Petition — Concerned Jewish Youth v. McGuire

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Supreme Court, UJ.

FILED .

80-7 '7%9 NOV 24 {989

No. MICHAEL RODAK, JR, CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1980

CONCERNED JEWISH YOUTH,

Petitioner,

~against-

ROBERT J. MCGUIRE, in his official

capacity as Police Commissioner of

the City of New York, EDWARD KOCH,

in his official capacity as the

Mayor of the City of New York, and

the NEW YORK CITY POLICE DEPARTMENT,

Respondents.

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED

STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

HOWARD C. BUSCHMAN III

Attorney for Petitioner

153 East 53rd Street

New York, N.Y. 10022

(212) 935-8000

John M. McEnany

Jeanne M. Luboja ,

Willkie Farr & Gallagher

Of Counsel

QUESTION PRESENTED

Are prior restraints imposed by the

New York City Police Department which:

(a) completely ban the use of ampli-

fied sound on the New York City block

cortaining the Missions of the Union of

Soviet Socialist Republics and the

Ukranian Soviet Socialist Republic

("Soviet Mission") in violation of a

New York City ordinance mandating the

police to grant a permit allowing the

use of such equipment;

(b) prohibit peaceful and orderly

demonstrations by Concerned Jewish

Youth ("CJY") in front of the Soviet

Mission; and

CJY who may participate in peaceful and

orderly demonstrations on the Soviet

Mission block to twelve persons in a

cordoned off area across the street and

down at the end of the block on which

the Soviet Mission is located

individually and cumulatively valid under

the First and Fourteenth Amendments to the

United States Constitution?

TABLE OF CONTENTS

QUESTION PRESENTED......cseeesecsees i

TABLE OF CONTENTS...ccccccccccccccece iii

TABLE OF AUTHORITIES... .cscccccccces vii

OPINIONS BELOW... cccccccccccscccccces 1

JURISDICTION... ccccccccccccccccccccs 2

CONSTITUTIONAL PROVISIONS

AND STATUTES BE £66 Oh bbs 06% 66% 2

STATEMENT OF THE Cen a6 vb 2 deb se 662 3

DER sg S468 6 cE CO Cab 068 6kSS UK ew ES 4

1. Imposition of Prior Re-

Straints and Denial of

Sound Permits to CJUY........e. 5

z. The Dollinger Decision....... 7

3. Enforcement of the

Dollinger Decision

Against All Demonstrators.... 8

4. Police Failure to Make Any

Individual Assessments....... 10

5. The Truncated June 1978 CJyYy

DEMORSCEASSONns é és dance soense ll

6. The Violence that has

Occurred at the Soviet

Mission is not Attrib-

UCORLE O26 CIE i eke ke Ker veces 12

iii

Page

7. The Proceedings Below........ 16

REASONS FOR GRANTING THE WRIT....... 19

I. THE DECISION BELOW, IN SUSTAIN-

ING THE BAN ON SOUND EQUIPMENT

ON THE MISSION BLOCK, SHARPLY

CONFLICTS WITH THE PRIOR HOLD-

INGS OF THIS COURT AND RAISES

DISTURBING LIMITATIONS ON

FF@EDOM OF SPEECH REQUIRING

RE. IEW BY THIS COURT......eee00- 23

A. In Denying a Sound Equip-

ment Permit to CJY, the

Police Violated the

Governing Ordinance......... 24

B. Prior Restraints on

Freedom of Speech which

Violate the Express

Terms of an Ordinance

Allowing Speech Should

BO COMGRIIIGs cc ben ccsbccoccs 27

C. The Restraint on Sound

Equipment is Unsupported

by Any Governmental

Interest Articulated by

Congress in Discharging

the United States

Obligation to Protect

Foreign MiSSiONS......cseeees 32

D. The Poiice Policy is

ee 2 er re ee 33

E. The Reasoning of the

Majority Below is

Seriously Flawed...... cess. 35

II. THE DECISION BELOW, IN SUS-

TAINING THE BAN ON DEMONSTRA-

TIONS IN FRONT OF THE MISSION

AND THE LIMITATION OF THE

NUMBER OF DEMONSTRATORS TO

TWELVE, FURTHER CONFLICTS WITH

PRIOR HOLDINGS OF THIS COURT

AND SANCTIONS VIOLATIONS OF

CJY'S FIRST AMENDMENT RIGHTS...

A. Blanket Removal of Peace-

ful Demonstrators from

the Target Significantly

Diminishes Speech..........

B. Permitting only Twelve

Demonstrators on a City

Block Diminishes Speech....

C. Congress Avoided These

Restraints in Satisfying

the United States Obliga-

tion to Protect Missions...

D. The Restraints are

Ny, oh ec pniceen és é

E. The Right to Demon-

strate is to be Judged

on an Individual Basis

and not on the Basis

of Conduct by Others.......

F. Section 435 of the New

York City Charter Does

Not and Constitution-

ally Cannot Authorize

CRO RESCESLAES. «do ciccwecse

CG ob deeecesecéevcsaswescnéann

Appendix A: Opinion of the

United States Court of

Appeals for the Second

iss 6 Male iia Witte bo Réb cece A-1l

Appendix B: Opinion of the

United States District

Court for the Southern |

District of New a sk 6 6 abe A-56

Appendix C: United States

Constitution: Amendment I

and Amendment TE die OOe 6 witce ops bbe A-92

Appendix D: Statutes 18 U.S.C.

Oy Mica ath hy lac eal it SN kT i A-94

Appendix E: Administrative

Code of the City of New York

§ See PeSr sks s EWC Oo beatae cee. A-99

Appendix F: New York City

Charter § ea a ob Winkwiéaes 6d.0ud «ie A-112

Appendix G: Map of Soviet

Mission en's ba b dees 6 60 eo woke A-115

TABLE OF AUTHORITIES

Cases

Page

Adderley v. Florida, 385 U.S. 29

Pe LS ed bak Oke Ce cde bbe s cee 38

Alderman v. Philadelphia Housin

Authorit 496 F.2d 164

(3d Cir.) cert. denied, 419

Gis 844 PP Ean 6 Nan os So Ree 66a theese en 39

A Quaker Action Group v. Hickel,

421 F.2d llll (D.C. Cir. 1969)...46, 47

A Quaker Action Group v. Morton,

362 F. Supp. 1161 (D.D.C. 1973),

ate*aG, Sie 2.260 7i7 (D.C. Cie.

BOIS Cesdaeceveceeubevéecovresseuaie 28, 29,

+43, 45, 46

Carroll v. President and Comm'rs

of Princess Anne, 393 U.S. 175

Cas ialad's wold Sob 664 we Me wabeues Vee ee 38

Cohen v. California, 403 U.S. 15

reh. denied, 404 U.S. 876

(fT ss: semi wrersygh ira NAS AIRF Sara erat Se eg ee 38

Concerned Jewish Youth v. McGuire,

469 F. Supp. 1296 (S.D.N.Y.

1979), aff'd, 621 F.2d 471

(20: CAS, Seed cacccccvdieosveas 19; 234: 48

Cox v. Louisiana, 379 U.S. 536

[AROOs oud be ewe daha cece bedecdvcese6ee> 47

Edwards v. South Carolina, 372

i mM 229 fi +) PER SOMERS Pree 59

vii

Page

Ernst & Ernst v. Hochfelder, 425

U.S. 185 reh. denied, 425 U.S.

986 [ToD os bon 6a sie bowie b66 ee eek's 57

Grayned v. City of Rockford, 408

U.S. 104 OL Lys POPPPRPETeS TP 3G, sis Bae

37, 41, 43

Greenberg v. Murphy, 329 F. Supp.

37 (S.D.N.Y. DEED Edens Os eeobe ee bees 43

Gregory v. Chicago, 394 U.S. lll

CRONE heh ewbetensc covadaedecaceoceccendie 38

Hague v. C.1.0., 307 U.S. 496

(1939) weceeeceeeernnerneveeeeeeee aly 39

ISKON v. City of New York,

No. 79 Civ. 1118 (S.D.N.Y.

RUGUSE 25, L9EO) cccccccccvcccscccces 4a

Kovacs v. Cooper, 336 U.S. 77

TZPER) Cede eensécrocevoueeaee 27, 29, 30,

31, 32, 38

Kunz v. New York, 340 U.S. 290

es Si eee 38

Lehman v. ce of Shaker Heights,

418 Dee ( STi ckeb we ckh = 60668 40

Maldonado v. County of Monterey,

330 F. Supp. 1383 (N.D. Cal.

SPEED boats eae CUES 6 OUR CH bO es eek eee 31ln

Millan House Inc. v. Murphy,

Civ. No. 10560/1971 (Sup.

Ct. N.Y. County, July 6,

BP TRS cab b<chbebsnseccubeséela 7n, 8, 9,

10, 16, 18

viii

Niemotko v. Maryland, 340 U.S.

268 (1950) (Frankfurter, J.

CORCUEE ING) oecccccacdesesevccccendlsy

Organization for a Better Austin

v. Keefe, 402 U.S. 415 (1971).......

Packard Motor Car Co. v. NLRB,

330 U.S. 485 CRT Fhe abs Bh 6602 00s

People v. Solomonow, 56 Misc.2d

1050, 291 N.Y.S.2d 145 (Sup.

-~ 1966) cccundse che o O6twubee nice eSB,

People v. Taub, 37 N.Y.2d 530,

375 N.Y.S.2d 303, 337 N.E.2d

754 (AS TOs cuba de Pee Gate hecéeecce

Phillips v. Township of Darby, Pa.,

305 F. Supp. 763 (E.D. Pa.

Page

LOGS) co ocd GSR SUEUR ES wee ceredcecce 3ln

Police Department of the Cit

of Chicago Vv. Mosley, 408 U.S.

92 (£9 FSP 0c eb bee eubeeetaebasecsioe 43,

$5.

Saia v. New York, 334 U.S. 558

(aROG) 55 8c ceases sb cke ils

Santa Fe Industries Inc. v.

Green, 430 U.S. 462 (1977)... ccccece

Schneider v. State, 308 U.S. 147

(AF SS) cccccsutebessebniodecoseseeedty

Shelton v. Tucker, 364 U.S. 479

(AFORE) ce ceceuse stake beseikesbcnsece

44,

Page

Shuttlesworth v. Birmingham,

394 eM 147 ERE ihinin + w6 6s aheee ie 59

Southeastern Promotions, Ltd.

v. Conrad, 450 U.S. 456 546

(APTS atone b5b be bbe 0s bese ees cece 40, 41

Tinker v. Des Moines Independent

Community School District, 393

Gels 503 Sea oe aa ea «bbb 6 8.66.00 56

Touche Ross & Co. v. Redington,

442 i 560 Lee Ache wee wet detvéees 57

United States v. Oregon, 366

U.S. 643 CR ed ie te 58

Virginia State Board of Pharmacy

v. Virginia Citizens Consumer

Council, 425 U.S. 748 Et secapneet 4h

Wisconsin Student Ass'n Vv.

Regents, 318 F. Supp. 591

(W.D. Wis. ial FU ck 6 ace a be oe wae ows 3ln

Women Strike for Peace v.

Morton, F. a ee

Cir. Dib he Gn ea ke Bee 66 6e bh edb ecce 39

United States Constitution

PESOC: AONEMORE Ss occ ccccccveeses a, 28, 2,

23, 37, 60

Fourteenth Amendment.....cseccsccseee 2, 3

Treaties

Vienna Convention of Diplomatic

Relations, 23 U.S.T. 3227 (1967).... 32

Page

Statutes and Regulations

Act for the Prevention and

Punishment of Crimes against

Internat: onally Protected

Persons, 18 U.S.C. § 112,

Pub. L. No. 94-467 §§ 5, 10,

90 Stat. 1977 (1976) .cccccececds, 10, lil,

33, 48, 49,

50, 52, 53

Act for Protection of Foreign

Officials and Official Guests

of the United States, Pub. L.

No. 92-539, § 3, 86 Stat.

BOUU. CAPITA vesicnce scvsseseatrecveadan, $2

Administrative Code of the City

Of New York 3 435-6.0 (1976)....3, 6, 9,

19, 24, 25,

26, 34, 35

Administrative Procedure Act,

5 U.S.C. s§$ 551 et seq. (1976)...... 28

Agreement Between the United

Nations and the United States’

of America Regarding the

Headquarters of the United

Nations, § 16, 61 Stat. 758

PATE én.6 6 4¥ eee bbee he be eek dbeeaacer 32

36 C.FP.R. § 50.19(d) (2) (1973) ..cccccee 28

New York City Charter § 435

CSD TO) Cc vi deeeeehacecdisrtene 16, 18, 57,

58, 59, 60

Page

New York City Noise Control

Code, Administrative Code

of the City of New York

§$ 1403.3-1.01 et seq. (1979)....... 26

New York Penal Law § 240.20

(1980) cn ccccccccccccccccccccccccccces

28 U.S.C. 1254 FAPGEP 6odébeceonceeéoeos 2

28 U.S.C. 1343 (1979) eoeenseeeeeeeeeeeeenee 3

42 8.8. 1983 (1979) eeeeeeeeeeeeneeeeee 3

Congressional Reports

H.R. Rep. No. 94-1614, 94th Cong.,

2d Sess. 6, 1976 U.S. Code

Cong. & Admin. News 4480.......50n, 5ln

S. Rep. No. 92-1105, 92d Cong.,

2d Sess., 1972 U.S. Code Cong.

& Admin. News a 51

S. Rep. No. 94-1273, 94th Cong.,

2d Sess. 8 (1976° ...ceeeeeeeee 50m, Sln

Other Authorities

L. Tribe, American Constitutional

Law LATO) cocvoseesédnaatvireossaate 4l, 42

xii

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1980

CONCERNED JEWISH YOUTH,

Petitioner,

-against-

ROBERT J. MCGUIRE, in his official

capacity as Police Commissioner of

the City of New York, EDWARD KOCH,

in his official capacity as the

Mayor of the City of New York, and

the NEW YORK CITY POLICE DEPARTMENT,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

OPINIONS BELOW

Concerned Jewish Youth ("CJY") peti-

tions this Court, pursuant to Rule 19 of

the Rules of this Court, to review the

decision and order of the United States

Court of Appeals for the Second Circuit

(Moore and Waterman, J.J.; Mansfield, J.

dissenting), rehearing denied August 28,

1980, affirming the order and judgment of

the United States District Court for the

Southern District of New York dismissing

the Complaint herein and upholding prior

restraints on CJY's freedom of speech

under the First Amendment. The appeals

court decision is appended hereto at A-1

to A-55 and is reported at 621 F.2d 471

(2d Cir. 1980). The district court deci-

sion is appended hereto at A-56 to A-91l

and is reported at 469 F. Supp. 1296

(S.D.N.Y. 1979).

JURISDICTION

The judgment of the Court of Appeals

was rendered and entered on March 27, 1:80

and rehearing was denied on August 28,

1980. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

This proceeding involves the First

and Fourteenth Amendments to the Constitu-

tion of the United States (A-92 to A-93),1

the Act for the Prevention and Punishment

of Crimes against Internationally Protected

Persons, 18 U.S.C. § 112 (1976) (A-94 to

A-98), Section 435-6.0 of the Administra-

tive Code of the City of New York (1976)

(A-99 to A-1l11) and Section 435 of the New

York City Charter (1976) (A-112 to A-114).

STATEMENT OF THE CASE

This action under 28 U.S.C. § 1343

and 42 U.S.C. § 1983 (1979) seeks injunc-

tive relief prohibiting the New York City

Police Department from continuing to im-

pose prior restraints upon peaceful demon-

strations in the New York City block (Fast

67th Street between Lexington and Third

1 fhe pertinent text of the constitu-

tional provisions, treaties, statutes,

ordinances and regulations involved in

this proceeding is set forth in the

appendix and references to such text in

this petition for a writ of certiorari

are designated as "A-_ to A-__".

Avenues) on which the missions to the

United Nations of the Union of Soviet So-

Cialist Republics and the Ukrainian Soviet

Socialist Republic (the "Mission") are

located.

The prior restraints are threefold:

(i) amplified sound equipment at any deci-

bel level is banned from the Mission block

at all times; (ii) all demonstrators are

banned from demonstrating in front of the

Mission or anywhere along the sidewalk on

the Mission side of the block; and (iii)

demonstrations on the block are limited to

twelve demonstrators who are placed behind

police barricades in an area across the

street and down the block from the Mission.

Facts

CJY is a membership association

founded in 1975 and headquartered at Queens

College in Flushing, New York. (Tr. 3-5.) 2

The group is composed of approximately 300

students of whom some fifty to seventy are

active members. Its purposes include com-

batting anti-Semitism, helping the Jewish

poor and working for the cause of Soviet

and Arab Jewry. CJY is differentiated

from other groups such as the Jewish De-

fense League by its emphasis on preserving

Judaic heritage through educational activ-

ities and non-violent demonstration.

1. Imposition of Prior Restraints

and Denial of Sound Permits

to CJY.

CJY twice sought to protest on the

sidewalk before the Mission to condemn the

Soviet Union's treatment of Jews. On each

occasion, it applied at the 19th precinct

station of the New York Police Department

2 References to the transcript of the

hearing held in the district court are

designated as "Tr.",

for a permit, pursuant to Section 435-6.0

of the New York City Administrative Code

(the “Administrative Code") to use sound

amplification equipment in connection with

the planned demonstration.

CJY informed the police that it

desired to hold a rally on the sidewalk

directly in front of the Soviet Mission

with a group of twenty-five to thirty peo-

ple and to utilize sound equipment in the

manner provided and at the times permitted

by the Administrative Code. (Tr. 21, 23.)

The police inquired and were assured that

CJY would be peaceful. (Tr. 24.) The

police then read the so-called "Dollinger

decision" to CJY, denied a sound permit

for the Mission block, and stated that in

accordance with the numerical restrictions

set out in the Dollinger decision, CJY

would only be allowed to have twelve or

thirteen people in a makeshift "bull pen"

on the corner of the north side of East

67th Street, near Third Avenue. (Tr. 145.)

