# American Patriot Express v. The City of Glens Falls, New York

> District Court, N.D. New York · September 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10313237

## Case

- **Court:** District Court, N.D. New York
- **Decided:** September 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10313237

## How later opinions describe it (automated extraction)

- holding that a plaintiff can establish pre-enforcement standing if she demonstrated an “actual and well-founded fear that the law will be enforced against” her
- noting in the context of pre-enforcement standing analysis that “the alleged danger of this statute is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
AMERICAN PATRIOT EXPRESS, et al.,,
Plaintiffs,
-against- 1:20-CV-0672 (LEK/CFH)

CITY OF GLENS FALLS, et al.,
Defendants.

MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiffs American Patriot Express (“APEX”), David Vanscoy, Florence Sherman, and
E.S. (collectively, “Plaintiffs”) have brought this action against defendants the City of Glens
Falls (the “City” or “Glens Falls”), and, all in their official capacities, Glens Falls Mayor Daniel
Hall, Glens Falls Police Chief Anthony Lydon, and Glens Falls City Clerk Robert Curtis
(collectively, “Defendants”). Dkt. No. 1 (“Complaint”). Plaintiffs challenge the constitutionality

of Glens Falls City Code § 87 under the First, Second, and Fourteenth Amendments to the United
States Constitution. Id. ¶¶ 11–12. Before the Court is Defendants’ motion for reconsideration of
the Court’s July 22, 2020 Memorandum-Decision and Order granting in part Plaintiffs’ motion
for a preliminary injunction. Dkt. Nos. 4 (“Motion for a Preliminary Injunction”), 33 (“July 22
Memorandum-Decision and Order”), 37 (“Motion for Reconsideration”).
For the reasons that follow, the Court denies Defendants’ Motion for Reconsideration.
II. BACKGROUND
The facts of this case were detailed in the July 22 Memorandum-Decision and Order,
familiarity with which is assumed. For convenience, the Court summarizes the facts relevant to
the Motion for Reconsideration.

Glens Falls City Code § 87 regulates “demonstrations,” defined as “pre-planned
gathering[s] of 25 or more persons . . . convene[d] for the purpose of a public exhibition
including a procession, parade, protest, picket, march or rally,” § 87-2(A), on “public” property,
defined as “any place to which the public has unrestricted access,” excluding indoor spaces,
§ 87-2(C). Any “person, corporation, partnership or other entity” that “hold[s] or cause[s] to be
held” any “demonstration,” as defined above, anywhere on “public” property, as defined, must
first acquire a permit. See § 87-2(B). Section 87-4(A) provides that permit applications must be

submitted to the City Clerk and “will be processed in order of receipt[,] and in all cases decisions
whether to grant or deny the application will be delivered within 14 days of application, unless,
upon written notice to the applicant, a further 14-day extension is necessary.” § 87-4(A).
Plaintiffs are a political organization with a conservative mission, and a collection of
people who frequently engage in protests and counter-protests in Glens Falls in support of police,
President Donald Trump, and United States Congresswoman Elise Stefanik, and against
left-wing demonstrators. Compl. ¶¶ 16–23, 28–49.
Prior to the law’s passage, Vanscoy and Sherman both participated in political

demonstrations organized by APEX and attended by more than twenty-five people in outdoor
public spaces in Glens Falls. Id. ¶¶ 17, 20, 32. Prior to the issuance of a preliminary injunction,
Vanscoy, Sherman, and E.S. had all abstained from protesting subsequent to the passage of § 87,
2
because they feared that the City “will enforce City Code § 87 in a discriminatory manner.” Id. ¶¶
18, 21, 23. Plaintiffs have, on at least one instance, refrained from protesting because the delay
inherent in the maximum 28-day review period precluded their protest. Specifically, on June 3,
when Sherman learned that a planned Black Lives Matter (“BLM”) protest was to occur on June

