Geller v. Cuomo

Background

Pamela Geller sued Andrew Cuomo, in his official capacity as Governor of New York, Bill de Blasio, individually and in his official and mayoral capacities, and Dermot Shea, individually and in his official capacity as New York City Police Commissioner. She challenged New York State and New York City restrictions on non-essential gatherings during the COVID-19 pandemic under the First and Fourteenth Amendments.

Geller sought to organize a peaceful protest of between 25 and 100 people on New York City streets and sidewalks. She said participants would wear face coverings, observe social distancing, and hold signs. When she filed this case, New York’s rules allowed non-essential outdoor gatherings of up to 50 people in regions that had reached the fourth phase of the State’s reopening plan, including New York City.

Geller argued that officials had treated protests connected to the Black Lives Matter movement more favorably than the protest she wanted to organize. The opinion states that those protests were spontaneous, that no permits were issued for them, and that officials had not arrested peaceful protesters simply for violating the gathering restrictions after those demonstrations began. Geller had not applied for a permit and had not interacted with police or other officials about her planned protest.

Earlier related proceeding

In a prior related proceeding, Geller challenged an earlier and more restrictive gathering ban. That court denied emergency relief after finding that the restriction was content-neutral and reasonably and narrowly tailored to protecting public health. The earlier case ended in judgment for the City at the parties’ request.

Legal standard

To obtain a preliminary injunction, a plaintiff generally must show a likelihood of success on the merits, likely irreparable harm without an injunction, that the balance of equities favors relief, and that an injunction serves the public interest. Because Geller sought relief that would change the existing situation and would provide much of the relief she sought, the court applied a heightened requirement that she show a clear or substantial likelihood of success.

First Amendment facial challenge

A facial challenge attacks a law or rule generally, rather than only as applied to a person’s particular circumstances. The court held that issue preclusion, also called collateral estoppel, barred Geller from relitigating her similar facial First Amendment challenge. Issue preclusion prevents a party from litigating an issue that was actually and necessarily decided earlier when the party had a full and fair opportunity to litigate it.

The court also stated that, even if it considered the facial challenge on the merits, Geller had not shown a clear likelihood of success. It concluded that the gathering limit was content-neutral because it applied to non-essential gatherings without regard to the messages being expressed. The court found that the limit had a real and substantial connection to protecting public health, was narrowly tailored to advancing that interest, and left alternative ways for Geller to communicate, including protests of up to 50 people, social media, articles, and television appearances.

The court rejected Geller’s argument that officials’ statements supporting peaceful Black Lives Matter protests showed viewpoint discrimination. It interpreted those statements in the context of spontaneous demonstrations, some of which involved violence and property damage, and concluded that the statements could reasonably be understood as acknowledging the demonstrations rather than actively encouraging them. The court also accepted that police needed flexibility to make real-time enforcement decisions during large and potentially volatile gatherings.

As-applied challenge and standing

An as-applied challenge asks whether a rule violated a particular person’s rights in the circumstances presented. The court held that Geller lacked standing to bring such a challenge because she had not applied for a permit, had abandoned her plans before any interaction with police, and had never received a threat of enforcement. The court distinguished cases in which plaintiffs had been threatened with arrest or faced a credible threat of prosecution.

The court added that, even if it considered Geller’s as-applied claim, she had not shown a clear likelihood of success. The planned protest involved political speech, which receives strong First Amendment protection, but the court said political speech may still be subject to reasonable, content-neutral time, place, and manner limits that serve an important government interest and leave other communication channels available.

Selective-enforcement equal-protection claim

The court separately addressed Geller’s claim that the gathering restrictions were selectively enforced against her views. To state such a claim, a plaintiff must show that she was treated differently from a similarly situated person and that the difference was based on an impermissible consideration, such as an intent to punish or inhibit constitutional rights.

The court found that Geller had not identified a similarly situated comparison. Her proposed protest was organized, while the Black Lives Matter protests were spontaneous. The court also noted that Geller had not interacted with officials or police and found that the officials’ statements did not show an effort to suppress opposition to the gathering restrictions or to allow only favored messages.

Disposition

The court concluded that Geller had not shown a clear or substantial likelihood of success on her First Amendment or equal-protection claims. It therefore denied her motion for a preliminary injunction. At Geller’s request, it also denied her motion for injunctive relief pending appeal. The Clerk was directed to terminate the motion.