Defendants Howard Safir, in his official capacity as the Police Commissioner of the City of New York, and the City of New York (collectively "the City") appeal from the grant of a preliminary injunction by the United States District Court for the Southern District of New York (Harold Baer, Jr., Judge). The district court prohibited the City from interfering with a proposed photo shoot of 75 to 100 nude models arranged in an abstract formation, to be conducted by plaintiff Spencer Tunick on Sunday, July 18, 1999, between 5:30 a.m. and 6:30 a.m. in a residential Manhattan neighborhood. The City contends that the injunction must fall, because New York state law prohibits public nudity, see N.Y. Pen. Law 245.01 (McKinney 1989), and the promotion thereof, see id. 245.02, and because the exemption1 contained within the Penal Law does not apply to plaintiff's proposed photo shoot.

On July 17, 1999, a three-judge panel of this court stayed the preliminary injunction and calendared this appeal for expedited review. On consideration of the briefs, appendix, record, and oral argument, we have concluded that we should certify the following questions to the New York Court of Appeals: (1) whether a photographic shoot involving 75 to 100 nude models arranged in an abstract formation on a public street constitutes entertainment or performance in a "play, exhibition, show or entertainment" within the meaning of the exemption to N.Y. Pen. Law 245.01 and 245.02; (2) if the answer to the first question is yes, whether the exemption to N.Y. Pen. Law 245.01 and 245.02 is limited to indoor activities; and (3) if the answer to the first question is no, or if the answers to the first and second questions are both yes, whether N.Y. Pen. Law 245.01 and 245.02, so interpreted, are valid under the Constitution of the State of New York.

Plaintiff Spencer Tunick is an artist internationally recognized for his photographs of nude bodies in public space. His curriculum vitae includes a long and impressive list of solo and group exhibitions. He has orchestrated numerous nude photo shoots in Manhattan without a permit from the City.2 As a result of these actions, he has been arrested on five occasions. Charges in all of those cases were ultimately dismissed. Tunick obtained a permit from the City for a recent photo shoot involving clothed models, to take place on June 6, 1999. Police were present, and they made clear that anyone who disrobed would be arrested. The models remained clothed, and the photo shoot proceeded.

In July 1999, Tunick applied to the City for two permits to conduct a photo shoot on Madison Street, between Catherine and Market Streets, from 5:30 a.m. to 6:30 a.m. on Sunday, July 18, 1999. The neighborhood is predominantly residential. The applications indicated that 75 to 100 nude models were to be arranged in an abstract formation and that the duration of the actual shoot would be no more than five minutes. The conditions described in the two permit applications were identical, except in one regard. In the first, the models would be nude; in the second, clothed. The City denied permission for the nude photo shoot but granted the permit for the clothed shoot.

Plaintiff filed this complaint on July 13, 1999. Alleging that he had been arrested for arranging nude photo shoots in the past, that the City had prevented him from photographing nude models on June 6, 1999, and that the City was likely to interfere with the planned photo shoot on July 18, 1999 if the models were nude, he claimed that defendants violated his rights under, inter alia, the First Amendment. He asserted that his artistic expression was constitutionally protected and emphasized that, although New York state law criminalizes public nudity, the proposed photo shoot fell under the statutory exemption for "a play, exhibition, show or entertainment." N.Y. Pen. Law 245.01, 245.02. Tunick sought preliminary and permanent injunctive relief. On July 16, 1999, the district court granted a preliminary injunction prohibiting the City from interfering with the nude photo shoot on Sunday, July 18, 1999, as described in the permit application. The court below found that plaintiff had established a substantial likelihood of success on the merits of his claim both because nude photography was constitutionally protected artistic expression and because it fell under the exemption to 245.01 and 245.02.3

We review a district court's grant of a preliminary injunction for abuse of discretion. See Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 68 (2d Cir. 1999). Because this case involves First Amendment rights, this Court must make an independent examination of the record as a whole, and cannot defer to the factual findings of the court below. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984).

In order to obtain a preliminary injunction, a party must establish 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. See Otokoyama Co. v. Wine of Japan Import, Inc., 175 F.3d 266, 270 (2d Cir. 1999). In this case, however, plaintiff seeks a mandatory injunction, that is, he asks to "stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme." Bery v. City of New York, 97 F.3d 689, 694 (2d Cir. 1996) (quoting Plaza Health Lab., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989)) (internal quotation marks omitted), cert. denied, 520 U.S. 1251 (1997). He therefore must satisfy "the more rigorous likelihood-of-success standard." Id. In other words, Tunick must establish a clear or substantial likelihood of success on the merits. See Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 34 (2d Cir. 1995).

Because violations of First Amendment rights are presumed irreparable, see Elrod v. Burns, 427 U.S. 347, 373 (1976), "the very nature of [plaintiff's] allegations" satisfies the requirement that he show irreparable injury. Bery, 97 F.3d at 694. The only issue in this case, therefore, is whether Tunick has established a clear or substantial likelihood of success on the merits.

Although this case initially arose out of plaintiff's application for a photography permit from the City, it now turns entirely on the prohibition against public nudity contained in New York state law, and not on the City's licensing regime.4 The injunction issued by the district court prohibited the City from interfering with the proposed photo shoot; it did not require the City to issue Tunick a permit. Perhaps because of this, the City makes no defense of its permitting scheme. More importantly, the City has repeatedly and expressly abandoned any argument based on its possible right to impose time, place, or manner restrictions on the shoot.

The City's limited position in this court has instead been that it cannot permit the photo shoot to proceed (i.e., that it must interfere with the shoot by arresting Tunick and the models) because the state law prohibiting public nudity bars nudity of the sort proposed by plaintiff. Specifically, the City maintains that the exemption to the ban on public nudity applies only to "performances or exhibitions that [take] place indoors before audiences." Appellant's Brief at 14. Because, the City contends, the photo shoot is not a performance or exhibition of the kind contemplated by the statute's exemption and because it is not scheduled to occur indoors, Tunick's activity falls squarely within the statute's proscription.5

The City, however, has cited no decision in support of its narrow interpretation of the statutory exemption, and this court has found only one case, by a municipal court, that appears to have interpreted the statute in the manner suggested by the City. In People v. Wilhelm, 330 N.Y.S.2d 279 (City Ct. Buffalo 1972), the City Court of Buffalo analyzed an earlier version of the statute, containing the same exemption as that in the current version, and found the "attempted photographing of a nude female" not exempt where there was "[n]o claim . . . that the posing or photographing itself was intended to be an exhibition or showing" and there was no audience "invited to view the photographing." Id. at 280-81. In this case, by contrast, plaintiff does indeed claim that "[t]he poses struck by the models and the scenes, as arranged by Mr. Tunick, are performances and exhibitions in their own right." Appellee's Brief at 28. And plaintiff's counsel at oral argument stated Tunick's willingness to invite the public to view the photo shoot if that would make the shoot lawful. Significantly, the court in Wilhelm, after reading the exemption narrowly, held the statute, as applied to the defendant before it, to be unconstitutional under the New York constitution. See id. at 284.

Tunick, arguing instead that his photo shoot is indeed exempt, cites another municipal court decision, People v. Gilmore, 120 Misc. 2d 741 (City Ct. Mount Vernon 1983). In Gilmore, a bar owner who had been prosecuted for allowing women to walk naked through his establishment raised an overbreadth challenge to 245.02. See id. at 746. The City Court of Mount Vernon reasoned that the statute was not overbroad and stated, in passing, that "persons engaged in the photographing of nude women . . . are not threatened by section 245.02 of the Penal Law." Id.

