José A. Cabranes, Circuit Judge:
The City of New York, the New York City Police Department, Mayor Rudolph W. Giuliani, and Police Commissioner Howard Safir (collectively, the "NYPD") appeal from an order of the United States District Court for the Southern District of New York (Kimba M. Wood, Judge), entered June 10, 1999, preliminarily enjoining the NYPD from prohibiting members of plaintiff Latino Officers Association ("LOA") from marching, in uniform and behind an LOA banner, in various parades. See Latino Officers Ass'n v. City of New York, No. 97 Civ. 1384(KMW), 1999 WL 386753 (S.D.N.Y. June 10, 1999) ("LOA"). The District Court found, inter alia, that plaintiffs had demonstrated a substantial likelihood of success on the merits of their claim that the NYPD policy at issue violates LOA members' rights under the First Amendment. Several days before the last of the parades in question, in an order entered October 6, 1999, we affirmed the judgment of the District Court, and indicated that we would thereafter file an opinion explaining our reasons for that disposition. We now explain those reasons.
The LOA is a fraternal organization that seeks to promote the ideals, goals, and interests of Hispanic officers in the NYPD.
In February 1997, plaintiffs brought this action, under 42 U.S.C. § 1983, challenging the process by which the NYPD officially recognizes groups composed of NYPD members organized on the basis of ethnicity, religion, and sexual orientation. Such official recognition — currently accorded to 25 groups, including the Hispanic Society, see LOA, 1999 WL 386753, at *1 n. 2 (listing all 25) — allows an organization to use NYPD facilities for meetings and fundraising, to post notices on NYPD bulletin boards, to list events in the official NYPD calendar of events, and to recruit members at the Police Academy. In addition, only a recognized organization may seek permission on behalf of its members to march in a parade in uniform and behind the organization's banner. If a recognized organization is marching in a parade, any officer may march in uniform behind that organization's banner. In contrast, if an officer chooses to march behind the banner of an unrecognized group, he may not wear his NYPD uniform.
The process by which groups apply for recognition by the NYPD is now set forth in NYPD Personnel Bureau Memo 30 ("PBM 30"), which was promulgated in May 1998. According to PBM 30, "official recognition of an organization is at the sole discretion of the police commissioner." To be recognized, however, the objectives of a prospective organization "must be consistent with the goals and mission of the [NYPD] . . . [and] consistent with the law." Further, PBM 30 notes that, "[i]n order to promote harmony within the Department, discourage rivalries between groups of officers and conserve the resources of the Department hierarchy in meeting with and supervising the activities of recognized organizations, the Department discourages the formation of multiple organizations which purport to serve the same goals and missions."
The LOA applied for recognition from the NYPD pursuant to PBM 30 in May 1998 and, when no response was forthcoming, again in January 1999.
Following the NYPD's rejection of the LOA's application for recognition, plaintiffs moved for a preliminary injunction with respect to only the parade provisions of the NYPD recognized group policy. Specifically, plaintiffs sought an order prohibiting the NYPD from preventing members of the LOA from marching in uniform and behind the LOA banner in five parades
We review a decision to grant a preliminary injunction for abuse of discretion. See SEC v. Cavanagh, 155 F.3d 129, 132 (2d Cir.1998). A preliminary injunction will be overturned if the district court "applie[d] legal standards incorrectly or relie[d] upon clearly erroneous findings of fact." Id. (internal quotation marks omitted).
Where, as here, a moving party seeks a preliminary injunction to stay "`government action taken in the public interest pursuant to a statutory or regulatory scheme,'" that party must show irreparable harm in the absence of an injunction and a likelihood of success on the merits. New York Magazine v. Metropolitan Transp. Auth., 136 F.3d 123, 127 (2d Cir.) (quoting Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir.1996)), cert. denied, ___ U.S. ___, 119 S.Ct. 68, 142 L.Ed.2d 53 (1998); accord Able v. United States, 44 F.3d 128, 131 (2d Cir.1995) (per curiam). Violations of First Amendment rights "are commonly considered irreparable injuries for the purposes of a preliminary injunction." Bery v. City of New York, 97 F.3d 689, 693 (2d Cir.1996), cert. denied, 520 U.S. 1251, 117 S.Ct. 2408, 138 L.Ed.2d 174 (1997); see also Deeper Life Christian Fellowship, Inc. v. Board of Educ., 852 F.2d 676, 679 (2d Cir.1988) ("`[The] loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'" (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976))). Accordingly, in the context of this case, whether plaintiffs have satisfied the requirements for a preliminary injunction turns on whether they have shown a likelihood of success on the merits of their claim that the NYPD parade policy violates their rights under the First Amendment. See Beal v. Stern, 184 F.3d 117, 123-24 (2d Cir.1999).
