Ps Reply Memo of Law: Wandering Dago case

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Case 1:13-cv-01053-MAD-RFT Document 35 Filed 09/16/13 Page 1 of 32

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

WANDERING DAGO INC., Plaintiff, v. Civil Action No. 1:13-cv-01053-MAD-RFT NEW YORK STATE OFFICE OF GENERAL SERVICES, ROANN M. DESTITO, JOSEPH J. RABITO, WILLIAM F. BRUSO, JR., AARON WALTERS, NEW YORK RACING ASSOCIATION, INC., CHRISTOPHER K. KAY, STEPHEN TRAVERS, JOHN DOES 1-5, and THE STATE OF NEW YORK, Defendants.

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

Dated: September 16, 2013

BOIES, SCHILLER & FLEXNER LLP George F. Carpinello (Bar No. 103750) 30 South Pearl Street Albany, NY 12207 Ph: (518) 434-0600 Attorneys for Plaintiff

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TABLE OF CONTENTS

Table of Authorities ........................................................................................................................ ii Preliminary Statement .................................................................................................................... 1 I. Defendants Bear the Burden of Justifying Their Censorship of Plaintiff’s Speech ............................................................................................... 2 Plaintiff Has Established Irreparable Injury .......................................................... 3 The State Defendants Cannot Justify Their Conduct As “Proprietary” and Occurring In a Non-Public Forum .................................................................. 8 A. B. The Plaza Is a Public Forum ...................................................................... 8 The State Defendants Have No Clearly Articulated Policy For Use of the Plaza ................................................................................. 13 The State Defendants Cannot Meet the Central Hudson Test ................. 14

II. III.

C. IV.

The Nature of the Saratoga Race Course Is Irrelevant Because the Exclusion Was Done at the Direction of State Officials Without Regard to Any Policy Concerning Use of the Property ................................................... 16 Defendants’ Ad Hoc Exclusion of Plaintiff Was the Result of Unconstitutional, Unbridled Discretion ............................................... 19 Defendants Have Engaged In Viewpoint Discrimination .................................... 23

V.

VI.

Conclusion ................................................................................................................................... 25

i

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TABLE OF AUTHORITIES Cases Abish v. Nw. Nat’l Ins. Co. of Milwaukee, 924 F.2d 448 (2d Cir. 1991)........................................................................................................ 7 Abortion Rights and Against Sterilization Abuse v. Niagara Frontier Transp. Auth., 584 F. Supp. 985 (W.D.N.Y. 1984) ................................................................................ 4, 14, 21 Am. Civil Liberties of Nev. v. City of Las Vegas, 333 F.3d 1092 (9th Cir. 2003) .................................................................................................. 11 American Postal Workers Union v. U.S. Postal Service, 766 F.2d 715 (2d Cir. 1985)........................................................................................................ 4 Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666 (1998) .............................................................................................................. 8, 12 Aubrey v. City of Cincinnati, 815 F. Supp. 1100 (S.D.Oh. 1993) ........................................................................................... 21 Bad Frog Brewery Inc. v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998)........................................................................................................ 15 Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989) .................................................................................................................... 3 Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983) ...................................................................................................................... 3 Borey v. Nat’l Union Fire Ins. Co. of Pittsburgh, 934 F.2d 30 (2d Cir. 1991).......................................................................................................... 7 Bronx Household of Faith v. Board of Education of New York, 331 F.3d 342 (2d Cir. 2003)........................................................................................................ 4 Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980) .............................................................................................................. 2, 15 Children First Foundation, Inc. v. Martinez, 829 F. Supp. 2d 47 (N.D.N.Y. 2011) ............................................................................ 21, 23, 24 Christ’s Bride Ministries, Inc. v. Se. Penn. Transp. Auth., 148 F.3d 242 (3d Cir. 1998)................................................................................................ 14, 24

ii

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Cinevision Corp. v. City of Burbank, 745 F.2d 560 (9th Cir. 1984) .................................................................................................... 20 Citibank, N.A. v. Citytrust, 756 F.2d 273 (2d Cir. 1985)........................................................................................................ 7 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ...................................................................................................................... 4 Coll. Entrance Exam. Bd. v. Cuomo, 788 F. Supp. 134 (N.D.N.Y. 1992) ............................................................................................. 7 Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788 (1985) ............................................................................................................ 18, 21 Daily v. N.Y. City Hous. Auth., 221 F. Supp. 2d 390 (E.D.N.Y. 2002) ........................................................................................ 7 Davis v. Stratton, 575 F. Supp. 2d 410 (N.D.N.Y. 2008) ...................................................................................... 20 Deegan v. City of Ithaca, 444 F.3d 135 (2d Cir. 2006)...................................................................................................... 10 Desert Outdoor Adver., Inc. v. City of Moreno Valley, 103 F.3d 814 (9th Cir. 1996) ............................................................................................ 2, 3, 20 E. Conn. Citizens Action Group v. Powers, 723 F.2d 1050 (2d Cir. 1983)................................................................................................ 9, 24 E. Meadow Cmty. Concerts Ass’n v. Bd. of Educ. of Union Free Sch. Dist. No. 3, 18 N.Y.2d 129 (1966) ................................................................................................................. 6 E. Timor Action Network, Inc. v. City of N.Y., 71 F. Supp. 2d 334 (S.D.N.Y. 1999)......................................................................................... 21 Edwards v. South Carolina, 372 U.S. 229 (1963) .................................................................................................................. 10 Elrod v. Burns, 427 U.S. 347 (1976) .................................................................................................................... 4 Firemen’s Ins. Co. of Newark v. Keating, 753 F. Supp. 1146 (S.D.N.Y. 1990)............................................................................................ 7

iii

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Freedman v. Maryland, 380 U.S. 51 (1965) ...................................................................................................................... 2 Grayned v. City of Rockford, 408 U.S. 104 (1972) .................................................................................................................... 9 Hasbro, Inc. v. Lanard Toys, Ltd., 858 F.2d 70 (2d Cir. 1988).......................................................................................................... 7 Hohe v. Casey, 868 F.2d 69 (3d Cir. 1989).......................................................................................................... 5 Hotel Emps. & Rest. Emps. Union v. City of N.Y. Dep’t of Parks and Recreation, 311 F.3d 534 (2d Cir. 2002)...................................................................................................... 11 In re Search of Kitty’s E., 905 F.2d 1367 (10th Cir. 1990) .................................................................................................. 2 Int’l Soc’y For Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) .............................................................................................................. 9, 24 Kadant, Inc. v. Seeley Machine, Inc., 244 F. Supp. 2d 19 (N.D.N.Y. 2003) .......................................................................................... 7 Lark v. Lacy, 43 F. Supp. 2d 449 (S.D.N.Y. 1999)........................................................................................... 4 Lederman v. United States, 291 F.3d 36 (D.C. Cir. 2002) .................................................................................................... 11 Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) .................................................................................................................. 22 Lewis v. Wilson, 253 F.3d 1077 (8th Cir. 2001) ............................................................................................ 20, 23 Libin v. Town of Greenwich, 625 F. Supp. 393 (D. Conn. 1985) .............................................................................................. 5 Majorica, S.A. v. R.H. Macy & Co., Inc., 762 F.2d 7 (2d Cir. 1985) ........................................................................................................... 7 Make the Road By Walking, Inc. v. Turner, 378 F.3d 133 (2d Cir. 2004)...................................................................................................... 21

