The case is Coe v. Town of Blooming Grove, 2008 WL 2735861 (SDNY July 7, 2008). My office represents the plaintiff, a Reverend who wanted to hold a peace rally in October 2006 on public property in front of the library. The Town argued that this property was not a public forum, and it amended the zoning code to reflect that position. Relying on the Second Circuit's leading case on the issue, Hotel Employees v. City of New York, 311 F.3d 534 (2d Cir. 2002), Judge Conner disagreed after reviewing photographs of the property, holding that the lawn has the physical characteristics of a public park:
The property is a small but open grassy area in a prominent location in the Village. The Lawn is open to the public and is located between a sidewalk-another “quintessential public forum[ ],” and the local library, a public building. Although the absence of walkways and benches may limit the extent to which members of the public enter or remain on the Lawn, the presence of war memorials indicates a desire to attract visitors. All of this convinces us that the Lawn is a public park for purposes of this decision, making it “part of a class of property which by history or tradition has been open and used for expressive activity.”
The district court also ruled that the Town's insurance requirements violate the First Amendment. Many communities require parade organizers to take out insurance in case someone gets hurt and sues the Town. There is an exception to this rule, however, as outlined in a smattering of court decisions over the years: even content-neutral insurance requirements can improperly restrict speech if the municipality does not make an exception for the indigent:
“Freedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way.” Thus, while the government may operate a permit system to regulate competing uses of a public forum, courts have not hesitated to strike down regulations that impose prohibitive financial costs on the exercise of First Amendment rights. . . . Specifically, several courts, including the Second Circuit, have held insurance requirements like those involved here unconstitutional as applied to persons who could not afford the premium.
After concluding that the Supreme Court requires an intermediate standard of scrutiny in reviewing these restrictions, Judge Conner ruled:
People of limited financial means who wish to exercise their First Amendment rights may not be shut out of the public square. Whatever marginal benefit the Town might derive from choosing not to exempt indigent persons from its insurance requirement does not justify the very substantial burden this decision placed on plaintiff's rights of freedom of speech and assembly.
A few other rulings of note in this case: first, the Town requires a permit for any group that wants to publicly assemble. Under precedents from around the Circuits, this requirement is not narrowly tailored to further the important government interest in placing the municipality on notice that crowds may gather, requiring a police presence. Since small groups do not place the same burden on government officials trying to keep order, the omission of any small group exception for the permit process violates the First Amendment.
Finally, a procedural issue. If the Town amends the ordinance during litigation, that tactic can moot out the suit. The Second Circuit used to hold that the district courts should address these challenges on the merits since the Town may revert to the offending provisions after the case ends. That case was National Advertising v. Town of Babylon, 900 F.2d 551 (2d Cir. 1990). The Court of Appeals has since modified that holding, ruling that the case is moot under those circumstances because we can assume that a Town board that votes to change the law it will not play these games when the case ends. Lamar Advertising v. Town of Orchard Park, 356 F.3d 365 (2d Cir. 2004).
The way around this is a damages claim. The plaintiff claimed that her inability to hold an adequate peace rally damaged her. The First Amendment recognizes that damages may result from the denial of speech rights. These damages may be low, but the case remains ripe for judicial review even if the challenged provisions have been repealed by the Town board. Although the defendants in this case twice amended the law to moot out the case, the damages exception to the mootness principle kept this case alive as to several of the claims.