Zwickler v. Koota Brief for Appellee

    I n  t h e

f>itpran? (Emtrt of %  Itttfrft
OCTOBER TERM, 1967

No. 29

Sanford Zwickler, 

against
Appellant,'

A abon E. K oota, as District Attorney 
of the County of Kings,

Appellee.

On A ppeal eeom the United States D istrict Court 
for the E astern D istrict of New Y ork

BRIEF FOR APPELLEE

Louis J. L efkowitz 
Attorney General of the 

State of New York 
Attorney for Appellee 

80 Centre Street 
New York, New York 10013

Samuel A. H irshowitz
First Assistant Attorney General

Irving L. R ollins 
George D. Z uckerman 
Brenda Soloff 

Assistant Attorneys General 
of Counsel

rtJjggw 249 Press o f Fremont Payne, Inc., 80 Washington St., N. Y .— BOwling Green 9-8153



TABLE OF CONTENTS

Opinions B elow ..............................................................  2

Jurisdiction .................................................................... 2

Statutes Involved ..........................................................  2

Questions Presented ..................................................... 2

Statement of the C ase...................................................  3

Summary of Argument.................................................  5

P oint I—The District Court properly exercised its 
equitable discretion in declining to enjoin state 
enforcement of its statute .................................... 7

P oint II—New York Election Law, Section 457, 
passed pursuant to the state power to regulate 
the conduct of elections, is not an unconstitutional 
restraint of freedom of expression ..................... 16

Conclusion ...................................................................... 28

Cases

American Communications Association v. Douds, 339
U. S. 382 ............................................................. 16,17,21

Anderson v. Martin, 375 U. S. 399 ..............................  21
Associated Press v. Walker, 379 U. S. 4 7 ..................... 27
Baggett v. Bullitt, 377 U. S. 360 ..................................  12
Bates v. City of Little Bock, 361 IT. S. 516 .................  27

PAGE



11 XABUE OF CONTENTS

Beal v. Missouri Pac. R. Co., 312 U. S. 4 5 .................  7,12
Bunis v. Conway, 17 A. D. 2d 207 (4th Dept.), app.

disrn. 12 N. Y. 2d 882 (1963) ................................  14
Burroughs and Cannon v. United States, 290 U. S. 534 17
Cameron v. Johnson, 381 U. S. 741................................  8,15
Canon v. Justice Court, 39 Cal. Rptr. 228, 393 P. 2d

428 ...................................................................... 17,19,25
Cantwell v. Connecticut, 310 U. S. 296 .......................... 25
Commonwealth v. Evans, 156 Pa. Super. 321, 40 A.

2d 137 ...................................................................... 20,25
Communist Party of the United States v. Subversive

Activities Control Board, 367 U. S. 1 ....................... 16,17
DeVeau v. Braisted, 5 A. D. 2d 603, 174 N.Y.S. 2d 596 

(2nd Dept.), aff’d 5 N. Y. 2d 236, aff’d 363 U. S.
144 ...........  13-14

PAGE

Dombrow-ski v. Pfister, 380 U. S. 479 . . .  .4, 5, 7, 8,11,14,15
Douglas v. City of Jeannette, 319 U. S. 157 ..........3, 4, 7, 8,

9,12,13
Evers v. Dwyer, 358 U. S. 202 ...................................... 15
Fenner v. Boykin, 271 U. S. 240 .................................... 7
Fenster v. Leary, 264 F. Supp. 153 (S.D.N.Y.), aff’d

386 U. S. 1 0 ..................................................7,12,13,14
Fenster v. Leary, 20 N. Y. 2d 309 ................................13,14
Harrison v. NAACP, 360 U. S. 167..............................  12
Jamison v. Texas, 318 U. S. 413 ................................17,26
Katzenbach v. Morgan, 384 U. S. 641 ..........................  17
Lassiter v. -Northampton County Board of Elections,

360 U. S. 45 ............................................................  17



PAGE

Lewis Publishing Co. v. Morgan, 229 U. S. 288 ..........17, 20
Lovell v. City of Griffin, 303 U. S. 444 ........................  25
Mills v. Alabama, 384 U. S. 214 ................................  20
NAACP v. Alabama, 357 U. S. 449 ............................  27
New York Times v. Sullivan, 376 U. S. 254 .............  27
People v. Zwickler, Crim. Ct. N.Y.S., Kings Co. Feb.

10, 1965 (unrep’ted) rev ’d Sup. Ct. App. Term, 
Kings Co. April 23, 1965 (unrep’ted), aff’d 16 
N. Y. 2d 1069 (1965) ................................ .’ ........... 4

Poulos v. New Hampshire, 345 U. S. 395 ................... 17
Schneider v. State, 308 U. S. 147..................................16, 25
Shelton v. Tucker, 364 U. S. 479 .................................. 16
Spielman Motor Co. v. Dodge, 295 U. S. 8 9 ...............  7
State v. Freeman, 143 Kan. 315, 55 P. 2d 362 ......... 20,25
Stefanelli v. Minard, 342 U. S. 1 1 7 ............................  7
Talley v. California, 362 U. S. 60 .....................17, 24, 26, 27
The Bookcase, Ine. v. Broderick, 49 Misc. 2d 351

(Sup. Ct., N. Y. Co. [1965]) ..............................  14
Thomas v. Collins, 323 U. S. 5 1 6 ................................  25
Time Inc. v. Hill, 385 U. S. 374 .................................... 27
United States v. Harriss, 347 U. S. 6 1 2 ......... 17,19, 25, 27
United States v. Scott, 195 F. Supp. 440 (N.

Dak.) ..................................................................19,25,27

TABLE OF CONTENTS 111

Statutes

2 U.S.C. §§241-256 (Federal Corrupt Practices Act) 18



IV TABLE OF CONTENTS

2 U.S.C. §§ 261-270 (Federal Regulation of Lobbying
Act) ...................................................................    19

18 U.S.C. §612 ......................................................... 18,19,25
28 U.S.C. § 1253 ............................................................  2
28 U.S.C. § 1343(4) ....................................................... 4
N. Y. CPLR § 3001 ....................................................... 5,13
N. Y. CPLR § 5601(b) ( 2 ) .............................................  13
N. Y. CPLR § 6301 ......................................................... 15

New York Election Law § 131 ...................................... 10
New York Election Law §132 .......................... .......... 10
New York Election Law § 133 ...................................... 10
New York Election Law § 1 3 9 ...................................... 10
New York Election Law § 1 4 3 ...................................... 10
New York Election Law §§ 320-328 ............................. 17,23
New York Election Law §447 ...................................... 18
New York Election Law § 454 ...................................... 18
New York Election Law § 457 . .2, 5, 6, 9,17,18, 21, 25, 26, 27
New York Election Law § 458 ...................................... 2
New York Election Law §460 ...................................... 18
New York Penal Law § 781-b....................................2, 21, 23
New York Penal Law § 782 ...........................................  2

Miscellaneous

Bleyer, Main Currents in A merican J ournalism
(1927) ..................................................................... 26,27

PAGE



TABLE OF CONTENTS V

The Constitutional Bight to Anonymity : Free Speech, 
Disclosure and the Devil, 70 Y ale, L. J. 1084

PAGE

Dietseh and Gurnee, The Cumulative Effect of a Se­
ries of Campaign Leaflets 32 J ournal of A pplied 
P sychology 189 (1948) ..............................................  24

Ernst and Katz, Speech: Public and Private, 53 Col.
L. R ev. 620, 623 (1953) ..............................................  19

E merson, T oward a General T heory of the F irst
A mendment (N, Y. 1966) ..........................................  17

H ovland, Janis and K elly, Communication and P er­
suasion : P sychological Studies of Opinion
Change (1953) .............................................................  24

S. Rep. No. 1390, 78th Cong., 2nd Sess. 2 (1944) 
Letter from Francis Biddle, Atty. Gen. to Chair­
man Sen. Jud. Com. (April 7, 1944) .......................  18

W aples, B erelson, and Bradshaw, W hat R eading 
D oes to P eople : A Summary of E vidence on the 
Social E ffects of R eading and a Statement of 
P roblems for R esearch (1940) ...............................  23

A ppendix “ A ”  ................................................................. A1

A ppendix “ B ” A17



1 st t h e

#npmtt£ OJmtrt nf tlip HttiM Stairs
OCTOBER TERM, 1967

No. 29

------------------------------ t --------------------------------

Sanford Z wickler, 

against
Appellant,

A aron E. K oota, as District Attorney 
of the County of Kings,

Appellee,

O n  A ppeal from the United States D istrict Court 
for the E astern D istrict of New Y ork

------------------- 1-------------------

BRIEF FOR APPELLEE

This is an appeal from an order of a three-judge court 
of the United States District Court for the Eastern District 
of New York denying a motion by appellant for injunctive 
and declaratory relief and granting the motion by appellee 
to dismiss the complaint (R. 34).* Appellant sought to 
enjoin the enforcement against him of the New York 
statute prohibiting the distribution in quantity of anony­
mous campaign literature (R. 5). His motion for a three-

* Numbers in parentheses preceded by the letter “ R ” refer to 
pages in the printed record before this Court.



2

judge district court was granted on May 20, 1966 (R. 12- 
15) and the order of that Court dismissing the complaint 
is dated September 29, 1966 (R. 34). This Court noted 
probable jurisdiction on February 13, 1967 (R. 47).

Opinions Below

The opinion granting the motion to convene a three- 
judge court (R. 12-15) is not reported. The opinion of 
the three-judge District Court by Chief Judge Zavatt is 
reported at 261 F. Supp. 985 (R. 19-33). The concurring 
opinion of Court of Appeals Judge K aufman is at 261 F. 
Supp. 993 (R. 35-37). The dissenting opinion of Judge 
R osling is at 261 F. Supp. 994 (R, 38-44).

Jurisdiction

Appellant has invoked the jurisdiction of this Court 
under 28 U.S.C. § 1253.

Statutes Involved

At the time of the commencement of this action the 
applicable statutes were N. Y. Penal Law § 781-b and § 782. 
The statutes are reproduced at pages 2-3 of appellant’s 
brief. Effective September 1, 1967, these statutes became, 
without change, N. Y. Election Law 457 and 458 re­
spectively. They will hereinafter, for the sake of accuracy, 
be referred to as N. Y. Election Law §§ 457 and 458.

Questions Presented

1. Did the District Court abuse its discretion in declin­
ing equitable relief to enjoin the enforcement of a state 
criminal statute where the statute is not vague or over­



3

broad, where appellee, charged with its enforcement, is 
conceded to act in good faith and where no other special 
circumstances exist to remove this case from the rule of 
Douglas v. City of Jeannette, 319 IT. S. 157?

2. Is New York Election Law § 457, prohibiting the dis­
tribution in quantity of anonymous campaign literature, 
an impermissible limitation on freedom of expression?

Statement of the Case

Alleging that he “ desires and intends to distribute in 
quantities of more than a thousand copies”  anonymous 
political leaflets with regard to the election campaign of 
1966 “ and in subsequent election campaigns or in connec­
tion with any election of party officials, nomination for pub­
lic office and party position that may occur subsequent to 
said election campaign of 1966”  (Amend. Compl. par. 14 
[R. 3-4]), appellant brought this action to declare the 
statute prohibiting such activity unconstitutional and to 
enjoin appellee from enforcing the statute against him 
(R. 5). He alleges that he wishes to make such distribution 
of a leaflet “ prepared by and at the instance of a person 
other than the plaintiff”  (Amend. Compl. par. 14 [R. 3]) 
because of his belief that the statute forbidding such dis­
tribution violates the First and Fourteenth Amendments 
to the Constitution “ in that it is an infringement of the 
freedom of expression”  (id. par. 16 [R. 4]).

The complaint seeks federal relief enjoining enforce­
ment of the statute not because the statute is vague or over­
broad, not because appellant is being subjected to harass­
ment of any sort and not because any prosecution is pend­
ing or imminent. Rather, he asks federal intervention 
because “ [t]he said leaflet is embraced within the scope 
and intendment of the statute”  (id. par. 17 [R. 4]), be­
cause appellee “  is a diligent and conscientious public officer



4

and pursuant to Ms duties intends or will again prosecute 
the [appellant] . . . for his acts of distribution”  (id. par. 
18 [R. 4]) and because, in 1964, appellant was charged 
with distributing an anonymous leaflet in connection with 
the Congressional election to be held on November 3, 1964, 
about four days after the date of distribution (id. pars. 5-6 
[R. 2]). He was found guilty after a trial at which he 
presented no evidence. People v. Zwiclder (Crim. Ct. 
N.Y.C. Kings Co. Feb. 10, 1965, unreported) (id. pars. 7-9 
[R. 3]). The judgment of conviction was “ unanimously 
reversed on the facts”  upon the failure of the People “ to 
establish that defendant distributed anonymous literature 
‘ in quantity’ .”  People v. Zwiclder (Sup. Ct. App. Term, 
Kings Co. April 23, 1965, unreported) (id. pars. 10-11 
[R. 3]). The reversal was affirmed without opinion by the 
New York Court of Appeals. People v. Zwickler, 16 N. Y. 
2d 1069, 266 N.Y.S. 2d 140 (1965) (R. 3). Appellant thus 
seeks federal intervention with enforcement of a state 
statute because of his fear of future prosecution under a 
statute whose scope he comprehends by an officer he re­
gards as “ diligent and conscientious”  after a previous 
unsuccessful prosecution.