iv

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Marcavage v. City of Syracuse, 2012 U.S. Dist. LEXIS 187137 (N.D.N.Y. June 6, 2012) .......................................................... 5 Marilyn Manson, Inc. v. N.J. Sports and Exposition Auth., 971 F. Supp. 875 (D.N.J. 1997) .................................................................................... 21, 22, 23 N.Y. Magazine v. Metro. Transp. Auth., 136 F.3d 123 (2d Cir. 1998) ............................................................................................. 2, 9, 13 Paulsen v. Cnty of Nassau, 925 F.2d 65 (2d Cir. 1991).............................................................................................. 4, 10, 16 Perry v. McDonald, 280 F.3d 159 (2d Cir. 2001)...................................................................................................... 22 Pinckney v. Board of Education, 920 F. Supp. 393 (E.D.N.Y. 1996) ............................................................................................. 5 Planned Parenthood Ass’n / Chi. Area v. Chi. Transit Auth., 767 F.2d 1225 (7th Cir. 1985) ........................................................................................... 14, 20 Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) .................................................................................................................... 9 Sammartano v. First Judicial Dist. Ct., 303 F.3d 959 (9th Cir. 2002) .................................................................................................... 23 Sanchez v. Turner, 2002 WL 1343754 (S.D.N.Y. June 19, 2002) .......................................................................... 21 Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) .................................................................................................................. 19 Smith v. Fredrico, 2013 WL 122954 (E.D.N.Y. Jan. 8, 2013) ................................................................................. 5 Sons of Confederate Veterans, Inc. v. Commissioner, 288 F.3d 610 (4th Cir. 2002) .................................................................................................... 23 Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) ........................................................................................................ 2, 19, 24 Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964 (2d Cir. 1995).......................................................................................................... 7

v

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Union v. City of N.Y. Dep’t of Parks and Recreation, 311 F.3d 534 (2d Cir. 2002)...................................................................................................... 11 United Food & Commercial Workers Union v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341 (6th Cir. 1998) .............................................................................................. 14, 20 United States v. Grace, 461 U.S. 171 (1983) .................................................................................................................. 10 United States v. Playboy Entm’t Group, Inc., 529 U.S. 803 (2000) .................................................................................................................... 2 Wallikas v. Harder, 78 F. Supp. 2d 36 (N.D.N.Y. 1999) ............................................................................................ 4 Warren v. Fairfax County, 196 F.3d 186 (4th Cir. 1999) .............................................................................................. 11, 13

Treatises 2 Smolla & Nimmer, Freedom of Speech § 20:46 (2013) .............................................................. 3

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Plaintiff Wandering Dago Inc. (“Wandering Dago”) respectfully submits this Reply Memorandum of Law in further support of its Motion for a Preliminary Injunction herein.1 PRELIMINARY STATEMENT Recognizing that they fail the Central Hudson test, both the State and the NYRA Defendants strive to avoid that test by arguing that neither the Empire State Plaza nor the Saratoga Race Course is a public forum. Both arguments are without merit. First, the Empire State Plaza is the “quintessential” public forum and the State’s power to regulate and control the sale of food on the Plaza does not give it the power to censor speech there. Second, whether or not the Saratoga Race Course is a public forum is a fact question on which NYRA provides no information, even though it has the burden. In any event, the nature of the Race Course is irrelevant to the analysis because Plaintiff was not ejected by NYRA as a part of any reasonable regulation of a non-public forum, but as a result of viewpoint censorship by unnamed State officials. Third, both the State Defendants and the State officials who excluded Plaintiff from the Race Course acted pursuant to ad hoc, unguided discretion without reference to any constitutionally-acceptable guidelines. Finally, Plaintiff has clearly suffered and continues to suffer irreparable injury. Defendants’ censorship continues to this day and Defendants will continue to censor Plaintiff’s speech when they exclude Plaintiff from the 2014 season – applications for which will be submitted in a matter of months, long before this action is resolved.
1

To the extent that the State Defendants’ Brief discusses issues not relevant to Plaintiff’s motion for a preliminary injunction, these will be addressed in Plaintiff’s response in opposition to the State Defendants’ motion to dismiss. 1

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I.

DEFENDANTS BEAR THE BURDEN OF JUSTIFYING THEIR CENSORSHIP OF PLAINTIFF’S SPEECH.

The State Defendants argue that Plaintiff bears a “heightened” burden because it seeks relief that would alter the status quo. They are wrong for three reasons. First, as the Supreme Court has held in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 562 (1975), in First Amendment cases, the “status quo” is the speaker’s expected exercise of his or her First Amendment rights before the government interferes with those rights. Here, Plaintiff was about to participate in both the Summer Outdoor Lunch Program and the 2013 Saratoga Summer Season when it was suddenly denied access to both. Thus, the “status quo” is not the continuing ban, but Plaintiff’s expected exercise of its rights. Second, the denial of Wandering Dago’s application on the basis of its name is a textbook example of prior restraint. In such cases, the burden of justification shifts to the government. “[A] system of prior restraint ‘avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.’” Southeastern Promotions, 420 U.S. 546, 559 (1975) (quoting Freedman v. Maryland, 380 U.S. 51, 58 (1965). Such procedural safeguards must assure prompt judicial determination and the burden of both “instituting judicial proceedings, and of proving that the material is unprotected, must rest on the censor.” Id. at 560.2 See also United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 816

Although the Supreme Court has never decided whether the prior restraint doctrine applies to commercial speech (see Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 571 n.13 (1980)), the Second Circuit and other courts have held that commercial speech is entitled to constitutional protection against prior restraint. See N.Y. Magazine v. Metro. Transp. Auth., 136 F.3d 123, 131 (2d Cir. 1998) (“[T]he requirement of procedural safeguards in a system of prior restraints should not be loosened even in the context of commercial speech.”). See also Desert Outdoor Adver., Inc. v. City of Moreno Valley, 103 F.3d 814, 818-19 (9th Cir. 1996) (holding a licensing scheme to be an unconstitutional prior restraint before independently considering its constitutionality as a restriction on commercial and non-commercial speech); In 2

2

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(2000) (“When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions …. Content-based regulations are presumptively invalid and the Government bears the burden to rebut that presumption”) (internal citations omitted) (citing cases). Third, whatever burden Plaintiff nominally bears, it easily meets that burden because irreparable injury is legally presumed when First Amendment rights are interfered with (see Point II below) and, under the Central Hudson test, all Plaintiff need show is that the commercial speech concerns lawful activities and is not misleading. Once a plaintiff demonstrates those facts (which are clearly undisputed here), the burden shifts to the government to show that its interest is substantial, that the regulation directly advances the government interests asserted, and that the restriction is not more extensive than necessary to serve that purpose. Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71 n.20 (1983); Desert Outdoor Adver., 103 F.3d at 819. Thus, the burden of justifying their censorship rests with Defendants. Significantly, none of the Defendants even attempts to meet that test. II. PLAINTIFF HAS ESTABLISHED IRREPARABLE INJURY.

