The opinion of the court was delivered by: Chin, District Judge.
In this case, plaintiff Million Youth March, Inc. ("MYM") seeks a
preliminary injunction ordering defendants City of New York, Police
Commissioner Howard Safir, and Mayor Rudolph Giuliani (collectively, the
"City") to grant it a permit for a march and rally in Harlem on September
4, 1999. The City opposes the motion principally on the ground that MYM
is not entitled to a permit because its organizers, including Khallid
Abdul Muhammad, have made numerous offensive statements, including many
intended to incite violence.
The City's desire to deny Muhammad and MYM a platform from which to
speak is understandable. Many of their statements are bigoted, hateful,
violent, and frightening. The right to free speech, however, applies not
only to politically correct statements but also to statements that we may
disagree with and that, indeed, we may abhor. At least as frightening as
the rhetoric of Mr. Muhammad is the possibility of a society where
freedom of speech is not respected, and where the right to speak publicly
can be denied on the basis of administrative whim, personal dislike, or
disapproval of anticipated content.
MYM's motion for a preliminary injunction is granted to the extent
ordered by the Second Circuit last year in Million Youth March, Inc. v.
Safir, 155 F.3d 124, 126 (2d Cir. 1998).
The factual record before the Court is extremely limited, in part
because of the time constraints. The complaint was not filed until
Friday, August 27, 1999, and I conducted a hearing yesterday morning. The
City submitted two affidavits, documentary evidence, and four
videotapes. MYM submitted no affidavits and relied solely on its
complaint, certain documents, and representations of counsel.
The following facts are drawn from the complaint, the City's
affidavits, the documentary evidence, certain representations of counsel
(made on personal knowledge), and the videotapes. Many of the facts are
disputed, including the facts as to precisely what happened at the 1998
rally, and why. Because of the time constraints, many of these factual
disputes cannot be resolved at this time.
MYM is a private, not-for-profit organization incorporated in
Washington, D.C. According to the complaint, MYM seeks to promote
"educational, cultural, moral, spiritual, political and economic
development of underprivileged, at-risk youth and students." (Cmplt.
¶ 8). One of its leaders is Khallid Abdul Muhammad ("Muhammad").
1. The Application Process
Last year, MYM applied for a permit to
conduct a rally on September 5, 1998, on 29 blocks of Malcolm X
Boulevard, for approximately 12 hours. The City denied the application,
and litigation ensued.
The City filed an emergency motion for a stay of the injunction with
the Second Circuit. The Second Circuit denied the motion for a stay, but
modified the injunction. It determined that it had "no basis" to question
the District Court's conclusions with respect to the merits of the First
Amendment claim. Million Youth March, Inc. v. Safir, 155 F.3d 124, 125
(2d Cir. 1998) ("MYM II"). The Second Circuit held, however, that the
injunction had to be modified to take into account "all the relevant
circumstances," including "considerations of public health, safety,
convenience, and cost." Id. at 126. The Court ordered the City to
permit, instead of the 29-block, 12-hour event that MYM wanted, a
6-block, 4-hour event, with the possibility of diverting "any excess
crowds" to "nearby sites." Id. at 127.*fn2
The rally was held on September 5, 1998. A factual dispute exists as to
whether the rally started at noon as scheduled or whether it was delayed
until 12:20 p.m. MYM contends that the Police Department did not close
Malcolm X Boulevard until just 15 minutes before the rally was to start,
and because the rally organizers did not have sufficient time to set-up,
the rally was delayed.
During the rally, numerous speakers addressed the crowd. Some of them
made statements that the City argues were hateful and intended to incite
violence. For example, one speaker (not Muhammad) can be seen on the
But you think Doctor Khallid is wrong? You think
Doctor Khallid is mean? You better do every single
thing this man demands your wicked white ass to do,
because you're gonna have to deal with me, and I ain't
asking no questions, I ain't taking no prisoners. I'm
taking heads off. I'm shooting in the back. I'm
shooting in the face. I'm aiming for the heart, and, I
ain't begging, I ain't pleading, and I ain't asking a
soul to like it, come with me, join me, or take part
in nothing. I'm digging this country by myself. You
talking about a real [unintelligible] and when we come
for you, we'll come when you least expect it, where
you least expect it. And for all of our people out
here I'm gonna let my brother have a word. Stay away
from these talk shows, Ricki Lake and Jerry Springer.
You . . . now let me tell you about Jerry Springer,
the big crookednose, bagel-eating, wicked, damn
pennypinching, wicked, slimy, ruthless, damn
low-slime-of-the-earth-ass Jew. Now quote me, now
quote me, death to the United States government,
police force. Death to every oppressor, black, white,
Chinese, or whoever. And whoever won't stand up to
take care of our people into this new millennium, the
right way we need to be taken care of — death to
them. Heads off to everybody who is scared to fight,
don't want to fight, don't like to fight. And may God
Almighty bless all of our people here and keep
this, uh, a peaceful event so that we will be, so that
we will leave peacefully and won't be attacked by
these vicious New York dogs. I'll let my brother have
a word with you here, and I leave you in peace. Al
Other speakers, however, addressed such topics as black pride,
education, crime, and commitment to family and community.
