Anti-Gay Protestor | Lease Language | Works of Art

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Anti-Gay Protestor Was Protected By The U.S. Constitution

Anti-Gay Protestor Was Protected By The U.S. Constitution

In Deferio v. City of Syracuse, an upstate federal court recently granted the right of a protestor to protest at a gay pride parade under the Constitutional principle that, as citizens, we “must tolerate insulting, and even outrageous, speech in order to provide ‘adequate “breathing space” to the freedoms protected by the First Amendment.’”

The plaintiff, James Deferio, a self-described “Christian evangelist” who “engages in public ministry,” commenced the action against the City of Syracuse and three of its police department personnel under 42 U.S.C. §1983, alleging violations of his First Amendment right to demonstrate at the annual Central New York Pride Week. He alleged that in both 2014 and 2015, on the day of the “Pride Parade and Festival,” he was barred from demonstrating on the public sidewalk immediately adjacent to the festival’s entrance, and instead was forced to move across the street — away from pedestrian traffic into and out of the festival. He alleged that in his public ministry he attempts to address “religiously sensitive, but important topics” at public events — in this case, at the “Central New York Pride Festival and Parade” in Syracuse. The Court noted that although “not explicitly stated in his papers, this ‘public ministry’ appears to partially stem from or consist of anti-LGBTQ sentiments.”

Five days after filing his Complaint, the plaintiff asked the federal Court for a preliminary injunction concerning the upcoming 2016 “Pride Parade and Festival,” which was scheduled to occur on June 18, 2016, prohibiting the enforcement of a “40-foot buffer zone” around the festival entrance.

This “40-foot buffer” zone was a policy that came from the Corporation Counsel’s office, which prohibited anyone from protesting and using any kind of sound amplification device around the entrances to the parade and festival.

In addressing the plaintiff’s application, the Court held that a federal District Court has wide discretion in determining whether to grant preliminary injunctive relief. Generally, “a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” The applicant must establish that, without the preliminary injunction, he or she “will suffer ‘an injury that is neither remote nor speculative, but actual and imminent and that cannot be remedied by an award of monetary damages.’”

As for the required showing of a “likelihood of success on the merits,” the Court reasoned that it “looks to whether the evidence presented demonstrates that he is likely to prevail at trial on a claim concerning the conduct complained of — in this case, the enforcement of a buffer zone surrounding the entrance to the Pride Festival. Because defendants agree that plaintiff’s speech is entitled to First Amendment protection the question in this case is whether or not the buffer zone is a permissible restriction on plaintiff’s right to free speech. Because such a buffer zone would restrict plaintiff’s right to expression with in a traditional public forum, and is not narrowly tailored to promote a substantial governmental interest, plaintiff has established a likelihood of success on the merits. The Court noted that “members of the public retain strong free speech rights when they venture into public streets and parks, which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’ A sidewalk is ‘the “prototypical” traditional public forum,’ and defendants again agree that this analysis applies to ‘the sidewalk in this case.”

Even in a public forum, however, the government may still “impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” As such, the buffer zone surrounding the entrances to the Pride Festival would be constitutionally permissible only if it were “content neutral, narrowly tailored, and permitted alternative channels of communication.”

Here, the Court found that the buffer zone is not narrowly tailored to promote a significant governmental interest. “The interests asserted by defendants include ‘maintaining peace and order in the community,’ preventing violence, and avoiding congestion. Undoubtedly, these are legitimate governmental interests.” But the question here is whether the buffer zone policy was “narrowly tailored to achieve these goals without unduly burdening plaintiff’s speech.” The Court reviewed un-rebutted video evidence of prior years indicating that the buffer zone policy burdened substantially more speech than was necessary to further the government’s legitimate interests. “While some observers circled around Plaintiff during the events in question, this did not appear to meaningfully block pedestrian traffic or create a significant security risk.”

The defendants also attempted to paint a specific “risk” to the plaintiff himself, based on the content of his speech. However, the Court rejected this because “Constitutional rights may not be denied simply because of hostility to their assertion or exercise. Significantly less restrictive means are available for defendants to achieve their objectives.”

As for the “irreparable harm” requirement, the Court reasoned that “where a plaintiff alleges injury from a rule or regulation that directly limits speech, the irreparable nature of the harm may be presumed. This presumption applies to this case, as the enforcement of a buffer zone around the entrance of the Pride Festival would serve to directly prevent Plaintiff from engaging in protected speech within the affected area. *** There is no question of chill when the Plaintiff’s speech has already been frozen: he is not alleging that Defendants’ policy dissuaded him from speaking, but rather that — operating under color of law — they ordered him to move across the street. The enforcement of a buffer zone surrounding the entrances to the 2016 Pride Festival would definitively prevent Plaintiff from exercising his right to demonstrate there, and thus would result in irreparable harm.”

