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PEOPLE FOR ETHICAL TREATMENT OF ANIMAL v. GIULIANI

July 25, 2000

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, PLAINTIFF
V.
MAYOR RUDOLPH GIULIANI, NYC 2000; NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION; COWPARADE, LLC; COWPARADE HOLDINGS CORP.; COWPARADE NYC 2000, INC.; AND VELOCITY SPORTS AND ENTERTAINMENT, LLC, DEFENDANTS.



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

    OPINION AND ORDER

Plaintiff People for the Ethical Treatment of Animals, Inc. ("PETA") requests a preliminary injunction compelling defendants to display a design that PETA submitted for inclusion in a public art exhibit known as the CowParade. This event began in New York City on June 15, 2000 and is scheduled to end on September 3, 2000. The CowParade artwork is currently on display in various public open spaces throughout the City. PETA contends that by excluding one of PETA's proposed designs from the exhibit, defendants, a public-private partnership consisting of the City and the organizers of the CowParade, impermissibly infringed upon PETA's rights of expression in violation of the Federal and New York State Constitutions.

Courts are often called to rule upon novel concepts of words and deeds. This case presents a unique question: whether a cow is a forum or a forum a cow, and then when and where such a cow/forum may be found. Not surprisingly, any notion of first impression is bound to generate disputes arising from different understandings and applications of the unfamiliar concept. Any effort to resolve them is imbued with uncommon difficulties. In the realm of art and fanciful ideas, the challenge is perhaps compounded. The controversy here presents some weighty First Amendment questions. A full trial on the merits may not be possible before the CowParade ends. The disposition of PETA's motion for a preliminary injunction therefore is likely to resolve the most significant element of the controversy before the Court — the scope of PETA's right to display artwork as part of the CowParade.

Having fully considered that the disposition of PETA's request for a preliminary injunction potentially constitutes final relief in this action, the Court denies PETA's motion.

FACTS

PETA is a non-profit animal rights organization which claims more than seven hundred thousand members. It states that it is "dedicated to establishing and protecting the rights of all animals" and adheres to the philosophy that "animals are not ours to eat, wear, experiment on, or use for entertainment." Compl. ¶ 2. To this end, it aims "to provide public education in order to engender recognition of animal rights and ensure treatment of animals in accordance with animal rights." Id.

PETA brought suit against various public and private entities involved in organizing a public art event known as CowParade New York City 2000 (the "CowParade"), a joint public-private venire organized and presented by defendants. New York City Mayor Rudolph Giuliani (the "Mayor"), the New York City Department of Parks and Recreation and NYC 2000*fn2 (collectively, the "City") are the public co-hosts of the CowParade, having joined with the private entities CowParade, LLC, CowParade Holdings Corp., and CowParade NYC 2000, Inc. (collectively, with Velocity Sports and Entertainment, LLC, the "CowParade Organizers"). Defendant Velocity Sports and Entertainment, LLC was hired by the CowParade Organizers to oversee the planning and execution of the CowParade.

The CowParade itself, which began on June 15, 2000 and continues until September 3, 2000, is a public art exhibit now on display throughout New York City. Similar events have previously been sponsored in Zurich, Switzerland and Chicago by some of the CowParade Organizers. CowParade consists of approximately 500 life-size fiberglass sculptures of cows in three basic poses which have been painted, decorated or otherwise altered artistically. Individuals and groups, in particular "every corporation, restaurant, hotel and/or retailer in New York," were solicited by the CowParade Organizers to become "patrons," or sponsors, of CowParade by "adopting" a cow to be displayed as part of the event. See Declaration of Sean Gifford in Support of PETA's Motion for Preliminary Injunction, sworn to May 31, 2000 ("Gifford Decl."), Ex. A at 2. To become sponsors, interested groups or individuals were required to sign a sponsorship form and to pay $7,500 for each cow they sought to adopt, with a maximum of twenty-five cows per applicant. Sponsors could either select a design from among hundreds submitted to CowParade by independent artists or could themselves commission artists to design their cows, subject to the guidelines and approval process specified by the CowParade Organizers.

