Concerned Jewish Youth v. McGuire

MOORE, Circuit Judge:

This appeal raises interesting questions of the extent to which the First Amendment rights of demonstrators may be subjugated to an overriding governmental interest. Appellant Concerned Jewish Youth (“CJY”) sought a declaration under 42 U.S.C. § 1983 (1976) that restrictions applied to its demonstrations in front of the Russian Mission in New York City violated the First and Fourteenth Amendments. CJY also sought an order preliminarily enjoining the New York City police from restricting CJY’s demonstrations. CJY now appeals from a judgment denying the motion for a preliminary injunction and dismissing the complaint (Honorable Milton Pollack, District Judge, Southern District of New York). Because no new evidence was to be adduced at trial, the District Court consolidated the hearing on the motion with the action on the merits and issued one decision disposing of both matters reported at 469 F.Supp. 1296.

CJY is a membership association founded in 1975 and headquartered at Queens College in Flushing, New York. The purposes of CJY are mainly to combat Anti-Semitism, to preserve and strengthen Judaic heritage, and to work for the causes of Soviet and Arab Jewry. The group has maintained its independence from what CJY has characterized as other violence-oriented Jewish groups such as the Jewish Defense League (JDL). (Tr. 6, 16, 74). Of the approximately 300 members of CJY, there are 50 to 70 active members. (Tr. 15). However, as one of the co-chairmen of CJY testified, about 10% of these active members are also members of JDL or other activist groups and presumably endorse the more militant methods those groups employ. (Tr. 15, 16).

The members of CJY sought to protest on the sidewalk in front of the Russian Mission to publicize and condemn the Soviet Union’s treatment of Jews. The Russian Mission is on East 67th Street between Lexington and Third Avenues in the 19th police precinct in the City of New York. A co-chairman of CJY went to the 19th precinct in June, 1978 to apply for a permit to use sound equipment in front of the Mission. The Captain in charge, Mario Selvaggi, informed CJY that only twelve persons would be allowed to demonstrate in a “bull pen” diagonally across the street from the Mission.¹ Any additional demonstrators could protest on

East 67th Street between Park and Lexington Avenues. (Tr. 23, 143). In addition, Captain Selvaggi informed CJY that no sound device would be allowed on East 67th Street between Third and Lexington Avenues (/. e., on the Mission block). Sound devices would only be permitted on the northeast corner of East 67th Street and Lexington Avenue. (Tr. 25, 44). The Captain referred to the “Dollinger” decision, which outlined various restrictions which would be put on demonstrations by certain groups in front of the Mission.² Although CJY was not a party to that action, Captain Selvaggi applied the rationale behind the Dollinger restrictions to CJY.

CJY held a demonstration at the Russian Mission in June, 1978. In accordance with Captain Selvaggi’s instructions to CJY, only twelve persons were allowed inside the “bull pen”, and they were not permitted to have a sound device. A few other demonstrators stayed off the Mission block, as they had been instructed to do. Another demonstration planned for January 5, 1979 was not held because CJY felt that the demonstration, like the previous one, would be “ineffective and unsuccessful”. (Appellant’s Br. 15).

CJY makes various First Amendment claims that will be bifurcated for the purpose of discussion. The first claim is that the restrictions on the location and number of demonstrators violate their rights under the First Amendment. The second is that the restrictions on the use of a sound device impair their freedom of speech. We find that the time, place and manner restrictions in this case are necessary to further a strong governmental interest, and affirm the holding of the District Court.

I.

The right to a public forum for the discussion and interplay of ideas is one of the foundations of our democracy. “Wherever the title of streets and parks may rest, they 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.” Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939).

However, the right to speak, assemble, and discuss is not absolute. Although the “government has no power to restrict such activity because of its message”, Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972) (footnote omitted), it is “equally clear . . . that reasonable ‘time, place and manner’ regulations may be necessary to further significant governmental interests, and are permitted”. Id. (footnote omitted). The Supreme Court recently stated “We have often approved restrictions [on time, place and manner] provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information”. Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976). The balancing process which is required in these situations was best described by Justice Blackmun: “Although American constitutional jurisprudence, in the light of the First Amendment, has been jealous to preserve access to public places for purposes of free speech, the nature of the forum and the conflicting interests involved have remained important in determining the degree of protection afforded by the Amendment to the speech in question”. Lehman v. City of Shaker Heights, 418 U.S. 298, 302-303, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974) (citations omitted).

Thus, once the restrictions are found to be content-neutral, and it is determined that alternative avenues of communication are available, the question becomes one of balancing, based on the nature of the forum, the governmental interest in enforcing the restrictions against the inhibitions the restrictions impose on the speech-related activity. See, e. g., L. Tribe, American Constitutional Law, 682-84 (1978). We are convinced that these contested restrictions are not directed at the content of the speech. No one has suggested, nor has any evidence been proffered, that there is or has been any attempt to suppress the expression of CJY’s ideas merely because of what its members are saying.