Defendants argue that Plaintiff cannot establish irreparable injury because (1) it has “framed its damages solely in economic terms” (State Defs.’ Br. 5), and it can be fully compensated for monetary damages; (2) Plaintiff suffered only a “discrete act” of deprivation of

re Search of Kitty’s E., 905 F.2d 1367, 1371 n.4 (10th Cir. 1990) (stating that “the Supreme Court has not distinguished between political and commercial speech when it has held that any prior restraint must be followed by prompt judicial review”); 2 Smolla & Nimmer, Freedom of Speech § 20:46 (2013) (“The decision in New York Magazine [is] consistent with recent decisions in other federal circuits indicating that the procedural safeguards normally required for prior restraints do indeed apply to commercial speech.”). 3

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rights (id.); (3) the OGS’s Summer Outdoor Lunch Program is about to end, and NYRA’s summer meet at the Saratoga Race Course has already ended; and (4) Plaintiff exercised undue delay in the bringing of this action. None of these arguments have merit. First, it is well established that the loss of First Amendment freedoms, even for a minimal period of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976); Paulsen v. Cnty of Nassau, 925 F.2d 65, 68 (2d Cir. 1991) (plaintiffs have met the requirement for showing irreparable injury because they have been prevented from exercising their First Amendment rights.); Lark v. Lacy, 43 F. Supp. 2d 449, 476-77 (S.D.N.Y. 1999) (even an alleged violation of constitutional rights triggers a finding of irreparable injury); Coal. for Abortion Rights and Against Sterilization Abuse v. Niagara Frontier Transp. Auth., 584 F. Supp. 985, 989 (W.D.N.Y. 1984) (“Where constitutionally protected speech is thwarted, irreparable injury results.”). Thus, although Plaintiff also claims monetary damages, it has not “framed its damages solely in economic terms,” and Defendants’ attempt to so characterize Plaintiff’s claims does not make them so.3 Plaintiff continues to suffer irreparable injury as a direct result of its

3

Moreover, the cases cited by Defendants in support of their argument that there has been no irreparable injury show no such thing. In Bronx Household of Faith v. Board of Education of New York, 331 F.3d 342, 349-50 (2d Cir. 2003), the Second Circuit drew a distinction between cases “[w]here a plaintiff alleges injury from a rule or regulation that directly limits speech,” and those “where a plaintiff alleges injury from a rule or regulation that may only potentially affect speech.” Finding that “the alleged deprivation of plaintiffs’ First Amendment rights results directly from a policy of the defendant,” the court concluded that “irreparable harm may be presumed.” Id. at 350. Here, as in Bronx Household, both the NYRA and the State Defendants admit that their actions were taken on the basis of Wandering Dago’s speech, and allegedly pursuant to a policy. Both Wallikas v. Harder, 78 F. Supp. 2d 36, 38 (N.D.N.Y. 1999), and American Postal Workers Union v. U.S. Postal Service, 766 F.2d 715, 722 (2d Cir. 1985), involved allegedly retaliatory employment actions on the basis of protected speech. In both cases, the challenged actions involved solely past speech, and the court found no irreparable injury due to the failure to show a chilling effect on future speech. In City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983), the Court held that a plaintiff alleging past police brutality could not show irreparable injury without demonstrating a likelihood that he would be subject to 4

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First Amendment rights being infringed upon. Second, Plaintiff alleges more than a “discrete act” of censorship: it is banned

indefinitely from both the Plaza and the Race Course. The censorship is ongoing. Although it is true that the 2013 Saratoga season has ended and the OGS Outdoor Program is soon to end, arrangements for space in both programs for next summer will begin in early 2014. As is more fully set forth in the Declaration of Andrea Loguidice, Plaintiff originally began discussing inclusion in the 2013 season with Centerplate, Inc., NYRA’s designated management company for the Saratoga Race Course, in early January 2013 and reached agreement in April. Declaration of Andrea D. Loguidice, dated September 16, 2013 (“Loguidice Reply Decl.”) at ¶¶ 23-29. OGS will begin accepting applications for its program sometime in early 2013. Plaintiff seeks a preliminary injunction that would last during the pendency of this action. Unquestionably, the action will extend into 2014 during the period when NYRA or its designated management company will be negotiating with vendors for space for the 2014 track season and OGS will be accepting applications for the Summer 2014 program in which “[s]pace is limited.” In order to avoid the subterfuge by both OGS and NYRA that Plaintiff will be barred because it

similar future brutality. In Marcavage v. City of Syracuse, 2012 U.S. Dist. LEXIS 187137, at *8-10 (N.D.N.Y. June 6, 2012), the plaintiff alleged an unconstitutional policy concerning sound amplification, but the court found no irreparable injury because the policy had since been changed by the city, and the new policy did not suffer from the same constitutional defects. In Hohe v. Casey, 868 F.2d 69, 73 (3d Cir. 1989), the court found that non-union employees challenging Union pay deductions had suffered only a monetary injury because any connection between pay deductions and their own speech was too remote. In both Pinckney v. Board of Education, 920 F. Supp. 393, 400 (E.D.N.Y. 1996) and Smith v. Fredrico, 2013 WL 122954, at *1 (E.D.N.Y. Jan. 8, 2013), the requested injunctive relief (in Pinckney, restored salary and benefits; in Smith, return of seized property) was equivalent to money damages. Finally, Libin v. Town of Greenwich, 625 F. Supp. 393 (D. Conn. 1985), fully supports Wandering Dago’s position. In Libin, plaintiffs alleged a continuing violation of establishment clause rights, and the court held that “[t]here is no question that a violation of the plaintiffs’ First Amendment rights cannot be remedied by an award of monetary damages.” Id. at 395. 5

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applied too late, it needs a preliminary injunction now to prevent Defendants from continuing with their unconstitutional acts in 2014. See E. Meadow Cmty. Concerts Ass’n v. Bd. of Educ. of Union Free Sch. Dist. No. 3, 18 N.Y.2d 129, 135 (1966) (claim for violation of First Amendment rights not moot just because scheduled date for concert has passed; plaintiff expressed interest in doing concerts in the future). Third, even with regard to the damages, there is a very practical reason why Plaintiff should be accorded the opportunity to participate in the OGS program during the remaining two weeks. OGS will undoubtedly argue that Plaintiff cannot establish lost profits from being excluded from the program because damages are speculative. Allowing Plaintiff to participate, even for short period of time, will allow Plaintiff to establish at least some yardstick to demonstrate damages. Finally, Defendants claim that irreparable injury should not be presumed because Plaintiff unduly delayed bringing this action. But there was no undue delay. With regard to the State Defendants, any delay was the result of their dissembling and refusal to provide accurate and complete information to Plaintiff. As is more fully set forth in the Loguidice Reply Decl., Wandering Dago learned it had been excluded in an email which was, at best, misleading as to the reasons for the denial. Plaintiff consistently sought an

explanation as to why it had been denied and was provided with clearly pretextual reasons. When Wandering Dago asked for a written explanation for its denial, it was told that it would have to file a FOIL request. Despite having sent several written requests for explanations, Wandering Dago has, to this date, never received a response to its FOIL request. Until it filed this action, Wandering Dago could not even get a written statement of the reasons for the denial or the specific rules or regulations providing OGS’s legal authority for denying the application.