The decorated cow sculptures, in accordance with the standards applied by the City and the CowParade Organizers, are presently located in a wide variety of highly visible public and private areas throughout the City, including parks, sidewalks, building plazas and train stations.*fn3 The City and CowParade Organizers have promoted CowParade as an important part of the City's millennial celebrations. According to a CowParade press release, Mayor Giuliani observed that the CowParade is a "unique public-private partnership" that "give[s] visitors and residents one more reason to explore the boroughs, while adding to New York City's creative, dynamic environment, and stimulating the economy." Gifford Decl., Ex. E. The financial benefit to the City and its businesses is emphasized strongly in CowParade's promotional materials, which point out that the CowParade in Chicago was "viewed by more than 10 million people and generated more than $500 million in additional tourism revenue." Id.

In addition to the indirect financial rewards the City expects from increased tourism and related revenue, it also anticipates a direct benefit by virtue of the agreement between the City, acting through the Commissioner of the Department of Parks and Recreation, and CowParade Worldwide, Inc. (the "Permit").*fn4 See City Decl., Ex. B at § 8. The Permit requires CowParade to remit to the City Parks Foundation, Inc. 10% of its gross receipts from the sale of CowParade merchandise. See id. at § 8(c). It also provides that the City will receive 50% of the gross proceeds from an auction of exhibited cows that will be held at the end of the event. See id. at § 9.

The Permit also specifies the terms by which the CowParade may use certain public spaces for the exhibit. The exhibition "shall consist of temporary installations of life-sized fiberglass cows, which may be installed individually or in clusters, at various sites throughout the five boroughs." Id. at § 1. More importantly, the Permit sets out some of the design and review requirements which the City imposed on the CowParade Organizers as a condition for granting the Permit.

In the section marked "Consultation and Cooperation," the Permit requires that

[t]he parties shall consult with each other during all stages of the planning of the Exhibition. It is understood and agreed that the Permittee will assemble a committee that will be comprised of representatives of the City, including [the Department of Parks and Recreation], as well as members of the New York City arts community. Such committee shall establish guidelines for submission of work for display in the Exhibition, and will evaluate artists' work in light of the submission guidelines. The Committee, in its discretion, may direct Permittee to remove any Exhibition component that includes material that is indecent or demonstrates a lack of proper respect for public morals or conduct.

Id. at § 1. The Guidelines and Approval Process for Commissioned Designs (the "Guidelines") specify, in relevant part, that

[t]he Commissioned Artist is encouraged to be creative with his or her Commissioned Design, but to remember that the audience will be broad-based and of all ages. Commissioned Designs that are religious, political or sexual in nature will not be accepted. .

Gifford Decl., Ex. G at ¶ 5. The Guidelines also specify that no corporate logos or advertisements would be permitted on the cows. See id. It is from an adverse decision of the Committee that PETA now seeks injunctive relief.

The contractual relationship between PETA and the CowParade Organizers began when PETA submitted a "CowParade New York 2000 Sponsorship Form" dated March 10, 2000 ("Sponsorship Form" or "Agreement"). See Gifford Decl., Ex. A. On it, PETA indicated to the CowParade Organizers its intention to sponsor two cows for a fee of $7,500 per cow. PETA also indicated on this form its desire to commission its own artist, rather than select from the portfolio of pre-designed cows. The Sponsorship Form describes the terms and conditions to which sponsors were required to agree before being permitted to adopt a cow in the CowParade. These terms specify that

[t]he location(s) in New York City where — the cow(s) You adopt will be placed will be determined by Us [CowParade NYC — 2000, Inc.]. If you commission any design for any of Your adopted cow(s), You agree to comply with the Guidelines and Approval Process for Commissioned Designs to be provided by Us.

Gifford Decl., Ex. A. They also include several provisions relating to ownership of the cows, such as an acknowledgment that the sponsor does "not own any right, title or interest in the name `CowParade' or any of the cow design(s);" that the adopted cows are owned by the CowParade Organizers; and that none of the proceeds from the auction of the cow after the event would be retained by the sponsor. Id. The terms of the Sponsorship Form also specify that all modifications and waivers must be in writing and that the Sponsorship Agreement would be governed by New York law. In a letter dated March 31, 2000, PETA was informed, in response to its request for a waiver, that as a nonprofit organization it would be allowed to retain 100% of the auction proceeds from the sale of each PETA cow. See Gifford Decl., Ex. B. The same letter also noted that the proposed cow designs were being reviewed by the Committee and that PETA would be notified within two weeks of the results.*fn5