5, Plaintiffs wished to organize a simultaneous counter-protest but refrained from doing so,
because they believed that § 87 required a permit for this counter-protest and that the 28-day
permit processing period precluded their acquisition of a permit on two days’ notice. Id. ¶¶
66–70. At the time that they filed the Complaint and Motion for a Preliminary Injunction,
Plaintiffs planned to stage a protest countering the message of the June 5 BLM protest, as soon as
possible. Id. ¶¶ 78–83.
On June 16, 2020, Plaintiffs filed this action, mounting a facial challenge to the statute

and seeking to preliminarily enjoin the enforcement of the statute. See generally Complaint; Mot.
for a Preliminary Injunction. On July 22, the Court granted Plaintiffs’ motion in part. See July 22
Memorandum-Decision and Order at 50. As relevant to Defendants’ Motion for Reconsideration,
the Court preliminarily enjoined the enforcement of all of the statute’s requirements related to
permitting. See id. at 48–50.
Defendants now move for reconsideration of the July 22 Memorandum-Decision and
Order, on the following grounds: (1) the Court committed clear error in holding that Plaintiffs
had standing to challenge the ordinance’s permitting requirements; (2) the Court failed to give

due consideration to the hardships that would be sustained by Defendants due to the preliminary
injunction; and (3) the Supreme Court’s decision in Thomas v. Chicago Park District, 534 U.S.
316 (2002), compelled the Court to deny the preliminary injunction.
3
III. LEGAL STANDARD
Rule 59(e) of the Federal Rules of Civil Procedure applies to re-argument motions
pertaining to preliminary injunction orders. See, e.g., Southern Air Crew Group v. Southern Air,
Inc., No. 08-CV-1115, 2009 WL 1795045, at *2 (D. Conn. June 24, 2009) (noting that

“‘judgment’ for purposes of the Federal Rules of Civil Procedure[,] includes any order from
which appeal lies, including [an] interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(l) of [an]
order granting, refusing, or refusing to dissolve an injunction, and thus rule 59(e) applies to such
order.”) (citing Lichtenberg v. Besicorp Group Ins., 204 F.3d 397, 400 (2d Cir. 2000)).
“The major grounds justifying reconsideration are an intervening change of controlling
law, the availability of new evidence, or the need to correct a clear error or prevent manifest
injustice.” Virgin Atlantic Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.

1992) (internal citation and quotation marks omitted). “Reconsideration of a court’s previous
order is an extraordinary remedy to be employed sparingly in the interests of finality and
conservation of scarce judicial resources.” Parrish v. Sollecito, 253 F. Supp. 2d 713, 715
(S.D.N.Y. 2003) (internal quotation marks omitted). Such motions “will generally be denied
unless the moving party can point to controlling decisions or data that the court
overlooked—matters, in other words, that might reasonably be expected to alter the conclusion
reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). “[A]
motion to reconsider should not be granted where the moving party seeks solely to re[-]litigate an

issue already decided.” Id. “[A] motion for reconsideration is neither an occasion for repeating
old arguments previously rejected nor an opportunity for making new arguments that could have
been previously advanced.” Associated Press v. U.S. Dep’t of Def., 395 F. Supp. 2d 17, 19
4
(S.D.N.Y. 2005). “[T]he movant must present evidence that is ‘truly newly discovered or . . .
could not have been found by due diligence.’” Ins. Co. of N. Am. v. Public Serv. Mut. Ins. Co.,
609 F.3d 122, 131 (2d. Cir. 2010) (citing United States v. Potamkin Cadillac Corp., 697 F.2d
491, 493 (2d Cir. 1983)).

IV. DISCUSSION
The Court addresses in turn each of Defendants’ three proposed bases for reconsideration.
The Court concludes that Plaintiffs have standing, that the public interest and relative burdens
favor a preliminary injunction, and that Thomas is distinguishable, and therefore denies
Defendants’ Motion for Reconsideration.
A. Standing
1. Relevant Standing Principles

