WINTER, Chief Judge.
Irvin Dana Beal and Robert B. MacDonald appeal from Judge Sprizzo's denial of their motion for a preliminary injunction. They seek to prohibit the New York City Department of Parks and Recreation (the "Parks Department") from enforcing certain restrictions on assemblies and rallies contained in provisions of Chapter 1 of Title 56 of the Rules of the City of New York ("RCNY" or the "Rules"). Appellants challenge these provisions as facially impermissible restraints on speech. The district court denied the motion on the ground that appellants had not shown a clear likelihood of success on the merits of their claims. On appeal, appellants contend principally that the Rules constitute an impermissible prior restraint on speech, that they give the Commissioner constitutionally excessive discretion to grant or deny permits, and that at least as to one
Pursuant to RCNY § 1-05, the Parks Department requires the acquisition of a special permit for assemblies of more than 20 persons on land within its jurisdiction. See 56 RCNY § 1-05(a)(2). Section 1-05(a)(4) permits the Commissioner of the Parks Department to deny a permit application for any of the following five reasons:
56 RCNY § 1-05(a)(4).
Section 1-05(a)(5) sets forth certain procedures that the Commissioner must follow in ruling on permit applications. If an application is filed 60 or more days prior to the requested date, the Parks Department "shall notify the applicant of its decision no later than 30 days prior to the requested date." Otherwise, "the Department shall notify the applicant of its decision as soon as is reasonably practicable." Further, "[i]f the permit is denied, the Department shall state the [provision] under which the permit was denied," and, unless the permit was denied pursuant to Section 1-05(a)(4)(iv), "shall employ reasonable efforts to offer the applicant suitable alternative locations and/or times and/or dates for the proposed event." Finally, Section 1-05(a)(5) provides for an administrative appeal from a denial of a permit if the appeal is filed within ten days of receipt of the notice of denial.
Beal and MacDonald are activists dedicated to the legalization of marijuana for medicinal purposes. They are affiliated with a group called Cures Not Wars ("Cures"). Cures has for several years held an annual parade and rally in early May. Each rally has been marred by arrests and damage. In February 1997, the Parks Department denied an application filed on behalf of Cures for a permit to hold a rally on May 3, 1997, in Washington Square Park ("WSP"). The grounds for the denial were violations of the Rules during previous Cures rallies. Cures filed an administrative appeal on March 18, 1997, which the Commissioner denied on March 24, 1997.
On April 18, 1997, Cures commenced a facial challenge to the Rules in New York State Supreme Court pursuant to CPLR Article 78, seeking injunctive relief. The court declined to hold the Rules unconstitutional but ordered the Parks Department to consider alternative sites and/or other restrictions for the rally. The Parks Department then offered Cures two alternative sites for the May 3 rally. Cures accepted Battery Park and scheduled the rally. On May 2, 1997, appellants informed the Parks Department that the rally was postponed on account of rain. However, on May 3, about 500 people, including MacDonald, gathered in WSP. MacDonald was arrested for conducting a rally without a permit in violation of 56 RCNY § 1-05(a)(2).
On May 5, 1997, Jerry Greenberg filed an application for a rescheduled Cures rally on September 6, 1997. On June 13, 1997, the Commissioner denied Greenberg's
No decision having been rendered by September 8, 1997, Beal and MacDonald commenced this action. Their complaint asserted in pertinent part that the permit requirement is a facially unconstitutional prior restraint on speech. It sought preliminary and permanent injunctive relief. Appellants contended, inter alia, that Section 1-05(a)(4)(iv) is overbroad and that the Commissioner has unconstitutionally excessive discretion to grant or deny permits under Sections 1-05(a)(4)(iv) & 1-05(a)(5).
On September 12, the Commissioner denied Greenberg's administrative appeal based on MacDonald's activities at the May 3, 1997 rally. On September 23, 1997, the Parks Department offered to allow appellants to conduct a rally on October 5 at Battery Park. Appellants rejected this offer, asking instead for a permit to hold a rally in City Hall Park.