There are easily accessible alternative channels for communication of CJY’s ideas. These alternatives include the twelve persons in the “bull pen” and the open access to the overflow areas on Lexington Avenue and further west on 67th Street. We do not think that the First Amendment guarantees news publicity for speakers, nor does it guarantee the continued fervor of one’s fellow demonstrators.³

The question then comes down to one of balancing the interests involved. We appreciate that the rights granted by the First Amendment are important, but hold that the governmental interest in the protection of the Russian Mission and the residents of the area outweighs the comparatively minor restrictions placed on CJY.

The government interest in providing security, safety and silence may, at times, be superior to asserted First Amendment rights. A statute, ordinance or regulation which embodies these interests will be valid even though it infringes on purported constitutional guarantees. Thus, the government may properly restrict First Amendment rights associated with jails (all demonstrations, Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966)); schools (loud behavior may be excluded, Grayned v. City of Rockford, 408 U.S. 104, 121, 92 S.Ct. 2294, 2306, 33 L.Ed.2d 222 (1972)); courthouses (statute prohibiting picketing valid on its face, Cox v. Louisiana, 379 U.S. 559, 564, 85 S.Ct. 476, 480, 13 L.Ed.2d 487 (1965)); and military installations (political campaign appearances may be banned, Greer v. Spock, 424 U.S. 828, 838, 96 S.Ct. 1211, 1217, 47 L.Ed.2d 505 (1976)).

The United States and the New York City Police have a substantial interest in protecting foreign officials and their property. The New York City Police, pursuant to their mandate in § 435 of the New York City Charter, must “preserve the public peace, . . . [disperse] assemblages which obstruct the free passage of public streets, sidewalks, parks and places; [and] protect the rights of persons and property . .” This includes the members and property of a Foreign Mission.

The United States is charged by various international obligations to protect diplomatic personnel and has recognized its obligation statutorily. See, e. g,, Article 22(2) of the 1961 Vienna Convention on Diplomatic Relations, 23 U.S.T. 3227, 3237, TIAS No. 7502 (protection of missions); Section 16 of the Headquarters Agreement between the United Nations and the United States (61 Stat. 758, 763) (Headquarters of member states to be protected from disturbance); and 18 U.S.C. § 112 (1976) (providing for severe criminal penalties for harassment or assault of foreign officials).

We do not think that the federal statute (18 U.S.C. § 112) was designed to take all power to control demonstrations at Foreign Missions away from local authorities as CJY argues. The relevant provision was enacted “to protect the peace, dignity and security of foreign officials and guests in their embassies, consulates, missions, residences and offices”. Sen.Rep.No. 92-1105, 92d Cong., 2d Sess. reprinted in U.S.Code Cong. & Admin.News 4316, 4328 (1972). Any actions local authorities may take to aid in protecting foreign officials furthers this intent of Congress in enacting the legislation. The law did not set maximum standards of protection, but rather set minimum standards, and specifically left open the situation where local authorities might use stricter controls. See Pub.L. 92-539, 86 Stat. 1070, 1073, § 3 (1972); Pub.L. 94-467, 90 Stat. 1997, 2001, § 10 (1976).

When the New York City Police instituted these restrictions on demonstrations in front of the Mission, they were simply protecting the Mission and its personnel. There have been numerous instances of violence at the Russian Mission. In 1971 and 1976 shots were fired at and into the Mission. In 1975, containers of red paint were thrown at the Mission splattering paint on walls and doors. Finally, in 1977 and 1978 there were problems with unruly demonstrators in front of the Mission. (Br. of U.S. at 2-3). More recently, the Russian Mission was bombed for the first time.⁴

The Police implemented the restrictions because of this violence and because they were aware that even a peaceful demonstration could be infiltrated by members of a violent group. (Tr. 85-86). One Co-chairman of CJY admitted that through deceit or inadequate screening by CJY, violent demonstrators could be among their ranks at a protest. (Tr. 54-56). Finally, one police officer testified that even peaceful demonstrators walking immediately adjacent to the Mission could become stirred to violence, due to the emotional reaction to seeing the Russian Mission. (Tr. 132). Because of the potential violence which might result when persons demonstrate in front of the Mission, the restrictions were properly imposed.

Testimony at trial established that the only reasonable place for the 12 demonstrators would be in the bull pen. (Tr. 127-30). There they can be seen from the Mission, but do not interfere with Mission personnel or property, and do not interfere with the synagogue, police station, schoolhouse, and firehouse across the street from the Mission. These restrictions are no greater than required to maintain the governmental interest involved in this case. Therefore, we agree with and affirm Judge Pollack’s holding:

“There is substantial empirical evidence that to allow expanded demonstrations in front of the Soviet Mission would unduly and unnecessarily impair this interest [in protecting the Soviet Mission]. The area presently designated for picketing was selected for reasons which make sound sense under the special conditions existing on the block; the requirement that after dark, demonstrators are asked to reduce the noise level is entirely reasonable; the object of the police to accommodate both the demonstrators’ right of assembly and the rights of nondemonstrators to peaceful and unobstructed passage consistent with safety meets fundamental concerns fairly. Basically the whole subject matter is one of degree and judgment and no better yardsticks than the ones employed are presented or apparent.” 469 F.Supp. 1296 at 1303.

The restrictions are in line with Justice Marshall’s declaration that “The nature of a place, ‘the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.’ ” Grayned v. City of Rockford, 408 U.S. at 116, 92 S.Ct. at 2303 (footnote omitted).

Finally, the privacy interests of the residents of the block must be briefly considered. “[T]he homes of men, sometimes the last citadel of the tired, the weary and the sick, can be protected by government from noisy, marching, tramping, threatening picketers and demonstrators . . . .” Gregory v. Chicago, 394 U.S. 111, 125-26, 89 S.Ct. 946, 954, 22 L.Ed.2d 134 (1969) (Black, J. concurring opinion). See also, Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971); Kovacs v. Cooper, 336 U.S. 77, 89, 69 S.Ct. 448, 454, 93 L.Ed. 513 (1949). Here, the residents of the block do have some right not to be obstructed, bothered, or abused by myriad demonstrators on their street. Although the New York Police have not explicitly instituted the restrictions because of this factor, they have tacitly acknowledged a need for privacy in adopting the standards set out in Dollinger.⁵ This privacy interest is an important consideration in tilting the balance toward the constitutionality of the restrictions.

Further supporting our holding is the fact that the restrictions impose only a minimal inhibition on the ability of CJY to communicate its ideas. The group is free to demonstrate diagonally across from the Mission where the Mission personnel can see and hear them. (Tr. 142). Additional space for demonstrating is available in the immediate area. When asked what was the purpose of the demonstration in front of the Mission, a co-chairman of CJY stated “To publicize the cause of Soviet Jewry". (Tr. 20). This suggests that the audience at which the demonstration was directed was the American public at large. We see little impact on the effectiveness of the communication, or on the ability of CJY to convey its ideas to those persons, because of these restrictions. The fact that the restrictions only minimally inhibit expression serve to lighten the balance on the side of CJY, confirming our holding that these restrictions are permissible.

One final point that must be discussed before addressing the “sound device” restriction is the manner in which these restrictions were imposed. Surely a narrowly drafted legislative enactment specifically outlining the restrictions would be constitutionally proper. But this case involves the decision of the police made according to power vested in them by a municipal ordinance. Pursuant to that ordinance, the police adopted restrictions on demonstrations in front of the Russian Mission, which had been outlined, in part, in a state court opinion.

The New York City Charter § 435 states, in relevant part,

“The police department and force shall have the power and it shall be their duty to preserve the public peace disperse unlawful or dangerous assemblages and assemblages which obstruct the free passage of public streets, sidewalks, parks, and places; protect the rights of persons and property, guard the public health, preserve order at . all public meetings and assemblages; [and] . . . control and restrict the movement of . pedestrian traffic for the facilitation of traffic and the convenience of the public as well as the proper protection of human life and health. . . . ”

Pursuant to this mandate, and after analyzing the previous violence, disturbances, and the potential for danger in front of the Soviet Mission, the New York City police sought to prohibit entirely demonstrations on the Russian Mission block. Later, in an action brought by residents of the block, Millan House Inc. v. Murphy, Civ. No. 10560 (Sup.Ct.N.Y. County 1971) Justice Isidore Dollinger of the New York County Supreme Court approved the police’s decision respecting demonstrations. But he held, among other things, that the groups involved in that suit would be limited to 12 demonstrators in the immediate vicinity of the Russian Mission. The police then evidently revised the restrictions on demonstrations to 12 persons in the “bull pen” area and added the overflow location. When Captain Selvaggi took command of the 19th Precinct, he made some minor changes in the restrictions on demonstrating, but basically kept the same arrangements. (Tr. 147).