One of PETA's two proposed designs was approved by the Committee.*fn6 It consisted of a cow covered almost entirely with imitation leather products such as boots, belts, jackets, and a soccer ball, and bearing the words "buy fake for the COW'S sake." Gifford Decl., Ex. C. The second design, which was rejected by the Committee, divided the cow into sections in a manner intended to resemble a butcher shop chart showing the cuts of meat derived from a cow. Within each section was a statement or quotation "concerning the health and ethical problems associated with the killing of cows for food." Compl. ¶ 29; Gifford Decl., Ex. D. These statements and quotations were contained in nine panels:

Animal agriculture pollutes U.S. waterways more than all other industrial sources combined — Environmental Protection Agency
"The cow is a poem of compassion . . . to protect her is to protect all of creation." — Mohandas Gandhi
Vegetarians weigh, on average, 20 to 30 lbs less than meat-eaters.

Cattle are castrated and dehorned without anesthesia

"A lot of times the man skinning the cow finds out an animal is still conscious." — USDA Inspector Timothy Walker.

"Go Veggie!" — Sir Paul and Linda McCartney

Meat Eaters die from heart disease 3 times more frequently than vegetarians. — American Journal of Clinical Nutrition Steak is 87% fat. Eat it, and you will be too.
Eating meat causes impotence because it blocks the arteries to all vital organs, including the penis. — Dr. Dean Ornish, Medical Advisor to President Clinton

Compl., Ex. C; Gifford Decl, Ex. D.

In or about the week of April 15, 2000, PETA was informed by telephone that the Committee had rejected PETA's design for the second cow and was asked to redesign it in order for the cow to be included in the CowParade. See Affidavit of Jennifer Schumaker, submitted by the CowParade Organizers, sworn to June 21, 2000 ("Schumaker Aff."), at ¶ 4; City Decl., Ex. H. The Committee had found that while most of the statements included in the second cow were acceptable, three statements in three panels were not:

"A lot of times the man skinning the cow finds out an animal is still conscious." — USDA Inspector Timothy Walker.

Cattle are castrated and dehorned without anesthesia

Eating meat causes impotence because it blocks the arteries to all vital organs, including the penis. — Dr. Dean Ornish, Medical Advisor to President Clinton

The design review Committee consisted of David Chass (from Velocity Sports and Entertainment, LLC), Bud Konheim (representing NYC 2000), David Slarskey (Chief of Staff of the City's Parks Department), Pat Smith (representing the CowParade Organizers) and Dorrit Wohl (Deputy Commissioner of the City's Department of Cultural Affairs). See City Decl. at ¶ 10. The Committee convened one time, on April 9, 2000, to review the approximately 1,200 designs that had been submitted to CowParade. Each member of the Committee reviewed all of the designs independently, flagging those that raised concerns. See Affidavit of David Slarskey, attached to the City Decl., sworn to June 20, 2000 ("Slarskey Aff."), at ¶ 7. Only four were ultimately rejected.*fn7 From among all the approximately 1200 designs the Committee deemed acceptable, sponsor applications were ultimately accepted with respect to the approximately 500 sculptures now in the exhibit.

Slarskey averred that the PETA design was flagged by all of the members of the Committee:

We saw the design as inappropriate. We perceived it as overtly and aggressively political in that it was too graphic and violent for a public display that was to be installed in public parks, on public streets, and on school property, where the public at large of all ages would encounter it without having sought it out. We didn't reject the design merely because it compelled people to think. A discourse might have arisen from any number of whimsical designs. What troubled the committee was the provocative, graphic, offensive effect of the text chosen.

There is some dispute between the parties as to what PETA was told about the rejection of the second design. PETA asserts that it was initially told that the design had been rejected, as "graphic and profane" but was not informed of any specific guidelines which the design violated. Gifford Decl. at ¶ 8. PETA also claims to have been told that the minutes of the meeting at which the decision was made indicated that the design was rejected as "inappropriate." Compl. ¶ 32. Jennifer Schumaker, who delivered the Committee's decision rejecting three panels within the cow design to PETA, attested that she merely said they were inappropriate, without characterizing the decision because she had not been present at the meeting. See "Schumaker Aff' at ¶¶ 5, 6. PETA objected to the Committee's decision, and informed the CowParade Organizers in a letter dated April 20, 2000 that `the content of the slogans that the committee has deemed to be `graphic and profane,' is intended to be candid and eye opening and does not sink to the level of the obscene" and that its cow "will vividly confront the viewing public with the truth about animal cruelty in the meat industry." City Decl., Ex. H.

