People for Ethical Treatment of Animal v. Giuliani
| Decision Date | 25 July 2000 |
| Docket Number | No. 00 Civ. 3972(VM).,00 Civ. 3972(VM). |
| Citation | 105 F.Supp.2d 294 |
| Parties | PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, Plaintiff, v. Mayor Rudolph GIULIANI, NYC 2000; New York City Department of Parks and Recreation; CowParade, LLC; CowParade Holdings Corp.; CowParade NYC 2000, Inc.; and Velocity Sports and Entertainment, LLC, Defendants. |
| Court | U.S. District Court — Southern District of New York |
M. Christine Carty, Lisa M. Cobb, Schnader, Harrison, Segal & Lewis, L.L.P., New York, NY, Gordon A. Einhorn, Jennifer DuFault James, Schnader, Harrison, Segal & Lewis, L.L.P., Harrisburg, PA, for plaintiff.
Edward J. Nolan, Law Offices of Edward J. Nolan, Hackensack, NJ, for CowParade, LLC, CowParade Holdings Corp., CowParade NYC 2000, Inc., Velocity Sports & Entertainment, LLC, defendants.
Plaintiff People for the Ethical Treatment of Animals, Inc. ("PETA") requests a preliminary injunction compelling defendants to display a design that PETA submitted for inclusion in a public art exhibit known as the CowParade. This event began in New York City on June 15, 2000 and is scheduled to end on September 3, 2000. The CowParade artwork is currently on display in various public open spaces throughout the City. PETA contends that by excluding one of PETA's proposed designs from the exhibit, defendants, a public-private partnership consisting of the City and the organizers of the CowParade, impermissibly infringed upon PETA's rights of expression in violation of the Federal and New York State Constitutions.
Courts are often called to rule upon novel concepts of words and deeds. This case presents a unique question: whether a cow is a forum or a forum a cow, and then when and where such a cow/forum may be found. Not surprisingly, any notion of first impression is bound to generate disputes arising from different understandings and applications of the unfamiliar concept. Any effort to resolve them is imbued with uncommon difficulties. In the realm of art and fanciful ideas, the challenge is perhaps compounded. The controversy here presents some weighty First Amendment questions. A full trial on the merits may not be possible before the CowParade ends. The disposition of PETA's motion for a preliminary injunction therefore is likely to resolve the most significant element of the controversy before the Court — the scope of PETA's right to display artwork as part of the CowParade.
The resolution of this case has been complicated and prolonged, not as much by any definitional questions related to the intended whimsy associated with the art exhibit, as by a number of substantial issues presented here that are entangled in legal ambiguities or that fall within the interstices of First Amendment doctrine. These circumstances have required more than the ordinary amount of deliberation within less time than normally required to decide issues of significant moment, explaining the uncommon length of this opinion. Perhaps less constraint might have yielded more concision. To paraphrase Blaise Pascal and others, if the Court had had more time, it would have written a shorter opinion.1
Having fully considered that the disposition of PETA's request for a preliminary injunction potentially constitutes final relief in this action, the Court denies PETA's motion.
PETA is a non-profit animal rights organization which claims more than seven hundred thousand members. It states that it is "dedicated to establishing and protecting the rights of all animals" and adheres to the philosophy that "animals are not ours to eat, wear, experiment on, or use for entertainment." Compl. ¶ 2. To this end, it aims "to provide public education in order to engender recognition of animal rights and ensure treatment of animals in accordance with animal rights." Id.
PETA brought suit against various public and private entities involved in organizing a public art event known as CowParade New York City 2000 (the "CowParade"), a joint public-private venture organized and presented by defendants. New York City Mayor Rudolph Giuliani (the "Mayor"), the New York City Department of Parks and Recreation and NYC 20002 (collectively, the "City") are the public co-hosts of the CowParade, having joined with the private entities CowParade, LLC, CowParade Holdings Corp., and CowParade NYC 2000, Inc. (collectively, with Velocity Sports and Entertainment, LLC, the "CowParade Organizers"). Defendant Velocity Sports and Entertainment, LLC was hired by the CowParade Organizers to oversee the planning and execution of the CowParade.
