The People, Respondent,v.Mary Anne Grady Flores, Appellant.

Brief

N.Y.October 11, 2017

Appeal No. 2016-00137 Court of Uppeate of tfje i§>tate of dBteto THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- MARY ANNE GRADY FLORES, Defendant-Appellant. BRIEF OF AMICUS CURIAE NEW YORK CIVIE LIBERTIES UNION KRISTEN BURZYNSKI JORDAN WELLS ARTHUR EISENBERG NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 19th Floor New York, N.Y. 10004 Telephone: (212) 607-3300 Facsimile: (212) 607-3318 kburzynski@nyclu.org Counsel for amicus curiae Dated: September 5, 2017 New York, NY DISCLOSURE STATEMENT PURSUANT TO RULE 500.1(F) The New York Civil Liberties Union hereby discloses that it is a non-profit, 501(c)(4) organization, which is the New York State affiliate of the American Civil Liberties Union. i TABLE OF CONTENTS DISCLOSURE STATEMENT 1 TABLE OF AUTHORITIES iii INTRODUCTION AND INTEREST OF AMICUS CURIAE 1 STATEMENT OF FACTS 3 ARGUMENT 6 I. INJUNCTIONS DIRECTED AT EXPRESSION ARE PRESUMPTIVELY UNCONSTITUTIONAL AND PLAINLY INVALID WHEN THEY ARE IMPRECISE AND EXCESSIVELY VAGUE 6 A. Injunctions Directed At Expression Are Presumptively Unconstitutional 6 B. First Amendment Principles Governing All Directives Regulating Expression Require That Any Directive Be Precisely Drawn and Not Excessively Vague 11 II. THE INJUNCTION AT ISSUE HERE WAS IMPERMISSIBLY IMPRECISE AND VAGUE 13 CONCLUSION 16 ii TABLE OF AUTHORITIES Cases Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) Baggett v. Bullitt, 377 U.S. 360 (1964) Brown v. Hartlage, 456 U.S. 45 (1982) 2, 10 12 9 Carroll v. President and Com’rs of Princess Anne, 393 U.S. 175 (1968), 7 CBS, Inc. v. Davis., 510 U.S. 1315 (1994) F.C.C. v. Fox Tel. Stations, 567 U.S. 239 (2012) Gooding v. Wilson, 405 U.S. 518 (1972) Grayned v. City of Rockford, 408 U.S. 104 (1972) Lanzetta v. New Jersey, 306 U.S. 451 (1939) Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994) NAACPv. Button, 371 U.S. 415 (1963) Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) New York Times Co. v. United States, 403 U.S. 713 (1971) Org. for a Better Austin v. Keefe, 402 U.S. 415 (1971) People ex rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553 (1986) People v. Bright, 71 N.Y.2d 376 (1988) People v. P.J. Video, Inc., 68 N.Y.2d 296 (1986) People v. Taub, 37 N.Y.2d 530 (1975) Schenckv. Pro-Choice Network of W. New York, 519 U.S. 357 (1997) Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147 (1939), Speiserv. Randall, 357 U.S. 513 (1958) 7 12 11 12 12 9, 10 3,11 2, 6,7 7, 8, 13 7,8 7, 10, 11 12 2 11 10 15 8, 12, 13 iii Vil. Of Schaumburg v. Citizens for a Better Envt., 444 U.S. 620 (1980), Walker v. City of Birmingham, 388 U.S. 307 (1967) Whitney v. California, 21A U.S. 357 (1927) 11 14 9 Statutes and Regulations N.Y. Criminal Procedure Law § 530.13 US Const, 1st Amend 3,4,13 .passim NY Const, art I, § 8 .passim iv INTRODUCTION AND INTEREST OF AMICUS CURIAE At the heart of this appeal is the constitutional validity of an injunction directed at speech. In February 2013, eight individuals engaged in a peaceful protest near the entrance to the Air National Guard Base at Flancock Field in DeWitt, New York. The demonstration was organized to express opposition to United States government policy on the use of drones in military operations abroad. Defendant Mary Anne Grady Flores was not one of the eight protestors. She was present at the demonstration as a photographer. Nevertheless, she was arrested while walking away from the protest site. Ms. Grady Flores had previously been arrested in connection with peaceful protest in the vicinity of Hancock Field. In October 2012, she was arrested and charged with trespass and disorderly conduct. At her arraignment that day, the Town of DeWitt Justice Court issued a temporary order of protection at the request of Earl A. Evans, a Commander at Hancock Field. By its terms, the Order required Mary Ann Grady Flores, “to stay away from Earl A. Evans, the home of Earl A. Evans; the school of Earl A. Evans; the business of Earl A. Evans, 6001 E. Molloy Rd. T/Dewitt; the place of employment of Earl A. Evans, 6001 E. Molloy Rd. T/Dewitt” (Appellant’s Appendix [hereinafter App. App’x.] at 4). The injunction stated that failure to comply with its terms would expose Ms. Grady Flores to substantial criminal sanctions. But it never indicated how far 