Opinion
00 Civ. 8170 (JSM) WP LMS
December 23, 2002
Thomas H. Sear, Jones, Day, Reavis Pogue, New York, NY, attorneys for Plaintiff.
Gary Silverman, O'Dwyer Bernstien, LLP, New York, NY, attorneys for Defendant.
OPINION AND ORDER
Plaintiff Richard Hobbs commenced this action in August 2000, to challenge, on First Amendment grounds, Westchester County's refusal to permit him to perform a busking act at Playland Park during the 1999 and 2000 summer seasons. Mr. Hobbs sought to perform a clown act, give away balloon sculptures, engage in humorous social commentary, and accept donations from passersby "along a public way or at any place where the public was accustomed to strolling at Playland." (Complaint at 3). He sought declaratory and injunctive relief.
According to Dictionary.com, "to busk" means to play music or perform entertainment in a public place, usually while soliciting money.
Plaintiff also alleged that the County's refusal to permit him to perform at Playland violated the antitrust laws — a claim that neither he nor Defendants have addressed in their subsequent submissions.
Although Mr. Hobbs discussed the need to accept money from his audience in order to survive (Complaint at 16, 17-18, 19-20, 23, 28) in his pro se Complaint, he made no demand for damages. Nevertheless, Defendants have explored damages-related issues in discovery, and both sides have briefed damages issues in connection with their respective motions for summary judgment. The Court will address the question of damages with the parties at the conference at which it will determine how to proceed with respect to the issues that remain in this case.
Facts
Playland is a 279 acre recreational complex that has been owned and operated by the County of Westchester since 1928 (with the exception of a four year period in the 1980's, during which it was managed by a private company.) Playland is best known for its amusement park, which includes 45 rides, carnival type arcade games and concession stands that sell food and souvenirs. It is the only government owned and operated amusement park in the United States. Entrance to the amusement park area is free, but there is a charge for tickets for the rides and to play the arcade games. The concessionaires who run the game, souvenir and food booths pay fees to the County.In addition to the amusement park, Playland's facilities include picnic shelters (which are designated for private group use), public picnic areas, a miniature golf course, a swimming pool, a 1200 foot beach and boardwalk, a lake for boating, an ice rink, a Boardwalk Museum, and a 320 foot pier. Free entertainment is provided within the amusement park, including, at various times, musical revues, strolling bands, and costumed characters. Big Band concerts and dancing are held on the boardwalk. Fireworks displays take place on a regular basis during the summer months.
By letter dated May 22, 2000, Mr. Hobbs wrote to Mr. Joseph Montalto, Director of Playland, expressing his desire to engage in busking at Playland. He stated, "I hereby apply for whatever 'permit' you would require me to obtain if any in order to; sit on a bench (or my own chair) along a popularly traveled promenade at Playland, and perform my act and create balloon sculptures in the free exercise of my free speech . . ." This request was denied by Mr. Montalto, who stated that solicitation of "alms, subscriptions or contributions for any purpose" was prohibited in any Westchester County park, citing "Westchester County Law § 712.51 (General Ordinance Number 2)". Mr. Montalto stated that Playland was not a public forum, that the County had "retained the services of strolling performers and puppeteers," and that "[n]o other such performances are authorized at Playland." He also stated that, "General Ordinance Number 2 will be vigorously enforced in order to ensure the public's continued enjoyment of this amusement park . . . and to ensure that the operations of the County of Westchester and its vendors are not disrupted." Finally, he concluded, "If you wish to challenge the constitutionality of the County's assertion of its proprietary rights, I would urge you to do so by resort to judicial process rather than unlawful and disorderly conduct."
The record also contains an earlier email dated August 23, 1999, addressed to Westchester County Executive Andrew Spano, requesting any permit necessary to entertain at Playland, or, alternatively, "a letter informing me that I may enjoy my rights and should not be interfered with by any police officers or other county officials." In his Complaint, the Plaintiff also states that Mr. Montalto stated to him, during a telephone conversation, that Plaintiff would not be permitted to perform at Playland, even if he did not accept money from the public. (Complaint at 4)
Mr. Hobbs again sought such permission in 2001, and was again refused on the same grounds. In addition, by that time the County had learned, during discovery in connection with this litigation, that Mr. Hobbs had been convicted of sexual abuse of minors in 1978 and 1982. Accordingly, Mr. Montalto stated that he had concluded that in light of those circumstances it would constitute an unreasonable safety and security risk to allow Mr. Hobbs to have contact with children at Playland.
Subsequently, in April 2002, Westchester County adopted a "Playland Usage Permit — Permit Request" form, which requires basic information about the event or performance for which permission is sought, and disclosure regarding whether the applicant has ever been convicted of a crime. The form also contains a notice regarding the provisions of New York Correction Law § 753, sets out insurance requirements, and states that "solicitation of any member of the Public is strictly forbidden at Playland."
Plaintiff and Defendants have cross-moved for partial summary judgment in this action.
