dissenting:
Before addressing the merits of my colleagues’ separate opinions, I deem it necessary to review the chronology of events which my colleagues believed created such a need for haste as to justify the filing of their opinions without giving me an opportunity to read and respond to them. As is evident from the following several paragraphs, the issue of unseemly haste has been in this case from the very outset.
On July 13, 1999, Tunick filed his complaint which sought the following relief:
A preliminary and permanent injunction, enjoining defendants from interfering with plaintiff Tunick’s planned July 18, 1999 photoshoot, as long as it takes place between 5:30 a.m. and 6:30 a.m. and consists of 75-100 nude models in *97the form of an abstract shape on Madison Street, and from arresting Tunick and/or his models.
On the same day he served an order to show cause in which he sought the following injunctive relief:
Upon the annexed Affirmation of Ronald L. Kuby, duly executed on the 13th day of July, 1999, the Exhibits thereto, and the Complaint and Memorandum of Law filed herewith, let defendants show cause, at the Courthouse, 500 Pearl Street, New York County, Room 28B, on July 15, 1999, at 4:30 o’clock in the afternoon, why an Order should not issue enjoining defendants, their employees and agents, from interfering with or otherwise arresting Spencer Tunick, and 75-100 nude models, forming an abstract shape on Madison Street, between 5:30 a.m. and 6:30 a.m. on July 18, 1999.
Following a hearing conducted on July 15, 1999, the district court on July 16 issued an OPINION AND ORDER in which the relief sought by Tunick was described in the following language:
Plaintiff Spencer Tunick seeks a preliminary injunction that will enjoin defendants from arresting or interfering with Tunick and 75 to 100 nude models, to be placed in an abstract formation on Madison Street between Catherine and Market streets at 5:30 a.m. on Sunday July 18,1999.
The court then concluded its grant of injunction with the following language:
I do not think that the proposed photo shoot at 5:30 a.m. on a Sunday morning given the brevity of the actual nudity threatens the privacy rights of the block’s residents or presents overwhelming concerns for traffic or safety which should bar the photo shoot from taking place.
Most importantly, given the fact that the City has been unable to offer a single alternative location, I am not convinced that the time, place and manner restriction is narrowly tailored or that it is [sic] has no reference to the content of the regulated speech. Having first suggested alternative sites might be agreeable and then failing to pinpoint a single alternative location, the City cannot expect this Court to simply take its word that the restriction is reasonable and that the proposed location and date is an inappropriate time and place for the nude photo shoot. Accordingly, the photo shoot will proceed on Sunday morning at 5:30 a.m. at the proposed location but it shall not last beyond 6:30 a.m. and the nudity of the models will be limited to the representation given by plaintiff. The Police Department is directed to provide a suitable police presence.
For the reasons set forth above, the plaintiffs motion for a preliminary injunction is GRANTED.
On July 16, 1999, defendants appealed the above-quoted grant of preliminary relief to this Court. I believe that the allowance of only four days between the institution of suit with the concurrent application for injunctive relief and the date of the challenged photo shoot resulted from either improper dawdling on Tunick’s part, see United States v. Pate, 418 F.2d 815 (7th Cir.1969), or was designed deliberately to deprive Safir of sufficient time to arrange an alternative shoot location. In either event, it constituted an adequate explanation for why the City was unable to “offer a single alternative location” as the district court held. I believe that the district court erred in holding that Safir could not assert a time, place and manner defense.
On Saturday morning, July 17, 1999, a panel of judges, who are not identified in the docket sheet, conducted an expedited hearing on defendants’ challenge to the July 16th injunction order. Because of the absence of both a court clerk and a stenographer, the hearing was neither transcribed nor reported and no written orders were issued. Accordingly, we cannot state with certainty what transpired between Court and counsel. For example, the dis*98trict court’s stated reliance on the “representation given by plaintiff’ covering the limitation of the nudity of the models is meaningless in the absence of any evidence concerning the “limitation.” The docket sheet shows only that the district court’s injunction order was “stayed” and an “expedited appeal” was ordered with a three-week briefing schedule. In appellants’ subsequently submitted brief they requested that the above-quoted preliminary injunction order “be reversed and the preliminary injunction vacated.” Appellants’ brief at 17. Appellee argues that “the preliminary injunction issued by the District Court should be affirmed.” Appel-lee’s brief at 32. These constitute the essence of the litigation.
