James Deferio protesting same-sex marriage in Syracuse. Source: Syracuse University Student Voice.

In a case that we reported on in 2016, a federal district court in New York has granted summary judgment to the plaintiff.  The case involves the regulation of protest speech—specifically, a protester’s activities during an LGBTQ rights parade—on public sidewalks.

A brief recap of the facts is merited.  James Deferio is a Christian evangelist who has protested each year at the Central New York Pride Parade and Festival, held in Syracuse.  Each year, the city issued a permit to the organizers of the parade.  That permit indicated that no speakers would be allowed on sidewalks adjacent to the parade.  At the 2014 event, Syracuse police officers threatened Deferio with arrest in reliance on the permit, and he relocated from the site.  In 2015, the city again approved a permit for the parade, giving the parade exclusive control over First Amendment activities and limiting the use of sound amplification devices near the parade route.  The 2015 permit also allowed for a zone where protest activities could occur.  Deferio again attended the parade to protest.  After minor verbal altercations ensued, a Syracuse police officer told Deferio that he could be arrested for his activities, and he relocated to the zone designated for protest activity.

The court granted a preliminary injunction to the plaintiff in 2016.

On cross-motions for summary judgment, the court found in favor of Deferio on his First Amendment claim.  The city argued that the plaintiff’s speech was not protected because it constituted “fighting words,” words designed to provoke an immediate breach of the peace.  That argument was rejected by the court.  Given the narrowness of the fighting words exception to First Amendment protection, the court held that Deferio’s protest activities—which did not provoke the vast majority of parade attendees—could not constitute fighting words.

Having found that the plaintiff was engaged in protected speech, the court then noted that the sidewalks in question were a traditional public forum.  In such fora, the government is required to regulate in a content neutral manner, and to show that the regulation of speech in question is narrowly tailored to a significant governmental interest.  Because the police officers who interacted with Deferio in 2014 indicated that they approached him solely because of the messages on his signs and the words that he spoke, the court found that the speech control in question was content based.  And the police officers’ other justification—that they were concerned for Deferio’s safety—was also a content based “heckler’s veto.”  The court also found that the city’s actions in 2015—namely, the establishment of the protest zone—were also unconstitutional.  Although the court analyzed that restriction as content neutral, it found that the city’s determination that the Pride organization could have complete control over speech activity lacked a constitutional basis, and also found that the wide discretion given to Syracuse police officers to enforce the permit also violated the First Amendment.

The court dismissed the plaintiff’s Due Process and 42 U.S.C. § 1983 municipal liability claims, and also denied the plaintiff’s request for permanent injunctive relief given the fact that the plaintiff could not establish a clear, ongoing policy of the city that was at issue.  The court awarded the plaintiff nominal damages, and deferred a decision on attorney’s fees to a later date.

The city has appealed the ruling to the Second Circuit Court of Appeals.

Deferio v. City of Syracuse, 5:16-CV-0361 (LEK/TWD), 2018 WL 671251 (N.D.N.Y. Jan. 31, 2018).

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.