The District Court declined to intervene. Holding that 
the amended complaint stated a claim under 28 U.S.C. 
§1343(4) and alleged a case or controversy within its ad­
judicatory power, the Court recognized that “ [t]he fact 
that a case is within the adjudicatory power of this court 
does not necessarily require that its power be exercised”  
(R. 23). Both Judges Zavatt and Kaufman found that 
none of the special circumstances in Dombrowski v. Pfister, 
380 U. S. 479, justified departure from the rule of Douglas 
v. City of Jeannette, 319 U. S. 157. “ There is no sugges­
tion that the alleged threatened prosecution of the plaintiff 
in the instant case will be undertaken in bad faith or that 
the plaintiff’s defense to any such prosecution will not 
assume him adequate vindication of his alleged constitu-



a

tional rights”  (R. 30). Moreover, the Court found that if 
appellant did not wish to await criminal prosecution, he 
could institute an action in the state for a declaratory judg­
ment. N. Y. CPLR § 3001. Courts of Appeals Judge K auf­
man, in his concurrence, also noted that no extensive ad­
judication would be required to settle appellant’s claim 
and that relief could be as swift in the state as in the 
federal courts (R. 37).

Judge R osung, in his dissent, called the law in question 
“ overbroad”  (E. 39) and said that abstention is inappro­
priate in that it would require “ slow, particularistic”  liti­
gation (R. 41) in the state courts. He concluded that, under 
Dombrowski, the statute had a “ chilling”  effect requiring 
a federal court to declare it unconstitutional.

Summary of Argument

This Court has long recognized the principle that fed­
eral courts will not exercise their equitable jurisdiction to 
enjoin the enforcement of state criminal statutes absent 
a showing of irreparable injury. This principle applies 
even to eases arising under the First Amendment. Appel­
lant failed to show such injury to himself in this case 
and thus did not bring himself within the holding of Dom­
browski v. Pfister, 380 U. S. 479. The statute in question, 
New York Election Law § 457, regulating the distribution 
of anonymous campaign literature, is neither vague nor 
overbroad. Indeed, appellant claimed that his projected 
activity would fall within the meaning of that statute. The 
constitutionality of the statute can be swiftly determined 
in a single state court litigation and there is no showing 
that such adjudication would be unduly delayed. More­
over, appellant need not wait to be criminally prosecuted 
since he may seek a declaratory judgment in the state 
courts. There is no showing that appellant has been



6

harassed or that any prosecution would he undertaken in 
bad faith.

In any event, there is no merit to appellant’s contention 
that Election Law § 457 is an unreasonable restraint of free 
expression. There is a substantial need for the legislation, 
the legislation is no broader than the need it serves, and 
no undue prejudice can result from the required limited 
disclosure. The statute protects the integrity of the elec­
toral process by facilitating the enforcement of various 
anti-corruption provisions in the New York Election Law 
requiring reports of campaign receipts and expenditures, 
Moreover, in an election situation, where the public is being 
asked to take a definite course of action, it is entitled to 
know who is urging one position or another and what cam­
paign tactics are being employed by each side. Time is of 
the essence in an election campaign. Not all charges and 
countercharges can be answered before the election but the 
public must at least be able to evaluate for itself any state­
ment made in the light of its source. The New York ex­
perience, as outlined in the report of the Special Committee 
on Campaign Practices, demonstrates the necessity for the 
legislation.

By limiting itself to the campaign context, the New York 
statute is unlike the broad disclosure statutes previously 
struck down by this Court. The limitation of the statute 
is demonstrated by the fact that none of the well-known 
anonymous literature of the past falls within its proscrip­
tion. Furthermore, appellant has not demonstrated any 
realistic possibility of reprisal resulting from disclosure. 
Libel and invasion of privacy suits by public officers are now 
limited in all but the most outrageous cases and there is no 
proof that disclosure would result in harassment of individ­
uals for their associations or that disclosure is being sought 
for that purpose.



7

POINT I

The District Court properly exercised its equitable 
discretion in declining to enjoin state enforcement of 
its statute.

The principle that federal courts will not exercise their 
equitable jurisdiction to enjoin the enforcement of state 
criminal statutes without a showing of irreparable injury 
in the absence of such intervention is now a firmly estab­
lished tenet of our jurisprudence. Fenster v. Leary, 264 F. 
Supp. 153 (S.D.N.Y.), iaff’d. 386 U. S. 10; Dombrowski v. 
Pfister, 380 U. S. 479; Stefanelli v. Minard, 342 U. S. 117; 
Douglas v. City of Jeannette, 319 U. S. 157; Beal v. 
Missouri Pac. II. Co., 312 U. S. 45; Spiehnan Motor 
Co. v. Dodge, 295 U. S. 89; Fenner v. Boykin, 271 U. S. 
240. As this Court said in Douglas v. City of Jeannette, 
supra at 163:

“ It is a familiar rule that courts of equity do not 
ordinarily restrain criminal prosecutions. No person 
is immune from prosecution in good faith for his al­
leged criminal acts. Its imminence, even though 
alleged to be in violation of constitutional guaranties, 
is not a ground for equity relief since the lawfulness 
or constitutionality of the statute or ordinance on 
which the prosecution is based may be determined as 
readily in the criminal case as in a suit for an injunc­
tion.”

Where orderly state process is available to test a claim 
of constitutionality, respect for federalism requires that 
the question be adjudicated in the state subject to review 
by this Court:

“ [Fjederal interference with a State’s good-faith ad­
ministration of its criminal lawT is peculiarly incon­
sistent with our federal framework. It is generally



8

to be assumed that state courts and prosecutors will 
observe constitutional limitations as expounded by this 
Court, and that the mere possibility of erroneous initial 
application of constitutional standards will usually not 
amount to the irreparable injury necessary to justify 
a disruption of orderly state proceedings.”  Dombrow­
ski v. Pfister, supra at 484-85.

This principle of non-intervention applies to cases raising 
claims under the First Amendment (Douglas v. City of 
Jeannette, supra; cf. Cameron v. Johnson, 381 U. S. 741) 
and this case provides a striking illustration of why this 
Court should not adopt the hard and fast rule suggested 
by appellant and amicus that the mere claim of a First 
Amendment violation renders the principle inapplicable. 
Equity, proceeding on a case-by-case basis, is fully ade­
quate to protect First Amendment rights while maintaining 
principles of federalism. Analysis of the instant complaint 
shows no special circumstances necessitating extraordinary 
relief.

In only one case has this Court held that the principles 
of Douglas v. City of Jeannette, supra, required interven­
tion in the enforcement of a state criminal statute. That 
case, Dombrowski v. Pfister, supra, embodied virtually all 
the elements which this Court previously suggested would 
mandate intervention and presented peculiar and out­
rageous facts of its own. In Dombrowski, the statute was 
vague and overbroad thus “ chilling”  free expression and 
rendering impossible the resolution of the constitutional 
questions in a single state prosecution. Moreover, the 
record, supported by affidavits and a written offer of proof 
portrayed a history of prosecution raids at gunpoint in 
the offices and homes of civil rights organization members, 
the seizure of files and books, and the continued prosecu­
tion of appellants after motions to suppress the seized 
evidence were granted for lack of probable cause. It



9

showed that harassment had frightened off potential or­
ganization members and it showed that the threatened 
prosecutions were merely part of a scheme of future prose­
cution under other statutory provisions of state law. It 
indicated that even with a series of state criminal prose­
cutions there was no certain or immediate prospect that 
appellants could have satisfactorily resolved all the consti­
tutional issues in the state courts within a reasonable time 
and without undue harassment. The instant ease, by con­
trast, presents neither a vague and overbroad statute 
limiting free expression, nor the possibility of protracted 
piecemeal state court litigation, nor any question of the 
statute being used as a weapon to harass appellant or any­
one else.

New York Election Law, Section 457 is specifically 
directed against certain described literature “ concerning 
any political party, candidate, committee, person, proposi­
tion or amendment to the state constitution, in connection 
with any election . . . ”  without including the printer and 
the person or committee placing the order. The complaint 
did not allege that the statute is overbroad and vague. 
Indeed it alleged that the distribution which appellant 
desired to make was “ within the scope and intendment of 
the statute”  (Amend. Compl., par. 17 [R. 4]). The com­
plaint described the course of action which appellant in­
tended to pursue and alleged that that course would 
violate the New ,York statute. Appellant voiced no diffi­
culty in understanding the statute and he did not suggest 
that it was susceptible to a variety of interpretations 
which left him in confusion as to his rights.

Apparently recognizing that in order to secure federal 
intervention and to circumvent the rule of Douglas v. City 
of Jeannette, supra, the statute under attack must be at 
least allegedly vague, amicus attempts to inject vague­
ness into the statute, making far more of a claim for the 
confusion and uncertainty of appellant than appellant



10

makes for himself. Thus, amicus contends that the statute 
is vague because it does not define the term “ in quantity” . 
The objection is frivolous. Appellant himself sets a figure 
which he regards as a “ quantity”  and, in any event, the 
minimum limit can be immediately and precisely deter­
mined by state judicial definition. Moreover, the question 
of number bears no relation to the nature of the language 
sought to be uttered. Amicus further suggests that the 
term “ in connection with”  is impermissibly vague because 
it leaves undefined the time within which the anonymous 
circulation may be made. Amicus alleges, wholly gratu­
itously since appellant does not so allege, that “  [ajppellant 
had to guess whether he was within the time perimeter 
described by ‘ in connection with any election’ ”  (Br. 
amicus curiae, p. 6). In fact, appellant alleges with re­
spect to time, only that the distribution for which he was 
prosecuted occurred four days before the 1964 election 
(Amend. Compl., par. 6 [B. 2]). The statutory limita­
tion, relating as it does to the specific fact of an election, 
is not at all vague. The New York Election Law, like the 
laws of other states, contains provisions for commencing 
the election machinery, including the designation of candi­
dates for nomination and election with time limits for the 
filing of the required petitions and certificates. N. Y. Elec­
tion Law §§ 131-133, 139, 143. Once more, the term can, if 
necessary, be defined in a single state adjudication and, 
once more, the alleged vagueness does not relate to any 
confusion as to what speech is proscribed. In short, the 
attempt by amicus to establish collateral areas of vagueness 
is wholly unavailing. It seems only reasonable that, if a 
per se rule is sought requiring federal intervention with 
respect to First Amendment claims, and that if one of the 
allegations with respect to the statute is that it is vague, 
then it is fair to require that the alleged vagueness relate 
somehow to the question of free expression.

Appellant suggests (Br., pp. 17-18) that if the statute is 
to be limited to libelous publication or matter which is



11

false, then the question of the meaning of the statute be­
comes very serious. This question is not before the court 
since the statute, by its terms, does not attempt to assess 
the nature of the language published and does not promul­
gate any standards other than that of anonymity. The 
statute applies to all anonymous campaign literature.

The dissent in the court below considered the statute to 
be overbroad but rested that feeling on a belief that the 
statute definitely regulated an area protected by the First 
Amendment. That is, it considered the statute overbroad 
only in the sense that any unconstitutional statute invades 
a constitutionally protected area. However, in order to 
produce the chilling effect held in Dombrowski to raise the 
possibility of intervention, overbreadth must be regarded 
as an aspect of vagueness and the “ chill”  described in 
that case is the chill of uncertainty of the scope of the 
statute.

A criminal prosecution under a statute regulating 
expression usually involves imponderables and con­
tingencies that themselves may inhibit the full exer­
cise of First Amendment freedoms. See, e.g., Smith 
v. California, 361 U. S. 147. When the statutes also 
have an overbroad sweep, as is here alleged, the hazard 
of loss or substantial impairment of those precious 
rights may be critical. For in such cases, the statutes 
lend themselves too readily to denial of those rights.”  
Dombrowski v. Pfister, supra, at 486.

In such cases the scope of the statute is uncertain. Con­
sequently, it cannot be determined whether or not the 
utterance in question is covered by the statute and this 
confusion leads, in turn, to the chilling of protected ex­
pression.

In the instant case the scope of the statute is clear 
and the extent of its regulation creates no uncertainty.



12

Thus, the “ chill”  created by alleged vagueness and over­
broadness is not present and presents no reason for enjoin­
ing the statute in question. Although the District Court 
spoke in terms of “ abstention”  it obviously did not de­
cline to act because of any uncertainty as to the meaning 
of the state statute (see e.g., Baggett v. Bullitt, 377 U. S. 
360; Harrison v. N.A.A.C.P., 360 U. S. 167) but because of 
appellant’s failure to demonstrate any ground for equitable 
relief. Douglas v. City of Jeannette, supra.

Because Election Law, Section 457 is not vague and 
overbroad, its constitutionality can be swiftly determined 
in a single state court litigation. While protracted delay 
in state adjudication is a factor to be considered in deter­
mining whether or not equitable intervention is required, 
Beal v. Missouri Pac. R. Co., supra, there is no showing 
in this case that there would be any unreasonable delay in 
state adjudication of the issue. It appears to be appel­
lant’s contention that, having decided to seek relief in the 
federal courts, he must be accorded that relief since, if it 
were determined that the state courts were the jjroper 
forum “ he would be in the same posture as in the district 
court”  (Br., p. 29). In other words, appellant attributes 
to his own improper choice of forum an unconstitutional 
delay in state adjudication. This merely demonstrates the 
paucity of his argument that the state will delay his secur­
ing an adjudication.