Discussion
As the analysis that follows will demonstrate, in large measure the dialogue between Plaintiff and the County of Westchester which preceded this lawsuit suffered from a lack of appreciation by both parties of the fact that Playland Park is more than the amusement park, a lack of precision in identifying where in the Park Plaintiff wished to perform, and a failure to recognize that Plaintiff arguably did not need a permit to exercise his First Amendment rights. While his Complaint suggests that the only place in the Park in which Plaintiff could profitably perform was the amusement area, his correspondence was not inconsistent with a desire to perform anywhere within the Playland Park complex. To the extent that Plaintiff sought a permit to perform in a public forum area of Playland Park, removed from the amusement area, he had a First Amendment right to do so, and did not need a permit. However, Mr. Montalto, the Director of Playland, would not issue one because of the County's unconstitutional ordinance prohibiting solicitation in any of its parks.
"Mr. Montalto, the director of the amusement park called Playland, refused to give Plaintiff a permit to perform . . . on the grounds of Playland Amusement Park . . . which is a Westchester County-owned and County-operated Amusement Park." (Complaint at 1); "[A busker's] particular form of this art requires a very specific type of audience . . . Playland itself and the atmosphere that exists there are vitally needed for this art form to have any hope of surviving in our culture." (Complaint at 8); "The venue must be a place where the public is gathering to be entertained and amused." (Complaint at 9).
In the motions before the Court the parties continue to take absolutist positions. Plaintiff argues that all of Playland Park is a traditional public forum in which he has an absolute right to perform under the First Amendment. Defendants argue that all of Playland is a nonpublic forum, which the County operates in its proprietary capacity, as a business, with the aim of making a profit, and therefore it can bar Plaintiff from performing anywhere in the Park complex. However, neither of these absolutist positions is correct. While the amusement area of Playland Park is not a public forum and the County can prohibit Plaintiff from performing there, other parts of the park, which are removed from the amusement area, are no different from other public parks, which have consistently been held to be public fora in which the exercise of First Amendment rights may not be prohibited.
I. First Amendment Forum Analysis
The activities proposed by Mr. Hobbs are protected by the First Amendment. International Society of Krishna Consciousness v. Lee, 505 U.S. 672, 112 S.Ct. 2701, 2705 (1992); United States v. Kokinda, 497 U.S. 720, 725, 110 S.Ct. 3115, 3118 (1990) ("Solicitation is a recognized form of speech protected by the First Amendment."); Loper v. New York City Police Dep't, 999 F.2d 699, 704-05 (2d Cir. 1993) ("It cannot be gainsaid that begging implicates expressive conduct or communicative activity."). See also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 115 S.Ct. 2338, 2345 (1995) ("[T]he Constitution looks beyond written or spoken words as mediums of expression."); Naturist Society, Inc. v. Fillyaw, 958 F.2d 1515, 1523 (11th Cir. 1992) (Restrictions must meet the same standard "whether the expression is 'oral or written or symbolized by conduct.'") (citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069 (1984)). However, the fact that property is owned by the government does not necessarily mean that it is open to the public for all First Amendment purposes. Kokinda, 497 U.S. at 726, 110 S.Ct. at 3119; United States Postal Service v. Council of Greenburgh Civic Assocs., 453 U.S. 114, 129, 101 S.Ct. 2676, 2684 (1981).
The determination of whether the government's interest in limiting the use of its property to its intended purpose outweighs the interest of persons who seek to use the property for the exercise of their First Amendment rights is made pursuant to a "forum analysis", which recognizes three types of public property. Kokinda, 497 U.S. at 726, 110 S.Ct. at 3119; USPS v. Council of Greenburgh Civic Assocs., 453 U.S. 114, 129, 101 S.Ct. 2676, 2685 (1981). The extent to which the government may control access depends on the nature of the forum. Cornelius v. NAACP Legal Defense Educational Fund, Inc., 473 U.S. 788, 105 S.Ct. 3439, 3447-48 (1985); Perry Educ. Assoc. v. Perry Local Educators' Assoc., 460 U.S. 37, 44, 103 S.Ct. 948, 954 (1983) ("The existence of a right of access to public property and the standard by which limitations upon such a right might be evaluated differ depending on the character of the property at issue."); Calash v. City of Bridgeport, 788 F.2d 80, 82 (2d Cir. 1986) ("The right of access to government property and the standards by which limitations on access must be evaluated vary according to the classification.").
A public forum is one that has traditionally been available for public expression. Streets and parks are such "quintessential traditional" public fora. Hawkins v. City and County of Denver, 170 F.3d 1281, 1286 (10th Cir.), cert. denied, 528 U.S. 871 (1999). As the Supreme Court stated in Hague v. CIO, 307 U.S. 496, 516, 59 S.Ct. 954, 964 (1939),
"(S]treets and parks . . . have immemorially been held in trust for the use of the public, and time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens."See also First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1128 (10th Cir. 2002) ("Expressive activities have historically been compatible with, if not virtually inherent in, spaces dedicated to general pedestrian passage.")
Content-based restrictions on First Amendment expression in a public forum are subjected to strict scrutiny, must serve a compelling state interest, and must be narrowly tailored to achieve that interest. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753 (1989);Perry, 460 U.S. at 45, 103 S.Ct. at 955; Hotel Employees and Restaurant Employees Union v. City of New York Dep't of Parks Recreation, No. 01-7602, 2002 U.S. App. LEXIS 23707, *19 (2d Cir. Nov. 18, 2002). Time, place and manner restrictions that are content-neutral must be narrowly drawn to achieve a significant state interest and leave open ample alternative channels for communication. Ward v. Rock Against Racism, 491 U.S. at 791, 109 S.Ct. at 2753; Cornelius v. NAACP Legal Defense Educational Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 3447-48 (1985); Hotel Employees, 2002 U.S. App. LEXIS 23707, at *20.
