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13-776 In the
Supreme Court of the United States
ROBERT LEDERMAN AND JACK NESBITT, Petitioners, -againstNEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, a municipal agency, ADRIAN BENEPE, Parks Commissioner in his individual and official capacity, CITY OF NEW YORK, a municipality, and MICHAEL BLOOMBERG, Honorable Mayor in his individual and official capacity, Respondents. _________________ ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF IN OPPOSITION TO PETITION JEFFREY D. FRIEDLANDER, Acting Corporation Counsel of the City of New York, Attorney for Respondents, LEONARD J. KOERNER, Counsel of Record, 100 Church Street, New York, New York 10007. (212) 356-0844 or 2500 firstname.lastname@example.org EDWARD. F.X. HART, JULIE STEINER, of Counsel. January 23, 2014
QUESTIONS PRESENTED 1. Did the United States Court of Appeals for the Second Circuit properly affirm the District Court’s grant of summary judgment to the City of New York, where the expressive-matter Vending Rules are content-neutral time, place and manner restrictions that are narrowly tailored to advance significant government interests and afford petitioners ample alternative channels for communication? 2. Did the United States Court of Appeals for the Second Circuit also correctly affirm the protective order granted to the City of New York so as to prevent petitioners from deposing then-Mayor Michael Bloomberg and former Deputy Mayor Edward Skyler, where neither possessed any personal knowledge regarding the basis for the promulgation of the Vending Rules?
TABLE OF CONTENTS Page QUESTIONS PRESENTED....................................I COUNTER-STATEMENT O T!E CASE..........." #a$%&round ....................................' The Re(e)ant Statutor* rame+or% ' The Order of the Se$ond Cir$uit Court of Appea(s................', In affirmin& the Distri$t Court- .," .,d "// 0Pet. App. A-"a-/a1the Se$ond Cir$uit he(d that the Cit*2s e3pressi)e-matter re&u(ations operated +ithin $onstitutiona( (imits- 4e$ause the* +ere reasona4(e $ontentneutra( restri$tions on the time- p(a$e and manner of su$h prote$ted spee$hnarro+(* tai(ored to ser)e a si&nifi$ant &o)ernment interest and (eft open amp(e a(ternati)e $hanne(s of $ommuni$ation. .," .,d at '5' 0Pet. App. A-6a-7a1.....', In this re&ard- the Se$ond Cir$uit found that the re&u(ations +ere $ontent-neutra( restri$tions- 4e$ause the* app(ied to a(( e3pressi)ematter )endors- re&ard(ess of ii
the messa&e the* $on)e*ed. .," .,d at '5' 0Pet. App. A7a1. The Cir$uit hi&h(i&hted that the re&u(ations +ere 8passed not in an attempt to suppress )endors2 a4i(it* to mar%et their +ares- 4ut to fi(( a &ap in the (ar&er re&u(ator* s$heme &o)ernin& )endin& on Par%s Department propert*.9 Id. ...................', REASONS OR DEN:IN; T!E PETITION......'6 T!E SECOND CIRCUIT2S DECISION IS <E;A<<: CORRECT AND DOES NOT CON <ICT =IT! AN: DECISION O T!IS COURT OR OT!ER=ISE =ARRANT URT!ER RE>IE= #: T!IS COURT. .....'6 CONC<USION......................................................,?
TABLE OF AUTHORITIES CASES Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996), cert. denied, 520 U.S. 1251 (1997)..3; 4-5; 13; 14; 17; 29 Carew-Reid v. Metropolitan Transp. Auth., 903 F.2d 914 (2d Cir. 1990) ....................28 City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) .......28-29 Clark v. Community for Creative NonViolence, 468 U.S. 288 (1984) .....24; 25;26 Dua v. New York City Dept. of Parks and Recreation, 84 AD3d 596 (1st Dept., 2011) ................10 Heffron v. Int’l Soc. for Krishna Consciousness, Inc. 452 U.S. 640 (1981) ...............................28 In re FDIC, 58 F.3d 1055 (5th Cir. 1995) .....................30 Lederman v. Giuliani, 1998 U.S. Dist. LEXIS 5468 (S.D.N.Y. April 17, 1998) ..................5-6; 30 iv
Lederman v. Giuliani, 2001 U.S. Dist. LEXIS 11567 (S.D.N.Y. August 10, 2001), aff’d, 70 Fed. Appx. 39 (2d Cir. 2003) ......6 Lederman v. New York City Dept. of Parks and Recreation, 2010 U.S. Dist. LEXIS 71425 (S.D.N.Y. July 16, 2010) .................9-10; 26 Madsen v. Women’s Health Ctr., 512 U.S. 753 (1994) ..................................26 New York Skyline, Inc. v. City of New York, 94 AD3d 23 (1st Dept.), lv. denied, 19 NY3d 809 (2012) ..........11; 13; 16; 19; 20 Olivieri v. Ward, 801 F.2d 602 (2d Cir. 1986), cert. denied, 480 U.S. 917 (1987) .......24; 28 Sweeney v. Bond, 669 F.2d 542 (8th Cir.), cert. denied sub nom., Schenberg v. Bond, 459 U.S. 878 (1982) ................................30 Ward v. Rock Against Racism, 491 U.S. 781 (1989) ..........................25; 27
New York City Administrative Code Section 17-306 ....................................3; 29 Section 20-452 .....................................3; 29 Section 20-453 .........................................11 Section 20-465 ...........................................3 Section 20-473 .......................................3; 6 New York City Charter Section 533(a)(5) .......................................2 New York General Business Law Section 35-a ...............................................7 Rules of The City of New York, Title 56 Section 1-02 ...............................1; 3; 10; 11 Section 1-05 ...............................................3 Section 1-05(b) ....................................1; 11 Section 1-05(b)(1) ..................................3; 7 Section 1-05(b)(2) ..............................1; 3; 8 Section 1-05(b)(3) ......................................1 vi
Section 1-05(b)(4) ......................................8 Section 1-05 (b)(5) ....................................8 Section 1-05(b)(8) .....................................8
