South Boston Allied War Veterans Council v. The City of Boston et al

Filing 14

Judge Richard G. Stearns: ORDER entered. The revised transcript excerpt explains the court's rationale in its rulings re 13 Order on Motion for TRO, Order on Motion for Injunctive Relief, Motion Hearing. (RGS, int2)

1

1

E X C E R P T

2

* * * * * * * *

3

THE COURT:

Let me explain my reasoning, and the

4

reasoning has very little to do with the testimony I just

5

heard.

6

understand that there is a strong component of public safety

7

at stake -- I am thoroughly persuaded by Superintendent

8

O'Rourke and Commissioner Evans that they know what they're

9

talking about.

If this were purely a public safety issue -- and I

They have 38 years of experience, which

10

obviously I do not have, nor any of the rest of us, I

11

suspect, sitting in the room.

12

public safety is the issue at stake at the moment.

13

But I do not think that

What I do not want us to lose sight of is the fact that

14

this case involves a matter of constitutional protection.

15

Parades, and in particular this parade, are protected by the

16

First Amendment, as Justice Souter told us for a unanimous

17

Court, and this is case, Mr. Darling, that you know well, in

18

Hurley v. Irish American Gay, Lesbian, and Bisexual Group of

19

Boston, 515 U.S. 557, 568 (1995).

20

Justice Souter pointed out that a parade is not merely

21

motion but, rather, a public drama of social relations whose

22

inherent expressiveness depends on marching in the public

23

eye.

24
25

It is clear from Supreme Court cases that the State has
a freer hand in restricting expressive conduct than it does

2

1

in regulating the content of written and spoken words, Texas

2

v. Johnson, 491 U.S. 397, 406 (1989).

3

the state has depends to a great degree on the extent to

4

which public property under government control has been

5

traditionally devoted to expressive activity, Perry Educ.

6

Ass'n v. Perry Local Educator's Ass'n, 460 U.S. 37, 45

7

(1983) Where public property is designated for use as a

8

public forum, attempts by the State to regulate expressive

9

conduct in that forum are subject to the strictest scrutiny

10

But how free a hand

under the First Amendment. Id.

11

It is also clear from Supreme Court decisions that

12

municipal streets and sidewalks are traditional public fora,

13

Id., citing Hague v. CIO, 307 U.S. 496, 515 (1939).

14

true that the State is permitted to impose restrictions on

15

expressive conduct that are designed to promote the public

16

convenience, so long as these restrictions are not

17

susceptible to abuses of discriminatory application, Cox v.

18

Louisiana, 379 U.S. 536, 554 (1965).

19

It is

I think the case most on point for us at the moment is

20

Cox v. New Hampshire, 312 U.S. 569, 576 (1941).

21

one extract, and I apologize for its length, but I think it

22

is very important what the Court is saying.

23

I will read

"It is, of course undisputed that appropriate, limited

24

discretion, under properly drawn statutes or ordinances,

25

concerning the time, place, duration or manner of the use of

3

1

the streets for public assemblies may be vested in

2

administrative officials, provided that such limited

3

discretion is exercised with uniformity of method of

4

treatment upon the facts of each application, free from

5

improper or inappropriate considerations and from unfair

6

discrimination, [and with] a systematic, consistent, and

7

just order of treatment, with reference to the convenience

8

of the public use of the highways."

9

I do not know the history of the parade as well as some

10

of you do, but we do know from Hurley that Evacuation Day

11

has been designated as a public holiday in Massachusetts

12

since 1938.

13

celebratory parade as having begun as early as 1901.

14

know from his opinion that in 1947 Mayor Curley appointed

15

the Council as the chief organizer of the parade and, as I

16

understand it, the Council has sponsored, applied for, and

17

been issued a permit for the parade by the City since that

18

time with the one exception that has been alluded to.

Justice Souter identifies the tradition of a
I do

19

The route of the parade, which I understand to be

20

roughly 3.2 miles, has remained essentially unchanged for 20

21

years.

22

of us remember the largest snow accumulation that any of us

23

have experienced and, according to meteorologists, perhaps

24

the largest in the recorded weather history of the city of

25

Boston.

The one significant deviation was last year when all

4

1

What troubles me here, and this will lead me to the

2

balancing of the factors I need consider with respect to a

3

temporary restraining order is the sequence of events that

4

took place leading to the hearing today.

5

from the documentary record, the Council applied for the

6

permit for the parade in April of 2015, that is, some seven

7

or eight months ago.

8

application until February 26 of this year when the Council

9

was informed that the parade route had been drastically

10

modified.

11

were:

12

As I understand

The City did not act formally on the

The two reasons given for curtailing the parade

To mitigate public safety and crowd congestion.
There had been some preceding give and take with the

13

Council, but, again as I understand it, there was a request

14

from the Transportation Department, which did not issue

15

until February of this year, for a letter in which the

16

Council was to explain the organization of the parade.

17

letter was duly submitted.

18

That

The parade organizers, I believe, were then told there

19

would be potentially a shortening of the route of the

20

parade.

