaustive listing, these cases are representative of the range of perceived harms against which defendants’ actions have been found to be justified; including the effects of nuclear weapons and nuclear power.

In the opinion of this Court, the instant case presents a factual situation which clearly distinguishes it from previous cases in New York which ruled a necessity defense inapplicable. Additionally, upon careful examination of the history and purpose of the justification defense which has come to be known as necessity, this Court has interpreted some of the elements of this defense in a manner which departs from prior decisions in this area.

* * *

BURDENS OF PROOF IN NECESSITY DEFENSE CASES UNDER PENAL LAW 35.05(2).

Justification in New York, as defined in Penal Law Sections 35.05 [p. 855] through 35.30 is an ordinary and not an affirmative defense (Penal Law 35.00). Thus, the People have the burden of disproving such a defense beyond a reasonable doubt. Penal Law 35.05(2) requires, however, that a defendant establish a prima facie case by producing evidence from which a reasonable juror could find that he has met each element of the defense.

Therefore, when seeking to establish a defense under Penal Law 35.05(2), a defendant bears the same initial burden as those presenting affirmative defenses–that of establishing a prima facie case (29 Am Jur 2d Section 156 (1967)). If that burden is met, the People must then disprove the defense of necessity beyond a reasonable doubt. Unlike true affirmative defenses, defendants in cases under Penal Law 35.05(2) do not have the burden of establishing their defense by a preponderance of the evidence.

It is particularly important to clearly delineate and evaluate whether defendants have met their initial burden of production in trials involving the necessity defense, since if that question is resolved in a defendant’s favor, the burden of proof then shifts dramatically, and the People must disprove the defense beyond a reasonable doubt. This is true whether the trier of fact is a jury or a judge.

As to the burden of production in affirmative defenses, it is uniformly held that a defendant is obliged to start matters off by putting in some evidence of his defense unless the prosecution does so in presenting its side (LaFave and Scott, Substantive Criminal Law, Chapter 1, Section 1.8) (emphasis added).

Our courts have held that in determining whether a defendant has presented sufficient evidence for an instruction on the defense of justification, the evidence must be viewed in the light most favorable to the accused (People v. Padgett, 60 N.Y.2d 142, 468 N.Y.S.2d 854, 456 N.E.2d 795, (1983); People v. Ruiz, 96 A.D.2d 845, 465 N.Y.S.2d 604 (2d Dept.1983)).

It is the duty of the judge, at least on request, to instruct on the law of justification whenever there is ‘some evidence’ in the case (People v. Torre, 42 N.Y.2d 1036, 399 N.Y.S.2d 203, 369 N.E.2d 759; supra; People v. Hernandez, 67 A.D.2d 988, 413 N.Y.S.2d 428 (2d Dept.1979).

In light of the strong constitutional considerations in favor of allowing defendants to have their defenses submitted to the trier of fact, the discrepancy between the low standard of production which some courts have articulated in theory (U.S. v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) (must meet “minimum [p. 856] standard”); People v. Hubbard, 115 Mich.App. 73, 320 N.W.2d 294 (1982) (must produce “some evidence”)), and the extraordinarily high standard ultimately imposed in many instances on civil disobedients who raise the necessity defense seems inappropriate.

THE REASONABLE BELIEF STANDARD

In People v. Goetz, 68 N.Y.2d 96, 506 N.Y.S.2d 18, 497 N.E.2d 41 (1986)), the New York Court of Appeals emphasized that the justification statute requires a determination of reasonableness that is both subjective and objective. The critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant’s background and experiences would conclude (see 1 CJI N.Y.P.L. 35.00, Introductory Comment at 848-849). The same basic standards should apply in cases where defendants assert the justification defense defined by Penal Law 35.05(2).

There is only one element of the necessity defense to which a standard more stringent than reasonable belief must be applied–that is the actor’s choice of values, for which he is strictly liable.

An actor is not justified, for example, in taking human life to save imperiled property. No matter how real the threat to property is, by making the wrong choice in placing the value of property over human life, the actor loses the defense. Thus, the choice of values requirement ensures that the defense cannot be used to challenge shared societal values.

To apply a strict liability standard in evaluating the other elements of this defense, however, and to find that only those actors who have actually averted a greater harm may avail themselves of the defense, is inconsistent with the law of justification in New York, as well as necessity’s basic purpose to promote societal interests. (Note, Applying the Necessity Defense to Civil Disobedience Cases, 64 NYU L.Rev. 79 (1989)). Applying the above standards, the Court will now analyze the elements of the necessity defense as they apply to defendants’ actions in this case.

THE CHOICE OF EVILS REQUIREMENT

As stated earlier, defendants’ value choice is the one area where they must be held strictly liable. A judge must decide [p. 857] whether the actor’s values are so antithetical to shared social values as to bar the defense as a matter of law.

As part of this objective inquiry, the requirement that a judge also determine whether or not the defendant’s value choice has been preempted by the legislature has sometimes been read into the statute. New York specifically declined to adopt the broad provision of the Model Penal Code section dealing with legislative pre-emption in necessity cases, (see Model Penal Code 3.02(c) “a legislative purpose to exclude the justification claimed does not otherwise plainly appear”) and instead provided that defendants must not be protesting only against the morality and advisability of the statute under which they are charged.

A reading of the cases in this area reveals that it is seldom the correctness of defendants’ values which is at issue. Courts have generally recognized that the harms perceived by activists protesting nuclear weapons and power and United States domestic and foreign policy–nuclear holocaust, international law violations, torture, murder, the unnecessary deaths of U.S. citizens as a result of environmental hazards and disease–are far greater than those created by a trespass or disorderly conduct. (People v. Chachere, 104 Misc.2d 521, 428 N.Y.S.2d 781 (1980); People v. Scutari et al., 148 Misc.2d 440, 560 N.Y.S.2d 943 (1990); People v. Alderson, 144 Misc.2d 133, 540 N.Y.S.2d 948 (1989)).