The police did issue a sound permit to CJY,

but only for use in an “overflow” area

located on East 67th Street between Lex-

ington and Park Avenues, nearly a block

away from the Soviet Mission. A map show-

ing the Mission block area is annexed

hereto (A-115).

2. The Dollinger Decision.

The "Dollinger decision" referred to

by the police is an order entered in a

civil action by the late Justice Isidore

Dollinger of the New York State Supreme

Court in 1971, some four years before CJy

was founded.3 The order preliminarily

3 Millan House Inc. et al. v. Murphy et

al., Civ. No. 10560/1971 (Sup. Ct.,

N.Y. County, July 6, 1971) (hereinafter

the "Dollinger decision").

enjoined certain groups4 from picketing in

the Mission block area, except that twelve

people who would be subject to identifica-

tion and “reasonable search" could picket

in the "immediate vicinity of the Soviet

Mission." The Dollinger decision also en-

joined the groups from, inter alia, using

amplified sound, engaging in loud chanting,

booing, shouting, stamping of feet, clap-

ping of hands, singing and sounding of

horns.

3. Enforcement of the Dollinger

Decision Against All

Demonstrators.

The district court below found that

the police made no independent determina-

4 The Jewish Defense League, Student

Struggle for Soviet Jewry, the Ukranian

National Organization of U.S., the

Ukranian Student Organization, the

Polish American Congress, the Lithua-

nian Action Committee and the Young

Americans for Freedom, their agents,

members and those acting under their

direction and control and in concert

and conjunction with them.

tion that demonstrations by other groups

should be limited to twelve demonstrators

in the Soviet Mission block or that sound

equipment could be banned. 469 F. Supp.

at 1299. (A-66). Captain Selvaggi of the

19th Precinct testified that while he was

familiar with the mandatory requirements of

the Administrative Code dealing with the

issuance of sound permits, the police

nonetheless uniformly deny such permits

for the Mission block solely because of

the Dollinger decision:

Q. Are you familiar with Section

435-6.0 of the Administrative

Code, which is the explicit sec-

tion of the Code dealing with

the issuance of sound permits?

A. Yes, we are familiar with this

section.

Q. Is it your interpretation that

this ordinance does not apply

to the block between Lexington

and Third on East 67th Street.

A. It's my interpretation that the

Dollinger decision does apply

and it prohibits using ampli-

fied sound in a block and that

is why those permits are re-

fused.

* * a

Q. Did you make any determination

whether or not CJY was listed

as a party to the Dollinger

injunction in denying them a

permit?

A. I had a list of the people who

were named in that original

Dollinger decision, and of

course CJY was not in that

list.

(Tr. 153-54.)

4. Police Failure to Make Any

Individual Assessments.

The police, moreover, neither assess

the likelihood that any particular group

seeking to demonstrate in front of the

Soviet Mission will be violent, nor take

guidance from Section 5 of the Act for

the Prevention and Punishment of Crimes

Against Internationally Protected Persons,

18 U.S.C. § 112 (1978). (Tr. 145, 151.)

That statute allows peaceful demonstrators

to march in front of a foreign government

mission located outside the District of

Columbia and only imposes criminal penal-

ties if a demonstrator intimidates, co-

erces, threatens or harasses a foreign

official or official guest or attempts

such conduct within one hundred feet of a

mission. Indeed, Captain Selvaggi testi-

fied that he incorrectly instructed his

men that the statute flatly prohibited all

demonstrations within one hundred feet of

a foreign mission, regardless of intent.

(Tr. 151.)

5. The Truncated June 1978 CJy

Demonstration.

On June 13, 1978, sixteen CJY men-

bers attempted to demonstrate at the Soviet

Mission. (Tr. 26.) The twenty policemen

present decreed that only twelve of the

sixteen demonstrators could enter the

block, that they would be confined to the

"bull pen," and that their sound device

had to be kept outside the block. (Tr.

28.) The district court found that "[t]he

demonstration was peaceful and orderly."

469 F. Supp. at 1298. (A-62).

CJY concluded from this experience

that "the visual impression of 12 people

standing on the corner is nothing compared

to in front of the building” (Tr. 33), and

that:

It's hard with 12 people penned in

to make believe that you are actu-

ally going to have an impact and

not to feel that your voices aren't

getting anywhere but to feel that

you are just speaking to each other.

(Feo. Fee)

6. The Violence that has Occurred

at the Soviet Mission is not

Attributable to CJY.

To somehow justify their broad re-

straints, the police attempted to show

that other groups, principally the Jewish

Defense League ("JDL"), were prone to vio-

lence.

A detective testified that he had

intiltrated the JDL in 1970, prior to both

the Dollinger decision and the formation

of CJY (Tr. 81-83, 88), and that "we would

deliberately goad the [JDL] demonstra-

tion(s] into violence." (Tr. 84.) An

investigator added that the police had

identified the FALN, JDL and antiCastro

Cubans as groups who would attach them-

selves to "large scale demonstrations" in

Order to plant bombs. He admitted, how-

ever, that such groups would not utilize

small demonstrations for such purposes.

(Tr. 93.) On appeal, the police cited a

clandestine bombing of the Mission by

anti-Castro Cubans. The police affirmed,

however, that the Mission had been bombed

only on this one occasion and that a bomb

had never been planted during a demonstra-

tion. They further confirmed that CJY had

no part in these events. (Tr. 90, 104.)

Furthermore, the police, as shown by

their own Unusual Occurrence Reports, have

not hesitated to employ the standard prac-

tice of making arrests in cases of actual

Or prospective violence. Those reports

also confirmed that it is in demonstra-

tions of a larger scale than that proposed

by CJY that violence, principally involv-

ing JDL, is far more likely to occur.

The police also attempted to portray

CJY as prone to violence. The district

court, however, recognizing the futility

of the attempt, observed that "nobody has

even begun to suggest that CJY is an orga-

nization that engages in these nefarious

practices" (Tr. 106-107) and characterized

CJY as "an organization of nice young men

from Queens, whose purposes have a very

therapeutic appeal." (Tr. 113,)5

5 At the district court hearing, the

police endeavored to depict CJY as dis-

posed to violence by recounting the

arrest of a CJY member for displaying a

banner and using a bullhorn at a tennis

[Footnote continued]

Many people walk in front of the

Soviet Mission every day. But if they

carry a banner protesting Soviet treatment

of Jews or otherwise attempt to speak out,

they are confined to a "bull pen," limited

to twelve in number and denied the use of

sound equipment on the Mission block, re-

gardless of their intent to act peacefully,

[Footnote continued]

match. (Tr. 62.) No violence was as-

sociated with this incident, however,

and the charge was dropped. (Tr. 75-

76.) The police also cited a newspaper

report that a CJY member had overturned

a table manned by sympathizers of the

Palestine Liberation Organization. (Tr.

68.) Informed at the hearing that this

description of the incident was errone-

ous, the police dropped that line of

questioning. (Tr. 69.) Consequently,

there was no evidence before the dis-

trict court to establish that CJy had

been previously responsible for or was

presently prone to violence. The pre-

sumption of the majority of the Court

of Appeals, that the five members of

CJY (10%) who might be members of the

JDL or other violent groups endorse

violence, was contrary to the observa-

tions of the district court cited in

the text.

regardless of whether they have a history

of violence and regardless of whether they

are subject to the Dollinger decision.

7. The Proceedings Below.

Judgment dismissing CJY's complaint

was entered by the district court after

CJY's motion for a preliminary injunction

was denied and the hearing held thereon

deemed to constitute the trial on the

merits. In upholding the restraints, the

district court merely employed a balancing

test, never once determining if the police

had any legislatively granted authority to

impose them or addressing the police fail-

ure to comply with the Administrative Code

in refusing to issue a sound permit for

the Mission block.

On appeal, the majority upheld the

restraints terming them “comparatively

minor." It interpreted Section 435 of the

New York City Charter to authorize re-

Straints on the situs of the demonstration

and on the number of demonstrators. The

majority also relied on the violence caused

by others and the speculation that violent

persons might attempt to infiltrate a CJY

demonstration in finding the restraints

proper. With respect to the ban on sound

equipment, the majority ruled that the

police need not obey, but only need con-

Sider, the Administrative Code provisions

mandating the issuance of a permit.

In dissent, Judge Mansfield noted

that the streets are traditional places

for demonstrations and that this Court has

condemned broad based restraints on street

and sidewalk picketing where the police

did not prove that a less restrictive and

more narrowly tailored restraint could not

be formulated. Since the district court

had not found that such a showing had been

made, since the record disclosed the avail-

ability of less restrictive alternatives,

and since administrative convenience has

no place in First Amendment analysis re-

garding demonstrations at such traditional

demonstration sites, Judge Mansfield rea-

soned that the restraints should have been

enjoined.

Judge Mansfield also noted that the

restraints at issue here impact not only

CJY, but every person who, like CJY, would

seek to demonstrate peacefully in the

Soviet Mission block including those who

would follow the President's plea to dem-

onstrate against the Russian invasion of

Afghanistan.

He further observed that the actual

source of these restraints was the Dollin-

ger decision which is not applicable to

CJY. He pointed out that 3 435 of the New

York City Charter, relied on by the major-

ity and the police as authorizing these

restraints, had been interpreted by the

courts of the State of New York not to au-

thorize such restraints and constitution-

ally could not be interpreted otherwise.

Judge Mansfield also found that the

absolute ban on sound equipment imposed by

the police on the Mission block clearly

violates § 435-6.0 of New York City's Ad-

ministrative Code. That section obligates

the police to issue sound permits under

specified conditions with which CJyY had

agreed to comply. Replying to the major-

ity's suggestion that the police gave

"tacit consideration" to this ordinance,

he stated the obvious: "Surely the police

must do more than give tacit consideration

to the governing law -- they must follow

it." 621 F.2d at 482. (A-53).

REASONS FOR GRANTING THE WRIT

The implications of the ruling below

and of the unsatisfactory analysis upon

which that holding was reached transcend

the interests of the parties litigant and

strike deeply at “the central position

of free expression in the constitutional

scheme." L. Tribe, American Constitu-

tional Law 582 (1978). Use of the streets

"for purposes of assembly, communicating

thoughts between citizens, and discussing

public questions . .. has, from ancient

times, been a part of the privileges,

immunities and liberties of citizens."

Hague v. C.1.0., 307 U.S. 496, 515 (1939).

Police violation of a statute to

Suppress the use of sound equipment on a

public sidewalk near the target of a dem-

onstration is unknown to the cases and is

to be condemned rather than upheld. The

police practice of barring all peaceful

demonstrators from demonstrating on the

sidewalk in front of their target and lim-

iting the number of demonstrators on a

city bloc to a mere few far below the

capacity of the block to accommodate them

sharply conflicts with the decisions of

this Court and of the District of Columbia

Circuit and is without constitutional

Statutory authority. |

To be sure, the right to demonstrate

may be limited through provisions to en-

force compelling governmental concerns

appropriately reflected in legislation

narrowly tailored to reflect those con-

cerns. But the restraints here enjoy no

such authorization, are flatly contrary to

the existing ordinance with respect to the

use of wound equipment, and go far beyond

what Congress, in discharging the United

States' treaty obligation to protect mis-

sions, has deemed necessary. The holding

of this case, therefore, raises the highly

disturbing notion that the First Amendment

rights of citizens of this country are of

’>

only passing concern whenever it can be

shown that others, clandestinely or in

much larger demonstrations than sought

here, have resorted to violence. Were

that the case, the right of assembly would

be meaningless.

Certiorari should be granted to

review this untenable result and the dis-

turbing implications it portents before

the doctrine announced below spreads fur-

ther. Already, one district court, noting

that the decision below has been "much

criticized", has, nevertheless, been com-

pelled to follow it. ISKON v. City of New

York, No. 79 Civ. 1118 (S.D.N.Y. August 25,

1980). This Court should decide if the

First Amendment is to be so cavalierly

treated.

I. THE DECISION BELOW, IN SUSTAINING

THE BAN ON SOUND EQUIPMENT ON THE

MISSION BLOCK, SHARPLY CONFLICTS

WITH PRIOR HOLDINGS OF THIS COURT

AND RAISES DISTURBING LIMITATIONS

ON FREEDOM OF SPEECH REQUIRING

REVIEW BY THIS COURT.

There can be no doubt, ard this

Court has ruled, that the use of amplified

sound, whether it be employed in a politi-

cal campaign or a demonstration, is a form

of speech protected under the First Amend-

ment. Kovacs v. Cooper, 336 U.S. 77 (1949);

Saia v. New York, 334 U.S. 558 (1948).

"Loudspeakers are today indispensible ele-

ments of effective public speech." Saia v.

New York, 334 U.S. at 561. Reasonable

restraints adopted by state legislatures

or city councils as to the time, place and

manner of the use of sound equipment have

been upheld, Kovacs v. Cooper, but the

issue here goes far beyond examining leg-

islation crafted to meet constitutional

concerns and yet prevent abuse.

This case brings to the fore the

issue of whether the police by their own

volition may construct a prior restraint

of freedom of speech which violates a duly

enacted city ordinance permitting the use

of sound equipment.

A. In Denying a Sound Equipment Permit

to CJY, the Police Violated the

Governing Ordinance.

Both the majority below and the dis-

trict court conceded that the police vio-

lated Section 435-6.0 of the Administra-

tive Code in denying sound permits to CJY.

That ordinance expressly mandates the

police to issue a permit for the use of

sound equipment at times and decibel lev-

els with which CJY has repeatedly affirmed

it will comply.

The ordinance contains no exception

for missions. Rather, it prohibits use of

sound equipment between 10:00 p.m. and

9:00 a.m., within 500 feet of a school

during school hours or a place of worship

during hours of worship and within 500

feet of a hospital.®& The ordinance fur-

ther prohibits such equipment only where

the Commissioner determines that vehicular

or pedestrian traffic is such, or that

conditions of overcrowding or street re-

pair exist, so that the use of sound equip-

ment will be hazardous to vehicular or

pedestrian traffic or deprive the public

of use of the street. But, as the dis-

trict court found, “the defendants have

offered no evidence that the Commissioner

made any of the determinations specified

in the Code.” 469 F. Supp. at 1303. (A-85).

6 Since the Administrative Code precludes

the use of sound equipment from 10 p.m.

to 9 a.m. the concern voiced by the

district court for late night use of

such equipment is irrelevant here. In

fact, CJY affirmed that it has no de-

sire to utilize such equipment while

people sleep. (Tr. 28.)

Indeed, the ban on sound equipment

sharply distorts the comprehensive anti-

noise code enacted by the City of New York.

Designed, inter alia, to prohibit certain

“unnecessary noise," including that from

sound signal devices, animals, construc-

tion activities and sound reproduction

devices, the New York City Noise Control

Code, §$ 1403.3-1.01 et seq. of the Admin-

istrative Code of the City of New York ex-

pressly exempts sound equipment employed

under the permit system established in

Section 435-6.0 discussed above. See

§ 1403.3-4.03(a). The City attested that

the mandatory permit system was to be

obeyed when, in 1979, it created ambient

noise quality zones and confirmed that

the decibel limits established did not

apply to such sound equipment. Local Laws

of the City of New York, No. 64, § 1403.3-

6.01(b) (1) (Nov. 7, 1979).

B. Prior Restraints on Freedom of

Speech which Violate the

Express Terms of an Ordinance

Allowing the Speech Should be

Condemned.

Police violation of a duly enacted

ordinance to impose prior restraints on

freedom of speech is an anomaly unknown to

the cases that have come before this Court.

It is through legislation duly enacted by

elected reprepresentatives that the commu-

nity establishes its balance between the

rights of demonstrators and the privacy

interests of its residents. See Niemotko

v. Maryland, 340 U.S. 268, 275-76 (1950)

(Frankfurter, J. concurring). For the

police to unilaterally disrupt that bal-

ance is unheard of and flatly violates the

precepts established by this Court in

Grayned v. City of Rockford, 408 U.S. 104

(1972), and Kovacs v. Cooper affording

deference to narrowly drawn anti-noise or-

dinances. Not evenaA Quaker Action Group

v. Morton, 516 F.2d 717, 734 (D.C. Cir.

1975), the sole case cited by the majority

below on this point, sanctioned such be-

havior. There, the Department of the In-

terior had, pursuant to the Administrative

Procedure Act, 5 U.S.C. §§ 551 et seq.

(1976), adopted 36 C.F.R. § 50.19(d) (2)

(1973) which prohibited the use of sound

equipment on the sidewalk in front of the

White House, but permitted the use of such

equipment in Lafayette Park immediately

across the street. Significantly, no

statute or ordinance contradicted the reg-

ulation. The Quaker Action court, there-

fore, did not sanction police violation of

a statute or ordinance to restrain freedom

of speech.

The anomaly that this case presents

is also shown by the ban on the use of

such sound equipment even in the bull pen,

an area situated somewhat akin to Lafay-

ette Park in the Quaker Action case in

that it is across the street from, and in

the same block as, the front gate of the

target of the demenstration. The demon-

Strators in the Quaker Action case were

permitted to use sound equipment in Lafay-

ette Park and the Quaker Action Court

found that this afforded “adequate protec-

tion for First Amendment communication."

516 F.2d at 734. Here, however, the use

of sound equipment as authorized by the

Administrative Code is precluded by the

banning of sound equipment from the entire

Mission block.

This Court has never sanctioned such

a result even when considering restaints

on sound equipment contained in an ordi-

nance. In Kovacs v. Cooper, this Court

carefully observed that the Trenton, New

Jersey ordinance banning sound equipment

from vehicles had been limited by the New

Jersey courts to prohibiting only "'loud

and raucous noises'" (336 U.S. at 83) and

accordingly upheld it on exactly that

ground, stating that the First Amendment

does not bar an ordinance restraining

speech in a “loud and raucous tone". 336

U.S. at 87. In Grayned v. City of Rock-

ford, 408 U.S. 104 (1972), this Court up-

held an ordinance which barred willful

noisemaking tending to disturb a school

but was limited in time to the hours the

school was in session. That limitation

was decisive in sustaining the ordinance's

validity against charges of overbreadth:

Far from having an impermissibly

broad prophylactic ordinance, Rock-

ford punishes only conduct which

disrupts or is about to disrupt nor-

mal school activities. ... Peace-

ful picketing which does not inter-

fere with the ordinary functioning

of the school is permitted.

* * *

The antinoise ordinance imposes no

such restriction on expressive ac-

tivity before or after the school

session, while the student/faculty

"audience" enters and leaves the

school.

408 U.S. at 119-20.7

The police practice here enjoys none

of the redeeming features relied on in

Kovacs and Grayned. Unlike the ordinances

there, the police are not placing limited

constraints on the time at which or manner

in which sound equipment may be used.

Their practice effectively bars the use of

sound equipment, at all times and at any

decibel level, to convey CJY's message to

the target of the demonstration. It is

the duly enacted Administrative Code which

embodies the type of limitations relied on

7 See also, Wisconsin Student Ass'n v.

Regents, 318 F. Supp. 591 (W.D. Wis.

1970) (enforcement of an ordinance bar-

ring all sound equipment from univer-

sity buildings preliminarily and perma-

nently enjoined). Accord, Maldonado v.

County of Monterey, 330 F. Supp. 1282

(N.D. Cal. 1971); Phillips v. Township

of Darby, Pa., 305 F. Supp. 763 (E.D.

Pa. 1969).

in Kovacs and Grayned -- the Code with

which CJY desires to comply and which the

police, ironically, choose to violate.

C. The Restraint on Sound Equipment

is Unsupported by Any Govern-

mental Interest Articulated by

Congress in Discharging the

United States Obligation to

Protect Foreign Missions.

This blatant violation of the Admin-

istrative Code is compounded by the fail-

ure of the police and the majority below

to point to an appropriately manifested

governmental interest which the police

policy, in the words of this Court, is

"narrowly tailored to further. ..."

Grayned v. City of Rockford, 408 U.S. at

116-117. They rely on the Vienna Conven-

tion of Diplomatic Relations, 23 U.S.T.

3227 (1961) and Section 16 of the Head-

quarters Agreement between the United Na-

tions and the United States. 61 Stat. 758

(1947). But Congress, in discharging the

United States' obligations under that

treaty and agreement in enacting 18 U.S.C.

§ 112 (1976) ,8 omitted any ban or limita-

tion on sound equipment. Congress, the

body charged with articulating such con-

cerns, did not identify any govermental

interests which justify the ban on sound

equipment imposed here by the police.

D. The Police Policy is

Discriminatory.

Ignoring their violation of the Ad-

ministrative Code and the lack of Congres-

sional concern regarding sound equipment,

the police argue that sound equipment is

not really banned because it is permitted

at the "overflow site" located in the next

block, East 67th Street between Lexington

and Park. This answer is no answer. The

overflow site cannot be seen from the Mis-

8 Act for the Protection of Foreign Offi-

Ccials and Official Guests of the United

States, Pub. L. No. 92-539 201, 86 Stat.

107 (1972), as amended and codified in

18 U.S.C. § 112 (1976).

sion and demonstrators using sound equip-

ment at reasonable decibel levels simply

cannot be heard.

Moreover, the police policy is dis-

criminatory in two respects: First, while

other residents and missions in New York

City are protected by the decibel and time

limitations of the Administrative Code,

only the Soviets are sheltered from sound

equipment utilized in the manner autho-

rized by the Administrative Code. Second,

the use of sound equipment at the so-

called overflow site at a level which

could be heard at the Mission would deafen

the residents of the two Lexington Avenue

apartment houses situated between the Mis-

sion and the overflow area. The police

have yet to explain, and the courts below

failed to discuss, any justification for

subjecting those citizens to the burden of

demonstrations directed toward the Mission.

E. The Reasoning of the Majority

Below is Seriously Flawed.

The majority below claimed that the

police gave "tacit consideration" to the

Administrative Code and that the restraints

imposed are necessary in highly urban New

York City. As to the first point, the

district court found to the contrary,

Stating, "the prohibition of the use of

sound equipment appear[s] to have been

derived solely from the 1971 State court

injunction." As to the majority's second

point, the New York Court of Appeals has

held that a nearly identical sound equip-

ment ordinance to Section 435-6.0 of the

Administrative Code enacted by the City of

Buffalo, while sufficiently specific, was

unconstitutional on its face for the rea-

son, inter alia, that it required a five

day waiting period. People v. Taub, 37

N.¥.2d 530 (1975).

The majority decision thus gives the

New York police sole authority to impose

stricter restraints on the Mission block

than New York City intended and than the

New York Court of Appeals has found appro-

priate for a similar New York urban envi-

romment.

Certiorari should be granted to

review the highly disturbing holding below

concerning the absolute ban of sound equip-

ment on the Mission block. Freedom of

speech should not be unilaterally re-

strained in violation of a city ordinance

without this Court's full consideration.

II. THE DECISION BELOW, IN SUSTAINING

THE BAN ON DEMONSTRATIONS IN FRONT

OF THE MISSION AND THE LIMITATION

OF THE NUMBER OF DEMONSTRATORS TO

TWELVE, FURTHERS CONFLICTS WITH

PRIOR HOLDINGS OF THIS COURT AND

SANCTIONS VIOLATIONS OF CJY'S

FIRST AMENDMENT RIGHTS.

Similarly contrary to this court's

prior holdings is the ruling of the major-

ity below sanctioning the police ban on

demonstrations on the sidewalk in front of

the Mission and the limitation of twelve

demonstrators on the entire Mission block.

What the majority has done here is to se-

riously abridge the favored place that the

First Amendment right to demonstrate has

traditionally enjoyed.

This Court has repeatedly affirmed

that the starting place in a First Amend-

ment analysis is recognition that munici-

pal regulation of First amendment rights,

regardless of whether it be "content neu-

tral," must be narrowly tailored to limit

the time, manner and place of the exercise

of such rights to the minimal degree nec-

essary to protect compelling governmental

interests. See, e.g., Grayned v. City of

Rockford, 408 U.S. 104 (1972); Police De-

partment of the City of Chicago v. Mosley,

408 U.S. 92 (1972); Gregory v. Chicago,

394 U.S. lll (1969); Adderley v. Florida,

385 U.S. 39 (1966); Cox v. Louisiana, 379

U.S. 536 (1965); Edwards v. South Carolina,

372 U.S. 229 (1963); Kunz v. New York, 340

U.S. 290 (1951); Kovacs v. Cooper, 336 U.S.

77 (1949); Saia v. New York, 334 U.S. 558

(1948).

Those who would regulate the exer-

cise of first amendment freedoms thus

shoulder a weighty burden of justification.

E.g-, Cohen v. California, 403 U.S. 15, 21

(1971). And in cases such as this which

involve a prior restraint on expression,

see Kunz v. New York, 340 U.S. 290, 293

(1951); Saia v. New York, 334 U.S. 558,

559 (1948), the proponent of the restraint

must overcome a “heavy presumption" of

invalidity. Organization for a Better

Austin v. Keefe, 402 U.S. 415, 419 (1971);

Carroll v. President and Comm'rs of Prin-

cess Anne, 393 U.S. 175, 181 (1968);

Alderman v. Philadelphia Housing Authority,

496 F.2d 164, 168-69 (3d Cir. 1974) cert.

denied, 419 U.S. 844 (1974). As this

Court has ruled,

In every case, therefore, where

legislative abridgment of the rights

[of freedom of speech] is asserted,

the courts should be astute to exam-

ine the effect of the challenged

legislation. Mere legislative pref-

erences or beliefs respecting mat-

ters of public convenience may well

support regulation rected at other

ersonal activities ut be insuffi-

cient to justify such as diminishes

the exercise of rights so vital to

the maintenance of democratic i

nsti-

tutions.

Schneider v. State of New Jersey, 308 U.S.

147, 150-51 (1939) (footnote omitted;

emphasis added). See also, Women Strike

For Peace v. Morton, 472 F.2d 1273, 1282-

83 (D.C. Cir. 1972).

These precepts, wholly ignored by

the majority below, are especially signif-

icant in cases involving demonstrations in

a public forum such as a street or side-

walk. Hague v. C.I.0., supra. Justice

Blackmun, writing for this Court in Lehman

v. City of Shaker Heights, 418 U.S. 298

(1974), made exactly this point in distin-

guishing streetcars from streets and side-

walks. He wrote that “[t]hese situations

are different from the traditional sett-

ings where First Amendment values inalter-

ably prevail," and that in that case “we

have no open spaces, no meeting hall, park,

street corner, or other public thorough-

fare." 418 U.S. at 302, 303. Accordingly

the "reasonable legislative objectives ad-

vanced by the city in a proprietary capac-

ity" were held to prevail. 418 U.S. at

304.

Thus, in cases involving a public

forum, this Court has ruled that "[o]ne is

not to have the exercise of his liberty of

expression in appropriate places abridged

on the plea that it may be exercised in

some other place.” Southeastern Promo-

tions, Ltd. v. Conrad, 420 U.S. 546, 556

(1975), quoting from Schneider v. State,

308 U.S. 147, 163 (1939). And in Virginia

State Board of Pharmacy v. Virginia Citi-

zens Consumer Council, Inc., 425 U.S. 748,

757, n.15 (1976), this Court reaffirmed

that "[w]e are aware of no general princi-

ple that freedom of speech may be abridged

when the speaker's listeners could come by

his message by some other means, such as

seeking him out and asking him what it is."

In the public forum cases, this

Court has repeatedly held, therefore, that

freedom of speech can only be restrained

in the least restrictive manner necessary

to accommodate a compelling public purpose.

See e.g., Grayned v. City of Rockford;

Shelton v. Tucker, 364 U.S. 479 (1960);

and cases cited supra. As Professor Tribe

has distilled this line of authority:

» « « [W]henever it can be demon-

strated that the result of the gov-

ernment's rule or policy is to limit

in some significant degree the ease

or effectiveness with which a speak-

er can reach a specific audience

with a particular message, the gov-

ernment should lose the case unless

it can establish that an important

public objective unrelated to the

message would be sacrificed by any

less restrictive alternative.

Tribe, supra at 686.

A. Blanket Removal of Peaceful

Demonstrators From the

Target Significantly

Diminishes Speech.

These long established rules assume

particular relevance in attempts to bar

all peaceful demonstrators from the public

Streets and sidewalk in front of and adja-

cent to the target of the demonstration.

It is the target that the demonstration is

directed toward and it is the target that

provides the public focus for the demon-

stration. Labor union picketing, for ex-

ample, conveys less of a message and less

of a focus when removed from the plant

where the grievance lies. The courts have

thus consistently recognized the devastat-

ing impact on removing all demonstrators

from the street next to the target. See

e.g., Grayned v. City of Rockford, supra

(peaceful demonstrations permitted di-

rectly in front of a school during school

hours); A Quaker Action Group v. Morton,

516 F.2d 717 (D.C. Cir. 1975) (demonstra-

tions on sidewalks directly in front of

the White House and executive office build-

ings); Greenberg v. Murphy, 329 F. Supp.

37 (S.D.N.Y. 1971) (demonstrators permit-

ted to picket at the side entrance to the

United States Mission to the United Na-

tions and small groups permitted to ap-

proach the front entrance to present peti-

tions).

Perhaps the need to demonstrate in

close proximity to the target was never

more eloquently put than by the demonstra-

tor in Police Department of the City of

Chicago v. Mosley, 408 U.S. 92 (1972), in

his testimony quoted by this Court in

upholding his right to demonstrate:

when I was across the street from

the school, 150 feet away, you can-

not hardly see me. The question

that all of the people asked me was,

"Where is the school located?" They

don't even see the school across the

street, you know. So, what it does,

it takes away a certain amount of

the effectiveness .... [WJhen I

am across the street, I am sort of

out of the picture... .

408 U.S. at 93, n.l.

In like manner, the record in this

case clearly shows that by limiting CJY to

twelve demonstrators and by placing them

across the street and down the block, some

120 feet away, the police have quite ef-

fectively removed them from the "picture."

As CJY's co-chairmen stated:

If we have 12 people on the corners

and the 12 of us were shouting and

we felt really pitiful and we felt

our voices weren't getting us any-

where, if you have people in front

of the mission, even the 12, which

I personally think is much too small

a number to do anything effectively,

but even 12 people in front of the

mission would be heard by the people

inside.

(Tr. 32-22.)

B. Permitting only Twelve Demon-

strators on a City Block

Diminishes Speech.

Similarly, constricting the number

of demonstrators to a mere handful, ina

city block that could obviously accomodate

more, severely impacts the message the

demonstrators attempt to convey. It gives

the inaccurate impression that their views

are shared by only a few and stifles their

desire to demonstrate again. CJY found

that to be the case here:

the 11 people with me [in the bull-

pen] were not very much inclined to

think that the rally was a success

and want to do it again. They were

kind of embarrassed.

(Tr. 35.) The impact of the police re-

strictions as articulated here by CJy

accords with the general finding of the

court in A Quaker Action Group v. Morton,

362 F. Supp. 1161 (D.D.C. 1973), aff'd,

516 F.2d 717 (D.C. Cir. 1975):

Large demonstrations play an “impor-

tant role" in the exercise of First

Amendment rights. A large demon-

stration is likely to be a more ef-

fective communication device than is

a small demonstraion. The size of a

demonstration bears a relationship

to the communication of the content

of the message. The larger the dem-

onstration, the greater the likely

coverage and exposure by the news

media.

362 F. Supp. at 1167.

Accordingly, numerical limitations

on peaceful demonstrations have been rare-

ly imposed. Only in the Quaker Action

cases (A Quaker Action Group v. Morton,

supra; A Quaker Action Group v. Hickel,

421 F.2d 1lll (D.C. Cir. 1969)) have we

found express consideration of a numerical

limitation, and there the Court enjoined

enforcement of a regulation limiting the

number of demonstrators on the sidewalk in

front of the White House to 100 people and

to 300 in Lafayette Park. The Court of

Appeals, upholding the preliminary injunc-

tion, ruled that 750 and 3,000 demonstra-

tors could be accommodated i those re-

spective areas, noting "the fact that

plaintiffs wish to demonstrate in areas

open to the public argues for their cause."

421 F.2d at 1116.

While this Court has not directly

addressed a numerical limitation, it has

repeatedly ruled that restraints on demon-

Strations are to be measured by the char-

acter of the site. E.g., Cox v. Louisiana,

379 U.S. 536 (1965). Such a formulation

necessarily calls for assessment of the

site's ability to accommodate demonstra-

tors and to permit the number reached

through that assessment to demonstrate in

Order to prevent the impact on speech and

the inaccurate impression of lack of sup-

port for the cause noted above.

There can be no do doubt that more

than twelve demonstrators can fit in the

Mission block and, indeed, that the four

additional CJY members who desired to dem-

onstrate on June 13, 1978 could have been

accommodated. In fact, the district court

found that the police made no independent

evaluation of the proper number, stating

that "[t)he limitation of the number of

demonstrators on the block to twelve...

appear[s] to have been derived solely from

the 1971 state court preliminary injunc-

tion." 469 F. Supp. at 1299. (A-66).

Yet the majority below accepted the police

failure to make an evaluation and the

district court's failure to canvass less

restrictive alternatives.

C. Congress Avoided These Restraints

in Satisfying the United States

Obligation to Protect Missions.

Congress, moreover, sought no such

result even when it amended 18 U.S.C.

3 112 in 1972, after the Dollinger deci-

sion and many of the violent incidents

caused by others and referred to in the

Unusual Occurrence Reports. As the legis-

lative history explicitly states, the

amendments were designed to “permit a di-

rect discharge by the United States of its

international obligations as a host coun-

a ee aS

Significant for purposes of this

case is that Congress found it necessary

to prohibit only those demonstrations

within one hundred feet of a foreign mis-

sion which were mounted with the specific

intent to coerce, harass or obstruct a

foreign official.19 Section 112 does not

9 S. Rep. No. 92-1105, 92d Cong., 2d

Sess., 1972 U.S. Code Cong. & Admin.

News 4316, 4317.

10 The legislative history to the Act for

the Prevention and Punishment of Crimes

Against Internationally Protected Per-

[Footnote continued]

limit demonstrations organized for the

legitimate purpose of exercising free ex-

pression. To the contrary, subsection (d)

of § 112 states that:

Nothing contained in this section

shall be construed or applied so as

to abridge the exercise of rights

guaranteed under the first amendment

to the Constitution of the United

States.

The 1972 Senate Report confirmed that

3 112(d):

+ « »« was added by the committee to

express its deep concern to those

judicial and executive officials to

whom the administration has been en-

10 [Footnote continued]

sons, Pub. L. No. 94-467 5, 90 Stat.

1997 (1976), which extended the protec-

tions of § 112 to certain quasi-offi-

cial foreign guests, expressly notes

that the term “willfully,” as used in

§ 112, means “voluntarily and inten-

tionally, and with specific intent to

do something the law forbids. . .

H.R. Rep. No. 94-1614, 94th Cong., "24

Sess. 6 n.10, 1976 U. S. Code Cong. &

Admin. News 4480, 4484; S. Rep. No.

94-1273, 94th Cong., 2d Sess. 8 n.10

(1976).

trusted to use all due care to see

that legitimate expression and as-

sembly has not been abridged. First

amendment rights play an important

role in a Free Society and care

should always be exercised to see

that their role is not diminished.11

A similar concern was voiced in the 1976

Senate and House Reports on the amend-

ments ,12

To rebut the plain statutory lan-

guage permitting peaceful demonstrations

within 100 feet of any mission, and the

evident Congressional concern for preserv-

ing First Amendment rights, the majority

below sought to advance Congressional sup-

port for these prior restraints by stating

that the statute:

11 §. Rep No. 92-1105, 92d Cong., 2d Sess.,

1972 U.S. Code Cong. & Admin. News 4316,

4328.

12 See H.R. Rep. No. 94-1614, 94th Cong.,

2d Sess. 6 n.9, 1976 U.S. Code Cong. &

Admin. News 4480, 4484; S. Rep. No. 94-

1273, 94th Cong., 2d Sess. 8 n.9 (1976).

specifically left open the situation

where local authorities might use

Stricter controls. See Pub. L. 92-

539, 86 Stat. 1070, 1073, § 3 (1972);

Pub. L. 94-467, 90 Stat. 1997, 2001,

§ 10 (1976).

