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International Action Center v. City of New York

November 27, 2007


The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge.


This action challenges the constitutionality of New York City's regulatory scheme for limiting the number of parades and marches on Manhattan's storied Fifth Avenue. Plaintiff International Action Center ("IAC") -- an advocacy group that was denied permission to conduct a march protesting the Iraq war on a section of Fifth Avenue -- contends that the City's parade permitting scheme is either: (a) an unconstitutional content-based regulation of speech or (b) an invalid time, place, or manner restriction on the availability of a public forum. In addition, IAC urges that the scheme violates the U.S. Constitution by imposing strict criminal liability on those who participate in parades unauthorized by the City.

The parties now cross-move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment on the validity of the City's parade regulations. As set forth more fully below, the regulation of Fifth Avenue parades is a content-neutral regulation because it applies equally to all proposed parades, regardless of their expressive content, and was adopted solely to limit congestion on Fifth Avenue. As a time, place or manner restriction on protected speech, it (1) serves a significant government interest, (2) is narrowly tailored to address parade congestion on Fifth Avenue without significantly restricting speech unrelated to that congestion, and (3) leaves open alternative avenues for expression in New York City. However, to the extent the regulation as administered by the City confers overly broad discretion on municipal officials as to which new parades will be permitted on Fifth Avenue, the regulation fails constitutional muster. As a result, the City is enjoined from granting permits for new Fifth Avenue parades pursuant to N.Y.C. Admin. Code § 10-110(a)(4) unless the requested use fits within the four categories set forth in Rule 19-01(b) or any valid successor regulation.


The undisputed facts underlying this litigation are as follows.

A. The City's Regulation of Parades on Fifth Avenue

Pursuant to New York City Administrative Code § 10-110, the City has established a framework to regulate the use of city streets for parades and processions. (Plaintiff's Local Civil Rule 56.1 Statement of Material Facts ("Pl.'s 56.1") ¶ 2; Defendant's Response to Plaintiff's Local Civil Rule 56.1 Statement of Material Facts ("Def.'s Resp.") ¶ 2; Defendant's Local Civil Rule 56.1 Statement of Material Facts ("Def.'s 56.1") ¶ 1; Plaintiff's Response to Defendant's Local Civil Rule 56.1 Statement of Material Facts ("Pl.'s Resp.") ¶ 1.) Title 38 of the Rules of the City of New York ("R.C.N.Y.") §§ 19-01 through 19-04 establishes guidelines and procedures governing the New York City Police Department's ("NYPD") processing of permit applications. (Def.'s 56.1 ¶ 2; Pl.'s Resp. ¶ 2.)

In relevant part, these rules require that applications for "parade routes including any portion of Fifth Avenue in the borough of Manhattan . . . must be filed with the office of the Chief of [the New York City Police] Department." (38 R.C.N.Y. § 19-03.) No parade on Fifth Avenue will be permitted between 15th and 114th Streets, however, "unless the parade was held at that location prior to the promulgation of these rules." (38 R.C.N.Y. §§ 19-02(e), 19-04(d)(viii).) Participation in an unauthorized parade is punishable by "a fine of not more than twenty-five dollars, or by imprisonment for not exceeding ten days, or by both such fine and imprisonment." (N.Y.C. Admin. Code § 10-110(c).)

The City's parade rules were enacted in 2001 and amended in 2007 (Def.'s 56.1 ¶¶ 5, 27; Pl.'s Resp. ¶ 5, 27); they continue a municipal policy banning "new" Fifth Avenue parades first implemented in 1971 (Def.'s 56.1 ¶ 14; Pl.'s Resp. ¶ 14). Prior to that date, the number of Fifth Avenue parades grew from ten in 1955 to fifteen in 1965 to eighteen in 1969. (Def.'s 56.1 ¶ 13; Pl.'s Resp. ¶ 13.) These parades were also among the City's largest -- of the eighteen "major" parades held in the City in 1976, fifteen were conducted on Fifth Avenue. (Def.'s 56.1 ¶ 14; Pl.'s Resp. ¶ 14.) The prohibition of new Fifth Avenue parades was designed, according to the City, to relieve the "over-saturation" of these events in "one of the most congested sections of the City -- midtown Manhattan." (Def.'s 56.1 ¶¶ 15, 27; Pl.'s Resp. ¶ 27.) Since 1998, thirty-four groups have applied for and been denied permits to hold "new" parades on Fifth Avenue. (Def.'s 56.1 ¶ 22; Pl.'s Resp. ¶ 22.)

Fifth Avenue nevertheless remains a well-traveled parade route, providing, as noted, the forum for fifteen of the City's eighteen largest annual parades. (Def.'s 56.1 ¶¶ 17, 20; Pl.'s Resp. ¶¶ 17, 20.) These parades are clustered in the fall and spring, when the City's weather is most conducive to outdoor activities: three parades take place per month in June, September and October, and two per month in March and May. (Def.'s 56.1 ¶¶ 17, 20-21; Pl.'s Resp. ¶¶ 17, 20-21.) In addition to the large parades, several smaller events also occur on portions of Fifth Avenue throughout the year. (Def.'s 56.1 ¶ 19; Pl.'s Resp. ¶ 19.)

An exception to the ban on "new" Fifth Avenue parades is codified at section 10-110(a)(4), which authorizes the mayor to approve "[s]pecial permits for occasions of extraordinary public interest" allowing parades that are "not annual or customary" to occur on "any street or public place" in the city, including Fifth Avenue. Rule 19-01 defines "occasions of extraordinary public interest" as "celebrations organized by the City honoring the armed forces; sports achievements or championships; world leaders and extraordinary achievements of historic significance." Pursuant to this authority, the mayor permitted Fifth Avenue to be the site of the 2004 Olympic Torch Relay and a protest march against the Republican National Convention, also in 2004. (Def.'s 56.1 ¶ 26; Pl.'s Resp. ¶ 26.) In addition, the NYPD allowed a group called Shopping for Justice to march on Fifth Avenue without a permit in December 2006 (Def.'s 56.1 ¶ 24; Pl.'s Resp. ¶ 24), and a group of bicyclists known as Critical Mass were allowed to process along Fifth Avenue in October 2004 (Pl.'s 56.1 ¶ 13(c); Def.'s Resp. ¶ 13(c)).

B. IAC's Proposed Fifth Avenue March

Founded in 1992 to oppose the first Gulf War, IAC is an association that currently organizes demonstrations, marches and other events addressing political issues. (Pl.'s 56.1 ¶ 1; Def.'s Resp. ¶ 1; Am. Compl. ¶ 3.) Over the past nine years, IAC has conducted eleven parades in the City, all of which were authorized by permit and, in addition, it has held twenty-six demonstrations and rallies between 2003 and 2006. (Def.'s 56.1 ¶ 33; Pl.'s Resp. ¶ 33.) Indeed, IAC has never been prevented from holding a parade or rally, nor has it ever been sanctioned for parading without a permit. (Def.'s 56.1 ¶¶ 34-35; Pl.'s Resp. ¶¶ 34-35.) It has, however, been denied permission to march on Fifth Avenue multiple times. (Pl.'s 56.1 ¶ 10; Def.'s Resp. ¶ 10.) Specifically, in 2005, IAC -- in its capacity as a founder of the Troops Out Now Coalition -- requested a permit to march on Fifth Avenue between 110th and 102nd Streets in connection with a rally to be held in Central Park protesting the war in Iraq. (Pl.'s 56.1 ¶ 11; Def.'s Resp. ¶ 11.) Although the City denied it access to Fifth Avenue on the grounds that new Fifth Avenue parades were not permitted, it did allow IAC to march along an alternate route to reach its Central Park rally. (Pl.'s 56.1 ¶ 12; Def.'s Resp. ¶ 12.)


IAC has brought this action pursuant to 42 U.S.C. § 1983, alleging that the City's ban on new Fifth Avenue parades violates the First Amendment to the U.S. Constitution. At the commencement of the litigation, the City moved for summary judgment, contending that the Fifth Avenue ban is a valid time, place or manner restriction on the use of a public forum. IAC, in turn, sought leave to amend its complaint.

In a Memorandum Order dated December 26, 2006, this Court denied the City's motion on the ground that the record did not at that time support a finding that the regulation was narrowly tailored to serve a compelling government interest. Int'l Action Ctr. v. City of New York, No. 05 Civ. 2880, 2006 U.S. Dist. LEXIS 93387 (S.D.N.Y. Dec. 26, 2006). The Court granted IAC's request to amend its complaint, and IAC filed an amended complaint on January 22, 2007.

The amended complaint broadened IAC's First Amendment challenge to the Fifth Avenue ban and also challenged the putative strict criminal liability imposed on those who participate in an unauthorized parade. Following the conclusion of discovery proceedings, the parties now cross-move for summary judgment in their respective favors pursuant to Rule 56 of the Federal Rules of Civil Procedure.


A. Legal Standard

Summary judgment is appropriate only if the evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986); LaFond v. Gen. Physics Serv. Corp., 50 F.3d 165, 171 (2d Cir. 1995). When determining whether a genuine issue of material fact exists, the Court "is to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004); see also LaFond, 50 F.3d at 171.

Where, as here, both parties have moved for summary judgment, "each party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration." Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001) (citing Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 314 (2d Cir. 1981)).

B. The Ban on New Fifth Avenue Parades Is a Content-Neutral Regulation

Manhattan's Fifth Avenue, as all public roadways, is a traditional public forum for the expression of First Amendment rights. See Shuttlesworth v. Birmingham, 394 U.S. 147, 152, 89 S.Ct. 935, 22 L.Ed. 2d 162 (1969). As such, the City may regulate the public's access to and use of Fifth Avenue, so long as those regulations do not run afoul of Constitutional safeguards. See Johnson v. Bax, 63 F.3d 154, 158 (2d Cir. 1995). When regulations of public fora are based on expressive content, they are "presumptively invalid" and upheld "only if they withstand strict scrutiny." Mastrovincenzo v. City of New York, 435 F.3d 78, 98 (2d Cir. 2006). Regulations that are content-neutral, however, are subject to a less exacting standard of review. Id. Thus, as an initial matter the Court must determine whether the ban on new Fifth Avenue parades is a content-based or content-neutral regulation.

IAC contends that the Fifth Avenue parade policy is a content-based regulation because, by prohibiting any new parades on Fifth Avenue, it discriminates against "new" expression in favor of traditional expression. Under this theory, the regulations preserve Fifth Avenue for traditional, cultural parades and exclude new, more controversial expression from the forum. In response, the City maintains that its ban on new Fifth Avenue parades is content neutral because it applies equally to all proposed parades, irrespective of their expressive content. The ban exists, ...

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