Deferio v. City of Syracuse, 5:16–CV–0361 (LEK/TWD)

• Court: United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
• Writing for the Court: Lawrence E. Kahn, U.S. District Judge
• Citation: 306 F.Supp.3d 492
• Parties: James DEFERIO, Plaintiff, v. CITY OF SYRACUSE, et al., Defendants.
• Decision Date: 31 January 2018
• Docket Number: 5:16–CV–0361 (LEK/TWD)

306 F.Supp.3d 492

James DEFERIO, Plaintiff,
v.
CITY OF SYRACUSE, et al., Defendants.

5:16–CV–0361 (LEK/TWD)

United States District Court, N.D. New York.

Signed January 31, 2018

306 F.Supp.3d 498

Nathan W. Kellum, Mark A. Mangini, Center for Religious Expression, Memphis, TN, Robert E. Genant, Office of Robert E. Genant, Mexico, NY, for Plaintiff.

Todd M. Long, Amanda R. Harrington, City of Syracuse Corporation Counsel, Syracuse, NY, for Defendants.

MEMORANDUM–DECISION AND ORDER

Lawrence E. Kahn, U.S. District Judge

I. INTRODUCTION

"The First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’ " Snyder v. Phelps, 562 U.S. 443, 452, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ). "The First Amendment offers sweeping protection that allows all manner of speech to enter the marketplace of ideas. This protection applies to loathsome and unpopular speech with the same force as it does to speech that is celebrated and widely accepted." Bible Believers v. Wayne County, 805 F.3d 228, 243 (6th Cir. 2015) (collecting cases), cert. denied, ––– U.S. ––––, 136 S.Ct. 2013, 195 L.Ed.2d 216 (2016). "First Amendment jurisprudence is clear that the way to oppose offensive speech is by more speech, not censorship, enforced silence or eviction from legitimately occupied public space." Gathright v. City of Portland, 439 F.3d 573, 578 (9th Cir. 2006) (citing

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Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949) ).

These principles are by no means new. E.g., Whitney v. California, 274 U.S. 357, 375–376, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). Yet they are strangely absent from the papers submitted by Defendants in defense of their actions toward plaintiff James Deferio, a Christian evangelical who regularly proselytizes at the Central New York Pride Parade and Festival ("Pride Event"). This annual event, which is free and open to the public, attracts thousands of attendees each year who wish to celebrate the lesbian, gay, bisexual, and transgender ("LGBT") community and its allies in Central New York. Like many similar events across the country, however, it also attracts attendees who wish to communicate messages to LGBT individuals and their allies that are controversial and may be hurtful. But "[t]he right to free speech ... may not be curtailed simply because the speaker's message may be offensive to his audience." Hill v. Colorado, 530 U.S. 703, 716, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000).

While the dispute in this case may seem parochial—defendants Sergeant Jamey Locastro and Captain Joseph Sweeny forced Plaintiff to move approximately forty feet from the north to the south side of West Kirkpatrick Street—the issues presented here affect the heart of the First Amendment's purpose. As the Supreme Court recently stated,

Even today, [public streets and sidewalks] remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out.

McCullen v. Coakley, ––– U.S. ––––, 134 S.Ct. 2518, 2528–29, 189 L.Ed.2d 502 (2014).

This Memorandum–Decision and Order affirms the importance of public sidewalks in the development of the marketplace of ideas and reminds state actors of the requirements they must meet in order to place restrictions on individuals' right to speak from traditional public fora.

II. BACKGROUND

A. Relevant Facts

Plaintiff is a Christian evangelist who regularly attempts to share his religious beliefs in public during large events. Dkt. No. 116–25 ("Plaintiff's Statement of Material Facts") ¶¶ 1, 4. He is a resident of the City of Syracuse, New York, Dkt. No. 109–10 ("Deferio Deposition") at 11, and, since 2004, he has attended the Central New York Pride Parade and Festival in Syracuse almost every year, id. at 88. The event is organized by CNY Pride, Inc., a private nonprofit organization, Pl.'s SMF ¶ 13, and CNY Pride receives a special events permit from the City in order to host the event each June, id. ¶ 23. The event is free and open to the public. Dkt. No. 109–6 ("Locastro Deposition") at 9; Dkt. No. 109–2 ("Shepard Deposition") at 13, 37; Dkt. No. 109–3 ("Gewanter Deposition") at 10.

