NYC's parade restrictions violate the First Amendment

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.

The right to hang around

A recent decision from the New York Court of Appeals confirms the right to hang around without fear of an arrest for disorderly conduct. In People v. Jones, decided on November 20, 2007, threw out a disorderly conduct conviction because the arresting officer was unable to allege that the defendant caused public inconvenience in standing at 42d Street and Seventh Avenue in Manhattan.


The New York Criminal Procedure Law requires the arresting officer to set forth a prima facie case for the alleged criminal violation in the document that triggers the arrest. For disorderly conduct cases, the officer must allege that the defendant, "with intent to cause public invonvenience, annoyance and alarm, or recklessly create a risk thereof . . . obstruct vehicular or pedestrian traffic." But in this case, all the defendant did was to stand around on the street corner and refuse to make room for other pedestrians. This happened at 2:01 a.m., by the way. As the arresting officer explained in writing that

he observed defendant along with a number of other individuals standing around at the above location, to wit a public sidewalk, not moving, and that as a result of defendants' [sic] behavior, numerous pedestrians in the area had to walk around defendants [sic] . . . deponent directed defendant to move and defendant refused and as deponent attempted to stop defendant, defendant did run.

This is not disorderly conduct, according to the Court of Appeals. "Nothing in the information indicates how defendant, when he stood in the middle of a sidewalk at 2:01 a.m., had the intent to or recklessly created a risk of causing 'public inconvenience, annoyance or alarm.' The conduct sought to be deterred under the statute is 'considerably more serious than the apparently innocent' conduct of defendant here." Ergo, unless you are bothering other people, you have the right to hang around.

No judicial disqualification in freelance class-action case

This is not a civil rights case, but it's too interesting to ignore. A class action lawsuit filed on behalf of freelance writers suing certain publishing companies found its way to the Court of Appeals, where the judges on the panel realized they have a slight personal interest in the outcome, probably since one of the defendants is West Publishing, which publishes a variety of legal materials. The Second Circuit tackled this potential ethical issue head-on, determining that two of the judges ruling on the settlement can decide the case on the merits.

The class action alleged that freelance writers were not being sufficiently compensated when publishers later reproduced their material without their consent. The Supreme Court in 2001 addressed this issue in New York Times v. Tasini, 533 U.S. 483. The district court approved the settlement but, since some class members objected, the case went to the Second Circuit. That's where things get interesting.

The Court of Appeals, like most courts, operates without much sunlight until it issues a ruling. We don't know what the judges say to each other or how much difficulty the judges had in reaching a decision. But in Re: Literary Works in Electronic Databases Copyright Litigation, issued on November 29, Judge Walker explained why the Court determined to reach a decision in this case even though the judges have a small financial stake in the outcome of the case. Judge Walker wrote:

On March 6, 2007, after extensive pre-argument preparation, Judge Winter and I realized that there was a high probability that we held copyrights in works, such as law review articles and speeches, reproduced on defendants' databases. At oral argument on March 7, we publicly stated in open court that we would forego any financial interest in the settlement that we could possibly have now or in the future. No party brought to our attention that, because the claims period had expired without either of us asserting a claim, we were at that point ineligible to recover anything in the class action in any event.

The Court then asked the Committee on Codes of Conduct of the Judicial Conference for an opinion on whether Judges Winter and Walker should recuse themselves from the case. The committee answered in the affirmative and said they should not serve on the panel. Disagreeing with that opinion, Judges Walker and Winter decided to rule on the case anyway, reasoning that the law governing recusal is "at least ambiguous as to whether it should apply to judges who are parties to a lawsuit simply because they possess a small financial interest in one of the parties or in the subject matter of the litigation."

In ruling that recusal is not necessary in this case, the judges noted that most of their colleagues on the Second Circuit and probably all members of the Supreme Court would have at least some financial interest in a case like this, and "a reasonable person would not have know that we were class members prior to March 6, when our pre-argument preparation led us to that conclusion." Moreover, the judges told the parties in open court that they were going to forego any rewards from the class action settlement. The decision on the merits, also issued on November 29, is here.