In this case, the defendants are all members of an organization called Transportation Alternatives, an organization devoted to the promotion of non- vehicular, ecologically sound means of transportation. Through their testimony and that of their expert witnesses, it was clear that these defendants’ actions were motivated by the desire to prevent what they called the “asphyxiation of New York” by automobile-related pollution. Specifically, the harm they seek to combat is the release of ever higher levels of pollution from vehicular traffic, and the unnecessary death and serious illness of many New Yorkers as a result.

Defendants also articulated a motivation to put an end to an extremely hazardous situation that had resulted on the Queensboro Bridge south outer roadway, subsequent to the implementation of the regulation opening that roadway to vehicular traffic during the evening rush hour. Since many pedestrians and bicyclists continued to use that roadway, the defendants testified that they also acted to prevent serious injuries to those individuals who continued to use alternative forms of transportation on the bridge.

[p. 858] Certainly, neither of these harms could be said to have developed through any fault of these defendants. Nor is there an issue of legislative preemption in this case. [n. 1] In fact, in a departure from the usual situation in citizen intervention cases, it is clear that it is the defendants’ point of view concerning air pollution and its accompanying dangers that has been confirmed and adopted by the legislature. [n. 2]

1. Certainly, the regulation by the Department of Transportation concerning the Queensboro Bridge cannot be cited as legislative preemption in this case. First, the doctrine simply does not apply to executive or agency action. Moreover, the circumstances under which this regulation was passed preclude any argument that a full discussion and resolution of the competing values at stake was undertaken by the Department of Transportation (see infra) (end footnote).

2. As testified to by the former Commissioner of Transportation, Ross Sandler, the Clean Air Act Amendments of 1970 (42 USC §§ 7401-7642, as amended) required the Environmental Protection Agency (EPA) to promulgate “clean air” standards. New York is not now, and has never been, in compliance with those minimum standards set by the EPA. This non- compliance has been the cause of numerous citizen suits seeking enforcement of pollution level standards in New York City. (Natural Resources Defense Council, Inc. v. U.S. Environmental Protection Agency, 494 F.2d 519 (2d Cir.1974); Friends of the Earth v. Carey, 422 F.Supp. 638 (S.D.N.Y.1976), vacated 552 F.2d 25, on remand 76 F.R.D. 33, cert. denied 434 U.S. 902, 98 S.Ct. 296, 54 L.Ed.2d 188; Beame v. Friends of the Earth, 434 U.S. 1310, 98 S.Ct. 4, 54 L.Ed.2d 23 (1977)). Broad legislative preferences such as that expressed by the Clean Air Act, have often been used in the reverse situation by the Courts to ban the necessity defense on grounds of legislative preemption. This is particularly true in a number of cases where courts have implied a legislative choice in favor of nuclear power and weaponry (United States v. Best, 476 F.Supp. 34, 41 (D.Colo.1979); People v. Hubbard, 115 Mich.App. 73, 320 N.W.2d 294 (1982); State v. Warshow, 138 Vt. 22, 410 A.2d 1000 (1979); People v. Eisenberg (Staten Island Cir.Ct. (N.Y.App.Term # 7R005336 et seq. 1988); People v. Chachere, 104 Misc.2d 521, 428 N.Y.S.2d 781 (1980)). Other courts have required that the legislature have specifically weighed competing harms, including those foreseen by defendants, and made a value choice rejecting defendant’s position (Citations omitted).

Nor is this a case where the defendants are acting against what the courts have already recognized as a fundamental right, as in the abortion protests which have asserted a necessity defense. There is no corresponding fundamental right to contribute to life threatening air pollution. (People v. Crowley, 142 Misc.2d 663, 538 N.Y.S.2d 146 (Justice Ct. Town of Greece 1989); People v. Archer, 143 Misc.2d 390, 537 N.Y.S.2d 726 (City Ct. Rochester 1988)). In Archer, the Court submitted the necessity defense to the jury, to be considered if they found second trimester abortions were being performed. The Court failed to recognize the protections extended to such procedures under Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Defendants in that case were convicted.

[p. 859] In this case, as well as in most necessity cases, it is clear that defendants chose the correct societal value. It is beyond question that both the death and illness of New Yorkers as a result of additional air pollution, and the danger to cyclists and pedestrians posed by vehicles on the south outer roadway, are far greater harms than that created by the violation of disorderly conduct.

The more difficult issue in many of the necessity defense cases has been whether the actors’ perception of harm was reasonable. The Court will now turn to a discussion of this requirement, and the additional requirement of New York Penal Law Section 35.05, that the harm be imminent.

THE IMMINENCE OF GRAVE HARM REQUIREMENT

In evaluating whether defendants’ perceptions of the harm they sought to avoid in this case were reasonable, the Court must decide whether they had “a well founded belief in imminent grave injury”. (United States v. Ashton, 24 F.Cas. 873 (C.C.Mass.1834) (No. 14,470)); accord United States v. Cassidy, 616 F.2d 101, 102 (4th Cir.1979); State v. Heyer, Nos. 83-101221 to 83- 101225, slip op. at 3 (Mich.Dist.Ct. April 9, 1984) (order permitting necessity defense).

Such determination is almost always a question for the trier of fact (State v. Heyer, (Dist.Ct., Oakland Co. 52nd Dist., 1st Div. Nos. 83-101194 to 83- 101228, 1985)); People v. Jones, Nos. 83-101226 to 83-101228, slip op. at 4-5 (Mich.Dist.Ct. Mar. 2, 1984) (opinion and ruling denying prosecutor’s motion to exclude defense of duress).

