918 F. Supp. 2d 266
S.D.N.Y.2013Background
- Plaintiffs allege §1983 claims for First and Fourteenth Amendment violations and NY Constitution claims based on enforcement of Admin. Code § 10-108 (Sound Amplification Devices Code).
- Plaintiffs preached on a public street in NYC on April 13, 2011 near Broadway and West 116th Street with an Aker MR2800 headset/amplifier.
- Officer Harper instructed them they could not use the device without a permit under the Sound Amplification Devices Code and warned of a summons if they did not stop.
- Plaintiffs ceased amplification and later sent letters to Captain Ehrenberg (August 2011) seeking cessation of enforcement; no responses were received.
- Admin. Code § 10-108 requires advance permits, sets fees, and imposes time/place restrictions; enforcement is by the NYPD and Department of Environmental Protection.
- The Court granted Defendants' summary judgment, denied Plaintiffs' cross-motion for summary judgment and denied Plaintiffs' preliminary injunction; declined supplemental jurisdiction over state claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the permit scheme content-neutral? | Marcavage argues code is overbroad and content-based. | Ehrenberg argues code regulates conduct, not message, and is content-neutral. | Yes, content-neutral. |
| Does the code serve a significant government interest and are the restrictions narrowly tailored? | Code burdens speech and is not narrowly tailored. | Code relates to health, safety, congestion; narrowly tailored through objective criteria. | Yes, significant interest; narrowly tailored. |
| Does the code leave ample alternative channels for communication? | Amplified speech is essential; limited alternatives. | Speech can occur without amplification or with permits; alternatives exist. | Yes, ample alternatives remain. |
| Is there an applicable as-applied First Amendment violation? | As-applied challenge to enforcement lacks content-based motive. | No content-based motivation shown; enforcement within constitutional bounds. | As-applied challenge fails. |
Key Cases Cited
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (time/place/manner restrictions must leave open channels)
- Mastrovincenzo v. City of New York, 435 F.3d 78 (2d Cir. 2006) (content-neutral regulation subject to intermediate scrutiny)
- Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (U.S. 1983) (intermediate scrutiny for time, place, and manner restrictions)
- Saia v. New York, 334 U.S. 558 (U.S. 1948) (permitting discretion may be unconstitutional; narrow tailoring required)
- Forsyth County v. Nationalist Movement, 505 U.S. 123 (U.S. 1992) (uniform, objective permit standards are essential)
- Watchtower Bible & Tract Society v. Village of Stratton, 536 U.S. 150 (U.S. 2002) (nominal identification requirements must be narrowly tailored)
- Turley v. Police Dept. of City of New York, 167 F.3d 757 (2d Cir. 1999) (fee structure relation to administrative costs supports constitutionality)
- Carey v. Brown, 447 U.S. 455 (U.S. 1980) (public sidewalks as traditional public forums; content-neutral restrictions)
- Murdock v. Pennsylvania, 319 U.S. 105 (U.S. 1943) (regulatory fees permissible absent prohibitive taxation; local cost defrayal)