Full opinion text
OPINION AND ORDER MARRERO, District Judge. Plaintiff People for the Ethical Treatment of Animals, Inc. (“PETA”) requests a preliminary injunction compelling defendants to display a design that PETA submitted for inclusion in a public art exhibit known as the CowParade. This event began in New York City on June 15, 2000 and is scheduled to end on September 3, 2000. The CowParade artwork is currently on display in various public open spaces throughout the City. PETA contends that by excluding one of PETA’s proposed designs from the exhibit, defendants, a public-private partnership consisting of the City and the organizers of the CowParade, impermissibly infringed upon PETA’s rights of expression in violation of the Federal and New York State Constitutions. Courts are often called to rule upon novel concepts of words and deeds. This case presents a unique question: whether a cow is a forum or a forum a cow, and then when and where such a cow/forum may be found. Not surprisingly, any notion of first impression is bound to generate disputes arising from different understandings and applications of the unfamiliar concept. Any effort to resolve them is imbued with uncommon difficulties. In the realm of art and fanciful ideas, the challenge is perhaps compounded. The controversy here presents some weighty First Amendment questions. A full trial on the merits may not be possible before the CowParade ends. The disposition of PETA’s motion for a preliminary injunction therefore is likely to resolve the most significant element of the controversy before the Court — the scope of PETA’s right to display artwork as part of the CowParade. The resolution of this case has been complicated and prolonged, not as much by any definitional questions related to the intended whimsy associated with the art exhibit, as by a number of substantial issues presented here that are entangled in legal ambiguities or that fall within the interstices of First Amendment doctrine. These circumstances have required more than the ordinary amount of deliberation within less time than normally required to decide issues of significant moment, explaining the uncommon length of this opinion. Perhaps less constraint might have yielded more concision. To paraphrase Blaise Pascal and others, if the Court had had more time, it would have written a shorter opinion. Having fully considered that the disposition of PETA’s request for a preliminary injunction potentially constitutes final relief in this action, the Court denies PETA’s motion. FACTS PETA is a non-profit animal rights organization which claims more than seven hundred thousand members. It states that it is “dedicated to establishing and protecting the rights of all animals” and adheres to the philosophy that “animals are not ours to eat, wear, experiment on, or use for entertainment.” Compl. ¶ 2. To this end, it aims “to provide public education in order to engender recognition of animal rights and ensure treatment of animals in accordance with animal rights.” Id. PETA brought suit against various public and private entities involved in organizing a public art event known as CowParade New York City 2000 (the “CowParade”), a joint public-private venture organized and presented by defendants. New York City Mayor Rudolph Giuliani (the “Mayor”), the New York City Department of Parks and Recreation and NYC 2000 (collectively, the “City”) are the public co-hosts of the CowParade, having joined with the private entities CowParade, LLC, CowParade Holdings Corp., and CowParade NYC 2000, Inc. (collectively, with Velocity Sports and Entertainment, LLC, the “CowParade Organizers”). Defendant Velocity Sports and Entertainment, LLC was hired by the CowParade Organizers to oversee the planning and execution of the CowParade. The CowParade itself, which began on June 15, 2000 and continues until September 3, 2000, is a public art exhibit now on display throughout New York City. Similar events have previously been sponsored in Zurich, Switzerland and Chicago by some of the CowParade Organizers. CowPar-ade consists of approximately 500 life-size fiberglass sculptures of cows in three basic poses which have been painted, decorated or otherwise altered artistically. Individuals and groups, in particular “every corporation, restaurant, hotel and/or retailer in New York,” were solicited by the CowPar-ade Organizers to become “patrons,” or sponsors, of CowParade by “adopting” a cow to be displayed as part of the event. See Declaration of Sean Gifford in Support of PETA’s Motion for Preliminary Injunction, sworn to May 31, 2000 (“Gifford Deck”), Ex. A at 2. To become sponsors, interested groups or individuals were required to sign a sponsorship form and to pay $7,500 for each cow they sought to adopt, with a maximum of twenty-five cows per applicant. Sponsors could either select a design from among hundreds submitted to CowParade by independent artists or could themselves commission artists to design their cows, subject to the guidelines and approval process specified by the CowParade Organizers. The approval process, though not set forth in the sponsorship agreement each applicant had to submit, involved design acceptance by a committee comprised of individuals representing the City and Cow-Parade Organizers (the “Committee”). The Committee reviewed each of the submitted designs to determine which, if any, were not appropriate for the CowParade. The' decorated cow sculptures, in accordance with the standards applied by the City and the CowParade Organizers, are presently located in a wide variety of highly visible public and private areas throughout the City, including parks, sidewalks, building plazas and train stations. The City and CowParade Organizers have promoted CowParade as an important part of the City’s millennial celebrations. According to a CowParade press release, Mayor Giuliani observed that the CowParade is a “unique public-private partnership” that “give[s] visitors and residents one more reason to explore the boroughs, while adding to New York City’s creative, dynamic environment, and stimulating the economy.” Gifford Deck, Ex. E. The financial benefit to the City and its businesses is emphasized strongly in CowParade’s promotional materials, which point out that the CowParade in Chicago was “viewed by more than 10 million people and generated more than $500 million in additional tourism revenue.” Id. In addition to the indirect financial rewards the City expects from increased tourism and related revenue, it also anticipates a direct benefit by virtue of the agreement between the City, acting through the Commissioner of the Department of Parks and Recreation, and Cow-Parade Worldwide, Inc. (the “Permit”). See City Deck, Ex. B at § 8. The Permit requires CowParade to remit to the City Parks Foundation, Inc. 10% of its gross receipts from the sale of CowParade merchandise. See id. at § 8(c). It also provides that the City will receive 50% of the gross proceeds from an auction of exhibited cows that will be held at the end of the event. See id. at § 9. The Permit also specifies the terms by which the CowParade may use certain public spaces for the exhibit. The exhibition “shall consist of temporary installations of life-sized fiberglass cows, which may be