The second type of property is a designated public forum — a site that is not a traditional public forum, but "which the government has designated as a place or channel of communication for use by the public at large . . . or for use by certain speakers, or for the discussion of certain subjects." Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449; Calash v. City of Bridgeport, 788 F.2d 80, 82 (2d Cir. 1986) The creation of such a designated, or limited, public forum must be intentional. The government does not create such a forum by permitting limited discourse.Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449 ("The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse."). See also Perry, 460 U.S. at 47, 103 5. Ct. at 956; Young v. New York City Transit Authority, 903 F.2d 146, 161 (2d Cir.), cert. denied, 498 U.S. 984 (1990); Hawkins v. Denver, 170 F.3d 1281, 1288 (10th Cir.), cert. denied, 528 U.S. 871 (1999).
As long as a designated public forum remains such, restrictions on the exercise of First Amendment rights are governed by the same standards that apply to a traditional public forum. On the other hand, if a limited public forum is created for the use of certain speakers or for the discussion of certain subjects, the First Amendment protections applied to traditional public fora apply only to entities of a character similar to those that the government has chosen to admit to the forum. Hotel Employees, 2002 U.S. App. LEXIS 23707, at *45; Calash, 788 F.2d at 82.
Exclusions of other (not included) categories of speech from a limited public forum are treated in the same way as exclusions from a nonpublic forum. They need only be reasonable and viewpoint neutral. New York Magazine v. Metropolitan Transp. Auth., 136 F.3d 123, 128-29n.2 (2d Cir.), cert. denied, 525 U.S. 824 (1998)
The third type of government owned property is a nonpublic forum — one that is not "by tradition or designation a forum for public communication." Perry, 460 U.S. 37, 46, 103 S.Ct. 948, 954 (1983);Calash, 788 F.2d at 82. If a site constitutes a nonpublic forum, the government may "reserve the forum for its intended purposes" through reasonable viewpoint neutral restrictions on expression. Cornelius, 473 U.S. at 811, 105 S.Ct. at 3453 ("The First Amendment does not forbid a viewpoint-neutral exclusion of speakers who would disrupt a non-public forum and hinder its effectiveness for its intended purpose."); Perry, 460 U.S. at 46, 103 S.Ct. at 955; Loper v. New York City Police Dep't, 999 F.2d 699, 703 (2d Cir. 1993). Such restrictions need only be reasonable — they need not be the most reasonable or the only reasonable limitations possible. Cornelius, 473 U.S. at 808, 105 S.Ct. at 3452; Hawkins v. Denver, 170 F.3d at 1290. There is no requirement that the restriction be narrowly tailored or that the government's interest be compelling. Cornelius, 473 U.S. at 809, 105 S.Ct. at 3452. It also is irrelevant that the desired forum would offer the most efficient venue for delivering the speaker's message. Id., 473 U.S. at 809, 105 S.Ct. at 3452; Hawkins, 170 F.3d at 1292.
The Amusement Area
The amusement area within Playland Park has all of the earmarks of a nonpublic forum. That area is run by the County with the intent of making a profit, whether or not it actually has succeeded in generating a profit in any given year. Since it is the only government owned amusement park in the United States, it cannot be argued that amusement parks are traditional public fora. Nor has the County ever made the amusement area at Playland open for public discourse. To the contrary, the County has consistently attempted to maintain control over the environment at Playland to ensure that it remains "wholesome" and "family oriented." Accordingly, it has refused to permit performances by persons other than those brought in by American Entertainment Productions (with whom the County has an exclusive contract to provide all of the entertainment presented at Playland). It also has consistently refused to allow any other free speech activities, except for limited leafletting (with a permit) by candidates in local elections. Moreover, the County has consistently prohibited soliciting at Playland (or any other County-owned park) by any person or organization. That refusal is based on § 765.41 of the Westchester County Parks Regulations regarding Parks, Parkways and Recreational Facilities. That section provides that "[n]o person shall solicit alms, subscriptions or contributions for any purpose." This policy of prohibiting all solicitation at Playland also is explicit in the Playland Usage Permit adopted by the County in April 2002. In addition, the County has been consistent in its refusal to permit any activities within the amusement area (like giving away balloons, as Plaintiff proposes) that would compete with the business of the concessionaires who pay fees to the County for their booths.
The record shows that the amusement area did, in fact, generate a profit of $47,000 in 2000.
The fact that limited leafletting by political candidates has been allowed from time to time does not convert the area into a public forum.Kokinda, 497 U.S. at 730, 110 S.Ct. at 3121 (Selective access does not transform government property into a public forum.).
That permit states, "Please note that solicitation of any member of the Public is strictly forbidden at Playland."
Finally, the amusement area is largely self-contained. It is surrounded by fences and gates, which, in most areas, create clear demarcations between the amusement area and the other areas within Playland Park, and it does not serve as a natural thoroughfare for persons walking from place to place either within Playland or between the surrounding parks, facilities, and nearby residential areas.
