United States District Court, S.D. New York
August 22, 2005.
ECKO. COMPLEX LLC d/b/a ECKO UNLTD., Plaintiff,
MICHAEL R. BLOOMBERG, Mayor of the City of New York; JONATHAN GREENSPUN, Commissioner of the Community Assistance Unit, Office of the Mayor, City of New York, in their individual capacities; and THE CITY OF NEW YORK, Defendants.
The opinion of the court was delivered by: JED RAKOFF, District Judge
OPINION AND ORDER
The facts of this case are simple. Plaintiff Ecko.Complex LLC
d/b/a Ecko Unltd. ("Ecko") is a fashion company, whose founder
and chief executive officer, Marc Ecko, has a passion for
graffiti, as well, it would seem, for making money. Nearly a year
ago, Ecko initiated the process of applying for a street permit
to host an outdoor art exhibition and demonstration in Chelsea,
at which 20 artists who, like Marc Ecko, began their careers as
graffiti artists in New York and now have achieved renown, would
paint graffiti on the panels of tractor-trailer trucks, later
changed to mock, two-dimensional subway cars. After clearing
numerous hurdles, including approval by the local community
board, Ecko received, on or about July 18, 2005, permit number
MO4-042, which permitted Ecko to conduct the art demonstration on August 24, 2005, on 22nd Street between 10th and
11th Avenues in Manhattan, from 10 a.m. to 6 p.m. See Permit to
Conduct Street Activity, 7/18/05, attached as Ex. J to
Declaration of Daniel M. Perez, 8/18/05 ("Perez Decl.").
Thereafter, questions were raised as to whether the exhibition
was actually a commercial event, intended to promote a
forthcoming Ecko video game involving graffiti, in which case
Ecko would, for example, have to pay a larger fee for the permit
than would otherwise be the case. Ostensibly on this ground, the
City wrote to Ecko on or about August 15, 2005, revoking the
permit. See Letter from Greenspun to Reinitz, 8/15/05, attached
as Ex. N to Perez Decl.
The next day, however, the City wrote a second letter to Ecko
specifically objecting to the painting of graffiti on the mock
subway cars because "this method of display would incite criminal
behavior." See Letter from Greenspun to Reinitz, 8/16/05,
attached as Ex. O to Perez Decl. That this was the City's primary
motivation in revoking the permit was made evident that same day
when Mayor Bloomberg, as quoted in the New York Times, stated:
"This is not really art or expression, this is, let's be honest
about what it is: It's trying to encourage people to do something
that's not in anybody's interest." Jim Rutenberg, City Revokes
Party Permit Over Exhibit With Graffiti, N.Y. Times, Aug. 16,
2005, at B5. Subsequently, the Mayor made similar public statements in other forums. See, e.g., Live
from City Hall with Mayor Mike and John Gambling (WABC (N.Y.)
radio broadcast Aug. 19, 2005), available at
("Mayor's 8/19/05 Radio Interview"). Furthermore, the August 16th
letter specifically rejected a second permit application that
Ecko had submitted in response to the purported "commercial"
objection, and the sole reason stated in the August 16th letter
for rejection of the second application was that the proposed
graffiti painting on subway cars presented too great a risk of
inciting criminal behavior. See Letter from Greenspun to
Reinitz, 8/16/05, attached as Ex. O to Perez Decl. At oral
argument today, the City once more reconfirmed that this is its
It is not disputed that Ecko had already spent a great deal of
time and money preparing for the August 24 exhibition. See
Affirmation of Miryam Reinitz, 8/18/05, ¶ 42, attached as Ex. A
to Perez Decl. With 20 famous artists scheduled to appear on that
date, it could not postpone the exhibition without suffering
irreparable harm. See id. at ¶ 41. In addition, as the City
concedes, the deprivation of a First Amendment right constitutes
irreparable injury for purposes of a motion for preliminary
injunction. See, e.g., Bery v. City of New York,
97 F.3d 689, 693 (2d Cir. 1996).
Accordingly, last Thursday, August 18, 2005, Ecko came to this Court seeking, on an expedited basis, an order compelling
the City to re-issue permit number MO4-042 or to issue its
equivalent, so that the exhibition could go forward as planned.
The City, though not challenging the Court's jurisdiction and
authority to grant such relief, opposed on the grounds,
principally that Ecko had not shown a likelihood of success on
An initial hearing was held on Friday, August 19, at which both
sides agreed that, for purposes of this motion, no evidentiary
hearing was necessary and the Court could rely on the exhibits
submitted by the respective parties in determining the facts.
See transcript, 8/21/05. Importantly, Ecko also represented,
unequivocally, that it would not include at the exhibition any
materials promoting its forthcoming video game involving
graffiti. Id.; see also Letter from Reinitz to Duran,
8/15/05, attached as Ex. M to Perez Decl. After receiving
answering papers from the City, the Court heard further argument
on Monday, August 22, 2005.
