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Media Alerts - Lederman v. New York City Department of Parks and Recreation - Second Circuit
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September 25, 2013
  Lederman v. New York City Department of Parks and Recreation - Second Circuit
Headline: Second Circuit Affirms Dismissal of First Amendment Challenge to City Regulation Limiting Display of Wares in City Parks and Upholds Protective Order Barring Plaintiff Street Artists from Deposing Mayor Bloomberg and Former Deputy Mayor Skyler

Area of Law: First Amendment; Federal Civil Procedure

Issues Presented: Whether a new New York City street vending regulation violated the First Amendment and whether Mayor Bloomberg and former Deputy Mayor Skyler should be compelled to submit to depositions.

Brief Summary: Plaintiff street artists Robert Lederman and Jack Nesbitt appealed the dismissal of their complaint alleging that City regulations limiting the sale of expressive matter in New York City parks violate the First Amendment. They also challenged the United States District Court for the Southern District of New York's grant of a protective order barring them from deposing Mayor Bloomberg and Deputy Mayor Sklyer.

The Second Circuit affirmed the judgment of the District Court, finding that the regulations were content-neutral and did not violate the First Amendment. Additionally, the Second Circuit affirmed the District Court's protective order barring the depositions of Bloomberg and Skyler, holding that in order to depose high-ranking government officials to obtain information regarding reasons for taking official action, plaintiffs must demonstrate exceptional circumstances and no exceptional circumstances existed in this case.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...75e58e5f930/3/hilite/

Extended Summary: Plaintiffs Robert Lederman and Jack Nesbitt are artists who sell their works on sidewalks and in New York City public parks. In 2010, the City revised City vending regulations due to an increase in artists selling their wares in City parks. The new regulations allow for vending without a permit anywhere in most City parks so long as the vendors comply with certain restrictions on the size and placement of vending tables. However, in Union Square Park, Battery Park, High Line Park, and a portion of Central Park, vendors may only vend in designated spots, available on a first-come, first-served basis.

Plaintiffs challenged the 2010 regulations, suing the New York City Department of Parks and Recreation, the Parks Commissioner, and Mayor Bloomberg, alleging that the regulation limiting the sale of expressive matter in New York City parks violates the First Amendment. During discovery, plaintiffs sought to depose Mayor Bloomberg and former Deputy Mayor Skyler but, in June 2011, the United States District Court for the Southern District of New York issued a protective order, barring those depositions. Shortly thereafter, the District Court granted summary judgment to the defendants, holding that the 2010 regulations were content-neutral time, place, and manner regulations that did not violate the First Amendment.

On the First Amendment issue, the Second Circuit affirmed the decision of the District Court, finding that the regulations were content-neutral time, place, and manner restrictions that had been narrowly tailored to serve the City's significant government interest in regulating its parks.

The Second Circuit also went on to uphold the protective order of the District Court. In doing so the Second Circuit adopted the rule set forth by the Supreme Court in United States v. Morgan, that "to depose a high-ranking government official, a party must demonstrate exceptional circumstances justifying the deposition." Here, the Second Circuit found that plaintiffs had not demonstrated exceptional circumstances because they failed to identify specific information needed from Bloomberg and Skyler and they did not allege that Bloomberg and Skyler had either first-hand knowledge of the litigated claims or information that could not be obtained through other means.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...75e58e5f930/3/hilite/

Panel: Judges Cabranes, Hall, and Chin

Date of Issued Opinion: 09/25/2013

Docket Number: 12-4333-cv

Decided: Affirmed

Case Alert Author: Sarah Tuttle

Counsel: Julie Milner, Milner Law Office for Plaintiffs-Appellants. Edward F.X. Hart and Sheryl Neufeld (on the brief) and Julie Steiner (Corporation Counsel of the City of New York) for Defendant-Appellees.

Author of Opinion: Judge Chin

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 09/25/2013 09:10 PM     2nd Circuit  

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