Opinion
00 Civ. 7830(KMW).
November 26, 2000.
ORDER
Plaintiff, a not-for-profit organization providing housing services and advocacy on behalf of New York City residents with AIDS or who are HIV positive, plans to demonstrate in City Hall Plaza (the "Plaza") on December 1, 2000 as part of its World AIDS Day activities, which will include demonstrations criticizing the City's AIDS policies. New York City ("the City") has granted a permit to plaintiff that allows plaintiff to demonstrate in the Plaza, but prohibits plaintiff from using sound amplification in the Plaza. Plaintiff challenges the City's prohibition as a violation of the First Amendment of the United States Constitution and seeks a preliminary injunction requiring the City to grant it a permit to use amplified sound in the Plaza. The Court concludes that the City's prohibition violates the First Amendment. Accordingly, the Court grants plaintiff's motion for a preliminary injunction.
The record in this case includes affidavits, declarations and stipulations submitted by the parties, and testimony received at an evidentiary hearing.
A. Regulation of City Hall Park and Plaza
For purposes of regulating events occurring around City Hall, the City divides the grounds outside the building into two areas: (1) the area comprising the steps, sidewalk, and Plaza immediately south of the building; and (2) the area extending south of the Plaza (the "Park"). Groups may apply for permits to hold events in either location or, as plaintiff has done in this case, in both locations. (Affidavit of Donald R. Henne, dated November 9, 2000 ["Henne III"] ¶ 5.)
See Court Exhibit 1 (map of City Hall area).
The City has implemented specific regulations to govern the use of City Hall Plaza (the "Rules"). See 55 R.C.N.Y. §§ 10-01 to 10-10. These Rules, adopted in April 2000, limit events in the Plaza to a maximum of 300 people and to a duration of three hours. See id. § 10-03. The Rules are silent as to sound amplification, a silence the City has interpreted as allowing it to ban such amplification in the Plaza, with certain exceptions.
These regulations were adopted in response to a permanent injunction issued by Judge Harold Baer enjoining enforcement of predecessor regulations. See Housing Works, Inc. v. Safir, 101 F. Supp.2d 163 (S.D.N.Y. 2000). The Court notes that the discretion vested in City officials by these Rules is far more limited than that afforded by the Rules' predecessor regulations, which allowed officials to exempt events that have "traditionally been organized or sponsored by the City of New York" from numerical limits. See id. at 168.
The City justifies its sound amplification ban on the ground that it seeks to avoid excessive noise that would disrupt the business of government at City Hall. (Declaration of Daniel S. Connolly, dated October 23, 2000 ["Connolly Decl."] ¶ 12.) Nothing in the Rules prevents demonstrators from chanting, shouting, or singing in the Plaza. Since March 1, 2000, over 180 events have taken place in the Plaza under the Rules. (Henne III ¶ 6.)
Events in the Park are governed by the regulations generally applicable to all other parks and public spaces. One of these regulations, Administrative Code section 10-108, sets forth a permitting scheme that allows, but regulates, amplified sound during public events.
B. Exceptions to the Rules
The Rules apply to all events held in the Plaza except for: (i) inaugurations; (ii) award ceremonies for City employees; and (iii) ceremonies held in conjunction with a City-sponsored ticker-tape parade. See 55 R.C.N.Y. § 10-02. City regulations do not state for whom the City may sponsor ticker-tape parades, nor does the City have any written guidelines on sponsorship. The City does have a historical practice of holding such parades "for the limited purpose of honoring heroes (as exemplified by aviators and astronauts), athletes, soldiers, and visiting dignitaries and statesmen." (Supplemental Declaration of Daniel S. Connolly, dated October 26, 2000 ["Connolly Supp. Decl."] ¶ 12.) In the past 116 years, the City has not sponsored a ticker-tape parade honoring anyone other than persons in the categories listed above. (id. ¶ 6.) During a ticker-tape parade, sound amplification is permitted in the Plaza, City Hall is closed and both the City Council and the executive branch cease the conduct of the regular affairs and business of City Hall. (Henne III ¶ 8.)
