Housing Works, Inc. v. Kerik

• Decision Date: 07 March 2002
• Docket Number: Docket No. 01-7245.
• Citation: 283 F.3d 471
• Parties: HOUSING WORKS, INC., Plaintiff-Appellee, v. Bernard KERIK, Commissioner of the New York City Police Department and the City of New York, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

283 F.3d 471

HOUSING WORKS, INC., Plaintiff-Appellee, v. Bernard KERIK, Commissioner of the New York City Police Department and the City of New York, Defendants-Appellants.

Docket No. 01-7245.

United States Court of Appeals, Second Circuit.

Argued June 25, 2001.

Decided March 7, 2002.

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Christopher T. Dunn, New York Civil Liberties Union, New York, NY (Arthur Eisenberg, of counsel), for Plaintiff-Appellee.

Ellen S. Ravitch, Corporation Counsel's Office, City of New York, New York, NY (Daniel S. Connolly, Steven J. McGrath, on the brief), for Defendants-Appellants.

Before: MINER and LEVAL, Circuit Judges, and SCULLIN, Chief District Judge.^*

MINER, Circuit Judge.

Defendants-appellants Bernard Kerik, Commissioner of the New York City Police Department and the City of New York (together, "the City") appeal from a judgment entered in the United States District Court for the Southern District of New York (Wood, J.), in favor of plaintiff-appellee Housing Works, Inc. ("Housing Works"). The judgment permanently enjoins the City from enforcing its policy banning the use of amplified sound on the steps, sidewalks, and plaza area directly in front of New York City Hall. The district court determined that the sound amplification policy involves the impermissible exercise of discretion by the City and therefore is facially violative of the First Amendment. For the reasons that follow, we reverse.

BACKGROUND

Housing Works is a not-for-profit corporation that provides housing, services, and advocacy for New York City residents who have AIDS or are HIV positive. It frequently organizes outdoor events, rallies, and demonstrations to call public attention to its goals. The action giving rise to this appeal originated in the City's denial of a formal request by Housing Works to use amplified sound in the plaza adjacent to City Hall at its World AIDS Day event on December 1, 2000. The request was made in a letter dated September 27, 2000, from Christopher Dunn, Esq. of the New York Civil Liberties Union, to Daniel S. Connolly, Esq. of the New York City Law Department. Mr. Dunn advised that the sound would be used only in a manner that could reasonably be regulated by the City and that the sound level would not in any way disturb the business of City Hall. The letter included the opinion that any ban on the use of sound would have the effect of undermining the permanent injunction against the City issued in a prior action involving the same parties. See Housing Works, Inc. v. Safir, 101 F.Supp.2d 163 (S.D.N.Y.2000). Apparently, materials were submitted in the prior action tending to show that a ban on sound would have the effect of limiting demonstrations and rallies to no more than fifty people in the plaza, a numerical limitation impermissible under the injunction issued in Safir.

In his letter of reply dated October 10, 2000, Mr. Connolly stated that Housing Works' previous requests for use of the steps and plaza area of City Hall and for permission to conduct a twenty-four-hour vigil in and around City Hall Park in connection with the December 1, 2000 event would be granted upon timely application. He also noted that Housing Works would be granted a sound amplification permit for thirteen consecutive hours for the City Hall Park portion of the event. As to sound amplification in City Hall Plaza, Mr. Connolly observed that sound amplification has not traditionally been permitted in that area, except for certain exempted events when City Hall is closed for business. The proximity of the plaza to the seat of City government and the consequent interference with public business caused by amplified sound was the reason given for denial of the permit.

Responding to Mr. Dunn's assertion that the ban on sound amplification would undermine the injunction issued in Safir, Mr. Connolly stated that, although the issue of sound may have been discussed, it was not before the court and not resolved by the injunction that was issued in that case. Mr. Connolly reminded Mr. Dunn that a limited experiment had been conducted using sound amplification in the plaza for a single event. According to Mr. Connolly, the experiment demonstrated that only a minimal amount of amplified sound could be used without disruption to the City Hall building. The low decibel levels allowed were said to be so frustrating to the organizers of the event in achieving their purposes that there were repeated violations of the agreed-upon levels.

