Lederman v. New York City Department of Parks & Recreation
731 F.3d 199
| 2d Cir. | 2013Background
- Plaintiffs Robert Lederman and Jack Nesbitt are visual artists who sell expressive matter in NYC parks and sidewalks; they sued after the Parks Department revised vending rules in 2010.
- 2010 Rules: vendors may generally vend without permits throughout parks subject to size/placement limits, but in Union Square, Battery Park, High Line, and parts of Central Park vending is limited to designated spots allocated first-come, first-served.
- Plaintiffs challenged the 2010 revisions as violating the First Amendment and sought depositions of Mayor Bloomberg and Deputy Mayor Skyler during discovery.
- The district court issued a protective order barring those depositions and later granted summary judgment to the City, holding the rules were content-neutral time, place, and manner restrictions.
- Plaintiffs appealed both the summary judgment dismissal and the protective order; the Second Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the vending rules are content-based or content-neutral | Rules are content-based and unduly restrictive of expressive sales | Rules regulate time/place/manner, apply irrespective of message, and fill a regulatory gap | Rules are content-neutral TPM restrictions and constitutional |
| Whether the restrictions are narrowly tailored to a significant government interest | Rules are not narrowly tailored and unduly limit vending | Government seeks to reduce congestion, protect aesthetics, and preserve park use; spot limits only in heavily used areas | Narrowly tailored to significant interests and leave ample alternative channels |
| Whether spot allocation method is viewpoint-discriminatory | First-come, first-served could indirectly limit speech | Allocation is non-discretionary and neutral with respect to message | Allocation on a first-come basis is content-neutral and permissible |
| Whether depositions of high-ranking officials (Mayor, Deputy Mayor) should be allowed | Plaintiffs needed Bloomberg/Skyler testimony because Benepe lacked information | High-ranking officials are presumptively protected from depositions absent exceptional circumstances | Protective order proper; plaintiffs failed to show exceptional circumstances |
Key Cases Cited
- Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996) (expressive matter in public places receives full First Amendment protection)
- Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622 (1994) (content neutrality inquiry focuses on whether regulation is based on message agreement or disagreement)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, manner restrictions must be content-neutral and narrowly tailored)
- Mastrovincenzo v. City of New York, 435 F.3d 78 (2d Cir. 2006) (intermediate scrutiny for TPM restrictions: significant interest, narrow tailoring, alternative channels)
- Watchtower Bible & Tract Soc’y v. Village of Stratton, 536 U.S. 150 (2002) (requirements affecting distribution of literature implicate First Amendment scrutiny)
- United States v. Morgan, 313 U.S. 409 (1941) (courts should avoid requiring high-ranking officials to testify about reasons for official action absent exceptional circumstances)
- Bogan v. City of Boston, 489 F.3d 417 (1st Cir. 2007) (articulating standard that high-ranking officials should not be deposed absent exceptional circumstances)