public forum. Defendants' contentions that street name signs do not
constitute "a forum for public discourse," that they "simply designate
the name of streets and street corners," and that their purpose "is to
identify the permanent or temporary name of a particular street or street
corner," (Defs.' Mem. Law in Supp. of Cross-Mot. for Summ. J., at
16-18), are flatly contradicted by both the language of SOP 96-1 and the
past practices of DOT.
SOP 96-1 authorizes "[a]ny person or organization" temporarily to apply
to rename a city street sign so long as its purpose is to promote or
commemorate "a public event of a not-for-profit nature," "a cultural
event," "an event or person of historic significance," "an individual who
has made a significant contribution to New Yorkers," or "a community or
public service." These purposes avowedly implicate expressive activities.
In fact, the erection of a temporary sign commemorating or promoting an
event or individual in that most public of places — the city street
— is a quintessential act of expression. By contrast, there is no
mention anywhere in the SOP that a purpose of the temporary signs is to
identify the name of a street or corner. Indeed, such a purpose would be
redundant and temporary. Even while a temporary sign is up, no cab driver
— for example — would accept a direction to "the corner of
Beauty Way and Beast Avenue," instead of "the corner of 47th and 7th,"
and no evidence has been presented to that effect.*fn3
The practices of DOT in granting applications for temporary street
signs confirm that the forum has been opened up to expressive
activities. To give but one among many possible examples, "Yo Yo Ma Way"
expresses a celebration and appreciation of the musical gifts of one of
the world's greatest cellists.
Thus, although the SOP restricts certain limited types of expressive
activities, the very public nature of the resultant forum in which the
signs are placed (literally, the street itself), the fact that the
purpose for creating the forum appears to have been precisely to permit
expressive activities (in contrast to, for example, activities which
raise funds for the state, facilitate communications within a work
environment, help keep highways clean at limited taxpayer expense,*fn4
and so forth), and the relatively broad access afforded members of the
public (anyone, so long as the proposed sign does not fall within one of
the excluded categories), support a finding that the DOT's policy has
created a limited public forum. See New York Magazine, 136 F.3d at 129
(recognizing that "[w]here the government acted for the purpose of
benefitting the public" rather than "raising revenue or facilitating the
conduct of its own internal business," courts will find that government
created public forum); Paulsen v. County of Nassau, 925 F.2d 65, 70 (2d
Cir. 1991) (relying on the fact that "appellees' communicative
activities" do not "threaten . . . basic government functions"
in finding that government created public forum); cf. Air Line Pilots
Ass'n, Int'l v. Department of Aviation, 45 F.3d 1144, 1156 (7th Cir.
1995) ("In discussing the nature of the property, a court cannot ignore
the larger context.").
When the government intentionally opens a forum for expressive
activity, as it has here, the government "must respect the lawful
boundaries it has itself set." Rosenberger, 515 U.S. at 829; Travis, 927
F.2d at 692 ("[I]n a limited public forum, government is free to impose a
blanket exclusion on certain types of speech, but once it allows
expressive activities of a certain genre, it may not selectively deny
access for other activities of that genre."). "If the government excludes
a speaker who falls within the class to which a designated public forum
is made generally available, its action is subject to strict scrutiny."
See Arkansas Educ. Television Comm'n v. Forbes, 118 S.Ct. 1633, 1641
As the previous discussion indicates, the SOP expressly permits certain
types of expressive activity; the SOP also expressly prohibits street
renamings "to promote products, commercial entities, political parties
and/or candidates." ETAN's proposed signs hardly fall within the SOP's
prohibition on signs promoting "political parties and/or candidates,"
despite DOT's determination to the contrary. "1991 Santa Cruz Massacre"
and "Free East Timor" quite obviously do not promote political parties or
candidates, however political the message of the proposed signs might be
in the broader sense.
However, courts look not only to a government's stated policy, but also
to its actual practice, in determining whether the government has created
a designated public forum and, if so, what the contours of that forum
are. See Cornelius, 473 U.S. at 802; United Food & Commercial Workers
Union v. Southwest Ohio Reg'l Transit Auth., 163 F.3d 341, 352-53 (6th
Cir. 1998); Air Line Pilots, 45 F.3d at 1153-54; Gregoire v. Centennial
Sch. Dist., 907 F.2d 1366, 1374 (3d Cir. 1990). This makes sense: if the
government's stated policy that it did not intend a policy of open access
was controlling, "the government could circumvent what in practice
amounts to open access simply by declaring its `intent' to designate its
property a nonpublic forum in order to enable itself to suppress
disfavored speech." United Food, 163 F.3d at 353; Gregoire, 907 F.2d at
1374 (focusing solely on government's stated policy "would effectively
eviscerate the public forum doctrine; the scope of first amendment rights
would be determined by the government rather than by the Constitution").
