MEMORANDUM OPINION (WITH PRELIMINARY INJUNCTION)
KAPLAN, District Judge.
This case poses a problem as old as the republic. Plaintiff seeks to conduct a large event in Harlem which it describes as a First Amendment-religious-political event and which is aimed chiefly at African-American youth. Persons associated with it reportedly have made exceptionally biased and bigoted remarks about another group in our society. The City of New York, citing health and safety concerns, has denied a permit necessary for plaintiff's event. Plaintiff claims that the City's stated reasons for its actions are pretextual and that its actions are the product of bias against the plaintiff or the reported views of its associates. The question presented is whether plaintiff has a constitutional right to go ahead with its plans.
Plaintiff and the Proposed Event
Plaintiff Million Youth March, Inc. ("MYM"), a non-profit organization, sought a permit from agencies of the City of New York ("City") to hold a rally on the 29 blocks of Malcolm X Boulevard from 118th Street to 147th Street on September 5, 1998 from 7:00 a.m. until 7:00 p.m.
The Permit Applications
MYM submitted several applications for permits to the defendants. The first, received on November 21, 1997 by the City's Department of Parks and Recreation ("DPR"), requested approval to hold an "Educational — First Amendment" event on September 19, 1998 in Central Park, Randall's Island or in an unspecified "street."
MYM then submitted two applications on January 26, 1998 to the Street Activity Permit Office ("SAPO") of the Community Affairs Unit ("CAU") of the Office of the Mayor.
Duran notified MYM by letter dated March 4, 1998 that the SAPO applications had been denied due, among other things, to construction on a portion of Malcolm X Boulevard and a West Indian Children's Day Carnival on Eastern Parkway on September 5, 1998.
After O'Keefe informed MYM that "there are several issues and concerns that must be addressed before we may proceed with your proposal for the September 5th Million Youth March,"
First, CAU asserted that September 5, 1998 would be inappropriate "because it falls during the Labor Day weekend ... when there are numerous other activities on the City's streets and the City parks are at maximum utilization," in particular, the "West Indian Parade and similar activities which have been held on Labor Day weekend
CAU rejected MYM's alternate proposals for Fifth Avenue and Eastern Parkway, stating that those areas are "similarly inappropriate for a stationary rally of the size and length" proposed. Finally, the letter stated that "large parks are preferable" for such events, but that Central Park was unavailable because the North Meadow is being reseeded until the year 2000. The letter instead proposed that MYM hold its rally in Van Cortlandt Park in the Bronx because of its accessibility to public transportation, major thoroughfares and sanitation facilities, or on Randall's Island, which contains an amphitheater, soccer field and large parking lot. It suggested September 19, 1998 from 12 noon to 5:00 p.m. without justifying the reduction from the 7:00 a.m. to 7:00 p.m. period requested by MYM.
Whether or not talks continued after MYM received the June 9th letter is a matter of contention among the parties. MYM asserts that several meetings were planned and then canceled by the defendants but that MYM continued to hope that the September 5th rally in Harlem would be approved. The defendants deny that any subsequent meetings or discussions occurred.
As the negotiations over the rally location and time stalled, controversy concerning the event erupted in the media.
Khalid Muhammad, a former Nation of Islam spokesperson and central organizer of the event, previously had made a number of outrageous, inflammatory and prejudiced remarks, such as a description of a Jew as a "hooked-nose, bagel-eating, lox-eating, perpetrating-a-fraud so-called Jew who just crawled out of the ghettos of Europe a few days ago."
Plaintiff filed this action on August 20, 1998 and at the same time moved for a preliminary injunction ordering the defendants to permit it to conduct its rally on September 5, 1998 on Malcolm X Boulevard from 118th to 147th Streets.
