Mogul Media, Inc., et al. v. City of New York, New York, et al.

The Second Circuit affirmed, en banc, the Second Circuit’s prior affirmance of the district court’s dismissal, at the pleading stage, of the Amended Complaint which sought to challenge the New York City Zoning Resolution and provisions of the New York City Administrative Code and the Rules of the City of New York as they applied to outdoor advertising signs on the grounds the sign restrictions were content based, that allowed the defendants and their tenants to erect outdoor advertising signs in and about Citi Field without imposing on themselves the same restrictions imposed upon private landowners in areas in which private landowners were barred or restricted from erecting the same size and types of signs, the restrictions on private landowners were too restrictive, and the stated governmental rationale for the restrictions imposed on private landowners, namely esthetics and traffic control, were pretexts for restricting private, commercial speech, and were not reasonably related to the stated, pretextual reasons offered by the City of New York, while enriching the City and its tenants by reducing competition for outdoor signs, restricting others’ commercial free speech rights, and preferring the speech, and the utterers of the speech, being the City and its tenants, at the expense of private individuals. In each instance, the Court considering the claims applied the incorrect standard of review and incorrectly viewed the City’s conduct as having been permitted by the initial state legislation permitting the establishment of a major league baseball park. Three questions are presented: 1. Does the First Amendment of the United States Constitution prohibit the City of New York from preferring