1 “away” Ms. Grady Flores was expected to stay from Evans or from the various physical locations identified in the Order. Indeed, neither the text of the Order nor the trial court clarified the distances and location restrictions in a way that would have enabled Ms. Grady Flores to understand what conduct was permitted and what was proscribed. Nevertheless, because of her conduct during the February 2013 demonstration, Ms. Grady Flores was found to have violated the October 2012 Order and was convicted of criminal contempt in the second degree. As set forth below, the Order of Protection violates both the United States and New York State Constitutions. Injunctions directed at speech generally are regarded as “prior restraints” of expression. Such injunctions seek to curtail expression before the speech even occurs— and at a time when any assessment of the potentially injurious consequences are necessarily speculative. Accordingly, under the First Amendment, prior restraints are regarded as “the most serious and least tolerable infringement on First Amendment rights” (.Nebraska Press Assoc, v Stuart, 427 US 539, 559 [1976]). This Court has recognized that Article I, Section 8 of the New York State Constitution is even more protective of free expression, and less tolerant of injunctions against speech, than the First Amendment. (Arcara v Cloud Books, Inc., 478 US 697, 705 n.2 [1986] [hereinafter Arcara IT\; see also People v P.J. Video, Inc., 68 NY 296 [1986]). Under this Court’s precedents, the 2 injunction at issue would be regarded as a prior restraint and would be presumptively unconstitutional. But even if the Order were not regarded as a prior restraint, it must be found impermissible and unenforceable, under Article I, Section 8 of the New York State Constitution as well as the First Amendment to the federal Constitution, because it is manifestly imprecise and fatally vague (.NAACP v Button, 371 US 415, 438 [1963]). The New York Civil Liberties Union (“NYCLU”) is the New York State affiliate of the American Civil Liberties Union and a non-profit, non-partisan organization with over 160,000 members. The NYCLU is committed to the protection and enhancement of fundamental constitutional rights. The rights of free expression and political protest are among the most fundamental of rights. They are deeply implicated in this controversy. This case presents an issue of first impression in this Court regarding when, if ever, it is appropriate to grant requests by government officers to impose orders of protection against protestors under Section 530.13 of Criminal Procedure Law. Accordingly, the NYCLU respectfully submits this brief, amicus curiae, to address that issue. STATEMENT OF FACTS On October 25, 2012, the defendant, Ms. Mary Anne Grady Flores, was arrested and charged with trespass and disorderly conduct following a political 3 demonstration at Hancock Field in DeWitt, NY (“the base”) (App. App’x. at 2). At her arraignment, the justice issued a temporary order of protection under CPL § 530.13 at the request of Colonel Earl A. Evans, a “mission support Group Commander” at the base (id. at 4). The injunction required that Ms. Grady Flores and other protestors “stay away” from Col. Evans and various locations, including Hancock Field (id.). The Order did not further specify the meaning of “stay away” (Respondent’s Appendix [hereinafter Resp’t. App’x.] at 620). Orders issued pursuant to CPL § 530.12-13 are typically issued to prevent defendants from harassing, intimidating, threatening, or harming witnesses and victims of crimes, but Col. Evans was not personally harmed or threatened by the protestors. (App. App’x. at 15-16.) He requested the injunction because the protestors had blocked the primary and secondary entrances to the military base, forcing him to open a third entrance. (Id. at 5.) On February 13, 2013, eight demonstrators held another peaceful protest at the entrance of the base to continue objecting to the United States’ use of drone strikes abroad. (Resp’t. App’x. at 466.) The protestors stood with signs at the intersection of the entrance driveway and East Molloy Road. (Resp’t. App’x. at 257-59.) Ms. Grady Flores did not protest, but she was there to photograph the event from the shoulder of the road closest to the base’s driveway, from the road itself, and from the shoulder