Preliminary Injunction Standard
"In order to justify the award of a preliminary injunction, the moving party
In this case, plaintiff seeks a preliminary injunction "ordering the defendants to permit the plaintiff to conduct its September 5, 1998 rally in Harlem on Malcolm X Blvd. between 118th Street and 147th Street commencing at 7:00 a.m. and concluding at 7:00 p.m." and "enjoining the defendants from enforcing their policy limiting First Amendment activity" at that time and place.
"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."
The Second Circuit observed in Citibank, N.A. v. Citytrust
Plaintiff's delay is more appropriately viewed as an equitable factor possibly indicative of conduct warranting application of the doctrine of laches.
Defendants argue also that injunctive relief should be denied because persons allegedly affiliated with plaintiff have threatened in the media to go forward with the event regardless of this Court's decision. Thus, defendants contend, plaintiff has engaged in inequitable conduct disqualifying it from equitable relief.
The Court does not condone lawless action. At the same time, the Court recognizes that this controversy takes place against a back-drop of overheated political rhetoric. The public interest will best be served by a decision resolving this controversy on its constitutional
Likelihood of Success on the Merits
Plaintiff asserts that defendants' permit policy for events such as this is unconstitutional both on its face and as applied to them.
The constitutional framework governing this dispute is well-settled. Malcolm X Boulevard, like any public street, is a traditional public forum for the exercise of First Amendment rights.
MYM contends that defendants' licensing scheme as applied here was not a reasonable time, place, and manner restriction. Moreover, MYM argues that defendants' licensing scheme is facially unconstitutional because it vests unfettered discretion in the government officials that implement it. The Court first considers plaintiff's facial challenge.
A. Facial Validity of the Licensing Scheme
"`[M]any decisions of the [Supreme] Court over the last  years [have held] that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional.'"
The lack of any statutory or regulatory framework directly applicable to this hybrid event itself is problematic. As indicated above, the City's action must be taken pursuant to narrow, definite and objective standards in order to pass muster as a reasonable regulation of the time, place and manner of constitutionally protected expression. Indeed, the ad hoc approach taken here is similar to that struck down by the New York Court of Appeals in City of New York v. American School Publications, Inc.,
The same result would follow even if the Court were to assume that the City acted pursuant to both Section 10-110 of the Administrative Code and SAPO's Activity Rules or the Activity Rules alone. If both were applied, the official who denied the permit would have been obliged, or at least permitted, to do so under the criteria set forth in either provision. Hence, if either provision conferred impermissibly broad discretion, the scheme would run afoul of the First and Fourteenth Amendments.
SAPO's Activity Rules provide for licensing determinations by SAPO's director upon applications submitted to SAPO either directly or by local community boards.
Appeal is to the Commissioner of CAU, who is under no obligation to consider any particular factors in assessing the merits of the appeal.
The Activity Rules vest unconstitutional discretion in the director and commissioner to determine which speakers shall be licensed for street activity and which shall not. Indeed, Section 1-07(c)(4), which allows licenses to be denied in the "best interest" of the community for unlisted or listed reasons — including the good character of the event's sponsor — is a virtual prescription for unconstitutional decision making of the sort specifically struck down by the Supreme Court in Shuttlesworth.
B. As-Applied Challenge
Even if the applicable licensing regulations were facially constitutional, the manner in which the City enforced its policy in this case quite likely was not.
"In examining the constitutionality of a regulation that impinges on First Amendment activity, courts will apply a strict scrutiny analysis when the regulation discriminates
1. Narrow Tailoring
The plaintiff has conceded the significance of the asserted government interest, the "regulation of street activity to protect the public safety."
In Ward v. Rock Against Racism,
The plaintiffs argue that the restriction inherent in the defendants' action burdens substantially more speech than necessary to regulate street activity and protect public safety. In particular, the plaintiff contends that numerous street events — including stationary rallies as large as, or larger than, this proposed event — are permitted in Manhattan, often at times as busy as the Labor Day weekend. The plaintiff cites as examples the rally for Nelson Mandela held in Harlem on June 21, 1990, which reportedly was attended by one hundred thousand or more people, and the World Series victory rally for the New York Yankees held in lower Manhattan in October 1996, which involved an estimate of over a million people, both of which occurred without incident.
