Opposition Brief — City of St. Louis v. Jamison

No. 87-943

In The

Supreme Court of the United States

October Term, 1987

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CITY OF ST. LOUIS,

Petitioner,

vs.

JESSE WOODSON JAMISON,

Respondent.

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BRIEF IN OPPOSITION TO PETITION FOR A WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE EIGHTH CIRCUIT

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Scuwartz, Herman & Davimson

*Rospert Herman

Mutton L. Scowarrz

1221 Locust, Suite 750

St. Louis, MO 63103

(314) 231-0600

Attorney for Respondent Jamison

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

TABLE OF CONTENTS

Page

Table of Authorities ii

Reasons for Denying the Writ 1

I. The Solicitation Rule Adopted By The City of

II.

Ill.

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St. Louis Recognizes the Public Forum Status of

Unrestricted Areas of the Airport. .....

Airport Director Griggs Exercised Complete and

Unguided Discretion In Denying Plaintiff-Re-

spondent’s Application to Exercise His First

Amendment Rights at the-Airport. 20

Airport Director Griggs’ Attempt to Bar All Per-

sons Who Have A History of Mental Illness

From the Airport Is Not A Reasonable Time,

Place or Manner Regulation Because It Is Not

Content Neutral, Is Overbroad and Overinclusive

and Violates Equal Protection of the Laws. ........

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ii

TABLE OF AUTHORITIES

Page

CasEs

Board of Airport Commissioners of the City of

Los Angeles v. Jews for Jesus, Inc., 482 U.S. —,

107 S.Ct. 2668 (1987) re 3, 4

Grayned v. City of Rockford, 408 U.S. 104 (1972) 0. = 2

Perry Education Association v. Perry Local Edu-

cators’ Association, 460 U.S. 37 (1983) 4

Tinker v. Des Moines Independent Community

School District, 393 U.S. 503 (1969) 5

REASONS FOR DENYING THE WRIT

This Court should deny this Petition for Writ of Cer-

tiorari because this case does not present any questions of

general importance which should be considered by this

Court. The issues presented to the District Court and to

the Eighth Circuit in this case are whether the unrestricted

. areas in the Lambert-St. Louis International Airport are

a public forum available for the expression of first amend-

ment rights and whether Plaintiff-Respondent Jamison’s

request to silently protest was unconstitutionally denied.

This issue was effectively decided in Plaintiff-Respon-

dent’s favor by the City’s adoption of an airport ‘‘Solici-

tation Rule’’ which designated unrestricted areas of the

airport as being held oper for first amendment expression.

In ruling for the Plaintiff-Respondent, the Eighth Circuit

followed precedents established by this Court and held that

the unrestricted areas of the airport had been established

by the City as a public forum and that the denial of Jami-

son’s request was unconstitutional.

I. The Solicitation Rule Adopted By The City of St.

Louis Recognizes the Public Forum Status of Un-

restricted Areas of the Airport.

In determining that unrestricted areas of the Lam-

bert-St. Louis International Airport constitute a public

forum, the Eighth Circuit cited the Airport’s Solicitation

Rule, Section 1.05, which states that ‘‘any person or or-

ganization desiring to engage in activities at Lambert-St.

Louis International Airport which involves the exercise of

constitutional freedoms . . . shall be protected in such ac-

tivities... .’’ Appendix, A-25. The rule’s stated intent is

to ‘‘insure that persons seeking to exercise constitutional

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freedoms of expression can communicate effectively with

users of the Airport.’’ Appendix, A-25.

The Eighth Circuit concluded that the ‘‘City’s regu-

lations thus implicitly acknowledge that the first amend-

ment activities that take place in more traditional public

forums are not incompatible with the purposes of an air-

port’s public concourses.’’ Cf. Grayned v. City of Rock-

ford, 408 U.S. 104, 116 (1972). Appendix, A-6. (‘‘crucial

question is whether the manner of expression is basically

incompatible with the normal activity of a particular place

. 2°?)

The Eighth Circuit followed a long line of cases both

from the state and federal levels which have unanimously

held that an airport is a public forum in which first amend-

ment activities are protected. Appendix, A-6. However,

rather than blindly following precedent, the Court relied

heavily upon the City’s ‘‘implicit acknowledgment that the

concourse of a large airport facility like the one in St.

Louis has the character, pattern of activity, and nature of

purpose that makes it an appropriate place for the com-

munication of views.’’ Appendix, A-7.