Unfortunately, there are no decisions of the New York Court of Appeals or even of the Appellate Division that interpret the exemption. In fact, New York's highest court appears to have construed the statute, or its predecessor, on only three occasions -- none dispositive of the instant case. See People v. Santorelli, 80 N.Y.2d 875, 600 N.E.2d 232 (1992) (construing the statute not to prohibit women from exposing their breasts in a public park); People v. Hollman, 68 N.Y.2d 202, 500 N.E. 2d 297 (1986) (finding the statute constitutional as applied to a nude sunbather who raised a First Amendment claim); People v. Price, 33 N.Y.2d 831, 307 N.E.2d 46 (1973) (per curiam) (finding the statute, which was "aimed at discouraging 'topless' waitresses and their promoters," not to be applicable to the "noncommercial, perhaps accidental, and certainly not lewd, exposure" alleged in the case before it).

We are, therefore, faced with a situation in which the proper reading of a state statute and, once that law has been properly interpreted, its validity under the state constitution are issues that are crucial and perhaps determinative of the entire case before us, but in which we have no significant help from state courts.6 If the New York Court of Appeals holds that the New York statute does not bar Tunick's photo shoot, that decision would resolve this case. The same would be so if the Court of Appeals holds that the statute applies, but that, so interpreted, it violates the New York constitution. If, however, New York's highest court rules that the statute does prohibit the shoot, and that it may do so under New York constitutional principles, the issue of the federal constitutional validity of the statute would be squarely presented. All this, we repeat, is so because the City unequivocally conceded at oral argument that Tunick would be entitled to the injunction if either (1) the statute exempts the proposed photo shoot or (2) the statute does ban the photo shoot but is, as a result, unconstitutional.

Accordingly, at oral argument, we asked counsel for both parties whether this case was suitable for certification to the New York Court of Appeals. In letter briefs submitted to this court, the City argued that certification would be appropriate. Tunick, however, maintained that the absence of any "genuine doubt" over the scope of the state law exemption compels a decision by this court on the state law question. Appellee's Letter Brief at 2. For reasons that require considerable amplification, we conclude that certification is warranted.

Two years ago, the Supreme Court in Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), urged the federal courts of appeals to use certification in order to avoid deciding constitutional questions unnecessarily or prematurely. In Arizonans, the plaintiff, a state employee fluent in English and Spanish, challenged an amendment to the Arizona Constitution declaring English to be the official state language. See id. at 50. Before the trial occurred in the district court, the Arizona Attorney General issued a formal opinion interpreting the amendment. See id. at 52. Although the amendment mandated that "official acts of government" be performed in English, the Attorney General took the position that state employees could nevertheless use other languages "to facilitate the delivery of governmental services." Id. (quoting Ariz. Attorney General Op. No. I89-009) (internal quotation marks omitted). The district court rejected the Attorney General's limiting construction as "advisory" and "simply at odds with [the amendment's] plain language." Yniguez v. Mofford, 730 F. Supp. 309, 315 (D. Ariz. 1990). It also declined the defendants' invitation to abstain under the Pulllman doctrine. See id. at 316 (citing Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941)).

The district court then found the amendment overbroad, in violation of the First Amendment. See id. While the case was pending on appeal, the plaintiff resigned from her position in state employment. See Arizonans, 520 U.S. at 59, 117 S.Ct. 1055. The Ninth Circuit, nevertheless, rejected the suggestion that the case was moot, see Yniguez v. State of Arizona, 975 F.2d 646, 648 (9th Cir. 1992), and affirmed the finding of the district court that the amendment was unconstitutional, see Yniguez v. Arizonans for Official English, 42 F.3d 1217 (9th Cir. 1994).

On petition for certiorari, the Supreme Court found the case moot, in view of the plaintiff's shift from public to private employment. See Arizonans, 520 U.S. at 72. It did not, however, stop there. Instead, it proceeded to vacate the judgment below, a result that is not required as a matter of course.8 It did this, it said, because of the "federalism concern" raised by the decisions of the federal district court and of the court of appeals to interpret the Arizona law themselves. Id. at 75. Those courts had "ruled out certification primarily because they believed [the state amendment] was not fairly subject to a limiting construction." Id. at 77. But "[g]iven the novelty of the question and its potential importance to the conduct of Arizona's business, plus the views of the Attorney General and those of [the amendment's] sponsors, the certification requests merited more respectful consideration than they received in the proceedings below." Id. at 78. Accordingly, the Court found that the "equitable solution" was to expunge the judgment finding the English-only amendment unconstitutional. Id. at 75.

"Certification," the Supreme Court stated,

covers territory once dominated by a deferral device called 'Pullman abstention' . . . . Designed to avoid federal-court error in deciding state-law questions antecedent to federal constitutional issues, the Pullman mechanism remitted parties to the state courts for adjudication of the unsettled state-law issues. . . . [] Certification procedure, in contrast, allows a federal court faced with a novel state-law question to put the question directly to the State's highest court, reducing the delay, cutting the cost, and increasing the assurance of gaining an authoritative response.

Id. at 75-76. The Supreme Court emphasized that certification was particularly appropriate in Arizonans because it would have enabled the courts below to adhere to the "'cardinal principle'" that "[f]ederal courts, when confronting a challenge to the constitutionality of a federal statute . . . 'will first ascertain whether a construction . . . is fairly possible' that will contain the statute within constitutional bounds." Id. at 78 (quoting Ashwander v. TVA,297 U.S. 288, 348 (1936) (Brandeis, J., concurring)) (second ellipsis in Arizonans).

Arizonans made quite clear that, in the eyes of the Supreme Court, the device of certification provides all the benefits of Pullman abstention (deference in a federal system to state courts on questions of state law and statutory interpretations that avoid constitutional difficulties), while reducing greatly its drawbacks (delay and cost). See id. at 76-78. The teaching of Arizonans, therefore, is that we should consider certifying in more instances than had previously been thought appropriate, and do so even when the federal courts might think that the meaning of a state law is "plain." See id. at 76.

At the same time, Arizonans does not and cannot mean that we must certify whenever (a) a plaintiff raises a federal constitutional challenge to state law in federal court, (b) the state's highest court has not interpreted the statute, and (c) the constitutional question could conceivably be avoided by some saving interpretation. Thus, shortly after Arizonans, in the right-to-die cases, the Supreme Court did not vacate and remand the decisions of two different courts of appeals, involving the meaning of two state statutes (one very old and the other very new) that had never been interpreted by the state courts, and instead reached the merits of the constitutional questions raised by the two laws. See Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 (1997). It did this despite the concession of the parties that, under certain interpretations, the statutes would avoid constitutional challenge. Compare Quill v. Vacco, 80 F.3d 716, 718 (2d Cir. 1996) ("The physicians contend that each statute is invalid to the extent that it prohibits them from acceding to the requests of terminally-ill, mentally competent patients for help in hastening death." (emphasis added)), rev'd, Quill, 521 U.S. 793, with id. at 732 (Calabresi, J., concurring) (noting that the New York Court of Appeals had never clarified, and the legislative history cast some doubt upon, the question of whether the New York ban on assisted suicide, first enacted in 1828, was "ever meant to apply to a treating physician"). The question therefore arises -- after Arizonans, Glucksberg, and Quill, when is certification appropriate in federal constitutional litigation involving state statutes?9

In answering this question, we look first to the Pullman doctrine for guidance. This is so because, although Pullman abstention involves problems that certification may avoid or reduce, it still remains the doctrine whose purpose is most proximate to that of certification in cases concerning the federal constitutional validity of state laws.