621 F.2d at 475. (A-16).

This reading of the statute enjoys

no support from its language. The perti-

nent sections state: "[L]aw enforcement

powers [may] take appropriate action, such

as effecting arrests, for Federal as well

as non-Federal violations" (Pub. L. 94-467,

§ 10), and the section shall not"...

relieve any person of any obligation im-

posed by any law of any State. ..."

(Pub, L. 92-539, § 3.) The statute thus

merely provides that duly enacted state

laws are not pre-empted and that appropri-

ate police action after an offense has

occurred is still permitted. The statute

gives not a hint that Congress believed

that prior restraints were necessary to

protect foreign missions.

D. The Restraints are Overbroad.

Even in the absence of the guidance

provided by 18 U.S.C. § 112 as to the type

of protection appropriate for foreign mis-

sions, the police practice of keeping all

demonstrations away from the Mission clear-

ly is not narrowly tailored to safeguard

the security and proper functioning of the

Mission.

Specifically, were the CJY members

who sought to demonstrate on June 13, 1978

permitted to appear in front of the Soviet

Mission, the twenty policemen present

could have stationed themselves between

the demonstrators and the Mission. Were a

bull pen required, one could have been

established in front of the Mission, ar-

ranged near the curb so that there would

be space for police and pedestrians be-

tween the bull pen and the eight foot iron

fence girding the Mission. The police

also could have stationed themselves along

the fence. Alternatively, as shown by

the map of the Mission area (A-115),

demonstrators could have been positioned

on the portion of the sidewalk commencing

a few feet west of the gate and running

approximately sixty feet in the direction

of Lexington Avenue, leaving the eastern

portion of the sidewalk to afford com-

pletely unobstructed passage to and from

the Mission; other demonstrators could

have been positioned on open sidewalk

across the street. The presence of the

police along the perimeters of the demon-

stration as well as the presence of the

police station house across the street

would have assured security and given a

visible warning that violence or harass-

ment would not be tolerated -- an assur-

ance and warning that could have been

effectuated by the quick arrest of any

violent demonstrator. No consideration

was given to these clearly less restric-

tive alternatives which would have allowed

CJY to exercise its First Amendment rights.

E. The Right to Demonstrate is to be

Judged on an Individual Basis and

Not on the Basis of Conduct by

Others.

The decision of the majority below

also announces the anomalous holding that

the potential that some groups may engage

in violence justifies restraints on the

world at large. This Court, however, has

unreservedly held to the contrary.

In Police Dept. of the City of Chi-

cago v. Mosley, 408 U.S. 92 (1972), this

Court addressed an ordinance prohibiting

all non-labor union picketing at certain

sites on the basis that violence often

occurred. In holding the ordinance inval-

id, this Court ruled:

Predictions about imminent disrup-

tion from picketing involve judg-

ments appropriately made on an indi-

vidualized basis, not by means of

broad classifications, especially

those based on subject matter.

408 U.S. at 100-101.

To be sure, the police cannot be

asked to discount the possibility that an

apparently peaceful group willing to com-

ply with reasonable regulations might be

goaded into action by an outsider, or be

used as innocent cover for an individual

act of violence, or even dissembling as to

the peacefulness of its designs. However,

"[i]n our system, undifferentiated fear or

apprehension of disturbance is not enough

to overcome the right to freedom of ex-

pression." Tinker v. Des Moines School

District, 393 U.S. 503, 508 (1969). The

precautionary measures to be taken, par-

ticularly with respect to the small demon-

strations sought by CJY, appropriately

involve the preparation and deployment of

sufficient police officers to enforce the

law through arrest and indictment, if nec-

essary, rather than across-the-board limi-

tations that ~tifle small peaceful demon-

strations.

F. Section 435 of the New York City

Charter Does Not and Constitu-

tionally Cannot Authorize the

Restraints.

The police restraints further vio-

late the First Amendment in that they

either are unauthorized by legislation or

have been adopted pursuant to a vague

ordinance containing no standards govern-

ing police actions.

The majority below found authority

for the restraints in Section 435 of the

New York City Charter. But as this Court

has held again and again, “the starting

point in every case involving construction

of a statute is the language itself."

Touche Ross & Co. v. Redington, 442 U.S.

560, 570 (1979); Santa Fe Industries Inc.

v. Green, 430 U.S. 462, 472 (1977); Ernst

& Ernst v. Hochfelder, 425 U.S. 185, 197

(1976); accord, United States v. Oregon,

366 U.S. 643, 648 (1961); Packard Motor

Car Co. v. NLRB, 330 U.S. 485, 492 (1947).

Here the relevant statutory language

is plain; it gives the police power only

to "preserve the public peace [and] dis-

perse unlawful or dangerous assemblages

and assemblages which obstruct the free

passage of public streets, sidewalks,

parks and places. ..." The ordinance

gives the police no express authority to

impose any prior restraint and, indeed the

language employed denies any such author-

ity. It speaks, not in terms of prevent-

ing acts in the future but of dispersing

those assemblages found to be unlawful,

dangerous or obstructive. Thus, the New

York courts have found that Section 435

did not grant authority to restrain demon-

strations in the Mission block. People v.

Solomonow, 56 Misc. 2d 1050, 291 N.Y.S. 24d

145, 150 (Sup. Ct. N.Y. Co. 1968).

In addition, pursuant to its opera-

tive terms, Section 435 has no application

to this case involving peaceful demonstra-

tions by a limited number of people. The

"dangerous" assemblage and blocking of

traffic premised by the ordinance have not

been found to be present here.

Furthermore, if the majority's hold-

ing that Section 435 vests the police with

power to construct the restraints at issue

was correct, then Section 435 violates

this Court's admonition that statutes

which purport to regulate freedom of speech

must be “precise and narrowly drawn" and

contain standards to guide the police in

enforcing its terms consistent with the

exercise of First Amendment rights. Ed-

wards v. South Carolina, 372 U.S. 229, 236

(1963); accord, Shuttlesworth v. Birming-

ham, 394 U.S. 147, 150-51 (1969); Niemotko

v. Maryland, 340 U.S. 268, 272 (1951). If

Section 435 is intended to serve as the

legislative basis upon which serious cur-

tailment of First Amendment rights may be

made, then it is a clearly overbroad and

vague grant of undefined power leaving the

police with unchecked discretion to do

what they will.

The blanket removal of all demon-

Strators from the sidewalk in front of and

adjacent to the Mission and the limitation

on the number of demonstrators in the Mis-

sion block restrain speech, are far in

excess of what Congress deemed necessary

under its treaty obligations, are over-

broad and are accomplished through an

ordinance that either does not authorize

them or is constitutionally infirm. Cer-

tiorari should be granted to consider

these overbroad restraints and to deter-

mine whether the case should have been

remanded to the district court with in-

structions to permit a reasonable number

of demonstrators to demonstrate in front

of or adjacent to the Mission.

CONCLUSION

For the foregoing reasons, and those

set forth in the dissent below, it is re-

spectfully submitted that the Petition for

Certiorari should be granted.

Respectfully submitted,

HOWARD C. BUSCHMAN III

Attorney for Petitioner

153 East 53rd Street

New York, New York 10022

(212) 935-8000

Of Counsel

John M. McEnany

Jeanne M. Luboja

Willkie Farr & Gallagher

The invaluable assistance provided in

preparation of this petition for writ of

certiorari by Mr. Lee H. Greene, J.D.,

School of Law (Boalt Hall) of the Univer-

sity of California, Berkeley is grate-

fully acknowledged.

A-1l

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 228 September Term 1979

Argued December 7, 1979

Decided March 27, 1980

Docket No. 79-7456

CONCERNED JEWISH YOUTH, :

Plaintiff-Appellant, :

~against- $

ROBERT J. MCGUIRE, in his :

official capacity as Police

Commissioner of the City of :

New York, EDWARD KOCH, in

his official capacity as the :

Mayor of the City of New York,

and the NEW YORK CITY POLICE

DEPARTMENT,

Defendants~-Appellees.

BEFORE: WATERMAN, MOORE and MANSFIELD,

Circuit Judges.

Appellant Concerned Jewish Youth

sought a preliminary injunction and a

A-2

final order barring the New York City

Police from enforcing restrictions on its

demonstrations, because the restrictions

infringed on the demonstrators' First and

Fourteenth Amendment rights. The United

States District Court for the Southern

District of New York (Honorable Milton

Pollack, Judge), denied the motion for the

preliminary injunction and dismissed the

complaint, finding that the restrictions

on the number and location of demonstra-

tors, and on the use of a sound device,

were necessary to further a significant

governmental interest.

We affirm.

HOWARD C. BUSCHMANN III, Esq.

New York, New York

(Willkie Parr & Gallagher,

John M. McEnany, Jeanne M.

Luboja, of counsel), for

Plaintiff Appellant.

A-3

PAMELA MCGOVERN GASKINS, Esq.

New York, New York

(Allen G. Schwartz, Corporation

Counsel of the City of New

York, L. Kevin Sheridan, of

counsel) for Defendants-Appellees.

ROBERT B. FISKE, JR., United

States Attorney for the Southern

District of New York, Katherine

J. Trager, Jane E. Bloom,

Michael H. Dolinger, Assistant

United States Attorneys, of

counsel, on Amicus Curiae Brief

for the United States of America.

MOORE, Circuit Judge:

This appeal raises interesting ques-

tions of the extent to which the First

Amendment rights of demonstrators ray be

subjugated to an overriding governmental

interest. Appellant Concerned Jewish

Youth ("CJ¥") sought declaration under 42

U.S.C. § 1983 (1976) that restrictions

applied to its demonstrations in front of

the Russian Mission in New York City vio-

lated the First and Fourteenth Amendments.

CJY also sought an order preliminarily

enjoining the New York City police from

A-4

restricting CJY's demonstrations. CJY now

appeals from a judgment denying the motion

for a preliminary injunction and dismiss-

ing the complaint (Honorable Milton

Pollack, District Judge, Southern District

of New York). Because no new evidence was

to be adduced at trial, the District Court

consolidated the hearing on the motion

with the action on the merits and issued

one decision disposing of both matters re-

ported at 469 F. Supp. 1296.

CJY is a membership association

founded in 1975 and headquartered at Queens

College in Flushing, New York. The pur-

poses of CJY are mainly to combat Anti-

Semitism, to preserve and strengthen Judaic

Heritage, and to work for the causes of

Soviet and Arab Jewry. The group has main-

tained its independence from what CJY has

characterized as other violence-oriented

Jewish groups such as the Jewish Defense

A-5

League (JDL). (Tr. 6, 16, 74). Of the

approximately 300 members of CJY, there

are 50 to 70 active members. (Tr. 15).

However, as one of the co-chairman of CJY

testified, about 10% of these active mem-

bers are also members of JDL or other ac-

tivist groups and presumably endorse the

more militant methods those groups employ.

(Ses) Soe Be).

The members of CJY sought to protest

on the sidewalk in front of the Russian

Mission to publicize and condemn the So-

viet Union's treatment of Jews. The Rus-

Sian Mission is on East 67th Street be-

tween Lexington and Third Avenues in the

19th police precinct in the City of New

York. A co-chairman of CJY went to the

19th precinct in June, 1978 to apply for a

permit to use sound equipment in front of

the Mission. The Captain in charge, Mario

Selvaggi, informed CJY that only twelve

A-6

persons would be allowed to demonstrate in

a "bull pen" diagonally across the street

from the Mission.1 Any additional demon-

Strators could protest on East 67th Street

between Park and Lexington Avenues. (Tr.

23, 143). In addition, Captain Selvaggi

informed CJY that no sound device would be

allowed on East 67th Street between Third

and Lexington Avenues (i.e., on the Mis-

sion block). Sound devices would only be

permitted on the northeast corner of East

67th Street and Lexington Avenue. (Tr.

25, 44). The Captain referred to the

"Dollinger" decision, which outlined vari-

ous restrictions which would be put on

demonstrations by certain groups in front

1. This bull pen was approximately 118'

east of the front entrance of the Mis-

sion on the north side of East 67th

Street (the Mission is on the south

side). It was in front of an apartment

building at a point on the block where

the sidewalk is the widest. (Tr. 129).

A-7

of the Mission.2 Although CJY was not a

party to that action, Captain Selvaggi ap-

plied the rational behind the Dollinger

restrictions to CJY.

CJY held a demonstration at the Rus-

sian Mission in June, 1978. In accordance

with Captain Selvaggi's instructions to

CJY, only twelve persons were allowed in-

side the "bull pen", and they were not

permitted to have a sound device. A few

other demonstrators stayed off the Mission

block, as they had been instructed to do.

Another demonstration planned for January

5, 1979 was not held because CJY felt that

the demonstration, like the previous one,

would be "ineffective and unsuccessful".

(Appellant's Br. 15).

2. Millan House Inc. v. Murphy, Civ. No.

10560 (Sup. Ct. N.Y. County 1971).

Dollinger was a suit brought by resi-

dents of the area against, among oth-

ers, the New York Police and the JDL.

A-8

CJY makes various First Amendment

claims that will be bifurcated ur the

purpose of discussion. The first claim is

that the restrictions on the location and

number of demonstrators violate their

rights under the First Amendment. The

second is that the restrictions on the use

of a sound device impair their freedom of

speech. We find that the time, place and

manner restrictions in this case are nec-

essary to further a strong governmental

interest, and affirm the holding of the

Discrict Court.

The right to a public forum for the

discussion and interplay of ideas is one

of the foundations of our democracy.

"Wherever the title of streets and parks

may rest, they have immemorially been held

in trust for the use of the public and,

time out of mind, have been used for pur-

A-9

poses of assembly, communicating thoughts

between citizens, and discussing public

questions." Hague v. CIO, 307 U.S. 396,

915, 59 S.Ct. 954, 964, 83 L.Ed. 1423

(1939).

However, the right to speak, assemble,

and discuss is not absolute. Although the

"government has no power to restrict such

activity because of its message", Grayned

v. City of Rockford, 408 U.S. 104, 115, 92

S.Ct. 2294, 2303, 33 L.Ed. 2d 222 (1972)

(footnote omitted), it is "equally clear

+ « - that reasonable 'time, place and

manner' regulations may be necessary to

further significant governmental interests,

and are permitted". Id. (footnote omit-

ted). The Supreme Court recently stated

"We have often approved restrictions [on

time, place and manner] provided that they

are justified without reference to the

content of the regulated speech, that they

A-10

serve a significant governmental interest,

and that in so doing they leave open ample

alternative channels for communication of

the informe:ion". Virginia Pharmacy Board

v. Virginia Consumer Council, 425 U.S. 748,

771, 96 S.Ct. 1817, 1830, 48 L.Ed. 2d 346

(1976). The balancing process which is

required in these situations was best de-

scribed by Justice Blackmun: . "Although

American constitutional jurisprudence, in

the light of the First Amendment, has been

jealous to preserve access to public places

for purposes of free speech, the nature of

the forum and the conflicting interests

involved have remained important in deter-

mining the degree of protection afforded

by the Amendment to the speech in ques-

tion". Lehman v. City of Shaker Heights,

418 U.S. 298, 302-303, 94 S.Ct. 2714, 2717,

41 L.Ed. 2d 770 (1974) (citations omitted).

A-1ll

Thus, once the restrictions are found

to be content-neutral, and it is deter-

mined that alternative avenues of communi-

cation are available, the question becomes

one of balancing, based on the nature of

the forum, the governmental interest in

enforcing the restrictions against the in-

hibitions the restrictions impose on the

speech-related activity. See, e.g., L.

Tribe, American Constitutional Law, 682-84

(1978). We are convinced that these con-

tested restrictions are not directed at

the content of the speech. No one has

suggested, nor has any evidence been prof-

fered, that there is or has been any at-

tempt to suppress the expression of CJY's

ideas merely because of what its members

are saying.

There are easily accessible alterna-

tive channels for communication of CJY's

ideas. These alternatives include the

7’.

A-12

twelve persons in the "bull pen" and the

open access to the overflow areas on Lex-

ington Avenue and further west on 67th

Street. We do not think that the First

Amendment guarantees news publicity for

speakers, nor does it guarantee the con-

tinued fervor of one's fellow demonstra-

tors.3

The question then comes down to one

of balancing the interests involved. We

appreciate that the rights granted by the

First Amendment are important, but hold

that the governmental interest in the pro-

3. At trial, a co-chairman of CJY stated

that CJY's right to convey its point of

view even in the bull pen and surround-

ing areas was precluded because "I

would assume that the press would not

be very interested in covering 12 peo-

ple in a bull pen" (Tr. 35), and that

"the 11 people with me, were not very

much inclined to think that the rally

was a success and want to do it again.

They were kind of embarrassed. I would

have trouble getting those particular

people to come back". (Tr. 35-36).

A-13

tection of the Russian Mission and the

residents of the area outweighs the com-

paratively minor restrictions placed on

CJY.

The government interest in providing

security, safety and silence may, at times,

be superior to asserted First Amendments

rights. A statute, ordinance or regula-

tion which embodies these interests will

be valid even though it infringes on pur-

ported constitutional guarantees. Thus,

the governent rights associated with jails

(all demonstrations, Adderley v. Florida,

385 U.S. 39, 48, 87 S.Ct. 242, 247, 17

L.Ed. 2d 149 (1966)); schools (loud beha-

vior may be excluded, Grayned v. City of

Rockford, 408 U.S. 104, 121, 92 S.Ct. 2294,

2306, 33 L.Ed. 2d 222 (1972)); courthouses

(statute prohibiting picketing valid on

its face, Cox v. Louisiana, 379 U.S. 559,

564, 85 S.Ct. 476, 480, 13 L.Ed. 2d 487

A-14

(1965)); and military installations (po-

litical campaign appearances may be banned,

Greer v. Spock, 424 U.S. 828, 838, 96 S.Ct.

1217, 47 L.Ed. 2d 505 (1976)).

The United States and the New York

p City Police have a substantial interest in

protecting foreign officials and their

property. The New York City Police, pur-

suant to their mandate in §435 of the New

York City Charter, must "preserve the pub-

lic peace, . .. [disperse] assemblages

which obstruct the free passage of public

streets, sidewalks, parks and places;

[and] protect the rights of persons and

7 property. .. ” This includes the mem-

bers and proeprty of a Foreign Mission.