Defendants in the instant case presented several witnesses, as well as submitting studies, to establish the existence of a grave and imminent harm. Defendants themselves testified that the DOT regulation, if obeyed, would prove to be a devastating disincentive to New Yorkers who use alternative or non- vehicular means of transportation between the boroughs of Manhattan and Queens. The only road open to bicyclists and pedestrians is practically inaccessible to them during the hours most critical to their return home. In contrast to this disincentive to non-polluting forms of transportation, another lane is open to vehicular traffic.

Defendants clearly articulated their belief that encouraging automobiles at a rush hour traffic ‘choke-point’ while discouraging walkers and cyclists produces a specific, grave harm that is not only imminent, but is occurring daily. This belief [p. 860] was supported by the testimony of expert witnesses and studies submitted into evidence.

Former Commissioner of Transportation Sandler gave undisputed testimony that New York City would have to reduce vehicular traffic in order to come into compliance with the minimum standards set by the Environmental Protection Agency for air pollution. Indeed, recent litigation corroborates defendants’ claim that New York’s failure to comply with EPA standards is due, in substantial measure, to automobile-related pollution. (N.R.D.C. v. N.Y. State Dept. of Environmental Conservation, 668 F.Supp. 848 (S.D.N.Y.1987)).

Additionally, Dr. Steven Markowitz of the Mt. Sinai Department on Environmental and Occupational Diseases testified that air pollution in New York and elsewhere is a major cause of lung, respiratory tract and heart disease. He particularly singled out carbon monoxide and nitrogen oxide as disease-causing agents.

In this regard, EPA’s 1989 assessment concluded that motor vehicles were the single largest contributor to cancer risks from exposure to air toxics. Motor vehicles, said the EPA, are responsible for 55 percent of the total cancer incidence from air contaminants, five times greater than from any other air pollution source.

In the EPA survey, motor vehicle particulates accounted for more than 76 percent of the benzene, 63 percent of the directly emitted formaldehyde, and 77 percent of all polycyclic organic matter found in urban air. In addition, the average automobile (travelling 10,000 miles) emits about 650 pounds of carbon monoxide, 105 pounds of hydrocarbons, 50 pounds of nitrogen oxides, and 12 pounds of particulates into the air each year.

A single tank of gasoline produces about 300 to 400 pounds of CO sub2 when burned. According to state data the peak eight-hour concentration of carbon monoxide in 1988 recorded at 59th street between Third Avenue and Lexington– the approach to the Queensboro Bridge– was 13.9 parts per million, far exceeding the national standard. (American Lung Assoc. of N.Y.S. et al. v. N.Y.S. Dept. of Env., 668 F.Supp. 848 (S.D.N.Y.1987); N.R.D.C. v. Train, 411 F.Supp. 864 (S.D.N.Y.1976); Natural Res. Def. Coun. Inc. v. U.S. Env. Pro. Ag., 494 F.2d 519 (2d Cir.1974); Friends of the Earth v. Carey, 535 F.2d 165 (2d Cir.1976); Defense Exhibit G, a New York City Department of Transportation study, [p. 861] “Improving Manhattan Traffic and Air Quality Conditions–Effectiveness of Bicycle Programs (1990)”).

The above cited DOT study also acknowledges that bicycle riding has a significant and untapped potential to reduce traffic congestion and its accompanying air pollution. It indicates that the numbers of people who would adopt this form of transportation if encouraged by simple safety measures including bicycle lanes on the part of New York City (almost 30% of those surveyed) is impressive. It states that the current level of bicycle ridership in New York City is indicative only of those individuals who are so dedicated to cycling that they are willing to utilize a transportation system that has been shaped for decades without provisions for bicycles.

Defendant Komanoff pointed out that the over-all figure of 30% cited by the survey did not accurately reflect the potential for cycling as an alternative to polluting forms of transportation since 70% of the respondents lived over 10 miles from their workplace. Among those who lived within 10 miles of their workplace, 49% replied that they would ride bicycles to work if some provisions were made for their safety and comfort.

Dr. Markowitz testified that every increment in pollution makes a difference in terms of its negative impact on public health. He testified that the inverse is also true, i.e., every decrease in New York air pollution has a corresponding positive effect.

Defendants pointed out in their testimony that the need for repairs on the Queensboro Bridge provided a perfect opportunity to encourage walking and cycling as alternative forms of transportation, as well as a disincentive for automobile traffic. In fact, the demonstrations held by these defendants on a weekly basis prior to the date of the arrest in this case provided dramatic examples of the increased numbers of people who would use alternative forms of transportation if their safety was insured.

Instead, as the situation now exists, an additional lane is open to vehicular traffic, with each additional car causing the types and amounts of pollution described above, and a tremendous disincentive has been imposed upon those who use alternative forms of transportation.

Defendants repeatedly expressed their belief that those who use bicycles or who walk are now placed in the following dilemma: they can obey the ordinance and use forms of [p. 862] transportation which further contribute to pollution, or they can disobey and be subject to the extremely hazardous conditions caused by riding with the traffic on the south outer roadway.

Unlike many of the cases in this area, where the harm sought to be prevented was perceived as too far in the future to be found ‘imminent’, the grave harm in this case is occurring every day. The additional pollution breathed by all New Yorkers (in a city that is already out of compliance with the minimal standards set by the EPA), as a result of the fact that more road space will be devoted to vehicles and its corollary that those hundreds of individuals who would otherwise bicycle or walk are discouraged from using non-polluting forms of transportation is a concrete harm being suffered by the population at this moment.