The CowParade Organizers contend that the words "graphic and profane" were never used; that the transcript was not referenced; and that PETA was told that it could resubmit a modified design. See Schumaker Aff. at ¶ 6. Defendants further contend that PETA was informed that the decision would not change and was provided with assistance in locating artists to paint the approved and the anticipated revised design, and that PETA repeatedly reaffirmed its intent to submit a modified design. Id. at ¶¶ 7-9. Whether or not PETA had intended to resubmit a modified design, a letter from PETA's attorney to the CowParade Organizers dated May 18, 2000 indicated that PETA had reconsidered and determined that no alternative design was acceptable and requested CowParade to reverse its decision. See City Decl., Ex. I. The CowParade Organizers did not reverse their decision, and the present action was commenced on May 25, 2000, when PETA filed its complaint with the Court. Oral argument was heard on June 29, 2000.

PETA's complaint alleges that defendants violated 42 U.S.C. § 1983 and PETA's free speech rights under the First and Fourteenth Amendments of the United States Constitution and under Article I, Section 8 of the New York State Constitution. On these claims, PETA seeks declaratory and injunctive relief and damages. PETA further claims that CowParade NYC 2000 breached its agreement with PETA by not allowing it to display both cows and that the breach should be remedied by specific performance and damages.

STANDARD OF REVIEW ON INJUNCTION

As an initial matter, the Court must resolve the disagreement between the parties as to the nature of the injunction PETA seeks. PETA claims that its requested injunction to preclude defendants from denying PETA access to the exhibit is "prohibitory" in nature, while the City and CowParade Organizers claim that PETA is seeking a "mandatory" injunction.

A preliminary injunction, ordinarily deemed prohibitory when it is sought to maintain the status quo ante pending a full hearing on the merits, may be granted if the movant establishes both "irreparable harm and either (a) a likelihood of success on the merits or (b) a sufficiently serious question going to the merits, with a balance of hardships tipping in favor of the party requesting the preliminary injunction." Tunick v. Safir, 209 F.3d 67, 70 (2d Cir. 2000). A higher standard applies, however, if the requested injunction is "mandatory," altering rather than maintaining the status quo, or if the injunction will provide the movant with substantially all the relief sought and that relief cannot be undone even if defendant prevails at a trial on the merits. See id.; Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 34 (2d Cir. 1995). In that event, the injunction may issue "only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief." Tom Doherty, 60 F.3d at 34 (citations omitted). See also New York Magazine v. Metropolitan Transit Auth., 136 F.3d 123, 127 (2d Cir. 1998) (requiring a movant for a mandatory injunction to show not only a likelihood but a "clear" or "substantial" likelihood of success on the merits).

PETA argues that the status quo should be read as that set forth in the Sponsorship Agreement, meaning that PETA's second cow should be accepted and thus displayed. However, to find that the status quo represents the interpretation of one party to the very agreement contested in this litigation is to decide the merits of the contract claim. That view also ignores the reality of the situation. The status quo reflects conditions as they actually are. This reality is that PETA's second cow design was denied by the Committee and is not being displayed, the decision and actual condition PETA seeks an injunction to reverse. In PETA's view, the injunction it seeks essentially would direct defendants to stop prohibiting the PETA cow from being displayed. "Stop prohibiting" is but a semantic reverse side of the same coinage as "start permitting." Thus, an order to enjoin defendants from prohibiting PETA's display is still a mandatory order compelling them to exhibit the rejected design.

The Court finds that the reality of the status quo demands that PETA's application be considered to constitute a request for a mandatory injunction. Therefore, in order to obtain a preliminary injunction, PETA must show (1) that it will suffer some irreparable harm if the injunction does not issue and (2) either a clear or substantial likelihood of success on the merits, or extreme or very serious damage absent the preliminary relief. See Tunick, 209 F.3d at 70; Tom Doherty, 60 F.3d at 34.