Intended to "further[] the harmonious relation between state and federal" courts, the Pullman doctrine encourages federal court abstention on unsettled questions of state law that are antecedent to federal constitutional questions. Pullman, 312 U.S. at 501. By abstaining, federal courts can avoid both unnecessary constitutional decisions and potentially erroneous determinations of state law. See id. at 498-99. Abstention is not appropriate, however, where the meaning of a state statute is clear on its face. See Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 236 (1994).

Significantly, Pullman has not been allowed to develop to its logical end: if the premise of the doctrine were simply that the federal courts should abstain whenever a federal constitutional decision could be avoided by interpretation of an unclear state statute, in theory, any case that presented an unclear state statute should be a candidate for abstention. It would then follow that Pullman abstention would greet almost all vagueness challenges to a state law. See 17A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure 4242, at 45 (2d ed. 1988) ("The argument has been made that [a vagueness] challenge necessarily requires abstention, since if the federal court were to go to the merits and strike down the statute as vague this in itself would show the meaning of the statute is uncertain and that a state court should first be permitted to give it a limiting construction.").

The Supreme Court, instead, definitively rejected this possibility in Baggett v. Bullitt, 377 U.S. 360 (1964), in which it found a Washington statute requiring public employees to take loyalty oaths to be unconstitutionally vague. Declining the defendants' invitation to abstain, the Court noted that Pullman "is not an automatic rule applied whenever a federal court is faced with a doubtful issue of state law." Id. at 375. Rather, the determination of whether to abstain is to "be made on a case-by-case basis." Id. Deferral to the state court, the Supreme Court emphasized, is appropriate in those circumstances where the state statute is susceptible of an interpretation that "would eliminate the constitutional issue and terminate the litigation." Id. at 377. Conversely, the federal court should proceed to the merits of the constitutional question where the statute resists confinement within constitutional bounds, except through "extensive adjudications, under the impact of a variety of factual situations." Id. at 378. In short, opacity of a state statute notwithstanding, abstention is only appropriate where a "single adjudication by a state court could eliminate the constitutional difficulty." Procunier v. Martinez, 416 U.S. 396, 401 n.5 (1974), overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401 (1989).

Given the shared goals of Pullman abstention and of the device of certification, the factors counseling the former are also suggestive of when the latter is desirable. As a result, Arizonans, Quill, and Glucksberg in no way lessen the significance of these Pullman factors. They do, however, put a gloss on them, while also pointing to other factors that are relevant to the question of certification.

Thus, the Supreme Court in Arizonans emphasized the relationship of certification to the canon of statutory construction under which statutes are to be read to avoid constitutional difficulties. See Arizonans, 520 U.S. at 78. When a state statute is at issue, the Court pointed out, those difficulties are not comfortably avoided by a federal court interpretation. The task, instead, properly belongs to a state court, which must decide which canons of construction it can and should apply. Cf. id. at 78-79.10 The federal court should certify, and not interpret, because it "risks friction-generating error when it endeavors to construe a novel state Act not yet reviewed by the State's highest court." Id. at 79. The object, the avoidance of unnecessary, and hence premature, constitutional decisions, remains the same whether a state or federal statute is involved. See generally Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962). But, because a state law is at play, only the state court can ultimately determine whether a saving interpretation is appropriate under the canons of interpretation of the particular state whose statutes it is called upon to construe.

This teaching of the Supreme Court is fundamental and may result in some state courts having more and others less power than do federal courts to interpret state statutes to avoid constitutional difficulties. Because they are supreme in their power, under state law, to decide the meaning of state statutes, state courts are neither bound to follow, nor limited by, federal canons of interpretation, including those that speak to avoiding constitutional issues. It follows that a state court, under state canons, may be unwilling to do to a state statute what federal courts are expected to do to a federal one, see, e.g., Califano v. Yamasaki, 442 U.S. 682, 692-93 (1979) (in a suit involving payments under the federal Social Security Act, the Supreme Court noted that federal courts "presented with both statutory and constitutional grounds to support the relief requested usually should pass on the statutory claim before considering the constitutional question" in order to avoid "unnecessary constitutional adjudication"). But it is also possible that state law would allow state courts to rewrite state statutes to a degree that would be impermissible for federal courts dealing with federal laws. Compare, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 884 (1997) (emphasizing, in a First Amendment challenge to the federal Communications Decency Act, that federal courts "may impose a limiting construction on a [federal] statute only if it is 'readily susceptible' to such a construction" (emphasis added)), with National Ass'n of Indep. Insurers v. State of New York, 89 N.Y.2d 950, 952, 678 N.E.2d 465, 466 (1997) ("A presumption of constitutionality attaches to [a New York law], and [New York courts are] required 'to avoid interpreting [it] in a way that would render it unconstitutional if such a construction can be avoided.'" (quoting Alliance of Am. Insurers v. Chu, 77 N.Y.2d 573, 585, 571 N.E.2d 672 (1991)) (emphasis added)); A Woman's Choice-East Side Women's Clinic v. Newman, 671 N.E.2d 104, 111 (Ind. 1996) (Dickson, J., concurring) (noting that Indiana courts have an "overriding obligation to construe [their] statutes in such a way as to render them constitutional if reasonably possible" (emphasis added)).

This question of the extent to which the state court can go when interpreting its own laws is paradigmatically one of state law, and it is one that federal courts are singularly unsuited to answer. Compare Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 116 F.3d 1406, 1413 (11th Cir. 1997) ("The final arbiter of state law is the state supreme court, which is another way of saying that Alabama law is what the Alabama Supreme Court says it is. . . . At the threshold, the answer to [the question before this court] depends upon reconciliation of the competing trajectories of a number of canons of statutory construction. Given the nature of the overlapping and somewhat contradictory canons of statutory construction arguably applicable to this case, and the competing interests and policies at stake, the task is less like applying a scientific formula and more like painting a picture. We . . . are not at all confident our painting would resemble the one that Alabama Supreme Court would have produced."), with Hope Clinic v. Ryan, 195 F.3d 857, 865-69 (7th Cir. 1999) (en banc) (Easterbrook, J.) (applying federal models of statutory construction in order to limit enforcement of two state statutes banning partial-birth abortions to their "central core of meaning," such that the statutes could be enforced to limit only the abortion procedure known as dilation and extraction, even though the statutes themselves did not refer to this procedure), petitions for cert. filed, 68 USLW 3461 (Jan. 10, 2000), 68 USLW 3480 (Jan. 14, 2000). For that reason, too, certification - if otherwise appropriate -- is particularly germane.

At the same time, Arizonans does not mean that a federal court must certify whenever (1) it has grave doubts about a state statute that has not yet been authoritatively interpreted by the state's highest tribunal and (2) those doubts could conceivably be avoided by an interpretation from a state court. The limits placed on Pullman by Baggett and Procunier remain crucially relevant. And the Court's decision, after Arizonans, on the merits of the constitutional issues in the right-to-die cases, see Glucksberg, 521 U.S. at 706; Quill, 521 U.S. at 797, must mean that in some circumstances -- even when a state statute raises serious constitutional questions that could be avoided by a state court interpretation and even when the Pullman factors do not counsel against certification - certification may not be warranted.