installed individually or in clusters, at various sites throughout the five boroughs.” Id. at § 1. More importantly, the Permit sets out some of the design and review requirements which the City imposed on the CowParade Organizers as a condition for granting the Permit. In the section marked “Consultation and Cooperation,” the Permit requires that [t]he parties shall consult with each other during all stages of the planning of the Exhibition. It is understood and agreed that the Permittee will assemble a committee that will be comprised of representatives of the City, including [the Department of Parks and Recreation], as well as members of the New York City arts community. Such committee shall establish guidelines for submission of work for display in the Exhibition, and will evaluate artists’ work in light of the submission guidelines. The Committee, in its discretion, may direct Permittee to remove any Exhibition component that includes material that is indecent or demonstrates a lack of proper respect for public morals or conduct. Id. at § 1. The Guidelines and Approval Process for Commissioned Designs (the “Guidelines”) specify, in relevant part, that [t]he Commissioned Artist is encouraged to be creative with his or her Commissioned Design, but to remember that the audience will be broad-based and of all ages. Commissioned Designs that are religious, political or sexual in nature will not be accepted.... Gifford Decl., Ex. G at ¶ 5. The Guidelines also specify that no corporate logos or advertisements would be permitted on the cows. See id. It is from an adverse decision of the Committee that PETA now seeks injunctive relief. The contractual relationship between PETA and the CowParade Organizers began when PETA submitted a “CowParade New York 2000 Sponsorship Form” dated March 10, 2000 (“Sponsorship Form” or “Agreement”). See Gifford Deck, Ex. A. On it, PETA indicated to the CowParade Organizers its intention to sponsor two cows for a fee of $7,500 per cow. PETA also indicated on this form its desire to commission its own artist, rather than select from the portfolio of pre-designed cows. The Sponsorship Form describes the terms and conditions to which sponsors were required to agree before being permitted to adopt a cow in the CowParade. These terms specify that [t]he location(s) in New York City where the cow(s) You adopt will be placed will be determined by Us [CowParade NYC 2000, Inc.]. If you commission any design for any of Your adopted cow(s), You agree to comply with the Guidelines and Approval Process for Commissioned Designs to be provided by Us. Gifford Deck, Ex. A. They also include several provisions relating to ownership of the cows, such as an acknowledgment that the sponsor does “not own any right, title or interest in the name ‘CowParade’ or any of the cow design(s);” that the adopted cows are owned by the CowParade Organizers; and that none of the proceeds from the auction of the cow after the event would be retained by the sponsor. Id. The terms of the Sponsorship Form also specify that all modifications and waivers must be in writing and that the Sponsorship Agreement would be governed by New York law. In a letter dated March 31, 2000, PETA was informed, in response to its request for a waiver, that as a nonprofit organization it would be allowed to retain 100% of the auction proceeds from the sale of each PETA cow. See Gifford Deck, Ex. B. The same letter also noted that the proposed cow designs were being reviewed by the Committee and that PETA would be notified within two weeks of the results. One of PETA’s two proposed designs was approved by the Committee. It consisted of a cow covered almost entirely with imitation leather products such as boots, belts, jackets, and a soccer ball, and bearing the words “buy fake for the COW’S sake.” Gifford Deck, Ex. C. The second design, which was rejected by the Committee, divided the cow into sections in a manner intended to resemble a butcher shop chart showing the cuts of meat derived from a cow. Within each section was a statement or quotation “concerning the health and ethical problems associated with the killing of cows for food.” Compl. ¶ 29; Gifford Deck, Ex. D. These statements and quotations were contained in nine panels: Animal agriculture pollutes U.S. waterways more than all other industrial sources combined — Environmental Protection Agency “The cow is a poem of compassion ... to protect her is to protect all of creation.” — Mohandas Gandhi Vegetarians weigh, on average, 20 to 30 lbs less than meat-eaters. Cattle are castrated and dehorned without anesthesia “A lot of times the man skinning the cow finds out an animal is still conscious.”— USDA Inspector Timothy Walker. “Go Veggie!” — Sir Paul and Linda McCartney Meat Eaters die from heart disease 3 times more frequently than vegetarians.-Ameriean Journal of Clinical Nutrition Steak is 87% fat. Eat it, and you will be too. Eating meat causes impotence because it blocks the arteries to all vital organs, including the penis. — Dr. Dean Ornish, Medical Advisor to President Clinton Compl., Ex. C; Gifford Decl, Ex. D. In or about the week of April 15, 2000, PETA was informed by telephone that the Committee had rejected PETA’s design for the second cow and was asked to redesign it in order for the cow to be included in the CowParade. See Affidavit of Jennifer Schumaker, submitted by the CowPar-ade Organizers, sworn to June 21, 2000 (“Schumaker Aff.”), at 114; City Decl., Ex. H. The Committee had found that while most of the statements included in the second cow were acceptable, three statements in three panels were not: “A lot of times the man skinning the cow finds out an animal is still conscious.”USDA Inspector Timothy Walker. Cattle are castrated and dehorned without anesthesia Eating meat causes impotence because it blocks the arteries to all vital organs, including the penis. — Dr. Dean Ornish, Medical Advisor to President Clinton The design review Committee consisted of David Chass (from Velocity Sports and Entertainment, LLC), Bud Konheim (representing NYC 2000), David Slarskey (Chief of Staff of the City’s Parks Department), Pat Smith (representing the Cow-Parade Organizers) and Dorrit Wohl (Deputy Commissioner of the City’s Department of Cultural Affairs). See City Decl. at ¶ 10. The Committee convened one time, on April 9, 2000, to review the approximately 1,200 designs that had been submitted to CowParade. Each member of the Committee reviewed all of the designs independently, flagging those that raised concerns. See Affidavit of David Slarskey, attached to the City Decl., sworn to June 20, 2000 (“Slarskey Aff.”), at ¶ 7. Only four were ultimately rejected. From among all the approximately 1200 designs the Committee deemed acceptable, sponsor applications were ultimately accepted with respect to the approximately 500 sculptures now in the exhibit. Slarskey averred that the PETA design was flagged by all of the members of the Committee: We saw the design as inappropriate. We perceived it as overtly and aggressively political in that it was too graphic and violent for a public display that was to be installed in public parks, on public streets, and on school property, where the public at large of all ages would encounter it without having sought it