The People, Respondent,v.Mary Anne Grady Flores, Appellant.BriefN.Y.October 11, 2017APL-2016-00137 State of New York Onondaga County Case No. 13020145 Court of Appeals of the State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – MARY ANNE GRADY FLORES, Defendant-Appellant. BRIEF OF AMICI CURIAE NEWS ASSOCIATIONS IN SUPPORT OF APPELLANT MARY ANNE GRADY FLORES LEE LEVINE* DAVID A. SCHULZ MARA J. GASSMANN* LEVINE SULLIVAN KOCH & SCHULZ, LLP Attorneys for Amici Curiae 321 W. 44th Street, Suite 1000 New York, New York 10036 Tel.: (212) 850-6100 Fax: (212) 850-6299 Date Completed: July 13, 2017 * Pro Hac Vice CORPORATE DISCLOSURE STATEMENTS Pursuant to 22 NYCRR § 500.1(f): The Reporters Committee for Freedom of the Press is an unincorporated association of reporters and editors with no parent company and no stock. The New York Press Association is a 501(c)(6) non-profit association with no parent company and no stock. It operates as its wholly-owned subsidiaries the New York Press Service, a fully taxable, for profit print and digital advertising planning and placement firm, and the New York Press Association Foundation, a 501(c)(3) which annually funds 20 paid summer internships for college students pursuing careers in journalism. The New York News Publishers Association is a 501(c)(6) non-profit association with no parent company and no stock. The National Press Photographers Association is a 501(c)(6) non-profit association with no parent company and no stock. i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii INTEREST OF AMICI ............................................................................................ vi INTRODUCTION ..................................................................................................... 1 FACTUAL BACKGROUND .................................................................................... 3 ARGUMENT ........................................................................................................... 11 POINT I THE BROAD CONSTRUCTION ADOPTED BY THE COUNTY COURT CANNOT BE RECONCILED WITH THE STATUTE’S PLAIN MEANING, LEGISLATIVE HISTORY OR PREVIOUS JUDICIAL CONSTRUCTION ............. 12 POINT II THE BROAD CONSTRUCTION ADOPTED BY THE COUNTY COURT SHOULD BE REJECTED BECAUSE IT RAISES PROFOUND FIRST AMENDMENT ISSUES .............. 18 A. The Court Should Adopt A Construction Of The Statute That Avoids Constitutional Issues ................... 18 B. The County Court’s Construction Of The Statute Raises Significant First Amendment Issues ................. 19 1. The County Court’s Construction Permits Public Officials To Enjoin and Punish Criticism of Their Official Conduct ............ 19 2. The County Court’s Construction Effectively Authorizes Issuance of an Injunction Prohibiting Otherwise Protected Expression in the Absence of Constitutionally Required Safeguards ............................ 22 3. The County Court’s Construction Authorizes Infringement of the First Amendment- Protected Right To Photograph on a Public Street ............................................................................... 25 ii CONCLUSION ........................................................................................................ 29 iii TABLE OF AUTHORITIES Page(s) Cases All. of Am. Insurers v. Chu, 77 N.Y.2d 573 (1991) ......................................................................................... 18 Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012) .......................................................................... 2, 25 Bery v. City of N.Y., 97 F.3d 689 (2d Cir. 1996) ................................................................................ 26 Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175 (1968) ............................................................................ 2, 22, 23, 25 Charles v. City of N.Y., 2017 WL 530460 (E.D.N.Y. Feb. 8, 2017) ........................................................ 26 In re Coates, 9 N.Y.2d 242 (1961) ........................................................................................... 19 Courtesy Sandwich Shop, Inc. v. Port of N.Y. Auth., 12 N.Y.2d 379 (1963) ......................................................................................... 19 Fields v. City of Phila., ---F.3d---, 2017 WL 2884391 (3d Cir. July 7, 2017) ....................................... 26 Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) ........................................................................... 24, 25 Higginbotham v. City of N.Y., 105 F. Supp. 3d 369 (S.D.N.Y. 2015) ................................................................ 24 Huminski v. Corsones, 396 F.3d 53 (2d Cir. 2005) ........................................................................... 21, 22 Lovell v. City of Griffin, 303 U.S. 444 (1938) ........................................................................................... 21 Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994) ........................................................................................... 21 iv McCullen v. Coakley, 134 S. Ct. 2518 (2014) ........................................................................................ 23 NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) ............................................................................................ 20 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .................................................................................. 2, 20, 21 Org. for a Better Austin v. Keefe, 402 U.S. 415 (1971) ............................................................................................ 22 Overstock.com, Inc. v. N.Y. State Dep't of Taxation & Fin., 20 N.Y.3d 586 (2013) ......................................................................................... 18 People v. Creighton, 298 A.D.2d 774 (3d Dep’t 2002) ......................................................................... 5 People v. Koertge, 182 Misc. 2d 183 (Dist. Ct. Nassau Cnty. 1998) ................................................ 14 People v. Liberta, 64 N.Y.2d 152 (1984) ........................................................................................ 18 People v. Nieves, 2 N.Y.3d 310 (2004) ........................................................................................... 12 People v. O’Connor, 242 A.D.2d 908 (4th Dep’t 1997) ...................................................................... 16 People v. Purpura, 12 Misc. 3d 933 (Crim. Ct. Kings Cnty. 2006) ............................................ 14, 15 People v. Smith, 4 Misc. 3d 909 (Crim. Ct. N.Y. Cnty. 2004) ...................................................... 17 People v. Somerville, 72 A.D.3d 1285 (3d Dep’t 2010) ........................................................................ 