The People, Respondent,v.Mary Anne Grady Flores, Appellant.BriefN.Y.October 11, 2017STATE OF NEW YORK: COURT OF APPEALS _________________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK vs. MARY ANNE GRADY FLORES, Appellant BRIEF OF AMICUS CURIAE UPSTATE DRONE ACTION Appeal No. 2016-00137 Jonathan Wallace Attorney for Amicus PO #728 Amagansett, NY 11930 917-359-6234 MARCH 27, 2017 Table of Contents INTEREST OF THE AMICUS CURIAE..............................................................................3 STATEMENT OF THE CASE AND SUMMARY OF ARGUMENT..................................4 Point One THE ORDER OF PROTECTION WAS SO VAGUE AS TO OFFEND DUE PROCESS REQUIREMENTS.................................................................................................................5 Point Two MS. GRADY HAD A FIRST AMENDMENT RIGHT TO TAKE PHOTOGRAPHS OF A DEMONSTRATION ON A PUBLIC THOROUGHFARE ................................................10 Point Three THE ORDER OF PROTECTION FAILS THE “INTERMEDIATE SCRUTINY” TEST APPLIED IN SPEECH-NEUTRAL FIRST AMENDMENT CASES................................14 Point Four THE ORDER OF PROTECTION WAS AN UNCONSTITUTIONAL PRIOR RESTRAINT ON SPEECH.................................................................................................17 CONCLUSION....................................................................................................................18 TABLE OF CASES Ash v. Bd. of Mgrs. of 155 Condominium, 44 A.D.3d 324 (Appellate Division, 1st Dept. 2007).............................................................................................17 Baker v. City of New York, 2002 U.S. Dist. LEXIS 18100 (Southern District of New York 2002) ..........................................................................................11 Boos v. Barry, 485 U.S. 312 (1988)..............................................................................................16 Brodeur v. City of New York, 2002 U.S. Dist. LEXIS 4500 (Southern District of New York 2002).........................................................................................10 Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175 (1968)......................................17 City of Ladue v. Gilleo, 512 U.S. 43 (1994).................................................................................16 Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984)......................................14 Dorman v. Satti, 678 F. Supp. 375 (District of Connecticut 1988), cert. Den. 490 U.S. 1099 (1989) .....................................................................................................6 Harman v. City of New York, 945 F. Supp. 750 (Southern District of New york 1996), affirmed 140 F.3d 111 (1998)...........................................7 1 Hill v. Colo., 530 U.S. 703 (2000).................................................................................................15 Hotel Emples. & Rest. Emples. Union, Local 100 v. City of N.Y. Dept. of Parks and Recreation, 311 F.3d 534 (2d Cir. 2002)...........................................................................................................11 Houston v. Hill, 482 U.S. 451(1987).............................................................................................16 Huminski v. Corsones, 396 F.3d 53 (2d Cir. 2004) ......................................................................18 McCormick v. Axelrod, 59 N.Y.2d 574 (1983)...............................................................................8 McCullen v. Coakley 134 S. Ct. 2518 (2014)...............................................................................11 McCullen v. Coakley, 134 S. Ct. 2518 (2014) ..............................................................................15 Merrill Lynch, Pierce, Fenner & Smith v. Doe, 868 F. Supp. 532 (Southern District of New York 1994)............................................................................................7 Metropolitan Council, Inc. v. Safir, 99 F. Supp. 2D 438 (S.D.N.Y. 2000) ...................................13 Metropolitan Opera Ass'n v. Local 100, Hotel Emples. & Restaurant Emples. Int'l Union, 239 F.3d 172 (2d Cir. 2001).........................................................................18 Near v. Minnesota , 283 U.S. 697 (1931)......................................................................................17 New York Public Interest Research Group, Inc. v. Roslyn Estates, 498 F. Supp. 922 (Eastern District of New York 1979)..................................................................6 Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971)...................................................18 People v Golb, 23 N.Y.3d 455 (2014), cert. Den. 135 S. Ct. 1009 (2015) .....................................6 People v. Bright, 71 