Opposition Brief — Hobbs v. Westchester County

No. 04-1498 vn 44 2005

i

| OFFICE OF THE CLERK |

oer ee

IN THE

Supreme Court of the United States

RICHARD P. HOBBS,

Petitioner,

v,

COUNTY OF WESTCHESTER, NEW YORK, et ai.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

BrIAN O’Dwye_rR

Counsel of Record

Gary SILVERMAN

O’ Dwyer & BERNSTIEN, LLP

52 Duane Street, 5th Floor

New York, NY 10007

(212) 571-7100

Attorneys for Respondents

195361 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

TABLE OF CONTENTS

. TABLE OF CITED AUTHORITIES .........--.

cae feo | oa) Sr eae ae ea

STATEMENT OF THE CASE .........---++++>

REASONS FOR DENYING THE PETITION

I. The Court Below Carefully Analyzed And

Applied The Court’s Precedents In Its

Holding The Prohibition Is Content-Neutral

Il. There Is:No Merit To Petitioner’s Claim

That The Second Circuit Has Created A New

First Amendment Principle In Its Secondary

Effects Analysis ..........-----eeeeeeees

| Ill. The Court Below Applied The Appropriate

| y Standard of Evidence With Respect To The

m4 Secondary Effects Analysis ..........----

eh Eo) | Seer re Grae TT ae

SOURS

Page

14

il

TABLE OF CITED AUTHORITIES

Page

Cases .

Ashcroft v. Free Speech Coalition,

S35 U.5..734 (ee ik cisdasneee eee 15, 16, 17

Barnes v. Glen Theatre, Inc.,

$01 U5. SOO (ISSR) 2 56s 535342 eee 11

Boos v. Barry,

465 U.S. 312 (EGE) 6k i tee ee 13

City of Erie v. Pap’s A.M.,

$26 11.8. 27? CARD 5 ccs nso eae a ee passim

City of Los Angeles v. Alameda Books, Inc.,

$35 01S. 423 (062) 6. vccsceeee eee passim

City of Renton v. Playtime Theatres, Inc.,

47S US. 44 (5). oko ccna a eee 12, 17

Clark v. Community for Creative Nonviolence,

468 U:S. DUR (IGG) ¢ oncs iss eee 9,19

Essence, Inc. v. City of Federal Heights,

265 F.30 1272 C20 Coe, DORR kc ake canewnecs Bi, 40

Forsyth County v. Nationalist Movement,

SOS U.S. 123 €99RE? ihn ie ees 13

Frisby v. Schultz,

487 U.S. 474 CU9RE) cncckileeae eee 8

ili

Cited Authorities

Page

Giovani Carandola, Ltd. v. Bason,

303 F.3d 507 (4 Cir. 2002) .......ccccccece: 22

Madsen v. Women’s Health Center, Inc.,

ge Me 2d. eer a 10

McKune v. Lile,

GEE DP EMOUED cncwnchesdadewvsceseevns 21

R.A.V. v. City of St. Paul,

EU SUP EIOOED cc ceccscectssccnvssaees 12

Sable Communications of Call., Inc. v. FCC,

MT BU CNP ck cekccccesscnnesseuces 12

Smith v. Doe,

- 5k By. Pere rrrrrree ree 8, 16, 20, 21

United States v. O’Brien,

Ge ge re 9, 12, 19, 20

Ward v. Rock Against Racism,

RS ee ere eS 9, 10

Constitution

5 aes gE Gee eee ere ee passim

l

INTRODUCTION

Petitioner Richard P. Hobbs (“Hobbs”) opens the

factual statement of his Petition for a Writ of Certiorari

(“Pet.”), by introducing and identifying himself as a “busker”

(Pet. at 2), creating an image of a quaint and harmless, albeit

anachronistic, street performer whose right to engage in

“innocent” expressive conduct has been restricted by the

Westchester County Executive Order at issue here. The reality

is far different in numerous respects.

First, and this fact informs the case, Hobbs was convicted

two separate times for crimes involving sexual abuse of two

boys (ages 11 and 14). In addition, affidavits were presented

to the courts below that detailed Hobbs’s sexual abuse of

other boys that did not result in criminal charges. Second, it

is not coincidental that Hobbs sought to busk at Playland

Park, an amusement park that attracts many families with

children, in that he deliberately targets children in his acts.

As noted in the Second Circuit decision, a photograph

introduced in the district court depicted Hobbs seated in a

chair displaying balloon sculptures with a sign reading, in

part, “A theater experience for 3 and 4 year olds”. App. 35a.