6

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Under these circumstances, any delay in bringing an action against the State is certainly understandable. Loguidice Reply Decl. at ¶¶ 8-22. With regard to NYRA, Plaintiff was removed from the Race Course on July 19, 2013. Plaintiff immediately began searching for counsel, having had discussions concerning representation with a not-for-profit legal group and other attorneys. Ultimately, Plaintiff retained the undersigned on August 12, 2013. On August 13, 2013, counsel wrote to OGS and NYRA and urged them to resolve the matter without litigation. OGS counsel, to their credit, contacted the undersigned and at least engaged in some discussions which, unfortunately, could not resolve the matter. NYRA never provided any response. Having failed to resolve the matter with OGS counsel and having received no response from NYRA, Plaintiff commenced this action and moved for a preliminary injunction on August 27, 2013. Loguidice Reply Decl. at ¶¶ 30-44; Declaration of George F. Carpinello, dated September 16, 2013 (“Carpinello Decl.”) at ¶¶ 2-11. Thus, this action was timely.4

Each of the cases cited by Defendants in support of their undue delay argument (none of which involves a First Amendment injury) involves a significantly longer delay between injury and a motion for preliminary injunction. See Majorica, S.A. v. R.H. Macy & Co., Inc., 762 F.2d 7, 8 (2d Cir. 1985) (“several years”); Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985) (“more than nine months”); Coll. Entrance Exam. Bd. v. Cuomo, 788 F. Supp. 134, 145 (N.D.N.Y. 1992) (twelve years); Firemen’s Ins. Co. of Newark v. Keating, 753 F. Supp. 1146, 1158 (S.D.N.Y. 1990) (“almost eleven months” (emphasis omitted)); see also Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964, 968 (2d Cir. 1995) (“more than a year”); Borey v. Nat’l Union Fire Ins. Co. of Pittsburgh, 934 F.2d 30, 35 (2d Cir. 1991) (three years); Abish v. Nw. Nat’l Ins. Co. of Milwaukee, 924 F.2d 448, 454 (2d Cir. 1991) (“nearly four years”). Moreover, courts have found irreparable harm despite greater delay. See, e.g., Hasbro, Inc. v. Lanard Toys, Ltd., 858 F.2d 70, 72 (2d Cir. 1988) (six months); Kadant, Inc. v. Seeley Machine, Inc., 244 F. Supp. 2d 19, 34 (N.D.N.Y. 2003) (“approximately four months”). Finally, courts have held that the reasoning in Citibank has less force when dealing with ongoing or future First Amendment violations. See, e.g., Daily v. N.Y. City Hous. Auth., 221 F. Supp. 2d 390, 396 (E.D.N.Y. 2002) (plaintiff alleging First Amendment violation was “sufficiently diligent” despite two to three month unexcused delay, and delay “does not undermine the fact that she still cannot use the [community center] for her proposed sessions”). 7

4

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III.

THE STATE DEFENDANTS CANNOT JUSTIFY THEIR CONDUCT AS “PROPRIETARY” AND OCCURRING IN A NON-PUBLIC FORUM.

The State Defendants claim that they are entitled to censor Plaintiff’s speech because the State is acting in a “proprietary” capacity and in a non-public forum. Thus, they argue, the rules of Central Hudson do not apply. Their contention is not supported by either the facts or the law. The Empire State Plaza is a “quintessential” public forum; the proposed activities of Plaintiff and all food vendors are open to the public; and the State’s power to exercise reasonable regulation over State property and to “license” vendors does not give the State authority to censor speech. A. The Plaza Is a Public Forum.

In a series of cases, the Supreme Court and the lower courts have delineated the various types of fora that are applicable to First Amendment analysis. At one end are classic public fora: such as parks, streets, and public squares, which are quintessential places of First Amendment activity and over which the state has very circumscribed power to limit speech. At the other end are government properties that are not, by design or purpose, intended to be places for the dissemination of speech by members of the public. The government can fully ban speech in those locations so long as the government acts reasonably and its decisions are not viewpoint related. Some government properties, such as buses and train stations are not, by tradition or design, public fora, but may become public fora by government action that allows expressive activity to occur. These “designated public fora” are, like traditional public fora, places where government control of speech is strictly circumscribed. Finally, where the government allows limited types of speech, but not all speech, it creates a so-called “limited public forum.” In such limited public fora, the government can proscribe other forms of speech so long as its decisions are reasonable and are viewpoint neutral. But for the limited kinds of speech that are allowed, the limited public forum is treated like a classic public forum and government control of such 8

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speech is strictly circumscribed. See generally Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677-78 (1998); Int’l Soc’y For Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 67880 (1992); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46 (1983); N.Y. Magazine, 136 F.3d at 128-30. Much ink has been spilled by the courts in attempting to delineate the different public fora, but this Court need not spend any significant time on the issue because it is clear, beyond a doubt, that the Empire State Plaza, where Wandering Dago sought to sell its food, is the quintessential public forum. As the Supreme Court recently said in Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469 (2009), courts long ago recognized that members of the public retain strong free speech rights when they venture into public streets and parks, which 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. In order to preserve this freedom, government entities are strictly limited in their ability to regulate private speech in such traditional public fora. (internal quotation marks and citations omitted). See also Grayned v. City of Rockford, 408 U.S. 104, 115 (1972) (“The right to use a public place for expressive activity may be restricted only for weighty reasons”); E. Conn. Citizens Action Group v. Powers, 723 F.2d 1050, 1054 (2d Cir. 1983) (“[C]ourts have opened to specific forms of expressive activity public property that serves a function akin to streets and parks as an arena for discussion.”). The Empire State Plaza is a quarter-mile stretch of open space surrounded on four sides by government buildings. It is bounded on the north by the New York State Capitol, on the south by the New York State Cultural Education Building, on the East by Corning Tower, and on the west by four agency towers (buildings 1 through 4). The space has sidewalks, trees and grass areas and large reflecting pools. See Carpinello Decl. at ¶¶ 13-14 and Exs. C, D thereto. Behind

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the four agency towers is a quarter-mile-long state office building. The Plaza is open on all sides and can be and is traversed by pedestrians. The State holds or allows numerous functions on the Empire State Plaza, including political rallies, concerts, festivals, cultural events, fireworks and a myriad of other events. Carpinello Decl. at ¶ 12.5 The State Defendants concede that the Empire State Plaza is an “outdoor space,” “populated primarily by State employees and visitors to the Capital [sic],” “flanked by [State] offices,” and “reserved for the peaceful use and enjoyment by State employees and the visiting public.” State Defs.’ Br. 8-9, 11, 16. Moreover, the Plaza is an extension of the classic public fora that surround it: the concourse below, the Egg, the

