Commissioner is the method of publicity used most effectively within the Police Department to publicize events among members of the New York City Police Department." Compl. P 53; see id. PP 55, 57. Plaintiffs further contend that by impeding their ability to maintain FFI as a viable, independent boxing team, defendants are interfering with their First Amendment right to participate in the social, athletic and charitable activities of FFI, all of which, they claim, are forms of expressive speech. Id. P 50; Plaintiffs' Memorandum of Law, dated May 26, 1995 ("Pls.' Mem."), at 2. Defendants are also alleged to be violating plaintiffs' right of free speech and association by "compelling the individually named plaintiffs to associate and [sic] participate in the PBA team . . . ." Compl. P 51. Finally, plaintiffs mount an equal protection challenge to defendants' decision to single out boxing as the one sport in which a team must be affiliated with the PBA before it can gain NYPD recognition and access to official NYPD communication channels. See id. PP 29, 59. Plaintiffs contend that no rational basis exists for treating FFI differently from all other police athletic teams.
A. Freedom of Speech and Association
Plaintiffs' First Amendment claim presents two discrete issues: (1) whether the impact of defendants' conduct on plaintiffs' boxing activity implicates the First Amendment; and (2) whether the impact of defendants' conduct on plaintiffs' promotional activity implicates the First Amendment.
With regard to the first issue, we conclude that plaintiffs have failed to state a First Amendment violation.
To begin with, we have grave doubts whether, in the context presented here, the sport of boxing is expressive activity protected by the First Amendment. Plaintiffs assert that the public participation of New York City police officers in the sport of amateur boxing conveys "the particularized message . . . that police officers are individuals of character pursuing excellence and adhering to ethical standards of fair play and sportsmanship," and, further, that this particularized message "is readily understood by those who view" the officers in competition. Pls.' Mem. at 9. While it is certainly true that the First Amendment protects expressive conduct as well as expressive verbalization, the Supreme Court has rejected the notion that a "limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." United States v. O'Brien, 391 U.S. 367, 376, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968). Rather, to determine whether an act or activity is imbued with enough elements of communication to fall within the scope of the First Amendment, a court must assess not only the intention of the would-be speaker but also the objective likelihood that the putative message will be understood by those who view the activity. Texas v. Johnson, 491 U.S. 397, 404, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989); Spence v. Washington, 418 U.S. 405, 409-11, 41 L. Ed. 2d 842, 94 S. Ct. 2727 (1974) (per curiam). While we recognize that dance, when combined with nudity, can inexorably convey a message of eroticism, see Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66, 115 L. Ed. 2d 504, 111 S. Ct. 2456 (1991), we are not convinced that a boxing match, in which police officers participate, inexorably conveys any message other than that police officers can be pugilists.
However, even if we assume arguendo that the communicative element in plaintiffs' boxing activity is enough to bring into play the First Amendment, plaintiffs have not alleged any burden on that activity which violates the First Amendment. As defendant Bratton correctly points out, the complaint does not allege that defendants have ordered FFI to disband or penalized police officers for participating in its activities. Nor does it allege that defendants have tried to hinder the advertisement of FFI through non-official channels of communication. Rather, the complaint alleges only that defendants have denied plaintiffs the most effective means of publicizing and promoting FFI's activities and permission to incorporate a police shield in the FFI logo. But we know from cases such as Lyng v. Automobile Workers, 485 U.S. 360, 366-68, 99 L. Ed. 2d 380, 108 S. Ct. 1184 (1988) (government's refusal to extend food stamp benefits to striking workers does not abridge striker's right of association), and Lincoln Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 530-31, 93 L. Ed. 212, 69 S. Ct. 251 (1949) (state enforcement of open-shop law does not abridge associational rights of unions or their members despite claim that closed shop is indispensable to the right of self-organization), that conduct that makes protected forms of association and speech more difficult to achieve does not, without more, violate the First Amendment. To be actionable, the hindrance to expressive association must be direct and substantial, of the same genre as, say, exposing the members of an association to physical and economic reprisals or to civil liability because of their group membership. Lyng, 485 U.S. at 366-67 & n.5. The conduct challenged here -- an administrative decision not to subsidize the exercise of (what we are assuming to be) a fundamental right -- does not exert pressure of this magnitude. See 485 U.S. at 368 (acknowledging that "strikers and their union would be much better off if food stamps were available," but concluding that "the strikers' right of association does not require the Government to furnish funds to maximize the exercise of that right."). We would only add that inasmuch as the defendants, on the facts alleged, have not unconstitutionally hindered plaintiffs' affiliation with FFI, they have not unconstitutionally compelled plaintiffs' association with the PBA boxing team.
We hold, then, that plaintiffs have failed to state a First Amendment claim relative to their boxing activity.
Plaintiffs' First Amendment claim regarding their promotional activities stands on a somewhat different footing, for the advertisement of FFI matches and activities is protected speech that has clearly been suppressed from appearing on the internal police communications system. The gravamen of plaintiffs' complaint here is not so much that as public employees, they have been denied the free speech rights guaranteed to private citizens against the government, but that the government, in the form of NYPD officialdom, has wrongfully granted the PBA team preferential access to the use of public property. See Tr. at 22-23.
The question of whether the NYPD must grant equal access to the internal police communications system depends, in the first instance, on the nature of that system. The Supreme Court has established a framework for determining how First Amendment interests are to be analyzed with respect to different types of public property:
In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly . . . and discussing public questions. In these quintessential public forums, the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.