UNITED STATES COURT OF APPEALS DISCUSSION
We review a district court's grant of a preliminary injunction for an abuse of discretion. See Otokoyama Co. v. Wine of Japan Import, Inc., 175 F.3d 266, 270 (2d Cir. 1999). In order to obtain a preliminary injunction, a
party must establish irreparable harm and either (a) a likelihood of success on the merits or (b) a sufficiently serious question going to the merits, with a balance of hardships tipping in favor of the party requesting the
preliminary injunction. See id. Because, however, plaintiff seeks a mandatory injunction, that is, he asks to "stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme,"
Bery v. City of New York, 97 F.3d 689, 694 (2d Cir. 1996), he must establish a clear or substantial likelihood of success on the merits, see Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc.
, 60 F.3d 27, 34 (2d Cir. 1995).
FOR THE SECOND CIRCUIT
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August Term, 1999
(Argued: September 13, 1999 Decided May 19, 2000
Further Concurrence and Dissent Decided: )
Docket No. 99-7823
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SPENCER TUNICK,
Plaintiff-Appellee,
v.
HOWARD SAFIR, in his official capacity as the Police Commissioner of the City of New York, and the CITY OF NEW YORK,
Defendants-Appellants.
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Before: VAN GRAAFEILAND, CALABRESI, and SACK, Circuit Judges
Defendants Howard Safir and the City of New York appealed from the grant of a preliminary injunction
prohibiting them from interfering with plaintiff Spencer Tunick's proposed photo shoot of 75 to 100 nude models arranged in an abstract formation, to occur between 5:30 a.m. and 6:30 a.m. on Sunday, July 18, 1999 in a residential
Manhattan neighborhood. On appeal, this Court certified to the New York Court of Appeals the question of whether New York state law prohibited the proposed photo shoot. The New York Court of Appeals declined certification. By per
curiam opinion, this Court dissolved a stay the Court had entered with respect to the preliminary injunction and remanded the case to the district court with instructions as to the terms of the injunction.
Judge Calabresi concurs in a separate opinion; Judge VanGraafeiland dissents in a separate opinion.
RONALD L. KUBY, New York, NY (Daniel M. Perez, Law Offices of Ronald L. Kuby; Arthur Eisenberg, Norman Siegel, Christopher
Dunn, New York Civil Liberties Union Foundation, on the brief), for Plaintiff-Appellee.
STEPHEN J. McGRATH, Deputy Chief Appeals Division, Corporation Counsel of the City of New York, New York, NY (Michael D. Hess,
Corporation Counsel of the City of New York, Leonard Koerner, Alan Beckoff, of counsel, on the brief), for Defendants-Appellants.
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CALABRESI, Circuit Judge, concurring:
Defendants Howard Safir, in his official capacity as the Police Commissioner of the City of New York, and the City of New York (collectively "the City") appealed from the grant of a preliminary injunction by the
United States District Court for the Southern District of New York (Harold Baer, Jr., Judge). The district court had prohibited the City from interfering with a proposed photo shoot of 75 to 100 nude models arranged in an
abstract formation, to be conducted by plaintiff Spencer Tunick on Sunday, July 18, 1999, between 5:30 a.m. and 6:30 a.m. in a residential Manhattan neighborhood. On July 17, 1999, a three-judge panel of this court stayed the
preliminary injunction, pending an expedited appeal. On appeal, the City, arguing solely that New York state law prohibits public nudity, see N.Y. Pen. Law 245.01 (McKinney 1989), and the promotion thereof, see id.
245.02, contended that the injunction had been erroneously granted. In making this argument, the City maintained that the exemption contained in the state law for "any person entertaining or performing in a play, exhibition, show or entertainment,"
see id. 245.01, 245.02, did not apply to Tunick's proposed photo shoot. To obtain a definitive reading of the state statute, we certified to the New York Court of Appeals the following questions:
(1) whether a
photographic shoot involving 75 to 100 nude models arranged in an abstract formation on a public street constitutes entertainment or performance in a "play, exhibition, show or entertainment" within the meaning of the
exemption to N.Y. Pen. Law 245.01 and 245.02;
(2) if the answer to the first question is yes, whether the exemption to N.Y. Pen. Law 245.01 and 245.02 is limited to indoor activities; and
(3) if the
answer to the first question is no, or if the answers to the first and second questions are both yes, whether N.Y. Pen. Law 245.01 and 245.02, so interpreted, are valid under the Constitution of the State of New York.
