A federal judge last month ruled that New York City's law governing parades down Fifth Avenue violates the First Amendment prohibition against prior restraints because it allows municipal decisionmakers to deny permits for discretionary reasons.
The case is International Action Center v. City of New York, 05 Civ. 2880 (SHS), 2007 U.S. Dist. LEXIS 86532 (Nov. 27, 2007). The case was filed by a group that wanted to protest the Iraq war on Fifth Avenue, a popular avenue for parades. So popular, in fact, that the City in 2001 banned any new parades there. That means that anyone who got permits in the past can march there now, but new applicants are foreclosed from parades. The exception to that rule is that the City will grant a permit to a new applicant "for occasions of extraordinary public interest," defined as parades "celebrations organized by the City honoring the armed forces; sports achievements or championships; world leaders and extraordinary achievements of historic significance." The question is: does this law violate the First Amendment?
It does violate the First Amendment, at least parts of it. The district court ruled as follows:
1. The law is content-neutral, and therefore consistent with the First Amendment in that it does not favor one message over another. While the law prohibits parades by new applicants, that is a content-neutral regulation because all new applicants are prohibited, not just applicants who oppose the war. The rule also leaves open other parts of the city for parades, no matter how unique Fifth Avenue is for a parade route.
2. However, the regulation violates the First Amendment because it gives decisionmakers too much discretion to deny permits on the basis of content. The plaintiff argued that this exception to new parades -- based on extraordinary circumstances of historical import -- is not a neutral test, as the importance of an event is in the eye of the beholder. The Supreme Court has long held that objective factors must govern the permit process in First Amendment cases. See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992). However, the district court held that, as limited by the specific examples -- including sporting events and military celebrations -- the rule is sufficiently objective. The plaintiffs win the case, though, because in practice the City has been violating those specific guidelines, allowing some protest marches but not others to proceed down Fifth Avenue. In ignoring those guidelines, the City has unconstrained authority to grant or deny permits for any reason, including the content of the protest. As this prior restraint on First Amendment speech violates the principle of discretionless neutrality, the City loses.