NY City Parks Permit Fees Are Unconstitutional (implications for campaign finance law?)

New York Law Journal | By Tom Perrotta

[Behind Liberal Lines]

Calling the practice "patently unconstitutional," a federal judge in Manhattan ruled Thursday that the New York City Parks Department cannot charge higher permit fees for political events sponsored by corporations.

Southern District Judge Shira A. Scheindlin ruled that Parks Department regulations created in 2001 were "irrational," and violated free speech protections of the First Amendment of the U.S. Constitution.

The regulations, codified in 56 RCNY 2-10, had authorized fees of up to $125,000 for "special events," such as rallies and cultural festivals, sponsored by for-profit organizations.

The judge also said the city's previous unwritten practices, which charged different fees for events depending on whether "the event [was] consistent with the image of Parks," violated the First Amendment.

"Under this criteria, 'events focusing on trees would be charged lower fees than those focusing on the death penalty,' " Judge Scheindlin wrote in Transportation Alternatives Inc. v. City of New York, 01 Civ. 6465, citing deposition testimony.

The ruling enjoins the city from relying on the regulations to charge similar high fees for other events, and could deprive the city of a small but steady revenue source. "Our inability to collect these fees could have serious ramifications on the city's ability to preserve its parks, particularly given the current fiscal crisis," Dana Biberman, the lawyer at Corporation Counsel's Office who handled the case, said in a statement. "The matter will definitely be appealed."

The suit was brought by the New York Civil Liberties Union on behalf of Transportation Alternatives, a not-for-profit group that advocates a reduction in automobile use in New York City and an increase in biking and walking.

The group, which has more than 5,000 members, has sponsored the NYC Century Bike Tour since 1990. It uses the event to raise money, collect signatures and promote its political perspective.

In 2001 the group learned that it would have to pay $6,000 for a permit to use Central Park for the bike tour, unless, the city said, it removed the corporate elements from its event and brochures and asked only for a suggested donation. The groups promotions included free Ben & Jerry's ice cream, food and logos on its brochures and Web site.

If the group took those steps, the city said, then the permit would cost only $25.

The New York Civil Liberties Union sued the city, alleging first amendment violations. It also challenged the city's previous permit practices and sought $17,500 in permit refunds from 1999 to 2001, plus attorney's fees.

The city responded that the higher fees were in keeping with its right to preserve and maintain its parks for public enjoyment.

But Judge Scheindlin found that such discrepancy in fees ran afoul of the Constitution. The city, the judge wrote, "fails to explain" how its interest in preserving the parks "is directly advanced by imposing a financial burden on the groups that have commercial sponsorship."

The judge found that the regulations did nothing to further protect the city's parks from harm.

"Charging higher fees to groups who advertise the trademark, trade names or logos of their commercial sponsors merely deters those groups from seeking such sponsors -- it does not reduce the harm those groups may (or may not) cause when then hold events on Parks Department property," the judge wrote.

Judge Scheindlin noted several seemingly similar park walks whose sponsors were charged varying fees: Sickle Cell Anemia Walk ($500), Making Strides Against Breast Cancer ($12,000), and Gay Men's Health Crisis AIDS Walk ($40,000).

"Requiring groups to pay more for a permit because their event does not fit the city's image of the park is anathema to the First Amendment," the judge wrote.

Judge Scheindlin said it was "unreasonable" for Transportation Alternatives to pay more than a $25 permit fee for its event, and ordered the city to refund $17,500 in fees and pay attorney's fees also.

Judge Scheindlin said the city's regulations were patently unconstitutional when considered in light of First National Bank of Boston v. Bellotti, a 1978 U.S. Supreme Court ruling that held that "the level of protection afforded to certain speech turns on the speech at issue, not on the identity of the speaker."

Chris Dunn, associate legal director of the NYCLU, said the ruling was important for advocacy groups, especially those whose views might be in direct conflict with the city governance.

"They can charge fees for permits and legitimate services," Dunn said. "What they can't do is use the First Amendment as a taxing device."

[Behind Liberal Lines]

Judge Scheindlin said the city's regulations were patently unconstitutional when considered in light of First National Bank of Boston v. Bellotti, a 1978 U.S. Supreme Court ruling that held that "the level of protection afforded to certain speech turns on the speech at issue, not on the identity of the speaker."

Implication for campaign finance reform, right here?

Obviously, political speech is protected speech.

And this decision says that simply because that political speech is made (or promoted?) by this or that individual does not remove that protection.

Therefore, shouldn't it stand to reason that campaign finance laws are unconstitutional for the same reasons?

Be interesting to see...

[jiggyboy]

It's always sad to see that the government entity always bases its appeal on the fact that it won't be able to collect as much money, not on its interpretation of the law or the Constitution.