CALABRESI, Circuit Judge, concurs.
VAN GRAAFEILAND, Circuit Judge, dissents.
On July 13, 1999, the plaintiff Spencer Tunick filed a complaint in the Southern District of New York seeking an injunction preventing the City of New York and its Police Commissioner, Howard Safir, (collectively, the "City") from interfering with a "photo shoot" that Tunick proposed to conduct on Sunday, July 18, 1999. Tunick, an internationally recognized photographer, planned to photograph seventy-five to one hundred nude models arranged in an abstract formation shortly after dawn on a residential street in lower Manhattan. He submitted evidence from which the district court (Harold Baer, Jr., Judge) concluded that the New York City police were likely to arrest Tunick and his models before the photographic session could be completed. On July 16, the district court preliminarily enjoined the City from interfering with the session.
On July 17, 1999, the day after the district court's issuance of the preliminary injunction and the day before the planned photographic session, a three-judge panel of this Court stayed the preliminary injunction, ordering that the appeal be fully briefed and argued on an expedited basis. Argument was heard on September 13, 1999.
On appeal, the City argued solely that New York state law, which criminalizes public nudity and the promotion thereof, compelled it to stop the proposed photographic session. See N.Y. Pen. Law §§ 245.01, 245.02. Tunick countered that the photographic session is exempt from the ban on public nudity because §§ 245.01 and 245.02 do "not apply to . . . any person entertaining or performing in a play, exhibition, show, or entertainment," id., and that arresting him and his models before he had an opportunity to take his photographs would violate the First Amendment.
On March 24, 2000, we certified three questions regarding §§ 245.01 and 245.02 to the New York Court of Appeals. See Tunick v. Safir, 209 F.3d 67 (2d Cir. 2000).
Judge Sack disagreed, reasoning that because the photographic session was expressive activity and the threatened arrest of Tunick and his models would take place before it was completed, the arrest would constitute a prior restraint on expression. Id. at 93-94. Inasmuch as the session was neither clearly illegal under applicable law nor asserted to be contrary to a valid licensing ordinance, the prior restraint was in his view unconstitutional and the certification proposed by Judge Calabresi was inappropriate because of the delay inherent in the certification process. Id. at 94-100. Judge Sack nonetheless concurred in the judgment, concluding that as a result of the differences in views among the panel members, certification of the questions to the New York Court of Appeals was the speediest practicable method for resolving Tunick's assertion of rights. Id. at 96-100.
Judge Van Graafeiland, in a dissent filed separately on April 13, 2000, maintained
On May 12, 2000, the New York Court of Appeals, by per curiam opinion, Tunick v. Safir, 94 N.Y.2d 709, 709 N.Y.S.2d 881, 731 N.E.2d 597 (2000), while "underscor[ing] the great value in New York's certification procedure where Federal appellate courts or high courts of other States are faced with determinative questions of New York law on which this Court has not previously spoken," id. at 599, declined to accept certification "in the mutual interest of expeditious resolution of the preliminary injunction/prior restraint issue," id. at 599.
We now hold that in light of Tunick's showing of irreparable injury and the clear likelihood of Tunick's success on the merits, it was not an abuse of discretion for the district court to grant the preliminary injunction. See Beal v. Stern, 184 F.3d 117, 122-23 (2d Cir.1999). We therefore dissolve the stay entered on July 17 and remand the case to the district court with instructions that (unless between the date of the original preliminary injunction and the date on which the district court acts it has become clearly illegal for Tunick to take the photographs in accordance with his plans) the court (a) fix a date, in consultation with the parties, for the taking of the photographs, and (b) re-enter the injunction prohibiting, for a limited period of time early in the morning on a non-business day, the City of New York and its agents from arresting Tunick or his models in connection with the taking of the photographs, or otherwise interfering with Tunick or his models in the taking of the photographs, until the taking of the photographs is completed in accordance with the court's order. The district court shall, in its discretion, include in the injunction such other conditions as it deems appropriate to ensure a minimal intrusion on the neighborhood and its residents consistent with the taking of the photograph or photographs in issue.
JUDGE CALABRESI concurs in an opinion to follow.