Two months later, on September 13, 1999, when the appeal was argued, Judge Calabresi requested that trial counsel within a week submit letter briefs responding to the following questions:
1. Whether the permit system under which the City denied plaintiff an opportunity to conduct a photographic session involving unclothed models violates the First Amendment prohibition against licensing regimes that confer excessive discretion upon the licensor of expressive activity.
2. Whether the City’s refusal to grant plaintiff a permit to conduct a photographic session amounts to content-based discrimination which cannot be shown to be “necessary” and “narrowly tailored” in the pursuit of “compelling interests.”
3. Whether, even if not content-based, the City’s blanket prohibition against the filming of any scene involving unclothed performers can be found to be a “narrowly tailored” “time, place or manner” restriction.
4. Whether, on the basis of any or all of the First Amendment principles suggested in the first three questions presented, the District Court properly found that plaintiff demonstrated a likelihood of success on the merits and irreparable injury.
Tunick, who brought this suit in federal court alleging a violation of his First and Fourth Amendment rights, responded to Judge Calabresi’s request by respectfully requesting that the Court deny certification. Safir responded by suggesting that the court certify the question whether “the participants in plaintiffs proposed shoot are covered by the ‘entertaining or performing’ exemption of Penal Law §§ 245.01 and 245.02.”
Judge Sack advised me and Judge Cala-bresi that he did not agree with the proposed certification, and I expressed my agreement with that portion of Judge Sack’s response. Another three months elapsed with no further action on the part of Judge Calabresi until, on March 10, 2000, he circulated a 46-page opinion ordering the following different set of proposed certified questions:
(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.
Question (3), which refers to the New York Constitution, is completely new. The New York Constitution played no role whatever in this case prior to Judge Cala-bresi’s rather obvious effort to justify certification. As is evidenced by the originally proposed questions, the instant action was specifically and unequivocally based *99on alleged violations of the First and Fourteenth Amendments. The New York Constitution was discussed by neither the district court nor counsel. The clearest evidence of Judge Calabresi’s purpose is paragraph (3) which drags the New York Constitution into the case. Ever since Judge Calabresi moved to this Court from Yale Law School, he has verbosely crusaded for more extensive use of the certification process. In so doing, he has either overlooked or disregarded the burdens on the State courts and the consequent delays that often result. Clearly, as former Justice Douglas stated when dissenting in Clay v. Sun Ins. Office, Ltd., 363 U.S. 207, 228, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960), “[t]he pursuit of justice is not an academic exercise.”
I find the discussion of these issues by then District Judge Jose Cabranes in L. Cohen & Co., Inc. v. Dun & Bradstreet, Inc., 629 F.Supp. 1419, 1422-25 (D.Conn. 1986), more persuasive than Judge Cala-bresi’s lengthy discourse. See also Judge Meskffi’s discussion in McCarthy v. Olin Corp., 119 F.3d 148, 153 (2d Cir.1997), where, quoting Dorman v. Satti, 862 F.2d 432, 435 (2d Cir.1988), he said that “Certification should not be used as ‘a device for shifting burdens of this Court to those whose burdens are at least as great.’” (An apt description of the New York Court of Appeals.) It also should not unnecessarily impose upon the New York Court of Appeals the obviously unpleasant task of refusing to accept questions certified by this Court. See, e.g., Yesil v. Reno, 92 N.Y.2d 455, 682 N.Y.S.2d 663, 705 N.E.2d 655 (1998), in which the New York Court of Appeals declined to accept certification ordered in Henderson v. INS, 157 F.3d 106 (1998)(Calabresi, J.). Judge Calabresi warmed up for his present discourse on certification by writing a 17-page dissent in McCarthy.
I would not be as vehement as I am in this matter if I was satisfied that this Court had jurisdiction to hear the instant appeal. As above stated, Tuniek’s complaint sought an injunction addressed specifically to his planned July 18, 1999 photo shoot. The injunction he secured referred only to the proposed July 18, 1999 shoot, directed that the shoot take place on that day, and directed the New York City Police Department to “provide a suitable police presence,” a clear indication it would seem that the district court anticipated trouble arising from the presence of 75 to 100 nude men and women on a public street in a residential neighborhood on the prescribed date.
It has been stated on numerous occasions that “to invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” See Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). There is no way in which this Court at this late date could grant Tunick the relief he sought and the district court ordered. In the words of the Seventh Circuit in Johnson-Kennedy Radio Corp. v. Chicago Bears Football Club, Inc., 97 F.2d 223, 225 (7th Cir.1938), “[t]he subject matter of the litigation has passed into history.” Johnson involved an injunction seeking to prevent a football game that already had been played. See also Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969); Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969); American Book Co. v. Kansas ex rel. Nichols, 193 U.S. 49, 24 S.Ct. 394, 48 L.Ed. 613 (1904); Todd v. Joint Apprenticeship Comm., 332 F.2d 243, 246-47 (7th Cir.1964); Dr. Martin Luther King, Jr. Movement, Inc. v. City of Chicago, 419 F.Supp. 667, 678 (N.D.Ill.1976); Folder v. United States, 258 F.Supp. 638 (C.D.Cal.1966).
In short, the instant case is not one which involves a general allegedly wrongful practice that may permit jurisdiction on the ground that the alleged wrongdoing is repetitive in nature. The injunction at issue was directed solely against a single *100event scheduled for July 18, 1999. “No relief within the scope of the complaint could now be granted.” Todd, 332 F.2d at 247. In the same vein, I do not understand why my colleagues were in such a rush to request certification that they did so before I had a reasonable opportunity to state my opposition.
Although my opposition to certification does not address the merits of the instant appeal, I, like Judge Sack, have “little doubt that the City of New York can stop a large group of men and women from undressing on a public street in a residential neighborhood, even if the members of the group do so for the purpose and in the course of creating artistic expression.” Maj. op. at 69. See City of Eñe v. Pap’s AM., No. 98-1161, 2000 WL 313381 (U.S. Mar.29, 2000) (city ordinance banning public nudity constitutional); City of Renton v. Playtime Theatres, Inc., 476 U.S. 41, 50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (“[A] city’s interest in attempting to preserve the quality of urban life is one that must be accorded high respect.”); Buzzetti v. City of New York, 140 F,3d 134, 140 (2d Cir.), cert. denied, 525 U.S. 816, 119 S.Ct. 54, 142 L.Ed.2d 42 (1998); People v. Hollman, 68 N.Y.2d 202, 207, 507 N.Y.S.2d 977, 500 N.E.2d 297 (1986) (“prohibiting public nudity is plainly within the State’s police powers.”). I am firmly convinced that the proposed photo shoot of 75-100 naked people on a public street will constitute an open but regrettable invitation for voyeurs and impressionable children to bring their cameras and join in the shoot.
Because Tunick’s complaint and order to show cause were served just five days prior to the scheduled photo shoot, it was totally unreasonable to expect an opinion from this Court passing upon the merits of the challenged shoot prior to the clicking of the cameras. We do not know what prompted Tunick’s unseemly rush to the courts, a rush that was unnecessarily unfair to both the judiciary and the public. I would dismiss the complaint as moot without prejudice to Tunick’s scheduling another photo shoot in a manner that permits a reasonable time for prior judicial review.