Spencer Tunick v. Howard Safir, in His Official Capacity as the Police Commissioner of the City of New York, and the City of New York

CALABRESI, Circuit Judge: Safir, Howard Defendants in his official capacity as the Police Commissioner of the York, City of New City and the of New (collectively City”) “the appeal from grant preliminary injunction by the United States District Court for the (Harold Southern District of New York Baer, Jr., Judge). The pro- district court hibited the from interfering with a proposed photo shoot of 75 to 100 nude models arranged formation, an abstract to be by plaintiff conducted Spencer Tun- Sunday, 18, 1999, ick on July between 5:30 a.m. and 6:30 a.m. in a residential Manhat- neighborhood. tan The contends that fall must because New York prohibits state law public nudity, see N.Y. § 1989), Pen. Law 245.01 (McKinney and promotion thereof, 245.02, § see id. exemption1 because the contained within the Penal Law does not apply to plaintiffs proposed photo shoot. July On a three-judge panel of stayed this court preliminary injunc- tion and calendared appeal expe- for dited review. On consideration of the briefs, record, appendix, argu- and oral ment, we have concluded that we should certify the following questions to the New (Dan- York, Ronald L. Kuby, New N.Y. (1) Appeals: York Court of whether a Perez, iel M. Law Offices of Ronald L. photographic involving shoot Kuby, Arthur Eisenberg, Siegel, Norman arranged nude models in an abstract for- Dunn, Christopher New York Civil Liber- on a public mation street constitutes enter- Foundation, ties brief), Union on the for performance tainment or in “play, exhibi- Plaintiff-Appellees. tion, show or entertainment” within the Stephen McGrath, Chief, J. Deputy Ap- meaning of exemption to N.Y. Pen. Division, peals Corporation (2) 245.02; § § Counsel of the Law 245.01 and if the an- § Since both exempt 245.01 and 245.02 exemptions refer pro- to the identical in these "any person entertaining performing or in a singular. visions in the exhibition, play, entertainment," show or we described minutes. The conditions whether yes, is question first to the swer identical, ex- applications § 245.01 were two N.Y. Pen. Law exemption activities; first, In the the mod- regard. limited to indoor in one cept § 245.02 nude; second, to the first answer clothed. if the els would first no, if answers the nude permission denied whether yes, are both questions second permit the for the granted shoot but photo 245.02, § so § 245.01 and Pen. Law N.Y. shoot. clothed under Constitu- valid interpreted, are 13, July complaint this on Plaintiff filed York. New the State of tion of he had been arrested Alleging that 1999. photo arranging for nude shoots BACKGROUND him had from City prevented that the past, in- is an artist Tunick Spencer Plaintiff 6, June nude models on photographing photo- for his ternationally recognized 1999, City likely was to inter- and that the His space. public bodies graphs of nude July on photo shoot planned fere with the im- long and includes a vitae curriculum nude, 18, he if the models were exhibitions. group of solo and list pressive rights his defendants violated claimed that photo nude numerous He has orchestrated alia, under, the First Amendment. inter from without a in Manhattan shoots expression artistic asserted his He that actions, he of these a result City.2 As empha- constitutionally protected and was on five occasions. been arrested has that, state law although New York sized ulti- were of those cases Charges all nudity, proposed criminalizes per- Tunick obtained mately dismissed. statutory ex- shoot under the photo fell photo shoot City for a recent mit from exhibition, show or play, models, emption on for “a place to take involving clothed 245.01, §§ and N.Y. Pen. Law 6, present, were entertainment.” 1999. Police June and sought preliminary disrobed anyone Tunick clear who 245.02. they made July remained injunctive The models relief. permanent be arrested. On clothed, proceeded. prelimi- shoot photo and the court granted the district City from nary prohibiting the City applied Tunick July In shoot on photo the nude interfering with shoot to conduct a permits for two 18, 1999, as described Sunday, July Street, and between Catherine on Madison found The court below permit application. Streets, a.m. 5:30 a.m. to 6:30 from Market a substantial established plaintiff had neighbor- July 1999. The Sunday, on of his on the merits likelihood success residential. predominantly hood is photography nude claim both because 100 nude that 75 to applications indicated expres- constitutionally protected artistic an abstract arranged in were models exemp- it fell under sion because the duration formation and § § 245.02.3 245.01 than five tion be no more actual shoot would that effect Charter, opinion an file City and that he will 2. Under New disagree. respectfully We a later time. permits for the authority to issue has the presented when issues case is moot taking "[A] pictures, "taking of motion legal- parties lack a longer or the no are 'live’ operation of for the use or photographs and Pow- in the outcome.” ly cognizable interest any transmit- other television cameras and/or 486, 496, McCormack, ell v. city equipment in or about ting television (1969). certainly It street, park, any property, in or about or injunction, as preliminary dock, street, wharf, the case bridge or pier, marginal court, prohibited by the district issued any city jurisdiction de- tunnel within interfering artistic with from involving the use of agency or partment or 18, 1999, some now July a date endeavors facilities or maintained any city owned however, Plaintiff, maintains past. 1301(l)(r), months equipment.” N.Y. Charter taking proposed ongoing interest July is therefore clear photograph. It that he has Judge indicated Van Graafeiland preliminary specified 1999 was appeal moot is now that this takes view words, DISCUSSION success standard.” Id. other Tunick must establish a clear or substan- I. tial likelihood of success on the merits. grant We review district court’s Assocs., Doherty See Tom Inc. v. Saban preliminary injunction for of discre- abuse Entertainment, Inc., (2d 60 F.3d Cohen, tion. See Ticor Title Ins. Co. Cir.1995). (2d Cir.1999). Because Because violations of First Amendment rights, this case involves First Amendment rights presumed irreparable, are see Elrod an independent Court must make ex- Burns, whole, amination of the record as a (1976), very “the nature of cannot defer to findings the factual [plaintiffs] allegations” satisfies the re court Bose Corp. below. See v. Consumers quirement irreparable that he show injury. States, Inc., 485, Union United Bery, 97 only F.3d at 694. The in issue (1984). 499, 1949, case, therefore, is whether Tunick has injunc In order to obtain a preliminary established a clear or substantial likelihood tion, a party irreparable must establish of success on the merits. (a) harm and either a likelihood of success (b) on the merits or a sufficiently serious II. merits, question going to the with a bal hardships tipping ance of Although favor of the initially this case arose out of party requesting preliminary injunc plaintiffs application for a photography tion. Otokoyama See Co. v. Wine permit Ja from the City, it now entirely turns Inc., (2d pan Import, 175 F.3d prohibition on the against public nudity Cir.1999). case, however, In this plaintiff law, contained New York state and not mandatory injunction, is, seeks a he on City’s licensing regime.4 The in- “stay governmental asks to junction action taken in by issued pro- district court public pursuant interest statutory City to a hibited the from interfering with the regulatory scheme.” Bery City shoot; proposed photo require did not York, (2d Cir.1996) New 97 F.3d City permit. to issue Tunick a Per- Labs, (quoting this, Plaza Health haps Inc. v. Pe City because of makes no (2d (in rales, Cir.1989)) 878 F.2d defense of its permitting scheme. More omitted), quotation ternal marks cert. de importantly, City repeatedly has nied, expressly any abandoned argument based (1997). He possible right time, therefore must on its impose place, satisfy rigorous “the more likelihood-of- or manner on restrictions the shoot. injunction Rather, any uniqueness due to stay that date. lant had pending expedit- failed to seek a appeal). described a discrete ed period single of time day on a that Tunick so stage large would not be free to scale shoots City 4. The New York Charter authorizes the of nude models whenever he chose. Given City permits to issue photography for con- City continues to assert that it will public spaces. ducted City See N.Y. Char- arrest public Tunick if his models 1301(l)(r). disrobe in § City’s ter And the Administra- and that Tunick continues to seek to take the tive Code any person makes it unlawful for photograph, nude parties we find that the photographs public spaces take without legally cognizable maintain a interest in the permit. such a See N.Y. Admin. Code Moreover, outcome of this case. a three- validity City’s 22-205. Because the panel

judge issue, stay July of this court issued a permitting system is not at we do not stay preliminary injunc- implications This address the of an ordinance that by controversy tion itself saves the may from moot- myriad make unlawful the actions of the Manch, ness. Arthur v. photographers, 380- professional, casual or who Cf. (2d Cir.1993) (appeal pictures of a time-sensitive City every day, take in New York them, doubt, judgment district court many was moot where the no without official au- already passed relevant date had appel- thorization. it, to applied to the defendant before in this court position limited City’s cannot under the York con- been that it unconstitutional New has instead (i.e., it must proceed shoot to id. at 284. photo stitution. See Tun- by arresting the shoot interfere with Tunick, arguing photo instead that his models) the state law because ick and exempt, cites mu- shoot is indeed another nudity of nudity bars prohibiting public decision, Gilmore, nicipal People court Specifical- proposed plaintiff. the sort (1983). 120 Misc.2d 468 N.Y.S.2d 965 exemption City maintains that ly, the Gilmore, a bar owner who had been only nudity applies to the ban on walk prosecuted allowing women to or exhibitions “performances through naked establishment raised an his indoors before audiences.” place [take] §to 245.02. id. challenge overbreadth Because, Brief at 14. Appellant’s 965. The 468 N.Y.S.2d contends, shoot is not a Mount reasoned that the statute Vernon kind con- or exhibition of the performance stated, passing, was not overbroad and exemption and templated by the statute’s engaged photograph- “persons in- it is not scheduled to occur because ing of ... are not threatened nude women doors, activity squarely falls 245.02 of the Penal Law.” Id. section proscription.5 within the statute’s are Unfortunately, there no decisions of however, no decision City, has cited the of Appeals New York Court or even interpretation its narrow support of Appellate interpret of the Division that statutory exemption, and this court has the fact, exemption. high- the In New York’s case, court, only by municipal found one have the appears est court construed interpreted the stat- appears to have statute, predecessor, only or its three by City. the suggested ute in the manner instant dispositive of the occasions—none Wilhelm, 52S, In v. 69 Misc.2d People People N.Y.2d case. See v. Santorelli (1972), the Court N.Y.S.2d 601, 600 N.E.2d 587 N.Y.S.2d the analyzed an earlier version of Buffalo (1992) (construing pro- the statute not to statute, containing exemption the same as from exposing hibit women their breasts version, and found the the current Hollman, park); People in a public nude fe- photographing of a “attempted N.Y.2d 507 N.Y.S.2d 500 N.E.2d exempt “[n]o male” not where there (1986) constitu- (finding the statute posing photographing ... that the or claim nude sunbather who applied tional as to a or itself was intended to be an exhibition claim); People raised a First Amendment no audience “invit- showing” and there was Price, N.Y.2d 351 N.Y.S.2d photographing.” ed view the Id. (1973) curiam) (find- (per 307 N.E.2d 46 case, contrast, by plaintiff 280-81. statute, was “aimed at dis- ing the which poses claim that struck “[t]he does indeed and their couraging ‘topless’ waitresses scenes, arranged the and the models applicable not to be promoters,” Tunick, and exhi- performances Mr. are accidental, “noncommercial, perhaps right.” Appellee’s their bitions in own lewd, alleged in certainly exposure” plaintiffs Brief at And counsel oral it). the case before willingness argument stated therefore, are, with a situation faced We photo the shoot if invite the view a state proper reading which Signifi- make the lawful. shoot and, Wilhelm, prop- once that law has been reading statute cantly, the court after validity under erly interpreted, its narrowly, held the exemption such has enacted no York tions. New York 5. Sections 245.01 and 245.02 of the New governments legislation, only limita- Penal Law authorize local and so the additional anti-nudity ordinances enact more restrictive applicable public nudity to this case tions on. thereby juris- within their own eliminate in state law. are those contained exemption plays dictions and exhibí- are that are cru- 520 state constitution issues

cial and determinative of the en- perhaps (1997), urged the federal courts of us, but in which we tire case before have appeals to use certification in order to significant help no from state courts.6 If avoid deciding questions un Appeals the New York holds that Court necessarily prematurely. In Arizo bar New York statute does not Tun- nans, plaintiff, employee fluent shoot, ick’s that decision would re- in English Spanish, challenged The same would if solve this case. be so amendment to the Arizona Constitution Appeals holds that the statute declaring English to be the official state that, applies, interpreted, but so it violates language. See id. at 117 S.Ct. 1055. If, however, the New York constitution. Before the trial occurred the district highest New York’s court rules that court, Attorney the Arizona General issued shoot, prohibit statute does and that it opinion a formal interpreting the amend may do so under New ment. id. at 117 S.Ct. 1055. Al principles, the issue federal constitu- validity though tional statute would be amendment mandated “of this, squarely presented. repeat, All we ficial government” acts of be performed in so because unequivocally con- English, Attorney General took the ceded at oral argument Tuniek would position employees that state could never (1) if entitled either theless use languages other “to facilitate exempts the statute proposed photo delivery governmental services.” shoot or the statute does ban the photo (quoting Id. Ariz. Attorney Op. General is, result, shoot but aas unconstitutional. 189-009) (internal No. quotation marks Accordingly, argument, at oral we asked omitted). rejected The district court parties counsel for both whether this case Attorney limiting General’s construction as was suitable for certification to the New “advisory” “simply at odds with [the York Court of Appeals. letter briefs plain language.” Yniguez amendment’s] v. court, submitted to this argued the (D.Ariz. 309, Mofford, F.Supp. 730 315 appropriate. certification would be 1990). It also declined the defendants’ Tuniek, however, maintained that the ab- invitation to abstain under the Pullman any “genuine sence of doubt” over the doctrine. at (citing See id. Railroad scope of exemption compels the state law Co., Comm’n v. Pullman 312 U.S. decision this court on the state law (1941)). S.Ct. 85 L.Ed. 971 question. Appellee’s Letter Brief at 2. For require reasons that considerable am- The district court then found the amend- plification, we conclude that certification is overbroad, ment in violation of the First warranted. Amendment. See id. While the case was

