city reply to petition

8/13/2019 City REPLY to Petition

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No. 13-776

In the

Supreme Court of the United States

ROBERT LEDERMAN AND JACK NESBITT,Petitioners,

-against-

NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, a municipal agency, ADRIANBENEPE, Parks Commissioner in his individualand official capacity, CITY OF NEW YORK, amunicipality, and MICHAEL BLOOMBERG,Honorable Mayor in his individual and officialcapacity,

Respondents._________________

ON P ETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF A PPEALS

FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION TO PETITION

JEFFREY D. FRIEDLANDER, Acting Corporation Counsel of

the City of New York, Attorney for Respondents,LEONARD J. KOERNER,Counsel of Record ,100 Church Street,New York, New York 10007.(212) 356-0844 or [email protected]

EDWARD . F.X. HART ,J ULIE STEINER ,

of Counsel.

January 23, 2014
mailto:[email protected]:[email protected]


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QUESTIONS PRESENTED

1. Did the United States Court of Appeals for the Second Circuit properly affirm theDistrict Courts grant of summary judgment to theCity of New York, where the expressive-matter

Vending Rules are content-neutral time, place andmanner restrictions that are narrowly tailored toadvance significant government interests andafford petitioners ample alternative channels forcommunication?

2. Did the United States Court of Appeals for the Second Circuit also correctly affirmthe protective order granted to the City of New

York so as to prevent petitioners from deposingthen-Mayor Michael Bloomberg and former DeputyMayor Edward Skyler, where neither possessedany personal knowledge regarding the basis for thepromulgation of the Vending Rules?

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED....................................I

COUNTER-STATEMENT O T!E CASE....... ...."

#a$%&round ....................................'

The Re(e)ant Statutor* rame+or%'

The Order of the Se$ond Cir$uitCourt of Appea(s................',

In affirmin& the Distri$t Court ,".,d "// 0Pet. App. A-"a-/a1

the Se$ond Cir$uit he(d that

the Cit*2s e3pressi)e-matterre&u(ations operated +ithin$onstitutiona( (imits 4e$ausethe* +ere reasona4(e $ontent-neutra( restri$tions on thetime p(a$e and manner ofsu$h prote$ted spee$hnarro+(* tai(ored to ser)e asi&nifi$ant &o)ernmentinterest and (eft open amp(ea(ternati)e $hanne(s of

$ommuni$ation. ," .,d at'5' 0Pet. App. A-6a-7a1.....',

In this re&ard the Se$ond Cir$uitfound that the re&u(ations+ere $ontent-neutra(restri$tions 4e$ause the*app(ied to a(( e3pressi)e-matter )endors re&ard(ess of

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the messa&e the* $on)e*ed.," .,d at '5' 0Pet. App. A-

7a1. The Cir$uit hi&h(i&htedthat the re&u(ations +ere8passed not in an attempt tosuppress )endors2 a4i(it* tomar%et their +ares 4ut to fi((

a &ap in the (ar&er re&u(ator*s$heme &o)ernin& )endin&on Par%s Department

propert*.9 Id. ...................',

REASONS OR DEN:IN; T!E PETITION......'6

T!E SECOND CIRCUIT2S DECISION IS


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TABLE OF AUTHORITIES

CASES

Bery v. City of New York , 97 F.3d 689 (2d Cir. 1996),

cert. denied ,520 U.S. 1251 (1997)..3; 4-5; 13; 14; 17; 29

Carew-Reid v. Metropolitan Transp. Auth.,903 F.2d 914 (2d Cir. 1990) ....................28

City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) .......28-29

Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) .....24; 25;26

Dua v. New York City Dept. of Parks and Recreation ,84 AD3d 596 (1 st Dept., 2011) ................10

Heffron v. Intl Soc. for KrishnaConsciousness, Inc. 452 U.S. 640 (1981) ...............................28

In re FDIC, 58 F.3d 1055 (5 th Cir. 1995) .....................30

Lederman v. Giuliani , 1998 U.S. Dist. LEXIS 5468

(S.D.N.Y. April 17, 1998) ..................5-6; 30

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Lederman v. Giuliani, 2001 U.S. Dist. LEXIS 11567

(S.D.N.Y. August 10, 2001), affd , 70 Fed. Appx. 39 (2d Cir. 2003) ... .. .6

Lederman v. New York City Dept. of Parksand Recreation ,2010 U.S. Dist. LEXIS 71425(S.D.N.Y. July 16, 2010) .................9-10; 26

Madsen v. Womens Health Ctr., 512 U.S. 753 (1994) ..................................26

New York Skyline, Inc. v. City of New York , 94 AD3d 23 (1 st Dept.), lv. denied ,19 NY3d 809 (2012) ..........11; 13; 16; 19; 20

Olivieri v. Ward, 801 F.2d 602 (2d Cir. 1986),

cert. denied , 480 U.S. 917 (1987) .......24; 28

Sweeney v. Bond , 669 F.2d 542 (8th Cir.),cert. denied sub nom.,

Schenberg v. Bond ,459 U.S. 878 (1982) ................................30

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ..........................25; 27

STATUTES

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New York City Administrative Code

Section 17-306 ....................................3; 29

Section 20-452 .....................................3; 29

Section 20-453 .........................................11

Section 20-465 ...........................................3

Section 20-473 .......................................3; 6

New York City Charter

Section 533(a)(5) .......................................2

New York General Business Law

Section 35-a ...............................................7

Rules of The City of New York, Title 56

Section 1-02 ...............................1; 3; 10; 11

Section 1-05 ...............................................3

Section 1-05(b) ....................................1; 11

Section 1-05(b)(1) ..................................3; 7

Section 1-05(b)(2) ..............................1; 3; 8

Section 1-05(b)(3) ......................................1

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Section 1-05(b)(4) ......................................8

Section 1-05 (b)(5) ....................................8

Section 1-05(b)(8) .....................................8

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COUNTER-STATEMENT OF THE CASE

In response to concerns about theproliferation in certain parks owned by respondent,the City of New York (the City), of expressive-matter ( i.e ., books and artwork) vendors and theconsequential impact these vending activities haveon parkland and on other park visitors, on June 18,2010, the City amended portions of Title 56,Sections 1-02 and 1-05(b) of the Rules of the City ofNew York (RCNY) (the Vending Rules) todesignate vending spots and limit the number ofexpressive-matter vendors who may vend in UnionSquare Park, Battery Park, High Line Park andportions of Central Park below 86 th Street. The

Vending Rules were also amended to set forthgeneral place and manner restrictions on the sale ofexpressive matter in non-designated areas ofCentral Park and all other City parks.

Petitioners, artists who claim to vend theirwork in the Citys parks, bring this action allegingthat the Vending Rules constitute an impermissiblerestraint on their constitutionally-protected speechand equal protection rights under the Federal andNew York State Constitutions. See 56 RCNY 1-05(b)(2) and (b)(3), the portions of the VendingRules to which petitioners address their challenge.

Petitioners appealed from a final judgmentof the District Court, Southern District of New

York, entered October 25, 2012. That judgment,which was based on the September 30, 2012


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opinion of the District Court (Sullivan, U.S.D.J.),granted the Citys motion for summary judgment901 F. Supp. 2d 464 (Pet. App. B-10a-47a).

Petitioners also appealed from an order ofthe same court, entered June 1, 2011, whichgranted the City a protective order precludingpetitioners from deposing then Mayor MichaelBloomberg and former Deputy Mayor EdwardSkyler (Pet. App. C-48a-50a).

The Second Circuit Court of Appealsaffirmed both the judgment and the order, holdingthat (1) the Vending Rules were content-neutralrestrictions that were narrowly tailored to meetthe Citys significant interests; and that (2) theDistrict Court did not abuse its discretion ingranting the protective order. 731 F.3d 199 (2013)(Pet. App. A-1a-9a).

The City requests that this Court deny thepetition for a writ of certiorari seeking review of theSecond Circuits decision. Contrary to petitionerscontention, the Second Circuits decision here doesnot conflict with a decision of this Court or otherCircuits on any question petitioners attempt toformulate. Petitioners offer no compelling reasonwhy a different result should now be reached.

Background

(1)

The Relevant Statutory Framework

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The legal provisions applicable to those whoseek to vend in the Citys parks and on the Cityssidewalks differ depending on the items that aresold, where they are sold and the status of thevendor. For the Citys parks, which include thesidewalks that adjoin parkland, see New York CityCharter 533(a)(5), vending is generally prohibitedwithout a permit. See 56 RCNY 1-05. As to theCitys sidewalks, vendors are generally required tobe licensed. See generally New York City

Administrative Code 20-452 et seq . (as to non-foodvendors) and 17-306 et seq . (as to food vendors).

Artists and other expressive-matter vendorshave been, and continue to be, the exception tothese general rules. Expressive matter is definedas materials or objects with expressive content,such as newspapers, books, or writings, or visualart such as paintings, prints, photography,sculpture, or entertainment. 56 RCNY 1-02. 1

See 56 RCNY 1-05(b)(2); Administrative Code 20-473; and Bery v. City of New York , 97 F.3d 689(2d Cir. 1996), cert. denied , 520 U.S. 1251 (1997).

While expressive-matter vendors on theCitys streets are exempt from licensingrequirements, they still must comply with generalrestrictions relating to the size and placement of

" Section 1-02 and 1-05(b)(1) were recently revisedto clarify that expressive matter includesentertainment, as per the Parks Departmentsoriginal intent. On April 18, 2013, the new ruleswere published in the City Record and in the RCNYand became effective May 8, 2013.

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their vending tables. See Administrative Code 20-465(a)-(f), (k)-(q) and 20-473.

In 1994, petitioner Lederman and otherartists brought a constitutional challenge to theprovisions of the Citys General Vendors Law

Administrative Code section 20-452 et seq .whichprohibited artists from exhibiting, selling oroffering their work for sale in public places in theCity without first obtaining a general vendorslicense. See Bery, 97 F.3d 689. At that time, allvendors, except sellers of newspapers, books orother written matter, were required to obtain ageneral vendors license, but only 853 generalvendors licenses were in existence. Id. at 692.Moreover, the waiting list for the licenses containedbetween 500 and 5,000 names, and licenses onlybecame available when current license holdersfailed to renew. Id. In the 15 years prior to thecommencement of the Bery case, except for one yearin which licenses were distributed because of aclerical error, no new licenses were issued. Id. at697 n.7. As a result, artists were unable to selltheir wares on City property. Id.

In light of the foregoing, the Second Circuitheld that the General Vendors Law wasunconstitutional, because it barred an entirecategory of expression, and, thus, was a de factobar preventing visual artists from exhibiting andselling their art in public areas in New York.

Bery , 97 F.3d at 697. Although the Second Circuitheld that [t]he City may enforce narrowly designedrestrictions as to where appellants may exhibittheir works in order to keep the sidewalks free of

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congestion and to ensure free and safe publicpassage on the streets, the General Vendors Law,as written, was too sweeping to pass constitutionalmuster, since it distinguish[ed] between writtenand visual expression in a manner that effectivelyban[ned] one while subjecting the other to a morelimited form of regulation. Id. at 696. The SecondCircuit, however, held that there exist lessintrusive means of issuing the licenses and notedan amicus suggestion of a rotating first-come,first-served lottery system as well as the modelemployed by the City of San Francisco in whichcertain areas were set aside for art sales and aweekly lottery assigned spots. Id . at 698, n.8.