21

a letter explaining the reasons why they disagreed with any

22

such course of action, were it to be taken.

23

earlier, on February 26 the permit issued curtailing the

24

route of the parade without any further consultation with

25

the Council.

The organizers responded on February 24, 2016, with

And, as I said

5

1

MR. GERAGHTY:

Your Honor, I'm hesitant to

2

interrupt while you're speaking, but I did want to make a

3

point about that time line, because I don't believe --

4

THE COURT:

5

MR. GERAGHTY:

6

Go ahead.

Make the point then.

Thank you, your Honor.

Your Honor, if you look at the application from April

7

of last year, that's not a valid application for a parade in

8

the city of Boston.

9

different department, the department of Parks & Recreation.

It was directed to a completely

10

And the facts from the papers show that not only did the

11

Police Commissioner have discussions with a member of the

12

Allied War Veterans throughout last year about the potential

13

change to the route and his concern, but as soon as the

14

Boston Transportation Department, the department that

15

actually issues parade permits in the city, became aware of

16

this on, I believe, February 25, a permit issued with the

17

modified route the very next day.

18

it's accurate to say that the City sat on an application for

19

10 months.

So I don't believe that

20

THE COURT:

21

City sat on the application.

22

City, whether the paperwork went to the right mailbox or

23

not, given a history that dates back to 1947, was caught by

24

surprise by the fact that the organizers intended to go

25

ahead with the parade, and given that the route had been

I do not think my point was that the
Rather, I do not think the

6

1

unchanged but once in 20 years, I do not think there would

2

have been a great deal of surprise that the Council intended

3

to follow the same route.

4

it does not change my mind that what I am critical of here

5

is the process that the City followed.

6

But I accept your correction, but

Not that the City is necessarily wrong.

As I said,

7

from what I heard today from the Commissioner and the

8

Superintendent, it appears to me that the City has a

9

persuasive case, although the real case being made perhaps

10

says more about banning the sale and consumption of alcohol

11

than it really does with the length and duration of the

12

parade itself, but that is neither here nor there.

13

When I balance the factors for a TRO - and here we are

14

not talking about a preliminary injunction because I think

15

the City might well prevail in terms of the how the parade

16

is conducted in the future - but we are sitting here now,

17

five days before the event, planning has been done, and we

18

have a group that is attempting to exercise a protected

19

First Amendment right.

20

success, at least in terms of the equities for this year, my

21

judgment is that the Council is more likely to succeed on

22

the merits than the City.

23

In terms of the likelihood of

In terms of the balance of harms, I have great

24

confidence in the Boston Police Department.

25

Superintendent and Commissioner tell me that they can assure

When the

7

1

public safety, although not to the degree I know that they

2

would like, or feel that they could provide, if they had a

3

smaller crowd area to manage, I am confident that that

4

public safety will be protected.

5

In terms of the public interest at stake, I think the

6

public is more heavily invested in the protection of

7

constitutional rights than it might be in whatever savings,

8

which here what I have heard, and this is anecdotal, is a

9

potential saving in overtime of some $80 or $90,000.

Not

10

that that's inconsequential, but it is very hard to develop

11

a market for first Amendment rights, and it seems to me on

12

balance that it is a price worth paying to see that a

13

fundamental constitutional right is honored.

14

I think the public safety argument, as I said before,

15

is a good one.

16

risk of congestion, frankly, is reasoning that I do not

17

follow at all.

18

million people or a half-million, and pushing them into a

19

space that's 40 percent of the size of the space that they

20

would otherwise occupy, I do not understand how that

21

mitigates congestion.

22

On the other hand, the mitigation of the

It seems to me taking, whether it's a

I think the Commissioner said exactly the right thing

23

with respect to the due process that has been afforded other

24

groups.

25

groups have been willing to accommodate the public safety

The City has worked with these groups, and these

8

1

concerns that the City has.

2

Council would be willing to engage in that kind of

3

consultive process, or, if not, we can go forward with the

4

preliminary injunction and give everyone a chance to offer

5

all the evidence that they wish to on the issue.

6

I have confidence that the

With respect to the temporary restraining order, I am

7

going to direct the City to issue the permit as applied for

8

with respect to the traditional route.

9

I am denying without prejudice the request for a

10

preliminary injunction directed to future parades.

11

a matter that the Court will take up in a more considered

12

way with a reasonable amount of time to allow everyone to be

13

fully heard on the issue before a final decision a made.

That is

14

So that will be the judgment of the Court.

15

Let me explain to the parties that I will use the court

16

reporter's transcript as the rationale for the decision,

17

simply to expedite matters, and I will take the opportunity

18

to add the case citations to the reporter's transcript where

19

they are appropriate and to correct my misnomers.

20

But thank you for a spirited hearing, and I

21

particularly want to thank the Superintendent and

22

Commissioner for being here.

23

things to do, which is one reason that I do not want to keep

24

you any longer than is necessary.

25

I know you have many important

We will be adjourned on this matter until the next

9

1

hearing on the preliminary injunction should one be

2

necessary.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

THE CLERK:

All rise.