N.Y.2d 376 (1988)..........................................................................................8 People v. Clark, 44 Misc. 3d 1201(A) (Justice Court Dutchess County 2014)...............................7 People v. Freeman, 2001 N.Y. Misc. LEXIS 598 (City Court, Watertown 2001).......................10 People v. Gunatilaka, 156 Misc. 2d 958 (Criminal Court N.Y. County 1993) ...............................9 People v. Hogan, 172 Misc. 2d 279 (Criminal Court Kings County 1997), affirmed 181 Misc. 2d 748 (Appellate Term 2d Dept. 1998) ........................................................7 People v. Ndiaye, 9 Misc. 3d 1118(A) (Justice Court Dutchess County 2005)...............................9 People v. Pucilowski, 4 Misc. 3d 1019(A) (County Court, Westchester County 2004)................10 People v. Stuart, 100 N.Y.2d 412 (2003),........................................................................................8 Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003)...............................................................14 Reno v. ACLU, 521 U.S. 844 (1997)............................................................................................15 Schenck v. Pro-Choice Network, 519 U.S. 357 (1997).................................................................11 Sheridan v. Kennedy, 12 A.D.2d 332 (Appellate Division First Department 1961)......................9 Snyder v. Phelps 131 S. Ct. 1207 (2011)......................................................................................14 Streetwatch v. National R.R. Passenger Corp., 875 F. Supp. 1055 (SDNY 1995)........................14 Tunick v. Safir, 209 F.3d 67 (2d Cir. 2000)...................................................................................11 United Yellow Cab Drivers Ass’n v. Safir, 2002 U.S. Dist. LEXIS 4866 (SDNY 2002).............12 Ward v. Rock Against Racism, 491 U.S. 781 (1989)...................................................................13 Ward v. Rock Against Racism, 491 U.S. 781 (1989)....................................................................15 Zieper v. Metzinger, 392 F. Supp. 2D 516 (Southern District of New York 2005), affirmed 474 F.3d 60 (2d Circuit 2007)...........................7 Bray v. City of New York, 346 F. Supp. 2D 480 (SDNY 2004) ..................................................12 New Alliance Party v. Dinkins, 743 F. Supp. 1055 (S.D.N.Y. 1990)...........................................13 Schoolcraft v. City of New York, 2012 U.S. Dist. LEXIS 128557 (Southern District of New York 2012)............................................................................................7 Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975)....................................................6 2 United Yellow Cab Drivers Ass’n v. Safir, 2002 U.S. Dist. LEXIS 4866 (SDNY 2002) ...........12 INTEREST OF THE AMICUS CURIAE Upstate Drone Action respectfully submits this brief as amicus curiae in support of Appellant's argument that her conviction for contempt of an Order of Protection (“OOP”) violated the First and Fourteenth Amendments. Upstate Drone Action is a grassroots coalition founded in 2010 which, in its own words, “seeks to expose – both to the public and to Hancock Air Force Base personnel – the ongoing satellite-facilitated Reaper drone war crimes perpetrated in West Asia and the Middle East by the 174th Attack Wing of the New York State National Guard stationed at Syracuse’s Hancock Air Force base”. Upstate Drone Action has organized and carried out a series of peaceful protests on the public street adjoining, and in the access road to, Hancock Air Force base. Numerous members of Upstate Drone Action have been arrested during these peaceful protests and charged with obstructing government action, a misdemeanor, and disorderly conduct and trespass violations, and some have gone to trial on these charges. Almost from the very outset, authorities in the Town of Dewitt, where the base is located, have begun issuing OOP's under Criminal Procedure Law Section 3 530.13, using the same blank form which would be utilized to protect a battered spouse or frightened witness, issuing these in the name of the colonels commanding the base. Appellant Mary Ann Grady was arrested for violating her OOP at an Upstate Drone Action demonstration. Three other members of Upstate Drone Action currently face contempt charges for OOP violations, which have been adjourned by a DeWitt Town Court judge without date pending a decision on this appeal. STATEMENT OF THE CASE AND SUMMARY OF ARGUMENT Amicus maintains that the OOP issued to Appellant violates the First and Fourteenth Amendments, and the New York State Constitution, because: I. It is so vague as to offend Due Process, in that it fails to contain any geographic limitation whatever or other clarification as to