Petition for Writ of Certiorari — Port of New York Authority v. Wolin

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IN THE

* Supreme Court of the United’ States

* OCTOBER TERM, 1967 .

— yp

PORT OF NEW YORK AUTHORITY, ALBERT RUBBERT,

Manager of the PORT AUTHORITY BUS TERMINAL, CAP-

TAIN ROBERT FRIEND, Commanding Officer of Port Au-

thority Termitial Police, LIEUTENANT JAMES PETTIS, .--~".

LIEUTENANT FRED RACKOWSKI, LIEUTENANT -

HUGO SERRATI, LIEUTENANT ANTHONY UNETICH

and LIEUTENANT GEQRGE — GAULEAES, Officers of the

roe apiece’ Terminal Police,

| ‘Petitioners,.

=e, he? v. ,

RONALD G. WOLIN, individually and on behalf of VETERANS .

_ > AND RESERVISTS TO END THE WAR IN .VIETNAM.

» and the FIFTH AVENUE VIETNAM PEACE PARADE .

, COMMITTEE,

: ae

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

ST ATES COURT OF APPEALS FOR THE'SECOND CIRCUIT

== ——

SIDNEY GOLDSTEIN,

General Counsel, The Port of

‘New York Authority,

Attorney for Petitioners.

@ - 111 Ejigtith Avenue,

| New York, N. Y. 10011

On the Brief:.

Patrick J. FALVEY

: INDEX

i> : : | e : ; ; , PAGE =

Opinions Below Teer ey rer ree TT eT ye ave P 2

| Jurisdiction LApecus ab Kec aeen ake less cp eleeuccna _: 2

° ; . Bs ' ° = | ;

Questions Presented .......... os etna cae jennie 2

‘i ° .eo $ , y ; <2

Constitutional and Statutory Provisions Involved .. 8

4 ars .

Statement: ir Gang Ba aac me ne ne nae 4.

Reasons for Granting es Welk . occas. obs a

The Significance of the Issues :..... adeoewd: fe

The Error in the Approach of the Lower Courts .

The Criteria for Classifying Public Forums .. 11 _

Regulatory Power Does Not Ensure Continued A iS

Priority for the Pritmary-Terminal Usage . 13

‘2 The “Limited Scope of the Dedication of Bus Ware

I IIE ooo ie Fewdd cee ccecs ens _

The Question of Title i is teiaaiortat- the nee: «

‘° erty y’s Function Controls aecdetsevertinns 18 °

- Conclusion. sees hs ee cere boees Een * 20

p isdn Re ey

Opinion per Kaufman, MG guest ecewerdue eieee - A-l

Aprenpix B | 3 ane 7 ae

Opinion of Mansfield, J. ..... Vee ebetae nes bees A 21

7 Ps + e . ;

aN :

TABLE OF CASES CITED

| “Adderley v. Florida, 3 985 U. S. 39 (1966) .....<<0-..

Amalgamated Food Employees Union Local 590 et al

v. Logan Valley Plaza Inc.; et al, 36 U. S. L.. wos

4385 (U. 8. May 20, 1968) ......--2+0++. cae 10

Cantwell v. " Comeciions 310 U.S. 296 (1940) bie kere : oe

~~ Cox v. Louisiana, 379 U.S. 536 (1965) ....... 7, 9, 11,12, 14, _

~ Cox v. New Hampshire, 312 U.S. yo (1941) . re

“Feiner v-New York, 340 U. 8. 315 (1951) cere

“Hague v. clo, 307 U.S. 496 (1939) eines ate 8,14

In re Hoffman, 64. Cal. Rptr- 97, 434 P. 2a 353 (Cal.

Supreme Ct. ite pen ek ee tacwesks posvscecs 20

‘Kovacs v. Govan: 336 U. g, 17 (1949) errr a 14, 15

Kunz v. New York, 340 U.S. 290 (1951) ............ 14

Marsh v. Alabama, 326 U. S. 501 (1946) .......-.. <<:

Nelson v. City of Chicago, 9 Avi. (CCH) 17,878 (1965) 20

Niemotko v. Maryland U. S. 268 (1951) ...:...8, 12, 14

People v. St. Clair, 56 Mis¢, 2d 326 (Criminal Court, |

ON. Yet, 1968) Serre fC TARY hay renee 18, 20 .

Saia v. New-York, 334.U. 8.558 (1948) . eee

_ Schneider v. Irvington, 308 U.S. 147. (1939) ubear 14

| Sprowal v. New York, 385 U.S. 649 (1967) ......-. ‘ge

_ State v. Kirk, 88 N. J. eae 130, 211 ‘AL 2d 200.

£(1965) ..-...eeeeee Reet Wa eercrs ae

>. Talley v. oe 362 U. ¥. 60 (1960) ee rose It :

. oe

STATUTES CITED

sere io ‘PAGE

' U.S. Constitution, oe : ae

- First Amendment ........... pas Pe tM |

. Fourteenth Amendment vey Wawa’s Be ea rae

Pub. 'L. No. 90-108, § b (Oct. 20, 1967) .......... see B®.

_ McKinney’s Unconsol. Laws § 6701 .... Seeger Riy |

‘Now Jersey Rev. Stat. 32 :2-23.1 | bob iceaktesseouaies. Mesh

N.Y. Penal Law § 240.35(7) . po ehakte Seen So.

‘ - OTHER AUTHORITIES CITED

Zéloon, The Calseaiet of the Public Forum: Con v. ie

Louisiana, 1965 Sur. -— Rev. 1 ......008065.5..7 Il

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IN THE

me Court of the United States

| .OcToBER Trem, 1967

Sage ?

“e No. «

Port or NEw York Avrnoniry, ALBERT RvuBPERT, Manager ‘i

of the Port AutHorrry Bus TesminaL, Captain Roserr

Friend, Commanding Officer of Port Authority Terminal

Police, LizuteNant JaMes Pettis, LIEUTENANT Frep

-Rackowsk&I, LieuTENANT | Huco Serrati, Lirevrenant.

_ AntHony Uneticn and Litutenant Gerorce GAULRAPP,

Officers of the shoe Authority ferminal Police,

. . Petitioners,

: >

RonaLp G. Worm, individually and on ‘behalf of Vievtisaivis

. AND Resenvints To Enp THE War.in VIETNAM and the

_ Firta Avenve VittNam Peace Parape CoMMITTEE, —

: * ' Respondent. - -

Jaa

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 7

Bosltacnals: respectfully petition for a writ of ecisbinasi

to review a judgment of the United States Court of Appeals |

for the Second Circuit which affirmed as modified an order -

of the United States District Court for the a Dis- .

trict of New York.

— 1The Port of lew York Jace Albert Rubbert, nian

of the Port Authority Bus Terminal, Captain Robert Friend, -

Commanding Officer of the Port Authority Terminal Police, Lien-

tenant James Pettis, Lieutenant Fred Rackowski, Lieutenant

Hugo Serrati, Lieutenant Anthony Unetich and Lieuténant George

Gaulrapp, Officers of the Port Authority Terminal Police, herein-

after —w. _— to as the. —_ Authority. gous

oi 4 e 2 : "

- » The opinion of the Court ‘of Appeals is’ reported at

392 F. 2d 83, and is printed herein as Appendix A to this

petition. . } |

- * The opinion of the District Court is reported at 268 F.

