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A federal appeals court ruled Monday that Lincoln Center’s plaza in New York is not a traditional public forum; thus, union organizers can be denied an application for a proposed rally on behalf of food service workers at the Metropolitan Opera. The 2nd U.S. Circuit Court of Appeals found that Lincoln Center’s policy limiting public expression in the plaza to artistic and performance-related events was “constitutionally permissible because it is both viewpoint neutral and reasonable.” The three-judge appeals panel in Hotel Employees & Restaurant Employees Union, Local 100 v. City of New York Department of Parks & Recreation, 01-7602, unanimously affirmed a decision by U.S. District Judge Kevin Thomas Duffy, who granted a motion for summary judgment by the city’s Parks Department and Lincoln Center Inc., a not-for-profit corporation that manages the public areas around the arts complex under a license agreement with the Parks Department. Judge Duffy had rejected arguments by the Hotel Employees & Restaurant Employees Union that the plaza was a traditional public forum in which heightened constitutional protections attached. The union wanted to stage a rally and hand out leaflets explaining its campaign to organize some 95 workers employed in the public restaurant, intermission bar and employee cafeteria. Lincoln Center, the site of Avery Fisher Hall, the Metropolitan Opera House and the New York State Theater on Manhattan’s West Side, had denied the union’s application to stage a rally on June 5, 1999, citing its policy of limiting events in the plaza to those “having a performance, entertainment or artistic component.” The union also unsuccessfully sought permission from the Parks Department to hold a rally in Damrosch Park, which abuts Lincoln Center, but that denial was not challenged in the appeal. “Lincoln Center Inc.’s policy allowing only arts-related expression is consistent with the objective purpose and public use of the Plaza,” Judge Chester J. Straub wrote for the appellate panel. The policy “as applied to the Plaza, the architectural centerpiece of the complex, reasonably furthers the city’s intentions in opening this space to the public for particular uses. Indeed, permitting events of a performance-related nature serves an important public purpose in promoting the arts and establishing a community space for the public to experience artistic performances,” he added. As for the center’s policy prohibiting leafletting in the plaza, Straub noted that activity was “by its nature less disruptive than other forms of expression.” He noted that leafletting bans have been struck down by the 2nd Circuit for the grounds of the Nassau County Veterans Memorial Coliseum, by the 7th Circuit at the Navy Pier in Chicago and by the U.S. Supreme Court in airport terminals. PLAZA IS DIFFERENT However, he said, “the Plaza is far different from the ‘boisterous’ grounds of Nassau Coliseum or the mall-like environment of airport terminals. Instead, the city has created a fountain plaza that serves as the centerpiece of a prominent performing arts complex, and it has sought to preserve the Plaza as an area singularly dedicated to Lincoln Center events and other artistic performances. As such, the ‘special attributes’ of the Plaza … suggest that prohibiting leafletting is not an unreasonable restriction in light of the Plaza’s particular and limited function and purpose.” Circuit Judges Jose A. Cabranes and Sonia Sotomayor concurred with Judge Straub’s opinion. Michael T. Anderson of Davis, Cowell & Bowe in Boston, and Jamin R. Sewell of Local 100′s Office of the Counsel, appeared for the union appellants. Assistant Corporation Counsels Kathleen Alberton and Larry Sonnenshein, and Charles S. Sims and Stefanie S. Kraus of Proskauer Rose, were counsel for the Parks Department and Lincoln Center, respectively. Christopher Dunn and Arthur Eisenberg of the New York Civil Liberties Union Foundation and Mark Lopez for the American Civil Liberties Union Foundation submitted amicus briefs supporting the appellant union.

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