As a nonpublic forum, the amusement area is governed by the rule that "[t]he state, no less than a private owner of property, his power to preserve the property under its control for the use to which it is lawfully dedicated." Perry, 460 U.S. at 46, 103 S.Ct. at 955. Consequently, "the challenged regulation need only be reasonable, as long as the regulation is not an effort to suppress the speaker's activity due to disagreement with the speaker's view." International Society of Krishna Consciousness v. Lee, 505 U.S. at 679, 112 S.Ct. at 2705.
The County states that its policies banning unauthorized First Amendment activities within the amusement area are necessary to attract its paying customers. It argues that performances by entertainers who have not been approved by American Entertainment could negatively impact the atmosphere sought within the amusement park, and would cause congestion and obstructions on the pathways within that area. It also argues that any activities (like giving balloon sculptures to children, as Plaintiff proposes) that compete with its concessionaires would undermine its efforts to make the amusement area profitable.
Taken in the context of the amusement area, which is a nonpublic forum, these are reasonable concerns that do not reflect hostility to a particular point of view. The County has a right to control the environment within the amusement area in a way that, in its best business judgment, will maximize its ability to generate a profit. Clearly, the congestion that would result if substantial numbers of people stopped to watch or participate in a clown (or other) act along the paths and mall area within the amusement park would make the area less attractive to many families. In addition, the County has an obvious interest in protecting its licensed, fee-paying vendors from direct competition within that area, since the fees paid by the concessionaires are necessary to the commercial success of the amusement park. Finally, the ban on solicitation within the amusement area is reasonable since "solicitation is unquestionably a particular form of speech that is disruptive of business." Kokinda, 497 U.S. at 733, 110 S.Ct. at 3123; International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 683, 112 S.Ct. 2701, 2708 (1992).
In Chicago Acorn, SEIU v. Metropolitan Pier and Exposition Authority, 150 F.3d 695, 703 (7th Cir. 1998), in which the Seventh Circuit considered similar issues arising from the operation of an entertainment center on the Navy Pier in Chicago, the court stated,
[b]ecause the MPEA owns the buildings on Navy Pier and depends for the upkeep of the pier on the commercial revenues that those buildings generate, it has a legitimate' and substantial interest in preventing activities that could kill those revenues.
Finding that "[s]electivity and restriction are of the essence of the commercial strategy that informs the MPEA's management of the [nonpublic portions of] the pier," the Court held that Plaintiffs in that case did not have the right to rent a nonpublic entertainment center if the MPEA believed that the spillover of such a use of the center would negatively affect its revenues from the shops and other concessions on the pier. 150 F.3d at 700. Thus, the Court found that the government's restrictions on First Amendment speech were reasonable, especially given that an alternative venue for reaching the Plaintiffs' intended audience was close at hand.
The government does not, however, have the total freedom to control its property that is enjoyed by a private owner. Accordingly, the Seventh Circuit stated in Acorn, that "nowhere is it written that government, when it embarks on essentially commercial ventures, is entitled to the same freedom of action as private venturers. It is not as if the ownership of shopping malls and convention centers were at the core of the American concept of government." 150 F.3d at 701. Thus, although the Seventh Circuit held in Acorn that the plaintiffs were not entitled to rent the entertainment center on the pier, it also held that they would be permitted to leaflet on the sidewalks and in other open areas within the pier, as long as they were not in areas where pedestrian traffic would be obstructed. They also would not be permitted to picket, stage marches, hold demonstrations, wave posters, use bull horns or public address systems, speak from a soap box, or solicit money or signatures. Acorn, 150 F.3d at 701.
Similarly, because the County's restrictions on First Amendment expression within the amusement area are reasonable, are reasonably related to their stated objectives, and are not related to the viewpoint of the proposed speaker, those regulations, as applied to the amusement area, pass constitutional muster.
The Picnic Shelters, Ice Rink, Boardwalk Museum, Pool, and Miniature Golf Course
Pursuant to the same analysis, the Court finds that the picnic shelters, which are reserved for private use for parties and corporate events, the ice rink, Boardwalk Museum, pool, and miniature golf course are nonpublic fora. All are contained areas, which are run with the intent of making a profit. None are the types of venue that are traditionally open for public speech and debate. Consequently, the County's restrictions on First Amendment expression are reasonable as applied to those areas.
The Boardwalk, Pier, Paths, Park and Picnic Areas
In addition to the areas discussed above, Playland Park includes park and picnic areas, paths, and a boardwalk, all of which share all the earmarks of traditional public fora. One path leads from the Edith Read Sanctuary to the parking lot and amusement area, and one leads from Rye Town Park to the end of the pier. These paths and the boardwalk apparently are accessible to foot traffic when the amusement facilities are closed, do not charge admission, and apparently are not operated with the aim of generating a profit. However, in its regulations, and its papers submitted on this motion, the County has not distinguished between the amusement area, ice rink, miniature golf course, picnic shelters, boardwalk museum, beach, and pool on the one hand, and the park, pier, boardwalk and paths on the other.
