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NEW YORK MAGAZINE v. METROPOLITAN TRANSIT AUTH.

December 1, 1997

NEW YORK MAGAZINE, a division of PRIMEDIA MAGAZINES INC., Plaintiff, against THE METROPOLITAN TRANSIT AUTHORITY and THE CITY OF NEW YORK, Defendants.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Who would have dreamed that the Mayor would object to more publicity? But that is what this case is all about. Our twice-elected Mayor, whose name is in every local newspaper on a daily basis, who is featured regularly on the cover of weekly magazines, who chooses to appear in drag on a well-known national TV show, and who many believe is considering a run for higher office, objects to his name appearing on the side of City buses. He staunchly asserts, through his designated officials, that he has a "right to publicity," namely the right to control the use of his name when it is used for advertising or trade purposes. However, one who has chosen to be Mayor, and therefore to be the subject of daily commentary and controversy, cannot avoid the limelight of publicity--good and bad. Because of the "incidental use" and "public importance" limitations on the right to publicity, the Mayor's assertion of his right must yield to the Plaintiff's assertion of its First Amendment right.

 By the filing of a Complaint and Order to Show Cause, dated November 25, 1997, Plaintiff New York Magazine, a division of PRIMEDIA Magazines Inc. ("NY Magazine"), seeks a preliminary injunction enjoining and restraining the Metropolitan Transit Authority ("MTA") and the City of New York ("City") from:

 
(i) restraining plaintiff PRIMEDIA's fundamental exercise of its right to free speech, guaranteed by the First Amendment to the United States Constitution by refusing to display, or restricting or limiting the display of any of PRIMEDIA's advertisements on city buses pursuant to PRIMEDIA's contract with defendant MTA; or
 
(ii) tortiously interfering with PRIMEDIA's contract with defendant MTA.

 Order to Show Cause, dated November 25, 1997. The basis for this request is summarized in detail below. For sound bite purposes, however, suffice it to say that NY Magazine contracted to display an advertisement ("Ad") on City buses featuring the New York Magazine logo and the following text:

 Possibly the only good thing in New York Rudy hasn't taken credit for

 After the Ad had begun to run on city buses, New York's Mayor, Rudolph Giuliani ("Mayor," "Rudy" or "Giuliani"), requested Deputy Mayor Randy Mastro to notify the MTA that the Ad should be pulled because it violated his rights under Section 50 of the New York Civil Rights Law ("Section 50"). *fn1" Needless to say, the Ad was immediately pulled. This lawsuit followed.

 I. Factual and Procedural Background

 New York Magazine is a weekly magazine, distributed and sold in the New York metropolitan area and elsewhere. The magazine includes news and political commentary regarding New York City, its public officials, public figures and politicians. Complaint at P4. The Mayor and his aides are covered in the magazine on a regular basis, sometimes in an unfavorable light. Id. at P13. The MTA is a public benefit corporation created in 1965. It owns and operates a majority of the buses that provide local transportation for hundreds of thousands of New Yorkers. Id. at P5. In addition to providing transportation, the MTA solicits advertisements, and contracts for their publication, through an entity known as Transportation Displays Incorporated ("TDI"). On September 11, 1997, TDI, acting on behalf of the MTA, entered into an agreement in which the MTA agreed to run a series of three advertisements by NY Magazine on the sides of 150 City buses. *fn2" Id. at P9. The Ad in issue was to run on the side of 75 of the buses. Id. at P10. NY Magazine agreed to pay $ 85,000 for the advertising which was to run from just before Thanksgiving to December 31, 1997, with some possible January 1998 bonus time. Id. at P11.