opposite the base’s driveway. (Id.) 4 The protest continued peacefully until the police arrived and gave the eight protestors an order to disperse. (Resp’t. App’x. at 279) When they refused to leave, all eight were arrested. (Id., at 262.) Prior to the order to disperse, Ms. Grady Flores left the site of the protest, and headed towards a nearby diner. (Id. at 537- 38.) As she walked away along East Malloy Road, she was arrested and charged with disorderly conduct and criminal contempt in the second degree for violating the October 2012 order of protection. (Resp’t. App’x. at 279; App. App’x at 6.) There is significant ambiguity over the base’s property line reflected in the trial record. (Resp’t. App’x. at 263.) While the government’s property extends beyond the edge of the lawn to the middle of East Molloy Road, there is a public easement allowing for pedestrian and vehicular traffic on the Road and along both shoulders. (Resp’t. App’x. at 257-58.) Col. Evans admitted that, at the time of the defendant’s arrest, there were no boundary signs along the edge of the lawn (although such signs subsequently were installed). (Resp’t. App’x. at 238.) The only signs indicating the base property line were located on the fence line of the base, which sits some distance back from the road. (Id. at 239) Hancock Field’s Chief Master Sergeant, Michael Ramsey, assisted the police with the protestors’ arrests, and testified to the confusion surrounding the boundary of the base. (Resp’t. App’x. at 234-266). 5 This ambiguity explains, in part, why the meaning of the “stay away” order was unclear to Ms. Grady Flores. She testified that she knew “to stay off the base property,” but believed she was “allowed to be in the roadway.” (Resp’t. App’x. at 397.) On July 2, 2013, Ms. Grady Flores moved to dismiss the charges. (App. App’x at 8-25). On February 28, 2014, the Town of DeWitt Justice Court denied her motion, finding that the order of protection was valid. (App. App’x at 37-41). She was convicted and sentenced to a year in jail and a $1,000 fine. (Resp’t App’x at 668-69). In an order dated January 8, 2016, the Onondaga County Court affirmed the defendant’s conviction but reduced her sentence to six months. (App. App’x. at 2-3.) As discussed below, that order should be reversed, as the injunction directing Ms. Grady Flores to “stay away” was impermissibly imprecise and vague, making it unconstitutional and unenforceable against Ms. Grady Flores. ARGUMENT I. INJUNCTIONS DIRECTED AT EXPRESSION ARE PRESUMPTIVELY UNCONSTITUTIONAL AND PLAINLY INVALID WHEN THEY ARE IMPRECISE AND EXCESSIVELY VAGUE. A. Injunctions Directed At Expression Are Presumptively Unconstitutional. An injunction against future speech is regarded as the “most serious and least tolerable infringement on First Amendment rights” {Nebraska, 427 US at 6 559). The Supreme Court has repeatedly held that “any prior restraint comes ... a heavy presumption against its validity” (Organization for a Better Austin v Keefe, 402 U.S. 415, 419 [1971]; see also CBS, Inc. v Davis, 510 US 1315, 1317 [1994]; Nebraska Press Ass'n v Stuart, 427 U.S. 539, 559 [1976]; New York Times Co. v United States, 403 US 713, 714 [1971]). Since a prior restraint is presumptively unconstitutional, the government must carry the “heavy burden of showing justification” for imposing it (New York Times, 403 US at 714; see also People ex rel. Arcara v Cloud Books, Inc., 68 NY2d 553, 558 [1986] [hereinafter Arcara /17]). Any prior restraint “must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order” (Carroll v President & Comm'rs of Princess Anne, 393 US 175, 183 [1968]). “In other words, the order must be tailored as precisely as possible to the exact needs of the case” (id. at 184). Supreme Court precedent evidences the Court’s antipathy toward prior restraints. In New York Times Co., the Court held that the First Amendment prohibited federal courts from enjoining the Times from publishing the Pentagon Papers, in the face of claims by the government that the publication would pose “grave and irreparable injury to the public interest” and “seriously impair the national security” (403 US at 732 n.2, 754). Even so, the Court refused to permit 7 an injunction prior to publication, noting that “open debate and discussion of public issues are vital to our national health” {id. at 724). This