In 1998, in light of the Bery decision, theParks Department amended its regulatory schemeto provide for 75 site-specific permits for artvendors in Manhattan parks, including 24 sites infront of the Metropolitan Museum of Art, permitswhich gave their holders a legal right to sell theirworks in a specific area for one month for a cost of$25.00. See Lederman v. Giuliani , 1998 U.S. Dist.LEXIS 5468, at *3 (S.D.N.Y. April 17, 1998)( Lederman I ). If more than 75 people applied forthe 75 sites, or if there were more applications than

spaces available for any particular location, theCity would hold a random-draw lottery each month. Id.

In denying the plaintiffs motion for apreliminary injunction there, the District Court in

Lederman I held that the regulations were content-neutral time, place and manner restrictions; thatthe City had a significant interest in preserving

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and promoting the scenic beauty of its parks andpreventing congestion in parks and theirperimeters; that the regulations were narrowlytailored to serve the governments interests,because the number of allotted sites werereasonable, and the lottery system ensured thatpermits would be distributed fairly; and that theregulations left open alternative avenues forcommunication, because, inter alia , any artistvendor who chose not to obtain a permit or wasforeclosed from obtaining one, may, under Bery , sellhis artwork on any other public sidewalkthroughout the City not within the ParksDepartments jurisdiction. Lederman, 1998 U.S.Dist. LEXIS 5468, at *6-11.

Thereafter, the parties in Lederman I eachsought summary judgment, and the District Courtheld, without disturbing the foregoing analysis ofthe regulations constitutionality, that, as a matterof state administrative law, the regulations shouldbe interpreted as not applicable to expressive-matter vendors. See Lederman v. Giuliani, 2001U.S. Dist. LEXIS 11567, at *19 (S.D.N.Y. August10, 2001), affd , 70 Fed. Appx. 39 (2d Cir. 2003)( Lederman II ). The District Court held that the

lottery scheme was essentially a permitting schemeat odds with Administrative Code section 20-473,which exempts expressive-matter vendors fromhaving to obtain a permit prior to vending on theCitys streets or in the Citys parks. Id.

Thereafter, in response to concerns about theproliferation in certain parks of expressive-mattervendors and the consequential impact these

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vending activities have on parkland and on otherpark visitors, on June 18, 2010, the ParksDepartment promulgated the Vending Rules. The

Vending Rules apply only to expressive-mattervendors, because, aside from disabled veterans whoare regulated by State law, expressive-mattervendors are the only ones who can sell their wareson property under the Parks Departments

jurisdiction without a permit from the ParksDepartment.

As detailed by former Parks Department Assistant Commissioner Jack Linn, as well as inthe Statement of Basis and Purpose accompanyingthe Vending Rules, the Rules, and in particular, thedesignation of specific vending spots in fourManhattan Parks, were designed to combatcongestion, address aesthetic concerns bypreserving the integrity of the overall design of theparks, including landscapes and scenic views, andensure that the parks are available to the public fora wide range of activities, including active andpassive recreation, performances, demonstrationsand the viewing of historical monuments and publicart exhibits.

Generally, any person on Parks Departmentproperty who shall sell, offer for sale, hire, lease orlet anything whatsoever, including, but not limitedto goods, services, or entertainment, or provide oroffer to provide services or items, or entertainmentin exchange for a donation [and who does not havea specialized vending license issued pursuant toNew York General Business Law section 35-a], is

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required to have a permit from the ParksDepartment. See 56 RCNY 1-05(b)(1). 2

However, under the Vending Rules, whichbecame effective on July 19, 2010, expressive-matter vendors may generally vend, without apermit, anywhere in the Citys parks provided theycomply with certain minimum requirementsrelating to their vending activities. 3 For instance,display stands must allow a clear pedestrian pathand must be five feet away from a tree, a street orpark furniture (among other objects); a vendorsgoods cannot lean against any park furniture orplants; and the vending activity cannot blockanyone from using any park furniture nor can ittake place over any ventilation grill, manhole orsubway access grating. See 56 RCNY 1-05(b)(4)-(8).

However, in Union Square Park, BatteryPark, High Line Park and portions of Central Park,expressive-matter vendors may only vend inspecifically-designated spots. These spots areallocated on a first-come, first-served basis andonly one vendor is allowed to vend at that spot. See56 RCNY 1-05(b)(2). In addition to unique'

As noted above, section 1-05(b)(1) was amended toclarify the Parks Departments original intent toinclude entertainment. That portion of the rulesbecame effective May 8, 2013.

, Vendors of non-expressive matter are alreadysubject to numerous specific requirements set forthin the individual permits issued to them by theParks Department.

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conditions, such as public monuments and theconfiguration of High Line Park, Union SquarePark, Battery Park and Central Park are so heavilyused by both vendors and the public that thegeneral restrictions on expressive-matter vendingwere not sufficient to properly balance the vendingof such matter and the use of the park by others.

While there are limitations concerning thespecific locations in the four parks whereexpressive-matter vendors can vend, expressive-matter vendors may always vend in any other Citypark, or in the non-designated areas of CentralPark, subject to the general requirements of the

Vending Rules. Similarly, expressive-mattervendors may also vend on City sidewalks providedthey comply with the applicable provisions of the

Administrative Code. 4

(2)

Procedural Background

On June 18, 2010, the same day the VendingRules were promulgated, petitioners commencedthis lawsuit. On July 16, 2010, the United StatesDistrict Court of the Southern District of New York

(Sullivan, U.S.D.J.) issued a Memorandum andOrder declining to enjoin the Vending Rules fromtaking effect on July 19, 2010. See Lederman v.

New York City Dept. of Parks and Recreation , 2010U.S. Dist. LEXIS 71425 (S.D.N.Y. July 16, 2010)( Lederman III ). In so finding that petitioners

? The Administrative Code is applicable to theCitys non-park streets and public places.

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failed to demonstrate a likelihood of success on themerits, the District Court concluded that therevisions appear to be reasonable, content-neutralrestrictions on time, place and manner that arenarrowly tailored to advance a significantgovernment interest while leaving open amplealternative channels for the expressive activity.

Id. at *34.

