Second Circuit to the Rescue

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

What an amazing ruling from the federal appeals court lifting the roadblocks to full participation by New Yorkers — and other Americans — in the debate over New York’s next mayor. It wasn’t just the substance of the ruling, though that was splendid. A panel of appellate judges who ride the Second United States Circuit ordered unanimously that neither New York City nor State could enforce a law limiting big donations to the New York Progress and Protection Political Action Committee, which has been in a race against the clock to marshal money to advocate for Joe Lhota’s underdog candidacy for mayor.

The substance of the Circuit Court’s ruling was not just a resounding defeat for the Democrats but a vote of confidence in the First Amendment, which prohibits abridging freedom of speech or the press. That was predictable. What strikes us as newsworthy is the remarkable dispatch with which the court acted. The hapless lower-court judge, Paul Crotty, who had ruled against supporters of Mr. Lhota, barely had a chance savor the thought of a celebratory drink with editors of the New York Times — no doubt at the Death of Liberty Saloon — than the appeals court assembled a panel, reasoned out the case, and over ruled him.

So much for the canard about how slowly the wheels of justice turn. NYPPP filed its suit on September 25 as it was becoming clear how damaging to its political rights was the cap on big contributions contained in New York law. The district court wouldn’t set a hearing before October 8, even as the candidates in the mayoral race were scrambling to raise resources. It was an infuriating mockery. On October 11, NYPPP wrote a letter stressing the urgency. On the 16th, it took what we’d call radical action, filing for a writ of mandamus from the appeals court ordering the lower court to step on the gas.

The Appeals Court immediately scheduled a mandamus hearing, meaning it was prepared to brush pettifoggery aside and issue some mandates. That seemed to get the lower court’s attention. Poor Judge Crotty promptly issued an opinion that permitted the state and city to go ahead and abridge the First Amendment rights of NYPPP. So NYPPP moved immediately to appeal on the substance, and the Second Circuit dealt with the matter in the space of a few days. It ruled that NYPPP’s First Amendment Claim “has a substantial likelihood of success on the merits.” It cited other courts on how “irreparable” is the loss of First Amendment rights “even,” as one court put it, “for minimal periods of time.”

The harm, it quoted another court as saying, “is particularly irreparable” where there is a plaintiff who “seeks to engage in political speech, as timing is of the essence in politics and a delay of even a day or two may be intolerable.” So what in the world was Judge Crotty thinking, if he was thinking in the midst of a race where every minute counts the way it does in Joe Lhota’s campaign? The question begs to be asked in light of Citizen’s United, the First Amendment triumph that freed corporations and labor unions and do-gooder organizations, left, right, and center, to participate fully in the political process.

* * *

We’d like to think that the speed the Second Circuit just demonstrated will prove to be a precursor to another case in which the New York City leftists are trying to run out the clock on the political process. This is the case known as Floyd v. New York, which involves the constitutionality of the policing technique known as stop, question, and frisk. A United States district judge, Shira Scheindlin, has ruled the NYPD’s practices unconstitutional. Opponents of the NYPD want to drag the case into the first term of the next mayor, who, they hope, will cave in and submit to Judge Scheindlin’s ruling.

What the NYPPP case shows is that the Second Circuit can act with dispatch when it senses the Bill of Rights is being trifled with. One of the left-wing organizations opposed to the NYPD — it’s called the Center for Constitutional Rights — is now trying to buffalo the riders of the Second Circuit, calling for anti-NYPD factions to “please pack the court” on Tuesday, when the next hearing in the case is due to take place at Foley Square. The speed and bluntness with which the Second Circuit just moved against an effort to hang onto the ball on a political deadline sets the stage for another high drama.


The New York Sun

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