Concerned Jewish Youth v. McGuire, No. 228

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore WATERMAN, MOORE and MANSFIELD; MOORE; MANSFIELD
Citation621 F.2d 471
Decision Date27 March 1980
Docket NumberD,No. 228
Parties6 Media L. Rep. 1085 CONCERNED JEWISH YOUTH, Plaintiff-Appellant, v. Robert J. McGUIRE, in his official capacity as Police Commissioner of the City of New York, Edward Koch, in his official capacity as Mayor of the City of New York, and the New York City Police Department, Defendants-Appellees. ocket 79-7456.

Page 471

621 F.2d 471
6 Media L. Rep. 1085
CONCERNED JEWISH YOUTH, Plaintiff-Appellant,
v.
Robert J. McGUIRE, in his official capacity as Police
Commissioner of the City of New York, Edward Koch, in his
official capacity as Mayor of the City of New York, and the
New York City Police Department, Defendants-Appellees.
No. 228, Docket 79-7456.
United States Court of Appeals,
Second Circuit.
Argued Dec. 7, 1979.
Decided March 27, 1980.

Page 472

Howard C. Buschman III, New York City (Willkie, Farr & Gallagher, John M. McEnany, Jeanne M. Luboja, New York City, of counsel), for plaintiff-appellant.

Pamela McGovern Gaskins, New York City (Allen G. Schwartz, Corp. Counsel of the City of New York, L. Kevin Sheridan, New York City, of counsel), for defendants-appellees.

Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City, Katherine J. Trager, Jane E. Bloom, Michael H. Dolinger, Asst. U. S. Attys., New York City, of counsel, on amicus curiae brief for the U. S.

Before WATERMAN, MOORE and MANSFIELD, Circuit Judges.

MOORE, Circuit Judge:

This appeal raises interesting questions of the extent to which the First Amendment rights of demonstrators may be subjugated to an overriding governmental interest. Appellant Concerned Jewish Youth ("CJY") sought a declaration under 42 U.S.C. § 1983 (1976) that restrictions applied to its demonstrations in front of the Russian Mission in New York City violated the First and Fourteenth Amendments. CJY also sought an order preliminarily enjoining the New York City police from restricting CJY's demonstrations. CJY now appeals from a judgment denying the motion for a preliminary injunction and dismissing the complaint (Honorable Milton Pollack, District Judge, Southern District of New York). Because no new evidence was to be adduced at trial, the District Court consolidated the hearing on the motion with the action on the merits and issued one decision disposing of both matters reported at 469 F.Supp. 1296.

CJY is a membership association founded in 1975 and headquartered at Queens College in Flushing, New York. The purposes of CJY are mainly to combat Anti-Semitism, to preserve and strengthen Judaic heritage, and to work for the causes of Soviet and Arab Jewry. The group has maintained its independence from what CJY has characterized as other violence-oriented Jewish groups such as the Jewish Defense League (JDL). (Tr. 6, 16, 74). Of the approximately 300 members of CJY, there are 50 to 70 active members. (Tr. 15). However, as one of the co-chairmen of CJY testified, about 10% of these active members are also members of JDL or other activist groups and presumably endorse the more militant methods those groups employ. (Tr. 15, 16).

The members of CJY sought to protest on the sidewalk in front of the Russian Mission to publicize and condemn the Soviet Union's treatment of Jews. The Russian Mission is on East 67th Street between Lexington and Third Avenues in the 19th police precinct in the City of New York. A co-chairman of CJY went to the 19th precinct in June, 1978 to apply for a permit to use sound equipment in front of the Mission. The Captain in charge, Mario Selvaggi, informed CJY that only twelve persons would be allowed to demonstrate in a "bull pen" diagonally across the street from the Mission. 1 Any additional demonstrators could protest on

Page 473

East 67th Street between Park and Lexington Avenues. (Tr. 23, 143). In addition, Captain Selvaggi informed CJY that no sound device would be allowed on East 67th Street between Third and Lexington Avenues (i. e., on the Mission block). Sound devices would only be permitted on the northeast corner of East 67th Street and Lexington Avenue. (Tr. 25, 44). The Captain referred to the "Dollinger" decision, which outlined various restrictions which would be put on demonstrations by certain groups in front of the Mission. 2 Although CJY was not a party to that action, Captain Selvaggi applied the rationale behind the Dollinger restrictions to CJY.

