Petition — Barber v. International Society for Krishna Consciousness, Inc.
Supreme Court brief1981
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80-1519 - ||
No. ‘ ALEXANDER L. STEVas
In The
Supreme Court of the United States
OCTOBER TERM 1980
J. ROGER BARBER, in his official capacity as Commissioner of the
DEPARTMENT OF AGRICULTURE AND MARKETS OF THE
STATE OF NEW YORK, and THOMAS G. egg Director of
the New York State Industrial Exhibit Authority, and JAMES G.
GARLICK, Acting Director of the New York State Industrial Exhibit
Authority, Petitioners,
et aa SOCIETY FOR KRISHNA CONSCIOUSNESS,
AND, ON BEHALF OF THEMSELVES AND ALL INTER-
NATIONAL, SOCIETY FOR KRISHNA CONSCIOUSNESS MEM-
BERS, AND ALAN ATTIAS, A/K/A AJA DASA, AND
KENNETH L. SOLOMON, A/K/A KESIHANTA, Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
PETITION FOR CERTIORARI
ROBERT ABRAMS CHARLES R. WELCH, ESQ.
Attorney General BRADLEY J. CARR, ESQ.
State of New York Welch, Welch & Carr
SHIRLEY ADELSON SIEGEL 5100 West Genesee Street
New York 13209
State of New York (315) 487-0210
The Capitol Counsel for Petitioner James G.
Albany, lew York 12224 Garlick and for Petitioner
(518) 474-8101 Thomas G. Young as Manager
THOMAS J. MARONEY of the New York State Indus-
GEORGE M. LEVY trial Exhibit Authority
Assistant Attorneys General
333 East W: Street
, New York 13202
(315) 473-8430
Counsel for Petitioner J. Roger
Barber and for Petitioner
Thomas G. Young as Director
of the New York State Fair [L 30]
QUESTION PRESENTED
May the New York State Fair, consistently with the First
Amendment, require that all persons who solicit money or sell
products or other materials during the annual ten-day Fair do so
from a booth or other fixed location on the Fairgrounds, when
the rule is applied equally to all persons without regard to the
content of their products, literature or beliefs?
ii
TABLE OF CONTENTS
Page
IN MUN oso Sekvotecnceveubivl sae i
IIR og s44 60s cS del eee ee 2
MY icbco 6.00 v6.5 sve dha de baenste eee 2
I oo oo ea Cah Vaden cokeccnaele 3
SO INS os onc aa ven eens vedeeee 4
Reasons for Granting the Writ ...................... 7
I. The Issuance of a Writ of Certiorari Before Judg-
ment in the Court of Appeals is Consistent With
Established Practice and the Exercise of Sound Dis-
cretion by this Court, and Would Provide A Full
Record on the Identical Issue Involved in Heffron
et al. v. International Society for Krishna Con-
sciousness et al., No. 80-795, Scheduled for Argu-
ment at the April 1981 Session ............... 7
Il. The Decision of the District Court After Trial, Al-
though It Properly Applied First Amendment
Standards Established by this Court, Is Nonetheless
in Conflict with the Decisions of Several State and
PUTTS oo dis oka ckdukceedienee tee 10
Ill. The Booth Rule is a Reasonable Time, Place and
Manner Regulation Which is Consistent With First
Amendment Standards ...................... 11
A. The Booth Rule is a Nondiscriminatory
Regulation of Time, Place and Manner, and
WO SEG oo occu wedccccetonere. 11
B. The New York State Fairgrounds is Not an
Unlimited Public Forum ................ 13
IV. The Booth Rule is a Time, Place and Manner Regu-
lation Which Serves Significant Governmental
PMID 0 ens 5 00 04000 0000R eC 15
Page
A. Protection of the Public From Fraud and
CE Bik F ko Rescind oho bah oe Vee woe 15
B. The Control of Pedestrian and Vehicular
PE. oUt Ankh axed eva ckos hieateks 16
C. Protection and Reconciliation of All Per-
fe ee 16
1. Fairgoers’ Access to Ideas and Messages
FS POT Tee eeeeee 17
2. Fairgoers’ Limited Right of Privacy .... 17
3. Equal Treatment for Exhibitors ....... 19
AP Ta cn ee oe eee eee eee 20
APPENDICES:
Appendix A — Memorandum-Decision and Order of
Munson, J., dated August 25,1980 .......... ... Al
Appendix B — Decision of United States Court of Ap-
peals, Second Circuit, dated August 28,1980 ...... A53
Table of Authorities:
SUPREME COURT:
Brown v. Louisiana, 383 U.S. 131 (1966) ............. 17
Cantwell v. Connecticut, 310 U.S. 296 (1940).... 12,13,18
Cohen v. California, 403 US.15(1971) .............. 18
Douglas v. Jeannette, 319 U.S. 157 (1943) ............ 14
Edwards v. South Carolina, 372 U.S. 229 (1963) ........ 17
Foster v. Goodcell, 282 U.S. 409 (1931) .............. 8
Grayned v. City of Rockford, 408 U.S. 104 (1972) ...... 13
Hague v. CIO, 307 U.S. 496 (1939) ...............4.. 13
Hannah v. Larche, 363 U.S. 420 (1960) ............... 8
Heffron et al v. International Society for Krishna Con-
sciousness, Inc., et al., cert. granted 49 U.S.L.W. 3508
(No. 80-795, January 19,1981)......... 7, 8,9, 10,11
iv
Page
Johnson v. United States Shipping Board Fleet Corp., 280
GRE TSURRSIRR RICE A anemone 8
Lehman v. City of Shuker Heights, 418 U.S. 298
ok kins 4 aus cabal de ase kulde eek vale) 13,18
McCulloch v. Sociedad Nacional, 372 U.S.10 (1963) .... 8
McElroy v. Guagliardo, 361 U.S. 281 (1960) ........... 8
Porter v. Dicken, 328 U.S. 252 (1946) ................ 8
Reid v. Covert, 354 U.S. 1(1957) ................... 8
Rowan v. Post Office Department, 397 U.S. 728 (1970) .. 18
Taylor v. McElroy, 360 U.S. 709 (1959) .............. 8
United States v. Thomas, 361 U.S. 950 (1960) ......... 8
Virginia State Board of Pharmacy v. Virginia Citizens Con-
sumer Council, 425 U.S. 748 (1976) ............... 12
White v. Mechanics Securities Corp., 269 US. 283
MD Wri ee rns ous ga eval Gece 6. cdeKs 8
OTHER JURISDICTIONS:
Edwards v. Maryland State Fair, 628 F.2d 282 (4th Cir.
PUP GE Watt hte iets ea RO a 10, 11, 18
Edwards v. Maryland State Fair, 476 F. Supp. 153 (D. Md.
MT ca Mita os Lane eeee oles el codec It 16
Hynes v. Metropolitan Government of Nashville, 478 F.
Supp. 9 (M.D. Tenn. 1979) ................ 10, 14, 18
International Society for Krishna Consciousness v. Bowen,
600 F.2d 667 (7th Cir. 1979), cert. denied, 444 U.S.
ED ro c.k kc ele ute shares ta oe 10, 11
International Society for Krishna Consciousness v. Colo-
rado State Fair & Exposition Comm'n, 610 P.2d 486
Pe UE ha ou es wcbaekiekclb ec kieds eek. 10
International Society for Krishna Consciousness v. Eaves,
601 F.2d 809 (5th Cir. 1979) .................. 10,11
Page
International Society for Krishna Consciousness v. Evans,
440 F. Supp. 414 (S.D. Ohio 1977) ............. 10, 16
International Society for Krishna Consciousness v.
Heffron, 299 N.W.2d 79 (Minn. 1980), cert. granted,
49 U.S.L.W. 3508 (No. 80-795, January 19,1981) .... 10
International Society for Krishna Consciousness v.
Heffron, No. 421843 (2d Dist. Minn., August 19,
FRO Ey Oe SE re re ie ae 13
International Society for Krishna Consciousness v.
McAvey, 450 F. Supp. 1265 (S.D.N.Y. 1978) ........ 10
International Society for Krishna Consciousness v. State
Fair of Texas, No. CA-3-78-1279-G (N.D. Texas July
PRS Fe UWA sant sae bee eee sus dee Ceeeeees 10
International Society for Krishna Consciousness v. State
Fair of Texas, 461 F. Supp. 719 (N.D. Texas 1978). 10,14
United States v. Boesewetter, 463 F. Supp. 370 (D.D.C.
Dah Ra ee ed eee au ee Gee ames 10
STATUTES AND RULES:
i re 3, 7,9
SEU BE. B TOG COASTS) onc ccc ccccccvccccss 4
Be Ch, Oh IP ERTED cca ccccccenepeaveunveen 8
ee EE 6. i's bac cdewedotcocnweke aud 4
N.Y. Agriculture & Markets Law §31-b (McKinney 1972). 3
N.Y. Public Authorities Law § 1654(c) ............... 3
Rules and Regulations of the N.Y. Department of Agri-
culture & Markets, Section 350.16(j) ............... 3
Rules : -d Regulations of the N.Y.S. Industrial Exhibit
RO TU TD cc cvccckvscctecstevsentnte 3
Supreme Court Rule 18 (1980) .................0.- 8,9
OTHER AUTHORITIES:
R. Stern & E. Gressman, Supreme Court Practice (5th ed.
EL EELS ai ive i ae ey ete PERN TMP aee, He 8
No.
In The
Supreme Cowt of the United States
OCTOBER TERM 1980
J. ROGER BARBER, in his official capacity as Commissioner
of the DEPARTMENT OF AGRICULTURE AND MAR.
KETS OF THE STATE OF NEW YORK, and THOMAS
G. YOUNG, Director of the New York State Industrial
Exhibit Authority, and JAMES G. GARLICK, Acting
Director of the New York State Industrial Exhibit Authority,
Petitioners,
con fh ae
INTERNATIONAL SOCIETY FOR KRISHNA CON-
SCIOUSNESS, INC., AND, ON BEHALF OF THEM-
SELVES AND ALL INTERNATIONAL SOCIETY FOR
KRISHNA CONSCIOUSNESS MEMBERS, AND ALAN
ATTIAS, A/K/A AJA DASA, AND KENNETH L.
SOLOMON, A/K/A KESIHANTA,
Respondents.
SeunEREEEnEEeeeeel
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
Petitioners respectfully pray that a writ of certiorari issue
to review the judgment and opinion of the United States Dis-
trict Court for the Northern District of New York, now pend-
ing on appeal before the United States Court of Appeals for
the Second Circuit, which held, after trial, that the New York
State Fair booth rule (hereinafter “booth rule”) is constitu-
tional as applied to respondent International Society of Krishna
7%
Consciousness, Inc. (hereinafter “ISKCON” or “Krishnas”’)
and its members.
OPINIONS BELOW
The opinion of the United States District Court for the
Northern District of New York is not yet reported. A copy of
the court’s MEMORANDUM-DECISION AND ORDER. In-
ternational Society for Krishna Consciousness, Inc., et al. v.
J. Roger Barber, et al., 77-CV-328 (N.D.N.Y. filed August 25,
1980), is contained in Appendix A, infra.
The opinion of the United States Court of Appeals for the
Second Circuit, denying Plaintiffs’ motion for a stay of the
District Court’s judgment, and for a preliminary injunction
allowing Plaintiffs to circulate and solicit money freely at the
1980 New York State Fair, is not reported. A copy of the
court’s opinion, International Society for Krishna Conscious-
ness, Inc., et al. v. J. Roger Barber, et al., 80-7709 (2d Cir.
filed August 28, 1980), is contained in Appendix B, infra.
JURISDICTION
The MEMORANDUM-DECISION AND ORDER of the
United States District Court for the Northern District of New
York was entered on August 25, 1980. In this case, the Dis-
trict Court held, after an eleven day trial, that the New York
State Fair booth rule, which has the force and effect of state
law, is valid as applied to ISKCON and its members under the
First Amendment to the United States Constitution, and dis-
missed the complaint. Appeal was taken from that Order by
the respondents here, and the appeal is now pending before
the United States Court of Appeals for the Second Circuit.*
*Respondents here also sought a stay of the District Court’s
judgment and a preliminary injunction allowing them to circu-
late and solicit money freely at the 1980 New York State Fair.
A copy of the Second Circuit’s decision of August 28, 1980
denying the relief requested is contained in Appendix B, infra.
A Notice of Appeal was timely filed on August 26, 1980. The
certified record was filed with the Second Circuit on October
9, 1980, January 29, 1981 and February 11, 23 and 24, 1981.
The jurisdiction of this Court is found in 28 U.S.C. § 1254(1).
LAW IN QUESTION
Section 350.16(j) of the Rules and Regulations of the New
York State Department of Agriculture and Markets provides
that:
A licensee may solicit only from the space designated
in the lease between the licensee and the Division of the
State Fair.
The New York State Department of Agriculture and Markets,
Division of the State Fair, has statutory authority to promul-
gate and enforce the rule under New York Agriculture and
Markets Law §31-b.
Section 13 of the Rules and Regulations of the New York
State Industrial Exhibit Authority provides that:
No roving vendor or solicitor, acting for either a profit
or nonprofit organization or on his own behalf, shall be
permitted on the Fairgrounds or in any facility upon the
Fairgrounds. Any and all solicitations for either contri-
butions or sale must be made from within the confines of
a booth or display. Any person or organization violating
this rule will be promptly evicted from the New York
State Fairgrounds for the duration of the Fair.
The New York State Industrial Exhibit Authority has statutory
authority to promulgate and enforce the rule under the New
York Public Authorities Law § 1654(c).
The District Court acknowledged that “various religious,
fraternal and political groups” have been exhibitors at the Fair
and have solicited donations there, and that “all were confined
to a booth during the course of the Fair.” Appendix A at 7-8.
4
?
STATEMENT OF THE CASE
This action was commenced by the filing of a Verified Com-
plaint challenging the constitutionality of the booth rule on
August 27, 1977, the day before the 1977 New York State Fair
was to begin. The jurisdiction of the District Court was based
upon 28 U.S.C. § 1343(3) and (4) and 42 U.S.C. §1983. The
following day the Honorable Edmund Port, Chief Judge of the
Northern District of New York, granted a temporary restrain-
ing order allowing respondents virtually unlimited access to the
Fair for the purpose of disseminating literature and soliciting
money. On August 25, 1978, the day before the 1978 Fair was
to begin, respondent ISKCON and another devotee filed a new
complaint challenging the booth rule although the 1977 action
was still pending. The Honorable Howard G. Munson, District
Judge, granted a temporary restraining order allowing the
Krishnas access to the Fair without observing the booth rule,
subject to a number of conditions proposed by the Krishnas.
He did so based on the 1977 complaint, and dismissed the 1978
action.
On August 30, 1979, five days after commencement of the
1979 Fair, the Krishnas obtained a temporary restraining order
from Judge Port allowing them access to the 1979 Fair. On
August 31, 1979, Judge Port preliminarily enjoined petitioners
herein from enforcing the booth rule against the Krishnas.
In early 1980, petitioners conducted extensive pre-trial dis-
covery, including a demand for production of documents and
things and five days of depositions of the corporate respondent
and individual respondent Alan Attias. On April 21, 1980, now
Chief Judge Munson denied a motion by respondents for sum-
mary judgment,” and trial on the merits began. The trial lasted
*Summary judgment had also been denied by Judge Munson
in an unreported MEMORANDUM-DECISION AND ORDER
of August 22, 1979. The court held that summary judgment
was improper because a full development of the facts was re-
quired to determine, in light of the State’s claims, what restric-
tions, if any, should be placed on the activities of ISKCON
mem at the New York State Fair.
5
for 11 days and produced 44 witnesses, more than a hundred
exhibits and a transcript in excess of 1500 pages. Extensive por-
tions of the pre-trial depositions were received in evidence as
was the entire deposition of ISKCON’s former treasurer, taken
during the course of the trial. The trial herein was, to counsel’s
knowleuge, the first and only plenary trial to date in a case in-
volving the rights of Krishnas to engage in solicitation and dis-
tribution at a fairgrounds. Without question, the trial produced
the most extensive factual record ever developed in a case in-
volving such rights.