The District Court also found that, becausepetitioners First Amendment rights appeared notto have been infringed and, as such, the VendingRules did not classify on the basis of a suspectcriterion, the Vending Rules were subject to arational-basis review for petitioners EqualProtection claims. See Lederman , 2010 U.S. Dist.LEXIS 71425, at *35. The Court held thatpetitioners were not likely to succeed on a rational-basis challenge and that, instead, it appears likelythat the City will be able to establish that the[Vending Rules] are rationally related to alegitimate government interest. Id. (citationomitted).

In August 2010, several other expressive-matter vendors brought suit in State court tochallenge the Vending Rules as violating theirrights under Article 1, Section 8, of the New YorkState Constitution, and, on May 17, 2011, the New

York State Appellate Division, First Department,affirmed the denial of those plaintiffs motion for apreliminary injunction. See Dua v. New York City

Dept. of Parks and Recreation , 84 AD3d 596 (1 st

Dept., 2011). The Appellate Division held that the Vending Rules, although addressed to expressive

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matter vendors, are part of a comprehensivescheme which governs time, place, and mannerrules for all vendors under the Parks Departments

jurisdiction and, as such, the plaintiffs there failedto demonstrate a likelihood of success on the meritsof their claim that the Vending Rules violated theirrights under the State Constitution. Id. at 597.

This State court litigation is still pending.

(3)

Recent Related Expressive-Matter VendorIssues

Expressive matter was originally defined asmaterials or objects with expressive content, such

as newspapers, books, or writings, or visual artsuch as paintings, prints, photography, orsculpture. 56 RCNY 1-02. The ParksDepartment initially interpreted this definition toinclude performances for donations by buskers andstreet artists. The Parks Department haddetermined that the impact of these artists onparkland is no different from the impact of artistswho sell tangible items of art. Petitionersprotested this interpretation and argued that

applying the Vending Rules to performers woulddeprive them of their already limited access to thespot designations.

On February 23, 2012, the New York State Appellate Division, First Department, in New YorkSkyline, Inc. v. City of New York , 94 AD3d 23 (1 st

Dept.), lv. denied , 19 NY3d 809 (2012), held that

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the definition of general vendor in AdministrativeCode section 20-453, which, at that time, resembledthe vending definition in the Vending Rules,excludes entertainers, finding that they do not sellor offer to the public goods or services. Id. at 26-27. Thereafter, the City temporarily stoppedenforcing the Vending Rules against buskers andentertainers in order to avoid a conflict with theSkyline decision.

However, thereafter, following appropriatepublic notice and written comments, the Cityrevised sections 1-02 and 1-05(b) of the VendingRules to clarify the Parks Departments originalintent that individuals providing entertainment inexchange for a fee or donation are consideredexpressive-matter vendors. On May 8, 2013, therevised sections became effective. 5

The District Courts Summary JudgmentOrder

(a)

In its September 30, 2012 decision grantingthe Citys motion in its entirety, the District Courtfirst held that the Vending Rules, as drafted, were

unquestionably content-neutral requiring an6 In this regard, therefore, the fact that artists whosell merchandise for money and artists whoperform in exchange for a donation are equallysubject to the Vending Rules, as the City hadoriginally intended, evidences the Citys effort andintent to treat all expressive-matter vendorssimilarly.

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intermediate level of scrutiny, even though it wasundisputed that the Vending Rules only targetexpressive-matter vendors. 901 F. Supp. 2d at 473(Pet. App. B-26a). The District Court held that the

Vending Rules were completely unrelated to thecontent of the expressive matter being sold andthat petitioners failed to demonstrate that theRules treated different types of expressive matterdifferently based on the messages they conveyed orthat the spot designations were distributedaccording to the content of the expressive mattersold. 901 F. Supp. 2d. at 473 (Pet. App. B-28a).

The District Court further found thatpetitioners were mistaken in their contention thatall regulations distinguishing between speakerswarranted strict scrutiny, noting that heightenedscrutiny was unwarranted when the differentialtreatment [between speakers] [was] justified bysome special characteristic of the particular[speaker] being regulated. 901 F. Supp. 2d at 473(Pet. App. B-27a). The Court held that, in thiscase, expressive-matter vendors had such a specialcharacteristic, because they are not covered by theregulations that govern other types of vendors. Id.

(b)

The District Court also held that the Vending Rules, as enforced, were content-neutral.901 F. Supp. 2d at 473 (Pet. App. B-28a). In thisregard, the Court found unavailing petitionersassertion that the Citys decision to, as explainedabove, temporarily exempt performers from the

Vending Rules was an impermissible restriction

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based on content, finding that there were anynumber of special characteristic[s] distinguishingvendors of tangible art and performing artists thatsupport the present policy, not least among themthat, as [petitioners] acknowledge, performers arealready subject to the permitting requirementswhen they expect to draw large crowds. 901 F.Supp. 2d at 473-474 (Pet. App. B-28a).

The District Court also acknowledged thatthe Citys purpose in adopting the new policy wasto comply with an unanticipated (and arguably ill-reasoned) court-ruling [ Skyline ]a matter plainlydivorced from the content of tangible art vendorsspeech. 901 F. Supp. 2d at 474 (Pet. App. B-28a-29a). The Court further noted that the Cityspresent enforcement policy was a sharp departurefrom its prior licensing scheme that was struckdown in Bery , highlighting that, here, the VendingRules have a relatively limited impact on tangibleart vendors in only four City parks, whereas in

Bery , there was a strong suspicion that theregulation was content-based based on theeffective bar it created on the sale of visual artwork such that an entire medium of expression[was] being lost. 901 F. Supp. 2d at 474 (Pet. App.B-29a).

