Deferio v. City of Syracuse
Decision Date | 31 January 2018 |
Docket Number | 5:16–CV–0361 (LEK/TWD) |
Citation | 306 F.Supp.3d 492 |
Parties | James DEFERIO, Plaintiff, v. CITY OF SYRACUSE, et al., Defendants. |
Court | U.S. District Court — Northern District of New York |
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.
"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) ). 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 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).
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.
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, 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").
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.
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.
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 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 () 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 anti-gay sign, standing in the middle of the sidewalk, upsetting people." Locastro Depo. at 20. Under the threat of arrest, Plaintiff left his position on the north side of the street and remained on the south side of the street for approximately four hours. Locastro Aff. ¶ 17–19. Plaintiff was not arrested. Id. at 17.
Following the 2014 Pride Event, Plaintiff contacted relevant City officials through his attorneys to express concern about the permit issued to CNY Pride and Sergeant Locastro's actions. The first letter, dated September 5, 2014, sought, inter alia , "written assurance that Syracuse will no longer apply the ban on [Plaintiff's] expression on public sidewalks during future Pride parades and festivals." Dkt. No. 116–8 ("Plaintiff's First Letter") at 5. On October 24, 2014, Joseph Doyle, Syracuse's Corporation Counsel, replied to the letter, stating that "the City will closely review the geographic aspects of similar future permit applications as they relate to locations of traditional public fora," and "the City of...
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