II. THE PRELIMINARY INJUNCTION STANDARD
To succeed on its preliminary injunction motion, plaintiff must establish "irreparable harm in the absence of an injunction" and a "likelihood of success on the merits." Latino Officers Ass'n, N.Y., Inc. v. City of New York, 196 F.3d 458, 462 (2d Cir. 1999) (setting forth the standard when a moving party seeks to stay "government action taken in the public interest pursuant to a statutory or regulatory scheme"); accord Beal v. Stern, 184 F.3d 117, 122 (2d Cir. 1999). The Court exercises discretion in determining whether to grant injunctive relief, taking into account "all the equities of the situation, including the public interest." Million Youth March, Inc. v. Safir, 155 F.3d 124, 125 (2d Cir. 1998).
Plaintiff in this case seeks a mandatory, rather than a prohibitory, injunction and must therefore meet the more demanding standard of "a `clear' or `substantial' likelihood of success" on the merits. See Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) (citations omitted). Mandatory injunctions "alter, rather than maintain the status quo" or "provide the movant with substantially all the relief sought" when that relief "cannot be undone even if the defendant prevails at a trial on the merits." Jolly, 76 F.3d at 473.
Plaintiff's requested relief would alter the status quo by forcing the issuance of a permit and would be impossible to retract should plaintiff later lose at trial. See Million Youth March v. Safir, 18 F. Supp.2d 334, 339 (S.D.N.Y. 1998). Although the line between prohibitory and mandatory injunctions is far from clear, see Tom Doherty Assocs. v. Saban Entertainment, Inc., 60 F.3d 27, 34 (2d Cir. 1995), the Court finds that plaintiff here requests a mandatory injunction. Accordingly, plaintiff must show irreparable harm absent an injunction and a clear or substantial likelihood of success on the merits. In this type of First Amendment case, "the issue of irreparable harm merges with the question of success on the merits." See Metropolitan Council, Inc. v. Safir, 99 F. Supp.2d 438, 443 (1999) (citing Latino Officers, 196 F.3d at 462); accord Beal, 184 F.3d at 123-24. The Court therefore turns to the merits of plaintiff's claims.
III. THE MERITS OF PLAINTIFF'S CLAIMS
A. The City's Authority to Implement the Amplification Ban
Plaintiff claims that the sound amplification ban lacks a statutory or regulatory basis and contravenes section 10-108 of the Administrative Code. The Court finds that this argument is without merit.
The City regulates events in the Plaza pursuant to duly enacted Rules. See 55 R.C.N.Y. §§ 10-01 to 10-10. These rules contain no provision for the use of amplification equipment in the Plaza. (Henne Aff. IV.) The City has interpreted the absence of a provision expressly allowing amplified sound in the Plaza as prohibiting such amplification. The Court defers to the City's interpretation of its own regulation. See Sears, Roebuck Co. v. Brown, 641 F. Supp. 878, 884-85 (D.Conn. 1985) (Cabranes, J.) (collecting cases). Moreover, section 435 of the City Charter provides the Police Department with ample authority to restrict sound amplification, see Concerned Jewish Youth v. McGuire, 621 F.2d 471, 474 (2d Cir. 1980), and section 10-08 of the Rules expressly preserves police authority to maintain "public peace and safety" in the Plaza. For these reasons, the sound amplification ban is a valid exercise of municipal authority.
City of New York v. American School Publications, 69 N.Y.2d 576, 580-81 (1987), cited by plaintiff, is not applicable. In contrast to the facts of American School Publications, the City in the present case has acted under the authority of the duly enacted Rules and the City Charter.
