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NYCLU v. Giuliani: First Amendment Cases

Since Rudolph W. Giuliani was sworn in as Mayor of the City of New York in 1994, the New York Civil Liberties Union has gone to court against his administration on 21 different occasions to protect First Amendment freedoms. The NYCLU has, so far, prevailed in full or in part on eighteen of the twenty cases, with no decision in two cases. The breakdown of the twenty-one cases are: 15 direct representation, 6 amicus curiae; 13 in federal court, 7 in state court, 1 case was in both federal and state court; 15 cases closed and 6 pending.
Below is a summary of the First Amendment cases in which the NYCLU has been involved.

United Yellow Cab Drivers v. Safir — Challenged constitutionality of Giuliani Administration’s refusal to permit a procession of yellow cabs to proceed across the 59th Street Bridge and through midtown down to City Hall to protest changes to rules governing drivers of yellow cabs. A federal trial court held in May 1998 that refusal violated the First Amendment and ordered the city to permit procession to take place. The Federal Court of Appeals upheld the trial court’s decision with modifications regarding the number of cabs allowed in the procession (150) and the time (5:30 a.m.). The NYCLU recently completed trial on the damage claim against the City and a final decision is expected soon.

Harman v. City of New York — Challenged constitutionality of city executive orders that required child welfare employees who wished to speak to the press about non-confidential child welfare matters first to notify and obtain the city’s consent. Federal court held in March 1998 that executive orders violated First Amendment and struck them down. The City then sought review by the Supreme Court of the United States, but it filed its petition too late.

Latino Officers Association v. Safir (LOA I) — Challenged the constitutionality of NYPD policy that required police officers who wished to make public statements about non-confidential police practices and policies first to notify NYPD about intended statements, to obtain permission to make statements, and to report back to the Department about substance of public statement. Federal court held in July 1997 that policy violated First Amendment and enjoined NYPD from enforcing it. The City appealed the order only to the extent it enjoined enforcement of the notice provisions of the NYPD’s policy, and in March 1999 the Court of Appeals vacated that part but directed the district court to allow the plaintiffs to submit additional evidence on their claim. The City then informed the district court that it would not enforce the notice provisions, and thus none of the policy is in effect and police officers are free to speak freely. Trial is now set for November 1, 1999.

People v. Lyons, People v. Sanchez and People v. Schenk — Challenged constitutionality of summonses, charging violations of New York City Parks Department regulations (“unlawful solicitation” and “unlawful assembly, meeting and exhibition”), issued to three Socialist Workers campaign volunteers who were collecting signatures for a petition to place two Socialist Workers Party candidates on the presidential election ballot in New York State. The NYPD also seized certain campaign literature and other political material. Bronx County Criminal Court held that the summonses violated the First Amendment, dismissed summonses and ordered the Police Property Clerk to return the seized literature.

Hickerson v. City of New York — Challenged constitutionality of New York City’s Adult Entertainment Establishment Zoning Law on behalf of customers of adult entertainment establishments alleging that the zoning ordinance interfered with their rights as recipients of constitutionally protected, sexually explicit, expression. Federal and State courts held that enactment did not violate the constitution.

Bery v. City of New York — Provided amicus curiae support to a challenge directed at the City’s regulation prohibiting visual artists from exhibiting or selling their work at public places without a special vendor’s license. The United States Court of Appeals for the Second Circuit declared the regulation to be in violation of the First Amendment.

Time Warner Cable of New York v. City of New York — Provided amicus curiae support for Time Warner Cable of New York City’s challenge to the attempt by the Giuliani Administration to place the Fox News Network and the Bloomberg News Service on channels that had been established for municipal programming by the City. Time Warner’s suit claimed that such an action would constitute a misuse of the city’s municipal channels and violation of federal and state law, and that the Giuliani Administration had impermissibly retaliated against Time Warner for political reasons. The federal courts found in favor of Time Warner.

Kalke v. City of New York — Challenged Parks Department policy on behalf of All Saints Lutheran Church that runs HIV/AIDS peer education programs in the South Bronx. The Church sought to emphasize safe sex by distributing condoms in a New York City park. They were prevented from engaging in this activity by the Parks Department, which cited a regulation restricting “non-commercial product distribution” and prohibits “non-commercial product demonstration.” The Courts held the Parks Department in violation of the First Amendment.

New York Magazine v. The City of New York — Provided amicus curiae support for New York Magazine challenge to a MTA decision to refuse to permit New York Magazine to advertise its magazine on city buses with an ad that satirized the Mayor. The federal courts found in favor of New York Magazine.

Green v. Safir — Provided amicus curiae support to challenge by Public Advocate after for the Police Commissioner refused to provide the Public Advocate with documents on the conduct of the New York City Civilian Complaint Board. The New York State courts found in favor of the Public Advocate.

NYCLU v. Safir — Challenged in New York State Supreme Court the denial of a Freedom of Information Request for information concerning July 4, 1995 police operation in South Ozone Park, Queens. The NYPD settled this case by providing the NYCLU with much of the information requested.

Housing Works v. Safir — Challenged the constitutionality of the Giuliani Administration’s policy of not allowing more than twenty-five people on the steps of City Hall for a press conference. On July 22, 1998, the United States District Court ruled that the policy was in violation of the First Amendment. The City subsequently attempted to close the steps entirely to all protest activity, citing alleged security concerns, and the NYCLLU went back to court and obtained a second preliminary injunction in November 1998 on behalf of Housing Works so it could hold its annual World AIDS Day event at City Hall on December 1, 1998.