COUNTER-STATEMENT OF THE CASE In response to concerns about the proliferation in certain parks owned by respondent, the City of New York (“the City”), of expressivematter (i.e., books and artwork) vendors and the consequential impact these vending activities have on parkland and on other park visitors, on June 18, 2010, the City amended portions of Title 56, Sections 1-02 and 1-05(b) of the Rules of the City of New York (“RCNY”) (“the Vending Rules”) to designate vending spots and limit the number of expressive-matter vendors who may vend in Union Square Park, Battery Park, High Line Park and portions of Central Park below 86th Street. The Vending Rules were also amended to set forth general place and manner restrictions on the sale of expressive matter in non-designated areas of Central Park and all other City parks. Petitioners, artists who claim to vend their work in the City’s parks, bring this action alleging that the Vending Rules constitute an impermissible restraint on their constitutionally-protected speech and equal protection rights under the Federal and New York State Constitutions. See 56 RCNY §§ 1-05(b)(2) and (b)(3), the portions of the Vending Rules to which petitioners address their challenge. Petitioners appealed from a final judgment of the District Court, Southern District of New York, entered October 25, 2012. That judgment, which was based on the September 30, 2012
opinion of the District Court (Sullivan, U.S.D.J.), granted the City’s motion for summary judgment 901 F. Supp. 2d 464 (Pet. App. B-10a-47a). Petitioners also appealed from an order of the same court, entered June 1, 2011, which granted the City a protective order precluding petitioners from deposing then Mayor Michael Bloomberg and former Deputy Mayor Edward Skyler (Pet. App. C-48a-50a). The Second Circuit Court of Appeals affirmed both the judgment and the order, holding that (1) the Vending Rules were “content-neutral restrictions” that were narrowly tailored to meet the City’s “significant” interests; and that (2) the District Court did not abuse its discretion in granting the protective order. 731 F.3d 199 (2013) (Pet. App. A-1a-9a). The City requests that this Court deny the petition for a writ of certiorari seeking review of the Second Circuit’s decision. Contrary to petitioners’ contention, the Second Circuit’s decision here does not conflict with a decision of this Court or other Circuits on any question petitioners attempt to formulate. Petitioners offer no compelling reason why a different result should now be reached. Background (1) The Relevant Statutory Framework 2
The legal provisions applicable to those who seek to vend in the City’s parks and on the City’s sidewalks differ depending on the items that are sold, where they are sold and the status of the vendor. For the City’s parks, which include the sidewalks that adjoin parkland, see New York City Charter § 533(a)(5), vending is generally prohibited without a permit. See 56 RCNY § 1-05. As to the City’s sidewalks, vendors are generally required to be licensed. See generally New York City Administrative Code § 20-452 et seq. (as to non-food vendors) and § 17-306 et seq. (as to food vendors). Artists and other expressive-matter vendors have been, and continue to be, the exception to these general rules. Expressive matter is defined as “materials or objects with expressive content, such as newspapers, books, or writings, or visual art such as paintings, prints, photography, sculpture, or entertainment.” 56 RCNY § 1-02. 1 See 56 RCNY § 1-05(b)(2); Administrative Code § 20-473; and Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996), cert. denied, 520 U.S. 1251 (1997). While expressive-matter vendors on the City’s streets are exempt from licensing requirements, they still must comply with general restrictions relating to the size and placement of Section 1-02 and 1-05(b)(1) were recently revised to clarify that expressive matter includes entertainment, as per the Parks Department’s original intent. On April 18, 2013, the new rules were published in the City Record and in the RCNY and became effective May 8, 2013. 3
their vending tables. See Administrative Code §§ 20-465(a)-(f), (k)-(q) and § 20-473. In 1994, petitioner Lederman and other artists brought a constitutional challenge to the provisions of the City’s General Vendors Law— Administrative Code section 20-452 et seq.—which prohibited artists from exhibiting, selling or offering their work for sale in public places in the City without first obtaining a general vendor’s license. See Bery, 97 F.3d 689. At that time, all vendors, except sellers of newspapers, books or other written matter, were required to obtain a general vendor’s license, but only 853 general vendor’s licenses were in existence. Id. at 692. Moreover, the waiting list for the licenses contained between 500 and 5,000 names, and licenses only became available when current license holders failed to renew. Id. In the 15 years prior to the commencement of the Bery case, except for one year in which licenses were distributed because of a clerical error, no new licenses were issued. Id. at 697 n.7. As a result, artists were unable to sell their wares on City property. Id. In light of the foregoing, the Second Circuit held that the General Vendors Law was unconstitutional, because it barred an “entire category of expression,” and, thus, was a “ de facto bar preventing visual artists from exhibiting and selling their art in public areas in New York.” Bery, 97 F.3d at 697. Although the Second Circuit held that “[t]he City may enforce narrowly designed restrictions as to where appellants may exhibit their works in order to keep the sidewalks free of 4