The District Court, relying on the extensive record developed
at trial, found a pervasive pattern of fraud and abuse by
Krishnas in the course of their solicitations, which they seek to
bring under the aegis of the religious ritual of Sankirtan.2 In
addition to physical and verbal assaults,3 the court found nu-
merous examples of misrepresentation, deliberately permitted
by ISKCON4, including not mentioning the solicitor’s Krishna
affiliation,” slurring the word “Krishna” to sound like
“Christian,”6 making up phony charitable causes to elicit dona-
tions,’ and misrepresentation of products, particularly record
albums which purported (falsely) to contain music recorded by
1 ISKCON v. Barber et al., No. 77-CV-328 (N.D.NY. Aug.
25, 1980) Appendix A at 19-32.
2 Id. at 5.
3 Id. at 31.
4 Id. at 26.
5 Id. at 22.
6 id.
7 Td. at 22-23. The court noted that the measure of truth or
falsehood in these claims was left uncertain by ISKCON’. re-
fusal to comply with orders of the court relating to disccvery.
Id. at 19-20, 29.
‘
popular recording artists.2 The court noted that Krishna mem-
bers were tah teehee aah os CHG Gey See
(e.g. unsophisticated teenagers and handicapped persons),9
miscounting or withholding change,19 and lying or trespassing
on private rroperty, 11 all as “acceptable” means of soliciting
donations. The court noted specific instances of such fraudu-
lent techniques being used, both at the Fair!2 and in the city
of Syracuse13 by Krishna devotees. The court also found re-
peated instances of Krishna violations of previous court orders
relating to their activity at the Fair. 14 Perhaps most import-
antly, the court found that these harmful activities were not
isolated instances of misconduct by hard-to-control devotees,
but rather a pattern of deceptive practices, identical in nature,
practiced throughout New York, Massachusetts and Maryland,
and condoned by IS!”°CON, which used “experienced ‘thieves’
to teach its new members how to solicit money from the pub-
lic in exactly the same way.”15
The New York State Fair is an annual event held on state-
owned fairgrounds in the town of Geddes, just outside the
city of Syracuse. The Fair is conducted jointly by the State
Department of Agriculture and Markets and the State Indus-
trial Exhibit Authority, each of which owns a portion of the
8 id. at 23.
9 Id. at 27.
10 7d. at 23.
11 7.
12 1. at 24-5.
13 Id. at 27-8.
14 1d. at 32, 43-4.
15 Id. at 43. See part IV, infra, for additional findings by
the District Court.
buildings and grounds. Each agency has rule-making authority
for the premises which it owns.16
The Fairgrounds comprise a total of 350 acres, including
open spaces, and large parking lots outside the gates. There are
40 acres within the gates; after deducting the acreage covered
by the race track, grandstand, and infield parking area, the Fair-
grounds proper remains, an area of 20 acres within which the
exhibits and pedestrian walkways are found.17 Attendance at
the Fair has risen steadily from 526,000 at the seven-day 1977
Fai., to 686,000 at the ten-day 1978 Fair, to 701,000 at the
ten-day 1979 Fair.18. Among the exhibitors at the Fair have
been a number of agricultural and industrial exhibitors, as well
as religious, fraternal and political groups. A number of these
latter have solicited contributions from fairgoers and all were
confined to booths!9 regardless of their affiliation.
REASONS FOR GRANTING THE WRIT
I. THE ISSUANCE OF A WRIT OF CERTIORARI BE.
FORE JUDGMENT IN THE COURT OF APPEALS IS
CONSISTENT WITH ESTABLISHED PRACTICE AND
THE EXERCISE OF SOUND DISCRETION BY THIS
COURT, AND WOULD PROVIDE A FULL RECORD
ON THE IDENTICAL ISSUE INVOLVED IN
HEFFRON ET AL. v. INTERNATIONAL SOCIETY
FOR KRISHNA CONSCIOUSNESS, INC. ET AL., NO.
80-795, SCHEDULED FOR ARGUMENT AT THE
APRIL 1981 SESSION.
Petitioners here seek certiorari before judgment in the Court
of Appeals. The exercise of such certiorari jurisdiction is clearly
within this Court’s power, 28 U.S.C. § 1254(1), and any party
16 See page 3 supra. (Law in Question)
17 Appendix A at 7.
18 iq.
19 id. at 8.
to the pending appeal may seek such review, id. See also, 28
U.S.C. § 2101(e); Supreme Court Rule 18,20
Petitioners seek such an exercise of jurisdiction by this Court
because of the pendency of another case involving the same
constitutional issue and virtually identical facts as the instant
case where, however, a full record was developed at trial. Earl-
ier this Term, the Court granted certiorari in Heffron et al. v.
International Society for Krishna Consciousness, Inc.
(“ISKCON”) et al., cert granted, 49 U.S.L.W. 3508 (Jan. 19,
1981), No. 80-795. The Heffron case is strikingly similar to
this one: both involve state fair booth rules, applied non-
discriminatorily and without regard to content, challenged on
First Amendment grounds by the Krishnas whose devotees
seek unrestricted rights to solicit money from fairgoers, and de-
fended by the respective states as a reasonable form of time,
place and manner regulation. Both require that the solicitation
of money and the sale of products or literature be done from
a booth; the New York rule allows peripatetic distribution of
literature, but the Minnesota rule apparently does not. Both
states have posited similar public interests to justify their booth
rule: (1) the prevention of fraudulent practices typical of
Krishna solicitors and uncontrollable by other means; (2) the
control of vehicular and pedestrian traffic; and (3) fair accom-
modation of competing rights among exhibitors and fairgoers.
20 The practice of granting certiorari before judgment in the
Court of Appeals when the same question is pending before this
Court has been followed in a number of cases. E.g., McCulloch
v. Sociedad Nacional, 372 U.S. 10 (1963); Hannah v. Larche
363 U.S. 420 (1960); United States v. Thomas, 361 U.S. 950
(1960); McElroy v. Guagliardo, 361 U.S. 281 (1960); Taylor
v. McElroy, 360 U.S. 709 (1959); Reid v. Covert, US. 1
(1957); Porter v. Dicken, 328 U.S. 252 (1946); Foster v.
Goodcell, 282 U.S. 409 (1931); Johnson v. United States Ship-
ping Board Fleet Corp., 280 U.S. 320 (1930); ‘White v. Mechan-
ics Securities Corp., 269 U.S. 282 (1925). See R. Stern & E.
mg a Supreme Court Practice § 4.21 (5th ed. 1978), at
PP. .
—
A strong consideration supporting the grant of certiorari here
is the unique quality of the record developed during the 11 day
trial in the District Court. As that court observed, the record
here is “unlike that of any other . . . case involving the right of
the Krishnas to practice Sankirtan . . . .” Appendix A at 12.
The record is especially well developed in terms of the facts
surrounding fraudulent practices by Krishna solicitors, as shown
by the extensive reliance upon the Barber decision by the
successful petitioners in Heffron, in the section of their Petition
dealing with fraud and abuse. Heffron et al. v. ISKCON et al.,
No. 80-795, Petition for Writ of Certiorari to the Supreme
Court of Minnesota, at 6-7, 16, 21-23. In short, the well-
developed record in this case would assist the Court in its
analysis of the constitutional question at stake, without inject-
ing any inconsistent or collateral issues.
In accordance with 28 U.S.C. § 1254(1) and Supreme Court
Rule 18, a writ of certiorari should issue to the United States
Court of Appeals for the Second Circuit, before judgment, and
Barber should be set down for oral argument in this court at the
same time as Heffron. Pursuant to Supreme Court Rule 35 the
Court should establish an expedited briefing schedule in Barber,
if necessary, so that the two cases can be heard together. This
would work no hardship on ISKCON, which is represented by
the same counsel in both Heffron and Barber. Alternatively,
oral argument in Heffron, now scheduled for late April 1981,
should be deferred so that the two cases can be heard together.
10
ll. THE DECISION OF THE DISTRICT COURT AFTER
TRIAL, ALTHOUGH IT PROPERLY APPLIED FIRST
AMENDMENT STANDARDS ESTABLISHED BY THIS
COURT, IS NONETHELESS IN CONFLICT WITH
THE DECISIONS OF SEVERAL STATE AND FED-
ERAL COURTS.
The attempts of state fairs and some other public facilities
to protect important public interests by limiting the solicitation
of funds to fixed points in the public facility have given rise to
a spate of “booth rule” cases, almost all involving Krishnas. It
is not surprising, given the volume of such litigation and the
subtlety of the applicable First Amendment principles that con-
flict has arisen as to the constitutional validity of such booth
rules.21 An inter-circuit conflict exists on this question, and it
is important to note, since petitioners here seek certiorari be-
fore judgment in the Second Circuit, that the conflict would
remain even if the Second Circuit were to invalidate the New
21 Accord with the District Court’s decision: ISKCON v.
Evans, 440 F. Supp. 414, 423-25 (S.D. Ohio 1977); Hynes v.
Metropolitan Government of Nashville, 478 F. Supp. 9, 11-
12 (M.D. Tenn. 1979); ISKCON v. State Fair of Texas, 461
F. Supp. 719, 723-25 (N.D. Tex. 1978). See also: ISKCON v.
Eaves, 601 F.2d 809, 828-29 (5th Cir. 1979) (booth rule valid
means to minimize congestion and insure smooth flow of traffic
in airport); United States v. Boesewetter, 463 F. Supp. 370,
373 (D.D.C. 1978) (booth rule would be valid time, place and
manner regulation for Kennedy Center); ISKCON v. McAvey,
450 F. Supp. 1265, 1269-70 (S.D.N.Y. 1978) (limiting number
and location of Krishna solicitors in World Trade Center con-
course).
But see contra: Edwards v. Maryland State Fair, 628 F.2d
282 (4th Cir. 1980); ISKCON v. Bowen, 600 F.2d 667 (7th
Cir. 1979), cert. denied, 444 US. OND Tt ISKCON v. State
Fair of Texas, No. CA-3-78-1279-G (N.D. Tex. July 30, 1980);
ISKCON v. Colorado State Fair and Exposition Comm'n, 610
P.2d 486 (Colo. 1980); ISKCON v. Heffron, 299 N.W.2d 79
a 1980), cert. granted, 49 U.S.L.W. 3508 (No. 80-795,
an. 19, 1981)
11
York State Fair booth rule.22 Compare Edwards v. Maryland
State Fair, 628 F.2d 282 (4th Cir. 1980) and ISKCON v.
Bowen, 600 F.2d 667 (7th Cir. 1979), cert. denied, 444 U.S.
963 (1979) with ISKCON v. Eaves, 601 F.2d 809 (5th Cir.
1979),
As demonstrated in the balance of this Petition, the District
Court’s decision herein is consistent with the First Amendment
principles enunciated by this Court. Given its clear conflict
with a number of other booth rule decisions, however, peti-
tioners respectfully pray that this Court grant certiorari and re-
affirm those principles by affirming the judgment of the District
Court.
~
Il. THE BOOTH RULE IS A REASONABLE TIME,
PLACE AND MANNER REGULATION WHICH IS
CONSISTENT WITH FIRST AMENDMENT STAND.
ARDS.
A. The Booth Rule is a Nondiscriminatory Regulation of
Time, Place and Manner, and not of Content.
It is essential to recognize what the booth rule is, and is not.
It is not a ban on distribution or solicitation. It is not a re-
striction subject to discretionary application or waiver by any
public official. Its operation is not conditioned in any way
upon the content of the message communicated by any group
at the Fair, nor are there any distinctions made among com-
mercial, political, fraternal or religious groups in the applica-
tion of the booth rule.
The booth rule is a nondiscriminatory regulation of the time,
Place and manner in which the solicitation of funds can be
carried on at the New York State Fair. It is designed to serve
22 And if this Court elected for some reason not to decide
a merits the pending case of Heffron v. ISKCON, No. 80-
12
and does in fact promote several clearly articulated and long-
established public interests, which are discussed in section IV,
infra.
The principles governing the imposition of time, place and
manner regulations have been clearly stated by this Court:
We have often approved [time, place and manner] restric-
tions .. . provided that they are justified without reference
to the content of the regulated speech, that they serve a
significant governmental interest, and that in so doing they
leave open ample alternative channels of communication
of the information.
Va. State Bd. of Pharmacy v. Virginia Citizens Consumer Coun-
cil, 425 U.S. 748, 771 (1976). Although Virginia Board was
decided in the context of commercial speech, this Court long
ago recognized the applicability of the basic principles to reli-
gious solicitation. It observed in a case specifically involving
such solicitation:
The State is likewise free to regulate the time, place and
manner of solicitation generally, in the interest of public
safety, peace, comfort or convenience.
The general regulation, in the public interest, of solicita-
tion, which does not involve any religious test and does
not unreasonably obstruct or delay the collection of
funds, is not open to constitutional objection, even though
the collection be for a religious purpose. Such regulation
would not constitute a prohibited previous restraint on the
free exercise of religion... .
Cantwell v. Connecticut, 310 U.S. 296, 306-07, 305 (1940).
More will be said in this Petition regarding the significant public
interests served by the booth rule. At this point it should suf-
fice to note that the rule meets the Court’s long-established
standards of time, place and manner regulations, in that it regu-
lates only time, place and manner, not content, does not es-
tablish a total ban on protected activity and is applied without
discrimination. See Virginia Board of Pharmacy, supra, 425
US. at 771.
13
B. The New York State Fairgrounds is not an Unlimited Pub-
lic Forum.
The Court in Cantwell was applying the principles just dis-
cussed to religious solicitation in the most traditional public
forum, the public streets, which have “time out of mind...
been used for the purpose of communicating thoughts between
citizens .. . .” Hague v. CIO, 307 U.S. 496, 515 (1939). Al-
though the streets are not the only recognized public forum to
which citizens have some constitutional right of access for First
Amendment purposes, this Court has recognized that each type
of forum involves its own special circumstances and interests
which must be balanced and reconciled with the First Amend-
ment interests involved:
. . . the nature of the forum and the conflicting interests
involved have remained important in determining the de-
gree of protection afforded by the [First] Amendment
to the speech in question.
Lehman v. City of Shaker Heights, 418 U.S. 298, 303 (1974).
See also Grayned v. City of Rockford, 408 U.S. 104 (1972).
It thus becomes important to consider the nature of the
forum, The New York State Fairgrounds is not an unlimited
public forum. Indeed, the unique nature of a state fair virtually
compels the adoption of some type of time, place and manner
regulation. The state district court which upheld the Minne-
sota State Fair booth rule noted:
In Minnesota there are over 1400 exhibitors at the State
Fair seeking to communicate various information. Some
form of time, place and manner restriction is clearly re-
quired if the free speech rights of each of these exhibitors
are to be protected. In addition the public has a right of
access to the several communications which must be pro-
tected as well.
ISKCON v. Heffron, No. 421843 (2d Dist. Minn., Aug. 19,
1979), slip op. at 4. The federal court which upheld the
Tennessee State Fair booth rule observed to like effect:
14
The compelling state purpose underlying the limitation
of exhibitors’ activities is to permit any exhibitors or soli-
citor the opportunity to exercise the privilege freely with-
out interruption or infringement by others seeking to exer-
cise the same privilege. If plaintiffs were permitted roving
solicitation then every exhibitor would be entitled to do
the same. It is conceiveable that confrontations could
occur in which several or all of the . . . other religious
groups would vie for the ear and attention of the same fair
patron. The ensuing babel would not only be chaotic and
destructive of good order, but would also deny to each
a the meaningful exercise of its First Amendment
rights.
Hynes v. Metropolitan Government of Nashville, supra, 478 F.
Supp. at 11.
One court which acknowledged the state’s right to adopt
time, place and manner regulations for a state fair but nonethe-
less rejected the booth rule stated that a fair is “by definition
a congeries of hawkers ... .” ISKCON v. State Fair of Texas,
461 F. Supp. 719, 721 (N.D. Texas 1978). But as the courts
realized in Heffron and Hynes, it is precisely because a fair is a
“‘congeries of hawkers” that the booth rule is a necessary time,
place and manner regulation. Justice Jackson’s words are ap-
propriate here:
A common-sense test as to whether the Court has struck
a proper balance of these rights is to ask what the effect
would be if the right given to these Witnesses should be
exercised by all sects and denominations. If each com-
peting sect in the United States went after the householder
by the same methods, I should think it intolerable.
Douglas v. Jeannette, 319 U.S. 157, 180 (1943). Substitute
“Krishnas” for “Witnesses” and “‘fairgoer” for ‘“‘householder,”’
and consider anew the wisdom of Justice Jackson’s observation.
It is indispensible to proper consideration of the constitutional
interests at stake here to recognize that the Krishnas are not the
only parties at the State Fair with constitutional rights. The
booth rule is a valid regulation designed to protect and reconcile
their rights with the rights of more than 500 other exhibitors
and 700,000 fair patrons.