The Court agrees. While the City is not limited to the least restrictive means necessary to advance its interests, it is not free to impose a ban such as this without a persuasive showing that the event poses a significant threat to those interests. The Court has no doubt that the proposed event would require substantial effort on the part of the City to ensure the public health, safety and welfare. But the testimony at the evidentiary hearing persuades the Court that the task is well within the capabilities of the Police Department and the other relevant City agencies, even without imposing a least restrictive alternative standard.
To begin with, the City argues in some measure from the premise that the crowd drawn by this event will be in the range of 1 to 3 million, the doubtless hopeful and overly optimistic figure first put forward by its sponsor, or perhaps one of the smaller but nonetheless very large figures plaintiff has advanced at one time or another. But the defendants bear the burden of establishing that their time, place and manner restriction
Second, the City's arguments to some extent assume that the total attendance figure, whatever it proves to be, will be the number of persons present on Malcolm X Boulevard throughout all or most of the period of the event. Common sense suggests otherwise. In an event planned to last for the better part of twelve hours, it is entirely likely that people will drift in and out throughout the day and that the maximum number of people to be accommodated at any one time will be only a fraction of the total attendance figure. While the Court finds that the capacity of the relevant portion of Malcolm X Boulevard, after making due allowance for emergency access and other necessities, is closer to 135,000 people than to plaintiff's best case figure of 163,000,
Far more important, the City has ample ability to deal with any problems of congestion, emergency access, overcrowding and fire risk that may arise while allowing the event to go forward in some form at this date and place. Plaintiff's submissions assume that 118th, 125th, 135th, 139th and 147th Streets will not be obstructed. The City may insist upon the reservation of an unobstructed lane on Malcolm X Boulevard for emergency vehicles and, indeed, unobstructed cross streets. And the Police Department is fully capable of closing access to Malcolm X Boulevard and environs if its safe capacity is reached and directing any overflow crowd into nearby areas. It has done so with other events. Indeed, police officials indicated that the department could police the event with approximately 2,000 to 3,000 officers on each of two tours.
Lest there be any confusion on the point, this Court emphatically is not imposing any form of least-restrictive-alternative test on the City. What Ward prohibits is imposing a burden on "substantially more speech than is necessary to further the government's legitimate interests."
In view of the defendants' failure to demonstrate that this permit must be denied outright in order to protect public safety and its long history of successfully dealing with large and unpredictable events, this action was not narrowly tailored to the undeniably legitimate safety and health concerns the defendants have articulated.
2. Ample Alternatives
It is not disputed that "[w]hether ample alternatives are available does not depend on the preference of the speaker for one method or another. [Plaintiff] has no constitutionally protected franchise on the forum of its choice."
"The right of free speech is guaranteed every citizen that he may reach the minds of willing listeners and to do so there must be opportunity to win their attention."
Courts in other districts have reached comparable conclusions. In Nationalist Movement v. City of Boston,
In this case, plaintiff desires to communicate its views not merely to the participants in the event, but also to the residents of Harlem: "the rally will have a more significant and greater impact if convened in the community where the residents are subjected to the very conditions that the march and rally seek to address."
Plaintiff's desired venue is relevant to the ample alternatives analysis for an additional reason. Harlem enjoys a unique place in the African-American experience. Holding the event in that location will infuse substantial and unique additional meaning to the message of the event. While this alone is not controlling here, its relevance to the analysis was recognized expressly by the Supreme Court in City of Ladue
Accordingly, plaintiff's motion for a preliminary injunction is granted to the extent set forth in the preliminary injunction previously entered.
The foregoing constitute the Court's findings of fact and conclusions of law.