Tunick v. Safir, 209 F.3d 67, 68-69 (2d Cir. 2000) ("Tunick I").
Emphasizing "the great value in New
York's certification procedure," the New York Court of Appeals nevertheless declined certification. Tunick v. Safir, No. 86, _N.Y.2d_, 2000 N.Y. LEXIS 886, at *5 (May 12, 2000) ("Tunick II"). It noted,
inter alia, that this case involved a preliminary injunction against an alleged First Amendment prior restraint and therefore required a more "expeditious resolution" than was feasible in light of the state court's
"necessary decisional process." Id. at *4, *5.
On May 19, 2000, this court, with Judge Van Graafeiland dissenting, entered an order, by a per curiam opinion, finding that the district court's grant of the
preliminary injunction was not an abuse of discretion. See Tunick v. Safir, No. 99-7823, _F.3d_, 2000 U.S. App. LEXIS 11088, at *6 (2d Cir. May 19, 2000) (per curiam) ("Tunick III"). We therefore lifted the
stay and remanded the case to the district court to fix a new date for the photo shoot and to specify in the injunction that the City and its agents would be barred from arresting Tunick and the models or otherwise interfering with
the photo shoot until after the photographs had been taken. 2 We also instructed the district court, "in its discretion, [to] include in the
injunction such other conditions as it deems appropriate to ensure a minimal intrusion on the neighborhood and its residents consistent with the taking of the photograph or photographs in issue." Id.
at *7. The per curiam noted that I would thereafter file an opinion explaining my reasons for concurring in the disposition. I now do so.
Violations of First Amendment rights are presumed irreparable. See Elrod v. Burns, 427 U.S. 347, 373 (1976). Accordingly, "the very nature of [Tunick's] allegations"
satisfies the requirement that he show irreparable injury. Bery, 97 F.3d at 694. The only remaining issue, therefore, is whether Tunick has established a clear likelihood of success on the merits. And because the City's sole
argument against the injunction is based on the New York statute regulating public nudity, Tunick has met that burden if there is a clear likelihood that the New York law does not bar the proposed photo shoot.
As noted
above, New York state law forbids public nudity and the promotion thereof, but provides an exception for "any person entertaining or performing in a play, exhibition, show or entertainment." N.Y. Pen. Law 245.01,
245.02. Interpreting this exception to apply only to "performances or exhibitions that [take] place indoors before audiences," the City argues that state law prohibits Tunick's proposed photo shoot, since it is not a
performance or exhibition scheduled to occur indoors before an audience. Appellant's Brief at 14.
Because, on certification, the New York Court of Appeals declined to interpret the relevant sections of the statute at issue,
that task now falls to us. New York's highest court, of course, has a complete right to decline certification; and indeed, nothing requires it to provide any explanation for such a decision. See N.Y. Comp. Codes R. & Regs. tit.
22, 500.17(d).
The issue before us, therefore, is not whether New York State or New York City can constitutionally forbid public nudity. That is a question as to which I need take no stand in this case. The issue in this
case is, rather, whether they have prohibited the kind of nudity that Tunick's photo shoot entails. 5
As noted in my previous opinion in this
case, the answer to that question, which turns on the proper interpretation of the statute before us, is essentially unaided by state court decisions. See Tunick I, 209 F.3d at 71-72 (Opinion of Calabresi, J.). Thus, on the
question of whether the statute prohibits nude photography, I have found only two cases, by municipal courts, that arguably take conflicting positions. Compare People v. Wilhelm, 330 N.Y.S.2d 279, 280-81 (City Ct. Buffalo
1972) (interpreting a predecessor version of the statute that had the same exception as the one in the current version, in a case in which the defendant did not claim that the photo shoot itself was an exhibition or showing, to
prohibit nude photography, but, as a result, finding the statute unconstitutional as applied), with People v. Gilmore, 486 N.Y.S.2d 965, 970 (City Ct. Mount Vernon 1983) (reasoning that the statute was not overbroad because
"persons engaged in the photographing of nude women . . . are not threatened by Penal Law 245.02 ").
