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April 6, 2000


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


Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thought between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.

Hague v. Committee for Industrial Organization, 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.).

Plaintiff Housing Works, Inc. ("Housing Works") brings this action to permanently enjoin the defendants from enforcing a rule of the City of New York that limits to 50 the size of groups conducting expressive activity on the steps of City Hall or to 150 the size of groups assembling on the adjacent plaza. This lawsuit is another in a long line of First Amendment cases involving the City which Judge Calabresi recently characterized as "a relentless onslaught of First Amendment litigation." See Tunick v. Safir, 209 F.3d 67, (2d Cir. 2000).

This Court has twice previously granted the plaintiff a preliminary injunction against similar policies of the New York City Police Department. See Housing Works, Inc. v. Safir, et. al., 1998 WL 823614 (S.D.N.Y. Nov.25, 1998) [hereinafter Housing Works II], stay granted in part, 1998 WL 824534 (2d Cir., Nov.30, 1998) (order issuing partial stay later withdrawn); 1998 WL 409701 (S.D.N.Y. July 21, 1998) [hereinafter Housing Works I]. For the reasons set forth below, this Court now grants plaintiff's request for a permanent injunction.

I. Background

A. The Parties

Plaintiff is a not-for-profit organization that provides housing and services and advocates on behalf of persons with AIDS and HIV in New York City. The organization has repeatedly protested the policies of Mayor Rudolph Giuliani and his administration concerning what it has provided (or not provided) in the way of services to persons afflicted with AIDS.

On June 16, 1999, the City promulgated rules which codified the City's policy which limited to 50 the number of persons permitted to engage in expressive conduct on the steps of City Hall. After further amendment, public review, and comment, the rules were made final on January 19, 2000. See 55 RCNY, Ch. 9 (2000) (hereinafter "Final Rules").

B. Facts

The following uncontested facts are taken from the submissions of the parties.

On July 14, 1998, plaintiff initiated the instant litigation, seeking a preliminary injunction against the defendants. At that point, the City had limited press conferences on the steps of City Hall to 25 participants. This Court, in Housing Works I, issued a preliminary injunction permitting the plaintiffs to hold a press conference involving not more than fifty people on the steps of City Hall. As of September 23, 1998, the New York City Police Department ("NYPD") concluded that no events of any type, without exception, could take place on the steps of City Hall. (See deposition testimony of Deputy Inspector Pedro Pineiro, November 16, 1998).

The very next month to the day, the City administration hosted some 5000 invited guests to a celebration commemorating the World Series victory of the New York Yankees. The ceremony, authorized and attended by the Mayor and Commissioner Safir (the "Commissioner") took place on the steps and plaza of City Hall.

Some two weeks later, on November 6, 1998, the defendants denied the plaintiff's request for a December 1 event commemorating World AIDS Day planned for the steps of City Hall. Thereafter, on November 10, 1998, the City adopted a new policy with respect to assembly in the vicinity of City Hall. This policy, approved by the Commissioner, provided that public gatherings "will not be permitted within certain protective zones" and that government officials, private persons, and the like would be directed "to such alternative locations, to the extent feasible as will permit the event to occur within proximity of the protective zones." Under this policy, allegedly adopted for security purposes, the Commissioner could authorize the use of City Hall steps and plaza for ceremonial occasions that were, inter alia, (1) of extraordinary ...

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