the meaning of its terms, including the phrase “stay away”; II. Appellant's actions, peacefully photographing a demonstration on a public thoroughfare, were First Amendment protected and cannot Constitutionally be construed as a misdemeanor violation of the OOP; III. The OOP fails the “intermediate scrutiny” test applicable in First Amendment cases involving content neutrality, in that the OOP itself, and Appellant's arrest pursuant to it, were not “narrowly tailored to a significant government interest, while 4 allowing ample alternative means of communication”; and IV. The OOP constituted an unlawful prior restraint on Appellant's speech. Point One THE ORDER OF PROTECTION WAS SO VAGUE AS TO OFFEND DUE PROCESS REQUIREMENTS By its explicit terms, the OOP which Ms. Grady was convicted of violating was so vague that it failed either to give her notice of the behavior to avoid, or to set any clear rules for police or prosecutors as to its enforcement. As the language of the OOP and the trial testimony clearly establish, Ms. Grady received no notice as to whether the “stay away” language merely prohibited her from entering upon the Hancock Air Force base, or from demonstrating on a public road opposite, or from even visiting the town of Dewitt, or perhaps even the city of Syracuse of which it is a suburb. By not containing any clear notice to Ms. Grady, the OOP left the DeWitt police and Syracuse District Attorney unfettered discretion to arrest and prosecute Ms. Grady for her peaceful participation in First Amendment- protected activities. The Supreme Court “ has felt obliged to condemn systems in which the exercise of such authority was not bounded by precise and clear standards. The reasoning has been, simply, that the danger of censorship and of abridgment of our 5 precious First Amendment freedoms is too great where officials have unbridled discretion over a forum's use. Our distaste for censorship -- reflecting the natural distaste of a free people -- is deep-written in our law”, Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975). “[A] court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.... To survive a 'void for vagueness' attack, the Act must give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly, and must provide explicit standards so as to ensure it is not arbitrarily and discriminatorily enforced. The issue thus is whether a person of common intelligence would necessarily wonder if his contemplated conduct were illegal”, Dorman v. Satti, 678 F. Supp. 375 (District of Connecticut 1988), cert. Den. 490 U.S. 1099 (1989) (citations and quotes omitted); New York Public Interest Research Group, Inc. v. Roslyn Estates, 498 F. Supp. 922 (Eastern District of New York 1979) (prosecution depended on “unbridled discretionary determination” of town authorities); People v Golb, 23 N.Y.3d 455 (2014), cert. Den. 135 S. Ct. 1009 (2015) (“statute criminalizes, in broad strokes, any communication that has the intent to annoy”). There was, incidentally, no proof offered at trial that Ms. Grady intended to violate the OOP, or had any awareness that by photographing a demonstration, she was in contempt of it. 6 Protected speech has been held not to constitute an OOP violation, People v. Hogan, 172 Misc. 2d 279 (Criminal Court Kings County 1997), affirmed 181 Misc. 2d 748 (Appellate Term 2d Dept. 1998) (“ The registering of displeasure with another person is legitimate, protected speech”); People v. Clark, 44 Misc. 3d 1201(A) (Justice Court Dutchess County 2014). “It is well-established that First Amendment rights may be violated by the chilling effect of governmental action that falls short of a direct prohibition against speech”, Schoolcraft v. City of New York, 2012 U.S. Dist. LEXIS 128557 (Southern District of New York 2012) (quotes omitted). “The exercise of First Amendment freedoms may be deterred almost as potently by the threat of sanctions as by their actual application”, Zieper v. Metzinger, 392 F. Supp. 2D 516 (Southern District of New York 2005), affirmed 474 F.3d 60 (2d Circuit 2007). Merrill Lynch, Pierce, Fenner & Smith v. Doe, 868 F. Supp. 532 (Southern District of New York 1994) involved a defendant charged with contempt of an order banning him from filing a federal lawsuit, which “had a chilling effect on the exercise of litigation rights, [and] posed an unwarranted threat of contempt”, cf. Harman v. City of New York, 945 F. Supp. 750 (Southern District of New York 1996), affirmed 140 F.3d 111 (1998)(“employees faced with this system are much less likely to speak because the chances of being sanctioned are increased”. 