The court below took note of the complaint where Hobbs

acknowledged, “‘the balloon is a tool through which he

conveys his message’ and ‘helps attract his audience’

(Complaint at 13)”; and Hobbs’s statement “that, although

adults are repelled, his performance is particularly attractive

to children, ... .” App. 35a. The court below concluded,

“It is undisputed that Hobbs had twice been convicted of

child molestation, and his own descriptions of his act compel

the conclusion that his act, using props, would entice children

2

to congregate around him.” /d.' Third, contrary to the

hyperbolic claim that is a central theme of the Petition, the

decision of the court below upholding the Executive Order

does not cause Hobbs or any other person to be a “First

Amendment outcast”. Pet. at 20. As a result of the decision,

no speaker is silenced and absolutely no message is

prohibited.

Similarly exaggerated is the claim that the decision

breaks new ground in First Amendment law. Pet. at 1. As the

court below held, the Executive Order focuses on conduct

rather than speech, the manner of expression rather than

content or viewpoint of the message. The only activities

affected by the decision upholding the Executive Order are

those Hobbs has admitted he engages in to attract children

to him, the type of conduct that was involved in Hobbs’s

1983 conviction and which the County’s psychological expert

stated pedophiles use to lure children to them, disarm their

defenses and groom potential victims.

The Second Circuit’s decision reflects a careful and

painstaking analysis of the Court’s precedents, Starting with

the undisputed premise that protecting the safety and welfare

of citizens, especially children, is a governmental interest of

Surpassing importance. The judgment that the Executive

Order at issue survives constitutional scrutiny breaks no new

ground, it simply applies the analytical principles developed

by the Court to this unique set of facts and the challenges

' Petitioner's 30 page pro se complaint in this action is replete

with references to children, including the claim that children are

attracted to him, and statements detailing his use of objects (including

balloons) to attract and connect with children. Hobbs virtually fixates

on children in his complaint, to which even the Second Circuit’s

limited quotations attest. App. 4a - 6a.

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posed by the County’s obligation to protect children from

being victimized by persons convicted of sexual offenses

against minors.

STATEMENT OF THE CASE

As found by the court below, Playland Park is a

279-acre a recreational complex owned and operated by

Respondent, the County of Westchester (“the County”).

Playland Park is comprised of a pool, picnic areas and

shelters, a miniature golf course, a beach, boardwalk, lake,

an ice skating rink, a museum and pier. There is a separate

fenced-in amusement facility, including rides, games and

concession stands. There is no entrance fee to the amusement

facility, but fees are charged for the rides, games and at the

concession stands. App. 2a.

In May 2000, Petitioner sought access to Playland Park

purportedly for the purpose of “busking”. App. 2a.

His application was initially denied on grounds including

that his busking activities conflicted with the paid

entertainment provided by Playland Park and consistent with

Westchester County laws and regulations that prohibited

soliciting in County parks generally and at Playland Park

specifically. In August 2000, plaintiff commenced this action,

raising issues concerning the nature of Playland Park for

purposes of First Amendment forum analysis and the

constitutionality of the no-solicitation laws and regulations.

While the action was pending in the district court,

Petitioner’s two convictions of sexual offenses against minors

came to light. In 1978 Hobbs was convicted on his plea of

guilty to sexual abuse of a minor, a Class A misdemeanor.

App. lla. This conviction involved an 11-year-old boy who

4

was “grabbed” by Hobbs, taken to an office Hobbs had rented,

and molested until he was able to break free and escape. /d.

In 1983 Hobbs was convicted of Corruption of Minors, a

misdemeanor in the first degree, after a jury trial in Lycoming

County Court in Williamsport, Pennsylvania. Hobbs was

sentenced to a term of 9 months to 4 years. As the court below

stated with respect to this conviction,

[T]he victim .. . testified that he was 14 when he

was introduced to Hobbs; on that day, Hobbs was

to give a performance as a clown in another town

and the victim was to help Hobbs in that act:

Hobbs fondled him throughout the round-trip car

ride and at locations in and near the other town.

App. Ila.

Also during the district court proceedings, the County

learned that Hobbs sexually abused two other boys, a 10 year

old and a 14 year old. One of the boys was abused

contemporaneously with the events that resulted in the 1983

conviction. The other boy was abused by Hobbs shortly after

Hobbs was released from incarceration for the 1983

conviction. Affidavits detailing the sexual abuse were

presented to the courts below, as the Second Circuit noted.

Id?