The difference in approach between Arizonans and the right-to-die decisions seems to turn on the concern that animates both certification and Pullman abstention to begin with -- federalism. The Supreme Court found certification advisable in Arizonans in part because of "its potential importance to the conduct of Arizona's business." Arizonans, 520 U.S. at 78. At issue in that case was the very manner in which Arizona was to carry out the basic functions of state governance: the challenged provision of the state constitution declared English the official state language and applied to, inter alia, "all government officials and employees during the performance of government business." Ariz. Const. art. XXVIII, 1(3)(a)(iv). The parties' dispute over the proper interpretation of the amendment turned on the question of whether "the delivery of government services" was to occur only in English. Arizonans, 520 U.S. at 52 (quoting Ariz. Attorney General Op. No. I89-009) (internal quotation marks omitted).

There is, of course, potential for "friction-generating error" between the federal and state court systems -- the danger against which certification is intended to protect -- in every case in which a "federal court is asked to invalidate a State's law." Id. at 79. But the potential for friction is uniquely heightened -- and certification is therefore particularly favored -- when the litigation involves distinct federalism concerns, such as the possible incursion of federal courts into matters at the heart of state sovereignty. Cf. Printz v. United States, 521 U.S. 898, 918-919 (1997) (holding unconstitutional the requirement in the Brady Bill that local law enforcement officers conduct background checks of prospective gun purchasers, because the federal government may not commandeer the apparati of state and local governments); New York v. United States, 505 U.S. 144, 177 (1992) (holding that a federal enactment that "infring[es] upon the core of state sovereignty reserved by the Tenth Amendment . . . is inconsistent with the federal structure of our Government established by the Constitution"). Such an unacceptable intrusion into quintessentially state matters is clearly what the Supreme Court believed to be the effect of the Ninth Circuit's holding in Arizonans.

Glucksberg and Quill, by contrast, did not center on core functions of state governments. They surely dealt with fundamental questions, but these were issues whose resolution would not affect the capacity of the relevant states to carry on their functions as sovereigns in other matters. Whether the distinction between aiding a person in the commission of suicide and helping that person to withdraw life-sustaining medical treatment is a constitutionally sound one is, without doubt, a question of enormous importance. Yet it is hard to deny that the ultimate capacity of the relevant states to govern in their proper spheres was less affected by the outcome of these cases than by holdings like the Ninth Circuit's in Arizonans.

As a result, though the history of the laws against suicide and assisted suicide in New York indicate that clarification from the New York Court of Appeals could have mooted the constitutional question, neither the Second Circuit nor the Supreme Court thought deferral to the state court on the question of statutory interpretation was appropriate. Instead, both courts proceeded diligently to interpret the statute and squarely to confront the constitutional question. It follows that the federalism concern that was present in Arizonans, and that in part justified certification there, had to be more than a state's generic interest in enforcement of its laws -- an interest clearly also at stake in Glucksberg and Quill. To justify deferral, the federalism concern had to affect -- as it did in Arizonans - the very manner in which the state chose to operate as a government.

The border between cases like Arizonans, which entail core governmental functions, and cases like Glucksberg and Quill, which involve primarily the state's interest in upholding its laws and values, both in the face of claimed individual constitutional rights to the contrary, is by no means clear. And a large number of cases, no doubt, find their place in the DMZ in between. But that means only that the determination of whether to defer to the state court must "be made on a case-by-case basis."11 Baggett, 377 U.S. at 375.

In the course of this individualized inquiry -- which gives priority to avoidance of unnecessary constitutional decisions and to respect for state sovereignty -- the federal courts cannot, however, lose sight of the fact that possible constitutional rights are, by hypothesis, at risk. Accordingly, deferral to the state court is appropriate only where the claimed right can be sufficiently safeguarded during the pendency of state proceedings. It is for this reason that the Pullman cases look to the effect, on the constitutional right asserted, of the delay entailed by abstention. See, e.g., Harman v. Forssenius, 380 U.S. 528, 537 (1965) (finding that the district court did not abuse its discretion in declining to abstain in a federal voting rights suit challenging Virginia's limitations on the franchise "[g]iven the importance and immediacy of the problem, and the delay inherent in referring questions of state law to state tribunals"); Bad Frog Brewery, Inc. v. New York State Liquor Auth., 134 F.3d 87, 94 (2d Cir. 1998) (declining to abstain in a suit raising a First Amendment challenge to New York's regulation of liquor advertising and labeling in part because "[a]bstention would risk substantial delay while [the plaintiff] litigated its state law issues in the state courts"). Rights delayed, after all, are often rights destroyed. And it is therefore not surprising that Pullman abstention has been used only very sparingly. See Midkiff, 467 U.S. at 236 ("[A]bstention [under Pullman] from the exercise of federal jurisdiction is the exception, not the rule." (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976)) (internal quotation marks omitted)); Public Serv. Co. v. Patch, 167 F.3d 15, 24 (1st Cir. 1998) (declining to abstain where the timing of proceedings in state court was uncertain and plaintiff faced an immediate threat to its asserted rights); Bad Frog Brewery, 134 F.3d at 94 (declining to abstain in order to safeguard asserted First Amendment rights).

Likewise, when certification is the proposed remedy, timing remains an important factor. See LTV Steel Co. v. Northwest Eng'g & Constr., Inc., 41 F.3d 332, 338 (7th Cir. 1994) (declining to certify in diversity case where the federal court found "sufficient guidance in the decisions of the Indiana Court of Appeals to decide this case without subjecting the parties to the additional delay and expense inherent in certifying a question to the Indiana Supreme Court"); Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 275 (5th Cir. 1976) (declining to certify the question of whether the Florida Attorney General was authorized under state law to bring an antitrust action against defendant oil companies based in part on the "practical limitations of the certification process [such as] significant delay").

At the same time, the danger of delay inherent in certification is to some extent offset by the efficiency of the procedure -- and the delay created by certification is almost never as great as that imposed by abstention. See Arizonans, 520 U.S. at 76 ("Certification procedure, in contrast [to Pulllman abstention] . . . reduc[es] the delay, cut[s] the cost, and increas[es] the assurance of gaining an authoritative response."); Virginia v. American Booksellers Ass'n, 484 U.S. 383, 396 (1988) ("Certification, in contrast to the more cumbersome and (in this context) problematic abstention doctrine, is a method by which we may expeditiously obtain [an authoritative] construction."); Bellotti v. Baird, 428 U.S. 132, 151 (1976) ("The importance of speed in resolution of the instant litigation is manifest. Each day the statute is in effect, irretrievable events, with substantial personal consequences, occur. Although we do not mean to intimate that abstention would be improper in this case were certification not possible, the availability of certification greatly simplifies the analysis."); Lehman Brothers v. Schein, 416 U.S. 386, 391 (1974) (noting that certification "in the long run save[s] time, energy, and resources and helps build a cooperative judicial federalism"). Of course, this does not mean that the relative efficiency of certification will in every case suffice to insulate the asserted right from the harm of delay. But it does underscore the salience of timing to the question of whether to certify.

Timing, however, is not the only consideration. The underlying issue cannot, after all, be timing in itself, but whether, while the state court is parsing the statute, the asserted right can be adequately safeguarded without unduly harming the interests sought to be furthered by the state law. As a result, in addition to looking to the length of the delay, courts should also consider whether, pending certification, they can protect the claimed right, perhaps through a stay, without thereby too grievously undermining the state concerns at stake. See, e.g., American Booksellers Ass'n, 484 U.S. at 397 (staying the enforcement of the challenged state statute during certification to permit the state's highest tribunal to interpret its own statute, and in that way possibly save it from constitutional infirmity). By issuing a stay, a court can sometimes, so to speak, have its comity cake and eat it, too.