15 Porat v. Lincoln Towers Cmty. Ass’n, 2005 WL 646093 (S.D.N.Y. Mar. 21, 2005) ...................................................... 26 v Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369 (1977) ......................................................................................... 20 Schenck v. Pro-Choice Network Of W. N.Y., 519 U.S. 357 (1997) ............................................................................................ 23 Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000) .......................................................................... 26 Texas v. Johnson, 491 U.S. 397 (1989) ............................................................................................ 20 Velazquez v. Legal Servs. Corp., 164 F.3d 757 (2d Cir. 1999) ............................................................................... 20 Statutes CPL § 530.13 ....................................................................................................passim vi INTEREST OF AMICI Amici are all associations representing the interests of news professionals including photographers, reporters, editors, and publishers. Their members regularly gather and disseminate news and information, including photographic and audio-visual coverage of public protests. Amici are: The National Press Photographers Association (“NPPA”) is a non-profit organization dedicated to the advancement of visual journalism in its creation, editing, and distribution. NPPA’s approximately 6,000 members include television and still photographers, editors, students, and representatives of businesses that serve the visual journalism industry. Since its founding in 1946, the NPPA has vigorously promoted and defended the rights of photographers and journalists, including intellectual property rights and freedom of the press in all its forms, especially as it relates to visual journalism. NPPA does not have a parent company and does not own any stock. The New York News Publishers Association (“NYNPA”) is the non-profit trade association representing the newspapers of New York State, which have a combined readership of more than five million people. NYNPA is the principal professional association representing New York State’s newspaper industry in governmental, regulatory, and other matters. vii The New York Press Association (“NYPA”) is the 165 year-old trade association for 721 daily and weekly newspapers (including ethnic and non- English newspapers) in New York. NYPA exists to promote and encourage the highest standards in the professional practice of journalism; to encourage and promote a better understanding between the public and the Press; to support and defend the First Amendment; to support and protect the financial interests and sustainability of New York’s newspaper industry. The Reporters Committee for Freedom of the Press is an unincorporated association of reporters and editors that works to defend the First Amendment rights and freedom of information interests of the news media. The Reporters Committee has provided assistance and research in First Amendment and Freedom of Information Act litigation since 1970. INTRODUCTION This case raises the important question whether CPL § 530.13, a criminal statute designed and previously applied to protect the victims of and witnesses to crimes from violence and intimidation, can lawfully be invoked by a public official – specifically a senior U.S. military officer – to enjoin, fine, and incarcerate those attempting to exercise their First Amendment rights to engage in public protest and newsgathering activities. The County Court of Onondaga County approved just such a construction of New York’s Order of Protection statute by classifying a public official, who was at no time personally harassed, abused, threatened or intimidated, as a “victim” of or “witness” to the defendant’s alleged crime. Of equal significance, that “crime” was the defendant’s participation in a peaceful protest directed at that public official’s performance of his official duties. And, by invoking the statute, the public official “victim” was empowered to obtain an order of protection enjoining the defendant from engaging in otherwise lawful and constitutionally protected activity – specifically, the taking of photographs of a public protest on a public street, including law enforcement operations in response to it – and to secure her incarceration for engaging in such activity. The county court’s unprecedented construction of CPL § 530.13 cannot be squared with the statute’s plain meaning or its legislative history. Moreover, such a construction runs headlong into at least three bedrock principles of constitutional 2 law: (1) that the First Amendment, above all else, protects criticism of a government official’s performance of his official duties, see New York Times Co. v. Sullivan, 376 U.S. 254 (1964); (2) that there is a heavy presumption that a court order enjoining such criticism is unconstitutional and cannot lawfully be imposed without regard for the requirements of First Amendment-based “due process,” see Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175 (1968); and (3) that the First Amendment protects the right of any citizen to photograph public protests, including most especially law enforcement operations in response to them, see Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012). As a result, the Court should take this opportunity to construe the statute according to its plain meaning and obvious intent by confining its proper use to the protection of the actual victims of or witnesses to crimes from violence, harassment, and intimidation and make clear that it may not lawfully be invoked either to shield public officials from criticism or to curtail the First Amendment rights of the press and public to take photographs of public protests and law enforcement operations. Such a declaration by this Court could not be more timely. In recent years, there has been an unprecedented surge in organized public protest throughout the nation and, with it, a palpable increase in efforts by public officials to impede the news media’s ability to photograph and report to the wider public about such protests. Amici, whose members regularly gather and disseminate images of such 3 protests, as well as news accounts about them, urge this Court to prevent § 530.13 from becoming a potent tool with which to disrupt the free flow of information about public dissent, and official reaction to it, to the citizens of this State. FACTUAL BACKGROUND1 On October 12, 2012, the defendant, a senior citizen and peace activist, participated in a public protest outside the Air National Guard Base at Hancock Field (“Hancock Field” or “the base”) located at 6001 E. Molloy Road in DeWitt. Hancock Field is the home base for the 174th Attack Air Wing of the Air National Guard, which operates the military unmanned aerial vehicle, MQ-9 Reaper Remotely Piloted Aircrafts, commonly known as a “drone.” The subject of the protest was the 174th’s drone operations, and the U.S. government’s underlying policy with respect to their use, which has been at the center of widespread public controversy.2 Some or all of the protestors allegedly blocked the ingress and 1 For the Court’s convenience, amici set forth those facts contained in the record that are pertinent to their analysis of the constitutional implications of the lower court’s construction of both the statute and the order at issue. 