American Bar Association
Forum on Communications Law
The Mayor versus the First Amendment: Will the Fight Last a Full Fifteen Rounds?
Victor A. Kovner, Edward J. Davis, and Matthew A. Leish
When New York City Mayor Rudolph W. Giuliani announced on May 19 that he had decided not to run for the U.S. Senate, he declared that he would use the "extra time" that he's been given to improve his administration's communicativeness and responsiveness to citizens' needs: "to overcome, maybe, some of the barriers that maybe I placed there, and figure out how to overcome them."1 His phrasing had special meaning for First Amendment lawyers, who thought of the physical barriers that his administration has erected, such as barricades to keep speakers away from City Hall, and many other obstacles to the exercise of free speech rights that the administration has imposed and resolutely defended in court with notable lack of success. In case after case, the courts have had to step in to protect public employees, entities that receive city funds, and ordinary citizens from the city's efforts to restrict or punish their efforts to express themselves through art, protest rallies, speaking to the press, or holding parades. The chain of defeats for the city may have culminated this spring in its capitulation in the infamous "elephant dung" case and some stunning criticism from the Second Circuit in another case.
A brief review of some recent battles illustrates the wide range of "barriers" that the mayor could remove if he wants to encourage citizens to participate freely in public life rather than punish them or prevent them from speaking out. The administration has not been a quick learner; many groups have had to sue the city repeatedly over the same First Amendment issues, but recent events allow some hope that the lessons have begun to penetrate City Hall.
Elephants and Ostriches
The mayor's well-publicized war against "sacrilegious" art came to an abrupt and inglorious end with the recent settlement of the litigation arising from the Brooklyn Museum of Art's exhibition, "Sensation: Young British Artists from the Saatchi Collection." The settlement was reached less than two weeks before Mayor Giuliani's scheduled deposition and before the Second Circuit had ruled on the city's appeal of a preliminary injunction obtained by the museum. The mayor agreed to forswear any future retaliation against the museum. He also agreed to stop his efforts to evict the museum from its city-owned building, to cut off the funding that it receives from the city, and to remove its board of trustees. The city also agreed to pay $5.8 million to the museum for capital improvements and repairs.
The controversy over "Sensation" began when the mayor announced on September 22, 1999, that the exhibit contained works that were, in his view, "sick" and "disgusting" and "desecrated" religion. In particular, Mayor Giuliani objected to a painting by Chris Ofili, a British artist of Nigerian descent, entitled The Holy Virgin Mary. The painting depicts a woman with African features dressed in bright, flowing robes, and incorporates a lacquered clump of elephant dung, a material that Ofili uses in many of his works, including a painting in the same show celebrating African-American heroes. After the museum responded to the mayor's threats by initiating an action in federal court, the mayor cut off the city's previously appropriated monthly subsidy to the museum and commenced an action in New York State Supreme Court to evict the museum from the landmark building that it has leased from the city for more than a century.
In a forty-two-page opinion issued on November 1, 1999, Judge Nina Gershon of the Eastern District of New York granted a preliminary injunction ordering the city to restore the museum's funding and prohibiting further retaliation against the museum or its trustees for the viewpoints that the mayor attributed to the art displayed there.2 The settlement makes Judge Gershon's preliminary injunction permanent and provides specific guarantees against future retaliation, in addition to committing the city to provide capital funding over several years. It necessarily raises serious questions as to why the city appealed Judge Gershon's decision and why the mayor heaped scorn upon her in the press, only to agree months later to an injunction based on her finding that the city's justifications for punishing the museum were a "sham" that didn't provide a fig leaf to cover its punitive intent.
By agreeing to the settlement, Mayor Giuliani may have avoided a harsh rebuke by the Second Circuit, which recently declared in a different case that
[w]e would be ostriches if we failed to take judicial notice of the heavy stream of First Amendment litigation generated by New York City in recent years. . . . As a result of this relentless onslaught of First Amendment litigation, the federal courts have, to a considerable extent, been drafted into the role of local licensors for the City of New York.3
The court listed seventeen cases in which federal courts have "preliminarily enjoined or found unconstitutional on First Amendment grounds some action or policy of the City."