15
IV. THE BOOTH RULE IS A TIME, PLACE AND MAN.
NER REGULATION WHICH SERVES SIGNIFICANT
GOVERNMENTAL INTERESTS.
As noted previously, a valid time, place and manner regula-
tion must serve a significant governiental interest unrelated to
the content of the speech. Tue significant interests served by
the booth rule are: (A) protection of the public from assault,
harassment and fraud; (B) control of pedestrian and vehicular
traffic; and (C) the maintenance of equal access to fairgoers for
all exhibitors and solicitors.
A. Protection of the Public from Fraud and Assault.
The factual record developed at trial in this case demon-
strates the need for a booth rule to protect the public from a
variety of abuses by persons soliciting money at the fair. The
District Court devoted nearly 13 pages of its opinion to the
demonstrated abuses of Krishnas at the State Fair, which in-
cluded deception and outright fraud, and physical and verbal
assaults. Without belaboring the extensive factual record al-
ready discussed, it should be apparent that fraudulent and
abusive conduct are the habitual practice of Krishna solicitors,
which several years of negotiations, stipulations and injunctions
have done nothing to eliminate. ISKCON v. Barber, Appendix
A at 19-32.
It must be noted that the booth rule is the only practical
means of combating these serious problems. The “hit-and-run”
nature of Krishna flim-flams, the failure of Krishnas to wear
proper identification as they stipulated to do, Appendix A
at 32, their practice of misidentifying themselves and em-
Ploying disguise, id. at 28-30, and of skipping bail if
caught and arrested, id. at 31, make effective use of the
criminal process to control abuses impossible. Jd. at 43.
The difficulty is exacerbated by the fact that many fairgoers,
coming to the Fair for entertainment, are reluctant to go
through the inconvenience and expense of pressing a criminal
16
complaint; this is particularly true for the many fairgoers who
come to the Fair from distances across the state or the nation.
Thus, although the criminal process may be adequate to deal
with isolated instances of misconduct, it is inadequate to check
the Krishnas’ “widespread and systematic scheme of accosting,
deceit, misrepresentation and fraud on the public,” as the Dis-
trict Court recognized. Id. As the court also observed, the
“less restrictive alternatives’? contended for by the Krishnas
are the very ones which they stipulated to observe and then
“violated with unabashed arrogance.” Id. at 44.
B. The Control of Pedestrian and Vehicular Traffic.
Another basis upon which to justify the booth rule is the
control and maintenance of the smooth flow of pedestrian and
vehicular traffic. As the court below noted, attendance at the
Fair has risen steadily, and patrons and exhibitors are crowded
into a 20-acre portion of the Fairground. Clearly the mainten-
ance of order at such an event calls for some type of time,
place and manner regulation. The State Fair responded with a
booth rule that allows all types of groups to communicate with
fairgoers without allowing them to clog walkways, disrupt the
flow of traffic, interfere with other fair activities or otherwise
give rise to crowding or disorder. There was specific testimony
at trial in the District Court that Krishnas, by soliciting in the
parking lots, at the main pedestrian gate and in the exhibit
halls interfered with the smooth flow of pedestrian and ve-
hicular traffic. Although not adverted to by the District Court,
whose opinion focused on the demonstrably strong evidence of
fraud, this goal has been recognized as one substantial enough
to support a booth rule by other courts considering similar
circumstances. E.g., ISKCON v. Evans, 440 F. Supp. at 424;
Edwards v. Maryland State Fair, 476 F. Supp. 153, 164 (D.
Md. 1979).
C. Protection and Reconciliation of All Persons’ Rights.
Yet another basis which supports the booth rule is its role
in protecting and reconciling the rights of al) persons and
groups at the Fair, including the Krishnas. Foremost among
17
these are the rights of fairgoers to have access to all exhibitors,
not just the Krishnas, and their right not to be forced to listen
to or support the message of the Krishnas as the price of at-
tending the fair. The booth rule also protects the rights of
other exhibitors to a reasonably equal opportunity to convey
their messages.
1. Fairgoers’ Access to Ideas and Message of All Exhibitors.
Common sense and experience tell us that a state fair is a
tumultuous event. But the fact that a fair is tumultuous does
not mean it must be utterly without order. To allow peripatetic
solicitation by Krishnas is to allow them to interfere with the
rights of fairgoers to choose to receive other messages or infor-
mation. That the indefatigable nature of Krishna solicitation
has this effect is shown by the evidence at trial of Krishnas in-
terference with exhibitor-fairgoer communication, which at one
point became so severe as to require Judge Munson to amend
his 1978 temporary restraining order to banish the Krishnas
from a fairground building known as the “Cow Barn.” Ap-
pendix A at 6.
The Krishnas’ right to vigorously lay their message before the
public must stop short of “shouting down” other forms of com-
munication. In this respect the booth rule, which restrains
Parties from the type of free-roving interference with other
activities which is characteristic of the Krishna solicitors, is con-
sistent with this Court’s solicitous concern for preventing any
person’s First Amendment rights from being obliterated by the
interference of others. See, e.g., Brown v. Louisiana, 383 U.S.
131 (1966); Edwards v. South Carolina, 372 US. 229
(1963).
2. Fairgoers’ Limited Right of Privacy.
A fairgoer on a crowded fairground, needless to say, is not
cloaked in the airtight protection of a homeowner’s right to
privacy. But one principle developed in the context of that
18
homeowner’s right has some application here. As the Court ob-
served: “Nothing in the Constitution compels us to listen to
or view any unwanted communication, whatever its merit ....
no one has a right to press even ‘good’ ideas on an unwilling
recipient.” Rowan v. Post Office Department, 397 U.S. 728,
737-38 (1970). The applicability of this principle to the con-
text of state fairs and the booth rule was recognized by the
court in Hynes:
The first Amendment does not mandate that a fair patron
endure unwanted solicitation and proselytism from reli-
gious believers. The fairgoer should be permitted some
choice as to what booth he desires to approach and with
which exhibitors he desires to communicate.
Hynes v. Metropolitan Government of Nashville, supra, 478 F.
Supp. at 12.
This Court has plainly never held that a citizen is utterly
without protection against unwanted communication in public
places. See Lehman v. City of Shaker Heights, 418 U.S. 298
(1974). The key has been the citizen’s capacity to avoid the
unwanted communication by averting his attention from it.
Cohen v. California, 403 U.S. 15, 21 (1971). It would be use-
ful for this Court to analyze this issue in the full factual context
uniquely developed in this litigation. The inescapable conclu-
sion, missed by other courts lacking that factual context, com-
pare Edwards v. Maryland State Fair, 628 F.2d 282, 286, is
that the fairgoer cannot escape the ubiquitous Krishna solici-
tor’s demand for attention and more often for money; the
fairgoer is not “fully capable of refusing any solicitation and
continuing on his way,” id.
As the Court below noted, the Krishnas object to the booth
rule in large part because “‘the fair goer is unlikely on their [sic ]
own” to’seek out contact with the Krishnas. Appendix A at
18. They are saying, in essence, that they want, not an
opportunity to present their message to the public for its accep-
tance or rejection, but rather a special license enjoyed by no
19
other group to follow the unwilling fairgoer and hound him
with the concededly unwanted message of Krishna.
3. Equal Treatment for Exhibitors.
It should suffice to note briefly one additional function of
the rule: maintaining equality among the nearly 600 exhibitors
cormpeting with one another for the attention of several hun-
dred thousand patrons over the course of the Fair. This is part
of the key to understanding why the Krishnas’ claim should
fail: it is a claim, not to equal treatment, or freedom from cen-
sorship, but rather a plea for a special benefit. This clearly runs
counter to the principle that the First Amendment was
premised on a marketplace of ideas where all have a right to
Present their message for public approval or rejection, without
the government hindering some purveyors or ideas or helping
others. That the Krishnas are a religious group merely exacer-
bates the problem, for if the state gives one religious group
freedom from the booth rule while requiring others to observe
it, a serious Establishment Clause question may arise, since the
practical effect is to give one religious group a benefit from the
state which none other enjoy .2%
These, then, are the two unacceptable alternatives: allow any
and all groups to rove about the fairgrounds soliciting, or allow
this right only to the Krishnas. The former invites chaos; the
latter engenders intolerable special privilege, and raises thorny
constitutional questions of its own. The booth rule accom-
plishes the only fair and clearly constitutional alternative:
neither suppressing nor promoting the message of any group,
and leaving all messages available to the fairgoer without forcing
any upon him.
23 of course the Krishnas seek to assert that roving solicita-
tion is special for them because it is part of a religious ritual
called Sankirtar The dubious nature of the historical case for
inclusion of money solicitation in Sankirtan, or for considering
solicitation a religious duty incumbent upon all devotees, is
ergy in the opinion of the court below. Appendix A at
8-10, 21.
20
CONCLUSION
The writ of certiorari should be granted and the case consoli-
dated for hearing and decision with the virtually identical and
now-pending Heffron case, to affirm the established First
Amendment principles which demonstrate the validity of the
booth rule as a reasonable time, place and manner regulation.
March 6, 1981.
Respectfully submitted,
ROBERT ABRAMS CHARLES R. WELCH, ESQ.
Attorney General BRADLEY J. CARR, ESQ.
State of New York. Weich, Welch & Carr
SHIRLEY ADELSON SIEGEL 5100 West Genesee Street
Solicitor General Syracuse, New York 13209
State of New York (315) 487-0210
The Capitol Counsel for Petitioner James G.
Albany, New York 12224 Garlick and for Petitioner
THOMAS J. MARONEY Thomas G. Young as Manager
GEORGE M. LEVY of the New York State Indus-
Assistant Attorneys General trial Exhibit Authority
333 East Washington Street
Syracuse, New York 13202
(315) 473-8430
Counsel for Petitioner, J. Roger
Barber and for Petitioner
Thomas G. Young as Director
of the New York State Fair
APPENDIX
Al
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
INTERNATIONAL SOCIETY FOR KRISHNA CON.
SCIOUSNESS, INC., AND, ON BEHALF OF THEM-
SELVES AND ALL INTERNATIONAL SOCIETY FOR
KRISHNA CONSCIOUSNESS MEMBERS, AND ALAN
. ATTIAS, A/K/A AJA DASA, AND KENNETH L.
. SOLOMON, A/K/A KESIHANTA, Plaintiffs,
— US.
J. ROGER BARBER, in his official capacity as Commissioner
of the DEPARTMENT OF AGRICULTURE AND MAR-
KETS OF THE STATE OF NEW YORK, and THOMAS
G. YOUNG, Director of the New York "State Industrial
Exhibit Authority, and JAMES G. GARLICK, Acting
Director of the New York State Industrial Exhibit Authority,
Defendants.
717-CV-328
APPEARANCES: OF COUNSEL:
BARRY FISHER, ESQ. FAITH A. SEIDENBERG, ESQ.
Attorney for Plaintiffs BONNIE STRUNK, ESQ.
Two Century Plaza SEIDENBERG & STRUNK
Los Angeles, California 90067 415 University Building
Syracuse, NY 13202
HON. ROBERT ABRAMS THOMAS J. MARONEY, ESQ.
Attorney General of the State Assistant Attorney General
of New York in Charge
Attorney for Defendants Barber GEORGE M. LEVY, ESQ.
and Young Assistant Attorney General
State Office Building
BRADLEY 7. CARR, ESQ. 333 E. Washington Street
Attorney for Defendant Garlick Syracuse, NY 13202
5160 West Genesee ‘Street
Syracuse, New York
A2
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
HOWARD G. MUNSON, CJ.
MEMORANDUM-DECISION AND ORDER.
I,
The First Amendment is dedicated to the proposition that a
citizen’s right to form, hold, or express opinions or beliefs is
entitled to an accommodation from the government whenever
possible. This principle embodies certain fundamental social
decisions about the type of society that would be created as a
result. One such decision concerns our society’s attitude
towards its discordant voices. Every society seeks, to varying
degrees, to manage the forces of social unrest within its borders.
The First Amendment envisions a system by which social order
can be achieved by channeling this unrest through self-
expression, rather than by trying to suppress individuals who
espouse ideas that are unpalatable to the majority of the citi-
zenry.
As a practical corollary, however, there will be times when
this accommodation will favor society’s interest in protecting it-
self as a whole. For instance, if spoken in a particular setting or
at certain times, the message of a speech may be so dangerous
that it ought to be regulated or even prohibited for the good of
all citizens. Society cannot tolerate a person yelling “‘fire”’ in a
crowded theater when there is no fire. At the same time, there
will be occasions where the manner in which speech is presented
may require regulation for the greater good of society. Thus, a
prohibitory rule is appropriate to guard against the con man
who would have the unwary believe that he solicits for the
benefit of both widow and orphan when, in reality, he desires
only to improve his own treasury.
These examples enjoy the benefit of being clear cut. In the
typical situation, however, it is harder to determine where the
rights of one group should end and where the rights of another
A3
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
should begin. Frequently, courts are required to evaluate
whether, in balancing the rights of individuals, governmental
entities have reached a constitutionally permissible result. In
the course of exercising this responsibility in the past, courts
have often strained to reach judgments, have arrived at oppo-
site conclusions, and have covered their tracks, in the words of
Supreme Court Justice Jackson, with the “pronouncement of
general propositions with which there is no disagreement.”
In the view of one noted legal commentator, though clearly
formulated rules in this area are essential, the courts’ difficulties
in the First Amendment arena are understandable. Says he, our
system of free expression contemplates that “[ t]he members of
society must be willing to sacrifice individual and short-term ad-
vantage for social and long-range goals.” Continuing on, he
states: “[y]et, because [this system] recognizes the right of
the citizen to disagree with, arouse, antagonize, and shock his
fellow citizens and the government, such an arrangement of
human affairs is hardly likely to be automatically achieved.’
While the Court agrees with the latter proposition, it cannot
accept the former as being correct. In the same opinion, par-
tially quoted from above, Justice Jackson said: ‘“{c Jivil liber-
ties had their origin and must find their ultimate guaranty in the
faith of the people.”4 There is a “good faith”’ limit to the num-
ber of times that the majority of society can be asked to forsake
their liberties in favor of some small group which claims that
their beliefs or opinions compel this result. Hence, exceptions
such as these must be very narrowly drawn, and should reflect
our common sense and fundamental values. In the past, all too
often judgments in this field have not; and they have substi-
tuted a certain transcendental consciousness of their own for
practical solutions.
Such a judicial legacy will not only fall of its own weight, it
will make it more difficult for communities to find practical
solutions to constitutional problems. The ultimate danger in
A4
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
this course is clear. Soon, a society’s long-range social goals
will become casualties of short-sighted convenience, and the
people will lose faith in the meaning of their liberties. More-
over, the end will have been hastened by a willingness of courts
to replace common sense and values with outmoded legal
theories, whose combined effect is to grant selected minorities
the license to write their own code of conduct at the expense of
the rights of others. While questions of free expression or reli-
gion commonly require the courts to seek practical solutions,
we need not reach judgments as did Plato’s men, who were
chained in a cave and only able to see their shadows. There
may come a time when a minority group seeks constitutional
favoritism that in common sense terms is neither justified, nor
is in the interests of society as a whole. At such times, this
Court is duty bound to reject such a request. By way of con-
cluding these remarks, again the words of Justice Jackson:
The First Amendment grew out of an experience
which taught that society cannot trust the conscience of
a majority to keep its religious zeal within the limits that a
free society can tolerate. I do not think it any more in-
tended to leave the conscience of a minority to fix its
limits. Civil government can not let any group ride rough-
shod over others simply because their “consciences’’ tell
them to do so.°
This action began with the International Society for Krishna
Consciousness (hereinafter referred to as Krishnas) and one of
its members, Alan Attias, filed a complaint in the Northern Dis-
trict of New York on August 29, 1977, the day before the 1977
New York State Fair was to begin. The Krishnas are a duly or-
ganized not-for-profit corporation, incorporated under the laws
of the State of New York, with their main branch located in
New York City, and with various temples located throughout
the United States and the world. As originally joined, the de-
fendants in this action were Hugh L. Carey, sued individually
and as Governor of the State of New York; J. Roger Barber,
A5
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
sued individually and as Director of the New York State Depart-
ment of Agriculture and Markets; and Thomas G. Young, sued
individually and as Director of the New York State Fair.