out. We didn’t reject the design merely because it compelled people to think. A discourse might have arisen from any number of whimsical designs. What troubled the committee was the provocative, graphic, offensive effect of the text chosen. Id. at ¶ 14. The language found objectionable distinguished the second design from PETA’s other submission, which was “whimsical, creative, and decorous in the manner of the majority of the other designs submitted for consideration.” Id. at ¶ 15. David Chass, another member of the Committee, attested that the Committee rejected the design for the reason that “[t]he other three panels were found to be inappropriate for the intended broad base of the audience, particularly children.” Affidavit of David Chass, submitted by the CowParade Organizers, sworn to June 21, 2000 (“Chass Aff.”), at ¶ 7. Chass also indicated that “at no time was there any discussion as to PETA itself, or its philosophy or message.” Id. at ¶ 10. There is some dispute between the parties as to what PETA was told about the rejection of the second design. PETA asserts that it was initially told that the design had been rejected as “graphic and profane” but was not informed of any specific guidelines which the design violated. Gifford Decl. at ¶ 8. PETA also claims to have been told that the minutes of the meeting at which the decision was made indicated that the design was rejected as “inappropriate.” Compl. ¶ 32. Jennifer Schumaker, who delivered the Committee’s decision rejecting three panels within the cow design to PETA, attested that she merely said they were inappropriate, without characterizing the decision because she had not been present at the meeting. See “Schumaker Aff’ at ¶¶ 5, 6. PETA objected to the Committee’s decision, and informed the CowParade Organizers in a letter dated April 20, 2000 that “the content of the slogans that the committee has deemed to be ‘graphic and profane,’ is intended to be candid and eye opening and does not sink to the level of the obscene” and that its cow “will vividly confront the viewing public with the truth about animal cruelty in the meat industry.” City Decl., Ex. H. The CowParade Organizers contend that the words “graphic and profane” were never used; that the transcript was not referenced; and that PETA was told that it could resubmit a modified design. See Schumaker Aff. at ¶ 6. Defendants further contend that PETA was informed that the decision would not change and was provided with assistance in locating artists to paint the approved and the anticipated revised design, and that PETA repeatedly reaffirmed its intent to submit a modified design. Id. at ¶¶ 7-9. Whether or not PETA had intended to resubmit a modified design, a letter from PETA’s attorney to the CowParade Organizers dated May 18, 2000 indicated that PETA had reconsidered and determined that no alternative design was acceptable and requested Cow-Parade to reverse its decision. See City Deck, Ex. I. The CowParade Organizers did not reverse their decision, and the present action was commenced on May 25, 2000, when PETA filed its complaint with the Court. Oral argument was heard on June 29, 2000. PETA’s complaint alleges that defendants violated 42 U.S.C. § 1983 and PETA’s free speech rights under the First and Fourteenth Amendments of the United States Constitution and under Article I, Section 8 of the New York State Constitution. On these claims, PETA seeks declaratory and injunctive relief and damages. PETA further claims that CowParade NYC 2000 breached its agreement with PETA by not allowing it to display both cows and that the breach should be remedied by specific performance and damages. STANDARD OF REVIEW ON INJUNCTION As an initial matter, the Court must resolve the disagreement between the parties as to the nature of the injunction PETA seeks. PETA claims that its requested injunction to preclude defendants from denying PETA access to the exhibit is “prohibitory” in nature, while the City and CowParade Organizers claim that PETA is seeking a “mandatory” injunction. A preliminary injunction, ordinarily deemed prohibitory when it is sought to maintain the status quo ante pending a full hearing on the merits, may be granted if the movant establishes both “irreparable harm and either (a) a likelihood of success on the merits or (b) a sufficiently serious question going to the merits, with a balance of hardships tipping in favor of the party requesting the preliminary injunction.” Tunick v. Safir, 209 F.3d 67, 70 (2d Cir.2000). A higher standard applies, however, if the requested injunction is “mandatory,” altering rather than maintaining the status quo, or if the injunction will provide the movant with substantially all the relief sought and that relief cannot be undone even if defendant prevails at a trial on the merits. See id.; Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 34 (2d Cir.1995). In that event, the injunction may issue “only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief.” Tom Doherty, 60 F.3d at 34 (citations omitted). See also Neiv York Magazine v. Metropolitan Transit Auth., 136 F.3d 123, 127 (2d Cir.1998) (requiring a movant for a mandatory injunction to show not only a likelihood but a “clear” or “substantial” likelihood of success on the merits). PETA argues that the status quo should be read as that set forth in the Sponsorship Agreement, meaning that PETA’s second cow should be accepted and thus displayed. However, to find that the status quo represents the interpretation of one party to the very agreement contested in this litigation is to decide the merits of the contract claim. That view also ignores the reality of the situation. The status quo reflects conditions as they actually are. This reality is that PETA’s second cow design was denied by the Committee and is not being displayed, the decision and actual condition PETA seeks an injunction to reverse. In PETA’s view, the injunction it seeks essentially would direct defendants to stop prohibiting the PETA cow from being displayed. “Stop prohibiting” is but a semantic reverse side of the same coinage as “start permitting.” Thus, an order to enjoin defendants from prohibiting PETA’s display is still a mandatory order compelling them to exhibit the rejected design. The Court finds that the reality of the status quo demands that PETA’s application be considered to constitute a request for a mandatory injunction. Therefore, in order to obtain a preliminary injunction, PETA must show (1) that it will suffer some irreparable harm if the injunction does not issue and (2) either a clear or substantial likelihood of success on the merits, or extreme or very serious damage absent the preliminary relief. See Tunick, 209 F.3d at 70; Tom Doherty, 60 F.3d at 34. IRREPARABLE HARM As discussed below, the claims PETA asserts implicate its First Amendment rights. The Second Circuit reaffirmed recently that, “[bjecause First Amendment rights are presumed irreparable,” Tunick, 209 F.3d at 70 (citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547, (1976)), allegations directly implicating these rights, by their “very nature,” satisfy the irreparable injury requirement for a preliminary injunction. Id. LIKELIHOOD OF SUCCESS ON THE MERITS The Court turns directly to the second prong of the required showing for a mandatory preliminary injunction: the mov-ant’s substantial likelihood of success on the merits. To assess the prospects that PETA eventually may prevail in this action, the Court must evaluate the claims in light of applicable First Amendment doctrine. This task entails a review of the relevant property to which PETA seeks access for its cow design, the relevant forum and purposes for which the government opened access to its property for expressive activities, and the standard of review appropriate for the relevant forum. APPLICABILITY OF FIRST AMENDMENT To state a claim under 42 U.S.C. § 1983, a plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law and (2) that such conduct deprived the plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States. 