Pushing Until the Courts Say "Stop!"
The cases cited by the Second Circuit and other reported and unreported decisions in both state and federal courts reflect a pattern of efforts to stifle expression that the city finds disagreeable, and the city has appeared unwilling to control itself without the repeated intervention of the courts. Institutions and individuals have been forced to take the city to court when it should have been clear that the Constitution did not permit the city's actions, and the courts have duly struck down numerous city policies, including limits on the expressive activities of public employees, restrictions on parades, protests, and other speech on city property and city streets, manipulation of government funding and benefits for retaliatory and coercive ends, and limitations on access to information about the operations of the city government. In each of these areas, the mayor has suffered repeated legal defeats.4
Though the courts have put an end to particular infringements, court decisions cannot undo all the damage. Only a few people fight to vindicate their rights, and many plaintiffs have had to fight the city again and again. Many more people remain quiet. They accept the denial of a parade permit; they do not apply for permission to hold a rally; they do not try to display controversial art; and they do not speak to the press about the government. The city has succeeded in inhibiting free expression with its restrictive policies, and the way that it has fought to defend its violations of the First Amendment has deepened the chill. The judicial decisions discussed here reflect the efforts of the courageous few who have stood up to the city; they provide only an indirect indication of other expression that we may be missing.
Silencing Public Employees
City employees who speak to the public or the press have been the source of considerable anxiety for the Giuliani administration. In two separate lawsuits, federal courts have struck down policies of the police department, the human resources administration, and the children's services department that restricted employees' public speech as to matters relating to their agencies. In Latino Officers Association v. Safir,5 Judge Stein of the Southern District of New York enjoined police department rules that required officers to obtain approval in advance from the department before speaking in public regarding police department matters and prohibited officers from speaking at public hearings without a superior officer present.6 Similar policies of the city's human resources administration and the children's services department that prohibited employees from speaking with the media regarding practices or activities of those agencies without prior permission were found to violate the employees' First Amendment rights in Harman v. City of New York.7 The agencies were understandably sensitive to questioning about the handling of particular child abuse and neglect investigations but the policies prohibited discussion of even the routine workings of the agencies.
The police department has also been repeatedly blocked in its efforts to prevent members of the Latino Officers Association from marching in various parades in uniform behind a Latino Officers Association banner. The police department allows only officially recognized NYPD groups to march in uniform behind a group banner, and the department had denied official recognition to the Latino Officers Association. Since 1997, the association has sought and won several preliminary injunctions allowing its members to march in specific parades.8 Most recently, the Second Circuit affirmed the grant of a preliminary injunction that allowed the organization to march in five parades in 1999.9
Public employees who participate in parades out of uniform can also get into trouble. Two firefighters and a police officer who were fired after participating in an allegedly racist float entitled "Black to the Future" during a Labor Day parade have brought an action against Mayor Giuliani and other city officials.10 The mayor had publicly vowed that any city employee involved in the float would be fired. The three employees allege that their First Amendment rights were violated. In April 2000, a federal district court judge denied both sides' motions for summary judgment and ordered discovery to proceed.11
Keeping Criticism Out of Public Places
Everyone knows that New Yorkers love to express their opinions. In London, people stand at Speakers' Corner in Hyde Park to get their messages across. In New York, because few listen to a solitary speaker, people stage bigger events, including parades, protest rallies, and press conferences. The city streets and the steps of City Hall are traditionally open for such activities. But the Giuliani administration has repeatedly attempted to prevent certain groups from expressing themselves.