The gravamen of the plaintiffs’ 1977 complaint was that the
New York State Fair’s booth regulation prohibited the Krishnas
from freely circulating at the Fairgrounds, and practicing a
Krishna ritual known as Sankirtan. According to Krishna cus-
tom, Sankirtan requires that a devotee proselytize the Krishna
religion and solicit monies for its support. The booth restric-
tion, said plaintiffs, violated the Krishnas’ First and Fourteenth
Amendment rights of free speech, free exercise of religion and
peaceable assembly. In their prayer for relief, the Krishnas
sought a temporary restraining order preventing defendants
from refusing the Krishnas unlimited access to the Fairgrounds.
This order was subsequently granted by the Honorable Edmund
Port, Senior Judge of this District, on August 30, 1977. Prior
to the filing of the complaint, the New York State Fair had not
yet formally reduced its booth regulations to writing. However,
such regulations were drawn up and printed after this suit was
commenced. It should also be noted that the State Fair is a co-
operative enterprise between two public agencies. One is the
Division of the State Fair of the State Department of Agricul-
ture and Markets, and the other is the New York State Indus-
trial Exhibit Authority. Both agencies are involved in this
action “because each has rule-making authority which plaintiffs
contest.
Although the 1977 complaint was never dismissed, one day
before the 1978 New York State Fair was scheduled to beyin,
the Krishnas and Krishna devotee Nicholas D’Angelo filed a
second complaint, seeking another temporary restraining order
to enjoin the defendants from enforcing the booth requirement
at the 1978 State Fair. This Court heard oral argument on
August 28, 1978, and granted plaintiffs’ relief effective through
September 1, 1978, which allowed plaintiffs access to the Fair-
grounds subject to some twenty-one conditions which were
A6
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
standard stipulations that plaintiffs propose to courts and var-
ious defendants in this type of litigation around the country. In
general, the restrictions relate to the type of activity in which
devotees engage; registration and liason procedures; fees and
the manner and place of the activity. The order was subse-
quently extended for the duration of the Fair, and it was par-
tially modified to exclude the Krishnas from the building
known as the Cow Barn.
On January 12, 1979, defendants filed their answer to the
1977 complaint. Thereafter, by notice of motion dated July
20, 1979, plaintiffs moved for summary judgment, and oral
argument was heard on July 30, 1979. The Court eventually
denied the motion, believing that a full trial of the issue was
necessary. On August 28, 1979, Judge Port signed still another
temporary restraining order embodying the same twenty-one
conditions as this Court’s Order, and it was to be in effect until
a motion for a preliminary injunction could be heard. Later
that day the temporary restraining order was vacated until such
time when all counsel could be present for a hearing on the pre-
liminary injunction which was set for August 30. Between
those dates, no Krishna was to enter the Fairgrounds to perform
Sankirtan. One did, however, and was arrested, and later ban-
ished from the Fairgrounds by Judge Port. The temporary
order was reinstated on August 30, and the Judge dictated his
decision into the record the next day granting a preliminary in-
junction. Plaintiff subsequently moved for summary judgment
on November 28, 1979, and this motion was held over by the
parties on agreement that it would be renewed on April 21,
1980, which was the date set for trial on the merits.
The trial began as scheduled, plaintiffs renewed their motion
for summary judgment, and it was denied. Other motions were
also disposed of at that time. These included plaintiffs’ motion
’o add Kenneth Solomon as a party and to dismiss the action
as to Governor Carey, Commissioner Barber, and Fair Director
AT
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
Young in their individual capacities. The trial lasted 11 days,
1500 pages of testimony was taken, and 44 witnesses were
called by the parties. These included religious experts, a “de-
programmed” Krishna, and a number of state and county fair
officials from around the country. Before examining the facts
in dispute, some further background on the State Fair will
prove useful.
The New York State Fairgrounds are located in the Town of
Geddes, just outside the City of Syracuse. The total area of the
grounds, including the large parking lots outside the gates and
the various open spaces is approximately 350 acres. (Garlick,
pp. 129, 130). The area within the gates of the Fairgrounds
comprises something less than 40 acres. This is the area housing
all of the many structures as well as areas of pedestrian traffic,
and the 40-acre figure includes the large grandstand area and the
infield parking area. After deducting the acreage of the race
track, grandstand, and the infield parking area, one is left with
the Fairgrounds proper, a total of approximately 20 acres
within which the actual exhibits and pedestrian walkways are
found.
Attendance at the New York State Fair has increased steadily
since 1977. That year, the duration of the Fair was seven days
and the total attendance was approximate 526,000. In 1978,
the duration of the Fair was increased to ten days, and the total
attendance was approximately 686,000. In 1979, when the
Fair was again ten days, total attendance was approximately
701,000.
The bulk of exhibitors at the New York State Fair represent
the best examples of the fine agriculture and progressive indus-
try found within the State of New York. Also included among
the exhibitors are representatives of various religious, fraternal,
or political groups which communicate their ideas to the public
attending the Fair. Exhibitor space has consistently been
rented to groups such as Right-to-Life, Planned Parenthood,
A8
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
Seventh Day Adventists, Lutheran Laymen’s League, the
Knights of Columbus and many others. Many of these groups
were soliciting contributions to help their cause and all were
confined to booths during the course of the Fair. The Court
turns now to an examination of the Krishna religion and the
practice of Sankirtan.
I.
The International Society for Krishna Consciousness is a reli-
gious organization that traces the origins of its beliefs to the
Vaishnava Tradition of Bhakti Hinduism, which was formalized
in the ninth century, A.D., in southern India. The scriptural
source of this Tradition are the ancient Vedic literatures. In-
cluded among these scriptures are the Samhita and the
Upanishads, which are the canonical mainstays of the Vaishnava
tradition, and the acceptance and belief in these scriptures are
incumbent on authentic followers.
The Samhita and Upanishads are referred together as the
Shruti, signifying that their contents were first heard by the
sages, as revealed to them by the Lord. The other writings of
the Tradition are called the Smriti, which are the commentaries
on the Shruti. These are noncanonical or “secondary” texts,
whose interpretations are not considered to be binding on the
faithful. The more significant religious works studied by the
Krishnas descend from the Smriti, such as the Srimad
Bhagavatam, and the Bhagavad-Gita.
Although the Krishnas identify the roots of their beliefs as
being centuries old, the organizational beginnings of their
Society in this country are as recent as the mid-1960’s, when
the Spiritual Master A.C. Bhaktivedanta Swami came to this
country from India at the behest of his Spiritual Master, and
started a small temple in New York City. Bhaktivedanta Swami
was eleventh in the chain of disciples of the Chaitanya move-
ment of Bengal in northeastern India. The central figure in that
A9
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
movement was the Sage Chaitanya who lived from 1486 to
1533, and was understood to be an incarnation of God or
Krishna. It is said that Lord Chaitanya was able to unlock the
message of God for the masses, and he proclaimed that one day
his name would be chanted in every town and village in the
whole world. The book describing his life, the Sri Caitanya
Caritamrta, is considered part of the Krishna scriptures.
It would appear that as a result of Lord Chaitanya’s procla-
mation, a fundamental responsibility of the modern Krishnas is
to practice Sankirtan, a missionary type of practice, in which
the Krishnas proselytize their faith and solicit contributions. In
its present usage, however, the term Sankirtan describes a
religious rite vastly different from its original meaning in the
Vaishnava Tradition. In premodern times, the Hindus did not
believe that their religions should be aggressively proselytized
throughout the general population. Furthermore, although
solicitation was conducted by the Hindus, it was not considered
to be a part of Sankirtan, and it was not practiced by the more
religious members of the Hindu orders. A further comparison
of the traditional and present forms of Sankirtan will be useful.
The origins of Sankirtan date back to the ninth century,
A.D., when it is first referred to in the Srimad Bhagavatan, at a
time when the notion of personal devotion to the deity was be-
ginning to evolve. It was next mentioned in the Bhagavad-Gita
some five hundred years later, and was then practiced in the
form of ritualized movements, accompanied by the repetitious
chanting of God’s name. The central purpose of Sankirtan was
to get closer to God and involve others in such worship. Solici-
tation for support of the religion seemed equally ritualistic, and
took two forms -- solicitation to guarantee survival, and solici-
tation to support the construction of edifices. In either case,
solicitation was rarely performed by the monks or the initiated
faithful. Rather, this chore was shouldered by lay specialists
who functioned as managers of the religion.
A10
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
When approaching potential donors, these specialists were re-
quired to depend on “true speech and gentle speech.” More-
over, they were immediately to identify their religious order
and guru. Money could not be asked for directly, instead, the
specialist would ask only for a contribution of food sufficient
in amount to fill the outstretched palms, or enough clothing to
enable survival under a tree. It was this fact that money was
not asked for directly which separated those who were religious
beggars from those who were not. Also, in the course of asking
for a contribution, a prospective donor could never be touched
without their permission. If money was needed to build an edi-
fice, an announcement to that effect was made in the com-
munity, and the lay followers and others, such as the Maharajas
and kings, would be asked to contribute. To summarize, tradi-
tionally, the practice of Sankirtan was considered a pure re-
ligious ritual, and was set completely apart both in principle
and practice from the necessity to solicit funds for the religious
support.
As already mentioned, the modern Krishnas have expanded
the role of proselytizing in the religion, and have incorporated
the solicitation of money into the practice of Sankirtan. It
should be noted, however, that they have not excluded from
the definition of Sankirtan, the traditional dancing and chant-
ing which is still practiced today, though it is not the subject of
this litigation. Nevertheless, in the process of redefining
Sankirtan, the theoretical underpinning appears to have shifted
dramatically from its traditional sense. As presently conceived
by the Krishnas, Sankirtan is the process of propagating the
“truth” of Krishna. The Krishnas profess that nonbelievers in
the Lord Krishna are misguided souls who are spiritually im-
pure because they attempt to exploit the Lord’s material
wealth for their own personal gratification.
To achieve a spiritual rebirth, divine instruction and full sur-
render to the Lord is necessary. The surrender takes the form
All
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
of giving up material possessions to the Krishnas for use in the
service of the Lord, and for the support of the religion. The
more material objects a person gives up - objects that are di-
verted from self-gratification towards the service of the Lord
-- the more the soul becomes purified. The process of purifica-
tion is said to take place as soon as the material transfer is
made. As a consequence, it is not significant, according to the
Krishnas, that an individual understand the purpose of the
donation. As stated succinctly by the Krishnas in one of their
publications, they believe that “[t]he consciousness of the ma-
jority of people in present societies (including American) neces-
sitates their donation of money to the Lord, Sri Krishna’s
service, for their spiritual purification and to provide the re-
quired means to ISKON’s sankirtan work.” [Appendix A to
Plaintiffs’ Trial Brief at p. 1].
To be a devotee of Krishna means to totally surrender per-
sonal material possessions, to take up the Lord’s service, and to
attempt to get others to surrender as well. The materially con-
ditioned souls, or karmi, are viewed as diseased patients who,
with the proper spiritual administrations by the doctoring
Krishna devotee, will be able to return to spiritual health. In
practice, the process of administering to the misguided souls is
conducted wherever such souls tend to congregate. Thus,
Krishnas are “dispatched” in organized parties varying in num-
bers, and headed by a Sankirtan leader. The parties are sent to
the streets, airports, bus terminals, expressway rest stops,
shopping centers, parks, national monuments, naval bases,
convention centers, football games, horse and auto race tracks,
college campuses, and to state and county fairs. This list is
certainly not all inclusive. While Sankirtan parties are usually
dispatched from a Krishna temple to a predetermined location
such as those just enumerated, the Sankirtan leader is given
discretionary authority to spread the “truth” at whatever locale
will enable the party to reach the maximum numbers of people.
A112
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
There is, nonetheless, a territorial limit to a Sankirtan party’s
wanderings. Each Krishna temple or farm is assigned a specific
territory, and before a Sankirtan party can cross over into
another temple’s territory, permission must be obtained before-
hand, For instance, the plaintiff New York City temple has
assigned to it that City, northern New Jersey and the southern
most counties of New York State. Yet, with the permission of
the respective temples, the New York City temple has dis-
patched Sankirtan parties to the Eastern States Exhibition in
Massachusetts and even to North Carolina for the State Fair in
Raleigh. As another example, to “cover” the New York State
Fair, the Krishnas have dispatched Sankirtan parties from their
farm in West Virginia, their temples in Boston, Buffalo, Pitts-
burgh, Philadelphia, and a national traveling Sankirtan party
called Radha Damodar which was once “based” in Pennsyl-
vania. A temple’s territorial allocation is decided by the
Krishnas’ governing body commission, which consists of
twenty-three men representing different “zones” of the world,
and overseas matters common to the Society. The plaintiff
New York City temple is located in a “zone” which includes
the northeastern United States, Puerto Rico and the Caribbean.
Over the years as the movement has become more popular,
other temples have been founded, and the New York City tem-
ple, once the only temple in the United States, has, as a result,
seen its assigned territory become smaller and smaller.
Thus far, the Court has discussed why Krishnas are sent
among the public and where they are sent; the next question
that must be examined is how are they sent, or the methods
employed by the Krishnas in their practice of Sankirtan. A con-
siderable amount of testimony on this issue has been presented
by both parties, and it has given this Court the opportunity,
unlike that of any other court in a case involving the right of
the Krishnas to practice Sankirtan, to understand the various
methods employed by the Krishnas when performing this reli-
gious rite. The plaintiffs’ perspective on their Sankirtan meth-
ods will be discussed first. This discussion will conclude with
Al13
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
the Krishnas’ view of their previous experiences at the New
York State Fair, and the ways in which the State Fair’s booth
restriction would effect their ability to practice Sankirtan and
exercise their constitutional rights.
From the Krishna point of view, in order to understand how
they conduct Sankirtan, picture the following scenario which
supposedly occurred frequently at the New York State Fair. A
member of the Krishna faith approaches a fair goer, makes an
introductory remark, and simultaneously offers a prasada, or
some small “sanctified” item such as an artificial flower, or
food stuff. The purpose of this offering is to divert the fair
goer’s attention and thus enable the Krishna devotee to engage
the fair goer in a conversation about the Krishna faith. Other
items have also been used in the course of this introductory
exchange, for example, a stick of incense, candy canes, or
buttons. These buttons display various messages on them like
“Keep on Truckin’, “I Love New York” or have portrayed
two racing flags. When a flower or button is used, it is typi-
cally pinned on the fair goer’s person.
If the fair goer desires to engage the Krishna in a conversa-
tion, the Krishna devotee will attempt to sell the interested
fair goer a religious book such as the Srimad Bhagavatem, the
Sri Caitanya Caritamrta, Bhagavad-Gita As It Is, as translated
by A.C. Bhaktivedanta Swami, some other “small book” writ-
ten by him; or a religious magazine called “Back to Godhead”
which is published by the Krishnas; or a religious record pro-
duced and recorded by the Krishnas. These records contain
religious songs and chanting, and the record jackets acknowl-
edge the contributions made to Krishna “projects” by such re-
cording stars as Bob Marley, Bob Dylan, Stevie Wonder, Alice
Coltrane, George Harrison, Richie Havens, and Neil Diamond.
Whether or not the fair goer decides to purchase one of these
items, the Krishna devotee will ask the fair goer to make a
Al4
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
monetary donation. Even if the fair goer does not make a con-
tribution, usually the Krishna devotee would permit the fair
goer to keep the prasada or token, and sometimes even the
more religious paraphernalia if it had been shown to the fair
goer. In this manner, the Krishna devotee spreeds the “truth”
of Krishna by giving the misguided souls an oppoxtunity to re-
dedicate their material wealth; attempts to disseminate as many
books, magazines, and records as possible and obtain donations
in order that another copy of these religious works may be re-
produced; and, in the end, hopes to induce others to join the
Krishna faith.
To learn how to perform Sankirtan, Krishna devotees are
schooled by their religious superiors. Certain standard instruc-
tions on how to approach the misguided souls are given to
Sankirtan parties by the Krishna priests or Brahmanas. The
Brahmanas are instructed in turn by their spiritual masters,
who rely on the Krishna scriptures for guidance. The devotees
are told to appreciate the philosophical reasoning behind the
practice of Sankirtan and to understand the “nower”’ of its
meaning. Moreover, they are instructed that, although they
should be diligent about the task, they should rely on the Lord
for their success. The devotee is instructed to act ideally,
truthfully, and not to irritate anyone or touch them without
permission. For instance, devotees are admonished never to say
that the recording stars actually participated in making the
Krishna records. The Krishna devotees are told to inform the
public that these stars have helped the Krishnas in a number
of their “projects,” but that the stars do not perform on these
records. The Brahmanas tell the devotee to think practically;
if they force themselves upon the misguided souls at a particu-
lar locale, a scene will result, and most likely the Krishnas
would not be permitted to return. One Krishna Brahmana
summarized the instructions as follows:
Al15
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
Very specifically we stress the point that was spoken by
a great saint in our movement, that is in this particular
day and age, example is more important than precept.