reasoning applies equally to prior restraints on individual speech and protest. In Keefe, the Supreme Court struck down an injunction that prohibited peaceful leafleters from distributing materials that criticized a local real-estate agent in his neighborhood, around his town, and near his church (402 US 415), The Court held that, instead of appropriately addressing the real-estate agent’s privacy concerns, the injunction unlawfully suppressed the leafleter’s speech “of any kind” throughout a city of 18,000 people {id. at 419). The strong presumption against “prior restraints” turns upon the distinction between pre-publication and post-publication sanctions. It rests on the view that a prior restraint is in many respects more inhibiting of expression than subsequent punishment. The issuance of an injunction prior to publication requires speculation and conjecture as to the consequences of publication. Post-publication sanctions at least permit evaluation of the consequences of speech in the context of specific events that have occurred. It is thus apparent that pre-publication injunctions do not permit “close analysis and critical judgment in light of the particular circumstances to which [any restraint upon First Amendment expression] is to be applied” {Speiser v Randall, 357 US 513, 520 [1958]). Such injunctions suffer the danger of 8 sweeping too broadly and of restricting speech which would be entitled to remain unfettered. Moreover, pre-publication injunctions are objectionable because they shut off communication even before it takes place. In this respect, such injunctions conflict with the “marketplace of ideas” theory which holds that bad ideas and offensive values are best countered by being exposed and evaluated rather than by being suppressed (Whitney v California, 274 US 357, 375-76 [1927] [Brandeis, J. concurring]). Such injunctions are antithetical to the “preferred First Amendment remedy” of countering repugnant speech with “more speech, not enforced silence” {Brown v Hartlage, 456 US 45, 61 [1982]). Despite its strong aversion to “prior restraints,” the Supreme Court has recognized a narrow exception to the treatment of an injunction against speech as a prior restraint. In Madsen, the Court reviewed the constitutionality of a state court injunction directed at individuals and groups engaged in protest activity at the entrance to an abortion clinic. In doing so, the Court upheld some terms of the injunction, while it found other provisions unconstitutional. (512 US 753.) In reaching this result, the Court deviated somewhat from the strong presumption against the constitutionality of any injunction directed at speech. This deviation seemed to rest upon the legal conclusion that the injunction was not directed at the content of the protestors’ expression. {Id. at 763.) However, the Court also relied 9 on two additional factual considerations: first, that the injunction was necessary to protect women seeking to exercise their fundamental right of reproductive choice, but were being forced to “run ... a gauntlet” to enter the clinic (id. at 782 n.5); second, that the injunction was issued “because of [the protestors’] ‘prior unlawful conduct’” (id. at 763 n.2). In Schenck v Pro-Choice Network, the Court again considered an injunction directed at protest activity in front of an abortion clinic and engaged in a similar analysis (519 US 357, 374 [1997]). But, even as the Madsen and Schenck decisions deviated somewhat from the strongest presumption against constitutionality imposed by the doctrine against prior restraint, those decisions continued to apply a rigorous standard of review. In Madsen, the Court asked “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest” (512 US at 765). In Schenck, the Court applied the same standard (id. at 374). This Court has been even more protective of speech— and more intolerant of prior restraints— under Article I, Section 8 of the State Constitution than the Supreme Court has been in applying the First Amendment. In Arcara III (68 NY2d at 553, 559), this Court held that an injunction closing an “adult” bookstore constituted a prior restraint under state law, despite the fact that the Supreme Court reached the opposite conclusion under the First Amendment in the same case (compare id. with Arcara II, 478 US at 705 n.2). In doing so, this Court observed 