In the absence of persuasive decisions, we turn to New York's canons of statutory construction. Under these, we
must begin with "the plain meaning of the words of a statute." In re Hernandez, 93 N.Y.2d 781, 786 (1999). And in doing so, we are to "resort . . . to the natural signification of the words employed."
In re Grand Jury Subpoena Duces Tecum Served on the Museum of Modern Art, 93 N.Y.2d 729, 738 (1999) (quoting Tompkins v. Hunter, 149 N.Y. 117, 122-23 (1896)). "[I]f [those words] have a definite meaning, which
involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning." Id. (quoting Tompkins, 149 N.Y. at 123).
Applying these
canons, I think that Tunick has a clear likelihood of success on his claim that his proposed photo shoot falls within the statutory exception. This is so because the abstract arrangement of 75 to 100 nude models draped across a
public street can more than plausibly be deemed an exhibition, that is, "a public . . . showing . . . esp[ecially] of [a] work[] of art." Webster's Third New International Dictionary
796 (1993). As the plain language of the statute has a definite meaning, and since reading the word "exhibition" to encompass the proposed photo shoot involves no absurdity or contradiction, there is no apparent reason to construe a statute, that nowhere references audiences or locations, to apply, as the City urges, only to exhibitions that occur indoors before audiences.
Moreover, New York's canons of construction require courts "to avoid interpreting [a New York statute] in a way that would render [it] unconstitutional if such a construction can be avoided."
National Ass'n of Indep. Insurers v. State, 89 N.Y.2d 950, 952 (1997) (quoting Alliance of Am. Insurers v. Chu, 77 N.Y.2d 573, 585 (1991) (internal quotation marks omitted)). A reading of the statute to exempt Tunick's
proposed activity from the ban on public nudity not only comports with a highly plausible meaning of the statute, but it also avoids the significant constitutional difficulties that would result from the City's interpretation.
As I noted in my previous opinion:
One need not contemplate why, on the City's reasoning, a totally naked production of Hamlet could be staged in the middle of Grand Central Station during rush hour, while Tunick's
photo shoot had to be banned regardless of the time, place, or manner in which it occurred, to say that the statute as interpreted by the City would raise serious constitutional issues. It is enough to ask why a nude performance
with an audience would be permitted, and a photo shoot in the same place would be prohibited, to suggest that significant constitutional problems, based on irrationality, attend the City's reading of the statute.
Tunick I, 209 F.3d at 84 (opinion of Calabresi, J.). This is not to say, of course, that the statute so read would be unconstitutional. It is only to assert the obvious: an interpretation that treats photographic exhibitions in
the same way as other exhibitions and fails to introduce, entirely absent, indoor/outdoor and audience/non-audience distinctions into the statute avoids possible constitutional problems, while an opposite construction requires that
such issues be faced.
It is also not to say that the City would be constitutionally barred from imposing reasonable time, place, or manner restrictions on the conduct of any photo shoot. See Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 293 (1984). Indeed, if one were to read some implicit limitations into the exception, it would be far more plausible to take the terms "play[s], exhibition[s], show[s] or
entertainment," N.Y. Pen. Law 245.01, 245.02, to mean nude events that occur in controlled circumstances, that is, under conditions that "minim[ize] intrusion[s] on the neighborhood and its residents,"
Tunick III, 2000 U.S. App. 11088, at *7, than it would be to limit the statute -- as the City would have us do -- to exhibitions that occur indoors before audiences without regard to attendant disruptions. Because, however, the
City has made no argument that its efforts to limit Tunick's proposed artistic activity were simply, or even in part, constitutionally permissible efforts to impose reasonable time, place, or manner restrictions, I need not today
consider such an interpretation. I need do no more than conclude that the City's tortured reading, both as a matter of language and of underlying policy, is unlikely to prevail.
