Petition for Writ of Certiorari — City of St. Louis v. Jamison
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87 -948 |. Supreme Court, U.S,
FILED
No. OEC 9 ET
Lal JOSEPH E SPANIOL, JR,
"y CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1987
City OF St. Louis,
Petitioner,
VS.
Jesse WOODSON JAMISON,,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
JAMES J. WILSON
City Counselor
* JULIAN L. BUSH
Assistant City Counselor
ELKIN L. KISTNER
Assistant City Counselor
314 City Hall
St. Louis, Missouri 63103
(314) 622-3361
Attorneys for Petitioner
*Counsel of Record
St. Louis Law Printing Co., Inc... 411 No. Tenth Street 63101 314-231-4477
QUESTIONS PRESENTED
1. Is the interior of a municipal airport terminal a nonpublic
forum if the consistent practice of the officials who operate the
airport has been to deny all requests for permission to protest or
solicit in the airport terminal and those officials have only
allowed such protest or soliciation when so compelled by court
order?
2. If the interior of a municipal airport terminal is a public
forum, may the officials who operate the airport nevertheless
prohibit a person who suffers from a manic-depressive mental
disease that is associated with violent behavior and who has ac-
cess to a firearm from protesting in the terminal at the mouth to
one of its concourses?
il
PARTIES BELOW
The parties to the proceedings below were the petitioner City
of St. Louis and Leonard L. Griggs, Jr., defendants and
appellees/cross-appellants, and respondent Jesse Woodson
Jamison, nee Wurm,* plaintiff and appellant/cross-appellee.
Griggs served as the City’s Director of Airports at the time of
the events that gave rise to this lawsuit; because he no longer oc-
cupies that position, he does not join in this petition for a writ
of certiorari.
* Respondent initiated this lawsuit under the name Jesse Wurm.
During the course of proceedings in District Court, Wurm obtained a
Missouri state court order changing his name to Jesse Woodson
Jamison. See the District Court Memorandum, reprinted in the Ap-
pendix hereto, p. A-14 n.1, infra.
77 HTB,
og seit 2
ili
TABLE OF CONTENTS
ESC OEE EE Cee ETE LETT
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Constitutional Provisions, Statutes and Regulations ..
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Reasons for Granting the Petition for A Writ of
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Nd eee ewe a wens
Appendix A (Opinion and Judgment of the United
States Court of Appeals for the Eighth Circuit,
Order and Memorandum of the United States
District Court for the Eastern District of Missouri,
and Lambert Airport Solicitation Rule)..........
TABLE OF AUTHORITIES
Page
Cases cited:
Board of Airport Commissioners of the City of Los
Angeles v. Jews For Jesus, Inc., 482 U.S. ____, 96
Me i rag ret ae wearers corm in Pepe 8,10,11
Chicago Area Military Project v. City of Chicago, 508
fh ge Cs rg ee eer ee eee a 9
Cornelius v. NAACP Legal Defense and Educational
Fund, Inc., 473 U.S. ___, 87 L.Ed.2d 567 (1985). 10,12,13
Cox v. Louisiana, 379 U.S. 536 (1965) ............... 13
Fernandes v. Limmer, 663 F.2d 619 (Sth Cir. 1981)..... 8,13
Jews For Jesus, Inc. v. Board of Airport Comm’rs, 785
Pee Pee GE IN io 9 bons Sek hae ones cau: 8
Members of the City Council v. Taxpayers for Vincent,
PEs FEES ook none dk anew ane hawaii ées 12,15
Minnesota Bd. for Community Colleges v. Knight, 465
State MERA sid gs VA ea wok baee meee ee Ke 1]
Perry Ed. Ass’n. v. Perry Local Educators’ Ass’n. 460
Rae Ss occt os kun coke ous eet 11,12,13,14,15
Tinker v. Des Moines Indep. Community School Dist., i.
Se ie I scien dk ena Matsa ae ss.s Jeates 15
United States v. Albertini, 472 U.S. 675 (1985) ........ 12,15
United States Southwest Africa/Namibia Trade &
Cultural Council v. United States, 708 F.2d 760
oF St a RS Ay Ae Bee, ihr er Mae are al ee 8
Constitution, statutes and regulations cited:
U.S. Constitution, Amendment! ..............-+--: 4
U.S. Constitution, Amendment XIV ...........-.--- 4
TUNE 7 ot |. Sarr er coe rs corr. 3
Pht Tt DOr are rem r era ry er set 4
United States Supreme Court Rule 17..........--.--- 9,10
Federal Rule of Civil Procedure 52(a) ..............-.- 15
Lambert-St. Louis International Airport Rule 1.05
(the Solicitation Rule)...........-.6-0 esse eens 5,6,14
No.
IN THE
Supreme Court of the United States
OcTOBER TERM, 1987
City OF Sr. Lous.
Petitioner,
VS.
Jesse WOODSON JAMISON.,,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Comes now the City of St. Louis, petitioner, and respectfully
prays that a writ of certiorari be issued to review the judgmen'
of the United States Court of Appeals for the Eighth Circuit fil-
ed in this case September 10, 1987.
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Eighth Circuit in this case is reported at 828 F.2d 1280, and is
reprinted in the Appendix hereto, p. A-1, infra.
The memorandum, decision and order of United States
District Court for the Eastern District of Missouri has not been
reported. It is reprinted in the Appendix hereto, p. A-12, infra.
—2—~_
JURISDICTION
The judgment of the Court of Appeals was filed September
10, 1987. This Court has jurisdiction to review that judgment
under 28 U.S.C. §1254(1).
CONSTITUTIONAL PROVISIONS, STATUTES
AND REGULATIONS
U.S. Const., Amdt. I provides:
U.S.
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridg-
ing the freedom of speech, or of the press, or the right of
the people peaceably to assemble, and to petition the
government for a redress of grievances.
Const., Amdt. XIV provides in pertinent part:
Section 1. All persons born or naturalized in the United
States and subject to the jurisdiction thereof are citizens of
the United States and of the state wherein they reside. No
state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States,
nor shall any state deprive any person of life, liberty or
property without due process of law, nor deny to any per-
son within its jurisdiction the equal protection of the laws.
Section | of the Civil Rights Act of 1871 (the ‘‘Ku Klux Klan
Act’’), 17 Stat. 13, 42 U.S.C. §1983, provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory,
subjects or causes to be subjected, any citizen of the
United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or im-
munities secured by the Constitution and laws, shall be
liable to the party injured in any action at law, suit in equi-
ty, or other proper proceeding for redress.
~~ wre
~~ pe
The text of Rule 1.05, the *‘Solicitation Rule’’ of the City of St.
Louis Airport Commission, is set forth in the Appendix hereto,
p. A-24, infra.
STATEMENT OF THE CASE
On April 16, 1984, Trans World Airlines (“*TWA’’) discharg-
ed Jesse Jamison from his employment at Lambert-St. Louis In-
ternational Airport (‘‘Lambert Airport’’), which is owned and
operated by the City of St. Louis (*‘City’’), due to Jamison’s af-
fliction with a serious mental illness. App. p. A-2, 15, infra,’ Tr.
7,51.2. While Jamison was a TWA employee, a federal grand
jury indicted him under 18 U.S.C. §1542 for the offense of ap-
plying for a passport under a false name. No. 84-76 (CR)
(E.D.Mo. April 19, 1984). The United States District Court for
the Eastern District of Missouri dismissed that charge on May
31, 1984 because it determined that Jamison ‘‘could not ap-
preciate the nature, quality and wrongfulness of the conduct
charged in the indictment.’’ App. p. A-16, infra.
After his discharge from TWA, Jamison sought permission
from the Director of Lambert, Leonard L. Griggs, Jr., to pro-
test against TWA in the Lambert Airport terminal, at the mouth
of the terminal’s busiest concourse. App. p. A-2, 15, infra; Tr.
65. In a letter to Jamison dated June 29, 1984, Griggs denied
_ Jamison’s request. That denial was entirely consistent with
Griggs’ unwavering practice of routinely denying all requests to
protest or solicit in the Lambert Airport terminal. App. p. A-S5,
infra. The only persons permitted to protest or solicit with-
Hereinafter, references to the Appendix hereto shall be to **App *’
* References herein to tacts of record not fully documented by the
opinion of the Court of Appeals or the Memorandum decision of the
District Court (both of which are reprinted in the Appendix hereto),
are to the transcript of the testimony adduced at trial. That transcript
is part of the record in the Court of Appeals. al
EDITOR'S NOTE
THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING, IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
WILT. BR ISSUED,
— a
in the Lambert Airport terminal belong to one of two groups
which hold court orders compelling Griggs to allow their
members to solicit there. Id. Moreover, Griggs’ awareness that
Jamison suffered from a severe psychological disorder, that he
had been indicted for the federal offense of filing for a passport
under a false name and that that indictment had been dismissed
because a federal judge had concluded that Jamison was men-
tally incompetent to understand the nature, quality and
wrongfulness of a criminal offense, convinced Griggs that to
allow Jamison to protest in the Lambert Airport terminal would
constitute a dereliction of Griggs’ duty to protect the safety of
the travelling public. App. at p. A-_, infra.’
