The opinion of the court was delivered by: Stephen M. Orlofsky United States District Judge
First Puerto Rican Festival of New Jersey, Inc. ("Plaintiff"), filed this action against the City of Vineland (the "City"), the City's Mayor, Anthony Campanella, and the City of Vineland Board of Recreation Commissioners (collectively "Defendants") alleging that City of Vineland Ordininance Nos. 97-85 and 97-86 (collectively the "Ordinances") enacted by the City on November 25, 1997, have a chilling effect on Plaintiff's planned parade and festival in violation of, inter alia, the First Amendment to the United States Constitution. For the reasons set forth below, Plaintiff's motion for a temporary restraining order will be granted.
For the past thirty years, Plaintiff has held an annual festival in the City celebrating Puerto Rican culture and identity. This year, Plaintiff has scheduled its week-long festival and parade to run from July 19 through July 26. It is uncontested that City of Vineland Ordinance No. 97-85, regulating the use of public parks, and City of Vineland Ordinance No. 97-86, regulating the use of streets, would require Plaintiff to reimburse the City for all "extraordinary costs" incurred by the City for Plaintiff's festival and parade. See Ord. No. 97-85 § 4(B); Ord. No. 97-86 § 5(C). Moreover, both Ordinances define "extraordinary costs" to include overtime pay for necessary police officers, but provide that "[e]xtraordinary costs shall not relate to any costs associated with the content of the speech, message or information disseminated." See Ord. No. 97-85 § 1(K); Ord. No. 97-86 § 1(L). *fn1
Accordingly, Defendants granted the necessary permits to Plaintiff to allow the parade and festival to proceed contingent upon the reimbursement of the City by Plaintiff for "extraordinary costs." Plaintiff filed this action on July 7, 1998, and simultaneously moved for an order pursuant to Fed. R. Civ. P. 65 temporarily restraining Defendants from enforcing the reimbursement requirements of the Ordinances. By telephone conference calls with counsel on July 7, 1998, and July 8, 1998, the Court established a briefing schedule. On July 14, 1998, this Court heard oral arguments on Plaintiff's motion, the merits of which are discussed below.
On a motion for preliminary injunctive relief, "the moving party must demonstrate both: (1) a likelihood of success on the merits; and (2) the probability of irreparable harm if relief is not granted. In addition to these showings by the moving party, the Court must also consider: (3) the effect of the grant of preliminary relief on the non-moving party; and (4) whether the public interest will be served by the preliminary injunctive relief." See Assisted Living Associates of Moorestown, L.L.C. v. Moorestown Township, 996 F. Supp. 409, 433 (D.N.J. 1998) (citing, e.g., Schulz v. United States Boxing Association, 105 F.3d 127, 131 n.6 (3d Cir. 1997)); see also Marilyn Manson, Inc. v. New Jersey Sports & Exposition Authority, 971 F. Supp. 875, 883 (D.N.J. 1997).
Neither party has stated the correct legal standard for evaluating irreparable harm in a First Amendment case in the Third Circuit. Defendants rely on the standard applied in typical civil cases. See Defendants' Brief in Opposition to Plaintiff's Motion for Temporary Restraints (dated Jul. 10, 1998) 15-16. Plaintiff at least cites Elrod v. Burns, 427 U.S. 347 (1976), for the proposition that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Id. at 347. Plaintiff, however, interprets this language to mean that a First Amendment challenge per se involves irreparable harm.
In this circuit, however, a First Amendment challenge does not necessarily imply a loss of First Amendment freedoms and therefore "the assertion of First Amendment rights does not automatically require a finding of irreparable injury." Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir.), cert. denied, 493 U.S. 848 (1989); see Waterman v. Verniero, __ F. Supp. __, 1998 WL 354932, *15 (D.N.J. Jun. 29, 1998). Instead, the Third Circuit has held that in order to establish the probability of irreparable harm, Plaintiff must demonstrate "a chilling effect on free expression." Hohe, 868 F.2d at 73; Waterman, 1998 WL 354932 at *15.
Plaintiff has alleged that "the imposition of these costs will make it impossible to hold the festival and parade." See Affidavit of Leonides Negron (dated Jul. 7, 1998) ("Negron Aff.") ¶ 20. Defendants have provided evidence which tends to undermine the extent of Plaintiff's financial instability, see Affidavit of Louis Cresci (dated Jul. 10, 1998), but on the limited record before me, I conclude that Plaintiff has made the required showing that the Ordinances as applied in this case will "chill" the ...