The United States is charged by vari-

ous international obligations to protect

diplomatic personnel and has recognized

its obligation statutorily. See, e.g.,

Article 22(2) of the 1961 Vienna Conven-

A-15

tion on Diplomatic Relations, 23 U.S.T.

3227, 3237, TIAS No. 7502 (protection of

missions); Section 16 of the Headquarters

Agreement between the United Nations and

the United States (61 Stat. 758, 763)

(Headquarters of member states to be pro-

tected from disturbance); and 18 U.S.C.

§ 112 (1976) (providing for severe crimi-

nal penalties for harassment or assault of

foreign officials).

We do not think that the federal stat-

ute (18 U.S.C. § 112) was designed to take

all power to control demonstrations at

Foreign Missions away from local authori-

ties as CJY argues. The relevant provi-

sion was enacted "to protect the peace,

dignity and security of foreign officials

and guests in their embassies, consulates,

missions, residences and offices". Sen.

Rep. No. 92-1105, 92d Cong., 2d Sess. re-

printed in U.S. Code Cong. & Admin. News

A-16

4316, 4328 (1972). Any actions local au-

thorities may take to aid in protecting

foreign officials furthers this intent of

Congress in enacting the legislation. The

law did not set maximum standards of pro-

tection, but rather set minimum standards,

and specifically left open the situation

where local authorities might use stricter

controls. See Pub. L. 92-539, 86 Stat.

1070, 1073, § 3 (1972); Pub. L. 94-467, 90

Stat. 1997, 2001, § 10 (1976).

When the New York City Police insti-

tuted these restrictions on demonstrations

in front of the Mission, they were simply

protecting the Mission and its personnel.

There have been numerous instances of vio-

lence at the Russian Mission. In 1971 and

1976 shots were fired at and into the Mis-

Sion. In 1975, containers of red paint

were thrown at the Mission splattering

paint on walls and doors. Finally, in

A-17

1977 and 1978 there were problems with un-

ruly demonstrators in front of the Mission.

(Br. of U.S. at 2-3). More recently, the

Russian Mission was bombed for the first

time.4

The Police implemented the restric-

tions because of this violence and because

they were aware that even a peaceful dem-

onstration could be infiltrated by members

of a violent group. (Tr. 85-86). One Co~

chairman of CJY admitted that through de-

ceit or inadequate screening by CJy, vio-

lent demonstrators could be among their

ranks at a protest. (Tr. 54-56). Finally,

one police officer testified that even

peaceful demonstrators walking immediately

adjacent to the Mission could become

4. On Tuesday evening December 11, 1979,

the Russian Mission was bombed by a

terrorist group. Four policemen and

four employees of the Mission were in-

jured in the bombing. N.Y. Times, Dec.

12, 1979, 3 A, Pp. 21, cols. 1-6.

-%>

A-18

stirred to violence, due to the emotional

reaction to seeing the Russian Mission.

(Tr. 132). Because of the potential vio-

lence which might result when persons dem-

onstrate in front of the Mission, the re-

strictions were properly imposed.

Testimony at trial established that

the only reasonable place for the 12 dem-

onstrators would be in the bull pen. (Tr.

127-30). There they can be seen from the

Mission, but do not interfere with Mission

personnel or property, and do not inter-

fere with the synagogue, police station,

schoolhouse, and firehouse across the

street from the Mission. These restric-

tions are no greater than required to

maintain the governmental interest in-

volved in this case. Therefore, we agree

with and affirm Judge Pollack's holding:

"There is substantial empirical

evidence that to allow expanded

demonstrations in front of the

Soviet Mission would unduly and

A-19

unnecessarily impair this inter-

est [in protecting the Soviet

Mission]. The area presently

designated for picketing was se-

lected for reasons which make

sound sense under the special

conditions existing on the block;

the requirement that after dark,

demonstrators are asked to re-

duce the noise level is entirely

reasonable; the object of the

police to accommodate both the

demonstrators' right of assembly

and the rights of nondemonstra-

tors to peaceful and unobstruct-

ed passage consistent with safe-

ty meets fundamental concerns

fairly. Basically the whole

subject matter is one of degree

and judgment and no better yard-

sticks than the ones employed

are presented or apparent." 469

F. Supp. 1296 at 1303.

The restrictions are in line with Justice

Marshall's declaration that "The nature of

a place, ‘the pattern of its normal activ-

ities, dictate the kinds of regulations of

time, place, and manner that are reason-

able.'" Grayned v. City of Rockford, 408

U.S. at 116 92 S. Ct. at 2303 (footnote

omitted).

A-20

Finally, the privacy interests of the

residents of the block must be briefly

considered. "(T]he homes of men, some-

times the last citadel of the tired, the

weary and the sick, can be protected by

government from noisy, marching, tramping,

threatening picketers and demonstrators.

+ « «" Gregory v. Chicago, 394 U.S. 111,

125-26, 89 S.Ct. 946, 954, 22 L.Ed. 2d 134

(1969) (Black, J. concurring opinion).

See also, Cohen v. California, 403 U.S. 15,

21, 91 S.Ct. 1780, 1786, 29 L.Ed. 2d 284

(1971); Kovacs v. Cooper, 336 U.S. 77, 89,

69 S.Ct. 448, 454, 93 L.Ed. 513 (1949).

Here, the residents of the block do have

some right not to be obstructed, bothered,

Or abused by myriad demonstrators on their

street. Although the New York Police have

not explicitly instituted the restrictions

because of this factor, they have tacitly

acknowledged a need for privacy in adopt-

A-21

ing the standards set out in Dollinger.5

This privacy interest is an important con-

Sideration in tilting the balance toward

the constitutionality of the restrictions.

Further supporting our holding is the

fact that the restrictions impose only a

minimal inhibition on the ability of CJy

to communicate its ideas. The group is

free to demonstrate diagonally across from

the Mission where the Mission personnel

cant ‘see and hear them. (Tr. 142). Addi-

tional space for demonstrating is avail-

able in the immediate area. When asked

what was the purpose of the demonstration

in front of the Mission, a co-chairman of

CJY stated "To publicize the cause of So-

viet Jewry". (Tr. 20). This suggests

5. Dollinger was a suit by residents of

the area. Demonstrators were limited

in the area specifically because of the

previous infringement on the residents’

privacy right.

A-22

that the audience at which the demonstra-

tion was directed was the American public

at large. We see little impact on the ef-

fectiveness of the communication, or on

the ability of CJY to convey its ideas to

those persons, because of these restric-

tions. The fact that the restrictions

Only minimally inhibit expression serve to

lighten the balance on the side of CJy,

confirming our holding that these restric-

tions are permissible.

One final point that must be discussed

before addressing the "sound device” re-

strictions is the manner in which these

restrictions were imposed. Surely a nar-

rowly drafted legislative enactment spe-

cifically outlining the restrictions would

be constitutionally proper. But this case

involves the decision of the police made

according to power vested in them by a

municipal ordinance. Pursuant to the or-

A-23

dinance, the police adopted restrictions

on demonstrations in front of the Russian

Mission, which had been outlined, in part,

in a state court opinion.

The New York City Charter § 435

States, in relevant part:

"The police department and force

shall have the power and it shall

be their duty to preserve the

public peace . . . disperse un-

lawful or dangerous assemblages

and assemblages which obstruct

the free passage of public

Streets, sidewalks, parks and

places; protect the rights of

persons and property, guard the

public health, preserve order at

- « « @ll public meetings and as-

semblages; [and] . .. control

and restrict the movement of .. .

pedestrain traffic for the facil-

itation of traffic and the conve-

nience of the public as well as

the proper protection of human

life and health. ..."

Pursuant to this mandate, and after ana-

lyzing the previous violence, disturbances,

and the potential for danger in front of

the Soviet Mission, the New York City po-

lice sought to prohibit entirely demon-

A-24

strations on the Russian Mission block.

Later, in an action brought by residents

of the block, Millan House Inc. v. Murphy,

Civ. No. 10560 (Sup. Ct. N.Y. County 1971)

Justice Isidore Dollinger of the New York

County Supreme Court approved the police's

decision respecting demonstrations. But

he held, among other things, that the

groups involved in that suit would be lim-

ited to 12 demonstrators in the immediate

vicinity of the Russian Mission. The po-

lice then evidently revised the restric-—

tions on demonstrations to 12 persons in

the "bull pen" area and added the overflow:

location. When Captain Selvaggi took com-

mand of the 19th Precinct, he made some

minor changes in the restrictions on dem-

onstrating, but basically kept the same

arrangements. (Tr. 147).

We find that the restrictions imposed

by the police pursuant to the mandate of

°y

A-25

§ 435 are constitutionally proper. Al-

though the ordinance gives the police a

certain amount of latitude in protecting

persons, "Condemned to the use of words,

we can never expect mathematical certainty

from our language". Grayned v. City of

Rockford, 408 U.S. at 110, 92 S.Ct. at

2300 (footnote omitted). "It is, of

course, undisputed that appropriate, lim-

ited discretion, under properly drawn

statutes or ordinances, concerning the

time, place, duration, or manner of use of

the streets [and presumably sidewalks] for

public assemblies may be vested in admin-

istrative officials. . .." Cox v. Loui-

Siana, 379 U.S. 536, 85 S.Ct. 453, 466, 13

L.Ed. 2d 471 (1965). This is especially

true where, as here, the ordinance has

been given a narrow construction by the

police department. Furthermore here there

is little real effect on the legitimate

A-26

expression of ideas.© As has been pointed

out, CJY is allowed to demonstrate and

convey its feelings within sight of the

Russian Mission. The use of the overflow

area by the excess over 12 demonstrators

does not have a real and substantial ef-

fect on CJY's conveying the claimed inigq-

uity of the treatment of Jews in Russia.

Additionally, the fact that the or-

dinance deals with police protection in

New York City is of import. As Justice

Frankfurter has said:

"We must be mindful of the enor-

mous difficulties confronting

those charged with the task of

enabling the polyglot millions

in the City of New York to live

in peace and tolerance. Street-

preaching in Columbus Circle is

done in a milieu quite different

from preaching on a New England

6. Cf. Erznoznik v. City of Jacksonville,

422 U.s. 205, 216, 95 S.Ct. 2268, 2276,

45 L.Ed.2d 125 (1975) (discussion of

criteria used to determine if a state

statute is valid on its face).

A-27

village green." Niemotko v.

ere Sis. 328. 380 5 tka

325, 328 (1951) Frankfurter, J.,

concurring).

Likewise, demonstrating on a narrow side-

street in the crowded Upper East Side of

New York City presents more difficult

problems than protesting on main Street

in a small community.

II.

We turn now to the restriction on

the use of sound equipment on the Mission

block. In this case, use of the device

was not banned, but rather the location at

' which the loud speaker could be used was

restricted. That restriction also passes

constitutional muster, and we affirm the

decision of the District Court on this

point.

We note initially that because

sound devices have a way of making a lis-

tener out of someone who may not wish to

A-28

hear, their use may be curtailed. See

Kovacs v. Cooper, 36 U.S. 77, 86-87, 69

S.Ct. 448, 453, 93 L.Ed. 513 (1949). This

is because freedom of speech does not in-

Clude the right to intrude or force one's

viewpoint on a hapless resident or bypass-

er. Cohen v. California, 403 U.S. 15, 21,

91 S.Ct. 1780, 1986, 29 L.Ed. 2d 284 (1971).

"In his home or on the street [an unwill-

ing listener] is practically helpless to

escape this interference with his privacy

by loud speakers except through the pro-

tection of the municipality." Kovacs,

Supra, 336 U.S. at 87, 69 S.Ct. at 453.

Finally, the Supreme Court has pointed out

"The hours and place of public discussion

can be controlled." Saia v. New York, 334

U.S. 558, 562, 68 S.Ct. 1148, 1150, 92

L.Ed. 1574 (1948).

We hold that as applied to the appel-

lants in this case the restrictions on

A-29

their use of sound equipment, imposed

after tacit consideration of the Dollinger

decision and the New York Administrative

code,’ do not run afoul of the constitu-

tion. Implicit in the restrictions is the

finding that there is an overriding gov-

ernmental interest in maintaining the area

ivmediately in front of the Russian Mis-

sion free from excessive noise. This is

primarily for the benefit of the personnel

working and living in the Mission, but is

also for the benefit of the area residents

and the various institutions near the Mis-

sion (a school, synagogue, firehouse, and

police station). We cannot say that the

restriction, adopted by the police depart-

ment after consideration of the locale,

imposes such a barrier to CJY's right to

7. Section 435-6.0 which deals with the

regulation of sound devices in New York

City.

A-30

free expression so as to be constitution-

ally infirm. See A Quaker Action Group

v. Morton, 516 F.2d 717, 734 (D.C. Cir.

1975). Such restrictions are especially

necessary in the City of New York where

multifarious interests associated with the

millions of residents, visitors, and work-

ers must be balanced so that all may live

in mutual tolerance.

We affirm the decision of the dis-

trict court.

MANSFIELD, Circuit Judge (dissenting):

I dissent. We have long recognized

the inadvisability of entrusting to the

protectors of public order the unchecked

authority to restrain First Amendment ac-

tivity, for there is a tension, requiring

careful and sensitive balancing, between

freedom and order. Therefore the Consti-

tution has long been read to prevent the

police from imposing substantial prior re-

A-31

Straints except pursuant to considered and

detailed legislative guidelines. Even

then, close judicial scrutiny must follow.

This case presents an unfortunate ex-

ample of the consequences of carte blanche

legislative authorization and deferential

judicial review. In my view the New York

City police, in the name of peace and pub-

lic order, have engaged in an unlawful

overkill and prior restraint of appellants'

exercise of their First Amendment right to

picket and demonstrate in a peaceful and

orderly manner. The restrictions go far

beyond measures that are justifiable as

reasonably necessary to public needs. The

reason for this sad state of affairs is

that state legislation and the City Char-

ter purport to vest the police with vir-

tually unlimited authority to impose re-

strictions upon lawful demonstrations. In

the absence of any legislative standards

A-32

the police, instead of proscribing only

activity posing a serious threat to soci-

ety and searching for less restrictive al-

ternat:ives, have chosen the easier course

of riding rough-shod over the demonstra-

tors' exercise of First Amendment rights

in the very place where they are entitled

to the most protection - our city's streets.

It is rather ironic and unfortunate that

at a time when the President of our coun-

try is calling upon all peoples and nations

to demonstrate against the recent Soviet

invasion of Afghanistan, our local police

should be vested with powers enabling them

completely to bar response to this exhor-

tation.

We start with certain indisputable

propositions of law. The first of these

is that public places, particularly streets

and sidewalks, are the normal and natural

locations for our citizens' exercise of

A-33

their First Amendment right of free speech.

"Wherever the title of streets

and parks may rest, they have

immemorially been held in trust

for the use of the public and,

time out of mind, have been used

for purposes of assembly, commu-

nicating thoughts between citi-

zens, and discussing public ques-

tions. Such use of the streets

and public places has, from an-

cient times, been a part of the

privileges, immunities, rights

and liberties of citizens."

Hague v. C.1I.0., 307 U.S. 496,

515, 59 S.Ct. 954, 964, 83 L.Ed

1423 (1939) (Roberts, J.).

See also Lehman v. City of Shaker Heights,

418 U.S. 298, 303, 94 S.Ct. 2714, 2717, 41

L.Ed.2d 770 (1974); Wolin v. Port of New

York, 392 F.2d 83, 89 (2d Cir.), cert.

denied, 393 U.S. 940, 89 S.Ct. 290, 21

L.Ed.2d 275 (1968).

While the state may reasonably regu-

late the time, place and manner of the

exercise of First Amendment rights as nec-

essary to protection of other compelling

public interests, Grayned v. City of Rock-

ford, 408 U.S. 104, 115-16, 92 S.Ct. 2294,

ee ee mn eR

A-34

2302-03, 33 L.Ed.2d 222 (1972); Police

Dept. v. Mosley, 408 U.S. 92, S.Ct. 2286,

2291, 33 L.Ed.2d 212 (1972); Adderley v.

Florida, 385 U.S. 39 87 S.Ct. 242, 17 L.Ed.

2d 149 (1966); Cox v. Louisiana, 379 U.S.

536, 554-55, 85 S.Ct. 453, 464, 13 L.Ed.

2d 471 (1965), “time and place" regula-

tions can enormously hinder the individ-

ual's ability to engage in effective advo-

cacy. A number of limitations on this

type of regulation are therefore essential.

Where direction is to be vested in admin-

istrative officials, it must be “appropri-

ate, limited discretion under properly

- drawn statutes or ordinances." Cox v.

Louisiana, supra, 379 U.S. at 558, 85 S.Ct.

at 466 (emphasis supplied). See also

Shuttlesworth v. City of Birmingham, 394

U.S. 147, 89 S.Ct. 935, 22 L.Ed. 2d 162

(1969); Saia v. New York, 334 U.S. 558,

562, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574

A-35

(1948). The exercise of First Amendment

rights may not be abridged at the unbri-

dled will or broad discretion of govern-

ment officials, even though this would

doubtless facilitiate law enforcement and

Spare public expenses and inconvenience.

The more substantial the encroachment on

protected rights, the greater the need for

carefully considered and articulated stan-

dards. "Access to the 'streets, sidewalks,

parks, and other similar public places

- + « for the purpose of exercising [First

Amendment rights] cannot constitutionally

be denied broadly. ...'" Grayned v.

City of Rockford, supra, 408 U.S. at 117,

92 S.Ct. at 2304 (quoting Amalgamated Food

Employees v. Logan Valley Plaza, Inc., 391

U.S. 308, 315, 88 S.Ct. 1601, 1606, 20

L.Ed. 2d 603 (1968)).

