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MILLION YOUTH MARCH, INC. v. SAFIR

September 1, 1999

MILLION YOUTH MARCH, INC., PLAINTIFF,
v.
HOWARD SAFIR, COMMISSIONER OF THE NEW YORK CITY POLICE DEPARTMENT; THE CITY OF NEW YORK; AND RUDOLPH GIULIANI, DEFENDANTS.



The opinion of the court was delivered by: Chin, District Judge.

AMENDED OPINION

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 FACTS

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.

A. Plaintiff

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").

B. The 1998 Rally

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.

Judge Kaplan found that MYM had demonstrated both irreparable harm and a "clear or substantial likelihood of success on the merits" of its claim that its rights under the First Amendment had been violated. See Million Youth March, Inc. v. Safir, 18 F. Supp.2d 334, 339-49 (S.D.N Y 1998) ("MYM I").*fn1 Consequently, Judge Kaplan issued a preliminary injunction prohibiting the City from relying on the absence of a permit to interfere with MYM's proposed event. Id. at 349. Judge Kaplan made it clear that the injunction did not "limit any other lawful exercise of [the City's] authority," including, for example, its authority to maintain access for emergency vehicles and other traffic. Id.

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

2. The Rally

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 videotapes saying:

  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
  Salaam Alakam.

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 self-defense:

  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
  riots.

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 confrontation.

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.

C. The 1999 Application

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. (Id.).

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. ΒΆ 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 ...


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