Opinion
02-CV-0677 (CBA)(LB)
February 15, 2002
REPORT AND RECOMMENDATION
By order dated January 31, 2002, the Honorable Carol Bagley Amon, United States District Judge, referred plaintiff's order to show cause for a preliminary injunction and a temporary restraining order pursuant to Federal Rule of Civil Procedure 65 to the undersigned for a Report and Recommendation in accordance with 28 U.S.C. § 636(b) (1994 Supp. V 1999). For the reasons that follow, it is respectfully recommended that defendant's order to show cause for a preliminary injunction and a temporary restraining order be denied.
STATEMENT OF FACTS
Plaintiff challenges the constitutionality of New York City's anti-posting stature, codified in Title 10-119 of the New York City Administrative Code, under the First and Fourteenth Amendments to the United States Constitution. The full text of the challenged provision states:
a. It shall be unlawful for any person to paste, post, paint, print or nail any handbill, poster, notice, sign or advertisement upon any curb, gutter, flagstone, tree, lamppost, awning post, telegraph pole, telephone pole, public utility pole, public garbage bin, bus shelter, bridge, abutment, elevated train structure, highway fence, barrel, box, parking meter, mailbox, traffic signal stanchion, tree box, bench, traffic barrier, hydrant, public pay telephone, any personal property maintained on a city street or other city-owned property pursuant to a franchise, concession or revocable consent granted by the city or other such item or structure in any Street, or to direct, suffer or permit any such activity; provided, however, that this section shall not apply to any handbill, poster, notice, sign or advertisement so posted by or under the direction of the council, or by or under the direction of any city agency, or pursuant to a franchise, concession or revocable consent granted pursuant to chapter fourteen of the charter. b. There shall be a rebuttable presumption that the. person whose name, telephone number, or other identifying information appears on any handbill, poster, notice, sign or advertisement on any item or structure described in subdivision a of this section in any street violated this section by either (i) pasting, posting, painting, printing or nailing such handbill, poster, notice, sign or advertisement, or (ii) directing, suffering or permitting a servant, agent, employee or other individual under such person's control to engage such activity.
Plaintiff alleges that the challenged statute is overbroad. Complaint ¶ 4. He states that his First Amendment rights have been chilled because he is "having difficulty campaigning for political office for fear of being prosecuted under said statute." Plaintiff's Memorandum of Law in Support of Order to Show Cause for Preliminary Injunction and Temporary Restraining Order ("Plaintiff's Memo"). Plaintiff states that a staff member in Congressman Anthony Weiner's office told him that there had been "numerous complaints in the community regarding the bumper stickers that Plaintiff had placed on lampposts in the district that plaintiff had run in, in the 2001 elections for the N.Y. City Council in the 48th Councilmanic [sic] district of Brooklyn." Complaint ¶ 5. Plaintiff alleges that the anti-posting statute chills his political speech by interfering with his right to campaign for a city council seat in 2003 and "subjects him to possible tremendous dollar amounts in fines." Plaintiff's Response Memo of Law at 4 Plaintiff contends that the statute is being "unevenly enforced and appears to be enforced in an arbitrary manner by threats." Id. at 5. Plaintiff therefore asserts that the statute is both discriminatory as applied and overbroad. Complaint ¶ 6.
On February 11, 2002, the parties appeared before the Court. At the conference, the Court questioned whether the named defendants were the proper defendants. Upon the consent of the parties, the caption of this case is hereby amended to reflect the City of New York as the only defendant; Mayor Michael Bloomberg and the City Council shall be removed as defendants.
The Court inquired when the next election was scheduled to take place. Plaintiff responded that "[t]he primary election is in September. The general election is in November of 2003." Transcript of proceedings held on February 11, 2002 at 2 ("Transcript"). Plaintiff further stated:
Let me just explain to you. If you're questioning the emergency of this nature, first of all, we're talking about political speech, the ability to be able to get across one's ideas, one's name to the public to be elected. So in other words, if the statute is prohibiting speech, which I claim it is, then obviously — I'm always in a campaign mode. I'm ready for the 2003 election right now. Therefore, I cannot put up any bumper stickers for the 2003 election and plus, there's possible liability for the 2001 election.
Transcript at 7.
When asked whether he had ever been given a summons or fine from the City for violation of the anti-posting statute or whether the City had notified him that he had violated the statute by posting his bumper stickers, plaintiff answered no. Transcript at 6.
