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A New York Civil Liberties Union lawsuit challenging the application of New York state’s lobbying law to a protest billboard may go forward, even though the state lobbying commission has withdrawn its investigation into the billboard, a Manhattan federal judge ruled Tuesday. Southern District Judge Loretta A. Preska denied the motion of the New York Temporary State Commission on Lobbying to dismiss the suit as moot because the agency had repeatedly reversed its position on the matter, withdrawing and then re-starting its investigation in response to the course of litigation. “Such reversals lend themselves to the inference that the actions were a deliberate attempt to manufacture mootness and thus evade a possible adverse decision by this court,” Preska wrote in NYCLU v. Grandeau, 03-8665. The NYCLU’s declaratory judgment suit stemmed from the organization’s sponsorship of a billboard outside of the Crossgates Mall near Albany in April 2003. The month before, lawyer Stephen F. Downs had been arrested at the mall after refusing a security officer’s request to either remove a T-shirt bearing antiwar slogans or leave the mall. At the time, Downs was the chief lawyer for the Commission on Judicial Conduct and is now with the New York State Defenders Association. The billboard read, “Welcome to the mall. You have the right to remain silent. Value free speech. www.nyclu.org.” Under state law, organizations engaged in lobbying activities need to declare the expenses they incur in those activities. In October 2003, the lobbying commission asked the New York Civil Liberties Union, which is a registered lobbying organization, to amend its semi-annual report to reflect the cost of the Crossgates billboard. The civil liberties group claims its sponsorship of the billboard should not be considered lobbying, and it filed suit in November charging that the lobbying commission’s request for information violated the First Amendment’s guarantee of freedom of speech. After the suit was filed, the commission’s executive director, David Grandeau, said the agency would withdraw its request because it had determined the NYCLU had not paid for the billboard. The NYCLU countered that it had, in fact, paid for it. In December, the commission sent a letter to the NYCLU stating that if the group continued to insist it paid for the billboard, it would need to document the expenses it incurred, as the commission considered the billboard a reportable lobbying expense. After the civil liberties group sought a preliminary injunction, the commission backed down, claiming it was satisfied that the group had not paid for the billboard. Preska said that the “contradictory positions” taken by the commission made it clear the commission could not meet its burden of proving the matter had been mooted. Noting the NYCLU itself was in the best position to determine whether or not it had paid for the billboard, the judge noted the commission would be free to pursue its investigation once it came to the same conclusion as the NYCLU. “The Commission’s reliance on the questionable determination that the NYCLU did not pay for the Billboard makes repetition of the challenged activity more than merely abstractly conceivable,” she wrote. The lobbying law is also facing a state court challenge from rap impresario Russell Simmons, whose efforts to overturn the state’s Rockefeller drug laws have also been the subject of inquiries by the lobbying commission. Like the civil liberties group, Simmons is claiming his efforts, which have included public rallies, are general advocacy and not lobbying. In recent interviews with The New York Times and Albany’s WROW radio, Grandeau has said himself that the lobbying law may be unconstitutional and that Simmons may have a strong case. The NYCLU hailed Preska’s decision Tuesday. Associate Legal Director Christopher Dunn vowed to continue to challenge the commission’s “effort to vastly expand the reach of the state’s lobbying laws.” The state attorney general’s office, which represented the lobbying commission before Judge Preska, declined to comment on the ruling.

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