III.7 pending on appeal, plaintiff resigned position from her in' years employment. Three state ago, Supreme Court in Arizona, Arizonans, Arizonans English See 520 U.S. at 117"S.Ct. for Official above, 6. As noted there is no photography). Similarly, decision of the nude is no there whether, Appeals point. New York Court of Appeals There indication from the Court of only language opinions prohibit of two munic- if statute does in fact ipal question shoot, proposed courts on the of whether nude it is valid under the statute, photography is banned New York constitution. express divergent these courts views. Com- Wilhelm, pare (inter- 330 N.Y.S.2d at 280-82 analysis through 7. The in Sections III V of preting prohibit photogra- statute to nude opinion necessarily represent does not phy, finding but applied panel, the views of the other members of this unconstitutional), photography, (albeit nude reasons) pro- with since for different their Gilmore, 120 Misc.2d at posed dispositions 468 N.Y.S.2d of the case obviate (noting prohibit the statute did not the need to reach the issues here discussed. procedure, nevertheless, Certification Circuit, [¶] re sues.... The Ninth 1055. contrast, a federal court faced was allows the case suggestion jected Arizona, 975 question put a novel moot, State with state-law Yniguez v. see (9th Cir.1992), directly high- and affirmed to the State’s question F.2d that the court, reducing delay, cutting court of the district est finding unconstitutional, see Yni cost, increasing was assurance amendment English, response. v. Arizonans an authoritative guez gaining for Official (9th Cir.1994). F.3d 75-76,117 Supreme at S.Ct. 1055. The Id. certiorari, Supreme petition On that certification was emphasized Court moot, in view of the case found the in Arizonans be particularly appropriate em private from shift plaintiffs the courts cause it would have enabled “ Arizonans, at ployment. princi to adhere to the ‘cardinal below ” however, not, stop 1055. It did 117 S.Ct. courts, when confront ple’ that “[federal Instead, it to vacate proceeded there. constitutionality of a ing challenge re below, n ... ‘will first ascertain is not a result judgment federal statute this, It did course.8 as a matter of quired fairly possi ... whether a construction said, “federalism concern” because the statute within ble’ that will contain dis of the federal by the decisions raised 78, 117 Id. at bounds.” S.Ct. appeals of the court trict court and TVA, (quoting Ashwander themselves. Id. the Arizona law interpret L.Ed. 688 had Those courts (second (Brandéis, J., ellipsis concurring)) primarily because out certification “ruled Arizonans). amendment] state they [the believed that, in clear quite Arizonans made limiting construc fairly subject to a Court, the device of eyes 1055. But tion.” Id. the benefits of provides all certification and its novelty “[g]iven the (deference in a federal abstention Pullman conduct of Ari importance to the potential questions of system to state courts on business, of the At the views plus zona’s statutory interpretations law and amend torney [the and those of General difficulties), while that avoid constitutional requests the certification sponsors, ment’s] (delay and its drawbacks reducing greatly than respectful more consideration merited cost). 76-78, 117 1055. at S.Ct. See id. below.” proceedings in the they received therefore, Arizonans, teaching of The 78, Accordingly, 117 S.Ct. 1055. Id. certifying in more consider that we should “equitable solution” found that the previously been than had instances finding the expunge judgment was to and do so even when thought appropriate, unconstitutional. English-only amendment might think the federal courts 75, 117 1055. Id. at S.Ct. “plain.” See id. meaning of a state law “Certification,” Court stat- Supreme 76, 117 S.Ct. ed, by a territory once dominated covers IV. called “Pullman absten- deferral device time, does not Arizonans At the same Designed to avoid federal- tion” .... certify that we must cannot mean ques- deciding state-law court error (a) a federal raises plaintiff whenever constitutional antecedent to federal tions law in fed- challenge to state issues, remit- constitutional the Pullman mechanism (b) court has court, highest the state’s adjudi- courts for eral to the state parties ted (c) statute, interpreted the is- not state-law cation of the unsettled Partnership, 513 Mall Mortgage Co. v. Bonner required eveiy case that 8. Vacatur is not 386, 23-24, 18, L.Ed.2d S.Ct. 130 U.S. 115 appeal, turns on moot on but instead becomes (1994). Bancorp 233 case. See U.S. the facts of each 74 question conceivably could A.

constitutional saving interpretation. by be avoided some answering question, this we look first Arizonans, Thus, shortly after guidance. Pullman doctrine for cases, Court did right-to-die because, although This is so Pullman ab- remand the decisions two not vacate and problems stention involves certifica- involving the appeals, different courts reduce, may tion avoid or it still remains (one very statutes old meaning of two state purpose proxi- the doctrine whose is most new) very that had never and the other mate to that of certification in cases con- courts, been the state interpreted cerning validity the federal constitutional instead reached the merits the constitu- of state laws. two laws. questions tional raised Intended to the harmonious “further[] Glucksberg, 521 Washington v. U.S.

See courts, relation between state and federal” 702, 2258, L.Ed.2d 772 138 Pullman encourages doctrine federal (1997); Quill, 793, 521 117 Vacco U.S. questions court on abstention unsettled (1997). It S.Ct. did state law that are antecedent to federal despite parties the concession of the Pullman, questions. that, interpretations, under certain By U.S. at abstaining, S.Ct. 643. statutes would avoid constitutional chal- can unnecessary federal courts avoid both Quill Vacco, lenge. Compare potentially decisions and er- Cir.1996) (“The (2d physicians roneous determinations of state law. See contend that each statute is invalid to the 498-99, id. at 61 S.Ct. 643. Abstention is prohibits acceding however, extent that it them from appropriate, where the mean- requests terminally-ill, mentally ing of a state statute is clear on its face. Housing Hawaii Auth. v. competent patients help hastening Midkiff, added)), rev’d, Quill, U.S. 81 L.Ed.2d (emphasis death.” (1984). S.Ct. (Calabresi, with id. at Significantly, Pullman has not been al- /., concurring) (noting that the New York develop lowed to if logical to its end: clarified, Appeals Court of had never and premise simply of the doctrine were history cast legislative some doubt the federal courts should abstain whenever upon, question of whether the New a federal constitutional could be decision suicide, York ban assisted first enacted by interpretation avoided of an unclear apply was “ever meant to a theory, any case that pre- treating physician”). there- sented unclear state statute should be a Arizonans, Glucksberg, fore arises—after candidate for abstention. It would then Quill, appropriate when is certification follow that Pullman abstention would litigation in federal involving greet vagueness challenges almost all to a state statutes?9 state law. 17A Wright, See Charles A. case). ques- Uncertainty 9. The issue ais different one from the in law state is central to appropriate tion of when certification is in both situations. See id. and Part IV.E. infra situations, diversity Corp., play diversity v. cases. Liviano Hobart But what is in in see 124, (2d Cir.1998) /., ("Certifica- (Calabresi, dissenting) 132 F.3d (noting id. at 157 particularly appropriate diversity tion is when the that certification in cases serves to highest shopping state's court has cast doubt on avoid the evil "of forum that Ene 64, 73-77, scope validity Tompkins, or continued of one of its earli- R.R. Co. v. 817, (1938), holdings, er or when there some law in is S.Ct. 82 L.Ed. 1188 was intended courts, prevent"), quite intermediate state but no definitive is different from what is tribunal."); holding by highest validity state's involved when the of a state statute McCarthy Corp., v. Olin 153-54 under the federal constitution is at stake. Ac- (2d Cir.1997) (finding guidance sufficiency cordingly, considerations relevant to certifica- necessarily state caselaw to be determinative of wheth- tion in one context do not control certify diversity er a federal court should in the other. Cooper, Edward H. B. R. Miller & Arthur Procedure Practice and Federal goals Given the shared of Pullman ab- (2d 1988) (“The argument has ed. certification, stention and of the device of challenge vagueness] made that [a been counseling the factors the former are also abstention, if the since necessarily requires suggestive of when the latter is desirable. to the merits and go court were federal result, Arizonans, Quill, aAs and Glucks- vague this in down the statute as strike berg way significance no lessen the stat- meaning would show the itself do, They however, these Pullman factors. that a state court ute is uncertain and them, put gloss a pointing while also permitted give it a limit- should first be other factors that are relevant to the ques- construction.”). ing tion of certification. Court, instead, definitive- Supreme The rejected possibility Baggett ly Thus, Supreme Court Arizonans Bullitt, 84 S.Ct. emphasized relationship of certification (1964), in which it found a L.Ed.2d 377 statutory to the canon of un- construction requiring public em- Washington statute der which statutes are to read to avoid loyalty to be uncon- ployees to take oaths Arizonans, constitutional difficulties. See stitutionally vague. Declining the defen- S.Ct. 1055. When abstain, dants’ invitation to the Court issue, pointed state statute is at the Court that Pullman “is not an automatic noted out, comfortably those difficulties are not applied rule whenever a federal court is avoided court interpretation. federal with a doubtful of state law.” faced issue task, instead, properly The belongs to a Rather, 1316. Id. at court, state which must which decide can- is to determination of whether abstain apply. ons of construction can and should case-by-case Id. “be made on basis.” 78-79, id. at 117 S.Ct. 1055.10 The Cf. court, Supreme the state Deferral to certify, federal court should and not inter- emphasized, appropriate those Court pret, friction-generating because it “risks circumstances where state statute error when it endeavors to construe a nov- of an susceptible interpretation Act yet el state reviewed the State’s “would eliminate the constitutional issue highest court.” Id. at 117 S.Ct. 1055. litigation.” and terminate the Id. at object, unnecessary, The avoidance Conversely, 1316. the federal premature, and hence constitutional deci- proceed court should to the merits of the sions, remains the same whether a state or where statute generally federal is involved. See statute resists confinement within constitutional Bickel, Danger- Alexander M. The Least bounds, except adjudi- through “extensive at the ous Branch: cations, variety impact under the (1962). But, Bar Politics because factual situations.” Id. at play, only state law is at the state court short, of a opacity state statute ultimately saving can whether a determine notwithstanding, only appro- abstention is appropriate interpretation is under adjudication by a priate “single where a interpretation particular canons of state court could eliminate the constitu- upon statutes it is called whose Martinez, difficulty.” Procunier tional construe. 396, 5, 1800, 401 n. 40 416 U.S. 94 S.Ct. (1974), teaching Supreme This Court 224 overruled on other Abbott, may and result in some state fundamental grounds, Thornburgh v. 1874, power more and others less having 104 L.Ed.2d 459 courts 109 S.Ct. (1989). interpret state than do federal courts fact, noted, interpreted Supreme Ari- which statutes are to be to avoid 10. In as the Court adopted See id. zona has the federal under constitutional difficulties. canon 76 reasonably possible” if them constitutional difficulties. to avoid

