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A court order has cleared the way for rent control advocates to protest New York City policies by sleeping on the sidewalk tonight outside of Gracie Mansion. Southern District of New York Judge Kimba M. Wood Monday found that the sleeping vigil, organized by a group fighting anticipated hikes in rates for the City’s rent-controlled apartments later this week, is protected expression under the First Amendment. Wood said that “under these circumstances, the First Amendment of the United States Constitution does not allow the City to prevent orderly political protest from using public sleeping as a means of symbolic expression.” The ruling in Metropolitan Council Inc. v. Safir, 00 Civ. 4254, enjoins the police from clearing the sidewalk of protesters. The Metropolitan Council has been organizing protest activities in anticipation of a public hearing of the Rent Guidelines Board on Thursday, when the board will take comment on proposed increases for the City’s rent-regulated apartments. The protests began Monday night in Carl Schurz Park with a press conference, and were followed by a five-hour vigil in the park. Finally, when the park closed at 1 a.m., some 25 protesters moved to the sidewalk at the junction of East End Avenue and 88th Street to lie and sleep there as a symbol of the homelessness they claim will result from rent increases. The council moved for a preliminary injunction on June 8 to block any interference by the police and a hearing was held Friday. City policy prevents anyone from sleeping on the sidewalk, both for the safety of the sleeper and to keep the sidewalks unobstructed. But Wood noted that even though the City conceded at the hearing that neither concern would be at issue tonight, officials still wanted to maintain a total ban. The City made that concession in part, she said, because protesters have promised to limit their number to 25, take up only half the sidewalk and no more than 70 feet of space during a quiet time for pedestrian traffic, and they will designate marshals from within their ranks to keep protesters within the designated space. Moreover, she said, the police have said they will be there themselves to protect the protesters. However, she said “the City’s complete ban — encompassing public sleeping in any manner on all sidewalks at all times by all people as part of any activity — is overbroad.” “These features that render the sleeping here innocuous, defendants acknowledge, are not idiosyncratic to this vigil but are general features of organized political protest in this City,” she said. “Because the suppression of any such protest to the extent it involves the symbolic use of sleeping or lying on the ground is utterly unnecessary to further the interests that underlie the sleeping ban, the court concludes that the ban is not narrowly tailored to the asserted interests.” Wood was unpersuaded by what she termed the “parade of horribles” the City claimed would ensue should the protest be allowed to go forward. “The City has offered no evidence that those who sleep on the sidewalks while intoxicated and/or homeless … will implicate the First Amendment at all,” she said. “Although counsel for the City has expressed concern that any intoxicated person sleeping on the street can claim his conduct is symbolically expressive, conduct is not converted into symbolic expression by intentions alone.” The judge noted that her decision “erects no bar to the City’s prosecution for disorderly conduct of persons who are vulnerable and/or risk creating obstructions when they sleep prone on a sidewalk.” Christopher Dunn of New York Civil Liberties Union represented the plaintiffs. Special Counsel Daniel S. Connolly of the Corporation Counsel’s Office represented New York City. Connolly said the City will not appeal because the court made clear that the ruling would have no precedential value.

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