Women for America First v. De Blasio

Background

Women for America First sued Bill de Blasio, in his official capacity as Mayor of New York City, and Polly Trottenberg, Commissioner of the New York City Department of Transportation. The complaint alleged that defendants violated the organization’s First Amendment rights through 42 U.S.C. § 1983, a federal law that allows people to seek relief for violations of federal rights by state actors.

The organization asked to paint a mural stating, “Engaging, Inspiring and Empowering Women to Make a Difference!” on Fifth Avenue or another proposed city location. The Department of Transportation denied the request, stating that it did not permit installations on city roadways open to traffic. The city had allowed or preserved eight “Black Lives Matter” murals on city streets, and city officials had participated in creating some of them.

The organization moved for a preliminary injunction. It sought an order allowing it to paint its own mural or, alternatively, an order barring defendants from painting or maintaining any murals on New York City streets and requiring the city to paint over the existing murals. Defendants moved to dismiss the complaint.

Standing

The court held that the organization had standing to seek an injunction requiring defendants to permit it to paint its own mural. The denial of its request was a sufficiently concrete injury, and that injury was traceable to defendants’ decision.

The court held that the organization did not have standing to seek an order prohibiting or removing all street murals. That relief would not remedy the organization’s specific injury—the denial of its request to paint its own message. The court therefore had jurisdiction over the First Amendment claim and requested relief concerning the organization’s own mural, but not over the broader request concerning all city murals.

Preliminary injunction

A preliminary injunction is an early court order requiring or forbidding conduct before the case is fully resolved. Because the requested injunction would provide substantially all of the relief sought in the lawsuit, the organization had to make a strong showing of irreparable harm and a clear or substantial likelihood of success on the merits.

The court concluded that the organization had not made that showing. It held that the surfaces of New York City streets are nonpublic forums: government property that is not traditionally open to public expression and has not been designated for that purpose. In a nonpublic forum, speech restrictions are permissible if they are reasonable and viewpoint-neutral.

The court rejected the organization’s argument that city streets were traditional public forums for painting private messages. It distinguished streets as places for public assembly and communication from the use of street surfaces as message boards, noting that city law generally prohibited writing, painting, or drawing on city streets without express permission.

The court also rejected the argument that the city’s approval of the “Black Lives Matter” murals created a designated public forum requiring the city to accept different viewpoints. The court found that the murals were government speech rather than private speech. It relied on the city’s preservation of the murals, officials’ statements that the murals communicated New York City’s values, and the government’s involvement in creating and funding some of the murals.

Because the murals were government speech, the court held that the city’s actions did not open street surfaces to private speech or require viewpoint neutrality under the public-forum analysis. The organization also had not shown a substantial likelihood of proving that the denial of its mural request was unreasonable or motivated by the message’s viewpoint. The court noted that policies restricting murals on streets open to traffic could serve traffic-safety purposes.

The court further held that the requested relief was not in the public interest. The organization’s own submissions described possible traffic disruptions, driver distraction, safety risks, and increased crowds. The broader request to prohibit all city murals also would interfere with the government’s ability to communicate with the public and, in any event, was not supported by standing.

The court denied the motion for a preliminary injunction.

Motion to dismiss

For purposes of a motion to dismiss, the court generally accepts well-pleaded factual allegations as true but does not accept legal conclusions. The court stated that the complaint’s First Amendment claim failed as a matter of law, not merely because its factual allegations were insufficiently plausible.

For the same reasons discussed in the preliminary-injunction analysis, the complaint did not support treating the “Black Lives Matter” murals as private rather than government speech. The complaint therefore did not support applying strict scrutiny to the denial of the organization’s mural request and did not adequately plead a violation of the First Amendment.

The court granted defendants’ motion to dismiss. The conclusion states that the organization’s motion for temporary injunctive relief was denied, defendants’ motion to dismiss was granted, and the Clerk of Court was directed to close the case.