As detailed in the July 22 Memorandum-Decision and Order, there are general
constitutional standing principles relevant to this case, as well as principles regarding what
constitutes injury-in-fact in a First Amendment context. See July 22 Mem.-Decision and Order at
10–11.
Constitutional standing requires: (1) that an injury be “(a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical”; (2) that there be “a causal connection
between the injury and the conduct complained of”; and (3) that it be “likely, as opposed to
merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560–61 (1992) (internal quotation marks and citations omitted).
First Amendment Supreme Court jurisprudence has developed more particular rules as a
subset of the injury-in-fact requirement.
5
Historically, facial challenges were disfavored, in part because courts regarded them as an
attempt by the plaintiff to raise the rights of others. See Osediacz v. City of Cranston, 414 F.3d
136, 140-41 (1st Cir. 2005) (citing United States v, Raines, 362 U.S. 17, 20-22 (1960)). Under
this outdated approach, “the normal jus tertii rules made it nearly impossible to have a court
declare a statute facially unconstitutional; after all, an individual litigant would have standing to
object to it only as applied to her situation. As a corollary, a plaintiff who had not herself been
subjected to an unconstitutional exercise of power could not challenge the offending statute at
all.” Id. (internal citations omitted).
In City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988), the Supreme Court
recognized that this posed a conundrum in the context of First Amendment challenges to
permitting schemes. The Supreme Court recognized that “as long as no one was denied a permit,
no one would have standing to mount a challenge—yet the chilling effect of the unconstitutional
grant of standardless discretion would remain undiminished.” Osediacz, 414 F.3d at 141 (citing
City of Lakewood, 486 U.S. at 757-58). Accordingly, the Supreme Court loosened the traditional
prudential limits that constrain a plaintiff's standing with respect to facial challenges brought to
statutes that allegedly vest unbridled discretion in licensing authorities. See City of Lakewood,
486 U.S. at 759. The Supreme Court held that in the case of “a licensing statute [that] allegedly
vests unbridled discretion in a government official over whether to permit or deny expressive
activity,” a plaintiff “who is subject to the law may challenge it facially without the necessity of
first applying for, and being denied, a license.” Id. at 755-56.
Needless to say, it does not follow that just anyone has standing to mount a First
Amendment challenge to a permitting scheme. Rather, as the Supreme Court stressed in City of

Lakewood, a plaintiff, as a prerequisite to suit, has to show that the law that she aspires to
challenge has “a close enough nexus to expression, or to conduct commonly associated with
expression, to pose a real and substantial threat of the identified censorship risks.” Id. at 769.
Subsequent to that case, courts have tended to require that “the party mounting a facial challenge
at the very least desired or intended to undertake activity within the compass of the challenged
statute.” Osediacz, 414 F.3d at 141 (collecting cases).
As also mentioned in the Court’s July 22 Memorandum-Decision and Order, two lines of
First Amendment case law refine this requirement—one pertaining to the “chilling effect”
realized through self-censorship, and one pertaining to pre-enforcement fear of sanctions. See
July 22 Mem.-Decision and Order at 10-11. The chilling effect of a law that censors speech and
the pre-enforcement fear inflicted by such a law implicate a similar sort of injury: “[b]oth hinge
on the existence of a credible threat that the challenged law will be enforced. If such a threat
exists, then it poses a classic dilemma for an affected party: either to engage in the expressive
activity, thus courting prosecution, or to succumb to the threat, thus forgoing free expression.”
N.H. Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 10 (1st Cir. 1996). “Either
injury is justiciable.” Id.
In chilling effects jurisprudence, courts require an “objective” chill. See Laird v, Tatum,
408 U.S. 1, 12-14 (1972) (“Allegations of a subjective ‘chill’ are not an adequate substitute for a
claim of specific present objective harm or a threat of specific future harm”). “[T]o establish
standing in this manner, a plaintiff must proffer some objective evidence to substantiate his claim
that the challenged [regulation] has deterred him from engaging in protected activity.” Latino
Officers Ass’n v. Safir, 170 F.3d 167, 170 (2d Cir. 1999) (quoting Bordell v. General Elec. Co.,

922 F.2d 1057, 1060–61 (2d Cir. 1991)) (alteration in original). Analogously, in pre-enforcement
First Amendment standing jurisprudence, courts require that a plaintiff demonstrate an “actual
and well-founded fear that the law will be enforced against them.” Virginia v. Am. Booksellers
Ass’n, Inc., 484 U.S. 383, 393 (1988).