2 See, e.g., Brian Bennett, More pilots waging war from afar; Unmanned drones keep pilots safer, but critics say trend makes killing easier, Chi. Trib. (Aug. 2, 2012), at 17; Elisabeth Bumiller, A Day Job Waiting for a Kill Shot a World Away, N.Y. Times (July 30, 2012), at A1; Dennis Yusko, “Big Eye” Has Adirondack Sights, Albany Times-Union (Feb. 12, 2011), at A1; Dave Tobin, Drone Crews Go Top Secret: Fearing New Threats, Hancock Field Conceals Names And Faces Of The 174th Fighter Wing, Syracuse Post Standard (Dec. 18, 2009), at A1; Corinne Ramey, Activists Wary of Drones' Use Abroad and at Home, Wall St. J. (Mar. 28, 2016), at A20. 4 egress to the base, requiring persons seeking access to it to use an alternate entrance. The defendant was among those arrested, and she was charged with trespass and disorderly conduct. The same day, Colonel Earl A. Evans, 174th Mission Support Group Commander, filed a request for a temporary order of protection, or “stay away order,” pursuant to CPL § 530.13, to be issued against the defendant and others who participated in the protest. AA.10-11.3 Such orders are available for the protection of “victims” of and “designated witnesses” to a crime pursuant to CPL § 530.13(1). In relevant part, the statute provides that: When any criminal action is pending, … the court … may for good cause shown issue a temporary order of protection in conjunction with any securing order committing the defendant to the custody of the sheriff or as a condition of a pre-trial release, or as a condition of release on bail or an adjournment in contemplation of dismissal. In addition to any other conditions, such an order may require that the defendant: (a) stay away from the home, school, business or place of employment of the victims of, or designated witnesses to, the alleged offense; (b) refrain from harassing, intimidating, threatening or otherwise interfering with the victims of the alleged offense and such members of the family or household of such victims or designated witnesses as shall be specifically named by the court in such order; (c) [] refrain from intentionally injuring or killing, without justification, any companion animal the defendant knows to be owned, possessed, leased, kept or held by such victim … . 3 Citations to the Appendix filed by Appellant is cited herein as “AA._.” Citations to the Appendix of Respondent is cited as “RA._.” 5 CPL § 530.13(1) (emphasis added).4 The statute permits a court to “issue a temporary order of protection under this section ex parte upon the filing of an accusatory instrument and for good cause shown.” Id. § 530.13(2); see also id. § 530.13(3) (“court may issue or extend a temporary order of protection under this section ex parte simultaneously with the issuance of a warrant for the arrest of the defendant”). In a sworn statement filed in support of his application for a stay away order pursuant to the statute, the Colonel requested it be issued “against each and every” protestor arrested “such that they are to stay away from Hancock Field and I request prosecution to the fullest extent of the law.” AA.11. He did not express fear or reference efforts by the defendant, or any of the protestors, to harass or intimidate him, id., and his subsequent trial testimony confirmed that he felt none. RA.233. There is no evidence in the record that the defendant at any time engaged in harassing, threatening, or intimidating conduct toward Colonel Evans or any other individual. Indeed, defendant and the Colonel had never met. RA.231-32. Rather, he sought a stay away order solely in his capacity as “[a]n authorized representative of Hancock Field,” AA.11, “to keep [the protestors] away from the entrance to the gate,” RA.233. 4 The provision governing permanent orders of protection issued in conjunction with sentencing contains identical language. See CPL § 530.13(4)(a)- (c). 6 The temporary order of protection directing the defendant to “stay away” from the base was issued on October 25, 2012. Id. It provides, in pertinent part, that: Whereas good cause has been shown for the issuance of a temporary order of protection [as a condition of release on bail], And the Court having made a determination in accordance with section 530.13 of the Criminal Procedure Law, IT IS HEREBY ORDERED that the above-named defendant Mary A. Grady-Flores … observe the following conditions of behavior: Stay away from Earl A. Evans … the business of Earl A. Evans[,] 6001 E. Molly Rd[;] the place of employment of Earl A. Evans[,] 6001 E. Molly Rd. Refrain from communication or any other contact by mail, telephone, e-mail, voice-mail or other electronic or any other means with Earl A. Evans; Refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats or any criminal offense or interference with the victim or victims of, or designated witnesses to, the alleged offense and such members of the family or household of such victim(s) or witness(es) as shall be specifically named Earl A. Evans. AA.10. By its terms, the order would remain in force for one year, but could “be extended and continue in effect until a new date set by the Court” for failure to appear at a scheduled hearing. Id. At the bottom of the order appeared additional legal warnings, including, inter alia, that it was a federal crime to travel to another 7 state to “violate this order or stalk, harass, or commit domestic violence against an intimate partner or family member,” “buy, possess or transfer … a firearm or ammunition while this Order remains in effect,” and “buy, possess or transfer … a firearm or ammunition after a conviction of a domestic violence-related crime involving the use or attempted use of physical force or a deadly weapon against an intimate partner or family member, even after this Order has expired.” Id. In 2013, while the charges arising from her arrest at the 2012 protest (the “first protest”) remained pending, the defendant attended an Ash Wednesday protest (“second protest”) outside the base in her capacity as a photographer documenting the event and the law enforcement response to it. The protest consisted of approximately