Here, there is little reason to rely exclusively on the SOP, since DOT
by Defendants' own admission has repeatedly and flagrantly violated the
terms of the SOP by approving countless applications for temporary street
signs that promote products or commercial entities. In addition, DOT has
on occasion rejected signs of a political nature which do not fall within
the narrow prohibition of the SOP on promoting political parties and/or
candidates, for example, "Yaser Arafat Street" and "Kudirat Abiola
Corner." This practice is not consistent, however. DOT has approved
temporary signs commemorating, inter alia, Philippine independence
("Philippine Centennial Way"), a Jewish victim of a Palestinian terrorist
attack ("Leon Klinghoffer Place"), and environmental awareness ("Rain
Forest Way"). Moreover, the reason given by DOT for denying the Arafat
sign was that "as a rule, signs are only placed to honor deceased
individuals" — a reason not listed in the SOP and patently false as
a matter of practice, as evidenced by the signs commemorating Gretchen
Dykstra, Patriarch Bartholomew, Yo Yo Ma, and others. DOT cannot now
claim, post hoc, that the real reason for denying the application was the
political nature of the sign. Given this inconsistency in practice, and
the fact that the SOP
does not by its own terms prohibit signs of a political nature, it cannot
be concluded that in practice the forum has been limited to signs of a
In addition, the actions of the Mayor and of the City Council in
erecting temporary street name signs reinforce the conclusion that the
forum includes signs of a political nature.
A somewhat different question arises regarding the grammar of the
signs. Although the SOP does not indicate any grammatical restrictions,
in practice nearly all of the applications and approved signs include a
designation such as "Street," "Way," "Corner," and so forth, and do not
include any verbs. Neither of ETAN's applications included a designation
such as "Street." Moreover, the word "Free" in "Free East Timor" is most
likely meant to be understood as a verb (though it could arguably be an
adjective). These distinctions were recognized when the parties, after a
hearing before this Court, stipulated that signs reading "East Timor Way"
would be temporarily erected in place of ETAN's original request for
signs reading "Free East Timor." The distinctions do not affect the
disposition of the instant motions, however. DOT did not reject ETAN's
applications for their incorrect grammatical format, but for the political
nature of the proposed signs. Had DOT rejected the applications for
improper grammatical format, ETAN presumably would have submitted amended
applications correcting the defect (e.g., "1991 Santa Cruz Massacre
In sum, weighing the SOP in light of DOT's actual practices, the
limited public forum which the City opened up through its policy of
erecting temporary street signs following approval of an application with
DOT only actually consistently excludes signs which promote political
parties and/or candidates. Products and commercial entities,
notwithstanding the SOP's language, and — most notably —
signs of a political nature which do not promote parties or candidates,
fall within the contours of the limited public forum. As indicated
above, "1991 Santa Cruz Massacre" and "Free East Timor" fall within those
Because the City denied ETAN the right to erect message-bearing signs
permitted within the limited public forum created by the City, that denial
is subject to strict scrutiny, i.e., the government must have a
compelling reason for the denial and it must be narrowly tailored. See
Forbes, 118 S.Ct. at 1641. Keeping politically sensitive speech out of
the designated forum is not a compelling reason. "The avoidance of
controversy is not a valid ground for restricting speech in a public
forum. . . ." Cornelius, 473 U.S. at 811; United Food, 163 F.3d at 355
("We think it self-evident that excluding the Union's advertisement based
on . . . the limited possibility of controversy fails th[e] historically
stringent [strict scrutiny] test."). Indeed, political speech is at the
very core of the constellation of expressive rights protected by the
First Amendment. Therefore, the denial of ETAN's applications for
temporary erection of the signs was unconstitutional.
II. DOT's Denial Was Not Viewpoint Neutral
Even if it is assumed, arguendo, that the forum here is a nonpublic
forum, the denial of ETAN's requests still violated the First Amendment.
In a nonpublic forum, "[t]he State may not exclude speech where its
distinction is not `reasonable in light of the purpose served by the
forum,' nor may it discriminate against speech on the basis of its
515 U.S. at 829 (quoting Cornelius, 473 U.S. at 806); Lamb's Chapel v.
Center Moriches Union Free School Dist., 508 U.S. 384, 392-93 (1993). The
reasonableness of a government restriction of access to a nonpublic forum
is assessed "in the light of the purpose of the forum and all the
surrounding circumstances." Cornelius, 473 U.S. at 809. As to viewpoint
neutrality, the government may make distinctions based on content and
speaker identity in limiting access to a nonpublic forum; it may not,
however, oppose access "merely because public officials oppose the
speaker's view." Perry, 460 U.S. at 46.