42 U.S.C. § 1983 (2000); West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Here, PETA claims that it was deprived of its rights under the Free Expression Clause of the First Amendment of the United States Constitution, as applied to the States by the Fourteenth Amendment. Two threshold issues must be resolved in connection with the relief PETA seeks. These are whether the CowParade exhibit entailed speech protected by the First Amendment and whether the alleged violations resulted from state action. The parties do not contest either of these issues, and the Court determines that both prerequisites have been adequately demonstrated. By its very nature, the CowPar-ade is an exhibit of art, a quintessential form of expression. Artistic expression, whether written or visual, is clearly protected by the First Amendment. See Bery v. City of New York, 97 F.3d 689, 696 (2d Cir.1996) (stating that paintings and sculptures are entitled to “full First Amendment protection”). As PETA’s CowPar-ade design consisted of protected speech, the rejection of PETA’s proposal in essence could constitute a content-based restriction on the right of free expression actionable under 42 U.S.C. § 1983 if carried out under color of state law. Defendants here comprise the City of New York and the CowParade Organizers acting in a public-private partnership to carry out the exhibit. For the purposes of stating a claim under 42 U.S.C. § 1983, private defendants’ actions may be attributed to the state where private and public entities engage in a “symbiotic relationship” through which the alleged constitutional violation is carried out. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961)(where “[t]he State has so far insinuated itself into a position of interdependence with [a private entity] ... it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been ... purely private.... ”). Here, the City and the private CowParade Organizers concede that they formed a public-private partnership that gave rise to such a symbiotic relationship. See City Defendant’s Memorandum of Law in Opposition to PETA’s Motion for a Preliminary Injunction, dated June 22, 2000 (“City Memo”) at 3. The contractual agreement between the City and the CowParade Organizers, coupled with the significant regulation and control over the event that was exercised by the City, created a sufficient link between the public and private entities, placing the CowParade activities under the umbrella of state action sufficient to satisfy the requirements of 42 U.S.C. § 1983. THE FORUM At its core, the controversy before this Court involves a conflict between, on the one hand, PETA’s right to engage in protected speech in public spaces and, on the other, the scope of the government’s authority to infringe upon freedom of expression as a direct or incidental effect of managing its affairs involving the use of public properties for their intended purposes. As a starting point for resolving such fundamental disputes, the United States Supreme Court has formulated an approach grounded on First Amendment forum analysis. See Perry Educ. Ass’n v. Perry Local Educ. Ass’n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). The approach encompasses a judicial inquiry to determine the relevant forum, public property and government purposes associated with the alleged violation of free speech. The classification of the forum identifies the applicable standard of judicial scrutiny the state action must satisfy for the Court to sustain a restriction on protected expression. Central to the forum doctrine is that both the “existence of a right of access to public property and the standard by which limitations upon such right must be evaluated differ depending on the character of the property at issue.” Perry, 460 U.S. at 44, 103 S.Ct. 948. The relevant forum and the accompanying level of review are intensely contested in this action. The outcome of the case turns on this determination. In examining pertinent case law, however, this Court encountered substantial ambiguities related both to forum designation and the attendant degree of scrutiny, concluding that the disposition of this case requires a resolution of these uncertainties. Because the matter is so pivotal to the ultimate result here, the Court finds it necessary, as the basis for a properly grounded decision, to review extensively the treatment of the public forum doctrine by both the Supreme Court and the Second Circuit. Supreme Court Public Forum Doctrine In Perry, the Supreme Court identified and defined three distinct types of forums. The first is the “quintessential public forum.” Id. at 45, 103 S.Ct. 948. A traditional public forum encompasses “places which by long tradition or government fiat have been devoted to assembly and debate,” such as streets and parks to which general public access for expressive activities historically has been available and recognized. Id. In public forums so classified, the government may enforce content-based exclusions and promulgate content-neutral time, place and manner regulations of speech if it demonstrates that the limitation is “necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Id. At the other end of the spectrum is the category known as “nonpublic forum,” which consists of public property that is neither by tradition nor purposeful government designatión a forum for public discourse or debate. See id. at 46, 103 S.Ct. 948. The government may reserve a nonpublic forum for its intended purposes, “communicative or otherwise,” as long as the regulation on speech “is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Id. at 46, 103 S.Ct. 948 (citing United States Postal Serv. v. Greenburgh Civic Ass’n, 453 U.S. 114, 131, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981)). In between these types of forums, Perry further identifies a variety that comprises “public property which the state has opened for use by the public as a place for expressive activity.” Id. at 45, 103 S.Ct. 948. Although a government is not obliged to retain the open character of property indefinitely, so long as it does so, any content-based restriction must satisfy the same compelling governmental interest test that also applies to a traditional public forum. See id. at 46, 103 S.Ct. 948. In a footnote further elaborating and illustrating this category, the Court declared that a public forum can be created either for a limited purpose, such as use by particular groups, or for the discussion