statutes added)). power, (emphasis in their supreme they are Because law, meaning of to decide the under state which the question This of the extent to statutes, courts are neither state state go interpreting court can when its state follow, by, federal nor limited bound paradigmatically one of own laws is state including those interpretation, canons law, courts are it is one that federal is- avoiding speak Compare to answer. singularly unsuited court, under that a state sues. It follows Alabama, Inc. Blue & Blue Shield Cross a canons, unwilling to do to may be state (11th Nielsen, 1406, 1413 v. Cir. courts are ex- what federal state statute (“The 1997) law is the final arbiter of state see, one, e.g., to a federal pected to do court, way another supreme state which is Yamasaki, 692- v. Califano law is what the saying that Alabama (1979) (in L.Ed.2d 176 At says it is.... Supreme Alabama Court under the feder- involving payments a suit threshold, the answer to [the Act, Security Supreme Court al Social depends upon this reconcilia court] before “presented with that federal courts noted trajectories of a competing tion of the grounds statutory and constitutional both statutory of canons of construc number usually requested support the relief overlapping tion. nature of the Given the statutory claim before pass on the should contradictory canons of somewhat question” considering the constitutional statutory arguably applicable construction “unnecessary constitutional order to avoid case, competing this and the interests adjudication”). possible But it is also stake, the task is less like policies to re- law would allow state courts state a scientific formula and more like applying degree to a that would write state statutes ... are not at all painting picture. We dealing for federal courts impermissible be would resemble the painting confident our e.g., Compare, with laws. Reno federal one that Alabama Union, Liberties American Civil produced.”), Hope with Clinic have 844, 884, L.Ed.2d 874 (7th Cir.1999) Ryan, 195 F.3d 865-69 (1997) in a First Amend- (emphasizing, /.) (en banc) (Easterbrook, (applying fed challenge ment to the federal Communica- statutory models of construction eral Act, courts Decency tions federal of two state order to limit the enforcement “may impose limiting construction on banning partial-birth abortions statutes ‘readily only statute it is sus- [federal] if meaning,” core of such their “central ceptible’ (emphasis to such a construction” prohibit could be enforced to the statutes added)), Indep. with National Ass’n of only procedure known as dila the abortion State, 950, 952, Insurers v. 89 N.Y.2d extraction, the stat though tion and even (1997) 853, 678 N.E.2d N.Y.S.2d proce utes themselves did not refer to (“A constitutionality at- presumption of dure), filed, 68 USLW petitions cert. law], [New taches to New York [a (Jan. (Jan. 10, 2000), USLW 3480 required ‘to avoid inter- are] courts 2000). reason, too, certifica For that way preting that would render [it] particu appropriate tion—if otherwise —is unconstitutional if such a construction can ” larly germane. Am. (quoting be avoided.’ Alliance of time, does not At the same Arizonans Chu, Insurers v. 77 N.Y.2d certify court must (1991)) (em mean that a federal 364, 571 N.E.2d 672 N.Y.S.2d (1) grave it has doubts about whenever added)); phasis A Woman’s Choice-East yet been authori- Newman, statute that has not Side Women’s Clinic v. (Ind.1996) J., highest the state’s (Dickson, tatively interpreted N.E.2d could con- tribunal and those doubts concurring) (noting that Indiana courts interpretation ceivably “overriding obligation have an to construe avoided placed limits on way in to render from a state court. The [their] statutes such

77 litigation vored—when the involves distinct and Procunier remain by Baggett Pullman concerns, federalism such possible the Court’s deci- as the crucially relevant. And Arizonans, sion, incursion of federal courts into matters at on the merits of the after sovereignty. the heart of state right-to-die in the Printz issues Cf. States, 898, 918-919, 521 cases, 521 U.S. at 117 United U.S. Glucksberg, see (1997) 2258; Quill, at S.Ct. U.S. S.Ct. (holding requirement in some cir- unconstitutional must mean that S.Ct. Bill Brady a state statute that local law enforce cumstances —even when questions background that ment officers conduct checks serious constitutional raises prospective of by interpre- gun purchasers, court because the could be avoided state government may Pullman factors federal not commandeer tation and even when the apparati of govern state and local against not counsel certification —certi- do ments); States, New York v. United may fication not be warranted.

U.S. 120 L.Ed.2d S.Ct. C. (holding that a federal enact ment “infring[es] upon the core of approach The difference in between Ari- sovereignty by state reserved Tenth right-to-die and the decisions zonans ... Amendment is inconsistent with the turn on the concern that ani- seems to federal of our structure Government estab certification and Pullman ab- mates both Constitution”). lished an un Such The begin stention with—federalism. acceptable quintessentially intrusion into Supreme Court found certification advisa- clearly state matters is what Supreme in part in Arizonans because of “its ble Court of believed be the effect Ari- importance to the conduct of potential holding Ninth Circuit’s Arizonans. Arizonans, business.” zona’s Quill, contrast, Glucksberg 1055. At issue that case did S.Ct. very was the manner in which Arizona was on gov- not center core functions of state carry They surely out the basic functions of state ernments. dealt with funda- governance: challenged provision questions, mental but these were issues English the state constitution declared ca- whose resolution would not affect the to, language applied pacity carry inter official of the relevant states alia, government “all employ- sovereigns officials and their functions as in other mat- during performance government ees ters. Whether the distinction between Const, XXVIII, Ariz. art. aiding business.” in the commission of sui- person l(3)(a)(iv). parties’ dispute helping person over the cide and to withdraw proper interpretation of the amendment medical treatment is a con- life-sustaining is, doubt, question “the stitutionally turned on whether sound one without delivery government importance. services” was to of enormous Yet question Arizonans, only English. deny capacity occur that the ultimate is hard to Ariz. (quoting govern of the relevant states to their S.Ct. 189-009) (inter- Attorney Op. by the proper spheres General No. was less affected omitted). quotation by holdings nal marks than outcome these cases like the Ninth Circuit’s Arizonans. is, course, potential There for “fric- result, history of the though As a tion-generating error” between the federal systems danger against suicide and assisted suicide and state court laws —the that clarification from which certification is to New York indicate against intended could have Appeals in which the New York Court of protect every case a “federal —in question, neither court is asked to invalidate a State’s law.” mooted 79,117 nor the potential Id. at 1055. But the the Second Circuit court on the uniquely heightened thought friction is deferral the state —and statutory interpretation particularly certification is therefore fa- 78 See, e.g., Harman Instead, by abstention. pro courts entailed both

appropriate. 537, Forssenius, 528, 380 U.S. interpret the statute diligently ceeded (1965) (finding that the constitutional to confront squarely not abuse its discre- the federalism court did follows the district It question.: Arizonans, in a declining in in to abstain federal present tion concern Virginia’s justified challenging certification suit part voting rights in and that gener “[gjiven there, more than state’s on the franchise had to be limitations immediacy problem, of its laws—an importance ic in enforcement interest Glucksberg referring ques- in in clearly delay also at stake inherent interest and the tribunals”); deferral, Quill. the federal Bad justify To tions of state law state in it did Frog Brewery, to affect—as Inc. v. New State concern had ism (2d Cir.1998) Auth, very manner which Liquor Arizonans —the 134 F.3d government. raising in a suit operate (declining to abstain state chose York’s challenge to New First Amendment cases like Arizo- border between The advertising and liquor label- regulation nans, func- governmental core which entail “[ajbstention would ing part because Quill, tions, Glucksberg and like and cases delay plaintiff] while [the risk substantial the state’s interest primarily involve which law issues the state litigated its state values, laws and both upholding its courts”). all, delayed, after are Rights claimed individual constitutional the face of destroyed. And it is therefore rights often contrary, by no means rights to the abstention surprising not Pullman cases, number of no large clear. And a only very sparingly. used has been doubt, DMZ in place find their Midkiff, 467 104 S.Ct. 2321 U.S. only that means But between. (“[Ajbstention Pullman from the [under ] of whether to defer to the determination ex- jurisdiction federal is the exercise of case-by- must “be made on a state court (quoting rule.” Colorado ception, not the Baggett, 377 case basis.”11 Dist. v. United River Water Conservation S.Ct. 1316. States, S.Ct. (1976)) (internal quotation L.Ed.2d 483 D. omitted)); Public Serv. Co. marks inqui- of this individualized the course (1st (de- Cir.1998) Patch, 15, 24 ry priority to avoidance gives —which timing pro- clining to abstain where unnecessary decisions and to constitutional court was uncertain and ceedings in state sovereignty federal respect —the to its faced an immediate threat plaintiff cannot, however, sight of the courts lose rights); Frog Brewery, Bad asserted are, rights possible fact that (declining to in order to F.3d at 94 abstain Accordingly, defer- by hypothesis, at risk. First Amendment safeguard asserted only appropriate ral to the state court is rights). sufficiently right where the claimed can be Likewise, pro- is the of state when safeguarded during pendency certification impor- remedy, timing remains proceedings. posed It is for this reason that effect, Co. v. North- factor. See LTV Steel Pullman cases look to the on the tant Inc., Constr., asserted, F.3d delay Eng’g west & right Comm’n, Elections 11. Whether this distinction' —between a state’s enforcing (holding uncon- interest in its laws and values 131 L.Ed.2d integri- protecting sovereign its interest in its banning distribution Ohio state law stitutional ultimately ty should bear consti- literature), one anonymous campaign with —is significance not to decide. tutional for us (hold- Printz, S.Ct. 2365 U.S. at made clear that our Court has portion of a federal law ing unconstitutional system sovereigns federalist of dual counte- governments in its ad- requiring to aid local former but nances federal incursions on the ministration). McIntyre Compare v. Ohio the latter. (7th Cir.1994) (declining certify to of certification will in every case suffice to diversity where the federal court case insulate the right asserted from the harm guidance in found “sufficient the decisions delay. But it does underscore the sali- Appeals of the Indiana Court to decide ence of timing question of whether subjecting parties case without the to this certify. to delay and expense the additional inherent however, Timing, not only the consid- in certifying to the Indiana cannot, eration. The issue underlying af- Court”); Florida ex rel. Shevin all, itself, ter timing whether, be but (5th Corp., v. Exxon while the statute, state court parsing the Cir.1976) (declining certify the question right the asserted can be adequately safe- Attorney of whether the Florida General guarded without unduly harming the inter- bring authorized under law to an state sought ests to be by furthered the state against antitrust action defendant oil com- result, law. As a in addition to looking to panies part “practical based in on the limi- length the delay, the courts should also process tations of the [such certification whether, certification, consider pending significant delay”). as] they protect can right, the perhaps claimed time, At danger delay the same through stay, thereby griev- without too inherent certification is to some extent ously undermining the state concerns at by efficiency procedure— offset See, stake. e.g., American Booksellers delay and the created certification is Ass’n, (stay- S.Ct. 636 great almost never as imposed by as that ing the enforcement of challenged Arizonans, abstention. See 520 U.S. at state statute during certification to (“Certification 117 S.Ct. 1055 proce- highest state’s interpret tribunal to its dure, in contrast [to Pullman abstention] statute, own and in way possibly save cost, ... delay, reduc[es] the eut[s] it from infirmity). By issu- gaining increas[es] assurance of ing a stay, sometimes, a court can so to response.”); Virginia an authoritative speak, it, have its comity cake and eat too. Ass’n,

American Booksellers 484 U.S. (1988) 108 S.Ct. Often, however, protective no such pro- (“Certification, in contrast to the more If, cedural device example, exists. for (in context) proble- cumbersome this plaintiff successfully obtains a preliminary doctrine, matic abstention is method injunction in federal court permitting her may expeditiously which we obtain au- [an parade to hold a that the local government construction.”); thoritative] Bellotti v. statute, contends violates a state the feder- Baird, 132, 151, appellate al likely court be to stay would (1976) (“The importance L.Ed.2d pending appeal. If ap- in resolution of speed litigation the instant pellate court certify, then decided there is manifest. Each day the statute is in way protect be no the asserted effect, events, irretrievable with substan- rights during For, were the certification. personal consequences, tial Al- occur. appellate stay court to lift so that the though we do to intimate that mean plaintiff could parade, hold her the issue abstention would be improper this case certified to the state court would forthwith were certification not possible, the avail- case, be moot. such a rendered ability of certification greatly simplifies presented choice federal court would analysis.”); Lehman Brothers stark, regrettably certification, since Schein, causes, delay rather the would necessari- (noting that certifica- ly pose right. a risk to the claimed time, long “in run tion energy, save[s] hand, and resources and coopera- many build a On the other there are helps situ- federalism”). judicial course, tive Of entirely ations which certification is not mean that does relative efficiency compatible with the protection of asserted injunctions, precautionary “enter When, example, courts to rights. ... implementing the conclusion enjoin limited to permanently seeks plaintiff may applied not be laws unconsti- that the state allegedly enforcement until after the D&E or induction court can normal a federal tutional state provided specificity, additional has stay during the right-protecting issue a amendment, regulations, by statutory ren- without of the certification pendency Id. at 869. The judicial interpretation.” very This moot. the certified issue dering in- precautionary purpose in feasible a stated have been approach might ju- ] the state junctions “preserve[ was to divided the deeply recent case has plaintiffs’ Clinic, protecting role while diciary’s Hope Circuit. See Seventh (and in interests legitimate constitutionality patients’) their (upholding at F.3d interim.” Id. at 870. banning partial-birth statutes of state prohib- abortion, the statutes to the extent But, Judge Posner noted as Chief as procedure known only the abortion ited dissent, effectively injunctions ensured extraction). and dilation and Wis- courts of Illinois that the state Easterbrook, opportunity have an Clinic, consin would “never Hope Judge these court, bounds of stat- explore the outer majority of the en banc writing for terms, because, very by their to a utes” vagueness challenge awith grappled of the stat- statute, injunctions limited enforcement and an Illinois state Wisconsin Id. at 877 prohibition.” to their “core “partial-birth utes prohibited which each of C.J., (Posner, dissenting). Under these statutory at defi- abortion.” Id. circumstances, majori- were, given that both nitions, however, and Judge as Easter- statutes, as that the stated, ty agreed and dissent “an match for imperfect brook unconstitutional, written, Hope were see and of’ dilation extrac- medical definition Clinic, 863-64; id. at id., 195 F.3d at (“D&X”), relatively rare abor- tion C.J., (Posner, dissenting), and certification medical procedure “[b]oth tion which prudent course. might well have ‘partial-birth abor- been popular [call] literature ” (7th Foust, is, 188 F.3d tion,’ Karlin at 865. That the statutes id. Cf. Cir.1999) /., (Cudahy, concurring part prohibit more com- also be read could in a (noting dissenting part) and procedures, such as dilation mon abortion (“D&E”) provision of Wis- involving induction. a different and case and evacuation abortion partial-birth unani- consin’s reading, the court such Under Cudahy certified] “would Judge [have] would un- mously acknowledged, the laws Court the issue abortion the Wisconsin duly right burden woman’s as a of state law scienter unconstitutional. whether matter and therefore be Nonetheless, imposition for the required would be the court See id. 863-64. Act” liability under the be- civil forfeiture the state because be- upheld statutes think[,] [so] cause were construed “[i]f ... that the law “possible, lieved it we ..., issue would a serious and Wisconsin Supreme Courts Illinois avoided”). ways comport laws in could read their Id. at 865. with the Constitution.” Thus, in like the one before a context Clinic, Hope where entirely on federal the Seventh Circuit Basing its decision by a have been mooted the issue would not and canons canons construction Wisconsin, challenged stay of the enforcement than states other Illinois during hypothetical certifi- state statutes proceeded to outline the Seventh Circuit Illinois Su- the state cation to the Wisconsin methods which three different Courts, the statutes and where interpret preme the stat- potentially courts could concededly constitutionally were D&E or induction. written prohibit utes not to stay might well have been an suspect, then re- id. at 865-68. The court protecting asserted appropriate method respective cases to district manded the Hope judiciary potentially Clinic v. rights in the interim. interferes with core Cf. (7th Cir.1999) matters Ryan, sovereignty, 878-79 of state (Diane /., Wood, delay from the effect of the entailed dissenting P. certification deny rights court on the asserted equally vote of an divided issue. court

