Olivieri v. Ward , 766 F.2d 690 ( 1985 )

CARDAMONE, Circuit Judge:

Before St. Patrick’s Cathedral on New York City’s Fifth Avenue is a 250 foot long public sidewalk whose width from the private steps of the Cathedral to the curb of Fifth Avenue is about 25 feet. Plaintiffs are members of a gay and lesbian Catholic group, Dignity-New York, claiming their right to freedom of speech. They seek to place 100 of their members on this sidewalk before the church to conduct a religious demonstration during the annual Gay Pride March. Defendants are the Police Commissioner and the Mayor of New York City and the City Police Department. Urging that its obligation to protect public order compels it to impose limits on the time, place and manner of plaintiffs’ demonstration, the Police Department proposes “freezing” (clearing) the sidewalk during the parade. Instead, it has set aside a demonstration area for plaintiffs on 51st Street, adjacent to the Cathedral, and a similar designated area on 50th Street for anti-gay demonstrators.

Courts have the solemn responsibility when the First Amendment rights of a minority clash with the rights of others to preserve one while maintaining the other, without sacrificing either. Translating cherished freedoms enshrined in our Constitution to the harsh realities of the street is not an easy task. Because the excuses offered for refusing to permit the fullest scope of free speech often are disguised, a court must carefully sort through the reasons offered to see if they are genuine. In this case we believe they are. For the last two years a fair format for Dignity’s demonstration on this occasion has evolved, which this year plaintiffs seek to expand. In order to maintain plaintiffs’ rights while safeguarding the rights of the anticipated 75,000 marchers, those attending Sunday church services at the Cathedral, and the public, the same general scenario as that followed in 1983 and 1984 should be adhered to again this year.

I

Plaintiffs Dignity-New York and a number of its members brought this action for declaratory and injunctive relief in the United States District Court for the Southern District of New York. Plaintiffs sought an order enjoining the Police Department from carrying out its plan to close off the sidewalk in front of St. Patrick’s Cathedral during the “Gay Pride March” along Fifth Avenue scheduled for this Sunday June 30, 1985, and thereby denying Dignity the right to demonstrate on the sidewalk during the march. Plaintiffs moved pursuant to Fed.R.Civ.P. 65 for a preliminary injunction.

By order dated June 18, 1985 the district court (Motley, Ch. J.) issued an order enjoining defendants from preventing a “reasonable” number of Dignity members from holding a demonstration on the Cathedral sidewalk, but expressly not prohibiting defendants from exercising their professional judgment to maintain order. The Police Department has appealed this order claiming that its plan constituted a reasonable time, place and manner restriction on plaintiffs’ First Amendment rights and that the district court abused its discretion by improperly substituting its judgment for that of the Police Department in weighing and determining the threat to public order. Plaintiffs also appeal claiming that the district court abused its discretion by issuing an order that was impermissibly vague because it failed to state a specific number of Dignity members that may remain on the Cathedral sidewalk. For reasons that follow, the order should be reversed and the preliminary injunction vacated.

II

As described by plaintiffs, the “Gay Pride March” is “the major public demonstration organized by the local gay and lesbian community every year.” The march was first held in New York City in 1970, and over the years the Police Department and the march’s organizers have established a cooperative relationship that has helped to make the annual march a success. Last year approximately 75,000 people participated. While the marchers have generally proceeded without incident, they have not been free of harassment and violence by anti-homosexual demonstrators. During the 1981 march some participants, including members of Dignity, were assaulted on the steps of St. Patrick’s Cathedral by self-appointed “protectors” of the Cathedral. As a result, the police detail was increased in 1982, but the sidewalk remained open. During the 1982 march, there were several instances in which provocative words were exchanged between demonstrators and counter-demonstrators, but no violence resulted. From 1976 through 1982 Dignity members stepped out of the line of march and gathered on the steps at the front of Fifth Avenue entrance of St. Patrick’s Cathedral and there participated in a prayer service that continued through the duration of the march.

During the 1983 and 1984 parades the steps and sidewalk directly in front of St. Patrick’s Cathedral were closed. Dignity officers were permitted to stop the line of march to lay a wreath on the sidewalk in front of the Cathedral and to hold a short prayer service in the street for 10-15 minutes. Both in 1983 and 1984 approximately 100 anti-gay demonstrators appeared. This year, as usual the parade will commence at Central Park South and run to the end of Fifth Avenue at Washington Square in Greenwich Village. The Police Department indicated that it would follow the same course for this year’s march as it followed in 1983 and 1984, that is, closing the sidewalk but permitting Dignity officers to conduct a short prayer service on the street in front of the Cathedral and to lay a wreath.

Less than two months ago Dignity instituted this action seeking to extend the demonstration rights granted them in 1983 and 1984. Plaintiffs want to locate 100 of their members on the sidewalk in front of the Cathedral for the duration of the march so that their demonstration may be witnessed by all the marchers. It is estimated that it will take several hours for the entire parade to pass a single spot. The Police Department avers that it does not have at hand sufficient resources to control what— in New York City Police Commissioner Ward’s opinion — is a reasonable risk of a riot on Fifth Avenue were such a sidewalk demonstration to be permitted during a march of this year’s size.