JUDGE SACK concurs for the reasons stated in his opinion of March 24, 2000, Tunick v. Safir, 209 F.3d 67, 89-100 (2d Cir.2000) (Sack, J., concurring in the judgment).
JUDGE VAN GRAAFEILAND dissents in an opinion to follow.
CALABRESI, Circuit Judge, concurring:
Defendants Howard Safir, in his official capacity as the Police Commissioner of the City of New York, and the City of New York (collectively "the City") appealed from the grant of a preliminary injunction by the United States District Court for the Southern District of New York (Harold Baer, Jr., Judge). The district court had prohibited the City from interfering with a proposed photo shoot of 75 to 100 nude models arranged in an abstract formation, to be conducted by plaintiff Spencer Tunick on Sunday, July 18, 1999, between 5:30 a.m. and 6:30 a.m. in a residential Manhattan neighborhood. On July 17, 1999, a three-judge panel of this court stayed the preliminary injunction, pending an expedited appeal. On appeal, the City, arguing solely that New York state law prohibits public nudity, see N.Y. Pen. Law § 245.01 (McKinney 1989), and the promotion thereof, see id. § 245.02, contended that the injunction had been erroneously granted. In making this argument, the City maintained that the exemption contained in the state law for "any person entertaining or performing in a play, exhibition, show or entertainment," see id. §§ 245.01, 245.02, did not apply to Tunick's proposed photo shoot. To obtain a definitive reading of the state statute, we certified to the New York Court of Appeals the following questions:
Tunick v. Safir, 209 F.3d 67, 68-69 (2d Cir.2000) ("Tunick I").
Emphasizing "the great value in New York's certification procedure," the New York Court of Appeals nevertheless declined certification. Tunick v. Safir, 94 N.Y.2d 709, 709 N.Y.S.2d 881, 731 N.E.2d 597, 599 (2000) ("Tunick II"). It noted, inter alia, that this case involved a preliminary injunction against an alleged First Amendment prior restraint and therefore required a more "expeditious resolution" than was feasible in light of the state court's "necessary decisional process." Id. at 599.
On May 19, 2000, this court, with Judge Van Graafeiland dissenting, entered an order, by a per curiam opinion, finding that the district court's grant of the preliminary injunction was not an abuse of discretion. See Tunick v. Safir, 228 F.3d 135, 136-37 (2d Cir.2000) (per curiam) ("Tunick III"). We therefore lifted the stay and remanded the case to the district court to fix a new date for the photo shoot and to specify in the injunction that the City and its agents would be barred from arresting Tunick and the models or otherwise interfering with the photo shoot until after the photographs had been taken.
We review a district court's grant of a preliminary injunction for an abuse of discretion.
Violations of First Amendment rights are presumed irreparable. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Accordingly, "the very nature of [Tunick's] allegations" satisfies the requirement that he show irreparable injury. Bery, 97 F.3d at 694. The only remaining issue, therefore, is whether Tunick has established a clear likelihood of success on the merits. And because the City's sole argument against the injunction is based on the New York statute regulating public nudity, Tunick has met that burden if there is a clear likelihood that the New York law does not bar the proposed photo shoot.
As noted above, New York state law forbids public nudity and the promotion thereof, but provides an exception for "any person entertaining or performing in a play, exhibition, show or entertainment." N.Y. Pen. Law §§ 245.01, 245.02. Interpreting this exception to apply only to "performances or exhibitions that [take] place indoors before audiences," the City argues that state law prohibits Tunick's proposed photo shoot, since it is not a performance or exhibition scheduled to occur indoors before an audience. Appellant's Brief at 14.
Because, on certification, the New York Court of Appeals declined to interpret the relevant sections of the statute at issue, that task now falls to us. New York's highest court, of course, has a complete right to decline certification; and indeed, nothing requires it to provide any explanation for such a decision. See N.Y. Comp. Codes R. & Regs. tit. 22, § 500.17(d).
The issue before us, therefore, is not whether New York State or New York City can constitutionally forbid public nudity. That is a question as to which I need take no stand in this case. The issue in this case is, rather, whether they have prohibited the kind of nudity that Tunick's photo shoot entails.