In addition, the District Court also held thatthe Vending Rules did not reflect governmentdisapproval of the protected activity of sellingexpressive matter. 901 F. Supp. 2d at 474(emphasis in original) (Pet. App. B-29a). The Courthighlighted that the Vending Rules were part of alarger regulatory scheme that governed the time,

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place and manner of all vendors sales and that,although the Rules applied only to expressive-matter vendors, that was simply because courtshave struck down previous attempts to treatexpressive matter vendors like all other vendors.901 F. Supp. 2d at 474 ( citing Bery, 97 F.3d at 698-699) (Pet. App. B-29a). The Court pointed out thatexpressive-matter vendors were treated morefavorably than other vendors, because they maysell their wares without a general vendors license,may sell in any public space in the City subject onlyto the General Vendors Laws and they may sell inany space under the Parks Departments

jurisdiction subject only the limited expressive-matter Vending Rules. 901 F. Supp. 2d at 474 (Pt.

App. B-29a-30a).

With respect to petitioners argument thatthe spot designations under the Vending Ruleswere a clandestine licensing scheme because theRules delegated broad discretion to authorities whooversee the distribution of the spot designationseach morning, the District Court held that thisinsufficient evidence had nothing to do with thecontent of the expressive matter being sold asopposed to the category of vendor selling them.901 F. Supp. 2d at 474-475 (emphasis in original)(Pet. App. B-30a-31a).

(c)

In light of its finding that the Vending Ruleswere content-neutral regulations, the DistrictCourt next found that they passed constitutionalmuster because they were narrowly tailored to

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serve a significant governmental interest andleave open ample alternative channels forcommunication. 901 F. Supp. 2d at 475 (Pet. App.B-31a).

Specifically, the District Court held that theCitys interests i.e. , alleviating congestion andimproving circulation, promoting the aesthetics ofthe parks and ensuring that the parks are availableto the public for a wide range of activitiesweresignificant interests, which, contrary to petitionerscontentions, were not a pre-text for any purportedattempt by the City to drive visual artists out of thepark or to retaliate against petitioners personally.901 F. Supp. 2d at 475 (Pet. App. B-32a-33a). TheCourt found no support in the record for petitionersassertions and reiterated that the Vending Rulestargeted expressive-matter vendors only becausethose vendors were not subject to the regulatoryschemes that governed other vendors. 901 F. Supp.2d at 475-476 (Pet. App. B-33a).

The District Court also found unpersuasivepetitioners argument that the Citys profferedreasons for the Vending Rules were pre-textualbecause the City has an interest in reducingpedestrian congestion only when there is a nexusbetween a threat to public safety and thecongestion the municipality seeks to limit. 901 F.Supp. 2d at 476 (Pet. App. B-34a). The Courtpointed out that the Second Circuit defined theCitys interest in alleviating congestion morebroadly. Id.

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With respect to petitioners claim that theCity failed to demonstrate that expressive-mattervendors caused any dangerous congestion or thatthey were the sole cause of congestion, the DistrictCourt reiterated its ruling in its July 2010preliminary injunction order that, while the Citymay tolerate heightened congestion in somecircumstances, such as the Union SquareGreenmarket and the Holiday Market at ColumbusCircle and Union Square, it did not mean that itwas required to tolerate such congestion at alltimes or that its measures to reduce congestionwere pre-textual. 901 F. Supp. 2d at 476 (Pet. App.B-34a).

The District Court found similarlyunavailing petitioners change in position to itscurrent contention that the Citys efforts to addressthe Skyline decision regarding performance artistswas a mere ruse to conceal its intent todiscriminate against visual artists. 901 F. Supp. 2dat 476 (Pet. App. B-35a). The Court noted thatpetitioners had originally contended that theinclusion of performance artists under the ambit ofthe Vending Rules was then an attempt to drivevisual artists out of the parks. Id.

(d)

The District Court next held that the Vending Rules were narrowly tailored to promotethe aforementioned significant governmentinterests, because those interests would beachieved less effectively absent the Rules. 901F. Supp. 2d at 477 (Pet. App. B-35a-36a). The

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Court pointed out that the record demonstratedthat the City attempted only to impose spotdesignations in the most heavily used areas, takinginto consideration the volume of park visitors, thespecific aesthetics of each park, the availabletransportation in each park, the historic uses of theparks and the configuration of the parks. 901 F.Supp. 2d at 477 (Pet. App. B-36a). The Court alsohighlighted that the City took into considerationwhere expressive-matter vendors traditionallyvended and attempted to accommodate them evenwhere the general vending laws would haveotherwise precluded them from setting up. Id. TheCourt also pointed out that, in response to thecomments received during the public reviewprocess, the City added and moved spots. Id.

The District Court additionally took note ofthe fact that the Vending Rules essentially tracksuggestions set forth in previous cases, including

Bery s admonition against licensing discretion ingovernment officials, such that now the VendingRules require that medallions be allocated on afirst-come, first-served basis with specific rules thatwithhold discretion from officials. 901 F. Supp. 2dat 477 (Pet. App. B-37a). With respect to the Citysdecision to temporarily exclude performers from theenforcement, the Court held that, while that maydiminish the effectiveness of the Vending Rules,there was no evidence to suggest that such anoutcome was inevitable nor was it the Courts placeto dictate the minute details of City policy. Id. Inany event, the Court opined that, unlike the bookvendors under scrutiny in Bery , the performers

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here remained subject to all Parks Departmentregulations outside the Vending Rules, andtangible art vendors enjoyed equal freedom outsidethe four parks with spot designations. 901 F. Supp2d at 478 (Pet. App. B-38a).

The District Court held that the fact thatthere may be a different or better way to regulateexpressive-matter vendors was not dispositive ofthe issue, so long as the Vending Rules were, ashere, not substantially broader than necessary toachieve the Citys interests. 901 F. Supp. 2d at 477(Pet. App. B-37a).