Often, however, no such protective procedural device exists. If, for example, a plaintiff successfully obtains a preliminary injunction in federal court permitting her to hold a parade that the local government contends violates a state statute, the federal appellate court would be likely to stay the injunction pending appeal. If the appellate court then decided to certify, there would be no way to protect the asserted rights during certification. For, were the appellate court to lift the stay so that the plaintiff could hold her parade, the issue certified to the state court would forthwith be rendered moot. In such a case, the choice presented to the federal court would be regrettably stark, since certification, or rather the delay it causes, would necessarily pose a risk to the claimed right.

On the other hand, there are many situations in which certification is entirely compatible with the protection of asserted constitutional rights. When, for example, the plaintiff seeks permanently to enjoin the enforcement of an allegedly unconstitutional state statute, a federal court can issue a right-protecting stay during the pendency of the certification without rendering the certified issue moot. This very approach might have been feasible in a recent case that has deeply divided the Seventh Circuit. See Hope Clinic, 195 F.3d at 869 (upholding the constitutionality of state statutes banning partial-birth abortion, to the extent the statutes prohibited only the abortion procedure known as dilation and extraction).

In Hope Clinic, Judge Easterbrook, writing for a majority of the en banc court, grappled with a vagueness challenge to a Wisconsin and an Illinois state statute, each of which prohibited "partial-birth abortion." Id. at 863. The statutory definitions, however, were, as Judge Easterbrook stated, "an imperfect match for the medical definition of" dilation and extraction ("D&X"), id., the relatively rare abortion procedure which "[b]oth medical and popular literature [call] 'partial-birth abortion,'" id. at 865. That is, the statutes could also be read to prohibit more common abortion procedures, such as dilation and evacuation ("D&E") and induction. Under such a reading, the court unanimously acknowledged, the laws would unduly burden a woman's right to abortion and would therefore be unconstitutional. See id. at 863-64. Nonetheless, the court upheld the state statutes because it believed it "possible, . . . we think[,] that the Supreme Courts of Illinois and Wisconsin could read their laws in ways that comport with the Constitution." Id. at 865.

Basing its decision entirely on federal canons of construction and canons of states other than Illinois and Wisconsin, the Seventh Circuit proceeded to outline three different methods by which the state courts could potentially interpret the statutes not to prohibit D&E or induction. See id. at 865-68. The court then remanded the cases to the respective district courts to "enter precautionary injunctions, limited to implementing the conclusion . . . that the state laws may not be applied to a normal D&E or induction until after the state has provided additional specificity, by statutory amendment, regulations, or judicial interpretation." Id. at 869. The stated purpose of the precautionary injunctions was to "preserve[] the state judiciary's role while protecting plaintiffs' (and their patients') legitimate interests in the interim." Id. at 870.

But, as Chief Judge Posner noted in dissent, the injunctions effectively ensured that the state courts of Illinois and Wisconsin would "never have an opportunity to explore the outer bounds of these statutes" because, by their very terms, the injunctions limited enforcement of the statutes to their "core prohibition." Id. at 877 (Posner, C.J., dissenting). Under these circumstances, and given that both majority and dissent agreed that the statutes, as written, were unconstitutional, see Hope Clinic, 194 F.3d at 863-64; id. at 886 (Posner, Chief Judge, dissenting), certification might well have been the prudent course. Cf. Karlin v. Foust, 188 F.3d 446, 497 (7th Cir. 1999) (Cudahy, J., concurring in part and dissenting in part) (noting that in a case involving a different provision of Wisconsin's partial-birth abortion statute, Judge Cudahy "would [have] certif[ied] to the Wisconsin Supreme Court the issue whether as a matter of state law scienter would be required for the imposition of civil forfeiture liability under the Act" because "[i]f state law were [so] construed . . . , a serious constitutional issue would be avoided").

Thus, in a context like the one before the Seventh Circuit in Hope Clinic, where the issue would not have been mooted by a stay of the enforcement of the challenged state statutes during a hypothetical certification to the Wisconsin and Illinois Supreme Courts, and where the statutes as written were concededly constitutionally suspect, a stay might well have been an appropriate method of protecting asserted rights in the interim. Cf. Hope Clinic v. Ryan, 197 F.3d 876, 878-79 (7th Cir. 1999) (Diane P. Wood, J., dissenting from the vote of an equally divided court to deny stays of the mandate of the en banc court pending petitions for certiorari) ("In my view, the only responsible action this court can take from the standpoint of its national responsibility and role is to stay the mandates [which permit enforcement of the partial-birth abortion statutes in Wisconsin and Illinois against the abortion procedure known as dilation and extraction] pending the Supreme Court's disposition of the petitions for certiorari.").

This discussion is not intended to express any view on the substance of the Seventh Circuit's decision. Nevertheless, it illustrates (1) that the delay created by certification may, in itself, on occasion unacceptably harm the claimed right, (2) that certification, despite its inevitable delay, can sometimes be deployed in a manner that fully protects the asserted constitutional rights, and (3) that the determination of whether (a) the right is indeed adequately protected and (b) the state's interest in enforcement is not unduly harmed by the stay can only be decided on a case-by-case basis.

The composite lesson of all these cases is that there are at least six factors that must be considered in deciding whether certification is justified. They are (1) the absence of authoritative state court interpretations of the state statute, (2) the importance of the issue to the state and the likelihood that the question will recur, (3) the presence of serious constitutional difficulties that could be avoided by a possible interpretation of the statute, (4) the capacity of certification to resolve the litigation and either to render federal constitutional decisions unnecessary or to ensure that they are inescapably before the federal court, (5) the federalism implications of a decision by the federal courts and in particular whether a decision by the federal judiciary potentially interferes with core matters of state sovereignty, and (6) the effect of the delay entailed by certification on the asserted rights at issue.

I reach at last the question of whether certification is appropriate in this case. As discussed above, there is no decision from the New York Court of Appeals interpreting the exemption under 245.01 and 245.02, and decisions of lower New York courts take arguably conflicting positions on whether nude photography is prohibited. Accordingly, the first factor, the absence of authoritative, on-point state court decisions, leans strongly in favor of certification. Similarly, there can be no doubt that New York's status as a home to much artistic life renders the issue in this case both significant and likely to recur. Thus, the second factor also weighs in certification's favor.

I turn next to the more meaty question of whether this case presents serious constitutional difficulties that could be avoided by a possible statutory interpretation. Were New York's ban on public nudity interpreted to criminalize Tunick's proposed photo shoot -- either because, as the City argues, the statutory exemption applies only to indoor performances with an audience, or because the photo shoot, for some other reason, falls outside the exemption -- then this court would be required to address plaintiff's argument that the First Amendment does not permit "so broad an application of the Penal Law" to "serious artistic expression." Appellee's Brief at 30.

I conclude that the constitutional question raised, if the law is interpreted to prohibit Tunick's photo shoot, would be a grave one for at least two reasons. The first concerns the tortured issue of the level of protection that is constitutionally afforded to artistic or expressive nudity. Compare Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566-67 (1991) (plurality opinion) (Rehnquist, C.J., joined by O'Connor and Kennedy, JJ.) (requiring a state statute banning public nudity, as applied to erotic nude dancing, to serve an important or substantial governmental interest in order to be constitutional), with id. at 593 (White, J., dissenting) (noting that he would require the same statute to serve a compelling governmental interest). The second focuses on the possible irrationality of a distinction (a) between nude photo shoots and other nude exhibitions, and (b) between indoor and outdoor nude performances.

As a threshold matter, Tunick's artistic activity is entitled to some First Amendment protection. See Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557, 569 (1995) (the "painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll" is "unquestionably shielded"). And the fact that his photography involves nude bodies does not remove it from the Amendment's scope. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 (1981) ("[N]ude dancing is not without its First Amendment protections from official regulation."). While there may be classroom hypotheticals that explore the hazy line between nude photography as unprotected conduct and nude photography as artistic expression, this is not such a case.

The City makes no contention that the photography at issue is obscene and therefore unprotected by the First Amendment, see Miller v. California, 413 U.S. 15, 23 (1973), or even lascivious in the manner, say, of erotic dancing, see Barnes, 501 U.S. at 566 (plurality opinion) (Rehnquist, C.J.) (erotic nude dancing is "expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so"). And the City does not dispute plaintiff's contention that he is an internationally recognized photographer who seeks to further his artistic vision through the proposed photo shoot. Accordingly, the question in this case is whether the state ban on public nudity impermissibly infringes on Tunick's constitutional right to engage in artistic, expressive activity.

In Barnes, a fractured Supreme Court found that Indiana's public indecency statute could constitutionally be applied to prohibit erotic nude dancing. See Barnes, 501 U.S. at 563. Five justices voted to uphold the state law, but no opinion commanded a majority. Four justices dissented. "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'" Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)).

Chief Justice Rehnquist announced the judgment of the Court in Barnes in an opinion joined by Justices O'Connor and Kennedy. His plurality opinion analyzed the Indiana statute under the four-part test of United States v. O'Brien, 391 U.S. 367 (1968), applicable to incidental limitations on expressive activity. See Barnes, 501 U.S. at 567. Under O'Brien, a government regulation that burdens communicative conduct "is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." O'Brien, 391 U.S. at 377. Chief Justice Rehnquist concluded that Indiana's "public indecency statute furthers a substantial government interest in protecting order and morality." Barnes, 501 U.S. at 569.

Justice Souter, writing for himself, concurred in the judgment of the Court. See id. at 581-87 (Souter, J., concurring). He agreed with the plurality that O'Brien controlled, but rejected the notion that "society's moral views" could serve as a substantial government interest. Id. at 582. He nevertheless found the Indiana law justified by the state's important "interest in combating the secondary effects [such as prostitution and other criminal activity] of adult entertainment establishments of the sort typified by respondents' establishments." Id. Justice Souter, moreover, explicitly called into question the statute's permissibility, if it were to be applied to expressive activity not associated with pernicious secondary effects: "[T]he secondary effects rationale on which I rely here would be open to question if the State were to seek to enforce the statute by barring expressive nudity in classes of productions that could not readily be analogized to the adult films at issue in Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)."12. Id. at 585 n.2, 111 S.Ct. 2456.13

I conclude, as have five circuits, that Justice Souter's opinion was the most narrow of the opinions upholding the statute. See Dima Corp. v. Town of Hallie, 185 F.3d 823, 830 (7th Cir. 1999); J&B Entertainment, Inc. v. City of Jackson, 152 F.3d 362, 370 (5th Cir. 1998); Farkas v. Miller, 151 F.3d 900, 904 (8th Cir. 1998); Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 134 (6th Cir. 1994); International Eateries of Am., Inc. v. Broward County, 941 F.2d 1157, 1160-61 (11th Cir. 1991).14 And there is no question that under Justice Souter's rationale, the New York statute, if applied to Tunick's photo shoot, would be constitutionally suspect. For, as Justice Souter noted:

[it] is difficult to see, for example, how the enforcement of Indiana's statute against nudity in a production of "Hair" or "Equus" somewhere other than in an "adult" theater, would further the State's interest in avoiding harmful secondary effects, in the absence of evidence that expressive nudity outside the context of Renton-type adult entertainment was correlated with such secondary effects.

Barnes, 501 U.S. at 585 n.2 (Souter, J., concurring). And the City has made no effort to suggest any deleterious secondary effects of the sort listed by Justice Souter that might attend Tunick's photo session.15

The fact, moreover, that the City argues for an interpretation that would single out and ban photo shoots, however artistic and whether indoor or outdoors, but would authorize other types of nude performances, at least indoors, regardless of how erotic and/or lacking in artistic content, gives rise to a second serious constitutional doubt, based on rationality. The City gives no reasons for the distinction it asserts, other than saying that this is what the plain language of the statute entails. But, assuming that were so, grave questions would then arise as to the rationality of a law that singled out for prohibition one form of nude expression that is concededly covered by the First Amendment, while permitting, with mighty little explanation, many other equally nude demonstrations.

One need not contemplate why, on the City's reasoning, a totally naked production of Hamlet could be staged in the middle of Grand Central Station during rush hour, while Tunick's photo shoot had to be banned regardless of the time, place, or manner in which it occurred, to say that the statute as interpreted by the City would raise serious constitutional issues. It is enough to ask why a nude performance with an audience would be permitted, and a photo shoot in the same place would be prohibited, to suggest that significant constitutional problems, based on irrationality, attend the City's reading of the statute.

Nor is a construction of the statute that would avoid all constitutional problems implausible. Thus, the statute's exemption for "exhibitions" could be read to cover the abstract arrangement of 75 to 100 nude models draped across a public street. An exhibition is, after all, "a public . . . showing . . . esp[ecially] of works of art." Webster's Third New International Dictionary 796 (1993). Moreover, the language of the statute, by its own terms, nowhere distinguishes between indoor and outdoor performances. Finally, and as importantly, the New York Court of Appeals, in one of the few cases that it has heard under the statute, has demonstrated that it has considerable authority to interpret the statute narrowly to avoid constitutional questions. See Santorelli, 80 N.Y.2d at 876-77 (employing the canon of New York statutory construction under which state courts "must construe a statute . . . to uphold its constitutionality if a rational basis can be found to do so" and, as a result, interpreting 245.01, which on its face prohibits women but not men from publicly exposing their nipples, not to apply to women who bared their breasts in a public park); cf. Arizonans, 520 U.S. at 78-79 (indicating that use by state courts of state canons of statutory construction, to avoid constitutional questions, is relevant to the desirability of certification).

It follows that the third factor, allowing the state tribunal to make what, under the applicable state canons, is a plausible interpretation to avoid serious constitutional issues, weighs heavily in favor of certification.

Like those that precede it, the fourth factor, the capacity of certification either to resolve the litigation or to frame the constitutional question, strongly supports certification. The City has conceded that the district court's injunction properly issued unless the state statute validly prohibits Tunick's photo shoot. Hence, certification will, on one reading of the statute, totally resolve the case and avoid all constitutional problems. On another, either it will also resolve the case -- were the state court to find the state law invalid under the state constitution -- or it will present, as clearly and directly as can be, a federal constitutional issue that is then ready for federal adjudication. "Under these unusual circumstances where it appears the State will decline to defend a statute if it is read one way and where the nature and substance of plaintiff's constitutional challenge is drastically altered if the statute is read another way, it is essential that we have the benefit of the law's authoritative construction from the [state's highest court]." American Booksellers, 484 U.S. at 395 (certifying the interpretation of a Virginia law that criminalized the display of sexual or sadomasochistic materials that were harmful to juveniles, even though certification delayed the adjudication of the asserted First Amendment rights).