7 The OOP similarly cannot survive a Due Process vagueness challenge under the Fifth and Fourteenth Amendments. In People v. Stuart, 100 N.Y.2d 412 (2003), the Court of Appeals confirmed a two part test: “The first [part] essentially restates the classical notice doctrine: To ensure that no person is punished for conduct not reasonably understood to be prohibited, the court must determine whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. Second, the court must determine whether the enactment provides officials with clear standards for enforcement” (citations and quotes omitted); People v. Bright, 71 N.Y.2d 376 (1988) (second “prong of the test, which requires that a penal law not permit arbitrary or discriminatory enforcement is, perhaps, the more important aspect of the vagueness doctrine”). The vagueness test, as applied to court orders in contempt proceedings, is identical to that applied to statutes. “In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect”, McCormick v. Axelrod, 59 N.Y.2d 574 (1983). Constitutional and state- and local-level vagueness analysis dovetail; if a statute or court order is too vague to survive the detailed examination of a state court, that means it won't survive federal Due Process analysis. “[C]ourts had 8 recognized the concept long before it took on constitutional status under the Fifth and Fourteenth Amendments”, People v. Stuart, supra. Decisions of trial-level courts finding OOP's and similar orders void for vagueness often do not mention the Constitution, People v. Gunatilaka, 156 Misc. 2d 958 (Criminal Court N.Y. County 1993) (“When the terms of an order are vague and indefinite as to what actions are required or prohibited to a party, he or she may not be adjudged in criminal contempt for failing to take the required action or for taking the prohibited action”); Sheridan v. Kennedy, 12 A.D.2d 332 (Appellate Division First Department 1961) (“If the order alleged to be disobeyed is capable of a construction consistent with the innocence of the party there should be no punishment”); People v. Ndiaye, 9 Misc. 3d 1118(A) (Justice Court Dutchess County 2005) (“ambiguity in the order insofar as describing what a defendant is required to do or, more to the point, not do, should be resolved in favor of the defendant when such conduct would not run afoul of any other criminal statute”). Since the “hallmark of an order of protection - - particularly stay-away and not to contact provisions - - is to make unlawful conduct that would otherwise be lawful, the proscribed conduct must be carefully and clearly delineated by the Court” drafting the OOP, People v. Pucilowski, 4 Misc. 3d 1019(A) (County Court, Westchester County 2004). 9 In Brodeur v. City of New York, 2002 U.S. Dist. LEXIS 4500 (Southern District of New York 2002), the United States District Court found an OOP unenforceably vague because it failed to identify a protected spouse's place of employment as City Hall, and could therefore not justify prosecution of the defendant “engaged in clearly political activities on the steps of City Hall". Similarly, in People v. Freeman, 2001 N.Y. Misc. LEXIS 598 (City Court, Watertown 2001), the Criminal Court found a due process violation in an OOP's use of “ an adjectival phrase consisting of the victim's name defining the 'stay away' location i.e. Mary Smith's house, etc. instead of identifying the place by its unchanging street address”. Under no construction does the OOP give Ms. Grady Constitutionally- adequate notice only of specific, non-protected actions which would violate it (for example, entering within the gates of the Hancock Air Force base itself). Point Two MS. GRADY HAD A FIRST AMENDMENT RIGHT TO TAKE PHOTOGRAPHS OF A DEMONSTRATION ON A PUBLIC THOROUGHFARE Photography is indisputably “constitutionally protected artistic expression”, 10 Tunick v. Safir, 209 F.3d 67 (2d Cir. 2000); Baker v. City of New York, 2002 U.S. Dist. LEXIS 18100 (Southern District of New York 2002) ("street photography is protected First Amendment expression”). The public sidewalk and street on which Ms. Grady photographed the anti-drone demonstration, is a traditional public forum for demonstrations. “[S]peech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum”, Schenck v. Pro-Choice Network, 519 U.S. 357 (1997). “The classic examples of traditional public forum are streets, sidewalks, and parks, which are properties that have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hotel Emples. & Rest. Emples. Union, Local 100 v. City of N.Y. Dept. of Parks and Recreation, 311 F.3d 534 (2d Cir. 2002)(quotation marks omitted). As the Supreme Court recently said in McCullen v. Coakley 134 S. Ct. 2518 (2014): “ It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. 