congestion and to ensure free and safe public passage on the streets,” the General Vendors Law, as written, was “too sweeping to pass constitutional muster,” since it “distinguish[ed] between written and visual expression in a manner that effectively ban[ned] one while subjecting the other to a more limited form of regulation.” Id. at 696. The Second Circuit, however, held that there “exist less intrusive means of issuing the licenses” and noted an amicus suggestion of a “rotating first-come, first-served lottery system” as well as the model employed by the City of San Francisco in which certain areas were set aside for art sales and a weekly lottery assigned spots. Id. at 698, n.8. In 1998, in light of the Bery decision, the Parks’ Department amended its regulatory scheme to provide for 75 site-specific permits for art vendors in Manhattan parks, including 24 sites in front of the Metropolitan Museum of Art, permits which gave their holders a legal right to sell their works in a specific area for one month for a cost of $25.00. See Lederman v. Giuliani, 1998 U.S. Dist. LEXIS 5468, at *3 (S.D.N.Y. April 17, 1998) (“Lederman I”). If more than 75 people applied for the 75 sites, or if there were more applications than spaces available for any particular location, the City would hold a random-draw lottery each month. Id. In denying the plaintiffs’ motion for a preliminary injunction there, the District Court in Lederman I held that the regulations were contentneutral time, place and manner restrictions; that the City had a “significant interest” in preserving 5
and promoting the scenic beauty of its parks and preventing congestion in parks and their perimeters; that the regulations were narrowly tailored to serve the government’s interests, because the number of allotted sites were reasonable, and the lottery system ensured that permits would be distributed fairly; and that the regulations left open alternative avenues for communication, because, inter alia, any artist vendor who chose not to obtain a permit or was foreclosed from obtaining one, may, under Bery, sell his artwork on any other public sidewalk throughout the City not within the Parks Department’s jurisdiction. Lederman, 1998 U.S. Dist. LEXIS 5468, at *6-11. Thereafter, the parties in Lederman I each sought summary judgment, and the District Court held, without disturbing the foregoing analysis of the regulations’ constitutionality, that, as a matter of state administrative law, the regulations should be interpreted as not applicable to expressivematter vendors. See Lederman v. Giuliani, 2001 U.S. Dist. LEXIS 11567, at *19 (S.D.N.Y. August 10, 2001), aff’d, 70 Fed. Appx. 39 (2d Cir. 2003) (“Lederman II”). The District Court held that the lottery scheme was essentially a permitting scheme at odds with Administrative Code section 20-473, which exempts expressive-matter vendors from having to obtain a permit prior to vending on the City’s streets or in the City’s parks. Id. Thereafter, in response to concerns about the proliferation in certain parks of expressive-matter vendors and the consequential impact these 6
vending activities have on parkland and on other park visitors, on June 18, 2010, the Parks Department promulgated the Vending Rules. The Vending Rules apply only to expressive-matter vendors, because, aside from disabled veterans who are regulated by State law, expressive-matter vendors are the only ones who can sell their wares on property under the Parks Department’s jurisdiction without a permit from the Parks Department. As detailed by former Parks Department Assistant Commissioner Jack Linn, as well as in the Statement of Basis and Purpose accompanying the Vending Rules, the Rules, and in particular, the designation of specific vending spots in four Manhattan Parks, were designed to combat congestion, address aesthetic concerns by preserving the integrity of the overall design of the parks, including landscapes and scenic views, and ensure that the parks are available to the public for a wide range of activities, including active and passive recreation, performances, demonstrations and the viewing of historical monuments and public art exhibits. Generally, any person on Parks Department property who “shall sell, offer for sale, hire, lease or let anything whatsoever, including, but not limited to goods, services, or entertainment, or provide or offer to provide services or items, or entertainment in exchange for a donation” [and who does not have a specialized vending license issued pursuant to New York General Business Law section 35-a], is 7
required to have a permit from the Parks Department. See 56 RCNY §1-05(b)(1).2 However, under the Vending Rules, which became effective on July 19, 2010, expressivematter vendors may generally vend, without a permit, anywhere in the City’s parks provided they comply with certain minimum requirements relating to their vending activities.3 For instance, display stands must allow a clear pedestrian path and must be five feet away from a tree, a street or park furniture (among other objects); a vendor’s goods cannot lean against any park furniture or plants; and the vending activity cannot block anyone from using any park furniture nor can it take place over any ventilation grill, manhole or subway access grating. See 56 RCNY §1-05(b)(4)(8). However, in Union Square Park, Battery Park, High Line Park and portions of Central Park, expressive-matter vendors may only vend in specifically-designated spots. These spots are allocated on a first-come, first-served basis and only one vendor is allowed to vend at that spot. See 56 RCNY §1-05(b)(2). In addition to unique As noted above, section 1-05(b)(1) was amended to clarify the Parks’ Department’s original intent to include entertainment. That portion of the rules became effective May 8, 2013.
