Olivieri v. Ward
1985 U.S. App. LEXIS 20203, 766 F.2d 690 (1985)
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Rule of Law:
A government restriction on speech in a public forum is a permissible time, place, and manner regulation if it is content-neutral, narrowly tailored to serve a significant government interest such as public safety, and leaves open ample alternative channels for communication. A restriction based on a credible threat of violence from a hostile audience can be a valid, content-neutral means of serving the significant interest of maintaining public order.
Facts:
- Dignity-New York, a gay and lesbian Catholic group, historically held a prayer service on the steps of St. Patrick's Cathedral during the annual Gay Pride March.
- During the 1981 march, some Dignity members were assaulted on the Cathedral steps by anti-homosexual demonstrators.
- In 1983 and 1984, the Police Department closed the sidewalk and steps, but permitted Dignity officers to halt the parade for a brief 10-15 minute prayer service in the street and lay a wreath on the sidewalk.
- For the 1985 march, Dignity-New York sought to place 100 of its members on the Cathedral sidewalk for the entire duration of the parade.
- The Police Department possessed intelligence indicating a heightened risk of violence for the 1985 march, including planned counter-demonstrations by groups like the Catholic War Veterans and Orthodox Jews from Brooklyn.
- In response, the Police Department planned to 'freeze' the sidewalk in front of the Cathedral, closing it to all demonstrators, including both Dignity-New York and anti-gay groups.
- The Department offered Dignity-New York a designated demonstration area on an adjacent side street and the same brief wreath-laying ceremony in the street that was permitted in the previous two years.
Procedural Posture:
- Dignity-New York filed an action in the U.S. District Court for the Southern District of New York against the New York City Police Department, seeking an injunction.
- The district court granted a preliminary injunction, ordering the Police Department not to prevent a 'reasonable' number of Dignity members from demonstrating on the Cathedral sidewalk.
- The Police Department, as appellant, appealed the district court's order to the U.S. Court of Appeals for the Second Circuit.
- Dignity-New York, as appellee, cross-appealed, arguing the district court's order was impermissibly vague.
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Issue:
Does a police department's plan to close a public sidewalk to all demonstrators during a parade, based on a credible threat of violence from counter-demonstrators, constitute a permissible time, place, and manner restriction on speech under the First Amendment?
Opinions:
Majority - Cardamone, J.
Yes. A police department's plan to close a public sidewalk to all demonstrators during a parade is a permissible time, place, and manner restriction when based on a credible threat of violence. The court applied the three-part test for such restrictions, finding that the Police Department's plan was: 1) Content-neutral, as it applied to all demonstrators (both Dignity and anti-gay groups) and was consistent with an established police policy of separating antagonistic groups. 2) Narrowly tailored to serve the significant government interest of maintaining public order, as the police had unrefuted evidence of a heightened risk of violence, making the district court's contrary finding clearly erroneous. 3) Left open ample alternative channels for communication, as Dignity was offered a demonstration area on a side street and could still conduct its brief prayer service, thus not silencing their message entirely.
Dissenting - Kearse, J.
No. A police department's plan to close a public sidewalk to a peaceful group because of threats from a hostile audience constitutes an impermissible 'heckler's veto' and is not a valid time, place, and manner restriction. The dissent argued that the sole reason for barring Dignity was the threat from anti-gay groups, effectively allowing those groups to censor Dignity's speech. The proper police response should be to control the hostile counter-demonstrators, not to restrict the peaceful speaker. The police could have applied their standard policy of creating a one-block buffer zone to separate the groups. Furthermore, the district court's finding that the police overstated the danger was not clearly erroneous, given the lack of significant violence in past years despite similar police predictions.
Analysis:
This decision gives significant deference to the professional judgment of law enforcement in assessing public safety threats in the context of First Amendment activities. It establishes that a facially neutral restriction, such as creating a buffer zone by closing a sidewalk to all competing groups, can survive a 'heckler's veto' challenge if it is based on a credible threat of violence and a consistent police policy. This ruling strengthens the ability of municipalities to manage volatile protest situations by prioritizing public order, even if it limits a group's ability to demonstrate in its most preferred location. Future cases involving clashes between hostile groups will likely cite this decision to justify preemptive, neutral restrictions on assembly.