The steps of City Hall have been a frequent legal battleground. The administration has repeatedly attempted to restrict expressive activities there and it has repeatedly been enjoined. In April 2000, a federal district court permanently enjoined enforcement of a rule that required permits for expressive activity on the City Hall steps and the neighboring plaza and sidewalk and that limited the size of any group engaged in such activity to 50 people on the steps or 150 people on the plaza.12 The court had previously granted preliminary injunctions against two prior versions of the rule after the city denied permission for a nonprofit advocacy group named Housing Works, which has often criticized the mayor, to hold a press conference but permitted a rally in the same place for thousands of baseball fans to celebrate the victory of the New York Yankees in the World Series.13 In issuing the permanent injunction, Judge Baer held that the rule was content based and impermissibly granted unfettered discretion to city officials.14 Judge Baer further found that the numeric limits imposed by the rule were not narrowly tailored to accomplish the asserted purpose.15 Soon after the permanent injunction was granted, Mayor Giuliani announced revised rules, which allow somewhat larger groups to assemble on the City Hall steps and plaza for protests and news conferences, but they still impose a permit requirement that may well be challenged.16
The courts have also regularly had to reverse the city's denials of parade permits to groups with messages that the city does not like. Organizers of the "Million Youth March" in Harlem were twice granted preliminary injunctions that ordered the city to issue permits for a parade and rally.17 Similarly, a federal district court enjoined the city from interfering with a protest by New York City taxi drivers in which the drivers planned to conduct a procession of between 250 and 500 cabs to City Hall, where a rally and press conference would occur.18 Although the taxi drivers initially were given permission to conduct the procession and rally, the permission was revoked after the drivers staged a work stoppage.19 The court ruled that the city's attempt to limit the procession to twenty cabs was unconstitutional and issued a preliminary injunction.20 Another federal court later ordered the city to permit a march to protest police brutality to go forward after the permit request was initially denied.21
In its most recent parade permit decision, the Second Circuit noted that aspects of the parade permit ordinance, "unless constrained by administrative construction or by well-established practice, appear to afford the [Police] Commissioner exactly the sort of discretion that has been found to violate the First Amendment."22 A marijuana legalization group had sued after the city denied its permit request and proposed an alternative route. The district court found that the lack of an express time limit for the city to process permit requests was unconstitutional23 but dismissed challenges to the degree of discretion that the permit regulation granted to the police commissioner and the provisions for judicial review.24 On appeal, the Second Circuit reversed the dismissal, finding the record insufficient to sustain it, and remanded all claims for further proceedings,25 with a strong indication that the city must not discriminate among speakers.26
Unfettered discretion was also the problem with a city ordinance that established a new concession and permit scheme for sidewalk newsstands.27 The court found that newsstands are entitled to First Amendment protection and preliminarily enjoined the portion of the new ordinance that granted the city discretion to terminate permits. The court declined to enjoin other aspects of the ordinance, which it found did not vest the city with "unbridled discretion."
Another recurring First Amendment battle surrounds the administration's attempts to regulate the display and sale of visual artists' work in public places. In Bery v. City of New York,28 a group of artists challenged a city ordinance prohibiting the exhibition or sale of their work in public places without a general vendor's license. Reversing the district court, the Second Circuit granted preliminary injunctive relief against enforcement of the ordinance, holding that it was not narrowly tailored and did not leave open sufficient alternative avenues of communication.
