Does the New York State Constitution Provide More Protection for Speech Than the First Amendment ?

In Immuno AG. v. Moor-Jankowski (77 NY2d 235 1991), then Judge Kaye, writing for the majority, concluded that the New York State Constitution provides more protection for speech than does the 1st Amendment to the United States Constitution. In reaching this conclusion, Judge Kaye wrote that: "This State, a cultural center for the Nation, has long provided a hospitable climate for the free exchange of ideas ( Matter of Beach v. Shanley, 62 NY2d 241, 255-256 Wachtler, J., concurring). That tradition is embodied in the free speech guarantee of the New York State Constitution, beginning with the ringing declaration that 'every citizen may freely speak, write and publish ... sentiments on all subjects.' (NY Const, art I, 8.) Those words, unchanged since the adoption of the constitutional provision in 1821, reflect the deliberate choice of the New York State Constitutional Convention not to follow the language of the First Amendment, ratified 30 years earlier, but instead to set forth our basic democratic ideal of liberty of the press in strong affirmative terms (see, Forkosch, Freedom of the Press: Croswell's Case, 33 Fordham L Rev 415 1965)." (Immuno AG. v. Moor-Jankowski, at 249.) As cited by Judge Kaye in Immuno (supra), this idea was the focus of a concurring opinion written by Judge Wachtler some years earlier in Matter of Beach v. Shanley (62 NY2d 241, 255-256 1984, supra): "This State has long provided one of the most hospitable climates for the free exchange of ideas. The tradition existed in colonial times, as is exemplified by the acquittal in 1735 of John Peter Zenger who, interestingly, was prosecuted for publishing articles critical of the New York colonial Governor after he refused to disclose his source (23 Encyclopaedia Britannica 1956 ed, p 944; Hentoff, the First Freedom 1980, pp 63-68). In the 19th century a large portion of the publishing industry was established in New York and the State began to serve as a cultural center for the Nation. It still enjoys that status. "It is consistent with that tradition for New York to provide broad protections, often broader than those provided elsewhere, to those engaged in publishing and particularly to those performing the sensitive role of gathering and disseminating news of public events."