Judge criticizes NYC's 'heavy stream of First Amendment' cases

The Associated Press

03.28.00

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	Photographer Spencer Tunick, right, directs participants in his nude photo shoot, 'Naked Pavement,' in front of gas station at 10th Ave. and 23rd St., in New York, on Oct. 3, 1999. About 200 subjects briefly took their clothes off to be part of Tunick's 'living sculpture.'

NEW YORK — A federal appeals court judge says that the Giuliani administration's "relentless onslaught of First Amendment litigation" has put the courts in danger of having to perform crucial government functions.

Judge Guido Calabresi of the 2nd U.S. Circuit Court of Appeals made the comments yesterday in a 63-page ruling questioning the rationality of the city's efforts to stop photographer Spencer Tunick from taking nude pictures in New York.

Tunick has been arrested five times for staging photographs of dozens of nude people lined up on bridges and streets in Manhattan.

The judge, a former Yale Law School dean, noted the heavy volume of First Amendment cases amassed by Giuliani's administration.

"We would be ostriches if we failed to take judicial notice of the heavy stream of First Amendment litigation generated by New York City in recent years," the judge wrote.

He then noted 18 prominent cases in which the appeals court or a lower federal court had temporarily blocked the city or found one of its actions or policies unconstitutional on First Amendment grounds.

"As a result of this relentless onslaught of First Amendment litigation, the federal courts have, to a considerable extent, been drafted into the role of local licensors for the city of New York," the judge said.

The city's top lawyer said that Calabresi was being a "little bit unfair."

The corporation counsel, Michael Hess, said yesterday that Giuliani merely seeks to ensure that the free speech of one individual or group does not infringe on the constitutional rights of others.

"I think there's too much of an acceptance of these glib comments that the mayor crushes people's First Amendment rights," Hess said.

He said the city had won or gained substantial ground with most of its First Amendment cases.

"The mayor doesn't say you can't talk at all," Hess said.

He cited the case of the Million Youth March through Harlem, whose organizers had intended to close off a 40-block area for 12 hours but were forced through a court case to drastically limit the scope of the protest.

He noted another instance when the courts agreed with the city that cab drivers could not block traffic on Manhattan streets with a rush-hour protest.

The judge said the federal courts had an important responsibility to uphold First Amendment and other constitutional rights, simply balancing those rights against the state's interest in enforcing its laws and values.

"But, in the current and rather remarkable state of affairs in New York City, there is an all too clear danger that the courts, instead of merely interpreting and defending federal rights, may cross the line and become, in effect, an agency that performs crucial local government functions," he said.

The judge's comments came in a ruling in which the federal appeals court sent the case involving the nude photography to the top state court to decide whether the pictures would violate a state law prohibiting public nudity.

The judge said he believed Tunick, the photographer, was entitled to some First Amendment protection.

"One need not contemplate why, on the city's reasoning, a totally naked production of Hamlet could be staged in the middle of Grand Central Station during rush hour, while Tunick's photo shoot had to be banned regardless of the time, place or manner in which it occurred," he wrote.

2nd Circuit Judge Robert Sack wrote in a concurring opinion that he had little doubt that the city could stop a large group of people from undressing on a public street in a residential neighborhood but that it could only do so with a clear law administered constitutionally.

In the absence of an adequate permit system, the city has left it to the police to decide whether to stop Tunick, he said.

"Police censorship is, if anything, more dangerous than a licensing system," he said. "It is pure force unaccompanied by the procedural safeguards that are a constitutionally mandated part of a viable licensing plan."

Tunick's lawyer, Ron Kuby, says his client has continued to take nude photographs in the city but has avoided confrontations with police.

Kuby said the comments by the appeals court made it clear that "continued harassment of Spencer Tunick in violation of his rights will only ensure ultimately that the city finances Tunick's artistic career as a result of his suits for damages."

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