Subsequently, in 1998, the city parks department began to enforce a regulation prohibiting visual artists from displaying or selling their work on parks department property, in this case, the area in front of the Metropolitan Museum of Art, without a permit. A federal district court refused to preliminarily enjoin this regulation, distinguishing the case from Bery on the ground that the site-specific parks department regulation, unlike the general vendors law, was narrowly tailored and left available alternative channels of communication. 29 However, a separate criminal prosecution brought against visual artists for violating the parks department regulation was dismissed after a state court determined that visual artwork was "written matter" that was exempt from licensing and permit requirements.30
Turning his gaze from the parks and sidewalks to the public streets, Mayor Giuliani also attempted to block a magazine advertisement that poked fun at him from appearing on city buses.31 The advertisement was initially approved by the transit authority; however, several days after the ad first appeared, Mayor Giuliani's office called and asked that it be removed, asserting that the use of the mayor's name violated a provision of the New York Civil Rights Law that prohibits the commercial use of someone's name or likeness without permission. Holding that the buses were a designated public forum and that the removal of the advertisement constituted an unlawful prior restraint on speech, the Second Circuit affirmed the grant of preliminary injunctive relief.32
One of Mayor Giuliani's most recent, and most amusing, First Amendment defeats also arose from the city streets. The Second Circuit ruled that a well-known photographer could not be prohibited from photographing seventy-five to one hundred nude models very early on a Sunday morning on a street in a commercial area. The New York City Police Department had contended that the nude photo shoot would violate New York State Penal Law § 245.01, barring public nudity. The Second Circuit, construing the statute so that it would not be unconstitutional, concluded that the photo shoot fell within the statutory exemption for "any person entertaining or performing in a play, exhibition, or show."33
As this issue of Communications Lawyer went to press, the city was defeated yet again in its efforts to keep people from lying down in public for expressive purposes. A tenants' advocacy organization obtained a preliminary injunction preventing the city from blocking a planned vigil in which people would sleep from 1 a.m. to 8 a.m. on a narrow swath of the city sidewalk across the street from the mayor's official residence, Gracie Mansion, to protest increases in city-regulated rents. The city classifies sleeping in public as disorderly conduct, but the court found no threat of disorder in the vigil. The court did find a serious threat to "core First Amendment rights to political protest," however, if the city were permitted to interfere, imposing a prior restraint on expression because of its content.34
Retaliation and Coercion
Another frequently recurring theme in First Amendment litigation brought against the mayor and his administration is the manipulation of government benefits and subsidies to control the speech of private entities and to punish those entities for speech that offends the mayor. Although the Brooklyn Museum dispute provides perhaps the best example of this pattern of behavior, it is far from the only one.
One target of retaliation by the Giuliani administration has been Housing Works, Inc., a nonprofit activist organization that provides housing for homeless persons with AIDS. Housing Works has been highly critical of Mayor Giuliani, has engaged in various acts of civil disobedience, and has successfully challenged the mayor's policies regarding access to the City Hall steps.35 Acting allegedly in retaliation for these expressive activities, the city's Department of Homeless Services lowered the ranking of Housing Works's housing projects on a list of projects eligible for federal grants. Finding "well-documented circumstantial evidence of retaliatory intent," Judge Schwartz of the Southern District of New York granted preliminary injunctive relief and ordered the city to rerank Housing Works's programs.36
Another instance of retaliation involved Families First, a drop-in community center that provides training and counseling services, and that is a tenant in a city-owned building. After City Council member Stephen DiBrienza vocally supported a bill concerning homeless shelters that Mayor Giuliani had opposed, the mayor threatened to install a homeless shelter in DiBrienza's district in the building occupied by Families First. When the city brought an eviction proceeding against the building's main tenant, Families First sought and was granted a temporary restraining order barring any eviction efforts.37
Mayor Giuliani also attempted to manipulate city resources in his battle with Time Warner Cable over the latter's programming decisions. After Time Warner declined to place the Fox News network on one of its cable channels, the city attempted to pressure Time Warner by putting Bloomberg Information Television on one of the city's channels dedicated to "public, educational and governmental" uses and by preparing to place Fox News on another such channel. A federal district court held that the city's actions violated the Cable Communications Policy Act of 198438 and constituted an impermissible "effort to compel Time Warner to alter its constitutionally-protected editorial decision not to carry Fox News."39 The Second Circuit affirmed without reaching the First Amendment issue.40
Restricting Access to Government Information
The Giuliani administration also has gone to great lengths to restrict public discussion of certain issues by depriving the public of access to a wide range of governmental documents and information. This has triggered a flood of litigation under New York State's Freedom of Information Law (FOIL), Open Meetings Law, and other statutes, and threats of First Amendment litigation.
