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A Southern District of New York judge on Monday refused to order New York City to allow a demonstration of 75,000 people on Central Park’s Great Lawn this Saturday, in advance of the Republican National Convention. The plaintiffs were barred by the doctrine of laches, and the city’s permit scheme is constitutional, both on its face and as applied here, Judge William H. Pauley III found in National Council of Arab Americans and Act Now to Stop War & End Racism Coalition v. City, 04 Civ. 6602. The doctrine of latches “bars injunctive relief where plaintiff unreasonably delays in commencing action,” Pauley wrote, citing Tri-Star Pictures Inc. v. Leisure Time Prods., 17 F.3d 125, 132 (2d Cir. 2003). The National Council of Arab Americans applied for a rally permit on Jan. 7, 2004, and claimed as early as June 25, 2004, that the city Parks Department had violated the First Amendment in denying the permit. However, “plaintiffs delayed until Aug. 13, 2004 — one and half months after the Parks Department’s final ruling and a mere 15 days before the proposed demonstration — to come to this court for relief,” Pauley wrote. “Then, instead of moving by order to show cause with a complete set of motion papers, Plaintiffs moved for a preliminary injunction without supporting papers.” The judge concluded that, “to a significant degree, the emergency created by this preliminary injunction is of Plaintiffs’ making.” Citing Irish Lesbian & Gay Org. v. Giuliani, 918 F. Supp. (S.D.N.Y. 1996), the court held that the plaintiffs’ “unreasonable delay prejudiced Defendants in the preparation of this case.” Judge Pauley went on, however, to balance the equities in the case. “While not necessarily unconscionable � Plaintiffs’ delay is one of the equities that argues strongly against granting a preliminary injunction,” he wrote. He noted that where a preliminary injunction would alter the status quo, a heightened standard applies. The moving party must show the likelihood of irreparable harm and establish not just a likelihood of success on the merits, but a “clear” or “substantial” likelihood of success. Political demonstrations in places like parks are protected by the First Amendment, but the right to demonstrate is not absolute, he said. So-called time, place and manner restrictions, he noted, are constitutional as long as they are content-neutral, narrowly tailored to serve a significant government interest and leave open adequate alternative channels of communication. The city requires a special-event permit for any group event involving more than 20 people and lays down various reasons for denying one that the judge said are content-neutral. One is that environmental conditions make the location unsuitable. The city argued that restoration of the Great Lawn cost $18 million in the 1990s, and damage to the lawn could require expensive repairs. “Although the permit scheme allows Parks Department administrators to consider the ‘nature’ of the proposed event when deciding whether to issue a permit � a Parks Department representative testified that these provisions ‘are applied based upon the effect of the event on the park and surrounding area, and not upon the message communicated at the event,’” the court wrote. “The Parks Department’s narrowing construction of the regulations invalidate any suggestion that this provision allows officials to take into account the content or message of an applicant’s proposed event.” CONCERT DAMAGE Although the Parks Department “conceded that a rally of 75,000 people was within the Great Lawn’s capacity,” it maintained that it could not grant the application without a rain contingency plan and some assurance that the Great Lawn’s capacity would not be exceeded. It also wanted a bond to secure against any damage caused. After last year’s Dave Matthews concert, which drew 85,000 people, the city said, the Great Lawn sustained $140,000 worth of damage and was closed for several weeks for aeration and reseeding. Judge Pauley noted that in a state court suit to be heard today, a group called United for Peace and Justice is seeking a permit for a demonstration of 250,000 people on the Great Lawn on Sunday, “the day after the rally requested in this action,” Pauley wrote. “Given the intense public interest in these proposed events, the possibility exists that a demonstration estimated to be 75,000 could swell several magnitudes, overwhelm police and destroy the Great Lawn,” he wrote. “Plaintiffs concede that destruction of the lawn would be ‘a terrible thing.’” Judge Pauley said that the city’s reasons for denying the permit, “while at times inconsistent, are legitimate grounds under the permit regulations.” He continued, “Although other permits have been granted for other events, there were sufficient controls, such as rain dates and ticketing.” The judge rejected the plaintiffs’ claim that there are no other viable alternative venues to the Great Lawn. He approved of the alternative locations proposed by the Parks Department: the East Meadow in Central Park (which can accommodate up to 50,000 people); Flushing Meadow Park in Queens; and Van Cortland Park in the Bronx. Although he upheld the city’s right to deny the permit, Judge Pauley said: “Nevertheless, this Court is convinced that the parties could bridge their differences and fashion a revised permit that would allow a political assembly on the Great Lawn.” The permit application by the National Council of Arab Americans and Act Now To Stop War & End Racism Coalition was one of five requests for a place in Central Park around the time of the Republican National Convention. The city has found alternative demonstration sites for three of them. The suit by United for Peace and Justice is due back in court today before Justice Linda Silbermann of Manhattan Supreme Court.

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