Friday, November 20, 2009

No "new" parades on Fifth Avenue does not violate First Amendment

So you want to have a parade along Fifth Avenue, the crown jewel of parade routes in New York City? You probably can't do it, unless you were grandfathered in when New York City banned any "new" parades in 2001. Is this legal under the First Amendment? Yes.

The case is International Action Center v. City of New York, decided on November 17. In 2001, the City decided that Fifth Avenue parades put too much of a strain on traffic, street closures and other problems. The 2001 law says that "permits will be disapproved ... if the application seeks to hold a parade on Fifth Avenue ..., unless the parade was held at that location prior to the promulgation of these rules." So when International Action Center wanted to protest the Iraq War in 2005, it was denied the permit for Fifth Avenue and directed to another part of the City.

Prior restraint and public forum law under the First Amendment is counter-intuitive. That which makes sense to those unfamiliar with the complicated case law in this area is actually illegal. One line of cases holds that you cannot be sent to a different public forum if the one you want is available; you can still broadcast your message, but the re-direction violates the First Amendment because you are denied access to a public forum. On the other hand, if you are familiar with public forum caselaw, the Fifth Avenue Rule may seem unconstitutional. After all, new organizations who want to host a parade based on current events (such as the Iraq War) are shut out.

As the Court of Appeals (Chin, D.J., and Parker) sees it, this rule is content-neutral and thus constitutional. Plaintiff argues that the Fifth Avenue Rule "discriminates against public discussion on the topic of current events." Not so, says Judge Chin. "The Fifth Avenue Rule does not seek to regulate messages or distinguish between different types of speech. The Fifth Avenue Rule applies to all 'new' parades, irrespective of their content. There is nothing in the record to suggest that the City has banned new parades on Fifth Avenue because it is seeking to restrict speech relating to current events. Although the Fifth Avenue Rule may indeed have 'an incidental effect on some speakers or messages but not others,' that is true of many content-neutral regulations. Such an incidental effect does not convert a content-neutral regulation into a content-based on." Ward v. Rock Against Racism, 491 U.S. 781 (1989) supports this holding. The point is that whatever the message, either anti-war or in favor of a newly-created nation, the permit will be denied for Fifth Avenue because it is a "new" parade, not because of the particular message the parade organizers want to promote.

An interesting angle comes halfway through the opinion, where the Court of Appeals addresses the argument that the Fifth Avenue Rule has been inconsistenly applied and therefore does not promote the significant government interest of managing congestion. In 2004, after the City lost a preliminary injunction allowing Critical Mass to hold a bicycle rally, it allowed the event to take place on Fifth Avenue. Then, in 2006, after the highly-publicized Sean Bell shooting, in the interests of encouraging a peaceful march in the wake of Al Sharpton's threats to have tens of thousands of protesters on Fifth Avenue with or without a permit, the City allowed the march to proceed down Fifth Avenue. The Second Circuit deems these departures too "unique" to support plaintiff's claim that the Fifth Avenue Rule has been inconsistently applied.

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