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Cir., Nov.30, 1998) (order issuing partial stay later withdrawn);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.
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").
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 ...