stays of the mandate of the en banc (“In certiorari) my V. pending petitions view, only responsible action this court A. take from the of its national standpoint can reach at last the of whether stay the man- responsibility role is certification is appropriate this case. [which dates enforcement above, As discussed there is no decision partial-birth abortion statutes Wisconsin from the New York Court of in- Appeals against procedure Illinois the and abortion terpreting exemption § the under 245.01 pending dilation extraction] known as and 245.02, and and decisions lower New disposition pe- Court’s of the certiorari”). arguably conflicting posi- courts take titions for tions on whether nude photography pro- This discussion intended ex- is not factor, hibited. Accordingly, the first press any view on the substance authoritative, absence of on-point state Nevertheless, Seventh Circuit’s decision. decisions, court leans strongly in favor of (1) delay by it illustrates that the created Similarly, certification. there can be no itself, may, in certification on occasion that doubt New York’s status as a home to (2) unacceptably right, harm the claimed much artistic life renders the issue this certification, despite that its inevitable significant case both likely and to recur. delay, deployed can sometimes be in a Thus, weighs second factor also fully protects manner that the asserted certification’s favor. (3) rights, and that the de- I (a) meaty turn next to the more question right termination of in- whether (b) presents whether this case serious con- adequately protected deed stitutional difficulties that could avoided be state’s interest enforcement is not un- by possible statutory interpretation. duly harmed by stay only can be de- nudity Were New York’s ban on public case-by-case cided on a basis. interpreted to pro- criminalize Tunick’s E. because, posed photo shoot—either as the City argues, statutory exemption ap- composite The lesson of all these cases plies only performances to indoor with an is that there are at least six factors that audience, shoot, photo or because the must in deciding be considered whether reason, some other falls outside the ex- (1) justified. They certification is are emption this court would be re- —then absence of authoritative state court inter- quired plaintiffs argument to address (2) statute, pretations of the state the im- the First Amendment does not “so portance of the issue to the state and the application broad an of the Penal Law” to (3) recur, question likelihood that the will expression.” Appellee’s “serious artistic presence of serious diffi- Brief at 30. by possible culties that could be avoided (4) interpretation capaci- ques- conclude the constitutional raised, ty of certification to if litigation interpreted resolve the tion the law is shoot, and either to prohibit photo render federal constitutional Tunick’s would be a unnecessary grave decisions to ensure The or one for least two reasons. they are inescapably before the federal first concerns the tortured issue of the (5) court, implications protection constitutionally federalism of a level of that is decision in par- expressive nudity. federal courts and afforded to artistic or Inc., Theatre, ticular whether a Compare decision the federal Barms v. Glen recognized photographer internationally 115 an 566-67, vision artistic who to further his opinion) seeks (plurality shoot. Ac- photo through proposed C.J., by O’Connor joined (Rehnquist, case is JJ.) cordingly, statute a state (requiring Kennedy, nudity public on the state ban to erotic whether applied nudity, banning public consti- Tunick’s infringes on impermissibly important to serve dancing, nude artistic, expres- right engage tutional interest order governmental substantial activity. constitutional), 111 sive id. at with to be J., (White, dissenting) (noting S.Ct. 2456 Barnes, Supreme Court a fractured the same statute require he would indecency stat- found Indiana’s interest). governmental compelling serve constitutionally applied to could ute irra- possible second focuses Barnes, dancing. nude prohibit erotic (a) nude between tionality of a distinction 2456. Five exhibitions, nude other shoots and law, uphold but justices voted (b) nude indoor and outdoor between Four majority. opinion commanded a no performances. fragmented justices dissented. “When single ratio- a case no matter, artistic decides aAs threshold enjoys the as- the result explaining Amend nale some First activity is entitled Justices, holding of five ‘the Hurley Irish- sent of See v. protection. ment tak- position as that may be viewed & Bisexual Court Gay, Lesbian American 557, 569, concurred Boston, Inc., en those Members who 515 U.S. Group of (the (1995) narrowest on 2338, judgments L.Ed.2d 487 132 115 S.Ct. ” States, 430 Marks v. Pollock, grounds.’ Ar United of of Jackson music “painting 990, 188, 193, 97 Jabberwocky verse of U.S. S.Ct. Schoenberg, or nold (1977) Georgia, 428 U.S. (quoting Gregg v. shield “unquestionably is Lewis Carroll” 15, 2909, 153, 49 L.Ed.2d ed”). n. 96 S.Ct. photography his 169 And fact that (1976)). not remove 859 nude bodies does involves scope. See Schad the Amendment’s from announced the Rehnquist Chief Justice Ephraim, Mount Borough v. of in Barnes an judgment of the Court 2176, 61, 66, L.Ed.2d 671 101 68 S.Ct. joined by O’Connor opinion Justices (“[N]ude dancing is not without its analyzed Kennedy. plurality opinion His from official protections First Amendment four-part statute under the Indiana may be class While there regulation.”). O'Brien, 391 U.S. test of United States hazy hypothetical explore room (1968), 367, 1673, 20 L.Ed.2d 672 88 S.Ct. unpro photography nude as line between ex limitations on applicable to incidental photography nude as tected conduct and Barnes, 501 U.S. at activity. See pressive a case. this is not such expression, artistic O’Brien, a S.Ct. 2456. Under 111 com regulation that burdens government that the City no contention makes justified sufficiently “is there- municative conduct at issue is obscene and photography Amendment, power of if the First it is within unprotected by fore Government; impor if it furthers California, 93 the see Miller interest; (1973), governmental tant or substantial or even 37 L.Ed.2d S.Ct. is unrelated to manner, if say, governmental of erotic interest lascivious and if expression; Barnes, of free suppression 501 U.S. at dancing, see alleged First (Rehnquist, restriction opinion) incidental (plurality S.Ct. 2456 than is C.J.) (erotic greater is no Amendment freedoms dancing “expressive nude of that inter essential to the furtherance perimeters of the conduct within the outer O’Brien, 88 S.Ct. 391 U.S. at Amendment, it as est.” though we view First so”). Rehnquist concluded And the does 1673. Chief Justice only marginally indecency statute “public he is Indiana’s plaintiffs contention that dispute opinions upholding the statute. interest row government a substantial furthers Hallie, morality.” Corp. See DiMa v. Town order protecting of (7th 569, 111 Barnes, Cir.1999); J & B Enter F.3d Jackson, tainment, Inc. v. 152 F.3d himself, Souter, con for writing Justice (5th Cir.1998); Miller, Farkas v. the Court. judgment curred in (8th Cir.1998); Triplett 151 F.3d J., (Souter, 581-87, id. at Grille, Akron, Inc. v. 40 F.3d plurality with the concurring). agreed He (6th Cir.1994); International Eateries controlled, rejected the but that O’Brien Am., County, Inc. v. Broward views” could “society’s moral notion that (11th Cir.1991).14 1157, 1160-61 And there interest. government a substantial serve as question no that under Souter’s 2456. He neverthe Justice Id. at rationale, justified applied law if found the Indiana New less combating shoot, “interest important constitu state’s to Tunick’s prostitution as secondary [such effects For, Justice Souter tionally suspect. activity] adult enter criminal and other noted: typi the sort

tainment establishments see, example, how is difficult to [it] Id. establishments.” by respondents’ fied statute the enforcement of Indiana’s moreover, Souter, explicitly called Justice in a of “Hair” against nudity production if permissibility, question the statute’s into in an “Equus” somewhere other than activity expressive applied it were to be 'theater, “adult” would further secondary pernicious with not associated in avoiding State’s interest harmful sec- rationale secondary effects “[T]he effects: effects, in ondary the absence of evi- open to rely here would be on which expressive nudity dence that outside the to en if to seek the State were Renton-type adult entertain- context by barring expressive force the statute second- ment was correlated with such that could productions in classes of nudity ary effects. adult films analogized to the readily not be Theatres, Playtime in Renton v. at issue Barnes, 2, n. 111 585 S.Ct. Inc., 41, 106 89 S.Ct. (Souter, J., And the concurring). 2456 (1986).”12 n. 111 Id. at 585 S.Ct. 29 suggest any City has made no effort to 2456.13 the sort secondary effects of deleterious attend circuits, by might that conclude, listed Justice Souter five as have photo nar- Tunick’s session.15 opinion was the most Souter’s Justice Renton, granted to Supreme Court certiorari upheld a 14. The 12. In Pennsylvania Su- a consider case from city's zoning targeting adult enter- ordinance city's public a inde- preme Court which held neutral as a content tainment establishments ordinance, applied nude erotic cency as to Renton, speech. 475 U.S. at regulation of See dancing, under federal unconstitutional ruled that the 106 S.Ct. 925. The Court Pap's Amendment. AM. First See interest in of Renton had substantial Erie, (1998), cert. A.2d 553 Pa. 348 719 "secondary preventing effects” the harmful - -, granted, S.Ct. 143 U.S. 119 Id. at with such businesses. associated (1999). The Court heard oral L.Ed.2d 786 S.Ct. 925. 106 10, 1999. argument in the case on November Privacy Biskupic, Is- High Court Hears Joan constituting opinion the fifth vote 13. The third sue, Post, at A18. Wash. Nov. upholding Indiana's statute in favor of eight by his Indeed, Justice Scalia. Unlike written questions serious constitutional Court, colleagues the case on the he found present Chief Justice also be under would Bames, simply undeserving any Amendment First as Rehnquist’s plurality rationale. reasoning prohibition scrutiny, emphasized, Indiana had Chief Justice Barnes, general reg- public nudity public nudity. law against prohibited was "a all See ulating specifically directed It was because conduct and not U.S. at 111 S.Ct. 2456. to offend expression.” public nakedness as such sufficed Id. at at (Scalia, wrote, I., morality, Chief Justice concurring). Indianans’ moreover, fact, City argues that the for “exhibitions” could be read to cover The single that would out interpretation arrangement of to nude for an abstract shoots, however artistic and photo and ban An draped public models across street. outdoors, au- but would whether indoor is, all, after “a ... show- exhibition performances, of nude types thorize other ing especially] ... of works of art.” Web- indoors, regardless of how erotic at least Dictionary ster’s Third New International content, gives rise lacking artistic and/or (1993). Moreover, language doubt, to second serious terms, by its own nowhere distin- rationality. City gives no based guishes per- between indoor outdoor asserts, other for the distinction reasons Finally, and importantly, formances. as plain is what saying than Appeals, the New York Court of one of But, as- language of the statute entails. that it heard under few cases has so, grave questions suming that were statute, has that it demonstrated has con- rationality arise as to the of a would then authority interpret to the statute siderable singled prohibition out for one law that narrowly questions. to avoid constitutional concededly form that is expression of nude Santorelli, 876-77, 80 N.Y.2d at Amendment, by covered First while (employing N.Y.S.2d 600 N.E.2d 232 mighty explanation, little permitting, with statutory the canon of New York construc- many equally other nude demonstrations. tion under which state courts “must con- contemplate why, need on the One uphold strue a statute ... its constitu- City’s reasoning, totally produc- naked tionality if a rational can found basis be staged Hamlet tion of could be and, result, do so” interpreting during middle of Central Station Grand 245.01, prohibits which on its face wom- hour, photo shoot had rush while en but not men from publicly exposing time, regardless place, be banned nipples, apply their not to to women who occurred, say or manner in which it bared their in a public park); breasts cf. interpreted the statute as Arizonans, 78-79, constitutional issues. would raise serious (indicating that use state courts of enough why It a nude perfor- to ask construction, statutory state canons of permit- an audience would be mance with questions, avoid constitutional is relevant ted, place and a shoot in the same certification). desirability suggest signif- prohibited, icant ir- problems, constitutional based on factor, It follows that the third allowing rationality, City’s reading attend the of the what, the state tribunal to make under the statute. canons, applicable plausible state is a in- terpretation to avoid serious constitutional

