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This section contains the nature of the case and procedural background.

P owns a former United States Navy submarine, which he exhibits for profit. P brought it to New York City and moored it at a State pier in the East River. P prepared and printed a handbill advertising the boat and soliciting visitors for a stated admission fee. P attempted to distribute the handbills in the street, but D advised him that it would violate §318 of the Sanitary Code, which forbids distribution in the streets of commercial and business advertising matter. P was told he could distribute handbills solely devoted to 'information or a public protest.' P printed a new handbill with one side talking about the sub, and the other was a protest against the action of D in refusing P wharfage facilities at a city pier for the exhibition of his submarine, but no commercial advertising. D said the double-faced bill was prohibited. P started to distribute it and was restrained by the police. P sued D claiming the ordinance was unconstitutional. The District Court granted an interlocutory injunction. The Circuit Court of Appeals, by a divided court, affirmed. D appealed.

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