Even when regulations are fully au-

thorized by explicit and narrow legisla-

A-36

tive authority, they must be "narrowly

tailored to further the State's legitimate

interest," Grayned v. City of Rockford,

supra, 408 U.S.at 116-117, 92 S.Ct. at

2303-2304; Police Dept. v. Mosley, supra;

Cox v. New Hampshire, 312 U.S. 569, 575-76,

61 S.Ct. 762, 765, 85 L.Ed. 1049 (1941).

The state bears the burden of justifying

restrictions, e.g., Cohen v. California,

403 U.S. 15, 20, 91 S.Ct. 1780, 1785, 29

L.Ed. 2d 284 (1971). Regulations which

take the form of prior restraints are sub-

ject to particularly exacting judicial

scrutiny. Organizations for a Better

Austin v. Keefe, 402 U.S. 415, 419, 91

S.Ct. 1575, 1577 29 L.Ed. 2d 1 (1971);

Carroll v. President & Comm'rs of Princess

anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351,

21 L.Ed. 2d 325 (1968). Moreover, exer-

cise of First Amenament rights, when logi-

cally related to a particular forum, is

A-37

further protected from regulations which

would preclude the use of that place.

Brown v. Louisiana, 383 U.S. 131, 86 S.Ct.

719, 15 L.Ed. 2d 637 (1966) (plurality

opinion); Albany Welfare Rights Org. v.

Wyman, 493 F.2d 1319, 1323-24 (2d Cir.),

cert. denied, 419 U.S. 383, 95 S.Ct. 66,

42 L.Ed.2d 64 (1974).

In balancing the individual's right

to demonstrate against the concern for

quiet or the protection of others, the

competing interests must be assessed on an

individual basis; blanket bans and abso-

lute prohibitions against picketing in

front of or near a site have been univer-

Sally condemned where a less restrictive

and more sharply tailored alternative may

be formulated. As the Supreme Court stat-

ed in Police Dept. v. Mosley, supra, 408

U.S. at 100-01, 92 S.Ct. at 2293:

"Predictions about imminent dis-

ruption from picketing involve

A-38

judgments appropriately made on

an individualized basis, not by

means of broad classifications,

especially those based on sub-

ject matter."

In short, although limited regulation is

permitted, it must be carefully defined

and sufficiently circumscribed to minimize

the opportunities for abuse of discretion

on the part of administrative officials,

lest this treasured constitutional right

of free speech and expression be subjected

to excessive or unnecessary restraints.

None of the foregoing principles are

likely to make the policeman's lot a happy

one. The proper acquittal of this heavy

responsibility is difficult. The officer's

life would be easier if he had broad dis-

cretion to squelch free speech and uésem-

bly without the necessity of tailoring

any restraints to what is absolutely nec-

essary in each individual case. Unfortu-

nately such discretion has been permitted

A-39

in the present instance, where the police

have been accommodated by both state and

city. The result, unsurprisingly, is an

excessive restraint. With due respect,

the majority has either misconceived the

function of the police in this tension or

given only lip service to basic time-hon-

ored principles of free speech and expres-

sion.

Section 435 of the New York City

Charter provides in pertinent part that

"(t]he police department and force shall

have the power ... to preserve the public

peace [and] disperse awful or dangerous

assemblages and assemblages which obstruct

the free passage of the public streets,

sidewalks, parks and places." It is pur-

suant to this all-encompassing grant of

power that the police claim the authority

to impose restrictions on the block of the

Soviet Mission. This is not their first

A-40

such essay. The police previously at-

tempted to bar all demonstrations on this

very block, claiming authority under this

same general statute. The courts of New

York had no difficulty concluding that

§ 435 could not constitutionally, and did

not, authorize such a prohibition:

"Neither City nor State autho-

rizes the policy to permanently

and absolutely close a public

street to those persons seeking

to exercise their First Amend-

ment rights. Such prohibition

is therefore unlawful." People

v. Solomonow, 56 Misc. 2d 1050,

291 N.Y.S.2d 145, 150 (N.Y.

County 1968).

While the present restrictions on

demonstrations are not quite as absolute

as the total ban invalidated in Solomonow,

their effect is nearly the same. Twelve

lonely demonstrators, without sound equip-

ment, may walk in a small barricaded area

far removed from the Soviet Mission -- at

the end of the block on the other side of

the street. Should any more than 12 wish

A-41

to demonstrate, they must move to a dif-

ferent block. This handful of demonstra-

tors is unlikely to be seen or heard,

while demonstrators choosing to picket

other sites must endure no such restric-

tions. If the statute does not authorize

absolute bans, I must conclude that the

present regulations are similarly unautho-

rized and unlawful.

If the statute is to be read as con-

ferring authority on the police to imple-

ment the restrictions, it does not meet

constitutional requirements. This broad

grant of uncontrolled authority, which the

police in their absolute discretion have

used in deciding that all assemblages ex-

cept those restricted to 12 people cor-

doned off down the block are "dangerous,"

is hardly in keeping with the requirement

that a regulatory statute be "precise and

narrowly drawn," Edwards v. South Carolina,

A-42

372 U.S. 229, 236, 83 S.Ct. 680, 684, 9

L.Ed. 2d 697 (1963); Cox v. Louisiana, 379

U.S. 559, 562, 85 S.Ct. 476, 479, 13 L.Ed.

2d 487 (1965); Niemotko v. Maryland, 340

U.S. 268, 272, 71 S.Ct. 325, 327, 95 L.Ed.

328 (1951). No standards are offered to

guide the police in balancing the individ-

ual's right to assemble, picket and demon-

strate against the necessity for preserva-

tion of public order and protection of the

Soviet Mission. Indeed, as in Niemotko v.

Maryland, supra, 340 U.S. at 272, 71 S.Ct.

at 327, "({n]o standards appear anywhere;

no narrowly drawn limitations; no circum-

scribing of this absolute power; no sub-

stantial interest of the community to be

served." The regulation, instead of being

designed to protect constitutional rights,

appears to be tailor-made to preserve "law

and order" at any cost.

A-43

Regardless of the lack of statutory

authority or of a constitutionally accep-

table basis for the police restrictions in

the present case, it is clear that the

police failed to make an adequate showing

of the necessity for such harsh conditions

as were imposed upon appellants. In the

first place the police failed at the out-

set, when advised by Concerned Jewish

Youth (CJY) that its members proposed to

demonstrate peacefully and in orderly

fashion on the sidewalk in front of the

Soviet Mission, to ascertain whether CJy

could be expected to act responsibly and

whether it posed any substantial risk of

violence or danger to the Mission or any-

one else. Instead the local police fol-

lowed their practice of automatically and

blindly applying an order that had been:

entered seven years earlier by the late

Justice Isidore Dollinger of the New York

A-44

State Supreme Court in Millan House v.

Murphy, Civ. No. 10560 (N.Y. County 1971),

which involved an entirely different group

of defendants, some believed to be mili-

tant (Jewish Defense League, Student Strug-

gle for Soviet), that had previously en-

gaged in massive and unruly demonstrations

in front of the Soviet Mission. With min-

imal attention to First Amendment concerns

and without any findings as to less re-

strictive alternatives, the court there

impose’ restrictions limited to the defen-

dants in that case.

Seven years later, after being ad-

vised of the CJY's plans the police, rather

than fulfilling their duty of making an

individualized determination, informed

them of the policy, pursuant to the unlim-

ited discretion vested in them by § 435,

of applying the "Dollinger”" order to all

persons who might seek to demonstrate in

A-45

the future. This was patently wrong and

violated the police's basic obligation to

determine what restrictions, if any, might

be required in this entirely different

case. "In our system, undifferentiated

fear or apprehension of disturbance is not

enough to overcome the right to freedom of

expression." Police Dept. v. Mosley,

Supra, 408 U.S. at 101, 92 S.Ct. at 2293

(quoting Tinker v. Des Moines School Dis-

trict, 393 U.S. 503, 508, 89 S.Ct. 733,

737, 21 L.Ed.2d 731 (1969)).

Indeed as the record shows, this is

an entirely different case from Millan

House v. Murphy. If the police had inves-

tigated they would have found that, unlike

the parties to the "“Dollinger" case, the

CJY has rejected association with militant

Organizations working in the cause of

Soviet Jewry. The CJY, in contrast to the

Jewish Defense League (JDL) is dedicated

A-46

to accomplishment of its aims without vio-

lence. It first approached the police,

not vice versa, on the subject of demon-

Sstrating, even though it was under no

legal obligation to do so. It sought to

demonstrate peacefully by simply marching

in an oval shape during daylight hours on

the 15'4" wide sidewalk in front of the

Soviet Mission, without harassing anyone

entering or leaving the Mission or block-

ing the street or entrance to any building.

The CJY has indicated that it was even

willing to consider being required to re-

Strict its demonstrations to a "bull-pen"

or confined area in front of the Mission

Or to one side of its entrance. The CJY

has no history of violence and there is no

evidence that it might be goaded into vio-

lence or harassment or used as a cover for

such kind of operations. Indeed Judge

Pollack, who viewed some CJY members, re-

A-47

ferred to it as "an organization of nice

young men from Queens whose purposes have

a very therapeutic appeal."

In what appears to be a belated ef-

fort to justify their automatic, reflex

reliance on the "Dollinger" order to re-

fuse any demonstration on the sidewalk

near the Mission, the police attempted in

the district court to show that they had

learned that others, such as FALN, JDL and

anti-Castro Cubans, had planned to attach

themselves to any "large-scale" demonstra-

tions in order to plant bombs. The major-

ity further points to news articles about

a recent bombing (since the district court

hearing) which did not involve any demon-

stration at all. However, it is not con-

tended that any of this had anything to do

with the CJY, which is a peaceful organi-

zation, or its members. The CJY, moreover,

does not seek "large-scale" demonstrations

A-48

and its history of giving advance notice

to the police of its plan to demonstrate

is inconsistent with fears of violence or

lawlessness on its part. Many people walk

past the Soviet Mission daily. If someone

intends to bomb the Mission, he will do it

without any assistance from the CJY.

The police further seek support for

their action by pointing to 18 U.S.C.

§ 112, which makes it a federal crime to

demonstrate within 100 feet of a foreign

mission with intent to coerce, harass or

obstruct a foreign official. That statute,

however, affords the City no justification

for the draconian restrictions imposed

here. Aside from the necessity of proving

specific intent - and in the present case

the CJY expressly disclaims any intent to

harass or obstruct members of the Mission

- the same statute provides that nothing

in it shall be construed to abridge First

’>

A-49

Amendment rights, 18 U.S.C. § 112(d).

Moreover, in enacting § 112 Congress took

pains repeatedly to express concern for

recognition of the right to "legitimate

expression and assembly." See S. Rep. No.

92-1105, 92nd Cong., 2nd Sess. 1972, U.S.

Code Cong. & Admin. News 4316, 4328.

In short, the restriction imposed by

the New York police on the CJY is imper-

missibly broad and, in the absence of a

finding based on substantial evidence that

less restrictive alternatives would not

reasonably protect the public interest in

peace and order, is a violation of appel-

lants' constitutional rights. It embodies

a philosophy of governmental power that is

contrary to basic precepts repeatedly en-

dorsed by the Supreme Court with respect

to the First Amendment. The police erro-

neously presume that an order issued with

respect to other persons under other cir-

‘

————

A-50

cumstances may thereafter be applied to

all, regardless of a sharp difference in

circumstances. They also presume that any

would be demonstrators, though not shown

to be associated with the parties to the

earlier order, are dangerous. They ignore

the fact that to justify these extreme re-

Strictions, the burden is on the police to

investigate and balance the interests in

each case, with respect for the presump-

tion in favor of exercise of First Amend-

ment rights. This difficult task they

have refused to face.

Moreover, the attitude of the City is

that since the "Dollinger" order permits

some demonstrating, however far from the

Mission, that should suffice. This ig-

nores the principle that since the effec-

tiveness of any demonstration depends on

its proximity to the target and the rele-

vant audience, it is unlawful to exile

A-51

demonstrators to an irrelevant milieu.

Wolin v. Port Authority of New York, supra,

392 F.2d at 90. The purposes of a peace-

ful and orderly rally or demonstration are

to try to impress the target - in this

case the Soviet occupants of the Mission -

and to publicize the cause to others.

Neither objective is served by a demon-

Stration elsewhere, around “he corner or

at the other end of the block on the other

side of the street (where the sidewalk is

substantially the same width, 16 feet 4

inches as compared with 15 feet four inch-

es). If persons may be permitted to dem-

onstrate in front of a school, Grayned yv.

City of Rockford, supra, in a library,

Brown v. Louisiana, supra, or at the White

House and its executive offices, A Quaker

Action Group v. Morton, 516 F.2d 717 (D.C.

Cir. 1975), surely a right to demonstrate

in front of a foreign mission should not

A-52

be denied out of hand. See Greenberg v.

Murphy, 329 F.Supp. 37 (S.D.N.Y. 1971)

(permitting picketing at side entrance of

United States Mission to UN and presenta-

tion of petitions at front entrance).

For similar reasons the police's ab-

solute ban on use by the CJY of any sound

equipment whatsoever on the Soviet Mission

block cannot be justified as a matter of

law. Indeed it clearly violates § 435-6.0

of New York City's Administrative Code,

which obligates the City to issue sound

permits under specified conditions. CJy

has unequivocally agreed in writing to

abide by these conditions, affirming that

it would not employ sound equipment during

school, worship or sleeping hours. The

effect of the denial is to give the Mis-

sion more protection from sound equipment

than other New York City residents. We

are not here confronted with the constitu-

—

—_—_———

A~53

tionality of a law prohibiting all sound

equipment in residential areas, which

would present a different case, but with a

law that entitles the CJY to a permit.

The majority agrees that the police gave

"tacit consideration" to the statute.

Surely the police must do more than give

tacit consideration to the governing law

they must follow it.

Notwithstanding the CJY's entitlement

to a permit, the police simply brushed off

its application by again invoking the

seven year old prohibitions of the "Dol-

linger" order, even though it involved

different parties, a different time and

different conditions. In my view the de-

nial is unconscionable.

It is an unfortunate if understand-

able fact of life that because of the very

nature of their function of maintaining

law and order in a community the police

A-54

cannot be relied upon to respect First

Amendment rights where to do so would only

serve to increase their own burdens and

risks. For this reason it is vital that

the courts, as the only haven of refuge

for those seeking protection of their

rights, be eternally vigilant and willing

to command police respect for First Amend-

ment rights rather than acquiesce in their

denial, which is the easier course. The

erosion of human rights is usually begun

with the excuse that curtailment is essen-

tial to meet an emergency or avoid a

threat to public order. But the ultimate

strength of our constitutional guarantees

lies in their being unhesitatingly applied

in times of crisis and tranquility alike.

"If the provisions of the Constitution be

not upheld when they pinch as well as when

they comfort, they may as well be aban-

doned." Home Building & Loan Assn. v.

A-55

Blaisdell, 290 U.S. 398, 483, 54 S.Ct. 231,

256, 78 L.Ed. 413 (1943) (Sutherland, J.,

dissenting). With due respect, the major-

ity in my view abdicates its responsibil-

ity for insuring that First Amendment

rights are not lightly cast aside or ig-

nored in the name of law and order.

For these reasons, I would remand the

case to the district court with directions

to enter a preliminary injunction on terms

and conditions that will permit demonstra-

tions by the CJY near the Soviet Mission,

reasonably limited as to time, place,

method and number of participants, in lieu

of the cavalier denial through invocation

of the so-called "Dollinger" order.

A-56

Appendix B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

CONCERN JEWISH YOUTH, :

Plaintiff, : 78 Civ.4891 (MP)

Vv. :

ROBERT J. MCGUIRE, in his $

official capacity as Police

Commissioner of the City of :

New York, EDWARD KOCH, in

his official capacity as :

the Mayor of the City of

New York, and the NEW YORK :

POLICE DEPARTMENT,

Defendants.

APPEARANCES:

WILLKIE FARR & GALLAGHER

Attorneys for Plaintiff

153 East 53rd Street

New York, New York 10022

By: Howard C. Buschmann, III,

Debra M. Evenson, Charlotte B.

Hubbell, Jeanne M. Luboja,

Benito Romano, John M. McEnany,

Of Counsel.

A-57

ALLEN G. SCHWARTZ, CORPORATION

COUNSEL FOR THE CITY OF NEW YORK

100 Church Street

New York, New York 10007

By: Joseph F. Bruno, Rosemary

Carroll, Pamela McGovern Gaskins,

Of Counsel.

ROBERT B. FISKE, JR.

UNITED STATES ATTORNEY FOR THE

SOUTHERN DISTRICT OF NEW YORK

1 St. Andrews Plaza

New York, New York 10007

By: Frederick P. Schaffer,

Jane E. Bloom, Katherine R.

Trager, Of Counsel.

MILTON POLLACK, District Judge.

This is a motion for a preliminary

injunction enjoining the defendants, the

Mayor and Police Commissioner of New York

City, from enforcing the restrictions on

demonstrations at the Soviet Mission to

the United Nations currently in effect.

Plaintiff alleges that the current re-

strictions impermissibly infringe on the

rights of its members protected by the

first amendment guarantee of free speech

and assembly.

A-58

The Soviet Mission is located at 136

East 67th Street, between Lexington and

Third Avenues, on the south side of the

street. The Mission building contains the

offices of the Mission and residential

apartments for some of the Russian employ-

ees of the Mission.

The restrictions currently enforced

at the Mission by the defendants evolved

from the terms of a preliminary injunction

entered by Justice Dollinger of New York

State Supreme Court in 1971. Plaintiff

was not a party to the state court action,

which has not yet gone to trial.

Defendants permit no demonstrations

on the Mission block, except that they

permit 12 demonstrators to stand behind

barricades in a designated "bull pen" area.

That area, on the sidewalk in front of the

apartment building at 167 East 67th Street,

is approximately 118 feet from the front

A-59

entrance to the Mission, diagonally across

the street toward Third Avenue.

The 12 demonstrators in the bull pen

are subject to search and must identify

themselves to the police on demand. No

permits for the use of sound equipment are

issued for the Mission block. Any demon-

Strators in excess of twelve and any sound

equipment must remain on the far, or west

side of Lexington Avenue.

The plaintiff, CJY, seeks a prelimi-

nary injunction and order which would per-

mit it to hold peacful demonstrations on

the Mission block. In particular, it

seeks to hold demonstrations involving no

more than 30 of its members on the side-

walk directly in front of the Mission, but

not blocking its front door. The proposed

order specifies that no entrances to any

building on the block would be obstructed.