The dangerous situation of cyclists and pedestrians travelling at the same hours as vehicular traffic is also a daily occurrence witnessed by several of these defendants. Defendants and their witnesses testified to their observations and documentation of the fact that many cyclists and pedestrians continue to use the south outer roadway, despite the DOT regulation. While the presence of cyclists and pedestrians on the day of the demonstration may be said to have presented a danger of the defendants’ own making, on all of the other occasions testified to, many individuals using alternative forms of transportation were present on the bridge at no instigation from these defendants. It is undisputed that the resulting mixture of automobiles, bicycles and pedestrians represents an extremely dangerous situation with the potential for tragic consequences.

Defendants’ witnesses also testified that due to the opening of the south outer roadway to vehicles during the rush hour, vehicles often assume it is open to them at other times as well. Their entry onto this roadway during non-rush hours also creates a serious hazard for walkers and cyclists.

These facts clearly distinguish the instant case from those situations where the courts have found the harm in question to be too remote (see People v. Chachere, 104 Misc.2d 521, 428 N.Y.S.2d 781 (1980); People v. O’Grady, 147 Misc.2d 118, 560 N.Y.S.2d 602 (1990), appeal denied, 76 N.Y.2d 942, 563 N.Y.S.2d 71, 564 N.E.2d 681 (1990); People v. Alderson, 144 Misc.2d 133, 540 N.Y.S.2d 948 (1989)).

In light of all the evidence of grave and imminent harm cited by these defendants, the Court finds that it would be [p. 863] improper to hold as a matter of law that they had not met their burden of production on this element of the defense, i.e. that no reasonable juror could find that defendants had a reasonable belief that grave and imminent harm was occurring. The inquiry therefore becomes whether the People have disproved this element beyond a reasonable doubt.

The prosecution contends that no evidence was shown that barring bicycles and pedestrians from the south outer roadway of the Queensboro Bridge would cause increased pollution. It is argued that this roadway will only be closed ‘temporarily’ during repairs and that opening the former bicycle and walking lane will decrease traffic congestion, thereby lessening pollution. The People also argue that no decrease in alternative forms of transportation need occur, since there is a van which is provided to shuttle cyclists periodically across the bridge during rush hours.

In response defendants testified that their consultations with the Department of Transportation revealed an intention to keep the bicycle and pedestrian lane closed during the evening rush hour for a period of six or seven years, if repairs are made on schedule. This can hardly be viewed as a temporary measure.

Furthermore, former Commissioner of Transportation Sandler testified that the net effect of giving vehicles more space to travel, which has been the constant trend over the last fifty years in New York, has not resulted in an increase in average automobile speed which would decrease pollution, but rather in more cars going at a decreased rate of speed.

In addition, defendants testified that the van proposed as an alternative for walking and cycling is, in itself, a great disincentive to non-polluting forms of travel. First of all, forcing people who cycle and/or walk because of their deep commitment to ecologically sound means of transportation to use a pollution-causing vehicle every day directly negates their incentive to walk or cycle one way.

As people who are thoroughly familiar with the area of alternative means of transportation and those who use them in New York, defendants testified that in their opinion, significant numbers of people have already been discouraged from walking and cycling. In addition to their daily contacts and communication with cyclists and walkers, defendants cited the hundreds of people who joined them on their weekly demonstrations, and who expressed their enthusiasm for alternative [p. 864] transportation when it was made safe enough, but refrain from walking or cycling at other times.

Additionally, several witnesses testified that the designated waiting area for the van is isolated and dark, making them fearful for their safety. The waiting time can be up to 40 minutes, and the scheduling is irregular. Furthermore, defendants documented by their own counts on the bridge that were all cyclists to use the van, the waiting time would stretch into hours. All witnesses familiar with the van testified that they had heard drivers tell pedestrians that the van was not available to them and saw pedestrians actually being barred from the vans on many occasions. No alternative whatsoever is provided for people who wish to walk to and from work.

This Court also rejects the contention that proof of the imminent death of New Yorkers as a result of high levels of air pollution or accidents on the south outer roadway is required before the finding of an emergency can be made to uphold this defense. The medical evidence connecting air pollution and disease–namely cancer and heart disease–is too well established for such a position to be logical. Nor should cyclists or walkers be at the point of being struck by a vehicle before a hazardous situation can be recognized. Indeed, to require that the ultimate result of the harm acted against be already occurring would place the actor in a catch-22 situation; the longer the actor waits in order to satisfy the immediacy requirement, the less likely his action reasonably can be expected to effectively avert the harm, thus failing to satisfy another element of the defense.

In recent cases, it has become evident that the lesser evil sometimes must occur well in advance of the greater harm. In People v. Harmon, 53 Mich.App. 482, 220 N.W.2d 212 (1974), the defendants escaped from prison one evening after threat of assault, although there was no present or impending assault. The court ruled that imminency is “to be decided by the trier of fact taking into consideration all the surrounding circumstances, including defendant’s opportunity and ability to avoid the feared harm.” (People v. Harmon, supra, at 484, 220 N.W.2d at 214).

In this case, the threatened harm of increased deaths and illness through air pollution is a uniquely modern horror, very different from the fires, floods and famines which triggered necessity situations in simpler days. However, the potential injury is just as great, if not greater.

[p. 865] This Court is painfully aware that once individuals succumb to the diseases listed by Dr. Markowitz–chronic lung disease, cancer of the lung, and heart disease–the time for any action to prevent the environmental causes of these illnesses is long past. Due, in part, to our failure to recognize high air pollution levels as an emergency despite its well-documented connection to many of our fatal and incurable illnesses, individuals are then cast into a frantic and lonely search for extremely costly and difficult therapies whose effectiveness is acknowledged as limited in a majority of cases.