Nor is a construction of the statute issues, weighs heavily im- in favor of certifica- problems would avoid all constitutional Thus, plausible. exemption statute’s tion. dancing ly that nude could be barred. See id. vote if the instant case were before them. expressly per- But New its justify All that is needed to certification with York— statute — result, nudity. pho- mits some As a statute, respect to this factor is that the if not tographs do not on their face contravene the narrowly interpreted, would raise serious

public morality of the state of New York. It Since, constitutional issues. under the rea- specific public follows that a more violation of dissent, soning ap- of the which would have morality photo must be found if Tunick’s ordinance, plied scrutiny strict to the Indiana unprotected by shoot is to be left the Barnes ]., (White, see id. at 111 S.Ct. 2456 plurality opinion. particularized This viola- dissenting), City’s interpretation of the might present photographs tion were the obviously grave York statute would raise New times, particular places, to be taken in questions, conclude that seri- City explicitly manners. But the has declined on the ous constitutional issues would exist any such make attack on the shoot. reasoning eight justices. of of nine Barnes need, course, speculate There is no of particular might about how Justices ultimate-

85 litigation generated by First Amendment B. City years. in recent New York Notable it, fourth precede Like those that cases which court or a district court factor, certification either capacity preliminarily enjoined has or found uncon litigation or to frame to resolve the stitutional on First grounds Amendment strongly supports question, policy City some action or include City has conceded certification. York, Latino Ass’n v. New City injunction properly is- Officers district court’s (2d Cir.1999) (affirming 196 F.3d 458 validly pro- unless the state statute sued preliminary injunction enjoined Hence, certi- Tuniek’s shoot. hibits City prohibiting plaintiffs from from par will, reading on one fication ticipating, in their uniforms behind con- totally resolve the case and avoid all banner, organizational pa their in various another, either On problems. stitutional 1999); March, rades held Million Youth case—were the it will also resolve the (2d Cir.1998) Safir, Inc. v. 155 F.3d 124 the state law invalid court to find (affirming modifying preliminary in it will under the state constitution —or be, junction City requiring pa- to issue clearly directly as can present, as organization seeking rade issue that is then a federal constitutional 1998); hold a event in Harman v. adjudication. “Under ready for federal (2d York, 140 ap- where it New F.3d 111 Cir. these unusual circumstances 1998) (finding City’s to defend a unconstitutional pears the State will decline way policy if it requiring City employees is read one and where to ob statute plaintiffs consti- tain permission speaking nature and substance of before to the me dia); drastically altered if challenge Magazine Metropolitan tutional New York (2d (find Cir.) way, Auth., it is es- Transp. the statute is read another F.3d 136 123 the benefit of the that we have ing municipality’s sential unconstitutional the re authoritative construction from the law’s display arguably fusal to advertisements American Book- highest denied, court].” mayor), [state’s critical cert. sellers, S.Ct. S.Ct. (certifying Virginia of a interpretation York, (1998); Bery City New F.3d display that criminalized the of sexual (2d Cir.1996)

law (finding unconstitutional or sadomasochistic materials were City’s limitation on for side licenses juveniles, though harmful to even certifi- denied, artists), walk cert. delayed adjudication of the as-

cation (1997); 138 L.Ed.2d rights). serted First Amendment York, Works, Inc. v. Neio Housing (S.D.N.Y.1999) F.Supp.2d (issuing C. preliminary requiring considerations, whether The last two agency, on plaintiff, non-profit to re-rank federalism implicates this case a distinct on priority funding a for federal based list delay concern and whether the of certifica- a clear and likelihood that substantial asserted, unduly right tion would harm the in downgraded plaintiff on the list City had are not as clear cut. This case stems from includ protected speech, retaliation for its rights of a the claimed First Amendment alia, mayor’s ing, inter criticism of vi- photographer implement his artistic and various successful First administration against rights, His individual as sion. City), ap against Amendment lawsuits those of the state to enforce its laws (2d moot, 176 as 203 F.3d peal dismissed values, undoubtedly But this are at issue. Cir.2000); v. Timor Action Network East federalism litigation also raises distinct York, F.Supp.2d 71 334 City New of concerns. (S.D.N.Y.1999) declaratory judg a (issuing City’s plaintiffs denial of ment if we failed to We would be ostriches signs temporary to erect street judicial heavy application notice of the stream of take 86 (S.D.N.Y. Amendment); Brooklyn Safir, v. 1998 WL 274295 Ass’n First

violated the Inst, 1998) City May (finding v. New unconstitutional the Arts & Sciences of of (E.D.N.Y.1999) York, F.Supp.2d 184 than 20 taxi City’s permit 64 refusal to more City from enjoining the in (preliminarily participate protest against drivers to filing from and suit funding withholding drop-off), rules for proposed pick-up Brooklyn Muse- against (2d ejectment for modified, as 98-7737 Cir. No. aff'd temporary the content of um based on 1998) May (unpublished disposition); museum); Youth Million exhibit at the York, City Latino Ass’n v. New Officers March, Safir, 381 F.Supp.2d v. 63 Inc. (S.D.N.Y. 1997) Aug.19, 1997 473972 WL (S.D.N.Y.1999) in- (issuing preliminary (enjoining City prohibiting plain from City grant pa- junction requiring the tiffs from in their uniforms participating, organization seeking to rade to an banner, their in organizational and behind 1999); Gasparo in v. hold a event parades held in the late summer and fall of York, F.Supp.2d 16 198 City New moot, 1997), appeal dismissed (E.D.N.Y.1998) enjoining the (preliminarily (2d Cir.1998) (unpublished disposition); City’s for newsstands concession scheme (2d Safir, 206 F.3d 183 MacDonald cf. City’s un- likelihood light of the Cir.2000) (vacating remanding the dis authority limited to terminate concessions summary judgment grant trict court’s Latino protected speech); would chill Offi City claim that plaintiffs for the on York, City cers Ass’n v. New City governing ordinance the issuance of (S.D.N.Y.1997) F.Supp. (preliminarily parade permits violates the First Amendm enjoining City prohibiting plain from ent).16 parties’ reap Some of the names in their uniforms participating, tiffs from pear apparently on this list. This is banner, organizational and behind their City engaging result of acts similar 1997); parades Time Warner held June previously enjoined by to those the federal York, City F.Supp. Cable v. New courts. (S.D.N.Y.1996) enjoin (preliminarily onslaught As a result of this relentless ing City’s decision as unconstitutional litigation, of First Amendment the federal programs television place commercial have, extent, courts to a been considerable cable channels reserved for educational or drafted into the role of local licensors governmental purposes), on other aff'd City of New York. When the Ninth nom., grounds Time sub Warner Cable En- Circuit Arizonans found Arizona’s (2d L.P., Bloomberg 118 F.3d 917 Cir. unconstitutional, it glish-only amendment 1997); Works, Housing Safir, Inc. v. effectively plan- assumed the role (S.D.N.Y. 1998) Nov.25, (pre- WL 823614 bureau, ning telling Arizona how it was to liminarily City enjoining prohibit- from public. deliver services to the And that ing non-profit organization AIDS from fact seemed to influence the conducting press conference in front Court, which, finding after the case before inHall view of the likelihood that the moot, decided to vacate the Ninth Cir- content-based), policy stay grant- (2d cuit holding ground on the certifica- part, ed in WL Cir. 1998) (order supra Nov.30, sought. tion should have been issuing partial stay withdrawn); Works, accompanying Similarly, note 8 and text. later Housing Inc. v. (S.D.N.Y. question in a decision on the constitutional Safir, July WL 1998) acting, this case would result this court (preliminarily enjoining from extent, City’s permitting enforcing policy limiting press its con- some as the agency, determining may speak, ferences in front of Hall to for it who groups fewer); 25 or parade, photograph. United Yellow Cab Drivers or or employment, volving rights. 16. This list excludes individual First Amendment retaliation, prosecution or malicious cases in- Appeals, York Court of we from the New importance the not to diminish All this is delay ulti- vindicating inevitably unfortunately and the and adjudicating in role of our case, adjudication of this “a result mate other constitutional and First Amendment that, costly may where ... a state statute quite in the fact does it alter Nor rights. inhibit the exercise First Amendment cases, wrong to see it would such most 379, at Baggett, freedoms.” 377 U.S. anything more doing as federal courts the (declining to abstain under S.Ct. rights against those balancing than in to a vagueness challenge Pullman a' its laws and enforcing in interest state’s Washington requiring public em- But, statute in the current rather values. oaths). ployees loyalty to take in New York of affairs state remarkable danger too clear an all City, there is are, of the First Amendment Violations courts, merely interpreting instead of moreover, irreparable. to be presumed rights, may cross defending federal Elrod, 2673; at 96 S.Ct. U.S. become, effect, agency in an line and delay, at The there Bery, 97 F.3d 694. government crucial local performs fore, certification, if it harms inherent by would not this case functions. While right plaintiff the First Amendment boundary, transgress force us to itself sought by seeking prelimi to vindicate con- federalism it does—in context—raise nary' injunction, irreparably. does so Cf. more advisa- certification that make cerns Koota, Zwickler v. 389 U.S. ordinarily be. Accord- might than it ble .(1967) (declining S.Ct. 19 L.Ed.2d weigh against this factor does ingly, under Pullman doctrine to abstain certification. challenge to a First Amendment facial “to force the New York state law because D. ac who has commenced a federal plaintiff five factors —whether foregoing delay of state court pro tion to suffer New binding decision of the there is a ceedings might impermissi itself effect the whether Appeals point, York Court very right chilling ble constitutional important recurring, the issue protect”). Nor can this harm he seeks diffi- serious federal whether assuaged by knowledge be much by plau- can be avoided culties that exist claim higher interests have a “[flew the state interpretation of sible of a federal chancellor upon the discretion likely certification will resolve whether needless friction than the avoidance of not, or, will focus the consti- case if it does Pullman, 312 at policies,” U.S. with state issue, and whether federal court tutional that, by fact 61 S.Ct. the issue raises distinct adjudication of noted, repeatedly Supreme Court has together concerns—taken federalism delay is to some considerable the harm of in favor of deferral to strongly counsel efficiency of certi mitigated extent court. see, Arizonans, fication, at e.g., Booksellers, 1055; however, American is, additional S.Ct. issue There Bellotti, 636; at It effect of 484 U.S. ignored. is the that cannot be 2857; Lehman at certification, delay, on 428 U.S. its attendant Brothers, right here asserted. cases, result, courts and, appropriate many As a is fundamental This factor proper balance concluded that contexts, outweigh the others and have it will injunction right-preserving keep and direct action speedy mandate certification. the result of pending effect The case before us is federal court. Booksellers, See, one, e.g., American which the First Amendment the en (enjoining 108 S.Ct. 636 grant preliminary of a appeals from the potentially statute of a state expres- forcement ordering it to rights pend- First Amendment violative of seeking to ban. counsel sought sion it certification); at 79-81 ferral to the state court. See Con- supra see also ing infra Clinic). proce- But that Hope (discussing I that I Op. eurr. at 94-96. reiterate to us in the instant not available dure is many that in First agree Judge with Sack we to lift supra at 79. Were case. in- particularly Amendment those cases— injunction, and stay preliminary on the volving prior restraints —the pho- plaintiff to take his thereby to damaged, rights significantly involved are moot the issues certi- tograph, we would lost, by delay altogether if not entailed Appeals. New York Court fied to the certification, and that in cases cer- such circumstances, I believe Under tification, if all of the even favored delay entailed plaintiff imposing factors, But in the acceptable. other is not harmful alterna- certification is the least us, I respectfully disagree situation before primarily I conclusion be- tive. reach this Judge with Sack.17 indicated both his plaintiff cause the that he retains argument plaintiffs not-insignificant at oral Besides con- brief and conducting pho- ongoing an interest regarding timing cession of his inter- shoot, of when the event regardless est, is, believe, an reason there additional Indeed, very it is for this actually occurs. certifying Judge in this case. Sack before us is not now reason that case that, suggests were we to affirm a modi- words, supra note 3. other moot. See prevents from fied irreparable, harm is time is not while the interfering with taking photo- that certification is of the essence. Given graphs but leaves it free to arrest Tunick by all of the other rele- strongly favored shoot, completion meaning after together, taken it is hard for vant factors ultimately of the statute would be decided justify declining certify, me order by the New York state courts the ensu- alleged right on an expeditiously to rule ing Op. criminal case. See Concurr. infra assertion, that, by own can be plaintiffs fact, at 94. But in were we to take this satisfactorily vindicated at a later date. route, guarantee there would be no one, however, a close The issue is actually press charges after Judge eminently plausible Sack takes Indeed, arresting every Tunick. after oth- that, case, even in the First view er one of Tunick’s arrests for violations rights Amendment at stake cannot ade- Law, against the Penal the case him was quately protected pending certification ultimately dropped. The result of course outweighs and that this consideration been, counseling not to nor is remaining factors otherwise de- there has date issues, Judge appears position take Sack see Siler v. Louisville and Nashville Co., R.R. affecting expres- that an statute unclear state (1909), give adequate L.Ed. 753 weight to by also fails unacceptably speech sion can in itself inhibit to the interests served the state law. government because it enables officials case, In the circumstances of this I believe charged engage with its enforcement interpretation Penal that Law 245.01 and 245.02 should issue from of New York decisionmaking. standardless In such cir- § cumstances, he believes that the federal court If, however, Judge the state court. Sack compelled prior an find unconstitutional believes, inappropriate were be- certification Op. restraint. See Concurr. at 92-94. infra delay unduly harm cause the it entails would cases, many interpretation But in such right, court should the federal the federal the statute that could render law suffi- interpret deciding the state law before itself ciently danger clear to eliminate the of unfet- potentially remains a avoidable federal what tered discretion is in fact available. Where (The question. same See id. so, finding that is of an unconstitutional true, course, were the court would be to decline state restraint, prior perhaps needlessly and cer- certification.) For a recent discus- tainly prematurely, damage does to the inter- desirability adju- on the of federal court sion dication of state facilitating, among animating Judge ests the state statute. Sack's (constitutional) law issues in approach only does not heed the things, the avoid- other courts, Court's stricture federal where decisionmaking, ance of federal constitutional possible, dispose by deciding should of cases Schapiro, Polyphonic Federal- see Robert A. Courts, statutory questions “rather than ... un- ism: State Constitutions in the Federal (1999). necessarily” reaching federal constitutional 87 Cal. L.Rev. 1409 future, adjudication rights at issue does not of foreseeable likely to be there certification, favoring outweigh the factors state law of the relevant interpretation any definitive- can do so only court by the Appeals. of York Court