Sexual harassment case against Fordham goes forward

Not that we're keeping score, but for the second time in two days, the Second Circuit has reversed the dismissal of an employment discrimination case, sending the case back to the district court for further proceedings. The moral of the story is that supervisors who watch pornography in the workplace are asking for a lawsuit.

The case is Patane v. Clark, decided on November 28. As alleged in her Complaint, Patane was a secretary at Fordham University, where one of her supervisors, Clark, "engaged in inapporpriate sexually-charged conduct in the workplace," including spending substantial time watching pornography on the office television and using Patane's computer to view hard-core pornographic websites. Patane also had to open Clark's mail, which included pornographic videotapes. Patane complained to a college EEO official who did nothing other than pass along the complaint to a college administrator. Clark, meanwhile, retaliated against Patane because of her complaints, removing nearly all her job responsibilities and keeping her out of the "loop" on office matters. One of Clark's friends furthered that campaign of retaliation when he became Chairman of an academic department, issuing a pretexual performance evaluation and attempting disciplinary action against her. The district court dismissed the case under Rule 12(b) because the Complaint failed to state a claim.

The Court of Appeals (Calabresi, Wesley and Brieant) disagreed, but not before pausing to affirm the district court's holding that the Complaint did not properly allege gender discrimination. Instead, drawing a subtle distinction, the Court of Appeals found that Patane did properly plead a hostile work environment based on gender. The mere presence of pornography in the workplace is enough to create a hostile work environment, even if, as the district court noted, plaintiff was not forced to watch it. Since some of the pornography was in the mail that Patane opened and it was also in her own computer, she has a viable sexual harassment claim. Nor does it matter that men were also exposed the to pornography in the workplace. It's offensive to women, and that's enough for a sexual harassment claim.

Patane also has a viable retaliation claim. We can infer that her immediate supervisor, Clark, knew about Patane's complaints about the harassment since "she complained about Clark's conduct to a Fordham employee whose job it was to investigate and receive such complaints." We also assume that "general corporate knowledge" about the complaints brought them to Clark's attention. While the district court ruled that Patane's job restrictions in the wake of her complaints were not sufficiently severe for a lawsuit, they still qualify as "adverse employment actions" because Clark removed nearly all her job duties. That's enough under Second Circuit precedent. It's also enough under a recent Supreme Court case, Burlington N. & Santa Fe v. White, 126 S.Ct. 2405 (2006), which holds that an "adverse employment action" consists of an employer response that would dissuade any reasonable employee from filing an internal complaint. The twist here is that, although Patane did complain a second time, holding the second complaint against her "would require that no plaintiff who makes a second complaint about harassment could ever have been retaliated against for an earlier complaint."

Dual race and gender harassment case goes to trial

The rare case alleging racial and gender harassment is going to trial in the Southern District, now that the Court of Appeals has reversed summary judgment in this employment discrimination case.

The case is Williams v. Consolidated Edison of New York, decided on November 27. The Court of Appeals issued this decision as a summary order, an odd choice considering it reversed summary judgment and the case raises some interesting legal issues. The precedential value of summary orders is limited, but it's always worth noting how the Second Circuit views these cases. The Court summarized the nature of the hostile work environment as follows:

Williams provided evidence of the following treatment or conduct over the course of approximately three years at the company: (1) one supervisor, John Dekanchuk, referred to Williams as a “black bitch” on more than one occasion and Fernandez, another supervisor, referred to her as a “bitch”; (2) Dekanchuk directed gender-based verbal abuse at Williams and Howe; (3) Dekanchuk insinuated that Williams and Oliver Jones were having a sexual relationship; (4) several male co-workers repeatedly used offensive and derogatory terms for women, such as “bitch” and “cunt”; (5) women encountered pornographic materials in the workplace on at least several occasions; (6) Williams and Jackie Howe experienced tampering and sabotage of their equipment; (7) male co-workers were unwelcoming to women and commented that they did not belong in the Brooklyn Flush unit; (8) male workers sought to avoid shifts with women and supervisors would honor their requests; (9) at least one employee made comments to the effect that supervisors should let the men know when women were menstruating; and (10) women were not provided with adequate locker room facilities for months, until October 2001, although the men were. In addition, one of Ms. Williams’s coworkers, Susan Kartell, states that she, too, was sexually harassed, including that she was called a “bitch” and a “cunt” on a regular basis, that supervisors ignored her complaints about this verbal abuse, and that one supervisor threatened to suspend her from her job if she continued to complain.

If credited by the jury, this evidence supports a finding that Williams was subjected to a hostile work environment on account of her gender. The Court of Appeals also found that the jury could find that Williams was subjected to a racially hostile work environment: "One deponent testified that Dekanchuk and Steve Raft, a coworker, used the word 'nigger' and that other employees used racially offensive language such as 'boy' to talk down to black employees." This case raises a few issues that surface from time to time: (1) dual sexual and racial hostile work environment claims for the same plaintiff and (2) the finding that co-workers who use the word "nigger" automatically create a hostile work environment.

The plaintiff may hold Consolidated Edison liable for this harassment. This portion of the decision is most interesting in that, while the company did not completely ignore the complaints of workplace harassment, it did not take the complaints seriously enough. On the racial harassment, "several of Williams’s co-workers verified her allegations that men sought to avoid working with women and supervisors honored their requests and that African-American employees were sent more frequently to high-crime neighborhoods. Yet inexplicably, the report summarizing the investigation did not discuss these co-worker accounts in reaching its conclusion that there was no record of discriminatory work assignments." Without any evidence that Con Ed followed up on this information, the jury can find that the company failed to take appropriate remedial action in response to Williams's complaints. The racial harassment can also be imputed to Con Edison because the human resources officer arguably performed a perfunctory investigation into Williams' complaint.

This issue of the adequacy of the employer's response on the harassment claims is ultimately for the jury: "although “[a] fact-finder may well conclude that [the employer]’s responses were reasonable and adequate,” we cannot “say as a matter of law that the record evidence compels only that result.”

Border searches following Islamic conference in Toronto did not violate Constitution

The terror threat continues to pre-occupy the Second Circuit Court of Appeals. This time it ruled that innocent Muslims who were searched at the U.S.-Canadian border following a three-day Islamic conference could not challenge the legality of those searches under the U.S. Constitution.

The case is Tabaa v. Chertoff, decided on November 26. It started when the Department of Homeland Security learned about an Islamic conference in Toronto scheduled for the final week of 2004. The government learned that individuals who were associated with terrorist organizations would be in attendance and that the conference would serve as a possible meeting place for terrorists. But not all in attendance (approximately 13,000) were terrorists. The five plaintiffs who were detained and searched upon entering the United States had no criminal records and the government had no reasonable suspicion that they had any terrorist ties. Since they attended the conference, however, they were subjected to extensive questioning about the conference and their alliances and they were also frisked and searched. Some claimed physical abuse during the detention. While the database no longer contains their fingerprints or photographs, the government continues to hold onto the plaintiffs' identifying information, i.e., their names, date of birth and address.

The Second Circuit held that the law provides no remedy for these plaintiffs, not even expungement of their personal information from the database. Although the Fourth Amendment prohibits unreasonable searches and seizures, the Supreme Court has granted the Federal government broad authority to conduct routine searches at the border. The question is whether this search is "routine" (presumed legal) or sufficiently invasive to require a showing of "reasonable suspicion" before conducting the search. While there may have been a stigma associated with aspects of the search, overall the search was not materially different from other border searches, and pat-down searches and fingerprinting/photographing are not too invasive in this context. While the searches lasted from 4-6 hours, that is more like the (legal) one-hours delay than the (illegal) overnight delays.