On March 7, 1985, Jamison filed the complaint initiating this
lawsuit in the United States District Court for the Eastern
District of Missouri. Jamison brought this civil rights action for
declaratory and injunctive relief under 42 U.S.C. §1983 against
Griggs and the City of St. Louis (“‘City’’), claiming that the
denial of his request to protest in the Lambert Airport terminal
violated the freedom of speech rights he enjoys under the First
and Fourteenth Amendments to the United States Constitution.
After a non-jury trial, the district court issued an order on
July 17, 1986, declaring that the process by which the City and
Griggs determined who may protest at Lambert Airport violates
the First Amendment and enjoining them from utilizing that
process in the future. The judgment, however, denied
Jamison’s request for an injunction requiring the City and
Griggs to allow Jamison to protest in the Lambert Airport ter-
minal App. p. A-12, infra.
> Griggs testified at trial that various federal laws require airport
operators to monitor and exercise caution concerning persons who ex-
hibit unusual behavior patterns. Tr. 73. He also testified that
Lambert Airport’s security force would investigate any person loiter-
ing and behaving strangely in the terminal and would attempt to have
him or her arrested by the local police and removed from the terminal
if the person could not adequately explain his or her presence. Tr. 70.
et EO
a
In a memorandum accompanying its order, the district court
noted the existence of a set of rules purportedly governing
solicitation and protest at Lambert Airport (‘‘Solicitation
Rule’). App. p. A-15, infra. The district court found,
however, that Griggs denied requests to protest and solicit at
Lambert Airport as a matter of course without regard to the
Solicitation Rule. The district court also assessed the results of
a psychiatric evaluation of Jamison that it had ordered. App.
p. A-10, n.7, infra. The court specifically found that ‘‘Jamison
has a long history of psychiatric disorders. He has a manic
depressive personality and suffers from severe mood swings,
ranging from deep depression to unrealistic elation.’’ App. at
p. A-16. It further found that Jamison had access to a firearm,
and that Griggs denied his request to protest at least partially
because of his concern about Jamison’s mental disorder. Id.
The district court ultimately determined that Jamison was
potentially dangerous. App. p. A-20, infra.
In its conclusions of law, the district court determined that
the interior of Lambert Airport terminal is a public forum at
which First Amendment activity, such as protest and solicita-
tion, must be allowed.* App. p. A-17, infra. Based on its conclu-
sion that the Lambert Airport terminal is a public forum, the
district court held that Griggs’ practice of independently deny-
ing protest and solicitation requests, without reference to the
Solicitation Rule, violated the First Amendment.
The district court reasoned, however, that the foregoing con-
clusion did not necessarily compel the further conclusion that
Jamison enjoys the right to protest in the Lambert Airport ter-
minal. To the contrary, the district court explained that pro-
hibiting Jamison from protesting in Lambert Airport is a
reasonable time, place or manner restriction:
* The district court apparently did not base its conclusion that the
Lambert Airport terminal is a public forum on any evidence adduced
at trial; rather, it merely opined that pubic places such as the terminal
are ordinarily public fora. App. p. A-17, infra.
—_ yon
The exclusion of mentally incompetent persons whose
presence might pose a danger to others satisfies the re-
quirement that the restriction be content neutral and in-
tended to further a significant state interest. Airport of-
ficials have a legitimate interest, indeed a responsibility, to
protect persons at airports from mentally ill people. Fur-
ther, the exclusion of plaintiff from the airport leaves him
other avenues of protest, albeit some not as efficacious as
the course of action he proposes.
App. p. A-20-21, infra. The district court therefore held that
‘‘Jamison, due to his severe chronic manic/depressive condi-
tion, does not have the right to protest at Lambert [Airport].’’
Id. =
Jamison appealed from that part of the district court judg-
~ ment denying him personal injunctive relief; the City and Griggs
cross-appealed from that part of the judgment holding that the
interior of the Lambert Airport terminal is a pubic forum.
The Court of Appeals for the Eighth Circuit, in an opinion
authored by Chief Judge Lay, affirmed the district court’s rul-
ing that the Lambert Airport terminal is a public forum and that
the procedure employed by the City and Griggs for determining
requests to protest or solicit in the terminal was unconstitu-
tional. It reversed, however, that part of the district court judg-
ment denying Jamison personal injunctive relief.
The Court of Appeals cited two factors in support of its con-
clusion that the Lambert Airport terminal is a public forum.
First, it reasoned that the City’s Solicitation Rule constituted an
implicit acknowledgement of the compatibility of first amend-
ment activities with the terminal’s purposes, and deduced that
the City had ‘‘effectively recognized the public forum status of
the unrestricted areas of its airport.’’ App. p. A-5-6, infra.
Second, the Court of Appeals noted that ‘‘every court that has
decided the issue has held that an airport is a public forum,’’
App. p. A-6, infra, reciting the analysis commonly
a Oi
employed in those decisions that likens the physical, commercial
and unrestricted public access characteristics of an airport ter-
minal to those of a ‘‘busy street.’’ App. p. A-7, infra.
Having made the predicate determination that the Lambert
Airport terminal is a public forum, the Court of Appeals con-
cluded that Griggs’ practice of excluding all protestors and
solicitors, save those who carry a court order, from the interior
of the terminal, was unconstitutional. The court believed that
such a practice was unconstitutional because it vested excessive
discretion in Griggs to determine the extent to which the public
could use the interior of the Lambert Airport terminal as a First
Amendment stage. Moreover, the court was unable to identify
any governmental interest that would justify such a broad exclu-
sion of protesting and soliciting in a public forum. App. p.
A-8-9, infra.
As to its reversal of the district’s denial of Jamison’s request
for personal injunctive relief, the Court of Appeals essentially
disagreed with trial judge’s factual finding that Jamison’s men-
tal disorder substantially and intolerably increased Jamison’s
propensity for dangerous conduct. App. p. A-9-10 & n.7, in-
fra.‘ The court then held that Jamison’s exclusion from the
Lambert Airport terminal constituted an unlawful prior re-
straint, finding this Court’s decision in 7inker v. Des Moines In-
dep. Community School Dist., 393 U.S. 503 (1969) controlling.
App. p. A-10.
* Moreover, the Court of Appeals extrapolated from the district
court’s ruling that Jamison’s exclusion from Lambert was a
reasonable time, place and manner restriction a far broader holding:
‘*The district court apparently endorsed a complete prohibition [to]
preven[t] mentally incompetent persons from protesting at Lambert
Field.”’ App. p. A-9-10, & n.6, infra. The district court order and
memoranda, however, are not susceptible to such a broad construc-
tion; to the contrary, the district court properly confined its focus to
the question whether Jamison’s individual and peculiar characteristics
warranted his exclusion from the Lambert Airport terminal.
a yon
REASONS FOR GRANTING THE PETITION
FOR A WRIT OF CERTIORARI
This Court should grant this petition for a writ of certiorari
because this case presents this Court with the opportunity to
decide whether the terminal of a municipal airport constitutes a
traditional public forum. That is one of the issues on which this
Court granted certiorari in Board of Airport Commissioners of
the City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. ___,
96 L.Ed.2d 50 (1987), but was unable to reach due to the
substantial overbreadth of a regulation applicable to the airport
in question that purported to control the exercise of First
Amendment freedoms. This Court concluded that regardless of
whether the central terminal of the Los Angeles International
Airport (‘‘LAX’’) was a public forum or a nonpublic forum,
the regulation in question was unconstitutional because it ‘‘pur-
ports to create a virtual ‘First Amendment Free Zone’ at
LAX,”’ a ban that would be unconstitutional in even a non-
public forum. Id., 482 U.S. at ____, 96-+L.Ed.2d at 507-508.
This case, however, squarely poses the issue of whether the in-
terior of a municipal airport terminal is a public forum, and is
free of any latent obstacle to this Court’s resolution of that
question.
Furthermore, the Eighth Circuit’s conclusion in this case that
the terminal of a governmentally owned and operated airport is
a public forum places it in league with the Fifth, Seventh, Ninth
and District of Columbia Circuits of the United States Court of
Appeals; concededly, the result is that every circuit that has ex-
amined the question has held that airport terminals are public
fora to which the public has a right of access solely for First
Amendment activity purposes. Jews for Jesus, Inc. v. Board of
Airport Comm'rs, 785 F.2d 791, 795 (9th Cir. 1986), aff’d on
other grounds, 482 U.S. , 96 L.Ed.2d 500, 107 S.Ct. _.
(1987); United States Southwest Africa/Namibia Trade &
Cultural Council v. United States, 708 F.2d 760 (D.C. Cir.
1983); Fernandes v. Limmer, 663 F.2d 619 (Sth Cir. 1981);
ab an
Chicago Area Military Project v. City of Chicago, 508 F.2d 921
(7th Cir.), cert. denied, 421 U.S. 992 (1975).