With this information Hobbs’s motivation for seeking

to perform at Playland Park came into focus. It was also clear

> In the Petition, as in the court below, Petitioner characterizes

the affidavits as “unsubstantiated”. Pet. at 3. The Second Circuit

concluded they were probative, apparently rejecting his deposition

testimony on this subject as evasive and unconvincing.

5

that allowing Hobbs to engage in his balloon and other

prop-assisted, child-oriented acts at Playland Park posed an

unacceptable risk to the safety and welfare of children.

This conclusion was based, in part, on expert information of

a clinical psychologist and psychology professor who had

been retained by the County in the litigation. The County’s

expert presented extensive experience in evaluating sex

offenders for probation departments and courts and assessing

the risks such offenders pose to children and communities.

App. 9a - 10a. The County’s expert opined, inter alia, that if

convicted sex offenders — such as Hobbs — were able to

present themselves to children and their guardians as

harmless and entertaining (e.g., as a benevolent clown), they

would be in excellent position to begin identifying, targeting

and grooming potential future victims. App. 12a - 13a.

By Opinion and Order dated December 23, 2002 the

district court invalidated the County laws and regulations

banning solicitation in County parks and Playland Park that

had been applied when Hobbs first sought to permission to

perform at Playland Park. App. 63a - 88a. In view of that

regulatory vacuum and the information that came to light

during the litigation regarding Hobbs’s sexual offenses

against children, including the expert information relating

to pedophile behaviors by which they groom victims, the

County Executive enacted Executive Order 3-2003 to respond

to this urgent matter of public safety. The Executive Order

established specific zones where persons could engage in

certain kinds of expressive activities without interfering with

the general use of those facilities and a permitting scheme to

regulate the use of the zones. The Executive Order also

contains a provision (Section VI thereof, entitled

“Prohibition”) that prohibits any person who has been

convicted of a sexual offense against a minor from engaging

6

in expressive activities that are most likely to lure children

to the performer. The second paragraph of the Prohibition

provides,

Notwithstanding the aforementioned, no

individual known to have been convicted of a

sexual offense against a minor shall be permitted

to obtain a permit if the solicitation, performance,

demonstration or other similar activity would

entice a child to congregate around that person

since the granting of such a permit would involve

an unreasonable risk to the safety and welfare of

children.

App. 92a.

In this measured and considered manner the County

Executive fulfilled his paramount obligation to safeguard the

safety and welfare of children, at the same time burdening

speech as little as absolutely necessary.to achieve this goal.

Hobbs’s challenge to the constitutionality to the quoted

provision was rejected by the district court by Opinion and

Order dated August 13, 2003. App. 44a - 62a. The Executive

Order was analyzed under the strict scrutiny standard.

App. 54a. That it addressed a matter of compelling state

interest — protecting the safety and welfare of children — was

a given. Jd. The district court found that the Prohibition was

narrowly tailored in that it applies only to individuals

convicted of a sexual offense against a minor and even then,

only if a number of other conditions relating to the manner

of the expression were satisfied. App. 55a.

—— ———— —

7

Hobbs appealed the portion of the district court’s Opinion

and Order that rejected his constitutional challenge (both on

its face and as applied to him) to the Prohibition provision

of the Executive Order. The Court of Appeals for the Second

Circuit affirmed the district court. The Second Circuit found

that the County had the requisite interest in the welfare of

children in enacting the Executive Order, an interest of

compelling governmental interest. App. 29a. The Second

Circuit held, after an extensive analysis of the Court’s

relevant precedents, that the Executive Order was content-

neutral. This conclusion was based upon the finding that the

Executive Order restricts the manner of the expressive

conduct by a person convicted of a sexual offense against a

minor (e.g., Hobbs’s balloon-assisted presentations that he

uses to attract children to him), unrelated to the content of

the message or its viewpoint. The court further found the

Prohibition focuses on the harmful secondary effects of the

activity, that is, the risk to children as a result of particular,

but extremely limited, manners of expression. App. 30a -

32a. The court found no constitutional impediment to the

application of the Prohibition to Hobbs. App. 35a. Hobbs’s

facial challenge to the Prohibition was similarly rejected.

App. 37a.

REASONS FOR DENYING THE PETITION

The Second Circuit’s decision does not conflict with

decisions of this Court, or any other court, but rather is in

accord with the Court’s jurisprudence on all the issues raised

in the Petition. There was no error in the holding the

Executive Order under review is content-neutral and subject

to the intermediate level of scrutiny, as it affects only the

manner of expressive conduct and is unrelated to the content

of the message. The Second Circuit decision affirming the

8

district court reflects a careful balancing of rights and the

manner by which the County has determined to fulfill its

undisputedly compelling interest in protecting children from

sexual predation. The Court has noted its “normal practice”

of “defer[ring] to the construction of a state statute given it

by the lower federal courts . . . to reflect our belief that district

courts and courts of appeals are better schooled in and more

able to interpret the laws of their respective states.” Frisby

v. Schultz, 487 U.S. 474, 482 (1988). That deference is

appropriate here, as both the district court and the Second

Circuit reached the conclusion that the County’s measured

response to the threat to children from persons convicted of

sexual offenses against a minor survives constitutional

scrutiny.

The Petition vastly overstates the breadth and importance

of the issues presented and the effects of the decision of the

court below. Contrary to the impression created, the decision

does not cause any person to be a First Amendment outcast,

not even convicted sex offenders, people this Court has

acknowledged have a high rate of recidivism, justifying the

enactment of state reporting and monitoring laws that can be

highly intrusive and onerous. See, e.g, Smith v. Doe, 538 U.S.

84 (2003). Also contrary to a claim in the Petition, there is

no uncertainty based upon the Court’s decisions that

expressive conduct for persons convicted of a sexual offense

against a minor can be burdened in the minimal manner here.

9

I. The Court Below Carefully Analyzed And Applied

The Court’s Precedents In Its Holding The

Prohibition Is Content-Neutral

The Executive Order survives constitutional scrutiny

under settled law, either (a) as a valid time, place, and manner

restriction subject to intermediate scrutiny under United

States v. O’Brien, 391 U.S. 367, 376 (1968) (the Second

Circuit’s reasoning), or (b) as a regulation of conduct, rather

than speech, which is not subject to First Amendment

scrutiny, under reasoning advanced by Justice Scalia in City

of Erie v. Pap’s A.M., 529 U.S. 277, 307 (2000).

The decision of the court below to apply the intermediate

scrutiny standard as a content-neutral regulation is fully

consistent with the Court’s decisions utilizing this analytical

framework in analogous situations. See e.g., City of Erie v.

Pap’s A.M., 529 U.S. 277, 291 (2000) (applying the content-

neutral standard to ordinance prohibiting nude dancing

because the prohibition was not an attempt to regulate the

primary expression of the erotic message, but the secondary

effects of the expression, i.e. impacts on public safety and

welfare); Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989) (applying the content-neutral analytical framework

to an ordinance regulating sound, stating, “The principal

inquiry in determining content neutrality, in speech cases

generally and in time, place, or manner cases in particular, is

whether the government has adopted a regulation of speech

because of disagreement with the message it conveys.

[citation omitted].”); Clark v. Community for Creative

Nonviolence, 468 U.S. 288 (1984) (applying content-neutral

standard to regulation that prohibited overnight camping in

Lafayette Park because it was not applied due to disagreement

with the message presented (plight of the homeless) but to

prevent damage to the park from certain kinds of uses).

i in

10

The Second Circuit applied the tests for content-

neutrality that have been long established by these and other

cases. Applying such precedents, the court below correctly

held the County’s compelling interest in protecting children

from being victims of sexual predation is unrelated to the

content or viewpoint of the expressive activity. The Executive

Order focuses on the particular manner by which messages

are delivered (e.g., “prop-assisted”) that entice children to

congregate around the person known to have been convicted

of a sexual offense against a minor. The Executive Order

looks beyond the primary effect of the expression

(e.g. enjoyment of the performance) to its secondary effects

(e.g., grooming potential victims). App. 30a - 3la.

That the Executive Order was adopted solely to protect

children from sexual predation further compels the

conclusion it is content-neutral. “Our principal inquiry in

determining content neutrality is whether the government has

adopted a regulation of speech ‘without reference to the

content of the regulated speech.’”” Madsen v. Women’s Health

Center, Inc., 512 U.S. 753, 763 (1994) (quoting Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989)). There is no basis

in the record to suggest the Executive Order was adopted

because the County disagreed with Hobbs’s purported

messages about the plight of the homeless or government

inefficiency or out of hostility to the content of the messages,

if any, conveyed by his acts.

