Hobbs v. County of Westchester

• Decision Date: 07 February 2005
• Docket Number: No. 03-7985.,03-7985.
• Citation: 397 F.3d 133
• Parties: Richard P. HOBBS, Plaintiff-Appellant, v. COUNTY OF WESTCHESTER and Mr. Montalto, Director of Playland Amusement Park, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

397 F.3d 133

Richard P. HOBBS, Plaintiff-Appellant, v. COUNTY OF WESTCHESTER and Mr. Montalto, Director of Playland Amusement Park, Defendants-Appellees.

No. 03-7985.

United States Court of Appeals, Second Circuit.

Argued: April 12, 2004.

Decided: February 7, 2005.

COPYRIGHT MATERIAL OMITTED

Thomas H. Sear, New York, New York (Howard F. Sidman, Alexander S. Bokor, Jones Day, New York, New York, on the brief), for Plaintiff-Appellant.

Gary Silverman, New York, New York (O'Dwyer & Bernstein, New York, New York, on the brief) for Defendants-Appellees.

Before: NEWMAN, KEARSE, and SOTOMAYOR, Circuit Judges.

Judge NEWMAN concurs in the majority opinion and in a separate concurring opinion.

KEARSE, Circuit Judge.

Plaintiff Richard P. Hobbs appeals from so much of a judgment of the United States District Court for the Southern District of New York, then-Judge John S. Martin, Jr., as upheld the constitutionality of a provision in an executive order of defendant Westchester County (the "County") prohibiting the issuance of a permit for solicitation, performance, or demonstration in a public forum to a person previously convicted of a sexual offense against a minor if the effect of the solicitation, performance, or demonstration would be to entice a child to congregate around that person, see Westchester County, N.Y., Laws of Westchester County, Executive Order No. 3-2003 ("Westchester County Executive Order No. 3-2003" or "Executive Order 3-2003"), § VI, para. 2 (2003). The district court held, inter alia, that the prohibition is a content-based restriction on speech but that it does not violate the First Amendment because it is narrowly tailored to the compelling state interest of protecting children from sexual predators. On appeal, Hobbs contends principally (a) that the prohibition is not narrowly tailored and hence violates the First Amendment both on its face and as applied to him, and (b) that the prohibition's automatic disqualification of convicted sex offenders against minors from eligibility for permits violates the Ex Post Facto Clause. The County argues that the decision of the district court may be upheld on the grounds, inter alia, that the prohibition is content-neutral and nonpunitive. For the reasons that follow, we affirm.

I. BACKGROUND

Playland Park ("Playland") is a 279-acre recreational complex in Rye, New York, owned and operated by the County. The complex comprises (a) a pool, picnic areas and shelters, a miniature golf course, a beach, a boardwalk, a lake, an ice-skating rink, a museum, and a pier, and (b) in a separate walled-in area, an amusement section featuring rides, games, and concession stands. Entrance to the amusement park section is free, but there are charges for the rides, games, and concessions.

Hobbs describes himself as "a busker, a street performer, a balloon sculptor, an artist, a musician, a comedian, and public political speaker." (Complaint at 1.) See also Webster's Third New International Dictionary 303 (1976) (defining "busker" as "an itinerant entertainer"). This action involves Hobbs's desire to busk at Playland.

A. Hobbs's First Application, Denied Based on County General Ordinance Number 2

In a letter dated May 22, 2000, Hobbs wrote to defendant Joseph Montalto, Director of Playland, to "apply for whatever `permit'" would be required, "if any," for Hobbs to "sit on a bench (or [his] own chair) along a popularly traveled promenade at Playland, and perform [his] act and create balloon sculptures in the free exercise of ... free speech." (Letter from Hobbs to Montalto dated May 22, 2000 ("Hobbs Letter"), at 1.) The Hobbs Letter stated that Hobbs was

an artist who performs a comical act and creates sculptures with Balloons. Members of the public hear my message and often support my artistic expression. Often when they do I give them my balloon sculptures. At other times, persons who value my sculptures offer me money for them, which I accept. These are activities that the courts have said are legal and do not constitute a commercial transaction that may be regulated by the government.

(Id.)

