Opinion
00 Civ. 3972 (VM).
October 31, 2000.
OPINION
On July 25, 2000, this Court denied a motion by Plaintiff People for the Ethical Treatment of Animals ("PETA") for a preliminary injunction seeking to compel defendants to include a design submitted by PETA, and rejected by defendants, into a public art exhibit known as the CowParade. This event, which involved the placement in publicly and privately-owned areas of several hundred large cow statutes decorated by artists and sponsored by local individuals and companies, was displayed in New York City from June through early September 2000.
The timing of the event and the Court's July 25 denial of PETA's request effectively rendered injunctive relief moot at the conclusion of the CowParade exhibit. PETA nevertheless chose to pursue the action and appeal the Court's ruling because PETA's complaint demanded not only inclusion of PETA's cow design in the CowParade and a declaratory judgment as to PETA's federal and state constitutional rights to exhibit its rejected design in the CowParade, but also asserted a breach of contract claim and concomitant demands for damages, costs, fees and declaratory relief with respect to that claim. However, the Court concluded in its preliminary injunction Opinion that its legal findings as to the application of the CowParade Guidelines, and PETA's conformity with them, in this case would necessarily also resolve the merits of PETA's contract claim. Therefore, at a conference before the Court on August 3, 2000, the parties informally agreed that after a brief period for additional discovery they would file dispositive cross-motions that would, for the most part, incorporate by reference and rely upon the arguments made in their briefs with respect to PETA's preliminary injunction motion.
It was also understood that in order to expedite and facilitate appeal, the Court would, as appropriate, decide the motions primarily by reference to its Opinion and Order denying the preliminary injunction. Accordingly, the Court hereby adopts the statement of facts and the legal reasoning set forth in its Opinion and Order of July 25, 2000 and incorporates them herein as the primary basis for its ruling granting defendants' motions for summary judgment and denying PETA's cross-motion for summary judgment.
PETA's Memorandum of Law in Support of its Motion for Summary Judgment, however, includes several citations to facts and case-law that were not before the Court on the preliminary injunction motion nor addressed in the July 25 Opinion. These additional arguments do not persuade this Court that the reasoning of its earlier determination is erroneous or should be altered. Consequently, the Court here addresses them briefly.
PETA points to several decisions from other courts that it contends support PETA's position that it had a right to participate in the CowParade because the event occurred on public property that constituted a traditional public forum: Irish Subcommittee of Rhode Island Heritage Comm'n v. Rhode Island Heritage Comm'n, 646 F. Supp. 347 (D.R.I. 1986),Eagon v. Elk City, 72 F.3d 1480 (10th Cir. 1996), and Schwitzgebel v. City of Strongsville, 898 F. Supp. 1208 (N.D. Ohio 1995). To the extent that these cases find the relevant forum to be a public forum merely because the events at issue took place on traditional public lands, however, this Court finds them inapposite and unpersuasive. In light of the decisions of the Supreme Court and the Second Circuit that the Court cited in its preliminary injunction Opinion, the forum at issue here was the CowParade exhibit and was a limited public forum (See Opinion, pp. 28-42).
Moreover, the cases cited by PETA do not necessarily conflict with the precedent cited by this Court. Each case is distinguishable in that the event at issue involved the dedication of a traditional public area entirely for a particular use that temporarily would exclude other uses, including public expression that would normally be permitted there as a matter of right. The Courts in those cases, in finding that the forum at issue was a public forum, recognized that the traditional public areas had been reserved for the particular expressive use to the exclusion of equivalent alternatives for communication in those areas. These circumstances differ markedly from those involved here, where PETA was in no way precluded from access to public spaces or from expressing itself in ways normally permitted on public streets and parks of New York City. Rather, the relief sought by PETA here was access to one of the specific cow statues offered on a limited basis by the event sponsors and for the cow decoration PETA proposed to be displayed in some public or private venue as part of the CowParade. PETA's access to traditional public forum space for expressive purposes was neither denied nor otherwise restricted. This case implicates only the extent of a privilege to participate in a public-private enterprise created for limited purposes, with some of the exhibit located on small plots of public land.
PETA's Memorandum also directs the Court's attention to the entrance in the exhibit of several cow designs that allegedly implicate religious or political themes, and purportedly thus suggest inconsistency and unreasonableness in the sponsors' application of the Guidelines. The Court does not find that the inclusion of the cows branded "Holy Cow", "Sacred Cow", "Cowduizm" or "Cow-a-buddha" impermissibly imparts a religious message that would indicate that the Committee was inconsistent with respect to application of that aspect of the Guidelines. Indeed, the choice of titles and intended play on words go to the core of the artful, lighthearted wit and entertainment the exhibit sought primarily to encourage. Further, for reasons discussed in its earlier Opinion, the Court still finds that the Guidelines Committee that decided to ask PETA to modify its rejected design reasonably applied the Guidelines as a whole, utilizing generally understood criteria of appropriateness.
ORDER
For the reasons stated above and in the Court's Opinion and Order dated July 25, 2000, it is hereby
ORDERED that defendants' motion for summary judgment is granted and PETA'S cross-motion for summary judgment is denied; and it is
ORDERED that the Clerk of Court is directed to close this case.
SO ORDERED: