Harlem rally gets go-ahead from appeals court panel

Wednesday, September 2, 1998

A federal appeals court panel yesterday upheld a lower court ruling that New York City officials unconstitutionally denied Million Youth March organizers a permit for their planned Labor Day weekend rally in Harlem.

However, the three-judge panel voted 2-1 to place restrictions on the event, limiting its duration to four hours and scaling it back to a six-block area of Malcolm X Boulevard from the 29 blocks originally sought by organizers.

Circuit Judge Richard Cardamone agreed with his colleagues in denying the city's emergency motion that sought a stay of last week's district court injunction, but chastised the two federal judges for modifying the scope of the march.

“The restriction the majority places on the time and venue of the event are not narrowly tailored to the City's significant interest in public safety,” Cardamone wrote. “The City has failed to demonstrate its inability to accommodate the event were it to run for 12 hours on 29 city blocks as originally contemplated.”

The 2nd U.S. Circuit Court of Appeals acknowledged the district court's vindication of march organizers' First Amendment rights, but criticized the lower court for issuing “an injunction ordering the City to allow the event precisely as the plaintiff wishes to hold it.”

“When a federal district court crafts an injunction to vindicate a plaintiff's protected rights, it cannot simply order whatever a City is physically capable of doing, without regard to considerations of public health, safety, convenience and cost,” the court ruled.

Khallid Abdul M...
Khallid Abdul Muhammad

Chief organizer of the march and controversial speaker Khallid Abdul Muhammad and others had sued the city, saying Mayor Rudolph Giuliani had the application denied because of his dislike for Muhammad, a former aide to the Nation of Islam's Minister Louis Farrakhan. Giuliani has called the rally a “hate march,” while Muhammad has referred to the mayor as “an ordinary cracker with no power who knows the law, but chose to ignore the law” and “who does not want to see unity among black people.”

According to the ruling, if the organizers disagree with the court's regulations on the march, the Saturday event can be held at one of the city's previously suggested alternative sites, Randalls Island, (where policing needs are far less) for the full 12 hours. Plaintiffs estimate that attendance at the event will be about 50,000, down from previous estimates which ranged from 150,000 to 3 million.

“The event's going forward,” Christopher Dunn, a staff attorney with the New York Civil Liberties Union said, “It's clearly another significant win in the First Amendment fight with the Giuliani administration.

“They have made it clear that they were going to block this event from taking place on this day on Malcolm X Boulevard, and the courts have said that it has to take place on this date on Malcolm X Boulevard.”

The civil liberties group had filed an amicus brief in support of the march. Dunn said that he had expected the city to lose its appeal. “The court seemed skeptical [of] the city's position.”

Michael Meyers, NYCLU board member and executive director of the New York Civil Rights Coalition, said: “The First Amendment has to be available to minority speakers with unpopular and unconventional ideas. It's not a question of [the organizers'] First Amendment rights.

“It's too easy for government to use the rules of public safety for denying their First Amendment rights. I support the rights of anyone to assemble and say whatever they like. People have a right to have rallies, whether it's stupid or bigoted,” Meyers said. “And this is one racist and stupid rally I will not be attending.

“I think Giuliani is concerned [to a certain degree] about public safety, but I do think that if we had a different mayor this wouldn't have ended up in court,” Meyers said. “It's not personal, but it's a predictable battle, and Khalid has benefited from it in terms of public exposure and free publicity.”

Said Dunn: “There is no question concerning the free publicity Muhammad has received” throughout the widely watched and reported court battle. Considering the number of articles published on the front pages of The New York Times, Dunn said, “Giuliani created more public awareness for this event than Muhammad could ever have done.”

Michael Hess, an attorney for the city, has not returned phone calls.