New York Magazine, a Div. of Primedia Magazines, Inc. v. Metropolitan Transp. Authority, No. 1645

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtOAKES; CARDAMONE
Citation136 F.3d 123
Parties26 Media L. Rep. 1301 NEW YORK MAGAZINE, A DIVISION OF PRIMEDIA MAGAZINES, INC., Plaintiff-Appellee, v. The METROPOLITAN TRANSPORTATION AUTHORITY and The City of New York, Defendants-Appellants. ockets 97-9511, 97-9519
Docket NumberNo. 1645,D
Decision Date22 January 1998

Page 123

136 F.3d 123
26 Media L. Rep. 1301
NEW YORK MAGAZINE, A DIVISION OF PRIMEDIA MAGAZINES, INC.,
Plaintiff-Appellee,
v.
The METROPOLITAN TRANSPORTATION AUTHORITY and The City of
New York, Defendants-Appellants.
No. 1645, Dockets 97-9511, 97-9519.
United States Court of Appeals,
Second Circuit
Argued Dec. 15, 1997.
Decided Jan. 22, 1998.

Page 124

Marcia B. Paul, New York City (Gregory J. Ikonen, Kay, Collyer & Boose, LLP, of counsel), for Plaintiff-Appellee.

Kenneth A. Plevan, New York City (Jeremy A. Berman, Esther S. Trakinski, Skadden, Arps, Slate, Meagher & Flom, LLP, of counsel), for Defendant-Appellant The Metropolitan Transportation Authority.

Elizabeth I. Freedman, New York City (Jeffrey D. Friedlander, Acting Corporation Counsel of the City of New York, Leonard Koerner, John R. Low-Beer, and Yair S. Goldstein, of counsel), for Defendant-Appellant The City of New York.

(David Zwiebel, Morton M. Avigdor, New York City), for Amicus Curiae Agudath Israel of America.

(Victor A. Kovner, Alexandra Nicholson, Lankenau Kovner Kurtz & Outten, LLP; Slade R. Metcalf, Squadron, Ellenoff, Plesent & Sheinfeld, LLP; Jerry S. Birenz, Sabin, Bermant & Gould; Yvette Miller, Gruner & Jahr USA Publishing, New York City), for Amicus Curiae Magazine Publishers of America, Inc.

(Arthur N. Eisenberg, Norman Siegel, Christopher Dunn, New York City), for Amicus Curiae New York Civil Liberties Union Foundation.

Page 125

Before: OAKES, CARDAMONE and CALABRESI, JJ.

OAKES, Senior Circuit Judge:

This case presents the question whether the Metropolitan Transportation Authority ["MTA"], a public benefit corporation created by the State of New York, may refuse to display on its buses an advertisement that refers by first name to the Mayor of New York City, based on MTA's belief that the advertisement violates § 50 of the New York Civil Rights Law. Plaintiff New York Magazine, a division of Primedia Magazines, Inc. [collectively, "New York Magazine"], brought suit requesting preliminary and permanent injunctive relief against defendants MTA and the City of New York [the "City"], claiming defendants violated New York Magazine's rights as secured by the First and Fourteenth Amendments to the U.S. Constitution, after MTA discontinued displaying its advertisement [the "Advertisement"]. New York Magazine also requested preliminary injunctive relief against the City for tortious interference with contract. The Advertisement featured the New York Magazine logo and read, "Possibly the only good thing in New York Rudy hasn't taken credit for." New York Magazine had contracted with MTA's agent to have the Advertisement placed on the outside of MTA buses; MTA removed the Advertisement from its buses after receiving a complaint from the Mayor's office that the Advertisement violated the Mayor's rights under § 50. The U.S. District Court for the Southern District of New York, Shira A. Scheindlin, Judge, granted Plaintiff New York Magazine preliminary injunctive relief on its claim brought under 42 U.S.C. § 1983, enjoining the defendants from refusing to display the Advertisement, finding that New York Magazine showed a substantial likelihood of success on the merits of its claim that MTA violated its rights under the First and Fourteenth Amendments to the U.S. Constitution. Both defendants appeal, claiming that the advertising space at issue constitutes a non-public forum, so that the MTA's action of discontinuing the Advertisement need only be reasonable, non-discriminatory and not based on the viewpoint expressed. They also argue that the District Court misapplied the test applicable to commercial speech in a designated public forum, because the governmental interest that justifies discontinuing the Advertisement, obeying § 50 of the New York Civil Rights Law, is substantial, and because refusing to display the Advertisement directly advances the governmental interest without being more extensive than necessary to serve that interest. We affirm the district court's order granting preliminary injunctive relief against MTA, but we vacate the order to the extent it applies to the City, and dismiss New York Magazine's claims against the City as failing to present a case or controversy.

I. Facts

The parties do not dispute the material facts. New York Magazine, a weekly publication distributed throughout New York City and elsewhere, regularly and frequently carries news reports and political commentary regarding the City of New York, its politicians, and other public figures, as well as other features and stories of general interest. MTA is a public benefit corporation created in 1965 by New York state law that owns and operates the majority of the public buses in New York providing daily local transportation. MTA raises revenue for its operation, in part, by leasing advertising space on the buses; it solicits advertisers and enters into contractual agreements for lease of its advertising space through an agent, Transportation Displays Incorporated ["TDI"]. In September of 1997, TDI, on behalf of MTA, and New York Magazine entered into a contract [the "Agreement"]. MTA agreed to display the Advertisement, as part of a series of three, on the sides of seventy-five of its buses, and New York Magazine agreed to pay $85,000 for the series. The Advertisement was to run from just before Thanksgiving to December 31, 1997, and possibly for some time during January, 1998. The Agreement provided that "[a]ll advertising copy is subject to approval of TDI and the Transportation Facility concerned as to character [and] text...." New York Magazine agreed to "indemnify and save harmless TDI and [MTA] against any liability to which

Page 126

[they] may be subjected by reason of the advertising required under this contract."

New York Magazine provided TDI seventy-five copies of the Advertisement before November 15, 1997, in accordance with the Agreement. Neither TDI nor MTA objected to the Advertisement at that time, and MTA began posting the Advertisement around November 24, 1997, according to schedule. At some point in the following week, Mayor Giuliani's office called the MTA and asked that the Advertisement be removed, objecting to the use of the Mayor's name to promote a commercial product, claiming this violated § 50 of the New York Civil Rights Law. Section 50 provides, "A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, ... is guilty of a misdemeanor." N.Y.Civ.Rights Law § 50 (McKinney 1997). Section 51 provides that "[a]ny person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without ... written consent ... may maintain an equitable action in the supreme court of this state against the [party] so using his name, portrait or picture ... and may also sue and recover damages for any injuries sustained by reason of such use...." Id. § 51 (footnote omitted). The statute provides that the jury may award exemplary damages in its discretion if the defendant violated § 50 knowingly. Id.

MTA adopted standards governing its acceptance of advertising by a board resolution dated March 24, 1994, and amended those standards effective September 30, 1997 [the "Standards"]. 1 The Standards impose no restriction on political speech. The Standards prohibit, inter alia, the display of any advertisement that "violates New York Civil Rights Law § 50." Standards § (a)(vii) (1994). The Standards also set forth procedures by which advertisements may be reviewed for compliance, requiring the MTA contractor (here, TDI) to review every advertisement to determine whether it falls within a prohibited category. If the contractor believes a submitted advertisement violates the Standards, the contractor is required to provide the advertiser with a copy of the Standards and notify the advertiser that the advertisement has been determined to violate the Standards, the reasons for that determination, and that the advertiser has a right to request a prompt review. Id. § (c)(i) (amended 1997). MTA concedes that TDI failed to follow these procedures with respect to the Advertisement.

The district court granted New York Magazine the preliminary injunctive relief it requested after consideration of exhibits and memoranda of law from all of the parties, and after conducting a hearing, which consisted of argument from all counsel. MTA and the City moved for a stay pending appeal of this action, which was denied, both in the district court and in this court.

II. Discussion

A. Standard of review

We review the district court's grant of a preliminary injunction for abuse of discretion, although we review its determinations of law de novo. Malkentzos v. DeBuono, 102 F.3d 50, 54 (2d Cir.1996); County of Seneca v. Cheney, 12 F.3d 8, 11 (2d Cir.1994). If the District Court has based its decision on an error of law, it has ipso facto abused its discretion. Cheney, 12 F.3d at 11; see Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 776-78 (1982).

B. Standing against the City

The district court denied New York Magazine's motion for preliminary injunction with respect to its claim against the City for tortious interference with contract, and New York Magazine claims no error with respect to that denial. The district court issued its injunction for New York Magazine's claim under § 1983 against both defendants: "Defendants are enjoined and restrained from refusing to display, or restricting or limiting

Page 127

the display of Primedia's advertisements on [MTA] buses pursuant to its December, 1997 contract with TDI." New York Magazine v. Metropolitan Transit Auth., 987 F.Supp. 254, 270 (S.D.N.Y.1997) (order granting preliminary injunction). However, New York Magazine lacks standing to assert a claim against the City for injunctive relief....

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  • North Olmsted Chamber of Com. v. North Olmsted, No. 1:98CV0810.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • 21 Enero 2000
    ...227-28 (2d Cir.1998), cert. denied, 525 U.S. 1040, 119 S.Ct. 589, 142 L.Ed.2d 532 (1998); New York Magazine v. Metropolitan Trans. Auth., 136 F.3d 123, 131 (2d Cir.1998); Desert Outdoor Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814, 818-19 (9th Cir.1996), cert. denied, 522 U.S. 9......
  • Park Shuttle N Fly v. Norfolk Airport Authority, No. CIV.A. 2:03CV461.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • 9 Diciembre 2004
    ...1998). Other courts have relied exclusively upon the commercial speech doctrine, however, See New York Magazine v. Metro. Transp. Auth., 136 F.3d 123, 130 (2d Cir.1998)(applying commercial speech doctrine); Am. Future Sys., Inc. v. Penn. State Univ., 752 F.2d 854, 862-62 (3d Cir.1984) (appl......
  • Seattle Mideast Awareness Campaign v. King Cnty., Nos. 11–35914
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 18 Marzo 2015
    ...it has necessarily signaled an intent to create a designated public forum. See, e.g., New York Magazine v. Metropolitan Transp. Auth., 136 F.3d 123, 130 (2d Cir.1998) ; Lebron v. Washington Metro. Area Transit Auth., 749 F.2d 893, 896 & n. 6 (D.C.Cir.1984). Neither the First Amendment n......
  • Children of the Rosary v. City of Phoenix, No. 97-16821
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 28 Agosto 1998
    ...Ass'n/Chicago Area v. Chicago Transit Auth., 767 F.2d 1225 (7th Cir.1985); New York Magazine v. Metropolitan Transportation Authority, 136 F.3d 123 (2d Cir.1998); see also Christ's Bride Ministries, Inc. v. Southeastern Pa. Transp. Auth., 148 F.3d 242 (3d Cir.1998). In Planned Parenthood, t......
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90 cases
  • North Olmsted Chamber of Com. v. North Olmsted, No. 1:98CV0810.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • 21 Enero 2000
    ...227-28 (2d Cir.1998), cert. denied, 525 U.S. 1040, 119 S.Ct. 589, 142 L.Ed.2d 532 (1998); New York Magazine v. Metropolitan Trans. Auth., 136 F.3d 123, 131 (2d Cir.1998); Desert Outdoor Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814, 818-19 (9th Cir.1996), cert. denied, 522 U.S. 9......
  • Park Shuttle N Fly v. Norfolk Airport Authority, No. CIV.A. 2:03CV461.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • 9 Diciembre 2004
    ...1998). Other courts have relied exclusively upon the commercial speech doctrine, however, See New York Magazine v. Metro. Transp. Auth., 136 F.3d 123, 130 (2d Cir.1998)(applying commercial speech doctrine); Am. Future Sys., Inc. v. Penn. State Univ., 752 F.2d 854, 862-62 (3d Cir.1984) (appl......
  • Seattle Mideast Awareness Campaign v. King Cnty., Nos. 11–35914
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 18 Marzo 2015
    ...it has necessarily signaled an intent to create a designated public forum. See, e.g., New York Magazine v. Metropolitan Transp. Auth., 136 F.3d 123, 130 (2d Cir.1998) ; Lebron v. Washington Metro. Area Transit Auth., 749 F.2d 893, 896 & n. 6 (D.C.Cir.1984). Neither the First Amendment nor t......
  • Children of the Rosary v. City of Phoenix, No. 97-16821
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 28 Agosto 1998
    ...Ass'n/Chicago Area v. Chicago Transit Auth., 767 F.2d 1225 (7th Cir.1985); New York Magazine v. Metropolitan Transportation Authority, 136 F.3d 123 (2d Cir.1998); see also Christ's Bride Ministries, Inc. v. Southeastern Pa. Transp. Auth., 148 F.3d 242 (3d Cir.1998). In Planned Parenthood, t......
  • Request a trial to view additional results

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