Illustrative of the fact that the state does not institu­
tionalize delay is the case of Fenster v. Leary, 264 F. 
Supp. 153 (S.D.N.Y.), aff’d. 386 U. S. 10. In that case, 
Fenster, having first sought a writ of prohibition against 
enforcement of the New York vagrancy statute in the state 
courts, and having appealed through the New York Court 
of Appeals the question of the appropriateness of prohi­
bition as a remedy to test a statute, sought and obtained 
a three-judge court on the question of the constitutionality 
of the New York vagrancy law. That court, like the court



13

below in the instant case, declined to intervene in the state 
courts’ enforcement of their criminal laws and this 
Court affirmed that decision. Fenster then sought a de­
claratory judgment in the state courts pursuant to New 
York Civil Practice Law and Rules, Section 3001. He was 
denied relief in the lower court but, on direct appeal to the 
New York Court of Appeals pursuant to N. Y. CPLR, 
Section 5601(b)(2), the statute was declared uncon­
stitutional. Fenster v. Leary, 20 N. Y. 2d 309. The 
total time from the filing of the federal petition in 
Fenster to the decision of this Court was about eight 
months, from June 29, 1966 to February 20, 1967. The total 
time consumed in the declaratory judgment proceeding in 
the state courts was less than five months, from February 
13, 1967 to July 7, 1967. Similarly the total time involved 
in the criminal prosecution in which this appellant’s con­
viction was reversed was one year and one month from 
October 29, 1964 to December 1, 1965 (R. 2-8). The instant 
proceeding was commenced by a complaint filed May 3, 
1966, about a year and a half ago and, of course, has yet 
to be resolved. Any complaint of unreasonable delay in 
the state courts requiring intervention by the federal courts 
is, thus, absolutely unfounded.

Nor must appellant become, as he suggests (Br., p. 21), 
a martyr to his principles. First, while he repeatedly 
raises the spectre of a felony conviction for a second of­
fense, his conviction having been reversed, he stands in 
danger only of a good faith prosecution for a misdemeanor 
in order to test the statute. The “ imminence”  of a crim­
inal prosecution is not alone a ground for federal equity 
relief. Douglas v. City of Jeannette, supra at 163-64. 
Second, of course, appellant is not confined, in the state 
courts, to awaiting a criminal prosecution. As Fenster v. 
Leary, supra, makes abundantly clear, there is a remedy 
at law, the declaratory judgment. As the State Appellate 
Division said in DeVeau v. Braisted, 5 A. D. 2d 603, 607, 
174 N.Y.S. 2d 596, 600 (2nd Dept,), aff’d. 5 N. Y. 2d 236,



14

aff’d. 363 TJ. S. 144, in upholding the use of a declaratory 
judgment to test the validity of a penal statute:

“ One of the very purposes of a declaratory judgment 
is to settle a serious question of law as to the validity 
of a statute which would be the basis of a threatened 
prosecution for crime, without requiring, as a pre­
requisite to judicial entertainment of the question, that 
interested parties first commit the very acts which are 
involved in the dispute and thereby run the risk of such 
prosecution. .

See also Bunis v. Conway, 17 A. D. 2d 207, 234 N.Y.S. 2d 
435 (4th Dept.), app. dism. 12 N. Y. 2d 882; Bookcase, Inc. 
v. Broderick, 49 Misc. 2d 351, 267 N.Y.S. 2d 410 (Sup. Ct., 
N. Y. Co.). These both sustained the use of declaratory 
judgment to test the constitutionality of penal statutes that 
were attacked as infringing First Amendment rights. Ap­
pellant’s claim that declaratory judgment is “ discretion­
ary”  is meaningless. It is no more discretionary than 
any equitable remedy. See Fenster v. Leary, 20 N. Y. 2d 
309, supra.

Nor does the complaint allege that any prosecution 
would be in bad faith for the purpose of harassment. In 
striking contrast to the situation in Dombrowski v. Pfister, 
supra, this case presents a “ diligent and conscientious 
public officer”  (R. 4) who would, if he undertook any prose­
cution at all undertake a good faith prosecution. Certainly 
the previous prosecution does not denote bad faith nor does 
appellant suggest that it does. The appellant in Fenster v. 
Leary, supra, had been prosecuted three times. But the 
facts there, and the facts here, give no intimation of any 
program of harassment which would make resort to the 
state courts an insufficient means of protection.

Appellant suggests that the fact that he is alleging a 
First Amendment violation makes federal equitable relief 
a necessity because otherwise he will be denied free ex­



15

pression during the period of any prosecution which might 
be undertaken. He overlooks the simple fact that he would 
be in the same position in the federal courts unless he 
obtained a temporary injunction pending the outcome of 
his case. Not only is such relief available in the state 
courts too (CPLR, Section 6301), but also the logic of ap­
pellant’s position is that not only must the federal courts 
intervene in all cases where it is alleged that state penal 
laws violate the First Amendment, but temporary injunc­
tions must be issued in all such cases. This is indeed 
drastic relief where, as here, it is conceded that the state 
officers involved would proceed in good faith, and it is ob­
vious that state processes are adequate to cope with the 
issue raised and that no undue delay would be involved.

By attempting to substitute a rigid per se rule with 
respect to First Amendment cases for the more responsive 
equity rule, appellant would completely recast the role of 
federal equity jurisdiction and alter its position in our 
federal system. This Court has thus far declined to re­
vamp the system. (Cameron v. Johnson, supra; Dombrow- 
ski v. Pfister, supra) and certainly this case indicates no 
need to do so. Evers v. Dwyer, 358 U. S. 202, does not 
require a different result. In that ease it was held that 
the arrest and potential re-arrest of appellant gave him 
standing to assert the issue of the constitutionality of the 
statute and thus created a case or controversy. This 
Court thus reached only the question of jurisdiction and 
not whether that jurisdiction should be exercised. The 
question in this case arises only after a finding of juris­
diction. It being clear that the state courts are fully 
capable of deciding the. issue here presented, the District 
Court did not abuse its discretion in denying federal relief.



16

POINT II

New York Election Law, Section 457, passed pur­
suant to the state power to regulate the conduct of 
elections, is not an unconstitutional restraint of free­
dom  of expression.

Because it found no basis for equitable relief, the Dis­
trict Court did not consider the merits of appellant’s claim 
that New York Election Law § 457 violates his right to 
freedom of expression. This disposition was entirely 
proper. If, however, this Court should adopt the rule 
urged by appellant, then it is clear that the statute, pro­
hibiting the distribution of anonymous campaign literature 
is a necessary implementation of the state’s duty to 
regulate the election process and does not constitute an 
unreasonable restraint of free expression. In assessing 
a statute like Section 457, three factors must be weighed. 
The first is whether or not there is a legitimate state 
purpose in enacting the legislation and a substantial need 
for it. American Communications Association v. Bonds, 
339 U. S. 382; Schneider v. State, 308 II. S. 147, 161. The 
second consideration is whether or not there is a “ sub­
stantial connection between the breadth of disclosure 
demanded and the purpose which disclosure was asserted 
to serve’ ’. Communist Party of the United States v. Sub­
versive Activities Control Board, 367 U. S. 1, 93; Shelton 
v. Tucker, 364 U. S. 479. The third factor, a necessary 
corollary of the second, is whether or not the statute in­
volves an unnecessary restraint on free expression and 
whether disclosure might unduly prejudice those of whom 
disclosure was required. Communist Party of the United 
States v. Subversive Activities Control Board, supra; 
American Communications Association v. Bouds, supra.

In applying this test, this Court has consistently upheld 
limited disclosure statutes serving a strong governmental



17

interest. Communist Party of the United States v. Sub­
versive Activities Control Board, supra; United States 
v. Harriss, 347 U. S. 612; Poulos v. New Hampshire, 345 
U. S. 395; American Communications Association 'V. 
Dowds, supra; Lewis Publishing Co. v. Morgan, 229 U. S. 
288. The New York statute completely satisfies all of the 
requirements enunciated by this Court in sustaining legis­
lation which is challenged on First Amendment grounds.*

New York Election Law, Section 457 is carefully limited 
to anonymous campaign literature. It is not directed at 
all literature printed any time under any circumstances. 
Talley v. California, 362 U. S. 60; Jamison v. Texas, 318 
U. S. 413. It does not restrict the circulation of anon­
ymous literature dealing with ideas or even with current 
issues. See Canon v. Justice Court, 39 Cal. Rptr., 228, 
393 P. 2d 428, 431. It is directed solely at literature re­
specting candidates and propositions on the ballot. It 
requires only that the printer and author or sponsor be 
identified on literature circulated in quantity to influence 
the electorate in their choice. The statute serves the 
legitimate state purposes of insuring the purity of the 
electoral process (Burroughs and Cannon v. United States, 
290 U. S. 534) and promoting the intelligent use of the 
ballot. Katzenbach v. Morgan, 384 IT. S. 641; Lassiter v. 
Northampton County Board of Elections, 360 U. S. 45.

The statute protects the integrity of the electoral 
process first by facilitating the enforcement of various 
anti-corruption provisions in the Election Law. These in­
clude, for example, New York Election Law §§ 320-328 with

* T o  the extent that other theories have been advanced for the 
weighing o f First Amendment claims, Election Law, Section 457 
satisfies the requirements of those tests as well. See e.g., Emerson, 
Toward A  General T heory of the First A mendment (N . Y. 
1966), pp. 104-105 and “ The Constitutional Right to Anonymity: 
Free Speech, Disclosure and the Devil,”  70 Yale L. J. 1084 (1961).



18

respect to requirements for filing reports on campaign re­
ceipts, expenditures and contributions, § 447 respecting 
political assessments, ^454 respecting contributions from 
judicial candidates and § 460 respecting campaign con­
tributions from corporations. To the extent that these 
sections might be circumvented by the expenditure of funds 
on anonymous literature, § 457 operates to prevent such a 
possibility. In this respect it is very similar to the fed­
eral provision, 18 U.S.C. § 612, which also was enacted 
to enforce other provisions of the Federal Corrupt Prac­
tices Act. 2 U.S.C. §'§ 241-256. See S. Rep. No. 1390, 78th 
Cong., 2d Sess., 2 (1944) Letter from Francis Biddle, 
Atty. Gen. to Chairman of Sen. Jud. Com. (April 7, 1944).

The second important interest served by Section 457 
is the right of the public to identify the sources urging it 
to follow a certain course with respect to an election and 
the concomitant ability to evaluate material in light of the 
sources. It cannot be denied that disclosure of the source 
of information is an important factor in ascertaining the 
weight to be given any particular proposal. This is espe­
cially true in the modern era of mass communications.

“ As the market place changed from quill and parch­
ment to printing press, camera and vacuum tube, the 
testing of truth increasingly required disclosure of the 
writer and of the source of financial support of the 
media of communication. The historic anonymity of 
the author is not be analogized with the anonymity 
of the dissemination of ideas in the vast quantities 
presently possible. Perhaps in more leisurely times the 
theory that ideas might be evaluated by themselves 
was a practicable one. In these hectic days when the 
facts upon which action must be based are numerous 
and, in many cases, understandable only by experts, 
the busy citizen has neither the time nor the faculties 
to analyze each idea presented to him and must,



19

therefore, depend upon the status and reputation of 
those who espouse it” . Ernst and Katz, “ Speech: 
Public and Private” , 53 Col. L. Rev. 620, 623 (1953).

The importance of being able to identify the source of 
material is particularly urgent in an election context. As 
opposed to a general and continuing debate on issues, an 
election requires the taking of a position with respect to 
questions of grave importance in a severely limited period 
of time. Cf. 70 Yale L. J. supra at 1115, n. 194. In a 
situation where action is required, the public is entitled 
to know all of the relevant factors, including who supports 
and who opposes a particular candidate, before it can be 
requested to choose among them. This is the rationale of 
the Federal Regulation of Lobbying Act and is applicable 
equally to the election process. As this Court said in 
United States v. Harriss, supra at 625:

“ Present-day legislative complexities are such that 
individual members of Congress cannot be expected to 
explore the myraid pressures to which they are regu­
larly subjected. Yet full realization of the American 
ideal of government by elected representatives depends 
to no small extent on their ability to properly evaluate 
such pressures. Otherwise the voice of the people may 
all too easily be drowned out by the voice of special 
interest groups seeking favored treatment while mas­
querading as proponents of the public weal. . . .

Toward that end, Congress has not sought to pro­
hibit these pressures. It has merely provided for a 
modicum of information from this who for hire at­
tempt to influence legislation or who collect or spend 
funds for that purpose.”

See also Canon v. Justice Court, supra at 431; United 
States v. Scott, 195 F. Supp. 440 (N, Dak.) (upholding 
the federal law 18 U.S.C. § 612); Commonwealth v.



2 0

Evans, 156 Pa. Super. 321, 40 A. 2d 137; State v. Free­
man, 143 Kan. 315, 55 P. 2d 362. The purpose of identi­
fication in no way depends upon the nature of the material 
printed since the right to know in an election situation 
embraces the right to know who is speaking in favor of as 
well as who is opposing a candidate, and who is campaign­
ing with ideas as well as with invective. See also Lewis 
v. Morgan Publishing Co., supra at 312. Apjjellant’s 
assertion that the source of a statement is not necessary 
to an evaluation of its truth, overlooks the fact that 
campaign literature often deals not in statements of truth 
or falsity, but in emotional appeals which contain not 
facts and not ideas but personal factors which may create 
as strong an impression as a statement relating to the 
issues in the campaign. Identification of the source of this 
material would help the public to assess whether or not that 
source is so potent or important a figure or committee 
on the side espoused that it wishes to retaliate at the polls. 
Moreover, of course, the faceless adversary in an election 
campaign, as in a courtroom, cannot be subjected to public 
questioning with respect to his position.

Not only does publication of literature with respect to a 
campaign pressure the public to take sides without pro­
viding for the information as to the source of the pressure, 
but it does so within a period of time which makes it 
difficult, if not impossible, to ascertain the source before 
the choice must be made. This is an impermissible impo­
sition both on the public and on the candidates.

This Court has long recognized that time is of the essence 
in an election campaign. Mills v. Alabama, 384 U. S. 214, 
220. In that case the Court recognized that a law which 
made it a crime in effect to answer “ last minute”  charges 
on Election Day was unconstitutional because that was 
“ the only time they can be effectively answered. Because 
the law prevents any adequate reply to these charges, it is 
wholly ineffective in protecting the electorate ‘ from con-



21

fusive last-minute charges and counter charges.’ ”  See 
also Anderson v. Martin, 375 U. S. 399, 402; American 
Communications Association v. Bonds, supra at 406. The 
question of identification after the election is completely 
irrelevant to the determination which the public must make 
with respect to the election and to the answers which the 
candidate must make with respect to any charges, innuen­
does or emotional appeals.

Nor is the statutory refusal to sanction anonymous cam­
paign literature purely hypothetical or academic. The New 
Tork statute, like the federal statute and the statutes of 
36 sister States* is rooted in experience. New York Elec­
tion Law, Section 457 was enacted in 1962 as an amend­
ment to New York Penal Law, Section 781-b. The original 
Section 781-b dealt only with printing anonymous campaign 
literature and was the result of anonymous appeals to 
ethnic background and other personal factors in the 1940 
Presidential election campaign. The 1962 amendment to * * * §

* A la. Code tit. 17, §282 (1940 ); A laska Stat. § 15.55.030
(1962 ); Ark. Stat. § 3-1412 (1947 A n n .); Cal. Elections Code 
§ 12047-49 (1965 ); Colo. Rev. Stat. §49-21-50 (1963 A n n .);
Fla. Stat. A nn. § 104.37 (Supp. 1966); Idaho Code A nn.
§ 34-104 (1953 ); III. A nn. Stat. ch. 47, §§ 26-1.3 (1963); Iowa 
Code tit. 35, § 738.22 (1966 ); Kan. Stat. A nn. § 25-1714 (1913) ; 
Ky. Rev. Stat. §§ 123.095, 123.130 (Supp. 1966); La. Rev’ 
Stat. § 18:1531 (1950 ); Me. Rev. Stat. A nn. tit. 21, §1575 
(1964 ); Md. Code Art. 33, §221 (1957 ); Mass. A nn. Laws ch. 
56, §§39, 41 (1952 ); Mich. Stat. A nn. §6.1914; Minn. Stat. 
§211.08 (Supp. 1963); Mo. Rev. Stat. tit. 9, § 129.300 (1939 ); 
Mont. ReV. Codes §94-147S (1947 ); Neb. Rev. Stat. § 32-1131-33 
(Supp. 1965); N. H. Rev. Stat. tit. IV , §70.14 (Supp. 1965); 
N. J. Stat. A nn. §§ 19:34-38.1-4 (1963 ); N. D. Century Code 
§ 16-20-17.1 (1959 ); Ohio Rev. Code §3599.09 (Supp. 1966); 
Ore. Rev. S'tat. tit. 23, chap. 268, §260.360 (1955); Pa. Stat. 
A nn. tit. 25, § 3546 (1933 ); R. I. Election Law § 17-23-2 (1923) ; 
S. D. Code 1939 § 16.9930 (Supp. 1960); Tenn. Code §2-2238 
(1955 ); Tex. Election Code Art. 14.10 (1951 ); Utah Code 
§ 20-14-24 (1953 ); Vt. Stat. A nn. tit. 17, chap. 35, § 2022 (1963); 
Va. Code 1950 § 24-456; W ash. R.C.W .A. §29, 85.270 (1965); 
W . Va. Code 1961, chap. 3, §2 1 8 (6 ) (a-b) (Supp. 1965); Wis. 
Stat. A nn., tit. II, chap. 12, § 12.16 (1911).



22

the statute was the direct outgrowth of an investigation 
into the charges and counter charges hurled during the 
1961 Mayoralty Democratic Primary campaign in New 
York City. The two principal candidates for the Demo­
cratic nomination for Mayor, the incumbent, Robert P. 
Wagner, Jr. and State Comptroller Arthur Levitt each 
charged that anonymous literature was being circulated by 
his opponent.

Wagner headquarters charged that the regular Bronx 
Democratic organization circulated a packet of literature 
implying that the Mayor was a “ Communist puppet”  and 
the Levitt headquarters charged that Sanitation Depart­
ment employees in Queens distributed an anonymous anti- 
Semitic leaflet against the Comptroller. An investigation 
was conducted by a Special Assistant Attorney General 
who was counsel to the New York Fair Campaign Prac­
tices Committee and attorneys of standing independently 
selected, who served without compensation (A4). The in­
vestigation was conducted with the cooperation of the 
National Fair Campaign Practices Committee, Inc. The 
investigation committee submitted an interim report an­
nexed hereto as Appendix “ A ”  and a final report annexed 
hereto as Appendix “ B ” . It was established that the 
Wagner charge that the regular Democratic organizations 
in the Bronx and Brooklyn circulated the “ Communist 
puppet”  literature was true (A3, A18). That literature 
was characterized by one of the persons involved in the 
circulation as “ brilliant”  in conception. He said that the 
distribution was dictated by “ politics”  and that “ we were 
fighting for our political life”  (A7).

An examination of the records of the Club circulating 
the literature disclosed no evidence of expenditures for the 
printing of such literature (A19). Moreover, a major por­
tion of the 1961 Primary campaign receipts of the Club in 
question were not recorded and neither the Treasurer nor 
any person associated with the political committee for the



23

District had filed a financial statement with the Secretary 
of State as required by Section 324 of he Election Law, nor 
had a statement been filed identifying the Treasurer of 
the Committee as required by Section 325 of the Election 
Law and most important, Section 327 of the Election Law 
requiring the Treasurer of a political committee to main­
tain a detailed account of campaign receipts and expendi­
tures including a receipted bill stating the particulars of 
each expense had not been compled with (A22-A23). The 
charge that Wagner workers had distributed an anti- 
Semitic leaflet was not established (A3, A18). Indeed, the 
source of the anti-Semitic literature was never established. 
Expert printers informed the investigators that the anony­
mous leaflets had been printed by an unskilled and inex­
perienced person and Wagner headquarters felt that the 
circular was an “ opposition plant”  (A14).

The Committee recommended the removal of the “ cloak 
of anonymity”  (A29-A32), recommending that Section 
781-b of the Penal Law be amended to prohibit printing, 
publishing or distributing of anonymous campaign litera­
ture or causing such literature to be printed, published or 
distributed. They also recommended that the literature 
be required to bear the name and address of the printer and 
the person and organization ordering the material. The 
recommendations of the Committee were, for the most 
part, incorporated in the revised legislation. The new 
statute was supported by the National Pair Campaign 
Practices Committee, the Association of the Bar of the City 
of New York, the Citizens’ Union and the Democratic, 
Republican and Liberal parties.

The exact impact of anonymous literature on opinion 
cannot, of course, be precisely assessed. However, it is a 
well-known phenomenon that the printed word carries an 
impact of its own which tends to incline the recipient of 
literature in the suggested direction, even if the literature 
is anonymous. See W aples, B ebelson and B radshaw,



24

W hat R eading D oes to P eople: A Summary of E vidence 
on the Social E ffects of R eading and a Statement of 
P roblems for R esearch (1940), pp. 108-109. This fact 
has even been demonstrated in the area of campaign 
literature where it was found that an anonymous leaflet 
on a controversial subject tended to change the opinion 
of the recipient of that leaflet in the direction of the 
position it advocated. Dietsch and Gurnee “ The Cumula­
tive Effect of a Series of Campaign Leaflets” , 32 Journal 
of Applied Psychology, 189, 194 (1948). A  written com­
munication will cause a change in opinion even if the source 
or author is one of “ low-credibility” . Low credibility may 
result from an author with an antagonistic view or from 
anonymity. A person who has read the argument tends 
to disassociate the contents from the communicator. While 
he forgets the source, he remembers the text and his atti­
tude is changed by it as long as he is not reminded of the 
source. H ovland, Janis and K elly, Communication and 
Persuasion : P sychological Studies of Opinion Change
(1953), pp. 280-81. In an election context, of course, where 
the source is not identified, no one can be reminded of it.

The law thus arises out of a legitimate state purpose. 
Its need is amply demonstrated by the local and national 
history and its scope is no broader than the interest to be 
served since anonymity is the problem, not the utterance 
itself.

Appellant studiously avoids any discussion of the need 
for the legislation in question and the substantial State 
purpose which it serves. Instead he relies principally on 
the decision of this Court in Talley v. California, supra, 
which prohibited the dissemination in any place, under 
any circumstances, of any anonymous literature. In that 
case there was no need shown for the enactment of such 
a sweeping provision and no valid state interest was served 
in its enactment. However, as we have said, where a



25

valid state purpose is shown, this Court has upheld dis­
closure requirements. The most analogous situation to 
that in the instant case is that in United States v. Harriss, 
swpra, in which this Court held that members of Congress 
had the right to know who was urging support for particu­
lar legislation. In an election situation where the choices 
are more varied and the issues more complex, the need 
is even more pressing to require such disclosure. Several 
states have upheld the constitutionality of such legislation 
based on the right of the public to know in an election cam­
paign who is supporting and who is opposing a particular 
candidate. Canon v. Justice Court, supra; Commonwealth 
v. Evans, supra; State v. Freeman supra. Moreover, 
federal legislation, 18 U.S.C. § 612 has been upheld on 
the same grounds. United States v. Scott, supra.

Appellant’s reliance on Thomas v. Collins, 323 U. S. 516 
is wholly misplaced. In that case a statute requiring prior 
registration of a speaker was struck down. It cannot be 
said that one who presents himself in person to a group 
in order to deliver a speech is very anonymous. Even if 
his name is not revealed, his position can be questioned 
on the spot as can his associations. Moreover, the statute 
there was not directed at the election process and, indeed, 
a registration provision is, in general, wholly unlike a re­
quirement of disclosure on the material circulated. Regis­
tration provisions very often vest in the registration official 
a discretion to regulate either the manner or content of the 
material being distributed. Such legislation is uniformly 
held to be unconstitutional. Cantwell v. Connecticut, 310 
U. S. 296; Schneider v. State, supra; Lovell v. City 
of Griffin, 303 U. S. 444. However, the Court has indicated 
that a statute going no further than merely requiring 
previous identification with respect to an activity in which 
the state had a substantial interest would be sustained. 
Thomas v. Collins, supra at 539; Cantwell v. Connecticut, 
supra at 306. New York Election Law, Section 457 is not 
a registration statute. It contains no prohibition of any



26

kind against the free expression or publication of political 
literature and it does not require prior licensing or any 
other form of permission. It vests no discretion in any 
official to grant or withhold permission to print or distribute 
campaign literature. It requires only limited disclosure for 
the specific purpose of election campaigns.

Appellant’s recital of the long history of anonymous 
literature serves merely to heighten the distinction between 
the limited New York statute and the broad provisions 
struck down in Talley v. California, supra. See also Jami­
son v. Texas, supra at 416. The most famous anony­
mous literature in American history, the Federalist papers, 
although they relate to a question on the ballot, were pub­
lished in newspapers and consequently would not fall with­
in the prohibition of Election Law, Section 457. See gen­
erally B leyer, Main Currents in the H istory of A meri­
can J ournalism (1927), p. 102. Accordingly, appellant’s 
concern about the professional standing of Alexander 
Hamilton and John Jay after the publication of these let­
ters, is groundless (App. Br., p. 10). The letters of Junius 
appeared in the London Public Advertiser from 1769 to 
1772. The publisher was prosecuted for seditious libel 
based on one of the letters which was addressed to the King 
and which protested the policies of the Government. The 
jury acquitted. Bleyer, supra at 23-27. These letters by 
their appearance in the newspaper would not fall within 
Section 457 if published in this country. Moreover, since 
they did not relate to any election campaign they would not 
have fallen within the statute even if they were circulated 
as anonymous hand bills. The letters of Cato appeared 
from 1720 to 1723 in British newspapers and were re­
printed in colonial newspapers. They concerned theories 
of liberty and representative government. Once more not 
only did these letters appear in newspapers, but they were 
unrelated to any election campaign. B leyer, supra, at 23, 
55, 64. The trials of James Franklin and John Peter Zen-



27

ger would also not have fallen within the provisions of 
Election Law, Section 457. B leyee, supra at 58-63.

The basic argument against a statute such as Election 
Law, Section 457 is the fear of reprisal. This is the theory 
of the argument to history most recently expressed in the 
majority opinion in Talley v. California, supra. Since the 
decision in that case, however, this Court has taken great 
strides in extending the First Amendment directly. Asso­
ciated Press v. Walker, 379 U. S. 47; New York Times v. 
Sullivan, 376 U. S. 254; and Time, Inc. v. Iiill, 385 IT. S. 
374, now effectively insulate political criticism from the 
threat of libel and invasion of privacy suits except in the 
most outrageous and egregious oases. The pre-revolution­
ary constitutional literature, while a vital part of our 
heritage, sprang from an atmosphere of governmental 
oppression which they simultaneously served to destroy. 
The cloak of anonymity was a substitute for the free 
speech which the First Amendment was designed to 
insure. Now that the threats of civil and criminal libel 
prosecutions have been removed, the possibility of reprisal 
cannot be assumed. Certainly appellant’s reliance on Bates 
v. City of Little Rock, 361 IT. S. 516 and N.A.A.C.P. v. Ala­
bama, 357 U. S. 449, is misplaced. Those cases presented 
concrete proof of the existence of a hostile atmosphere and 
the threat of reprisal against members of the organization. 
Moreover, the scope of disclosure required in those cases 
was far broader than the disclosure required in Section 
457. While Section 457 requires the names of only the 
printer and the person or committee who authorized the 
printing and distribution, the N.A.A.C.P. cases required 
entire membership lists to be placed on public file. Indeed 
it seems very clear from those eases that disclosure was 
required for the purpose of reprisal.