eight individuals holding signs and standing in a line to block the base entrance, which is located along the driveway that intersects with Malloy Road. RA.258. It is undisputed these individuals standing on the driveway were on base property. It is also undisputed that defendant was not among these eight individuals, but was instead engaged in photographing the scene, from a street freely accessible to the public, for purposes of documenting and disseminating to the public information about the protest and the law enforcement response to it. Id.; RA.390. As defendant departed the second protest, she was arrested and charged with one count of disorderly conduct for allegedly participating in the protest and 8 obstructing traffic. AA.6. She was also charged with one count of criminal contempt in the second degree for allegedly violating the 2012 order of protection to “stay away” from the base. Id. She was not charged with trespass. In May 2014, the criminal prosecution arising from the defendant’s presence as a photographer at the second protest went to trial.5 The trial evidence indicates that, during the protest, the defendant walked back and forth between opposite shoulders of Malloy Road and photographed the protestors and law enforcement officers.6 RA.386. Defendant testified that she believed she was standing alongside a public road. RA.404, 410, 430. Unrebutted trial testimony indicated that the property line of the base extended into the middle of the roadway, technically rendering one shoulder of that road base property. RA.253. Witnesses, including police officers, testified to confusion at the time of the protest regarding the location of the property lines. RA.258, 263. Testimony further demonstrated the existence of a public easement along Malloy Road where the defendant was standing, on the portion of the road included within base property. RA.254, 238-39. Members of the public were 5 The defendant’s February 2014 trial on the charges arising from the 2012 protest resulted in her acquittal on the trespass charge and conviction on the charge of disorderly conduct. 6 There is no evidence in the record that the defendant, or indeed any of the protestors, blocked traffic passing along Malloy Road. Evidence introduced at trial showed that vehicular and pedestrian traffic on the public road was unobstructed during the protest. 9 routinely permitted to drive or walk on that portion of the roadway. Id. It was undisputed at trial that, at the time of the second protest, there were no signs delineating the boundaries of the base. RA.238-39. Moreover, posted trespass warnings were affixed to the boundary fence of the base, approximately 170 feet from the site of the protest. RA.249. After the second protest, officials posted signs marking the base boundary. RA.238-39. At the conclusion of the evidence, the court instructed the jury that the disorderly conduct charge required proof that defendant had obstructed vehicles from driving onto the base, that her conduct had occurred in a public place (Malloy Road), and that “defendant intended to cause public inconvenience, annoyance, or alarm or recklessly create a risk thereof.” RA.594. In contrast, the jury was instructed that the criminal contempt charge required proof of only two elements: (1) that a lawful order of protection had issued and (2) that the defendant, with knowledge of the order of protection, “engaged [i]n intentional disobedience or resistance to it.” RA.591. During its deliberations, the jury sought guidance from the trial court about the meaning of the term “stay away” in the order of protection. RA.612-14. In response, the court further instructed the jury only that the issue “relates to a question of fact” for which they “are the sole triers” “based upon testimony” heard and other evidence received. RA.620. 10 At the conclusion of the trial, the defendant was acquitted of the charge of disorderly conduct. She was convicted on the criminal contempt charge. As a result, the sentence imposed by the trial judge—one-year incarceration and a $1,000 fine, the maximum available—was based solely on her failure to “stay away” from the site of the protest as required by the order of protection, even though she had not engaged in “disorderly conduct” while there. The defendant appealed to the County Court for the County of Onondaga, and was granted a stay of the judgment pending appeal. In a two-page decision dated January 8, 2016, the county court upheld the validity of the stay away order issued against defendant. In pertinent part, it held that under CPL § 530.13(1)(a), “Colonel Evans could have qualified as either a victim or a witness of the October 25, 2012 protest.” AA.5. The county court did not elaborate further on this holding or cite supporting legal authority. It then rejected the contention that the stay away order was impermissibly vague, stating that the defendant “understood that the order prohibited her from going on base property.” Id. The court did, however, find that the sentence imposed was “unduly harsh” and reduced it to six months incarceration. Id. In concluding that the more “severe” sentence for violation of the stay away order was not warranted, the judge observed that “this crime did not involve the use of violence or threats of any kind.” Id. 11 The defendant thereafter successfully sought leave, pursuant to CPL § 460.20, to appeal directly to this Court. The parties dispute whether, as an initial matter, the Court has jurisdiction to hear the appeal and whether defendant adequately preserved the issue of the order of protection’s validity. Amici take no position on those procedural questions. They respectfully submit this brief for the sole purpose of informing the Court, should it reach the merits of the appeal, of the dangers posed to fundamental rights guaranteed by the First Amendment through the use of “stay away” orders to “protect” public officials from criticism or scrutiny of their official conduct. ARGUMENT The county court erred in two significant ways. First, the court broadly construed the statute in a manner inconsistent with its plain meaning and the legislative intent. Second, in so doing, it applied the statute in a manner that endangers fundamental First Amendment rights, including the right to criticize public officials, the right to engage in public protect free of prior restraint, and the right to engage in newsgathering on the public streets. 