In Safir, a permanent injunction was issued against enforcement of the Rules then contained in Chapter 9, Title 55 of the New York City Rules and Regulations. See id. at 171. These Rules limited the size of groups engaging in expressive activity on the steps of City Hall to fifty persons and the size of such groups assembling on the plaza adjacent to City Hall to 150 persons. Events were limited to two hours in duration. Issued on January 19, 2000, the Rules exempted from coverage events traditionally organized or sponsored by the City and administered by designated City agencies. A permit, issued on application to the New York City Police Department, was required for the conduct of any covered activity.

In invalidating the Rules in their entirety, the district court found that Chapter 9, Title 55 "is unconstitutional because it is content-based, affords undue discretion to City officials, and is not narrowly tailored." Id. The court opined that the Rules "permit the City to exclude virtually any activity which the City chooses to sponsor." Id. at 169. Since "very little in the ... Rules restrict[ed] the City's ability to designate an event as falling under the ... exemptions," id., the district court concluded that the Rules vested undue discretion in City officials. The district court accordingly determined that the Rules "allow the City to practice content-based or viewpoint-based discrimination in deciding which ideas it will celebrate and which it may marginalize, circumscribe, and restrict." Id. With respect to the numerical limits imposed by the Rules, the district court found that "[t]he evidence does not support defendants' contention that more than 50 people cannot assemble on the steps of City Hall without impeding access to the building or compromising safety," id. at 171, and therefore concluded that the "Rules are not narrowly tailored to a significant government interest," id.

Responding to the permanent injunction issued by the district court in Safir, the City promulgated a new set of rules. On April 19, 2000, the City adopted Chapter 10 of Title 55 of the New York City Rules and Regulations, effective May 19, 2000. Chapter 10, entitled "Rules for Press Conferences, Demonstrations and Similar Activities in the Immediate Vicinity of City Hall" applies to covered activities in the plaza area of City Hall. The plaza area is described as "the bluestone-paved area bordered on the north by the sidewalk fronting City Hall, on the south by City Hall Park and to the east and west by cobblestone parking areas." 55 R.C.N.Y. § 10-01. "Covered activities" are defined as "press conferences, demonstrations, picketing, speechmaking, vigils and like forms of expressive conduct." Id. Specifically excluded from the definition of covered activities are "(i) inaugurations; (ii) award ceremonies for city employees; and (iii) ceremonies held in conjunction with a City-sponsored ticker-tape parade." Id. § 10-02.

The new Rules also limit to 300 the number of persons permitted to gather and limit to three the number of hours allowed for covered activities on the steps, sidewalks, and plaza fronting City Hall as designated by the Police Department, id. § 10-03; provide that groups of over 300 persons and those who seek to engage in a covered activity for longer than three hours be directed to obtain a permit for the use of City Hall Park or comparable area, id.; prohibit the obstruction of the usual use of City Hall and conduct that is disorderly or dangerous to public safety, id. § 10-05; establish procedures to be administered by the Police Department for applications for permits to engage in covered activities as well as criteria for the granting or denial of permits, id. § 10-06; allow for the revocation of permits by the Police Department during the conduct of covered activities for specified reasons, id. § 10-07; authorize police to use magnetometers or other security devices to preserve public peace and safety, id. § 10-08; and confer authority upon the police to "order the closure of or limit access to the City Hall area in the event of an emergency or period of heightened security," id. § 10-09.

Although sound amplification is not mentioned in Chapter 10, the City's sound amplification policy is to prohibit the use of amplified sound in City Hall Plaza except for the three types of events that the Rules exempt from the definition of covered activities: inaugurations, award ceremonies for city employees, and ceremonies held in conjunction with City-sponsored ticker-tape parades. The City's historical practice during the past 116 years has been to hold ticker-tape parades only for the purpose of honoring heroes (as exemplified by aviators and astronauts), athletes, soldiers, and visiting dignitaries and statesmen. On such occasions, City Hall is closed and no business is conducted by either the legislative or executive branches of City government.

General provisions for the regulation of sound devices and apparatus are found in the New York City Administrative Code. According to these provisions, an application for the use of sound amplification equipment in, on, or near or adjacent to any public street, park, or place must be made to the police commissioner at the precinct covering the area where the equipment is to be used. N.Y.C.Code § 10-108(e). The terms of the permit to be issued in response to the application are set forth in the Code. Id. § 10-108(f). The regulatory scheme...