Convention Center, the Capitol, and the public streets that bound it. Thus, by its very nature, the Plaza is a public forum, and the government cannot restrict speech by declaring or acting as if it were something other than a public forum. See United States v. Grace, 461 U.S. 171, 180 (1983) (holding that a federal statute prohibiting the display of banners, flags, or devices on the sidewalks surrounding the Supreme Court was unconstitutional because the sidewalk was a public forum and could not be declared to be anything other than a public forum by government ipse dixit); Edwards v. South Carolina, 372 U.S. 229, 235-38 (1963) (criminal convictions of African-American demonstrators who peaceably demonstrated on the sidewalk and driveway in front of the South Carolina State Capitol were unconstitutional); Deegan v. City of Ithaca, 444 F.3d 135, 141 (2d Cir. 2006) (pedestrian mall in downtown Ithaca was the “prototypical” and “quintessential” public forum because it was available for public expression and the free exchange of ideas and had been used
5

The State Defendants attempt to argue that the Plaza is not open because the OGS website “specifically limits access to the Plaza by visitors,” citing an OGS webpage. State Defs.’ Br. 13 n.7. The webpage purports merely to impose time restrictions on the Plaza, which is not in any way inconsistent with its nature as a public forum. See Ex. 15 to Carpinello Decl. Moreover, as any resident or visitor to Albany knows, those time restrictions are never enforced. 10

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for that purpose); Paulsen, 925 F.2d at 69-71 (Nassau Coliseum and surrounding sidewalks and mall are a public forum because County intended the site to be used for a wide variety of expressive activity and it was so used); Am. Civil Liberties of Nev. v. City of Las Vegas, 333 F.3d 1092, 1101-02 (9th Cir. 2003) (publicly-owned pedestrian mall located in the middle of downtown was a public forum because it was open for public access as a public thoroughfare, and it was entirely compatible with expressive activity such as leafleting and other First Amendment conduct); Lederman v. United States, 291 F.3d 36, 41-44 (D.C. Cir. 2002) (U.S. Capitol grounds including sidewalk in front of Capitol are a public forum); cf. Hotel Emps. & Rest. Emps. Union v. City of N.Y. Dep’t of Parks and Recreation, 311 F.3d 534, 552 (2d Cir. 2002) (distinguishing the plaza at Lincoln Center from a quintessential public forum: “[B]ecause the Plaza is not surrounded by government buildings, it is easily distinguished from those plazas and squares in which political speech has historically been protected.”). The Fourth Circuit’s decision in Warren v. Fairfax County, 196 F.3d 186 (4th Cir. 1999) (en banc) is directly on point. In that case, the court held that a long, grassy mall that abutted the county government center complex was the quintessential public forum because its “objective use is as a place of open public access, which is eminently compatible with expressive activity”; because it is “part of the outdoor grounds of a seat of legislative and/or executive power”; and because it is a “combination of the three prototypical examples of traditional public fora – streets, sidewalks, and parks.” 196 F.3d at 189-90. The same, of course, is true here. The Plaza is a place of open public access; it is completely compatible with expressive activity and has been used for such; it is the outdoor grounds of the seat of every branch of the State government; and it is a combination of prototypical public fora, that is, it is a combination of streets, sidewalks, and parks. Thus, the Plaza is a public forum.

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The State Defendants suggest, however, that the Plaza is a place of employment, and as an “employer,” the State has a compelling interest in preventing objectionable speech and discrimination in the workplace. But the Plaza is not a place of employment; it is a plaza, which, as Defendants must concede, is freely open to the public (State Defs.’ Br. 8-9, 12). The State Defendants also argue that the State, through its regulations, has indicated an intent “to preserve its property for particularized intended uses” (State Defs.’ Br. 12) and that the State has not “abandoned any claim that it has special interests in regulating the speech permitted in the forum” (id. at 11 (internal quotation marks omitted)). This argument is also wrong on the facts and the law. It is wrong on the facts because the State has allowed all kinds of expressive activity on the Plaza. See Carpinello Decl. ¶ 12 and Ex. B thereto. The State Defendants have conceded as much. Affidavit of William F. Bruso, Jr., dated Sept. 10, 2013, at ¶ 9

(acknowledging that Plaza has been used for “political events, protests and/or political speech” “in a few limited instances”).6 It is wrong on the law because the government’s intent is relevant only when considering limited or designated public fora. Classic public fora are considered such because of their fundamental nature, and the State cannot convert them into something else by engaging in the very censorship that is challenged. Ark. Educ. Television Comm’n, 523 U.S. at 677 (“[T]raditional public fora are open for expressive activity regardless of the government’s intent. The objective characteristics of these properties require the government to accommodate private speakers.”). The State Defendants further argue that they can freely ban Plaintiff’s speech because the

Indeed, there was a political demonstration on the Plaza on August 14, 2013, the day OGS received Plaintiff’s counsel’s letter demanding that Plaintiff be given access. See Ex. B to Carpinello Decl.

6

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Summer Outdoor Lunch Program is a limited program which admits only the vendors OGS approves of and that allowing Plaintiff to participate in that program would imply State ownership of Plaintiff’s language. But this argument is entirely circular: because the State chooses to regulate speech on the Plaza, it may regulate speech on the Plaza.7 Certainly, the State can impose reasonable non-speech regulations that, for example, control the number and type of vendors, ensure wholesome food or prevent obstruction of pedestrians, but the power to impose that kind of regulation and the power to call it “OGS’s Summer Outdoor Lunch Program” does not convert the Plaza into a non-public forum. Otherwise, the government could unilaterally close off all public fora by merely stating that those who wish to use it must be part of a government-sponsored program. As the Second Circuit explained in New York Magazine, 136 F.3d at 129-30: [I]t cannot be true that if the government excludes any category of speech from a forum through a rule or standard, that forum becomes ipso facto a non-public forum, such that we would examine the exclusion of the category only for reasonableness. This reasoning would allow every designated public forum to be converted into a non-public forum the moment the government did what is supposed to be impermissible in a designated public forum, which is to exclude speech based upon content. B. The State Defendants Have No Clearly Articulated Policy For Use of the Plaza.