Thus, this is not an instance in which an unacceptable conflict
among the circuits on an important matter ‘‘calls for an exercise
of this Court’s power of supervision.’’ Supreme Court Rule
17.1(a). Instead, even more compelling reasons suggest that this
Court should review on writ of certiorari the judgment of the
Eighth Circuit in this case. The Fifth, Seventh, Ninth, District
of Columbia, and now the Eighth, Circuits have decided that
governmentally owned or operated airport terminals are public
fora, an issue of critical importance not only to airport |
operators nationwide, but to the travelling public, which is in-
creasingly dependent on the safe and efficient operation of air-
ports for its transportation needs. The conclusion these courts
of appeals have reached on this issue conflicts with several re-
cent decisions by this Court. Those Supreme Court decisions
confirm and elaborate upon governments’ right to prohibit per-
sons and groups from using public property as a First Amend-
ment forum if the property in question lacks a traditional
association with, and has not been dedicated to, assembly and
debate.
More importantly, the Eighth Circuit’s reasoning in reaching
the conclusion that the Lambert Airport terminal is a public
forum in substantially inconsistent with the mode of analysis
this Court has fashioned in its decisions establishing the
substance and countours of the public forum doctrine. Thus,
the harm that the Eighth Circuits’ decision in this case will cause
is not confined to its precedential effect in future cases concern-
ing the public’s right to utilize governmental airport property
for free speech activities; future litigants and courts may rely on
its rationale to justify treating other governmental buildings as
public fora even though those buildings are designed and used
by their governmental owners or operators for purposes com-
pletely unrelated to First Amendment activities. In deciding
whether to grant a writ of certiorari in this case, this Court
a Pe
should also consider the profusion of lower federal court deci-
sions upon which the Eighth Circuit relied in concluding that
the Lambert Airport terminal is a public forum. Those deci-
sions share the analytical infirmities that plague the Eighth Cir-
cuits’s decision. Thus, what has evolved is a line of lower
federal court decisions that blatantly disregard this Court’s
teachings on the public forum doctrine.
Rather than faithfully applying the principles that this Court
has carefully crafted, the lower courts use one another’s deci-
sions as crutches to support the false proposition that airport
terminals are public fora. A careful inspection of these cases
reveals that the lower courts typically rationalize this result by
parroting faulty reasoning contained in earlier decisions. The
Eighth Circuit’s decision below is archetypical of this problem.
Thus, that decision threatens to add yet another stone to the
growing wall of lower federal court case law that separates
proper public forum doctrine treatment and the rapid judicially
fueled conversion of our nation’s airport terminals into protest
and solicitation stages. The writ of certiorari this netition seeks
should issue so that this Court may render an authoritative deci-
sion explaining the proper application of the public forum doc-
trine to the interiors of airport terminals and similar govern-
mentally owned or operated facilities. Supreme Court Rule
17.1(c). S
1. There Is No Basis, Factual Or Otherwise, To Support
The Conclusion That The Terminal At Lambert Airport Is
A Public Forum.
This Court has fashioned a forum analysis for reconciling the
oftimes competing interests of the government in limiting the
use of its property and that of those members of the public who
wish to use that property for expressive activity. See, e.g., Jews
for Jesus, supra, 96 L.Ed.2d at 506; Cornelius v. NAACP Legal
Defense and Educational Fund, Inc., 473 U.S. ___, 87
L.Ed.2d 567, 578 (1985). For the purpose of public forum
analysis, three discrete categories of fora exist: the traditional
public forum; the public forum created by government designa-
tion; and the nonpublic forum. In a traditional public forum or
a public forum by government designation, ‘‘the government
may not prohibit all communicative activity.”’ Jews for Jesus,
supra, 96 L.Ed.2d at 506 (quoting Perry Ed. Ass’n. v. Perry
Local Educators’ Ass’n., 460 U.S. 37, 45 (1983)). In a non-
public forum, however, the government may preserve the pro-
perty for its intended uses and may substantially restrict com-
municative activity. E.g., Jews for Jesus, supra, 96 L.Ed.2d at
506.
The Eighth Circuit’s conclusion that the Lambert Airport ter-
minal is a public forum lacks sound analytical moorings because
that court failed to explain or even question whether the ter-
minal acquired that status by virtue of tradition or government
designation. That deficiency is underscored by the Eighth Cir-
cuit’s complete failure to even note the distinction. To the
minimal extent the Eighth Circuit analyzed the public forum
issue, it seemed to mix the distinct factual inquiries that are ap-
propriate for determining the existence of the two respective
types of public fora, the traditional public forum and the public
forum by government designation.* App., p. A-5-7, infra.
The Eighth Circuit’s omission to maintain this distinction is not
merely academic, for it is one that is essential to the public
forum doctrine. This petitioner respectfully suggests that the
Eighth Circuit’s failure to distinguish the two categories of
* Logically, some factual findings are required to support a conclu-
sion that government property has a long tradition of devotion to
assembly and debate.or that government property has been dedicated
to assembly and debate. See Minnesota Bd. for Community Colleges
v. Knight, 465 U.S. 271, 281 (1984) (absence of district court findings
on these questions negates conclusion that public forum exists).
— -
public fora substantially explains its incorrect conclusion that
the Lambert Airport terminal is a public forum.’
The Record Is Barren Of Facts Indicating That The
Lambert Airport Terminal Has A Long Tradition
Of Devotion To Assembly And Debate.
The district court made no factual finding regarding the ex-
istence of a tradition of assembly and debate at the Lambert
Airport terminal and, indeed, the record is barren of facts that
would point to such a tradition.* Furthermore, it would be im-
possible to develop such a record because the Lambert Airport
terminal (and airport terminals in general) quite simply lack the
historical association with assembly and debate that is the lone
element essential to the existence of a traditional public forum.
Perry Educ. Ass’n., supra, 460 U.S. at 804.
This Court has never specifically identified as a traditional
public forum any species of public property other than a park,
street or sidewalk. See Cornelius, supra, 87 L.Ed.2d at 580;
Members of the City Council v. Taxpayers for Vincent, 466
” The fact that the Eighth Circuit would make this elementary error
in public forum analysis dramatically highlights the need for
authoritative guidance by this Court in this area.
* The Eighth Circuit's comparison of the Lambert Airport terminal
to “‘a busy city street’’ perhaps suggests an unspoken characterization
of the terminal as a traditional public forum. App. p. A-7. in-
fra, The Eighth Circuit completely failed, however, to address
whether the terminal was imbued with a tradition of assembly or
debate; instead, it focused on a vague physical similarily between air-
port terminals and city streets, emphasizing the public nature of the
---property. /d. That analysis is irrelevant to the question whether the
terminal is a traditional public forum. This Court has repeatedly
denied that government property becomes a public forum merely by
virtue of its accessibility to the public. See, e.g., United States vy.
Albertini, 472 U.S. 675, 686 (1985).
— ve
U.S. 789, 792-93 (1984). In stark contrast to parks, streets and
sidewalks, which have a unique tradition as sites for assembly
and debate, airport terminals have traditionally been devoted to
one purpose only; i.e., to serve as a safe, efficient and pleasant
nexus for air and ground modes of transportation. Therefore,
the Lambert Airport terminal is not a traditional public forum.
The Record Does Not Support A Conclusion That
The Lambert Airport Terminal Has Been Designated
For Use As A Forum For Assembly And Debate.
This Court has stated quite plainly that government officials
do not designate a public forum unless they have opened it ‘‘for
indiscriminate use by the public’’ as a stage for communicative
activity. Perry Educ. Ass’n., supra, 460 U.S. at 47. See also
Cornelius, supra, 87 L.Ed.2d at 580 (government does not
designate ‘‘a public forum by inaction or by permitting limited
discourse, but only by intentionally opening a non-traditional
forum for public discourse’’) (emphasis added). It is uncon-
trovertible that City officials have not designated the Lambert
Airport terminal as a public forum. The Eighth Circuit
specifically noted that the City has ‘‘refused a// requests to pro-
test or solicit except those accompanied by a court order.’’ App.
at p. A-S.
The Eighth Circuit pointed, however, to the fact that the
Solicitation Rule at Lambert Airport had not been rescinded at
the time Jamison sought to protest as indicating the City’s
recognition of Lambert Airport as a public forum. App. pp.
A-4, 5-6, infra. The mere existence of the Solicitation Rule is
nothing more than a false issue. The record shows that the
City’s actual policy and practice has been to resist every attempt
to use the Lambert Airport terminal as a first amendment plat-
form.’ This is precisely the opposite of what is required for the
* The relevant inquiry focuses not on the written rules regulating
First Amendment activity, but on government's actual practice. See
Cox v. Louisiana, 379 U.S. §36, $56-57 (1965).
ip 00 en
designation of a public forum, Perry Educ. Ass'n, supra, 460
U.S. at 47.'° Moreover, even if the initial effect of City of-
ficials’ promulgation of the Solicitation Rule was to designate a
public forum, the City closed that forum by adopting and im-
plementing a policy of denying all protest and solicitation re-
quests. /d. at 46.''
The confusion concerning the relevance of a ‘‘dead-letter’’
solicitation rule that the Eighth Circuit's decision wil! cause pro-
vides another compelling reason for this Court to grant cer-
tiorari here. This case will not only provide it the opportunity to
determine whether an airport terminal may constitute a tradi-
tional public forum, but the circumstances under which govern-
ment officials may have designated a terminal as a public
forum.
