2nd Circuit Upholds Ban on "New Parades" down 5th Avenue, Not Content-Based Regulation

November 17th, 2009

The Second Circuit decided INTERNATIONAL ACTION CENTER v. CITY OF NEW YORK H/T How Appealing. New York City Bans new parades down 5th avenue:

a City regulation (the “Fifth Avenue Rule”) — that began as an informal policy in the 1970s and was codified in 2001 — bans any “new” parades on Fifth Avenue.

A group challenged this ban on content-based regulation, as it “discriminat[es] against parades related to current events.”

The Court rejected this argument:

In contrast, the Fifth Avenue Rule does not seek to regulate messages or distinguish between different types of speech. The Fifth Avenue Rule applies to all “new” parades, irrespective of their content. There is nothing in the record to suggest that the City has banned new parades on Fifth Avenue because it is seeking to restrict speech relating to current  events.

Although the Fifth Avenue Rule may indeed have “an incidental effect on some speakers or messages but not others,” that is true of many content-neutral regulations. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Such an incidental effect does not convert a content-neutral regulation into a  content-based one.

And in an interesting panel arrangement, the court noted that:

  1. * Honorable Denny Chin, United States District Judge for
    the Southern District of New York, sitting by designation. The
    Honorable Sonia Sotomayor, originally a member of this panel, was
    elevated to the United States Supreme Court on August 8, 2009.
    The two remaining members of the panel, who are in agreement,
    have decided this appeal. See 28 U.S.C. § 46(b); Local Rule §