28

CONCLUSION

For the foregoing reasons, the decision below should 
in all respects be affirmed.

Dated: New York, New York, September 22, 1967.

Respectfully submitted,

Louis J. Lefkowitz 
Attorney General of the 

State of New York 
Attorney for Appellee

Samuel A. H irshowitz 
First Assistant Attorney General

Irving L. R ollins 
George D. Zuckebman 
Brenda Soloff 

Assistant Attorneys General, 
of Counsel.



APPENDIX “A”

INTERIM REPORT

To: H onorable L ouis J. L efkowitz
Attorney General of the State of New York

F rom : J ohn G. B onomi
Special Assistant Attorney General
Counsel, New York Fair Campaign Practices
Committee

R e : P rinting and D istribution of A nonymous 
Campaign L iterature in 1961 Mayoralty 
P rimary

I ntroduction

This is an interim report of the Attorney General’s in­
vestigation into the printing and distribution of anony­
mous “ hate literature”  during the 1961 primary campaign 
for Mayor in New York City.

The present inquiry was instituted at the request of the 
two Democratic primary candidates, New York State 
Comptroller Arthur Levitt, the “ regular”  organization 
candidate and Mayor Robert F. Wagner.

In the last days of the primary campaign a torrent of 
charges and counter-charges concerning the printing and 
distribution of anonymous “ hate literature”  emanated 
from the two opposing Democratic factions.

We have restricted our investigation to complaints con­
cerning anonymous “ hate literature” , which may be vio­
lative of § 781-b of the Penal Law. This statute provides 
criminal penalties for the printing of any campaign litera­
ture which does not identify the printer or sponsoring or­
ganization. The full text of this statute is as follows:

“ § 781-b. Printing or other reproduction of certain 
political literature. No person shall print or reproduce



A 2

in quantity by any method any handbill, pamphlet, 
circular, post card, placard or letter for another, which 
contains any statement, notice, information, allegation 
or other material concerning any political party, can­
didate, committee, person, proposition or amendment 
to the State Constitution whether in favor of or 
against such political party, candidate, committee, 
person, proposition or amendment to the State Con­
stitution, in connection with any election of public 
officers, candidates for nomination for public office, 
proposition or amendment to the state constitution 
without also printing or reproducing thereon legibly 
and in the English language the name and post-office 
address of the printer thereof or of the person and 
committee at whose instance or request such handbill, 
pamphlet, circular, post card, placard or letter is so 
printed or reproduced, and no person nor committee 
shall so print or reproduce for himself or itself any 
such handbill, pamphlet, circular, post card, placard 
or letter without also so printing or reproducing his 
or its name and post-office address thereon. A viola­
tion of the provisions of this section shall constitute 
a misdemeanor.

The term ‘ printer’ as used in this section means the 
principal who or which by independent contractual re­
lationship is responsible directly to the person or 
committee, at whose instance or request a handbill, 
pamphlet, circular, postcard, placard or letter is 
printed or reproduced by such principal, and does not 
include a person working for or employed by such a 
principal. ’ ’

Our interim report concerns two such complaints: (1) 
The Wagner charge that the regular Bronx Democratic 
organization circulated a packet of anonymous “ hate

Appendix “ A ”



A3

literature”  implying that the Mayor was a “ Communist 
Puppet” ; and (2) the Levitt charge that Sanitation De­
partment employees in Queens, distributed an anonymous 
“ Anti-Semitic”  leaflet directed against the candidacy of 
Comptroller Levitt.

After exhaustive investigation we have established that 
the regular Democratic organizations in the Bronx and 
Brooklyn did, in fact, distribute the anonymous packet im­
plying Wagner was a “ Communist Puppet” .

We have found no evidence to support the Levitt com­
plaint that an “ Anti-Semitic”  leaflet was distributed by 
Wagner workers or anyone else. Indeed, the Queens Demo­
cratic leader who purportedly brought this leaflet to the 
attention of Levitt headquarters has questioned its origin 
and authenticity.

Initiation of Investigation

On August 31, 1961, Comptroller Levitt, one of the two 
candidates in the Democratic mayoralty primary, issued a 
public statement which, in part, charged that New York 
Sanitation Department employees were making anti-semitie 
arguments and circulating anti-semitic leaflets in support 
of Mayor Wagner’s candidacy. This public charge was sup­
ported by the release of the “ Anti-Semitic”  leaflet, pur­
portedly being distributed. On September 1, the Comp­
troller sent a formal letter of complaint to the Attorney 
General requesting an investigation.

Mayor Wagner denied any knowledge of the charge and 
requested that the Fair Campaign Practices Committee, 
a national non-partisan organization, initiate an inquiry. 
On September 4, the Attorney General asked the Fair 
Campaign Practices Committee to nominate an attorney 
who would be appointed a Special Assistant Attorney 
General under § 69 of the Executive Law to conduct the 
requested investigation.

Appendix “ A ”



A4

Appendix “  A ”

Two days later, on September 0, the Attorney General 
appointed John G. Bonomi, a Special Assistant Attorney 
General pursuant to the recommendation of this Commit­
tee. The New York City Fair Campaign Practices Com­
mittee was organized on the same day, under the aegis 
of the national group. To assist in the probe Special As­
sistant Attorney General Bonomi nominated, the New 
York City Fair Campaign Practices Committee approved, 
and the Attorney General appointed the following Spe­
cial Assistant Attorneys General: Manuel Guerreiro;
Alexander Holtzman; Donald A. Hopper; Allan A. Pines; 
William Rand; Walter Wager; and Thomas Weaver. All 
are practicing attorneys and served on a part time basis, 
without compensation.

At the request of Special Assistant Attorney General 
Bonomi, the Superintendent of the New York State Police 
assigned two investigators to the staff for the conduct of 
field investigations.

W agner Charge.

On September 6, 1961, Mayor Wagner charged that the 
regular Bronx Democratic organization was circulating 
a packet of anonymous “ hate literature’ implying that he 
was a “ Communist Puppet’ ’. This packet consisted of 
the following four ifieces of literature which bore neither 
the identity of the printer nor the sponsoring organization:

(1) A poster featuring a cartoon in which Mayor 
Wagner is depicted as a puppet of ex-Senator Herbert 
Lehman, Mrs. Eleanor Roosevelt, and three labor 
leaders. A caption on the poster urges voters to 
“ Stop”  Lehman, Mrs. Roosevelt et al. and “ their 
P uppet W agner and all other Splinter Groups, 
A.D.A.’s and Left Wingers from taking over the Demo­
cratic Party’ ’ ;



A5

(2) A poster with the caption ‘ ‘ Lehm an ’s Niece B ails 
Soviet Spy Soblen” . The body of this poster con­
sists of a copy of an article appearing in the August 
29, 1961 issue of the New York Daily News concerning 
Dr. Robert Soblen, recently convicted of espionage 
for the Soviet Union. The portion of the article which 
notes that Lehman’s niece furnished bail for Soblen 
is encircled;
(3) A copy of a photograph of Mayor Wagner with 
Mrs. Roosevelt which appeared in the August 22, 1961 
issue of the New York Post; and
(4) An article in the January 17, 1953 issue of “ The 
Tablet’ ’ lauding Comptroller Levitt’s anti-communist 
activities.

The Mayor referred to this packet as “ the most scurril­
ous kit of campaign literature in the history of American 
politics’ ’.

“ What is more’ ’ the Mayor stated, “ reports have reached 
us that these anonymous leaflets were masterminded by 
Boss DeSapio and carried out by Boss Buckley’s machine 
in the Bronx. We know that envelopes similar to these 
were addressed by clubhouse members all last week to 
special Irish mailing lists. We have received reports that 
the leaflets were stuffed in Boss Buckley’s own clubhouse 
under the direction of Philip Gilsten, the discredited former 
Deputy City Treasurer.”

Investigation of W agner Charge

In our investigation of the Wagner charge we inter­
viewed about one hundred persons including Philip Gil­
sten, the Democratic leader in the 8th Assembly District 
in the Bronx and Executive Member of the North End

Appendix “ A ”



A6

Democratic Club, 416 East 189th Street, The Bronx; Ben­
jamin Gluckow, Secretary to Congressman Charles Buck- 
ley and Secretary of the North End Democratic Club; 
New York City Councilman Thomas J. Cuite, the co-ordi­
nator of the Levitt primary campaign in Brooklyn; Car­
mine DeSapio, former Chairman of the New York County 
Democratic Committee; registered Democratic voters in 
the 3rd Assembly District of The Bronx; printers of cam­
paign literature; and campaign consultants to the opposing 
groups in the Democratic primary.

The original complaint concerning the anonymous “ Com­
munist Puppet”  kit was made by a family residing in 
the 3rd Assembly District in the Bronx. This family had 
received the anonymous kit by mail in an unmarked 
envelope.

Interviews in the field with registered Democratic voters 
in the complainant’s neighborhood established that a num­
ber had received identical kits in unmarked envelopes.

On October 4 two Special Assistant Attorneys General, 
Donald A. Hopper and Allan A. Pines, interviewed Philip 
Gilsten at the executive offices of the North End Demo­
cratic Club, the so-called “ [Congressman] Buckley club­
house” .

Gilsten readily admitted that the anonymous campaign 
packet implying that Wagner Avas a “ Communist Puppet”  
was distributed in the Bronx under the auspices of the 
North End Democratic Club. He described the North End 
Club as a “ drop”  for a substantial portion of the Levitt 
campaign literature distributed in the Bronx. Gilsten 
further explained that all of the regular Democratic clubs 
in the Bronx used the North End’s facilities for the “ proc­
essing”  of campaign material because of its spacious quar­
ters and considerable experience in this activity.

Gilsten stated that workers from all of the regular Bronx 
Democratic clubs came to the North End Club to aid in

A p p en d ix  “ A ”



A7

the preparation of the anonymous “  Communist Puppet”  
kit for distribution. He also reported that some of the 
anonymous kits were mailed directly from the North End 
Club while others were circulated by the regular Demo­
cratic clubs in their own areas.

Gilsten characterized the anonymous “ Wagner Puppet”  
leaflet as “ brilliant”  in conception. He said the distribu­
tion of the anonymous kit was dictated by “ politics”  and 
commented “ we were fighting for our political life” .

Benjamin Gluckow, Secretary to 'Congressman Charles 
Buckley and an officer of the North End Club, confirmed 
Gilsten’s statements concerning the distribution of the 
“ Communist Puppet”  kit. Upon interview, he stated that 
he and other workers in the regular Bronx Democratic 
organization prepared the anonymous kit at the North 
End Club. He described his role as “ stuffing envelopes”  
with the four leaflets. Gluckow volunteered the informa­
tion that the North End Club had special “ Irish, Italian 
and Jewish”  mailing lists and that the “ Communist 
Puppet”  kit “ probably went to the Irish list” .

Councilman Thomas J. Cuite, the co-ordinator of the 
Levitt primary campaign in Brooklyn, admitted that the 
anonymous “ Communist Puppet”  kit was distributed in 
Brooklyn through the Levitt campaign headquarters in 
that borough.

Cuite said that on Friday, September 1, 1961 an un­
known “ printer”  notified him by telephone that certain 
Levitt campaign literature could be picked up at a “ print­
ing or binding firm in Mount Vernon, New York” . He 
said that since he was unable to make arrangements for a 
Friday pick-up the unknown “ printer”  said that he would 
leave the materials at a Democratic club in the Bronx ! ‘ one 
block south of Fordham Road . . . right near Webster 
Avenue” . According to Cuite, the following morning, 
September 2, he set out in search of this Democratic Club.

Appendix “ A ”



A8

By meticulously following the travel directions of the un­
known “ printer”  Cuite said he arrived at the North End 
Democratic Club. Cuite further related that upon arrival 
at the club he was ushered into its executive offices and 
introduced to Philip Glisten. Then Cuite said “ In that 
room I asked if there was any material for the Levitt 
campaign for Brooklyn headquarters. And the gentleman 
whom I was speaking to called for some other man and 
told him I was there to pick up the material for Brook­
lyn” . This latter person, whom Cuite is unable to iden­
tify, then guided the Councilman to a public garage 
situated on an obscure sidestreet in the Bronx. Then 
Cuite and his unknown guide transferred nine cartons of 
Levitt campaign literature from a car parked in the garage 
to Cuite’s automobile.

According to Cuite, it wasn’t until the following Tues­
day, September 5, that he discovered that the nine cartons 
contained three of the four leaflets included in the 
anonymous “ Communist Puppet”  kit. The Councilman 
said that he stored the closed cartons in the assembly room 
of Levitt’s campaign headquarters in Brooklyn over the 
Labor Day weekend and they were not opened until 
September 5. Councilman Cuite said that he obtained the 
fourth anonymous leaflet in the “ Communist Puppet”  kit 
directly from a firm known as the Seminole Printing Cor­
poration.

Cuite stated that Levitt’s Brooklyn headquarters distri­
buted the anonymous “ Communist Puppet”  literature to 
the borough’s regular Democratic leaders for use in their 
home areas.

As noted previously, one of the anonymous circulars 
included in the “ Communist Puppet”  kit was a copy of 
an article appearing in “ The Tablet” , praising Comp­
troller Levitt’s anti-communist activities. We have estab- 
ished that 100,000 copies of this anonymous circular were

A p p en d ix  “ A ”



A9

printed by Seminole Printing Corporation, Inc., 225 
Yarick Street, New York. Another 50,000 copies of the cir­
cular were printed by Printolith Corp., 118 East 25th 
Street, New York, at the request of the Seminole Corpo­
ration.

