Hotel & Rest. Employees Union v. Ny Dept. of Parks

• Decision Date: 18 November 2002
• Docket Number: Docket No. 01-7602.
• Citation: 311 F.3d 534
• Parties: HOTEL EMPLOYEES & RESTAURANT EMPLOYEES UNION, LOCAL 100 OF NEW YORK, N.Y. & VICINITY, AFL-CIO, Henry J. Tamarin, as President and Dennis Diaz, as agent thereof, Plaintiffs-Appellants, v. CITY OF NEW YORK DEPARTMENT OF PARKS & RECREATION, Henry J. Stern, as Commissioner, Robert Lawson, as Director of Special Events for Manhattan, Lincoln Center For The Performing Arts, Inc., as agent thereof, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

311 F.3d 534

HOTEL EMPLOYEES & RESTAURANT EMPLOYEES UNION, LOCAL 100 OF NEW YORK, N.Y. & VICINITY, AFL-CIO, Henry J. Tamarin, as President and Dennis Diaz, as agent thereof, Plaintiffs-Appellants, v. CITY OF NEW YORK DEPARTMENT OF PARKS & RECREATION, Henry J. Stern, as Commissioner, Robert Lawson, as Director of Special Events for Manhattan, Lincoln Center For The Performing Arts, Inc., as agent thereof, Defendants-Appellees.

Docket No. 01-7602.

United States Court of Appeals, Second Circuit.

Argued July 17, 2002.

Decided November 18, 2002.

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Michael T. Anderson, Davis, Cowell & Bowe, Boston, MA (Jamin R. Sewell, Office of the Counsel, Local 100, H.E.R.E., AFL-CIO, New York, NY, on the brief), for Plaintiffs-Appellants.

Kathleen Alberton, for Michael D. Hess, Corporation Counsel of the City of New York, Brooklyn, NY (Larry Sonnenshein, of counsel), for Defendant-Appellee City of New York Department of Parks & Recreation, et. al.

Charles S. Sims, Proskauer Rose L.L.P., New York, NY (Stefanie S. Kraus, on the brief), for Defendant-Appellee Lincoln Center for the Performing Arts, Inc.

Christopher Dunn, New York Civil Liberties Union Foundation, New York, NY (Arthur Eisenberg, on the brief) and Mark Lopez, American Civil Liberties Union Foundation, New York, NY, for amici curiae New York Civil Liberties Union Foundation and American Civil Liberties Union Foundation.

Before: CABRANES, STRAUB, and SOTOMAYOR, Circuit Judges.

STRAUB, Circuit Judge.

Plaintiffs-Appellants Hotel Employees & Restaurant Employees Union, Local 100, AFL-CIO, Henry J. Tamarin, President, and Dennis Diaz, as agent thereof (collectively "the Union") appeal from a judgment entered by the United States District Court for the Southern District of New York (Kevin Thomas Duffy, Judge) granting summary judgment in favor of Defendants-Appellees City of New York Department of Parks & Recreation, Henry Stern, Commissioner, and Robert Lawson, Director of Special Events for Manhattan (collectively "Parks Department" or "the City") and Defendant-Appellee Lincoln Center for the Performing Arts, Inc. ("Lincoln Center, Inc."), a not-for-profit corporation. The Union brings a First Amendment challenge to Lincoln Center, Inc.'s policy limiting organized public expression in the City-owned fountain plaza, known as Josie Robertson Plaza ("the Plaza"), which is located at the center of the Lincoln Center performing arts complex in Manhattan. Pursuant to its stated policy, Lincoln Center, Inc. limits expression in the Plaza to events having an artistic or performance-related component, resulting in a prohibition on political rallies, demonstrations, and leafletting. The Union challenges the policy both on its face and as applied to its proposed actions. We hold that the Plaza is not a traditional public forum and that Lincoln Center, Inc.'s policy, and therefore its application to the Union's proposed activities, is constitutionally permissible because it is both viewpoint neutral and reasonable. Accordingly, we affirm.

BACKGROUND

I. FACTS

A. Lincoln Center

The Lincoln Center performing arts complex is located on the Upper West Side of Manhattan. The Plaza, which is situated adjacent to Columbus Avenue between West 62nd and West 65th Streets, is an outdoor square that serves as the centerpiece of the Lincoln Center complex. The Plaza is bounded by Avery Fisher Hall on the north, the Metropolitan Opera House on the west, the New York State Theater on the south, and Columbus Avenue on the east. The Vivian Beaumont Theater, the New York Public Library for the Performing Arts, and the Juilliard School are located farther north and west in the complex. A fountain is situated in the Plaza's center, and public access to the Plaza is unrestricted. While the Plaza opens onto Columbus Avenue and is reached by climbing a flight of stairs, public entranceways also connect to the Plaza from the sidewalks surrounding Lincoln Center, which facilitate access to the Plaza and its surrounding buildings and permit pedestrians to cross the Plaza en route to other destinations in the neighborhood. See generally Edgar B. Young, Lincoln Center: The Building of an Institution 140-41, 183, 250, 261 (1980) (hereinafter Young, Lincoln Center) (featuring descriptions, maps, and photographs of the Plaza); see also Appendix (containing diagram of Lincoln Center complex reproduced in Young, Lincoln Center, at 141).¹