Because I believe that Tunick has a clear
likelihood of establishing that state law does not prohibit his artistic endeavor, I concur in our per curiam decision holding that the district court did not abuse its discretion in issuing the preliminary injunction.
I
also concur in our decision to modify the injunction in a manner that effectively allows the City to arrest Tunick or his models after, but not before, the completion of the photo shoot. See Tunick III, 2000 U.S. App. LEXIS
11088, at *7. I do so because the plaintiff conceded at oral argument that his purpose in bringing the litigation was "to enjoin a prior restraint" and not to prevent the City from subsequently seeking to sanction him.
Tr. Oral Arg. at 28. 6 Under the circumstances, there is no reason to consider whether there might be legal grounds to bar the City from
prosecuting plaintiff or his models subsequent to the completion of the photo shoot, and I decline to do so.
There is, moreover, nothing inconsistent between finding "most likely" an interpretation of the New York
statute that allows the photo shoot and permitting such an interpretation to be further tested though arrests after the shoot is completed. This is so for two reasons. First, the question presented on this appeal, since it is from
the grant of a preliminary injunction, is whether Tunick has established a clear likelihood of success on the merits. See Tom Doherty Assocs., Inc., 60 F.3d at 34. Accordingly, in resolving the case, I have expressed my view
only as to the most probable reading of the statute. Second, 245.01 and 245.02 are matters of New York law and, therefore, the interpretation of those sections to which I -- a federal judge -- subscribe is, necessarily,
only a prediction of state law. Cf. Bank of New York v. Amoco Oil Co., 35 F.3d 643, 650 (2d Cir.1994) (stating -- in a diversity context -- that when a federal court applies state law, its role is "carefully [to]
predict how the highest court of the state would resolve" the state law question). As a result, any finding -- even by a majority of this court -- that the New York statute does not prohibit Tunick's proposed artistic activity
would in no way be binding on New York state courts. See, e.g., Hartnett v. New York City Transit Auth., 612 N.Y.S.2d 613, 616 (2d Dep't 1994), aff'd, 86 N.Y.2d 438 (1995). All this means that the City, should it
elect to prosecute plaintiff and his models subsequent to the completion of the photo shoot, would have the opportunity to obtain a definitive answer to the statutory questions presented in this appeal from the only court system
authorized to give that answer.
I concur in the judgment of the court.
1. Judge Van Graafeiland dissented from our certification. See Tunick I, 209 F.3d at 96-100
(Van Graafeiland, J., dissenting). We are particularly troubled by a portion of his dissent appearing at 209 F.3d at 98. Judge Van Graafeiland writes, "Judge Sack advised me and Judge Calabresi [in December] that he did
not agree with the proposed certification, and I expressed my agreement with that portion of Judge Sack's response. Another three months elapsed with no further action on the part of Judge Calabresi until, on March 10, 2000, he
circulated a 46-page opinion ordering the following . . . set of proposed certified questions [different from another set that he had previously circulated]." Id. The statement may be misunderstood to suggest that Judge Sack
and I acted with unseemly haste. In fact, Judge Sack and I provided drafts of our opinions to Judge Van Graafeiland in December 1999. (One of those drafts was the "advice" from Judge Sack "that he did not agree with
the proposed certification" to which Judge Van Graafeiland refers.) My draft set forth substantially the views contained in my opinion in this appeal eventually published on March 24. In January and February, we all exchanged
memoranda with respect to the drafts. But on February 24, Judge Van Graafeiland wrote Judge Sack and me telling us that he could not file a dissent until there was a majority opinion from which to dissent. He said that, when Judge
Sack and I agreed, he would prepare a dissent, but it would not in any event be before May. It was then that Judge Sack and I, with the approval of the Chief Judge, decided to resolve this appeal as soon as practicable inasmuch as
it had been heard on an expedited basis, more than five months had elapsed since argument, three months since Judge Sack and I had first circulated draft opinions, and the First Amendment context of the appeal made it time
sensitive. Judge Sack has authorized me to say that he joins in this statement.