On September 29, 1997, the district court denied plaintiffs' request for a preliminary injunction, finding that they had not demonstrated a likelihood of success on the merits. The district court reasoned that the permit requirement was content-neutral and thus "not a prior restraint of speech," but was rather a "reasonable time, place and manner restriction." It therefore concluded that "some discretion in the administrative officials is permissible." With regard to irreparable injury, the court found that while the Rules may have "some incidental effect on speech," the "balance of the hardships probably does tip in favor of the [Commissioner]." In addition, the district court ruled that Section 1-05(a)(4)(iv) was not susceptible to a facial challenge. The present appeal followed.
We review a district court's denial of a preliminary injunction motion for abuse of discretion. See Bery v. City of New York, 97 F.3d 689, 693 (2d Cir.1996). An error of law or fact would constitute an abuse of discretion, see id., but we are nevertheless "free to affirm an appealed decision on any ground which finds support in the record," Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir.1998) (internal quotation marks omitted).
In general, a district court may grant a preliminary injunction where the moving party establishes: (i) that it is likely to suffer irreparable injury if the injunction is not granted, and (ii) either (a) a likelihood of success on the merits of its claim, or (b) the existence of serious questions going to the merits of its claim and a balance of the hardships tipping decidedly in its favor. See Bery, 97 F.3d at 693-94. However, when "`the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme,' the injunction should be granted only if the moving party meets the more rigorous likelihood-of-success standard." Id. at 694 (quoting Plaza Health Lab., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989)). Finally, when the injunction sought "`will alter, rather than maintain the status quo,'" or will "`provide the movant with ... relief [that] cannot be undone even if the defendant prevails
The district court held that the challenged regulations were enacted in the public interest and pursuant to a regulatory scheme and that the relief sought was "in the nature of mandatory injunctive relief which [would provide appellants with] the benefit of a decision on the merits preliminarily." It thus held that the "clear likelihood of success" standard applied. We agree.
A city the size of New York cannot allow rallies or demonstrations to take place in city parks at the whim of promoters. Competing uses create scheduling problems, and others using parks for recreation have legitimate interests that must be protected. Some regulation is necessary. The challenged regulations plausibly exist for public rather than private goals and pursuant to a regulatory scheme. Moreover, the relief sought would at its broadest eliminate the permit requirement altogether and at its narrowest prevent the Commissioner from enforcing one or more of the challenged provisions of the Rules.
B. Irreparable Injury
The district court apparently assumed, for purposes of its ruling, that appellants had shown irreparable injury because the Rules have "some incidental effect on speech." It also noted with respect to the balance of hardships, however, that "the City would suffer substantial injury" from an erroneous decision.
Given that this action is a facial challenge to the Rules, the irreparable injury issue and the likelihood of success issue overlap almost entirely, and we need not dwell on the former. A statute that threatens freedom of expression to a significant degree by its nature gives rise to irreparable injury. See Bery, 97 F.3d at 693 ("Violations of First Amendment rights are commonly considered irreparable injuries for the purposes of a preliminary injunction." (citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976))). The conclusion that freedom of expression is threatened, however, depends on the merits of the action. Accordingly, in the context of this facial challenge, the presence of irreparable injury turns on whether the plaintiff has
C. Likelihood of Success
The district court concluded that appellants had not shown a clear likelihood of success on the merits, in part because it found that the challenged regulations were content-neutral "time, place and manner restriction[s]," and thus did not constitute a "prior restraint" on speech. We disagree.
Because the Rules condition the exercise of expressive activity on official permission—a Parks Department permit—they do constitute a "prior restraint" on speech. The essence of prior restraints are that "they g[i]ve public officials the power to deny use of a forum in advance of actual expression." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); see also Ward v. Rock Against Racism, 491 U.S. 781, 795 n. 5, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (quoting Southeastern Promotions); Jews for Jesus, Inc. v. Massachusetts Bay Transp. Auth., 984 F.2d 1319, 1327 (1st Cir.1993) (same); Dial Infor. Serv. Corp. v. Thornburgh, 938 F.2d 1535, 1543 (2d Cir.1991) (same). A regulation may constitute a prior restraint even if it is not content-based. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) (ordinance requiring permit and fee before authorizing public speaking, parades, or assemblies is prior restraint); Southeastern Promotions, 420 U.S. at 553-54, 95 S.Ct. 1239 (characterizing Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939), which involved licensing requirement for assembly in public parks, as prior restraint case); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (parade permit requirement is prior restraint). Further, "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). This view reflects "a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand." Southeastern Promotions, 420 U.S. at 559, 95 S.Ct. 1239 (opinion of O'Connor, J.).