12 POINT I THE BROAD CONSTRUCTION ADOPTED BY THE COUNTY COURT CANNOT BE RECONCILED WITH THE STATUTE’S PLAIN MEANING, LEGISLATIVE HISTORY OR PREVIOUS JUDICIAL CONSTRUCTION Temporary orders of protection issued pursuant to CPL § 530.13 serve to protect “victims of, or designated witnesses to” crimes in cases not involving familial offenses during the pendency of the underlying criminal action. CPL 530.13(1). These orders are important tools to protect potentially vulnerable individuals from harassment, intimidation, threats, and violence. “Stay away” orders ensure that victims and witnesses come forward and participate in the criminal justice system even when their personal safety might otherwise be in jeopardy. See People v. Nieves, 2 N.Y.3d 310, 316 (2004) (“[T]he primary intent of the statute is to ensure that victims and ‘witnesses who have the courage and civic responsibility to cooperate with law enforcement officials are afforded the maximum protection possible.’” (quoting Governor's Mem. approving L. 1998, ch. 610, 1998 McKinney's Session Laws of N.Y., at 1485)). CPL § 530.13 originated as an amendment to CPL § 530.12, which governs orders of protection arising out of family offenses. Until the passage of CPL § 530.13 in 1981, orders of protection were tools to curb domestic violence and were available only in family court and only against the spouse, child, or parent of the party seeking protection. The legislature observed a need to expand the law to 13 encompass those victims and witnesses who, like victims of domestic violence, require protection from violent criminals, but are not related to their abuser. The Attorney General’s Memorandum for the Governor, dated June 18, 1981, explained the impetus behind the legislation: The courts are also faced with many cases arising out of disputes between persons previously known to each other who are not members of the same family. Unfortunately, many of these incidents, minor initially, tend to escalate into later tragedies. This often occurs while court proceedings are continuing between the participants. Currently, regardless of how strong the danger signals are, the courts and the police are powerless to act unless a crime is actually committed. This bill will allow the courts and the police, in the proper case, to interrupt a chain of events and separate those involved prior to a major and perhaps tragic confrontation. Mem. in Supp., L. 1981, ch. 575. While the new provision expanded the statute’s protections beyond the family members of criminals, it did not depart from the law’s raison d’etre: prevent violence against and the intimidation of victims and witnesses. Id. (praising the “increased security” for victims and witnesses, against whom “instances … of threats and harassment” had risen); Sponsor’s Mem. in Supp., L. 1981, ch. 575 (Sen. Knorr) (urging passage so actions “designed to threaten or antagonize victims of crime” could be “dealt with by police authorities and the courts” and to “send a clear signal” that “the criminal justice system is prepared to adequately protect and advocate the rights of crime victims”). Subsequent legislative history similarly reflects the statute’s purpose to protect from violence and harassment those persons who participate in the justice 14 system and are likely to be harmed by a “vengeful defendant[].” State of N.Y., Exec. Chamber Mem., L. 1998, ch. 610 (Oct. 6, 1998); see id. (discussing amendment that “enhances the safety of witnesses who testify against abusive or threatening defendants”); Governor's Mem. approving L. 1988, ch. 702, 1988 McKinney’s Session Laws of N.Y., at 2290 (“Orders of protection are intended to provide protection to persons who have been subjected to harassment or violence.”); see also Mem. in Supp., L. 2006, ch. 253 (July 26, 2006) (Assemblywoman Rosenthal) (advocating amendment to protect family pets used as “proxies” by abusive defendants). Likewise, the legislative history emphasizes the statute’s related goal of deescalating “dangerous or potentially explosive situation[s].” Mem. of State Exec. Dep’t, 1988 McKinney’s Session Laws of N.Y., at 2135 (“To assure protection to people who may be subjected to a dangerous or potentially explosive situation.”).7 7 See also People v. Koertge, 182 Misc. 2d 183, 187 (Dist. Ct. Nassau Cnty. 1998) (statute deemed “necessary in response to legislative findings that victim and witness intimidation by defendants released on bail or on their own recognizance was a significant problem for prosecutors”); People v. Purpura, 12 Misc. 3d 933, 935(Crim. Ct. Kings Cnty. 2006) (“The purpose behind the issuance of a temporary order of protection is to assure victims, regardless of their strength or training, that, if threatened, they have immediate recourse to the court.”). Not surprisingly, therefore, the form order utilized in this case directed the defendant to “[r]efrain from” specific conduct including “assault … aggravated harassment … strangulation … [and] sexual abuse” toward the protected person. AA.11. 15 New York courts have heretofore applied the statute in a manner consistent with its stated purpose. Indeed, not a single reported decision supports the county court’s finding that Colonel Evans qualifies as a “victim” or “witness” eligible for protection under § 530.13 based merely on his status as the commander of the base where the public protest and newsgathering activity at issue in this case took place. Mindful of the opportunities for mischief by an overly expansive reading of the statute, by which anyone who “cooperat[es] with law enforcement,” Respondent’s Br. at 15, could be rendered a “victim” or “witness,” lower courts have uniformly rejected such expansive constructions of the statutory language. For example, courts have interpreted the term “‘witnesses’” in the statute to be limited to “those who actually witnessed the offense for which defendant was convicted,” rather than any witness who testifies at trial. People v. Somerville, 72 A.D.3d 1285, 1288 (3d Dep’t 2010) (citing People v. Creighton, 298 A.D.2d 774, 776 (3d Dep’t 2002)).8 Similarly, courts have confined the definition of “victim” to its commonly understood meaning in a manner consistent with the statute’s purpose of protecting those persons likely to suffer harassment, intimidation, or violence designed to inhibit their participation in the criminal justice system. See, e.g., People v. Purpura, 12 Misc. 3d 933, 935 (Crim. Ct. Kings Cnty. 2006) (issuing temporary 8 Defining “designated witness” in the statute as an eyewitness would exclude Colonel Evans who it appears was not actually on the base at the time of the first protest. See Appellant’s Br. at 19; Respondent’s Br. at 16. 