2. The Court Of Appeals Improperly Overturned The
District Court’s Factual Finding That Jamison’s Severe
Mental Disorder Substantially And Intolerably Increases
Jamison’s Propensity For Dangerous Conduct. Even If
The Lambert Airport Terminal Is A Public Forum, The
District Court Correctly Concluded That Jamison’s Exclu-
sion From The Lambert Airport Terminal For Protest Pur-
poses Is A Valid Time, Place And Manner Restriction.
Even if one assumes that the Lambert Airport terminal is a
public forum, the City may still impose time, place and manner
restrictions On expressive activities in the terminal. Such restric-
tions must be ‘‘content-neutral, . . . narrowly tailored to serve
© This Court should recognize the practical reality that the Solicia-
tion Rule was adopted only in the face of incorrect federal precedent
holding airport terminals to be public fora.
'' If the Lambert Airport terminal was neither a traditional public
forum nor a public forum by designation, the City was free to exclude
all protestors and solicitors from its confines, including Jamison.
Perry Educ, Ass’n., supra, 460 U.S. at 46.
=
a significant government interest, and leave open ample alter-
native channels of communication.’’ Perry Educ. Ass’n.,
supra, 460 U.S. at 45. The district court specifically found that
Jamison suffered from a ‘‘severe chronic manic/depressive con-
dition’’ and that his presence in the Lambert Airport terminal
may pose a danger to the public. App. p. A-21, infra. The
District Court properly concluded that prohibiting Jamison
from protesting in the Lambert Airport terminal furthers the Ci-
ty’s interest in protecting the safety of the travelling public. /d.
p. A-21, infra. Moreover, the fact that such a restriction
results in Jamison’s complete exclusion from the forum in
which he wishes to protest is constitutionally acceptable. Tax-
payers for Vincent, supra, 466 U.S. at 790 (absolute prohibition
of posting signs on public property is not overbroad because the
prohibition must be complete to achieve its content-neutral pur-
pose). See also Albertini, supra, 86 L.Ed.2d at 547. Here,
Jamison’s complete exclusion from the interior of the Lambert
Airport terminal is necessary to adequately ensure the safety of
the travelling public. It is likewise readily apparent that a pro-
hibition based on Jamison’s mental disorder and dangerous
proclivities is entirely content neutral. Depriving Jamison
of access to the interior of the Lambert Airport terminal
works an insignificant impairment of his ability to broad-
cast his message. He could still, for example, hold his placard
on the public sidewalks at the major exit and entrance points of
the Lambert Airport terminal.
The Eighth Circuit disagreed with the district court’s conclu-
sion that Jamison’s exclusion from protesting in the Lambert
Airport terminal is a reasonable time, place and manner restric-
tion. App. p. A-10, infra. Most particularly, it disregarded the
district court’s predicate finding that Jamison’s mental disorder
increased his potential for dangerous conduct.'’ It also con-
'* Despite its disregard of the district court’s factual finding on this
issue, the Eighth Circuit neglects to mention the clearly erroneous
standard of review applicable to such findings. F.R.Civ.P. 52(a).
——
cluded that Jamison’s exclusion constituted an unlawful prior
restraint, finding controlling this Court’s decision in 7inker v.
Des Moines Indep. Community School Dist., 393 U.S. 503
(1969). app. p. A-10, infra. Tinker, however, is inapposite to
the question whether the District Court was correct in con-
cluding that Jamison’s exclusion is a valid time, place and man-
ner restriction, because that case addressed regulation of First
Amendment conduct based on the content of the speech. /d.,
393 U.S. at 508-510.
This case therefore provides this Court with a unique oppor-
tunity. It first presents the question whether, or under what cir-
cumstances, a governmentally owned or operated airport ter-
minal is a public forum. Assuming that this Court would agree
with the Eighth Circuit that the Lambert Airport terminal is a
public forum, it then raises questions concerning the extent to
which airport officials may act to protect the safety of the
travelling public by excluding protestors or solicitors whose in-
dividual characteristics, independent of the nature of their
messages, unacceptably increase their propensities for
dangerous conduct. These questions are significant and have
not been adequately analyzed or resolved by the lower federal
courts. The need for an authoritative decision by this Court in
this area is compelling.
mn IS ie
CONCLUSION
For the foregoing reasons, this Court should issue the writ of
certiorari this petition seeks.
Respectfully submitted,
JAMES J. WILSON,
City Counselor
*JULIAN L. BUSH
Assistant City Counselor
ELKIN L. KISTNER
Assistant City Counselor
314 City Hall
St. Louis, MO 63103
622-3361
Attorneys for Petitioner
*Counsel of Record
APPENDIX
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 86-2007
Jesse Woodson Jamison,
Appellant,
Vv.
City of St. Louis;
Leonard L. Griggs, Jr.,
Appellees.
No. 86-2249
Jesse Woodson Jamison,
Appellee,
Vv.
City of St. Louis and
Leonard L. Griggs, Jr.,
Appellants.
Appeals from the United States
District Court for the
Eastern District of Missouri.
Submitted: April 17, 1987
Filed: September 10, 1987
oa ee aes
Before LAY, Chief Judge, WOLLMAN, Circuit Judge, and
BOGUE,* Senior District Judge.
LAY, Chief Judge.
These cross-appeals arise out of an action brought by Jesse
Woodson Jamison against the City of St. Louis (City) and the
director of the City’s airport. Jamison claimed that his first
amendment rights were violated when the airport director refus-
ed Jamison’s request to protest silently in an unsecured area of
the airport. The district court' held that the process by which
the defendants determine who may protest at the airport is un-
constitutional, in violation of the first and fourteenth amend-
ments. The court nevertheless upheld the alleged right of the
defendants to bar Jamison from protesting silently at the air-
port. The court awarded Jamison half of the attorney’s fees he
requested. We affirm the order declaring the defendants’ prac-
tices unconstitutional and reverse the ruling that exclusion of
the plaintiff was constitutional; we hold that plaintiff is the
prevailing party and is entitled to full attorney’s fees.
Background
Jamison was employed by Trans World Airlines (TWA) for
sixteen years, until he was fired on April 16, 1984. Jamison,
who suffers from depression, believes that his discharge was
discriminatorily based on his mental illness. After he was fired,
Jamison informed Colonel Leonard G. Griggs, Jr., director of
the city-owned Lambert-St. Louis International Airport, that he
wished to protest TWA’s action by standing in an unsecured
*The HONORABLE ANDREW W. BOGUE, Senior United States
District Judge for the District of South Dakota, sitting by designation.
' The Honorable Stephen Limbaugh, United States District Judge
for the Eastern District of Missouri, presid’ g.
mony oe
spot on an airport concourse with a sign reading ““‘TWA
discriminates against the handicapped.’’ Griggs orally indicated
that he would deny Jamison’s request. Jamison then submitted
a written request to the same effect, emphasizing the intended
peaceful nature of the protest.? Griggs denied the request in
writing without stating his reasons for doing so.’
? The full text of this letter reads as follows:
Dear Colonel Griggs,
This is a formal request for written permission to protest my
discriminatory discharge from employment with Trans World
Airlines. I would like to picket at the foot of concourse C, near
the glass wall, to be sure that I do not obstruct any passenger
traffic, which I assure you is not my intention. I also do not in-
tend to solicit funds, distribute literature, willfully engage
passengers in conversation, or cause any disturbar.:e what-so-
ever. I only desire to remain in a stationary position with a
poster in my hand, and in doing so exercise my First Amend-
ment right to freedom of speech.
Your prompt written reply to this request would be appreciated.
Very truly yours,
/s/ Jesse Wurm
> Griggs testified that he performed a brief investigation into
Jamison’s background before denying the request. According to
Griggs, the following was ‘‘his reason and basis’’ for his decision.
The information that I gleaned from talking to TWA security
people, from various other people involved in the TWA in-
vestigation, whose name I do not remember. I’m talking to the
TWA station manager and the evidence presented to me that
here we had a former TWA employee who had a known mental
disorder, and I use the word because I don’t know the lay word
to use — the depression and that. You all have stated in the
record the name of it. Based upon the fact that I had talked to
Mr. [Jamison] in my office on several occasions and told him
that — you know — based upon these sorts of things, | did not
desire to hurt Mr. [Jamison], but 1 felt I had to protect the
travelling public. Here I have before me a gentleman. He has
filed a passport for the United States of America under a false
name, who went before a Federal Court and was ordered to have
a psychiatric evaluation. All these things were told to me, so
based upon this, I felt the public could be placed in jeopardy.
aay ee
At the time of Jamison’s request, the Airport Authority had a
rule that established ‘‘procedures for the exercise of constitu-
tional freedoms and solicitation of funds’’ at the airport. Rule
1.05 states that persons or organizations desiring to exercise
constitutional freedoms ‘‘shall be protected in such activities,
provided that the same do not constitute commercial activities
and do not result in interference with transportation functions
of the Airport.’’ (Our emphasis). The second section of the
same rule stated that the rule and its accompanying regulations
were intended ‘‘[t]o insure that persons seeking to exercise con-
stitutional freedoms of expression can communicate effectively
with users of the Airport.”’
The rule further provided that
No person shall solicit alms or contributions of money or
of other articles of value, for religious, charitable or any
other purpose, or conduct or participate in any speech-
making, distributing of pamphlets, books or other written
or graphic materials upon the airport or within its facilities
without having delivered a written notice to the Director,
or [sic] his, her or its intent to do so at least seven (7) days
prior thereto so that the precautions to protect the public
health, safety and order, and to assure the efficient and
orderly use of Airport property for its primary purpose
and function, and to assure equal opportunity for the
freedom of expression of others.
Finally, the rule states that
The Director is empowered to wholly or partically restrict
the activities provided for herein in the event of emergen-
cies, including but not limited to, strikes affecting the
operation of the Airport, aircraft or traffic accidents, riots
or civil commotion, power failures, or other conditions
tending to disrupt the normal operations of the Airport.
The defendants assert that Solicitation Rule 1.05, although it
had not been repealed, was ‘‘moribund’’ at the time of
aye
Jamison’s request. Griggs testified that he did not apply the
rule in denying Jamison’s request. Instead, Griggs testified that
as director of the airport he had general discretion to disallow
any activities that in his opinion would not be in the best in-
terests of the airport or persons using it. Grigg’s unvarying
practice was to deny a// requests for permission to protest or
solicit except those accompanied by a court order.
The district court held that this procedure violates the first
amendment because it gives Griggs unlimited and standardless
discretion to determine who may protest or solicit at the airport.
The court nevertheless found that Grigg’s refusal to allow
Jamison to protest silently was a legitimate time, place, and
manner restriction, reasonably designed to protect the public
from a ‘‘mentally incompetent’”’ person.
Discussion
i. Constitutionality of Airport’s Practice
Although the government does have the ‘‘power to preserve
the property under its control for the use to which it is lawfully
dedicated,’’ Greer v. Sprock, 424 U.S. 828, 836, (1976) (quoting
Adderley v. Florida, 385 U.S. 39, 47 (1966)), the extent to which
the government may limit public access to its property depends
on whether the property is a public or nonpublic forum. Cor-
nelius v. NAACP Legal Defense and Education Fund, Inc., 473
U.S. 788, 797 (1985); Perry Education Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 44 (1983). The district court
found that the area of the airport at which Jamison wished to
protest is a ‘* ‘public place’ which, ordinarily, means it is a
‘public forum,’ where citizens may express their views.’’ Jam-
ison v. City of St. Louis, No. 85-536-C(5), slip op. at 4 (E.D.
Mo. 1986). We agree that in these circumstances the public
areas of a municipal airport constitute a public forum.
We base our decision on several factors. First, and most im-
portantly, the City of St. Louis, through its solicitation rule, ef-
— 2 oe
fectively recognized the public forum status of the unrestricted
areas Of the airport. Its regulations, designed to ‘‘insure that
persons seeking to exercise constitutional freedoms of expres-
sion can communicate effectively with users of the airport,’
stated that such persons ‘“‘shall be protected’’ in their activities.
(Our emphasis). The City’s regulations thus implicitly
acknowledged that the first amendment activities that take place
in more traditional public forums are not incompatible with the
purposes of an airport’s public concourses. Cf. Grayned v. City
of Rockford, 408 U.S. 104, 116 (1972) (‘‘crucial question is
whether the manner of expression is basically incompatible with
the normal activity of a particular place * * *’’).
Second, every court that has decided the issue has held that an
airport is a public forum. See Jews for Jesus, Inc. v. Board of
Airport Comm’rs, 785 F.2d 191, 795 (9th Cir. 1986), aff'd on
other grounds, 107 S.Ct. 2568 (1987); US Southwest
Africa/Namibia Trade & Cultural Council v. United States, 708
F.2d 760, 764-66 (D.C. Cir. 1983); Fernandes v. Limmer, 663
F.2d 619, 626-27 (Sth Cir. 1981); Chicago Area Military Project
v. City of Chicago, 508 F.2d 921, 926 (7th Cir.), cert. denied,
421 U.S. 992 (1975); Kuszynski v. City of Oakland, 479 F.2d
1130, 1131 (9th Cir. 1973); International Society of Krishna
Consciousness v. Wolke, 453 F.Supp. 869, 872 (E.D. Wisc.
1978); International Society for Krishna Consciousness v. Grif-
fin, 437 F.Supp. 666, 672-73 (W.D. Pa. 1977); International
Society for Krishna Consciousness v. Rochford, 425 F.Supp.
734, 742 (N.D. Ill. 1977), aff'd in part, rev’d in part, 585 F.2d
263 (7th Cir. 1978); International Society of Krishna Con-
sciousness v, Engelhardt, 425 F.Supp. 176, 180 (W.D. Mo.
1977); cf. Wolin v. Port of New York Authority, 392 F.2d 83,
90 (2d Cir.) (large bus station is public forum), cert. denied, 393
—_ =
U.S. 940 (1986).* We agree with these courts and with the City’s
implicit acknowledgment that the concourse of a large airport
facility like the one in St. Louis has the character, pattern of ac-
tivity, and nature of purpose that makes it an appropriate place
for the communication of views. See Wolin, 392 F.2d at 89. As
has been noted, an airport terminal is much like a busy city
street. Both are lined by shops, restaurants, newsstands, and
other businesses, with travelers or other members of the general
public coming and going as they please. No security checkpoint
must be crossed to reach the area where Jamison proposed to
stand, nor must a fee be paid to enter that area. These facts,
coupled with the City’s Rule 1.5, publicly designating the air-
port as an arena where first amendment rights would be pro-
tected, lead us to conclude that the concourses of Lambert Air-
port are a public forum.
As the Supreme Court has repeatedly stated, ‘‘speakers can
be excluded from a public forum only when the exclusion is
necessary to serve a compelling state interest and the exclusion is
narrowly drawn to achieve that interest.’’ Cornelius v. NAACP
Legal Defense and Educational Fund, Inc., 473 U.S. 788, 800
(1985). The defendants’ procedure for determining who may
exercise first amendment rights at the airport is, therefore, con-
stitutionally defective in two respects.
First, in practice and in contravention of its own regulations,
the City gives airport director Griggs complete and unguided
* The Supreme Court recently bypassed the question of whether a
municipal airport is a public forum. See Board of Airport Comm'rs
v. Jews for Jesus, Inc., 107 S.Ct. 2568, 2571 (1987) (finding Los
Angeles International Airport policy banning all first amendment ac-
tivity in portion of terminal unconstitutionally overboard whether
forum was public or nonpublic). The Jews for Jesus Court found it
unnecessary to decide the question because the Airport Commis-
sioner’s resolution at issue prohibited a// first amendment activities
and thus was unconstitutionally overboard regardless of the proper
standard. /d. at 2573.
— "le
discretion to rule on applications to exercise first amendment
rights. As the district court noted, such a practice which
makes the peaceful enjoyment of freedoms which the Con-
stitution guarantees contingent upon the uncontrolled will
of an official — as by requiring a permit or license which
may be granted or withheld in the discretion of such of-
ficial — is an unconstitutional censorship of prior restraint
upon the enjoyment of those freedoms.
Staub v. City of Baxley, 355 U.S. 313, 322 (1958); cf. Board of
Airport Comm'rs v. Jews for Jesus, Inc., 107 S.Ct. 2568, 2573
(1987) (rejecting proposed narrowing construction of ordinance
that prohibited all first amendment activities in airport because
proposed construction — prohibiting only non-airport related
speech — would give airport officials the unconstitutional
power ‘“‘to decide in the first instance whether a given act is air-
port related.’”) The Supreme Court has consistently invalidated
such practices, in recognition of the immeasurable injury in-
flicted on first amendment freedoms by the potentially arbitrary
and discriminatory exercise of an o‘fic'al’s unfettered discre-
tion.’
Moreover, the City’s practice is not narrowly tailored to serve
compelling interests because, as Griggs testified, he routinely
refused ail requests to protest or solicit except thsoe accom-
panied by court order. Appellees have failed to justify this prac-
* See, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147,
150-53 (1969) (reversing conviction based on ordinance that gave City
Commission unbridled authority to issue or withhold parade permits
without reference to legitimate regulation of streets or sidewalks); Saia
v. New York, 334 U.S. 558, 559-60 (1948) (ordinance that prohibited
loudspeaker use in public places without permission of police chief
with unlimited discretion held unconstitutional); Cantwell v. Connec-
ticut, 310 U.S. 296 (1940) (reversing conviction based on ordinance
that required license to distribute religious literature, with no stand-
ards for the exercise of licensing discretion).
a Ye
tice, and we can discern no compelling government need that
would warrant such a drastic exclusion of speakers from a
public forum. We therefore affirm the district court’s finding
that the procedure by which the City and Griggs determine who
.may exercise first amendment rights at the Lambert Airport is
unconstitutional, in violation of the first and fourteenth amend-
ments.
Il. Denial of Jamison’s Request to Protest Silently
Although the district court declared the defendants’ protest
policy unconstitutional, it nevertheless upheld the denial of
Jamison’s request as a reasonable time, place, and manner
restriction.
