Picard v. Clark
| Decision Date | 29 July 2020 |
| Docket Number | 19cv3059 (DLC) |
| Parties | Michael PICARD, Plaintiff, v. Darcel D. CLARK, in her official capacity as District Attorney for Bronx County and Michael Magliano, in his official capacity as Chief of Public Safety for the New York Unified Court System, Defendants. |
| Court | U.S. District Court — Southern District of New York |
For the plaintiff: Brian Hauss, Arianna Marie Demas, American Civil Liberties Union Foundation, 125 Broad Street, 18th Floor, New York, NY 10004.
For defendant Darcel D. Clark : James E. Johnson, Corporation Counsel for the City of New York, Susan P. Scharfstein, of Counsel, 100 Church Street, New York, NY 10007.
For defendant Michael Magliano: Letitia James, New York Attorney General, Michael A. Berg, Assistant Attorney General, 28 Liberty Street, New York, NY 10005.
At this bench trial, which has been submitted on the written record, Michael Picard ("Picard") challenges the constitutionality of New York Penal Law § 215.50(7) ("§ 50(7)" or the "Act"). This misdemeanor criminal contempt statute prohibits shouting and display of signage within two hundred feet of a courthouse where that speech concerns a trial ongoing in that courthouse. As explained below, the Act is facially unconstitutional.
The following constitutes the Court's findings of fact. On December 4, 2017, Picard stood on the public sidewalk outside the Bronx County Hall of Justice, located at 265 East 161 Street, Bronx, New York, to advocate for jury nullification.1 He stood on the north side of East 161 Street, between Sherman Avenue and Morris Avenue, outside the main entrance to the courthouse. While there, he held a single sign with the words "Jury Info."
Picard also handed about four pedestrians flyers that said: on one side and " ‘One has a moral responsibility to disobey unjust laws’ – Martin Luther King Jr." on the other side. Picard did not ask any of these individuals whether they were serving on a jury.
About five minutes after Picard began to distribute his flyers, a New York State Court Officer approached Picard and informed him that it is against the law to distribute flyers about jury nullification within two hundred feet of a courthouse. Several times, the officer asked Picard to move and warned him that he would be arrested if he did not move at least 200 feet from the courthouse.
Picard refused to move. He stated that he was standing on a public sidewalk and was permitted to distribute flyers advocating jury nullification. A New York State Court Officer took Picard into custody for violating the Act.
Picard was released several hours later when a New York County Assistant District Attorney ("ADA") declined to pursue the charge. The ADA's Affidavit explaining that decision stated in relevant part:
The People decline to prosecute the instant matter due to insufficient evidence. On December 4, 2017, at 8:05am, arresting officer observed defendant on the sidewalk in front of the courthouse, holding and displaying a sign with the words printed JURY INFORMATION, and displaying pamphlets stating NO VICTIM NO CRIME. When the arresting officer approached Defendant and informed him that he needed to be 200 feet away from the courthouse to protest, the defendant refused to move. Since the officer did not measure the distance between defendant and the courthouse, the People have insufficient evidence to meet their burden of proof at trial and as such, the charges must be dismissed.
Although Picard was arrested for an alleged violation of § 50(7), it is useful to the discussion that follows to recite the entirety of N.Y. Penal Law § 215.50. It provides:
N.Y. Penal Law § 215.50 (emphasis supplied). Under New York law, a class A misdemeanor carries a maximum sentence of one year of imprisonment. Id. § 70.15(1).
Since his arrest, Picard has not advocated for jury nullification within 200 feet of a courthouse in New York State. He fears that, if he were to do so, he would be arrested and prosecuted for violating the Act. Were it not for the Act, he would continue his advocacy outside of courthouses in New York, including the Bronx County Hall of Justice.
Picard filed this action on April 5, 2019. Picard has sued Michael Magliano, Chief of Public Safety for the New York Unified Court System, and Darcel D. Clark, District Attorney for Bronx County, in their official capacities. Picard seeks declaratory and injunctive relief under the First and Fourteenth Amendments. Picard asserts that the Act is facially unconstitutional because it imposes a content-based restriction on speech in a traditional public forum. He argues that the Act is substantially overbroad because the vast majority of its applications will be unconstitutional. Picard adds that, in any event, the Act violates the First Amendment as applied to Picard.
On December 2, 2019, the Court rejected the defendants’ assertion that Picard lacked standing to bring this lawsuit.2 Picard v. Clark, No. 19CV3059 (DLC), 2019 WL 6498306, at *1 (S.D.N.Y. Dec. 2, 2019) (the "December 2019 Opinion"). On March 6, 2020, the parties filed a joint pretrial order in which they consented to submit this case to the Court for a verdict based on the written record.
The First Amendment, which applies to the states through the Fourteenth Amendment, "provides that ‘Congress shall make no law abridging the freedom of speech.’ " Hobbs v. Cty. of Westchester, 397 F.3d 133, 148 (2d Cir. 2005) . "Speech on matters of public concern is at the heart of the First Amendment[ ]" and is "entitled to special protection." Snyder v. Phelps, 562 U.S. 443, 451-52, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (citation omitted).
Ordinarily, to succeed in a facial attack to the constitutionality of a statute, a plaintiff must establish that "no set of circumstances exists under which [the law] would be valid, or that the statute lacks any plainly legitimate sweep." United States v. Stevens, 559 U.S. 460, 472, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (citation omitted). "In the First Amendment context, however, th[e] Court recognizes a second type of facial challenge, whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Id. at 473, 130 S.Ct. 1577 (citation omitted). In an as-applied challenge, by contrast, a court must assess whether a statute, even if constitutional on its face, "deprived the individual to whom it was applied of a protected right." Field Day, LLC v. Cty. of Suffolk, 463 F.3d 167, 174 (2d Cir. 2006).
Picard brings a facial challenge to § 50(7) as a content-based restriction of speech in a traditional public forum. In traditional public fora, "any restriction based on the content of the speech must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest." Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). See also Johnson v. Perry, 859 F.3d 156, 172 (2d Cir. 2017). There is no dispute that protection of the integrity of the judicial process represents a compelling government interest. For example, the Supreme Court has "recognized the vital state interest in safeguarding public confidence in the fairness and integrity of the nation's elected judges." Williams-Yulee v. Fla. Bar, 575 U.S. 433, 445, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015) (citation omitted).
"Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed." Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015) (citation omitted). That is, a law is "content based if it require[s] enforcement authorities to examine the content of the message that is conveyed to determine whether a violation has occurred." McCullen v. Coakley, 573 U.S. 464, 479, 134 S.Ct. 2518, 189 L.Ed.2d 502 (2014) (citation omitted).
Even if serving a compelling state interest, a content-based restriction on speech...
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Picard v. Magliano
...Constitution because it is a content-based restriction on speech in a public forum that fails strict scrutiny." Picard v. Clark , 475 F. Supp. 3d 198, 208 (S.D.N.Y. 2020).Neither party disputed that NYPL § 215.50(7) was "directed towards a compelling state interest," namely, "to protect the......
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