16 order of protection to victim who was attacked and feared further physical injury, and noting “[c]ourts have consistently held that the purpose of issuing an order of protection is to protect victims of crimes” (citing People v. O’Connor, 242 A.D.2d 908, 908 (4th Dep’t 1997) (protective order for elderly women who suffered extensive physical injury at the hands of their nephew)). The county court’s conclusion that Colonel Evans “could have qualified as either a victim or a witness of the [] protest” cannot be squared with the statute’s plain language or its legislative history. See AA.11. Far from being a “witness[] … reluctant to testify in a proceeding out of fear,” Sponsor’s Mem., L. 1998, ch. 610 (June 29, 1998) (Sen. Balboni), Colonel Evans affirmed at trial that he possessed “[n]o” fear of the defendant, a senior citizen and grandmother. RA.233. This testimony was consistent with his sworn statement in support of the order’s issuance. Instead of seeking the court’s assistance as a victim or witness in need of physical protection from the accused, Colonel Evans obtained the order to end what he considered to be disruptive protests of the U.S. drone policy carried out at his base. Id. The county court upheld the defendant’s conviction for violating the order even though her purported “crime did not involve the use of violence or threats of any kind.” AA.5. And it affirmed the conviction even while acknowledging that the order was directed at protecting the base, a place, rather than Colonel Evans, a 17 person. Id. Not surprisingly, courts considering the issue have, after analyzing the statutory language and legislative history, precluded the use of stay away orders sought to protect locations, rather than people. See People v. Smith, 4 Misc. 3d 909, 910 (Crim. Ct. N.Y. Cnty. 2004).9 Respondent defends the county court’s expansive application of CPL § 530.13 by arguing that Colonel Evans suffered inconveniences alongside his colleagues as a result of the public protest in which the defendant participated. See Respondent’s Br. at 16 (protest “victimized Evans along with everyone else on the base”). As a result, respondent contends that Colonel Evans “was a victim regardless of whether he was trapped on the base by the protest, unable to get to work at his usual time because of the protest, or had his work world disrupted by the protest.” Id. Simply put, such a construction of the statute’s scope is entirely unsupported by its plain language, its legislative history, and the existing case law. 9 Respondent’s assertion that defendant would not have been arrested had she remained on the opposite side of the street, only a few additional feet away from the base, confirms that Colonel Evans’ request for a “stay away” order was not for its intended purpose of protecting him. 18 POINT II THE BROAD CONSTRUCTION ADOPTED BY THE COUNTY COURT SHOULD BE REJECTED BECAUSE IT RAISES PROFOUND FIRST AMENDMENT ISSUES As explained supra, the county court’s construction of the statute should be rejected because it cannot reasonably be reconciled with the law’s plain meaning, legislative history, or existing precedent. Perhaps more significantly, as amici explain further infra, the county court’s construction raises fundamental questions about the statute’s constitutional validity. As a result, if nothing else, the doctrine of constitutional avoidance counsels that this Court construe the law in a manner that does not imperil fundamental First Amendment rights. A. The Court Should Adopt A Construction Of The Statute That Avoids Constitutional Issues The doctrine of constitutional avoidance counsels courts to construe legislative enactments in a manner that insulates them from successful constitutional challenge. E.g., Overstock.com, Inc. v. N.Y. State Dep’t of Taxation & Fin., 20 N.Y.3d 586, 593 (2013) (“courts must avoid, if possible, interpreting a presumptively valid statute in a way that will needlessly render it unconstitutional” (citation omitted)); All. of Am. Insurers v. Chu, 77 N.Y.2d 573, 585 (1991) (courts “avoid interpreting a statute in a way that would render it unconstitutional if such a construction can be avoided” (citing People v. Liberta, 64 N.Y.2d 152, 171 (1984))). In practice, therefore, “where there are two possible interpretations” of a 19 statute, “the court will accept that which avoids constitutional doubts.” Courtesy Sandwich Shop, Inc. v. Port of N.Y. Auth., 12 N.Y.2d 379, 389 (1963) (reversing lower court decision in which an “act was construed so as to raise rather than settle a constitutional question”). Put differently, if there exist “any grave doubts” about one interpretation of a statute, the other should be adopted. In re Coates, 9 N.Y.2d 242, 253 (1961) (declining to adopt reading that “might well render the statute” unconstitutional). As amici explain further infra, the county court’s application of the order of protection statute, at the behest of a public official, to protect him from further criticism of his performance of his official duties, especially when taken together with the subsequent enforcement of that order to punish the photographing of a protest from an area accessible by any other member of the public, raises profound constitutional issues. The constitutional infirmities inherent in such a statutory scheme counsel that this Court construe it in a manner that avoids them. B. The County Court’s Construction Of The Statute Raises Significant First Amendment Issues 1. The County Court’s Construction Permits Public Officials To Enjoin and Punish Criticism of Their Official Conduct The County Court’s broad definitions of who constitutes a “victim” or “witness” under the statute allow public officials, in this case a senior military officer and base commander, to enjoin and punish through incarceration criticism of their performance of their official duties. “[E]xpression on public issues ‘has 20 always rested on the highest rung of the hierarchy of First Amendment values.’” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982) (quoting Carey v. Brown, 447 U.S. 455, 467 (1980)). The right to criticize public officials and policies constitutes “the central meaning of the First Amendment.” Sullivan, 376 U.S. at 273; see also Texas v. Johnson, 491 U.S. 397, 411 (1989) (“expression of dissatisfaction with the policies of this country [is] situated at the core of our First Amendment values”); Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 379 (1977) (observing “profound national commitment to” public debate that “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” (quoting Sullivan, 376 U.S. at 270)). Accordingly, “[t]he strongest protection of the First Amendment's free speech guarantee goes to the right to critici[ze] government or advocate change in governmental policy.” Velazquez v. Legal Servs. Corp., 164 F.3d 757, 771 (2d Cir. 1999), aff’d, 531 U.S. 533 (2001). A stay away order was issued against the defendant here, at the behest of a public official, after she engaged in a public protest of government policies that he was responsible for implementing. She was charged with contempt of that order because she photographed, from a location readily accessible and open to members of the general public, a second