The New York City Department of Investigations (DOI), which investigates allegations of wrongdoing in city government, had long refused to disclose final reports of its investigations. The New York Daily News and one of its reporters sued to obtain them after DOI first denied their FOIL request in its entirety and then provided only heavily redacted documents. Justice Parness of the (trial-level) New York State Supreme Court ruled that the agency's actions were "inconsistent with the mandates of FOIL" and reiterated that "[t]he law provides for maximum access, not maximum withholding."41 Another state court ruled that the refusal of the Taxi and Limousine Commission to admit a journalist to its administrative disciplinary proceedings violated the Open Meetings Law.42 The Daily News also had to bring a FOIL action to obtain access to city records of gun permit holders,43 and the New York Times filed but then withdrew a FOIL suit after the city agreed to turn over the names of employees of a battered women's shelter.44 Finally, the New York City Police Department evidently withheld statistics showing that subway crime was underreported, despite a FOIL request by the Daily News, and eventually released the statistics only when the newspaper threatened to sue.45
Several state and local public officials and agencies have also successfully sued for access to public records after being denied access by the Giuliani administration. In Messinger v. Giuliani,46 the court held that then-Manhattan Borough President Ruth Messinger had the right to invoke FOIL to obtain information from various city agencies, and ruled that the defendants' direction to city agencies not to provide such information violated FOIL, the New York City Charter, and the Rules of the City of New York. In Green v. Safir,47 the Appellate Division of the State Supreme Court ruled that New York City Public Advocate Mark Green had the right to examine police department files on civilian complaint review board disciplinary cases. Other courts have affirmed the right of State Comptroller Carl McCall to subpoena city agency records for performance audits48 and have ordered Mayor Giuliani to provide information from various city agencies requested by the city's independent budget office.49
Although the mayor recently defended the release of sealed juvenile records in order to tarnish the reputation of the unarmed victim of a police shooting, 50 he sought unsuccessfully to seal the contents of a court-ordered report on case records of the New York City Administration for Children's Services (ACS) that reflected badly on the city. The report was produced in the context of a class action brought on behalf of children whose cases were allegedly mishandled by ACS. The defendants sought a protective order prohibiting the release of the report until it was received in evidence at trial. Ruling that the presumption of public access to the report was strong and that no good cause for issuance of a protective order had been shown, the federal district court denied the motion.51
Finally, in response to a threatened federal lawsuit by a coalition of press organizations, the Giuliani administration agreed to end police department interference with members of the press at crime scenes and other news events. The agreement addressed press complaints that police officers routinely barricaded members of the press in "press pens" with obstructed views, blocked photographers' lenses, and confiscated press cards without justification.52 Keeping the press from crime scenes and segregating the press at public events had seriously hampered the gathering of news.
The city's restrictions on the flow of information have contributed to the decline of civic trust in New York that Mayor Giuliani recently acknowledged. Depriving the public of information impoverishes public discussion. When Mayor Giuliani tries to imagine "barriers" that he can lift to enhance respect for city government, there is much that he can learn from the record of the city's battles over free speech. To restore and preserve the vibrant exchange of opinions and information that makes life in New York City so stimulating, public employees should not be gagged, parades should not be blocked, City Hall should not be barricaded, those who say things you don't like should not be punished, and, by all means, access to art should not be obstructed except by open criticism. Few people can face the prospect of litigation against City Hall without fear. No one should have to contemplate years-long battles in court, like those we have seen in New York City, merely for exercising the right to free expression that we all know is essential to self-governance.
1. Excerpts from Giuliani's Remarks on Decision to Withdraw, N. Y. Times , May 20, 2000, at B8.
2. Brooklyn Museum of Arts and Sciences v. City of New York , 64 F. Supp. 2d 184 (E.D.N.Y. 1999). See also Victor A. Kovner and Edward J. Davis, NYC Mayor Giuliani Loses Round One in Battle Against the First Amendment, 17 Communications Law. 4, at 3 (2000).