As noted in my previous opinion in this case, the answer to that question, which turns on the proper interpretation of the statute before us, is essentially unaided by state court decisions. See Tunick I, 209 F.3d at 71-72 (Opinion of Calabresi, J.). Thus, on the question of whether the statute prohibits nude photography, I have found only two cases, by municipal courts, that arguably take conflicting positions. Compare People v. Wilhelm, 69 Misc.2d 523, 330 N.Y.S.2d 279, 280-81 (City Ct. Buffalo 1972) (interpreting a predecessor version of the statute that had the same exception as the one in the current version, in a case in which the defendant did not claim that the photo shoot itself was an exhibition or showing, to prohibit nude photography, but, as a result, finding the statute unconstitutional as applied), with People v. Gilmore, 120 Misc.2d 741, 468 N.Y.S.2d 965, 970 (City Ct. Mount Vernon 1983) (reasoning that the statute was not overbroad because "persons engaged in the photographing of nude women . . . are not threatened by Penal Law 245.02").
In the absence of persuasive decisions, we turn to New York's canons of statutory construction. Under these, we must begin with "the plain meaning of the words of a statute." In re Hernandez, 93 N.Y.2d 781, 786, 698 N.Y.S.2d 590, 720 N.E.2d 866 (1999). And in doing so, we are to "resort . . . to the natural signification of the words employed." In re Grand Jury Subpoena Duces Tecum Served on the Museum of Modern Art, 93 N.Y.2d 729, 738, 697 N.Y.S.2d 538, 719 N.E.2d 897 (1999) (quoting Tompkins v. Hunter, 149 N.Y. 117, 122-23, 43 N.E. 532 (1896)). "[I]f [those words] have a definite meaning, which involves no absurdity or contradiction, there
Applying these canons, I think that Tunick has a clear likelihood of success on his claim that his proposed photo shoot falls within the statutory exception. This is so because the abstract arrangement of 75 to 100 nude models draped across a public street can more than plausibly be deemed an exhibition, that is, "a public . . . showing . . . esp[ecially] of [a] work of art." Webster's Third New International Dictionary 796 (1993). As the plain language of the statute has a definite meaning, and since reading the word "exhibition" to encompass the proposed photo shoot involves no absurdity or contradiction, there is no apparent reason to construe a statute, that nowhere references audiences or locations, to apply, as the City urges, only to exhibitions that occur indoors before audiences.
Moreover, New York's canons of construction require courts "to avoid interpreting [a New York statute] in a way that would render [it] unconstitutional if such a construction can be avoided." National Ass'n of Indep. Insurers v. State, 89 N.Y.2d 950, 952, 655 N.Y.S.2d 853, 678 N.E.2d 465 (1997) (quoting Alliance of Am. Insurers v. Chu, 77 N.Y.2d 573, 585, 569 N.Y.S.2d 364, 571 N.E.2d 672 (1991) (internal quotation marks omitted)). A reading of the statute to exempt Tunick's proposed activity from the ban on public nudity not only comports with a highly plausible meaning of the statute, but it also avoids the significant constitutional difficulties that would result from the City's interpretation.
As I noted in my previous opinion:
Tunick I, 209 F.3d at 84 (opinion of Calabresi, J.). This is not to say, of course, that the statute so read would be unconstitutional. It is only to assert the obvious: an interpretation that treats photographic exhibitions in the same way as other exhibitions and fails to introduce, entirely absent, indoor/outdoor and audience/non-audience distinctions into the statute avoids possible constitutional problems, while an opposite construction requires that such issues be faced.
