Regulations governing the sale of artworks and books in New York City parks do not violate the First Amendment, the U.S. Court of Appeals for the Second Circuit ruled Wednesday.
The circuit said that regulations passed in 2010 to deal with an increase in vendors selling “expressive matter” in Union Square, parts of Central Park and other busy parklands are valid, content-neutral time, place and manner restrictions that do not run afoul of the right to free speech.
The court, in Lederman v. New York City Department of Parks and Recreation, 12-4333-cv, upheld a 2012 grant of summary judgment to the city by Southern District Judge Richard Sullivan (NYLJ, Oct. 3, 2012).
The court also articulated a standard for the “exceptional circumstances” that must exist to depose high-ranking public officials, as it ruled Sullivan was also correct to issue a protective order barring the plaintiff vendors from deposing Mayor Michael Bloomberg and former Deputy Mayor Edward Skyler.
Judges Jose Cabranes (See Profile), Peter Hall (See Profile) and Denny Chin (See Profile) issued their decision Wednesday after taking submissions in the case on Aug. 23. Chin authored the court’s opinion.
The city revised its vending regulations, R.C.N.Y. §§1-02, 1-05 in 2010 to allow vendors to generally vend in most city parks without a permit, subject only to restrictions on the size and placement of their vending tables.
But in overcrowded, highly-sought after venues—Union Square, Battery Park, High Line Park and portions of Central Park —the amended regulations designated only a limited number of slots on a first-come, first-served basis.
Plaintiffs Robert Lederman and Jack Nesbitt are visual artists who have sold their works on sidewalks and public parks for years and have repeatedly challenged on First Amendment grounds the authority of the Parks and Recreation Department to regulate sales.
Lederman and Nesbitt argued before Sullivan, and then the circuit, that the new vending regulations were heavy-handed, content-based restrictions that the city could not justify. Their argument failed to persuade the Second Circuit, with Chin noting that the regulations “apply to all expressive-matter vendors, regardless of the message the vendors’ wares convey.”
“They were passed not in an attempt to suppress vendors’ ability to market their wares, but to fill a gap in the larger regulatory scheme governing vending on Parks Department property,” Chin said.
“The City’s interests here—alleviating congestion and improving circulation, promoting the aesthetics of the parks, and ensuring that the parks are available to the public for a wide range of activities—are indisputably significant,” Chin said. “The regulations are narrowly tailored because the City imposed spot designations only in the most heavily used areas, while leaving all remaining park areas open for vending.”
And, importantly to the court, “the regulations allocate spot designations on a first-come, first-served basis without reference to the ideas or views expressed in the materials in question.”
Upholding the protective order barring the deposition of Bloomberg and Skyler, the court said the U.S. Supreme Court has long expressed concern about allowing high-ranking government officials to be deposed except in the most exceptional circumstances beginning with United States v. Morgan, 313 U.S. 409 (1941).
“We have not previously addressed this issue in a precedential decision,” Chin said. “We now hold that, to depose a high-ranking government official, a party must demonstrate exceptional circumstances justifying the deposition —for example, that the official has unique, first-hand knowledge related to the litigated claims or that the necessary information cannot be obtained through other, less burdensome or intrusive means.”
Under that standard, Chin said, the protective order here was appropriate.
Julie Milner of the Milner Law Office in Elmhurst, New York represents the plaintiffs.
“We are stunned that our esteemed panel at the Second Circuit did not agree with us that the city’s interests were pretextual and that the revised rules were designed to foreclose the parks to artists,” Milner said Wednesday. “We are reviewing the decision carefully to see if we have a basis for appeal to the Supreme Court.”
Assistant Corporation Counsel Julie Steiner represents the city.
“We’re very pleased that two courts have now found these regulations to be completely lawful and appropriate. As we argued and the Second Circuit agreed, the city’s interests in alleviating congestion, promoting parks’ aesthetics, and keeping park space available to the public are indisputably significant reasons for the regulations.”
The regulations have been in effect since 2010.
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