UNITED STATES DISTRICT COURT

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ROBERT LEDERMAN and JACK NESBITT,

.....x

Plaintiffs,
-against-

l0 cv 4800

(RJS)

NEV/ YORK CITY DEPARTMENT OF PARKS AND RECREATION (as a Municipal agency); ADRIAN BENEPE (in his Individual and Official Capacity as the Parks Commissioner); CITY OF NEW YORK (as a municipality); and HONORABLE MICHAEL BLOOMBERG (in his Official Capacity as the Mayor),
Defendants.

X
DEFENDANTS' SUPPLEMENTAL MEMORANDUM OF LAW IN RE,SPONSE TO PLAINTIFF'S' MAY 22,2012 SUPPLEMENTAL SUBMISSIONS AND IN FURTHER

MICHAEL A. CARDOZO
Corporation Counsel of the City of New York Attorney for Defendants 100 Church Street New York, New York 10007 (212) 788-103s sneufeld@law.nyc.gov

GABRIEL TAUSSIG SHERYL R. NEUFELD Of Counsel.

JLINE 4,20T2

PRELIMINARY STATEMENT
Pursuant to the Court's May 14,2012 Order, defendants submit this memorandum

of law in response to plaintif' May 22,2012 supplemental submissions and in further support
of their motion for summary judgment.l As the Court is aware, this case involves a challenge to
the constitutionality, on First Amendment and equal protection grounds, of the provisions of the

Parks Department's Rules regulating the sale

of

expressive matter

in the City's parks (the

"Expressive Matter Vending Rules"). Defendants' motion for summary judgment pursuant to
Fed. R. Civ. P. 56, seeking an order dismissing the complaint and declaring that the Expressive

Matter Vending Rules do not violate plaintiffs' First Amendment or equal protection rights, was

fully briefed and filed

as

of October 20, 2011, By letter to the Court dated May 74, 2012,

and

supplemental submissions filed on May 22, 2072, plaintiffs claim that they "have new material

evidence that defeats defendants' summary judgment motion as a matter of

Supplemental Memorandum of Law ("P1. Sup. Mem.") at

law." Plaintiffs'

l.

As detailed below, plaintif' so-

called "evidence" is nothing more than misguided and unsupported assumptions about the import

of a letter submitted by the Parks Department to the Environmental Control Board ("ECB") in
January 2012 and a statement recently reported in the media.

ARGUMENT In their supplemental papers, plaintiffs claim that there have been three "crucial
developments" in the case since the filing of defendants' summary judgment motion. First,

plaintiffs point to recent press accounts regarding the Parks Department generally not enforcing
the Expressive Matter Vending Rules against performers, buskers and musicians, and argue that

The terms defined in defendants' papers submitted in support of their motion for summary judgment are used again here without definition. Along with this memorandum of law, defendants also submit a supplemental declaration from Michael Dockett, dated June 4, 2012, in response to plaintiffs' supplemental submissions ("Dockett Supp. Dec.").

'

defendants should be denied summary judgment because enforcing the Expressive Matter

Vending Rules against sellers of artwork, but not entertainers, suggests that artists are being
targeted for enforcement and violates the Equal Protection Clause. Second, plaintiffs baselessly

misinterprel aletter2 sent by the Parks Department to the Environmental Control Board ("ECB")
on January 25,2012 withdrawing several Notices of Violation ("NOVs") that had been issued to

certain performers in V/ashington Square Park, and claim that the Parks Department is only enforcing the Expressive Matter Vending Rules against artists in Union Square Park. Third,

plaintiffs point to the Parks Department's decision to proceed with the adjudication of NOVs
issued to Robert Lederman for vending outside

of designated spots in High Line Park, while

withdrawing certain NOVs issued to performers

in

V/ashington Square Park as supposed

evidence that the Parks Department is retaliating against Robert Lederman.3 Pl, Supp. Mem. at
2-3.

' A copy of this letter is provided with plaintiffs' supplemental

submissions, Plaintiffs'

statement that the Parks Department intentionally failed to turn this letter over in response to a FOIL request is not true. Pl, Supp.Mem. at2-3. Rather, the Parks Department has only sent an acknowledgment of the FOIL request and has not yet responded substantively to the request.