It is also not to say that the City would be constitutionally barred from imposing reasonable time, place, or manner restrictions on the conduct of any photo shoot. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Indeed, if one were to read some implicit limitations into the exception, it would be far more plausible to take the terms "play[s], exhibition[s], show[s] or entertainment," N.Y. Pen. Law §§ 245.01, 245.02, to mean nude events that occur in controlled circumstances, that is, under conditions that "minim[ize] intrusion[s] on the neighborhood and its residents," Tunick III, 228 F.3d at 136-37, than it would be to limit the statute — as the City would have us do — to exhibitions that occur indoors before audiences without regard to attendant disruptions. Because, however, the City has made no argument that its efforts to limit Tunick's proposed artistic activity were simply, or even in part, constitutionally permissible efforts to impose reasonable time, place, or manner restrictions, I need not today consider such an interpretation. I need do no more than conclude that the City's tortured reading, both as a
Because I believe that Tunick has a clear likelihood of establishing that state law does not prohibit his artistic endeavor, I concur in our per curiam decision holding that the district court did not abuse its discretion in issuing the preliminary injunction.
I also concur in our decision to modify the injunction in a manner that effectively allows the City to arrest Tunick or his models after, but not before, the completion of the photo shoot. See Tunick III, 228 F.3d at 137-38. I do so because the plaintiff conceded at oral argument that his purpose in bringing the litigation was "to enjoin a prior restraint" and not to prevent the City from subsequently seeking to sanction him. Tr. Oral Arg. at 28.
There is, moreover, nothing inconsistent between finding "most likely" an interpretation of the New York statute that allows the photo shoot and permitting such an interpretation to be further tested though arrests after the shoot is completed. This is so for two reasons. First, the question presented on this appeal, since it is from the grant of a preliminary injunction, is whether Tunick has established a clear likelihood of success on the merits. See Tom Doherty Assocs., Inc., 60 F.3d at 34. Accordingly, in resolving the case, I have expressed my view only as to the most probable reading of the statute. Second, § 245.01 and § 245.02 are matters of New York law and, therefore, the interpretation of those sections to which I — a federal judge — subscribe is, necessarily, only a prediction of state law. Cf. Bank of New York v. Amoco Oil Co., 35 F.3d 643, 650 (2d Cir.1994) (stating — in a diversity context — that when a federal court applies state law, its role is "carefully [to] predict how the highest court of the state would resolve" the state law question). As a result, any finding — even by a majority of this court — that the New York statute does not prohibit Tunick's proposed artistic activity would in no way be binding on New York state courts. See, e.g., Hartnett v. New York City Transit Auth., 200 A.D.2d 27, 612 N.Y.S.2d 613, 616 (2d Dep't 1994), aff'd, 86 N.Y.2d 438, 633 N.Y.S.2d 758, 657 N.E.2d 773 (1995). All this means that the City, should it elect to prosecute plaintiff and his models subsequent to the completion of the photo shoot, would have the opportunity to obtain a definitive answer to the statutory questions presented in this appeal from the only court system authorized to give that answer.
I concur in the judgment of the court.
VAN GRAAFEILAND, Senior Circuit Judge, dissenting:
When I dissented from my colleagues' unsuccessful request for certification to the New York Court of Appeals, see Tunick v. Safir, 209 F.3d 67, 96-100 (2d Cir.2000), I relied upon the following undisputed facts:
It is my understanding that the photo shoot requested by Tunick was not held until June 4, 2000. Moreover, it was not held on Madison Street. Instead, it was conducted at an "alternative location", an area between Mangin and Baruch Streets, located about a mile to the northeast of Madison Street. The controversy between the parties relative to a Madison Street shoot, if not already moot when I wrote my original dissent, clearly became moot when the parties decided to conduct the shoot on Mangin Street. "[F]ederal courts may adjudicate only actual, ongoing cases or controversies." Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (citations omitted); see also United States v. Alaska S.S. Co., 253 U.S. 113, 116, 40 S.Ct. 448, 64 L.Ed. 808 (1920); Arthur v. Manch, 12 F.3d 377, 380 (2d Cir.1993).
This being so, I see no need to further muddy the waters in which this case has been submerged by discussing the absence of the uniformity between my colleagues that is essential to a true per curiam opinion. Separately-submitted, multi-page opinions, which agree only in a result that was not effected, should not remain on the record as precedential authority in future Second Circuit litigation.
The appeal should be dismissed, and the matter remanded to the district court with instructions to dismiss the complaint. See United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950); In re Chateaugay Corp., 988 F.2d 322, 325 (2d Cir.1993).