(e)

In addition to finding that the Vending Rules

were content-neutral and narrowly tailored, theDistrict Court also found that the Rules left openample alternative channels for communication,highlighting that such alternative channels neednot be perfect substitutes for the channels denied.901 F. Supp. 2d at 478 (Pet. App. B-38a). TheCourt pointed out that expressive-matter vendorsmay sell their wares in any other park in the City,provided that they comply with the generalexpressive-matter vending restrictions. 901 F.Supp. 2d at 478 (Pet. App. B-39a). The Court notedthat a significant amount of the ParksDepartments 2,700 acres of parkland inManhattan was still available to expressive-mattervendors. Id.

With respect to petitioners claim that theaforementioned account of available space was

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merely a linguistic trick by the City topurportedly obscure the fact that there is littleparkland left under the Vending Rules available forartists, the District Court held that there was nosupport for the contention that the [Vending Rules]unduly limit vending in any of the hundreds ofother parks in the City and that, even thoughParks Commissioner Benepe was unable to testifyto a legal vending spot under the generalexpressive-matter vending restrictions in CentralPark when presented with a tourist map at hisdeposition, that did not mean that there was not asingle, bona fide legal spot in any of the fouraffected parks. 901 F. Supp. 2d at 478-479 (Pet.

App. B-39a-40a). The Court also highlighted thatexpressive-matter vendors may vend on public

sidewalks throughout the City and that they arenot prohibited from giving their goods away or fromvending while not stationary. 901 F. Supp. 2d at479 (Pet. App. B-40a-41a).

(f)

With respect to petitioners Equal Protectionclaims under the Fourteenth Amendment, theDistrict Court held that expressive-matter vendorswere not a suspect class and, because the VendingRules fall well within the parameters of the First

Amendment, they were only subject to a rationalbasis review. 901 F. Supp. 2d at 480 (Pet. App. B-42a). Under that review, the Court held, the Citymet the low bar of establishing that the VendingRules were rationally related to a legitimategovernment interest, i.e. , promoting the use andenjoyment of the parks. Id. The Court found

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unavailing petitioners claims of discrimination,pointing out that it was not at all apparent to theCourt that tangible art vendors and performingartists are similarly situated, especially giventhat, prior to the Skyline decision, petitionersargued for the exclusion of performers on theground that they were different. 901 F. Supp. 2d at480 (Pet. App. B-43a-44a). In any event, the Courtheld, the Citys desire to address the Skylinedecision was a rational basis for any allegeddisparate treatment. 901 F. Supp. 2d at 480 (Pet.

App. B-44a).

(g)

Finally, the District Court held thatpetitioners conspiracy claim was without merit,because, as a threshold matter, they were required,but failed, to demonstrate that the Vending Rulesimpinged on their First or Fourteenth Amendmentrights. 901 F. Supp. 2d at 481 (Pet. App. B-45a).The Court further held that, similarly, their First

Amendment retaliation claim was without merit,because they were unable to demonstrate that the

Vending Rules effectively chilled the exercise oftheir First Amendment rights, given that the Ruleswere valid time, place and manner restrictions thatleft petitioners with ample opportunity to exercisetheir rights. 901 F. Supp. 2d at 481 (Pet. App. B-46a).

The District Court concluded that[petitioners] have made a practice of contestingany attempt to limit their ability to display and selltheir art whenever and however they please.

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However, the Constitution recognizes that the Citymust be permitted to balance [petitioners] speechrights with other myriad demands on municipalresources. 901 F. Supp. 2d at 481 (Pet. App.B-46a).

The District Courts Protective Order

During the course of litigation, petitionersrequested to take the deposition of then MayorBloomberg and former Deputy Mayor EdwardSkyler. In a joint letter to the District Court, theparties outlined their respective positions in this

discovery disputepetitioners maintained that theMayor and the former Deputy Mayor hadinformation necessary to their case, while the Cityrequested that the Court preclude the depositions,maintaining that neither possessed any uniqueknowledge about the basis for the promulgation ofthe Vending Rules.

In an order entered June 1, 2011, theDistrict Court deemed the Citys request to bar as a

motion for a protective order and granted thatmotion (Pet. App. C-49a). The Court held that,[w]hile [petitioners] make a variety of allegationsin the letter against both Mayor Bloomberg andformer Deputy Mayor Skyler, [petitioners] fail todemonstrate both that the desired deponents havepersonal knowledge of the events in question inthis action and that any information they have

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cannot be obtained elsewhere, namely by deposingParks Commissioner Adrian Benepe (Pet. App.C-49a-50a). The Court highlighted that, in thatregard, petitioners complaint focuse[d] onCommissioner Benepe as the driving force behindthe Vending Rules at issue (Pet. App. C-50a).

The Order of the Second Circuit Courtof Appeals

In affirming the District Court, 731 F.3d 199(Pet. App. A-1a-9a), the Second Circuit heldthat the Citys expressive-matter regulationsoperated within constitutional limits,because they were reasonable content-neutral restrictions on the time, place andmanner of such protected speech, narrowlytailored to serve a significant governmentinterest and left open ample alternativechannels of communication. 731 F.3d at 202(Pet. App. A-5a-6a).

In this regard, the Second Circuit found thatthe regulations were content-neutralrestrictions, because they applied to allexpressive-matter vendors, regardless of themessage they conveyed. 731 F.3d at 202(Pet. App. A-6a). The Circuit highlightedthat the regulations were passed not in anattempt to suppress vendors ability tomarket their wares, but to fill a gap in thelarger regulatory scheme governing vendingon Parks Department property. Id.

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The Second Circuit further found that theCitys interests of alleviating congestion andimproving circulation, promoting the aesthetics ofthe parks, and ensuring that the parks areavailable to the public for a wide range ofactivities were indisputably significant. 731F.3d at 202 (Pet. App. A-6a). The Circuit held thatthe regulations were narrowly tailored to servethose interests, because the City imposed spotdesignations only in the most heavily used areas,which designations were allocated on a first-come,first-served basis without reference to the viewsexpressed, while also leaving all remaining parkareas open for vending. 731 F.3d at 202-203 (Pet.

App. A-6a).