The particulars are that you must behave according to
the philosophy that you are trying to preach, and the
principles, the qualities a sainted person may be expected
to have, thus, you have to be humble, tolerant when
people get angry or yell:at you or if the authorities do
something you may not think right, still you abide by
what they say, if someone says no, then you don’t re-
ied push them. [Transcript, April 22, 1980 at p.
1
It must also be remembered that at the New York State Fair,
the Krishnas stipulated to a certain code of conduct, that af-
fected the manner, place and time at which they were able to
approach fair goers. Due to these stipulations,® the Krishnas
were to wear identification badges and display them promi-
nently, register with fair authorities, only engage in Sankirtan
with those fair goers who agreed, not to touch anyone without
their consent, and restrict their Sankirtan activities to certain
places and appropriate times.
The Krishna plaintiffs concede that despite taking great care
to make certain that devotees act according to the standard in-
structions and stipulations, there are some “unfortunate inci-
dents” where Krishna devotees violate these principles and
guidelines, and these violations may even lead to arrests of de-
votees. There were, in fact one arrest of a Krishna devotee at
the 1977 State Fair, six arrests in 1978, and nine arrests in
1979. Moreover, there were many informal complaints by fair
goers against the Krishnas in 1978 and 1979. It is vigorously
urged by the Krishnas that “[t]hese violations, if indeed they
rose to that level of harm, were not encouraged or even con-
doned by the Sankirtan leader at the Fair or by those who pre-
pare devotees for proselytizing and soliciting.” [Plaintiff’s
trial brief at p. 19]. In addition, the Krishnas say that if a de-
votee’s conduct causes complaints, the devotee would be re-
moved from Sankirtan duties. The Krishnas provide three
Al6
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
explanations for these statistics. According to one Krishna
Brahmana, who testified at the trial, the origin of some of the
complaints results from the inexperience of new Krishna de-
votees:
Well, they are not very confident. They are making a very
big transition to become a devotee of Hare Krishna, it is
kind of almost like a shock; a new acceptance of authority
so they are not very confident and the temple techniques
they are not just in a good -- they are not as smooth with
the people.
If a person is nervous when he is approaching another per-
son, then he will immediately make the other person ner-
vous. I give the example to them when I am training them
just like if you approach a dog, the dog will pick up if you
are afraid of him and therefore the dog will become aggres-
sive so a lot of the problems with newer devotees doing
Sankirtan is that they are not as confident, not as experi-
enced, so their lack of confidence and ability to do
Sankirtan would be picked up by the people they are
meeting and generally that may cause some complaint,
some difficulties.
One other point in that regard, that is actually an import-
ant part that as a devotee performs Sankirtan his ability to
present whether it is a record or a book or just even meet-
ing and talking to some one improves in terms of being
able to actually explain the philosophy because as he, you
know, performs his daily service day after day he under-
stands it more and more so, for example, myself when I
do Sankirtan I am able to speak with professionals and
people and actually carry on a very nice conversation pre-
senting the philosophy according to how they can appre-
ciate whereas younger, a younger man, he can’t do that so
he relies more on the mechanics. [Transcript, May 7th,
1980 at pp. 65-67].
The Krishnas also assert that some of these “conflicts” are
merely misunderstandings, and inevitable occurrences at events
like the New York State Fair. First of all, say the Krishnas,
the New York State Fair administration has not been very
conciliatory towards the Krishnas for the last three years. They
Al7
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
claim that the surrounding circumstances of at least one of the
1979 arrests suggest that some fair goers’ complaints were ag-
gressively solicited by the State Fair administration.
As further proof of a hostile attitude on the part of the State
Fair administration, the Krishnas argue that if the liason system
-- created by stipulation between the Krishnas and the State
Fair administration -- had been properly utilized by the adminis-
tration, most, if not all of the “incidents” could have been
easily resolved. Under the liason system, each side was to desig-
nate a representative to whom complaints would preferably be
taken before it was forwarded through more formal dispute
resolution channels. The Krishnas say that such a liason system
was successfully employed during the Eastern State Exhibition
held annually in Springfield, Massachusetts. At the 1979 Ex-
hibition, there were no arrests of Krishnas arising out of their
Sankirtan activities, and all fair goer complaints were pur-
portedly resolved through the liason system. The Krishnas also
claim that when a complaint about them arises at any forum,
and a member of the public desires a refund, such a request is
always honored. Finally, the Krishnas assert that whenever an
event draws between 600,000 and 700,000 patrons, there are
bound to be a few among them who are going to be less than
receptive to individuals propagating unfamiliar religious beliefs.
The Krishnas state flatly that they cannot practice Sankirtan
from the confines of a fair booth. They base this conclusion on
both religious dogma and considerations of practicality. The
Krishnas believe that, by definition, the karmi or non-believer
is so caught up in the material world and oblivious to Krishna
that the devotee must initiate the process towards spiritual
purification:
Well, because of the nature of the conditioned soul is
rebellious for Krishna, they don’t want to serve Krishna.
That is why they are in the material world. It is almost
like a bad child but serving Krishna it’s actually what he
A18
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
should do. You see, just like a child may not want to take
some medicine but he is sick and if he takes the medicine,
he will just get better. But if you try to give the child the
medicine he will go, “No, No, I don’t want that.”
So it is the task of the doctor or the mother to give him
the medicine because she knows it’s best. So we are ap-
proaching conditioned souls because they in their own
right ay not turn to Krishna. [Transcript, May 7th, 1980
at p. 88].
The Krishnas further maintain that, from a. practical point of
view, the fair goer is unlikely on their own to go out of their
way to find a Krishna booth at the State Fair. This being the
case, the Krishnas would be denied or restricted in their oppor-
tunity to spread the “truth,” solicit contributions, and gain
converts. In brief, the Krishnas believe that comparatively, the
impact of the State Fair booth restriction on them is much
more pronounced than its impact on commercial vendors.
The Krishnas commenced this action because, in their view,
which, has now been supported by numerous decisions of the
courts, their right to practice Sankirtan is protected under the
First Amendment. See e.g. United States v. Silberman, 464 F.
Supp. 866, 872 (M.D.Fla. 1979) and cases cited therein. Citing
the case of Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943),
they argue that merely because religious literature is sold by
“itinerant preachers” rather than donated does not mean that
such sales are not protected by the Constitution. To the con-
trary, plaintiffs assert that the State Fair grounds are a public
forum and therefore their activities may only be reasonably
restricted by the State. While they say that the stipulated
conditions they agreed to with the State Fair administration
are reasonable conditions, the booth restriction is not and is
therefore unconstitutional. See, Edward v. Maryland State Fair,
F.2d (4th Cir. August 12, 1980); ISKON v. Bowen,
456 F.Supp. 437, aff'd 600 F.2d 667 (7th Cir. 1979), cert.
denied 444 U.S. 643 (1979).
Al19
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
Besides, the defendants have not, according to the Krishnas,
demonstrated a compelling state interest that would justify the
booth rule. Concerns for reducing traffic congestion, the com-
mercial success of other vendors, or the likelihood that fair
goers may be put off by the Krishnas, they say, are insignificant
when balanced against the fundamental rights of the Krishnas
to freedom of speech, religion, and assembly. See ISKON v.
Bowen, supra, at 443. The Krishnas additionally maintain that
the booth restriction is not justified by the State’s concern to
police violations of the penal laws. This policing, they add, is
best pursued by prosecutions of criminal law violations, than by
restraining the free expression rights of many people in order to
punish a few individuals. In short, the Krishnas believe that the
First Amendment guarantees their right to circulate freely in
the public areas of the New York State Fairgrounds for the pur-
pose of proselytizing, soliciting, and accepting donations for
their religious organization. They ask this Court to grant them
a permanent injunction restraining the defendants from enforc-
ing the booth rules.
Placing plaintiffs’ legal arguments aside for one moment, the
foregoing, in plaintiffs’ view, is an accurate portrayal of their
religious beliefs, and their code of conduct, which, they assert,
entitles them to a constitutional license to conduct Sankirtan
and roving solicitations at the New York State Fair. It should
be noted that, for the most part, it is the only portrayal of the
Krishnas that has been put before a court of law in the United
States. Yet, the eleven days of trial have provided this Court
with an opportunity to evaluate testimony that expands upon
and contradicts much of what has just been presented as plain-
tiffs’ evidence. This evidence is both highly revealing and rele-
vant to the central issue this Court addresses today. For the
integrity of the record, however, it must be said that the testi-
mony remains incomplete. This is due entirely to the actions
of plaintiffs, who did not in good faith comply in a timely or
A20
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
complete manner with this Court’s Order requiring the produc-
tion of various documents and things. That order, dated April
16, 1980, mandated that plaintiff produce various materials,
including financial records, which would have enabled the Court
to verify many of plaintiffs’ claims with regard to the manner
in which they conducted Sankirtan at the previous New York
State Fairs.
To fully understand the Krishna practice of Sankirtan, let us
retrace our steps, using the record of this case as our guide. We
shall begin be re-examining two themes stressed by plaintiffs,
but in a slightly different light: The first is the fact that, by
their own admission, a central motivation behind the practice of
Sankirtan is the collection of money. As we know, the Krishnas
subscribe to the view that the more money they collect, the
more spiritual benefit the contributor receives. Money is very
important to the Krishnas. They hold money-raising mara-
thons, and Krishna devotees are awarded “lakshmi points” for
the amount of money they raise. When Krishna devotees be-
come proficient at practicing Sankirtan and collecting money,
they are given collection quotas by their Brahmanas or priests,
some as high as $100.00 to $200.00 a day. In short, while the
collection of money in the Krishna faith has spiritual signifi-
cance, from a practical perspective, the Krishna devotee is
under pressure to collect it for its own sake.
The second theme concerns the Krishnas’ view of the karmi
or nonbeliever. The karmi were typically referred to by the
Krishna devotee witnesses at trial as either being “diseased”,
“illusioned”, “misguided”, “dogs”, or “children.” Although
Krishnas claim that Sankirtan is an important religious ritual
used to spread the “truth” of Krishna, one of plaintiffs’ exhibits
states: “[t]he Lord Himself as the Super soul within his heart
purifies [the nonbeliever] from his maternal attachments, even
if he doesn’t fully understand the spiritual significance of his
donation.” The evidence submitted at trial revealed that this
A2]
APPENDIX A -- Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
statement has a practical translation -- it is not important to the
Krishnas that the karmi understand the “meaning” of their con-
tribution, be involved in a religious discussion about Krishna,
or, as will be expanded on momentarily, even be able to recog-
nize the religious identity of the devotee. A third theme was
also raised by the Krishnas, and that is the devotee should rely
on the Lord for success in practicing Sankirtan. The following
would indicate that they do not. Let us now re-examine the
Krishnas’ solicitation methods with the considerable aid of addi-
tional trial testimony on the Krishnas’ Sankirtan habits.
Il.
The Krishnas have a very distinct style of appearance and
dress compared to customary western fashions. For instance,
Krishna males sport shaven heads except for a thin braided
ponytail. On their faces, both males and females wear cere-
monial “tilak” paint, which is muddy green in color. For their
clothing, the males wear “dhotis” or an Indian style dress-like
garment, and the females wear “saris”, or the feminine version
of the same thing. Both males and females wear “tulsi” beads
around their necks and frequently carry burlap pouches or
satchels. Usually, Krishna devotees appear this way in public
and are commonly seen in the streets in large groups, dancing
and chanting, which is the traditional form of Sankirtan. Yet,
at the New York State Fair, when the Krishnas performed their
modern version of Sankirtan, they literally adopted disguise.
The men wore wigs to cover up their heads, and they donned
western styled dress. One Krishna stated at trial that because
of the disguise, people feel more at ease when solicited. Before
addressing this claim, let us take a closer look at how this dis-
guise is employed. To do so, we must first re-examine the
method by which Krishnas are trained to practice Sankirtan.
In the first place, solicitation is not required of all devotees.
At their farm in Port Royal, Pennsylvania, for example, only a
A22
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
very few devotees ever engage in Sankirtan. The same is true of
the urban temples. In New York City, the Krishna temple has
between 600 and 1000 members, 190 of whom live at the
temple. Solicitors are taken only from among those who live at
the temple, and of that group, only 25 or so participate. To
learn how to solicit, devotees are given classroom and on-the-
job training. The instructions and the manner in which they are
carried out are the same from temple to temple. The classes
seem to service the purpose of “‘psyching” devotees up for their
solicitation duties. They are encouraged to be aggressive when
soliciting and to try to get as much money from the karmi as
possible. Moreover, they are told that the best way to please
their spiritual master is by doing such duties well. This state-
ment holds special significance to the Krishnas because spiritual
masters hold great power over devotees. If a devotee is told by
a spiritual master that a snake is a stick and to pick it up, then
the devotee is to comply. Creativity in soliciting is also en-
couraged. Devotees are told to figure out ways to get the karmi
to donate more money. For example, at Christmas time, the
most common Krishna ploy is to dress up as Santa Claus and
give out candy canes while soliciting contributions.
More specific instructions are given during the on-the-job
training. New devotees are usually sent out with senior de-
votees who the Brahmanas or priests consider to be experienced
at Krishna methods of solicitation. The new devotees are told
to follow the directions of their instructor. For example, one
ex-devotee from the Baltimore temple was sent out by her
Sankirtan leader with two of the best female solicitors of the
temple. She was instructed not to wear an identification badge
and, if possible, to avoid verbally affiliating herself with the
Krishnas to potential donors. If someone were to ask her affili-
ation, she was taught to try to confuse that person by slurring
the word “Krishna” into sounding like the word “Christian.”
She was also instructed to make up “purposes” for requesting
A23
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
donations. For example, she was told to say that she was
soliciting for worldwide education and food distribution pro-
grams or children’s drug programs. She was further told that
it was all right not to ask people’s permission before pinning a
button or artificial flower on them. As for the religious records
which were used for solicitation purposes, potential donors
were informed that the musical stars mentioned on the back of
the albums actually performed on the albums. According to
her testimony, the devotees would only rarely discuss religion
with a prospective contributor. Religious discussions were con-
sidered a nuisance to the devotees, especially when they soli-
cited at places with a lot of people, because such conversations
would cut down on the amount of soliciting that could be done.
Other techniques for increasing monetary contributions in-
cluded: flirting with males, attempting to get people to donate
larger bills, intentionally miscounting change, folding over bills
to shortchange people, and holding large bills for a long time in
an effort to make the donor tired of the idea of getting the de-
sired amount of change back. The junior devotee was told that
it was all right to lie to security personnel in order to obtain the
right to solicit at an airport, and to enter private premises to
solicit without permission. She was taught to target people
such as navy men as easy marks. Once her instructor took her
to a nearby naval base on its monthly pay day. Apparently, the
Krishna instructor’s secret ambition was to get a serviceman to
“donate” his entire monthly pay check to the Krishnas. Asked
by defendants’ counsel whether these incidents were isolated
events, perpetrated by overzealous devotees, the ex-devotee re-
sponded: “It was their normal enthusiasm, they had done it
for a long time.”
Indeed, the Court learned that these incidents were not iso-
lated, and they were not the acts of a small handful of “‘imma-
ture” or “inexperienced” devotees. In fact, almost without
exception, the testimony of this ex-devotee should be looked
A24
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
upon as an index of the different soliciting methods habitually
employed by the Krishnas. As proof of this, we will examine
the complaints of fair goers and other local citizens concerning
the solicitation habits of the Krishnas in the past three New
York State Fairs and in the Syracuse area as a whole. Before
doing so, however, let us first take a closer look at just how ex-
perienced many of the Krishnas are at soliciting, and the atti-
tude of some of the Brahmanas, or priests, of the religion
towards those devotees who conduct Sankirtan.
As previously mentioned, one Krishna priest testified at trial
that complaints about the Krishnas’ solicitation methods are
due primarily to the actions of inexperienced devotees, hostile
fair officials or fair goers. In addition, the Krishnas claim that if
complaints are received by them about a devotee’s solicitation
methods, that devotee is removed from the Sankirtan party.