IRREPARABLE HARM

As discussed below, the claims PETA asserts implicate its First Amendment rights. The Second Circuit reaffirmed recently that, "[b]ecause First Amendment rights are presumed irreparable," Tunick, 209 F.3d at 70 (citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547, (1976)), allegations directly implicating these rights, by their "very nature," satisfy the irreparable injury requirement for a preliminary injunction. Id.

LIKELIHOOD OF SUCCESS ON THE MERITS

The Court turns directly to the second prong of the required showing for a mandatory preliminary injunction: the movant's substantial likelihood of success on the merits. To assess the prospects that PETA eventually may prevail in this action, the Court must evaluate the claims in light of applicable First Amendment doctrine. This task entails a review of the relevant property to which PETA seeks access for its cow design, the relevant forum and purposes for which the government opened access to its property for expressive activities, and the standard of review appropriate for the relevant forum.

APPLICABILITY OF FIRST AMENDMENT

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law and (2) that such conduct deprived the plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States. 42 U.S.C. § 1983 (2000); West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Here, PETA claims that it was deprived of its rights under, the Free Expression Clause of the First Amendment of the United States Constitution, as applied to the States by the Fourteenth Amendment.

Two threshold issues must be resolved in connection with the relief PETA seeks. These are whether the CowParade exhibit entailed speech protected by the First Amendment and whether the alleged violations resulted from state action. The parties do not contest either of these issues, and the Court determines that both prerequisites have been adequately demonstrated. By its very nature, the CowParade is an exhibit of art, a quintessential form of expression. Artistic expression, whether written or visual, is clearly protected by the First Amendment. See Bery v. City of New York, 97 F.3d 689, 696 (2d Cir. 1996) (stating that paintings and sculptures are entitled to "full First Amendment protection"). As PETA's CowParade design consisted of protected speech, the rejection of PETA's proposal in essence could constitute a content-based restriction on the right of free expression actionable under 42 U.S.C. § 1983 if carried out under color of state law.

Defendants here comprise the City of New York and the CowParade Organizers acting in a public-private partnership to carry out the exhibit. For the purposes of stating a claim under 42 U.S.C. § 1983, private defendants' actions may be attributed to the state where private and public entities engage in a "symbiotic relationship" through which the alleged constitutional violation is carried out. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961)(where "[t]he State has so far insinuated itself into a position of interdependence with [a private entity] . . . it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been . . . purely private. . . ."). Here, the City and the private CowParade Organizers concede that they formed a public-private partnership that gave rise to such a symbiotic relationship. See City Defendant's Memorandum of Law in Opposition to PETA's Motion for a Preliminary Injunction, dated June 22, 2000 ("City Memo") at 3. The contractual agreement between the City and the CowParade Organizers, coupled with the significant regulation and control over the event that was exercised by the City, created a sufficient link between the public and private entities, placing the CowParade activities under the umbrella of state action sufficient to satisfy the requirememts of 42 U.S.C. § 1983.

THE FORUM

At its core, the controversy before this Court involves a conflict between, on the one hand, PETA's right to engage in protected speech in public spaces and, on the other, the scope of the government's authority to infringe upon freedom of expression as a direct or incidental effect of managing its affairs involving the use of public properties for their intended purposes. As a starting point for resolving such fundamental disputes, the United States Supreme Court has formulated an approach grounded on First Amendment forum analysis. See Perry Educ. Ass'n v. Perry Local Educ. Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). The approach encompasses a judicial inquiry to determine the relevant forum, public property and government purposes associated with the alleged violation of free speech. The classification of the forum identifies the applicable standard of judicial scrutiny the state action must satisfy for the Court to sustain a restriction on protected expression. Central to the forum doctrine is that both the "existence of a right of access to public property and the standard by which limitations upon such right must be evaluated differ depending on the character of the property at issue." Perry, 460 U.S. at 44, 103 S.Ct. 948.

The relevant forum and the accompanying level of review are intensely contested in this action. The outcome of the case turns on this determination. In examining pertinent case law, however, this Court encountered substantial ambiguities related both to forum designation and the attendant degree of scrutiny, concluding that the disposition of this case requires a resolution of these uncertainties. Because the matter is so pivotal to the ultimate result here, the Court finds it necessary, as the basis for a properly ...


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