ly, New HOLDING majority panel of this not at A this many situa- matter might not This pre- time—albeit for different reasons — case, But, mean in this it would tions. pared underlying to rule on the federal Tunick or other prohibiting of the threat A majority issue. of this doing from the future photographers is, however, again and for different panel remain to do now would Tunick seeks what reasons, the view that under the circum- of As a Damocles over them. of Sword Ac- appropriate. stances certification then, we to take matter were practical certify. with- cordingly, we But we do so might well end approach, we Judge Sack’s entertaining a to prejudice out' to motion effective, potentially and a more up with stay injunc- lift the of the district court’s than lasting, prior restraint longer much delay tion should the entailed certifica- adjudica- in the delay from a result would justify tion lead to conditions that would pending certifica- rights tion of adjudication right immediate assert- quite apart all from tion. And this is ed. desirability deciding of not obvious question Judge Sack CERTIFICATE New opinion that an of reach but ’ of Certificate the New York Court might court well render highest York’s Comp.Codes to N.Y. R. Appeals pursuant unnecessary. 500.17(b) 22, § Regs. & tit. event, jurisdic- we retain any because § 0.27 of the Local Rules United case, at we have this see tion over infra Appeals of for the Second States Court stay that reconsidering option Circuit. in- imposed preliminary on the earlier we 500.17(a) 22, § of the New York Title unex- junction impose should certification Codes, Compilation Regula- Rules & with delays or should conditions pected permits tions certification of “determina- right change. This respect to asserted ... of New York law questions tive continue, light in the us to option allows controlling precedent of which there is no circumstances, to the de- evolving balance Appeals.” We believe friction with sirability avoiding needless such a appeal presents case.18 unnecessary and of constitu- state courts Appeals yet has New York Court harm of making against the tional decision constitutionality of scope interpret adjudication po- delay in the extended § exemption under Penal Law 245.01 rights. Amendment Given tential First 245.02, § court and two lower state case, where of this the circumstances on opposing to take views appear decisions own that his plaintiff seems believe falls within the photography whether nude satisfactorily exercised rights can be Moreover, proscription. statute’s certify future, not to and where decision photographs indicated that such court that him may plaintiff well leave and those like thereupon held by the statute were barred an indefinite time as uncertain for under the New York constitu- the law void nu- involving entire photographs whether outdoor rests its tion. Because taken, validity of scope I believe that dity may lawfully argument 245.02, § a determination § delay 245.01 the effect of temporary sponte. Second Circuit Lo- certify Although parly a motion nostra neither has made Appeals, certify Court of cal Rule 0.27. specifically Rules authorize us our Local on an basis both whether it will expedited these do sections Appeals of Court and, does, certification, if photo accept shoot it proposed prohibit questions case. See su- here certified. entirely resolve this V.B., and note 17. II and pra Sections panel jurisdiction pending retains This state, and in long history of the Given Appeals. the New York of action Court a center for City, of the particular questions regard- activity, artistic similar SACK, Judge (concurring Circuit nudity by the type proscribed ing judgment): to recur. We therefore likely are statute to the New following questions certify I. Introduction Appeals: York Court Judge exegesis learned on Calabresfs (1) in- photographic Whether a shoot questions certification of state-law fed- volving arranged 75 to 100 nude bodies is, view, my constitutional cases eral public formation on a in an abstract misplaced our current consideration per- entertainment or street constitutes injunction against prior an restraint on exhibition, “play, formance in a show light In of the diver- expression. artistic meaning within the entertainment” gence among of views the members of this § exception to N.Y. Pen. Law 245.01 I panel, proposes concur the result he § and 245.02. nonetheless, concluding although cer- (2) If the first is question the answer to contrary tification this case is yes, exceptions to N.Y. Pen. whether dictates of the First Amendment it will § § 245.01 and 245.02 are limited Law in speedier plain- result resolution of the to indoor activities. right express any tiffs himself than will If the to the first is answer practically other available alternative. no, or if the answers to the first and Getting on case is with this less offensive yes, questions are both whether second Amendment, think, my to the First than 245.02, § § so N.Y. Pen. Law 245.01 continuing argue for a result I view as under interpreted, are valid the Consti- is, constitutionally correct but which of New York. tution State least, now at unobtainable. I thus While in Judge proposed judg- concur Calabresi’s The manner in which we have framed ment, I see no reason to decide whether way questions these is in no meant analytical prescribes framework he of Appeals restrict the Court from consid- correct. any might law ering issues wish to resolve in connection with this ^{[*] [*] [*]} appeal. I have the City little doubt that of New fact can stop large group view of the that this case involves York of men stay preliminary injunc- of a of a grant undressing women from on a street tion, neighborhood, if the protected issued to asserted First a residential even rights, respectfully group pur do so for the Amendment we most members request Appeals pose creating to consider and in the course of artistic1 description reproductions photographs goes 1. A included of how Tunick about taking photographs might his well leave the themselves. And the author of review in impression engaged he in a series of September Harpers Magazine 1998 issue of sophomoric pranks. attempt Any to evaluate exhibition of Tunick’s work concluded that an description, his work based on such howev- good gallery exhibi- “[a] a Manhattan was er, misguided. photographs would be His seeing.” tion worth prestigious galleries have been exhibited in performance works in- Tunick’s extended favorably and reviewed in the mainstream volving people that are recorded masses of press. two-page July A article in the photography still or video tend to via dimin- Magazine (p. issue of The New Times 49- 50) presences pictures of his ish their individual in favor of devoted four city any or in or prevention property, or about about governmental But expression.2 city street.” See N.Y. Charter is a place it takes expression before 1301(i)(r). “[Pjrior City might have at- restraints restraint. prior tempted employ system to deal seri are the most speech publication with Tunick’s intended in a shoot infringement on and the least tolerable ous neighborhood. residential Manhattan “Of rights.” Nebraska First Amendment course, [C]ity may require periodic Stuart, Ass’n v. Press licensing, may special and even have li- (1976). Any 49 L.Ed.2d 683 S.Ct. censing procedures for conduct commonly therefore, may accomplished, be such bar with expression.” City associated Lake- the enactment of a clear stat only through Co., wood v. Plain Dealer Pub. 486 U.S. rigors reg or a meeting ute 750, 760, 108 S.Ct. 100 L.Ed.2d 771 sufficiently with definite ulatory scheme (1988). a properly Under structured li- safeguards. and procedural standards censing system, municipality may a consti- neither. employ The has chosen to time, tutionally regulate at place least that, a it has invoked statute Instead See, expressive and manner of activity. out, correctly points ante Judge Calabresi e.g., Forsyth County v. Nationalist Move- 71-72, clearly prohibit not Tunick’s does ment, 123, 130, 505 U.S. 112 S.Ct. City proposes The intended actions. (1992). 120 L.Ed.2d But system of the executive branch of allow members licensing speech or other im- expression is prevent City government physically to if permissible it does not contain clear activity on their expressive based objective standards the basis of which my reading statutory language. licensing authority must act. This de- view, to em- has chosen because ters the licensor from in engaging raw permit system neither a nor a clear ploy censorship, preventing unduly or restrict- leave principles First Amendment ing speech by people of which or of whom See, stay lift our us with no choice but to he or disapproves. e.g., she Ward v. Racism, injunction pro- preliminary Against district court’s Rock 491 U.S. hibiting police physically from restrain- expression (“principal inquiry” licensing before it occurs. cases is

ing Tunick’s government adopted “whether the has regulation speech disagree- because of City’s Licensing System II. The message conveys.”) ment with place permitting sys- provide guideposts The has Standards ... and courts taking photographs check the licensor allow tem “for the schema, has, it, September Harpers Magazine, at 73-74. overall which let’s face the value of Tun- This brief discussion of totalitarian undercurrents. consigned ick’s work is to footnote because perfectly it is irrelevant the issues to appeal. Judge decided on As Calabresi pros- photographs on the Tunick’s best ride photography explains, Tunick’s is undoubted- pect aspect depicting that the formal of[] protection. ly entitled to constitutional repeated public human contours in environ- ante at 82. The First Amendment does not fragility ments will infer on the of the un- protect expression appraisal of based on an protected body set- human in industrialized official, any government includ- its worth tings. surprisingly effective in these He's opinion. ing of this the author best efforts where the confrontation be- public private spheres tween the in his dis- plaintiff properly conceded in the The impact photographs collide with sufficient "public nudity, fur- court even in trict engender thoughts on America’s evident art, may be restricted.” therance of heritage al- schizophrenia' national Cf. —a Theatre, Inc., weird, Barnes v. Glen ways unsuspect- rears its head in (1991)(plu- many, ing ways, much to the amazement of world, all, protection rality opinion)(discussing level but not other countries in the ex. nudity). applied Clinton-Lewinsky to be to artistic debacle. meaning- § More N.Y. Penal Law 245.01. whether easily to determine quickly Tunick, plan to doff fully for who does discriminating against dis- licensor is photo- to take the guide- clothing his order these speech. Without favored provides: Penal Law 245.02 graphs, rationalizations posts, post hoc shifting the use of licensing official promoting the ex- person guilty A easy, are far too criteria illegitimate or knowingly person when he posure of courts to deter- making it difficult conducts, maintains, owns, manages, op- case whether any particular inmine any premise public erates or furnishes favorable, sup- permitting licensor is place in a place person where a or unfavorable, expression. pressing pri- a manner that the appears such parts body of his are vate or intimate Lakewood, omitted). exposed. (citation unclothed subjecting “lawA Amendment freedoms exercise of First § 245.02. But each of N.Y. Penal Law license, of a without prior the restraint exception an these statutes also contains narrow, and definite standards objective, may planned photo cover Tunick’s licensing authority, is uncon- guide to the apply section shall not to “[T]his shoot: City Bir- Shuttlesworbh stitutional.” of breastfeeding any per- the of infants or to 150-51, mingham, 394 U.S. play, in a entertaining performing son or (footnote con- exhibition, In- show or entertainment.” omitted). taining citations deed, excep- Tunick’s view is not that this shoot, statutory the basis may apply photo need not review tion to his but We of, for, City’s licensing operation According the to his unquestionably or it does. here, Judge counsel, As Calabre- system statutory language, however. which is observes, City explic- has unambiguous si ante at “totally completely clear and face,” to its threatened arrest itly permits declined base Tr. Arg. on its Oral his failure upon Tunick and his models proposes that which Tunick to do. City permit.3 to obtain a cities, towns and vil- gives The statute power opt exception out of the lages III. The Criminal- State expressive activity, applies insofar as it Exposure Statute allowing municipalities to enact thus such regulation by licensing, Having foregone prohibiting public nudity irre- local laws City police physically intends for the spective purpose. artistic N.Y. Penal its Tunick and his models from en- prevent §§ a Law 245.01 and 245.02.4 While such grounds gaging in the shoot planned local law would render Tunick’s §§ and 245.02 of that it will violate 245.01 activity illegal, leaving the issue of plainly Law. the New York State Penal Section prohibition meets First whether provides: 245.01 standards, City New York has Amendment Indeed, adopt if he not to one. New person guilty exposure A is chosen deliberately licensing authority a man- York’s has appears public place a such public parts permitted photography intimate nude private ner that the or places from time to time. body exposed. his are unclothed or reads, decision, "Nothing City's following 4. 245.01 in this sec- our Section Whether adoption by city, prevent tion shall a town granting stay of a of the district court’s in- is, exposure village prohibiting forego argument or of a local law junction, based on public person as defined fact district did herein that the court’s time, per- any not such require City permit, place, at whether or to issue Tunick a not surmises, play, entertaining performing in a Judge ante at son is exhibition, Calabresi Section perceived show or entertainment." absence of standards identical, adding nearly the word licensing constitutionally 245.02 law that it makes else, "substantially” words "as herein suspect, something we do before the or on defined.” know. five, abandoned Tun- and definite standards to guide has thus both on which to authority, lack of a as basis licensing ick’s is unconstitutional.” shoot and de- planned photo Shuttlesworth, his prevent 150-51, 394 U.S. at adopt ordinance that (footnote clined or failed omitted). containing citations It explicitly unlawful. has would make why subjecting do not see the exercise of despite the stat- nonetheless decided First Amendment a prior freedoms to re- what exception for artistic activities ute’s imposed by police, straint without nar- prohibited by proposes Tunick do is row, objective, and definite standards to According §§ and 245.02. 245.01 guide police, any permissi- the more City, people posing naked ble. variation This on the classic theme having their purpose for the streets is, me, censorship it seems to also foreclos- display taken for eventual photograph ed the First Amendment. elsewhere, using the street as “set” rath- is, if censorship anything, Police more forum,5 in a “performing er than a are not dangerous licensing than a system. It is exhibition, entertainment.” play, show or pure force unaccompanied by the proce meaning of the plain Neither the court, dural safeguards constitutionally that are a appellate decision of a New York any might part nor other means which we mandated of a viable licensing plan. See, Stern, e.g., determine the statute’s reach is available— Beal v. (2d Cir.1999).6 Police