Vendors of non-expressive matter are already subject to numerous specific requirements set forth in the individual permits issued to them by the Parks Department. 8
conditions, such as public monuments and the configuration of High Line Park, Union Square Park, Battery Park and Central Park are so heavily used by both vendors and the public that the general restrictions on expressive-matter vending were not sufficient to properly balance the vending of such matter and the use of the park by others. While there are limitations concerning the specific locations in the four parks where expressive-matter vendors can vend, expressivematter vendors may always vend in any other City park, or in the non-designated areas of Central Park, subject to the general requirements of the Vending Rules. Similarly, expressive-matter vendors may also vend on City sidewalks provided they comply with the applicable provisions of the Administrative Code. 4 (2) Procedural Background On June 18, 2010, the same day the Vending Rules were promulgated, petitioners commenced this lawsuit. On July 16, 2010, the United States District Court of the Southern District of New York (Sullivan, U.S.D.J.) issued a Memorandum and Order declining to enjoin the Vending Rules from taking effect on July 19, 2010. See Lederman v. New York City Dept. of Parks and Recreation , 2010 U.S. Dist. LEXIS 71425 (S.D.N.Y. July 16, 2010) (“Lederman III”). In so finding that petitioners The Administrative Code is applicable to the City’s non-park streets and public places. 9
failed to demonstrate a likelihood of success on the merits, the District Court concluded that the revisions “appear to be reasonable, content-neutral restrictions on time, place and manner that are narrowly tailored to advance a significant government interest while leaving open ample alternative channels for the expressive activity.” Id. at *34. The District Court also found that, because petitioners’ First Amendment rights appeared not to have been infringed and, as such, the Vending Rules did not classify on the basis of a suspect criterion, the Vending Rules were subject to a rational-basis review for petitioners’ Equal Protection claims. See Lederman, 2010 U.S. Dist. LEXIS 71425, at *35. The Court held that petitioners were not likely to succeed on a rationalbasis challenge and that, instead, “it appears likely that the City will be able to establish that the [Vending Rules] are ‘rationally related to a legitimate government interest.’ ” Id. (citation omitted). In August 2010, several other expressivematter vendors brought suit in State court to challenge the Vending Rules as violating their rights under Article 1, Section 8, of the New York State Constitution, and, on May 17, 2011, the New York State Appellate Division, First Department, affirmed the denial of those plaintiffs’ motion for a preliminary injunction. See Dua v. New York City Dept. of Parks and Recreation , 84 AD3d 596 (1st Dept., 2011). The Appellate Division held that the Vending Rules, “although addressed to expressive 10
matter vendors, are part of a comprehensive scheme which governs time, place, and manner rules for all vendors under the Parks Department’s jurisdiction” and, as such, the plaintiffs there failed to demonstrate a likelihood of success on the merits of their claim that the Vending Rules violated their rights under the State Constitution. Id. at 597. This State court litigation is still pending. (3) Recent Related Expressive-Matter Vendor Issues Expressive matter was originally defined as “materials or objects with expressive content, such as newspapers, books, or writings, or visual art such as paintings, prints, photography, or sculpture.” 56 RCNY § 1-02. The Parks Department initially interpreted this definition to include performances for donations by buskers and street artists. The Parks Department had determined that “the impact of these artists on parkland is no different from the impact of artists who sell tangible items of art”. Petitioners protested this interpretation and argued that applying the Vending Rules to performers would deprive them of their already limited access to the spot designations. On February 23, 2012, the New York State Appellate Division, First Department, in New York Skyline, Inc. v. City of New York , 94 AD3d 23 (1st Dept.), lv. denied, 19 NY3d 809 (2012), held that 11
the definition of “general vendor” in Administrative Code section 20-453, which, at that time, resembled the vending definition in the Vending Rules, excludes entertainers, finding that they do not sell or offer to the public “goods or services.” Id. at 2627. Thereafter, the City temporarily stopped enforcing the Vending Rules against buskers and entertainers in order to avoid a conflict with the Skyline decision. However, thereafter, following appropriate public notice and written comments, the City revised sections 1-02 and 1-05(b) of the Vending Rules to clarify the Parks Department’s original intent that individuals providing entertainment in exchange for a fee or donation are considered expressive-matter vendors. On May 8, 2013, the revised sections became effective.5 The District Order Court’s Summary Judgment (a) In its September 30, 2012 decision granting the City’s motion in its entirety, the District Court first held that the Vending Rules, as drafted, were “unquestionably content-neutral” requiring an In this regard, therefore, the fact that artists who sell merchandise for money and artists who perform in exchange for a donation are equally subject to the Vending Rules, as the City had originally intended, evidences the City’s effort and intent to treat all expressive-matter vendors similarly. 12
intermediate level of scrutiny, even though it was “undisputed” that the Vending Rules only target expressive-matter vendors. 901 F. Supp. 2d at 473 (Pet. App. B-26a). The District Court held that the Vending Rules were completely unrelated to the content of the expressive matter being sold and that petitioners failed to demonstrate that the Rules treated different types of expressive matter differently based on the messages they conveyed or that the spot designations were distributed according to the content of the expressive matter sold. 901 F. Supp. 2d. at 473 (Pet. App. B-28a). The District Court further found that petitioners were “mistaken” in their contention that all regulations distinguishing between speakers warranted strict scrutiny, noting that heightened scrutiny was unwarranted when “the differential treatment [between speakers] [was] justified by some special characteristic of the particular [speaker] being regulated.” 901 F. Supp. 2d at 473 (Pet. App. B-27a). The Court held that, in this case, expressive-matter vendors had such a special characteristic, because they are not covered by the regulations that govern other types of vendors. Id. (b) The District Court also held that the Vending Rules, as enforced, were content-neutral. 901 F. Supp. 2d at 473 (Pet. App. B-28a). In this regard, the Court found unavailing petitioners’ assertion that the City’s decision to, as explained above, temporarily exempt performers from the Vending Rules was an impermissible restriction 13