Moreover, the Executive Order can be viewed as a

“general law regulating conduct and not specifically directed

at expression, it is not subject to First Amendment scrutiny

at all.”” City of Erie v. Pap’s A.M., 529 U.S. at 307-308

(Scalia, J., joined by Thomas, J, concurring in the judgment,

1]

citing Barnes v. Glen Theatre, Inc., 501 U.S. 560, 572

(1991))3

In an attempt to find error where none exists, Petitioner

glosses over the principal basis for the Second Circuit’s

holding that the Executive Order is content-neutral and

focuses on its discussion of additional factors that can be

taken into consideration in that determination. In fairness to

the Second Circuit’s detailed and lengthy analysis, the

principal basis for the holding is the Executive Order,

“focuses first — and potentially only — on the means by which

the speaker’s message is to be delivered.” App. 30a. To be

sure, the court observed, the contents of the proposed

presentation can be examined, as well as the proposed props

and/or equipment, to determine whether the presentation is

likely to attract children. But the content of the message is

irrelevant to the restriction. |

But the specific content of the speech — whether

the speaker is talking about animals, fairy tales,

government inefficiency, or the plight of homeless

veterans — is irrelevant to the governmental goal

* Justice Scalia stated,

When conduct other than speech itself is regulated, it is

my view that the First Amendment is violated only

“[w]here the government prohibits conduct precisely

because if its communicative attributes. . . . Here, even

if one hypothesizes that the city’s object was to

suppress only nude dancing, that would not establish an

intent to suppress what (if anything) nude dancing

communicates.” |

City of Erie, 529 U.S. at 310 (quoting Barnes, 501 USS. at 577).

12

that a person with a criminal record of sexual

offenses against minors not be permitted to use

artifices to entice children to gather around him,

developing rapport with the children and gaining

new opportunities for child molestation. We

conclude that the Executive Order constitutes a

restriction only on the manner of speech and is

designed to prevent harmful secondary effects

unrelated to its content.

App. 33a.

In this holding the court below followed cases such as

City of Erie v. Pap’s A.M., 529 U.S. 277, 291 (analogizing

case to United States v. O’Brien, 391 U.S. 367 (1968), and

holding an ordinance prohibiting public nudity — ostensibly

content related at least to some degree — was permissible

because it was aimed at combating crime and other negative

secondary effects and not at suppressing the erotic message

conveyed by this type of nude dancing) and City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41 (1986) (majority holding

that it was content-neutral for zoning ordinance to treat

“adult” movie theaters differently from other theaters, even

though such differentiation was based upon content, because

the ordinance was aimed at the secondary effects of adult

theaters, a justification that was unrelated to the content of

the movies).

Petitioner’s asserted conflict between the Second

Circuit’s decision and R.A.V. v. City of St. Paul, 505 U.S.

377 (1992), and Sable Communications of Cal., Inc. v. FCC,

492 U.S. 115 (1989), is illusory. The alleged conflict is

premised upon the erroneous contention that there has been

“no finding, no evidence, or even any claim,” the Executive

13

Order was the least restrictive means to further the compelling

governmental interest. Pet. at 10. Petitioner is incorrect on

all three points. Both the Second Circuit and the district court

found the Prohibition was narrowly tailored. App. 33a

(Second Circuit); App. 55a (district court). The County

argued to both courts (an alternate argument to the Second

Circuit) that the Prohibition was narrowly tailored and the

least restrictive means of achieving a compelling

governmental interest. As to evidence the Executive Order

was the least restrictive means, the Second Circuit quoted

extensively from the County’s expert, who stated there were

special risks associated with the manner of expression by

which a person convicted of a sexual offense against a child

is able to present himself as harmless and entertaining. The

County’s expert concluded this manner of expression

facilitates victimization of children. App. 12a - 13a. Hobbs

presented no expert information.

There is no merit to the argument, in effect, that the

Executive Order is “clear error” as a restriction based upon

listeners’ reactions to the expression under Forsyth County

v. Nationalist Movement, 505 U.S. 123 (1992), Boos v. Barry,

485 U.S. 312 (1988), and the circuit court cases cited by

Petitioner. Pet. at 9. This is not a case where expression is

restricted because it is unpopular or deemed offensive to a

potentially “hostile mob”. Nor does the Executive Order raise

the troubling issue posed by the ordinance in Forsyth that

the decision of whether and how much money to charge for

police protection and administrative time was (a) left to the

whim of an administrator and (b) was a function of the

amount of hostility the speech was expected to generate due

to its content.

14

This case presents no such concerns. Neither on its face,

nor in its application, does the Executive Order take into

account listeners’ reactions to the content of the message.

It makes no difference that Hobbs’s messages concerning the

plight of homelessness are more likely to cause hostility or

sympathy. Nor does the “enticement” element in the

Executive Order raise the issue of “listener’s reaction”. This

factor has no relation to the content of the message or the

ideas conveyed by the expression. The question of application

of the Prohibition of the Executive Order turns only on the

manner by which the expression is conveyed, i.e., props and

equipment, as the majority of the Second Circuit held and as

quoted above.

