209 F.3d 67 (2nd Cir. 2000), 99-7823, Tunick v Safir

Docket Nº:Docket No. 99-7823
Citation:209 F.3d 67
Party Name:SPENCER TUNICK, Plaintiff-Appellee, v. HOWARD SAFIR, in his official capacity as the Police Commissioner of the City of New York, and the CITY OF NEW YORK, Defendants-Appellants.
Case Date:March 24, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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209 F.3d 67 (2nd Cir. 2000)

SPENCER TUNICK, Plaintiff-Appellee,

v.

HOWARD SAFIR, in his official capacity as the Police Commissioner of the City of New York, and the CITY OF NEW YORK, Defendants-Appellants.

Docket No. 99-7823

United States Court of Appeals, Second Circuit

March 24, 2000

Argued: September 13, 1999

Dissent Filed: April 13, 2000.

Defendants Howard Safir and the City of New York appeal from the grant of a preliminary injunction prohibiting them from interfering with plaintiff Spencer Tunick's proposed photo shoot of 75 to 100 nude models arranged in an abstract formation. The photographs are to be taken between 5:30 and 6:30 a.m. on a Sunday morning in a residential Manhattan neighborhood. Defendants contend that they cannot permit the photo shoot to proceed because New York state law criminalizes public nudity. Plaintiff maintains that the state law (1) does not prohibit his proposed photo shoot and (2) would be unconstitutional if it did.

Questions certified to New York Court of Appeals.

Judge Sack concurs in the result in a separate opinion.

Judge Van Graafeiland does not join either the opinion of Judge Calabresi or of Judge Sack, nor does he concur in the result.

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RONALD L. KUBY, New York, NY (Daniel M. Perez, Law Offices of Ronald L. Kuby, Arthur Eisenberg, Norman Siegel, Christopher Dunn, New York Civil Liberties Union Foundation, on the brief), for Plaintiff-Appellees.

STEPHEN J. McGRATH, Deputy Chief, Appeals Division, Corporation Counsel of the city of New York, New York, NY (Michael D. Hess, Corporation Counsel of the City of New York, Leonard Koerner, Alan Beckof, of counsel, on the brief), for Defendants-Appellants.

Before: VAN GRAAFEILAND, CALABRESI, and SACK, Circuit Judges.

CALABRESI, Circuit Judge:

Defendants Howard Safir, in his official capacity as the Police Commissioner of the City of New York, and the City of New York (collectively "the City") appeal from the grant of a preliminary injunction by the United States District Court for the Southern District of New York (Harold Baer, Jr., Judge). The district court prohibited the City from interfering with a proposed photo shoot of 75 to 100 nude models arranged in an abstract formation, to be conducted by plaintiff Spencer Tunick on Sunday, July 18, 1999, between 5:30 a.m. and 6:30 a.m. in a residential Manhattan neighborhood. The City contends that the injunction must fall, because New York state law prohibits public nudity, see N.Y. Pen. Law § 245.01 (McKinney 1989), and the promotion thereof, see id. § 245.02, and because the exemption1 contained within the Penal Law does not apply to plaintiff's proposed photo shoot.

On July 17, 1999, a three-judge panel of this court stayed the preliminary injunction and calendared this appeal for expedited review. On consideration of the briefs, appendix, record, and oral argument, we have concluded that we should certify the following questions to the New York Court of Appeals: (1) whether a photographic shoot involving 75 to 100 nude models arranged in an abstract formation on a public street constitutes entertainment or performance in a "play, exhibition, show or entertainment" within the meaning of the exemption to N.Y. Pen. Law § 245.01 and §245.02; (2) if the answer

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to the first question is yes, whether the exemption to N.Y. Pen. Law § 245.01 and §245.02 is limited to indoor activities; and (3) if the answer to the first question is no, or if the answers to the first and second questions are both yes, whether N.Y. Pen. Law §245.01 and §245.02, so interpreted, are valid under the Constitution of the State of New York.

BACKGROUND

Plaintiff Spencer Tunick is an artist internationally recognized for his photographs of nude bodies in public space. His curriculum vitae includes a long and impressive list of solo and group exhibitions. He has orchestrated numerous nude photo shoots in Manhattan without a permit from the City.2 As a result of these actions, he has been arrested on five occasions. Charges in all of those cases were ultimately dismissed. Tunick obtained a permit from the City for a recent photo shoot involving clothed models, to take place on June 6, 1999. Police were present, and they made clear that anyone who disrobed would be arrested. The models remained clothed, and the photo shoot proceeded.