The Court now grants Ecko's application and reinstates permit
The City's claim that the exhibition is substantially a
commercial event was of doubtful substance when first raised, but
now, given Ecko's concessions, it is of no material substance
whatever. What Ecko wishes to sponsor, pure and simple, is a graffiti art exhibition with little or no commercial speech of
any consequence. In particular, the only exercise of free
expression of which the City complains, to wit, the painting of
graffiti on mock subway cars, has no commercial content and no
direct commercial purpose at all. Ecko will, of course, reap the
goodwill of being touted as the corporate sponsor, and, like many
such sponsors, intends to retain painted panels for future
display at its premises; but such incidental benefits of
commercial sponsorship do not transform a display of artistic
endeavor into a commercial activity. See N.Y. State Ass'n of
Realtors, Inc. v. Shaffer, 27 F.3d 834, 840 (2d Cir. 1994)
("[T]he mere fact that the speech at issue has an economic
motivation or is conceded to be advertisement is not by itself
sufficient to convert that speech into commercial speech.")
(internal quotations omitted). Furthermore, over the many months
that the City considered every aspect of the proposed exhibition
prior to issuing the permit, never once did it suggest that it
was a commercial event not qualifying for the kind of permit
The belated raising of the "commercial" objection in mid-August
was, the Court infers, simply a facade for what the City
implicitly admits is its only real objection, i.e., its
objection to the painting of graffiti on mock subway cars.
Indeed, in the course of oral argument, the City has repeatedly
represented that, if the mock subway cars were removed, some sort of permit
would issue allowing the exhibition to go forward as scheduled.
See transcript, 8/19/05; see also Letter from Greenspun to
Reinitz, 8/16/05, attached as Ex. O to Perez Decl.
So, the only real issue is whether the City can lawfully
proscribe an otherwise-approved public art exhibition on its
streets because that exhibition involves painting graffiti on
mock subway cars. The City does not suggest, nor could it, that
such painting is itself a crime, since the "subway car" panels
are plainly mock-ups. But it claims to have the right to censor
this exercise of free expression because, in the words of the
Mayor on his radio program last Friday, the exhibition is
tantamount to "encouraging vandalism." Mayor's 8/19/05 Radio
Interview. By the same token, presumably, a street performance of
Hamlet would be tantamount to encouraging revenge murder. Or,
in a different vein, a street performance of "rap" music might
well include the singing of lyrics that could be viewed as
encouraging sexual assault. As for a street performance of
Oedipus Rex, don't even think about it.
The First Amendment would be a weak reed indeed if the
utterance of such expressions could be banned from the City's
streets because, in the Mayor's view, "It's trying to encourage
people to do something that's not in anybody's interest."
Rutenberg, supra. Such heavy-handed censorship would, moreover, fall particularly hard on artists, who frequently revel in
breaking conventions or tweaking the powers that be.
No one suggests, of course, that the actual painting of
graffiti on subway cars is to be condoned. Nor can it be denied
that this crime can have a "faddish" aspect that may make it
difficult to deter. The constitutionally permissible solution is
to prosecute those who actually commit this crime to the full
limits of the law; but not to ban those who, for artistic reasons
or otherwise, choose to make use of this motif, in mock form, as
the mode of their expression.
In short, the denial of the permit on the stated grounds that
the demonstration will "incite" others to actually paint graffiti
on subway cars is a flagrant violation of the First Amendment and
cannot stand. See Brandenburg v. Ohio, 395 U.S. 444 (1969)
(even flatly advocating a violation of law cannot be banned
unless it is intended and likely to produce "imminent lawless
It remains only to add that there does not appear to be any
basis in the City's own ordinances for denying a permit on this
ground. The relevant regulation is Section 1-07 of Title 50 of
the Rules of the City of New York, entitled "Approval or Denial
of Applications by the Street Activity Permit Office." 50
R.C.N.Y. § 1-07. Nowhere on its face does that section directly
purport to govern the content of the street activities for which permits are sought; indeed, such a provision would probably be
unconstitutional on its face. Nor does the section speak anywhere
about forbidding activity that is likely to "incite" criminal
activity not that there has been the slightest showing here
that such incitement would likely occur.
The section does include a catch-all provision of a kind that
authorizes denial of a permit if "approval of the application is
not in the best interest of the community, City or general public
for reasons that may include, but are not limited to, lack of
good character, honesty, integrity or financial responsibility of
the sponsor." Id. § 1-07(c) (4). Here, the "good character" and
such of the sponsor are not in question. The unspecified other
reasons on which an application may be denied cannot be stretched
to include proscriptions of particular content of expression, for
otherwise the provision would be unconstitutionally vague. Cf.
Million Youth March v. Safir, 155 F.3d 124 (2d Cir. 1998).
Consequently, in revoking the permit here, the City acted not
only unconstitutionally but also beyond its prescribed powers.
For the foregoing reasons, the Court reinstates permit number
M04-042 and orders the City, on pain of contempt, to effectuate
it and enable the Ecko street activity scheduled for August 24,
2005 to occur as planned.
© 1992-2005 VersusLaw Inc.