Supp. 855, and is printed herein as Appendix B.

jurisdiction -

The judgment of the Court of Appeals was entered on

March 1, 1968. - — |

The. jurisdiction of this Court is invoked: under 2%

U.S. C. § 1254(1). |

Questions Presented

1, Does an invitation to the public to utilize interior

portions ofa public bus terminal for purposes of access to

and from bus platforms and shops: and services incidental

- thereto, require the conclusion that the premises ‘are: avail

able to all for leafleting, carrying placards and establishing

ecard table centers for the propagation of ideas and opin

ions, subject only to the right of the public owner to estab

lish regulations as to time, number, duration and specifi

locations? . nino

2. Must the public bus terminal operator permit per

sons to use the interior walkways and lobbies of the termin

~ as a public forum for the airing of opinions having no rela

tion ar pertinence to the terminal’s functions or administrs

tion, where the only possible nexus between the speech abi

the terminal is plaintiff’s view that he may most effectively

‘reach his chosen audience inside the terminal rather ths

_ eontinue to reach them on the sidewalks surrounding She

terminal and abutting its entrances and exits? _—

Constitutional and Statutory Provisions Involved

1. The following constitutional provisions are involved: :

‘United States Constitution, Amendment I:

‘**Congress shall make no law ... abridging the free-

dom of speech....” ~ :

.. | United States Constitution, Amendment XIV:

‘*. . . nor shall any State deprive any person of life,

liberty, or property, without due process of law.

” '

2. The following statutory provisions are involved:

— soak

Title 42 United States Code, Section 19837)

‘Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or nace yp 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 immunities secured by the Con-

.. Stitution arid laws, shall be liable to the party injured

~ in an action. at law, suit in equity, or other proper .

proceeditig for redress.’’

McKinney’s Unconsol. Laws § 6701; New Jersey Rev.

Stat. 32 :2-23.1.

**. ,. . a motor bus terminal (by which is meant a

terminal consisting of one. or more buildings, struc-

tures; improvements, loading er unloading areas,

parking areas or other facilities, necessary, conven-

ient or desirable in the opinion of the Port Authority

for the accommodation of omnibusges and other motor

vehicles operated By carriers exfgaged in the trans-

portation of passengers, or for the loading, unload-

ing, interchange or transfer of such passengers or

their baggage, or otherwise for the decommodation,

use or convenience of such passengers or such car

riers or their‘employees).© . .’’

New York Penal Law, § 240.35 (7) and (8) :

‘‘A person is guilty of loitering when he: -

3 TMD. .

os he

ae a

. the First ‘and Fourteenth Amendments of the United States

_ 7, Loiters or remains in any transportation

facility, unless specifically authorized to~do 80, for

the purpose of soliciting or engaging in any business,

trade or commercial transactions involving the sale

of merchandise or services, or for the purpose of

entertaining persons by singing, dancing or playing

any musical instrument; or

“8, Loiters or remains in any transportation

facility, or is found sleeping therein, and is unable

to give a satisfacté# explanation of his presence.

= Statement

* Respondent seeks for himself and other members of the

Veterans & Reservists to End the War in Vietnam and the

Fifth Avenue Peace Parade Committee, a declaration that

Constitution confer a right on him and those he represents

to hand out pamphlets, to carry placards and to distribute

literature from ecard tables in the interior of petitioner’s

Bus Terminal in Manhattan, New York City. The respond-

ent’s purpose is to utilize these areas inside the Terminal

as a forum in which to air his protests against participa-

tion by the United States in the Vietnam conflict. Peti-

tioner, the Port of New York Authority, a body corporate

and politic created by Compact between the States of New |

York and New Jersey, has constructed and now owns and

operates the Bus Terminal in partial effectuation of its

govefnmental duty to provide, on behalf of the two States,

_ terminal, transportatign and other facilities of commerce in

and for the Port of Ney York. |

_ Petitiongr, it is conceded, has never permitted use of the

interior of this, the world’s busiest bus terminal, by any

person as a forum for airing opinions or beliefs.

| Respondent’s position in this litigation is that petitioner

cannot confine respondent’s activities to the sidewalks

which surround the Terminal, but must permit those activi-f

ae €.5.,. FR PC —_ ho a ae a,

™ oc @k © DD ~~

es to be conducted inside the Terminal itself. The au- -

ence which respondent has particularly. selected is the’ ‘

aveling servicemen who utilize the Terminal en route to

id from their military installations. Respondent prefers

convey his message to them inside the Terminal as they

it for or alight from buses rather than to approach these

rvicemen, as he has done in the past, on the sidewalks-ad-

ining the Terminal. Respondent expressed his position

follows: . .. |

‘We intend to conduct our activities inside the

terminal because thi’ is the most effective—and per- .

haps the only effective—way to achieve our pur-

posé.’’ (A 4)

The Port Authority has declined to grant respondent

rmission to eonduct: these activities inside the Terminal

ely because it deems it to be its official responsibility to

ifine the use of the Terminal to the governmental and

blic purposes for which the two States authorized it to

istruct and operate the facility—the accommodation of _

ses and the accommodation, use and convenience of

ssenger's.' .

Respondent and members of his groups, nevertheless, |

fered the Terminal on two occasions and distributed leaf-

s in areas near the gates on the upper floors of the Term-' _

used by buses serving military’ installations. Each...

ie respondent and his associates were -directed to dis.

ad and leave the building, each time they refused to.d® so

il threatened with arrest. |

Counsel for respondent and petitioner conferred. .

ere were no arrests and no further intrusions by re-

ndent’s groups. Respondent instituted this action to

ermine his rights, thereby bringing before the courts

stions which the Court of Appeals for the Sceond Cir-

t has described as ‘‘significant and perplexing”’ and as

ctfully and carefully framed for us by the parties who

year here in confrontation after a constitutional pas de

z.”? (A1)

‘See McKinney’s Unconsol. Laws § 6701; New Jersey Rev. ne

» 82: 2-23.1. :; ; |

Sek A DNR ol ale Re aT Ne RR

. °

‘ied

—e —_—s ot

DP ctehietiticeratcsamie PREC a DOR en Me aoe iene

- tend the activity in the -Terminal, while pertinent: to the -

— “The Significance of the Issues

- bearing no relationship ‘to the operation or administration |

, as being inherently inconsistent with the dedication of the

The District Court, per Mansfield, J, upheld respond-

a to distribute leaflets on the concourses of the Ter-

minél. The Coxrt of Appeals, per Kaufman, J., affirmed, |

holding that the ‘‘congestion and controversy that may at-

enactment of rules-and ri gulations ‘to govern the activity,

cannot be invoked to support a flat prohibition.”’ (A 15)

‘The District Court did not resolve the issue as to whether

or not respondent’s: picketing and eard table centers were

protected under the First Amendment. The Court. of Ap-

peals held:° ; ,

“We believe each proposed activity must be

afforded some measure of protection. Whether we

speak of placards or conversation or tables laden

with literature we deal with forms of communication

developed to express the plaintiff’s views. to the par-

ticular audience. The methods adopted may be un-

sophisticated or crude and even ineffectiial when -

compared with. other means, but they aré no less

robust and no less intended to air the speaker’s views

as effectively as his resources and energy permit.”

(A 16-17) ;

Reasons for Granting the Writ

The Court of Appeals’ opinion establishes that this case

presents—ig, a clean-cut, sharply-defined setting which is

devoid of penal overtones—the novel and difficult question

of whether the States are constitutionally required to pro-

vide interior portions of public terminal buildings as places

in which. people can demonstrate against public policies

of the terminal.