There is some overlap in the applicability of these two sets of standards. See, e.g., id. at
393 (noting in the context of pre-enforcement standing analysis that “the alleged danger of this
statute is, in large measure, one of self-censorship; a harm that can be realized even without an
actual prosecution”); New Hampshire Right to Life Political Action Comm., 99 F.3d at 14
(“Because the threat of prosecution is a common denominator of both types of injury, their
existence can be resolved in a single inquiry.”). Indeed, the two forms of analysis seem to overlap
in the present case, as Plaintiffs allege that they have engaged in self-censorship, Compl. ¶¶

66–70, and they maintain that they are career protestors who thus anticipate running into
§ 87’s restrictions and being subject to enforcement, id. ¶¶ 17, 20, 32, 78–83.
Cases in this Circuit and others provide some guideposts regarding standing for First
Amendment challenges to content-neutral permitting schemes. It is clear, on the one hand, that
one cannot establish standing if the activity in which one intends to engage is not actually
regulated by the challenged statute. In Coe v. Bloomington Grove, for instance, in which the
plaintiff challenged a content-neutral permitting scheme for public demonstrations, the court
found that she had not established standing to challenge a provision that applied only to for-profit

organizations, because she was an individual, and she had “not expressed any intention of
organizing an event featuring for-profit or commercial speech.” 567 F. Supp. 2d 543, 553–55
(S.D.N.Y. 2008), aff’d in part, vacated in part on other grounds, 429 F. App’x 55 (2d Cir. 2011).
8
On the other hand, in Stagg P.C. v. United States Dep’t of State, 158 F. Supp. 3d 203
(S.D.N.Y. 2016), the plaintiff established standing merely by alleging that it planned to engage in
an activity that was regulated by the statute. The plaintiff challenged a content-neutral licensing
scheme1 governing the export of “defense articles” and “defense services.” Id. at 205. Plaintiff

alleged that it possessed certain technical data that it planned to present at a conference, that
releasing this data to the public required prior approval by the relevant licensing authority, and
that the standards governing licensure granted unbridled discretion to that authority. Id. at 209.
In Sullivan v. City of Augusta, the plaintiffs challenged a content-neutral permitting
scheme for public gatherings. 511 F.3d 16, 20–23 (1st Cir. 2007). The court found that plaintiffs
established standing to challenge a 30-day advance notice provision, when one of the plaintiffs
had stated in a deposition that he was deterred from applying for a permit on one occasion in late

March, because it was too late to request a permit for an April 10 demonstration. Id. at 31. The
city had argued that plaintiffs lacked standing to challenge the provision, because they never
demonstrated any intent or need to apply for their parade permits fewer than thirty days before
the marches for which the permits were being sought. Id. The court rejected this argument, noting
that “a late application is not necessary if injury can otherwise be surmised.” Id.
2. The Court’s July 22 Holding
Based on these illustrative cases, Plaintiffs have more than adequately demonstrated
standing. First, they submitted a sworn statement that they intend to engage in a public gathering

