Lederman v. New York City Department of Parks & Recreation

731 F.3d 199, 86 Fed. R. Serv. 3d 1137, 2013 WL 5340475, 2013 U.S. App. LEXIS 19575
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 25, 2013
DocketDocket No. 12-4333-cv
StatusPublished
Cited by103 cases

This text of 731 F.3d 199 (Lederman v. New York City Department of Parks & Recreation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lederman v. New York City Department of Parks & Recreation, 731 F.3d 199, 86 Fed. R. Serv. 3d 1137, 2013 WL 5340475, 2013 U.S. App. LEXIS 19575 (2d Cir. 2013).

Opinion

CHIN, Circuit Judge:

Plaintiffs-appellants Robert Lederman and Jack Nesbitt appeal from a judgment of the United States District Court for the Southern District of New York (Richard J. Sullivan, /.), granting summary judgment to defendants-appellees New York City Department of Parks and Recreation, former Parks Commissioner Adrian Benepe, the City of New York, and Mayor Michael Bloomberg (collectively, the “City”), dismissing the complaint. Plaintiffs also appeal from the District Court’s June 1, 2011 order granting the City’s motion for a protective order under Fed.R.Civ.P. 26(c). We affirm.

BACKGROUND

Plaintiffs are “visual artists” who sell their works on sidewalks and in public parks in New York City. Over the years, the City has attempted to regulate the sales of “expressive matter” — including books, art, sculpture, and photos — in certain parts of New York City, and plaintiffs have challenged the City’s efforts on First Amendment grounds. See, e.g., Bery v. City of New York, 97 F.3d 689 (2d Cir.1996); Lederman v. Giuliani, No. 98 Civ. 2024(LMM), 1998 WL 186753 (S.D.N.Y. Apr. 17,1998).

Between 2001 and 2010, the number of expressive-matter vendors increased significantly in certain City parks. In 2010, the City revised the vending regulations in response to this increase. See 56 Rules of the City of New York (“R.C.N.Y.”) §§ 1-02, 1-05. Under the revised regulations, expressive-matter vendors may generally vend, without a permit, anywhere in the City’s parks, provided they comply with certain minimum requirements relating to their activities, such as restrictions on the size and placement of their vending tables. See id. § l-05(b)(4)-(8). To sell their wares in Union Square Park, Battery Park, High Line Park, and portions of Central Park, however, expressive-matter vendors may only vend in a limited number of designated spots, allocated on a non-discretionary first-come, first-served basis. See id. § l-06(b)(2)-(3). Plaintiffs commenced this action to challenge the 2010 revisions.

During discovery, plaintiffs sought to take the depositions of Mayor Bloomberg and former Deputy Mayor Edward Skyler. On June 1, 2011, the District Court issued a protective order barring those depositions.

On September 30, 2012, the District Court granted summary judgment to defendants, dismissing the complaint and holding, inter alia, that the 2010 revisions did not violate the First Amendment. See Lederman v. N.Y.C. Dep’t of Parks & Recreation, 901 F.Supp.2d 464, 479 (S.D.N.Y.2012).

This appeal followed.

DISCUSSION

On appeal, plaintiffs contest: (1) the District Court’s holding that the vend[202]*202ing regulations are valid content-neutral time, place, and manner restrictions; and (2) the District Court’s order barring the depositions of Mayor Bloomberg and former Deputy Mayor Skyler. We review an order granting summary judgment de novo and “resolvfe] all ambiguities and draw[ ] all permissible factual inferences in favor of the party against whom summary judgment is sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir.2010) (quoting Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009)). We review an order granting a protective order for abuse of discretion, which we will find only if the district court’s decision rests on an error of law or a clearly erroneous finding of fact, or if the decision cannot be located within the range of permissible outcomes. See S.E.C. v. TheStreetCom, 273 F.3d 222, 228 & n. 6 (2d Cir.2001).

A. Summary Judgment

Expressive matter sold in public places is entitled to full First Amendment protection. Bery v. City of New York, 97 F.3d 689, 696 (2d Cir.1996). Even in public forums, however, the government may impose reasonable content-neutral restrictions on the time, place, or manner of protected speech. Hous. Works, Inc. v. Kerik, 283 F.3d 471, 478 (2d Cir.2002) (citing Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)).

The Supreme Court has held that “the principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys.” See Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (alteration in original) (citation and internal quotation marks omitted). “[L]aws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content neutral.” Id. at 643, 114 S.Ct. 2445.

Content-neutral time, place, and manner restrictions are subject to intermediate scrutiny. Mastrovincenzo v. City of New York, 435 F.3d 78, 98 (2d Cir.2006). Such restrictions pass constitutional muster if they are narrowly tailored to serve a significant government interest, while leaving open ample alternative channels for communication of the information. Id.; see Watchtower Bible & Tract Soc’y of New York, Inc. v. Village of Stratton, 536 U.S. 150, 175, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002).

Plaintiffs argue, as they did before the District Court, that the vending regulations are content-based restrictions, which lack proper justification and are unduly restrictive. We agree with the District Court that the regulations are content-neutral restrictions that operate within constitutional limits.

The vending regulations apply to all expressive-matter vendors, regardless of the message the vendors’ wares convey. They were passed not in an attempt to suppress vendors’ ability to market their wares, but to fill a gap in the larger regulatory scheme governing vending on Parks Department property.

The City’s interests here — alleviating congestion and improving circulation, promoting the aesthetics of the parks, and ensuring that the parks are available to the public for a wide range of activities— are indisputably significant. The regulations are narrowly tailored because the City imposed spot designations only in the most heavily used areas, while leaving all remaining park areas open for vending. See R.C.N.Y. § l-05(b)(2)-(3). Moreover, the regulations allocate spot designations on a first-come, first-served basis without [203]*203reference to the ideas or views expressed in the materials in question.

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731 F.3d 199, 86 Fed. R. Serv. 3d 1137, 2013 WL 5340475, 2013 U.S. App. LEXIS 19575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lederman-v-new-york-city-department-of-parks-recreation-ca2-2013.