New York Magazine v. Metro. Transit Authority
| Decision Date | 01 December 1997 |
| Docket Number | No. 97 CIV. 8792(SAS).,97 CIV. 8792(SAS). |
| Citation | 987 F.Supp. 254 |
| Parties | NEW YORK MAGAZINE, A DIVISION OF PRIMEDIA MAGAZINES INC., Plaintiff, v. The METROPOLITAN TRANSIT AUTHORITY and the City of New York, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Marcia B. Paul, Gregory J. Ikonen, William H. Crosby, Jr., Kay Collyer & Boose, New York City, for Plaintiff New York Magazine.
John Low-Beer, Lorna B. Goodman, Yair Goldstein, Office of the Corporation Counsel, New York City, for Defendant New York City.
Jeremy A. Berman, Kenneth Plevan, Skadden Arps, Slate, Meagher & Flom, New York City, for Defendant Metropolitan Transp. Authority.
Arthur Eisenberg, Norman Siegel, Christopher Dunn, New York Civil Liberties Union, New York City, for Amicus Curiae New York Civil Liberties Union.
Who would have dreamed that the Mayor would object to more publicity? But that is what this case is all about. Our twice-elected Mayor, whose name is in every local newspaper on a daily basis, who is featured regularly on the cover of weekly magazines, who chooses to appear in drag on a well-known national TV show, and who many believe is considering a run for higher office, objects to his name appearing on the side of City buses. He staunchly asserts, through his designated officials, that he has a "right to publicity," namely the right to control the use of his name when it is used for advertising or trade purposes. However, one who has chosen to be Mayor, and therefore to be the subject of daily commentary and controversy, cannot avoid the limelight of publicity — good and bad. Because of the "incidental use" and "public importance" limitations on the right to publicity, the Mayor's assertion of his right must yield to the Plaintiff's assertion of its First Amendment right.
By the filing of a Complaint and Order to Show Cause, dated November 25, 1997, Plaintiff New York Magazine, a division of PRIMEDIA Magazines Inc. ("NY Magazine"), seeks a preliminary injunction enjoining and restraining the Metropolitan Transit Authority ("MTA") and the City of New York ("City") from:
(i) restraining plaintiff PRIMEDIA's fundamental exercise of its right to free speech, guaranteed by the First Amendment to the United States Constitution by refusing to display, or restricting or limiting the display of any of PRIMEDIA's advertisements on city buses pursuant to PRIMEDIA's contract with defendant MTA; or
(ii) tortiously interfering with PRIMEDIA's contract with defendant MTA.
Order to Show Cause, dated November 25, 1997. The basis for this request is summarized in detail below. For sound bite purposes, however, suffice it to say that N.Y. Magazine contracted to display an advertisement ("Ad") on City buses featuring the New York Magazine logo and the following text:
Possibly the only good thing in New York Rudy hasn't taken credit for
After the Ad had begun to run on city buses, New York's Mayor, Rudolph Giuliani ("Mayor," "Rudy" or "Giuliani"), requested Deputy Mayor Randy Mastro to notify the MTA that the Ad should be pulled because it violated his rights under Section 50 of the New York Civil Rights Law ("Section 50").1 Needless to say, the Ad was immediately pulled. This lawsuit followed.
New York Magazine is a weekly magazine, distributed and sold in the New York metropolitan area and elsewhere. The magazine includes news and political commentary regarding New York City, its public officials, public figures and politicians. Complaint at ¶ 4. The Mayor and his aides are covered in the magazine on a regular basis, sometimes in an unfavorable light. Id. at ¶ 13. The MTA is a public benefit corporation created in 1965. It owns and operates a majority of the buses that provide local transportation for hundreds of thousands of New Yorkers. Id. at ¶ 5. In addition to providing transportation, the MTA solicits advertisements, and contracts for their publication, through an entity known as Transportation Displays Incorporated ("TDI"). On September 11, 1997, TDI, acting on behalf of the MTA, entered into an agreement in which the MTA agreed to run a series of three advertisements by N.Y. Magazine on the sides of 150 City buses.2 Id. at ¶ 9. The Ad in issue was to run on the side of 75 of the buses. Id. at ¶ 10. NY Magazine agreed to pay $85,000 for the advertising which was to run from just before Thanksgiving to December 31, 1997, with some possible January 1998 bonus time. Id. at ¶ 11.