As for the “balancing of equities,” the Court reasoned that “in determining whether the balance of equities tips in plaintiff’s favor, the Court ‘must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.’ Here, the hardship faced by plaintiff is substantial: the loss of his right to demonstrate in a traditional public forum. On the other side, the hardship imposed on defendants is relatively minimal, since all the requested injunction requires is for them not to ban plaintiff from the areaon the basis of one policy that the Court has determined likely to be  unconstitutional.”

As for the last required showing, that an injunction is in the “public interest,” the Court concluded that “the issuance of the requested in junction serves the public interest. While the Court generally assumes that the acts of a governmental entity are aligned with the interests of the public it serves, that is not the case here. ‘Securing First Amendment rights is in the public interest,’ and it is decidedly against the public interest to abide the continued enforcement of an unconstitutional policy or law.”

Lease Language Saves the Day

Lease Language Saves the Day

In 315 Hudson LLC v. Five Bells<, Inc., f/k/a Amsco School Publications, Inc, a landlord brought an action to recover unpaid rent and attorneys’ fees under a commercial lease between it and its former tenant that had vacated the rented space early. This case is a good example to landlords as to why the typical default
language in commercial leases should remain during the lease negotiation phase.

The landlord moved for summary judgment, seeking judgment against the tenant on the first cause of action in the amount of $335,400.68 for fixed rent due from September 2015 through December 2015, together with interest from September 1, 2015, and in the amount of $167,700.34 for fixed rent due from January 2016 through February 2016, together with interest from September 1, 2015. The landlord sought to sever and discontinue without prejudice the remainder of the second cause of action which sought fixed rent for March 2016 through December 2021, which was the end of the lease term. It also sought a judgment in the amount of $8,837.50 in attorneys’ fees.

Under the lease the tenant agreed to remain liable for rent and other damages even if it vacated the premises before the expiration of the lease term. It was alleged that the tenant vacated and surrendered the keys to the premises without the landlord’s consent and failed to honor its contractual obligations to pay fixed rent for the six months prior to vacating the premises.

Specifically, as with most commercial leases, it provided that rent must be paid “on the first day of each month during said term …without any set off or deduction whatsoever.” The Lease also expressly stated that if the tenant vacates the premises prior to the expiration of the term, the tenant would remain liable for damages in the amount of rent and additional rent then due for the remainder of the term. Article 18 of the lease, entitled “Remedies of Owner and Waiver of Redemption,” stated that if the tenant defaults under the Lease:

“Tenant or the legal representatives of Tenant shall also pay Owner as liquidated damages for the failure of Tenant to observe and perform said Tenant’s covenants herein contained, any deficiency between the rent hereby reserved and or covenanted to be paid and the net amount, if any, of the rents collected on account of the subsequent lease or leases of the demised premises for each month of the period which would otherwise have constituted the balance of the term of this lease. The failure of Owner to re-let the premises or any part or parts thereof shall not release or affect Tenant’s liability for damages…Any such liquidated damages shall be paid in monthly installments by Tenant on the rent day specified in this lease and any suit brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Owner to collect the deficiency for any subsequent month by a similar proceeding…Owner shall in no event be liable for any way whatsoever for failure to re-let the demised premises…”

Additionally, the Lease permitted the landlord to recover attorneys’ fees incurred as a result of the tenant’s breach.

The Court found the landlord had set forth sufficient evidence to establish there was a binding lease agreement that tenant breached by failing to make payments under the lease. The tenant argued that summary judgment should be denied because the landlord renovated the premises after it vacated, constituting an issue of fact as to whether the landlord’s conduct in making the renovations constituted an acceptance of the tenant’s surrender of the premises.

The Court rejected the tenant’s argument by relying upon the following language in the lease (language found in most commercial leases):

“Owner, in putting the demised premises in good order or preparing the same for re-rental may, at the Owner’s option, make such alterations, repairs, replacements, and/or decorations in the premises as Owner, in Owner’s sole judgment, considers advisable and necessary for the purpose of re-letting the demised premises, and the making of such alterations, repairs, replacements and/or decorations shall not operate or be construed to release Tenant from liability hereunder as a foresaid…”

The Court directed a hearing as to the reasonable amount of attorneys’ fees and otherwise granted the landlord a judgment for damages in the amount of the rent arrears then due and owing. The landlord retained the right under the lease to sue again for rent arrears accruing thereafter until the end of the lease term in 2021.

Display Of Works Of Art Depicting Jesus Christ Not Discriminatory

Display Of Works Of Art Depicting Jesus Christ Not Discriminatory

In Joseph v. The Metropolitan Museum of Art., Metropolitan Museum of Art (Met) visitor Renel Joseph, of “Hebrew and African descent,” claimed offense and psychological in jury after encountering four works of art by Italian Renaissance and Baroque painters depicting Jesus Christ in a manner he contended was historically inaccurate, anti-Semitic, and racist. Joseph claimed the Met’s public display of the subject paintings violated the Civil Rights Act and the First Amendment of the United States Constitution.

