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New York City’s refusal to allow an animal rights group, People for the Ethical Treatment of Animals, to submit an artwork for the ubiquitous “CowParade” exhibit around the City did not violate the First Amendment, a Southern District Judge has ruled. Judge Victor Marrero denied PETA’s bid for a preliminary injunction that would have allowed a piece protesting the brutal treatment of cattle to be included in the exhibit before it ends on Sept. 3. “Courts are often called to rule upon novel concepts of words and deeds,” Judge Marrero said in People for the Ethical Treatment of Animals v. Giuliani, 00 Civ. 3792. “This case presents a unique question: whether a cow is a forum or a forum a cow, and then when and where such a cow-forum may be found.” The piece at issue shows a cow divided into parts, as in a butcher-shop diagram, with each segment containing a quote or a statement. One statement says that “Cattle are castrated and dehorned without anesthesia,” while another reads, “A lot of times the man skinning the cow finds that it is still conscious.” Still another quotes Mohandas Gandhi as saying, “The cow is a poem of compassion … to protect her is to protect all of creation.” PETA had hoped to include the piece among the approximately 500 fiberglass sculptures of cows displayed throughout the City. But officials with the City Department of Parks and Recreation, which had launched the exhibit in partnership with the business community, refused on the ground that the piece was too political and controversial. Among other pieces rejected by the committee that screened applications were a caricature of Monica Lewinsky, a cow dressed to resemble a Hasidic Jew and a cow with a rubber “stamp of approval” that was seen as a political attack against the Mayor. One committee member said that “what troubled the committee was the provocative, graphic and offensive effect of the text chosen.” However, one piece offered by PETA was allowed to participate � a cow covered in imitation leather boots, belts and other items that contained the words “buy fake for COW’S sake.” While there was little doubt in Judge Marrero’s mind that state action was involved in the rejection of the piece, he said there was disagreement over what kind of forum was at issue for purposes of First Amendment analysis. PETA argued that the exhibit was a public forum, while the City said it was a “limited public forum.” Judge Marrero found that, under recent U.S. Court of Appeals for the Second Circuit precedent, the “standard of First Amendment scrutiny applicable to the nonpublic forum, or to the limited public forum concept,” should apply, so that “restrictions on access based on speaker identity and subject matter are permissible only if the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Public forum cases decided by the U.S. Supreme Court and by the Second Circuit, he said, have upheld as reasonable, regulations and exclusions that were “comparable to, or indeed even more generally articulated, than the restrictions in the CowParade Guidelines … “ He found that the limitations at issue here, which forbade overtly religious, sexual or political material, were not “unreasonably vague or overbroad.” And Judge Marrero said that “the record indicates that PETA’s cow was rejected not strictly on the basis of the committee’s general notion of what constituted ‘political,’ but on the grounds of the inappropriateness of PETA’s design with the stated purposes of the event,” which was to put on an exhibit that would be “festive, whimsical and appropriate for a broad-based audience,” and to promote tourism. He said it was not unreasonable for the organizers of the event to foresee that an open format would not produce the “festive, decorous and celebratory art exhibit here envisioned,” but a “massive public billboard which would display, along with much worthy art and creativity, a multitude of political axes and grinding stones, obscenities and self-advertising.” “Such entries, demanding delicate political and practical choices of what expression to allow and what to exclude, would confront government officials with far more severe First Amendment dilemmas than those posed here,” he said. Moreover, he said, PETA was allowed to contribute one piece to the exhibit and was at liberty to “organize its own public forum of one.” The City was represented by Assistant Corporation Counsel Louise Moed. PETA was represented by attorney Gordon Einhorn.

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