About 100 artists gathered outside the Moynihan Federal Courthouse at 500 Pearl Street in Manhattan this past Thursday morning to protest the proposed revision of New York City Park Rules as Federal Judge Richard J. Sullivan held a two hour “Show Cause Hearing” that may lead to a temporary injunction preventing the Parks Department from implementing the rules until the full case is heard.
Judge Sullivan promised to rule by Friday, July 16th. Enforcement of the new rules is due to begin Monday, July 19th at 6 a.m.
In detailed questioning of lawyers representing both the city and the artists, Judge Sullivan touched on at least four major issues that affect the standard he needs to meet if he decides to grant the injunction.
1) Content Neutrality. Are the new rules biased against certain opinions or individuals? The judge clearly thought not.
2) The government’s right to regulate the use of parks, specifically concerning issues of public safety (i.e. Are the artists causing dangerous congestion?) and secondarily the preservation of park experience based on aesthetics (connected to a D.C. Federal Court ruling keeping vendors off the D.C. mall). The judge appeared to believe that the city made assertions of congestion but had no real fact-based evidence as to congestion nor as to what number of artists would be appropriate (50 artists are OK but 200 are not? Why?). However, he did seem to indicate that it wasn’t his job to interfere in the city’s management of park rules if ultimately they had a right to regulate the time, place and manner of vending of First Amendment vendors.
3) Narrow Tailoring. If there is a genuine government interest in reducing congestion in the parks, are these particular rules tailored in an appropriately narrow fashion? The judge appeared to think that the city provided little or no evidence on the appropriate level of restriction and was particularly skeptical of the logistics of the city’s first come, first serve plan for distributing proposed vending spaces in the parks. (The artists are supposed to line up at the edge of each park and then, at 6 a.m. sharp, race to a limited number of authorized sites? The city’s attorneys admitted point blank that they didn’t know how this would work.)
4) Alternate Channels/Venues. Lawyers for the city claimed that, except for the four locations scheduled for regulation (Central Park South, Union Square Park, Battery Park and the High Line) the rest of New York City’s parks are open for use by artists. Lawyers for the artists countered that, in reality, current rules concerning the width of sidewalks and distance from park furniture for vending already rule out large portions of parks for use by First Amendment vendors. The judge seemed to believe that neither side presented substantive evidence of these assertions and both sides declined an invitation for a second hearing to provide evidence. The judge left open the possibility of such a hearing for next Thursday morning, July 15th. Attorneys for the artists also asserted that the First Amendment allows artists to meaningfully interact with the public and therefore artists should be allowed to set up in those areas where people normally congregate – the high traffic areas scheduled for regulation.
Again, a ruling on a temporary injunction to block the enforcement of the new park rules is scheduled to be made on or before, Friday, July 16th. Enforcement of the new rules is due to begin Monday, July 19th at 6 a.m.