of certain subjects. See id. at 46 n. 7, 103 S.Ct. 948. Offering a specific example, the Court assumed that by granting access to charitable organizations a school district “has created a ‘limited’ forum” extending only to other entities of a similar character. Id. at 48, 103 S.Ct. 948. The middle concept of the “designated” or “limited” public forum has engendered the ambiguities and resulting doubts this Court has encountered in applying the doctrine and determining the relevant forum to resolve the case at hand. The uncertainties arise because in Perry, in describing this intermediate category that lies between a traditional public forum and the nonpublic forum, the Supreme Court does not specifically label the classification as a “designated” or a “limited” forum as such, although in defining and referring solely to this type of forum the Court does indicate explicitly that the category is a species of public forum that arises by government “designation” and that may be created “for a limited purpose.” Id. at 46 n. 7, 103 S.Ct. 948. Two years after Perry, the Supreme Court confirmed its articulation of the public and nonpublic forums as previously defined, as well as the respective standard of judicial review. See Cornelius, 473 U.S. at 799, 105 S.Ct. 3439. Regarding the intermediate category of forums, the Court, still without explicitly naming it as a “limited public forum”, expanded on the definition. Elevating the footnoted example from Perry to the body of its opinion, the Cornelius Court underscored that this forum comes about by intentional “government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects.” Id. at 802, 105 S.Ct. 3439. However, the Court also reaffirmed that the strict scrutiny test applies to these intentionally designated forums, thereby requiring a showing of a compelling governmental interest as the basis for exclusion. Id. at 800, 105 S.Ct. 3439. In both Perry and Cornelius, the Supreme Court held that the forums in dispute were nonpublic. It therefore did not have the occasion there to label or apply its forum analysis to its concept of the public forum by designation. In a case predating Perry and Cornelius, however, and one of the few cases considered by the Court where a forum of the intermediate category was actually found, the Court determined that an annual state fair open to the general public that limited solicitation to rented booths constituted a “limited public forum.” Heffron v. International Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 655, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). The Court sustained the limitation under a strict scrutiny standard. See id. ba subsequent cases, the Supreme Court maintained its distinctions between public, designated and nonpublic forum classifications and the applicable judicial standard for each. In International Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992), the Court explicitly labeled the second variety as the “designated” public forum and for the first time acknowledged possible subsets of this category. The Court noted that a designated forum could be either “of a limited or unlimited character” and encompasses property that the state has opened for expressive activity “by part or all of the public.” Id. at 678, 101 S.Ct. 2559 (emphasis added). But the Court did not elaborate on the distinction between the limited and unlimited subcategories and repeated its previous rule subjecting a designated public forum, whether limited or unlimited, to the same standard of review governing a traditional public forum. See id. at 678, 101 S.Ct. 2559; Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 392, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). As of Lee, therefore, the intermediate category of forum the Court described was variably referred to as “designated” or “limited,” leaving beyond doubt that the Court had in mind only one main category, or at the very least a category and a subset of it. See Lee, 505 U.S. at 678-79, 112 S.Ct. 2701. Whatever the name, the Court’s cases discussed above make two points clear: that the designated classification is a kind of public forum, and that it is subject to the same heightened level of scrutiny as the traditional public forum. Yet, Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) introduces some uncertainty which has carried forward to the application of the public forum concept by the Second Circuit and thus bears importantly in the case before this Court. The Rosenberger Court classified a public forum reserved for use by certain groups or for the discussion of certain topics as a “limited forum,” consistent with the definition and nomenclature the Court previously had used to describe the intermediate category in the cases from Perry through Lee. See id. at 829, 115 S.Ct. 2510. The case has particular relevance because the Court’s forum consideration suggests as its starting point that the forum the university created by its method of allocating student activities fees was a limited public forum. Of greater import, however, the Rosenberger Court explained: “[o]nce it has opened a limited forum ... [t]he State may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum nor may it discriminate against speech on the basis of its viewpoint.” Id. at 829, 115 S.Ct. 2510 (emphasis added). This formulation of the pertinent degree of scrutiny describes the test the Court from Pen'y onward had adopted and applied to the nonpublic forum. Thus, the Rosenberger Court applied a minimal standard of First Amendment review to content-based exclusion in the “limited” public forum it found, rather than the more stringent compelling state interest standard. To add to the complexity and to this Court’s resulting doubts, it is worth noting that the Court in Rosenber-ger distinguished the “reasonableness” test, which it declared appropriate for content discrimination in a “limited forum,” from vievupoint discrimination in a limited forum, for which it stated strict scrutiny applies. See id. at 829-80, 115 S.Ct. 2510. Moreover, in formulating its application of the reasonable test for a limited public forum, the Rosenberger Court cited Cornelius and Perry, although those cases set forth the “reasonableness” test as applicable only in regard to nonpublic forums. See id. at 829, 115 S.Ct. 2510; Cornelius, 473 U.S. at 802, 105 S.Ct. 3489; Perry, 460 U.S. at 46 n. 7, 103 S.Ct. 948. A more recent Supreme Court articulation of these principles, however, reverted to the categories of speech forums established in Cornelius and Perry. See Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666, 678-79, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998). Without reference to the distinction raised by Ro-senberger, or indeed any mention of the case, the Court in Forbes referred to the intermediate category by name as a designated public forum and discussed at length both its attributes and its distinctions from a nonpublic forum. See id. at 678-79, 118 S.Ct. 1633. The Court identified as perhaps the most defining quality of a designated forum the government’s intent to open the property “generally” to a class of speakers, stressing that the forum “is not created when the government allows selective access for individual speakers rather than general access for a class of speakers.” Id. Summarizing the distinction, the Court stated that the government’s intentional opening of “general access” to a certain class of speakers indicates a designated public forum, and that giving “selective access” to a particular class of speakers whose members must then individually “obtain permission” denotes a nonpublic forum. See id. Second Circuit Cases Taking note of the ambiguities described above, the Second Circuit stated in Fighting Finest, Inc. v. Bratton that “[t]he Supreme Court has sent somewhat mixed signals as to the criteria for identifying a ‘limited’ public forum.” 