Petitioner also raises the concern that courts and

governmental bodies will be “improperly incentivized” to

use listeners’ reactions in fashioning or reviewing restrictions

on speech. Pet. at 10. This dire prediction will not come to

pass as it results from a misreading of the Second Circuit’s

opinion, as discussed above, and an exaggeration of the

circumstances to which it applies. The fair reading of the

Second Circuit’s decision compels the conclusion it follows

the Court’s precedents with respect to manner of expression

regulation only, based upon the relation between the

recognized risk of recidivism and the particular conduct in

which they seek to engage.

Il. There Is No Merit To Petitioner’s Claim That The

Second Circuit Has Created A New First Amendment

Principle In Its Secondary Effects Analysis

There is no merit to Petitioner’s claim that the Second

Circuit has created a “new First Amendment principle” that

15

“innocent speech can be prohibited or restricted because the

positive impact of it might subsequently be used to facilitate

criminal activity by the speaker”. (Pet. at 11-12, 14). This

argument, like the one relating to the Second Circuit’s holding

on the content-neutral issue, is based upon a

mischaracterization of the decision, as well as an illusory

conflict with Ashcroft v. Free Speech Coalition, 535 U.S.

234 (2002), and other cases.

Free Speech Coalition is distinguishable for at least three

reasons. First, it involved a total ban on speech of specified

content (i.e. “virtual” child pornography). Here, however,

any restriction on expressive conduct imposed by the

Executive Order is limited to a particular group of individuals

(persons convicted of a sexual offense against a minor), and

then, only when such persons engage in a particular manner

of expression. As the courts below observed, the Executive

Order does not prevent Hobbs from expressing his views in

words or expressive action. App. 32a (Second Circuit);

App. 55a (district court).

Second, the Court in Free Speech Coalition noted that

“the Government cannot ban speech fit for adults simply

because it may fall into the hands of children.” 535 U.S. at

252. Here, however, the Executive Order does not restrict a

convicted sex offender’s communications with adults, nor

even with children, except under limited circumstances, as

the Second Circuit noted. App. 38a - 39a.* Third, the majority

* Discussion of this point should not lose sight of the fact that

it defies common sense that Hobbs actually seeks to address issues

such as homelessness or governmental inefficiency when he does

his act next to a sign providing “a theater experience for 3 and 4 year

olds.” This point was not lost on the Second Circuit and the decision

notes the incongruity of the purported purpose of the expression and

its “plainly child-oriented” manner. App. 40a.

16

noted that two of the principal arguments for the ban on

virtual child pornography (i.e., to prevent pedophiles from

using such images to encourage children to participate in

sexual activity and to prevent pedophiles from “whet[ting]

their own sexual appetites” by using such images) relied on

a harm [that] flows from the content of the images, not from

the means of their production.” 535 U.S. at 241-42. The

harmful effects discussed in Free Speech Coalition flowed

from the speech itself. Here, the harmful effects are unrelated

to the content of the message; indeed, for purposes of the

Executive Order, the content — whether about homelessness,

government bureaucracy, or any other topic — is wholly

irrelevant. Rather, the harmful effects flow from conduct,

the fact that a person convicted of a sexual offense against a

minor has a high rate of recidivism Gee, e.g., Smith v. Doe,

538 U.S. 84 (2003)) and such person’s use of props or

equipment in connection with a performance that entices

children to congregate.

The Second Circuit decision does not create a new First

Amendment principle. It merely follows a well-charted line

of cases upholding time, place, or manner restrictions on

expressive conduct. The Executive Order constitutes a

“a restriction only on the manner of the speech and is

designed to prevent harmful secondary effects unrelated to

its content.” App. 33a. Thus, it is necessary to misread the

decision to conclude that it stands for the principle whereby

“innocent” speech could be restricted based upon the positive

impact of the content of such speech in facilitating criminal

acts. Pet. at 14. This concern is wholly illusory. For example,

as to Hobbs, no one has suggested that the content of

Petitioner’s message about homelessness (to take one of his

examples) in any way facilitates his propensity to commit

future criminal acts. Nor does the case involve the “mere

17

tendency of speech to encourage unlawful acts,” Free Speech

Coalition, 535 U.S. at 253. It is not the message that creates

the risk of unlawful acts, but the manner of the expression —

conduct — that creates undesired secondary effects. In this

regard, the Second Circuit’s reference to the secondary effects

of the expression is no different than such considerations in

the Court’s cases on attempts to regulate nude dancing

establishments, including City of Los Angeles v. Alameda

Books, Inc., 535 U.S. 425 (2002), City of Erie v. Pap’s A. M.,

529 U.S. 277 (2000), and City of Renton v. Playtime Theatres,

Inc., 475 U.S. 41 (1986).

