Wednesday, October 16, 2013

Restrictions on artist speech in NYC do not violate First Amendment

Everyone loves First Amendment cases ... but they are so hard to win! The government has much leeway in regulating speech in the public square, so long as the regulation is not directed at the speaker's message. This case drives that point home, and it throws in an important ruling on the deposability of high-ranking government officials.

The case is Lederman v. New York Parks and Recreation, decided on September 25. The plaintiffs are visual artists who challenged the City's rules governing the sale of artwork in public. In 2010, the City said artists may sell without a permit so long as they follow certain rules "relating to their activities, such as restrictions on the size and placement of their vending tables." In Union Square Park, portions of Central Park and elsewhere, "expressive-matter vendors" may only vend in limited designated spots on a first-come-first-serve basis. These rules are legal.

Under the "time, place and manner" doctrine, the government may regulate the time, place and manner of speech in public if the rules are content-neutral, are narrowly-tailored to serve a significant government interest and leave ample alternatives for the speech. The time, place and manner rule is quite friendly to the government, and it dooms the plaintiffs' case because they apply to all artist-vendors and alleviate congestion and preserve the aesthetics of the parks. The more restrictive regulations enacted in 2010 focus on the most heavily-used areas in the City. Government officials have no discretion in enforcing the rules so there is no fear or favor in issuing permits.

The plaintiffs wanted to take depositions of the Mayor and his deputy. The Supreme Court 72 years ago said that high-ranking governmental officials may avoid depositions in certain instances. Other Circuits have fleshed out this rule. Believe it or not, the Second Circuit has never addressed this. It does so now, holding:

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. High-ranking government officials are generally shielded from depositions because they have "greater duties and time constraints than other witnesses." If courts did not limit these depositions, such officials would spend "an inordinate amount of time tending to pending litigation.

Plaintiffs made no showing of any great need to depose the Mayor and his deputy. So the district court got it right in rejecting that effort.

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