As to the protective order, the SecondCircuit, following other Circuit decisions, held that,to depose a high-ranking government official, aparty must demonstrate exceptionalcircumstances to justify the deposition, such asthat the official has unique first-hand knowledgerelated to the litigated claims or that the necessaryinformation cannot be obtained through other, lessburdensome means. 731 F.3d at 203 (Pet. App.

A-8a). The Circuit found that petitioners had notdemonstrated such exceptional circumstances,because they did not identify with particularity theinformation they needed nor did they contend thatthen-Mayor Bloomberg and former Deputy MayorSkyler had first-hand knowledge about the litigatedclaims or had any of the information they soughtfrom Commissioner Benepe. Id.

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In any event, the Second Circuit held thatpetitioners did not preserve for appellate reviewtheir principal arguments concerning the protectiveorder, having merely incorporated the argumentthey made to the District Court by reference intheir brief. 731 F.3d at 203 (Pet. App. A-9a).Specifically, the Circuit noted that plaintiffsreferred to 12 points they argued in a joint letter tothe District Court but, otherwise, do not elaboratefurther as to what those 12 points were. Id.

REASONS FOR DENYING THE PETITION

THE SECOND CIRCUITS DECISION ISLEGALLY CORRECT AND DOES NOTCONFLICT WITH ANY DECISION OF THISCOURT OR OTHERWISE WARRANTFURTHER REVIEW BY THIS COURT.

Petitioners have not persuasivelydemonstrated that there is any conflict between theSecond Circuits decision and prior decisions of thisCourt or other Circuits. Contrary to petitionerscontentions (Pet. at 14), this case does not presentthis Court with pressing and persistentconstitutional questions arising out of amunicipalitys restrictions on expressive activity inpublic land.

(a)

It appears that petitioners are claiming thatthis Court should hear this case because someartists in other jurisdictions have not been able toraise funds to challenge certain ordinances and,

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therefore, if these [p]etitioners rights are notvindicated, it will have an adverse domino effect onall other artists (Pet. at 16-17). Although theSecond Circuits decision may have been referencedin a national Newsweek article, that is not a basisfor this Court to hear this case, where, as here, theSecond Circuits decision was legally correct basedon the facts of this particular case and consistentwith this Courts well-settled First Amendment

jurisprudence.

This Court has held that, to passconstitutional muster, a time, place, and mannerrestriction of speech or conduct in a public forummust be content-neutral, narrowly tailored to meeta significant government interest and leave openample alternative means of communication. SeeClark v. Community for Creative Non-Violence , 468U.S. 288, 293 (1984); Olivieri v. Ward, 801 F.2d602, 605 (2d Cir. 1986), cert. denied , 480 U.S. 917(1987).

This Court has further clarified that [a]regulation that serves purposes unrelated to thecontent of expression is deemed neutral, even if ithas an incidental effect on some speakers ormessages but not others. Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989). The principalinquiry in determining content neutrality . . . iswhether the government has adopted a regulationof speech because of disagreement with themessage it conveys. Id. A regulation is content-neutral where, as here, it is justified withoutreference to the content of the regulated speech.

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Id. (quoting Community for Creative Non-Violence ,468 U.S. at 293).

Here, the Second Circuit, consistent withthis Courts jurisprudence, correctly found that the

Vending Rules are valid content-neutral, time,place and manner restrictions narrowly tailored toadvance the Citys substantial interests.

The Vending Rules are content-neutral,because they apply to all expressive-mattervendors, regardless of the message they convey.The Vending Rules are necessary, becauseexpressive-matter vendors were not covered by theregulations that govern other types of vendors.

We are not unmindful that the Vending

Rules do not govern artists who simply displaytheir work or perform without soliciting donations,and, thus, they are not required to operate in thedesignated spots. However, this is because theParks Department has seldom, if ever, encounteredpeople engaging in that sort of activity and,therefore, these artists have not proven to have thesame impact on parkland and park visitors asexpressive-matter vending from displays at fixedlocations (these other artists are, however, required

to comply with all general use of Parks Departmentrules).

Thus, notwithstanding petitionerscontentions that the Vending Rules single outincome derived from expressive activity, (Pet. at 8-9), it is clear that the Vending Rules do not reflectgovernment disapproval of the protected activity of

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selling expressive matter. See Lederman , 2010U.S. Dist. LEXIS 71425, *20, 23.

Moreover, the Vending Rules are narrowlytailored to advance the Citys interests inalleviating congestion, promoting aesthetics bypreserving the integrity of the overall design of theparks, including the need to preserve landscapesand scenic views, and ensuring that the parks areavailable to the public for a wide range of activities,including active and passive recreation,performances, demonstrations and the viewing ofhistorical monuments and public art exhibits. Thatthese interests are all significant is beyondquestion. See, e.g., Madsen v. Womens Health Ctr.,512 U.S. 753, 768 (1994) (states have a stronginterest in ensuring the public safety and order[and] in promoting the free flow of traffic on publicstreets and sidewalks); Community for Creative

Non-Violence , 468 U.S. at 299 (finding that theNational Park Service had a significantgovernmental interest in maintaining its parks inan attractive condition and in conserving parkproperty).

It is well-established that the ParksDepartments Vending Rules need not be the leastrestrictive or least intrusive means of achievingthe Citys interest in preserving its parkland andregulating its use. See Rock Against Racism, 491U.S. at 798. Rather, the narrow tailoringrequirement is satisfied so long as the . . .regulation promotes a substantial governmentinterest that would be achieved less effectivelyabsent the regulation. Id. (citation omitted).

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So long as the regulations as a whole arenot substantially broader than necessary toachieve the governments interest . . . theregulation[s] will not be invalid simply because acourt concludes that the governments interestcould be adequately served by some less-speech-restrictive alternative. Rock Against Racism, 491U.S. at 798. The validity of [time, place andmanner] regulations does not turn on a judgesagreement with the responsible decision makerconcerning the most appropriate method forpromoting significant government interests or thedegree to which those interests should bepromoted. Id. (citation omitted). Therefore, whilerules of this nature necessarily involve some degreeof line drawing, there is no question that, as a

whole, the spot designations in the Vending Rulesfall within the zone of constitutionality.