Defendant Komanoff, who as an energy consultant has given expert testimony before municipal and state agencies in twenty states, four United States congressional committees, the Nuclear Regulatory Commission, state and public utility corporations and the Select Committee on Energy of the House of Commons in the United Kingdom, as well as serving as an consultant to Fortune 500 companies and the United States Congress on energy-related matters, and publishing Op Ed articles in newspapers throughout this country, expressed his opinion that the reasons the current state of health-impairing pollution is not publicly recognized as an emergency are rooted in societal “automobile dependency”.

Mr. Komanoff stated that 60% of petroleum needs in the United States are generated by the demands of automobiles. He cited the fact that the United States is the biggest world importer of petroleum and testified to his opinion that automobile dependence was responsible for what he called the “distortion of U.S. economic and foreign policy.”

Whether one agrees with Mr. Komanoff’s statements or not, it is clear that they do offer one explanation for the lack of a more widespread recognition that an emergency exists, despite the clear evidence of life threatening damage caused by air pollution.

Pursuant to the foregoing discussion, this Court finds the prosecution has failed to disprove the element that defendants in this case had a reasonable belief in a grave and imminent harm constituting an emergency, beyond a reasonable doubt.

THE NO LEGAL ALTERNATIVE REQUIREMENT

A key requirement of the necessity defense is that no reasonable legal option exists for averting the harm. Once again, the proper inquiry here is whether the defendant reasonably believed that there was no legal alternative to his [p. 866] actions. The defense does not legalize lawlessness; rather it permits courts to distinguish between necessary and unnecessary illegal acts in order to provide an essential safety valve to law enforcement in a democratic society.

It has been asserted that because a democracy creates legal avenues of protest, alternatives must always exist. In the opinion of this Court, however, to dispense with the necessity defense by assuming that people always have access to effective legal means of protest circumvents the purpose of the defense.

When courts rule as a matter of law that defendants always have a reasonable belief in other adequate alternatives, they are asserting that regardless of how diligent a party is in pursuing alternatives, no matter how much time has been spent in legitimate efforts to prevent the harm, no matter how ineffective previous measures have been to handle the emergency, the courts in hindsight can always find just one more alternative that a citizen could have tried before acting out of necessity.

Defendants in this case testified to a long history of attempts to prevent the harm they perceived. Although Transportation Alternatives is a group that is regularly consulted by the Department of Transportation and meets often with agency officials to propose measures to encourage walking, cycling and the use of mass transit, and to relieve traffic congestion with its accompanying pollution, they received no advance warning that the closing of the bicycle and pedestrian lane on the Queensboro Bridge was being considered.

Upon learning of this decision, the executive director of Transportation Alternatives contacted officials in the Department of Transportation and learned that no written notice had been made to any public interest group, nor were any hearings held before this regulation was passed.

Transportation Alternatives, through its director and its individual members (including these defendants) made formal written protest to Department of Transportation officials and other elected officials, such as the Manhattan Borough President and members of the City Council.

Transportation Alternatives also distributed newsletters to at least 12,000 people, urging them to write and/or call the elected officials involved. The six defendants on trial were personally responsible for hundreds of letters and phone calls, to Department of Transportation officials and elected officials. [p. 867] They testified that these same efforts were made by hundreds of other Transportation Alternatives members.

These defendants also participated in Transportation Alternatives’ concerted petitioning and leafletting campaign, beginning on the first day of the bridge closing. The goal of all of the efforts by members of Transportation Alternatives was to obtain the DOT’s consent to a trial period of leaving the south outer roadway open to pedestrians and cyclists, and monitoring the resulting traffic conditions. The arguments put forward in their letters, petitions and calls included pointing out that this was a perfect opportunity to observe the results of a disincentive for vehicular travel, instead of penalizing those who utilized ecologically sound means of transportation.

Transportation Alternatives took the position that if they could obtain a public hearing on the issue of why the south outer roadway should not be closed to walkers and cyclists, they would end their protests. When no movement whatsoever resulted on the issue of public hearing, weekly demonstrations were held which involved walking and cycling across the south outer roadway. At all times Transportation Alternatives made it known that these demonstrations would cease if a public hearing was held.

Certainly, the efforts testified to by these defendants distinguish them from other cases in New York where the necessity defense has been found inapplicable (People v. Alderson, 144 Misc.2d 133, 540 N.Y.S.2d 948 (1989)).

Although there is no clear rule as to what facts are required to support a defendant’s burden to present evidence so that a trier of fact could find that he reasonably believed no alternative existed, some recent cases seem to indicate the appropriate level of inquiry.

In State v. Keller, No. 1372-4-84 (Vt.Dist.Ct. Nov. 17, 1984), the defendants successfully asserted that they conducted a sit-in at Senator Stafford’s office after “attempting in every reasonable manner to communicate with him”.

In People v. Largrou, Nos. 85-000098 to 85000100, slip op. (Mich.Dist.Ct. March 22, 1985), involving protests of nuclear weapons, the court was convinced by the defendants’ arguments that methods other than trespass were ineffective: “There are some who say that there is absolutely no prospect of the administration or the Congress to bring this matter to a successful conclusion and that the track record proves it and that the only possibility, however remote, the only possibility of survival lies in [p. 868] protest. If people believe that, who can say they are wrong?” (Transcript of Judge’s Order, People v. Largrou, supra, at 10-11).