The conclusion that a regulation constitutes a prior restraint, however, is not dispositive of its constitutional validity. "Although there is a heavy presumption against the validity of a prior restraint, the Court has recognized that government, in order to regulate competing uses of public forums, may impose a permit requirement on those wishing to hold a march, parade, or rally." Forsyth County, 505 U.S. at 130, 112 S.Ct. 2395 (internal quotation marks and citations omitted). In particular, content-neutral time, place, and manner restrictions are permitted so long as they are "narrowly tailored to serve a significant governmental interest, ... leave open ample alternatives for communication," and do "not delegate overly broad licensing discretion" to government officials. Id.; see also Bery, 97 F.3d at 697; Paulsen v. Gotbaum, 982 F.2d 825, 828 (2d Cir.1992).
A constitutional limitation on excessive official discretion exists because a regulation susceptible to arbitrary application "has the potential for becoming a means of suppressing a particular point of view. To curtail that risk, a law subjecting the exercise of First Amendment freedoms to the
i. Extent of Official Discretion under the Rules
Appellants contend that the Rules accord the Commissioner unbridled discretion to grant or deny permits. They note that Sections 1-05(a)(4)(iv) and 1-05(a)(5) together permit, but do not require, the Commissioner to deny a permit to persons who have been issued a permit in the preceding four years and violated a material term thereof, and argue that the Rules lack certain procedural safeguards required by Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). The district court did not reach either of these concerns. With respect to the former claim, the district court held that Section 1-05(a)(4)(iv) was not susceptible to a facial challenge; as to the latter claim, it found that the rules were not prior restraints and, as a result, did not address the so-called Freedman factors.
We disagree with the district court's conclusion that the Commissioner's discretion under Section 1-05(a)(4)(iv) is not susceptible to a facial challenge, even one that may ultimately be unsuccessful. The district court viewed such a challenge as foreclosed by the dispute between the parties as to whether the Commissioner had exceeded his authority in denying a permit to Greenberg under this provision. Because of this denial, the court concluded that appellants could challenge this determination only "as applied."
The fact that appellants had been denied a permit on the ground that they had violated a term of an earlier permit does not, in our view, preclude them from raising a facial challenge to Section 1-05(a)(4)(iv), if that provision is otherwise susceptible to a facial challenge. See Forsyth County, 505 U.S. at 129, 112 S.Ct. 2395 (facial challenge to provision can lie "even though its application in the case under consideration may be constitutionally unobjectionable"). Instead, the question remains whether the provision does, as alleged, "vest unbridled discretion in a government official over whether to permit or deny expressive activity." City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 755, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988); cf. Ward, 491 U.S. at 793-94, 109 S.Ct. 2746 (suggesting facial challenge inappropriate where challenged discretion did not include authority to deny permits altogether).
Although facial challenges are generally disfavored, they are more readily accepted in the First Amendment context. See Forsyth County, 505 U.S. at 129, 112 S.Ct. 2395 ("It is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation...."); Lebron v. National R.R. Passenger Corp., 69 F.3d 650, 659 (2d Cir.1995) ("[T]he Court has altered its traditional rules of standing to permit [facial attacks] in the First Amendment area...."). "This exception ... is
Although Section 1-05(a)(4)(iv) may be susceptible to a facial challenge, that challenge—or the likelihood of its success—cannot be determined on the present record. Section 1-05(a)(4) sets forth the grounds on which permit applications may be denied. Each of the grounds other than that set forth in subsection (iv) relates directly to the appropriateness of the desired location for the planned activity, and subsection (iv) is also arguably related only to the selection of a particular park.
However, it is the combination of Sections 1-05(a)(4)(iv) and 1-05(a)(5) that appellants contest. Section 1-05(a)(5) requires the Commissioner, where a permit application has been denied for any reason other than pursuant to 1-05(a)(4)(iv), to "employ reasonable efforts" to provide "suitable alternative locations and/or times and/or dates for the proposed event." Thus, appellants assert that, in situations where the Commissioner finds that Section 1-05(a)(4)(iv) applies, an applicant may be denied a permit altogether under that provision. If so read, the carve-out in Section 1-05(a)(5) significantly increases the discretion afforded the Commissioner under Section 1-05(a)(4)(iv).
ii. Freedman Factors
In support of their contention that the Rules vest unbridled discretion in the hands of implementing officials, appellants also note the lack of a specified time-period in which the Commissioner must act upon a permit application and of an avenue for prompt judicial review of a permit denial. They rely on a line of Supreme Court cases holding that prior restraint schemes that fail to place specific and reasonable time limits on official decisionmaking and to provide for prompt judicial review of adverse decisions are impermissible. See FW/PBS, 493 U.S. at 228, 110 S.Ct. 596 (opinion of O'Connor, J.) (citing Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965)). In FW/PBS, Justice O'Connor explained that "[w]here the licensor has unlimited time within which to issue a license, the risk of arbitrary suppression is as great as the provision of unbridled discretion." Id. at 227, 110 S.Ct. 596 (opinion of O'Connor, J.).
The district court, because it concluded that the challenged regulations did not amount to a prior restraint, held that the so-called Freedman factors were not applicable. For reasons stated above, the regulations do constitute a prior restraint. Thus, the district court should have considered whether they pass muster under Freedman analysis.
In Freedman, the Court invalidated a statute requiring exhibitors of motion pictures to submit films to the State Board of Censors for examination in advance of screening. In order to challenge the statute, Freedman had exhibited a film without prior submission to the Board. Although the state conceded that the exhibited film did not violate statutory standards, Freedman was nevertheless convicted of a statutory violation. See 380 U.S. at 52-53, 85 S.Ct. 734. The issue on appeal was not whether the Board could exercise censorship authority, but whether the lack of temporal limits rendered the censorship scheme an invalid prior restraint. The Court concluded that it did, noting that the lack of time restraints
In FW/PBS, the Court made clear that Freedman also applied to content-neutral prior restraint situations. FW/PBS involved a broad challenge to a licensing and zoning scheme passed by the city of Dallas to regulate sexually oriented businesses. The Fifth Circuit, viewing the ordinance as a content-neutral time, place, and manner regulation, held, inter alia, that the procedural safeguards set forth in Freedman did not apply. The Supreme Court reversed, noting that because the ordinance lacked adequate procedural safeguards, it need not reach the question of whether the scheme was content-neutral. See 493 U.S. at 223, 110 S.Ct. 596 (opinion of O'Connor, J.). The Court was divided over how many of the Freedman factors applied. Justice O'Connor, in a section of her opinion for the court joined by two other Justices, stated that because the city did not "exercise discretion by passing judgment on the content of any protected speech," the third Freedman factor—that the censor bear the burden of going to court and the burden of proof once there—was not applicable. Id. at 229, 110 S.Ct. 596. Justice Brennan, in a concurrence joined by Justices Marshall and Blackmun, argued that all three Freedman factors applied. See id. at 238-39, 110 S.Ct. 596 (Brennan, J., concurring in the judgment). Thus, six Justices held that "the first two [Freedman] safeguards are essential". Id. at 228, 110 S.Ct. 596 (opinion of O'Connor, J.).
In the present case, the challenged regulations are content-neutral and thus need comply with only the first two Freedman factors. See Chesapeake B & M, Inc. v. Harford County, 58 F.3d 1005, 1010 (4th Cir.1995); Grand Brittain, Inc. v. City of Amarillo, 27 F.3d 1068, 1070 (5th Cir. 1994). With respect to the first factor, Section 1-05(a)(5) in fact contains somewhat specific time limits on agency action. It requires that the Parks Department respond to a permit application "no later than 30 days prior to the requested date" unless the application was filed within 60 days of the date requested, in which case the Department is to respond "as soon as is reasonably practicable." Appellants point out that the Supreme Court has interpreted Freedman to mean that "the licensor must make the decision ... within a specified and reasonable time period." FW/PBS, 493 U.S. at 228, 110 S.Ct. 596 (opinion of O'Connor, J.). Because the Rules require only that decisions be made with reference to the requested date, not the application date, appellants contend that the permitted time-period is neither "specified" nor always "reasonable."