B. First Amendment Claims
Plaintiff also claims that the sound amplification ban violates its First Amendment rights. The First Amendment protects the use of public fora for speech, assembly, and debate. See Burson v. Freeman, 504 U.S. 191, 196-97 (1992). It is without dispute that City Hall Plaza is a quintessential public forum, see Housing Works v. Safir, 101 F. Supp.2d 163, 167 (S.D.N.Y. 2000), and that the City's regulation of expression in the Plaza must therefore comport with the protections of the First Amendment, see Ward v. Rock Against Racism, 491 U.S. 781, 791 (1990).
Even in public fora, however, the First Amendment does not guarantee an absolute right to speak, assemble, or protest, see Olivieri v. Ward, 801 F.2d 602, 605 (2d Cir. 1986), because such activity "may interfere with other important activities for which the property is used," Burson, 504 U.S at 197. Accordingly, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided that the restrictions: (1) are neutral as to content or subject; (2) are narrowly tailored to serve a significant governmental interest; and (3) leave open ample alternative channels for communication of the information. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992); Ward, 491 U.S. at 791.
Asserting its right to place "reasonable restrictions" on First Amendment activity in a public forum, the City has banned sound amplification in the Plaza with certain exceptions. The City justifies this ban as a regulatory measure designed to avoid excessive noise that would disrupt the business of government. Plaintiff claims that the City cannot show that the ban meets the constitutional requirements of a time, place, or manner regulation. See Housing Works, 101 F. Supp.2d at 170. The Court concludes that the City policy violates the First Amendment requirement that regulation of speech be content-neutral, because the exceptions that the City is permitted to make vest too much discretion in City officials.
Plaintiff claims, more broadly, that the regulation is content-based because it discriminates among subjects of speech, see, e.g., Police Department v. Mosley, 408 U.S. 92 (1972); Carey v. Brown, 447 U.S. 455 (1980). The Court need not reach this claim at this preliminary injunction stage because it finds that the regulation fails under the narrower discretion test. Moreover, because the Court holds that the City's policy is unconstitutional in vesting too much discretion in City officials, the Court need not reach the issues of whether the policy would also fail to meet the additional requirements that it be narrowly tailored to serve a significant government interest, and that it leaves open ample alternatives of communication. A full factual record has been developed on these latter issues, and the Court is prepared to rule on them if it becomes necessary to reach them.
A government regulation of the time, place, or manner of speech fails the content-neutrality requirement if it vests overly-broad discretion in the regulating officials. Restrictions on speech must contain "narrow, objective, and definite standards to guide" the appropriate authority and avoid the danger of censorship. See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969); Forsyth County, 505 U.S. at 131. A facial challenge may proceed "whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers." City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 759 (1988) (holding that a statute inadequately limited official discretion when the mayor was permitted to deny a license for "such other terms and conditions deemed necessary and reasonable by the Mayor"); see also Ward, 491 U.S. at 795 (considering a similar challenge to the neutrality of a sound amplification regulation). Put another way, a regulation that allows "arbitrary application" is "`inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.'" Forsyth County, 505 U.S. at 130-31 (citing Heffron v. Int'l Society for Krishna Consciousness Inc., 452 U.S. 640, 649 (1981)).
Plaintiff has standing to bring this facial challenge because the ban implicates a regulation of expression that poses a risk of censorship and because plaintiff is subject to the policy and thus will be injured if it violates the First Amendment. See MacDonald v. Safir, 206 F.3d 183 (2d Cir. 2000).
In determining whether a regulation vests too much discretion in government officials or contains the requisite narrow and objective standards, the Court must examine both the text of the regulation and "any binding judicial or administrative construction of it." MacDonald, 206 F.3d at 191; accord Ward, 491 U.S. at 795-96. The Court is also required to consider the "well-established practice of the authority enforcing the [regulation]." MacDonald, 206 F.3d at 191; accord City of Lakewood, 486 U.S. at 770. In this case, the text of the relevant exception to the sound amplification ban refers only to "events held in conjunction with a City-sponsored ticker-tape parade." The City has proffered evidence that the exception is limited by the City's consistent practice over the past 116 years of limiting ticker-tape parades to four categories of recipients: heroes (as exemplified by aviators and astronauts), athletes, soldiers, and visiting dignitaries and statesmen. This consistent practice meets the "well-established" standard, and the Court considers the "ticker-tape parade exception" to be limited by this practice.