Since 2012, the Pride Event has taken place in Syracuse's Inner Harbor neighborhood. Pl.'s SMF ¶¶ 14–18. Although its route has varied because of road construction,

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Shepard Depo. at 14, the Pride Parade has generally begun at the corner of Belden and Plum Streets, traversed north along Van Rensselaer Street, and ended on the West Kirkpatrick Street, which forms the southern border of Inner Harbor Park, Dkt. No. 109–2, Ex. 2 ("2014 Parade Permit"). Inner Harbor Park is public property managed by the Syracuse Parks Department, and the Pride Festival takes place following the Parade at the Inner Harbor Amphitheater inside the park. Shepard Depo. at 14, 37. Plaintiff has chosen to proselytize from the public sidewalk on the north side of West Kirkpatrick Street, adjacent to the driveway entering Inner Harbor Park, during the Pride Parade and Festivals because of the large number of people at that location during the event. Pl.'s SMF ¶ 12; see also Dkt. No. 109–6, Ex. 2 ("Map").

1. 2014 Pride Event

The 2014 Pride Event took place on June 21, 2014. Prior to the event, CNY Pride applied for a "Parade/Public Assembly Permit." See 2014 Permit. The first substantive section of the permit is entitled "Parade Application," and CNY Pride provides formation and dispersal locations, start and finish times, and estimated number of participants. Id. In the second substantive section, entitled "Public Assembly Location," the "Location(s) of Assembly" are described as "sidewalks bordering Kirkpatrick Street @ Inner Harbor Park for security." Id. In response to the prompt, "Sound System," CNY Pride answered "N/A," and, in response to the prompt "Speakers, names," it answered, "No speakers @ sidewalks." Id. The City granted the permit application without modification. Pl.'s SMF ¶ 43.

Sergeant Locastro was assigned to supervise the police officers at the 2014 Pride Event. Locastro Depo. at 7–8. Prior to the event, he reviewed the 2014 Permit. Id. at 15. When the parade concluded, Locastro was called to the intersection of West Kirkpatrick Street and the driveway into Inner Harbor Park. Id. at 10. At that time, Plaintiff was standing on the sidewalk along the north side of West Kirkpatrick Street, holding a sign that said,

WARNING: Do you not know that the unrighteous shall inherit the Kingdom of God? Do not be deceived; neither fornicators, nor idolators, nor adulterers, nor homosexuals, nor sodomites, nor thieves, nor covetous, nor drunkards, nor revilers, nor extortioners shall inherit the Kingdom of God. 1 Corinthians 6:9–10.

Dkt. No. 109–20 ("Locastro Affidavit"), Ex. 2. Plaintiff also had a sound amplification device, and Sergeant Locastro was told that Plaintiff had used "inflammatory" words prior to Locastro's arrival. Locastro Depo. at 10. When Locastro arrived, "five or six different festivalgoers ... were trying to get at" Plaintiff. Id. at 11.

Sergeant Locastro told Plaintiff that he was "in violation of the permit that the parade has, sir," Dkt. No. 109, Ex. T at 00:07–00:08, and that Plaintiff would be required to move to the south side of West Kirkpatrick Street, Locastro Depo. at 18. In his deposition, Locastro provided two reasons for requiring Plaintiff to move across the street, under the threat of arrest:

It was a two-fold reason. Firstly, it was that he was in violation of the permit. Where he was ... standing, he's not allowed to be there based on the way that I interpreted the way the permit was written.... Secondly, and almost what I want to say was equally as important to me, was for his safety.... Where he was standing, there were people there actively trying to get at him. I was concerned for his safety because he, very impressively, stands his ground.

Id. at 17–18.

More specifically, Locastro understood the sidewalk on the north side of West Kirkpatrick Street to be part of CNY Pride's permitted area, and so CNY Pride

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could "sort of control what they want going in the festival and what they don't." Id. at 19; see also Dkt. No. 109, Ex. U at 01:33–01:40 ("[CNY Pride] could close the sidewalk to anyone they view as a protester. So someone similar to [Plaintiff].") When asked what distinguished Plaintiff from the hundreds of other people who were standing or walking on the north side of West Kirkpatrick Street, Sergeant Locastro said, "Nobody else was holding a large...