In July 1999, Tunick applied to the City for two permits to conduct a photo shoot on Madison Street, between Catherine and Market Streets, from 5:30 a.m. to 6:30 a.m. on Sunday, July 18, 1999. The neighborhood is predominantly residential. The applications indicated that 75 to 100 nude models were to be arranged in an abstract formation and that the duration of the actual shoot would be no more than five minutes. The conditions described in the two permit applications were identical, except in one regard. In the first, the models would be nude; in the second, clothed. The City denied permission for the nude photo shoot but granted the permit for the clothed shoot.

Plaintiff filed this complaint on July 13, 1999. Alleging that he had been arrested for arranging nude photo shoots in the past, that the City had prevented him from photographing nude models on June 6, 1999, and that the City was likely to interfere with the planned photo shoot on July 18, 1999 if the models were nude, he claimed that defendants violated his rights under, inter alia, the First Amendment. He asserted that his artistic expression was constitutionally protected and emphasized that, although New York state law criminalizes public nudity, the proposed photo shoot fell under the statutory exemption for "a play, exhibition, show or entertainment." N.Y. Pen. Law §§ 245.01, 245.02. Tunick sought preliminary and permanent injunctive relief. On July 16, 1999, the district court granted a preliminary injunction prohibiting the City from interfering with the nude photo shoot on Sunday, July 18, 1999, as described in the permit application. The court below found that plaintiff had established a substantial likelihood of success on the merits of his claim both because nude photography was constitutionally protected artistic expression and because it fell under the exemption to § 245.01 and §245.02.3

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DISCUSSION

I.

We review a district court's grant of a preliminary injunction for abuse of discretion. See Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 68 (2d Cir. 1999). Because this case involves First Amendment rights, this Court must make an independent examination of the record as a whole, and cannot defer to the factual findings of the court below. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984).

In order to obtain a preliminary injunction, a party must establish 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. See Otokoyama Co. v. Wine of Japan Import, Inc., 175 F.3d 266, 270 (2d Cir. 1999). In this case, however, plaintiff seeks a mandatory injunction, that is, he asks to "stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme." Bery v. City of New York, 97 F.3d 689, 694 (2d Cir. 1996) (quoting Plaza Health Lab., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989)) (internal quotation marks omitted), cert. denied, 520 U.S. 1251 (1997). He therefore must satisfy "the more rigorous likelihood-of-success standard." Id. In other words, Tunick must establish a clear or substantial likelihood of success on the merits. See Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 34 (2d Cir. 1995).

Because violations of First Amendment rights are presumed irreparable, see Elrod v. Burns, 427 U.S. 347, 373 (1976), "the very nature of [plaintiff's] allegations" satisfies the requirement that he show irreparable injury. Bery, 97 F.3d at 694. The only issue in this case, therefore, is whether Tunick has established a clear or substantial likelihood of success on the merits.

II.

Although this case initially arose out of plaintiff's application for a photography permit from the City, it now turns entirely on the prohibition against public nudity contained in New York state law, and not on the City's licensing regime.4 The injunction issued by the district court prohibited the City from interfering with the proposed photo shoot; it did not require the City to issue Tunick a permit. Perhaps because of this, the City makes no defense of its permitting scheme. More importantly, the City has repeatedly and expressly abandoned any argument based on its possible right to impose time, place, or manner restrictions on the shoot.

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The City's limited position in this court has instead been that it cannot permit the photo shoot to proceed (i.e., that it must interfere with the shoot by arresting Tunick and the models) because the state law prohibiting public nudity bars nudity of the sort proposed by plaintiff. Specifically, the City maintains that the exemption to the ban on public nudity applies only to "performances or exhibitions that [take] place indoors before audiences." Appellant's Brief at 14. Because, the City contends, the photo shoot is not a performance or exhibition of the kind contemplated by the statute's exemption and because it is not scheduled to occur indoors, Tunick's activity falls squarely within the statute's proscription.5

The City, however, has cited no decision in support of its narrow interpretation of the statutory exemption, and this court has found only one case, by a municipal court, that appears to have interpreted the statute in the manner suggested by the City....

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