CJY held a demonstration at the Russian Mission in June, 1978. In accordance with Captain Selvaggi's instructions to CJY, only twelve persons were allowed inside the "bull pen", and they were not permitted to have a sound device. A few other demonstrators stayed off the Mission block, as they had been instructed to do. Another demonstration planned for January 5, 1979 was not held because CJY felt that the demonstration, like the previous one, would be "ineffective and unsuccessful". (Appellant's Br. 15).

CJY makes various First Amendment claims that will be bifurcated for the purpose of discussion. The first claim is that the restrictions on the location and number of demonstrators violate their rights under the First Amendment. The second is that the restrictions on the use of a sound device impair their freedom of speech. We find that the time, place and manner restrictions in this case are necessary to further a strong governmental interest, and affirm the holding of the District Court.

I.

The right to a public forum for the discussion and interplay of ideas is one of the foundations of our democracy. "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939).

However, the right to speak, assemble, and discuss is not absolute. Although the "government has no power to restrict such activity because of its message", Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972) (footnote omitted), it is "equally clear . . . that reasonable 'time, place and manner' regulations may be necessary to further significant governmental interests, and are permitted". Id. (footnote omitted). The Supreme Court recently stated "We have often approved restrictions (on time, place and manner) provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information". Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976). The balancing process which is required in these situations was best described by Justice Blackmun: "Although American constitutional jurisprudence, in the light of the First Amendment, has been jealous to preserve access to public places for purposes of free speech, the nature of the forum and the conflicting interests involved have remained important in determining the degree of protection afforded by the Amendment to the speech in question". Lehman v. City of Shaker Heights, 418 U.S. 298, 302-303, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974) (citations omitted).

Thus, once the restrictions are found to be content-neutral, and it is determined that alternative avenues of communication are available, the question becomes one of balancing, based on the nature of the

Page 474

forum, the governmental interest in enforcing the restrictions against the inhibitions the restrictions impose on the speech-related activity. See, e. g., L. Tribe, American Constitutional Law, 682-84 (1978). We are convinced that these contested restrictions are not directed at the content of the speech. No one has suggested, nor has any evidence been proffered, that there is or has been any attempt to suppress the expression of CJY's ideas merely because of what its members are saying.

There are easily accessible alternative channels for communication of CJY's ideas. These alternatives include the twelve persons in the "bull pen" and the open access to the overflow areas on Lexington Avenue and further west on 67th Street. We do not think that the First Amendment guarantees news publicity for speakers, nor does it guarantee the continued fervor of one's fellow demonstrators. 3

The question then comes down to one of balancing the interests involved. We appreciate that the rights granted by the First Amendment are important, but hold that the governmental interest in the protection of the Russian Mission and the residents of the area outweighs the comparatively minor restrictions placed on CJY.

The government interest in providing security, safety and silence may, at times, be superior to asserted First Amendment rights. A statute, ordinance or regulation which embodies these interests will be valid even though it infringes on purported constitutional guarantees. Thus, the government may properly restrict First Amendment rights associated with jails (all demonstrations, Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966)); schools (loud behavior may be excluded, Grayned v. City of Rockford, 408 U.S. 104, 121, 92 S.Ct. 2294, 2306, 33 L.Ed.2d 222 (1972)); courthouses (statute prohibiting picketing valid on its face, Cox v. Louisiana, 379 U.S. 559, 564, 85 S.Ct. 476, 480, 13 L.Ed.2d 487 (1965)); and military installations (political campaign appearances may be banned, Greer v. Spock, 424 U.S. 828, 838, 96 S.Ct. 1211, 1217, 47 L.Ed.2d 505 (1976)).

The United States and the New York City Police have a substantial interest in protecting foreign officials and their property. The New York City Police, pursuant to their mandate in § 435 of the New York City Charter, must "preserve the public peace, . . . (disperse) assemblages which obstruct the free passage of public streets, sidewalks, parks and places; (and) protect the rights of persons and property . . . ." This includes the members and property of a Foreign Mission.