Several cases have acknowledged that beaches are not places where leafletting or other such First Amendment activities must be allowed, although holding, in each case, that such activities must be permitted on walkways and other areas that provide access to those beaches. See The Naturist Society v. Fillyaw, 958 F.2d 1515 (11th Cir. 1992); Paulsen v. New York State Office of Parks, Recreation and Historic Preservation, 839 F. Supp. 147 (E.D.N.Y. 1993). In any event, Plaintiff has not indicated any desire to perform on the beach at Playland.
Since sidewalks, streets and parks are "quintessential" public fora, the government bears the burden of establishing why some or all of these paths, park areas and the boardwalk should be considered different, and should not be open for First Amendment expression by the public. Perry, 460 U.S. at 46, 103 S.Ct. at 955; Gerritsen v. City of Los Angeles, 994 F.2d 570, 576 (9th Cir.), cert. denied, 510 U.S. 915 (1993). It also must be noted that such areas do not lose their historically recognized character as public fora simply because they abut government property that has been dedicated to nonpublic use. United States v. Grace, 461 U.S. 171, 180, 103 S.Ct. 1702, 1708 (1983). Nor is the fact that Westchester County has been consistent in refusing to permit First Amendment activities at Playland dispositive on this issue. As the Court stated in First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1130 (10th Cir. 2002),
Where courts have considered the traditional use of publicly accessible property for speech, they have refused to attribute legal significance to an historical absence of speech activities where that non-speech history was created by the very restrictions at issue in the case.See also Lederman v. United States, 291 F.3d 36, 43 (D.C. Cir. 2002) ("restrictions cannot bootstrap themselves into validity by their mere existence, even if prolonged.")
To the extent that the park areas, paths, boardwalk and pier within Playland Park are public fora, any restrictions on First Amendment expression are subject to strict scrutiny, and must be (1) content neutral, (2) narrowly tailored to serve a significant government interest, and (3) leave ample alternatives for communication. Ward v. Rock Against Racism, 491 U.S. at 791, 109 S.Ct. at 2753 (1989). On the other hand, if restrictions are content based, they must be necessary to serve a compelling state interest. Perry, 460 U.S. at 45, 103 S.Ct. at 955; International Society for Krishna Consciousness v. Lee, 505 U.S. at 678, 112 S.Ct. at 2705.
The County's total ban on solicitation anywhere at Playland is a content based restriction on speech. Loper v. New York City Police Dep't, 999 F.2d 699, 704-05 (2d Cir. 1993) ("It is not content neutral because it prohibits all speech related to begging."). However, the County has not articulated a compelling state interest that makes such a restriction necessary. As the Second Circuit stated in Loper,
[I]t does not seem to us that any compelling state interest is served by excluding those who beg in a peaceful manner from communicating with their fellow citizens. Even if the state were considered to have a compelling interest in preventing the evils sometimes associated with begging, a statute that totally prohibits begging in all public places cannot be considered "narrowly tailored" to achieve that end. Because of the total prohibition, it is questionable whether the statute can be said to "regulate" the time, place and manner related to begging; it certainly is not narrowly tailored to serve any significant governmental interest, . . . it does not leave open alternative channels for communication.Id., 999 F.2d at 705.
Accordingly, Westchester County Law § 712.5 banning solicitation in any County park and regulation § 765.41, banning any and all solicitation anywhere in Playland Park, and the April 2002 permit application procedure, which states that "solicitation of any member of the Public is strictly forbidden at Playland," cannot withstand scrutiny and are unconstitutional as applied to the public forum areas within Playland.
In addition to the total ban on solicitation at Playland, Westchester County regulation § 765.261, upon which the County apparently relied in requiring Plaintiff to obtain a permit to perform his act at Playland (and in creating its April 2002 permit application), is ambiguous as to whether it actually does apply to Plaintiff's request to perform. On the one hand, that section states that,
No person in any park or park street shall hold or sponsor any kind of public entertainment . . . without a permit from the department.
* * *
No person shall . . . exhibit or distribute any sign, placard, declaration or appeal of any description in any park or park street, except by permit.
On the other hand, that section may well not apply to Plaintiff because it also states that "[i]mpromptu or dramatic readings, poetry readings, or performances which do not become noisy or disruptive are allowed." Although Plaintiff's act does not involve amplification, it is not disputed that the County has taken the position that Plaintiff was required to obtain a permit to perform his act anywhere within Playland, and that it would not, and will not issue such a permit to him. It also is undisputed that Mr. Montalto made clear to Plaintiff that if he attempted to perform at Playland, he would be forced to leave, and/or arrested. Prior to learning of Plaintiff's convictions, that refusal was predicated on the ban on solicitation, and perhaps on § 765.261, since, when Plaintiff asked whether he could perform if he did not solicit donations, Mr. Montalto stated that Plaintiff would not be permitted to perform under any circumstances.
Perhaps this refusal was based on the belief that Plaintiff's performance would run afoul of yet another sentence within § 765.261, which states, "However, no such reading or performances may interfere with the ordinary enjoyment of the park facilities by others." However, Mr. Montalto could not properly make such a judgment without first seeing whether Mr. Hobbs' act did, in fact, disturb the public's enjoyment of the public forum areas of the park. Absent such an assessment, we have a situation analogous to a conviction under a statute sweeping in a great variety of conduct under a general and indefinite characterization, and leaving to the executive and judicial branches too wide a discretion in its application. Cantwell v. Connecticut, 310 U.S. 296, 309, 60 S.Ct. 900, 906 (1940).