In People v. Block, Crim Nos. 3235-3245 (Cal. Sacramento County Mun.Ct. August 1979) defendant’s offer of proof of a long history of activism convinced the judge to instruct on the necessity defense, and the jury to acquit based upon those instructions. Similarly, in People v. Lemnitzer, No. 27106E (Pleasanton-Livermore Judicial District, Alameda Co.Muni.Ct., 1982) People v. Alridge, No. 49091 (Sunnyvale-Cupertino Jud.Dist., Santa Clara Co.Muni.Ct., May 21-23, 1979); People v. Jarka, Nos. 002170, 002196-212, 002214, 002236-002238 (Cir.Ct., Lake Cty., Ill., April 1985); Chicago v. Streeter, Nos. 85-108644, 48, 49, 51, 52, 120323, 26, 27 (Cir.Ct., Cook Cty., Ill., May 1985); United States v. La Forge and Katt, No. CR 4-84-66 (U.S.Dist.Ct., Minn., Nov. 8, 1984); and People v. Boelcke, No. 101194- 101203 (52nd Jud.Dist., Jan. 7-12, 1985), defendants won instructions on the necessity defense after testifying to their history of attempting to affect change through legal means.

Consistent with the level of inquiry in these cases, the court in United States v. Gant, 691 F.2d 1159 (5th Cir.1982) stated that a history of futile attempts by others will meet the no-legal alternative requirement, but that a single instance of delayed police response did not necessitate the defendant’s taking the law into his own hands. The defendants in this case were certainly aware of the long history of litigation by citizens groups in efforts to enforce compliance with the Clean Air Act in New York.

In this case, the defendants were individuals who were thoroughly familiar with the process by which decisions concerning transportation in New York are made, and who, despite their long history of an advocacy and consultative role in such matters, were completely excluded from the decision making process concerning the closing of a very important roadway for nonpolluting forms of transportation. Where, at the first opportunity, every traditional method of petitioning, letter writing, phone calling, leafletting and lobbying was vigorously pursued by these defendants to no avail, it cannot be said as a matter of law that they did not reasonably believe their legal alternatives to be exhausted.

The prosecution cross examined the defendants concerning their failure to carry out an advertising campaign, a tactic they admitted was beyond their economic means.

[p. 869] Defendants were also cross examined as to why they did not demonstrate in a location other than the Queensboro Bridge.

In light of the fact that the demonstrations preceding October 22, 1990 did not include demonstrators refusing to move, and the goal of preventing the harm reasonably perceived by these defendants had not yet been achieved, the de- escalation in tactics suggested by the prosecution would certainly not have appeared to be an alternative with any reasonable likelihood of efficacy.

Therefore, in the opinion of this Court, the People have not disproven this element of the necessity defense, requiring defendants to have a reasonable belief that no further legal alternatives were available to them, beyond a reasonable doubt.

THE CAUSAL RELATIONSHIP REQUIREMENT

New York is among the jurisdictions that require a defendant’s actions to be “reasonably designed to actually prevent the threatened greater harm”. (People v. Chachere, 104 Misc.2d 521, 428 N.Y.S.2d 781, supra; People v. Alderson, 144 Misc.2d 133, 540 N.Y.S.2d 948, supra; People v. Scutari, 148 Misc.2d 440, 560 N.Y.S.2d 943 (1990); People v. O’Grady, 147 Misc.2d 118, 560 N.Y.S.2d 602, supra).

The People argue that defendants could not have reasonably believed that their actions on October 22, 1990 would bring about a halt to the harms they perceived.

An inflexible test allowing for no inquiry into the circumstances and events surrounding the formulation of a defendant’s belief, while imposing an after- the-fact requirement of an immediate relationship, constitutes a rule of per se unreasonableness, whereby a defendant who fails is held as a matter of law not to have reasonably believed in the efficacy of his action.

As with the other elements of this defense, the test consistent with the purposes of this defense is one of reasonable belief. Defendants’ initial burden is to offer sufficient evidence of a reasonable belief in a causal link between their behavior and ending the perceived harm.

The New York statute and most common law formulations use the term “necessary” rather than “sufficient”. In the opinion of this Court, a defendant’s reasonable belief must be in the necessity of his action to avoid the injury. The law does not require certainty of success.

[p. 870] In several cases, defendants have successfully met the minimum standards of production in this area through reference to the historical effectiveness of such tactics (People v. Block, Crim. Nos. 3235 to 3245 (Cal. Sacramento County Mun.Ct. filed Dec. 13, 1979)).

While this Court agrees that there are numerous examples in United States history which support the reasonable belief of a causal connection between citizen intervention and the prevention of harm, the defendants in this case need not go beyond their own experiences.

Defendants testified that they had participated in two short term campaigns in the recent past which only became successful when civil disobedience was employed. One of these campaigns resulted in the defeat of Mayor Koch’s attempt in 1987 to ban bicycles from Manhattan streets. The second involved their attempts during the 1980’s to obtain access to a roadway along the river in New Jersey for cyclists and walkers. All efforts at letter writing and petitioning had been rebuffed, and it was only after members of Transportation Alternatives were arrested for acts of civil disobedience, that a three month trial period of access to the roadway for walkers and cyclists was instituted. This experiment was so successful that the officials involved thanked and commended Transportation Alternatives for their insistence and the arrangement was made permanent.

In each of these cited examples, members of Transportation Alternatives participated in civil disobedience/citizen intervention which proved to be the last step needed to avert the harms acted against.

Each defendant testified that they believed their actions on October 22, 1990 would have a direct effect in avoiding the perceived harms in this case. In light of their past experiences, that belief cannot be held unreasonable as a matter of law.

Neither through cross-examination nor independent evidence did the People disprove a reasonable belief by these defendants that their actions on October 22, 1990 were necessary, or that those actions were, in fact, the last effort needed to halt those harms. Penalizing them because a result reasonably expected did not actually occur immediately following their action, would be contrary to the purposes of the necessity defense.

[p. 871] Pursuant to the foregoing opinion, this Court finds that the People have not disproved the elements of the necessity defense in this case beyond a reasonable doubt. Defendants are therefore acquitted.