The cumulative effect of the search procedures at the border also does not violate the Constitution. The Court reasoned:

And while we leave open the possibility that in some circumstances the cumulative effect of several routine search methods could render an overall search non-routine, we do not find that to be the case here. While plaintiffs were undoubtedly made uncomfortable and angry by the searches, and they may understandably have felt stigmatized, their personal privacy was not invaded in the same way as it would have been had they been subject to a body cavity or strip search, or involuntary x-ray. Because the decisive factor in the analysis is invasiveness of privacy – not overall inconvenience – we find that CBP’s searches of plaintiffs, considered in their entirety, were routine in the border context, albeit near the outer limits of what is permissible absent reasonable suspicion.

The plaintiffs also claimed that the searches violated their First Amendment right of association. The Second Circuit agreed that the plaintiffs did suffer a "cognizable burden" in that the searches may deter them from attending similar conferences in the future. But since the government had a compelling need for the searches (i.e., deterring a terrorist attack), the plaintiffs' rights give way to the need for border security. As it argued that known terrorists were going to attend the conference, the government also proved there was no other reasonable way to further this compelling interest other than to search everyone entering the United States. For you constitutional scholars out there, the Court of Appeals applied the Supreme Court's ruling seminal ruling on freedom of association, Roberts v. United States Jaycees, 468 U.s. 609 (1984), in this context. For these reasons, the Second Circuit also rejected the plaintiffs' argument that the searches violated their religious freedom.

A billion dollars in punitive damages!

Even huge punitive damages awards in favor of a multinational corporation raise constitutional questions. If the award is too large, it violates constitutional due process. That was the argument in Motorola Credit Corp. v. Uzan, decided by the Court of Appeals on November 21.

The opening paragraph sets the stage for international intrigue, lies and money:

In this appeal, the Uzan family of Turkey challenges the district court’s award of $1 billion in punitive damages against it. The court based the punitive damages award on its findings that appellants “engaged in a coordinated campaign of lies and misrepresentations in order to swindle Motorola of more than $2 billion” and that, “threatened with exposure, [appellants] resorted not only to further lies and corporate manipulations but even to obstruction of justice and, ultimately, misrepresentations to this Court.”

The case grew out of a business relationship between Motorola/Nokia and one of the world's wealthiest families, situated in the country of Turkey, which controls over 100 companies. As explained by the Second Circuit, "the district court concluded that defendants fraudulently obtained loans from Motorola for more than $2 billion and from Nokia for approximately $800 million, purportedly to finance the development of the Uzans’ telecommunications business in the Telsim company."

The case was tried in the Southern District of New York, but the court applied Illinois law. After finding that punitive damages award was appropriate under Illinois law, the Second Circuit analyzed it under the Due Process Clause. While the Clause does not speak to punitive damages, the Supreme Court has repeatedly held that grossly-excessive punitive damages awards can violate due process. The standard, under BMW of N. Am., Inc. v. Gore, 517 U.S. 559,
(1996) contains the following guideposts:

(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damage award; and (3) the difference between the punitive damages awarded by the [fact-finder] and the civil penalties authorized or imposed in comparable cases.

After trial, the district court awarded $2,132,896,905.66 in compensatory damages. It awarded another $2 billion in punitive damages. The Second Circuit remanded the punitive damages award because it was too high. So the district court cut it in half. Hence this appeal.

To say the least, a billion dollar punitive damages award would be excessive for most defendants. Not here. In this case, the Court of Appeals focused on the reprehensibility of defendants' misconduct. That Motorola did not suffer physical harm did not matter. In upholding the $1 billion award, the Court of Appeals credited the district court's findings: "[I]n the broader sense, it is hard to imagine financial misconduct that was more reprehensible than that of the defendants here, perpetrating at an international level an immensely complicated fraud that inflicted severe economic injury and sought to make a mockery of the judicial proceedings in several different countries."