Joseph, a pro se litigant, alleged that he visited the Met on November 26, 2015, and during that visit, he encountered four works of art depicting Jesus Christ: (1) “The Resurrection,” created by Italian artist Perugino circa 1500; (2) “The Crucifixion,” created by Italian artist Francesco Granacci between 1500 and 1510; (3) “The Miracle of the Loaves and Fishes,” created by Italianartist Tintoretto between 1545 and 1550; and (4) “The Holy Family with Angels,” (depicted) created by Italian artist Sebastiano Ricci circa 1700. These four pieces of artwork are part of the Met’s permanent collection. Joseph alleged that he was offended and suffered various psychological harms upon viewing the artwork because they “depict the historical and public figure of Hebrew descent, Jesus Christ, as a blonde haired, fair-skinned, Aryan adult male, despite that an adult male native to the Middle-Eastern region of Hebrew descent… would not be genetically disposed to possess such features.” He further alleged that the “flagrant” public display of the centuries-old paintings in a museum is “anti-Semitic, racist and offensive” because the display “endorses the cultural theft of the historical and public figure of Jesus Christ” from “the Hebrew people and the people of Middle-Eastern descent.” In addition to suing the Met, he sued the City of New York for “using public funds to house the Racist Artworks at the Met.”

Upon a motion to dismiss the complaint, a federal Court dismissed the suit, finding Joseph was not deprived of equal use and enjoyment of the Met. It reasoned that “Title II of the Civil Rights of Act of 1964 entitles all persons ‘to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation…without discrimination or segregation on the ground of race, color, religion, or national origin.’ ‘The overriding purpose of Title II was to remove the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public.’ A plaintiff bringing a claim under Title II ‘must allege facts which show that he was deprived of equal use and enjoyment of a covered facility’s services and facts which demonstrate discriminatory intent.’ The parties did not dispute that the Met is a place of public accommodation within the meaning of the statute.” The Court found that nowhere in the complaint did Joseph allege that he was treated differently than other museum visitors on the basis of his race, color, religion, or national origin. “Although he may have found the art on display offensive,” the Court wrote, he did “not allege that he was denied equal opportunity to view and enjoy — or in his case, disapprove of the artwork, and therefore lacks a cognizable claim under Title II.” Nor did Joseph plausibly allege that the display of the subject sixteenth and eighteenth century paintings was an act of intentional discrimination. Although the paintings may be historically inaccurate, he could not plausibly allege their display with the purpose of adversely affecting members of a protected group. Further, Joseph failed to allege state action. Despite claiming the City of New York financially supports the Met, which he further claimed operates on city-owned land, Joseph’s complaint did not allege the city influenced the Met’s decision to display any particular work of art.

The Court went on to discuss Joseph’s claim under Title VI of the of the Civil Rights Act of 1964 which provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” “To state a claim for a violation of Title VI, ‘a plaintiff must show, through specific factual allegations, that (1) the defendant discriminated on a prohibited basis; (2) the discrimination was intentional; and (3) the discrimination was a substantial or motivating factor for the defendant’s action.’ In order to establish intentional discrimination, Plaintiff ‘must show that the decisionmaker selected or reaffirmed a particular course of action at least in part “because of” not merely “in spite of” its adverse effects upon an identifiable group.’” The Court found that Joseph also failed to “plausibly allege that the display of sixteenth and eighteenth century paintings is an act of intentional discrimination. Although the paintings may be historically inaccurate, Plaintiff cannot plausibly allege that the artwork was displayed at the museum with the purpose of adversely affecting members of a protected group.”

As for his First Amendment Claim, the Court held that Joseph failed to allege “state action.” Joseph claimed that the City, by providing financial support to the Met, engaged in discriminatory speech in violation of the First Amendment. “The First Amendment is applicable to the States through the Due Process Clause of the Fourteenth Amendment. Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action.” In order to demonstrate state action, “a plaintiff must  establish both that his alleged constitutional deprivation was caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible, and that the party charged with the deprivation is a person who may fairly be said to be a state actor.” The actions of a “nominally private entity are attributable to the state (1) when the entity acts pursuant to the coercive power of the state or is controlled by the state; (2) when the state provides significant encouragement to the entity, the entity is a willful participant in joint activity with the state, or the entity’s functions are entwined with state policies; or (3) when the entity has been delegated a public function by the state.” Despite claiming the City of New York financially supports the Met, which he further claimed operates on city-owned land, Joseph’s complaint did not allege the city influenced the Met’s decision to display any particular work of art.

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