The Lincoln Center complex was conceived as part of an urban renewal project in the 1950s, pursuant to which the City of New York condemned the land upon which Lincoln Center now stands and entered into plans with the Metropolitan Opera and the New York Philharmonic to construct an arts and education center. See Young, Lincoln Center, at 15-16, 35-37. The land was initially purchased by Lincoln Center, Inc., a not-for-profit corporation formed by John D. Rockefeller 3rd and Opera and Philharmonic officials. See id. at 19, 33-34, 40-41, 51. Construction of Lincoln Center was funded by a combination of federal grants, state and city funds, and private donations. See id. at 140.

Site plans called for an "entrance plaza" to the complex, along with a park (later named Damrosch Park) situated to the south between Fordham University and the opera house, and the North Plaza, to be located on the north side of the complex between the philharmonic building and the drama theater. See id. at 80, 141. To defray the costs of construction, the City agreed to build and oversee the plaza and park areas, together with an underground garage. See id. at 68, 85. As the financial arrangements were finalized, Lincoln Center, Inc. conveyed a portion of the buildings and public grounds, including the Plaza, to the City. The grounds were placed under the jurisdiction of the Parks Department, which is a municipal agency organized and operated under the New York City Charter.

Four years after the complex opened, Lincoln Center, Inc. took over management of the public areas² and garage pursuant to a License Agreement ("License Agreement"). Under the License Agreement, Lincoln Center, Inc. agreed to accept "engagement by the City, on behalf of and as an agent of the City, to manage and maintain the Premises ...." Lincoln Center, Inc.'s management of the Lincoln Center property continues to this day.

Pursuant to Article 8 of the License Agreement, Lincoln Center, Inc. has exclusive responsibility for scheduling events in the public areas at Lincoln Center, including the Plaza, subject to approval from the Parks Department. Lincoln Center, Inc.'s scheduling authority does not extend to Damrosch Park. The License Agreement provides that Lincoln Center, Inc. may charge fees and require bonds in connection with events in the public areas, but that rates shall be "set at such levels so as not to discourage public use." The License Agreement also requires Lincoln Center, Inc. to forward written notice of all approved applications to the Parks Department, which in turn is to notify Lincoln Center, Inc. of its approval or disapproval. The Director of Community Programming for Lincoln Center, Inc. attests that, in practice, Lincoln Center, Inc. exercises sole authority to grant applications for organized public use of the Plaza and surrounding public areas.

In exercising its scheduling authority, Lincoln Center, Inc. stages its own events and permits other events that will benefit the Center financially. As to all other requests by third parties for use of the Plaza and public areas, Lincoln Center, Inc. states that it has traditionally limited approval to events "having a performance, entertainment or artistic component." Lincoln Center, Inc.'s policy therefore prohibits political and labor-oriented events, including demonstrations and rallies. When it denies applications for these types of activities, Lincoln Center, Inc. suggests that the applicant approach the Parks Department for permission to use Damrosch Park, located on the south end of Lincoln Center, Dante Park, located across the street, or the sidewalks surrounding Lincoln Center. The Parks Department maintains scheduling authority for Damrosch and Dante Parks and permits expressive uses therein pursuant to the permit requirements contained in the Parks Department Rules and Regulations. Further, the Director of Community Programming for Lincoln Center, Inc. states in her uncontested affidavit that "[w]hen electioneering or leafletting or the like has been spotted on the Plaza (i.e. without a prior request), Lincoln Center has notified security and the local police, and the participants have been told to move."

B. The Present Dispute

The Union represents approximately 6,000 food service workers employed in various restaurants, cafeterias, and entertainment venues in the New York metropolitan area. The Union claims, and the defendants do not dispute, that on or about March 22, 1999, a union employee was prohibited from distributing leaflets in the Plaza by Lincoln Center, Inc. security and the police department, who threatened him with arrest. On May 21, 1999, the Union filed a written application with the Parks Department requesting permission to hold a rally in the Plaza consisting of forty persons. The Union planned to picket and distribute leaflets, and to station its members behind physical barriers primarily on the west side of the Plaza. The proposed rally was to take place from 4:00 p.m. to 7:30 p.m. on June 5, 1999, and its purpose was to show support for food service workers employed by Restaurant Associates, a food concessionaire operating within the Metropolitan Opera. Although the Union did not represent the concession employees, it was seeking to do so at the time.³

The Parks Department forwarded the Union's request to Lincoln Center, Inc.,⁴ and on May 26, 1999, Lincoln Center, Inc. denied the Union's application...