11 There, a listener often encounters speech he might otherwise tune out. In light of the First Amendment’s purpose to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, this aspect of traditional public fora is a virtue, not a vice.” (quotes and cites omitted). Groups and processions engaged in protected and symbolic speech have an honored place in First Amendment jurisprudence, United Yellow Cab Drivers Ass’n v. Safir, 2002 U.S. Dist. LEXIS 4866 (SDNY 2002) (procession of yellow cabs); Bray v. City of New York, 346 F. Supp. 2D 480 (SDNY 2004) (bicycle demonstration). First Amendment expression under the “intermediate scrutiny” standard often trumps ordinances directed to less expressive behavior, People v. Santorelli, 80 N.Y.2d 875 (1992) (topless protest against laws which allow only men to go shirtless in park). “A reasonable time, place and manner regulation may not burden substantially more speech than is necessary to further the government's legitimate interests....The final requirement of a legitimate time, place and manner regulation is that it leave open alternative channels of communication”, United Yellow Cab Drivers Ass’n v. Safir, 2002 U.S. Dist. LEXIS 4866 (SDNY 2002) (city could not legally ban taxi demonstration), citing Ward v. Rock Against Racism, 491 U.S. 781 (1989). 12 The First Amendment right of peaceful protest expressly includes a right to demonstrate as close as possible to the building or place which is the symbolic target, in this case Hancock Air Force base, because it is not a reasonable time, place and manner restriction to force demonstrators arbitrarily far away from the legitimate target of their protests, New Alliance Party v. Dinkins, 743 F. Supp. 1055 (S.D.N.Y. 1990); Metropolitan Council, Inc. v. Safir, 99 F. Supp. 2D 438 (S.D.N.Y. 2000) (demonstrations targeting Gracie Mansion). To the extent possible, protesters are to be permitted to choose the best locations and foci of their actions, New Alliance Party v. Dinkins, supra, (“The effects of political demonstrations, in terms of mobilizing coalitions and maintaining pressure on elected officials, is inherently unpredictable and unquantifiable. It is crucial that a presumption should exist allowing all political groups to press their demands at times and in contexts and locations of their own choosing”). By failing to delineate the distance Ms. Grady was required to “stay away” from Col. Evans, and potentially even operating to keep her from visiting DeWitt or even Syracuse, the OOP even impinged on Ms. Grady's “freedom of travel and movement” which “is a fundamental right protected by the United States Constitution”, Streetwatch v. National R.R. Passenger Corp., 875 F. Supp. 1055 (SDNY 1995); Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003). 13 Point Three THE ORDER OF PROTECTION FAILS THE “INTERMEDIATE SCRUTINY” TEST APPLIED IN SPEECH-NEUTRAL FIRST AMENDMENT CASES Because Ms. Grady was engaged in First Amendment protected activities when arrested, the People were tasked with carrying the extremely heavy burden of establishing that her arrest was carried out pursuant to a valid “time, place and manner” restriction, Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984); Snyder v. Phelps 131 S. Ct. 1207 (2011). This Court, in determining whether Ms. Grady's arrest for violating the OOP was valid, must apply so-called “intermediate scrutiny”, asking whether the government's action in arresting Ms. Grady was “narrowly tailored to serve a significant government interest” while allowing “ample alternative channels for communication of the [First Amendment protected] information”, Ward v. Rock Against Racism, 491 U.S. 781 (1989). (In certain other cases involving government measures which ban specific content, not applicable here, the Court would apply a somewhat different “strict scrutiny” test.) To survive intermediate scrutiny, a government action or measure must not fail any of three legs of the test, McCullen v. Coakley, 134 S. Ct. 2518 (2014) (“Because 14 we find that the Act is not narrowly tailored, we need not consider whether the Act leaves open ample alternative channels of communication”). The OOP and Ms. Grady's arrest, prosecution and conviction under its fatally vague language, fail intermediate scrutiny because they were not “narrowly tailored”. “For a content-neutral time, place, or manner regulation to be narrowly tailored, it must not burden substantially more speech than is necessary to further the government’s legitimate interests”, McCullen v. Coakley, supra. In Hill v. Colo., 530 U.S. 703 (2000), the court held that an ordinance restricting leafleting was “narrowly tailored” when it did “not prevent a leafletter from simply standing near the path of oncoming pedestrians and proffering the material, which pedestrians can accept or decline”. In Ward v. Rock Against Racism, 491 U.S. 781 (1989), the restrictions on volume still allowed the speech to be heard. In Reno v. ACLU, 521 U.S. 844 (1997), a case involving an Internet censorship statute, the Court pointed out that it is incumbent on the government, essentially a burden of proof, to show that its measure or