protest critical of U.S. drone policy and the public officials actively carrying out those policies, as well as law enforcement’s response 21 to that protest. At all relevant times, therefore, the defendant was indisputably engaged in “core” First Amendment activity receiving the highest of constitutional protections, most especially protection from government action initiated at the urging of the very public official she had exercised her constitutional right to criticize. The First Amendment simply does not permit a public official, acting in his capacity as “[a]n authorized representative of” the U.S. military, AA.11, to obtain an injunction against the defendant’s criticism of his official conduct on the sole ground that he was thereby rendered a “victim” of that criticism.10 10 Because the right to criticize public officials constitutes the “central meaning” of the First Amendment, the Supreme Court has erected significant hurdles for any public official seeking to inhibit such criticism. In New York Times v. Sullivan, a public official famously attempted to use the libel laws to silence his critics. The Supreme Court rejected that “disquieting” attempt to “transmut[e] criticism of government, however impersonal it may seem on its face, into personal criticism … of the officials of whom the government is composed.” Sullivan, 376 U.S. at 291-92. In this case, the county court allowed Colonel Evan to use the protective order statute in an analogous, and equally “disquieting,” manner. Specifically, as the statute was construed by the county court, the general protest activity in which defendant was engaged was deemed to be a threat directly and personally to a public official. Just as an “otherwise impersonal attack on governmental operations” could not “constitutionally be utilized to establish … a libel of an official responsible for those operations,” id. at 292, so too the statute at issue in this case cannot constitutionally be construed to classify the public official responsible for the enforcement of a government policy as a “victim” of public protest directed at that policy. 22 2. The County Court’s Construction Effectively Authorizes Issuance of an Injunction Prohibiting Otherwise Protected Expression in the Absence of Constitutionally Required Safeguards The use of the statute to enjoin activity otherwise protected by the First Amendment, in this case both participation in a peaceful protest on a public street and the photographing of such a protest and the law enforcement response to it, cannot reasonably be reconciled either with the “heavy presumption against” prior restraints on expression, e.g., Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (invalidating “temporary” injunction against peaceful leafletting in town as prior restraint), or accepted notions of First Amendment-based “due process,” see, e.g., Carroll, 393 U.S. at 181 (invalidating temporary ex parte injunction against political rally). The county court construed the statute to authorize the issuance of an order requiring the defendant, who had engaged in a peaceful protest of the government activity taking place there, to “stay away” from the base. The defendant was thereafter convicted of contempt of that order because she returned to the vicinity of the base to photograph the second protest and the law enforcement response to it. As a practical matter, therefore, the statute was construed here to authorize courts to broadly enjoin activities otherwise protected by the First Amendment and to punish violations of such orders as contempt. Such a construction and application of the statute therefore require the caution, and enhanced judicial scrutiny, that must be applied to injunctions that 23 threaten the exercise of First Amendment rights. See, e.g., Schenck v. Pro-Choice Network Of W. N.Y., 519 U.S. 357, 376 (1997) (applying First Amendment scrutiny to injunction against demonstrators) (citing Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (because injunctions burdening speech require “more stringent application of general First Amendment principles,” courts must determine whether “the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.”)11 Where an injunction takes the form of an order that has the effect of preventing public protest near a government facility, courts must be especially vigilant to make sure that the contempt power is tested by the demanding standards required by the First Amendment. See, e.g., Huminski v. Corsones, 396 F.3d 53, 92-93 (2d Cir. 2005). That CPL § 530.13 “‘by its terms … regulates only conduct” does not change the constitutional calculus where, as in this case, the statute has been construed to authorize the issuance of orders that, as a practical matter, “regulates the place and time of protected speech.” McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014) (internal marks and citations omitted). 11 Indeed, the statute’s application in this case raises the same concerns that animate the First Amendment’s antipathy to prior restraints. See, e.g., Carroll, 393 U.S. at 181 & n.5 (“Prior restraint upon speech suppresses the precise freedom which the First Amendment sought to protect against abridgment” and the “elimination of prior restraints was a ‘leading purpose’ in the adoption of the First Amendment.” (quoting Lovell v. City of Griffin, 303 U.S. 444, 451-52 (1938) (invalidating ordinance precluding distribution of advocacy materials)). 24 After all, even in nonpublic fora, a restriction on speech and expressive conduct must be reasonable in light of the use to which the forum is dedicated and “‘not an effort to suppress expression merely because public officials oppose the speaker’s view.’” Huminski, 396 F.3d at 90 (citation omitted). In Huminski, the Second Circuit concluded that a notice of trespass issued to a specific person violated the First Amendment. Such notices, the Court explained, like injunctions, “carry greater risks of censorship and discriminatory application than do general ordinances,” because of their individualized nature. Id. at 92. Indeed, in that case, the court evaluated a trespass notice very similar to the stay away order at issue here – it prohibited any expressive activity in and around a courthouse, creating what the court described as a “First-Amendment-Free Zone for [plaintiff] alone.” Id. The stay away order at issue in this case suffers from the same constitutional malady – it was issued against a person who was, at the time, engaged in a public protest and prohibited her from engaging in First Amendment-protected activity, including taking photographs of a second protest and the law enforcement response to it. In addition, although it appears that the defendant in this case was technically afforded the opportunity to oppose issuance of the stay away order before it was entered, the statute itself expressly authorizes entry of such an order ex parte. CPL § 530.13(2)-(3). As the Supreme Court has emphasized, an 25 injunction directed at speech-related activities, including public protests, can rarely, if ever, be entered without notice and an opportunity to be heard. See Carroll, 393 U.S. at 180. In Carroll, the Court explained that: [t]here is a place in our jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate. Id. The statute at issue, in contrast, authorizes on its face restraining orders of far longer than “temporary” duration – the order in this case required defendant to “stay away” from the base for at least one full year – and does so without the necessity of showing that prior notice was “impossible.” 