I. Restrictions on Government Employee Speech
It is well established that "[i]ndividuals do not relinquish their First Amendment rights by accepting employment
The District Court, relying on the Supreme Court's decision in NTEU, subjected defendants to a higher burden of justification than normally required of the government when the free speech interests of its employees are at stake, on the ground that the NYPD parade policy restrains speech "before it occurs." LOA, 1999 WL 386753, at *4. In NTEU, which involved a statute that prohibited federal employees from "receiv[ing] any honorari[a]," 513 U.S. at 459, 115 S.Ct. 1003, the Supreme Court drew a distinction between ex post punishment, based on an "analysis of one employee's speech and its impact on that employee's public responsibilities," and ex ante rules, which can represent a "wholesale deterrent to a broad category of expression by a massive number of potential speakers." 513 U.S. at 466-67, 115 S.Ct. 1003; see also id. at 481, 115 S.Ct. 1003 (O'Connor, J., concurring in the judgment in part and dissenting in part). Emphasizing that ex ante restrictions on expression "give rise to far more serious concerns than could any single supervisory decision," the Court held that the government's burden of justification is "greater" with respect to such ex ante restrictions. Id. at 468, 115 S.Ct. 1003 (majority opinion). Specifically, "[t]he Government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's `necessary impact on the actual operation' of the Government." Id. (quoting Pickering, 391 U.S. at 571, 88 S.Ct. 1731). Further, the government "must do more than simply posit the existence of the disease sought to be cured. . . . It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Id. at 475, 115 S.Ct. 1003 (internal quotation marks omitted).
Defendants' principal contention on appeal is that the District Court erred in applying this stricter standard from NTEU. The NTEU standard does not apply, defendants argue, because (1) the NYPD parade policy affects fewer employees (approximately 40,000 as opposed to 1.7 million) and restricts less expression (the unauthorized wearing of uniforms in parades as opposed to receiving compensation for writings or speeches on any subject) than the statute at issue in NTEU; (2) the parade policy, unlike the statute in NTEU, does not "`single out' expressive conduct"; and (3) the parade policy is not a "classic `prior restraint,'" but rather "suppresses precisely that conduct which [the NYPD] would be allowed to punish after the fact."
Defendants' second argument — that the parade policy, in contrast to the statute at issue in NTEU, does not "`single out' expressive conduct" — is similarly inapposite. NTEU concerned a law that banned federal employees from accepting compensation for making speeches or writing articles in their spare time. The two government commissions that recommended the ban, however, had stressed the importance of prohibiting both compensation for "appearance[s], speech[es] or article[s]" and compensation for "other off duty activities" such as consulting, serving on corporate boards, and even sports. 513 U.S. at 474-75, 115 S.Ct. 1003. Under these circumstances, the Supreme Court found the statute's singling out of expressive activity significant, concluding that it "undermine[d] the Government's submission that the breadth [of the statute was] reasonably necessary" to protect the government's interest in the efficiency of public service. Id. at 474, 115 S.Ct. 1003. That the statute in NTEU restricted only expressive activities was thus a factor the Court used in assessing the reasonableness of the restriction at issue there; it was not, as defendants appear to assert, a prerequisite to the Court's stricter scrutiny.
In short, the District Court properly subjected defendants to the "greater" burden of justification set forth in NTEU.
II. Applying the
Having decided that the stricter NTEU standard applies to the NYPD parade policy, we must evaluate the District Court's conclusion that plaintiffs were likely to succeed on the merits of their First Amendment claims. Under NTEU, that evaluation involves a consideration of the parties' respective interests.
The District Court found that plaintiffs have a strong First Amendment interest in marching in uniform and behind their own banner. Noting "[n]umerous newspaper articles . . . attest[ing] to the prominent role played by the LOA in speaking publicly about alleged discrimination in the police force," the Court concluded that "[t]he message that plaintiffs seek to convey is not merely that they are proud to be Latino and police officers . . ., but that they are willing to criticize the NYPD publicly for alleged discrimination." LOA, 1999 WL 386753, at *4 & n. 4.