Moreover, there is absolutely nothing in thisextensive record that suggests that the Rules werepromulgated as a pretext for driving independentartists out of the parks or to retaliate againstpetitioners personally.

Finally, the Vending Rules leave open amplealternative channels for petitioners expressiveactivities.

As an initial matter, in light of petitionersadmissions that they have never even attempted tosecure one of the designated expressive-mattervending locations, petitioners should be estoppedfrom arguing that they do not have ampleopportunities to engage in expressive-matter

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vending. Specifically, during his deposition,petitioner Nesbitt admitted that he neverattempted to obtain one of the designated vendingspots. Rather, on the day the rules took effect, heengaged in a protest by setting up in a non-designated spot. Similarly, petitioner Ledermanstated at his deposition that he never h[as] andnever will attempt to obtain a medallion [ i.e. ,designated] spot . . . . Indeed, petitionerLederman has not been regularly engaged in artvending in the Citys parks since 2001 and hashardly made any sales at all in recent years.

In any event, there is no question thatexpressive-matter vendors who are unable tosecure one of the designated vending spotsnonetheless have ample alternatives to engage inexpressive activity. It is beyond dispute thatneither the United States nor the StateConstitutions guarantees a person the right tocommunicate ones views at all times and placesand in any manner that may be desired. Heffronv. Intl Soc. for Krishna Consciousness, Inc., 452U.S. 640, 647 (1981); see also Olivieri , 801 F.2d at605 (the First Amendment does not guarantee anabsolute right to anyone to express their views any

place, at any time, and in any way they want.).While ample alternatives must be available,speakers are not guaranteed access to every oreven the best channels or locations for theirexpression. Carew-Reid v. Metropolitan Transp.

Auth., 903 F.2d 914, 919 (2d Cir. 1990) (citing CityCouncil of Los Angeles v. Taxpayers for Vincent, 466U.S. 789, 812 [1984]).

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Here, expressive-matter vendors have ampleavenues beyond the designated spots for exercisingtheir free speech rights. Any expressive-mattervendor who is foreclosed from a designated spotmay sell his or her artwork in any part of theperimeter of Central Park north of 86 th Street, anypart of the interior of Central Park other than thepathways along the Central Drive and Wein andWallach Walks and any other park in the City,provided they comply with the general provisions ofthe Vending Rules.

With approximately 29,000 acres of parklandunder the Parks Departments jurisdiction2,700of which are in Manhattanand only about 52acres affected by the designated spot requirement,there is a significant amount of space available forvending on property under the Parks Departments

jurisdiction notwithstanding the fact that vendingis not permitted on grassy areas, in close proximityto park benches or on pathways that provide lessthan a 12-foot wide clear pedestrian path.

Expressive-matter vendors can also vend onpublic sidewalks throughout the City withoutregard to the Vending Rules, except for thosesidewalks that adjoin parkland. Specifically,pursuant to Administrative Code sections 17-306 et

seq. and 20-452 et seq. and Bery , 97 F.3d 689,expressive-matter vendors may vend on any streetwhere a permitted non-expressive-matter vendormay vend, and this Court may take judicial noticeof the fact that numerous non-expressive-mattervendorssuch as those selling coffee or hot dogsoperate on the sidewalks throughout the City and

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especially in Manhattan. See Lederman, 1998 U.S.Dist. LEXIS 5468 at *4 (prior Parks Departmentlottery system left open alternative avenues ofcommunication, since an expressive-matter vendorcould sell his artwork on any other public sidewalkthroughout the City . . . subject only to narrowrestrictions).

(b)

The Second Circuit also correctly affirmedthe protective order barring the depositions of then-Mayor Bloomberg and former Deputy MayorEdward Skyler.

First, as an initial procedural matter, theSecond Circuit was correct in finding that

petitioners did not preserve for appellate reviewtheir principal arguments concerning the protectiveorder, having only merely incorporated theargument they made to the District Court byreference in their brief. For this reason alone, thisCourt should not entertain petitioners claims.

In any event, contrary to petitionerscontentions, there is no conflict among the Circuits.It is well settled that high-ranking governmental

officials are generally entitled to immunity fromdepositions concerning matters about which theyhave no unique personal knowledge. See, e.g., In re

FDIC, 58 F.3d 1055, 1060-61 (5th Cir. 1995) (FifthCircuit quashed deposition notices to FDICdirectors when no special circumstances to warrantthe deposition were presented); Sweeney v. Bond ,669 F.2d 542 (8th Cir.), cert. denied sub nom.,

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Schenberg v. Bond , 459 U.S. 878 (1982) (Governorof Missouri need not be deposed absent showingthat he possessed information that could not beobtained from others).

Here, there is nothing in the extensive recordthat demonstrates that either then-MayorBloomberg or former Deputy Mayor Skyler had anypersonal involvement in the promulgation of the

Vending regulations or that they have any uniquepersonal knowledge of the basis for thepromulgation of the Rules. Significantly,petitioners deposed Parks Commissioner Benepe,the final decision-maker with respect to the

Vending Rules and, significantly, petitionerscomplaint focuses on Commissioner Benepe as thedriving force behind the Parks regulations at issue.

In light of the foregoing, the Second Circuitsdecision does not warrant further review by thisCourt.

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CONCLUSION

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BEDENIED.

Dated: New York, New YorkJanuary 23, 2014

Respectfully submitted,

JEFFREY D. FRIEDLANDER,

Acting Corporation Counsel ofthe City of New York,

Attorney for Respondent,LEONARD J. KOERNER,Counsel of Record ,100 Church Street,New York, New York 10007.(212) 356-0844 or [email protected]

EDWARD F.X. H ART ,J ULIE STEINER ,

of Counsel.

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city reply to petition

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