2. The original preliminary injunction entered by the district court, by contrast, prohibited the City
and its agents from arresting Tunick and his models at all. See Tunick v. Safir, No. 99 Civ. 5053, 1999 WL 511852, at *1 (S.D.N.Y. July 19, 1999).
3. While we appreciate
explanations such as those given in this case by the New York Court of Appeals, we have no right to expect them. Indeed, it is precisely because the New York Court of Appeals can refuse certification as readily as it declines to
hear appeals from decisions of the appellate divisions that the argument, often made but none the better for its frequency, that certification imposes a burden on busy state courts, see e.g., Elliott Assocs. L.P. v. Banco de la
Nacion, 194 F.3d 363, 370 (2d Cir. 1999) (declining to certify a question to the New York Court of Appeals and reasoning in part that "[t]he procedure must not be a device for shifting the burdens of this Court to those
whose burdens are at least as great" (quoting Kidney v. Kolmar Labs., Inc., 808 F.2d 955, 957 (2d Cir. 1987)), is fallacious. With these federal court assertions, it is well to contrast the statements of the New York
Court of Appeals encouraging certification. See, e.g., Tunick II, 2000 N.Y. LEXIS 886, at * 5 ("underscor[ing] the great value in New York's certification procedure"); Rufino v. United States, 69 N.Y.2d 310,
311 (1987) (lauding "the value of the certification process, in saving 'time, energy, and resources and help[ing to] build a cooperative judicial federalism'" (quoting Lehman Bros. v. Schein
, 416 U.S. 386, 391 (1974) (alteration in Rufino)). Significantly, these comments are regularly made, even in cases in which the New York court declined certification. See Tunick II, 2000 N.Y. LEXIS 886, at *1;
Rufino, 69 N.Y. 2d at 311.
4. In this regard, it is worth noting that the decision of the New York Court of Appeals to decline certification in order to allow for a more
"expeditious resolution of the preliminary injunction/prior restraint issue" in the case before us, Tunick II, 2000 N.Y. LEXIS 886, at *5, illustrates the amenability of the certification procedure even to
time-sensitive First Amendment questions. Cf. Tunick I, 209 F.3d at 78-79 (opinion of Calabresi, J.) (noting that a federal court should certify only if it believes that the delay inherent in certification will not
unduly harm the federal right asserted); id. at 95 (opinion of Sack, J.) (stating that, where a prior restraint is involved, the delay caused by certification "is constitutionally intolerable"). In a sense, neither
of the opinions cited above adequately considered that the state courts themselves have a role to play in deciding whether certification can take place consistently with the underlying rights at issue. But, as this case
illustrates, a state court will likely accept certification in cases of this sort only where it believes that the "interest of expeditious resolution" does not counsel otherwise, that is, where it believes that it can
resolve the questions quickly. Tunick II, 2000 N.Y. LEXIS 886, at *5. That the New York Court of Appeals rejected certification in the instant case underscores the fact that state courts as much as federal courts are
sensitive to time in relation to alleged constitutional rights. As a result, the declination also emphasizes the flexibility of certification and the ways in which it can be tailored to accommodate, together with the federal
interest in preventing irreparable harms to potential federal rights, the state interest in having state courts either decide important unresolved state law issues or decline to do so.
5.
New York Penal Law 245.01 and 245.02 expressly allows any local government to opt out of the exception for "a play, exhibition, show or entertainment." N.Y. Pen. Law 245.01 ("Nothing in this section shall prevent the
adoption by a city, town or village of a local law prohibiting exposure of a person as herein defined in a public place, at any time, whether or not such person is entertaining or performing in a play, exhibition, show or
entertainment."); N.Y. Pen. Law 245.02 (substantially the same). Thus, the statute seemingly permits local governments to forbid all public nudity by local ordinance. New York City has concededly never enacted such an
ordinance.
6. Moreover, because we are free to do so under the equitable powers at play when injunctions are issued, see, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc.,
395 U.S. 100, 132 (1969) (noting the broad equitable powers of federal courts to tailor remedies to the circumstances at hand), our per curiam, correctly in my view, urges the district court to take care to minimize, by appropriate
restrictions of a time, place, and manner sort, the disruption to the surrounding neighborhood the photo shoot might otherwise create.