based on content, finding that there were “any number of ‘special characteristic[s] distinguishing vendors of tangible art and performing artists that support the present policy, not least among them that, as [petitioners] acknowledge, performers are already subject to the permitting requirements when they expect to draw large crowds.” 901 F. Supp. 2d at 473-474 (Pet. App. B-28a). The District Court also acknowledged that the City’s purpose in adopting the new policy was to comply with “an unanticipated (and arguably illreasoned) court-ruling [Skyline]—a matter plainly divorced from the content of tangible art vendors’ speech.” 901 F. Supp. 2d at 474 (Pet. App. B-28a29a). The Court further noted that the City’s present enforcement policy was a “sharp departure” from its prior licensing scheme that was struck down in Bery, highlighting that, here, the Vending Rules have a “relatively limited impact on tangible art vendors in only four City parks,” whereas in Bery, there was a strong suspicion that the regulation was content-based based on the “effective bar” it created on the sale of visual art work such that “an entire medium of expression [was] being lost.” 901 F. Supp. 2d at 474 (Pet. App. B-29a). In addition, the District Court also held that the Vending Rules did not “reflect government disapproval of the protected activity of selling expressive matter.” 901 F. Supp. 2d at 474 (emphasis in original) (Pet. App. B-29a). The Court highlighted that the Vending Rules were part of a larger regulatory scheme that governed the time, 14
place and manner of all vendors’ sales and that, although the Rules applied only to expressivematter vendors, that was “simply because courts have struck down previous attempts to treat expressive matter vendors like all other vendors.” 901 F. Supp. 2d at 474 ( citing Bery, 97 F.3d at 698699) (Pet. App. B-29a). The Court pointed out that expressive-matter vendors were treated “more favorably” than other vendors, because they may sell their wares without a general vendor’s license, may sell in any public space in the City subject only to the General Vendors Laws and they may sell in any space under the Parks Department’s jurisdiction subject only the limited expressivematter Vending Rules. 901 F. Supp. 2d at 474 (Pt. App. B-29a-30a). With respect to petitioners’ argument that the spot designations under the Vending Rules were a “clandestine licensing scheme” because the Rules delegated broad discretion to authorities who oversee the distribution of the spot designations each morning, the District Court held that this insufficient evidence had “nothing to do with the content of the expressive matter being sold as opposed to the category of vendor selling them.” 901 F. Supp. 2d at 474-475 (emphasis in original) (Pet. App. B-30a-31a). (c) In light of its finding that the Vending Rules were content-neutral regulations, the District Court next found that they passed constitutional muster because they were “narrowly tailored to 15
serve a significant governmental interest” and “leave open ample alternative channels for communication.” 901 F. Supp. 2d at 475 (Pet. App. B-31a). Specifically, the District Court held that the City’s interests—i.e., alleviating congestion and improving circulation, promoting the aesthetics of the parks and ensuring that the parks are available to the public for a wide range of activities—were significant interests, which, contrary to petitioners’ contentions, were not a pre-text for any purported attempt by the City to drive visual artists out of the park or to retaliate against petitioners personally. 901 F. Supp. 2d at 475 (Pet. App. B-32a-33a). The Court found no support in the record for petitioners’ assertions and reiterated that the Vending Rules targeted expressive-matter vendors only because those vendors were not subject to the regulatory schemes that governed other vendors. 901 F. Supp. 2d at 475-476 (Pet. App. B-33a). The District Court also found unpersuasive petitioners’ argument that the City’s proffered reasons for the Vending Rules were pre-textual because the City “has an interest in reducing pedestrian congestion only when there is a nexus between a threat to public safety and the congestion the municipality seeks to limit.” 901 F. Supp. 2d at 476 (Pet. App. B-34a). The Court pointed out that the Second Circuit defined the City’s interest in alleviating congestion “more broadly.” Id.
With respect to petitioners’ claim that the City failed to demonstrate that expressive-matter vendors caused “any dangerous congestion or that they were the sole cause of congestion,” the District Court reiterated its ruling in its July 2010 preliminary injunction order that, while the City may tolerate heightened congestion in some circumstances, such as the Union Square Greenmarket and the Holiday Market at Columbus Circle and Union Square, it did not mean that it was required to tolerate such congestion at all times or that its measures to reduce congestion were pre-textual. 901 F. Supp. 2d at 476 (Pet. App. B-34a). The District Court found similarly unavailing petitioners’ change in position to its current contention that the City’s efforts to address the Skyline decision regarding performance artists was a mere “ruse” to conceal its intent to discriminate against visual artists. 901 F. Supp. 2d at 476 (Pet. App. B-35a). The Court noted that petitioners had originally contended that the inclusion of performance artists under the ambit of the Vending Rules was then an attempt to drive visual artists out of the parks. Id. (d) The District Court next held that the Vending Rules were narrowly tailored to promote the aforementioned significant government interests, because those interests would be achieved less effectively absent the Rules. 901 F. Supp. 2d at 477 (Pet. App. B-35a-36a). The 17
Court pointed out that the record demonstrated that the City attempted only to impose spot designations in the most heavily used areas, taking into consideration the volume of park visitors, the specific aesthetics of each park, the available transportation in each park, the historic uses of the parks and the configuration of the parks. 901 F. Supp. 2d at 477 (Pet. App. B-36a). The Court also highlighted that the City took into consideration where expressive-matter vendors traditionally vended and attempted to accommodate them even where the general vending laws would have otherwise precluded them from setting up. Id. The Court also pointed out that, in response to the comments received during the public review process, the City added and moved spots. Id. The District Court additionally took note of the fact that the Vending Rules “essentially track suggestions set forth in previous cases,” including Bery’s admonition against licensing discretion in government officials, such that now the Vending Rules require that medallions be allocated on a first-come, first-served basis with specific rules that withhold discretion from officials. 901 F. Supp. 2d at 477 (Pet. App. B-37a). With respect to the City’s decision to temporarily exclude performers from the enforcement, the Court held that, while that “may diminish the effectiveness of the” Vending Rules, there was no evidence to suggest that such an outcome was inevitable nor was it the Court’s place to “dictate the minute details of City policy.” Id. In any event, the Court opined that, unlike the book vendors under scrutiny in Bery, the performers 18