that Defendants do not dispute qualifies as a statutory “demonstration” to which permitting
1 See Stagg P.C. v. United States Dep’t of State, 354 F. Supp. 3d 448, 469 (S.D.N.Y.
2019) (later proceeding in which court explicitly stated that the challenged regulation was
content-neutral).
9
requirements apply. As the Court recounted in its July 22 Memorandum-Decision and Order:
At the time that they filed the Complaint and Motion, Plaintiffs
planned to stage a protest countering the message of the June 5 BLM
protest, as soon as possible. Compl. ¶¶ 78–83. At that demonstration,
protesters were to advocate in favor of police and display political
signs in support of Trump and Stefanik. Id. ¶¶ 79–80. Plaintiffs
anticipated that the demonstration would be attended by more than
twenty-five people. Id. ¶ 81. The rally was “time sensitive,” because
“plaintiffs want[ed] to send an important message to police at a time
when they and their reputation is under attack.” Id. ¶ 82.
July 22 Mem.-Decision and Order at 5–6. As in Stagg P.C., solely on the basis of these
statements in their Verified Complaint, Plaintiffs demonstrated standing, as they stated that they
intended to engage in allegedly protected speech that was regulated by the statute, and provided a
basis for believing that the statutory 28-day period would impede their ability to engage in that
conduct. Plaintiffs, in other words, demonstrated an “actual and well-founded fear that the law
will be enforced against them,” Am. Booksellers, 484 U.S. at 393, and that such enforcement
posed a “real and substantial threat of the identified censorship risks.” City of Lakewood, 486
U.S. at 769.
Plaintiffs provided additional facts that tend to support an objective basis for their fear
that they will be subject to the permitting requirements of § 87. Namely, they explained that they
are career protestors who “previously assembled in the City of Glens Falls with [APEX] in
groups larger than twenty-five people to engage in political speech on the sidewalks and other
public spaces of Glens Falls.” See, e.g., Compl. ¶¶ 17, 20. This fact is not necessary to the
conclusion that their fear of being subject to enforcement is objectively founded, but it tends to
reinforce that conclusion, by rendering their professed desire to engage in that conduct in the
future even more credible.
10
Like the Sullivan plaintiffs, Plaintiffs also provided a specific example of an instance in
which their speech was chilled as a consequence of the operation of the 28-day permit-processing
provision. As described in the July 22 Memorandum-Decision and Order,
[O]n June 3, when Sherman learned that a planned Black Lives
Matter (“BLM”) protest was to occur on June 5, Plaintiffs wished to
organize a simultaneous counter-protest [] but refrained from doing
so, because they believed that § 87 required a permit for this
counter-protest and that § 87’s 28-day permit processing period
precluded their acquisition of a permit on two days’ notice. [Compl.]
¶¶ 66–70. With the intention of protesting, Sherman created signs for
use at the protest. Id. ¶ 70.
July 22 Mem.-Decision and Order at 5. In light of the fact that the statute permits a maximum of
twenty-eight days to process a permit application, it seems credible and unsurprising that
Plaintiffs were deterred from protesting on two days’ notice, and this fact reinforces the
conclusion that Plaintiffs faced an “objective” chill. See Laird, 408 U.S. at 12–14; Latino
Officers Ass’n, 170 F.3d at 170.
3. Defendants’ Arguments for Reconsideration
Defendants attack Plaintiffs’ standing with several arguments, none of which are proper
bases for reconsideration, and all of which are meritless.
Defendants argue, first, that the Court improperly analyzed standing under principles
applicable to content-based prior restraints rather than content-neutral permitting schemes. See
Mot. for Reconsideration at 20 (“As a threshold matter, because City Code § 87 must be
examined under the standard applied to content-neutral time, place, and manner regulations, the
traditional Article III standing requirements should have been analyzed in this case, rather than
the ‘relaxed’ standards involving prior restraints.”). Defendants do not specify what aspect of the
11
Court’s reasoning they believe was derived from standing rules that apply uniquely to challenges
to content-based regulations. And as should be clear from the above analysis, the standards the
Court applied indeed govern challenges to content-neutral permitting schemes. Defendants thus
have failed to establish that the Court committed any clear error in this respect.

Second, Defendants argue that Plaintiffs’ fear that they will be subject to enforcement
under § 87 is too speculative to establish standing, because “Plaintiffs have completely failed to
provide any record evidence establishing that Defendants denied any of Plaintiffs’ permit
applications or that Defendants intervened in any of Plaintiffs’ spontaneous demonstrations due
to the absence of a permit.” Id. at 17. The reason the Court did not find that these facts
undermine standing is that in the case of “a licensing statute [that] allegedly vests unbridled
discretion in a government official over whether to permit or deny expressive activity,” a plaintiff

“who is subject to the law may challenge it facially without the necessity of first applying for,
and being denied, a license.” City of Lakewood, 486 U.S. at 755–56; see also Sullivan, 511 F.3d
at 31 (“While it is true [plaintiffs] never applied later than the thirty days before the sought-for
permit, a late application is not necessary if injury can otherwise be surmised.”). Plaintiffs also
need not endure sanctions for protected speech in order to challenge a statute that allegedly
violates the First Amendment. See Am. Booksellers Ass’n, Inc., 484 U.S. at 393 (holding that a
plaintiff can establish pre-enforcement standing if she demonstrated an “actual and well-founded
fear that the law will be enforced against” her); see also Nat’l Org. for Marriage, Inc. v. Walsh,

714 F.3d 682, 689 (2d Cir. 2013) (noting that pre-enforcement First Amendment claims are
analyzed “under somewhat relaxed” standing rules, because “without the possibility of pre-
enforcement challenges, plaintiffs face an unattractive set of options . . . refraining from activity
12
they believe the First Amendment protects, or risk[ing] civil or criminal penalties for violating
the challenged law”). There was thus no clear error here.
Third, Defendants argue that Plaintiffs lack standing because protests in which they have
participated in the past are not statutory “demonstrations.” See Mot. for Reconsideration at

17–18; § 87-2(A). This is based on an interpretation of the statute according to which, in order
for a public gathering to qualify as a “demonstration,” (1) the gathering must not be
“spontaneous,” and (2) the protest organizer must intend ahead of time that twenty-five people
will attend. As far as the “non-spontaneous” requirement is concerned, the Court has already
considered and rejected this argument, and it is thus inappropriate for Defendants to raise it in
their Motion for Reconsideration. See Shrader, 70 F.3d at 257 (“[A] motion to reconsider should
not be granted where the moving party seeks solely to re[-]litigate an issue already decided.”).