Plaintiffs' suggestion that the fact that Robert Lederman was arrested while protesting inside a ticketed event discussing the financing and admihistration of the City's Parks at the Museum of the City of New York on August 9, 201I (http://www.mcny.org/shop/products/10703/whosepark-is-it-lnancing-and-administering-new-yorks-new-parks.html) is further evidence of the Parks Department's retaliation against him is particularly outrageous. Indeed, video clips from the event found on Robert Lederman's YouTube channel clearly depict the disrespectful and disruptive nature of Mr. Lederman's behavior during the event. See first three videos found here: http://www,youtube.corn/playlist?list:tJlJlf OpLLVSb2DZ'zSLg-LeDw&f'eature-plcp (files: "sequence l,mp4"; "8-9-11 arrest part ILmv4" and "led.mov".) As those videos show, the suggestion that all Mr, Lederman did was stand up holding a sign is far from the truth, Rather, Mr. Lederman stood up with his sign, interrupted the speakers on the stage, loudly stated "this is a public service announcement," and then continued speaking, loudly attacking the integrity of the Parks Department, the Parks Commissioner and the Mayor, until others were able to convince him to calm down and allow the program to continue, It was not until Mr, Lederman
started speaking out a second time that he was arrested.
,)

As detailed in the Supplemental Dockett Declaration, plaintiffs'

assumptions

regarding the meaning of the January 25,2012 letter, and the continued adjudication of the

NOVs issued to Robert Lederman are incorrect, See Dockett Supp. Dec,, flfl 3-9. Moreover,

as

plaintiffs' allegations are unsupported and plainly contradicted by clear and indisputable
evidence to the contrary, plaintiffs' second and third "crucial developments" have absolutely no bearing on defendants' summary judgment motion.

Plaintiffs' allegations regarding the alleged non-enforcement of the Expressive

Matter Vending Rules against performers, buskers and musicians are likewise unremarkable in
the context of defendants' summary judgment motion. As explained in the Dockett Declaration,

it remains the Parks Department's position that the Expressive Matter Vending Rules cover
activities of performers, musicians and buskers who entertain Dockett Dec.,

the

in exchange for a donation.

Appellate

fl ll.

However,

in light of the New York State Supreme Court,

Division, First Department's February 23,2012 decision in In re New York Skyline. Inc. v. City of New York, 94 A,D.3d 23 (App. Div. 1't Dept. 20120), the Parks Department has temporarily stopped enforcing the Expressive Matter Vending Rules against people who entertain in

a exchange for a donation in the City's parks. Dockett Dec,, flfl 12-14.

In stark contrast to the position they took initially, plaintif now appear to claim harm by the fact that the Expressive Matter Vending Rules have been found to not apply to performers. See Pl. Mem. in Opp to D SJ Motion at p, 14-15 wherein plaintiffs argue that performers do not fall within the definition of expressive matter vendors and complain that, by being required to vend from designated spots, performers are taking opportunities away from those who sell tangible artwork. In light of this, it is hard to see how plaintiffs have been prejudiced by the Skyline decision. It is also hard to understand why plaintiffs believe defendants should have brought this decision to the Court's attention, However, to the extent the Court perceives any impropriety in defendants' not previously informing the Court about the Skyline decision and the Park's Department's temporary change in enforcement policy as a result of that decision, we apologize, With respect to the current status of the Skyline case, the City's motion to the Appellate Division for leave to appeal to the New York State Court of Appeals was denied on May 10,2012. 2012
-Ja

The Parks Department's decision to temporarily exclude entertainers from the

group of people covered by the Expressive Matter Vending Rules is neither content-based in a

constitutional sense nor a violation of the Equal Protection Clause. With respect to contentneutrality, as we explained initially, "[t]he principal inquiry in determining content neutrality
..,

is whether the government has adopted a regulation of speech because of disagreement with the
message

it conveys." Ward v. Rock Against Racism,

491 U.S. 781,791 (1989), The Parks

Department has not suspended enforcement of the Expressive Matter Vending Rules against
entertainers yet continued to enforce the Rules against vendors who sell artwork because of a disagreement with the art sellers' message, Rather, the Parks Department's decision was simply

in response to the Sk)rline decision. If the City is successful on its appeal of that decision the
Parks Department Department

will

resume its enforcement

efforts. If the City is not successful, the

Parks

will consider other solutions to address its interests. Dockett Dec., fl 14. This can

hardly be said to be content-based discrimination in a constitutional sense.

With regard to the Equal Protection Clause, even though the Parks Department
has acknowledged that performers have the same impact on parkland as other expressive matter

vendors, it is well-settled that the Expressive Matter Vending Rules do not have to be a "perfect

fit" in order to survive

Department's interests

rational basis

review.

Rather, regulations addressing the Parks

in

aesthetics, circulation and use

of

parkland may

be enacted

incrementally. See, e.9., F.C.C. v. Beach Communications. Inc., 508 U.S. 307,316 (1993) ("The prohibition of the Equal Protection Clause goes no further than the invidious discrimination."),
Here, it is clear there is rational basis for the Parks Department's current enforcement policy,

NY Slip Op 72715(U). The City is currently briefing a motion to the Court of Appeals for to appeal and it is anticipated that that motion will be filed by mid-June, 2012.

leave

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CONCLUSION
For the foregoing reasons, and the reasons set forth in defendants' moving papers, defendants' motion for summary judgment should be granted in its entirety.

Dated:

New York, New York

June

4,2012 MICHAEL A, CARDOZO

Corporation Counsel of the City of New York Attorney for Defendants 100 Church Street New York, New York 10007 (2t2) 788-103s

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