Muhammad addressed the crowd approximately ten minutes before 4 p.m. I
have viewed the videotape of Muhammad's speech, and the text of the
entire speech is set forth as an addendum to this opinion. Although he
does urge the crowd to "take their goddamn guns" from the police and "use
their guns on them," he tells them to do so pointedly in the context of
And if you don't have a gun, everyone of them has one
gun, two guns, maybe three guns. In self defense, if
they attack you, take their goddamn guns from them and
use their guns on them. In self defense. Giuliani is
known for taking his police and sending them off in
Muhammad concluded his speech as follows:
This is not going to be no Million Youth Farce, oh
no. In fact, we'd love to tangle with you today. Isn't
it a good feeling to outnumber the police sometimes?
Isn't it a good feeling to know that in unity, we can
do whatever we will.
I want you now, brothers and sisters, in a very
orderly way, with love for each other, don't push each
other, don't trample each other, if one of the
brothers or sisters steps on your foot, you apologize
to them for stepping on your foot. Go in the word
love. Go in the word peace, with your own brothers and
sisters. We greet you next year, Million Youth March
on Eastern Parkway in Brooklyn, New York, in Crown
Heights next year. In black power.
Black power. Black power. Black power. Black power.
Black Power. Black power.
Go home to your families, brothers and sisters.
One of the videotapes shows that as 4 p.m. approached, the rally was
apparently coming to an end. As the material quoted above suggests,
Muhammad was finishing his remarks. The videotape also shows dozens of
police officers starting to move toward the stage, and it appears from the
videotapes that the police were taking steps to end the rally. One of the
videotapes shows a helicopter flying by at what would appear to be an
unusually low altitude, just as Muhammad's speech was coming to an end
with his repeated chant of "Black power."
The videotapes also show a confrontation suddenly breaking out between
certain of the participants and police officers. Barricades and other
objects are thrown and people are shoved and pushed. One man —
perhaps a photographer, who was standing on top of what appeared to be a
power generator — is seen being violently pulled off the generator
onto the ground by another individual, who is difficult to identify.
Numerous participants and some 20 police officers were injured.
The parties sharply disagree as to what provoked the confrontation. MYM
contends that because the start of the rally was delayed, the organizers
were entitled to some additional time. Moreover, MYM argues, other
rallies and parades are given some leeway, and the police do not
terminate other events precisely when they are scheduled to end. MYM
argues that the Police Department's actions in strictly enforcing the 4
p.m. deadline, and the atmosphere created by what it termed "cattle
chutes," subway closings, inordinately large number of police officers
dressed in riot gear, and helicopters buzzing the crowd, caused the
Five individuals were indicted for misdemeanors, but they were
acquitted. A grand jury was convened to consider the filing of criminal
charges against Muhammad, but he was not indicted.
On June 23, 1999, Khallid Abdul Muhammad applied, on behalf of the
"Million Youth March/New Black Panther Party," to the Street Activity
Permit Office of the Mayor's office for a permit to conduct a
"political/educational/religious event" on September 4, 1999 between 10
a.m. and 7 p.m. (Connolly Aff., Ex. A).*fn3 The application represented
that the event was to take place on Malcolm X Boulevard between 134th and
115th Streets in Manhattan. It estimated that 50,000 people would
attend. It asked for the street to be closed for 12 hours, from 8 a.m. to
8 p.m. (Id.).
On July 14, 1999, Daniel S. Connolly, Esq., Special Counsel to the New
York City Law Department, wrote on behalf of the City to Muhammad.
Connolly advised Muhammad that the City was "prepared to permit [the
Malcolm X Boulevard] event to the extent authorized" by the Second
Circuit in its decision last year. (Connolly Aff., Ex B). The letter
noted that the Police Department would have to approve certain details,
such as the specific site on Malcolm X Boulevard where the event would
take place and the starting time, and the letter further noted that the
Police Department would request a "written commitment" that the event
would end as scheduled. The letter also noted that the City was "prepared
to consider an application for Randall's Island." Connolly concluded his
letter by asking for a "prompt response," no later than July 26, 1999.
Connolly did not hear from Muhammad by July 26, 1999. Accordingly, on
July 29, 1999, he wrote a letter to Malik Z. Shabazz, Esq., who was
listed in the permit applications as "Producer/Event Manager." (Connolly
Aff. ¶ 8 & Ex. C). Connolly received no response, and thus he tried
to contact Shabazz by telephone. He finally spoke with Shabazz on August
10, 1999. After Connolly stressed the need for a prompt response to ...