Rev. Alexandra COE, Plaintiff-Appellee-Cross-Appellant, v. TOWN OF BLOOMING GROVE, Village of Washingtonville, Defendants-Appellants-Cross-Appellees.
Nos. 10-3307(L), 10-3403(XAP)
United States Court of Appeals, Second Circuit.
July 20, 2011.
J. Benjamin Gailey, Jacobowitz and Gubits, LLP, Walden, NY, for Defendants-Appellants-Cross-Appellees.
PRESENT: B.D. PARKER, DENNY CHIN and RAYMOND J. LOHIER, JR., Circuit Judges.
SUMMARY ORDER
In decisions dated July 7, 2008, 567 F.Supp.2d 543, and May 18, 2010, 714 F.Supp.2d 439, the District Court resolved Plaintiff Alexandra Coe‘s challenges to the application and facial validity of certain provisions of the Codes of the Town of Blooming Grove (the “Town“) and Village of Washingtonville (the “Village“), and awarded $41,503.25 in attorney‘s fees to Coe under
DISCUSSION
“We review the district court‘s grant of summary judgment de novo, and we may affirm on any basis for which there is sufficient support in the record, including grounds not relied on by the district court.” Bruh v. Bessemer Venture Partners III L.P., 464 F.3d 202, 205 (2d Cir. 2006) (citations omitted).
1. The District Court held that the Lawn was a traditional public forum. We need not decide whether the District Court was correct in this respect, because, at a minimum, the Lawn was a limited public forum at times relevant to this suit, and Coe‘s access to the Lawn was unconstitutionally restricted on the basis of her viewpoint. A “limited public forum” exists “where the government opens a non-public forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain subjects.” Hotel Emps. & Rest. Emps. Union, Local 100 v. City of N.Y. Dep‘t of Parks & Recreation, 311 F.3d 534, 545 (2d Cir.2002) (quoting N.Y. Magazine v. Metro. Transp. Auth., 136 F.3d 123, 128 n. 2 (2d Cir.1998)). The operator of a limited public forum may engage in “content discrimination, which may be permissible if it preserves the purposes of that limited forum,” but may not engage in “viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum‘s limitations.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 830 (1995); see also Amandola v. Town of Babylon, 251 F.3d 339, 344 (2d Cir.2001).
The Town and Village opened the Lawn for expression on the subjects of war and military service when they permitted speakers from private groups, including the Veterans of Foreign Wars (“VFW“), to use it without obtaining liability insurance. The Town and Village argue that the VFW‘s speech merely conveyed the government‘s message and thus does not prove the Lawn was opened for private expression, but we find no evidence that the Town or Village authorized, approved, controlled, or ratified the VFW‘s speech, cf. Pleasant Grove City v. Summum, 555 U.S. 460 (2009), or that the VFW communicated governmental messages when it addressed these subjects.
By contrast, when Coe asked to hold a peace rally at the Lawn to speak on the same general subjects, the Town informed her “that [she] needed to take out a [$1 million] liability insurance policy.” The Town also rejected her request for a waiver of this requirement based on her inability to afford it. In this context, a liability insurance requirement is a prior restraint
In 2007, the Town amended its Code to provide that while “[u]se of Town-owned traditional public forums for First Amendment activity is permitted,” the Lawn is “not a traditional public forum.” Although the amended Code‘s new designation of the Lawn purported to exclude all users, the Town continued to allow the VFW to use the Lawn, and the Lawn‘s status as at least a limited public forum persisted. Therefore, whether or not the Town was correct that the Lawn is “not a traditional public forum,” the selective exclusion of Coe continued to discriminate illegally based on viewpoint.
Because we conclude that Coe‘s access to the Lawn as a limited public forum was unconstitutionally restricted on the basis of her viewpoint, we express no view on the District Court‘s conclusion that the Lawn is a traditional public forum.
2. We affirm the District Court‘s invalidation of the Town Code‘s Small Group Permit Requirement for substantially the reasons stated by the District Court. As drafted, without limitation, that requirement restricts a “‘substantial’ amount of protected free speech, ‘judged in relation to [its] plainly legitimate sweep.‘” Virginia v. Hicks, 539 U.S. 113, 118-19, 123 (2003) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)).
3. The District Court‘s invalidation of the Village Code‘s (as opposed to the Town Code‘s) liability insurance requirement arose from its misunderstanding of the insurance provision. Rather than requiring that all users of Village property obtain liability insurance regardless of indigency, the Village Code provides that “[a]n applicant who seeks to use Village property outside of a building for First Amendment purposes shall not be required to provide liability insurance.” On appeal, Coe does not defend the District Court‘s invalidation of the liability insurance requirement, and we vacate the District Court‘s ruling in this regard.
4. When awarding attorney‘s fees to a “prevailing party” under
The District Court correctly concluded that Coe was the “prevailing party” under
We conclude, however, that the District Court exceeded its discretion in denying the portion of Coe‘s fee request attributable to the prior appeal taken by Defendants. See Coe v. Town of Blooming Grove, 328 Fed.Appx. 743 (2d Cir. 2009) (summary order). At the time that appeal was filed, Coe had prevailed on the merits of three claims we affirm today. It was also clear that an appeal could not be taken under
CONCLUSION
We have considered the parties’ remaining arguments and find them to be without merit. The judgment is AFFIRMED in part and VACATED in part as set forth above. The case is remanded to the District Court for all purposes.