By letter dated May 26, 2000, Montalto denied Hobbs's request, viewing the Hobbs Letter as an application for a permit to allow soliciting. Montalto stated that Playland is not a public forum but an amusement facility operated by the County in its proprietary capacity; in that capacity, the County had authority "to adopt restrictive regulations on speech which are reasonable and not calculated to suppress expression because of disagreement with the speaker's view." (Letter from Montalto to Hobbs dated May 26, 2000 ("First County Letter"), at 1.) The letter stated that the County's

General Ordinance Number 2, governing the use of County property provides in entirely neutral terms that: "No person shall solicit alms, subscriptions or contributions for any purpose." Laws of Westchester County, Section 712.51.

(First County Letter at 1.) This letter also stated that Playland had retained "strolling performers and puppeteers (who do not solicit contributions) to entertain its patrons," and that "[n]o other such performances are authorized at Playland." (Id.) The letter indicated that the Ordinance would be "vigorously enforced" against Hobbs. (Id.)

B. The Present Action

In an August 9, 2000 pro se complaint, Hobbs commenced the present action, alleging that the County's denial of his permit request violated his rights under the First Amendment, inter alia, and principally requesting declaratory relief and "an injunction against the Westchester County Police preventing them from arresting Plaintiff for doing street performing at Playland Park" (Complaint at 2 (emphasis in original)), so that he might "perform his balloon sculpturing and comedy routines to entertain passers-by as a busker along a public way" (id. at 3). Hobbs later also sought compensatory and punitive damages.

In describing Hobbs's busking act, the complaint alleges, inter alia, that Hobbs is a performer who "gives his entertainment to the public and presents his message to them for the public to enjoy" and that "[t]he messages often have political value, and or social value" (id. at 6). Hobbs's political message "comment[s] on government inefficiency. He is criticizing the Government. He is criticizing the daffiness of some civil servant controlled governmental processes. His message is political and critical of the government." (Id. at 12 (emphasis in original).) Hobbs

is amongst other things commemorating the historic event where George Washington and his troops were wintering at Valley Forge. Washington sent a request to congress then in York, Pa. They needed help but not money. Send him shoes, food, and supplies. The congress responded by blindly sending him money. It was of no help because the British had bought up everything in the area that might be needed for their troops. This speaks of how ridiculous things can get in our society from the indifference our form of government often allows.

(Id. at 13-14.)

The complaint alleges that Hobbs dresses almost like a homeless person (see id. at 13) and "keeps the `homeless look' because it is also necessary to remind Americans on vacation enjoying the best of worlds that there are still those suffering homeless Americans out there. Some are veterans." (Id. at 14.) He also "promotes good will and honesty and obedience to parents and other valuable messages. He promotes diversity and universal acceptance of others. He discourages prejudice and pride...." (Id. at 23.)

Hobbs alleges that "[t]he balloon is a tool through which he conveys his message" (id. at 13), and that his performance is particularly attractive to children (see id. at 12-15). His act is

a very unique form of interactive, improvisational comedy. It is art, which is created, in the very presence of the audience. The audience becomes a part of the show and the art. His particular form of this art requires a very specific type of audience. The performer-artist must mold and shape the dynamic audience and lead them into participating.

(Id. at 8 (emphasis in original).) Hobbs

tells the children he is an expert with balloons. Then he tries to blow it up from the wrong side. The Children often realize his dilemma and try to offer suggestions to him about how he might be more successful. They try to tell him to blow the balloon up on the other end. The more helpful they are to him the more he misunderstands them and the more ridiculous are his attempts to accomplish his task. The more they help him the worse it all gets. This eventually starts the children laughing. That in turn usually gets the adults laughing.

(Id. at 12.) The balloon

helps attract his audience and helps him relate to them. It creates a tie between those watching him and the artist. Now the artist would have to be a heel to have engaged the audience so greatly in the attempt to make the balloon sculpture and then just pop it or throw it away. Naturally the Balloon artist gives the balloon to a child.

(Id. at 13.)

The complaint also alleges that Hobbs's appearance repels adults but attracts children (see id. at 14). "Many parents gawk at [Hobbs] and try to avoid him," but

[s]ome of the children think he might be "Santa Clause" [sic] in disguise. The children often and some adults see the artist in him and look for something unusual and entertaining to happen. The children often looking from their hearts and imaginations recognize the gentle nature of this person. The children interact with him and try to help him.

(Id.) Further, the children's attraction to Hobbs is enduring:

Very many times parents come back the next day (when Plaintiff is in a tourist area where families have gone for a week vacation) and the parents come to the Plaintiff and apologize. They say "Gee. We did not think much of you or your antics. We were leery of you. But we now realize that you must be a really good artist. The only thing our...