here remained subject to all Parks Department regulations outside the Vending Rules, and tangible art vendors enjoyed equal freedom outside the four parks with spot designations. 901 F. Supp 2d at 478 (Pet. App. B-38a). The District Court held that the fact that there may be a different or better way to regulate expressive-matter vendors was not dispositive of the issue, so long as the Vending Rules were, as here, not substantially broader than necessary to achieve the City’s interests. 901 F. Supp. 2d at 477 (Pet. App. B-37a). (e) In addition to finding that the Vending Rules were content-neutral and narrowly tailored, the District Court also found that the Rules left open ample alternative channels for communication, highlighting that such alternative channels need not be perfect substitutes for the channels denied. 901 F. Supp. 2d at 478 (Pet. App. B-38a). The Court pointed out that expressive-matter vendors may sell their wares in any other park in the City, provided that they comply with the general expressive-matter vending restrictions. 901 F. Supp. 2d at 478 (Pet. App. B-39a). The Court noted that a “significant” amount of the Parks Department’s 2,700 acres of parkland in Manhattan was still available to expressive-matter vendors. Id. With respect to petitioners’ claim that the aforementioned “account of available space” was 19
merely a “linguistic trick” by the City to purportedly obscure the fact that there is little parkland left under the Vending Rules available for artists, the District Court held that there was “no support for the contention that the [Vending Rules] unduly limit vending in any of the hundreds of other parks in the City” and that, even though Parks’ Commissioner Benepe was unable to testify to a legal vending spot under the general expressive-matter vending restrictions in Central Park when presented with a tourist map at his deposition, that did not mean that there was not a single, bona fide legal spot in any of the four affected parks. 901 F. Supp. 2d at 478-479 (Pet. App. B-39a-40a). The Court also highlighted that expressive-matter vendors may vend on public sidewalks throughout the City and that they are not prohibited from giving their goods away or from vending while not stationary. 901 F. Supp. 2d at 479 (Pet. App. B-40a-41a). (f) With respect to petitioners’ Equal Protection claims under the Fourteenth Amendment, the District Court held that expressive-matter vendors were not a suspect class and, because the Vending Rules “fall well within the parameters of the First Amendment,” they were only subject to a rational basis review. 901 F. Supp. 2d at 480 (Pet. App. B42a). Under that review, the Court held, the City “met the low bar” of establishing that the Vending Rules were rationally related to a legitimate government interest, i.e., promoting the use and enjoyment of the parks. Id. The Court found 20
unavailing petitioners’ claims of discrimination, pointing out that it was “not at all apparent to the Court that tangible art vendors and performing artists are similarly situated,” especially given that, prior to the Skyline decision, petitioners argued for the exclusion of performers on the ground that they were different. 901 F. Supp. 2d at 480 (Pet. App. B-43a-44a). In any event, the Court held, the City’s desire to address the Skyline decision was a rational basis for any alleged disparate treatment. 901 F. Supp. 2d at 480 (Pet. App. B-44a). (g) Finally, the District Court held that petitioners’ conspiracy claim was without merit, because, as a threshold matter, they were required, but failed, to demonstrate that the Vending Rules impinged on their First or Fourteenth Amendment rights. 901 F. Supp. 2d at 481 (Pet. App. B-45a). The Court further held that, similarly, their First Amendment retaliation claim was without merit, because they were unable to demonstrate that the Vending Rules “effectively chilled” the exercise of their First Amendment rights, given that the Rules were valid time, place and manner restrictions that left petitioners with ample opportunity to exercise their rights. 901 F. Supp. 2d at 481 (Pet. App. B46a). The District Court concluded that “[petitioners] have made a practice of contesting any attempt to limit their ability to display and sell their art whenever and however they please. 21
However, the Constitution recognizes that the City must be permitted to balance [petitioners’] speech rights with other myriad demands on municipal resources.” 901 F. Supp. 2d at 481 (Pet. App. B-46a).
The District Court’s Protective Order During the course of litigation, petitioners requested to take the deposition of then Mayor Bloomberg and former Deputy Mayor Edward Skyler. In a joint letter to the District Court, the parties outlined their respective positions in this discovery dispute—petitioners maintained that the Mayor and the former Deputy Mayor had information necessary to their case, while the City requested that the Court preclude the depositions, maintaining that neither possessed any unique knowledge about the basis for the promulgation of the Vending Rules. In an order entered June 1, 2011, the District Court deemed the City’s request to bar as a motion for a protective order and granted that motion (Pet. App. C-49a). The Court held that, ‘[w]hile [petitioners] make a variety of allegations in the letter against both Mayor Bloomberg and former Deputy Mayor Skyler, [petitioners] fail to demonstrate both that the desired deponents have personal knowledge of the events in question in this action and that any information they have 22
cannot be obtained elsewhere, namely by deposing Parks Commissioner Adrian Benepe” (Pet. App. C-49a-50a). The Court highlighted that, in that regard, petitioners’ complaint “focuse[d] on Commissioner Benepe as the driving force behind” the Vending Rules at issue (Pet. App. C-50a). The Order of the Second Circuit Court of Appeals In affirming the District Court, 731 F.3d 199 (Pet. App. A-1a-9a), the Second Circuit held that the City’s expressive-matter regulations operated within constitutional limits, because they were reasonable contentneutral restrictions on the time, place and manner of such protected speech, narrowly tailored to serve a significant government interest and left open ample alternative channels of communication. 731 F.3d at 202 (Pet. App. A-5a-6a). In this regard, the Second Circuit found that the regulations were content-neutral restrictions, because they applied to all expressive-matter vendors, regardless of the message they conveyed. 731 F.3d at 202 (Pet. App. A-6a). The Circuit highlighted that the regulations were “passed not in an attempt to suppress vendors’ ability to market their wares, but to fill a gap in the larger regulatory scheme governing vending on Parks Department property.” Id.