Posted by TAG - July 4, 2006 | Legal Library, Resources

NEW YORK PENAL LAW
CHAPTER 40 OF THE CONSOLIDATED LAWS
PART THREE–SPECIFIC OFFENSES
TITLE N–OFFENSES AGAINST PUBLIC ORDER, PUBLIC SENSIBILITIES AND THE RIGHT TO PRIVACY
ARTICLE 240–OFFENSES AGAINST PUBLIC ORDER

(NOTE: these are offenses commonly used to justify arrests for protesting in NYC – TM Good)

Section 240.06 Riot in the first degree

A person is guilty of riot in the first degree when he:

1. Simultaneously with ten or more other persons, engages in tumultuous and violent conduct and thereby intentionally or recklessly causes or creates a grave risk of causing public alarm, and in the course of and as a result of such conduct, a person other than one of the participants suffers physical injury or substantial property damage occurs; or

2. While in a correctional facility, as that term is defined in subdivision four of section two of the correction law, simultaneously with ten or more other persons, engages in tumultuous and violent conduct and thereby intentionally or recklessly causes or creates a grave risk of causing alarm within such correctional facility and in the course of and as a result of such conduct, a person other than one of the participants suffers physical injury or substantial property damage occurs.

Riot in the first degree is a class E felony.

Section 240.08 Inciting to riot

A person is guilty of inciting to riot when he urges ten or more persons to engage in tumultuous and violent conduct of a kind likely to create public alarm.

Inciting to riot is a class A misdemeanor.

Section 240.10 Unlawful assembly

A person is guilty of unlawful assembly when he assembles with four or more other persons for the purpose of engaging or preparing to engage with them in tumultuous and violent conduct likely to cause public alarm, or when, being present at an assembly which either has or develops such purpose, he remains there with intent to advance that purpose.

Unlawful assembly is a class B misdemeanor.

Section 240.15 Criminal anarchy

A person is guilty of criminal anarchy when (a) he advocates the overthrow of the existing form of government of this state by violence, or (b) with knowledge of its contents, he publishes, sells or distributes any document which advocates such violent overthrow, or (c) with knowledge of its purpose, he becomes a member of any organization which advocates such violent overthrow.

Criminal anarchy is a class E felony.

Section 240.20 Disorderly conduct

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

1. He engages in fighting or in violent, tumultuous or threatening behavior; or

2. He makes unreasonable noise; or

3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or

4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or

5. He obstructs vehicular or pedestrian traffic; or

6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or

7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.

Disorderly conduct is a violation.

NYPD Central Booking For information about someone who has been arrested, call Central Booking in the borough where the person is being held.