Joseph Cohen, the proprietor of Seminole was unable 
to explain the absence of any printer’s or sponsor’s iden­
tification on this circular. Max Weiss, the president of 
Printolith admitted the omission of any identification on 
the anonymous “ Tablet”  circulars he printed.

William Volet, Executive Assistant to Comptroller 
Levitt, placed the two orders with Seminole. There is no 
evidence that Volet instructed either printer to omit the 
identification required under the law.

Our investigation to determine the printer of the three 
other anonymous circulars included in the “ Communist 
Puppet”  kit has been temporarily delayed by an order of 
Justice George Tilzer of the New York State Supreme 
Court restraining the Attorney General from obtaining the 
books and records of the North End Democratic Club. In 
order to ascertain whether the North End Club ordered 
this anonymous literature we served Philip Glisten on 
October 4, with a personal subpoena and a subpoena duces 
tecum calling for certain books and records of the Club. 
Gilsten did not appear at the Attorney General’s office 
on the return date of the subpoena, October 6. On Sunday, 
October 8, Justice Tilzer signed an order to show cause 
why both subpoenas should not be vacated or modified. He 
also signed a stay order enjoining the Attorney General 
from taking “ any steps or proceedings to compel the 
appearance of Gilsten”  or the production of North End’s 
books. The Attorney General is further restrained under 
this order from proceeding against Gilsten for contempt. 
As of this date the motion is still pending in Part I of the 
Supreme Court.

A p p en d ix  “ A ”



A10

Upon interview Carmine DeSapio denied Mayor Wag­
ner’s charge that he “ masterminded”  the “ Communist 
Puppet”  kit. Our investigation has uncovered no evidence 
that DeSapio either “ masterminded”  or participated in 
any way in the distribution of this literature.

A p p en d ix  “ A ”

L evitt Charge

On August 31, 1961, Comptroller Levitt issued a public 
charge that campaign workers for Mayor Wagner had 
injected anti-Semitism into the Democratic primary con­
test. Comptroller Levitt said, “ I have confirmed that 600 
workers of the Sanitation Department are working in 
Queens . . . using the argument that a victory for Levitt 
will leave a Jew to run against a Jew—Levitt v. Lefko- 
witz” . On the same date Levitt headquarters released a 
photographic copy of what a spokesman called a sample 
of the anti-Semitic literature allegedly distributed in 
Queens. This “ Anti-Semitic”  circular bore the legend:

Irish A merican Democrats 
V ote for W agner 
On Primary Day 
Thurs. Sept. 7th 
3 PM to 10 PM 

or E lse You W ill Have 
A Levitt or A L efkowitz As Mayor

The L evitt headquarters identified Matthew Troy, Jr., 
Democratic Leader in the 9th Assembly District, Part A in 
Queens and Harold Fisher, Chairman of the Law Com­
mittee of the Brooklyn Democratic organization, to the 
press as the sources of these charges. This public state­
ment received wide publicity in the metropolitan news­
papers and appeared on page one of the New York Times 
on September 1.



A ll

A p p en d ix  “ A ”

On September 1, Comptroller Levitt sent a formal com­
plaint to the Attorney General which stated in part that 
“ groups have been busy going into the non-Jewisli areas 
using the argument that unless Wagner is elected in the 
Primary ‘ the Jews will take over City Hall’.

“ The history of this kind of campaign is not new in 
American politics. Every major Jewish figure has been 
subjected to it. I can recall instances in the past when 
this same vile literature—unattributed, irresponsible, big­
oted in every respect—was used against Herbert Lehman 
. . .  I am asking for nothing more than what he has always 
asked—that the purveyors of this literature and the whis­
pering hate mongers be stopped” . (Underlining added by 
our staff)

To support this charge of the distribution of anti-Semitic 
literature the Comptroller attached as an exhibit “ a photo­
static copy of literature addressed to Irish-Ameriean 
Democrats” —the anonymous “ Anti-Semitic”  leaflet to 
which we have previously referred. The Levitt complaint 
included no evidence in this matter beyond the naked 
charge and the copy of the “ Anti-Semitic”  leaflet. On 
the same evening the Comptroiler appeared on NBC—TV 
and repeated the charge. At that time he once again 
exhibited a copy of the anonymous “ Anti-Semitic”  leaflet. 
Two days later, on September 3, Comptroller Levitt stated 
on the “ Direct Line”  television program, “ these in­
stances of anti-Semitic literature were brought to my 
attention from responsible sources”  (underlining added by 
our staff).

Investigation or L evitt Charge

During the course of this inquiry into the anonymous 
“ Anti-Semitic”  circular over 100 witnesses were inter­
viewed, including Frank Lucia, New York City Commis­
sioner of Sanitation; a considerable number of Sanitation



A12

Department supervisors and employees active in the Wag­
ner primary campaign; campaign advisors to the Mayor; 
registered Democratic voters in the 9th Assembly District 
in Queens; the Democratic leader of Part A of that 
Assembly District, Matthew Troy, Jr.; Harold Fisher, 
Chairman of the Law Committee of the Brooklyn Demo­
cratic organization; former Justice Daniel V. Sullivan, 
Levitt’s campaign manager; William Vanden Heuvel, a 
Levitt campaign consultant; and Irwin Rosenthal, a re­
searcher at Levitt headquarters at the Hotel Biltmore, 
Manhattan.

Our investigation established that in August, 1961 Sani­
tation Commissioner Frank Lucia organized a 9th A. D. 
Independent Citizens Committee for Wagner in the Queens 
Village area. About seventy persons, mainly Sanitation 
Department employees, “ volunteered”  or were recruited by 
the Uniformed Sanitationmen’s Union as workers for this 
Committee. During the period before the September 7 
primary this Wagner Committee conducted a highly 
organized campaign on behalf of the Mayor, including door- 
to-door canvassing and distribution of literature. The 
Levitt group charged that these campaign workers were 
making anti-Semitic arguments and distributing the anony­
mous “ Anti-Semitic”  circular.

Matthew Troy, Jr., identified by the Levitt group as the 
person who originally brought the “ Anti-Semitic”  circular 
to their attention gave sworn testimony before our staff 
on two occasions. Troy said that several weeks before the 
primary he began to receive reports that sanitation 
workers with the 9th A. D. Citizens Committee for Wag­
ner, were making anti-Semitic arguments in door-to-door 
canvassing. He said that he transmitted these reports to 
Irwin Rosenthal, a member of the Levitt research staff. 
Troy further stated that, on the urging of Rosenthal, he 
went to regular Democratic headquarters in the Biltmore

Appendix “ A ”



A13

A p p en d ix  “ A ”

Hotel and repeated these reports to Levitt’s campaign 
advisors.

He said that he was asked at that time whether any 
anti-Semitic circulars were being distributed in the Queens 
Village area. Troy said that he told the Levitt advisors 
that no such reports had been made to him. According to 
Troy he saw a copy of the “ Anti-Semitic”  leaflet for the 
first time on September 1 at Levitt headquarters in the 
Biltmore Hotel. The questioning of Troy was as follows:

Q. Well, sometime before September 1st, when Mr. 
Levitt appeared on television with this exhibit did you 
see an original of the circular at the Biltmore! A. Yes, 
I believe it was on September 1st that I saw it. . . .

Q. Did you bring that original to the Biltmore? 
A. No, I did not.

Q. Do you have any knowledge of how it arrived at 
the Biltmore? A. I have none whatsoever, except to 
say that was there in the room and showed to me 
when—after I had come into the room. I have no idea.

Q. Who showed it to you? A. I don’t remember now. 
I don’t remember at all.

Q. Well, what did the people at the Biltmore have to 
say about the source of this literature? A. If I recall, 
I asked them where they got this piece of literature, 
and they said that the captains from the districts 
were bringing them in. And from the way they talked 
I assumed that they had more. I thought they had. 
Well, it was in my own mind, but I felt they had better 
than 20 of them. The way they said the captains were 
bringing them in. It seemed to be a multiple operation 
rather than just one, but the one they showed me was 
a very rolled up—it had been straightened out now, 
but it appeared to have rolled up and creased or it had 
been left lying somewhere, and a person might roll it 
up and throw it away.



A14

On August 31, the Levitt headquarters released a copy 
of the “ Anti-Semitic”  circular to the press and on the 
following day this leaflet was exhibited over television by 
Comptroller Levitt.

Troy gave sworn testimony that on September 4th, five 
days after the “ Anti-Semitic”  circular exhibit was re­
leased by Levitt Headquarters, an unknown person brought 
a copy of this leaflet to his office at the Queens Village 
Democratic Club. Troy said that this was the first time he 
knew of any such circular in the Queens Village area. He 
stated that he thought the bearer of this circular “ might 
be planted or he might be being used by somebody to plant 
it in our area to give credence to the story that was being 
told” . Troy stated that he brought the “ Anti-Semitic”  
circular to Levitt headquarters on September 5 or 6. At 
that time, according to Troy, he told the Levitt campaign 
staff that he “ doubted the authenticity of the piece of 
literature.”

We have been advised by expert printers that the anony­
mous “ Anti-Semitic”  leaflet was an “ amateur’s job” . 
These printers are of the opinion that the composition of 
the circular indicates that it was jjrinted by an unskilled 
and inexperienced person.

Commissioner Lucia and all of the Sanitation Depart­
ment employees interviewed, denied any knowledge of the 
printing or distribution of the anonymous “ Anti-Semitic”  
leaflet. In fact, Lucia opined that the circular was an ‘ ‘ op­
position plant” . Interviews by our field staff with regis­
tered Democratic voters in the 9th Assembly District in 
Queens uncovered no person who had received a copy of 
this anonymous leaflet.

Harold Fisher, Chairman of the Brooklyn Democratic 
Law Committee, identified by Levitt headquarters as a 
second complainant in this matter, was also interviewed 
bv our staff. Fisher recalled receiving complaints about 
anti-Semitic arguments being used by Wagner workers.

Appendix “ A ”



A15

However, he was unable to identify any person who made 
such complaints. He further stated that he had no infor­
mation about the distribution of the anonymous “ Anti- 
Semitic”  leaflet and saw it for the first time when Comp­
troller Levitt appeared on television on September 1.

We enlisted Comptroller Levitt’s aid in tracing the 
source of the anonymous “ Anti-Semitic”  circular utilized 
in his public statement of August 31 and his television 
appearance of September 1. He referred our staff to 
William Vanden Heuvel, a campaign advisor. Comptroller 
Levitt, in a letter to Special Assistant Attorney General 
Bonomi, dated October 19, 1961, stated, “ I was handed the 
literature in my New York City Headcpiarters by Mr. 
William Yanden Heuvel” .

Vanden Heuvel, upon interview, said that he had no 
personal knowledge how many copies of the “ Anti-Semitic”  
circular arrived at Levitt Headquarters but speculated “ I 
would presume it came from Matthew Troy or his cap­
tains, or the people in that area who received it. It pos­
sibly could have come anonymously in the mails as many 
things that crop up in campaigns unfortunately arrive” .

No other campaign advisor at Levitt Headquarters was 
able to cast any light on the source of the anonymous 
“ Anti-Semitic”  leaflet. A few believe, however, that Mat­
thew Troy, Jr., had reported the distribution of this litera­
ture in the Queens Village area prior to September 1.

Troy was also interviewed concerning the Levitt charge 
that anti-Semitic arguments were being used by Wagner 
workers in door-to-door campaigns. He said that two cap­
tains in his Assembly District reported the use of anti- 
Semitic arguments by Wagner campaign workers. How­
ever, Troy refused, under oath, to identify these captains 
or give any information about complaints of this nature 
in the Queens Village area. Only one of Troy’s election 
captains, Salvatore Sciame, stated that he heard such re­
ports. He said that unidentified customers of his grocery

A p p en d ix  “ A ”



A16

store told him “ that somebody had approached them saying 
that it would be a situation (if Wagner lost the primary) 
where a Jew would be running against a Jew” . Interviews 
by our staff in Sciame’s election district failed to uncover 
any Democratic voter who heard anti-Semitic arguments 
being used by Wagner workers. The Sanitation Depart­
ment personnel appearing before our staff denied any such 
activity.

# # * *
We will submit a final report at a later date concerning 

our further investigative findings, conclusions and legisla­
tive recommendations.

In closing this interim report, we wish to express our 
appreciation to the Attorney General for the cooperation 
afforded this investigation in generously providing office 
space and extensive clerical help. We might also note that 
the Attorney General has scrupulously adhered to his pre­
investigation pledge to give our staff a “ free hand”  in the 
conduct of this inquiry.

A p p en d ix  “ A ”



A17

F inal, R eport

To: H onorable L ouis J. Lefkowitz
Attorney General of the State of New York

F rom : J ohn G. B onomi
Special Assistant Attorney General 
Counsel, New York City Fair Campaign Practices 

Committee

R e: Printing and D istribution of A nonymous 
Campaign L iterature in 1961 Primary and 
General E lections in New Y ork City

I ntroduction

This is the “ Final Report”  of the Attorney General’s 
investigation into the printing and distribution of anon­
ymous literature during the 1961 primary and general elec­
tion campaigns in New York City. On November 3, 1961, 
we publicly released our “ Interim Report” .

In this report, we have incorporated additional investi­
gative findings and our legislative recommendations. Our 
investigative findings concern campaign literature which 
may have been printed, distributed and financed in viola­
tion of § 781-b of the Penal Law and/or Article 13, §§ 320- 
328 of the Election Law (see Appendix I for full text of 
§ 781-b, Penal Law). In addition, we have conducted two 
studies which suggest serious defects in Section 781-b.

Section 781-b provides criminal penalties for the print­
ing of any campaign literature which does not identify 
either the printer or sponsoring organization.

