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Law
Internet resources for what you need to know on NYC Law
Five Favorite Sites For Beginners

The Topic
"NYC Law" refers to the legal and juridical dimensions of City public policy. What do the laws say? How have they been interpreted? What is the relationship between laws as written and rules as enforced?
The Context
The sheer size of NYC government requires its extensive legal involvement in countless issues. Over 700 attorneys are employed in the Office of the Corporation Counsel alone. Every major and minor public policy issue has a legal dimension. On some issues – Charter revision or campaign finance limits, for example – the legal dimension is paramount.
The Reporter
Margaret Reuter is the managing editor of City Law, the bi-monthly journal on City legal developments published by the Center for New York City Law. She also serves as an adjunct professor at New York Law School. She is reachable at [email protected].

by Margaret Reuter

In The News: The Nude Photo Shoot and the Federal Courts

(july '00)Spencer Tunick is an internationally-known photographer whose work involves photographing naked people in public to illuminate the fragility of the human body in an industrial world.

A year ago, in July of 1999, Tunick wanted to undertake just such a shoot on Market Street, a quiet residential street in downtown Manhattan under the shadow of the Manhattan Bridge. The plan was to arrive at dawn one Sunday with about 100 models, who would take off their clothes for only a few minutes. Because Tunick and his models had been arrested at other photo shoots, he engaged Ron Kuby, lawyer to the cranky, to find a way to keep the police at bay. The lawyer sought a permit for the shoot. The City replied that it would grant the permit only if the models remained clothed. Only five days before the planned shoot, Ron Kuby sued the City to prohibit police from arresting Tunick or the models.

TIME IS OF THE ESSENCE

The case started with a frenzied sense of urgency, with motions, hearings, and appeals daily. In First Amendment case law, stopping "speech" before it happens (called prior restraint) carries the highest constitutional burden, and speedy recourse to the courts is considered critical to protecting free speech.

On Wednesday July 15th of last year, US District Judge Harold Baer, Jr. held oral argument, on Thursday he issued his opinion, on Friday the City appealed to the Second Circuit, and on Saturday the Second Circuit held a hearing as well. The shoot did not take place on Sunday July 18th as Tunick hoped. In fact it took almost a year for this case to be finally resolved.

Judge Baer's review was quick. He concluded that an exception to the State public nudity law protected this form of nudity. State penal law outlaws public nudity, except for breastfeeding and for "entertaining or performing a play, exhibition, or show." Although the state law allowed that local rules could differ, New York City has no other rules or laws on the subject. Baer ordered the City not to interfere with the shoot. As expected, the City immediately appealed and the emergency panel of Second Circuit judges was convened on Saturday. That panel put Judge Baer's order on hold and ordered an expedited appeal schedule. That's when things started to bog down.

HURRY UP AND WAIT

Even on an expedited pace, the appellate hearing did not take place until September 13th. At the hearing Judge Guido Calabresi began germinating an idea that would ultimately cause months and months of delay. Calabresi thought the case should actually be transferred from federal court to New York state's highest court, a procedure called certification, which is rarely done. He wanted them to determine whether, as a matter of statutory interpretation or state constitutional law, the exception for nude entertainment allowed even outdoor nude performances. The initial reaction of the other two judges on the federal panel (Robert D. Sack and Ellsworth Van Graafeiland) was that certification was inappropriate. Calabresi persisted.

Both Judges Sack and Van Graafeiland were sure the City could constitutionally stop a large group of men and women from undressing in public. Judge Sack however, thought the shoot must be allowed, because the City had no rule or local law that eliminated or narrowed the exception for nude performances (e.g., indoor performances of "Hair" are permitted, not outdoor performances on the street with little protection for unwilling viewers). Judge Van Graafeiland criticized Kuby's decision to give the courts just five days to review and decide his challenge and argued that, because the date had already come and gone, the case was moot and should be dismissed.

Judge Calabresi held out. Months ticked by. Eventually Judge Calabresi convinced Judge Sack that the only way to get this case resolved was for Sack to join him in sending the case to the state court. On March 24th, 2000, six months after the Second Circuit oral argument, Calabresi filed a 46-page majority opinion asking the New York State Court of Appeals to take the case. Judge Sack filed his reluctant concurrence, under protest. Judge Van Graafeiland fumed. Defying historic judicial protocol Calabresi and Sack had not shown their opinions to Van Graafeiland ahead of time. On April 13th, he filed a biting dissent. His contempt for Calabresi was palpable, noting that "ever since Calabresi moved to this court from Yale Law School he has verbosely crusaded for more extensive use of the certification process" disregarding both the burdens on the state courts and the delay in resolving the case.

As it happened, Calabresi's plan was for naught. On May 12th, the Court of Appeals refused to take the case, explaining that even on a hurried schedule for briefing, argument, and deliberation they would take months to render a decision. And in any event, since the litigants never raised a challenge under the state constitution, it would be "irresponsible" for the court to take it up.