Plaintiff further seeks to use sound equip-

A-60

ment on the Mission block, its use to be

limited to the hours between 9:00 A.M. and

10:00 P.M. and not during school hours or

worship services at the synagogue.

In order to be entitled to prelimi-

nary relief, the plaintiff must show

possible irreparable injury and

either (1) probable success on the

merits or (2) sufficiently serious

questions going to the merits to

make them a fair ground to litiga-

tion and a balance of hardships

tipping decidedly toward the party

requesting the preliminary relief.

Caulfield v. Board of Education, 583 F.2d

605, 610 (2d Cir. 1978).

CJY

CJY is an unincorporated membership

organization with about 300 members of

whom approximately fifty are active. CJy

is a registered student organization at

A-61

Queens College, where it is headquartered.

The group was founded in 1975.

The stated goals of CJY are to conm-

bat anti-semitism, to help the Jewish poor,

to work for the causes of Soviet and Arab

Jewry, and to help other organizations.

CJY is unaffiliated with other organiza-

tions, although it identifies with Herut-

U.S.A., a Zionist group which supports

the Herut Party in Israel. A CJY leader

testified that most, if not all of the

aims of CJY can be accomplished through

non-violent action.

In June 1978 CJY held a demonstra-

tion at the Mission. It applied for a

permit to use sound equipment at the dem-

onstration. Sixteen CJY members attempted

to demonstrate on the Mission block, but

only 12 were permitted to enter the demon-

stration area on the block. The four

others had to remain on the west side of

A-62

Lexington Avenue on 67th Street. Sound

equipment was permitted only on the west

side of Lexington Avenue. The demonstra-

tion was peaceful and orderly.

Wayne Perlmutter, a CJY leader pres-

ent at the June demonstration, testified

that the permitted number of demonstrators

was too small to effectively carry their

message to the people in the Mission, to

attract media attention, or to encourage

others to join their cause.

CJY was involved in two prior inci-

dents of unlawful acts. A CJY member was

arrested at a tennis match in Madison

Square Garden for creating a disturbance

by unfurling a banner and using a bullhorn.

In a second incident, some CJY members

Overturned the literature tables of an-

other student group at Queens College.

In 1978 CJY had an income of approx-

imately $900, derived from various sources.

A-63

Demonstrations at the Mission

Defendants put several dozen police

reports into evidence. Twenty-one of the

reports concerned demonstrations at which

no arrests were made. The number of den-

Onstrators at these ranged from three to

1000; eleven of the demonstrations in-

volved more than 30 people.

Eighteen reports concerned demon-

Strations at which arrests were made. The

demonstrations ranged in size from one to

3500; twelve had more than 30 people. The

number of persons arrested ranged from one

to 89. All of the demonstrations occurred

between 1971 and 1978.

The need to regulate demonstrations

at the Mission

Several police officials testified

as to their opinions on the need for regu-

lation in the vicinity of the Mission.

Detective Rosenthal, who had infiltrated

the JDL as an intelligence agent, attended

A-64

several demons ‘rations and stated that it

was easy to goad peaceful demonstrators to

violence. He believes that the police

cannot control a large number of demon-

Strators, and felt that a safety problem

7 would arise if the current restrictions

are lifted.

Detective Perola, a bomb squad in-

vestigator, said that no bomb had been ex-

ploded at the Mission during the last nine

years, but that the police had learned of

four plans to bomb the Mission during

1971-72. He said that among the tactics

used by violent groups was the infiltra-

: tion of demonstrations by peaceful groups

to permit the bombers to approach the tar-

get without drawing the attention of the

police. Perola testified that there would

be a reasonable likelihood of danger to

the Mission if picketing by any number of

" A-65

people was permitted in front of the Mis-

sion.

David Fallek, a retired police in-

spector who was in charge of the Mission

area prior to 1972, stated his opinion

. that the current restrictions at the Mis-

sion are necessary to maintain peace there.

He felt that any demonstration on the Mis-

sion blocks presents a danger to the po-

lice.

Captain Selvaggi, commander of the

19th Precinct, stated that approximately

25 percent of his force is devoted to pro-

tecting the 45 diplomatic locations in the

area. He believes that demonstrators

Should not be allowed directly in front of

the Mission because emotions tend to rise

near the Mission. He said that the chance

that some demonstrators would break away

and try to enter the Mission poses a safe-

ty problem, because he believes that the

A-66

Russians would use “deadly physical force"

to eject intruders and to maintain control

of their premises.

Captain Selvaggi testified as to how

the police settled on the restrictions en-

forced at the Mission. The particular

picket site was chosen so as to be more

than 100 feet from the Mission (it is

about 120 feet away), not to interfere

with the functions of other buildings on

the block (a school, a police station, a

fire station, a synagogue), to be within

view of the Mission (diagonally across the

Street), and to be on a relatively wide

part of the sidewalk so that non-demon-

strators may pass by. The limitation of

the number of demonstrators on the block

to twelve and the prohibition of the use

of sound equipment appear to have been de-

rived solely from the 1971 state court

preliminary injunction. Selvaggi stated

A-67

that the requirement that demonstrators

identify themselves and subject themselves

to search is not enforced by the police at

the present time.

Regulation of speech and assembly

It is well settled that picketing

and demonstrations may be subject to rea-

sonable "time, place and manner" regula-

tions where necessary to further signifi-

cant governmental interests, notwithstand-

ing the expressive elements of such con-

duct. "[P]eople who want to propagandize

protests or view [do not] have a constitu-

tional right to do so whenever and however

and wherever they please." Adderley v.

Florida, 385 U.S. 39, 48, 87 S.Ct. 242,

247, 17 L.Ed. 2d 149 (1966).

In assessing the reasonableness of a

restriction on expressive conduct, "the

first amendment .. . requires... that

the balance struck in any particular situ-

A-68

ation properly reflects the central posi-

tion of free expression in the constitu-

tional scheme." L. Tribe, American Con-

stitutional Law 582 (1978). The regula-

tion of picketing must not "substantially

hinder," Amalgamated Food Employees Union

v. Logan Valley Plaza, Inc., 391 U.S. 308,

323, 88 S.Ct. 1601, 20 L.Ed. 2d 603 (1968),

or “unduly constrict", Tribe, supra at 581,

the communication of the ideas sought to

be expressed.

Streets and sidewalks “cannot be put

off limits to... first amendment activ-

ities merely to spare public expense or

inconvenience." Tribe, supra at 689.

"The right to use a public place for ex-

pressive activity may be restricted only

for weighty reasons." Grayned v. City of

Rockford, 408 U.S 104, 115, $2 S.Ct. 2294,

2303, 33 L.Ed. 2d 222 (1972). To with-

stand scrutiny, "the regulations must be

A-69

narrowly tailored to further the State's

legitimate interest." Id. at 116-17, 92

S.Ct. at 2304.

Whenever it can be demonstrated that

the result of the government's rule

or policy is to limit in some sig-

nificant degree the ease or effec-

tiveness with which a speaker can

reach a specific audience with a

Particular message, the government

Should lose the case unless it can

establish that an important public

objective unrelated to the message

would be sacrificed by any less re-

Strictive alternative.

Tribe, supra at 686.

One factor in the balancing process

is the nature of the forum for the expres-

sive activity in question. "The nature of

a place, ‘the pattern of its normal activ-

ities, dictate the kinds of regulations of

A-70

time, place and manner that are reason-

able.'" Grayned v. City of Rockford,

Supra at 116, 92 S.Ct. at 2303 (quoting

Wright, The Constitution on the Campus, 22

Vand. L. Rev. 1027, 1042 (1969). "“[P]Jlaces

that have traditionally been associated

with the public exchange of views...

represent areas within which tolerance for

inhibitions on speech, petition and assem-

bly is at a minimum, and government's bur-

den of justification at its highest."

Tribe, supra at 684. The public streets

are one such "public forum."

Wherever the title of streets and

parks may rest, they have immemori-

ally been held in trust for the use

of the public and time out of mind,

have been used for purposes of as-

sembly, communicating thoughts be-

tween citizens, and discussing pub-

lic questions. Such use of the

A-71

streets and public places has, from

ancient times, been a part of the

privileges, immunities, rights and

liberties of citizens.

Hague v. C.1.0., 307 U.S. 496, 515, 59

S.Ct. 954, 964, 83 L.Ed. 1423 (1939).

However, the street and sidewalk are

not the sole issue in the instant case.

Expressive activity adjacent to other in-

stitutions, e.g., a school or a courthouse,

may be regulated if it will otherwise "ma-

terially disrupt" the normal activities of

the institution. Grayned v. City of Rock-

ford, supra, 408 U.S. at 118, 119, 92 S.Ct.

2294. Regulation is permissible to pre-

vent interference with the normal use of

and access to the site of the expressive

activity. Amalagamted Food Employees

Union v. Logan Valley Plaza, Inc., supra,

391 U.S. at 321, 88 S.Ct. 1601. Concern

over disruption of "normal activities" is

A-72

less weighty where the institution has a

political or speech-related function.

Thus, picketing near a courthouse may be

prohibited because the picketers' inten-

tion to influence judges, jurors or wit-

nesses is inconsistent with the unbiased,

unprejudiced administration of justice.

Cox v. Louisiana, 379 U.S. 559, 566-67, 85

S.Ct. 476, 13 L.Ed. 2d 487 (1965). On the

other hand, picketing to protest against

and to influence an elected or other po-

litical official at his city hall or capi-

tal office presents “entirely different

considerations," id.; such activity, if

peaceful, may not be prohibited as it is

not incompatible with such semi-public

facilities' purposes. See Tribe, supra

at 690.

Defendants seek to place foreign

missions in a category with courthouses, a

category of public institutions which are

A-73

inappropriate sites for expressive activ-

ity. Defendants apparently rely on the

duty of the United States to protect for-

eign embassies from invasion, insult and

offensive demonstrations, Frend v. United

States, 69 App. D.C. 281, 100 F.2d 691,

cert. denied, 306 U.S. 640, 59 S.Ct. 488,

83 L.Ed. 1040 (1938), and seemingly con-

tend that foreign missions are not proper

targets of expressions by individual citi-

zens who might interfere with the official

conduct of foreign relations. However, no

court has adopted defendants' position,

and Congress has rejected it. Section 112

of Title 18 of the United States Code pro-

hibits, inter alia, demonstrations within

100 feet of a mission with intent to in-

timidate or harass foreign officials.

Subsection (d) of this law states that

(d) Nothing contained in this

section shall be construed or ap-

A-74

plied so as to abridge the exercise

of rights guaranteed under the first

amendment to the Constitution of the

United States.

That subsection was added to prevent the

abridgement of legitimate expression and

assembly near foreign missions. S. Rep.

No. 92-1105, 1972 U.S. Code Cong. & Admin.

News 4316, 4328. Picketing near the Mis-

sion should not be prohibited per se.

In balancing the rights of the plain-

tiff against the rights of Mission person-

nel and other residents, only the "sub-

stantial privacy interests" of the latter

should be taken into account.

The ability of government, consonant

with the Constitution, to shut off

discourse solely to protect others

from hearing it is, in other words,

dependent upon a showing that sub-

stantial privacy interests are being

A-75

invaded in an essentially intoler-

able manner. Any broader view of

this authority would effectively

empower a majority to silence dissi-

dents simply as a matter of personal

predilections.

Cohen v. California, 403 U.S. 15, 21, 91

S.Ct. 1780, 1786, 29 L.Ed. 2d 284 (1971).

Legislative authority for restrictions

at the Mission

Plaintiff contends that defendants

lack any legislative authority for the re-

strictions enforced by them at the Mission,

and thus that the restrictions are uncon-

stitutional because imposed in the exer-

cise of defendants' unbridled discretion.

In People v. Solomonow, 56 Misc.2d

1050, 291 N.Y.S.2d 145 (Sup. Ct. 1968),

the defendants were acquitted of charges

of disorderly conduct stemming from their

crossing of police barricades on the Mis-

sion block. The court held that the po-

A-76

lice ban on demonstrations was not autho-

rized by any properly drawn statute or

ordinance vesting limited regulatory au-

thority in police officials.

Neither the State nor the City

have regulated the use of the streets

occupied by foreign consulates or

embassies. In the absence of legis-

lation administrative officials may

not exercise prior restraints on the

exercise of First Amendment rights.

+ * + a

- « « Neither City nor State autho-

rizes the police to permanently and

absolutely close a public street to

those persons seeking to exercise

their First Amendment rights.

291 N.Y.S.2d at 149-50.

Defendants rely on Section 145 of

the New York City Charter for the author-

ity to impose the challenged restrictions.

A-77

Subsection a of that section provides in

part:

The police department and force

Shall have the power ...to...

disperse unlawful or dangerous as-

semblages and assemblages which ob-

Struct the free passage of public

Streets, sidewalks, parks and places;

e e « preserve order at... all

public meetings and assemblages .

Plaintiff argues that this provision only

permits the police to preserve order where

the law is being violated, but does not

authorize restrictions on peaceful expres-

Sive activity such as those imposed at the

Mission.

Even if Charter § 435 were held to

give the police a general authority to de-

velop and enforce the practices challenged

here, the breadth of the administrative

A-78

discretion accorded by the charter requires

that the police regulations be subject to

"exacting judicial scrutiny." A Quaker

Action Group v. Morton, 148 U.S. App. D.C.

346, 351, 460 F.2d 854, 859 (1971). That

case involved a challenge to regulations

limiting demonstrations on the White House

sidewalk, and the court refused to defer

to the government's judgment about -Presi-

dential Safety.

"A balancing of First Amendment

freedoms against the requirements of

Presidential safety may be left to

Other agencies in the first instance,

But... the final judgment must

rest with the courts. To enable the

court to reach a reasoned conclusion,

it is incumbent upon any party who

would invoke Presidential safety as

a paramount consideration to provide

the court with the information nec-

A-79

essary to an even-handed decision.

* * * There has been no effort here

to justify the Government's argument

beyond the flat words of the Secret

Service director. First Amendment

. rights are tco precious for sacri-

fice upon such an unsupported altar."

Id. (quoting A Quaker Action Group v.

Hickel, 137 U.S. App. D.C. 176, 183, 421

F.2d 1111, 1118 (1969).

The Supreme Court has held unconsti-

tutional statutes that permit local offi-

cials to regulate expressive conduct such

as parades and street assemblies "in their

: completely uncontrolled discretion." Cox

v. Louisiana, 379 U.S. 536, 557, 85 S.Ct.

453, 465, 13 L.Ed. 2d 471 (1965). Admin-

istrative officials must be guided by

"narrow, objective, and definite standards"

in their regulation of the exercise of

first amendment freedoms. Shuttlesworth v.

A-80

Birmingham, 394 U.S. 147, 150, 89 S.Ct.

935, 22 L.Ed. 2d 162 (1969).

The Court more likely will defer to

a legislative judgment about the proper

balance of first amendment freedoms against

competing governmental interests. For ex-

ample, Rockford's prohibition of picketing

that disrupts normal] school activities was

upheld because it "represent[ed] a consid-

ered and specific legislative judgment

that some kinds of expressive activity

should be restricted at a particular time

and place, here in order to protect the

schools." Grayned v. City of Rockford,

supra, 408 U.S. at 121, 92 S.Ct. at 2306.

Similarly, a prohibition against picketing

near a courthouse was upheld because it

represented "a legislative determination

based on experience that such conduct in-

herently threatens the judicial process."

Cox v. Louisiana, supra, 379 U.S. 559, at

A-81

566, 85 S.Ct. 476, at 481.

In addition to the City Charter,

defendants rely on 18 U.S.C. § 112 as au-

thority for their practices on the Mission

block. Section 112 provides in pertinent

part:

$112. Protection of foreign offi-

cials, officials guests, and

internationally protected

persons.

(b) Whoever wilfully -

(1) intimidates, coerces,

threatens, or harasses a foreign of-

ficial or an official guest or ob-

structs a foreign offical in the

performance of his duties;

(2) attempts to intimidate

o © ef OF

(3) . . . within one hundred

feet of any building . .. used

- « « for diplomatic, consular, or

A-82

residential purposes by -

(a) a foreign government, in-

cluding such use as a mission to an

international organization;

congregates with two or more other

persons with intent to violate any

other provision of this section;

shall be fined not more than $500

or imprisoned not more than six

months; or both.

Plaintiff does not dispute the interest of

the United States in protecting diplomatic

officials from the conduct proscribed by

Section 112; it maintains, however, that

Section 112 permits peaceful demonstra-

tions near a foreign mission.

The ban on sound equipment

Plaintiff contends that the police

ban on the use of sound equipment on the

Mission block not only violates the first

amendment, but that it is contrary to the

A-83

Administrative Code of the City of New

York. Section 435-6.0 of the Administra-

tive Code requires that the police commis-

sioner issue a permit upon proper applica-

tion with five days notice except for

specified reasons. The Code provides in

part:

f. Issuance of permit; terms.-

The commissioner shall not deny a

permit for any specific time, loca-

tion or use, to any applicant who

complies with the provisions of this

section, except for one or more of

the reasons specified in subdivision

g hereof or for nonpayment of the

fee prescribed in subdivision h

hereof, or to prevent overlapping in

the granting of permits. ...

g- Special restrictions.-The

commissioner shall not issue any

permit for the use of a sound device

A-84

Or apparatus:

lL. In any location within five

hundred feet of a school, courthouse

or church, during the hours of school,

court or worship, respectively, or

within five hundred feet of any hos-

pital or similar institution;

2. In any location where the

commissioner, upon investigation,

Shall determine that the conditions

of vehicular or pedestrian traffic

Or both are such that the use of

such a device or apparatus will con-

stitute a threat to the safety of

pedestrians or vehicular operators;

3. In any location where the

commissioner, upon investigation,

shall determine that conditions of

overcrowding or of street repair or

other physical conditions are such

that the use of a sound device or

A-85

apparatus will deprive the public of

the right to the safe, comfortable,

convenient and peaceful enjoyment of

any public street, park or place for

street, park or other public pur-

poses, or will constitute a threat

to the safety of pedestrians or ve-

hicle operators;

4. In or on any vehicle or other

device while it is in transit; or

53. Between the hours of ten p.m.

and nine a.m.