Assuming that the permit requirement did, in fact, apply to Plaintiff's performance, the County did not comply with its own regulation (§ 765.261), which also states:
Upon application the commissioner shall issue such permit unless: (1) the use for which the permit is sought would substantially interfere with park use and enjoyment by the public; (2) the location sought is not suitable because of special landscaping and planting; (3) the location is not suitable because it is a specialized area, including but not limited to, a zoo, swimming pool, or skating rink; (4) the date and time requested has previously been allotted by permit; (5) it would impair the public safety, health or welfare. Whenever a permit is denied, alternative suitable locations and dates shall be offered to the applicant.
Even if these constitute reasonable time, place and manner restrictions, pursuant to which the County could properly refuse to grant Plaintiff a permit to perform at certain locations within Playland, there has been no showing that Mr. Montalto actually considered the factors enumerated, or that he offered Plaintiff any alternative location, either within Playland Park or nearby, or even in a park elsewhere in Westchester County.
Thus, Mr. Montalto's action was similar to that found unconstitutional in United Yellow Cab Drivers Assoc., Inc. v. Safir, No. 98 Civ. 3670, 2002 Dist. LEXIS 4866, *23 (S.D.N.Y. March 22, 2002). There, the Court stated that "Chief Anemone's response was the antithesis of a time, place or manner restriction; he simply ordered Deputy Chief Fox to inform Plaintiffs that no demonstration would be allowed under any circumstances."
Moreover, this provision, as applied, runs afoul of the First Amendment as well. It leaves the decision whether to grant or deny a permit to exercise First Amendment rights at any location within Playland Park in the discretion of the commissioner, who must determine, without clear standards, whether the activity at issue would "substantially interfere with park use and enjoyment by the public." Such a grant of discretion is rarely upheld.
In Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938-39 (1969), the Supreme Court invalidated an ordinance that permitted the city commission to prohibit any parade or demonstration on the city streets. In so doing, it stated that "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." See also Southeastern Promotions, Ltd v. Conrad, 420 U.S. 546, 554, 95 S.Ct. 1239, 1244 (1975) (application process constituted an impermissible prior restraint because it depended on the board's affirmative action, approval was not a matter of routine, and it involved the "appraisal of facts, the exercise of judgment, and the formation of an opinion" by the board); Cantwell v. Connecticut, 310 U.S. 296, 305-7, 60 S.Ct. 900, 904-5 (1940); Paulsen v. Lehman, 839 F. Supp. 147, 169 (E.D.N.Y. 1993) ("If the permit scheme 'involves appraisal of facts, the exercise of judgment, and the formation of an opinion," by the licensing authority, 'the danger of censorship and abridgement of our precious First Amendment freedoms is too great' to be permitted." (internal citations omitted)).
In Watchtower Bible and Tract Society of New York, Inc. v. Stratton, 122 S.Ct. 2080 (2002), the Supreme Court invalidated an ordinance that required anyone who wished to go door to door canvassing to obtain a permit, even though there was no charge for the permit, and it was routinely issued. In that case, the Court stated,
The mere fact that the ordinance covers so much speech raises constitutional concerns. It is offensive — not only to the values protected by the First Amendment, but to the very notion of a free society — that in the context of everyday discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. Even if the issuance of permits by the mayor's office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition."Id., 122 S.Ct. at 2089.
Here, the provision that allows the commissioner to unilaterally refuse to issue a permit to perform in any public forum area within Playland on the basis of that individual's judgment that the planned performance would "substantially interfere with park use and enjoyment by the public," without articulating any objective basis for that determination is far more invasive, and, as such, constitutes an impermissible prior restraint. New York Correction Law Article 23-A
This finding does not in any way undermine the long established principle that "[c]onduct remains subject to regulation for the protection of society", and that the state may "safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment." Cantwell v. Connecticut, 310 U.S. at 304, 60 S.Ct. at 903. Accordingly, nothing in this Opinion should be interpreted as implying that a ban on certain types of First Amendment expression, or a properly limited permit requirement, may not constitute reasonable time, place and manner restrictions if based upon real concerns about traffic safety, congestion and obstruction of pathways at certain times of day or during certain events (for example, when there are fireworks displays or band concerts on the boardwalk), or any other such issues. The County is free to enact such properly drawn regulations.
Defendants also contend that, regardless of the Court's disposition of the First Amendment issues raised by Plaintiff, the denial of a permit to Mr. Hobbs, who was convicted of sexual abuse of minors in 1978 and 1982, was, and continues to be, justified under New York Correction Law §§ 752 and 753, and under the Playland Usage Permit Request form, which was adopted by the County in April 2002, and incorporates the standards set out in those sections of the Correction Law. They argue that granting Mr. Hobbs a permit would "involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public."
Article 23-A was enacted in order to prohibit unfair discrimination in the employment or licensure of persons previously convicted of criminal offenses. N.Y. Correction Law § 753(1)(a). Accordingly, § 752 provides that an application for employment or a license shall not be denied because of a previous conviction, unless either (1) there is a direct relationship between the criminal offense and the specific license or employment sought; or (2) granting the employment or license would "involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public." Section 753 then sets out factors that a licensing agency must consider in determining whether a person falls within one of the exceptions to the, general proscription against discriminating against persons who have been previously convicted of a criminal offense.
