# Opposition Brief — Hobbs v. Westchester County

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 815

## Text

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.

3

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.

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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:

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0867%3A2. Public record. Not legal advice.