Lusk v. Village of Cold Spring

• Decision Date: 19 August 2005
• Docket Number: No. 04 Civ. 8633 CM/LMS.,04 Civ. 8633 CM/LMS.
• Citation: 418 F.Supp.2d 314
• Parties: Donald LUSK, Plaintiff, v. VILLAGE OF COLD SPRING, Defendants.
• Court: U.S. District Court — Southern District of New York

418 F.Supp.2d 314

Donald LUSK, Plaintiff, v. VILLAGE OF COLD SPRING, Defendants.

No. 04 Civ. 8633 CM/LMS.

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

August 19, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Stephen Bergstein, Thornton, Bergstein & Ullrich, LLP, Chester, NY, for plaintiff.

James A. Randazzo, Servino, Santangelo & Randazzo LLP, Hawthorne, NY, for defendant.

DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR A PERMANENT INJUNCTION

MCMAHON, District Judge.

Plaintiff Donald Lusk commenced this action against defendant Village of Cold Spring for violations of his First Amendment right to free speech. Plaintiff, who lives in the Historic District of Cold Spring, was cited for violating several local ordinances after he displayed multiple signs outside his home without first obtaining a permit. Contending that these and other laws unconstitutionally restrict his freedom of speech, Plaintiff filed this action to enjoin Cold Spring from enforcing these ordinances. The Court consolidated plaintiff's application for a preliminary injunction with the request for permanent injunctive relief.

For the reasons discussed below, plaintiff's motion for a permanent injunction against the enforcement of certain provisions of the Cold Spring Village Code is granted in part and denied in part.

Facts

Plaintiff is a resident of Cold Spring, New York. (Complaint ("Cplt.") ¶6.) He lives within both the B-1 General Business and Historic Districts. (Affidavit in Support of Application for Preliminary Injunction, dated October 27, 2004, ("Lusk Aff.") ¶ 2; Tompkins Complaint, Exhibit B to Defendant's Memorandum of Law in Opposition to Plaintiff's Application for a Preliminary Injunction, dated December 1, 2004, ("Defendant's Memo"), at 1.)

In June 2004, plaintiff posted signs on his property to protest a planned development on the Cold Spring waterfront. (Cplt. ¶7.) One sign, which he placed on his porch facing the street, read, "Go to public hearing to see plans for our waterfront." (Id.) The other sign, which leaned against his front porch, said, "Think that building is big." (Id.) He has posted a number of similar signs—all of which are non-commercial and political—on his porch and in front of his home on prior occasions. (Cplt. ¶¶ 8-9.)

Plaintiff further alleges that he intends to run for Mayor, and states that he plans to post signs throughout the Village in support of his candidacy. (Cplt.¶28.)

On July 19, 2004, on account of the signs on his porch and on the ground in front of his home, plaintiff was served a Violation Notice by George C. Tompkins, the Building Inspector. (Cplt. ¶10.) He was charged with two counts of violating Village Code § 64-5(A), two counts of violating § 134-9B, and two counts of violating § 134-9G(1-b). (Cplt.¶¶11-13.)

On August 2, 2004, the Building Inspector issued plaintiff an appearance ticket to appear in the Village of Cold Spring Justice Court on August 9, 2004, to answer the violations set forth in the July 19, 2004 Violation Notice. (Defendant's Memo, Exh. A.) Plaintiff appeared in Justice Court on January 10, 2005 and pled guilty to one count of posting signs without a permit, in violation of § 134-9B. (Randazzo Supplemental Affidavit, dated February 15, 2005, ("Randazzo Supp. Aff."), Exh. B; Defendant's Memo, Exh. B, at 1.)

Procedural History

On November 1, 2004, plaintiff commenced this action. He originally sought an injunction against his pending criminal proceeding, but since I was unable to grant such relief, see Younger v. Harris, 401 U.S. 37, 53 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the parties set a briefing schedule to allow for a more leisurely examination of the constitutional issues. All parties agree that summary judgment on the constitutionality of the ordinance is the appropriate manner of disposing of this case.

Discussion

Standard for Granting a Permanent Injunction

"The standard for obtaining a permanent injunction is essentially the same as for a preliminary injunction with the exception that the plaintiff must actually succeed on the merits of the case, rather than merely demonstrate that success is likely in a future proceeding." Old Republic Ins. Co. v. Hansa World Cargo Serv., 170 F.R.D. 361, 385 (S.D.N.Y.1997) (citations and internal quotation marks omitted). To obtain a preliminary injunction in the Second Circuit, a party must establish: "(1) irreparable harm, and (2) either (a) a likelihood of success on the merits, or (b) a balance of hardships tipping decidedly toward the party seeking the injunctive relief." Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir.1992); see also Richard Feiner & Co., Inc. v. Turner Entertainment Co., 98 F.3d 33, 34 (2d Cir. 1996). In order for a party to meet the first prong of this standard, the "potential injury ... justify[ing] the granting of injunctive relief ... must be irreparable; that is, it must be the kind of injury for which an award of money cannot compensate." Sperry Int'l Trade, Inc. v. Government of Israel, 670 F.2d 8, 12 (2d Cir. 1982). "Thus, if it appears that the potential harm to the [requesting] party is simply a monetary loss, the potential injury is normally not deemed irreparable[,] and hence does not justify injunctive relief." Id; see also Reuters Ltd. v. United Press Int'l. Inc., 903 F.2d 904, 907 (2d Cir.1990) (irreparable injury "must be one incapable of being fully remedied by monetary damages"). Old Republic Ins. Co., supra, 170 F.R.D. at 365.

The First Amendment

The First Amendment states in part that "Congress shall make no law ... abridging the freedom of speech." U.S. Const. Amend. I. Courts have tangled with this deceptively simple phrase from the inception of the Republic.

The Supreme Court has held that political speech (the type of speech in which plaintiff engages when he posts his signs) is entitled to the highest form of protection afforded by the First Amendment. McIntyre v. Ohio Elections Commission, 514 U.S. 334, 346, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995); Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). Moreover, a statute regulating speech "of private citizens on private property or in a traditional public forum is presumptively impermissible, and this presumption is a very strong one." City of Ladue v. Gilleo, 512 U.S. 43, 59, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) (O'Connor, J., concurring). The Supreme Court has also held that the First Amendment's protections encompass not only actual speech but an individual's expressive conduct (such as the posting of signs) as well. See Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (citations omitted).

The level of scrutiny that a court gives to statutes restricting speech depends on whether or not the regulation is content based. Where a court determines that a law restricts speech on the basis of its content—that is, when the content of the speech determines whether the ordinance applies or not, Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 516, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981)—the regulation is presumptively invalid, R.A.V. v. City of St. Paul. Minn., 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), and must be strictly scrutinized. The regulation will only be upheld against a constitutional challenge if the municipality shows that it "... is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988).

Content neutral laws regulate matters unrelated to speech and only incidentally affect First Amendment rights. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (hereinafter, "Turner I"). Intermediate scrutiny is applied to such laws. To survive such scrutiny, the regulation must "further an important or substantial governmental interest unrelated to the suppression of free speech, provided the incidental restrictions [do] not burden substantially more speech than is necessary to further those interests." Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 186, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (hereinafter, "Turner II") (citation omitted).

When making this determination, the threshold inquiry in speech cases is whether the government has adopted a regulation of speech because of disagreement with the message it conveys ... The government's purpose is the controlling consideration ... Government regulation of expressive activity is content neutral so long as it is "justified without reference to the content of the regulated speech."

Board of Managers of Soho Intern. Arts Condominium v. City of New York, No. 01 Civ. 1226, 2004 WL 1982520, at *10 (S.D.N.Y. Sept.8, 2004) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)) (citations omitted).

First Amendment protections, while broad, are not absolute. See Regan v. Boogertman, 984 F.2d 577, 579 (2d Cir. 1993) (citing Elrod v. Burns, 427 U.S. 347, 360, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)). The Government may impose reasonable time, place and manner restrictions on speech as long as they are content neutral, narrowly tailored to serve a significant government interest and leave open "ample channels for communication." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).

Plaintiff alleges that Chapters 64, 104, and 134 of the Village of Cold Spring Code violate the First Amendment.

The Village challenges neither plaintiff's standing nor the ripeness of his facial challenge to these ordinances, and properly so. As my colleague Judge Conner has noted in a case similarly challenging a local "sign" ordinance, "Traditional requirements of standing are relaxed when the matter involves a prior restraint of speech or expression because of the potential for abuse of First Amendment rights." Knoeffler...