International Action Center v. City of New York, No. 07-5739 (2d Cir. 2009)

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07-5739-cv International Action Center v. City of New York 1 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 August Term 2008 4 Argued: March 6, 2009 5 Decided: November 17, 2009 Docket No. 07-5739-cv 6 - - - - - - - - - - - - - - - - - - - - 7 INTERNATIONAL ACTION CENTER, 8 Plaintiff-Appellant, 9 v. 10 CITY OF NEW YORK, 11 12 13 Defendant-Appellee. - - - - - - - - - - - - - - - - - - - - 14 Before: PARKER, Circuit Judge, and CHIN, District Judge.* 15 Appeal from a judgment of the United States District 16 Court for the Southern District of New York (Stein, District J.) 17 granting in part and denying in part defendant-appellee's motion 18 for summary judgment. * Plaintiff-appellant contends, Honorable Denny Chin, United States District Judge for the Southern District of New York, sitting by designation. The Honorable Sonia Sotomayor, originally a member of this panel, was elevated to the United States Supreme Court on August 8, 2009. The two remaining members of the panel, who are in agreement, have decided this appeal. See 28 U.S.C. § 46(b); Local Rule § 0.14(b). 1 inter alia, that the district court erred in concluding that a 2 New York City regulation banning new parades on Fifth Avenue does 3 not violate the First Amendment. 4 AFFIRMED. 5 6 7 8 9 Jeffrey E. Fogel, Esq., Charlottesville, Virginia (Gideon Orion Oliver, Esq. and Palyn Hung, Esq., New York, New York, on the brief), for PlaintiffAppellant. 10 11 12 13 14 Scott Shorr, Esq. (Ronald E. Sternberg, Esq., on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, for DefendantAppellee. 15 CHIN, District Judge 16 Fifth Avenue in Manhattan is a historic, popular, and 17 often congested thoroughfare. 18 and down the center of Manhattan's busy midtown business 19 district. 20 stretch of Fifth Avenue. 21 all over the world. 22 and celebration, they also put a strain on New York City (the 23 "City") by requiring street closures, causing traffic congestion, 24 and disrupting business. 25 "Fifth Avenue Rule") -- that began as an informal policy in the 26 1970s and was codified in 2001 -- bans any "new" parades on Fifth 27 Avenue. 28 It runs adjacent to Central Park Every year, fifteen large parades march along some The parades are enjoyed by viewers from Although the parades provide entertainment Accordingly, a City regulation (the In March 2005, plaintiff-appellant International Action - 2 - 1 Center ("IAC") filed applications for permits to march on two 2 sections of Fifth Avenue. 3 Rule, denied IAC the use of Fifth Avenue. 4 march on Fifth Avenue, the City granted IAC a permit to march 5 along a different route. 6 The City, pursuant to the Fifth Avenue In lieu of a permit to IAC alleges that the Fifth Avenue Rule is a content- 7 based regulation that violates the First Amendment by 8 discriminating against parades related to current events. 9 the following reasons, we conclude that the Fifth Avenue Rule For 10 does not violate the First Amendment. 11 injunction issued by the district court curtailing the City's 12 discretion in granting special permits should be expanded. 13 disagree. 14 challenge a provision of the parade rules that imposes penalties 15 for a violation because it has not demonstrated that it has 16 suffered or will suffer an injury-in-fact. 17 judgment of the district court is affirmed. 20 We Finally, we hold that IAC does not have standing to 18 19 IAC also argues that the Accordingly, the BACKGROUND A. New York City Parades New York City Administrative Code (the "Code") § 10-110 21 provides the statutory basis for the issuance of parade permits. 22 The Police Commissioner of the New York City Police Department 23 (the "NYPD") is vested with the power to issue permits for any - 3 - 1 "procession, parade, or race . . . [on] any street or in any 2 public place." 3 permits for approximately 700 parades per year in the five 4 boroughs. 5 N.Y.C. Admin. Code § 10-110(a). The NYPD issues The Code places qualifications upon the Commissioner's 6 authority in various circumstances, two of which are relevant 7 here. 8 permit for the use of any street or any public place, or material 9 portion thereof, which is ordinarily subject to great congestion 10 or traffic and is chiefly of a business or mercantile character." 11 N.Y.C. Admin. Code § 10-110(a)(2). 12 for occasions of extraordinary public interest, not annual or 13 customary, or not so intended to be, may be granted by the 14 commissioner for any street or public place, and for any day or 15 hour, with the written approval of the mayor." 16 Code § 10-110(a)(4) (the "Special Permit Provision"). 17 the City further limited the Commissioner's discretion in 18 granting special permits by limiting these to "celebrations 19 organized by the City honoring the armed forces; sports 20 achievements or championships; world leaders and extraordinary 21 achievements of historic significance." First, the Commissioner is not permitted to "grant a 22 23 Second, "[s]pecial permits N.Y.C. Admin. In 2001, 38 R.C.N.Y. § 19-01(b). The Code also provides for the consequences of a violation: - 4 - 1 2 3 4 5 6 7 8 9 10 Every person participating in any procession, parade or race, for which a permit has not been issued when required by this section, shall, upon conviction thereof, be punished by a fine of not more than twenty-five dollars, or by imprisonment for not exceeding ten days, or by both such fine and imprisonment. N.Y.C. Admin. Code § 10-110(c) (the "Violations Provision"). B. Fifth Avenue Parades 11 Fifth Avenue is a historically preferred route for New 12 York City parades and is considered by many the most desirable 13 parade venue in the City. 14 From 1955 to 1969, the number of parades along Fifth 15 Avenue increased from ten to eighteen. As a result, in 1971, the 16 City adopted an informal policy barring new Fifth Avenue 17 parades.1 18 regulation: 19 administrative code [if] . . . [t]he application seeks to hold a 20 parade on Fifth Avenue in the borough of Manhattan, unless the 21 parade was held at that location prior to the promulgation of 22 these rules." In 2001, the informal policy was codified as a "[p]ermits will be disapproved under § 10-110 of the 38 R.C.N.Y. § 19-04(d)(viii).2 The City explains 1 The City allowed four new annual parades to replace four discontinued parades between 1976 and 1984. The four new parades were the International Society for Krishna Consciousness Parade, the Pulaski Day Parade, the Marathon, and the Heritage of Pride Parade. 2 Prior to 2007, the Fifth Avenue Rule applied to Fifth Avenue from Washington Square Park to 133rd Street. Effective February 25, 2007, the City amended the ban to apply from 15th - 5 - 1 that the policy was intended to address "the over-saturation" of 2 such events "in one of the most congested sections of the City -- 3 midtown Manhattan." 4 05 Civ. 2880, 2006 U.S. Dist. LEXIS 93387 (S.D.N.Y. Dec. 26, 5 2006) (internal quotation marks and citation omitted). 6 C. Int'l Action Ctr. v. City of New York, No. IAC's March 7 In March 2005, IAC applied for a permit to march along 8 two lanes of Fifth Avenue from 100th Street to 102nd Street, 9 where it had a permit for a rally in Central Park. IAC filed a 10 second application for the use of two lanes of Fifth Avenue after 11 the rally, from 90th Street to 79th Street, for a brief 12 demonstration in front of the Mayor's home. 13 were filed on behalf of the Troops Out Now Coalition, which IAC 14 founded. 15 the second anniversary of the invasion of Iraq. 16 Fifth Avenue Rule, the City denied IAC the use of Fifth Avenue. 17 IAC was granted a permit to march along an alternative route that 18 did not include Fifth Avenue.3 19 D. The applications The marches were intended to protest and commemorate Relying on the Procedural History 20 On March 16, 2005, IAC commenced this action, pursuant Street to 114th Street. 3 The alternative route included Madison Avenue; Lenox Avenue; 112th Street; Lexington Avenue; 102nd Street; Central Park (rally site); 90th Street; and Park Avenue. - 6 - 1 to 42 U.S.C. § 1983, alleging that the Fifth Avenue Rule violates 2 the First Amendment to the United States Constitution. 3 outset, prior to the completion of discovery, the City moved for 4 summary judgment. 5 without prejudice and granted IAC leave to file an amended 6 complaint challenging the Special Permit Provision. 7 Action Ctr., 2006 U.S. Dist. LEXIS 93387. 8 9 At the The district court denied the City's motion See Int'l Following the completion of discovery, the City renewed its motion for summary judgment and IAC cross-moved. The 10 district court upheld the Fifth Avenue Rule as content neutral 11 and an appropriate time, place, or manner restriction. 12 Action Ctr. v. City of New York, 522 F. Supp. 2d 679, 681 13 (S.D.N.Y. 2007). 14 City from granting permits for new Fifth Avenue parades pursuant 15 to the Special Permit Provision "unless the requested use fits 16 within the four categories set forth in" the Special Permit 17 Provision. 18 challenge the Violations Provision. 19 Id. See Int'l The district court did, however, enjoin the The court also held that IAC lacked standing to Id. at 693. This appeal followed. 20 DISCUSSION 21 We review de novo a district court's ruling on 22 cross-motions for summary judgment, in each case construing the 23 evidence in the light most favorable to the non-moving party. 24 White River Amusement Pub, Inc. v. Town of Hartford, 481 F.3d - 7 - 1 163, 167 (2d Cir. 2007). 2 we conclude that the case presents "no genuine issue as to any 3 material fact and that the movant is entitled to judgment as a 4 matter of law." 5 Summary judgment is appropriate only if Fed. R. Civ. P. 56(c). First, IAC argues that the Fifth Avenue Rule favors 6 cultural parades over marches responsive to current events, and, 7 thus, discriminates on the basis of content. 8 assuming the Fifth Avenue Rule is content neutral, IAC argues 9 that it does not satisfy intermediate scrutiny. Second, even Third, IAC 10 argues that the injunction imposed by the district court should 11 be expanded. 12 is unconstitutional because it fails to incorporate a requirement 13 that the accused knew that the NYPD did not grant the march a 14 permit. 15 A. 16 Finally, IAC argues that the Violations Provision We discuss each argument in turn. Is the Fifth Avenue Rule Content Neutral? IAC argues that the Fifth Avenue Rule imposes content- 17 based restrictions. A content-based restriction is subject to 18 strict scrutiny, "such that it could only be justified by a 19 compelling governmental interest and would have to be narrowly 20 tailored to achieve its intended purpose." 21 Corp. v. F.C.C., 570 F.3d 83, 89 (2d Cir. 2009). 22 following reasons, we hold that the Fifth Avenue Rule is content 23 neutral, and thus subject to intermediate scrutiny. - 8 - Cablevision Sys. For the See id. 1 at 97. 2 The "principal inquiry in determining content 3 neutrality . . . is whether the government has adopted a 4 regulation of speech because of disagreement with the message it 5 conveys." 6 A regulation "justified without reference to the content of the 7 regulated speech" is content neutral. 8 New York, 435 F.3d 78, 98 (2d Cir. 2006) (internal quotation 9 marks and citation omitted). Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Mastrovincenzo v. City of "But while a content-based purpose 10 may be sufficient in certain circumstances to show that a 11 regulation is content based, it is not necessary to such a 12 showing in all cases." 13 U.S. 622, 642 (1994). Turner Broad. Sys., Inc. v. F.C.C., 512 14 IAC argues that the Fifth Avenue Rule "prohibits the 15 use of Fifth Avenue for marches that are responsive to current 16 events, but allows its use for traditional, cultural parades." 17 Thus, according to IAC, the Fifth Avenue Rule discriminates 18 against public discussion on the topic of current events. 19 support of its argument that the Fifth Avenue Rule is content 20 based, IAC cites Boos v. Barry, in which the Supreme Court held 21 that a D.C. regulation prohibiting protest signs of a foreign 22 government within 500 feet of that government's embassy was a 23 content-based restriction. 24 category of speech has been completely prohibited . . . . In 485 U.S. 312, 318-19 (1998) ("One - 9 - Other 1 categories of speech, however, . . . are permitted."). 2 regulation at issue in Boos was "justified only by reference to 3 the content of speech," and, thus, the Supreme Court concluded it 4 was a content-based regulation. 5 cited by IAC similarly hold that regulations that differentiate 6 between types of speech or discriminate against the press, or 7 sections of the press, are content based. 8 Party of Minn. v. White, 536 U.S. 765 (2002) (regulation 9 prohibiting judicial candidates from announcing their views on Id. at 321. The The other cases See, e.g., Republican 10 disputed political issues); Ark. Writers' Project, Inc. v. 11 Ragland, 481 U.S. 221, 229 (1987) (tax scheme treating certain 12 magazines "less favorably" than others); Minneapolis Star & 13 Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575, 591 (1983) 14 (tax singling out the press, and targeting a small group of 15 newspapers); Carey v. Brown, 447 U.S. 455, 460-61 (1980) (statute 16 prohibiting picketing of residences with exceptions for peaceful 17 labor picketing). 18 In contrast, the Fifth Avenue Rule does not seek to 19 regulate messages or distinguish between different types of 20 speech. 21 irrespective of their content. 22 suggest that the City has banned new parades on Fifth Avenue 23 because it is seeking to restrict speech relating to current The Fifth Avenue Rule applies to all "new" parades, There is nothing in the record to - 10 - 1 events. 2 incidental effect on some speakers or messages but not others," 3 that is true of many content-neutral regulations. 4 Against Racism, 491 U.S. 781, 791 (1989). 5 effect does not convert a content-neutral regulation into a 6 content-based one. 7 Although the Fifth Avenue Rule may indeed have "an Ward v. Rock Such an incidental IAC's arguments that the Fifth Avenue Rule 8 discriminates against parades relating to current events is 9 unavailing. A new parade in honor of a particular nation -- 10 which would be a cultural parade as opposed to one relating to 11 current events -- would be denied a permit to march along Fifth 12 Avenue in the same way IAC's permit application was denied. 13 Indeed, many groups have applied for permits to march in honor or 14 celebration of a variety of topics and have been denied permits 15 under the Fifth Avenue Rule. 16 applied for Fifth Avenue permits: 17 Dominican Day; (3) Philippine's Independence Day Parade; (4) 18 Turkish Parade; (5) Marijuana March; and (6) Asociacion Tepeyac 19 de New York. 20 The Fifth Avenue Rule applies irrespective of content, and, thus, 21 the Fifth Avenue Rule is content neutral. 22 B. 23 24 For example, in 2001, six groups (1) EDB Conglomerado; (2) All six were denied Fifth Avenue parade routes. Does the Fifth Avenue Rule Meet Intermediate Scrutiny? A content-neutral time, place, or manner regulation must meet intermediate scrutiny. That is, the regulation must - 11 - 1 "serve a significant government interest, be narrowly tailored to 2 serve that interest, and leave open ample alternative channels of 3 communication." 4 "Government-imposed restrictions on time, place, or manner of 5 speech in a public forum will fail the neutrality requirement if 6 they confer overly broad discretion on the regulating officials." 7 Hous. Works, Inc. v. Kerik, 283 F.3d 471, 478 (2d Cir. 2002). 8 explained below, the Fifth Avenue Rule satisfies intermediate 9 scrutiny. 10 1. 11 Ward, 491 U.S. at 804. Moreover, As Significant Government Interest It is not disputed that the City has a significant 12 interest "in keeping its public spaces safe and free of 13 congestion." 14 1996). 15 protecting its citizens from unwelcome noise," Ward, 491 U.S. at 16 796 (internal quotation marks and citation omitted), and, more 17 generally, "in attempting to preserve the quality of urban life." 18 City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50 (1986) 19 (internal quotation marks and citation omitted). 20 Bery v. City of New York, 97 F.3d 689, 697 (2d Cir. In addition, the City has a "substantial interest in IAC argues that the interest claimed by the City is 21 significantly undermined because it has allowed new parades on 22 Fifth Avenue despite the Fifth Avenue Rule. 23 2004, the NYPD allowed Critical Mass to hold a bicycle ride on a 24 portion of Fifth Avenue. First, in October The City explains that on the eve of - 12 - 1 the scheduled ride, the City lost its motion for a preliminary 2 injunction banning the ride and the court suggested that the 3 parties negotiate a route. 4 Supp. 2d 480, 492 (S.D.N.Y. 2004). 5 inadvertently disregarded the Fifth Avenue Rule. 6 December 16, 2006, in the wake of the Sean Bell shooting, which 7 rattled the City, the City again allowed a new march along Fifth 8 Avenue. 9 Reverend Al Sharpton, who had previously vowed to have tens of 10 thousands of participants march on Fifth Avenue with or without 11 NYPD approval. 12 the march on Fifth Avenue despite the Fifth Avenue Rule. 13 See Bray v. City of New York, 346 F. The last-minute negotiations Second, on The group marching, Shopping for Justice, was led by To encourage a peaceful march, the NYPD allowed Hence, the two departures were unique and isolated. 14 They do not show that the City's stated interest in reducing 15 congestion, limiting traffic, and minimizing business disruptions 16 in midtown Manhattan is pretextual or not significant. 17 18 2. Narrowly Tailored IAC argues that the Fifth Avenue Rule is not narrowly 19 tailored because it bans a "substantial quantity" of speech in a 20 way that does not serve the City's interest in promulgating the 21 restriction. 22 23 A content-neutral time, place, or manner restriction "need not be the least restrictive or least intrusive means" of - 13 - 1 serving the government's legitimate interests. Ward, 491 U.S. at 2 798. 3 long as the regulation promotes a substantial government interest 4 that would be achieved less effectively absent the regulation." 5 Id. at 799 (internal quotation marks and citation omitted). Indeed, the narrow tailoring requirement "is satisfied so 6 IAC argues that the fifteen annual parades do not use 7 the full length of Fifth Avenue, and thus the Fifth Avenue Rule 8 is overly broad. 9 four annual parades take place on Fifth Avenue between 15th and 10 42nd Streets; eleven parades travel some stretch of Fifth Avenue 11 between 42nd and 59th Streets; eleven parades travel some stretch 12 of Fifth Avenue between 59th and 72nd Streets (and seven parades 13 also start or end in this section); four parades take place on 14 Fifth Avenue between 72nd and 86th Streets (and two disperse in 15 the area); four large parades use Fifth Avenue from 86th through 16 96th Streets as their dispersal areas; and Fifth Avenue between 17 96th and 114th Streets contains a hospital, fire house, and 18 health care center. 19 The City, however, provides an explanation: Although the question is not without difficulty, we 20 believe that the 100-block ban is sufficiently narrowly tailored 21 to serve the municipal interests that we have identified. 22 record reflects the City's belief -- based on its considerable 23 knowledge of traffic patterns and the effects of street 24 closures -- that interruptions in the flow of traffic along the - 14 - The 1 upper reaches of Fifth Avenue can have adverse consequences on 2 midtown traffic. 3 substitute our opinion for the judgment of the City 4 decisionmakers. 5 F. Supp. 2d 679, 687 (S.D.N.Y. 2007); Carew-Reid v. Metro. 6 Transp. Auth., 903 F.2d 914, 917 (2d Cir. 1990) ("[I]f the scope 7 of the regulation is not substantially broader than required to 8 secure the governmental interest, the regulation is not invalid 9 simply because a court, second-guessing the decisions of the Like the district court, we decline to See Int'l Action Ctr. v. City of New York, 522 10 governmental body, discerns some less-restrictive alternative to 11 the regulation."). 12 significant government interest that would not be satisfied as 13 well without it, the Fifth Avenue Rule is narrowly tailored. 14 3. 15 Because the Fifth Avenue Rule promotes a Alternative Channels IAC argues that Fifth Avenue has a "unique character" 16 and "historic role," and, thus, other thoroughfares are 17 inadequate alternative channels. 18 have a unique character, the law does not require that 19 alternative channels be "perfect substitutes." 20 City of New York, 435 F.3d 78, 101 (2d Cir. 2006). 21 Avenue Rule leaves open all other streets in the City for 22 parades. 23 parades in the City despite the Fifth Avenue Rule. While Fifth Avenue does indeed Mastrovincenzo v. The Fifth In the last nine years, IAC has conducted eleven - 15 - Thus, 1 adequate alternative channels of communication exist. 2 C. Should the Injunction Be Expanded? 3 The City has not cross-appealed the district court's 4 injunction, but IAC argues that the injunction does not go far 5 enough. 6 In August 2004, the Mayor approved a United for Peace 7 and Justice ("UPJ") protest against the Republican National 8 Convention, which proceeded on a stretch of Fifth Avenue. 9 UPJ protest did not -- and the City admits as much -- meet the The 10 requirements of the Special Permit Provision. 11 that the UPJ permit fit the spirit and intent of the Special 12 Permits Provision. 13 permitting the UPJ march and not the IAC march -- made a content- 14 based distinction. 15 City's discretion to determine which parades satisfy the Special 16 Permits Provision was "effectively unconstrained." 17 Ctr., 522 F. Supp. 2d at 692. 18 City from granting permits for new parades on Fifth Avenue in 19 violation of the Fifth Avenue Rule, unless the requested use fits 20 squarely within the categories enumerated in the regulation. 21 The City argued The district court found that the City -- in Thus, the district court concluded that the Int'l Action The district court enjoined the On appeal, IAC argues that the injunction should be 22 broadened to apply to parades that the City authorizes without a 23 permit. We conclude that an enlargement of the injunction is not - 16 - 1 necessary. 2 parade without a permit in any case. 3 marches may not proceed without a permit; new parades are not 4 allowed on Fifth Avenue; exceptions to the Fifth Avenue Rule must 5 meet the Special Permit Provision; and, the City is enjoined from 6 granting permits to marches that do not definitively meet the 7 requirements of the Special Permit Provision. 8 affirm the district court's injunction. 9 D. 10 11 The City does not have the discretion to authorize a The restrictions are clear: Accordingly, we Does IAC Have Standing to Challenge the Violations Provision? Finally, IAC argues that the Violations Provision is 12 facially unconstitutional because it provides for strict 13 liability in violation of the First Amendment. 14 standing to challenge this provision. 15 III standing to bring suit if 16 17 18 19 20 21 22 IAC does not have A plaintiff has Article (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. 23 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 24 528 U.S. 167, 180-81 (2000). 25 significant First Amendment interest in communicating its message 26 in such a way as to stir bystanders to "join spontaneously." IAC argues that it has a - 17 - IAC 1 submits that the strict liability regime injures IAC because it 2 will "chill some from joining its marches, for fear of 3 prosecution, even when those marches are permitted." 4 IAC failed to provide sufficient evidence that it has 5 or will suffer an injury-in-fact. 6 spontaneously join IAC's marches is purely conjectural. 7 Latino Officers Ass'n v. Safir, 170 F.3d 167, 170 (2d Cir. 1999) 8 ("Allegations of a subjective chill [of First Amendment rights] 9 are not an adequate substitute for a claim of specific present 10 objective harm or a threat of specific future harm." (internal 11 quotation marks and citation omitted)). 12 not have standing to pursue this claim. 13 14 15 The "chill" on those that may See Accordingly, IAC does CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the District Court. - 18 -

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