The government may regulate the time, place, and manner of
expression in public forums as long as its regulations are
content-neutral, narrowly tailored to serve a significant govern-
ment interest, and leave open ample alternative channels of
communication. Perry Education Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 45 (1983). The district court
held that the defendants’ refusal to allow Jamison to protest
because of his ‘‘mental afflictions’’ satisfied these criteria:
The exclusion of mentally incompetent persons whose
presence might pose a danger to others satisfies the re-
quirement that the restriction be content neutral and in-
tended to further a significant state interest. Airport of-
ficials have a legitimate interest, indeed a responsibility, to
protect persons at airports from mentally ill people. Fur-
ther, the exclusion of plaintiff from the airport leaves him
other avenues of protest, albeit some not as efficacious as
the course of action he proposes.
Jamison v. City of St. Louis, No. 85-536-C(5), slip op. at 7
(E.D. Mo. 1986).
We disagree with the district court’s reasoning and conclu-
sion. It is true, as the City urges, that the airport authorities
—
have legitimate interests in ‘‘security and operational
efficiency.’’ It is also true that Jamison has been diagnosed as
manic-depressive. The City has utterly failed to demonstrate,
however, how excluding all persons suffering from some form
of mental illness will further the City’s interests in security and
operational efficiency.
The City argues that certain persons, including Jamison, have
mental illnesses ‘‘which increase their propensity for violent or
disruptive conduct,’’ and that barring these persons will further
their goals of security and operational efficiency. Yet a broad
assertion that some manic-depressive persons may be prone to
violence cannot justify depriving a// mentally ill persons of their
first amendment rights.* No did the evidence demonstrate that
Jamison would in fact pose a danger to the public.’
We find the Supreme Court’s language from Tinker v. Des
Moines Indep. Community School Dist., 393 U.S. 503 (1969),
applicable here: ‘‘[U]ndifferentiated fear or apprehension of
disturbance is not enough to overcome the right to freedom of
expression.’’ Jd. at 508; see also Fernandes v. Limmer, 663
* The district court apparently endorsed a complete ‘‘prohibition
[to] prevent[t] mentally incompetent persons from protesting at
Lambert Field.’’ Slip op. at 7. We reject such an overbroad and con-
stitutionally offensive prohibition. We note, however, that we are not
faced with and therefore need not address the constitutionality of an
ordinance or regulation that is narrowly tailored to protect the public
from those people who actually present sustantial threats to safety.
’ Dr. Jerold J. Kreisman, appointed by the court to conduct a
psychiatric evaluation of Jamison, concluded that
although by virtue of his illness there is a potential in some cir-
cumstances, for violence, at this time and under usual cir-
cumstances I do not believe that Mr. [Jamison] poses an immi-
nent danger to himself or to other people, nor would such cir-
cumstances likely arise during controlled and orderly peaceful
protest.
— A-ll —
——
F.2d 619, 628 (Sth Cir. 1981) (‘‘Punishment for criminal
behavior must be government’s response to an abuse of the
privilege to use a public forum; prospective restraints are un-
constitutional.’’).
Although we thus reject the lower court’s ruling on the con-
stitutionality of the defendants’ exclusion of Jamison, we agree
that it is unnecessary for the court to issue an injunction direc-
ting the City to allow Jamison to protest silently. Rather, on re-
mand the district court should fashion an appropriate order
declaring the parties’ rights, in accordance with this opinion.
Upon further violation of plaintiff’s rights, if such were to oc-
cur, plaintiff is free to renew his request for an injuction to
allow him the right of peaceful picketing.
Ill. Attorneys’ Fees
Jamison has succeeded both on his claim that the defendants’
procedure is unconstitutional and on his claim that the defen-
dants’ exclusion of him from the airport is unconstitutional.
Jamison should reapply for an award for full attorney’s fees.
IV. Conclusion
We affirm the district court’s ruling that the defendants pro-
cedure is unconstitutional. We reverse the ruling with respect to
the defendants’ exclusion of Jamison and remand for entry of
an order declaring the parties’ rights, in accordance with this
opinion. Plaintiff shall recover costs from the City.
A true copy.
Attest:
Clerk, U.S. Court of Appeals, Eighth Circuit.
— A-12 —
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 86-2007/2249EM
Jesse Woodson Jamison,
Appellant/Cross-Appellee,
alg a
City of St. Louis and
Leonard L. Griggs, Jr.,
Appellees/Cross-Appellants.
Appeals from the United States
District Court for the
Eastern District of Missouri.
JUDGMENT
Filed:
September 10, 1987
These appeals from the United States District Court were sub-
mitted on the record of the said district court, briefs of the par-
ties and were argued by counsel.
Upon consideration of the premises, it is hereby adjudged
and decreed that the judgment of the district court is affirmed in
part, reversed in part and the cause remanded for further pro-
ceedings consistent with the opinion of this Court.
Plaintiff shall recover costs from the City.
September 10, 1987
Order entered in accordance with opinion.
Robert D. St. Vrain
Clerk, U.S. Court of Appeals, 8th Circuit.
— #13 —
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
No. 85-536 C (5)
Jesse Woodson Jamison,
Plaintiff,
VS.
City of St. Louis, et al.,
Defendants.
ORDER
FILED
July 17, 1986
In accordance with the Memorandum filed today,
IT IS HEREBY ORDERED that judgment is entered on the
merits in favor of defendants Leonard L. Griggs and the City of
St. Louis, Missouri, and against plaintiff Jesse Woodson
Jamison on plaintiff’s application for an injunction requiring
defendants to allow him to protest at St. Louis Lambert Field
International Airport.
IT IS FURTHER ORDERED that judgment is entered on the
merits in favor of plaintiff Jesse Woodson Jamison and against
defendants Leonard L. Griggs and the City of St. Louis on
plaintiff’s application for a declaratory judgment.
IT IS FURTHER ORDERED AND DECLARED that the
process by which defendants determine who may protest at St.
Louis Lambert Field International Airport is unconstitutional in
violation of the Free Speech Clause of the First and Fourteenth
Amendments to the United States Constitution.
a "oe
IT IS FURTHER ORDERED that defendants are per-
manently enjoined from determining whether persons may pro-
test at Lambert Field through a process in which one person has
sole, unlimited discretion to grant or deny applications.
Dated this 17th day of July, 1986.
Stephen Limbaugh
United States District Judge
— A-15 — *
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
No. 85-536 C (5)
Jesse Woodson Jamison,
Plaintiff,
Vs.
City of St. Louis, et al.,
Defendants.
MEMORANDUM
FILED
July 17, 1986
Plaintiff Jesse Woodson Jamison' has brought this civil rights
action against defendants Col. Leonard L. Griggs and the City
of St. Louis, Missouri. He contends that defendants have
violated his First Amendment rights of freedeom of speech by
denying his request for permission to protest against Trans
World Airlines (TWA) at St. Louis Lambert Field International
Airport. Col. Griggs is the Director of Lambert Field, and the
City of St. Louis owns the facility. Plaintiff seeks an injunction
directing defendants to allow him to protest at the airport facili-
ty, and a declaration that the method by which Col. Griggs
determines who may protest violates the First and Fourteenth
Amendments. The defendants have answered plaintiff’s com-
plaint with general denials and contend, affirmatively, that
Jamison poses a ‘‘clear and present danger’’ to passengers and
employees at Lambert Field.
' Plaintiff originally filed suit under the name of Jesse Wurm. He
changed his name to Jesse Woodson Jamison by order of the Circuit
Court for the City of St. Louis, Missouri, dated August 7, 1985. The
Court allowed plaintiff, at trial, to amend his complaint by interlinea-
tion to reflect this change.
— A-16 —
The parties tried this cause to the Court on March 20, 1986.
This Memorandum constitutes the Court’s findings of fact and
conclusions of law for purposes of Fed.R.Civ.P. 52(a).
Findings of Fact
After TWA discharged its former employee, plaintiff Jesse
Jamison, from his employment at Lambert Field on June 22,
1984, he applied to Col. Griggs, the airport’s Director, for
premission to protest against the airline. Jamison’s application
letter to Griggs reads, in pertinent part,
This is a formal request for written permission to protest
my discriminatory discharge from employment with Trans
World Airlines. 1 would like to picket at the foot of con-
course C, near the glass wall, to be sure that I do not
obstruct any passenger traffic, which I assure you is not my
intention. I also do not intend to solicit funds, distribute
literature, willfully engage passengers in conversation, or
cause any disturbance what-so-ever (sic). I only desire to
remain in a stationary position with a poster in my hand,
and in doing so exercise my First Amendment right to
freedom of speech.
Plaintiff planned to stand near a well-traveled portion of the
airport’s main terminal and hold a sign that reads ‘‘TWA
DISCRIMINATES AGAINST THE HANDICAPPED.’’
On June 29, 1984, Col. Griggs denied Jamison’s request,
noting in a letter to plaintiff, ‘‘Under the circumstances at this
airport, I respectfully deny your request.’’ Col. Griggs did not
purport to base his refusal on the rules governing soliciation at
Lambert Field.* The soliciation rules establish a procedure by
which a person can apply to protest at the airport, and set limits
on where and when these protests can occur. Despite the ap-
parently applicability of the solicitation rules, Col. Griggs
? See appendix.
he S Le Sean 6S", S'S
ick ett
testified at trial that he exercises total discretion in deciding
whether someone may protest at Lambert Field. He usually
denies these requests as a matter of course, without consulting
the pertinent portions of the rules.