iil. The Court Below Applied The Appropriate Standard

of Evidence With Respect To The Secondary Effects

Analysis

Petitioner assigns as error and a separate ground for

granting the Petition that the Second Circuit did not require

“actual evidence” (or “actual proof”) the secondary effects

of the harmful conduct would be deterred or reduced in a

material way by the Executive Order. Pet. at 15. In so arguing,

Petitioner both advances a standard this Court has not adopted

— indeed, a standard a plurality of the Court has rejected —

and fails te credit the Second Circuit’s discussion of the issue,

in which it specifically adverts to this Court’s significant

rulings and finds that the required degree of evidence with

respect to secondary effects was satisfied.

In Alameda Books, a plurality of the Court held,

“our cases require only that municipalities rely only upon

evidence that is ‘reasonably believed to be relevant’ to the

secondary effects that they seek to address.” Jd. at 442

(quoting City of Erie v. Pap’s A.M., 529 U.S. 277 (2000). In

18

so holding a plurality of the Court specifically declined to

impose a higher evidentiary standard.

In Renton, we specifically refused to set such a

high bar for municipalities that want to address

merely the secondary effects of protected speech.

We held that a municipality may rely on any

evidence that is “reasonably believed to be

relevant” for demonstrating a connection between

speech and substantial, independent government

interest. [citations omitted].

Id. at 438-

Prior to Alameda Books, the foregoing evidentiary

standard had been adopted by a plurality of the Court in City

of Erie v. Pap’s A.M., 529 U.S. 277 (2000), with respect to a

‘> The plurality also specifically declined to adopt the evidentiary

standard advanced by Justice Souter in his dissent (joined in by

Justices Stevens and Ginsburg and Justice Breyer, in part), as follows:

In effect, Justice Souter asks the City to demonstrate,

not merely by appeal to common sense, but also with

empirical data, that its ordinance will successfully lower

crime. Our cases have never required that municipalities

make such a showing, certainly not without actual and

convincing evidence from plaintiffs to the contrary.

See, e.g., Barnes, supra, at 583-584, 111 S. Ct. 2456

(Souter, J., concurring in judgment). Such a requirement

would go too far in undermining our settled position that

municipalities must be given a “reasonable opportunity

to experiment with solutions to address the secondary

effects of protected speech. [citations omitted].”

Alameda Books, 535 U.S. at 439.

19

challenge to an ordinance that regulated nude dancing in Erie

establishments. In that case, as in Alameda Books, a plurality

of the Court declined to adopt a higher evidentiary standard

advocated by Justice Souter. The Court rejected the notion

Erie had to conduct new studies and stated, “Even in cases

addressing regulations that strike closer to the core of First

Amendment values, we have accepted a state or local

government’s reasonable belief that the experience of other

jurisdictions is relevant to the problem it is addressing.”

Id. at 297.

The plurality also noted that the City of Erie relied on

its own findings on the secondary effects question. First, the

Erie City Council expressed, in the preamble to the ordinance,

its findings for over a century that lewd and immoral activities

are highly detrimental to the public health, safety and welfare

and there is a connection. Second, the Court noted that the

members of the Erie City Council, who are familiar with

downtown Erie, possessed pertinent first-hand information

as to conditions at and around nude dancing establishments

upon which to make informed judgments as to their secondary

effects.

The plurality in City of Erie also noted that United States

v. O'Brien, 391 U.S. 367 (1968), was particularly instructive

on the evidentiary issue, where, as here, the ordinance is on

its face content-neutral. “The Court [in O’Brien] did not

require evidence that the Selective Service System would be

jeopardized by the knowing destruction or mutilation of draft

cards... . There was no study documenting instances of draft

card mutilation or the actual effect of such mutilation on the

Government’s asserted efficiency interests.” Jd. at 298-99.

Similarly, in Clark v. Community for Creative Non-Violence,

468 U.S. 288, 299 (1984), there was no study documenting

20

the effectiveness of the regulation on the goal of conserving

park property, which was the rationale behind the prohibition

on overnight camping in Lafayette Park.

The plurality opinion in City of Erie v. Pap’s A.M., again

as in Alameda Books, specifically declined to adopt the

position advocated by Justice Souter (concurring in part ant

dissenting in part) for a more exacting evidentiary standard

for the harm claimed to flow from the expressive activity

and the alleviation expected from the restriction imposed,

even in intermediate scrutiny cases. Jd. at 313.°

The Second Circuit held the County met the evidentiary

standard based upon Alameda Books. It was permissible for

the County “to conclude that secondary-effects-oriented

regulations are necessary” based upon the information relied

upon by the Court in Smith v. Doe, 538 U.S. 84, 103 (2003),

regarding recidivism rates of convicted sex offenders (which,

the court below noted, quoted a 1997 United States

Department of Justice report), as well as the County’s expert.