95 F.3d 224, 229 (2d Cir.1996). As a consequence of this uncertainty, the Circuit Court’s application of the public forum doctrine may be subject to different interpretations. First articulated in Deeper Life Christian Fellowship, Inc. v. Board of Educ., 852 F.2d 676 (2d Cir.1988), the Second Circuit’s formulation has reflected the “mixed signals” it traced to Perry and Cornelius. There, the Court of Appeals, referring to those cases, declared that “under the limited public forum analysis, property remains a nonpublic forum as to all unspecified uses, and exclusion of uses — even if based on subject matter or the speaker’s identity — need only be reasonable and viewpoint-neutral to pass constitutional muster.” Id. at 679-80 (emphasis added) (citations omitted). Citing Deeper Life, the Circuit Court elaborated on the concept of the limited public forum in Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688 (1991). The Travis court, after reciting the three categories of forums and the corresponding constitutional scrutiny standards described by the Supreme Court, declared that “we have identified a sub-category of the designated forum that we have styled the limited public forum’.” Id. at 692 (emphasis added). The Court defined its concept of the limited forum as one created when government opens a nonpublic forum but limits expressive activity to certain kinds of speakers or the discussion of particular subjects. Id. The court then explained that, in a limited public forum, the government can “impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.” Id. Although the court chose not to address whether the forum at issue before it was a “designated forum used for indiscriminate expressive activity by the public at large” or “only a limited forum”, it concluded that even if the forum was of the limited variety, access to it could not be denied “absent a sufficient constitutional justification.” Id. at 692-93. The court thus applied strict scrutiny review to hold that the school district had impermissibly excluded the expressive use in question. See id.; see also New York Magazine, 136 F.3d at 128 n. 2 (reaffirming the Circuit Court’s reference to the limited forum as a sub-category of the designated public forum). The Circuit Court’s next major treatment of forum analysis occurred in Lebron v. National R.R. Passenger Corp., 69 F.3d 650 (2d Cir.1995). There, the Second Circuit was called upon to decide whether Amtrak’s “Spectacular” commercial advertising sign at New York City’s Penn Station constituted a public forum prohibiting the exclusion of a particular public issue message. See id. at 656. Rejecting Le-bron’s public forum argument, the court concluded that “most likely, [the sign] is a nonpublic forum, or perhaps it is a limited public forum opened for purely commercial speech.” Id. In either event, the court stated that the minimal standard of review applied, upholding the exclusions of speech as long as they are “viewpoint-neutral and reasonable in relation to the forum’s purpose.” Id. The Lebrón court grouped both nonpublic and limited public forums under the category of “not [being] a public forum.” Id. However, the concept of the “limited” public forum as described by Supreme Court, other than in Rosenberger, consistently referred to this kind of forum synonymously with the designated forum, or as a type of public forum. Nonetheless, the Lebrón court, citing Lee, also referred to designated public forums as either limited or unlimited. See id. at 655, 112 S.Ct. 2701. Lebrón thereby left open numerous definitional questions. These conceptual conundrums include: whether there is only one version of the limited public forum or actually two, each a subgroup of the designated forum and of the nonpublic forum respectively; the difference between a designated public forum that is limited and one unlimited; the definition of a limited public forum that may be neither a designated public forum nor a nonpublic forum; the distinction between a limited forum that may be a sub-category of the designated forum and one that derives as a subset of the nonpublic forum. One year after Lebrón, the Second Circuit, commenting on the mixed signals emanating from the Supreme Court’s notion of the limited forum, effectively equated designated public forums with limited public forums, using the two terms interchangeably. See Bratton, 95 F.3d at 229. The court also held that the appropriate level of scrutiny in a designated/limited public forum can be either “necessary and compelling” or “reasonableness,” depending on whether or not the excluded speaker falls within the purpose for which the forum was created. See id. “Where a speaker comes within that purpose, the State is generally subject to the same strict scrutiny that applies to traditional public forums.... Where the speaker does not come within that purpose, however, the State is subject to only minimal constitutional scrutiny.” Id. (citation omitted). The Circuit Court then decided Bronx Household v. Community Sch. Dist. No. 10, 127 F.3d 207 (2d Cir.1997). Reiterating the now familiar recitation of the Supreme Court’s framework of three types of public forums, and citing Perry, Cornelius and Lee, the Court of Appeals referred to the designated public forum, “sometimes called the ‘limited public forum’.” Id. at 211. Then, quoting Cornelius that limited public forums are “created by government designation” and applying the standard of review applicable to nonpublic forums, the Circuit Court declared that restrictions on access to limited public forums are permissible if the distinctions are reasonable and viewpoint neutral. See id. at 211-12. Finally, in a very recent pronouncement regarding forum analysis, the Second Circuit once more equated “designated forums or limited public forums” as occupying the intermediate category, reaffirming both the definition and the standard of review applied to them in Bronx Household. See Good News Club v. Milford Cent. Sch. 202 F.3d 502, 504 (2d Cir.2000). Citing Rosenberger and Bronx Household, the Circuit Court expressly held that “restrictions on speech in a limited public forum will withstand First Amendment challenge if they are reasonable and viewpoint neutral.” Id. at 509. It appears therefore that the case law identifying the limited public forum has defined it as (1) a term synonymous and used interchangeably with a designated public forum; (2) a distinct subcategory of the designated forum; and (3) an outgrowth of a nonpublic forum. And the pertinent standard of First Amendment review has been applied either as strict scrutiny or as the minimal standard of