The CowParade itself, which began on June 15, 2000 and continues until September 3, 2000, is a public art exhibit now on display throughout New York City. Similar events have previously been sponsored in Zurich, Switzerland and Chicago by some of the CowParade Organizers. CowParade consists of approximately 500 life-size fiberglass sculptures of cows in three basic poses which have been painted, decorated or otherwise altered artistically. Individuals and groups, in particular "every corporation, restaurant, hotel and/or retailer in New York," were solicited by the CowParade Organizers to become "patrons," or sponsors, of CowParade by "adopting" a cow to be displayed as part of the event. See Declaration of Sean Gifford in Support of PETA's Motion for Preliminary Injunction, sworn to May 31, 2000 ("Gifford Decl."), Ex. A at 2. To become sponsors, interested groups or individuals were required to sign a sponsorship form and to pay $7,500 for each cow they sought to adopt, with a maximum of twenty-five cows per applicant. Sponsors could either select a design from among hundreds submitted to CowParade by independent artists or could themselves commission artists to design their cows, subject to the guidelines and approval process specified by the CowParade Organizers.
The approval process, though not set forth in the sponsorship agreement each applicant had to submit, involved design acceptance by a committee comprised of individuals representing the City and CowParade Organizers (the "Committee"). The Committee reviewed each of the submitted designs to determine which, if any, were not appropriate for the CowParade.
The decorated cow sculptures, in accordance with the standards applied by the City and the CowParade Organizers, are presently located in a wide variety of highly visible public and private areas throughout the City, including parks, sidewalks, building plazas and train stations.3 The City and CowParade Organizers have promoted CowParade as an important part of the City's millennial celebrations. According to a CowParade press release, Mayor Giuliani observed that the CowParade is a "unique public-private partnership" that "give[s] visitors and residents one more reason to explore the boroughs, while adding to New York City's creative, dynamic environment, and stimulating the economy." Gifford Decl., Ex. E. The financial benefit to the City and its businesses is emphasized strongly in CowParade's promotional materials, which point out that the CowParade in Chicago was "viewed by more than 10 million people and generated more than $500 million in additional tourism revenue." Id.
In addition to the indirect financial rewards the City expects from increased tourism and related revenue, it also anticipates a direct benefit by virtue of the agreement between the City, acting through the Commissioner of the Department of Parks and Recreation, and CowParade Worldwide, Inc. (the "Permit").4 See City Decl., Ex. B at § 8. The Permit requires CowParade to remit to the City Parks Foundation, Inc. 10% of its gross receipts from the sale of CowParade merchandise. See id. at § 8(c). It also provides that the City will receive 50% of the gross proceeds from an auction of exhibited cows that will be held at the end of the event. See id. at § 9.
The Permit also specifies the terms by which the CowParade may use certain public spaces for the exhibit. The exhibition "shall consist of temporary installations of life-sized fiberglass cows, which may be installed individually or in clusters, at various sites throughout the five boroughs." Id. at § 1. More importantly, the Permit sets out some of the design and review requirements which the City imposed on the CowParade Organizers as a condition for granting the Permit.
In the section marked "Consultation and Cooperation," the Permit requires that
[t]he parties shall consult with each other during all stages of the planning of the Exhibition. It is understood and agreed that the Permittee will assemble a committee that will be comprised of representatives of the City, including [the Department of Parks and Recreation], as well as members of the New York City arts community. Such committee shall establish guidelines for submission of work for display in the Exhibition, and will evaluate artists' work in light of the submission guidelines. The Committee, in its discretion, may direct Permittee to remove any Exhibition component that includes material that is indecent or demonstrates a lack of proper respect for public morals or conduct.
Id. at § 1. The Guidelines and Approval Process for Commissioned Designs (the "Guidelines") specify, in relevant part, that
[t]he Commissioned Artist is encouraged to be creative with his or her Commissioned Design, but to remember that the audience will be broad-based and of all ages. Commissioned Designs that are religious, political or sexual in nature will not be accepted....
Gifford Decl., Ex. G at ¶ 5. The Guidelines also specify that no corporate logos or advertisements would be permitted on the cows. See id. It is from an adverse decision of the Committee that PETA now seeks injunctive relief.
The contractual relationship between PETA and the CowParade Organizers began when PETA submitted a "CowParade New York 2000 Sponsorship Form" dated March 10, 2000 ("Sponsorship Form" or "Agreement"...
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