BY TAMAR ROSENFELD
NEW YORK - The Socialist Workers Party and the New York Civil Liberties Union (NYCLU) recently announced a victory in an important court decision protecting the right to distribute political literature and solicit political contributions in New York City subway stations. The ruling, issued by State Supreme Court Justice Leonard Yoswein in April and entered May 1, also upholds basic due process rights for individuals charged with violating Transit Authority regulations.

The case arose when campaign volunteer Jim Rogers was canvassing for the Socialist Workers candidates two days before the 1993 mayoral election. Rogers set up a campaign literature table on the mezzanine level of the Jamaica, Queens, subway station. In the course of engaging passersby in discussions on the socialist candidates' positions, he distributed leaflets and sold copies of the Militant newspaper. Two transit officers closed the campaign table down and issued Rogers a summons for "selling books" without a license, citing this as a violation of Transit Authority regulations.

The NYCLU agreed to help Rogers challenge the fine. Referring to the recent court decision, Arthur Eisenberg, legal director of the NYCLU, explained, "This case is important not only for protecting free speech rights of citizens but because the decision establishes minimal principles of basic fairness and due process that must be applied whenever the Transit Authority seeks to enforce its regulations at one of its administrative proceedings."

At the hearing held before the Transit Adjudication Bureau, the hearing officer altered the charge against Rogers written on the summons. She said the socialist campaigner was engaged in "unauthorized commercial activity" - violating the subway's prohibition on selling food, goods, services, and entertainment without a license. A separate regulation, the one that covers what Rogers was doing that day, specifically permits "public speaking; distribution of written noncommercial materials; . . . [and] solicitation for religious or political causes."

The hearing officer also denied Rogers and his attorneys the opportunity to cross-examine the transit officer who issued the summons. In essence, the hearing officer acted as both prosecutor and judge, finding Rogers guilty of the new charge and fining him $50. A Transit Authority appeals board upheld the ruling.

In overturning the Transit Adjudication Bureau rulings on appeal, the State Supreme Court upheld Rogers's constitutional right to distribute political material and to solicit contributions. Justice Yoswein writes, "The incidental sale of a few copies of a political party's newspapers during the course of a political campaign does not constitute 'commercial activity.' The protection afforded free speech on the street . . . can be extended to include conduct of Petitioner [Rogers] on October 30, 1993."

The court also held that Rogers was denied due process when the Transit Adjudication Bureau refused him the right to cross-examine the officer who charged him, and when it changed the accusation during the course of the hearing itself. Yoswein's ruling states that "the court concurs with Petitioner that he did not receive a fair hearing."

The Transit Authority has been ordered to vacate their judgment and refund the $50 fine paid by Rogers.

"I'm glad to get the money back, but the issue in this case was never paying a fine," explained Rogers. "If they shut us down, they can shut anyone down. The subways are one of the most concentrated gathering points for working people in this city - and therefore an important place to be able to distribute literature and carry on discussions. The democratic rights of working-class candidates, pro-choice campaigners, union members, and political activists to talk to others about their causes is reinforced by this judgment.

"Rights like these," Rogers emphasized, "must be used, not just recorded in legal decisions, and that's why I'm spreading the word about this victory."  
 
 
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