ETAN's proposed signs were not "inconsistent with the intended use of
the forum," and thus, the City's denials were not reasonable. See
International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672,
692 (1992) (O'Connor, J., concurring); United Food, 163 F.3d at 358
(demanding a showing that "proposed conduct would `actually interfere'
with the forum's stated purposes"); Airline Pilots, 45 F.3d at 1159
(same). Because restrictions on speech in a nonpublic forum "must be
designed to `reserve the forum for its intended purposes,' the overall
assessment must be undertaken with an eye to the `intended purposes' of
[the forum] and of the ways in which the regulated conduct . . . might
actually interfere with the carrying out of those purposes." Multimedia
Publ'g Co. v. Greenville-Spartanburg Airport Dist., 991 F.2d 154, 159
(4th Cir. 1993). As the previous section of this Opinion explained in
detail, the primary purpose of the DOT temporary street sign policy is
precisely to permit a wide range of commemorative street signs to be
erected as an expressive activity. Both of ETAN's requests were for
commemorative street signs.
Viewpoint neutrality is a closer issue. As Justice Kennedy acknowledged
in Rosenberger, the distinction between content and viewpoint "is not a
precise one." Rosenberger, 515 U.S. at 831. Defendants' position —
identical in most respects to their position with regard to the limited
public forum issue — is that DOT's policy as implemented was
permissibly based on content, not viewpoint, that content being
politically sensitive signs. As indicated previously, that position is
betrayed by the facts. Certain politically sensitive signs were
permitted, and certain politically sensitive signs were not permitted
(sometimes for reasons having nothing to do with the political
sensitivity of the sign). Therefore, DOT engaged in constitutionally
impermissible viewpoint discrimination.
III. The SOP Constituted a Prior Restraint
The Supreme Court has held that to curtail the risk of viewpoint
A law subjecting the exercise of First Amendment
freedoms to the prior restraint of a license must
contain narrow, objective, and definite standards to
guide the licensing authority. . . . If the permit
scheme involves appraisal of facts, the exercise of
judgment, and the formation of an opinion by the
licensing authority, the danger of censorship and of
abridgement of our precious First Amendment freedoms
is too great to be permitted.
Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 131 (1992)
(citations and internal quotations omitted); see also City of Lakewood
v. Plain Dealer Publ'g Co., 486 U.S. 750, 759 (1988) (noting that narrow
and objective standards are necessary to avoid giving "a government
official or agency substantial power to discriminate based on the content
or viewpoint of speech by suppressing disfavored speech or disliked
speakers"); Beal v. Stern, 184 F.3d 117 (2d Cir. 1999) (explaining that
"[a] constitutional limitation on excessive official discretion exists
because a regulation susceptible to arbitrary application `has
the potential for becoming a means of suppressing a particular point of
view.'") (quoting Nationalist Movement, 505 U.S. at 130).
The sign approval process constitutes a prior restraint since it
"g[i]ve[s] public officials the power to deny use of a forum in advance
of actual expression." Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546, 553 (1975); see also Beal, 184 F.3d at 124. This is true
even though the street signs on which ETAN wished to display its message
were owned by the City. See Southeastern Promotions, 420 U.S. at 555
("Respondents' action was no less a prior restraint because the public
facilities under their control happened to be municipal theatres.");
Sentinel Communications Co. v. Watts, 936 F.2d 1189, 1196-1200 (11th
Cir. 1991) (invalidating standardless grant of discretion to state
official to deny permission to place newsracks at state-owned interstate
rest areas, a nonpublic forum).
The City construed the SOP to permit the denial of approval to any sign
based on a belief that the message expressed in the sign will generate
controversy. Far from being the "narrow, objective, and definite"
standard required by the First Amendment, the "political controversy"
standard is wholly subjective and indeed encourages impermissible
viewpoint discrimination. The Court's analysis in Nationalist Movement
applies squarely here:
The decision . . . is left to the whim of the
administrator. There are no articulated standards
either in the ordinance or in the county's established
practice. The administrator is not required to rely on
any objective factors. He need not provide any
explanation for his decision, and that decision is
unreviewable. Nothing . . . prevents the official from
encouraging some views and discouraging others. . . .
The First Amendment prohibits the vesting of such
unbridled discretion in a government official.
Nationalist Movement, 505 U.S. at 133; see also United Food, 163 F.3d at
359 ("We have no doubt that standing alone, the term `controversial'
vests the decisionmaker with an impermissible degree of discretion.").
The arbitrary nature of the decisions made under SOP 96-1 is
established by the failure of the City even to apply SOP 96-1
consistently. Despite its flat prohibition against commercial signs, the
facts establish that many commercial signs were permitted. Not only was
SOP 96-1 interpreted in an unconstitutional manner, its strictures were
For the reasons set forth above, the City's denial of ETAN's
application for a temporary street sign stating "1991 Santa Cruz Massacre"
violates ETAN's First Amendment rights. ETAN is entitled to a declaratory
judgment to that effect.
The City is entitled to judgment dismissing the cause of action based
upon the denial of the request for a sign reading "Free East Timor," given
the stipulation to erect, instead, a sign reading "East Timor Way."
Settle judgment on notice.
It is so ordered.