March 27, 2000 05:46pm
Judge Criticizes Giuliani on Cases
by: Larry Neumeister
(NEW YORK, NY) -- A federal appeals court judge said Monday the Giuliani administration's ``relentless onslaught of First Amendment litigation'' has put the courts in danger of having to perform crucial government functions.
Judge Guido Calabresi of the 2nd U.S. Circuit Court of Appeals made the comments in a 63-page ruling questioning the rationality of the city's efforts to stop photographer Spencer Tunick from taking nude pictures in New York.
Tunick has been arrested five times for staging photographs of dozens of nude bodies lined up on bridges and streets in Manhattan.
Calabresi noted the heavy volume of First Amendment cases amassed by the administration of Mayor Rudolph Giuliani. The mayor's critics say he is trying to squelch free speech.
``As a result of this relentless onslaught of First Amendment litigation, the federal courts have, to a considerable extent, been drafted into the role of local licensors for the city of New York,'' Calabresi said.
He noted 18 prominent cases in which the appeals court or a lower federal court had temporarily blocked the city or found one of its actions or policies unconstitutional on First Amendment grounds.
Calabresi said the federal courts had a responsibility to uphold First Amendment and other constitutional rights and balance those rights against the state's interest in enforcing its laws and values.
``But, in the current and rather remarkable state of affairs in New York City, there is an all too clear danger that the courts, instead of merely interpreting and defending federal rights, may cross the line and become, in effect, an agency that performs crucial local government functions,'' he said.
Michael D. Hess, the city's chief lawyer, said Calabresi was ``being a little bit unfair.''
``I think there's too much of an acceptance of these glib comments that the mayor crushes people's First Amendment rights,'' he said, claiming that the city had won or gained substantial ground with most of its First Amendment cases.
``The mayor doesn't say you can't talk at all,'' he said.
Hess said Giuliani seeks to ensure that First Amendment speech does not infringe on the constitutional rights of others.