Col. Griggs testified in a straight forward manner about the
reasons for his denial of plaintiff’s application to protest. He
denied plaintiff’s application because he disagreed with the
message plaintiff wanted to convey, and because he believed
that plaintiff has severe psychological problems. While
Jamison was a TWA employee, a federal grand jury indicted
him for applying for a passport under a false name, a criminal
offense under 18 U.S.C. §1542.° However, the Honorable
Clyde S. Cahill, United States District Judge for the Eastern
District of Missouri, determined on May 31, 1984, that Jamison
“could not appreciate the nature, quality and wrongfulness of
the conduct charged in the indictment,’’ and dismissed the
criminal charge. Col. Griggs knew that a federal district court
had determined that plaintiff had a mental disorder, and based
the decision to deny his request at least partially on this infor-
mation.
Jamison has a long history of psychiatric disorders. He has a
manic/depressive personality and suffers from severe mood
swings, ranging from deep depression to unrealistic elation. Dr.
Jerold Kreisman, a psychiatrist, examined plaintiff on February
21, 1986. He determined that Jamison does not necessarily pose
a danger to other people, but confirmed the continuing presence
of plaintiff’s sue mood swings. Plaintiff believes that Col.
Griggs has been harassing him over the phone, a claim that
Griggs credibly denied at trial. Plaintiff has access to a firearm,
although he claims he never takes the weapon outside his home.
> No. 84-76 (CR) (E.D. Mo. April 19, 1984).
— A-18 —
Conclusions of Law
The Court has jurisdiction of this federal civil rights action
pursuant to 28 U.S.C. §§1331 and 1343(3), and 42 U.S.C.
§1983. Venue is proper in the Eastern District of Missouri. 28
U.S.C. §1391(b).
The First Amendment provides that ‘‘Congress shall make no
law .. . abridging the freedom of speech.’’ The Free Speech
Clause applies to the states and their subdivisions through incor-
poration in the Due Process Clause of the Fourteenth Amend-
ment. United Mine Workers vy. Illinois Bar Ass’n., 398 U.S.
217, 221-22 n. 4 (1967), citing, New York Times Co. v. Sullivan,
376 U.S. 254, 276-77 (1964). The area at Lambert Field where
Jamison would like to protest is a ‘‘public place’’ which, or-
dinarily, means it is a ‘“‘public forum,’ where citizens may ex-
press their views. United States v. Grace, 103 S.Ct. 1702,
1706-08 (1983); see also International Society for Krishna Con-
sciousness v. Engelhardt, 425 F.Supp. 176, 180 (W.D. Mo.
1977) (public area at airport is a public forum).
Under the principles of Monell v. Dept. of Social Services of
the City of New York, 436 U.S. 658 (1978) and progeny, the Ci-
ty of St. Louis must bear legal responsibility for Col. Griggs’ ac-
tions. Col. Griggs is a high-ranking city employee and the
method by which he considers applications to protest has
become city policy. /d. at 694.
Col. Griggs alone decides when a person may protest at
Lambert Field. When making these decisions, he follows his
own judgment, and does not look to any objective criteria. He
completely ignores the standards enunciated in the solicitation
rules. Consequently, the Court must determine the constitu-
tionality of the actual procedure Col. Griggs uses when con-
sidering applications to protest, and not the constitutionality of
the solicitation rules as written. See Cox v. Louisiana, 379 U.S.
536, 556-57 (1965); and Niemotko v. Maryland, 340 U.S. 268,
271-72 (1951).
— A-19 —
A system in which an official has complete discretion to grant
or deny applications to protest in a public forum violates the
First and Fourteenth Amendments to the United States Con-
stitution.
[A policy which] makes the peaceful enjoyment of
freedoms which the Constitution guarantees contingent
upon the uncontrolled will of an official — as by requiring
as a permit or license which may be granted or withheld in the
discretion of such official — is an unconstitutional censor-
ship or prior restraint upon the enjoyment of those
freedoms.
Straub v. Baxley, 355 U.S. 313, 322 (1957) (bracketed material
added); see also Shuttlesworth v. Birmingham, 394 U.S. 147,
150-51 (1969); Cox, 379 U.S. at 556-68; Kunz v. New York, 340
U.S. 290, 293-94 (1951); Niemortko, 340 U.S. at 272; and
Schneider v. State, 308 U.S. 147, 161-62 (1939).
The United States District Court for the Western District of
Missouri considered a similar situation in International Societ y
for Krishna Consciousness v. Engelhardt. There, Judge Hunter
declared unconstitutional a Kansas City, Missouri, ordinance
that limited the ability of persons to protest at that city’s air-
port, finding that ‘‘it prescibes no standards to limit the unbridl-
ed discretion of the licensing authority.’’ 425 F.Supp. at 180.
Like the unconstitutional ordinance in Engelhardt, the system
by which persons must apply to Col. Griggs for permission to
protest allows for no limitation on his discretion and is similarly
defective.
In addition, in denying plaintiff Jamison’s application to pro-
_ test, Col. Griggs based his decision, in part, on his belief that,
contrary to the message plaintiff wants tb convey, TWA does
not discriminate against the handicapped. But, the Constitu-
tion does not permit the state to deny a request to protest
because the licensing agent disagrees with the message a pro-
tester seeks to communicate. ‘‘The right to equal protection of
— A-20 —
the laws, in the exercise of those freedoms of speech and religion
protected by the First and Fourteenth Amendments, has a
firmer foundation than the whims of personal opinions of a
local governing body.’’ Niemotko, 340 U.S. at 272.
The method by which Col. Griggs determines who can pro-
test, then, violates the First and Fourteenth Amendments. But,
whether plaintiff has a right to protest at Lambert Field raises
additional questions, relating principally to the constitutional
sufficiency of defendants’ affirmative defense. They contend
that plaintiff poses a ‘‘clear and present danger’’ to passengers
and employees at Lambert Field and that, consequently, he has
no right to protest at the facility.
The phrase ‘‘clear and present danger’’ generally applies to
situations where the content of speech endangers the personal
safety of persons in the vicinity of the speaker or inhibits a
legitimate state goal and, as a result, justifies certain limitations.
See e.g. Bond v. Floyd, 385 U.S. 116, 137 (1966); Waris v. U.S.,
394 U.S. 705, 706-08 (1969) (per curiam); and Brandenburg v.
Ohio, 395 U.S. 44, 446 (1969) (per curiam). The defendants
want to preclude Jamison from protesting at Lambert Field
because his presence, rather than the content of his speech, en-
dangers others. They have improperly labeled the defense they
assert, since the danger they cite does not concern the content of
Jamison’s proposed message. Instead, the Court must deter-
mine whether the existence of Jamison’s serious mental impair-
ment represents a constitutionally sufficient reason for ex-
cluding him from the facility.
By denying Jamison’s application to protest, defendants seek
to regulate conduct, his presence at the airport, and this regula-
tion necessarily has an effect on his ability to express his views in
that forum. In Clark v. Community for Creative Non-Violence,
104 S.Ct. 3065 (1984), the Supreme Court upheld the constitu-
tionality of National Park Service regulations prohibiting peo-
ple from camping in Lafayette Park across from the White
St Se et Be
a ~ ee -
— A-21 —
House. The persons who challenged the regulations sought per-
mission to camp in Lafayette Park in order to protest President
Reagan’s economic policies. The challenged regulations
authorize protesters to erect tent cities in the park, but do not
allow them to actually camp there.
The Supreme Court found this limitation permissible either as
a reasonable time, place or manner restriction, or as a valid
regulation of symbolic conduct. /d. at 3069. The latter ground
has no applicability here since Jamison does not wish to express
his message merely by appearing at Lambert Field. Conse-
quently, the standards enunciated in United States v. O’Brien,
391 U.S. 367 (1968), the seminal case in the area of regulation of
expressive conduct, have no relevance. In O’Brien, the Court
considered the constitutionality of regulations prohibiting the
burning of draft cards. The challenged restriction regulated
conduct which itself was the intended message. Here, the
regulated conduct, presence, is not the message plaintiff wants”
to convey.
The Court must determine whether defendants’ refusal to
allow Jamison to protest because of his mental afflictions is a
reasonable time, place or manner restriction.
Expression, whether oral or written or symbolized by con-
duct is subject to reasonable time, place and manner
restrictions. We have often noted that restrictions of this
kind are valid provided that they are justified without
reference to the content of the regulated speech, that they
are narrowly tailored to serve a significant governmental
interest, and that they leave open amply aiternative chan-
nels for communication of the information.
Clark, 104 S.Ct. at 3069; City Council v. Taxpayers for Vin-
cent, 104 S.Ct. 2118, 2130 (1984); and Grace, 103 S.Ct. at
1708-10. The exclusion of mentally incompetent persons whose
presence might pose a danger to others satisfies the requirement
that the restriction be content neutral and intended to further a
—A2— |
significant state interest. Airport officials have a legitimate in-
terest, indeed a responsibility, to protect persons at airports
from mentally ill people. Further, the exclusion of plaintiff
from the airport leaves him other avenues of protest, albeit
some not as efficacious as the course of action he proposes.