 The full size ads were submitted to TDI and the MTA prior to November 15. Id. at P12. According to an article appearing in The Daily News on Saturday, November 22, 1997, the Mayor asked Deputy Mayor Mastro to call the MTA and ask that the Ad be removed. Id. at Ex. A. According to an article in The New York Times, appearing on Sunday, November 23, 1997, the Ad had already appeared on eight buses by the time it was pulled. Id. at Ex. B. The article quoted Colleen A. Roche, the Mayor's press secretary, as stating, "the objection was based on the use of [Giuliani's] name to promote a commercial product[.]" Id.

 In support of its request for relief, plaintiff submitted an Affidavit from Beverly Chell ("Chell Aff."), PRIMEDIA's Vice Chairman and General Counsel. This Affidavit annexes the Complaint and the contract between Plaintiff and TDI. See Exhibits A and D to Chell Aff. The Terms and Conditions of the "Contract For: Transit Advertising, Bus Shelters, Phone Kiosk" provides that "all advertising copy is subject to approval of TDI and the Transportation Facility concerned as to character, text . . . ." Id. at Exhibit A. Plaintiff also submitted a Memorandum of Law. In response, both the MTA and the City submitted Memoranda of Law, attaching, inter alia, the MTA Advertising Standards governing advertising and two advisory opinions of the City of New York's Conflicts of Interest Board. A preliminary injunction hearing was held on November 28, 1997. See Transcript of Argument ("Tr."). The hearing consisted of argument from all counsel. In addition, the plaintiff introduced the Ad in issue and the November 10, 1997 issue of New York Magazine, featuring a caricature of Mayor Giuliani on its cover and a cover story entitled "How Far Can Rudy Go?" Tr. at 75-76.

 Plaintiff also made a proffer as to certain facts, which solely for the purposes of this application, are deemed to be true. The plaintiff's proffer states that (1) the Ad copy was submitted to TDI during the week of October 17 for pre-approval and was pre-approved, Tr. at 67, 75; (2) the actual physical posters of the Ads were received by the MTA on November 10, 1997, Tr. at 67, 75, although not necessarily by a person who exercised any control or authority, Tr. at 83; and (3) the November 10 issue of NY Magazine was on the newsstands as of November 3, 1997 and was mailed to subscribers on that date. Tr. at 76.

 By a Board Resolution dated March 25, 1994, the MTA Board adopted certain Advertising Standards. See Exhibit A to Defendant MTA's Memorandum of Law. It is unclear whether the 1994 Advertising Standards or a recent 1997 Amendment to those Standards govern this contract. As noted, the contract was dated September 11, 1997 (although it appears to have been executed by TDI on September 24). See Exhibit A to Chell Aff. The parties agree that the 1997 Amendments went into effect after the date of the contract. In any event, the 1994 Standards, as well as the 1997 Amendments, prohibit, inter alia the display of any advertisement that "violates New York Civil Rights Law § 50." Id. at § (a)(vii). The 1994 Standards then establish a methodology for reviewing advertisements which requires the MTA advertising contractor (here TDI) to review every ad to determine if it falls within any prohibited category. If it does, the contractor is required to provide the advertiser with a copy of the Standards and notice of the determination, the reasons for it, and to notify the advertiser of its right to request a prompt review. Id. at § (c)(i). The MTA concedes that these procedures were not followed in this case. Tr. at 58-59, 63 ("TDI blew it").

 Finally, in two Advisory Opinions of the City's Conflicts of Interest Board, attached as Exhibits B and C to the City's Memorandum of Law, the Board opines that a public servant may not "allow his official title to be used to promote [a] book" and may not "promote[] . . . the interests of a for-profit entity" even if the public servant donates the compensation for appearing in the advertisement to charity. The City offers these opinions as an additional justification for pulling the Ad. Tr. at 36.

 The Complaint states three claims. The first claim, pled against both the City and the MTA, asserts that both entities violated Plaintiff's constitutional right to engage in free speech as guaranteed by the First Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983. The second claim, pled only against the City, asserts that it tortiously interfered with Plaintiff's contract with the MTA. Finally, the third claim, pled only against the MTA, asserts that it breached its contract with Plaintiff and is liable to Plaintiff for any damages it has sustained as a result of the breach. Plaintiff seeks a preliminary injunction based on the violation of its constitutional rights and the tortious interference with its contract.