We find that the restrictions imposed by the police pursuant to the mandate of § 435 are constitutionally proper. Although the ordinance gives the police a certain amount of latitude in protecting persons, “Condemned to the use of words, we can never expect mathematical certainty from our language”. Grayned v. City of Rockford, 408 U.S. at 110, 92 S.Ct. at 2300 (footnote omitted). “It is, of course, undisputed that appropriate, limited discretion, under properly drawn statutes or ordinances, concerning the time, place, duration, or manner of use of the streets [and presumably sidewalks] for public assemblies may be vested in administrative officials. . . . ” Cox v. Louisiana, 379 U.S. 536, 558, 85 S.Ct. 453, 466, 13 L.Ed.2d 471 (1965). This is especially true where, as here, the ordinance has been given a narrow construction by the police department. Furthermore, here there is little real effect on the legitimate expression of ideas.⁶ As has been pointed out, CJY is allowed to demonstrate and convey its feelings within sight of the Russian Mission. The use of the overflow area by the excess over 12 demonstrators does not have a real and substantial effect on CJY’s conveying the claimed iniquity of the treatment of Jews in Russia.

Additionally, the fact that the ordinance deals with police protection in New York City is of import. As Justice Frankfurther has said:

“We must be mindful of the enormous difficulties confronting those charged with the task of enabling the polyglot millions in the City of New York to live in peace and tolerance. Street-preaching in Columbus Circle is done in a milieu quite different from preaching on a New England village green.” Niemotko v. Maryland, 340 U.S. 268, 284, 71 S.Ct. 325, 328, 334, 95 L.Ed. 325, 328 (1951) (Frankfurter, J., concurring).

Likewise, demonstrating on a narrow sidestreet in the crowded Upper East Side of New York City presents more difficult problems than protesting on Main Street in a small community.

II.

We turn now to the restriction on the use of sound equipment on the Mission block. In this case, use of the device was not banned, but rather the location at which the loud speaker could be used was restricted. That restriction also passes constitutional muster, and we affirm the decision of the District Court on this point.

We note initially that because sound devices have a way of making a listener out of someone who may not wish to hear, their use may be curtailed. See Kovacs v. Cooper, 336 U.S. 77, 86-87, 69 S.Ct. 448, 453, 93 L.Ed. 513 (1949). This is because freedom of speech does not include the right to intrude or force one’s viewpoint on a hapless resident or bypasser. Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971). “In his home or on the street [an unwilling listener] is practically helpless to escape this interference with his privacy by loud speakers except through the protection of the municipality.” Kovacs, supra, 336 U.S. at 87, 69 S.Ct. at 453. Finally, the Supreme Court has pointed out “The hours and place of public discussion can be controlled”. Saia v. New York, 334 U.S. 558, 562, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574 (1948).

We hold that as applied to the appellants in this case the restrictions on their use of sound equipment, imposed after tacit consideration of the Dollinger decision and the New York Administrative Code,⁷ do not run afoul of the constitution. Implicit in the restrictions is the finding that there is an overriding governmental interest in maintaining the area immediately in front of the Russian Mission free from excessive noise. This is primarily for the benefit of the personnel working and living in the Mission, but is also for the benefit of the area residents and the various institutions near the Mission (a school, synagogue, firehouse, and police station). We cannot say that the restriction, adopted by the police department after consideration of the locale, imposes such a barrier to CJY’s right to free expression so as to be constitutionally infirm. See A Quaker Action Group v. Morton, 516 F.2d 717, 734 (D.C.Cir.1975). Such restrictions are especially necessary in the City of New York where multifarious interests associated with the millions of residents, visitors, and workers must be balanced so that all may live in mutual tolerance.

We affirm the decision of the district court.

1 . This bull pen was approximately 118' east of the front entrance of the Mission on the north side of East 67th Street (the Mission is on the south side). It was in front of an apartment building at a point on the block where the sidewalk is the widest. (Tr. 129).

2 . Millan House Inc. v. Murphy, Civ. No. 10560 (Sup.Ct.N.Y. County 1971). Dollinger was a suit brought by residents of the area against, among others, the New York Police and the JDL.

3 . At trial, a co-chairman of CJY stated that CJY’s right to convey its point of view even in the bull pen and surrounding areas was precluded because “I would assume that the press would not be very interested in covering 12 people in a bull pen” (Tr. 35), and that “the 11 people with me, were not very much inclined to think that the rally was a success and want to do it again. They were kind of embarrassed. I would have trouble getting those particular people to come back”. (Tr. 35-36).

4 . On Tuesday evening, December 11, 1979, the Russian Mission was bombed by a terrorist group. Four policemen and four employees of the Mission were injured in the bombing. N.Y. Times, Dec. 12, 1979, § A, p. 21, col. 1-6.

5 . Dollinger was a suit by residents of the area. Demonstrators were limited in the area specifically because of the previous infringement on the residents’ privacy right.

6 . Cf. Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125 (1975) (discussion of criteria used to determine if a state statute is valid on its face).

7 . Section 435-6.0 which deals with the regulation of sound devices in New York City.