Article 13 of the Election Law requires that “ political 
committees”  file detailed statements of all campaign re­
ceipts and expenditures (including those financial transac­

APPENDIX “B”



A18

tions which relate to the printing and distribution of cam­
paign literature) with both the New York Secretary of 
State and the New York City Board of Elections. A  
“ political committee”  is defined by this Article as any 
group of three or more persons cooperating to aid in the 
election or defeat of a political candidate (§320, Election 
Law).

Under §776 of the Penal Law, a treasurer of a “ po­
litical committee”  who neglects to file the financial state­
ment required by the Election Law is subject to criminal 
penalties. Any person who knowingly and willfully vio­
lates any other section of Article 13 is chargeable with a 
misdemeanor under § 783 of the Penal Law (see Appendix 
II for full texts of §§776 and 783, Penal Law).

Summary of F indings

In our November 1961 “ Interim Report” , we found no 
evidence, whatsoever, to support a complaint by the 
regular Democratic organization that an anonymous 
“ Anti-Semitic”  leaflet had been distributed by workers for 
Mayor Robert F. Wagner.

We did, however, establish that the regular Democratic 
organizations in the Bronx and Brooklyn distributed 
anonymous literature during the 1961 primary campaign 
implying that the Mayor was a “ Communist Pfippet” . We 
further ascertained the identity of two printers responsible 
for the illegal printing of 150,000 copies of this anonymous 
literature (§ 781-b, Penal Law).

Now, in this “ Final Report” , we set forth the results 
of the following investigations and studies:

(1) “ Communist Puppet”  Kit
Since our “ Interim Report”  on “ Communist Puppet”  

literature, we have obtained the sworn testimony of Philip

A p p en d ix  “ B ”



A19

Gilsten, a Bronx Democratic leader and Executive Member 
of the North End Democratic Club. Glisten’s sworn testi­
mony confirmed our interim finding that the North End 
Club acted as a distribution center for “ Communist Pup­
pet”  circulars.

An examination of the records of the North End Club 
disclosed no evidence of expenditures for the printing of 
anonymous literature. However, these records were main­
tained by Gilsten in clear violation of those provisions of 
the Election Law which require detailed accounting of 
campaign receipts and expenditures.

(2) “  Wagner Committee”
John J. Gilhooley, a Republican candidate for City Con­

troller, denounced a political advertisement in the Novem­
ber 4 issue of the “ Irish Echo” , a weekly newspaper, as 
a “ minority appeal” . The ad was bare of sponsor’s iden­
tification except for a line reading “ Independent Citizens 
Committee for Wagner, Screvane and Beame” .

Wagner Campaign Manager Edward P. Cavanaugh 
promptly disavowed the ad as “ unauthorized”  and “ de­
plorable” . Upon interview, Sean Keating, then Assistant 
to the Mayor, defended the ad as not “ too outrageous” .

Our inquiry revealed that the ad’s sponsoring committee 
was conceived at a meeting between Keating and two 
friends at Wagner headquarters. Keating said that his 
overriding concern was whether “ they had Wagner, Beame 
and Screvane’s name”  on the ad and claimed only a casual 
interest in the committee’s activities after the first meet­
ing. The evidence indicates that the committee was formed 
without the knowledge or authorization of the Mayor and 
subsequently operated independent of Wagner head­
quarters.

There are no provisions in the Penal or Election Laws 
governing the identification of sponsors of political ads

A p p en d ix  “ B ”



A20

appearing in newspapers, magazines and other periodicals. 
As a consequence, such a sponsoring group may remain 
anonymous or identify itself in a vague and misleading 
manner.

(3) “  Anonymous Posters”
Our second study involved anonymous (but non-scur- 

rilous) political posters exhibited in Democratic primary 
contests in the Yorkville and East Harlem areas of New 
York. These posters, which came to our attention during 
the interim investigation, supported the regular organiza­
tion candidate for District Leader and City Councilman 
in those areas, John J. Merli. Our staff uncovered the 
printer and financier of these placards.

Under § 781-b of the Penal Law, a printer may be held 
criminally responsible for those anonymous posters which 
relate to the election of “ public officers”  such as city coun- 
cilmen. However, he may not be prosecuted for printing 
anonymous placards which concern a district leader con­
test since elections of “ party officers”  are omitted from 
the provisions of Section 781-b.

A p p en d ix  “ B ”

( I )

I nvestigation E e : “ Communist P uppet”  K it

Philip Gilsten, Democratic leader in the Eighth As­
sembly District of the Bronx and Executive Member of 
the North End Democratic Club, had been interviewed at 
the North End Club on October 4. At that time, Gilsten 
readily admitted that an anonymous campaign packet im­
plying that Wagner was a “ Communist Puppet”  was dis­
tributed in the Bronx under the auspices of the North End 
Democratic Club. He described the North End Club as a 
“ drop”  for a substantial portion of the Levitt campaign



A21

literature distributed in the Bronx. Gilsten further ex­
plained that all of the regular Democratic clubs in the 
Bronx used the North End’s facilities for the “ processing”  
of campaign material because of its spacious quarters and 
considerable experience in this activity.

Gilsten, in the October 4 interview, stated that workers 
from all of the regular Bronx Democratic clubs came to 
the North End Club to aid in the preparation of the anony­
mous “ Communist Puppet”  kit for distribution. He also 
reported that some of the anonymous kits were mailed 
directly from the North End Club, while others were circu­
lated by the regular Democratic clubs in their own areas.

Gilsten, at that time, characterized the anonymous 
“ Wagner Puppet”  leaflet as “ brilliant”  in conception. He 
said the distribution of the anonymous kit was dictated by 
“ politics”  and commented, “ we were fighting for our 
political life” .

In order to obtain the sworn testimony of Gilsten and 
ascertain whether the North End Club had ordered any of 
this anonymous literature, we served Gilsten, on October 4, 
with a personal subpoena and a subpoena duces tecum 
calling for certain books and records of his organization. 
Gilsten did not appear at the Attorney General’s office on 
the return date of the subpoena, October 6. October 8, 
Justice George Tilzer signed an order to show cause in the 
New York State Supreme Court why both subpoenas should 
not be vacated or modified. Justice Tilzer also signed a 
stay order enjoining the Attorney General from taking 
“ any steps or proceedings to compel the appearance”  of 
Gilsten or the production of the North End’s books. The 
motion was argued in Part I of the New York Supreme 
Court in October 10. On November 20, Justice Owen 
McGivern ordered Gilsten to appear at the Attorney 
General’s office on November 28 and produce certain books 
and records of the North End Club.

A p p en d ix  “ B ”



A22

On this latter date, Gilsten appeared and was examined 
under oath. Gilsten admitted, in his sworn testimony, that 
the North End Democratic Club acted as a distribution 
center for the anonymous “ Communist Puppet”  literature 
circulated in the Bronx.

Gilsten swore that he had no idea where the anonymous 
“ Communist Puppet”  literature was printed or how this 
material arrived at the North End Club. [It should be 
noted that during the interim investigation, we established 
that certain of this anonymous literature was ordered at 
the city-wide regular Democratic headquarters; printed by 
two New York City concerns; and that nine cartons of 
“ Communist Puppet”  kits were obtained by City Council­
man Thomas J. Cuite after a brief conference with Gilsten 
and his aides at the North End Club.]

Meager financial books and records were produced by 
Gilsten in response to the subpoena duces tecum. The 
North End Club’s financial records consisted almost en­
tirely of cancelled checks, bank statements and check stub 
books. However, a major portion of the club’s 1961 pri­
mary campaign receipts and expenditures were in cash and 
non-recorded.

Gilsten acted as de facto treasurer for the 8th Assembly 
District’s “ Political Committee”  (actually the North End 
Democratic Club) in the 1961 Democratic primary. He 
stated that he personally collected all monies contributed 
to the committee for the primary campaign and also super­
vised all expenditures.

As previously indicated, Article 13 of the Election Law 
makes the “ treasurer”  of a “ political committee”  re­
sponsible for maintaining certain financial records and 
filing prescribed statements with tthe Board of Elections 
and the Secretary of State. A  record search showed that 
neither the “ treasurer”  nor any other person associated 
with the 8th Assembly District’s ‘ ‘ political committee ’ ’ had

A p p en d ix  “ B ”



A23

filed a financial statement with the Secretary of State as 
required by § 324 of the Election Law.

This search also revealed a violation of §325 of the 
Election Law in that no statement had been filed with the 
Secretary of State identifying the “ treasurer”  of the 8th 
A. D. “ political committee” .

Furthermore, §325 as supplemented by §327 of the 
Election Law requires the “ treasurer”  of a “ political 
committee”  to maintain a “ detailed account”  of all cam­
paign receipts and expenditures, including a “ receipted 
bill”  stating the particulars of each expense. Glisten’s 
sworn examination revealed that he did not maintain ordi­
nary business accounts and had no “ receipted bills”  for 
most expenses incurred.

The records produced by Gilsten established that Ben­
jamin G-luckow, Secretary to Congressman Charles Buckley, 
filed a financial statement with the Board of Elections for 
the 8th A. D. “ political committee”  on September 28, 1961. 
However, this statement was contrary to the requirements 
of § 3'21 of the Election Law in that it was unsworn and 
failed to set forth the particulars prescribed by the 
statute.

No pre-primary financial statement was filed with the 
Board of Elections or the Secretary of State as required 
by § 323 of the Election Law.

A p p en d ix  “ B ”

(II)
Study Re : “ W agneb Committee”

The November 4 issue of the “ Irish Echo” , a weekly 
newspaper, situated at 1849 Broadway, New York County, 
contained a full page political advertisement which identi­
fied the sponsoring group as the “ Independent Citizens 
Committee for Wagner, Screvane and Beame” . No com­
mittee address or sponsoring member was listed.



A24

This advertisement featured a headline which stated:
“ T he Irish voter put K ennedy in the W hite H ouse 
let ’s send W agner and his team back to City Hall”

On November 5, John J. Gilhooley, the Republican can­
didate for City Controller, denounced the “ Irish Echo”  
advertisement. He stated, “ This Wagner advertisement 
is an insult to the Presidency of the United States; it is 
an insult to President Kennedy himself who never made 
such minority appeals.”  Gilhooley exhorted the Mayor, 
“ Don’t drag us back into a time when ‘we’ meant a minor­
ity group in a racial or political or social ghetto.”

Since the advertisement was not anonymous and ap­
peared to accurately identify the sponsor as a “ Wagner 
Committee” , Gilhooley’s charge was not initially investi­
gated by our staff. However, in response to an inquiry 
from the New York City Fair Campaign Practices Com­
mittee, Edward P. Cavanaugh, Mayor Wagner’s campaign 
manager, stated that the sponsoring group was “ unau­
thorized”  and that Wagner headquarters “ deplored this 
type of campaigning” . At the request of the New York 
Fair Campaign Practices Committee, we thereupon ini­
tiated a study of this situation.

In the initial stages of this inquiry, we were informed 
by the editors of the “ Irish Echo” , that one John O’Don­
nell, a restaurant owner, whose home address was un­
known, had ordered the ad. After considerable investiga­
tion we located O’Donnell, and he was examined under 
oath at the Attorney General’s office concerning the make­
up of the “ Independent Citizens Committee for Wagner, 
Screvane and Beanie” . This portion of the examination 
proceeded as follows:

“ Q. You see at the bottom of that exhibit (adver­
tisement in ‘ Irish Echo’ ) there is ‘ Independent Citi­
zens Committee for Wagner, Screvane and Beanie’.

A p p en d ix  “ B ”



A25

Appendix “  B ”

Who are the people on that committee? A. Jim (Fitz­
patrick) would know better than me.

Q. Do you know? A. No. I ’m a member of a com­
mittee in connection with that ad. I ’m a member of 
a committee of three, I suppose you call it. That’s 
the way it originated between Keating, Fitzpatrick and 
myself.

iQ. As far as you know, the Committee is made up 
of Sean Keating, Fitzpatrick and yourself. A. Pos­
sibly.

Q. Don’t you know? A. I know we were three of the 
members.”

O’Donnell relayed that some time prior to the general 
election on November 7, 1961, he and James Fitzpatrick, 
a salesman, met with a long time friend, Sean Keating, then 
Assistant to the Mayor, at Wagner campaign headquarters 
in the Hotel Astor.

O’Donnell said that the purpose of this visit was to pur­
chase tickets for a Wagner campaign banquet. However, 
during the course of the meeting, Fitzpatrick suggested 
that it would be “ nice if we had a full page ad in the ‘ Irish 
Echo’ ”  endorsing Mayor Wagner. Then, according to 
O ’Donnell, Fitzpatrick volunteered to act as treasurer of 
the group; Keating wrote some innocuous advertising copy; 
and O’Donnell telephoned James A. Callahan, advertising 
agent of the “ Irish Echo” , to make preliminary arrange­
ments for the advertisement.

O’Donnell said that at a later meeting in O’Donnell’s 
restaurant, Callahan wrote the portion of the advertis- 
ment characterized by Gilhooley as a “ minority appeal . 
O ’Donnell stated that Callahan also “ dreamt-up”  the 
name to be given to the sponsoring group, “ Independent 
Citizens Committee for Wagner, Screvane and Beame” .

James Fitzpatrick, a district sales manager for a bew 
York concern, gave sworn testimony in the “ Wagner Com­



A26

mittee”  inquiry. Fitzpatrick stated that he had known 
Keating socially for about twenty years. His version of 
the meeting with Keating at the Hotel Astor was substan­
tially the same as O’Donnell’s. Fitzpatrick stated that 
his sole function with the committee was to act as treasurer.