The full size ads were submitted to TDI and the MTA prior to November 15. Id. at ¶ 12. According to an article appearing in The Daily News on Saturday, November 22, 1997, the Mayor asked Deputy Mayor Mastro to call the MTA and ask that the Ad be removed. Id. at Ex. A. According to an article in The New York Times, appearing on Sunday, November 23, 1997, the Ad had already appeared on eight buses by the time it was pulled. Id. at Ex. B. The article quoted Colleen A. Roche, the Mayor's press secretary, as stating, "[t]he objection was based on the use of [Giuliani's] name to promote a commercial product[.]" Id.
In support of its request for relief, plaintiff submitted an Affidavit from Beverly Chell ("Chell Aff."), PRIMEDIA's Vice Chairman and General Counsel. This Affidavit annexes the Complaint and the contract between Plaintiff and TDI. See Exhibits A and D to Chell Aff. The Terms and Conditions of the "Contract For: Transit Advertising, Bus Shelters, Phone Kiosk" provides that "all advertising copy is subject to approval of TDI and the Transportation Facility concerned as to character, text...." Id. at Exhibit A. Plaintiff also submitted a Memorandum of Law. In response, both the MTA and the City submitted Memoranda of Law, attaching, inter alia, the MTA Advertising Standards governing advertising and two advisory opinions of the City of New York's Conflicts of Interest Board. A preliminary injunction hearing was held on November 28, 1997. See Transcript of Argument ("Tr."). The hearing consisted of argument from all counsel. In addition, the plaintiff introduced the Ad in issue and the November 10, 1997 issue of New York Magazine, featuring a caricature of Mayor Giuliani on its cover and a cover story entitled "How Far Can Rudy Go?" Tr. at 75-76.
Plaintiff also made a proffer as to certain facts, which solely for the purposes of this application, are deemed to be true. The plaintiff's proffer states that (1) the Ad copy was submitted to TDI during the week of October 17 for pre-approval and was pre-approved, Tr. at 67, 75; (2) the actual physical posters of the Ads were received by the MTA on November 10, 1997, Tr. at 67, 75, although not necessarily by a person who exercised any control or authority, Tr. at 83; and (3) the November 10 issue of N.Y. Magazine was on the newsstands as of November 3, 1997 and was mailed to subscribers on that date. Tr. at 76.
By a Board Resolution dated March 25, 1994, the MTA Board adopted certain Advertising Standards. See Exhibit A to Defendant MTA's Memorandum of Law. It is unclear whether the 1994 Advertising Standards or a recent 1997 Amendment to those Standards govern this contract. As noted, the contract was dated September 11, 1997 (although it appears to have been executed by TDI on September 24). See Exhibit A to Chell Aff. The parties agree that the 1997 Amendments went into effect after the date of the contract. In any event, the 1994 Standards, as well as the 1997 Amendments, prohibit, inter alia, the display of any advertisement that "violates New York Civil Rights Law § 50." Id. at § (a)(vii). The 1994 Standards then establish a methodology for reviewing advertisements which requires the MTA advertising contractor (here TDI) to review every ad to determine if it falls within any prohibited category. If it does, the contractor is required to provide the advertiser with a copy of the Standards and notice of the determination, the reasons for it, and to notify the advertiser of its right to request a prompt review. Id. at § (c)(i). The MTA concedes that these procedures were not followed in this case. Tr. at 58-59, 63 ("TDI blew it").
Finally, in two Advisory Opinions of the City's Conflicts of Interest Board, attached as Exhibits B and C to the City's Memorandum of Law, the Board opines that a public servant may not "allow his official title to be used to promote [a] book" and may not "promote[] ... the interests of a for-profit entity" even if the public servant donates the compensation for appearing in the advertisement to charity. The City offers these opinions as an additional justification for pulling the Ad. Tr. at 36.
The Complaint states three claims. The first claim, pled against both the City and the MTA, asserts that both entities violated Plaintiff's constitutional right to engage in free speech as guaranteed by the First Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983. The second claim, pled only against the City, asserts that it tortiously interfered with Plaintiff's contract with the MTA. Finally, the third claim, pled only against the MTA, asserts that it breached its contract with Plaintiff and is liable to Plaintiff for any damages it has sustained as a result of the breach. Plaintiff seeks a preliminary injunction based on the violation of its constitutional rights and the tortious interference with its contract.
Where a party seeks a preliminary injunction to stay "government action taken in the public interest pursuant to a statutory or regulatory scheme," the moving party must demonstrate irreparable harm and a likelihood of success on the merits. Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir.1996) (quoting Able v. United States, 44 F.3d 128, 131 (2d Cir.1995)). A slightly higher standard applies where "the injunction sought `will alter, rather than maintain, the...
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