# Katz v. McAulay

> Court of Appeals for the Second Circuit · February 11, 1971 · 438 F.2d 1058

URL: https://www.frixlaw.com/law-library/cases/8884705

## Case

- **Full name:** Jane KATZ, an infant, by Elaine Finsilver, her mother and next friend, Ira Resnick, an infant, by Rheba Resnick, his mother and next friend, Carey Marvin, an infant by Vera Marvin, her mother and next friend, and Greg Gottlieb, an infant, by Sybil Gottlieb, his mother and next friend, on behalf of themselves and all others similarly situated v. John McAULAY, as President of the Board of Education of the Union Free School District No. 5, Ardsley, New York, and Burt P. Johnson, Superintendent of Schools of the Union Free School District No. 5, Ardsley, New York
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** February 11, 1971
- **Citations:** 438 F.2d 1058
- **Precedential status:** Published
- **Opinion:** Dissent by Smith
- **Judges:** Anderson, Smith
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8884705

## Opinion text

J. JOSEPH SMITH, Circuit Judge (dissenting):
I respectfully dissent. I agree that there are possibilities of, embarrassment and disruption of school functions in solicitation of school students which might justify regulation not sustainable as to the public at large. But I think that when related to public issues such as that involved in this case, solicitation of funds is an integral part of the propagandizing, as in the case of the religious colporteurs, and freedom to do one includes freedom to do the other, at least in the absence of a showing of gross disruption, so that complete prohibition as opposed to reasonable regulation, as of time and place, cannot be sustained. See Cantwell v. Connecticut, 310 U.S. 296, 306-307 , 60 S.Ct. 900 , 84 L.Ed. 1213 (1940). “[T]he pamphlets of Thomas Paine were not distributed free of charge.” Murdock v. Pennsylvania, 319 U.S. 105, 111 , 63 S.Ct. 870, 874 , 87 L.Ed. 1292 (1943). So I think on a showing such as this the courts must protect the students in their efforts to communicate, misguided as we may consider them. I would reverse for issuance of a temporary injunction.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8884705. Public record. Not legal advice.