NORMAN SIEGEL Attomey at Law 260 Madison Avenue, 18m Floor New York, NY 10016 (212) 532-7586 December 14, 201 1 Richard Walker General Counsel, Deutsche Bank USA 60 Wall Street New York, NY 10005 S. Andrew Schaffer, Esq. Deputy Commissioner for Legal Matters New York Police Department One Police Plaza New York, NY 1003 8-1403 Dear Mr. Walker and Mr. Schaffer, We writetoinquire aboutthenewruleprohibiting Wall Street, a privately owned public space. It is our understanding that well alter Occupy Wall Street participants had begtm meeting in the atrium, Deutsche Bank, the owner of the space, posted rules stating, "Signs and posters not allowed."' Further, it is our understanding that private security guards have prohibited people from carrying signs announcing, for example, that a given working group the "Constitutional Working Group") is meeting at a given table, and that Deutsche Bank has even called in the New York Police Department to enforce this new rule.2 We would greatly appreciate your letting us know if our understandings outlined above are correct. Ifthey are, we have serious objections to the new rule and the NYPD's enforcement of it. Privately owned public spaces such as Zuccotti Park and the atrium at 60 Wall Street are amenities provided and maintained by developers for public use in exchange for zoning concessions such as additional floor space.3 In view ofthe nature of the space, New York's City's involvement in its creation, and the participation of the NYPD in enforcing the rule, the First Amendment applies.4 Under the First Amendment, content-neutral regulations See Justin Elliott, Deutsche Bank tightens screws on Occupiers, Nov. 21, 2011, 1/1 2 See 60 Wall Su?eet Mercenary Private Police Verbal Pepper Spray Harassment, See New York City Depar?trnent of City Planning, Lisa W. Foderarvo, Privately Owned Park, Open to the Public, May Make Its Own Rules, Naw Yom: Twas, Oct. 13, 2011. See Waller v. City of New York, 2011 WL 5865256, (N .Y. Sup. 2011), where the court assumed "for the purposes li of this application" that the Frist Amendment indeed applied to Zuccotti Park, a privately owned public space. may limit the time, place, or manner of expression as long as the restrictions are reasonable, narrowly tailored to serve a significant govemmental interest, and leave open ample alternative channels for communication.5 Since prohibiting people, including OWS participants, from carrying signs is not a reasonable time, place and manner restriction, we submit that the new rule violates the First Amendment. Additionally, prohibiting the OWS's protesters from carrying signs is not permissible for reasons separate and apart from the First Amendment. We understand that, according to the rules of the Department of City Planning, owners of POPs may only impose rules that are "reasonable."? In determining which rules are "reasonal5le," the Department of City Planning looks to the rules of conduct applicable in City-owned parks for guidance.-, Moreover, once a private property owner who is not subject to constitutional scrutiny has "opened the doors to the public to participate in the exchange of noncommercial ideas, . . . the common-law right of the owner to exclude any expressionist from his private property must be limited to nondiscriminatory and nonarbitrary grounds." 8 Deutsche Banks' new rule prohibiting the use of signs in the atrium at 60 Wall Street is, at the very least, "unreasonable," "arbi??ary," and not ir1 conformity with the rules of conduct applicable in City-owned parks. It is particularly problematic that, in this instance, the rule is being applied to those who are unobtrusive and have the very legitimate purpose of informing OWS participants where members of a given working group are gathered in the atrium. Moreover, implementing the rule at this time raises the concem that it is discriminatory towards those who support and participate in OWS activities. Finally, we have concems and questions regarding the involvement of the NYPD in enforcing the no-sign rule. First, did Deutsche Bank request the NYPD's involvement, and if so, why? Second, have any NYPD members enforced the prohibition on signs in the atrium, and if so, what is the rationale for such enforcement? Finally, have there been any evictions from the atrium of individuals who were carrying signs? We would greatly appreciate it if you would rescind this rule, or, at a minimum, respond to the questions raised in this letter. Thank you. 5: I 2-if A . A a `v 'lZl18-441-9412 5 See Hudgens v. NLRB, 424 U.S. 507, 520 (1976); Clark v. Community for Creative Non- Violence, 468 U.S. 288, 293 (1984). 6 See Jerold S. Kayden, Occupying Wall Street at the public-privatefiuntier, Oct. 12, 201 1, (citing Jerold S. Kayden et al., Privately Owned Public Space.? Ure New York City Experience (2000)) Department of City Planning has taken the position that an pgner?nay prescribe "reasonable" rules of conduct,). ee SHAD Alliance v. Smith Haven Mall, 66 496, 507 (1985) (Jasen, J. concurring).