The last two considerations, whether this case implicates a distinct federalism concern and whether the delay of certification would unduly harm the right asserted, are not as clear cut. This case stems from the claimed First Amendment rights of a photographer to implement his artistic vision. His individual rights, as against those of the state to enforce its laws and values, are undoubtedly at issue. But this litigation also raises distinct federalism concerns.

We would be ostriches if we failed to take judicial notice of the heavy stream of First Amendment litigation generated by New York City in recent years. Notable cases in which this court or a district court has preliminarily enjoined or found unconstitutional on First Amendment grounds some action or policy of the City include Latino Officers Ass'n v. City of New York, 196 F.3d 458 (2d Cir. 1999) (affirming a preliminary injunction that enjoined the City from prohibiting plaintiffs from participating, in their uniforms and behind their organizational banner, in various parades held in 1999); Million Youth March, Inc. v. Safir, 155 F.3d 124 (2d Cir. 1998) (affirming and modifying a preliminary injunction requiring the City to issue a parade permit to an organization seeking to hold a public event in 1998); Harman v. City of New York, 140 F.3d 111 (2d Cir. 1998) (finding unconstitutional the City's policy of requiring City employees to obtain permission before speaking to the media); New York Magazine v. Metropolitan Transp. Auth., 136 F.3d 123 (2d Cir.) (finding unconstitutional the municipality's refusal to display advertisements arguably critical of the mayor), cert. denied, 525 U.S. 824, 119 S.Ct. 68, 142 L.Ed.2d 53 (1998); Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996) (finding unconstitutional the City's limitation on licenses for sidewalk artists), cert. denied, 520 U.S. 1251 (1997); Housing Works, Inc. v. City of New York, 72 F. Supp. 2d 402 (S.D.N.Y. 1999) (issuing a preliminary injunction requiring the City to re-rank plaintiff, a non-profit agency, on a priority list for federal funding based on a clear and substantial likelihood that the City had downgraded plaintiff on the list in retaliation for its protected speech, including, inter alia, criticism of the mayor's administration and various successful First Amendment lawsuits against the City), appeal dismissed as moot, 203 F.3d 176 (2d Cir.2000); East Timor Action Network v. City of New York, 71 F. Supp. 2d 334 (S.D.N.Y. 1999) (issuing a declaratory judgment that the City's denial of plaintiff's application to erect temporary street signs violated the First Amendment); Brooklyn Inst. of Arts & Sciences v. City of New York, 64 F. Supp. 2d 184 (E.D.N.Y. 1999) (preliminarily enjoining the City from withholding funding from and filing suit for ejectment against the Brooklyn Museum based on the content of a temporary exhibit at the museum); Million Youth March, Inc. v. Safir, 63 F. Supp. 2d 381 (S.D.N.Y. 1999) (issuing a preliminary injunction requiring the City to grant a parade permit to an organization seeking to hold a public event in 1999); Gasparo v. City of New York, 16 F. Supp. 2d 198 (E.D.N.Y. 1998) (preliminarily enjoining the City's concession scheme for newsstands in light of the likelihood that the City's unlimited authority to terminate concessions would chill protected speech); Latino Officers Ass'n v. City of New York, 966 F. Supp. 238 (S.D.N.Y. 1997) (preliminarily enjoining the City from prohibiting plaintiffs from participating, in their uniforms and behind their organizational banner, in parades held in June 1997); Time Warner Cable v. City of New York, 943 F. Supp. 1357 (S.D.N.Y. 1997) (preliminarily enjoining as unconstitutional the City's decision to place commercial television programs on cable channels reserved for educational or governmental purposes), aff'd on other grounds sub nom. Time Warner Cable v. Bloomberg L.P., 118 F.3d 917 (2d Cir. 1997); Housing Works, Inc. v. Safir, 1998 WL 823614 (S.D.N.Y. Nov. 25, 1998) (preliminarily enjoining the City from prohibiting non-profit AIDS organization from conducting a press conference in front of City Hall in view of the likelihood that the City policy was content-based), stay granted in part, 1998 WL 824534 (2d Cir. Nov. 30, 1998) (order issuing partial stay later withdrawn); Housing Works, Inc. v. Safir, 1998 WL 409701 (S.D.N.Y. July 21, 1998) (preliminarily enjoining City from enforcing its policy of limiting press conferences in front of City Hall to groups of 25 or fewer); United Yellow Cab Drivers Ass'n v. Safir, 1998 WL 274295 (S.D.N.Y. May 27, 1998) (finding unconstitutional the City's refusal to permit more than 20 taxi drivers to participate in a protest against proposed rules for pick-up and drop-off), aff'd as modified, No. 98-7737 (2d Cir. May 27, 1998) (unpublished disposition); Latino Officers Ass'n v. City of New York, 1997 WL 473972 (S.D.N.Y. Aug. 19, 1997) (enjoining the City from prohibiting plaintiffs from participating, in their uniforms and behind their organizational banner, in parades held in the late summer and fall of 1997), appeal dismissed as moot, 152 F.3d 919 (2d Cir. 1998) (unpublished disposition); cf. MacDonald v. Safir, 206 F.3d 183 (2d Cir. 2000)(vacating and remanding the district court's grant of summary judgment for the City on plaintiff's claim that the City ordinance governing the issuance of parade permits violates the First Amendment).16 Some of the parties' names reappear on this list. This is apparently the result of the City engaging in acts similar to those previously enjoined by the federal courts.

As a result of this relentless onslaught of First Amendment litigation, the federal courts have, to a considerable extent, been drafted into the role of local licensors for the City of New York. When the Ninth Circuit in Arizonans found Arizona's English-only amendment unconstitutional, it effectively assumed the role of state planning bureau, telling Arizona how it was to deliver services to the public. And that fact seemed to influence the Supreme Court, which, after finding the case before it moot, decided to vacate the Ninth Circuit holding on the ground that certification should have been sought. See supra note 8 and accompanying text. Similarly, a decision on the constitutional question in this case would result in this court acting, to some extent, as the City's permitting agency, determining for it who may speak, or parade, or photograph.

All this is not to diminish the importance of our role in adjudicating and vindicating First Amendment and other constitutional rights. Nor does it alter the fact that, in most such cases, it would be wrong to see the federal courts as doing anything more than balancing those rights against the state's interest in enforcing its laws and values. But, in the current and rather remarkable state of affairs in New York City, there is an all too clear danger that the courts, instead of merely interpreting and defending federal rights, may cross the line and become, in effect, an agency that performs crucial local government functions. While this case would not by itself force us to transgress that boundary, it does -- in context -- raise federalism concerns that make certification more advisable than it might ordinarily be. Accordingly, this factor does not weigh against certification.

The foregoing five factors -- whether there is a binding decision of the New York Court of Appeals on point, whether the issue is important and recurring, whether serious federal constitutional difficulties that exist can be avoided by a plausible interpretation of the state statute, whether certification will likely resolve the case or, if it does not, will focus the constitutional issue, and whether federal court adjudication of the issue raises distinct federalism concerns -- taken together strongly counsel in favor of deferral to the state court.

There is, however, an additional issue that cannot be ignored. It is the effect of certification, and its attendant delay, on the constitutional right here asserted. This factor is fundamental and, in many contexts, it will outweigh the others and mandate speedy and direct action by the federal court. The case before us is a First Amendment one, in which the City appeals from the grant of a preliminary injunction ordering it to permit the expression it sought to ban. In seeking counsel from the New York Court of Appeals, we inevitably and unfortunately delay the ultimate adjudication of this case, "a result quite costly where . . . a state statute may inhibit the exercise of First Amendment freedoms." Baggett, 377 U.S. at 379 (declining to abstain under Pullman in a vagueness challenge to a Washington statute requiring public employees to take loyalty oaths).