The public proprietor of the Terminal deemed it manda-

tory to proscribe the Terminal’s use as a public forum for

the conduct of free speech activities, viewing such activities

: oes

property to the limited use of Terminal purposes. ‘The

demonstrators claim that the public has free aécess to the

Terminal as a practical matter, that their protest would be

peaceful and that they promise to avoid causing substantial

congestion or disorder in the ‘Terminal.

- ~ No decision of this Court has dealt explicitly with the

issue thus posed—whether or not the interior of .a public

terminal is available for use as a public forum.

_ We submit that this is the “ase in which this Court

should apply its existing digttim that ‘‘there is a proper

time and place for even themost peaceful protest’” to hold

the interior of the bdSiest bus terminal in the world is

hardly the proper place fora demonstration.

further that this case presents an oppor-

tunity for this Court to analyze and.to compare prior per- —

tinent expressions by its members to the end that the ma-

jority may’ synthesize principles controlling the extent to

which the protection of other public interests Inust be sub-

ordinated to\the individual’s right to stage a public protest.

‘Such action by\this Court would resolve existing conflict _

between federal ‘cqurt decisions as well as in the holdings

‘of State courts onthe First Amendment issues involved

here.. |

The Error.in the Approa h of the Lower Courts _

The holdings of the-courts below constitute on the one

hand, an extension of this Court’s holding in Marsh v. Ala-

bama, 326 U. §. 501 (1946) and on the other, a narrow

reading of this(ourt’s decision in Adderley v. Fl. vida, 385 f

U. 8. 39 (1966) and ‘of this Court’s statements in Cox v. «

0 the’streets was in private

7 ¢

‘Cox v. Louisiana, 379 U. 8,59, 574 (1965). .

Recognizing the self-evident functional differences be- .

tween the streets of a compariy-owned town and the interior

of a busy bus terminal, the lower courts sought additional

support for, their ruling from the famous dictum of. Mr.

i. Justice Roberts in Hague v. C10, 307.U. S. 496, 515-16

& (1939).2 It must be recalled, however, that Mr. Justice

Roberts. limited his eloquent statement to the permissible

| © yse of streets and parks although the ordinances before him

applied as well to the interior of public buildings. -

; That the Court of “Appeals exaggerated the thrust of

' - Justice Roberts’ words is clear from its description of them

’ as the ‘‘touchstone for courts charged with accommodating

/ 1° yights of expression with other interests at play in the pub- .

__+——Tie forum.” (A8) Mr. Justice Frankfurter’s statement con-

: curring in Niemotko v. Maryland, 340 U: S. 268, 282 (1951)

3 suggests the later limitations placed by this Court on the

% scope of Mr. Justice Roberts’ exposition: ;

‘While the Court has emphasized the importance of

' free speech,’ it is recognized that ‘free speech” is not

in itself-a touchstone.”’ aoe “aa

Justice Frankfurter framed the issue as to the permis-

- sible use of streets as one of ‘‘how to reconcile the interest

- in allowing free expression of ideas in public places. with f

* _. the protection of ... the primary: uses of streets and §

parks.’”” | Pl

-1“Wherever the title of streets and parks may rest they have d

immemorially been held in trust for the use of the public and time fF

out of mind, have been used for the purposes of assembly, commt- :

‘nicating thoughts between citizens, and discussing public questions.

Sneh use of the streets and public places has, from ancient times,

-,been a part of the privileges, immunities, rights, and liberties of F

citizens. The privilege of a citizen of the United States to use the F

. Streets and parks for communication of views on national questions

may be regulated in the interest of all; it is not absolute, but &

relative, and must be exercised in subordination to the gener

comfort and convenienée, and in consonance with peace and gool F

order; but it must not, in the guise of regulation, be abridged ot F

‘| denied.’”’ .-

4 2340 U. S. 268, 276. e

j | |

SR Tee eR Ee

. «

‘

The lower courts’ reasoning here, we submit, failed to

honor. Adderley v. Florida, supra, which holds that persons:

demonstrating against a segregated jail had no right even

to assemble in the open driveway adjoining the jail which

was itself the subject matter of the demonstration. In

Adderley, the petitioners argued that use of the jail’s drive-' -

way was not only reasonable, but also particularly appro-

priate. Mr. Justice Black, writing for the Court, rejected *

this thesis for reasons which dictate the conclusion here

that the interior’of a bus terminal is not a reasonable and

appropriate location for staging demonstrations: ~~

‘Such an argument has as its major unarticulated

_ premise the assumption that people who- want to

propagandize protests or views have a constitutional |

right to do so whenever and however and wherever

. they please. , That concept of constitutional law was

vigorously ang forthrightly rejected in two of the.

cases petitiofers relied on. [citations omitted] We

ae ) __r@ject it again.’’ 385 U. 8. 39,.47-48

The majority of the Court in Adderley applied precisely z

the approach articulated in several .of the opinions in the

decisions in Cox v. State of Louisiana, supra. In-Cox, Mr.

Justice Goldberg, writing for-the majority, stated :

‘“‘The rights of free speech and assembly, while fun-

damental in our democratic society, still de not mean

that everyone with opinions or beliefs to express

may. address a group at any public-place and at any

time.’’ 379 U. S. 536, 554

Mr. Justice: Black stated:

‘‘The First and Fourteenth Amendments, I think, :

_ take away from government, state and federal, all:

power to restrict freedom’of speech, press, and as-

sembly where people have a right to.be for such

purposes. This does not ‘mean, however, that these

amendments also grant a constitutional right to en-

gage in the conduct of picketing or patrolling, whether

on publicly owned streets or on privately owned

property. - [Citation omitted] Were the law other-

* ; ‘

Mog: , o &

fe sa Range Piditiiitincisninne rw ecamicaiuaies

. is ~

. . , . .

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LPnbpaia.s? wi be

“4

- dubige

wise, people on the streets, in their homes and any-

where else could be compelled to listen against their

will to speakers they did not want to hear.’’ 379

U. S$: 559,- 578 (concurring opinion) (emphasis in~

original). . . ile

This Court’s recent decision in Amalgamated Food Em..

ployees' Union Local 590 at al v. Logan Valley Plaza Inc.,

et al, 36.U-S. L. W. 4385 (U. S. May 20, 1968) leaves open

the precise question presented here. The Court held that

‘open areas within the confines of a shopping center func-

- toning as thoroughfares and sidewalks are available to

pers ns who are picketing a store in the center in the course

of dn effort to organize the store’s employees. Mr. Justice

arshall, writing for the majority, stressed two°factors not

“present here :—(1) Marsh v. Alabama, supra, establishes a

~ constitutional right to conduct free speech activities in the

streets and sidewalks of a business district, and (2) the open

areas of a shopping center .are- indistinguishable from

streets and sidewalks in a business ‘district where the

speech criticizes practices being carried on in the shopping

center itself. -°

The opinions of both the majority and the minority em-

phdsize the importance of the function to which the prop-

erty in question is devoted and. that a pivotal question is

whether a ban on speech activities there ‘would frustrate or

. prevent communication of ideas.