10 that, “in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States” (.Arcara III, 68 NY2d at 557). This Court has not endorsed the distinction in Madsen that an injunction should be regarded as something other than a prior restraint because, in part, it targets protestors who previously have engaged in unlawful conduct. Indeed, People v Taub (37 NY2d 530 [1975]) stands in stark contrast to that concept. There, this Court held that an ordinance that automatically rejected noise permits for individuals with prior convictions was a prior restraint (id. at 534). But, as discussed below, even if an injunction directed at speech is not regarded as a prior restraint, it must still be narrowly tailored and may not be vague in its regulatory reach. B. First Amendment Principles Governing All Directives Regulating Expression Require That Any Directive Be Precisely Drawn and Not Excessively Vague. “Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms” (NAACP v Button, 371 US at 438; see also Gooding v Wilson, 405 US 518 [1972]; Village of Schaumberg v Citizens for a Better Environment, 444 US 620 [1980]). Accordingly, two somewhat related 11 doctrines have emerged in the free speech context to ensure that governmental efforts to regulate speech are not imprecise and do not sweep too broadly. The first involves the requirement of “narrow tailoring.” The second involves the prohibition against vague regulatory measures. The requirement that efforts to regulate speech be framed with precision is rooted in three considerations. The first is the traditional due process consideration that before imposing sanctions upon an individual, government must provide adequate warning as to the activity that is proscribed. (FCC v Fox Tel Stas., 567 US 239, 253 [2012]; see also Lanzetta v New Jersey, 306 US 451, 453 [1939].) The second consideration is that vaguely worded regulation of speech will cause speakers to “steer far wider of the unlawful zone” than might be constitutionally required (Speiser, 357 US at 526 [1958]). In such a circumstance, the vague regulation will have the effect of outlawing some protected speech (see Groyned v City of Rockford, 408 US 104, 109 [1972] [“[W]here a vague statute abut(s) upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of (those) freedoms”]). Finally, vague and imprecise regulation is troubling because it fails to provide law enforcement officials with adequate guidance as to the activity that is proscribed (Baggett v Bullitt, 377 US 360, 372 (1964); People v Bright, 71 NY2d 376, 383 [1988]). It therefore invites selective enforcement by officials, including enforcement based on content or viewpoint. 12 II. THE INJUNCTION AT ISSUE HERE WAS IMPERMISSIBLY IMPRECISE AND VAGUE. In accordance with Arcara and Taub, the injunction against Ms. Grady Flores should be treated as a prior restraint and therefore subject to a strong presumption of unconstitutionality. The injunction was a prior restraint directed at speech, which limited participation by Ms. Grady Flores in peaceful protests at or near Hancock Field. Nothing about the impetus for the injunction or its terms suggest anything that might rebut the “heavy presumption against its constitutional validity” (New York Times Co., 403 US at 714). But, as explained below, even under the generally applicable First Amendment principle requiring precision of regulation, the injunction was unconstitutional. The injunction’s command that Ms. Grady Flores “stay away” from Hancock Field is open to nearly limitless interpretation. The phrase “stay away” may be interpreted in a dozen ways by as many people. For example, while someone may assume the injunction prohibited Ms. Grady Flores from greeting friends at the public airport just behind the base, another person may believe Ms. Grady Flores was allowed to approach the base’s entrance but not go inside. To ensure that the injunction did not unduly burden Ms. Grady Flores’ speech rights by forcing her to “steer far wider” of the base than necessary, (Speiser, 357 U.S. at 526) it needed to delineate the geographical scope of its proscriptions with far greater clarity. 