Upon interview, James Callahan, the advertising agent 
for the “ Irish Echo” , stated that on October 26, 1961, 
O ’Donnell called him at the newspaper offices concerning 
a proposed political advertisement. Callahan said that he 
met the same day with 0  ’Donnell and Fitzpatrick to make 
arrangements for the insertion of the ad in the “ Irish 
Echo” . Callahan’s version of this meeting was brought 
out in the following questions and answers:

“ Q. Who suggested that the caption should be put 
on the advertisement ‘ Independent Citizens’ Commit­
tee for Wagner, Screvane and Beame’ ? A. Well, I 
said, ‘Now fellows, whose going to pay for this ad?’ 
They said, ‘We are.’ I said ‘ 0. K .’ Now I had to 
have a source. They said ‘ Independent Citizens’ Com­
mittee for Wagner, Screvane and Beame’.

Q. Who said it? A. Both of them.
Q. Mr. O’Donnell and Mr. Fitzpatrick? A. Yes.”

Callahan further stated that he had written the “ minor­
ity appeal”  headline for the advertisement in order to give 
it “ zip”  and “ a punch line” .

Callahan said that the price of the ad was $400. John 
Grimes, the business manager of the “ Irish Echo”  stated 
that on December 1, Fitzpatrick paid for the advertise­
ment with $395 in cash and a $5 check.

A search of the records of the Board of Elections and 
Secretary of State revealed that Fitzpatrick as “ de facto 
treasurer”  of an “ informal committee for the placing of 
an ad in the ‘ Irish Echo’ to support the re-election of 
Hon. Robert F. Wagner”  (actually the so-called “ Inde­

A p p en d ix  “ B ”



A27

pendent Citizens Committee for Wagner, Serevane and 
Beame” ) had filed the financial statements required of 
“ political committees’ ’ under the Election Law. This state­
ment identified eighteen persons who had allegedly con­
tributed $350 and pledged $50 for the “ Irish Echo”  adver­
tisement. The listed contributors included John J. O’Con­
nor, a business associate of Keating’s in the Fairways 
Travel Agency, 589 West 207th Street, New York County.

Further inquiry disclosed that the donors were all social 
or business friends of Keating, Fitzpatrick and O’Donnell. 
Several of the contributors stated that they made dona­
tions out of “ friendship”  rather than political conviction 
and that they were actually supporters of Lawrence Gerosa, 
a third-party candidate in the mayoralty race.

Sean Keating, former Assistant to’ the Mayor and now 
Regional Director of the United States Post Office was 
interviewed on November 15, 1961. Keating substantiated 
the statements of O’Donnell and Fitzpatrick concerning 
the initial meeting at the Hotel Astor. He denied any fur­
ther active participation in the committee’s work.

Keating defended the committee’s ad, stating “ I didn’t 
see anything too outrageous. Just as long as they had 
Wagner, Beame and Serevane’s name on there, that’s what 
I was concerned with.”

He said that even though the idea for sponsoring the 
“ Irish Echo”  advertisement originated in his office at 
Wagner headquarters, the committee was “ unauthorized” . 
He stated that Wagner Campaign Manager Cavanaugh 
“ called me at my room and said ‘who the hell put this ad 
in'? Did we authorize that1?’ I said,‘ No.’ I said ‘ It was 
somebody else entirely’. So he was satisfied then because 
somebody had evidently brought it to his attention.”

When Keating was asked whether he had ever made an 
inquiry concerning the full membership of the committee, 
he retorted, “ No, because I knew that O’Donnell and

A p p en d ix  “ B ”



A28

‘ Fitz’ had taken the ad out and I assumed that they were 
the Independent Citizens because they’re both independent 
and they ’re both citizens. ’ ’

(III)
Study Be : “ A nonymous P osters”

During this investigation, we were informed that anon­
ymous (but non-scurrilous) political posters were being 
exhibited in the Yorkville and lower East Harlem areas 
of New York County. One of these posters depicted 
Carlos Bios, an “ insurgent”  primary candidate for 
Democratic Leader in the 10th Assembly District of New 
York County as a “ puppet”  of Assemblyman Mark Lane. 
Another anonymous poster showed Bobert Low, an “ in­
surgent”  Democratic Councilman candidate in the 22nd 
Senatorial District as a “ puppet”  of Mayor Wagner. Both 
of these posters endorsed the candidacy of John J. Merli, 
the “ regular”  Democratic organization candidate in the 
District Leader and Councilman primaries.

A field survey revealed that about thirty such anon­
ymous posters were in evidence in these areas.

Further investigation revealed that Maxwell Mokut, 
Chairman of the “ Independent Democrats for the Be-elec- 
tion of John J. Merli”  had ordered and paid for these 
posters. Our investigation also established that David 
Sehoer, the owner of Crenshaw Studios, 25 West 26th 
Street, New York County, drew the “ puppet”  cartoons 
featured on both posters; and that Henry Fuchs, a printer 
operating under the trade name of Sun Litho Art, 135 
West 25th Street, New York County, printed “ a thousand 
or two thousand”  copies of these anonymous placards.

Upon examination, Fuchs stated that although he had 
printed political posters previously, “ I don’t put no iden­
tification on none of my printing” .

A p p en d ix  “ B ”



A29

L egislative R ecommendations

We, in New York, are in the “ horse and buggy age”  in 
the consideration of legal weapons to combat anonymous 
“ hate literature” .

The great preponderance of campaign “ hate literature”  
is ordered, printed and distributed in a furtive and con­
spiratorial manner. There is a compelling reason for this 
secrecy. The political leaders responsible for the dis­
semination of “ hate literature”  live in mortal fear of dis­
covery by an aroused and enlightened electorate.

We believe that the most effective legal means for fight­
ing hate peddlers is to remove their cloak of anonymity. 
If these persons are clearly identified, the voting public 
may avail itself of a potent weapon—retribution at the 
polls.

The constitutionality of the identification requirements 
of the Federal Corrupt Practices Act (which are substan­
tially similar to those in the New York statute) has been 
upheld in United, States v. Scott (U.S.D.C., Nor. I)ak., 
1961) not off. eii, 30 U.S.L.W. 2066, relying on Commu­
nist Party v. S.A.C. Board (1961), 367 U. S. 1.

Of course, the mere passage of a criminal statute re­
quiring clear identification of the sponsors of campaign 
literature will not guarantee success. Those agencies re­
sponsible for the supervision of elections and prosecution 
of criminal offenders must be vigilant and dedicated. They 
must be ever ready to dig out those who print, distribute 
and finance anonymous campaign literature. And the vot­
ing public must be constantly alerted to such unfair cam­
paign practices by a responsible and free press.

The only New York statute which even remotely bears 
on the problem is § 781-b of the Penal Law. This statute 
prohibits the printing of anonymous campaign circulars. 
However, Section 781-b is riddled with inequities and omis­
sions. Thus, a political leader responsible for the ordering 
and distribution of anonymous campaign literature is im-

A p p en d ix  “ B ”



A30

mime from prosecution; anonymous political advertise­
ments in newspapers, magazines and other periodicals are 
omitted from provisions of the statute; and anonymous cir­
culars may be printed with impunity if they concern an 
election of a “ party officer” , such as a district leader.

It is true that the publisher of a written statement which 
defames an individual may be held criminally responsible 
(Penal Law, <§.1341) and civilly liable. However, these 
remedies are grossly inadequate where political candidates 
or public officials are the aggrieved parties. (See Defama­
tion of Public Officers and Candidates, 49 Col. L. Rev. 875.)

The weaknesses inherent in these statutes are com­
pounded by the administration of the election laws in the 
City of New York. Our investigation indicated that the 
Board of Elections has not exercised certain of its statu­
tory powers.

For example, under § 38 of the Election Law, the Board 
“ and any of the commissioners thereof may require any 
person to attend before the board or a commissioner at 
the office of the board or a branch office and be examined 
by the board or a commissioner as to any matter in rela­
tion to which the board is charged with a duty under this 
chapter or concerning violations of this chapter, or of the 
provisions of the penal law relating to the elective fran­
chise, and may issue subpoena therefor . . . ”  (Emphasis 
by our staff.) Yet, even where violations of the Election 
and Penal Laws were apparent (i.e., printing of anony­
mous “ Communist Puppet”  literature and failure of the 
North End Club to file a pre-primary financial statement) 
the Board undertook no inquiry.

In view of the enumerated defects in the law and its 
administration, we are making the following legislative 
recommendations to the Attorney 'General:

1. That § 781-b of the Penal Law be amended to pro­
hibit any person from “ printing, publishing or distribut-

A p p en d ix  “ B ”



A31

ing”  anonymous campaign literature or “ causing”  such 
literature “ to be printed, published or distributed” .

As it stands, Section 781-b neither deters nor punishes 
those primarily responsible for anonymous campaign 
literature—the financier and distributor. Under the pro­
posed amendment, persons who print, finance or distribute 
anonymous campaign literature, could be criminally prose­
cuted.

2. That Section 781-b be amended to require that cam­
paign literature bears both the name and address of the 
printer and the name and address of the specific person 
and organization which ordered the ad.

The present statute is phrased in the alternative, re­
quiring identification of the printer or “ the person and 
committee at whose instance”  the circulars were printed. 
Hence, the sponsors may remain anonymous and comply 
with the law.

3. That Section 781-b be amended to provide criminal 
penalties for the printing, ordering or distribution of 
anonymous literature in campaigns for “ party”  as well 
as “ public”  office.

The present section applies to “ any election of public 
officers, (or) candidates for nomination for public office” ; 
i.e., general and primary elections for Mayor, City Coun­
cilman, etc. The statute does not proscribe the printing 
of anonymous literature in campaigns for “ party office” , 
such as district leader.

4. That Section 781-b be amended to prohibit news­
papers, magazines and other periodicals from printing or 
publishing campaign advertisements which do not identify 
the person and committee sponsoring the ad by name and 
address.

A p p en d ix  “ B ”



A32

Under the present law, sponsors of such ads may re­
main anonymous or identify themselves in a nebulous and 
misleading manner.

Our inquiry disclosed that most newspapers and other 
periodicals circulated in the New York City area require 
proper identification of sponsors of political advertise­
ments. However, this voluntary practice is not universal. 
As a result of vague sponsor identification, the “ Irish 
Echo”  ad was initially attributed to Wagner headquarters 
and provoked charges of official Democratic endorsement 
of a “ minority appeal” . Only painstaking investigation 
disclosed that the committee name was apparently the 
product of an advertising agent’s imagination and the 
sponsoring group operating independent of Wagner head­
quarters.

We believe that any laxity on the part of agencies super­
vising the conduct of elections cannot he cured by legisla­
tive mandate. In this area, the need is not for additional 
laws, but for officials with an awareness of their powers 
and responsibilities under existing statutes.

The following Special Assistant Attorneys General par­
ticipated in this investigation of anonymous campaign 
literature and the preparation of our interim and final re­
ports: Manuel Guerreiro; Alexander Holtzman; Donald
A. Hopper; Allan A. Pines; William Hand, Jr.; and Walter 
Wager.

Three investigators aided our staff in the conduct of 
field investigations: John L. Cronin, New York State 
Police; Charles M. Eidel, New York State Police; and 
James Malone, Election Frauds Bureau, Office of the At­
torney General.

A p p en d ix  “ B ”



A33

We wish to express our appreciation to Attorney Gen­
eral Louis J. Lefkowitz and State Police Superintendent 
Arthur Cornelius, Jr. for placing these investigators at 
the disposal of our staff. In addition, the Attorney Gen­
eral generously provided office space and clerical aid.

We wish to note that the Attorney General scrupulously 
adhered to his pre-investigation pledge to allow our staff 
a completely “ free hand”  in the conduct of this inquiry.

A p p en d ix  “ B ”



A34

APPENDIX I

§ 781-b—P enal Law

§ 781-b. Printing or other <reproduction of certain 
political literature. No person shall print or reproduce 
in quantity by any method any handbill, pamphlet, circular, 
post card, placard or letter for another, which contains any 
statement, notice, information, allegation or other material 
concerning any political party, candidate, committee, per­
son, proposition or amendment to the State Constitution 
whether in favor of or against such political party candi­
date, committee, person, proposition or amendment to the 
State Constitution, in connection with any election of pub­
lic officers, candidates for nomination for public office, 
proposition or amendment to the state constitution without 
also printing or reproducing thereon legibly and in the 
English language the name and post-office address of the 
printer thereof or of the person and committee at whose 
instance or request such handbill, pamphlet, circular, post 
card, placard or letter is so printed or reproduced, and no 
person nor committee shall so print or reproduce for him­
self or itself any such handbill, pamphlet, circular, post 
card, placard or letter without also so printing or repro­
ducing his or its name and post-office address thereon. A 
violation of the provisions of this section shall constitute 
a misdemeanor.

The term ‘ printer’ as used in this section means the prin­
cipal who or which by independent contractual relationship 
is responsible directly to the person or committee, at whose 
instance or request a handbill, pamphlet, circular, postcard, 
placard or letter is printed or reproduced by such principal, 
and does not include a person working for or employed by 
such a principal.”



A35

APPENDIX II

§§ 776 and 783—P enal  L aw

“ § 776. Failure to file statement of receipts, expendi­
tures and contributions. Any candidate for election to 
public office, or any candidate for nomination to public 
office at a primary election, or any treasurer of a political 
committee as defined by the election law, who neglects to 
file, as required by the election law, a statement of receipts, 
expenditures and contributions shall be guilty of a mis­
demeanor. ’ ’

‘ ‘ §783. Crimes against the elective franchise not other­
wise provided for. Any person who knowingly and wilfully 
violates any provision of chapter seventeen of the consoli­
dated laws of this state, known as the election law, which 
violation is not specifically covered by any of the previous 
sections of this article is guilty of a misdemeanor. ’ ’