to us or to New York I do not think law determine whether the Department may stop expressive enforcement officials —to right. is activity it begins before absent a clear making activity statute The illegal. view, by In the arrest of Tunick my police operate under no such clear man clearly under a statute that does not police date here. expression prior make his artistic unlawful expression taking place presents sum, City’s arrest of Tunick and peril the same kind of for freedom of prevent expression. his models would his of a expression as does the refusal licens- It prior would thus be a restraint and as

ing authority grant permit a under a special significance. such has similarly Unguided by unclear statute. explained: As the Court has command, plain statutory police can penalty judgment A criminal or a ... is permit expression or restrain Tunick’s be- subject panoply protec- to the whole of fore it occurs for reasons of their own. involved, by deferring impact tions afforded of When a is government license judgment subjecting appel- “law the exercise of until all avenues of First Only have prior Amendment freedoms to the re- late review been exhausted. license, narrow, objec- final, judgment straint of without after has become correct [Supreme] 5. Tunick but one [T]he [in cites case—the none— Freedman v. Ma- ryland, govern 380 U.S. 85 S.Ct. 13 L.Ed.2d addressing constitutionality of a objective held that in addition to public place ] ment restriction on the use of a discretion, prior Wilentz, re- limits on content-based F.Supp. aas set. See Amato v. procedural straints must contain three safe- (D.N .J.1990) (finding unconstitutional First, guards. required must be licensor judge's refusal courthouse that was to decide to issue the "within whether license by permission often used be as film set to specified period” during brief which the used the maker of "Bonfire of the Vani maintained, quo status id. 85 S.Ct. ties” because content of be shot scene to 734; second, prompt judicial “a final deci- justifiable any "could cause offense to black id.; assured, third, sion” must be person”), grounds, rev'd on other 952 F.2d 742 proving expression un- burden of that the (3d Cir.1991). Since we do not decide the censor, protected must rest with the see id. at constitutionality of the New York we 58, 85 S.Ct. 734. persuasive need not discuss the relevance or Beal, ness of the decision. 184 F.3d at 128. enjoin a eeeding solely prior was “to re- otherwise, the law’s sanction does purpose sought The straint. fully operative. become prevent being Mr. Tuniek from restraint, by contrast A prior subsequently havfing] prosecuted irre- definition, an immediate and has way through its the court[s].”7 case wend If it can said versible sanction. Arg. impediment Tr. Oral at 28. see no civil sanctions criminal or a threat under such after-the-fact action speech, prior “chills” publication after § or 245.02. 245.01 for the it at least “freezes” restraint time. Tun- prosecute Should the seek to Ass’n, Press Nebraska (or models) they ick would have avail- his Bickel, The (citing Alexander M. S.Ct. able to them the New York state courts (1975)) (footnote Morality Consent (or here, argument advanced that his omitted). re- prior prohibition their) activity plainly is— for centuries understood straints has been protected “perform[ance] as a view— guarantee of freedom to be central to exhibition, show or entertainment” play, Minnesota, 283 Near v. expression. exceptions contained under 713-14, 75 L.Ed. U.S. §§ 245.01 and 245.02. State courts thus (1931). [Supreme] “The Court has meaning of would decide the issue of the system prior re- emphasized that ‘[a] If the New York these statutes. expression [the courts] comes straints (or courts were to decide that Tuniek’s his heavy presumption against its bearing a models’) exempt was not under behavior ” validity.’ Carroll v. Presi- (or statutes, they) he would then be Anne, Princess dent & Comm’rs argue able to statutes’ unconstitution- 175, 181, 21 L.Ed.2d 325 (or they) If ality. prosecuted he were Sullivan, (1968)(quoting Bantam Books (or their) fact, rights after the under his and state consti- Federal Constitution (1963) Maryland, Freedman v. 380 statutory tutional8 and law would thus be “ 734, 51, 57, 649 85 S.Ct. 13 U.S. protected. potential for the ‘friction- (1965)) (second original). alteration in the generating error’ the federal and between finding There for a is no basis systems” Judge state court Calabresi over- fundamental has been presumption avoid, (quoting ante at 77 Arizo- seeks come here. Arizona, English nans for Official 43, 79, 1055, 117 S.Ct. 137 L.Ed.2d Subsequent Punishment IV. (1997)),would not arise. un- of Tuniek or his models

Prosecution pho- der the New York statutes after Judge Opinion V. Calabresi’s tography complete is would be another counsel made clear at I do not write order to take issue with matter. Tunick’s Judge argument pro- oral the aim of this Calabresi’s learned dissertation explained par- counsel that "the broader than it is under First Amendment. Plaintiff's injunction Moor-Jankowski, was ad- ticular evil to which generally See Immuno AG. v. simply prevent police dressed” was "to 1270, 1278, 77 N.Y.2d 567 N.E.2d arresting from picture.” Mr. Tuniek before he takes his (1991) ("[T]he protec- 566 N.Y.S.2d Arg. empha- "[T]he Tr. Oral at 29. guarantees press of free tion afforded purpose pre- sis of this case and the was to speech is in the New York Constitution being vent picture from arrested before his [Tuniek] required by broader than the minimum often litigation,” could be taken.” Id. "The (internal quotation the Federal Constitution.” continued, obtaining he directed “was toward omitted.)) breadth marks and citation Its against prior restraint.” Id. significance to our certification of the adds at 30. question to the Court New York constitutional expression 8. Protection for Tunick’s under the Appeals. of may be New York State Constitution well questions Judge to state forced to do under ap- of state-law Calabresi’s certification adjudication.9 proach. I courts him certifica- company with because

part I wary making am of unnecessary dis- postpone in this case will Tunick’s tion tinctions, Judge does, I think Calabresi in the realm indefinitely, and speech that we speech urgent between find to be I expression think that prior restraints on and that which we think can bide its time. unnecessary, is constitu- delay, being such ought determining We not to be what tionally intolerable. speech and what pressing is can suffer the That, delay. law’s like deciding what say Judge This is not to Calabre- important is and what speech unimportant, wholly to free- approach si’s insensitive is not for the courts. For us to determine at 87-89. He speech. dom of See ante urgency relative disturbingly ignore that we cannot “the ef- recognizes deciding similar to our what is and is not certification, fect of and its attendant de- “newsworthy,” an endeavor that we have lay” expressional rights. Id. on Tunick’s Harper been instructed to avoid. See & factor,” “This he 117 S.Ct. 1055. Publishers, Enter’s, Row Inc. v. Nation continues, and, many “is fundamental Inc., 539, 561, 471 U.S. contexts, outweigh it will others (1985) (commenting copy- L.Ed.2d 588 in a by the speedy mandate and direct action “ right case that chary ‘[courts] should be federal court.” Id. ” news,’ deciding is and what is what Meskill, Court, Judge (quoting of this dis- Judge But Calabresi concludes that senting from the decision this Court particular case “time is not of the review, there Harper under & Row Pub- essence,” him forcing id. at and that lishers, Enter’s, Inc., Inc. v. Nation speak process wait to until the certification (2d Cir.1983))); F.2d Gertz v. complete constitutionally is therefore ac Welch, Inc., 323, 346, Robert ceptable. disagree. Every moment’s (“We 2997, 41 L.Ed.2d 789 expression presumptively repression committing doubt the th[e] wisdom task injury. Elrod v. does deciding on an [of ad hoc basis which Burns, publications ‘general address issues of (1976) (“The L.Ed.2d 547 loss of First public interest’] conscience freedoms, Amendment for even minimal Co., judges.”); Flynt Lerman v. Distrib. time, unquestionably periods constitutes (2d Cir.l984)(“Courts irreparable injury.”); see also New are, be, to attempt and should reluctant to States, Times Co. v. United 403 U.S. newsworthiness.”), denied, cert. define 714-15, 29 L.Ed.2d 822 U.S. J., (Black, concurring) (“[E]very Publishers, (1985); Harper & Inc. v. Row injunctions moment’s continuance of the (2d Enter’s, Inc., 195, 207 Nation these amounts a against newspapers to Cir.l983)(‘We fully agree with our brother indefensible, flagrant, continuing viola ‘chary’ that be Meskill courts should Amendment.”) tion of the First Close to news.”), deciding what is and what is not against heart presumption grounds, on rev’d other validity prior is the restraints notion (1985). 2218, L.Ed.2d 588 S.Ct. may not prospective speaker that be “Pentagon Papers,” dealing to his or Even the litigate forced lawfulness of beforehand, speech though they her as Tunick would be did with matters of life mandatory English certification was decided I do note Arizonans for Official —it Arizona, merely requests that “the certification merit- (1997), Judge upon L.Ed.2d 170 which Cala- they respectful consideration than ed more argument, bresi builds his did not involve Id. at received” in the Ninth Circuit. [had] prior expression. on The Court also restraint 78, 117 S.Ct. 1055. suggest did not that even in the case before it expression right engage to his- Tunick’s arguably were death, peace, war and in a delay inherent without the at issue being published not material torical process, albeit lengthy certification Rudenstine, Day The David deadline. And subsequent punishment. some risk of (“Throughout the Stopped the Presses in a manner that did would do so we thereaf- litigation and Papers’] [‘Pentagon of federalism. upon principles trench took publicly Times ]York [New ter the Pentagon Papers position my I myself I alone views. But find history with abso- nothing but study join proposed the result therefore military, dip- to current lutely no relevance Calabresi, which thus becomes the Judge interests.”) That lomatic, intelligence me This seems to judgment of the Court. prior re- lifting make did not joining Judge to Van preferable to be any the publication their against straint conclusion, which at the time Graafeiland’s York Times Co. See New urgent. less least, in our would result writing, of this States, 713, 91 S.Ct. United appeal, re- abjuring a decision on (1971). position he was turning Tunick with an obser- not content itself Court did nothing gained And I see to be July. last Ellsberg and the New that Daniel vation any longer my for my holding from out in pub- interest retained an York Times my it is view.10 Because belief own documents, and that conse- lishing the when it always of the essence time is essence,” not of quently [was] “time hope that the New speech, do comes ef. the Court consid- permitting ante at way Appeals will find York Court leisurely fashion. in a more er the case whether to expeditious deciding more and, if they certification do accept this Judge no reason to doubt I have it, deciding ques- the certified accept problem before Calabresi’s solution tions, deciding than have been we respective analysis of us is a refined certify place. them in the first federal courts confronted roles of state and question about a federal constitutional with GRAAFEILAND, Circuit Senior VAN not, however, It does de- a state statute. Judge, dissenting: procedure to be em- proper termine the addressing my the merits of col- Before sufficiently it does not ployed here because I deem it nec- separate opinions, leagues’ Fh*st Amendment values take into account chronology of events essary to review the prior looming context of a the discrete my colleagues believed created such which restraint. justify filing haste as to need for giving oppor- me an opinions without their VI. Conclusion As is respond to them. tunity to read the district stay I would lift following para- from the several evident injunction and remand the case court’s unseemly issue of haste has graphs, court, Tunick, with in consultation very outset. in this case from the been taking photo- for the fix a date 13, 1999, July Tunick filed his com- On then re- graphs. The district court would following sought the relief: plaint which injunction prohibiting an the of enter injunc- permanent A and agents interfering preliminary from New and its tion, from interfer- enjoining defendants taking with Tunick or his models the of July ing plaintiff planned with assuming of course photographs, the long as as it takes photoshoot, their clearly criminalizing no statute and 6:30 a.m. place between 5:30 a.m. behavior has become law planned 75-100 nude models protect and consists of way interim. In this we would Welch, Inc., majority, ad- a I would not needed to create 10. v. Robert Gertz Cf. ruling, 323, 354, my ... view. A definitive here to 41 L.Ed.2d (citations omitted)). however, J., ("If (Blackmun, paramount.” concurring) my vote were shape on Madi- has no reference to content [sic] of an abstract the the form Street, regulated speech. Having Tunick first arresting sug- and from son gested might agree- alternative sites his models. and/or failing and then pinpoint single able an day the same he served order On location, alternative cannot ex- sought in which he follow- show cause pect simply this Court to take its word injunctive relief: ing the restriction is reasonable and of Ron- Upon the annexed Affirmation proposed location and date anis Kuby, duly L. executed on the 13th ald inappropriate time and for place thereto, day July, the Exhibits photo Accordingly, nude shoot. the pho- Complaint and the and Memorandum proceed Sunday to shoot will on morning herewith, Law filed let defendants show proposed at 5:30 a.m. at the location but cause, Courthouse, 500 Pearl beyond it shall not last 6:30 a.m. and the 28B, Street, County, New York Room on nudity of the models will be limited to at 4:30 in the after- July o’clock representation given by plaintiff. noon, why an should not issue Order Department Police is directed to defendants, enjoining employees their provide a police presence. suitable agents, interfering from with oth- or above, For the reasons set forth Tunick, arresting Spencer erwise plaintiffs for a in- preliminary motion models, forming nude 75-100 abstract junction is GRANTED. Street, shape on Madison between 5:30 16, 1999, July On defendants appealed July a.m. on a.m. and 6:30 above-quoted grant preliminary re- Following hearing July conducted on lief to this Court. believe that the allow- 15, 1999, July the district court on only days ance of four between the institu- issued an OPINION AND ORDER application tion suit with the concurrent was sought by which the relief Tunick injunctive for relief and the date of the following language: described challenged photo shoot resulted from ei- Spencer pre- Plaintiff seeks a Tunick improper dawdling part, ther on Tunick’s liminary injunction enjoin that will de- Pate, see United States v. F.2d arresting interfering fendants from (7th Cir.1969), designed or was deliberate- models, Tunick and with 75 to 100 nude ly to time deprive Safir sufficient in an placed to be abstract formation an alternative shoot location. arrange Madison Street between Catherine event, adequate either it constituted an Sunday a.m. on Market streets 5:30 explanation why unable 18,1999. July “offer a alternative location” single grant The court then concluded its of district court held. I believe that the dis- following language: with the holding trict court erred in that Safir could time, place manner de- assert a proposed think photo I do not that the fense. Sunday morning at 5:30 a.m. on shoot brevity nudity of the actual

