(dissenting). I dissent and vote to affirm.
Freedom of expression holds a preferred position in our jurisprudence against the imposition of governmental restrictions. It is recognized that certain narrowly defined forms of expression, such as obscenity, do not come within the protective umbrella of the First Amendment. The expression which the appellant would restrict here by denying an exhibition space at the State Fair to petitioner is conceded by appellant to be not obscene, and no attempt has been made to fit it within any other .unprotected category.
I do not doubt that the State has the power to impose greater restrictions on forms of expression directed at children than it would have if such expressions were intended for adults. That proposition has been firmly implanted by the United States Supreme Court (Ginsberg v. New York, 390 U. S. 629) and by our own Court of Appeals (Bookcase, Inc. v. Broderick, 18 N Y *4992d 71). However, neither of those eases, nor any other, support the view that anything done by governmental authority under the guise of protecting children from objectionable material will withstand constitutional scrutiny; for it is equally well settled that governmental action in this field cannot be undertaken arbitrarily. In Interstate Circuit v. Dallas (390 U. S. 676) decided together with Ginsberg (supra) the Supreme Court invalidated a municipal licensing statute which would have required motion pictures to be rated as @ suitable ” or “ not suitable for young persons ”. Quoting from the concurring opinion of then Judge Fuld in People v. Kahan (15 N Y 2d 311, 313), the court said (p. 689): “ ‘ It is * * * essential that legislation aimed at protecting children from allegedly harmful expression — no less than legislation enacted with respect to adults — be clearly drawn and that the standards adopted be reasonably precise so that those who are governed by the law and those that administer it will understand its meaning and application. ’ ”1
The court went on to hold that an absence of standards was fatal to the legislation before it. It .should be noted that in doing so, the Supreme Court was not breaking new ground, for many years earlier it had declared that “New York cannot vest restraining control over the right to speak * * * in an 'administrative official where there are no appropriate standards to guide his action.” (Kunz v. New York, 340 U. S. 290, 295).
Here, there are likewise no standards, which require that this ease be distinguished from Ginsberg and Bookcase. Nor is it enough to state, as does Mr. Justice Main, that material may be objectionable for children even though it does not meet the traditional legal test of “ obscenity ”, for such a negative approach does not set forth standards and procedures for determining what is objectionable for children, nor does it tell us who is to *500make the decision. Even the term “ objectionable ” is insufficiently precise, for whereas some might feel thut sexual materials are harmful, others might take objection! to anything ranging from the teaching of biology to the teaching of socialist theory. The fact, however, that certain thoughts might be in poor taste or present ideas with which others disagree does not take those thoughts out of the First Amendment. In Ginsberg, materials to which minors might have exposure were restricted if they depicted specifically described sexual situations and were “ harmful to minors ” in a manner specifically described. Here, there are no limitations on the types of material which might be proscribed, nor was any test set up for determining whether such materials might be harmful. Thus, appellant was acting in his unfettered discretion, and in the field of free expression, the exercise of such ‘ ‘ discretion ’ ’ is arbitrary.2
Mr. Justice Main also seeks to sustain appellant’s action by arguing that the State, “ no less than a private owner of property, has power to preserve the. property under its control for the use to which it is lawfully dedicated ”, relying upon Adderley v. Florida (385 U. S. 39, 47). In Adderley (supra) the property in question was the grounds of a jail upon which a protest demonstration was sought to be held, and an important governmental function might have been impeded by a large gathering, wherefore demonstrations by any and all groups were prohibited. The court took pains to point out that the denial of access to the jail grounds was not based upon what the demonstrators said or their objectives. Here, to the contrary, there is no essential governmental activity which petitioner’s presence would interfere with, and admittedly appellant disagrees with the ideas petitioner seeks to express. As noted by Special Term, .since the Fair “ does not exclude all organizations which seek to proselytize its patrons, the Fair may not discriminate against petitioner. ”3
*501Finally, Mr. Justice Main suggests that appellant was not acting improperly for he did not completely deny the use of space to petitioner, but “ merely conditioned” that use upon the desired limitation on appellant’s freedom of expression. The Constitution, however, does not draw distinctions by degrees in prohibiting the abridgement of freedom of speech, and any requirement that a party refrain from exercising that freedom as a condition to obtaining a benefit which is otherwise available without restriction is as obnoxious an abridgement of the freedom as any other no matter how direct. I therefore vote to affirm the judgment at .Special Term.
. I think it worthy of note that in Interstate Circuit, the rating authority resided in a duly constituted board. Here, the appellant has arbitrarily taken upon himself the duty of protecting the State’s children. To suggest, as does the majority, that appellant’s “wide discretion” to make “needed rules” relating to the State Fair empowers him to interfere with constitutional freedoms is to suggest that any governmental official has the power to censor any form of speech which is somehow, directly or indirectly, related to his official functions. The simple language of the First Amendment clearly dispels such a view. Nor can I agree with Mr. Justice Hbrlihy that the appellant has no less power than the Commissioner of Education. The latter official is vested with authority over dissemination of literature to school children, and his expertise qualifies him to make judgments as to the materials which the State will distribute to children in the course of their education. We are not concerned in this case with literature which is to be distributed by the State, nor does appellant have either authority or expertise equivalent to that of the Commissioner of Education.
. Interestingly, the appellant did not argue either at Special Term or On appeal, that the comic book was in fact harmful to minors — although successfully convincing this court of such a fact should not legitimize a prior restraint which was invalid when imposed.
. Mr. Justice Main also takes the view that property rights need not yield to First Amendment rights in certain situations, relying on Lloyd Corp. v. Tanner (407 U. S. 551). There, however, the property was truly private — it was not operated by a State agency. This distinction is fundamental, for it is State action which is prohibited by the First and Fourteenth Amendments, and not restrictions on expression imposed by private parties, as the Supreme Court itself noted in its opinion (407 U. S., at p. 567). It is also worthy of note there that the restriction against handbilling involved in Lloyd was enforced against any and all persons.