THE DYSFUNCTIONAL COURT

Now the case was back in the laps of the dysfunctional Second Circuit panel. For the first time it moved quickly. On May 19th, Judges Calabresi and Sack, in a joint opinion, directed Judge Baer to reinstate his order for the City not to interfere with the shoot. The opinion, however, gave no legal explanation whatsoever for the decision. Not surprisingly, Judge Van Graafeiland dissented.

On June 2nd, Judge Baer ordered that the shoot may take place Sunday June 4th at 5:15 to 5:45 am, with a maximum of 125 nude models, but now on a more industrial block under the Williamsburg Bridge between Mangin and Baruch Streets. And so it did--tens months and sixteen days later than originally planned.

Meg Sounds Off: The First Amendment deserved better

Despite the early fervor, this litigation did not end for nearly a year. The highly touted free speech protection of the federal courts disintegrated into irreconcilable differences and acrimony among the three Second Circuit judges, who attempted to punt the matter to the New York state high court, which refused to accept the case, and returned it to the same three judges, who again could barely agree. In nearly every opinion issued in this matter, the judges individually proclaimed the imperative of deciding free speech questions speedily. It's clear the judges feel such prompt action is the institutional duty of the courts. It is far from clear that they consider it their individual responsibility as well.


Sites For Beginners:

  • Center for New York City Law - The site excerpts select reports from each issue of City Law, a monthly journal published by the Center. Critiques of nearly 40 City government-oriented websites (with links). Recommended: analysis of 1989 charter mandate that the City annually assess the condition of its bridges, libraries, public schools, police stations and the like.
  • City Council - Besides profiling its members, the site allows the user to search local laws and explains how a bill becomes law. Searches for local laws and bills have some limitations. For instance a search for "lead-based paint" produced the recent local law, backed by the administration, but not the competing bill offered by council member Michels.
  • New York City's Law Department - Part of the City's comprehensive NYCLink the site provides descriptions of the work of each division. Highlights include the City's 1997 complaint challenging the constitutionality of the federal line item veto, in PDF format, and former Corporation Counsel Paul Crotty's case for tort reform.
  • New York Law Journal - Best feature: access to full text versions of most cases reported in its pages, most of which are never reported anywhere else (such as on westlaw or lexis). Retrieve and print out the cases reported in the Law Journal by picking "courts on nylj.com" and searching by court. This is a real service, given that compiling your own archive of these decisions had been an arduous task of cutting, pasting, and photocopying. Good links to all kinds of law, business, university, and government related sites.


Other Recommendations:

  • Association of the Bar of the City of New York- Site of the City Bar, organization highlighting its recently issued reports. Now playing: the full text of a report on the City's enormous tort case backlog (more than 62,000 cases) by the Council on Judicial Administration. They critique City efforts in addressing the problem against formidable odds. The site also includes an impressive list of pro bono opportunities for lawyers and law students.
  • The Constitution Society - The Liberty Library has more than 100 classic essays on constitutional government in html, text and pdf format. Features such profound works as Machiavelli's The Prince, Thomas Paine's Common Sense, and the Constitutional Ratification Debates.
  • NYC Documents at Columbia Univ. - This site links to scores of City related sites and guides users through Columbia's substantial collection of NYC-related materials by category.
  • Independent Budget Office - One of the illuminating features of the site: It will calculate exactly how your tax payments are divided up and spent at each level of government (city, state, and federal) both by broad category and by selected programs. Just input your taxes paid and adjusted income from your tax returns (or you can just estimate them, of course), and it will calculate the results.
  • Public Advocate - The chock-full site of Public Advocate Mark Green -- a good place to look to measure the worth of the office that Mayor Giuliani has targeted for abolition.
  • Citizens Budget Commission - Features recent research papers of the CBC. The latest: comparing the competitiveness of the NYC metro region's transportation infrastructure -- the City's highway and mass transit systems -- to LA, Chicago, Tokyo, London, and Paris.
  • Article 78 - This site provides a useful primer for lawyers and nonlawyers who seek to challenge a City or State action claiming it was irrational, arbitrary or illegal. The site explains how an Article 78 action can be started, though it provides little help with what standards the courts apply to overturn an agency decision. Sponsored by a private law firm, the site has some promotional material, but its primer is "promotion free."

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Gotham Gazette is published by Citizens Union Foundation and is made possible by support from the Robert Sterling Clark Foundation, the John S. and James L. Knight Foundation, the Altman Foundation,the Fund for the City of New York and donors to Citizens Union Foundation. Please consider supporting Citizens Union Foundation's public education programs. Critical early support to Gotham Gazette was provided by the Charles H. Revson Foundation, Rockefeller Brothers Fund and the Alfred P. Sloan Foundation.

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