The Court now turns to the second aspect of Defendants’ interpretive argument.
Defendants do not appear to deny that the protest that was upcoming at the time of filing was, in
a “pre-planned” manner, to be attended by twenty-five people, and indeed, such a reading of
Plaintiffs’ Complaint would be implausible. See Compl. ¶ 81 (stating in reference to the planned
protest that “[p]laintiffs believe that more than twenty-five (25) people will be present at the
rally.”).2 Rather, Defendants appear to interpret the language of Plaintiffs’ Complaint to suggest
that their protests prior to filing were only accidentally, and without their prior expectation,
attended by twenty-five people. See, e.g., Compl. ¶ 17 (“Dave Vanscoy . . . has previously

2 It seems logical to infer that Plaintiffs also anticipated that at least twenty-five people
would attend this protest when they initially conceived of the rally on June 3, 2020, at which
point Plaintiffs’ plans were allegedly thwarted by the statutory 28-day permitting processing
period. See Compl. ¶¶ 66–70.
13
assembled in the City of Glens Falls with the American Patriots in groups larger than twenty-five
people to engage in political speech on the sidewalks and other public spaces of Glens Falls.”);
id. ¶¶ 32–35 (“When the American Patriots planned a political rally in the City of Glens Falls . . .
Many people would just come at the rally without having previously indicating they would

attend. Consequently, when the American Patriots have a political rally in Glens Falls, Ms.
Sherman has no idea whether a few people or a few dozen people will assemble and
participate.”).3 This, according to Defendants’ interpretation of § 87, places every past protest
beyond the reach of the statute.4

3 Plaintiffs disagree with Defendants’ reading of their Complaint and maintain with
respect to protests of over twenty-five that Plaintiffs’ organized in the past, see, e.g., Compl. ¶
17, 20, that they anticipated on those occasions that at least twenty-five people would attend, see
Dkt. Nos. 30 at 2–3; 30-2 at 8.
4 In their response to Plaintiffs’ Motion for a Preliminary Injunction, Defendants stated
that, by their interpretation of the ordinance, permitting requirements applied only to “official
groups of twenty-five or more individuals who have committed (i.e., pre-planned) to attend a
scheduled (i.e., pre-planned) demonstration . . . Plaintiffs . . . are . . . an unincorporated
association, with no formal structure, and composed of two individuals.” Dkt. No. 24-11 at 12
(emphasis in original). The Court read this to mean that Defendants interpreted the permitting
requirements to apply only to applicants applying as a pre-organized group of twenty-five people.
July 22 Mem.-Decision and Order at 11–12. Defendants appear to restate this interpretation, see
Defs. Mem. of Law at 14, 17–18, 19, without providing any cognizable basis for the Court to
reconsider its initial decision on the matter. The Court declines to do so.
The Court notes, however, in an abundance of solicitude, that Defendants’ Motion for
Reconsideration could be construed to additionally make the distinct interpretive argument that
an applicant must “pre-plan” for twenty-five people to attend a protest, for that protest to qualify
as a statutory “demonstration.” The statute is ambiguous on this point, as “pre-planned gathering
of 25 or more persons,” § 87-2(A), could be read to mean that only the gathering must be “pre-
planned,” or that both the gathering and the specific number of attendees must be “pre-planned.”
Moreover, to the extent that the term “pre-planned” implies some particular type of mens rea, the
statute does not specify which, and neither have Defendants. In light of the fact that permit
applicants are subjected to these unresolvably ambiguous requirements, for an applicant who is
unsure whether less or more than twenty-five people will attend her protest, there would be an
“objectively reasonable possibility that the ordinance would be applied to [her] own activities,”
Sullivan, 511 F.3d at 26, which is sufficient to confer standing.
14
The Court need not re-litigate this interpretive disagreement here, because even if
Defendants were correct both in their reading of the Complaint and in their interpretation of the
statute, Plaintiffs would have standing. As already discussed, Plaintiffs’ sworn statement that
they planned to engage in a public protest of more than twenty-five people at the time of filling