"Employment" is defined in the statute as "any occupation, vocation or employment, or any form of vocational or educational training." N.Y. Correction Law § 750(5). "License" is defined as "any certificate, license, permit or grant of permission required by the laws of this state, its political subdivisions or instrumentalities as a condition for the lawful practice of any occupation, employment, trade, vocation, business, or profession." N.Y. Correction Law § 750(4).
These factors include: the public policy of the state to encourage employment and licensure of persons previously convicted of criminal offenses; the specific duties and responsibilities necessarily related to the license sought; the bearing, if any, the offenses would have on his fitness or ability to perform such duties and responsibilities; the time which has elapsed since the occurrence of the criminal offense; the age of the person at the time of the offense; the seriousness of the offense; any information produced by the person in regard to his rehabilitation and good conduct; and the legitimate interest of the agency in protecting property, as well as the safety and welfare of specific individuals or the general public. N.Y. Correction Law § 753. Even if §§ 752 and 753 applied to Mr. Hobbs' application, the record contains no indication that Mr. Montalto considered the necessary factors when he denied Plaintiff's application. In fact, Mr. Montalto testified that he knew practically nothing about Mr. Hobbs or his convictions when he denied him a permit to busk anywhere in Playland Park. This does not comply with the requirements of the statute. See Bonacorsa v. Van Lindt, 71 N.Y.2d 605, 609, 528 N.Y.S.2d 519, 520, 523 (1988); Marra v. City of White Plains, 96 A.D.2d 17, 22, 467 N.Y.S.2d 865, 869 (2d Dep't 1983).
The Defendants argue that Article 23-A applies to Mr. Hobbs' application for a permit to busk at Playland because he states that busking is his profession or occupation, and the requested permit falls within' the terms of § 750(4) in that it is a "permit or grant of permission required by the laws of this state, its political subdivisions or instrumentalities as a condition for the lawful practice of any occupation, employment . . . or profession." The Defendants also argue that even if § 753 does not apply directly to Plaintiff's request for a permit, the County has incorporated its standards into its permit request form.
"[A]lthough convicted felons do not enjoy the full panoply of constitutional rights, they are not totally deprived of these, including First and Sixth Amendment rights." Goodwin v. Oswald, 462 F.2d 1237, 1251 (2d Cir. 1972) (Oakes, C.J., concurring). See also Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); Barnett v. Rodgers, 410 F.2d 995 (D.C. Cir. 1969); Sobell v. Reed, 327 F. Supp. 1294 (S.D.N.Y. 1971); Seale v. Manson, 326 F. Supp. 1375 (D. Conn. 1971); Payne v. Whitmore, 325 F. Supp. 1191 (N.D. Cal. 1971); Fortune Society v. McGinnis, 319 F. Supp. 901 (S.D.N.Y. 1970). Since the requirement that Plaintiff obtain a permit in order to perform at Playland is a restriction on the exercise of otherwise permissible First Amendment expression, it will pass constitutional muster as a permissible time, place and manner restriction only if it is narrowly drawn, objective, and content-neutral. Shuttlesworth v. Birmingham, 394 U.S. at 150-51, 89 S.Ct. at 938-39. Moreover, if the application of the statute itself invades the Plaintiff's constitutional rights, the situation is no better when the relevant provisions are imported into a permit request procedure by regulation.
Defendants argue that Plaintiff should not be permitted to busk anywhere in Playland Park because children who see him perform may believe that they can trust him (a message with which the Defendants disagree), and he might, as a result, have the opportunity to sexually abuse them later. Although this may be true, the regulation at issue is not narrowly drawn to protect against a particular danger posed by a specific class of persons convicted of specific crimes. It is not limited, for example, to the regulation of specific conduct by convicted pedophiles, but rather gives the commissioner broad discretion to determine what classes of previously convicted persons should be generally prohibited from engaging in constitutionally protected speech. Moreover, the evaluation required by the standards set forth in these sections clearly involves an appraisal of subjective, content-based factors. As noted above, "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Shuttlesworth v. Birmingham, 394 U.S. at 150-51, 89 S.Ct. at 938-39. Therefore, the County cannot prevent the Plaintiff from exercising his First Amendment rights based on either Article 23-A or the equivalent provisions of the permit request form.
Ordinarily, "[t]he government may not prohibit speech because it increases the chance an unlawful act will be committed 'at some indefinite future time.'" Ashcroft v. The Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 1403 (2002) (citing Hess v. Indiana, 414 U.S. 105, 108, 94 S.Ct. 326, 328 (1973)). See also American Library Ass'n, Inc. v. United States, 201 F. Supp.2d 401, 474-75 (E.D. Pa. 2002) ("First Amendment jurisprudence makes clear that speech may not be restricted on the ground that restricting speech will reduce crime or other undesirable behavior that the speech is thought to cause. The mere tendency of speech to encourage unlawful acts is insufficient reason for banning it.") (internal citations omitted); Cantwell v. Connecticut, 310 U.S. at 309, 60 S.Ct. at 905-6 ("[A] State may not unduly suppress free communication of views . . . under the guise of conserving desirable conditions.").