Bronx 215 East 161st Street (718) 590-2817

Brooklyn 120 Schermerhorn Street (718) 875-6303

Manhattan 100 Centre Street (212) 374-3921

Queens 125-01 Queens Blvd. (718) 268-4523

Staten Island 78 Richmond Terrace (718) 876-8490

Police Precincts

Bronx 40 Precinct, South Bronx 257 Alexander Avenue (718) 402-2270

41 Precinct, Hunts Point 1035 Longwood Avenue (718) 542-4771

42 Precinct, Tremont 830 Washington Avenue (718) 402-3887

43 Precinct, Soundview 900 Fteley Avenue (718) 542-0888

44 Precinct, Morris Heights 1 East 169th Street (718) 590-5511

45 Precinct, Schuylerville 2877 Barkley Avenue (718) 822-5411

46 Precinct, University Heights 2120 Ryer Avenue (718) 220-5211

47 Precinct, Eastchester 4111 Laconia Avenue (718) 920-1211

48 Precinct, Fordham 450 Cross Bronx Expressway (718) 299-3900

49 Precinct, Baychester 2121 Eastchester Avenue (718) 918-2000

50 Precinct, Riverdale 3450 Kingsbridge Avenue (718) 543-5700

52 Precinct, Bedford Park 3016 Webster Avenue (718) 220-5811

Brooklyn 60 Precinct, Coney Island 2951 West 8th Street (718) 946-3311

61 Precinct, Sheepshead Bay 2575 Coney Island Avenue (718) 627-6611

62 Precinct, Bensonhurst 1925 Bath Avenue (718) 236-2611

63 Precinct, Flatlands and Mill Basin 1844 Brooklyn Avenue (718) 258-4411

66 Precinct, Boro Park 5822 16th Avenue (718) 851-5611

67 Precinct, East Flatbush 2820 Snyder Avenue (718) 287-3211

68 Precinct, Bay Ridge 333 65th Street (718) 439-4211

69 Precinct, Canarsie 9720 Foster Avenue (718) 257-6211

70 Precinct Kensington 154 Lawrence Avenue (718) 851-5511

71 Precinct, Flatbush 421 Empire Blvd (718) 735-0511

72 Precinct, Sunset Park 830 Fourth Avenue (718) 965-6311

73 Precinct, Brownsville 1470 East New York Avenue (718) 495-5411

75 Precinct, East New York 1000 Sutter Avenue (718) 827-3511

76 Precinct, Red Hook and Carroll Gardens 191 Union Street (718) 834-3211

77 Precinct, Crown Heights 127 Utica Avenue (718) 735-0611

78 Precinct, Park Slope 65 Sixth Avenue (718) 636-6411

79 Precinct, Bedford-Stuyvesant 263 Tompkins Avenue (718) 636-6611

81 Precinct, Brownsville and Bed-Stuy 30 Ralph Avenue (718) 574-0411

83 Precinct, Bushwick 480 Knickerbocker Avenue (718) 574-1605

84 Precinct, Brooklyn Heights 301 Gold Street (718) 875-6811

88 Precinct, Fort Greene 298 Classon Avenue (718) 636-6511

90 Precinct, Williamsburg 211 Union Avenue (718) 963-5311

94 Precinct, Greenpoint 100 Messerole Avenue (718) 383-3879

Manhattan 01 Precinct, Tribeca and Wall Steet 16 Ericsson Place (212) 334-0611

05 Precinct, Chinatown and Little Italy 19 Elizabeth Street (212) 334-0711

06 Precinct, Greenwich Village 233 West 10th Street (212) 741-4811

07 Precinct, Lower East Side 19 1/2 Pitt Street (212) 477-7311

09 Precinct, East Village 321 East 5th Street (212) 477-7811

10 Precinct, Chelsea 230 West 20th Street (212) 741-8211

13 Precinct, Gramercy 230 East 21st Street (212) 477-7411

14 Precinct, Midtown South 357 West 35th Street (212) 239-9811

17 Precinct, Midtown 167 East 51st Street (212) 826-3211

18 Precinct, Midtown North 306 West 54th Street (212) 760-8300

19 Precinct, East Side 153 East 67th Street (212) 452-0600

20 Precinct, West Side 120 West 82nd Street (212) 580-6411

22 Precinct Central Park 86th Street and Transverse Road (212) 570-4820

23 Precinct, Upper East Side 162 East 102nd Street (212) 860-6411

24 Precinct, Upper West Side 151 West 100th Street (212) 678-1811

25 Precinct, East Harlem 120 East 119th Street (212) 860-6511

26 Precinct, Morningside Heights 520 West 126th Street (212) 678-1311

28 Precinct, Central Harlem 2271-89 8th Avenue (212) 678-1611

30 Precinct, Harlem 451 West 151st Street (212) 690-8811

32 Precinct, Harlem 250 West 135th Street (212) 690-6311

33 Precinct, Washington Heights 2120 Amsterdam Ave. at 165th Street (212) 927-3200

34 Precinct, Washington Heights 4295 Broadway (212) 927-9711

Queens 100 Precinct, Rockaway 92-24 Rockaway Beach Blvd (718) 318-4200

101 Precinct, Far Rockaway 16-12 Mott Avenue (718) 868-3400

102 Precinct, Richmond Hill 87-34 118th Street (718) 805-3200

103 Precinct, Jamaica 168-02 91st Avenue (718) 657-8181

104 Precinct, Ridgewood 64-02 Catalpa Avenue (718) 386-3004

105 Precinct, Queens Village 92-08 222nd Street (718) 776-9090

106 Precinct, Ozone Park 130-51 101st Street (718) 845-2211

107 Precinct, Fresh Meadows 71-01 Parsons Blvd (718) 969-5100

108 Precinct, Long Island City 5-47 50th Avenue (718) 784-5411

109 Precinct, Flushing 37-05 Union Street (718) 321-2250

110 Precinct, Elmhurst 94-41 43rd Avenue (718) 476-9311

111 Precinct, Bayside 45-06 215th Street (718) 279-5200

112 Precinct, Forest Hills 68-40 Austin Street (718) 520-9311

113 Precinct, South Jamaica 167-02 Baisley Blvd (718) 712-7733

114 Precinct, Astoria 34-16 Astoria Blvd (718) 626-9311

115 Precinct, Jackson Heights 92-15 Northern Blvd (718) 533-2002

Staten Island 120 Precinct, St. George 78 Richmond Terrace (718) 876-8500

122 Precinct, New Dorp 2320 Hylan Blvd (718) 667-2211

123 Precinct, Tottenville 116 Main Street (718) 948-9311

The Public Advocate’s Office
1 Centre Street, 15th Floor
New York, NY 10007
General Inquiries: (212) 669-7200
Ombudsman Services: (212) 669-7250

Code of Federal Regulations
Title 32, Volume 2
Revised as of July 1, 2002
From the U.S. Government Printing Office via GPO Access
CITE: 32CFR234.6

(NOTE: Activists are often charged with 32CFR234.6(b) – for protesting at the Pentagon — TM Good)

TITLE 32–NATIONAL DEFENSE
CHAPTER I–OFFICE OF THE SECRETARY OF DEFENSE (CONTINUED)
PART 234–CONDUCT ON THE PENTAGON RESERVATION–Table of Contents

Sec. 234.6 Interfering with agency functions.

The following are prohibited:

(a) Interference. Threatening, resisting, intimidating, or intentionally interfering with a government employee or agent engaged in an official duty, or on account of the performance of an official duty.

(b) Violation of a lawful order. Violating the lawful order of a government employee or agent authorized to maintain order and control public access and movement during fire fighting operations, search and rescue operations, law enforcement actions, and emergency operations that involve a threat to public safety or government resources, or other activities where the control of public movement and activities is necessary to maintain order and public health or safety.

(c) False information. Knowingly giving a false or fictitious report or other false information:

(1) To an authorized person investigating an accident or violation of law or regulation, or

(2) On an application for a permit.

(d) False report. Knowingly giving a false report for the purpose of misleading a government employee or agent in the conduct of official duties, or making a false report that causes a response by the government to a fictitious event.

Privacy Act Officer [or System of Records Manager]
Name of Agency
Address of Agency
City, State, Zip Code

Re: Privacy Act Request to Amend Records

Dear __________________:

This is a request under the Privacy Act to amend records about myself maintained by your agency.

I believe that the following information is not correct: [Describe the incorrect information as specifically as possible].

The information is not (accurate) (relevant) (timely) (complete) because ….

[Optional] Enclosed are copies of documents that show that the information is incorrect.

I request that the information be [deleted] [changed to read:].

Thank you for your consideration of this request.

Sincerely,

Name
Address
City, State, Zip Code
Telephone Number [Optional]