Violations of the First Amendment are, moreover, presumed to be irreparable. See Elrod, 427 U.S. at 373; Bery, 97 F.3d at 694. The delay, therefore, inherent in certification, if it harms the First Amendment right that plaintiff sought to vindicate by seeking this preliminary injunction, does so irreparably. Cf. Zwickler v. Koota, 389 U.S. 241, 252 (1967) (declining to abstain under the Pullman doctrine in a First Amendment facial challenge to a New York state law because "to force the plaintiff who has commenced a federal action to suffer the delay of state court proceedings might itself effect the impermissible chilling of the very constitutional right he seeks to protect"). Nor can this harm be much assuaged by the knowledge that "[f]ew public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies," Pullman, 312 U.S. at 500, or by the fact that, as the Supreme Court has repeatedly noted, the harm of delay is to some considerable extent mitigated by the efficiency of certification, see, e.g., Arizonans, 520 U.S. at 76; American Booksellers, 484 U.S. at 396; Bellotti, 428 U.S. at 151; Lehman Brothers, 416 U.S. at 391. As a result, in appropriate cases, courts have concluded that the proper balance is to keep the right-preserving injunction in effect pending the result of certification. See, e.g., American Booksellers, 484 U.S. at 397 (enjoining the enforcement of a state statute potentially violative of First Amendment rights pending certification); see also supra at 79-81(discussing Hope Clinic). But that procedure is not available to us in the instant case. See supra at 79.

Under the circumstances, I believe that imposing on plaintiff the delay entailed by certification is the least harmful alternative. I reach this conclusion primarily because the plaintiff indicated both in his brief and at oral argument that he retains an ongoing interest in conducting the photo shoot, regardless of when the event actually occurs. Indeed, it is for this very reason that the case before us is not now moot. See supra note 3. In other words, while the harm is irreparable, time is not of the essence. Given that certification is strongly favored by all of the other relevant factors taken together, it is hard for me to justify declining to certify, in order to rule expeditiously on an alleged right that, by plaintiff's own assertion, can be satisfactorily vindicated at a later date.

The issue is a close one, however, and Judge Sack takes the eminently plausible view that, even in this case, the First Amendment rights at stake cannot adequately be protected pending certification and that this consideration outweighs the remaining factors otherwise counseling deferral to the state court. See infra [Concurr. Op. at 14-18] I reiterate that I agree with Judge Sack that in many First Amendment cases -- particularly those involving prior restraints -- the constitutional rights involved are significantly damaged, if not altogether lost, by the delay entailed in certification, and that in such cases certification, even if favored by all of the other factors, is not acceptable. But in the situation before us, I respectfully disagree with Judge Sack.17

Besides plaintiff's not-insignificant concession regarding the timing of his interest, there is, I believe, an additional reason for certifying in this case. Judge Sack suggests that, were we to affirm a modified injunction that prevents the City from interfering with the taking of the photographs but leaves it free to arrest Tunick after completion of the shoot, the meaning of the statute would ultimately be decided by the New York state courts in the ensuing criminal case. See infra [Concurr. Op. at 13-14] But in fact, were we to take this route, there would be no guarantee that the City would actually press charges after arresting Tunick. Indeed, after every other one of Tunick's arrests for violations of the Penal Law, the case against him was ultimately dropped. The result of course is that there has not to date been, nor is there likely to be in the foreseeable future, any interpretation of the relevant state law by the only court that can do so definitively, the New York Court of Appeals.

This might not matter in many situations. But, in this case, it would mean that the threat of prohibiting Tunick or other photographers in the future from doing what Tunick seeks to do now would remain a Sword of Damocles over them. As a practical matter then, were we to take Judge Sack's approach, we might well end up with a more effective, and potentially much longer lasting, prior restraint than would result from a delay in the adjudication of Tunick's rights pending certification. And this is all quite apart from the obvious desirability of not deciding the constitutional question that Judge Sack would reach but that an opinion of New York's highest court might well render unnecessary.

In any event, because we retain jurisdiction over this case, see infra [Op. at 63], we have the option of reconsidering the stay that we earlier imposed on the preliminary injunction should certification impose unexpected delays or should conditions with respect to the asserted right change. This option allows us to continue, in the light of evolving circumstances, to balance the desirability of avoiding needless friction with state courts and of unnecessary constitutional decision making against the harm of extended delay in the adjudication of potential First Amendment rights. Given the circumstances of this case, where plaintiff seems to believe that his own rights can be satisfactorily exercised in the future, and where a decision not to certify may well leave plaintiff and those like him uncertain for an indefinite time as to whether outdoor photographs involving nudity may lawfully be taken, I believe that the effect of a temporary delay in the adjudication of the rights at issue does not outweigh the factors favoring certification.

A majority of this panel is not at this time -- albeit for different reasons -- prepared to rule on the underlying federal constitutional issue. A majority of this panel is, however, and again for different reasons, of the view that under the circumstances certification is appropriate. Accordingly, we certify. But we do so without prejudice to entertaining a motion to lift the stay of the district court's injunction should the delay entailed by certification lead to conditions that would justify immediate adjudication of the right asserted.

Certificate to the New York Court of Appeals pursuant to N.Y. Comp. Codes R. & Regs. tit. 22, 500.17(b) (1999) and 0.27 of the Local Rules of the United States Court of Appeals for the Second Circuit.

Title 22, 500.17(a) of the New York Compilation of Codes, Rules & Regulations permits certification of "determinative questions of New York law . . . for which there is no controlling precedent of the Court of Appeals." We believe that this appeal presents such a case.18 The New York Court of Appeals has yet to interpret the scope or constitutionality of the exemption under Penal Law 245.01 and 245.02, and two lower state court decisions appear to take opposing views on whether nude photography falls within the statute's proscription. Moreover, the court that indicated that such photographs were barred by the statute thereupon held the law void under the New York constitution. Because the City rests its entire argument on the scope and validity of 245.01 and 245.02, a determination by the Court of Appeals that these sections do not prohibit Tunick's proposed photo shoot would entirely resolve this case. See supra Sections II and V.B., and note 17. Given the long history of the state, and in particular of the City, as a center for artistic activity, similar questions regarding the type of nudity proscribed by the statute are likely to recur. We therefore certify the following questions to the New York Court of Appeals:

(1) Whether a photographic shoot involving 75 to 100 nude bodies arranged in an abstract formation on a public street constitutes entertainment or performance in a "play, exhibition, show or entertainment" within the meaning of the exception to N.Y. Pen. Law 245.01 and 245.02.

(2) If the answer to the first question is yes, whether the exceptions to N.Y. Pen. Law 245.01 and 245.02 are limited to indoor activities.

(3) If the answer to the first question is no, or if the answers to the first and second questions are both yes, whether N.Y. Pen. Law 245.01 and 245.02, so interpreted, are valid under the Constitution of the State of New York.

The manner in which we have framed these questions is in no way meant to restrict the Court of Appeals from considering any state law issues that it might wish to resolve in connection with this appeal.

In view of the fact that this case involves the stay of a grant of a preliminary injunction, issued to protected asserted First Amendment rights, we most respectfully request the Court of Appeals to consider on an expedited basis both whether it will accept certification, and, if it does, the questions here certified.

This panel retains jurisdiction pending action by the New York Court of Appeals.