International Action Center v. City of New York

• Decision Date: 17 November 2009
• Docket Number: Docket No. 07-5739-cv.
• Citation: 587 F.3d 521
• Parties: INTERNATIONAL ACTION CENTER, Plaintiff-Appellant, v. CITY OF NEW YORK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

587 F.3d 521

INTERNATIONAL ACTION CENTER, Plaintiff-Appellant, v. CITY OF NEW YORK, Defendant-Appellee.

Docket No. 07-5739-cv.

United States Court of Appeals, Second Circuit.

Argued: March 6, 2009.

Decided: November 17, 2009.

Jeffrey E. Fogel, Esq., Charlottesville, VA (Gideon Orion Oliver, Esq. and Palyn Hung, Esq., New York, NY, on the brief), for Plaintiff-Appellant.

Scott Shorr, Esq. (Ronald E. Sternberg, Esq., on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, for Defendant-Appellee.

Before: PARKER, Circuit Judge, and CHIN, District Judge.^*

CHIN, District Judge.

Fifth Avenue in Manhattan is a historic, popular, and often congested thoroughfare. It runs adjacent to Central Park and down the center of Manhattan's busy midtown business district. Every year, fifteen large parades march along some stretch of Fifth Avenue. The parades are enjoyed by viewers from all over the world. Although the parades provide entertainment and celebration, they also put a strain on New York City (the "City") by requiring street closures, causing traffic congestion, and disrupting business. Accordingly, a City regulation (the "Fifth Avenue Rule")—that began as an informal policy in the 1970s and was codified in 2001—bans any "new" parades on Fifth Avenue.

In March 2005, plaintiff-appellant International Action Center ("IAC") filed applications for permits to march on two sections of Fifth Avenue. The City, pursuant to the Fifth Avenue Rule, denied IAC the use of Fifth Avenue. In lieu of a permit to march on Fifth Avenue, the City granted IAC a permit to march along a different route.

IAC alleges that the Fifth Avenue Rule is a content-based regulation that violates the First Amendment by discriminating against parades related to current events. For the following reasons, we conclude that the Fifth Avenue Rule does not violate the First Amendment. IAC also argues that the injunction issued by the district court curtailing the City's discretion in granting special permits should be expanded. We disagree. Finally, we hold that IAC does not have standing to challenge a provision of the parade rules that imposes penalties for a violation because it has not demonstrated that it has suffered or will suffer an injury-in-fact. Accordingly, the judgment of the district court is affirmed.

BACKGROUND

A. New York City Parades

New York City Administrative Code (the "Code") § 10-110 provides the statutory basis for the issuance of parade permits. The Police Commissioner of the New York City Police Department (the "NYPD") is vested with the power to issue permits for any "procession, parade, or race ... [on] any street or in any public place." N.Y.C. Admin. Code § 10-110(a). The NYPD issues permits for approximately 700 parades per year in the five boroughs.

The Code places qualifications upon the Commissioner's authority in various circumstances, two of which are relevant here. First, the Commissioner is not permitted to "grant a permit for the use of any street or any public place, or material portion thereof, which is ordinarily subject to great congestion or traffic and is chiefly of a business or mercantile character." N.Y.C. Admin. Code § 10-110(a)(2). Second, "[s]pecial permits for occasions of extraordinary public interest, not annual or customary, or not so intended to be, may be granted by the commissioner for any street or public place, and for any day or hour, with the written approval of the mayor." N.Y.C. Admin. Code § 10-110(a)(4) (the "Special Permit Provision"). In 2001, the City further limited the Commissioner's discretion in granting special permits by limiting these to "celebrations organized by the City honoring the armed forces; sports achievements or championships; world leaders and extraordinary achievements of historic significance." 38 R.C.N.Y. § 19-01(b).

The Code also provides for the consequences of a violation:

Every person participating in any procession, parade or race, for which a permit has not been issued when required by this section, shall, upon conviction thereof, be punished by a fine of not more than twenty-five dollars, or by imprisonment for not exceeding ten days, or by both such fine and imprisonment.

N.Y.C. Admin. Code § 10-110(c) (the "Violations Provision").

B. Fifth Avenue Parades

Fifth Avenue is a historically preferred route for New York City parades and is considered by many the most desirable parade venue in the City.

From 1955 to 1969, the number of parades along Fifth Avenue increased from ten to eighteen. As a result, in 1971, the City adopted an informal policy barring new Fifth Avenue parades.¹ In 2001, the informal policy was codified as a regulation: "[p]ermits will be disapproved under § 10-110 of the administrative code [if] ... [t]he application seeks to hold a parade on Fifth Avenue in the borough of Manhattan, unless the parade was held at that location prior to the promulgation of these rules." 38 R.C.N.Y. § 19-04(d)(viii).² The City explains that the policy was intended to address "the over-saturation" of such events "in one of the most congested sections of the City—midtown Manhattan." Int'l Action Ctr. v. City of New York, 522 F.Supp.2d 679 (S.D.N.Y. 2007) (internal quotation marks and citation omitted).

C. IAC's March

In March 2005, IAC applied for a permit to march along two lanes of Fifth Avenue from 100th Street to 102nd Street, where it had a permit for a rally in Central Park. IAC filed a second application for the use of two lanes of Fifth Avenue after the rally, from 90th Street to 79th Street, for a brief demonstration in front of the Mayor's home. The applications were filed on behalf of the Troops Out Now Coalition, which IAC founded. The marches were intended to protest and commemorate the second anniversary of the invasion of Iraq. Relying on the Fifth Avenue Rule, the City denied IAC the use of Fifth Avenue. IAC was granted a permit to march along an alternative route that did not include Fifth Avenue.³

D. Procedural History

On March 16, 2005, IAC commenced this action, pursuant to 42 U.S.C. § 1983, alleging that the Fifth Avenue Rule violates the First Amendment to the United States Constitution. At the outset, prior to the completion of discovery, the City moved for summary judgment. The district court denied the City's motion without prejudice and granted IAC leave to file an amended complaint challenging the Special Permit Provision. See Int'l Action Ctr. v. City of New York, No. 05 Civ. 2880, 2006 U.S. Dist. LEXIS 93387, 2006 WL 3802195 (S.D.N.Y. Dec. 26, 2006).

Following the completion of discovery, the City renewed its motion for summary judgment and IAC cross-moved. The district court upheld the Fifth Avenue Rule as content neutral and an appropriate time, place, or manner restriction. See Int'l Action Ctr., 522 F.Supp.2d at 681. The district court did, however, enjoin the City from granting permits for new Fifth Avenue parades pursuant to the Special Permit Provision "unless the requested use fits within the four categories set forth in" the Special Permit Provision. Id. The court also held that IAC lacked standing to challenge the Violations Provision. Id. at 693.

This appeal followed.

DISCUSSION

We review de novo a district court's ruling on cross-motions for summary judgment, in each case construing the evidence in the light most favorable to the non-moving party. White River Amusement Pub, Inc. v. Town of Hartford, 481 F.3d 163, 167 (2d Cir.2007). Summary judgment is appropriate only if we conclude that the case presents "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

First, IAC argues that the Fifth Avenue Rule favors cultural parades over marches responsive to current events, and, thus, discriminates on the basis of content. Second, even assuming the Fifth Avenue Rule is content neutral, IAC argues that it does not satisfy intermediate scrutiny. Third, IAC argues that the injunction imposed by the district court should be expanded. Finally, IAC argues that the Violations Provision is unconstitutional because it fails to incorporate a requirement that the accused knew that the NYPD did not grant the march a permit. We discuss each argument in turn.

A. Is the Fifth Avenue Rule Content Neutral?

IAC argues that the Fifth Avenue Rule imposes content-based restrictions. A content-based restriction is subject to strict scrutiny, "such that it could only be justified by a compelling governmental interest and would have to be narrowly tailored to achieve its intended purpose." Cablevision Sys. Corp. v. F.C.C., 570 F.3d 83, 89 (2d Cir.2009). For the following reasons, we hold that the Fifth Avenue Rule is content neutral, and thus subject to intermediate scrutiny. See id. at 97.

The "principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). A regulation "justified without reference to the content of the regulated speech" is content neutral. Mastrovincenzo v. City of New York, 435 F.3d 78, 98 (2d Cir.2006) (internal quotation marks and citation omitted). "But while a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary to such a showing in all cases." Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994).

IAC argues that the Fifth Avenue Rule "prohibits the use of Fifth Avenue for marches that are responsive to current events, but allows its use for traditional, cultural parades." Thus, according to IAC, the Fifth Avenue Rule discriminates against public discussion on the topic of current events. In support of its argument that the Fifth Avenue Rule is content based, IAC cites Boos v. Barry, in which ...