-- -Respondent Wolin and his groups made no claim, bo

could they, that the functions of a bus terminal in Man-

hattan in any way relate to the foreign and military policies

they are protesting.. at as 3

Thus, we do not have here the situation in Logan Valle

' which was described. by, Mr. J ustice Marshall.as: ‘‘Naket

title is essentially all that is at issue.’ 36 U. S. L. W.2

4389 and by Mr. Justice Douglas, in concurring, as:.

\ ; ; ‘

‘‘Picketing in regard to labor conditions at the Wei

Supermarket is directly related to that shoppin

center business.”’ Id. at 4390. a

The lower court's threshold error here :was in stating

a public thoroughfare to make it an appropriate place for

the exercise of First-Amendment rights. ’? (A7) The opin-

ions and decisions of this Court make clear that all public

thoroughfares are not invariably subject to a ‘First Amend-

U.S. 649 (1967), upholds a: ban against leafleting on streets

within a specified distance of school buildings in N ew York

City, and Adderley v. Florida, supra, sustains denying the

use of a driveway adjoining a jail as the locus for a public

protest against racial segregation in the jail..

_ that the Constitution would permit an absolute prohibition

_ of demonstrations in the streets. And Mr. Justice Gold-

| berg was careful to notein Coa, that: | ,

discriminatory application of a statute forbidding all

parades and meetings.’’ 379°U. S. at 555. °

‘Accordingly, to determine that the interior of a bus

terminal resembles a street, even if not erroneous in itself

- as We shall urge hereafter, is not dispositive of the consti-

| tutional question as to whether it is an appropriate and rea-

| sonable locale for demonstrations, = = ——

| The Criteria for Classifying Public Forums

| The Court of Appeals justified classifying the interior

_ of the Terminal as a public: forum on the ground,’ inter alia,

| a finding that the interior of a building is ‘noisy and

+ See Kalven, The Concept of the Public Forum: Coz v. Louisi-

ana, 1965 sup. cr. REv. 1, 13.

|; Bat thie issue is whether or not ‘‘the terminal so resembles —

ment easement’” at all times. Coax v. Louisiana, supra,

holds that picketing and parading may be prohibited: on ~

' streets at or near court houses; Sprowal v. New: York, 385 -

(> Mr. Justice Black in Cos v. Louisiana, supra,. suggests .

“We have no occasion’in this case to consider the :

constitutionality of the uniform, consistent, and non-

' acces to streets and other public facilities for .

. that it is by its nature, noisy and crowded. We submit that |

weibices , ‘eae xi ab

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naa aaacit MATAR E,

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| crowded” requires eae it -— oy class of a public

forum. ,

The inversion inherent i in the Court/s approach becomes

‘ apparent when its ultimate conclusion is read together with

eo the Cou of Appeals’ earlier acknowledgment that (1)

‘With t cope of operations so vast, the enclosure is

- desirable and indeed necessary if t the congestion and con-

fusion that would attend if all waited for buses on the street

are to be avoided”? (A 10); and (2) circumstances in the

Ter minal have required the enactment of special Pena] Law

provisions ‘‘to prevent terminals from being infested by

those ‘who have no occasion to be there’, such as congrega-

tions of degenerates or nondéscript. charaders who pose a

danger to the public. 7 (A 29, A 138).

' The Court of Appeals rejected a as controlling evita

‘‘the availability) of some alternative forum, and the likelié

hood of a swarm, of protesters each with their special cry

disrupting the normal operation of the Terminal, ... ’’ or

, ‘the potential provocation caused by heated debots.: oy 3S

These factors were labeled by the Court of Appeals as ‘‘not

_ material’’. in considering a ‘‘blanket’ and wholesale ban.”

(A.15) ;

These very factors are not only material but should con-

trol the issue of whether a given location is natural and

appropriate for the exercise of the right of free speech. -Par-

ticularly pertinent in. sorting” out the: contending interests

is the fact that if Wolin and his groups are granted ‘a right

_ to use the interior of the Terminal as a public forum, an

equal right must be extended to each and every citizen.

Cox v. State of Louisiana, 379 U. S. 536, 557-58; Niemotko

v. Maryland,: 340 VU. S. 968, 272. The District Court, in

pana hy to limit the ambit of its decision as. ‘dealing

only with the rights of the plaintiff and those whom he

. represents’? (A 33), obviously failed to evaluate fuily the

’ problem of a proliferation of Jeafleters i in the Termini. |

It is, we submié, ingenuous to decide that a terminal is an

appropriate: location for free speech activities because this

— promises’ to be peaceful o or —: not every

ee eee

D nea, | nee |

leafleter will at all times obstruct or interfere with terminal

traffic. Realism requires considering, as well, the existence

- of extremists and the difficulty in reaching agreement on-

_the administrative level with denianstrators as to exactly °

_ what circumstances constitute congestion or .obstruction:

When it is acknowledged that the interior of the Bus

Terminal accommodates over 200,000 people on a daily basis, |

—and that it is normally thronged with commuters rushing -* ,

between their homes and places ‘of work, and with long dis-

tance travelers laden with baggage and the anxieties attend- - -

ant upon a long journey, it is submitted that far more com- °

pelling reasons, founded on discrimination or suppression

of ideas or. the unavailability, of an alternate forum, would

be necessary before a court should grant the entire com-

munity a right ‘to inject the dissemination of political and‘

‘other issues into the ferment and the complex policing prob-

‘lems already present in the Terminal buildihg. It can hardly. ©

be said that the commuters and the long distance travelers

are to be insulated from the airing of ideas and opinions,

for all are’in accord that the sidewalks surrounding the

Terminal and abutting the entrances and exits of the Termi-

nal are available for free speech activities: and these ‘give

’ speakers and leafleters access to the users of the Terminal.

Regulatory Power Does Not Ensure Continued Priority for the

Primary Terminal Usage

Both lower courts, recognizing ‘‘the legitimate public

interest in maintaining a free flow of traffic in the Terminal,

in avoiding excessive disruption of normal activities there,

and ensuring the convenience and movement of passengers

and vehicles’’ held that the public proprietor-may prescribe.

“rules of.order’’ for the use of the premises.. (A 18; sce

A 31) These may inglude “‘approximate arid reasonable

limitations on the number of persons who may engage in

such activities at any specific time, the duration-of the activ-

ity and the specific places within the building where ‘the

‘rights of ‘expression’ may be exercised.” (A 18-19; see ©

A 34-35)

- This approach continues the analogy drawn by. the

_ lower courts between the ingérior areas of ‘the Bus Ter-

minal and a public thoroughfare. © oe

Our nation’s history and its continuing experience with

conflict. between municipal proprietors of parks and

thoroughfares and those using. them for communicating

ideas’ teaches that the right of regulation is not a satis-

___ factory solution to the delicate and difficult question of

ot the extent to which the protection of other street and park

users may legitimately limit expression. The reports of

the decisions of this Court abound with opinions, seldom

\ unanimous, in whith municipal regulation of the use of

streets and parks has been upheld or struck down depend-

ing upon intricate analyses of their terminology and in-

tensive examination into the minutiae of the facts. sur-

- ‘rounding their application.’ The volume of these cases”

- together with the many state and lower federal court cases

dealing with the issue, indicates that the administration of

the use of the streets and parks as public forums is to a

large extent vested in the courts rather than in administra-

tive agencies. ;

.! °

Many of the conflicts described have stemmed from

honest differences of opinion between individuals and mu-

nicipal authorities, neither of whom could be accused’ of

extremism, suppression or discrimination.

§ What is peaceful, what is obstructive, what interferes

with other proper activities, who causes congestion or dis-

order—these aré all questions with subjective content which

can finally be answered only by the courts after a trial.

1 See, e.g., Cox v. Louisiana, 379 U. S. 536 (1965); Talley v.

: California, 362 U.S. 60°(1960); Feiner v. New York, 340 U. 8. 315

4 (1951); Kunz v. New York, 340 U. S. 290 (1951); Niemotko v.

Maryland, 340 U. S. 268 (1951) ; Kovaes v. Cooper, 336 U. 8. 77

(1949) ; Saia v. New_York, 334 U. S. 558 (1948) ; Cox v. New

Hampshire, 312 U. 8.°569 (1941) ; Cantwell v. Connecticut, 310

U. S. 296 (1940) ; Schneider, v. Irvington, 308 U. 8. 147 (1939);

‘Hague v. C10, 307 U. 8. 496 (1939). :

a Ce ee

= «©

The sound truck cases are’ an apt example.' The com-

peting interests there were each beyond ‘Teproach—the

nunicipality’s right to achieve relative tranquility in the

streets was opposed by the individual's right to communi-

ate effectively. | ‘hae ames

Similar issues will arise here where the proper public

nterest in providing and operating an efficient, convenient,

omfortable public terminal is in contention with individual |

laims of right to communicate with the terminal popula-

ion. Attempting to balarice these interests by regulation

vill involve conflicts of opinion as to which interest has

riority, and to what extent, and these will be as difficult

ind productive of litigation, if not more so, than street and

ark regulations have been. | ~ 2

When it is acknowledged that communicators have ac-

ess to the terminal’s users. on the street adjoining the

erminal, the wisdom of confining their aétivity to the

treets seems apparent if only-to avoid the problems above

escribed. In doing so, the Court would as well be con-

ning future controversies as to the preeminence of speech . ~

ver other public interests to the traditional and familiar

otting of street and park uses.

he Limited Scope.of the Dedication of Bus Terminal Property

- The lower courts classified the interior of the Bus Ter- -

inal as a public street or thoroughfare because (1) they

garded ‘it as ‘‘a place clearly available to the general

ublic,’’ (2) it is heavily used, (3) ‘tin design dnd physical

ppearance the main concourse resembles a Street,’’ and (4)

is used by people “for the principal purpose of moving

and from other means of transportation”’ (A 9-10; see

28-29). Those courts therefore deemed it-an appropriate -

ace for expression. . 3 re

We submit* that particularly .because the Terminal is

‘ineipally designed for and defined by statute as a means

* Compare Saia v. New York, 334 U. S. 558 (1948), with Kovaes

Cooper, 336 U: S. 77 (1949). ; rice.

of accommodating buses and their passengers, it is a

distortion of its function to classify it as a public forum.

Not every citizen is invited to use the interior of the Ter-

minal for every purpose permitted in a street or park. .

Under a New York statute, it is a violation to loiter or

lonnge or solicit alms or play a musical instrument in the .

interior of the Terminal.’ By and large, these activities

are permitted and, in fact, are usual in parks and streets.

It has not been claimed yet that any person has a right

to conduct a parade or a public meeting in the interior of

the Bus Terminal. Such a request, however, would not

appear to offend the logié.of the lower courts’ decisions.

The lower ‘courts’ view is ‘that, because as a practical

matter, not every person entering the Terminal is, or real-

istically gould be, challenged to prove that he énters the |

building strictly for Terminal purposes or services, if is a

thoroughfare; But this rationale would throw operi to

demonstrators every building within which there are stores

or restaurants or public functions, if the proprietor does

not maintain gates or police to screen out persons secking

entry. ’

It would strike down the statute enacted at this session

of Congress? to regulate free speech activities at the Capitol

buildings. Under that statute no persons may parade,

demonstrate or picket within any of the Capitol buildings f

Because. the Capitol buildings are freely open to the public

the opinions below suggest that this statute suffers the same

constitutional infirmities which have thus far invalidated.

_the prohibition against using the interior of a bus terminal

-as a public forum. = ad

With respect to the design and physical appearance of

the Terminal, the Court of Appeals could say no morte than

that a portion of it~*resembles a street.’’ This careful

phrasing perhaps reflects the record’s clear showing that

IN. Y. Penal Law § 240.35(7).

2 Act of October 20, 1967, Pub. L. No. 90-108 § b.

Sse fete => & st na

i=)

Pea ws ee & oe

--" Oo & &© Dp o-*§

2 prime location in the Terminal sought by the demon-

ators is a comparatively narrow corridor and waiting

ea on the third floor of the building. This area adjoins

» gates for buses destined for military installations and,

Sunday evenings, is heavily used by servicemen return-

gto bases. There are no stores or eoncessions in the area, ©

Althougli this portion of the Terminal in no way, resem-

s a street, the Court of Appeals did not exclude 4f from

ng available for leafiéting, picketing and card tables. On

contrary, in light of respondent’s desire to reach the

vicemen, the Court of: Appeals admonished the Terminal

rator to be ‘‘mindful’’, in drafting regulations, ‘that

plaintiff has a constitutionally cognizable jnterest in|

ching a broad audience, that he is entitled to do so within

its tolerable in light of the usual activities in the Ter-

mal.’ (A 19) é

Once having decided to return to their bases by inter-

te bus, the servicemen must utilize this bus terminal and

third floor area to board or wait for their buses. The

er courts have decided that they also have no choice but”

ye ae as they wait or queue, by respondent and

groups (atid possibly others) and their activities in fur-

rance of propagating their views and ideas on foreign

icy.

The thousands of commuters who travel to Manhattan °

interstate bus are also forced to encounter the activities

those selecting the bus terminal as the forum for their

is and opinions. — .

It is no’ doubt more convenient and comfortable for ‘re- |

ndent and his groups, and a host ofvother groups, includ-

political candidates, to reach their own specially selected

iences inside the weatherproofed Terminal than on the -

ining sidewalks. Yet those ‘‘audiences’’ are required

e in the Terminal to serve their transportation needs.

y have not chosen to group there in order to hear, to

1 and to discuss opinions and ideas. The respondent and

groups therefore seek to capitalize on the audience’s

1 for transportation rather than to compete for their

- .

ee * hd

_ a _

Bocca TERS a2 ee ot EM aS >

noni a chee ana oaibii

‘leaflets on a subway platform in the ‘heart. of the Manhat-

7 -18 f

attention in the-free market of street and park areas where

every citizen has come to expect, along with his transit or

leisure, the communication of ideas and opinions.

_ Phe Port Authority’s position is that it is the puilding’s

function as a terminal and not, as the Court of Appeals sug- -

gests, the presence of a roof which distinguishes it from a

market place for. expression. In any event, the holding of

the Court of Appeals necessarily means that all off-street

bus terminals throughout the country whether privately or

publicly owned and whether open or covered, constitute

public forums, particularly.if they include- incidental sserv-

ices such ‘as the usual newsstand, barber shop, lunchstand

or drugstore. |

The compass of the holding below has already been given -

a broader scope. People v. St. Clair, 56 Mise. 2d 326 (Crimi-

nal Court, N. Y. C., 1968)’ holds, in reliance on the Court

of Appeals’ decision here, that a person having paid his

fare, has the constitutional right to distribute political

tan shopping district at the height of the Christmas shop-

ping season. | . .

The- Question of Title is Immaterial: the Property’s Function

Controls : oe ee

The Bus’ Terminal is owned and operated by a public

agency for governmental purposes.» Phat fact alone is

not dispositive of the question whether it constitutes 3

public forum.’ eS par

It cannot be’ questioned that some public property 1s

dedicated to purposes whose fulfillment is incompatible

with its use or its availability as a means for communicat-

ing ideas ant opinions. The administration of a building

and the control of large. crowds using the building -

for its primary purpose present quite different operat

ing and functional problems and requirements than exist

in the case of streets or parks or meeting halls. Building

regulations are structured and administered for the cor

Pere — — ce cP

venience and protection of the group of the public invited

to use the building for its primary purpose, and therefore,

necessarily involve age which cannot, nor should they

be, imposed on the juse of streets or parks. The addition’

of another layer of uses and their nature as constitutionally

protected, not only increases the burdens of the proprietor

of the building, but as well, tends to subordinate the in-. _ —.....

terests of the primary user of the building.

- The traveler can claim only a statutory ‘or common law

right to use the services which are available, without dis-

crimination, on the property; whereas, once admitted, the

free speaker can hearken to a constitutionally-protected

right. The Bus Terminal proprietor could, for- example,

decide that it is no longer convenient to afford to its patrons

the services of a lunchstand in the main lobby, but it could.

‘ not, under the decisions below, decide that respondent and

his groups could not use a portion of the building for the

establishment of a card table from which to distribute their _

literature. So too,the proprietor of the Terminal is free at.

any time to rescind permission given, from time to time, to

charitable groups to solicit funds within the interior of the

Terminal, as it is free to decide that glee clubs will ‘not be

_ permitted to sing in the building during future holiday sea-

sons. None of these. groups has ever claimed a constitu-

’ tional right to conduct these activities. ‘Respondent and his

groups, on the other hand, under the decisions belew, could

never be denied the right to yse the building’as a public

‘forum. ary.

It is respectfully submitted that the above described

essential distinctions between the dedivation of property

for public terminal purposes and the dedication of property .

for use as a public forum for the expression of ideas or _ ,

opinions warrant.review and reversal of the Court of Ap-

peals’ holding. — . ) ~ 3

Although the Court of Appeals here rejected the posi-.

tion urged by petitioners; virtually the same position was

- aecepted by the Federal District Court for the Northern

District of Illinois in Nelson v. City of Chicago, 9 Avi.

(CCH) 17,878 (1965) and by the Appellate ‘Division of

the Superior Court of New Jersey in State. v. Kirk, 88 N. J.

. Super. 130, 2¥1 A. 2d 200°(1965).. These decikions forbade

picketing inside the ‘ principal terminal building at two

large airports. To the contrary is In re H off man, 64 Cal.

-Rptr.-97, 434 P. 2d 353 (Cal. Supreme Ct. 1967), holding

that leafleting is permissible in the interior of a railroad

. station“ the city of Los Angeles and People v. St. Clair,

_ supra, allowing the distribution of leaflets on New York City.

subway platforms. This conflict on important constitutional,

and public questions affords an additional basis for review

by this Court. _

AS Roe ee ey ee es

DCN Rat wield Neate NE CP wlan TNS hdd Cpe

-CONCLUSION

For the foregoing reasons, this petition for a writ of

certiorari should be granted. ,

: | Respectfully submitted,

ee ee ‘Sipyey GoLpsTEIN,

eat hk General. Counsel, The Port of

New York Authority, —

Attorney for Petitioners.

3 On the Brief:

Parrick J. FaLveY —

May 29, 1968 ak.

i ih Hie oh oa “ " -

PRT Rae TRO RONG Te Pate OnE TES

PROOF OF SERVICE

I, Sipyey Goupstern, a member of the -Bar of the Su-

reme Court -of the United States and attorney for the -

etitioners, hereby certify that on the 29th day of May, —

68, I served copies of the foregoing petition fo a he

f certiorari on the Respondent Ronald Wolin ‘

three copies in a duly addressed envelope. with first ..

ass postage pre-paid to each of the following:

UGENE Kiswer, Esa.

13 Astor Place . | aa A

New York, N.Y. 10003 \ . oS aol

RADLEY Brewer, Esq:

New York Civil Liberties Union

156 Fifth Ave.

New York, N. Y. 10010

7 — GOLDSTEIN

Sidney Goldstein .

“A,

EEA TE EI LAO ESI POAT NL LOGIE

sas ah one EPP NOR its Se a he Bl Le ck DP amen eT aa RE te wy et te ae Tt

; “

‘ ae aes !

. &

| + |” APPENDIX A

Opinion of the United States Court of Appeals

- for the Second Circuit

on __ Opinion per Kaufman, J.

\ Kaurman, Circuit Judge:

Ronald Wolin and the organizations he represents! have

brought before this court questions that are significant and

perplexing. We set them forth seriatim. May the Port of -

New. York Authority’ bar the use’of its Terminal to all ex-—

ercise of First Amendment rights? Are the peaceful activi-

ties proposed by the plaintiff, including distribution of leaf-

lets, carrying placards, setting up card tables and conduct-

. ing discussions with passers-by entitled to ‘substantial

protection under the First and Fourtéenth- Amendments? -

_ Are the plaintiff and his associates, who have promised to

withdraw and discontinue these activities in the event of a.

disturbance, entitled. to~official protection against distur-

bances provoked by~a hostile’ audience? These questions

have been tactfully and carefully framed for us by the - )

parties. who appear here in’ confrontation after a constitu-

tional pas de deux. Some fifteen months have passed since: -

the plaintiff first sought to exercise his asserted right of

protest... | prt s ae

* The-plaintiff Ronald Wolin sues individually and ow behalf of

two organizations opposed to United States policy in Vietnam. The

organizations are the Fifth Avenue Vietnam Peace Parade Com-

. Ihittee and the Veterans and Reservists to End the War in Vietnam.

_ ? Defendants are the Port of New York Authority, Albert Rub-

bert, the Manager .of the Port Authority Bus Terminal, Captain

Robert Friend, Commanding: Offiger of the Port Authority Police,

and Lieutenants James Pettis, Fred Rackowski, Hugo Serrati,

Anthony Unetich and George Gaulrapp, Officers of the Port Au-

thority Terminal Police. We shall refer to the defendant collectively

_ as the “‘Port Authority,’’ and to the building as the ‘‘Terminal.”’

e 3

peaceful activitiés proposed by Wolin‘are protected against —

_ legitimate interests of the general public who use the Ter-

Court, with anil ania ‘set forth. ©

asso¢iated with the Fifth Avenue Vietnam Peace Parade

‘Committee. and the Veterans and Reservists to End the

+ thority at Eighth Avenue and 40th Street, Manhattan.

They came there for the purpose of distributing literature

_ Vietnam war, were at all times conducted in a peaceful and

~ New York and New Jersey. McKinney’s Unconsolidated

_ Opinion per Kaufman, J..

We hold that thé Port Authority may not abridge by —

absolute prohibition the right of political expression. The

denial by the Port Authority, and accordingly, they may

be restricted only by regulations narrowly drawn to serve”

minal. We therefore affirm the judgment of the District

During the latter part of 1966, Ronald Wolin and others

War in Vietnam assembled outside an entrance to the Bus

Terminal building operated by the Port of New York At-

to persons on the sidewalk and occasionally engaging in

conversation with persons in the area. ‘These activities,

designed to publicize the views of the group concerning the

orderly. manner. .

The Port of New-York Authority is a public corpora-

tion created in 1921 by agreement between the States of

Laws of N. Y., § 6401, § 6404: The Bus Terminal building,

operated by the Port Authority occupies a full city block }

‘n Manhattan. Thousands. of persons “use the terminal |

facilities, entering from the subway or through six outside

entrances, reac the fifty foot wide main concourse and

four other tévels to get to and from buses, subways, city

streets, shops and other concessions. In 1966 the average

number of petsons passing through the building: each day

approximated 205,000 and on December 24, 1966 some

325,000: people used the facility. The Terminal contains,

oa.

* AZ

é : | °

ad! Opinion per Kaufman, J.

in addition to the open éoncourse areas and waiting rooms,

bus line ticket counters, . newsstands, restaurants, snack

bars, a bakery, a drugstore, a bar, a bowling alley, a bank,

gift shops and various other shops and concessions w ich

are open to the general public. ‘ The defendant Albert Rub-

beit:is the manager ‘of the Terminal with generaf: supers

visory responsibility for its operations. - Tht Port Author-

ity maintains its- own police force of 38 men ‘who are

nal; the defendant Captain Robert Friend: is the head of

this’contingent of the Port Authority police, and’the other

charged with maintaining order and patrolling the termi-

named defendants are officers assigned, to duty in the ter-’

— oe : od

( In early November, 1966 Wolin and his group decided-to

take their protest inside the terminal where they might find

in greater numbers than on the sidewalks. their/particular

audience, traveling servicemen. Accordingly, with five.

others, Wolin entered. the terminal on the evening of No-

vember 6 and distributed leaflets in the area near gates

108-115 on the upper bus level for- approximately 80 min-—

utes. Although it is agreed that their conduct was peaceful

and did not cause any interference with the traffic in the

Terminal, they: were -nevertheless approached by ‘Lieu-

tenant Serrati who requested their names.. The ‘Six. in-

dividuals refused to comply with Serrati’s request ‘and

after some discussion, he threatened to arrest them if they.

refused to disband and leave the building. During this dis-

cussion, the police officer stated that the protesters were

on “‘private’’ property, and demanded to know if they were

there for the purpose of. buying a ticket-or travel by bus.

The plaintiff and his associates replied that they were ex-

ereising their right $f free speech by distributing the

leaflets, Sas dl

*The Terminal police are expressly provided ‘with ‘the powers

if “peace officers”? N: Y. Code of Crim. Proce. § 154.

” .

eet

Opinion per Kaufman, J.

¢ ‘Jn this brief confrontation the pattern for-the future

er@ounters was set.

On November 13, plaintiff entered

the building with two others, and distributed handbills for -

about thirty minutes before they were asked to leavg. by

Lieutenant Gaulrapp.

Next, on November 16, 1966, plain-

tiff wrote to defendant Rubbert, tlie- Manager of the Ter-

minal, to request permission ‘‘to conduct free speech ac-

tivities in the public

areas of the Port. Aufhority Bus

Terminal’’; in particular to distribute political handbills,

to ca lacards, to use card tables for the distribution of —

literature, to engage in discussions with others Wolin pro-

posed to conduct these

activities every Sunday evening, and,

in addition, on Wednesday evening, November 23, Friday

evening, December 23 between 6 p.m. and 11 p.m. and Satur-

day, December 24, 1966 between 11 a.m. and 11 p.m. The

nature of the proposed protest activity was evident from

the letter:

The purpose of

the activities covered by this request

will be to communicate our views concerning the Viet-

nam war to traveling servicemen and to members of

the public within the terminal and to persuade them

to join our cause. ,

We do not intend to in‘erfere in an significant or

— substantial way

with the operation and use of the ter-

minal for the convenience of bus passengers or other

rsons who may be passing through or waiting in

the building... . . ’

We intend to conduct our activities inside the

terminal becaus

haps the only

e this is the most effective—and per-

effective—way to achieve our pur

We do not intend to be in any way riotous, tu

Ynultuous, violent, threatening, intimidating, abusive,

obscene, or insulting; nor do we intend to incite,

provoke, or encourage any such behavior by anyone

_ else... . Ifa situation should arise which the Term

nal police cannot control, we shall ——, cease

our activities until such situation no

We intend to o

nger exists.

bey any police order reasonably de-

Opinion per Kaufman, J.

signed to prevent serious disorder or blockage of

pedestrian traffic.

Action leading to this lawsuit soon followed. On November

17, 1966, Rubbert denied the plaintiff’s request, relying on

the regulations governing use of the Terminal facility and

the consistent policy of the Port Authority to deny per-

mission to groups interested in conducting demonstrations

or distributing leaflets in the building. The Manager

‘The Manager of the Terminal based his refusal of Wolin’s

request on the following rules and regulations promulgated pur-

suant to § 6419, McKinney’s Unconsolidated Laws:

‘2. The Superintendent of the Terminal shall have au-

thority to deny the use of the Terminal to any individual

violating Port Authority Rules and Regulations, or laws,

ordinances or regulations of . . . the State of New York or

the City of New York. ‘ .

“*5, No person shall carry on any commercial ‘or other

activity at the T. without permission.

**8. No person post, distribute or display signs,

advertisements, ci or printed or written matter within

the Terminal without permission.’’ :

In addition, Without defining what constitutes a **nuisanee,’’ Regu-

lation 12 prohibits any person from doing any act or thing which

shall result in a creation or maintenance of a ‘‘nuisance”’ at the

Terminal. In practice the decision to grant or deny a request in

tribute promotional literature in the concourse areas. The Port

Authority has indicated that those who wished to communicate

Political views were denied access because unlike these other groups,

their activity is provocative and controversial.

5 |

weet khan ne Teale en

‘\

e A6

—

Opinion per Kaufman, J.

’ threatened arrest if the plaintiff persisted in his desire to

protest within the Terminal.

tribute leaflets and to conduct other enume ted activities

in the main concourse and passageways of the Terminal.

Plaintiff also asked that the defendants be enjoined from

restraining sych activities, or arresting ‘those persons ex-

ercising their rights of protest, or requiring him to obtain —

permission to engage in these activities, or in any Way dis-

couraging the public from accepting the leaflets, or haras-

sing and interfering with the peaceful and orderly conduct

of the plaintiff. J urisdiction was based on 42 U.S. C. § 1983,

98 U.S. C. §§ 1331, 1348 and 2201 and the First and Four-

teenth Amendments to the United States Constitution.

- Eventually, both parties moved for summary judgment.

Judge’ Mansfield, in a carefully reasoned opinion,’ granted

the plaintifi’s motion to the extent of finding that the

Terminal area was dedicated to public usé as a thorough-

fare and that it was therefore an appropriate place for

the exercise of rights protected by the First Amendment.

He decided that plaintiff had a right to distribute the

leaflets and this right could only be restricted under rea-

sonable, limited, and clear regulations promulgated by the

Authority. Accordingly, the court declared four sections

of the Rules and Regulations unconstitutional and enjoined

‘ defendants from interfering with the plaintiff’s right to

distribute leaflets in a manner that would not unduly ob-

struct traffic in the terminal. He directed the Port Av.

thority to promulgate new regulations that met standards

of uniformity and specificity, to govern distribution of

leaflets as well as the other methods of.communication pro-

_ posed by the plaintiff. The Port Authority appealed,

challenging this order in its entirety and arguing that the

5 268 F.Supp. 855 (S. D. N. Y. 1967).