 II. Standard for Determining Whether a Preliminary Injunction is Warranted

 Where a party seeks a preliminary injunction to stay "government action taken in the public interest pursuant to a statutory or regulatory scheme," the moving party must demonstrate irreparable harm and a likelihood of success on the merits. Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) (quoting Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995)). A slightly higher standard applies where "the injunction sought 'will alter, rather than maintain, the status quo' -- i.e., is properly characterized as a 'mandatory' rather than 'prohibitory' injunction." Jolly, 76 F.3d at 473 (quoting Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995)). In such circumstances, the moving party must show a "clear" or "substantial" likelihood of success on the merits. Id. The distinction between mandatory and prohibitory injunctions is often elusive, however, and "cannot be drawn simply by reference to whether or not the status quo is to be maintained or upset," particularly where the parties may have different perspectives on what constitutes the status quo. 76 F.3d at 474 (quoting Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1984)).

 Plaintiff seeks an order compelling the MTA to display the Ad in issue on 75 city-owned and operated buses. Complaint at P 38. While at one time eight City buses were outfitted with the Ad, see Chell Aff. at P 13, the MTA has since removed it from all MTA vehicles. The injunction sought here would therefore alter the status quo by requiring the MTA to outfit its buses with the Ad. Such a mandatory injunction requires that NY Magazine prove a "clear" or "substantial" likelihood of success on the merits.

 III. Section 1983 Constitutional Claim

 A. Elements of a Section 1983 Claim

 Section 1983 provides a civil action for the deprivation of constitutional rights under color of law. It provides that:

 
Every person who, under color any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

 42 U.S.C. § 1983. To state a valid claim under § 1983, "a plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Eagleston v. Guido, 41 F.3d 865, 876 (2d Cir. 1994) (quoting Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993)) (citations omitted). To prevail on a First Amendment claim under Section 1983, Plaintiff must establish that (1) its "conduct is deserving of First Amendment protection" and that the Defendants' conduct "was motivated by or substantially caused by [plaintiff's] exercise of free speech." Rattner v. Netburn, 930 F.2d 204, 208 (2d Cir. 1991) (quoting Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987)).

 B. Is a Preliminary Injunction Warranted?

 As noted earlier, there are two requirements that must be satisfied before a preliminary injunction can be granted. The first requires a plaintiff to demonstrate that absent the requested relief, it will be irreparably harmed. It is beyond cavil that the "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976); see also Bery v. City of New York, 97 F.3d 689, 693 (2d Cir. 1996). Generally, "when an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable harm is necessary." 11A Charles A. Wright et al., Federal Practice and Procedure, § 2948.1 at 161 (2d ed. 1995). Thus, the question presented here is whether Plaintiff can demonstrate a substantial likelihood of success on the merits.

 The state action element of the Section 1983 claim is easily satisfied. The persons who allegedly deprived the Plaintiff of its First Amendment right were the City and the MTA, both governmental actors. Tr. at 4, 21. A governmental entity or subdivision is considered a person under Section 1983. See Monell v. Dep't of Social Servs. of the City of New York, 436 U.S. 658, 690, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). The MTA concedes that it decided to pull the Ad based on the Giuliani Administration's interpretation of Section 50. Tr. at 46. As a result, there can be no question that it acted under color of state law. While the City refused to make the same concession, Tr. at 5, it too concedes that its Deputy Mayor acted in reliance on Section 50. Tr. at 35. The more difficult question, then, is whether the speech in issue is entitled to protection under the First Amendment. If it is entitled to protection, the next hurdle is to determine the extent of that protection. I turn then to an analysis of the nature of the "speech" in which Plaintiff seeks to engage.