II. Airport Director Griggs Exercised Complete and

Unguided Discretion In Denying Plaintiff-Respon-

dent’s Application to Exercise His First Amend-

ment Rights at the Airport. “

In light of the publie character of the concourses of

Lambert-St. Louis International Airport and Solicitation

Rule 1.05, which acknowledges the Airport’s public forum

status, the complete and unguided discretion exercised by

the Airport Director in denying Plaintiff-Respondent’s

application to protest is inconsistent with the preservation

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of first amendment rights. Defendants have asserted that

Airport Director Griggs’ previous refusals to obey the

procedures established under Rule 1.05 somehow caused

the Rule to be ‘‘moribund”’ at the time of Jamison’s re-

quest to exercise his first amendment rights. Upon the

asserted nullification of the Rule, Defendants argue that

Director Griggs acquired general discretion to disallow any

activities that, in his opinion, would not be in the best

interests of the airport or persons using it. This practice

resulted in the denial of all requests for permission to

protest or solicit except those mandated by court order.

The Eighth Cireuit rejected such practice which:

makes the peaceful enjoyment of freedom which the

Constitution guarantees contingent upon the uncon-

trolled will of an official—as by requiring a permit or

license which may be granted or withheld in the dis-

cretion of such official—is an unconstitutional censor-

ship of prior restraint upon the enjoyment of those

freedoms.

Appendix, A-8.

In Board of Commissioners v. Jews for Jesus, 107

S.Ct. 2568 (1987), decided last term, this Court rejected

an airport regulation which purported to prohibit all ‘‘non-

airport related’’ speech on the grounds that such regula-_

tion would give airport officials the unconstitutional power

‘*to decide in the first instance whether a given act is

airport related.’’ Jews for Jesus, supra, 107 S.Ct. 2568

at 2573. The exercise of broad discretion by Airport Di-

rector Griggs in this case would likewise cause ‘‘immeas-

urable injury’’ towards Plaintiff-Respondent and all per-

sons who wished to exercise their first amendment free-

doms at the airport.

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Finally, the Ei¢ehth Cirenit held that the City’s prac-

tices were not narrowly tailored to serve compelling gov-

ernmental purposes. Director Griggs testified that he

routinely refused all requests to protest or solicit except

those mandated by court order. A rule banning all first

amendment activity is clearly overbroad and unconstitu-

tional. Jews for Jesus, supra, 107 S.Ct. at 2571.

III. Airport Director Griggs’ Attempt to Bar All Per-

sons Who Have A History of Mental Illness From

the Airport Is Not A Reasonable Time, Place or

Manner Regulation Because It Is Not Content Neu-

tral, Is Overbroad and Overinclusive and Violates

Equal Protection of the Laws.

The Eighth Cireuit held that the City of St. Lonis

and its Airport Director failed to demonstrate that a

broad exciusion of all persons suffering from some form

of mental illness would further the City’s interest in seeur-

ity and operational efficiency. Appendix, A-10. In de-

termining that the government may regulate the time, place

and manner of expression in public forums, the Eighth

Circuit turned to the well-established maxim that such

regulations must be ‘‘content neutral, narrowly tailored to

serve a significant government interest, and leave open

ample alternative channels of communication.’ Perri

y

Education Ass’x ‘supra, 460 U.S. at 45. Appendix, A-9.

The Eighth Cireuit rejected the City’s argument that

persons, including Jamison, who have mental illnesses

‘‘which increase their propensity for violent or disruptive

conduct,’’ can be uniformly deprived of their first amend-

ment rights as being an ‘‘overbroad and constitutionally

offensive prohibition.’’ Appendix, A-10. After deter-

mining that the evidence did not demonstrate that Jamison,

himself, would in fact pose a danger to the public, the

Eighth Cireuit found support in this Court’s language

from Tinker v. Des Moines Indep. Community School Dist.,

393 U.S. 503, 508 (1969): ‘‘[U]ndifferentiated fear or

apprehension of disturbance is not enough to overcome the

right to freedom of expression.’’ Appendix, A-10.

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CONCLUSION

For the foregoing reasons, this case does not present

any question of general importance which should be con-

sidered by this Court, nor does the Eighth Circuit opinion

in Jamison v. City of St. Louis conflict with holdings

among other circuits, and the Petition for a Writ of Cer-

tiorari to review the judgment and opinion of the Eighth

Circuit should be denied.

Respectfully submitted,

Scuwartz, Herman & Davipson

Rosert Herman

1221 Locust, Suite 750

St. Louis, MO 63103

(314) 231-0600

This brief was prepared with the assistance of William

J. Balmer.