The Second Circuit further found that the City’s interests of “alleviating congestion and improving circulation, promoting the aesthetics of the parks, and ensuring that the parks are available to the public for a wide range of activities” were “indisputably significant.” 731 F.3d at 202 (Pet. App. A-6a). The Circuit held that the regulations were narrowly tailored to serve those interests, because the City imposed spot designations only in the most heavily used areas, which designations were allocated on a first-come, first-served basis without reference to the views expressed, while also leaving all remaining park areas open for vending. 731 F.3d at 202-203 (Pet. App. A-6a). As to the protective order, the Second Circuit, following other Circuit decisions, held that, to depose a high-ranking government official, a party must demonstrate “exceptional circumstances” to justify the deposition, such as that the official has unique first-hand knowledge related to the litigated claims or that the necessary information cannot be obtained through other, less burdensome means. 731 F.3d at 203 (Pet. App. A-8a). The Circuit found that petitioners had not demonstrated such exceptional circumstances, because they did not identify with particularity the information they needed nor did they contend that then-Mayor Bloomberg and former Deputy Mayor Skyler had first-hand knowledge about the litigated claims or had any of the information they sought from Commissioner Benepe. Id.
In any event, the Second Circuit held that petitioners did not preserve for appellate review their principal arguments concerning the protective order, having merely incorporated the argument they made to the District Court by reference in their brief. 731 F.3d at 203 (Pet. App. A-9a). Specifically, the Circuit noted that plaintiffs referred to 12 points they argued in a joint letter to the District Court but, otherwise, do not elaborate further as to what those 12 points were. Id. REASONS FOR DENYING THE PETITION THE SECOND CIRCUIT’S DECISION IS LEGALLY CORRECT AND DOES NOT CONFLICT WITH ANY DECISION OF THIS COURT OR OTHERWISE WARRANT FURTHER REVIEW BY THIS COURT. Petitioners have not persuasively demonstrated that there is any conflict between the Second Circuit’s decision and prior decisions of this Court or other Circuits. Contrary to petitioners’ contentions (Pet. at 14), this case does not present this Court with “pressing and persistent constitutional questions arising out of a municipality’s restrictions on expressive activity in public land.” (a) It appears that petitioners are claiming that this Court should hear this case because some artists in other jurisdictions have not been able to raise funds to challenge certain ordinances and, 25
therefore, if “these [p]etitioners’ rights are not vindicated, it will have an adverse domino effect on all other artists” (Pet. at 16-17). Although the Second Circuit’s decision may have been referenced in a national Newsweek article, that is not a basis for this Court to hear this case, where, as here, the Second Circuit’s decision was legally correct based on the facts of this particular case and consistent with this Court’s well-settled First Amendment jurisprudence. This Court has held that, to pass constitutional muster, a time, place, and manner restriction of speech or conduct in a public forum must be content-neutral, narrowly tailored to meet a significant government interest and leave open ample alternative means of communication. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); Olivieri v. Ward, 801 F.2d 602, 605 (2d Cir. 1986), cert. denied, 480 U.S. 917 (1987). This Court has further clarified that “[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). “The principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” Id. A regulation is contentneutral where, as here, it is “justified without reference to the content of the regulated speech.” 26
Id. (quoting Community for Creative Non-Violence, 468 U.S. at 293). Here, the Second Circuit, consistent with this Court’s jurisprudence, correctly found that the Vending Rules are valid content-neutral, time, place and manner restrictions narrowly tailored to advance the City’s substantial interests. The Vending Rules are content-neutral, because they apply to all expressive-matter vendors, regardless of the message they convey. The Vending Rules are necessary, because expressive-matter vendors were not covered by the regulations that govern other types of vendors. We are not unmindful that the Vending Rules do not govern artists who simply display their work or perform without soliciting donations, and, thus, they are not required to operate in the designated spots. However, this is because the Parks Department has seldom, if ever, encountered people engaging in that sort of activity and, therefore, these artists have not proven to have the same impact on parkland and park visitors as expressive-matter vending from displays at fixed locations (these other artists are, however, required to comply with all general use of Parks Department rules). Thus, notwithstanding petitioners’ contentions that the Vending Rules “single out income derived from expressive activity,” (Pet. at 89), it is clear that the Vending Rules do not “reflect government disapproval of the protected activity of 27
selling expressive matter.” See Lederman, 2010 U.S. Dist. LEXIS 71425, *20, 23. Moreover, the Vending Rules are narrowly tailored to advance the City’s interests in alleviating congestion, promoting aesthetics by preserving the integrity of the overall design of the parks, including the need to preserve landscapes and scenic views, and ensuring that the parks are available to the public for a wide range of activities, including active and passive recreation, performances, demonstrations and the viewing of historical monuments and public art exhibits. That these interests are all significant is beyond question. See, e.g., Madsen v. Women’s Health Ctr., 512 U.S. 753, 768 (1994) (states have “a strong interest in ensuring the public safety and order [and] in promoting the free flow of traffic on public streets and sidewalks…”); Community for Creative Non-Violence, 468 U.S. at 299 (finding that the National Park Service had a significant governmental interest in maintaining its parks in an attractive condition and “in conserving park property”). It is well-established that the Parks Department’s Vending Rules need not be “the least restrictive or least intrusive means” of achieving the City’s interest in preserving its parkland and regulating its use. See Rock Against Racism, 491 U.S. at 798. Rather, “the narrow tailoring requirement is satisfied so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” Id. (citation omitted). 28
So long as the regulations as a whole are “not substantially broader than necessary to achieve the government’s interest . . . the regulation[s] will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speechrestrictive alternative.” Rock Against Racism, 491 U.S. at 798. “ ‘The validity of [time, place and manner] regulations does not turn on a judge’s agreement with the responsible decision maker concerning the most appropriate method for promoting significant government interests’ or the degree to which those interests should be promoted.” Id. (citation omitted). Therefore, while rules of this nature necessarily involve some degree of line drawing, there is no question that, as a whole, the spot designations in the Vending Rules fall within “the zone of constitutionality.” Moreover, there is absolutely nothing in this extensive record that suggests that the Rules were promulgated as a pretext for driving independent artists out of the parks or to retaliate against petitioners personally. Finally, the Vending Rules leave open ample alternative channels for petitioners’ expressive activities. As an initial matter, in light of petitioners’ admissions that they have never even attempted to secure one of the designated expressive-matter vending locations, petitioners should be estopped from arguing that they do not have ample opportunities to engage in expressive-matter 29
vending. Specifically, during his deposition, petitioner Nesbitt admitted that he never attempted to obtain one of the designated vending spots. Rather, on the day the rules took effect, he engaged in a protest by setting up in a nondesignated spot. Similarly, petitioner Lederman stated at his deposition that he “never h[as] and never will attempt to obtain a medallion [ i.e., designated] spot . . . .” Indeed, petitioner Lederman has not been regularly engaged in art vending in the City’s parks since 2001 and has hardly made any sales at all in recent years. In any event, there is no question that expressive-matter vendors who are unable to secure one of the designated vending spots nonetheless have ample alternatives to engage in expressive activity. It is beyond dispute that neither the United States nor the State Constitutions guarantees a person the right “to communicate one’s views at all times and places and in any manner that may be desired.” Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981); see also Olivieri, 801 F.2d at 605 (“the First Amendment does not guarantee an absolute right to anyone to express their views any place, at any time, and in any way they want.”). While ample alternatives must be available, speakers are not guaranteed “access to every or even the best channels or locations for their expression.” Carew-Reid v. Metropolitan Transp. Auth., 903 F.2d 914, 919 (2d Cir. 1990) (citing City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 812 ). 30
Here, expressive-matter vendors have ample avenues beyond the designated spots for exercising their free speech rights. Any expressive-matter vendor who is foreclosed from a designated spot may sell his or her artwork in any part of the perimeter of Central Park north of 86th Street, any part of the interior of Central Park other than the pathways along the Central Drive and Wein and Wallach Walks and any other park in the City, provided they comply with the general provisions of the Vending Rules. With approximately 29,000 acres of parkland under the Parks Department’s jurisdiction—2,700 of which are in Manhattan—and only about 52 acres affected by the designated spot requirement, there is a significant amount of space available for vending on property under the Parks Department’s jurisdiction notwithstanding the fact that vending is not permitted on grassy areas, in close proximity to park benches or on pathways that provide less than a 12-foot wide clear pedestrian path. Expressive-matter vendors can also vend on public sidewalks throughout the City without regard to the Vending Rules, except for those sidewalks that adjoin parkland. Specifically, pursuant to Administrative Code sections 17-306 et seq. and 20-452 et seq. and Bery, 97 F.3d 689, expressive-matter vendors may vend on any street where a permitted non-expressive-matter vendor may vend, and this Court may take judicial notice of the fact that numerous non-expressive-matter vendors—such as those selling coffee or hot dogs— operate on the sidewalks throughout the City and 31
especially in Manhattan. See Lederman, 1998 U.S. Dist. LEXIS 5468 at *4 (prior Parks Department lottery system left open alternative avenues of communication, since an expressive-matter vendor could “sell his artwork on any other public sidewalk throughout the City . . . subject only to narrow restrictions”). (b) The Second Circuit also correctly affirmed the protective order barring the depositions of thenMayor Bloomberg and former Deputy Mayor Edward Skyler. First, as an initial procedural matter, the Second Circuit was correct in finding that petitioners did not preserve for appellate review their principal arguments concerning the protective order, having only merely incorporated the argument they made to the District Court by reference in their brief. For this reason alone, this Court should not entertain petitioners’ claims. In any event, contrary to petitioners’ contentions, there is no conflict among the Circuits. It is well settled that high-ranking governmental officials are generally entitled to immunity from depositions concerning matters about which they have no unique personal knowledge. See, e.g., In re FDIC, 58 F.3d 1055, 1060-61 (5th Cir. 1995) (Fifth Circuit quashed deposition notices to FDIC directors when no special circumstances to warrant the deposition were presented); Sweeney v. Bond, 669 F.2d 542 (8th Cir.), cert. denied sub nom., 32
Schenberg v. Bond, 459 U.S. 878 (1982) (Governor of Missouri need not be deposed absent showing that he possessed information that could not be obtained from others). Here, there is nothing in the extensive record that demonstrates that either then-Mayor Bloomberg or former Deputy Mayor Skyler had any personal involvement in the promulgation of the Vending regulations or that they have any unique personal knowledge of the basis for the promulgation of the Rules. Significantly, petitioners deposed Parks Commissioner Benepe, the final decision-maker with respect to the Vending Rules and, significantly, petitioners’ complaint focuses on Commissioner Benepe as the driving force behind the Parks regulations at issue. In light of the foregoing, the Second Circuit’s decision does not warrant further review by this Court.
CONCLUSION THE PETITION FOR A WRIT OF CERTIORARI SHOULD BE DENIED. Dated: New York, New York January 23, 2014 Respectfully submitted, JEFFREY D. FRIEDLANDER, Acting Corporation Counsel of the City of New York, Attorney for Respondent, LEONARD J. KOERNER, Counsel of Record, 100 Church Street, New York, New York 10007. (212) 356-0844 or 2500 email@example.com EDWARD F.X. HART, JULIE STEINER, of Counsel.
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