Although plaintiff argues that these guidelines are deficient because they are unwritten, "[t]here is no constitutional requirement" that "the guidelines adopted by the City, to the extent they provide guidance in addition to that provided by the statute, be written down or otherwise `documented.'" Turley v. New York City Police Dept., 167 F.3d 757, 762 (2d Cir. 1999).
The Court finds that, even so limited, the exception to the amplification ban vests impermissible discretion in City officials because the categories "heroes," "soldiers," "athletes," and "foreign dignitaries and statesmen" do not provide the City with "narrow, objective, and definite" standards to determine eligibility for sound amplification use in the Plaza. The City exercises its discretion in choosing who fits within the categories of persons for whom it sponsors ticker-tape parades (heroes, athletes, soldiers, and visiting dignitaries and statesmen). The exception to the sound amplification ban, by incorporating this discretion, allows the City to support (or suppress) a particular point of view, see Forsyth County, 505 U.S. at 130-31, and to "discriminate based on the content or viewpoint of speech." City of Lakewood, 486 U.S. at 759.
One example demonstrates the breadth of the City's discretion in allowing exceptions to the sound amplification ban. The City honored Nelson Mandela with a ticker-tape parade in 1990, prior to his election as the president of the African National Congress, his receipt of the Nobel Peace Prize, and his inauguration as South Africa's president. Although the Court recognizes the worthiness of celebrating Mr. Mandela, it is clear that choosing to honor him and hence to permit sound amplification in the Plaza in his honor was a political choice made in the exercise of the City's discretion. Counsel for the City recognized, during oral argument, that the City is unlikely to give the same honor to a more controversial foreign dignitary who does not enjoy the same broad base of support as Nelson Mandela in New York City (e.g., Yasser Arafat or Fidel Castro).
The Court does not challenge the City's use of discretion in these parade sponsorship decisions. To the extent, however, that the discretion exercised in the ticker-tape parade decisions determines which entities may have amplified sound in the Plaza, the Court concludes that the City has incorporated impermissible discretion into the sound amplification decision, through the mechanism of relying on its ticker-tape parade sponsorship discretion. A sound amplification ban cannot stand when it vests officials with this type of discretion, because such discretion is "inherently inconsistent" with a restriction on speech designed to regulate only the time, place, and manner of the speech. Forsyth, 505 U.S. at 123. Accordingly, the sound amplification ban cannot withstand plaintiff's facial challenge.
The Court makes no suggestion that the City may not continue to sponsor ticker-tape parades under the current guidelines. Plaintiff does not challenge this sponsorship (Plaintiff's Post Hearing Memorandum p. 9) and it is well-settled that such sponsorship is a legitimate exercise of municipal authority. See Turley, 167 F.3d at 757; Stonewall Union v. City of Columbus, 931 F.2d 1130, 1137 (6th Cir. 1991). It is only the permitting of amplified sound in the Plaza for some groups and not for others that is at issue in this case.
IV. CONCLUSION
The Court concludes that plaintiff has shown a clear likelihood of success on the merits of its First Amendment claim. The Court therefore grants plaintiff the limited relief it seeks. Specifically, the Court grants plaintiff the right to use sound amplification at its December 1, 2000 demonstration in the Plaza at the level the parties have stipulated will not penetrate City Hall (75 dB(A)). The Court directs the City to make reasonable accommodations for set-up and break-down time for this event. Nothing in this Order precludes the City from monitoring and enforcing this 75 dB(A) decibel limit, as it does for other amplified events throughout the City, or exempts plaintiff from any other requirement of law.