reasonableness, or both. Where does this analysis lead, and what conclusions may a court draw from it when presented with a controversy whose resolution rests precisely on the application of these principles? To say that the ambiguities described have left this Court benumbed and bewildered is only modestly overstated. A forecast of the likelihood of success on the merits of the dispute before this Court necessarily depends on clarification of the doubts the Court has described regarding what category of forum exists here and what standard of review applies to it. As a means of overcoming potential stasis so as to enable the Court to decide the case at hand, and to • reconcile the apparent uncertainty which has been noted by at least one other court in this District, this Court humbly offers a possible interpretation and an application of the forum doctrine that may achieve these ends. In light of the extensive treatment of the distinction between the designated public forum and the nonpublic forum contained in Forbes, the limited forum classification styled by the Second Circuit as a “subcategory of the designated forum,” see Travis, 927 F.2d at 692, may be more appropriately termed a variety of the nonpublic forum, i.e., one ordinarily closed to the general public but to which the government has opened access not “generally” but limited “selectively” to certain particular genres of expressive activities or speakers. See Forbes, 523 U.S. at 678-79, 118 S.Ct. 1633; Summum, 130 F.3d 906. This approach would maintain the symmetry between the forum classifications and better comport with the Supreme Court’s most prevalent formulation. More importantly, it would explain why the lesser First Amendment scrutiny associated with nonpublic forums would apply to the version of “limited” public forum so defined, rather than the higher level of review that logically should apply if the limited forum were instead generically classified as a subset of the designated public forum, again reflecting the Supreme Court’s more common articulation of the constitutional standard for the designated forum. This reading, in fact, is consistent with the Second Circuit’s own formulation in both Deeper Life and Travis. In the former, the Circuit Court stated that under limited public forum analysis “property remains nonpublic forum” as to all unspecified uses. Deeper Life, 852 F.2d at 679 (emphasis added). And in Travis, the court, elaborating on the derivation of the limited public forum, declared that the category is created when government “opens a nonpublic forum” but limits expressive activity to certain speakers or subjects. Travis, 927 F.2d at 692 (emphasis added). If this derivative forum conceptually traces its Second Circuit doctrinal origins to the opening of a nonpublic forum, arguably its classification and legal attributes should parallel those of the nonpublic rather than those of the designated forum: selective access to a particular segment of the public and the correspondingly lesser constitutional standard of review. The parallel would work at the other end as well. The traditional public forum and the designated public forum, as most consistently articulated by the Supreme Court, have one aspect in common: both permit open access generally for “indiscriminate expressive activity by the public at large.” Travis, 927 F.2d at 692. In the case of the traditional forum, the general public’s right of access for expressive activities derives from the special status and historical role of the property and objective characteristics of the property itself “regardless of the government’s intent.” See Forbes, 523 U.S. at 678, 118 S.Ct. 1633. Regarding the designated forum, the speech right arises by virtue of purposeful government opening of property conferring such general access. Flowing from that shared element of larger public openness is the Court’s application of the same standard of First Amendment scrutiny to any derogation of the more generally available right of access. Similarly, the nonpublic forum and the limited public forum as here construed share a quality related to the nature of the public space and the government’s intention in relation to public access for expressive purposes it permits on the property, from which follows the corresponding lower level of First Amendment review. As regards nonpublic forums, government property is either not generally accessible to members of the public because it is not suitable for such open access, or, pursuant to stated government policy or practice, it may be declared accessible only to a smaller, specifically defined segment of the public or limited to a particular class of speakers or subjects. To this extent, both instances entail the government retaining and exercising a greater measure of control over its internal operations with respect to the property in question, as well as curtailing the rights of access to expressive activities, not of the indiscriminate public at large, but of a selected smaller portion of it. Accordingly, consistent with the Supreme Court’s public forum doctrine and associated distinctions, a lesser standard of First Amendment scrutiny is justified. For the purposes of resolving the dispute at hand, the Court will construe the Second Circuit’s application of the limited forum concept in accordance with this Court’s understanding of it as discussed above. Using this framework as a guide, the Court now proceeds to consider the relevant forum applicable here, examining first the divergent theories urged by the parties. PETA contends that the CowPar-ade exhibit constitutes a public forum in and of itself because it is situated on traditional public properties used for expressive purposes. PETA also suggests that the forum must be defined by the public property to which PETA sought access — the sidewalks, parks and plazas designated by the City to contain the CowParade’s artwork. In contrast, the City argues that the forum it created for the purposes of the CowParade is a limited public forum. Traditional Public Forum PETA argues that absent a compelling government interest, the City has no authority to transform traditional public property, like parks or sidewalks, for purposes of limited expressive activities such as those the CowParade entails, without allowing unrestricted access to every organization that wishes to participate. In other words, once the City chooses to locate an expressive event on traditional public spaces, it must open that event to all entrants on an equal basis and “must live with the constitutional consequences.” Reply Brief of PETA in Support of its Motion for Preliminary Injunction, dated June 26, 2000, at 8 n. 1. Any limitations placed on such access must be justified under strict First Amendment scrutiny. See id. at 8. PETA’s contention represents one of the unique dimensions raised by this case. Under this approach, the issue is not the opening of otherwise nonpublic government property for particular expressive purposes but the closing, or more precisely the temporary reservation, of some portions of traditional public spaces for the purpose of accommodating limited expressive activities. Broadly construed, PETA’s theory implies that the status of traditional public forum property is immutable