These statements are absolutely untrue. For instance, the
Krishna priest who made the statement, Christopher Kelly, is
not only a priest of the Krishnas, he has performed Sankirtan
for over six years, and even gives instruction on its practice to
“spiritually advanced” devotees. Mr. Kelly was arrested at the
1979 New York State Fair. Despite his “qualifications,” the
arrest allegedly grew out of a soliciting incident involving a 14
year-old boy. The boy’s statement is quoted in part below:
This guy came up to me, who was later identified to me
as being Chris Kelley, and he stuffed an album, record
album, under my arm. He told me he was giving me the
album and then he asked me for a small donation so I
gave him some change, it was either 30 or 35 cents. He
said, “Give me a bill and I'll give you some change.” So I
pulled a dollar bill and he said, “No give me a twenty.”
He saw the twenty dollar bill that I pulled out of ay
pocket. I thought he was going to give me nineteen dol-
lars back and he only gave me back ten dollars. I gave him
the album back and told him that I wanted my money
back. I gave him the album and he said, “Don’t push that
at me.” I told him I wanted my money back again and he
gave me back the twenty and then I told him I wanted the
A25
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
one dollar back too and he gave it back to me. They left
and I went to get my clothes out of my car and went back
and reported it to the trooper.
Although he has been arrested and convicted many times for
illegal solicitation, another Krishna devotee who is still involved
in soliciting is Raymond Kissane. His solicitation technique
would indicate that he is anything but the portrait of the cul-
turally shocked, hapless, and unconfident devotee whose
actions, according to the Brahma quoted earlier in this opinion,
may result in solicitation complaints. Mr. Kissane has at least
six arrests and convictions involving illegal solicitations dating
back to 1976. He was arrested and convicted at the New York
State Fair in 1977 for disorderly conduct after a 15 minute
spree in which he jumped in front of as many people as he
could on a pedestrian ramp, grabbing people by the arm as they
went along. More recently, Mr. Kissane was arrested at the
1979 North Carolina State Fair and was charged with three
counts of false pretenses, when he allegedly misrepresented the
content of records and shortchanged fair goers. He pleaded no
contest to a reduced charge of larceny by trick.
Still another Krishna devotee, James Griffith, was arrested
three times at the New York State Fair in 1979. Needless to
say, he was not removed by the Krishnas from soliciting after
his first arrest. One incident allegedly grew out of a combined
“money-holding” and shortchange scam. Two others involved
placing records under people’s arms as they were walking, in
order to get their attention. There were other multiple arrests
of Krishnas as well. Richard Banbury, a Krishna devotee, was
arrested at the 1978 State Fair for harrassment; the charge was
subsequently reduced, and adjourned in contemplation of dis-
missal. He visited the State Fair once again in 1979 and was
arrested and convicted for disorderly conduct.
A26
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
These are only a sampling of Krishna arrests and convictions
growing out of their solicitation activities which directly or in-
directly relate to the Krishna claim that they use honest solici-
tation techniques at the New York State Fairs. None of the
facts underlying these incidents reflect the inexperience of the
Krishna devotees at soliciting or the hostility of fair officials or
fair goers. Quite the contrary, these individuals are experienced
at what they do, and the Krishnas deliberately permit them to
: continue performing illegal solicitation techniques, even though
such techniques frequently lead to the arrest and conviction of
Krishna devotees. It would seem that so long as the Krishnas
financially benefit from such techniques, one can expect there
will be similar arrests and convictions in the future.
A Krishna Brahmana is quoted above as saying that “in this
day and age, example is more important than precept. The par-
ticulars are that you must behave according to the philosophy
that you are trying to preach ... .” Consider this statement
along with the following and final example of the fact that the
Krishnas continue to finartially benefit from the services of
individuals who they know employ overly aggressive solicita-
tion techniques, but who are not removed from Sankirtan
duties. At one point during the trial, counsel for plaintiff asked
the ex-Baltimore devotee, whose escapades are described above,
whether her two women instructors could properly be charac-
terized has “crooks.” She answered in the affirmative. Subse-
quently, a Brahmana supervisor, Steven McLain, who oversaw
the activities of these women instructors, was asked by de-
fendants’ counsel whether he considered the woman known as
the more aggressive of the two to be a crook. He responded in
the negative. In fact, even though Mr. McLain had learned of
numerous complaints arising out of the aggressive solicitation
habits of this particular individual, he assigned her to teach
fledgling Krishnas, such as the ex-Baltimore devotee, how to do
the same. The Court now turns to a more detailed analysis of
A27
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
how the Krishna solicitation techniques were employed at pre-
vious New York State Fairs, and in and around the Syracuse
community as a whole at the time of the State Fairs.
As the Court learned from the trial testimony, a common
practice of the Krishnas is to “target” their prospective donors.
The Krishnas do not rely merely on indiscriminate solicitation.
They pick on certain types of people, or people in certain situa-
tions, when they solicit. Once such group is teenagers, es-
pecially those who appear unsophisticated. A complaint
involving a teenager has already been described, and it is one
of several complaints involving teenagers. Another group that
is “‘targeted” is couples with young children. The Krishnas dis-
covered that these couples are easy marks because they cannot
afford to divert their attention for very long from watching the
children. Thus, the persistent Krishna solicitor can be relatively
assured of a contribution, just so he will go away and let the
couple go about their business.
Sadly, still another group that is “targeted” is the handi-
capped. At least two incidents at past New York State Fairs
resulted when Krishna devotees approached groups of retarded
adults and pinned flowers on them while, at the same time,
asking for contributions. Many of these adults clearly were
startled because they did not understand what the Krishnas
were doing. Obviously the Krishnas knew they would not and
sought to use this fact to their advantage. Individuals who ap-
pear to be mentally slow or very unsophisticated are also “‘tar-
gets.” On September 1, 1978, which was during the week of
the 1978 State Fair, one such individual was approached in
downtown Syracuse by a female Krishna devotee, who almost
succeeded in obtaining a “‘contribution”’ of $80.00 through the
use of the “wad of bills” technique which is explained below.
The entire incident was observed by a plainclothes police offi-
cer who forced the devotee to return the money. The same
female devotee then went across the street, and was involved
A28
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
in another soliciting incident with a young boy when she
allegedly would not return is $10.00. Had the officer not in-
tervened in both cases, the Krishna devotee would have suc-
ceeded, as the next example of “targeting” demonstrates.
In a related incident which occurred the same day and in the
same vicinity, a twenty-four year old girl afflicted with cerebral
palsy was waiting for a bus to take her home from work. She
was approached by a female devotee who pinned an artificial
flower on her without her permission, and asked for a donation
for “starving children”. When the young woman reached in
her purse for her wallet to make a $1.00 donation, the devotee
stood on her tiptoes and observed that the wallet contained
some larger bills totaling $20.00. The devotee asked the young
woman to exchange the larger bills for all of the dollar bills
that she was holding. The young woman agreed to do so and
expected $19.00 in change. She was not to receive it. The
Krishna devotee handed her a copy of the Bhagavad-Gita and
“took off” without giving her the change.
It has already been described how at the New York State
Fair the Krishnas conceal their religious identity from people
by wearing western dress. There were many incidents of the
Krishnas’ attempt to further cloud their identity by hiding
their identification badges, which read “ISKCON”, not the
religion’s popularly known name “Hare Krishna”, from
being clearly visible, or not wearing them at all. This tactic
was revealed by the ex-Baltimore devotee as being purposeful.
Another device used by the Krishnas is to carry someone else’s
identification card. By not properly displaying their identifica-
tion badges the Krishnas not only concealed their identity, but
they were in violation of a Court order requiring them to do
80.
For the past three years the devotees at the New York State
Fair have routinely misrepresented their Krishna affiliation as
well. This is accomplished in two different ways. First, by
A29
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
misrepresenting the organization that they solicit for, and
second by misrepresenting the items that they sell. The most
frequently used lines at past State Fairs represented to the fair
goer that the devotee was either soliciting for the benefit of
crippled children’s hospitals, drug addicts, or retarded children.
These are not true statements even if broadly construed. If a
religious book or record was sold, Brahmana testimony at the
trial indicated that the money was used to produce another
book or record. The remainder of the contributions are used to
support the various temples or farms. For example, at the 1978
State Fair, contribution money was used to bail out arrested
Krishnas from jail. Aside from the admissions made during
trial, which the Court believes is dispositive of this issue, the
Krishnas refused to comply with this Court’s Order compelling
them to turn in to the Court their financial records which
would conclusively prove the matter one way or another. Some
information was handed over, however, it was subsequently
conceded by plaintiff’s treasurer Scott Ellis to be inaccurate.
Therefore, the Court must assume that accurate proof of plain-
tiff’s claims of soliciting on behalf of charity does not exist.
Krishnas have also fabricated stories portraying themselves
as representatives of contests giving away records to the 50 best-
looking couples, or as radio station employees willing to give
lucky fair goers a record if they named the correct radio station.
Needless to say, the Krishnas did not care which station the
fair goer named. This assumption was borne out when one
plainclothes police officer named a television station from a
distant city and was told by the devotee that it was the correct
answer. Without exception, after a fair goer “won” the record
by naming some type of station, the Krishna devotee, still
without identifying their true identity, asked for a contribution.
As noted above, the use of such stories was also employed at
the Baltimore temple, and the Krishnas used similar stories at
the Erie County Fair and the Eastern States Exposition.
A30
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
The Krishnas also misrepresented their affiliation by the var-
ious items they sold for a contribution. Artificial flowers and
“Keep On Truckin” buttons have no religious significance, but
of course they were selected as such because they did not. The
items were used strictly because they could be rapidly sold
without any questions -- especially questions about the Krishna
religion. The most commonly used items were the religious
records. It is difficult to tell they are religious albums just by
looking at them. They are packaged to look like the records of
popular recording artists, and the word ISKCON only appears in
small lettering on the back. The records are first pitched to the
fair goer and if they show no interest, the Krishna devotee then
turns the record over to show that it contains performances of
the Beatles or Stevie Wonder. One women was startled to dis-
cover that her Stevie Wonder album sounded like a “cat in
heat,” and she could not figure out why Stevie Wonder would
want to ruin his career like that. What she had actually heard
was a typical Krishna song. The same kind of record scam was
used in Baltimore, the Erie County Fair, and the Eastern States
Exhibitions. Even though the Krishnas have received many
complaints about the representations they make with respect to
these records, they continue to use them and have yet to alter
the misleading packaging. The Court cannot help but conclude
that the Krishnas are only interested in taking money from
people and care very little about the means they use to get it.
It is not unusual for those means to be more forceful. Some-
times a victim’s money is taken outright and the devotee dis-
appears in the crowds. At the State Fairs, devotees also used
various short-change tricks such as those described by the ex-
Baltimore devotee. For instance, dollar bills were folded over
to look like more bills were underneath; devotees would in-
tentionally hold money and pretend to be making change while
hoping to distract the fair goers with conversation so that they
would forget how much change they asked for; devotees would
A31
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
ask for larger bills because they were constantly able to pressure
a person intc giving more money if they could get a larger bill
to make change from. The ‘“‘wad of bills” scam was also em-
ployed, whereby a Krishna would ask to exchange their singles
for bills with larger denominations. Once they got the bill in
their hand, they would either not give the correct change or
they would “take off” into the crowd. Without exception, fair
goers were pinned with an artificial flower or candy without
their permission. One woman complained that after she de-
clined to give a contribution for the flower pinned on her
blouse, the devotee tore the flower off her and called her a
demon. A similar incident happened with another fair goer.
This individual was approached by a Krishna devotee and cor-
rectly named a radio station and won a record as a “prize”. He
was then asked to make a contribution which he refused to do
because, as he understood it, the record was free. The devotee
then tried to grab the record out of his hands. When he failed
to do so, he followed the fair goer and cursed him as he walked.
As mentioned above, there were numerous other arrests of de-
votees at the 1977, 1978, and 1979 State Fairs. Some of these
arrests have led to convictions, some of the defendants skipped
bail, and the remaining charges are still pending.
One of the only things that the Krishnas did not do at the
State Fairs was to discuss their religion with fair goers. Despite
the Krishna claims that Sankirtan is the means by which they
spread the “truth” of Krishna and gain converts, they did not
appear to engage in any sort of religious discussion with the
fair goers. At trial, each witness who was approached by the
Krishnas and asked for money confirmed that the Krishnas
made no mention of their religion at all. Some witnesses
claimed they were given some sort of magazine by the devotees
but they did not know what the magazine was about. This lack
of knowledge can only be attributed to the fact that the
Krishnas never explained their religious paraphernalia to the
fair goers and rarely identified or explained their affiliation.
A32
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
It should also be noted that Krishna devotees were found to
have flagrantly violated the terms of the stipulated conditions
made part of the Court’s Orders granting the plaintiffs prelimi-
nary injunctions for the 1978 and 1979 State Fairs. Problems
with identification badges was already mentioned. Other vio-
lations include failing to: register devotee identities, engage in
solicitation in a peaceable manner and without harassment to
the public, ask fair goers’ permission before touching them,
honor the requirement that they not solicit within 10 feet
from an exhibition or booth, or solicit fair goers sitting on a
bench or waiting in a ticket line. Other violations of Court
Orders included entering the fair grounds for solicitation pur-
poses during a period when Krishnas were ordered not to do so
and trying to enter the fair grounds without paying the price
of admission. Similar problems were also experienced with
violation of the stipulated agreement at the Eastern States Ex-
hibition.
IV.
Plaintiffs bring this action under 42 U.S.C. §1983, claiming
that their First Amendment rights will be violated if their
Sankirtan activities are confined to a booth. Before the Court
addresses these alleged violations of plaintiff’s constitutional
rights, it must first consider whether the alleged actions of de-
fendants amount to “state action”, which is the jurisdictional
prerequisite of Section 1983. In Jackson v. Metropolitan Edi-
son Co., 419 U.S. 345, 351 (1974), the Supreme Court held
that for state action to exist there must be a “sufficiently close
nexus between the State and the challenged action of the [de-
fendant] so that the action of the latter may be fairly treated as
that of the State itself.” See, Burton v. Wilmington Parking
Authority, 365 U.S. 715 (1961); Graseck v. Manceri, 582 F.
2d 203, 207-09 (2d Cir. 1978), cert. denied, 439 U.S. 1129. In
the present case, neither party disputes the fact that as adminis-
trators of the New York State Fair, and responsible for the
A33
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
regulations in dispute, the actions of defendants demonstrate
a sufficiently close nexus with the State of New York. The
Division of the State Fair and the New York Industrial Exhibit
Authority are both state agencies that exist at the pleasure of
the State Legislature for purposes of operating the State Fair.
The State provides these agencies and the Fair with its operating
budget, fair grounds and buildings, and State Police patrols. In
sum, the actions of these defendants in enacting and enforcing
the booth rules are “‘state action” and therefore the Court may
properly exercise jurisdiction over plaintiffs’ constitutional
claims which will now be addressed.
The right of a citizen to form, hold, and express opinions and
beliefs in a public forum is so essential to our democracy that
it is considered to be “fundamental.” Schneider v. State, 308
U.S. 147, 161 (1939). This proposition is reflected in the fact
that “[w]herever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public
and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens discussing
public questions.” Hague v. CIO, 307 U.S. 496, 515 (1939);
Kunz v. New York, 340 US. 290, 293 (1951). At the same
time, these First Amendment rights are not absolute. Murdock
v. Pennsylvania, 319 U.S. 105, 110 (1943); Cox v. New Hamp-
shire, 312 U.S. 569, 574 (1946). While the government has no
power to regulate communication or belief because of its con-
tent, Grayned v. City of Rockford, 408 U.S. 104, 115 (1972);
Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972);
Cohen v. California, 403 U.S. 15, 24 (1971); Street v. New
York, 394 U.S. 576 (1969); New York Times v. Sullivan, 376
U.S. 254, 269-270 (1964), Niemotko v. Maryland, 340 U.S. 268
(1951), Cantwell v. Connecticut, 310 U.S. 296, 305 (1940), it
may restrict the exercise of First Amendment rights if justified
by compelling public interests. Grayned v. City of Rockford,
A34
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
408 U.S. 104, 115-16 (1972); Police Dep’t v. Mosley, 408 U.S.
92, 98 (1972); Adderly v. Florida, 385 US. 39 (1966); Cox
v. Louisiana, 379 U.S. 536, 554-55 (1965); Sherbert v. Verner,
374 U.S. 398 (1963).
Still, even when regulations are justified because of a com-
pelling public interest, the regulations must be written as to
h reasonably restrict the time, place and manner of the right in-
volved. As held by the Court in Virginia Pharmacy Board v.
Virginia Consumer Council, 425 U.S. 748, 771 (1976): “[wle
have often approved restrictions [on time, place and manner ]
provided that they are justified without reference to the con-
tent of the regulated speech, that they serve a significant gov-
ernmental interest, and that in so doing they leave open ample
channels for communication of the information.” See, Grayned
v. City of Rockford, 408 U.S. 104, 115-16 (1972); Jamison v.
Texas, 418 U.S. 413 (1943); Martin v. Struthers, 318 U.S. 141
(1943); Cox v. New Hampshire, 312 US. 569, 574-77 (1941);
Cantwell v. Connecticut, 310 U.S. 296, 304 (1940); Schneider
v. State, 308 U.S. 147, 160-61 (1939); Concerned Jewish
Youth v. McGuine, No. 79-7456 (2d Cir. March 27, 1980);
Tribe, American Constitutional Law 687 (1979). The balancing
process which must be applied in these situations has been
stated as follows:
Although American constitutional jurisprudence, in the
light of the First Amendment, has been jealous to preserve
access to public places for purposes of free speech, the
nature of the forum and the conflicting interests involved
have remained important in determining the degree of pro-
tection afforded by the Amendment to the speech in ques-
tion.
Lehman v. City of Shaker Heights, 418 US. 302-03 (1974).
Hague v. CIO, 307 U.S. 496, 515-516 (1939).
There are other limitations on the type of regulation that
may be utilized. For example, where discretion is vested in ad-
ministrative officials it must be appropriate, and placed under
A35
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
specific guidelines so as not to be unbridled. Shuttlesworth v.
Birmingham, 394 U.S. 147 (1969); Cox v. Louisiana, 379 U.S.
536, 555-558 (1965); Staub v. City of Baxley, 355 U.S. 313,
321-325 (1958); Saia v. New York, 334 U.S. 558, 560-62
(1948). Even when regulations are authorized by explicit and
narrow legislative authority, they must be “narrowly tailored
to further the State’s legitimate interest, Grayned v. Rockford,
supra, 408 U.S. at 116-17; Police Dep’t v. Mosley, supra, 408
U.S. at 98, Cox v. New Hampshire, 312 U.S. 569, 575-76
(1941), and great weight must be given to the fact that com-
munication is involved. Talley v. California, 362 U.S. 60
(1960), Schneider v. State, supra. The State, moreover, bears
the burden of justifying restrictions, Cohen v. California, 403
U.S. 15, 20 (1971). And finally, any regulation which takes the
form of a prior restraint is subject to exacting scrutiny. South-
eastern Promotions Ltd. v. Conrad, 420 U.S. 546, 558 (1975);
Organizations for a Better Austin v. Keefe, 402 U.S. 415, 419
(1971). In brief, First Amendment rights ‘“‘must not, in the
guise of regulation, be abridged or denied.” Hague v. CIO, 408
U.S. 104, 117 (1972).
Unlike many other regulations challenged by the Krishnas,
the regulation at issue in the present case does not, in any fash-
ion, restrict the Krishnas right to discuss their religion with any-
one or distribute religious paraphernalia on any part of the fair
grounds at any time. Compare Edwards v. Maryland, No. 79-
1545 (4th Cir. August 12, 1980) (solicitation and distribution
of literature confined to a booth); ISKCON v. Bowen, 456 F.
Supp. 437 (S.D. Ind. 1978) aff’d 600 F.2d 667 (7th Cir. 1979)
cert, denied 444 U.S. 643 (1979) (solicitation and distribution
of literature confined to a booth). Furthermore, the regulation
at issue here does not limit the number of persons that may
solicit on the fair grounds at any one time. Compare ISKCON
v. McAvey, 450 F. Supp. 1265 (S.D.N.Y. 1978) (limits solici-
tors at World Trade Center to ten). The regulation makes no
A36
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
relevant distinction on the basis of the content, nor does it
grant an official unbridled discretion to deny Krishnas the right
to solicit. Compare ISKCON v. Kearnes, 454 F. Supp. 116
(E.D. Cal. 1978) (permits issued to those who “probably will
not” engage in fraud.) And it is not challenged as being vague
or overbroad on its face. Compare, ISKCON v. Eaves, 601 F.
2d 809 (5th Cir. 1979).
Instead, the present regulation merely requires that “all soli-
citation for either contributions or sale must be made from
within the confines of a booth or display.” It should be noted
that there is also a license requirement mandating that a fee be
paid for the exhibit space. This fee requirement was not made
an issue during the trial of this action by plaintiffs and the
Court does not address it today. Plaintiffs did not offer proof
on the extent of the fee, and thus the Court is without any evi-
dence to conclude whether the booth fee is a “nominal fee im-
posed as a regulatory measure to defray the expenses of policing
the activities in question.”” Murdock v. Pennsylvania, 319 US.
105, 113-14 (1943), or whether it is a “flat license tax the pay-
ment of which is a condition of the exercise of . . . constitu-
tional privileges.” Id. at 112.
With these preliminary matters out of the way, the Court can
narrow the issues that need to be addressed. The present case
does not involve questions of prior restraint due to license fees
or the inability of plaintiff to move about and distribute litera-
ture, or engage in religious discussions. Neither does this case
deal with the issue of whether a regulation discriminates in
treatment because of the content of the speech. Defendants
have made no attempt to ban plaintiffs from the fair due to a
judgment on defendants’ part concerning the nature of plain-
tiff’s religious beliefs. There is also no claim by plaintiffs that
the booth restriction grants administrative officials unbridled
discretion in granting or denying plaintiffs a booth. Even
though a “public welfare” standard for booth content is to be
A37
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
found in the disputed regulation, plaintiffs have not challenged
this provision and it is not applicable here. In addition, plain-
tiffs do not claim that defendants’ regulation is void for vague-
ness. It would seem that plaintiffs’ claims that the booth
restriction violates their rights to freedom of speech, religion,
and assembly commonly evolve from the constitutional doc-
trine of overbreath, as applied. See Generally, Grayned v. City
of Rockford, 408 U.S. 104, 114-15 (1972). In other words,
it is plaintiffs’ claim that the booth restriction is not a reason-
able time, place, and manner regulation. The thrust of plain-
tiffs’ claim is that there is a less restrictive means by which
defendants can regulate plaintiffs’ First Amendment rights and
still accommodate the State’s legitimate regulatory interests.
Before addressing this argument, the Court will first examine
whether the State Fairgrounds is a “public forum” or an arena
traditionally associated with the exchange of views among the
public and thus increasing the burden on the State to justify
the extent of its regulatory scheme. See generally, Tribe,
American Constitutional Law 690 (1979); Stone, “Fora
Americana: Speech in Public Places,” Sup. Ct. Rev. 233
(1974).
Where places of social commerce are generally reserved or
associated with the exercise of First Amendment rights, then it
is incumbent on the state to demonstrate a compelling interest
in its regulatory scheme, which must, as a consequence, be
drawn with narrow time, place, and manner regulations. See
Wright v. Chief of Transit Police, 558 F.2d 67, 68 (2d Cir.
1977) (subway station held to be public forum); Wolin v. Port
of New York Authority, 392 F.2d 83, 92-93 (2d Cir. 1968)
(bus terminal held to be public forum). Defendants assert that
the State Fairgrounds is not a public forum. According to
them, the state fair is a “non-traditional” forum, whose chief
purpose is as a place to house agricultural and industrial ex-
hibitions, and to support educational and competitive junior
activities. The Fairgrounds, maintain defendants, cannot be
A38
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
equated on a constitutional basis with a park or a street corner
‘“Gmmemorially . . . held in trust for the use of the public, and,
time out of mind, . . . used for purposes of assembly, communi-
cating thoughts between citizens, and discussing public ques-
tions.” Hague v. CIO, 307 U.S. 495, 515 (1939). The Court
cannot agree. In the words of Judge Higginbotham, “[a] fair is
almost by definition a congeries of hawkers, vendors of wares
and services, purveyors of ideas, commercial, esthetic and intel-
lectual.” ISKCON v. State Fair of Texas, 461 F. Supp. 719
(N.D. Tex. 1978). It would be unreasonable to hold that the
New York State Fair could accurately be described as substan-
tially different in purpose or effect. Still, merely because the
State Fair is a public forum does not mean that it is excepted
from the reasonable regulations of time, place and manner.
Lehman v. City of Shaker Heights, 418 U.S. 298, 317 (1974);
Wright v. Chief of Transit Police, 558 F.2d at 68; Wolin v. Port
Authority, 392 F.2d at 89. This issue shall now be discussed.
Plaintiff asserts that the booth restriction is an unreasonable
method by which to regulate the Krishnas’ solicitation activi-
ties. They claim that the government interests raised by defend-
ants, such as to prevent traffic congestion, insure public safety
and to protect the public from fraud, do not justify their con-
finement to a booth. In plaintiffs’ view, defendants have not
offered any serious evidence of disruption in traffic as a result
of plaintiffs’ Sankirtan activities. With regard to fraudulent
behavior, plaintiffs assert that any fraud perpetrated by de-
votees are isolated instances, and may be adequately dealt with
by criminal prosecutions. Plaintiffs additionally point out that
agreements with other fair administrations have been less re-
strictive than the booth requirements of defendants and have
permitted Krishnas to practice Sankirtan. Finally, where liason
systems have been employed in good faith, plaintiff assert that
complaints have been resolved, and the need for arrests has been
eliminated.
A39
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
In contrast, defendants contend that the New York State
Fair booth rule is a reasonable time, place, and manner regula-
tion which is justified by compelling government interests. De-
fendants place the foundation of their argument on the State’s
interest in preventing fraud. They point to their previous ex-
perience with the Krishnas as proof positive of the necessity of
the booth rule to combat plaintiffs’ fraudulent activities. The
Krishnas solicitation activities, say defendants, also demonstrate
the need for a booth rule to control pedestrian traffic. Defend-
ants argue that the booth rule is additionally necessary to pro-
tect the rights of exhibitors and fair goers to communicate with
each other, and the rights of the fair goers to choose or decline
access for communication, and assures the equal treatment of
political and religious organizations.
The issue in this case is a narrow one, That is, whether it is
constitutionally permissible for a State Fair to require that soli-
citation of money for religious purposes be restricted to a
booth. While plaintiffs claim that their rights to freedom of
speech, religion and assembly would be violated if their
Sankirtan activities are restricted to a booth, they do not dis-
pute that even these activities are subject fo reasonable time,
place, and manner regulations. This rule was succinctly stated
as follows:
The general regulation, in the public interest, of solici-
tation, which does not involve any religious test and does
not unreasonably obstruct or delay the collection of funds,
is not open to any constitutional objection, even though
the collection be for a religious purpose. Such regulation
would not constitute a prohibited previous restraint on the
free exercise of religion or interpose an inadmissible ob-
stacle to its exercise.
Cantwell v. Connecticut, 310 U.S. 296, 305 (1940). Although
the Krishnas claim that their very act of soliciting is a religious
belief, the test just enumerated is applicable nonetheless. Fur-
thermore, the Supreme Court has held “that when ‘speech’ and
A40
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
‘nonspeech’ elements are combined in the same course of con-
duct, a sufficiently important governmental interest in regu-
lating the nonspeech element can justify incidental limitations
on First Amendment freedoms.” United States v. O’Brien, 391
U.S. 367, 376 (1968) (burning draft card found to be unpro-
tected speech); accord Ohralik v. Ohio State Bar Ass’n, 436
U.S. 447, 456 (1978); see also Sherbert v. Verner, 374 US.
398, 403 (1963) (challenge to unemployment compensation act
by Seventh Day Adventist where law required that individual
remain available to work Saturdays). The Court will assume for
purposes of this analysis that the very act of exchanging money
does carry with it some religious significance for the Krishnas.
However, even the Krishnas concede that the monies collected
in Sankirtan are also significant to them for its purely commer-
cial value to support the religion. [Plaintiffs’ trial brief, Ap-
pendix A 4B]. To the extent that they do, the Court is hard
pressed to distinguish between the solicitation activities of
Sankirtan and purely commercial speech which the Supreme
Court has said deserves the least constitutional protection. In
Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748,
771-72 (1976), the Court held:
Untruthful speech, commercial or otherwise, has never
been protected for its own sake. Gertz v. Robert Welch,
: Inc., 418 U.S. 328, 340 (1974); Konigsberg v. State Bar,
366 U.S. 36, 49, and n. 10 (1961). Obviously, much com-
mercial speech is not provably f or even wholly false,
but only deceptive or misleading. We foresee no obstacle
to a State’s dealing effectively with this problem. The
First Amendment, as we construe it today, does not pro-
hibit the State from insuring that the stream of commer-
cial information flow cleanly as well as freely.
The Court continued its statement in an accompanying foot-
note which is worth quoting at length:
241n concluding that commerical speech enjoys First
Amendment protection, we have not held that it is wholly
undifferentiable from other forms. There are common-
sense differences between speech that does ‘‘no more than
A4l1
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
propose a commercial transaction,” Pittsburgh Press Co. v.
Human Relations Comm'n, 413 US., at 385, and other
varieties. Even if the differences do not justify the conclu-
sion that commercial speech is valueless, and thus subject
to complete suppression by the State, they nonetheless
suggest that a different degree of protection is necessary
to insure that the flow of truthful and legitimate commer-
cial information is unimpaired. The truth of commercial
speech, for example, may be more easily verifiable by its
disseminator than, let us say, news reporting or political
commentary, in that ordinarily the advertiser seeks to
disseminate information about a specific product or ser-
vice that he himself provides and presumably knows more
about than anyone else. Also, commercial speech may be
more durable than other kinds. Since advertising is the
sine qua non of commercial profits, there is little likeli-
hood of its being chilled by proper regulation and forgone
entirely.
Attributes such as these, the greater objectivity and
hardiness of commercial speech, may make it less neces-
sary to tolerate inaccurate statements for fear of silencing
the speaker. [Emphasis Added]. Compare New York
Times Co. v. Sullivan, 376 U.S. 254 (1964), with Dun &
Bradstreet, Inc. v. Grove, 404 U.S. 898 (1971). They may
also make it appropriate to require that a commercial mes-
sage appear in such a form, or include such additional in-
formation, warnings, and disclaimers, as are to
ea its being deceptive. Compare Miami Herald Pub-
ishing Co. v. Tornillo, 418 U.S. 241 (1974), with Banzhaf
v. FCC, 132 U.S. App. D. C. 14, F.2d 1082 (1968)
cert. denied sub nom. Tobacco Institute, Inc. v. FCC, 396
US. 842 oe Cf. United States v. 95 Barrels of Vine-
gar, 265 U.S. 438, 443 (1924) (“It is not difficult to
caine statements, designs and devices which will not de-
ceive’),
Accord, Freidman v. Rodges, 440 U.S. 1 (1979). See Emerson,
The System of Freedom of Expression, 21-26 (1970). Still,
Plaintiffs cite the case of Murdock v. Pennsylvania, 319 US.
105 (1943), overruling Jones v. Opelika, 316 U.S. 584 (1942)
(license fee for selling religious paraphernalia found constitu-
tional because it was pure commercial activity), for its state-
ment that:
A42
APPENDIX A — Memorandum-Decision and Order oj
Mu son, J., dated August 25, 1980.
But the mere fact that the religious literature is ‘sold’ by
itinerant preachers rather than ‘donated’ does not trans-
form evangelism into a commercial enterpreise. If it did
then the passing of the collection plate in charch would
make the church service a commercial project. The con-
stitutional rights of those spreading their religious beliefs
through the spoken and printed word are not to be gauged
by standards governing xetailers or wholesalers of books.
What plaintiffs fail to point out is that the Murdock Court
qualified its statement on p. 116. The Court said “‘the present
ordinance is not directed to the problems with which the police
power of the state is free to deal... .. They are pursuing their
soliciations peacefully and quietly.” * * * “Nor do we have
here, as we did in Cox v. New Hampshire, supra, and Chaplinsky
v. New Hampshire, supra, state regulation of the streets to pro-
tect and insure the safety, comfort, or the convenience of the
public.” See Tribe, American Constitutional Law, 724-25 n. 10
(1979) (Murdock tax fell unevenly on poor) citing Emerson,
The System of Freedom of Expression 421 (1970). In this
sense, then, Virginia Board of Pharmacy stands for the same
proposition as Murdock. The state has a compelling interest
in regulating speech, of whatever type, which is fraudulent in
nature. Accord Valentine v. Christensen, 316 U.S. 52 (1942);
Schneider v. State, 308 U.S. 147 (1940); Cantwell v. Connecti-
cut, 310 U.S. 296 (1940); Edwards v. Maryland, No. 79-1545
(August 12, 1980) reversing 476 F. Supp. 153 (D. Md. 1979);
ISKCON v. Bowen, 600 F.2d 667 (7th Cir. 1979).
The interest of the government in exercising its traditional
police power function for the public health safety and welfare
is beyond question. Pursuant to this power, state adminis-
trators, such as defendants, may enact reasonable regulations
which serve these ends. In this regard, the booth restrictions
at the New York State Fair are a legitimate and compelling
administrative aid for the protection of the citizens and society
as a whole. One need not look any further than the facts of this
A43
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
case to demonstrate that these restrictions are justified, and are
reasonable time, place, and manner regulations which employ
the least restrictive means by which the State may regulate
First Amendment rights.
The State Fair booth regulation is a reasonable means to
combat widespread fraud that cannot be effectively checked
by the criminal justice system. There is no question from the
record in this case that the Krishnas are engaged in a wide-
spread and systematic scheme of accosting, deceit, misrepre-
sentation, and fraud on the public in their Sankirtan activities.
The record shows patterns of deceptive practices identical in
nature and practiced throughout New York State, Massachu-
setts, and Maryland. Other cases involving the Krishnas have re-
ported similar findings, though these courts did not delve into
such incidents to the extent that was done in this case. See
Edward v. Maryland, No. 79-1545 (August 12, 1980) at p. 9
n. 2; ISKCON v. St. Fair of Tex., 461 F. Supp. 719, 723-
24 (N.D. Tex. 1978). Plaintiffs have made little, if any, attempt
to control its members or to bring these incidents to a halt.
Quite the contrary, the Krishnas have condoned such practices
by using experienced “thieves” to teach its newer members how
to solicit money from the public in exactly the same way. In-
stead of removing individuals who are known to the Krishna
Society as being repeat offenders or overly aggressive, the
Krishnas have continued to accept the “fruits” of such solicita-
tion methods for its own commercial gain, all under the “cloak”
of being a religion.
There are two reasons why this practice continues today,
and the first has been discussed immediately above. The
second reason is that the regulatory methods employed in the
past by various government officials and courts have facilitated
the Krishnas in perpetuating their illicit ac.s. Both government
regulations and court orders restricting their conduct have been
flagrantly violated. See e.g, Edwards v. Maryland, supra. In
A44
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
fact, the very regulations that plaintiffs urge this Court to recog-
nize today as being less restrictive alternatives to the booth rule
are the same regulations that plaintiffs have stipulated to with
various defendants around the country and, from all indica-
tions, have violated with unabashed arrogance. The liason sys-
tem proposed by plaintiffs as a less restrictive alternative is a
sham. This Court finds little use in so-called “informal” dis-
pute resolution methods which merely serve as a means to keep
criminal recidivists from receiving the full measure of criminal
justice. Such a device is not what should rightfully be consid-
ered a useful “social tool.” As proof of this fact, defendants’
Exhibit CR is a compilation of the complaints received by the
West Springfield, Massachusetts Police Department, which took
complaints for the 1979 Eastern States Exhibition. As a ran-
dom sample, consider the first five complaints. The first com-
plaint concerns a fair goer who, after receiving a record, was
not given back the change he asked for by the Krishna devotee.
The second complaint involved two fair goers who were ap-
» oached by a devotee and each handed a record and told that
uuuey were lucky winners for the day. They were then asked
for contributions for the records they had “won.” The fair
goer offered him a dollar. The Krishna devotee took five dol-
lars from the fair goer, took the other fair goer’s record back,
and said “thank you.” The third complaint concerns one of the
witnesses in the instant case, Kenneth Solomon, who was wear-
ing incorrect identification when spotted by a police officer
when he was standing in an area of the fair grounds which was
off-limits to him under the stipulated agreement between the
Exhibition and the Krishnas and was engaged in a conversation
with another devotee. The second Krishna was also using the
wrong type of identification in violation of the stipulated con-
ditions. The fifth complaint was by a Krishna devotee who
claims that he handed a fair goer a record and told him that it
was not available in stores, but was for a benefit of the Krishna
Society which was helping people with farming and education.
A45
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
At that point, the fair goer must’ have turned to walk away with
the Krishna record in tow. The nature of the Krishna devotee’s
complaint was that the fair goer took the album without giving
the Krishna a donation.
The first four examples are not isolated instances of accosting
or misrepresentation, nor are they “‘speculative;” they are sys-
tematic, symptomatic and patternistic. While the penal law has
been traditionally referred to by the courts as a means by which
such incidents can be resolved to the best interests of the
society as a whole, see e.g., Schneider v. State, 308 U.S. 164-65
(1970); Edwards v. State of Maryland, supra, at p. 10;
ISKCON v. Bowen, supra, at 669; ISKCON v. Kearnes, 454 F.
Supp. 116, 121 (E.D. Cal. 1978), this Court agrees with that
portion of ISKCON v. Griffin, 437 F. Supp. 666, 673 (W.D.
Pa. 1977) wherein the court stated that if applied blindly such
a position would “‘ignore the realities of human behavior.” Fair
goers come to the State Fair from across the State and the
United States to enjoy themselves, and not to file criminal
complaints, or to return some months in the future to appear
as witnesses. Moreover, the Fairgrounds is a difficult area to
police in general, due to its size and numbers of people, and
disguised Krishnas without identification badges are hard to
identify. Even where the criminal laws are invoked, the result
is of little deterrent value. Some Krishna defendants jump bail,
or as is frequently the case, are simply transferred by the
Society to another state. Still other devotees just return to the
fair the following year to be arrested once again, utilizing the
same aggressive or deceitful techniques, and with the same
materials. In perpetuating the problems with our “solutions”
we have rekindled the meaning of the words of Justice Jackson:
In my view, the First Amendment assures the broadest
tolerable exercise of free speech, free press, and free assem-
bly, not merely for religious purposes, but for political,
economic, scientific, news, or informational ends as well.
When limits are reached which such communications must
A46
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
observe, can one go farther under the cloak of religious
evangelism? Does what is obscene, or commercial, or
abusive, or inciting become less so if employed to promote
a religious ideology? I had not supposed that the rights of
secular and non-religious communications were more
narrow or in any way inferior to those of avowed religious
groups.
Douglas v. Jeannette, 319 U.S. 157, 179 (1943).
As a more realistic approach to such problems as fraudulent
accosting and misrepresentation, the defendants’ enacted a
focused booth restriction which addresses a compelling state
interest -- the exchange of money. This regulation is not in any
manner aimed at regulating First Amendment rights, and its
effect on those rights is incidental in the truest sense of the
word. In its purpose and effect, defendants’ booth rule focuses
on the realities of speech that does “no more than propose a
commercial transaction.” Va. Pharmacy Bd. v. Va. Consumer
Council, supra, 425 U.S. at 771 n. 1. It seeks to guarantee the
fair goer that the speaker meets the fundamental societal stand-
ard of being authentic and honest when dealing in commercial
transfers. Thus, the booth rule serves to accurately identify the
purveyor and his wares. The commercial speaker is in the best
position to verify who they are and what they sell, and it is rea
sonable for the state to enact regulations which force such dis-
closures. Due to the “hardiness” of commercial speech, there
is little chance of the state chilling First Amendment rights by
its more watchful supervision of commercial activity in a booth.
At the same time, since such speech is more objective there is
less reason to tolerate it being inaccurate for fear that the
speech will be silenced. Thus, the booth restriction, by requir-
ing that a commercial message appear in its truthful form
through “additional information, warnings, and disclaimers,”
serves to protect society from deception. In fact the govern-
ment intrusion on plaintiffs First Amendment rights is minimal
since “{i]t is not difficult to choose statements, designs, and
devices which will not deceive.” Id.
A47
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
In the words of Justice Jackson:
A common-sense test as to whether the Court has
struck a proper balance of these rights is to ask what the
effect would be if the right given to these Witnesses
should be exercised by all sects and denominations. If
each competing sect in the United States went after the
householder by the same methods, I should think it in-
tolerable. If a minority can put on this kind of drive in
a community, what can a majority resorting the same
tactics do to individuals and minorities? Can we give to
one sect a privilege that we could not give to all, merely
in the hope that most of them will not resort to it? Reli-
gious freedom in the long run does not come from this
kind of license to each sect to fix its own limits, but comes
of hard-headed fixing of those limits by neutral authority
with an eye to the widest freedom to proselyte compatible
with the freedom of those subject to proselyting pressures.
Douglas v. Jeannetie, 319 US. 157, 180 (1943). It is obvious
that it would be “intolerable” if we permitted a majority to
resort to the same tactics employed by the Krishnas. Today the
court has allowed the setting of reasonable limits on their be-
havior for the future. Let there be no doubt, the court does
this, not because plaintiffs’ habits or beliefs are shockingly
different, but rather because plaintiffs’ continued actions,
under the credible evidence, resemble other segments of society
whose anti-social behavior has never been tolerated by the law.
Based upon the findings of facts and conclusions of law
stated above, plaintiffs’ complaint is hereby dismissed.
It is so ordered.
Dated: August 25, 1980
Syracuse, New York
s/ HOWARD G. MUNSON
Howard G. Munson
Chief U.S. District Judge
i. |
*%
A48
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
FOOTNOTES
1 Douglas v. Jeannette, 319 U.S. 157, 179 (1943).
2 Emerson, The System of Freedom of Expression (1970)
p. 10.
3 Id. at 11.
4 Douglas v. Jeannette, 319 US. at 182.
5 Id, at 179.
6 See Exhibit A attached hereto.
A49
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
(Definition of activity)
ss
ISKCON members will be engaged in a religious practice
of:
a. talking to or otherwise communicating with third
parties about their religious views.
b. disseminating religious materials including maga-
zines, books, cards, records and other information.
c. presenting gift-greeting items such as sanctified
flowers and candy -- or incense sticks and other
small items.
d. requesting and accepting contributions from said
third parties for their religious literature , est» »lish-
ments and programs.
(Registration, liaison and fees)
2.
ISKCON will provide a liaison to provide the informa-
tion indicated herein and represent the society in any
other necessary communications with any appropriate
fair, security and government officials (city, county or
state).
ISKCON’s public affairs office may be called collect in
case the liaison cannot be located at a time of needed
communication. The liaison will provide this number.
ISKCON members will register in person or by phone at
the beginning of each fair, show or event giving names
and ages of members and times and places of activity to
appropriate police officials, (changes will be reported
immediately );
ISKCON members as referred to herein means only
those persons designated as such by the liaison not
others.
ISKCON members will present to appropriate state offi-
cials copies of ISKCON’s State and IRS tax exempt cer-
tificates to prove the legitimacy of their society.
Exhibit A
7.
A50
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
ISKCON members will pay all fees charged at the fair/
event.
(Manner of activity)
8.
10.
+e
12.
13.
ISKCON members will engage in said activities in a
peaceable manner and without harassment to the public.
Likewise, ISKCON members are entitled to due protec-
tion from harassment by the public, (including persons
patronizing the fair/event, parties and their agents, con-
tracted to run fair/event attractions and parties and
their agents renting fair/event booths or facilities) as
afforded by applicable Federal, State and local laws re-
specting breach of the peace, harassment, libel and
slander etc...
ISKCON members while performing the activities des-
cribed herein, will not be interferred with in any way by
any fair/event, or involved government, agency, agents
or employees.
ISKCON members will be issued with standard ISKCON
LD. cards and will wear them in a visible manner;
ISKCON members will in no way express that any fair
or government agency or any organization other than
ISKCON is sponsoring and/or connected with their
activities.
ISKCON members will not massively distribute hand
bills which may lead to littering, our smallest literature
being a substantial magazine given only to those agree-
ing to take it;
ISKCON members will not install or cause to be in-
stalled any type of structure such as but not limited to
counters, tables, chairs and signs, unless a special request
is made and approved;
Exhibit A
A51
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
14. ISKCON members, no more than two at a time, will ap-
proach and engage in said activities, any individual per-
son or party unless consented to by that party;
15. ISKCON members will not engage in any deliberate
touching of unconsenting persons;
16. ISKCON members will not use any sound amplification.
(Place of activity and number of representatives)
17. ISKCON members will not perform said activities at any
area not open to the general public and specifically not
in private concession areas and other areas rented by pri-
vate parties;
18. ISKCON members may engage in said activities in build-
ings open to the public only as follows:
a. At open lobbies and hallways;
b. At exhibition areas -- at locations at least 10 feet
from any exhibit or booth;
c. Not in any stairs
d. Not in the seating areas of any arena, lecture or
performance facility.
19. ISKCON members will not perform said activities with
people engaged in sitting and watching a performance
or other special attraction, or waiting in a ticket line,
coat line or refreshment line unless prior unsolicited
consent in expressed.
20. ISKCON members will not operate directly in front of
any entrances /exits to the fair/event or any entrances/
exits to any buildings. Directly in front, means here.
no closer than 15 feet from the main entrances/exits
and 10 feet from all others.
Exhibit A
A52
APPENDIX A — Memorandum-Decision and Order of
Munson, J., dated August 25, 1980.
21. ISKCON, by its liaison or public affairs office only, may
agree to further limitation of the locations of said acti-
vities (after discussing with appropriate officials, re-
ferred to herein) if the need for such is clearly demon-
strated, to safeguard a legitimate fair/event function or
interest.
Exhibit A
7%
A53
APPENDIX B — Decision of United States Court of Appeals,
Second Circuit, dated August 28, 1980.
80-7709
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a stated Term of the United States Court of Appeals for
the Second Circuit, held at the United States Courthouse in the
City of New York, on the 28th day of August, one thousand
nine hundred and eighty.
Present:
HONORABLE WALTER R. MANSFIELD,
HONORABLE AMALYA L, KEARSE,
Circuit Judges.
INTERNATIONAL SOCIETY FOR KRISHNA CON-
SCIOUSNESS, INC. AND, ON BEHALF OF THEM-
SELVES AND ALL INTERNATIONAL SOCIETY FOR
KRISHNA CONSCIOUSNESS MEMBERS, AND ALAN
ATTIAS, A/K/A AJA DASA, AND KENNETH LL.
SOLOMON, A/K/A KESIHANTA,
Plaintiffs-Appellants
vz.
. ROGER BARBER, in his official capacity as Commissioner
of the DEPT. OF ‘AGRICULTURE AND MARKETS OF
THE STATE OF NEW YORK, and THOMAS G.
YOUNG, Director of the N.Y. State Industrial Exhibit
Authority, and JAMES G. GARLICK, Acting Director
of the N.Y. State Industrial Exhibit Authority,
Defendants-Appellees.
80-7709
UNITED STATES COURT OF APPEALS
FILED
AUG 28 1980
A. DANIEL FUSARO, CLERK*
SECOND CIRCUIT
A54
APPENDIX B — Decision of United States Court of Appeals,
Second Circuit, dated August 28, 1980.
In support of plaintiffs’ appeal from a judgment of the Dis-
trict Court for the Northern District of New York entered by
Chief Judge Howard G. Munson on August 25, 1980, dis-
missing their complaint filed pursuant to Title 42 U.S.C.
§ 1983 seeking on First Amendment grounds to enjoin enforce-
ment of New York State Fair booth regulations adopted by
the defendants which impose conditions on solicitation of funds
at the Fair, application of which restricts plaintiffs to fund
solicitation from booths, plaintiffs move to stay enforcement
of the judgment and for a preliminary injunction allowing them
to circulate and solicit money freely at the Fair.
The motion is denied. The district court’s detailed findings
(contained in Judge Munson’s thorough 42-page decision) of
fraudulent and disruptive conduct by plaintiffs’ representatives
at the Fair lend support to defendants’ contention that under
the circumstances the regulations as applied in this case may
constitute a reasonable exercise of the state’s police power in
the interest of public safety and welfare.
Moreover, to grant the motion would be summarily to reverse
the district court. Such hasty action is unjustified. Our de-
cision does not intimate any views as to the ultimate merits
of the appeal itself.
s/ WALTER R. MANSFIELD
WALTER R. MANSFIELD
s/ AMALYA L. KEARSE
AMALYA L. KEARSE
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.