The district court concluded that any fear that the Gay Pride March in general and the Dignity demonstration in particular will attract more violence this year than in past years was merely “speculative.” The hearing record contains strong unrefuted evidence to the contrary. First, several lawsuits have been commenced against the City by groups attempting to enjoin the holding of the parade. Second, Catholic War Veterans and Knights of Columbus members have expressed strong opposition to gays gathering near the Cathedral.They and a group designated as the Committee to Defend the Cathedral are sending literature and mailings in an effort to recruit anti-gay demonstrators. Last year, some members of these groups overran the police barriers and claimed the police had “double-crossed” them by permitting Dignity to hold a service. Third, over the past year the Catholic Archdiocese of New York has taken a strong stand publicly against the economic interests of gay people by refusing to hire them. Fourth, Dignity members in the past year have demonstrated more than once at the Cathedral. Fifth, this year’s parade organizers met with the police in late May 1985 to inform them that according to their own “highly reliable” sources a large number of Orthodox Jews from Brooklyn planned to block the parade route near 49th Street. The Grand Marshall of last year’s parade said that if the police failed to remove the Jewish demonstrators forcibly, the marchers would. The police have considered all this information and as a result of their own investigation credit much of it. The police believe that the parade this year will be more volatile than in the past.

For these reasons, the City Police Department has concluded that prudence dictates that it must take reasonable precautions to protect the marchers and the public from violence. It is the Department’s position that no one should be allowed to demonstrate on the sidewalk in front of the Cathedral. The unrefuted testimony in the record establishes that it is Police Department policy not to permit demonstrations adjacent to the line of march, and not to permit demonstrations by antagonistic groups to be held near each other. Finally, this is not the only occasion when the sidewalk in front of a church has been closed to the general public. During the St. Patrick’s Day Parade, and most others, the sidewalk in front of St. Patrick’s is “frozen.” The same is done, according to police testimony, with the sidewalk in front of Fifth Avenue’s Temple Emanuel.

Ill

Although the right of access to a public forum for the discussion and interplay of ideas is fundamental in our democratic system, that right is not absolute. It is established that “reasonable ‘time, place and manner’ regulations may be necessary to further significant governmental interests.” Concerned Jewish Youth v. McGuire, 621 F.2d 471, 473 (2d Cir.1980) (quoting Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972)). The Police Department claims that its plan to freeze the sidewalk in front of St. Patrick’s Cathedral during the Gay Pride March is such a reasonable time, place and manner limitation.

The standard to be employed in evaluating such a restriction, as the court below recognized, is:

1. It must be content-neutral;

2. It must be narrowly tailored to serve a significant governmental interest; and

3. It must leave open ample alternative channels for communication.

Clark v. Community for Creative Non-Violence, — U.S.-, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984). This Court’s standard of review on appeal of a preliminary injunction is “whether issuance of the preliminary injunction, in light of the applicable legal standards, constitute^] an abuse of discretion.” LeSportsac, Inc. v. K Mart Corp., 754 F.2d 71, 74 (2d Cir.1985) (citing Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S.Ct. 2561, 2567-2568, 45 L.Ed.2d 648 (1975)). When evaluating whether the district court abused its discretion, we must let its findings of fact stand unless we find that they are clearly erroneous.

Dignity asserts that the Police Department’s proposed freeze of the sidewalk is not content-neutral because it is an ad hoc response to one specific controversy, that is a kind of “heckler’s veto.” On the contrary, the undisputed testimony on the record plainly shows that this action is completely consistent with an established policy of the Police Department to keep demonstrators away from the line of march of a parade, and to keep demonstrators and counter-demonstrators away from each other. The Department has developed this common sense policy in order to uphold its statutory obligation to “preserve public peace,” to disperse “assemblages which obstruct the free passage of public streets, sidewalks, parks, and places,” and to “protect the rights of persons and property.” New York City Charter § 435. In this case the restriction is being imposed on plaintiffs and their adversaries, both of whom have expressed to the Department a desire to occupy the same Cathedral sidewalk during the same June 30th March.

Further, the restriction has been narrowly tailored to further an important government objective. Unquestionably, maintenance of the public order is such an aim. Here, the Police Department fears an outbreak of violence during a march with an estimated 75,000 participants. The district court found no such danger of violence. After an exhaustive review of the hearing record, we can come to no other conclusion than that the district judge’s finding on this point is clearly erroneous. The record shows, as noted, that what has always been a confrontation situation promises to become much more volatile this year. Given this fact, the Department has not proposed that the demonstrators be silenced, it seeks only to keep the demonstrations a reasonable distance from both the marchers and from each other.

Finally, the demonstrators have been afforded ample alternative channels for communication. The Police Department’s proposal would allow the Dignity demonstrators to demonstrate in a side street near the Cathedral. It would also permit them, as in the past two years, to stop the parade, conduct a short service in the street in front of the Cathedral, and to lay a wreath on the Cathedral sidewalk. Thus the group is not stopped from conveying its message. They are merely not being allowed their preferred forum for demonstration.

Dignity argues that the threat of disruption and possible violence by anti-gay demonstrators does not justify the police ban on use of the sidewalk by Dignity to conduct its demonstration as it is the police’s responsibility to curb hostile demonstrators. We cannot agree. The fundamental responsibility of the police is to preserve public order and protect the marchers; the police legitimately are concerned' that they could not perform those functions if Dignity conducted its proposed sidewalk demonstration. This type of determination is uniquely within the Police Department’s expertise. It is no answer to say that the police nevertheless should find some way to accomplish those objectives while permitting the very Dignity demonstration that threatens the ability of the police to maintain control of the situation.

Accordingly, we hold that the district court abused its discretion by issuing the preliminary injunction. The order of the district court is therefore reversed, the injunction vacated, and the matter remanded to the district court with directions to order defendant to permit Dignity no less an opportunity to demonstrate than in 1983 and 1984. That is, Dignity should be allowed to demonstrate on a side street near the Cathedral and to halt the parade to conduct a short prayer service on Fifth Avenue in front of the Cathedral, which service includes laying a wreath on the Cathedral sidewalk.