App. 34.

It is highly significant Hobbs offered no independent

expert information in these proceedings.’ It is insufficient

* Justice Souter recognized that “[a] lesser showing may suffice

when the means-end fit is evident to the untutored intuition.” City of

Erie v. Pap’s A.M., 529 U.S. at 317 n.1. Justice Souter also recognized

the calculus might be affected by the nature of the legislating

institution, the “novelty and plausibility of the justification raised”

(quoting United States v. O’Brien, 391 U.S. 367, 391 (1968)) and

the nature of the regulation. /d.

” Hobbs cited other United States Department of Justice studies

and law review articles to the court below to challenge the recidivist

data the Court relied upon in Smith v. Doe, but offered no independent

data and no expert opinion in support of his efficacy argument.

— —— a aE” Sis ee

21

for Hobbs to simply assert the County’s evidence on this point

was lacking, as the Court stated in an analogous situation in

City of Erie,

Yet to this day, Kandyland has never challenged

the city council’s findings or cast any specific

doubt on the validity of those findings. Instead, it

has simply asserted that the council’s proof was

lacking. In the absence of any reason to doubt it,

the city’s expert judgment should be credited.

529 U.S. at 298.

Hobbs’s argument there was no evidence as to the

efficacy of the Prohibition, creating a conflict with Alameda

Books and City of Erie is similarly without merit. Pet. at 16,

n. 4, 19. The Court’s decisions in Smith v. Doe, 538 U.S. 84

(2003) and McKune v. Lile, 536 U.S. 24 (2002), among

others, recidivist data cited in those cases, and the County’s

expert provided sufficient evidentiary basis as to the efficacy

of the Prohibition in limiting opportunities for convicted sex

offenders to lure children to them. As the court below

observed, “Hobbs’s ‘efficacy’ challenge is thus meritless and

instead simply confirms there are other means by which

Hobbs can deliver his messages.” App. 36a.

The circuit court decisions relied upon by Petitioner on

this point actually support the conclusion reached by the

Second Circuit. In Essence, Inc. v. City of Federal Heights,

285 F.3d 1272 (10" Cir. 2002), the court accepted the

evidentiary basis for the city’s interest in limiting the harmful

secondary effects of nude dancing for people under 18 years

old. Indeed, it was noted, “This circuit has declared that a

city’s stated purpose to limit the impact of secondary effects

22

must be credited and ‘accorded high respect.’ [citation

omitted]”. /d. at 1285. At the same time, however, the court

found two affidavits (one from a former nude dancer and the

other from the mayor pro tem that the court found conclusory

and without factual foundation) insufficient to create a

genuine issue of material fact to defeat a summary judgment

motion. That case is inapplicable here, as it is indisputable

the County has a compelling interest in protecting children

from the harmful secondary effects of sexual predation by

convicted sex offenders.

In Giovani Carandola, Ltd. v. Bason, 303 F.3d 507

(4" Cir. 2002), the Fourth Circuit Court of Appeals accepted

the evidence of harmful secondary effects of nude dancing

establishments (e.g. at bars and clubs), as was deemed

acceptable in City of Erie and Alameda Books. However, the

regulation under review was not limited to bars and clubs,

but would have been applicable to a wide range of locations

and subject matters, including, “a political satire, a

Shakespeare play depicting young love or a drama depicting

the horrors of rape”. 303 F.3d at 516. The court found there

was no evidence at all as to the efficacy of the patently

overbroad regulation. *

Petitioner’s arguments on this point are illustrative of

the Petition as a whole. Petitioner strains to misread the

Second Circuit decision in an attempt to create conflict where

none exists. The Second Circuit decision follows settled

precedents in all respects. No grounds exist to grant the

Petition.

* Indeed, the court noted that due to the “undiscriminating terms

of its restrictions ... [it] would also punish the owners of the

Charlotte Coliseum for allowing basketball players or coaches to

give a congratulatory pat on the bottom during a game.” 303 F.3d at

516, n. 4.

23

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

BRIAN O’ DwYER

Counsel of Record

Gary SILVERMAN

O’ Dwyer & BernstTIEN, LLP

52 Duane Street, Sth Floor

New York, NY 10007

(212) 571-710

Attorneys for Respondents

PRD 2: