This case concerns the discretionary policies of a New York City department regarding the distribution of permits governing First Amendment access to parks. In this case, the NYCLU challenged a scheme by which the New York City Department of Parks and Recreation was charging large permit fees to groups holding political events in city parks if the events had corporate sponsorship or if they entailed fundraising. The NYCLU challenged the scheme on the grounds it impermissibly taxed fundraising activity and charged fees for First Amendment activity simply because it enjoyed support from for-profit entities, and impermissibly conferred broad discretion on the parks commissioner to set individual fees (which the scheme allowed to vary from zero to $100,000).
In August 2001, District Court Judge Shira Scheindlin held the scheme to be unconstitutional, enjoined its enforcement, and awarded damages to Transportation Alternatives (TA). The decision was unanimously affirmed in August 2003 by the Second Circuit, relying on the excessive-discretion claim and rejecting the District Court’s suggestion that for-profit sponsorship of political events converted TA’s expression into commercial speech.
U.S. Court of Appeals, 2nd Cir., No. 02-9012 (direct)