The effect of the restriction the defendants have imposed on
plaintiff necessarily results in his complete exclusion from
Lambert Field.‘ This does not render the restriction constitu-
tionally invalid. In City Council v..Taxpayers for Vincent, the
Supreme Court affirmed the constitutionality of a Los Angeles
ordinance that prevents political candidates from posting cam-
paign signs on public property. The Supreme Court found this
total prohibition permissible, stating ‘‘the application of the or-
dinance in this case responds precisely to the substantive prob-
lem which legitimately concerns the City. The ordinance cur-
tails no more speech than is necessary to accomplish its
purpose.”” 104 S.Ct. at 2132. Similarly, a prohibition that
prevents mentally incompetent persons from protesting at
Lambert Field must necessarily be broad and total in order to
accomplish its purpose. The Court finds the defendants’ reason
for denying the plaintiff's request constitutionally valid, and
further holds that Jesse Jamison, due to his severe chronic
manic/depressive condition, does not have the right to protest
at Lambert Field.
In plaintiff's complaint, though, he seeks not only an injunc-
tion ordering defendants to allow him to protest, but a declara-
tion that the process by which Col. Griggs decides who can pro-
test at Lamberi Field violates the Constitution. The Court has
* The Court presumes that defendants will not allow plaintiff to
enter the terminal for any reason, and plaintiff does not contend that
he wants access to the terminal for purposes other than to protest.
Consequently, the Court does not consider whether plaintiff has a
constitutional right to use the Lambert Field facility for other pur-
poses.
ee
— A-23 —
already ruled that Col. Griggs’ actions violate the First and
Fourteenth Amendments, but that plaintiff, due to his mental
affliction, has no right to protest. The issue becomes, then,
whether Jamison, a person who does not have the right to pro-
test, can prevail on his application for declaratory relief.
Ordinarily, constitutional standing requirements inherent in
the ‘‘case’’ or ‘‘controversy’’ language in the U.S. Const. Art.
III §2 preclude persons from asserting the rights of others. 13
C. Wright, A. Miller & E. Cooper, Federal Practice and Pro-
cedure: Civil §3531. If these principles apply here, Jamison can-
not prevail on his claim that the actions of Col. Griggs violate
the Constitution, because he, due to his mental affliction, does
not have the right to protest. But, in First Amendment cases the
Supreme Court has allowed litigants to raise the rights of others
by using the ‘overbreadth doctrine’’ to strike down restrictions
on speech. Taxpayers for Vincent, 104 S.Ct. at 2124-27;
Secretary of State of Maryland v. Joseph H. Munson Co., 104
S.Ct. 2839, 2847-50 (1984); and Broaderick v. Oklahoma, 413
U.S. 601, 611-13 (1973). Consequently, even though a certain ac-
tion might not infringe on the rights of a plaintiff who, for
whatever reason, has no right to express his views in a given
forum, a court can still consider whether that action is over-
broad, /.e. whether it impermissively [sic] burdens the rights of
those who do have the right to speak.
The seminal case in this area is Broaderick. There, the
Supreme Court, while reaffirming the viability of the over-
breadth doctrice, placed limits on its use, noting that the doc-
trine is *‘manifestly, strong medicine’ and should apply only to
substantially overbroad limitations on speech. /d. at 611-13. In
Taxpayers for Vincent, the Court refined the substantially over-
broad requirement, stating that ‘‘there must be a realistic
danger that the statute itself will significantly compromise
recognized First Amendment protections of parties not before
the court for it to be facially challenged on overbreadth
grounds.”’ 104 S.Ct. at 2126.
————————————————————
— A-24 —
The procedure employed by Col. Griggs on behalf of the City
of St. Louis violates one of the best-established principles in the
First Amendment area. In fact, in Broaderick, the Supreme
Court suggests that in situtations where, as here, an official im-
permissibly exercises boundless discretion in deciding whether
persons may speak or protest are especially appropriate occa-
sions for use of the doctrine. 413 U.S. at 613, citing, Shut-
tlesworth, 394 U.S. at 150-51; and Cox, 379 U.S. at 557-58. The
Court finds that the procedure employed by defendants serious-
ly infringes on the First Amendment rights of those who, unlike
plaintiff, have the right absent other considerations to protest at
Lambert Field. As a result, although the Court will not order
defendants to allow plaintiff to protest, it must declare the pro-
cedure by which they determine who may protest unconstitu-
tional in violation of the Free Speech Clause of the First and
Fourteenth Amendments to the United States Constitution.
Dated this 17th dy of July, 1986.
Stephen Limbaugh
United States District Judge
ES LS [__-_
a.
APPENDIX
This rule establishes procedures for the exercise of constitu-
tional freedoms and the solicitation of funds at Lambert-St.
Louis International Airport, owned and operated by the City of
St. Louis.
Rule 701.05
SECTION 1 Any person or organization desiring to engage in
activities at Lambert-St. Louis International Airport which in-
volves the exercise of constitutional freedoms, including but not
limited to distribution of non-commercial, non-obscene, non-
subversive literature, shall be protected in such activities, pro-
vided that the same do not constitute commercial activities and
do not result in interference with transportation functions of the
airport.
SECTION 2 The regulations hereinafter set out are hereby
declared to be necessary for the accomplishment of the follow-
ing purposes:
a. To insure that persons seeking to exercise constitu-
tional freedoms of expression can communicate effec-
tively with users of the airport;
b. To insure adequate nearby police facilities for the
protection of persons exercising their constitutional
freedoms;
c. To restrict such activities to public areas of the Air-
port premises;
d. To protect persons using the Airport from repeated
communications or encounters which might con-
stitute harassment or intimidation; and
e. Toinsure the free and orderly flow of pedestrian traf-
fic through the Airport premises.
— A-26 —
SECTION 3
No person shall solicit alms or contributions of
money or of other articles of value, for religious,
charitable or any other purpose, or conduct or par-
ticipate in any speech-making, distributing of pam-
phlets, books or other written or graphic materials
upon the airport or within its facilities without having
delivered a written notice to the Director, or [sic] his,
her or its intent to do so at least seven (7) days prior
thereto so that the precautions to protect the public
health, safety and order, and to assure the efficient
and orderly use of Airport property for its primary
purpose and function, and to assure equal opportuni-
ty for the freedom of expression of others.
Persons having given such written notice shall be per-
mitted to conduct their activities in or upon the public
Airport areas subject to the following restrictions:
1. Solicitors shall be limited to no more than four
(4) persons at any one time;
2. Solicitation shall be limited to the hours between
9:00 a.m. and 5:00 p.m.;
3. Solicitations shall be conducted only from
**Solicitation Booths’’ which shall be furnished
by the Airport Authority; such booths shall be
located within the permissible areas at such
points as may be designated from time to time
by the Director; and
4. No person, while engaging in the activities pro-
vided for herein, shall affix any n.atter, written
or graphic, to any Airport structure or facility,
except such as may be necessary to identify the
organization which is conducting a solicitation,
such signs hereinafter described as to size, con-
tent and color.
so
c. These restrictions are necessary to avoid injury, or the
likelihood of injury, to persons or property, or to
assure the safe and orderly use of the airport facilities
by the public, and such restrictions shall be applied
equally and without discrimination as to all persons
who have given such written notice. A copy of such
restrictions and any explanatory diagrammatic at-
tachments shall be furnished those persons affected.
SECTION 4 In the event that two or more organizations seek to
conduct the solicitations described herein at the same time, the
Director shall apportion the available areas between or among
them an (sic) as equitable a basis as possible.
In no event, however, shall more than two persons be engaged
in any activities and solicitations in any one area at the same
time. When the Director receives more applications for permits
than he is able to grant by following this rule, then he may im-
pose such reasonable and equitable restrictions as to allowable
dates or hours or numbers of participants as may reasonably be
required to provide fair and as equal as possible opportunities
for all applicants, while insuring the efficient and effective
operation of the transportation function of the Airport.
SECTION 5 In the solicitation of funds, no sound or voice
amplifying apparatus shall be used; and no signs or printed mat-
ter shall be attached to the ‘‘Soliciation Booths,’’ except as re-
quired by this rule to identify the organization which is conduc-
ting a solicitation. All groups or organizations receiving permis-
sion to solicit shall be required to furnish a sign to identify the
organization. The sign shall be as follows:
a. Ei’jight (8) inches high, thirty (30) inches wide;
b. Made of either wood or poster material, neither being
over % inch in thickness; and
c. The background of said sign shall be white with let-
ters no larger than six (6) inches in height, said letters
being black in color.
— A-28 —
SECTION 6 The Director is empowered to wholly or partially
restrict the activities provided for herein in the event of
emergencies, including but not limited to, strikes affecting the
operation of the airport, aircraft or traffic accidents, riots or
civil commotion, power failures, or other conditions tending to
disrupt the normal operations of the Airport.
SECTION 7 Any violation of a provision of this rule shall con-
stitute a violation and subjects the group or organization to the
following:
a. The violator shall be warned that he or she has
violated a provision of this rule and what portion was
violated;
b. A warning that upon violation of any further provi-
sion of this rule, the group or organization shall be
asked to leave the premises; and
c. Failure to leave shall subject them to arrest as a
Trespasser.
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.