Even if this Court were to hold that the Plaza were not a classic public forum, Defendants still could not restrict Plaintiff’s access to that forum because it has no clearly articulated policy limiting the kind of speech that can be spoken there. As noted above, the State allows all kinds of speech on the Plaza. Where a government allows for speech to occur at a forum, but enforces no clearly delineated guidelines limiting the type of speech, it has created a designated public
7

“The restriction on speech cannot be used to justify itself, but must be justified by reference to some non-speech-restrictive aspect of the forum.” Warren, 196 F.3d at 191 n.4. 13

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forum and must meet the strict traditional criteria for limiting speech. See N.Y. Magazine, 136 F.3d at 130 (generally allowing political and commercial speech without limitation indicates government intent to open the space for discourse thereby creating a designated public forum); United Food & Commercial Workers Union v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341, 35052 (6th Cir. 1998) (court will find a limited public forum only when the government’s “standards for inclusion and exclusion are clear and are designed to prevent interference with forum’s designated purpose”); Christ’s Bride Ministries, Inc. v. Se. Penn. Transp. Auth., 148 F.3d 242, 250-52 (3d Cir. 1998) (because transportation authority accepted a wide variety of advertising and because it had no clearly delineated standards for determining what advertising it would accept, its buses became a designated public forum, subject to First Amendment restraints); Planned Parenthood Ass’n / Chi. Area v. Chi. Transit Auth., 767 F.2d 1225, 1232-33 (7th Cir. 1985) (finding that transit authority’s advertising system created a public forum because there were no written standards to guide application of any policy to reject certain types of speech);8 Coal. for Abortion Rights, 584 F. Supp. at 989 (transportation agency’s practice of accepting ads without a clearly delineated policy demonstrated that the transportation authority had created a public forum subject to full First Amendment restraints). C. The State Defendants Cannot Meet the Central Hudson Test.

Because the Plaza is a public forum, the State’s ability to restrict speech is strictly circumscribed. In the context of commercial speech, Defendants have the burden of establishing (1) the State interest in suppressing speech is substantial; (2) that the speech ban directly

In a finding that is particularly relevant here, the District Court in Planned Parenthood found that Chicago Transit Authority’s purported “long-standing, consistently enforced policy” to be contrived solely for purposes of responding to the plaintiff’s complaint. 767 F.2d at 1228. The court so found after taking testimony at a bench trial. 14

8

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advances that State interest; and (3) that the ban is no more extensive than necessary to meet that interest. Central Hudson, 447 U.S. at 564. The State Defendants, sub silentio, concede that they cannot meet this test because they make no effort to do so in their brief. Indeed, their only reference to Central Hudson is in a footnote. See State Defs.’ Br. 10 n.6. In any event, they clearly cannot meet that test because the only State interest they cite is the State’s desire to ban “objectionable” speech, which is not a legitimate state interest (see Pl. Br. 11-14). Moreover, the State undertakes no effort to prevent such racial or ethnic “objectionable” speech in other contexts. See Carpinello Decl. at ¶¶ 16-19 and Exs. G-I thereto. What the Second Circuit said in Bad Frog Brewery Inc. v. New York State Liquor Authority is directly relevant here. In Bad Frog, the court said that the State’s interest in preventing exposure of children to vulgar displays merely by limiting displays on alcoholic beverages did not substantially advance that state interest: In view of the wide currency of vulgar displays throughout contemporary society, including comic books targeted directly at children, barring such displays from labels for alcoholic beverages cannot realistically be expected to reduce children’s exposure to such displays any significant degree …. ... A state may not avoid the criterion of materially advancing its interest by authorizing only one component of its regulatory machinery to attack a narrow manifestation of a perceived problem …. ... Our point is that a state must demonstrate that its commercial speech limitation is part of a substantial effort to advance a valid state interest, not merely the removal of a few grains of offensive sand from a beach of vulgarity. Bad Frog Brewery Inc. v. New York State Liquor Authority, 134 F.3d 87, 99-100 (2d Cir. 1998). Thus, the State Defendants cannot (and therefore do not try to), argue to this Court that

15

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banning Wandering Dago from the Plaza advances any serious state interest when, at the same time, the state allows the performance of music at the Saratoga Performing Arts Center that blatantly and liberally uses patently offensive racial slurs and such performances occur all over the State. Carpinello Decl. at ¶¶ 16-21 and Exhibit G-M thereto. IV. THE NATURE OF THE SARATOGA RACE COURSE IS IRRELEVANT BECAUSE THE EXCLUSION WAS DONE AT THE DIRECTION OF STATE OFFICIALS WITHOUT REGARD TO ANY POLICY CONCERNING USE OF THE PROPERTY.

Like the State Defendants, NYRA seeks to avoid the Central Hudson test by arguing that the Saratoga Race Course is not a public forum and that, therefore, it is free to exclude Plaintiff based upon its speech. Significantly, however, even though the NYRA Defendants have the burden, their papers are peculiarly devoid of any explanation of what NYRA’s policy is with regard to the kind of speech allowed at the Race Course.9 As is more fully set forth above (in Point III(B)), where a state actor allows some speech but has no clearly-delineated policy as to the kind of speech it will allow, the designated or limited forum becomes a full public forum. NYRA cites a series of cases holding that certain sports venues are not public fora10 but, in each of those cases dealing with limitations on speech, the governing body had clearlyarticulated guidelines as to the kind of speech it would allow. NYRA presents no such policy with regard to the Saratoga Race Course other than to cite a statute that says that NYRA can exclude “obnoxious” people from its properties. NYRA Defs.’ Br. 2, 17-18. Having no clearlyarticulated policy limiting the kind of speech that can occur at the Race Course, NYRA has opened the Course as a public forum.
9

Plaintiff sought limited discovery of this issue but its request was denied. See Note 12, infra.

10

Noticeably, it fails to even reference Paulsen v. County of Nassau, 925 F.2d 65 (2d Cir. 1991), in which the Second Circuit found that the Nassau Coliseum was a public forum. 16

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But the Court need not reach this issue because it is irrelevant to the question before the Court. The nature of the Saratoga Race Course is irrelevant to Plaintiff’s motion because it is clear on the facts before the Court that Plaintiff was not excluded because of any clearlyarticulated policy preserving the Race Course for particular uses, but because unnamed State officials told NYRA to get Plaintiff off the premises. Both Andrea Loguidice’s original affidavit and Brandon Snooks’s reply declaration recount Mr. Travers’s admission that his “hands [were] tied” because NYRA was directed to remove Plaintiff by State officials. Affdiavit of Andrea D. Loguidice, dated August 26, 2013, at ¶ 43; Declaration of Brandon T. Snooks, dated September 16, 2013 at ¶ 17. Significantly, neither NYRA’s brief nor Mr. Travers’s 54-paragraph declaration mentions, let alone rebuts, Ms. Loguidice’s statements about this admission. Indeed, Mr. Travers’s carefully-worded

declaration avoids any reference to the ultimate decision-makers, merely stating that “[d]uring the evening of July 19, NYRA decided to remove Plaintiff’s truck from the Race Course.” Declaration of Stephen Travers, dated Sept. 11, 2013 (“Travers Decl.”) at ¶ 43. Peculiarly absent is any attempt to rebut Ms. Loguidice’s statement that the removal was at the instigation of State officials.11 NYRA, of course, cannot hide the true facts forever, and when Plaintiff finally gets discovery,12 we will all learn who made the decision to ban Plaintiff. But for purposes of this