3. The County Court’s Construction Authorizes Infringement of the First Amendment-Protected Right To Photograph on a Public Street The use of CPL § 530.13 to punish as “contempt” the otherwise lawful exercise of First Amendment rights – in this case, the right to photograph a public protest and the reaction of law enforcement officers to it – is itself constitutionally impermissible. The right to observe and photograph a public protest is traditional speech activity protected by the First Amendment. See Alvarez, 679 F.3d at 595 (protecting public’s right to make audio/visual recordings by analogizing to the established right to photograph public events, and observing “there is no fixed First Amendment line between the act of creating speech and the speech itself”); see 26 also Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (protecting right to record because “[t]he First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest”); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (same); Fields v. City of Phila., ---F.3d---, 2017 WL 2884391, at *1 (3d Cir. July 7, 2017) (observer had right to photograph anti-fracking protest with her iPhone because “[s]imply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public”); Charles v. City of N.Y., 2017 WL 530460, at *23-24 (E.D.N.Y. Feb. 8, 2017) (surveying cases and finding that First Amendment right to record police activity on a public street is established); Higginbotham v. City of N.Y., 105 F. Supp. 3d 369, 379-81 (S.D.N.Y. 2015) (same); Porat v. Lincoln Towers Cmty. Ass’n, 2005 WL 646093, at *4 (S.D.N.Y. Mar. 21, 2005) (“communicative photography is well-protected by the First Amendment” (citing Bery v. City of N.Y., 97 F.3d 689 (2d Cir. 1996)). While the right to record in such circumstances may be subject to reasonable time, place, and manner restrictions, the county court did not even purport to make such an assessment. Instead, it rejected out of hand, as the trial court had before it, that there were First Amendment interests to be considered at all. In this case, the defendant was acquitted of disorderly conduct. Indeed, the evidence at trial 27 showed that she neither blocked the base entrance nor engaged in any conduct that could be characterized as harassment or otherwise unruly. All she did to warrant the imposition of a substantial criminal fine and a sentence of incarceration was to photograph a peaceful protest, and the law enforcement reaction to it, from a place generally accessible to the public. Such a use of the contempt power cannot be reconciled with the First Amendment. To be sure, the defendant is not a photo-journalist by profession, but the activity for which she was convicted and ordered incarcerated is indistinguishable from what news photographers do every day. Glik, 655 F.3d at 84 (“[M]any of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper.”). Indeed, journalists and professional photographers, as well as ordinary people, regularly serve as surrogates for their fellow citizens by observing, chronicling and disseminating words and images describing both an increasing number of significant public protests across the nation, and the conduct of law enforcement officials in response to them.12 The importance of such activity – and the extent to which it must be protected by the First Amendment – cannot be overstated. 12 See, e.g., Malachy Browne et al., Did the Turkish President’s Security Detail Attack Protesters in Washington? What the Video Shows, N.Y. Times (May 26, 2017), https://www.nytimes.com/interactive/2017/05/26/us/turkey-protesters- 28 For all of these reasons, the statute, especially as applied in this case, at the very least raises significant constitutional questions. To preserve the statute’s validity, and its availability to protect actual victims of and witnesses to crime from intimidation and violence, it can and should be construed in accordance with its plain meaning and legislative history, which do not contemplate its invocation by public officials to stifle criticism of their performance of their official duties. attack-video-analysis.html?smid=tw-nytimes&smtyp=cur&_r=0 (video and photographs of initially peaceful protest outside Turkish embassy in Washington, D.C. led to identification of some attackers as members of President Erdogan’s security detail); Mo. professor sought “muscle” to stop journalist covering protest, CBS News (Nov. 10, 2015), http://www.cbsnews.com/news/missouri-professor- melissa-click-muscle-journalist-tim-tai-protest/ (video reveals professor attempting to block student reporter from covering public protest); Alex Johnson, et al., Video at Michael Brown March in Ferguson, Missouri, Appears to Capture Gunfire, NBC News (Aug. 10, 2016), http://www.nbcnews.com/storyline/michael-brown- shooting/video-michael-brown-march-ferguson-missouri-appears-capture-gunfire- n626926 (video from protest establishes events). CONCLUSION For the foregoing reasons, amici respectfully submit that the decision below should be reversed and the defendant’s conviction vacated. Respectfully submitted, LEVINE SULLIVAN KOCH & SCHULZ, LLPDated: July 13, 2017 By: Lee Levine* David A. Schulz Mara J. Gassmann* 321 West 44th Street, Suite 1000 New York, New York 10036 T (212) 850-6123 F (212) 850-6299 Email: llevine@lskslaw.com Email: dschulz@lskslaw.com Email: mgassmann@lskslaw.com Counsel for Amici Curiae Bruce D. Brown Gregg P. Leslie 1156 15th Street N.W., Suite 1250 Washington, D.C. 20005 Counsel for Reporters Committee for Freedom of the Press Mickey H. Osterreicher 200 Delaware Avenue Buffalo, NY 14202 Counsel for National Press Photographers Association * Pro Hac Vice 29 PRINTING SPECIFICATION STATEMENT This computer generated brief was prepared using a proportionally spaced typeface Name of typeface: Time New Roman Point Size: 14 Line Spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of authorities, proof of service, certificate of compliance, the corporate disclosure statement, and the amici interest statement is 6,990.