action was narrowly tailored, an attempt never made by the People in Ms. Grady's case: “Particularly in the light of the absence of any detailed findings by the Congress, or even hearings addressing the special problems of the CDA, we are persuaded that the CDA is not narrowly tailored if that requirement has any meaning at all”. In Boos v. Barry, 485 U.S. 312 (1988), a 15 case involving legislation pushing demonstrators a certain distance away from embassies, the lack of narrow tailoring was evident in the fact that the required distance was broader, without any real rationale, than that applied to similar demonstrations outside other types of buildings and locations. Similarly, the Hancock Air Force base authorities and local police forces routinely tolerate pedestrians and demonstrations in the exact locations where Ms. Grady walked and stood, singling her out for prosecution. “ [W]e have repeatedly invalidated laws that provide the police with unfettered discretion to arrest individuals for words or conduct that annoy or offend them”, Houston v. Hill, 482 U.S. 451(1987). While Ms. Grady, due to the lack of narrow tailoring, is not required to discuss the other two legs of the test, Supreme Court case-law has been completely clear that forcing Ms. Grady' speech to a distant location does not satisfy the “ample alternative” leg of the test, City of Ladue v. Gilleo, 512 U.S. 43 (1994) (“Displaying a sign from one's own residence often carries a message quite distinct from placing the same sign someplace else”). These cases all have something in common, that the speech in question, however limited or controlled, was permitted, not silenced. By contrast, the OOP as interpreted by the Court would silence Ms. Grady completely, by not allowing her to participate in a peaceful, First Amendment-protected demonstration on a 16 public street. Point Four THE ORDER OF PROTECTION WAS AN UNCONSTITUTIONAL PRIOR RESTRAINT ON SPEECH In the context of this case, in which the OOP acted directly to chill exercise of protected First Amendment speech by Ms. Grady, it functioned as an unconstitutional “prior restraint”, Near v. Minnesota , 283 U.S. 697 (1931). A “'prior restraint" on speech is a law, regulation or judicial order that suppresses speech--or provides for its suppression at the discretion of government officials-- on the basis of the speech's content and in advance of its actual expression”, Ash v. Bd. of Mgrs. of 155 Condominium, 44 A.D.3d 324 (Appellate Division, 1st Dept. 2007)(quotes omitted). “Prior restraint upon speech suppresses the precise freedom which the First Amendment sought to protect against abridgment”, Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175 (1968). “[T]he First Amendment strongly disfavors injunctions that impose a prior restraint on speech”, Metropolitan Opera Ass'n v. Local 100, Hotel Emples. & Restaurant Emples. Int'l Union, 239 F.3d 172 (2d Cir. 2001) . A party seeking a prior restraint bears a heavy burden of demonstrating the justification for its imposition, Organization for a 17 Better Austin v. Keefe, 402 U.S. 415 (1971)(injunction against peaceful pamphleting). In Huminski v. Corsones, 396 F.3d 53 (2d Cir. 2004) , the plaintiff was served with a “Notice Against Trespass” essentially similar in scope and effect to an OOP. “The Notices Against Trespass in effect prohibit indefinitely any and all expressive activity in which Huminski might want to engage in and around Rutland state courthouses. These notices are thus pervasive enough to be viewed as creating a 'First-Amendment-Free Zone' for Huminski alone in and around the Rutland courts”. The OOP in this case similarly created a “First Amendment-Free Zone” around the Hancock Air Force Base. Because the OOP acted to discourage Ms. Grady from participating in peaceful, First Amendment-protected activities in a public forum, and then to penalize her when she did, it must be vacated as a First Amendment-barred prior restraint on speech. CONCLUSION The decision of the Appellate Division should be reversed and the Appellant's conviction for contempt of court should be vacated. DATED: Amagansett, N.Y. March 17, 2017 18 /s/Jonathan Wallace Jonathan Wallace P.O. 728 Amagansett, N.Y. 11930 jonathan.wallace80@gmail.com 917-359-6234 Certificate of Compliance with Page Limitations, Typeface Requirements and Type Style Requirements 1. This brief complies with the word limitations of Rule 500.13 (c) in that it contains 4312 words as calculated by the word package utilized in preparing the brief. 2. This brief complies with the typeface requirements of Rule 500.1(j)(1) because it has been prepared in a proportionally spaced typeface using Open Office and 14-point Times New Roman type style. /s/Jonathan Wallace Jonathan Wallace P.O. 728 Amagansett, N.Y. 11930 jonathan.wallace80@gmail.com 917-359-6234 19