This is necessarily so since decisions regarding employment or licensure involve, by definition, an exercise of discretion by the employer or licensing authority. Thus, they are basically incompatible with the standards that apply to restrictions on First Amendment expression.
This is not to say, however, that a narrowly drawn regulation specifically designed to protect children from pedophiles could not pass constitutional muster if it included sufficient procedural safeguards. The Courts have recognized that there are situations in which the First Amendment rights of convicted felons may be limited if there is a reasonable relationship between the restriction and the need to protect the public from the type of behavior for which the felon was convicted. See United States v. Schiff, 876 F.2d 272, 276 (2d Cir. 1989) (upholding a special condition of supervision that prohibited a convicted tax felon from advocating non-compliance with the tax laws). Moreover, many jurisdictions have laws that prohibit convicted felons from engaging in certain professions. See, e.g., 12 U.S.C. § 1818(e) (permitting federal banking agencies to prohibit certain convicted felons from employment in a financial institution) (upheld in Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488 (1997)); 29 U.S.C. § 504(a) and the New York Waterfront Commission Act, § 8 (N.Y. Laws 1953, cc. 882, 883) (barring certain convicted felons from holding union office) (upheld in De Veau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146 (1960)); N.Y. Judiciary Law § 90(4)(a) ("Any person being an attorney . . . who shall be convicted of a felony . . . shall upon such conviction, cease to be an attorney.") Convicted felons also do not have a right to serve on a federal jury unless their civil rights have been restored. 18 U.S.C. § 1865(b)(5).
Generally such statutes must contain provisions for challenging an agency's determination and judicial review thereof. See, e.g., Paul P. v. Farmer, 227 F.3d 98, 100 (3d Cir. 2000); Doe v. Pataki, 120 F.3d 1263, 1270 (2d Cir. 1997).
Similarly, the courts have recognized that the activities of convicted pedophiles may be subject to regulation in the interest of protecting children. Paul P. v. Farmer, 227 F.3d 98 (3d Cir. 2000); Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999), cert. denied, 529 U.S. 1053 (2000); Russell v. Gregoire, 124 F.3d 1079 (9th Cir. 1997), cert. denied, 523 U.S. 1007 (1998); Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997), cert. denied, 522 U.S. 1122 (1998) (all upholding "Megan's Law" type reporting and community notification statutes).21 It also is worth noting that the Supreme Court has recognized that activity otherwise protected under the First Amendment may be limited in the interest of protecting children. Ashcroft v. The Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 1396 (2002); Reno v. ACLU, 521 U.S. 844, 869, 117 S.Ct. 2329, 2343 (1997) ("[T]here is a compelling interest in protecting the physical and psychological well-being of minors which extend[s] to shielding them from indecent messages that are not obscene by adult standards."); New York v. Ferber, 458 U.S. 747, 756-57, 102 S.Ct. 3348, 3354 (1982) ("It is evident beyond the need for elaboration that a State's interest in safeguarding the physical and psychological well-being of a minor is compelling. . . . Accordingly, we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights.")
Summary Judgment
Summary judgment is appropriate only where there is no genuine issue as to any material fact. Koch v. Town of Brattleboro, 287 F.3d 162, 165 (2d Cir. 2002). In this case, issues of fact remain as to the nature of specific areas within Playland Park. The Court has found that Playland is made up of a mixture of nonpublic and public fora. Because, as stated previously, the Defendants have simply taken the position that all areas are nonpublic fora, and Plaintiff has contended, to the contrary, that all areas are public fora, the parties have not focused on whether specific areas fall within one category or another. Therefore, the Court will hold a hearing at which the parties may present evidence about the physical characteristics and patterns of usage of those areas. For example, it may be appropriate to consider an area outside, but within a certain limited distance of the amusement area, to be nonpublic because of the interest in protecting the revenues of the concessionaires within the amusement area. The parties should also present evidence concerning the status of vendors along the boardwalk, if any, and the traffic flow in various park areas, picnic areas, and paths within Playland Park, or any other matter that they consider relevant to the determination of where, within the Park, Plaintiff has the right to perform his act.
Conclusion
For the foregoing reasons, the Court finds that Westchester County's refusal to grant Plaintiff a permit to perform his busking act in the amusement area within Playland Park is a reasonable time, place and manner restriction in a nonpublic forum. The Court finds, on the other hand, that Westchester County regulation § 765.41, which prohibits all solicitation in Westchester parks and recreational facilities, is overly broad and unconstitutional when applied to public forum areas. It also finds that Westchester County regulation § 765.261 cannot constitutionally be applied to preclude Plaintiff from performing his act in public forum areas within Playland Park. Similarly, the provisions of N.Y. Correction Law § 753 cannot be applied to preclude his request for a permit to exercise his First Amendment rights within public forum areas of Playland Park because the required analysis necessarily involves an improper exercise of discretion on the part of the licensing authority. Nevertheless, fact questions remain as to the extent of the public forum areas within Playland Park.
The Court will hold a conference with the parties on January 27, 2002, at 4:30 p.m., to determine how to proceed with respect to the issues remaining in this case.