was sufficient to establish standing, and was, in combination with Plaintiffs’ description of a
prior instance in which the statute’s requirements thwarted their planned protest, more than
adequate to demonstrate standing.
Moreover, Plaintiffs’ prior record as career protestors would still tend to provide further
support for standing. Even if protests Plaintiffs organized in the past were not statutory
“demonstrations” due to the unexpected attendance of twenty-five or more people, Plaintiffs’
knowledge from experience that a protest is likely to be unexpectedly attended by twenty-five

people would supply the requisite level of “pre-planning” that Defendants suggest the statute
requires, for purposes of a permit application in the present or future.
Defendants’ interpretive argument against standing is, in other words, “irrelevant to the
ultimate outcome” of standing analysis for multiple reasons and thus not a proper basis for
reconsideration. Latimore v. NBC Universal, Inc., 489 Fed. App’x. 521, 521 (2d Cir. 2013).
B. Preliminary Injunction
Defendants argue, next, that the Court failed to assess the relative burden that a
preliminary injunction would impose on the Glens Falls government. See Mot. for

Reconsideration at 18; Fair Hous. in Huntington Comm. v. Town of Huntington, 316 F.3d 357,
365 (2d Cir. 2003) (noting that “a plaintiff must demonstrate . . . a balance of hardships tipping
decidedly in the plaintiff's favor in order for a preliminary injunction to issue.”); see also Yang v.
15
Kosinski, 960 F.3d 119, 127 (2d. Cir. 2020) (noting that a court must find a “public interest
weighing in favor of granting the injunction”).’ Defendants are correct in arguing that the Court
mistakenly omitted this analysis. Unfortunately for Defendants, this part of the preliminary
injunction analysis is largely a formality in First Amendment cases once a plaintiff has
established a likelihood of success on the merits. See N.Y. Progress & Prot. PAC v. Walsh, 733
F.3d 483, 488 (2d Cir. 2013) (“[I]n the First Amendment context, . . . the likelihood of success
on the merits is the dominant, if not the dispositive, factor.”). This is because a plaintiff who has
established that a statute likely violates her First Amendment rights almost always faces a more
weighty burden than a defendant government seeking to enforce an unconstitutional statute.
“[I]t is always in the public interest to protect First Amendment liberties.” Connection
Distrib. Co., 154 F.3d at 288 (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm 23
F.3d 1071, 1079 (6th Cir.1994)); Walsh, 733 F.3d at 488 (“[S]ecuring First Amendment rights is
in the public interest.”); Homans v, Albuquerque, 264 F.3d 1240, 1244 (10th Cir. 2001) (“Having
determined that Mr. Homans has demonstrated a substantial likelihood of success on the merits,
we believe that the public interest is better served by following binding Supreme Court precedent
and protecting the core First Amendment right of political expression.”); Newsom v. Albemarle
County Sch. Bd., 354 F.3d 249, 261 (4th Cir.2003) (“Surely, upholding constitutional rights
serves the public interest.”).
Normally, the Court would assume that the interests of the government are aligned with

> Where the Government is the opposing party, the final two factors in the temporary
restraining order analysis—the balance of the equities and the public interest—merge. Planned
Parenthood of New York City, Inc. v. U.S. Dep’t of Health & Human Servs., 337 F. Supp. 3d
308, 343 (S.D.N.Y. 2018).
16