The United States is charged by various international obligations to protect diplomatic personnel and has recognized its obligation statutorily. See, e. g., Article 22(2) of the 1961 Vienna Convention on Diplomatic Relations,...

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36 practice notes
  • INTERN. SOC. FOR KRISHNA, ETC. v. Barber, No. 77 CV 328.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • 25 Agosto 1980
    ...84 L.Ed. 1213 (1940); Schneider v. State, 308 U.S. 147, 160-61, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939); Concerned Jewish Youth v. McGuine, 621 F.2d 471 (2d Cir. 1980); Tribe, American Constitutional Law 506 F. Supp. 165 687 (1979). The balancing process which must be applied in these situat......
  • Finzer v. Barry, No. 84-5327
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 9 Septiembre 1986
    ...speech in the vicinity of embassies and missions. CISPES v. FBI, 770 F.2d 468, 472-75 (5th Cir.1985); Concerned Jewish Youth v. McGuire, 621 F.2d 471, 474-76 (2d Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1352, 67 L.Ed.2d 337 (1981). But the majority and I agree that the security inte......
  • Bering v. Share, No. 51533-6
    • United States
    • United States State Supreme Court of Washington
    • 19 Junio 1986
    ...1335, 20 L.Ed.2d 182 (1968); Pickens v. Okolona Mun. Separate Sch. Dist., 594 F.2d 433 (5th Cir.1979); Concerned Jewish Youth v. McGuire, 621 F.2d 471 (2d Cir.1980). I would go no DORE, Justice (dissenting). I would hold that the place and content restrictions in the permanent injunction, o......
  • Pro-Choice Network of Western New York v. Schenck, PRO-CHOICE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 28 Septiembre 1995
    ...effectiveness of any demonstration depends on its proximity to the target and the relevant audience." Concerned Jewish Youth v. McGuire, 621 F.2d 471, 482 Page 404 (2d Cir.1980) (Mansfield, J., dissenting), cert. denied, 450 U.S. 913, 101 S.Ct. 1352, 67 L.Ed.2d 337 (1981). Accordingly, on t......
  • Request a trial to view additional results
36 cases
  • INTERN. SOC. FOR KRISHNA, ETC. v. Barber, No. 77 CV 328.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • 25 Agosto 1980
    ...84 L.Ed. 1213 (1940); Schneider v. State, 308 U.S. 147, 160-61, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939); Concerned Jewish Youth v. McGuine, 621 F.2d 471 (2d Cir. 1980); Tribe, American Constitutional Law 506 F. Supp. 165 687 (1979). The balancing process which must be applied in these situat......
  • Finzer v. Barry, No. 84-5327
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 9 Septiembre 1986
    ...speech in the vicinity of embassies and missions. CISPES v. FBI, 770 F.2d 468, 472-75 (5th Cir.1985); Concerned Jewish Youth v. McGuire, 621 F.2d 471, 474-76 (2d Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1352, 67 L.Ed.2d 337 (1981). But the majority and I agree that the security inte......
  • Bering v. Share, No. 51533-6
    • United States
    • United States State Supreme Court of Washington
    • 19 Junio 1986
    ...1335, 20 L.Ed.2d 182 (1968); Pickens v. Okolona Mun. Separate Sch. Dist., 594 F.2d 433 (5th Cir.1979); Concerned Jewish Youth v. McGuire, 621 F.2d 471 (2d Cir.1980). I would go no DORE, Justice (dissenting). I would hold that the place and content restrictions in the permanent injunction, o......
  • Davis v. Stratton, No. 1:06-CV-1323 (LEK/DRH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • 9 Septiembre 2008
    ...Nature of the forum The right to a public forum for expression of ideas is fundamental to a democracy. Concerned Jewish Youth v. McGuire, 621 F.2d 471, 473 (2d Cir.1980). However, "[t]he existence of a right of access to public property" for the purpose of speaking there and "the standard b......
  • Request a trial to view additional results

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