13 The defendant’s testimony reflects her confusion about what it meant to “stay away” (App. App’x. at 160-61).1 That confusion was shared by local law enforcement officers and base employees (Resp’t. App’x. at 361) The Government points out that the justice stated at sentencing that the defendant might not have been arrested “had [she] stayed across the street” (Resp’t. Br. at 22; Resp’t. App’x. at 644). This belated instruction is irrelevant at best, as the Constitution requires criminal proscriptions to be clear ex ante, not equivocal post hoc. The Government concedes throughout its brief that neither the injunction itself nor the issuing justice specified what was intended by the directive to “stay away” from the base. (See e.g. Resp’t. Br. at 20 [“The trial testimony does not show . . . that defendant was given a specific definition of ‘stay away.’”].) Even at the late stage of this appeal, the Government fails to provide any objective definition of the term “stay away;” it only defines the phrase in vague, tautological terms: “Defendant was not left to guess about what she could and could not do .... [S]he was told when she received the order that it meant that she had to stay away from the base” (Resp’t. Br. at 21-22). In sum, by failing to provide clear 1 The government seeks to avoid the clear unconstitutionality of the injunction by focusing on a claim that the defendant failed to challenge the injunction before allegedly violating it. (Respondanf s Brief at 12.) Aside from being unpreserved and not having clear support in the record, (Reply Brief at 7-10) that claim is unavailing here, where Ms. Grady Flores made a conscientious attempt to conform her behavior to a vague, unconstitutional order. (Cf. Walker v City of Birmingham, 388 US 307, 319 [1967] [holding that petitioners who flagrantly disregarded injunction without first challenging it in court would not be heard to object to its constitutionality].) 14 geographical boundaries, the Order failed to abide by the basic requirement that any proscription— and especially any regulating protected speech— must provide fair notice of what it prohibits. Finally, the Government notes that “stay away” orders issued under CPL § 530.13 have been upheld against vagueness challenges in cases where they were issued to keep victims and witnesses safe from defendants who may wish to harm or intimidate them (while notably failing to cite any case upholding an order granted under § 530.13 at the request of a government officer to keep protestors away from a public site). (Resp’t. Br. at 22-23.) But this case is unlike traditional cases involving “stay away” orders; there is no serious claim here that Col. Evans feared for his personal safety. Instead, this injunction is targeted at peaceful, expressive activity. Ms. Grady Flores maintains a constitutional right to protest in close proximity to the base in order to emphasize her intended message (Cf Schneider v New Jersey, 308 US 147, 163 [1939] [“(O)ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.”].) To ensure that the injunction did not unduly burden Ms. Grady Flores’ speech rights, it had to delineate the geographic reach of its prohibitions with precision. Because it utterly failed to do that, it was unconstitutionally imprecise and vague. 15 CONCLUSION For the foregoing reasons, this Court should hold that the injunction at issue here was unconstitutional and reverse the order of the Onondaga County Court affirming Defendant-Appellant Mary Anne Grady Flores’ conviction. Respectfully submitted, (/ Kristen Burzynski Jordan Wells Arthur Eisenberg NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 19th Floor New York, N.Y. 10004 Telephone: (212) 607-3300 Facsimile: (212) 607-3318 kburzynski@nyclu.org / Counsel for amicus curiae September 5, 2017 New York, N.Y. Dated: 16 CERTIFICATE OF COMPLIANCE WITH 22 NYCRR §500.1 and 500.13 (c)(1) I hereby certify that: 1. This brief complies with the type-volume limitation of 500.13(c)(1) because the total word count for all printed text in the body of the brief, exclusive of the corporate disclosure statement, the table of contents, and the table of cases and authorities required by subsection (a) of this section is 3659 words. 2. This brief complies with the typeface requirements of and the type style requirements of 500.1(j)(l) because the body of this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in 14-point Times New Roman and the footnotes are printed in 12-point Times New Roman. Kristen Bu-rzynski Attorney for Amicus Curiae Dated: September 5, 2017 17