the public interest, but that is not so when the government violates an individual’s First
Amendment rights. See Deferio v. City of Syracuse, 193 F. Supp. 3d 119, 131 (N.D.N.Y. 2016)
(Kahn, J.). Plaintiffs’ interests align with those of the people of Glens Falls, because “[t]he
constitutional guarantee of free speech serves significant societal interests wholly apart from the
speaker’s interest in self-expression.” Pacific Gas and Elec. Co. v. Public Utilities Comm’n of
California, 475 U.S. 1, 8 (1986) (internal quotation marks and citations omitted). “By protecting
those who wish to enter the marketplace of ideas from government attack, the First Amendment
protects the public’s interest in receiving information.” Id.
For similar reasons, the balance of the equities favors Plaintiffs as well. See, e.g.,
Invisible Empire Knights of Ku Klux Klan v. City of W. Haven, 600 F. Supp. 1427, 1436 (D.
Conn. 1985) (“[T]he balancing of the plaintiffs’ interest in free speech against the city’s interest
in being able to enforce an unconstitutional ordinance clearly establishes that the equities tilt
decidedly in favor of the plaintiffs.”). Plaintiffs face a significant hardship, namely, surrendering
their right to engage in political speech on topical issues. See, e.g., Deferio, 193 F. Supp. 3d at
130-31 (describing the loss of the right to demonstrate as a “substantial” hardship); Walsh, 733
F.3d at 488 (describing impermissible restrictions on political speech as a “significant” hardship
to the plaintiff). Glens Falls, on the other hand, “does not have an interest in the enforcement of
an unconstitutional law.” Walsh, 733 F.3d at 488 (quoting ACLU v. Ashcroft, 322 F.3d 240, 247
(3d Cir. 2003)).
And for reasons analogous to those the Court discussed in the context of its narrow
tailoring analysis, see July 22 Mem.-Decision and Order at 30-36, Defendants’ burden is
particularly light in this case in comparison to Plaintiffs’. While the City has important interests

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in public safety and reducing traffic congestion, the statute likely censors “substantially more
speech than is necessary” to advance those goals. See Ward v. Rock Against Racism, 491 U.S.
781, 799 (1989). Thus, Plaintiffs, and moreover, the public, necessarily face weightier burdens if
the permitting provisions remain in effect than Defendants do if the enforcement of those

provisions is enjoined. Moreover, the Court’s July 22 Memorandum-Decision and Order left
intact provisions of the ordinance that directly address the only particularized public safety and
traffic-related concerns that Defendants have identified. As the Court explained:
Defendants . . . highlight public safety concerns related to the
possession and use of certain items at protests, such as bullhorns and
firearms. Lydon Decl. ¶¶ 8–9. The Court does not discuss those
concerns here, because they are addressed by provisions of § 87-3 that
Plaintiffs do not directly challenge and that are left in effect
subsequent to this order. See, e.g. § 87-3(A)(14) (“Sirens or air horns.
No person shall use, carry or possess any hand carried or
vehicle-mounted siren or air horn.”); § 87-3(A)(17) (“Firearms are
prohibited, except for those displayed by participants in the Memorial
Day parade and those used by active duty law enforcement
personnel.”). Defendants also point to special dangers posed by
protests in the Glens Falls Centennial Circle traffic circle. Lydon
Decl. ¶ 5–6. The Court does not discuss those concerns here either,
because there is a specific provision prohibiting protests in that area,
see § 87-3(A)(19) (“There shall be no Demonstrations conducted in
the public areas known as Centennial Circle and the Civil War
Monument within five feet of the roadway.”), a provision that
Plaintiffs do not directly challenge and that is left in effect subsequent
to this order.
July 22 Mem.-Decision and Order at 30 n.5. Because these provisions remain at the City’s
disposal, Defendants’ contention that they sustained significant “hardships . . . due to the broad
injunction enforced against them,” see Mot. for Reconsideration at 18, rings especially hollow.
Accordingly, the public interest and the balance of the equities favor a preliminary
injunction.
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C. Applicability of Thomas
Defendants argue that the Supreme Court’s decision in Thomas v. Chicago Park District,
534 U.S. 316 (2002) compels the Court to deny Plaintiffs’ Motion for a Preliminary Injunction.
See Mot. for Reconsideration at 5-16. Defendants emphasized this point heavily in their brief in
response to Plaintiffs’ Motion for a Preliminary Injunction, see generally Dkt. No. 24-11, and the
Court addressed this argument at great length in its July 22 Memorandum-Decision and Order,
see generally July 22 Mem.-Decision and Order. This is thus not a proper basis for
reconsideration, see Shrader, 70 F.3d at 257, and the Court accordingly declines to revisit the
matter at this time.
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ Motion for Reconsideration (Dkt. No. 37) is DENIED;
and it is further
ORDERED, that the Clerk shall serve a copy of this Memorandum-Decision and Order
on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
DATED: September 18, 2020
Albany, New York

pee
U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10313237. Public record. Not legal advice.