11

The absence of any such rebuttal is particularly strange since Mr. Travers makes a point of noting, in the context of the set-up of Plaintiff’s propane tank, that “the property was subject to New York Office of General Services regulations.” (Travers Decl. ¶ 39). As this Court is aware, Plaintiff sought very limited discovery in anticipation of exactly these types of factual issues (Docket No. 13). NYRA and the State Defendants adamantly opposed any such discovery (Docket Nos. 20, 22). Judge Treece denied Plaintiff’s request unless Plaintiff 17

12

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motion, where NYRA bears the burden justifying its conduct (see Point I, supra), Plaintiff’s evidence that it was State censorship stands unrebutted. Nor could NYRA’s conduct be explained in any other way. Plaintiff had negotiated with NYRA’s designated catering company for months and NYRA proudly announced in a press release that Wandering Dago and its Italian fusion cuisine would be a main attraction at the Race Course for the 2013 season. The notion that this all slipped through the cracks because Mr. Travers had no idea of the historical use of the word “dago” strains credibility. Like State Defendant’s argument that Plaintiff was denied access to the Plaza in part because of an “incomplete application,”13 it is an affront to the intelligence of the Court. Because Plaintiff was removed from the Race Course as a result of the single, completely discretionary decision of one or more public officials, acting outside any guidelines or standards, and based upon their personal views of Plaintiff’s speech, all of NYRA’s 11-page argument about non-public forum and proprietary judgment is completely irrelevant. The censorship that occurred was not the result of the neutral and reasonable enforcement of an established policy (the nature and extent of which has been kept from the Court), but the result of clear viewpoint discrimination by certain unnamed State officials who did not like Plaintiff’s message. See Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 806 (1985) (even in a non-public forum, “the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.”).14

agreed to a 30-day delay for the preliminary injunction hearing and, even then, held that all such discovery would be “narrowly tailored and limited” (Docket No 25).
13

There was no “incomplete application.” See Loguidice Reply Decl. at ¶¶ 6-7. None of the cases cited under heading “Fourth” in the NYRA Defendants’ Brief on page 19 is 18

14

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V.

DEFENDANTS’ AD HOC EXCLUSION OF PLAINTIFF WAS THE RESULT OF UNCONSTITUTIONAL, UNBRIDLED DISCRETION.

All Defendants cite to the Court post hoc rationalization of their conduct, citing regulations or statutes that obviously have no relevance to Plaintiff’s speech. The State cites regulations that allow OGS to limit use that is “inconsistent with the designated purpose of the specific location requested” or use that would “unreasonably interfere with the enjoyment of the location by others.” State Defs.’ Br. 13. The NYRA Defendants cite a state regulation that gives NYRA authority to reject any person “whose conduct at a race track in New York … is or has been improper, obnoxious, unbecoming or detrimental to the best interests of racing ….” NYRA Defs.’ Br. 2. Unlike the standards set forth in the many of the cases cited by Defendants, these regulations obviously have nothing to do with the regulation of speech. Nonetheless, even if such regulations were relevant to the issue at hand, they clearly vest unacceptable discretion in state officials to exclude speech they personally do not like. The absence of a clearly-articulated, consistently-enforced policy violates the First Amendment because it vests undue discretion in a public official, whereby that official can abridge free speech using his or her unbridled discretion. As the Supreme Court explained in Southeastern Promotions, 420 U.S. at 553, “the Court has felt obliged to condemn systems in which the exercise of such authority was not bounded by precise and clear standards. The reasoning has been, simply, that the danger of censorship and of abridgement of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum’s use.” See also Shuttlesworth v. City of Birmingham, 394 U.S. 147, 149-50 (1969) (ordinance

relevant to the issue here. Each of these cases deals with government contractors that claim that they were denied a contract (unrelated to speech) because they criticized the government. The standard used in such cases has never been applied in cases such as this that involove direct censorship of speech. 19

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which gave a city commission the discretion to ban a parade where, in its judgment, “the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused” was patently unconstitutional because it gave the commission “virtually unbridled and absolute power to prohibit any ‘parade,’ ‘procession,’ or ‘demonstration’ on the city’s streets or public ways.”); Lewis v. Wilson, 253 F.3d 1077, 1079-81 (8th Cir. 2001) (Missouri statute that banned personalized license plates that were “inflammatory or contrary to public policy” was unconstitutionally vague and overbroad and vested “nearly unfettered discretion” in public officials); United Food & Commercial Workers Union, 163 F.3d at 357-61 (“[A] statute or ordinance offends the First Amendment when it grants a public official ‘unbridled discretion’ such that the official’s decision to limit free speech is not constrained by objective criteria, but may rest on ‘ambiguous and subjective reasons’”; giving officials the power to ban “controversial” speech unconstitutional); Desert Outdoor Adver., 103 F.3d at 818-19 (noting that laws “cannot condition the free exercise of First Amendment rights on the ‘unbridled discretion’ of government officials,” the court finds that a sign ordinance giving officials discretion to ban signs that are harmful to the community’s health, welfare, or aesthetic quality, is unconstitutionally vague); Planned Parenthood Ass’n, 767 F.2d at 1230 (“We question whether a regulation of speech that has as its touchstone a government official’s subjective review that the speech is ‘controversial’ could ever pass constitutional muster.”); Cinevision Corp. v. City of Burbank, 745 F.2d 560, 571 (9th Cir. 1984) (standard for approval of concert in municipallyowned concert hall which allowed municipality to disapprove a concert if it has “the potential of creating a public nuisance” is unconstitutionally vague.); Children First Foundation, Inc. v. Martinez, 829 F. Supp. 2d 47, 64-65 (N.D.N.Y. 2011) (McCurn, J.) (New York regulation that allows commission to ban license plates that are “obscene, lewd, lascivious, derogatory to

20

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particular ethnic or other group, or patently offensive” is unconstitutional) (emphasis added); Davis v. Stratton, 575 F. Supp. 2d 410, 420 (N.D.N.Y. 2008) (Kahn, J.) (college’s unwritten policy banning videotaping vested “virtually complete discretion in the hands of campus administrator” and therefore was unconstitutional.), rev’d on other grounds, 360 F.App’x 182 (2d Cir. 2010); E. Timor Action Network, Inc. v. City of N.Y., 71 F. Supp. 2d 334, 346 (S.D.N.Y. 1999) (policy of New York City allowing temporary street signs, except for signs which were “controversial,” is unconstitutional: “Keeping politically sensitive speech out of the designated forum is not a compelling reason. ‘The avoidance of controversy is not a valid ground for restricting speech in a public forum …’” (quoting Cornelius, 473 U.S. at 811)); Coal. for Abortion Rights, 584 F. Supp. at 989 (the banning of abortion ad “made in the absence of any set policy to determine the propriety of commercial or noncommercial ad content” was a violation of free speech rights); Sanchez v. Turner, 2002 WL 1343754, at *4 (S.D.N.Y. June 19, 2002) aff’d on other grounds sub. nom. Make the Road By Walking, Inc. v. Turner, 378 F.3d 133 (2d Cir. 2004) (human resources department’s policy of reserving the right to exclude people from its premises without “any guidelines or regulations that specify what kinds of activities the commissioner may or may authorize” is a policy “based on presumptively private criteria [which] is invalid on its face.”). Even in the context of a baseball stadium, it has been held that a policy banning banners that are not “in good taste” was unconstitutionally vague because it vested too much discretion in the stadium’s security force to ban speech that such personnel found to be offensive. Aubrey v. City of Cincinnati, 815 F. Supp. 1100, 1104 (S.D.Oh. 1993). The court so held, even without making a determination as to whether the stadium was a public forum or not. Id. Similarly, in Marilyn Manson, Inc. v. N.J. Sports and Exposition Auth., 971 F. Supp. 875,