Plaintiff contends that none of the

foregoing conditions justifies the blanket

policy of denying all applications for

permits on the Mission block, and defen-

dants have offered no evidence that the

Commissioner made any of the determina-

tions specified in the Code. Plaintiff

argues that the sound ban on the blocks is

thus an arbitrary exercise of defendants'

A-86

discretion exceeding both statutory and

constitutional limits. Defendants reply

that the ban is reasonable and necessary

to preserve the peace of the Mission and

to avoid any obstruction of the work of

the Mission.

Irreparable Injury

Plaintiff contends that the denial

of the requested preliminary relief would

cause it to suffer irreparable injury and

severe hardship. It is clear that if the

restrictions imposed by the defendants are

found to infringe to some degree the first

amendment rights of plaintiff's members,

that infringement will be irreparable in

at least two senses. First, monetary dam-

ages are not likely to be recovered against

the municipal officials, who could raise

good faith defenses to damage actions.

Second, money damages, even if available,

would be inadequate, as timeliness is rec-

A-87

ognized as an important element of expres-

Sive activity. The opportunity to speak

out on a matter of current interest, once

lost, cannot be reclaimed.

Defendants argue that irreparable

injury will not be suffered because the

restrictions imposed on plaintiff are not

complete; it may engage in first amendment

activity anywhere but on the Mission block.

However, the Supreme Court has stated:

It goes without saying that "one is

not to have the exercise of his lib-

erty of expression in appropriate

places abridged on the plea that it

may be exercised in some other place."

Grayned v. City of Rockford, supra, 408

U.S. at 118 n.40, 92 S.Ct. at 2305 (quot-

ing Schneider v. State, 308 U.S. 147, 163,

60 S.Ct. 146, 84 L.Ed. 155 (1939).

Upon due consideration of the facts

and circumstances presented, the Court

A-88

finds that the substantial interest which

the United States has in protecting the

personnel and premises of foreign diplo-

matic missions preclude the grant of pre-

liminary injunctive relief. Rubenstein v.

Murphy, No. 71 Civ. 2291 (S.D.N.Y. May 26,

1971) (Croake, J); Greenberg v. Murphy,

329 F. Supp. 37 (S.D.N.Y¥Y. 1971) (Gurfein,

J.). There is substantial empirical evi-

dence that to allow expanded demonstra-

tions in front of the Soviet Mission would

unduly and unnecessarily impair this in-

terest. The area presently designated for

picketing was selected for reasons which

make sound sense under the special condi-

tions existing on the block; the require-

ment that after dark, demonstrators are

asked to reduce the noise level is entire-

ly reasonable; the object of the police to

accommodate both the demonstrators' rights

of assembly and the right of nondemonstra-

A-89

tors to peaceful and unobstructed passage

consistent with safety meets fundamental

concerns fairly. Basically the whole sub-

ject matter is one of degree and judgment

and no better yardsticks than the ones

employed are presented or apparent.

The restrictions complained of apply

to demonstrators and amplified noise imme-

diately in front of the Soviet Mission.

There are no similar limitations in the

overflow adjacent areas. The case for ir-

reparable harm has not been made out at

this time. Indeed the character of this

Street and the pattern of usual activity

on it srongly suggest that the restric-

tions herein are reasonable both as to

numbers of demonstrators and the use of

amplified sound equipment in the immediate

area.

Balancing the interests at stake

herein, the police restrictions upon pick-

A-90

eting and amplified noise in the immediate

vicinity of the Soviet Mission clearly

pass constitutional muster, certainly so

far as concerns a demand for provisional

relief. The restrictions at issue do not

unduly or unnecessarily abridge the exer-

cise of the plaintiff's members' liberty

of expression in this area. They are rea-

sonably narrow enough so as to afford the

right of demontrators to express their

views in number and noise sufficient to

Carry their message without unreasonable

impediment. The numerical restrictions

have been sufficiently time-tested over

the years, without any apparent swell of

complaint thereof and it may be reasonably

inferred that no really undue restraints

are felt by those inclined to demonstrate

for their causes against the Mission.

This conclusion does not suggest in any

way that the motivation of the plaintiff

A-91

and its members is other than laudable and

their intentions peaceful.

Accordingly the plaintiff's motion

for a preliminary injunction is denied.

The application of the United States for

leave to appear as an amicus curiae in

this action, because of the governmental

interest herein, is granted.

The foregoing shall constitute the

findings of fact and conclusions of law

required by Federal Rule of Civil Proce-

dure 52(a).

SO ORDERED.

A-92

Appendix C

The United States Constitution

AMENDMENT I [1791].

Congress shall make no law respect-

ing an establishment of religion, or pro-

hibiting the free exercise thereof; or

abridging the freedom of speech, or of the

press; or the right of the people peace-

ably to assemble, and to petition the

Government for a redress of grievances.

AMENDMENT XIV [1868].

SECTION 1. All persons born or natural-

ized in the United States and subject to

the jurisdiction thereof, are citizens of

the United States and of the State wherein

they reside. No State shall make or en-

force any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State

A-93

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdictien

the equal protection of the laws.

A-94

Appendix D

18 U.8.C..3 112

§ 112. Protection of foreign officials,

offi ial guests, and internationally pro-

tected persons

(a) Whoever assaults, strikes, wounds,

imprisons, or offers violence to a foreign

official, official guest, or internation-

ally protected person or makes any other

violent attack upon the person or liberty

of such person, or if likely to endanger

his person or liberty, makes a violent

attack upon his official premises, pri-

vate accommodation, or means of transport

Or attempts to commit any of the foregoing

shall be fined not more than $5,000 or

imprisoned not more than three years, or

both. Whoever in the commission of any

such act uses a deadly or dangerous weapon

shall be fined not more than $10,000 or

A-95

imprisoned not more than ten years, or

both.

(b) Whoever willfully--

(1) intimidates, coerces, threatens,

or harasses a foreign official or an

official guest or obstructs a foreign

official in the performance of his

duties;

(2) attempts to intimidate, coerce,

threaten, or harass a foreign official

Or an official guest or obstruct a for-

eign official in the performance of his

duties; or

(3) within the United States but

outside the District of Columbia and

within one hundred feet of any building

Or premises in whole or in part owned,

used, or occupied for official business

or for diplomatic, consular, or resi-

dential purposes by--

A-96

(A) a foreign government, in-

cluding such use as a mission to an

international organization;

(B) an international organization;

(D) an official guest;

congregates with two or more other per-

sons with intent to violate any other

provision of this section;

shall be fined not more than $500 or inm-

prisoned not more than six months, or both.

"foreign government", "foreign official",

"internationally protected person", "in-

ternational organization", and “official

guest” shall have the same meanings as

those provided in section 1116(b) of this

title.

(d) Nothing contained in this section

shall be construed or applied so as to

abridge the exercise of rights guaranteed

A-97

under the first amendment to the Consti-

tution of the United States.

(e) If the victim of an offense under

subsection (a) is an internationally pro-

tected person, the United States may exer-

cise jurisdiction over the offense if the

alleged offender is present within the

United States, irrespective of the place

where the offense was committed or the

nationality of the victim or the alleged

offender. As used in this subsection, the

United States includes all areas under the

jurisdiction of the United States includ-

ing any of the places within the provi-

sions of sections 5 and 7 of this title

and section 101(34) of the Federal Avia-

tion Act of 1958, as amended (49 U.S.C.

1301(34)).

(£) In the course of enforcement of

subsection (a) and any other sections pro-

hibiting a conspiracy or attempt to vio-

A-98

late subsection (a), the Attorney General

may request assistance from any Federal,

State, or local agency, including the Army,

Navy, and Air Force, any statute, rule, or

regulation to the contrary, notwithstand-

ing.

As amended Oct. 24, 1972. Pub. L. 92-539,

Title III, § 301, 86 Stat. 1072; Oct. 8,

1976, Pub. L. 94-467, § 5, 90 Stat. 1999;

Nov. 9, 1977, Pub. L. 95-163, § 17(b) (1),

91 Stat. 1286; Oct. 24, 1978, Pub. L.

95-504, §$ 2(b), 92.

A-99

Appendix E

Administrative Code of the

City of New York § 435-6.0

§ 435-6.0* Regulation of sound devices

Or apparatus.-a. Legislative declaration.

It is hereby declared that the use or op-

eration of any radio device or apparatus

Or any devise or apparatus for the ampli-

fication of sounds from any radio, phono-

*Section 3 of L. L. 1948, Nox 64, reads

as follows:

33. Construction Clause.-If any part

of this local law or the application there-

of to any person or circumstances, shall

for any reason be adjudged by a court of

competent jurisdiction to be unconstitu-

tional or invalid, such judgment shall not

affect, impair or invalidate the remainder

of this local law or the application there-

of to other perons and circumstances, but

shall be confined in its operation to the

section, subdivision, sentence or part of

the local law and the persons and the cir-

cumstances directly involved in the con-

troversy in which such judgment shall have

been rendered. It is hereby declared to

be the intent of the Council that this

local law would have been adopted if such

invalid section, provision, subdivision,

sentence or part of the local law or ap-

plication not been included.

A-100

graph or other sound-making or sound-pro-

ducing device, or any device or apparatus

for the reproduction or amplification of

the human voice or other sounds, in front

of or outside of any building, place or

premises, or in or through any window,

doorway or opening of such building, place

Or premises, abutting or adjacent to a

public street, park or place, or in or

upon any vehicle operated, standing or

being in or upon any public street, park

or place, where the sounds therefrom may

be heard upon any public street, park or

place, or from any stand, platform or

other structure, or from any airplane or

other device used for flying, flying over

the city, or on a boat or on the waters

within the jurisdiction of the city, or

anywhere on or in the public streets,

parks or places, is detrimental to the

health, welfare and safety of the inhabi-

A-101

tants of the city, in that such use or op-

eration diverts the attention of pedestri-

ans and vehicle operators in the public

streets, parks and places, thus increasing

traffic hazards and causing injury to life

and limb. It is hereby further declared

that such use or operation disturbs the

public peace and comfort and the peaceful

enjoyment by the people of their rights to

use the public streets, parks and places

for street, park and other public purposes

and disturbs the peace, quiet and comfort

of the neighboring inhabit: ats. Therefore,

it is hereby declared as a matter of leg-

islative determination that the prohibi-

tion of such use or operation for commer-

cial or business advertising purposes and

the proper regulation of such use and

operation for all other purposes is essen-

tial to protect the health, welfare and

safety of the inhabitants of the city, to

A-102

secure the health, safety, comfort, conve-

nience, and peaceful enjoyment by the peo-

ple of their rights to use the public

streets, parks and places for street, park

and public purposes and to secure the

peace, quiet and comfort of the city's in-

habitants. It is hereby further declared

as a matter of legislative determination

that the expense of supervising and regu-

lating the use and operation of such sound

devices and apparatus for purposes other

than commercial and business advertising

purposes should be borne by the persons

using or operating such devices and appa-

ratus and that the requirement of a nomi-

nal fee for the issuance of a permit for

such use and operation as hereinafter pre-

scribed is intended to defray the expenses

of regulating such use or operation for

the health, welfare and safety of all the

people.

A-103

b. Definitions. As used in this sec-

tion:

1. The term "sound device or appa-

ratus" shall mean any radio device or

apparatus, or any device or apparatus

for the amplification of any sounds

from any radio, phonograph, or other

sound-making or sound-producing device,

Or any device or apparatus for the re-

production or amplification of the

human voice or other sounds;

2. The phrase “to use or operate

any sound device or apparatus in, on,

near or adjacent to any public street,

park or place," shall mean to use or

operate or cause to be used or operated

any sound device or apparatus in front

or outside of any building, place or

premises, or in or through any window,

doorway or opening of such building,

**%

A-104

place or premises, abutting on or adja-

cent to a public street, park or place,

or in or upon any vehicle operated,

standing or being in or on any public

street, park or place, where the sounds

therefrom may be heard upon any public

street, park or place, or from any

stand, platform or other structure, or

from any other airplane or other device

used for flying, flying over the city,

Or on a boat or on the waters within

the jurisdiction of the city, or any-

where on the public streets, parks or

places.

c. Use and operation of the sound

devices and apparatus for commercial and

business advertising purposes. It shall

be unlawful for any person to use or oper-

ate any sound device or apparatus in, on,

near or adjacent to any public street,

A-105

park or place, for commercial and business

advertising purpose,

d. Use and operation of sound devices

and apparatus for other than commercial

and business advertising purposes; permit

required. It shall be unlawful for any

person to use or operate any sound device

Or apparatus, in, on, near or adjacent to

any public street, park or place, unless

he shall have first obtained a permit to

be issued by the commissioner in the man-

ner hereinafter prescribed and unless he

shall comply with the provisions of this

section and the terms and conditions pre-

scribed in such permit.

e. Applications.-Each applicant for a

permit to use or operate a sound device or

apparatus in, on, near or adjacent to any

public street, park or place shall file a

written application with the commissioner,

at the police precinct covering the area

A-106

in which such sound device or apparatus is

to be used or operated, at least five days

prior to the date upon which such sound

device or apparatus is to be used or oper-

ated. Such application shall describe the

specific location in which such sound de-

vice or apparatus is proposed to be used

Or operated, the day and the hour or hours

during which it is proposed to be used or

operated, the volume of sound which is

proposed to be used measured by decibels

or by any other efficient method of mea-

suring sound, and such other pertinent

information as the commissioner may deem

necessary to enable him to carry out the

provisions of this section.

f. Issuance of permit; terms.-The com-

missioner shall not deny a permit for any

specific time, location or use, to any

applicant who complies with the provisions

of this section, except for one or more of

A-107

the reasons specified in subdivision g

hereof or for non-payment of the fee pre-

scribed in subdivision h hereof, or to

prevent over-lapping in the granting of

permits. Each permit issued pursuant to

this section shall describe the specific

location in which such sound device or

apparatus may be used or operated there-

under, the exact period of time for which

such apparatus or device may be operated

in such location, the maximum volume of

sound which may be employed in such use or

operation and such other terms and condi-

tions as may be necessary, for the purpose

of securing the health, safety, comfort,

convenience and peaceful enjoyment by the

people of their right to use the public

Streets, parks or places for street, park

Or other public purposes, protecting the

health, welfare and safety of the inhabi-

tants of the city, and securing the peace,

A-108

quiet and comfort of the neighboring in-

habitants.

g. Special restrictions.-The commis-

sioner shall not issue any permit for the

use of a sound device or apparatus:

1. In any location within five

hundred feet of a school, courthouse or

church, during the hours of school,

court or worship, respectively, or

within five hundred feet of any hospi-

tal or similar institution;

2. In any location where the com-

missioner, upon investigation, shall

determine that the conditions of vehi-

cular or pedestrian traffic or both are

such that the use of such a device or

apparatus will constitute a threat to

the safety of pedestrians or vehicular

operators;

3. In any location where the com-

missioner, upon investigation, shall

°%

A-109

determine that conditions of overcrowd-

ing or of street repair or other physi-

cal conditions are such that the use of

a sound device or apparatus will de-

prive the public of the right to the

safe, comfortable, convenient and peace-

ful enjoyment of any public street,

park or place for street, park or other

public purposes, or will constitute a

threat to the safety of pedestrians or

vehicle operators;

4. In or on any vehicle or other

device while it is in transit; or

5. Between the hours of ten p.m.

and nine a.m.

h. Fees.-Each applicant for a permit

issued under the provisions of this sec-

tion shall pay a fee of five dollars for

the use of each sound device or apparatus

for each day, provided, however, that per-

mits for the use of such sound devices or

A-110

apparatus shall be issued to any bureau,

commission, board or department of the

United States government, the state of New

York, and the city of New York, without

fee.

i. The provisions of this section

shall not apply to the use or operation of

any sound device or apparatus by any

church or synagogue on or within its own

premises, in connection with the religious

rites or ceremonies of such church or

synagogue.

j- Violations.-Any person who shall

violate any provision of this section,

upon conviction thereof, shall be punished

by a fine of not more than twenty-five

dollars or imprisonment for thirty days,

or both.

k. Rules and regulations.-The commis-

sioner shall have the power to make such

rules and regulations as may be necessary

A-11l1

to carry out the provisions of

tion.

(As amended by L. L. 1939, No.

ber 20; as renumbered by L. L.

50, October 29; and as amended

1948, No. 64, October l.)

this sec-

172, Novem-

1942, No.

by L. L.

A-112

Appendix F

New York City Charter § 435

§ 435. Department; duties.-a. The

police department and force shall have the

power and it shall be their duty to pre-

serve the public peace, prevent crime,

detect and arrest offenders, suppress

riots, mobs and insurrections, disperse

unlawful or dangerous assemblages and as-

semblages which obstruct the free passage

of public streets, sidewalks, parks and

places; protect the rights of persons and

property, guard the public health, pre-

serve order at elections and all public

meetings and assemblages; subject to the

provisions of law and the rules and regu-

lations of the commissioner of traffic,

regulate, direct, control and restrict the

movement of vehicular and pedestrian traf-

fic for the facilitation of traffic and

the convenience of the public as well as

A-113

the proper protection of human life and

health; remove all nuisances in the public

streets, parks and places; arrest all

Street mendicants and beggars; provide

proper police attendance at fires; inspect

and observe all places of public amusement,

all places of business having excise or

other licenses to carry on any business;

enforce and prevent the violation of all

laws and ordinances in force in the city;

and for these purposes to arrest all per-

sons guilty of violating any law or ordi-

nance for the suppression or punishment of

crimes or offenses.

b. Except as specifically provided

herein, nothing contained in this section

Shall be deemed to limit, restrict, divest,

transfer or supersede the powers or the

jurisdiction of any agency as defined in

section eleven hundred fifty of the char-

ter.

A-114

c. Nothing contained in this charter

Shall be deemed to grant the department of

traffic cognizance or control over the

government, administration, disposition

and discipline of the police department or

police force.

(Derived from former § 435 as amended by

L. L. 1949, No. 2; as amended by L. L.

19590, No. 27.)

A-115

Appendix G

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.