On appeal, defendants challenge these findings with three arguments. First, they contend that plaintiffs' interest in wearing police uniforms is not protected under the First Amendment at all because members of the public are unlikely to understand "that the LOA [is] concerned about discrimination and police misconduct merely from the fact that the LOA members [are] wearing uniforms." Second, defendants argue that police officers' ethnic pride is not a matter of public concern, as required for protection of government employee speech under Pickering and NTEU. Finally, defendants assert that plaintiffs' interest in wearing police uniforms while marching is weak because they could just as easily communicate their intended messages without uniforms — for example, by handing out pamphlets or by carrying a banner that reads "LOA — Police Officers Concerned About Discrimination and Police Misconduct."
In light of our view, discussed below, that defendants have an improperly selective policy concerning organizations that are permitted to wear uniforms during parades, we need determine only that the interests of plaintiffs in wearing the uniform meet minimal standards for triggering First Amendment concerns. Notwithstanding defendants' arguments to the contrary, we find that they do.
First, members of the public — specifically, the spectators at each of the parades — are more likely to discern and understand the LOA's message about discrimination and misconduct in the NYPD if plaintiffs
Second, plaintiffs' interest in communicating ethnic pride as members of the NYPD is not necessarily a matter only of private concern. A statement is of public concern if, in light of "the content, form, and context of [that] statement, as revealed by the whole record," it can be "fairly considered as relating to any matter of political, social, or other concern to the community." Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); see Lewis v. Cowen, 165 F.3d 154, 163-64 (2d Cir.1999), cert. denied, ___ U.S. ___, 120 S.Ct. 70, ___ L.Ed.2d ___ (1999). The parades in which plaintiffs seek to march, each of which garners hundreds of thousands of spectators — both in person and on television — are themselves about ethnic pride and celebrating ethnic participation in the civic life of New York City. As the current President of the Puerto Rican Day Parade stated before the thirty-fourth annual parade in 1991, "the philosophy of and reason for the [Puerto Rican Day Parade] `has been to succeed in making sure that every Puerto Rican feels proud of his culture.'" Marilyn Pérez-Cotto, Roots of the Parade, N.Y. NEWSDAY, June 9, 1991 (Community Affairs Special Section), at 2 (emphasis added); see also 144 CONG. REC. E1137, E1137 (June 16, 1998) (statement of Rep. Serrano) (referring to the Puerto Rican Day Parade as a "national event, in which thousands of individuals march along Fifth Avenue, in Manhattan, in celebration of our Puerto Rican heritage and our achievements in this nation"). Indeed, that the NYPD authorizes other groups such as the Hispanic Society to march in uniform is an acknowledgment that celebrating ethnic participation in the police force can be "fairly considered . . . of . . . concern to the community." Connick, 461 U.S. at 146, 103 S.Ct. 1684.
Finally, defendants' own policies make it difficult for us to accept that plaintiffs could communicate the same message — or that they could communicate their message as effectively — without wearing their police uniforms. As defendants acknowledge by allowing other groups, including the Hispanic Society, to march in uniform, wearing the official uniform of the NYPD in a public parade like the Puerto Rican Day Parade has a unique expressive quality that would be lost were plaintiffs merely to hand out fliers or to carry a banner proclaiming their message explicitly.
Under NTEU, we must affirm the judgment of the District Court unless defendants demonstrate that plaintiffs' interests and the interests of plaintiffs' potential audiences, see NTEU, 513 U.S. at 468, 115 S.Ct. 1003; Sanjour, 56 F.3d at 94, are outweighed by the expression's "necessary impact on the actual operation of the Government," NTEU, 513 U.S. at 468, 115 S.Ct. 1003 (internal quotation marks omitted). Before the District Court, defendants identified "two principal interests" served by the NYPD policy prohibiting an unrecognized group whose mission mirrors
Appropriately in our view, defendants do not seriously contest these conclusions on appeal.