Meanwhile, in November 1998 the NYPD adopted a new policy permitting at City Hall only those events that the Mayor deemed to be of “extraordinary public interest.” After the NYPD permitted a number of events to take place at City Hall in December and January, the NYCLU went back to court for third time to challenge the policy. Before the court could rule, however, the defendants once again changed the policy and agreed to permit events if they were sponsored by a government official and were limited to 50 persons.

Once again, the NYCLU prepared a challenge to those limits and once again the City changed its position, agreeing to eliminate the requirement that the event be sponsored by a government official.

Thus, private groups now may stage press conference, rallies, and demonstrations on the steps of City Hall. However, the 50-person limit remains in effect, unless the Mayor finds the event to be of extraordinary public interest. The NYCLU is now challenging this limit, and the City allowed Housing Works to conduct a demonstration on the steps with more than 50 people on September 29, 1999.

Million Youth March v. Safir (Million Youth March I) — Provided amicus curiae support in a challenge directed at the City’s denial of a permit for a rally on Malcolm X Boulevard between 118th and 147th Street on September 5, 1998. On August 26, 1998, United States District Court ruled that denial of the permit violated the First Amendment. On September 1, 1998 the United States Court of Appeals, Second Circuit denied the city’s motion for a stay and modified the District Court’s injunction. (The rally was limited to six blocks for four hours.)

Million Youth March v. Safir (Million Youth March II) — Provided amicus curiae support in challenge to City’s refusal to permit controversial public rally to take place on 1999 Labor Day weekend. Unlike the 1998 controversy, where the dispute was about the size and location of the rally, the City’s in 1999 was that no rally could take place at all. The City based its position on the assertion those associated with the rally had made statements, both at last year’s rally and more recently, that threatened violence. As it had in 1998, the NYCLU submitted an amicus brief to the District Court, upon which it appeared to rely substantially when it granted the plaintiff’s motion for a preliminary injunction. The City sought an emergency stay from the Second Circuit, which heard the motion based on the papers submitted in the District Court by the plaintiff and the NYCLU. The Court of Appeals denied the motion, and the event took place without incident.

International Action Center v. Safir — Challenged the constitutionality of the Giuliani Administration’s new policy of restricting the use of amplified sound in the Times Square area. The City quickly agreed to rescind the policy and to resume issuing sound permits for events taking place elsewhere in the City.

Locurto v. Giuliani — Challenged constitutionality of Police Officer Locurto’s dismissal from the NYPD. Officer Locurto participated (while off-duty and out of uniform) in the 1998 Labor Day Parade in Broad Channel, Queens two days after the Harlem Million Youth March. This case presents the question of the right of public employees to engage in expressive activity off the job, even when that expression is racially controversial. Case pending in the United States District Court, Southern District.

People v. Goga — Challenged the arrest of a taxicab driver who was prevented from approaching the Queensboro Bridge and directed to turn off to a side street, pursuant to the orders of Mayor Giuliani and Police Commissioner Safir. When the cab driver asked the police officers why they were not allowing him to proceed across the bridge, he was arrested and charged with obstruction, disorderly conduct and failure to follow a lawful order. The NYCLU, representing Mr. Goga, argued that the order prohibiting taxicabs from crossing the bridge was not lawful because it was designed to prevent cab drivers from participating in a peaceful and orderly procession protected by the First Amendment. In a jury verdict, in April 1999, Mr. Goga was acquitted of all charges.

People v. Henes, et al — Challenged the issuing of trespass criminal summonses for 20 people who assembled on South Beach, a public beach in Staten Island, to celebrate the 1998 winter solstice. All the charges were dismissed, with the Criminal Court Judge writing “Commemoration of this occasion [winter solstice] for religious, historical or education purposes is to be commended not sanctioned.”

Universal Church of Practical Knowledge v. Giuliani — Challenged the constitutionality of November 1998 actions by NYPD in revoking sound permits from Hebrew Israelites (commonly referred to as “Black Israelites”) who have long preached in Times Square and threatening them with arrest if they continued to try to preach in the area. Case settled in June 1999 when City agreed to pay $54,000 to Israelites in damages and agreed not to take any related actions against Israelites including revocations of permits, confiscation of property, or threat of arrest without first consulting with NYCLU.

Latino Officers Association v. City of New York (LOA II) — Challenges constitutionality of NYPD’s refusal to afford NYPD recognition to organization of Latino police officers who have spoken publicly and critically of discrimination and misconduct by the NYPD. Case is proceeding towards trial, but in June 1999 the district court granted the NYCLU’s request for a preliminary injunction that would allow the Latino Officers Association to march in NYPD uniforms behind its organizational banner in various public parades this summer, which it was barred from doing because it was not a NYPD-recognized group. The Court of Appeals denied the City’s request for an emergency stay of the preliminary injunction but did order an expedited appeal, and the case was argued on July 14, 1999. The parties conducted a trial in September 1999 on the challenge to recognition and are awaiting a final decision.

Walton v. Safir — Challenges dismissal of police officer employed by NYPD, who served in Street Crimes Unit and has been fired after speaking publicly and critically of practices of Unit after four of its members fired 41 bullets and killed Amadou Diallo on February 4, 1999. The NYCLU filed the case in June 1999. Case pending in the United States District Court, Southern District.

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