given the Saturday morning, July On rights of the privacy threatens panel judges, who are not identified presents block’s residents or overwhelm- sheet, expedited conducted an docket ing safety concerns for traffic or which challenge to the hearing on defendants’ taking should bar the shoot from July injunction order. Because of the 16th place. stenog- absence of both a court clerk and tran- rapher, hearing was neither importantly, given

Most fact no orders reported nor and written has been unable to offer scribed location, we cannot state single Accordingly, alternative I am not con- were issued. time, certainty transpired that the and manner with what between place vinced example, For the dis- narrowly is tailored or that it Court and counsel. restriction on the a likelihood of success “repre- strated on the reliance court’s stated trict irreparable injury. covering the merits and by plaintiff’ given sentation the models is nudity of limitation Tunick, brought this suit federal who any of evidence in the absence meaningless First and alleging a violation of his court The docket “limitation.” concerning the rights, responded to Amendment Fourth district court’s only that the shows sheet by request respectfully Judge Calabresi’s and an “ex- “stayed” injunction order was deny certifica- requesting that the Court with a three- appeal” was ordered pedited responded by suggesting tion. Safir In appellants’ briefing schedule. week “the certify question whether the court they request- submitted brief subsequently proposed shoot plaintiffs participants in- above-quoted preliminary ed that ‘entertaining per- or are covered pre- reversed and junction order “be of Penal Law forming’ exemption Appellants’ vacated.” liminary §§ 245.01 and 245.02.” argues that “the Appellee at 17. brief Judge me and Cala- Judge Sack advised by the Dis- injunction issued preliminary pro- with the agree that he did not bresi Appel- affirmed.” should be trict Court certification, my expressed posed constitute the at 32. These lee’s brief Judge portion agreement with litigation. essence of three months response. Sack’s Another later, September months Two part no further action on the elapsed with argued, Judge appeal when the until, Judge Calabresi on March trial counsel requested Calabresi 46-page opinion he circulated a or- respond- within a week submit letter briefs following pro- different set dering following questions: ing questions: posed certified system under 1. Whether (1) shoot in- photographic Whether a plaintiff an denied which arranged nude volving 75 to 100 bodies photo- to conduct a opportunity in an formation on a abstract involving unclothed graphic session per- constitutes entertainment street First Amend- models violates the exhibition, show or “play, formance against licensing prohibition ment meaning entertainment” within the discre- regimes that confer excessive § Law 245.01 exception to N.Y. Pen. expressive upon tion the licensor § 245.02. activity. (2) question If the to the first is answer grant City’s 2. refusal Whether yes, exceptions whether the to N.Y. Pen. photo- plaintiff permit to conduct § § 245.01 and are limited Law 245.02 content- graphic session amounts to indoor activities. which cannot discrimination based If first the answer “necessary” to be be shown no, first and or if the answers to the “narrowly pursuit tailored” yes, questions second are both whether “compelling interests.” 245.02, § Pen. 245.01 and so N.Y. Law content-based, Whether, if even 3. interpreted, are under the Consti- valid prohibition City’s blanket York. tution of the State of New in- filming any scene against can volving performers unclothed (3), the New Question which refers to “narrowly tailored” found to be Constitution, completely new. “time, place or manner” restriction. no played role New York Constitution Judge Cala- Whether, any prior or all whatever in this case on the basis of cer- justify rather effort to principles First Amendment bresi’s obvious ques- original- evidenced suggested in the first three tification. As is action ly questions, the instant proposed the District Court presented, tions unequivocally based plaintiff specifically demon- was properly found

99 alleged violations of the plaint First and sought injunction spe- addressed Fourteenth Amendments. The New York cifically to planned 18, his July 1999 Constitution by was discussed neither the shoot. injunction The he secured referred district court nor counsel. The clearest only to 18, the proposed July shoot, 1999 evidence of Judge purpose Calabresi’s is directed that the shoot place take on that paragraph drags which the New day, and directed the New York City Po- Constitution into the case. Ever since Department lice to “provide a po- suitable Judge Calabresi moved to this Court from presence,” lice a clear indication it would School, Yale Law he verbosely has crusad- seem that the district court anticipated ed for more extensive use of the certifica- trouble arising from presence of 75 to process. tion In doing, so he has either 100 nude men and women on a public overlooked or disregarded the burdens on street in a residential neighborhood on the State courts and the consequent delays prescribed date. that often Clearly, result. as former Jus- It has been stated on numerous occa Douglas tice stated dissenting when in sions that “to invoke jurisdiction of a Clay Ltd., v. Office, 207, Sun Ins. court, federal a litigant must have suf 228, 1222, 80 S.Ct. (1960), 4 L.Ed.2d 1170 fered, or with, be threatened an actual pursuit justice “[t]he is not an academic injury traceable to the defendant and like exercise.” ly to be by redressed judicial a favorable I find the discussion of these by issues decision.” See Lewis v. Bank Continental Judge then District Jose in L. Cabranes Corp., 472, 477, 494 1249, U.S. 110 S.Ct. Co., Bradstreet, & Cohen Inc. v. Dun & (1990). There is no way Inc., 1419, (D.Conn. 629 F.Supp. 1422-25 in which Court at this this late date could 1986), persuasive more than Judge grant Cala- Tunick the sought relief he and the lengthy bresi’s discourse. Judge See also district court ordered. In words Meskffi’s discussion in McCarthy v. Olin Seventh Circuit in Johnson-Kennedy Ra Corp., 148, (2d 119 F.3d Cir.1997), 153 Corp. dio v. Chicago Club, Bears Football where, quoting Satti, Dorman v. Inc., F.2d 223, (7th 862 97 F.2d 225 Cir.1938), “[t]he (2d 432, Cir.1988), 435 he said that subject “Certi- matter of litigation passed has fication should not be used as ‘a device for history.” into Johnson injunc involved an shifting burdens this Court to those tion seeking to prevent a game football whose burdens are at least as great.’” that already had played. been See also (An apt description of the New Beals, York Court Hall v. 396 U.S. Appeals.) It also should not unneces- (1969); 24 L.Ed.2d Zwickler, 214 Golden sarily impose upon the New York U.S. 22 Appeals the obviously unpleasant (1969); task of American Book Co. v. Kansas ex refusing to accept questions Nichols, certified rel. See, this Reno, Court. e.g., Yesil v. (1904); 92 L.Ed. 613 Todd v. Appren Joint N.Y.2d 682 N.Y.S.2d 705 N.E.2d Comm., ticeship (7th 246-47 (1998), in which Cir.1964); the New York Court Dr. Martin Luther King, Jr. Appeals accept declined to Movement, certification Inc. v. City Chicago, 419 INS, ordered Henderson v. 157 F.3d F.Supp. (N.D.Ill.1976); Folder J.). (1998)(Calabresi, Judge States, Calabresi (C.D.Cal. United F.Supp. up warmed present 1966). for his discourse on certification writing a 17-page dissent short, the instant case is not one in McCarthy. general which involves allegedly wrong- I would not be as vehement as I am in practice ful may permit jurisdiction on this matter if I was satisfied that ground that the alleged wrongdoing is jurisdiction Court had to hear the instant repetitive in nature.

appeal. stated, As above com- Tuniek’s against issue directed solely single anoth- scheduling to Tunick’s prejudice out “No 1999. July for scheduled event a permits manner that in a shoot er complaint photo of scope within

relief review. prior judicial time for Todd, F.2d reasonable granted.” now could under- vein, I not do same In the a in such colleagues were why my stand they did request certification to rush opportunity reasonable had a I before

so opposition. my

to to certification my opposition

Although instant the merits address not

does Sack, “little have I, Judge like appeal, PRODUCTS WIRE re BAYSHORE stop can of New CORP., doubt Debtor. from women men of and large group Co., Inc. and Machine in residen- Lubow street undressing public Manufacturing, of Marksmen the members even if neighborhood, tial Creditors-Appellants, Inc., purpose sodo for group expression.” artistic creating course v. Pap’s v. Eñe Maj. op. at 69. Bayshore Products Wire (U.S. 98-1161, WL 313381 AM., No. Corp., Appellee. pub- 2000) banning Mar.29, (city ordinance constitutional); Renton nudity lic No. 99-5016. Docket Theatres, Inc., 476 U.S. Playtime Appeals, States United (“[A] Circuit. Second preserve attempting interest city’s must is one that life of urban quality 8, 1999 Argued Nov. Buzzetti respect.”); high be accorded 21, 2000 March Decided F,3d (2d 134, 140 York, 140 City New denied, Cir.), cert. (1998); People v. Holl L.Ed.2d 42 N.Y.S.2d man, 68 N.Y.2d public (1986) (“prohibiting N.E.2d police the State’s within plainly

nudity is that the firmly convinced I am

powers.”). peo naked shoot 75-100 photo

proposed constitute an street will

ple on voyeurs invitation regrettable

open but bring their children impressionable join in shoot.

cameras and order complaint Tunick’s

Because just days five served were

show cause shoot, it was scheduled

prior opinion expect an

totally unreasonable the merits upon passing this Court

from clicking prior challenged shoot what know We do

of the cameras. unseemly rush to the

prompted unnecessarily un-

courts, rush that was public. judiciary

fair both with- as moot complaint dismiss

Case Details

Case Name: Spencer Tunick v. Howard Safir, in His Official Capacity as the Police Commissioner of the City of New York, and the City of New York

Court Name: Court of Appeals for the Second Circuit

Date Published: Apr 13, 2000

Citation: 209 F.3d 67

Docket Number: 1999

Court Abbreviation: 2d Cir.