21

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886 (D.N.J. 1997), the court assumed for purposes of the preliminary injunction hearing that the Meadowlands Sports Complex was not a public forum. Nonetheless, the court held that

defendant’s policy of retaining authority to reject a performer on the ground that the performance was “offensive to public morals” constituted “inadequately defined guidelines” and that it was likely that plaintiff would succeed on his claim that such guidelines created an unconstitional prior restraint on speech. Id. at 886-87. The NYRA Defendants seek solace in Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), but the NYRA Defendants misrepresent the holding in Lehman. The advertisement at issue was not barred because it was “offensive to the moral standards of the community,” but because it was political advertising and the transportation authority had a very specific written rule prohibiting political speech. Id. at 300-01. Significantly, the NYRA Defendants can point to no such specific rule here. If the issue before the Court in Lehman were the banning of commercial advertising because it was considered to be “offensive to the moral standards of the community,” the result might have been very different. The NYRA Defendants also rely heavily on Perry v. McDonald, 280 F.3d 159 (2d Cir. 2001) where the Second Circuit upheld Vermont’s policy of refusing to issue vanity plates that failed to comply with its regulations. Perry does not help the NYRA Defendants at all because in Perry, Vermont, unlike NYRA, had a written policy that specifically prohibited scatological terms on license plates, and plaintiff claimed a First Amendment right to use the letters “SHTHPNS.” Unlike here, plaintiff’s proposed license plate was specifically prohibited by clearly-delineated regulation, 280 F.3d at 172 n.9, and the Second Circuit specifically upheld Vermont’s position because the regulation “limits [the State’s] discretion by specifying content,” 280 F.3d at 172.

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VI.

DEFENDANTS HAVE ENGAGED IN VIEWPOINT DISCRIMINATION.

Even if the Plaza or the Race Course were a nonpublic forum, Defendants’ actions would still be unconstitutional because State officials have engaged in viewpoint discrimination and their actions are patently unreasonable. First, it is clear that Wandering Dago has been excluded because of the message it conveys and for no other reason. “[W]here the government is plainly motivated by the nature of the message rather than the limitations of the forum or a specific risk within that forum, it is regulating a viewpoint rather than a subject matter.” Children First Foundation, Inc., 829 F. Supp. 2d at 61 (collecting cases on viewpoint discrimination and quoting Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 971 (9th Cir. 2002)). Sammartano makes clear that, in

determining whether the government decision is viewpoint based, the motive of the actors is “key.” Id. at 972. See, e.g., Sons of Confederate Veterans, Inc. v. Commissioner, 288 F.3d 610, 623-27 (4th Cir. 2002) (seemingly neutral ban on “logos” in Virginia regulation on license plates was in fact viewpoint discrimination motivated by a desire to ban the Confederate flag). We do not have discovery in this case yet, but the evidence before the Court can lead to no other conclusion: some unnamed State officials found the name to be personally offensive. See Marilyn Manson, 971 F. Supp. at 886 (the exclusion of Manson on the ground that his “character [was] offensive to public morals” “appears to be the quintessential essence of content based regulation.”); Lewis, 253 F.3d at 1080 (Missouri officials’ banning of a personalized license plate reading “ARYAN-1” because it was “contrary to public policy” was “if not blatant viewpoint discrimination, certainly could reasonably appear to have been based on the viewpoint of the speaker.”).

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Second, Defendants’ actions in banning Wandering Dago were clearly not reasonable. In determining whether a government acts reasonably in excluding certain speech from a limited forum, the court must determine whether that exclusion is dictated by the characteristics of the forum. See Southeastern Promotions, 420 U.S. at 555 (defendants could make no showing that the production of Hair at the public auditorium was in any way inconsistent with the auditorium’s use.); E. Conn. Citizens Action Group, 723 F.2d at 1055 (“The state may not infringe First Amendment rights on generalized and unsupported assertions that speech would clash with other governmental interests; real and substantial conflict must be demonstrated before constitutional rights may be abridged.”). Sammartano, 303 F.3d at 967-71 (court officials made no showing in the record that banning clothing with gang or organizational symbols was necessary to maintain order in courthouse and specifically rejected any argument based on concern about anything “degrading or offensive to any ethnic, racial, social or political group.”). In this case, Defendants have made no showing that Plaintiff’s presence is inconsistent with the forum. There is nothing inconsistent between a food truck using the name Wandering Dago and the providing of a “limited forum” of food trucks to provide food services to state employees and the “visiting public” on the Plaza. Unlike leafleting in an airport (see Int’l Soc’y for Krishna Consciousness, 505 U.S. at 683-85), accommodating Plaintiff’s truck does nothing to interfere with the purpose of either the Plaza or the Outdoor Lunch Program. Indeed, OGS expressly authorized and licensed the use of the Plaza for food vendors using portable equipment and trucks. Without an adequate explanation of why OGS found such inconsistency, the Court must conclude that Plaintiff was excluded because of the viewpoint it expressed in its speech. See Children First Foundation, Inc., 829 F. Supp. 2d at 63 (proposed license plate was compatible with state program; exclusion was therefore unreasonable); Christ’s Bride Ministries,

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148 F.3d at 255-57 (finding transportation authority’s exclusion of anti-abortion ads to be unreasonable because authority failed to demonstrate how such an ad was incompatible with the purposes of the forum). Similarly, the NYRA Defendants’ actions were clearly unreasonable and based on viewpoint. The person or persons in charge of determining what food vendors would be

appropriate for inclusion in the Race Course’s summer program had not only decided that Wandering Dago was appropriate, but had touted Wandering Dago’s participation the program in a press release. Thus, there was nothing “incompatible” between including Wandering Dago at the Race Course and the underlying purposes of the Race Course. The exclusion of Plaintiff was not the result of NYRA “acting in a proprietary capacity” so as to “preserve the Race Course for the use to which it was lawfully dedicated” (NYRA Defs.’ Br. 18 (internal quotation marks omitted)), but the result of State officials’ overriding of that “proprietary” decision because it offended those officials. Thus, Plaintiff’s exclusion from both the Plaza and the Race Course was unreasonable and viewpoint discriminatory. CONCLUSION For all the foregoing reasons, Plaintiff’s motion for a preliminary injunction should be granted. Dated: September 16, 2013 Albany, New York By:

BOIES, SCHILLER & FLEXNER LLP /s/ George F. Carpinello George F. Carpinello (Bar No. 103750) 30 South Pearl Street Albany, NY 12207 Ph: (518) 434-0600 Attorneys for Plaintiff 25

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