 C. Is Plaintiff's Speech Protected by the First Amendment?

 1. Is the Ad in Issue Commercial Speech?

 The First Amendment is applicable to the states through the Fourteenth Amendment. Mills v. Alabama, 384 U.S. 214, 218, 16 L. Ed. 2d 484, 86 S. Ct. 1434 (1966). It is therefore Plaintiff's Fourteenth Amendment rights that are alleged to have been violated by Defendants' state action. The analysis of the alleged violation remains the same -- namely, whether Plaintiff's speech is protected by the First Amendment. Plaintiff claims that its right to convey its message was trampled by state actors for no legitimate reason, much less a substantial or compelling state interest. Plaintiff implies that the reason the Ad was pulled was because the Mayor did not like its content, i.e. the fact that it pokes fun at him for taking credit for all that is good in New York. Speech is generally protected unless it falls in a category that removes it from the scope of First Amendment protection, including, but not limited to, such categories as speech that infringes copyrights, is libelous, misleading or obscene, or violates a statute or regulation that serves a legitimate public interest. In order to determine the protection to be afforded to the speech in issue, it is necessary to decide whether it is entitled to full First Amendment protection or to the more limited protection accorded to what is known as "commercial speech."

 Once upon a time commercial speech was "deemed wholly outside the purview of the First Amendment." Penthouse Int'l, Ltd. v. Koch, 599 F. Supp. 1338, 1344 (S.D.N.Y. 1984) (citing Valentine v. Chrestensen, 316 U.S. 52, 54, 86 L. Ed. 1262, 62 S. Ct. 920 (1942)). Since 1976, however, the Supreme Court has consistently held that such speech is protected although it "is entitled to a lesser degree of protection than other forms of constitutionally guaranteed expression." Gordon and Breach Science Publishers S.A. v. American Institute of Physics, 859 F. Supp. 1521, 1536 (S.D.N.Y. 1994) (citing United States v. Edge Broad. Co, 509 U.S. 418, 125 L. Ed. 2d 345, 113 S. Ct. 2696 (1993); Bd. of Trustees of State University of New York v. Fox, 492 U.S. 469, 106 L. Ed. 2d 388, 109 S. Ct. 3028 (1989); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980)). In the seminal case holding that commercial speech is entitled to an intermediate level of protection, the Supreme Court stated that, "if there is a kind of commercial speech that lacks all First Amendment protection, therefore, it must be distinguished by its content. Yet the speech whose content deprives it of protection cannot simply be speech on a commercial subject." Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761-62, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976). *fn3" Thus, speech that does no more that propose a commercial transaction is protected by the First Amendment. Id. at 762.

 The question of whether the Ad in issue is commercial or noncommercial speech is not an easy one. The definition of commercial speech embraced by the Supreme Court is "speech that does no more than propose a commercial transaction." Edge Broadcasting, 509 U.S. at 426. However, in an opinion issued only two months earlier, the Court recognized "the difficulty of drawing bright lines that will clearly cabin commercial speech in a distinct category." City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 419, 123 L. Ed. 2d 99, 113 S. Ct. 1505 (1993). As noted in Gordon and Breach Science Publishers, supra, the fullest discussion of speech that contains elements of both commercial and noncommercial speech is found in Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 77 L. Ed. 2d 469, 103 S. Ct. 2875 (1983). That case involved the commercial solicitation for the sale of condoms. The unsolicited mailings sent by the manufacturer included both price and quantity information but also included informational pamphlets. The Court found that these mailings were a hybrid of commercial solicitation and discussion of public issues. The Court proposed but rejected several bright-line tests to help it resolve the dilemma of categorizing the speech:

 
The mere fact that these pamphlets are conceded to be advertisements clearly does not compel the conclusion that they are commercial speech. Similarly, the reference to a specific product does not by itself render the pamphlets commercial speech. Finally, the fact that Youngs has an economic motivation for mailing the pamphlets ...

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