3. Tunick v. Safir , 209 F.3d (2d Cir. 2000).
4. One First Amendment battleground in which the Giuliani administration has achieved some success involves the city's adult-use zoning ordinance, which has been upheld by both the Second Circuit and the New York Court of Appeals against First Amendment-based challenges. Buzetti v. City of New York, 140 F.3d 134 (2d Cir. 1998); Stringfellow's of New York, Ltd. v. City of New York, 91 N.Y.2d 382 (1998). Even here, however, several courts have rejected the city's interpretation of the ordinance and struck down attempts by the city to enforce the ordinance against individual adult establishments. See, e.g., City of New York v. Les Hommes, 94 N.Y.2d 267 (1999); City of New York v. Dezer Properties, Inc., 2000 N.Y. LEXIS 896, May 4, 2000 (unpublished opinion); City of New York v. Show World, Inc., 683 N.Y.S.2d 376 (Sup. Ct. N.Y. Cty. 1998).
5. 1997 WL 426099 (S.D.N.Y. 1999), vacated in part, 170 F.3d 167 (2d Cir. 1999).
6. Judge Stein also enjoined the department from requiring officers to provide advance notice before a public speaking engagement and requiring the provision of a written summary of a speech the day after the speech. The city appealed this portion of the ruling, and the Second Circuit subsequently vacated the injunction as to the notice and reporting requirements. 170 F.3d 167 (2d Cir. 1999).
7. 140 F.3d 111 (2d Cir. 1998).
8. Latino Officers Association v. City of New York, 1997 WL 473972 (S.D.N.Y. 1997); Latino Officers Association v. City of New York , 966 F. Supp. 238 (S.D.N.Y. 1997).
9. Latino Officers Association v. City of New York, 196 F.3d 458 (2d Cir. 1999).
10. Locurto v. Giuliani, Nos. 98 Civ. 6495 (JES), 98 Civ. 6505 (JES), 98 Civ. 6567 (JES).
11. Locurto v. Giuliani, 2000 WL 511500 (S.D.N.Y. 2000).
12. Housing Works, Inc. v. Safir, 2000 WL 358373 (S.D.N.Y. Apr. 6, 2000).
13. Housing Works, Inc. v. Safir, 1998 WL 823614 (S.D.N.Y. Nov. 25, 1998), stay granted in part, 1998 WL 824534 (2d Cir. Nov. 30, 1998); Housing Works, Inc. v. Safir , 1998 WL 409701 (S.D.N.Y. July 21, 1998).
14. Housing Works, 2000 WL 358373, at *6-*7.
15. Id. at *8.
16. Robert Polner and Curtis L. Taylor, City Hall Plaza to Open Today, Newsday , Apr. 26, 2000, at A3.
17. Million Youth March, Inc. v. Safir, 155 F.3d 125 (2d Cir. 1998); Million Youth March, Inc. v. Safir, 63 F. Supp. 2d 381 (S.D.N.Y. 1999).
18. United Yellow Cab Drivers Ass'n, Inc v. Safir, 1998 WL 274295 (S.D.N.Y. May 27, 1998).
19. Id. at *1.
20. Id. at *3. In related proceedings, two taxi drivers arrested when police initially blocked the taxi procession were reportedly acquitted of all charges. Mohamad Bazzi, Jury Acquits Queens Cabbie, Newsday, Apr. 7, 1999, at A26.
21. October 22nd Coalition v. City of New York, 98 Civ. 7333 (S.D.N.Y. Oct. 21, 1998).
22. MacDonald v. Safir, 206 F.3d 183 (2d Cir. 2000).
23. MacDonald v. Safir, 26 F. Supp. 2d 664 (S.D.N.Y. 1998).
24. MacDonald v. Safir, 1998 WL 318690 (S.D.N.Y. June 16, 1998), vacated, 206 F.3d 183 (2d Cir. 2000).
25. MacDonald, 206 F.3d at 186.
26. Id. at 192. In a related proceeding, involving a challenge by marijuana-legalization marchers to a city ordinance requiring permits for assemblies and rallies on park property, the Second Circuit found that the plaintiffs had not demonstrated a clear likelihood of success for purposes of a preliminary injunction, but stressed that it was not expressing any opinion as to whether plaintiffs would succeed on a more complete record in establishing that the ordinance was facially invalid under the First Amendment. Beal v. Stern, 184 F.3d 117, 130 (2d Cir. 1999).
27. Gasparo v. City of New York, 16 F. Supp. 2d 198 (E.D.N.Y. 1998).
28. 97 F.3d 689 (2d Cir. 1996).
29. Lederman v. Giuliani, 1998 WL 186753 (S.D.N.Y. Apr. 17, 1998).
30. People v. Balmuth, 681 N.Y.S.2d 439 (Crim. Ct. N.Y. Cty. 1998). In another First Amendment-based challenge to a parks department regulation, a New York state appellate court enjoined enforcement of a regulation barring the noncommercial distribution of products other than printed or similarly expressive materials in city parks without a permit. The court held that the regulation, which was challenged by a group that wished to distribute condoms at an annual basketball tournament, was broader than necessary to advance the government's legitimate interest in "preserving the quality and character" of city parks. Kalke v. City of New York, 666 N.Y.S.2d 631, 632 (App. Div. 1st Dep't 1997).
31. New York Magazine v. Metropolitan Transit Auth., 136 F.3d 123 (2d Cir. 1998).
33. John Sullivan, Court Rules Nude Photo Can Be Taken on the Street, N.Y. Times, May 20, 2000, at B-4. See also Tunick, 2000 WL 342706, at *20, n.3.
34. Metropolitan Council, Inc. v. Safir, 2000 WL 763844 (S.D.N.Y. June 12, 2000).
35. See also Tunick, 2000 WL 342706, at *20, nn. 12-16.
36. Housing Works, Inc. v. City of New York, 72 F. Supp. 2d 402, 433 (S.D.N.Y. 1999).
37. Families First v. Giuliani, No. 3378/99 (Sup. Ct. Kings Cty. Feb. 1, 1999).
38. 47 U.S.C. § 521.
39. Time Warner Cable v. City of New York, 943 F. Supp. 1357, 1364 (S.D.N.Y. 1996), aff'd sub nom Time Warner Cable v. Bloomberg, L.P., 118 F.3d 917 (2d Cir. 1997).
40. Bloomberg, 118 F.3d at 917.
41. 5/1/97 N.Y.L.J. 28 (Sup. Ct. N.Y. Cty. 1997).
42. 3/17/2000 N.Y.L.J. 26 (Sup. Ct. N.Y. Cty. 2000).
43. Mark Kriegel, Free Speech Not Rudy's Forte, N.Y. Daily News, Jan. 2, 1998, at 17.
44. Konstantin Richter, Hardball in New York, Colum. J. Rev., Sept. 19, 1997, at 17.
45. Leonard Levitt, One Police Plaza, Newsday, Feb. 3, 1999, at A26.
46. 9/2/97 N.Y.L.J. 29 (Sup. Ct. N.Y. Cty. 1997).
47. 679 N.Y.2d 383 (App. Div. lst Dep't 1998).
48. McCall v. Barrios-Paoli, 671 N.Y.S.2d (App. Div. 1st Dep't 1998), aff'd, 93 N.Y.2d 99 (1999).
49.Criscitello v. Giuliani, N.Y. Cty. 105621/98 (Mar. 30, 1999).
50. Tracy Tully and Bill Hutchinson, File Release Furor Grows, N.Y. Daily News, Mar. 21, 2000, at 17.
51. Marisol A. v. Giuliani, 1997 WL 630183, at * 7 (S.D.N.Y. 1997).
52. Frank Lombardi, Press Wins Battle With the City, N.Y. Daily News, July 30, 1999, at 8.
Victor A. Kovner, Edward J. Davis, and Matthew A. Leish practice in the New York office of Davis Wright Tremaine LLP, which represented a coalition of thirty-three museums and free-speech advocates as amici curiae in the Brooklyn Museum litigation.