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August 26, 1998

MILLION YOUTH MARCH, INC., Plaintiff, against HOWARD SAFIR, Commissioner of the New York City Police Department, THE CITY OF NEW YORK, and RUDOLPH GIULIANI, Mayor of the City of New York, Defendants.

The opinion of the court was delivered by: KAPLAN



 LEWIS A. KAPLAN, District Judge.

 This case poses a problem as old as the republic. Plaintiff seeks to conduct a large event in Harlem which it describes as a First Amendment-religious-political event and which is aimed chiefly at African-American youth. Persons associated with it reportedly have made exceptionally biased and bigoted remarks about another group in our society. The City of New York, citing health and safety concerns, has denied a permit necessary for plaintiff's event. Plaintiff claims that the City's stated reasons for its actions are pretextual and that its actions are the product of bias against the plaintiff or the reported views of its associates. The question presented is whether plaintiff has a constitutional right to go ahead with its plans.


 Plaintiff and the Proposed Event

 Plaintiff Million Youth March, Inc. ("MYM"), a non-profit organization, sought a permit from agencies of the City of New York ("City") to hold a rally on the 29 blocks of Malcolm X Boulevard from 118th Street to 147th Street on September 5, 1998 from 7:00 a.m. until 7:00 p.m *fn1" "featuring youth and adult speakers who are concerned about improving the conditions of their people." *fn2" According to the complaint, MYM calls for, inter alia, the "elimination of police brutality and misconduct; an end to the violence and conflict in communities of color; business and economic development for persons of African descent; reparations for descendants of slaves; jobs for youth; the reestablishment of financial support for educational programs for students; and the establishment of 'think tanks' amongst the youth for the purpose of creating solutions to the many problems that afflict African communities in New York and around the country." *fn3" MYM contends that "it is imperative that the event occur" in Harlem due to the expected attendees' "historical, cultural, religious and emotional ties" to Harlem, Harlem's central location and its "national and international reputation as the Mecca for people of African descent." *fn4"

 The anticipated size of the proposed event has been a moving target. Initially, plaintiff asserted that 1 to 3 million people would attend, *fn5" although that represented an effort to promote the event far more than any reasoned estimate. As will appear, the City relied upon that estimate in denying the requested relief. Now, however, plaintiff estimates that 100,000 to 170,000 people will participate in the rally, *fn6" an estimate that the City derides as an understatement. *fn7" The truth, of course, is that no one really knows. The size of the turnout doubtless will depend upon a host of factors including plaintiff's organizational and promotional activities, which cannot be assessed on this record, the weather, and the extent of the publicity generated by the political controversy surrounding the event, a controversy of which this lawsuit is a part.

 The Permit Applications

 MYM submitted several applications for permits to the defendants. The first, received on November 21, 1997 by the City's Department of Parks and Recreation ("DPR"), requested approval to hold an "Educational - First Amendment" event on September 19, 1998 in Central Park, Randall's Island or in an unspecified "street." *fn8" On January 22, 1998, DPR, through Borough Commissioner Adrian Benape, notified MYM by letter that the application for Randall's Island was approved but that the application for Central Park was denied due to "construction taking place on the North Meadow." *fn9"

 MYM then submitted two applications on January 26, 1998 to the Street Activity Permit Office ("SAPO") of the Community Affairs Unit ("CAU") of the Office of the Mayor. *fn10" Both requested permits for a "1st Amendment Educational Event." One applied for Malcolm X Boulevard between 110th and 145th Streets and the other requested Eastern Parkway from Flatbush to Utica Avenues, but both indicated a date of September 19, 1998. On February 25, 1998, however, MYM informed CAU Assistant Commissioner Mildred Duran by phone of its desire to change the date of the applications to September 5, 1998. *fn11"

 Duran notified MYM by letter dated March 4, 1998 that the SAPO applications had been denied due, among other things, to construction on a portion of Malcolm X Boulevard and a West Indian Children's Day Carnival on Eastern Parkway on September 5, 1998. *fn12" MYM promptly appealed the decision to CAU Commissioner Rosemarie O'Keefe. *fn13"

 After O'Keefe informed MYM that "there are several issues and concerns that must be addressed before we may proceed with your proposal for the September 5th Million Youth March," *fn14" MYM representatives met with CAU/SAPO, the Police Department and the Law Department on April 2, May 1, and May 20, 1998. Ultimately, however, CAU denied the requested permit for the Malcolm X Boulevard location on September 5, 1998 in a letter dated June 9, 1998. It gave several reasons.

 First, CAU asserted that September 5, 1998 would be inappropriate "because it falls during the Labor Day weekend ... when there are numerous other activities on the City's streets and the City parks are at maximum utilization," in particular, the "West Indian Parade and similar activities which have been held on Labor Day weekend for over 25 years." *fn15" The letter stated also that Malcolm X Boulevard between 110th and 147th Streets is "unsuitable for a thirteen hour stationary rally with a crowd" of the size proposed by MYM due to "repair work" from 110th to 125th Streets and because a crowd of the anticipated size could not be "physically or safely contained" in the proposed area and would "cause[] problems of access for emergency vehicles, and excessive traffic congestion." *fn16"

 CAU rejected MYM's alternate proposals for Fifth Avenue and Eastern Parkway, stating that those areas are "similarly inappropriate for a stationary rally of the size and length" proposed. Finally, the letter stated that "large parks are preferable" for such events, but that Central Park was unavailable because the North Meadow is being re-seeded until the year 2000. The letter instead proposed that MYM hold its rally in Van Cortlandt Park in the Bronx because of its accessibility to public transportation, major thoroughfares and sanitation facilities, or on Randall's Island, which contains an amphitheater, soccer field and large parking lot. It suggested September 19, 1998 from 12 noon to 5:00 p.m. without justifying the reduction from the 7:00 a.m. to 7:00 p.m. period requested by MYM. *fn17" In closing, the letter stated that "we nevertheless continue to be willing to discuss with you the viability of this date and these locations for your event." *fn18"

 Whether or not talks continued after MYM received the June 9th letter is a matter of contention among the parties. MYM asserts that several meetings were planned and then canceled by the defendants but that MYM continued to hope that the September 5th rally in Harlem would be approved. The defendants deny that any subsequent meetings or discussions occurred. *fn19" In the last analysis, the issue is immaterial to this decision.

 The Controversy

 As the negotiations over the rally location and time stalled, controversy concerning the event erupted in the media.

 Khalid Muhammad, a former Nation of Islam spokesperson and central organizer of the event, previously had made a number of outrageous, inflammatory and prejudiced remarks, such as a description of a Jew as a "hooked-nose, bagel-eating, lox-eating, perpetrating-a-fraud so-called Jew who just crawled out of the ghettos of Europe a few days ago." *fn20" On August 6, 1998, Mayor Rudolph Giuliani was quoted as stating that he believed the event to be a "hate march." As reported by the press, the Mayor declared that "he won't allow 'a hatemonger to take over our City in any substantial respect.'" *fn21" Plaintiff asserts that the denial of the permit reflects mayoral antipathy to the content or message of the proposed event or, at least, to Mr. Muhammad.

 The Litigation

 Plaintiff filed this action on August 20, 1998 and at the same time moved for a preliminary injunction ordering the defendants to permit it to conduct its rally on September 5, 1998 on Malcolm X Boulevard from 118th to 147th Streets. *fn22" The Court held a conference with counsel later that day and an evidentiary hearing on August 26, 1998. It rendered a bench opinion and signed a preliminary injunction at the end of the hearing with the reservation that this opinion would follow.


 Preliminary Injunction Standard

 "In order to justify the award of a preliminary injunction, the moving party must first demonstrate that it is likely to suffer irreparable harm in the absence of the requested relief." *fn23" Once the likelihood of irreparable harm has been demonstrated, a movant ordinarily is entitled to relief if it demonstrates "either (1) 'a likelihood of success on the merits' or (2) 'sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly' in the movant's favor." *fn24" Where, however, a movant seeks to enjoin "government action taken in the public interest pursuant to a statutory or regulatory scheme," it may succeed only by demonstrating a likelihood of success on the merits in addition to irreparable harm. *fn25" Further, if "the injunction sought 'will provide the movant with substantially all the relief sought, and that relief cannot be undone even if the defendant prevails at a trial on the merits,'" the showing of a likelihood of success must be "clear" or "substantial." *fn26"

 In this case, plaintiff seeks a preliminary injunction "ordering the defendants to permit the plaintiff to conduct its September 5, 1998 rally in Harlem on Malcolm X Blvd. between 118th Street and 147th Street commencing at 7:00 a.m. and concluding at 7:00 p.m." and "enjoining the defendants from enforcing their policy limiting First Amendment activity" at that time and place. *fn27" Plaintiff thus seeks to enjoin governmental action ostensibly taken in the public interest pursuant to a regulatory or statutory scheme *fn28" and therefore must demonstrate a likelihood of success on the merits in order to establish its right to a preliminary injunction. Moreover, it must demonstrate a clear or substantial likelihood because, in light of the proximity of this motion to the requested date of the event, the grant of preliminary relief would provide plaintiff with substantially all the relief that it seeks and the relief could not be undone by a subsequent ...

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