and that once parks, streets, sidewalks and plazas are so dedicated, they maintain their public forum quality for all purposes and at all times. Therefore, they must remain open for expressive activities with unrestricted access to the public at large, except when the government makes a justifiable case that the properties are required to serve another compelling state interest. At least as it relates to expressive activities, the argument may be sound if the premise were valid that any use of public spaces the government permits for expressive purposes on any portion of traditional public property automatically transforms the space into a public forum. PETA’s contention therefore raises a threshold issue. Can the government, without demonstrating a compelling state interest, dedicate a portion of traditional public property such as a park, plaza, sidewalk or street for the purposes of conducting a public event for expressive activities that limits access to particular speakers or to particular forms of speech? In other words, using the parlance of the public forum doctrine, may the government create a limited or a nonpublic forum within the confines of traditional public forum property without strict First Amendment justification? Any consideration of this issue must take as its point of departure the principle that “[traditional public forum property occupies a special position in terms of First Amendment protection.” United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). Public streets, parks, sidewalks and plazas are accorded this unique recognition because, in the Court’s oft-quoted words, they have “immemorially been held in trust for the use of the public for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of streets and public places has, from ancient times, been part of the privileges, immunities, rights and liberties of citizens.” Hague v. Committee for Indust. Ops., 807 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). By virtue of the vital historical role these spaces have served as avenues for free expression, and given the interest all members of the public share in a guarantee of the freest access to them for these purposes, traditional public properties constitute public forums per se. General access to them sought for open assembly and debate available to the public at large preexists and is presumed “regardless of the government’s intent.” Forbes, 523 U.S. at 678, 118 S.Ct. 1633. Availability for general expressive purposes is not a matter of grace by government officials but rather is inherent in the open quality of the locations. See United States v. Kokinda, 497 U.S. 720, 743, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990). Reaffirming the elevated standing conferred upon public forum spaces, the Supreme Court has recognized limits on the government’s ability to restrict all protected expression on sidewalks, stating that a prohibition that results in the destruction of public forum status is “at least presumptively impermissible.” Grace, 461 U.S. at 180, 103 S.Ct. 1702. The Grace Court added that the government also may not transform the character of public forum property “by the expedient of including it within the statutory definition of what might be considered nonpublic forum” property. Id. See also Greenburgh Civic, 453 U.S. at 133, 101 S.Ct. 2676 (“Congress, no more than a suburban township, may not by its own ipse dixit destroy the ‘public forum’ status of streets and parks which have historically been public forums.... ”). At the same time, however, the Supreme Court has recognized that the “First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” Greenburgh Civic, 453 U.S. at 129, 101 S.Ct. 2676. This principle was underscored in Cornelius, 473 U.S. at 799, 105 S.Ct. 3439. There, the Court noted that “[njothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” Id. at 799, 105 S.Ct. 3439. Accordingly, the state may establish a forum on public property and reserve it for its intended purpose, “communicative or otherwise”, “as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speakers view.” Perry, 460 U.S. at 46, 103 S.Ct. 948. Driving these principles is a vital government interest in matters of public governance concerning the scope of the state’s authority to exercise dominion and control over public spaces. The Supreme Court has repeatedly given expression to the bounds of this interest, asserting that “[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” Adderley v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). See Perry, 460 U.S. at 46, 103 S.Ct. 948; Greenburgh Civic, 453 U.S. at 129, 101 S.Ct. 2676; Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976). The right of the people to have general access to traditional public places for expressive activities sometimes competes with the interests of the state, in the course of internal governance, to exercise control over public property. On the occasions the Supreme Court has been called upon to resolve conflicts and apply the preceding general principles, it has attempted to balance and reconcile these divergent interests. The equilibrium the Court has strived for applies the logic and wisdom of both sets of interests, seeking to promote broad public access for expressive purposes, while at the same time allowing government discretion to achieve the purposes for which public properties are intended in light of the various conflicting interests that often simultaneously compete for their use. To this end, the Court has considered and consistently rejected the categorical proposition PETA advances here. In Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), a political candidate was denied access to place a campaign advertisement on the commercial “car cards” located on city transit vehicles. The city’s transit system, by policy and longstanding practice, did not permit any political or public issue advertising on its buses, although it had accepted ads from commercial establishments and public interest groups. Lehman contended that, presumably because the buses operated on public streets, the car cards they carried for advertising therefore constituted a public forum protected by the First Amendment, and that there was a guarantee of nondiscriminatory access to such publicly owned and controlled areas of communication “regardless of the primary purpose for which the area is dedicated.” Id. at 801, 94 S.Ct. 2714. The Court acknowledged that while its jurisprudence, in light of the First Amendment, has been jealous to preserve access to public spaces for purposes of free speech, “the nature of the forum and conflicting interests involved have remained important in determining the degree of protection afforded by the Amendment to the speech in question.” Id. at 302-08, 94 S.Ct. 2714. Noting that the transit system’s car cards were part of a commercial venture in which the city was engaged, and that the city had consciously limited access to the spaces, the Court found “no First Amendment forum.” Id. at 304, 94 S.Ct. 2714. Accordingly, in examining the constitutionality of the state action, the standard applied was whether the policies and practices in question were “arbitrary, capricious, or invidious.” Id. at 303, 94 S.Ct. 2714. In a somewhat differ