It is undisputedly true that the NYPD has a strong interest in maintaining control over how its uniform and symbols are used. Requiring NYPD officers to wear their uniforms while on duty makes them "more readily recognizable to the public, encourages esprit de corps, and subordinates personal preferences in favor of the overall group mission," all of which furthers the police department's mandate to promote public safety. INS v. Federal Labor Relations Auth., 855 F.2d 1454, 1466 (9th Cir.1988); cf. Kelley v. Johnson, 425 U.S. 238, 246, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976) (holding that deference is owed to police department grooming regulations under the Fourteenth Amendment Due Process Clause based on such organizations' "overall need for discipline, esprit de corps, and uniformity"). Correspondingly, prohibiting the unauthorized wearing of a police uniform prevents improper exercise of the powers granted to police officers and exploitation of the trust that wearing a police uniform is meant to inspire.
Nevertheless, defendants' interest in controlling the use of the NYPD uniform does not support the specific restriction at issue here — namely, the prohibition on plaintiffs' marching in uniform behind their organizational banner in an ethnic pride parade when similarly situated organizations are allowed to march in such a manner. Whether or not defendants could constitutionally prohibit all fraternal organizations from marching in uniform — an issue we need not, and do not, decide — the fact of the matter is that the NYPD already permits at least 25 such organizations to march in uniform. Having allowed these organizations to use the NYPD uniform in such a manner over many decades, the NYPD cannot now deny plaintiffs the same privilege without demonstrating that their use of the uniform is both distinguishable from that of the various authorized organizations and "so threatening to the efficiency of the [NYPD] as to render the [restriction] a reasonable response to the threat." NTEU, 513 U.S. at 473, 115 S.Ct. 1003.
Although not directly on point, Schacht v. United States, 398 U.S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970), a case drawn to our attention by defendants, supports this conclusion. In Schacht, the Supreme Court reversed a conviction under 18 U.S.C. § 702, which makes it a crime for any person without authority to wear a
Here, as in Schacht, defendants may be constitutionally permitted to prohibit all fraternal organizations from marching in uniform.
Nor are we persuaded by defendants' second argument — that the public is likely to believe that the NYPD itself is speaking and that the NYPD has a right to control its own speech. To be sure, it is well settled that the government may regulate its own expression in ways that would be unconstitutional were a private party the speaker. See, e.g., Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) ("[W]e have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message."). But, as the Pickering and NTEU line of cases makes plain, not all speech by a government agent is "government speech" subject to such lenient analysis; indeed, even when a government agent represents that he is speaking as a representative of the government body, that agent may have independent rights under the First Amendment. See, e.g., Moore v. City of Wynnewood, 57 F.3d 924, 933-34 (10th Cir.1995); cf. Zook v. Brown, 748 F.2d 1161, 1167 (7th Cir.1984) ("[T]he [Police] Department cannot maintain that it has an overriding interest in every conceivable public statement [an officer] might make, no matter what the context or content of the statement, simply because the [officer] identifies his office.").
In the present case, we decline to adopt defendants' invitation to characterize plaintiffs' expression as government speech subject to any and all regulation. Defendants raise the slippery-slope argument that if they are compelled by the First Amendment to permit the LAO to march, then they would a fortiori be compelled to
In short, defendants have failed to satisfy their burden of showing that plaintiffs' expression specifically would have an impact on the actual operation of government. In fact, by their own conduct, defendants have proved the exact opposite, for, throughout most of this dispute, defendants have justified their prohibition of the LOA marching in uniform on the sole ground that its message is duplicative of the Hispanic Society's message. The NYPD, having allowed the Hispanic Society to march in uniform and behind its banner, cannot now contend that allowing the LOA to do the same would have a detrimental effect on its actual operations.
For the reasons stated above, we agree with the District Court that plaintiffs have demonstrated a likelihood of success on the merits of their claims that the NYPD parade policy violates their rights under the First Amendment.
Placing weight on these subtle differences may be fraught with ironies. An eminent authority, Professor Roberto González Echevarría of Yale University, has observed that "what to call Latin America has been a vehemently debated issue, with some proposing the awkward but perhaps most accurate Iberoamérica for the entire continent, and others Hispanoamérica." Roberto González Echevarría, Preface to THE OXFORD BOOK OF LATIN AMERICAN SHORT STORIES xi, xi (Roberto González Echevarría ed., 1997). He adds: "[I]t was the French, in their imperialist zeal [in Mexico, under the Emperor Maximilian, in particular] who coined the term [Latin America]. They opposed Latin to Anglo America to claim for political gain a historical and linguistic kinship with regions recently freed from Spanish domination. The name has stuck, although clearly many of the cultures in the region had no significant connection with the Roman Empire." Id. (emphasis added).