We are unprepared, on this record, to hold that appellants have shown a clear likelihood of success on the merits of this claim. The Parks Department has defended the validity of this provision by pointing out its need to balance competing requests for permits. It contends that were it to have to act within a set period of time after receiving a permit, it would lose flexibility with respect to last-minute permit applications. Because many important
Although we express no opinion as to the ultimate merits of the Parks Department's argument, it is not plainly unreasonable. Neither Freedman nor FW/PBS involved the problem of competing applicants for limited public fora whose needs vary in their degree of urgency. Circumstances in which a speaker seeks a permit that, if granted, will not affect the ability of others to engage in expressive activity differ materially from circumstances in which the granting of a permit will exclude other speakers whose needs may be more urgent. In the former case, requiring the observance of specific time limits does not limit the speech of others; in the latter, it may. Whether Section 1-05(a)(5) is problematic under Freedman will depend, in significant part, on facts that should be more fully developed at trial, including, inter alia, the number of competing permit requests the Parks Department receives in a given year, the temporal distribution of applications in advance of requested dates, and both applicants' and the Parks Department's need for advance notice and flexibility.
We are likewise unprepared, on this record, to invalidate the Rules for failure to specify a time-period in which appeals from permit denials will be resolved or to provide for prompt judicial review thereof. Although either failure, if proved at trial, would constitute a First Amendment violation, the record is incomplete with respect to these issues. For instance, if the Parks Department's demonstrated practice in implementing the Rules is to respond promptly to appeals of permit denials, this practice should be taken into account.
iii. Section 1-05(a)(4)(iv)
Appellants also contend that Section 1-05(a)(4)(iv), discretion aside, is an unlawful prior restraint in that it is neither "narrowly tailored" nor "leaves open ample alternative channels for communication." Forsyth County, 505 U.S. at 130, 112 S.Ct. 2395. Their "narrowly tailored" argument is that the provision is both over- and under-inclusive in that it applies only to people who have been issued a permit in the previous four years. Thus, someone who has not been issued a permit in the past but who has caused serious damage to a park is not covered by this provision, while someone who was issued a permit in the past and exceeded his allotted time by five minutes is covered. Their argument with respect to "ample alternatives" is simply that this provision, together with Section 1-05(a)(5), permits the Commissioner to deny a permit outright to one class of applicants.
That a provision is over- and under-inclusive is not generally sufficient to trigger the narrowly tailored requirement, see Ward, 491 U.S. at 798-99, 109 S.Ct. 2746 (least restrictive means not required), though the means chosen may not be "substantially broader than necessary to achieve the government's interest ...,"
We are not prepared to find on this record that appellants have shown a clear likelihood of success on the merits of either claim. As to narrow tailoring, we simply do not have sufficient evidence to determine whether the means chosen by the Parks Department are substantially broader than necessary. Resolution of this issue will depend on amplification of the record as to various matters, including the nature and extent of the harms inflicted on public parks by those who are issued permits and violate park rules and the nexus between the class covered by the provision and the harms it seeks to address. Similarly, although appellants argument with respect to the closure of alternative locations is not without force—the outright denial of a permit for four years is a potentially severe sanction, and arguably fails to leave open ample alternatives for communication
For the above reasons, we remand the case to the district court. Although this decision leaves open the possibility that appellants may again move for a preliminary injunction on a slightly amplified record, we believe the merits of this dispute would best be resolved by a proceeding in which a complete record is made as, for example, suggested in Fed.R.Civ.P. 65(a)(2). We emphasize, in any event, that nothing we say should be construed to express any opinion as to whether, on a more complete record, appellants will succeed in establishing that the Rules are facially invalid under the First Amendment.