DISCUSSION
I. Preliminary Injunction Standard
In order for the Court to grant an application for a preliminary injunction, plaintiff must demonstrate, first, that he is likely to suffer irreparable harm and second, that there is a likelihood of prevailing on the merits of the action. Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996). A challenge based on a violation of First Amendment rights satisfies the first part of the plaintiffs burden since "'[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."' Hsu v. Roslyn Union Free School District, 85 F.3d 839, 853 (2d Cir. 1996) (quotingElrod v. Burns, 427 U.S. 347, 373 (1976)). Since irreparable harm is presumed here, we move on to the second consideration, the merits of the action.
Ordinarily, the movant then has two options: it must either demonstrate a likelihood of success on the merits or it must raise "sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." However, in a case in which the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme," the injunction should be granted only if the moving party meets the more rigorous likelihood of success standard.Bent v. City of New York, 97 F.3d at 693 (citations omitted). Plaintiff challenges governmental action taken in the public interest pursuant to a statutory or regulatory scheme, and therefore, plaintiff must show a likelihood of success on the merits for the court to grant his request for a preliminary injunction.
Under the First Amendment, a content-neutral regulation that restricts the time, place, and manner of protected speech is constitutionally acceptable, provided that it is "narrowly tailored to serve a significant governmental interest" and "leave[s] open ample alternative channels for communication." Ward v. Rock Against Racism, 491 U.S. 781. 791 (1989). The statute plaintiff challenges is content-neutral. It prohibits the posting of "any handbill, poster, notice, sign or advertisement" on public property without regard to message or viewpoint. See e.g., Buckley v. Valco, 424 U.S. 1, 18 (1976) (only regulations which do not discriminate among speakers or ideas are content-neutral). The Supreme Court has stated that "[l]ampposts can of course be used as signposts, but the mere fact that government property can be used as a vehicle for communication does not mean that the Constitution requires such uses to be permitted."City Council v. Taxpayers for Vincent, 466 U.S. 789, 814 (1984).
The Vincent case is directly on point to plaintiff's instant challenge. Roland Vincent was a candidate for election to the Los Angeles City Council. A group of his supporters contracted to have signs printed and posted with Vincent's name. The signs were attached to utility poles at various locations around Los Angeles. Under a section of the Municipal Code, city employees removed the signs. Vincent's supporters sought an injunction against the enforcement of the ordinance as well as damages. The District Court concluded that the ordinance was constitutional. The Court of Appeals concluded that the City had not justified the statute's total ban. The Supreme Court reversed and remanded the judgment of the Court of Appeals finding the ordinance constitutional. The Court stated:
[t]he problem addressed by this ordinance — the visual assault on the citizens of Los Angeles presented by an accumulation of signs posted on public property — constitutes a significant substantive evil within the City's power to prohibit. . . . The incidental restriction on expression which results from the City's attempt to accomplish such a purpose is considered justified as a reasonable regulation of the time, place, or manner of expression if it is narrowly tailored to serve that interest. . . . The District Court found that the signs prohibited by the ordinance do constitute visual clutter and blight. By banning these signs, the City did no more than eliminate the exact source of the evil it sought to remedy.Vincent, 466 U.S. at 807— 08.
Plaintiff argues that Vincent can be distinguished because the size of the bumper stickers that he posted, or seeks to post, are smaller than the signs at issue in Vincent Plaintiff's Memo at 9; Transcript at 15. The fact that plaintiff sought to post bumper stickers instead of signs does not distinguish Vincent. "Any tangible property owned by the government could be used to communicate — bumper stickers may be placed on official automobiles — and yet appellees could not seriously claim the right to attach "Taxpayer for Vincent" bumper stickers to city owned automobiles." Vincent, 466 U.S. at 815, n. 3 1 (emphasis supplied).
Upon the showing made here, plaintiff has not met his burden for a preliminary injunction as he has not demonstrated a likelihood of success on the merits. Defendant has indicated it intends to move to dismiss the complaint. The Court has asked the City to specifically brief the exception in the anti-posting statute granted to the City Council and other city agencies. Defendant's motion shall be filed on or before March 28, 2002. Plaintiff shall oppose defendant's motion on or before April 15, 2002. Any request for an extension of time shall be made in writing at least 48 hours prior to the scheduled deadline.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court. Any request for an extension of time to file objections must be made to the District Judge within the ten day period. Failure to file a timely objection to this Report generally waives any further judicial review. See Thomas v. Arn, 474 U.S. 140, 155 (1985).