Plaintiff having moved for a preliminary injunction, and the Court having conducted an evidentiary hearing, considered the submissions of the parties, rendered findings of fact and conclusions of law in open court, and reserved the right to supplement its findings and conclusions in a written opinion to be filed subsequently, it is hereby
ORDERED, that plaintiff's motion is granted only to the extent that defendants are enjoined and restrained, pending the hearing and determination of this matter, from relying on the absence of a permit from the City of New York to interfere with plaintiff's proposed event on Malcolm X Boulevard on September 5, 1998, provided, however, that nothing herein shall limit any other lawful exercise of defendants' authority including, but not limited to, maintaining access for emergency vehicles, keeping intersections open to the extent necessary to permit appropriate movement of east-west traffic and crowd expansion space, and permitting access to and egress from police and fire stations and Harlem Hospital.
In the alternative, the Court concludes that the clear or substantial likelihood standard is applicable because plaintiff requests the Court to mandate the issuance of a permit, altering the status quo. See id.; cf. Tom Doherty, 60 F.3d at 34 (noting the ambiguity of the distinction between mandatory and prohibitory injunctions).
The Court observes that time, place, and manner analysis differs little if at all from the analysis of restrictions on expressive conduct under United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). See Clark, 468 U.S. at 298, 104 S.Ct. 3065.
"Even when the use of its public streets and sidewalks is involved ... a municipality may not empower its licensing officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, or parade according to their own opinions regarding the potential effect of the activity in question on the `welfare' ... of the community." Shuttlesworth, 394 U.S. at 153, 89 S.Ct. 935.
"§ 10-110 Processions and Parades
"a. Permits. A procession, parade, or race shall be permitted upon any street or in any public place only after a written permit therefore has been obtained from the police commissioner. Application for such permit shall be made in writing, upon a suitable form prescribed and furnished by the department, not less than thirty-six hours previous to the forming or marching of such procession, parade or race. The commissioner shall, after due investigation of such application, grant such permit subject to the following restrictions:
"1. It shall be unlawful for the police commissioner to grant a permit where the commissioner has good reason to believe that the proposed procession, parade, or race will be disorderly in character or tend to disturb the public peace;
"2. It shall be unlawful for the police commissioner to grant a permit for the use of any street or any public place, or material portion thereof, which is ordinarily subject to great congestion or traffic and is chiefly of a business or mercantile character, except, upon loyalty day, or upon those holidays or Sundays when places of business along the route proposed are closed, or on other days between the hours of six-thirty post meridian and nine ante meridian;
"3. Each such permit shall designate specifically the route through which the procession, parade or race shall move, and it may also specify the width of the roadway to be used, and may include such rules and regulations as the police commissioner may deem necessary;
"4. Special permits for occasions of extraordinary public interest, not annual or customary, or not so intended to be, may be granted by the commissioner for any street or public place, and for any day or hour, with the written approval of the mayor;
"5. The chief officer of any procession, parade or race, for which a permit may be granted by the police commissioner, shall be responsible for the strict observance of all rules and regulations included in said permit.
"b. Exemptions. This section shall not apply:
"1. To the ordinary and necessary movements of the United States army, United States navy, national guard, police department and fire department; or
"2. To such portion of any street as may have already been, or may hereafter be duly, set aside as a speedway; or
"3. To processions or parades which have marched annually upon the streets for more than ten years, previous to July seventh, nineteen hundred fourteen.
"c. Violations. Every person participating in any procession, parade or race, for which a permit has not been issued when required by this section, shall, upon conviction thereof, be punished by a fine of not more than twenty-five dollars, or by imprisonment for not exceeding ten days, or by both such fine and imprisonment."
During a preliminary hearing before the Court on August 20, 1998, however, confusion reigned on this issue. Among the agencies named as potentially responsible for considering MYM's application were the Parks Department (to whom MYM originally applied), the NYPD, the CAU, and the transportation department. Tr., 8/20/98 at 22-25. Defendants eventually asserted that, in order to obtain a permit to hold the March on Malcolm X Boulevard, permission from the NYPD would be sufficient. Id. at 25.