Opinion per Kaufman, J.

erminal is an inappropriate place for political expression.

The defendants é “that the absolute proscription of

such activity embodied in pkesent policy is proper and

awful. In response, the plaintiff has cross-appealed con-

fending first, that the order failed to-include a direction

that defendants protect plaintiff im the exercise of his -

rights of protest against harassment from others; second, .

that the ordér should include similar protection pending

thé promulgation of regulations for activities other than

the distribution of leaflets but no less protected by the

Constitution; third, that the court should have declared

the plaintiff’s rights irreparably violated by the defend-.

ants’ past conduct; fourth, that it was error to declare

the regulations void only insofar as they involved censor-

ship of protected expression; fifth, that any requirement

of prior permission for the activities involved here should.

be declared invalid. . In part the plaintiff’s claims are con-'

cerned with the phrasing of the, terms of the order; in

part, as will appear, the cross-appeal points up important

issues that were unresolved by the District Court, and~

which require-some modification of the order,

Il.

The Port Authority in applying its Rules and Regula-

tions has consistently denied access to its facility: to those

seeking to use the premises as a forum for expression. The

ultimate question before us is whether these policies and

regulations ‘‘deny or unwarrantedly abridge the right of

assembly and the opportunities for the communication of

thought and the discussion of public questions immemorially —

associated with resort to public places.’’ Cox v. New Hamp-

shire, 312 U. S. 569 (1941). To make this determination

we must first decide whether the terminal so resembles a

public thoroughfare to make it an appropriate place for

the exercise of First Amendmerit rights. Once the threshold

to First Amendment analysis is crossed, we'must determine

~~,

Opinion per Kaufman, J.

whether the various methods proposed by the plaintiff toe

communicate his views are entitled to substantial protec- .

tion under the First and Fourteenth Amendments so that

plenary prohibition is impermissible and any regulation ©

_ should be subjected to the scrutiny and judged by standards

of precision applied to restrictions of such important rights.

We first’ inquire if the Terminal ‘is a place appropriate,

for polftical expression. Judge Mansfield saw the determi-

_ nation as between places dedicated to public use where fun-

- damental rights must be recognized and protected and places

essentially private where the owner’s rights of property and

_. privacy are superjor. With the issues thus posed, he prop-

* erly concluded, that. the Terminal is dedicated to the public

use, to no less a degree than the streets of a company

owned town, Marsh v. Alabama, 396 U. S. 501 (1946), or

the grounds of a World’s Fair, Farmer v. Moses, 232 F.

Supp. 154 (S. D. N. Y. 1964), or the’ parking lot of a

shopping center, Schwartz-T orrance Investment Corp. Vv.

Bakery & Confectionery Workers Local, 61 Cal..2d 766,

994 P, 2d 921 (1964), cert. denied, 380 U.S, 906 (1965): He

emphasized, and we agree, that the placement of title to

property is not dispositive for ‘‘Ownership does. not always

mean absolute dominion. The more an owner, for his ad-

vantage, opens up liis property for use by. the. public in

general, the more do his rights. beeome circumscribed by

the statutory and constitutional rights of those who use it.”

Marsh v. Alabama, 326 U. S. at 506. J udge Mansfield quoted

at length the words of Justice Roberts in Hague v. CIO, 307

U. &. 496, 515, 516 (1939). which are the touchstone for

courts charged with accommodating rights of expression

with other interests at play in the public forum:

Wherever 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, hawe been used -

for the purposes of assembly, communicating

thoughts between citizens, and discussing public

questions. Such use of the streets and-public places

has, from ancient times, been a part of the privileges,

ot Rae ts! «+ Ce By ee ee a ee” a ee reeds. te a

oY Opinion per Kaufman, J.

immunities, rights, and liberties of citizens. The

privilege of a Lowe i of the United States to use the

streets and p for communication *of views on

national questions may be regulated in the interest

‘ of all; it is not absolute, but relative, and must be ex-

ercised i in subordination to the general comfort and

convenience, and in consonance with peace and good.

order; but it must not, in the guise of regulation, be

abridged or denied. f

‘In the sense that the general public is afforded ready

access to the facilities inside the Terminal, and that the.

Terminal was created puisuant to compact between two

States ‘and administered according to statutory require-

ments necessary to its function-as a facility devoted to pub-

lic transportation, it cannot be disputed that the Terminal is

a public instr umentality—a public place subject to con- -

aia imposed: by the Constitution. This determination

would conclude our inquiry if the problem involved solely . ©

a discrimination in violation of the Fourteenth Amendment

and we were asked to determine if the power of the state

was so intertwined with the Terminal activity that the Con-

stitution forbade such action.» Reitman v. Mulkey, 387 U.S.

375 (1967) ; Evans v. Newton, 382 U. 8.-296 (1966) ; Burton

v. Wilmington Parking Authority, 365 U. S. 715 (1961);

Simkins v. Moses H. Cone Memorial Hospital, 323 F. 2d 959

(4 Cir. 1963).

-However, where the issue involves the exercise of First

Amendment rights in a place clearly available to the gen-

eral public, the inquiry must go further: does the character

of the place, the pattern of usual activity, the nature of its ;

essential purpose and the population who take advantage

of the general ‘invitation extended make it an appropriate

‘place for communication of views ‘on issues of political

and social significance. The factors to be considered are

essentially the same, be the forum selected for expression

a street, park, shopping center, bus terminal, or office plaza.® —

®See Kalven, The Concept of the Publie Forum: Cox v. Loui-

siana, 1965 Sup. Ct. Rev. 1; Note, ape 4 of Demonstrations,

80 Harv. L. Rev. 1773 (1967). ;

A10 °) 2

Opinion per Kaufman, J. |

The Port Authority argues that the Terminal is an in-

., appropriate site for such activity because the interior of a

building is not. traditionally a place for exercise of First

_ Amendment rights. Moreover, it is urged that the Terminal

is unrelated to the subject under discussion and that the

_ purposes for which the pbuilding was constructed do not in-

clude plaintiff’s suggested activity. We disagree with these

views because they evidence too little regard for the vaga-

ries of effective communication, and for the versatility .of

the First Amendment’s proscription. As we-have already

indicated, thé. character and function of the ‘Terminal,

makes clear that it is a thoroughfare used by thousands of

people each day. It is one’ of the busiest passageways in

the country, with persons hurrying to and from subways,

buses, shops, theaters, and other streets. In design and

physical appearance, the main concourse resembles a street. ~

The fifty foot walk is lined with stores and concessionaires,

crowded at some hours and less dense at others. Unlike an

office building corridor or an apartment house hallway,

Watchtower Bible &T. Soc. v. Metropolitan Life Ins. Co.™

297 N.-Y. 339, 79 N. E. 2d 433, -cert. denied 335 U. S. 886

(1948), the people are not simply using the connecting pas-

sageway to reach .a place where they engage in different,

-more pacific or reflective activities. They are in the Termi--

nal for the principal purpose of moving to and from other

means of transportation—and the space is designed for

precisely the purpose of transit. With the scope of opera-

tions so vast, the enclosure is desirable and indéed neces-

sary if the congestion and confusion that would attend if

all waited for buses on the street are to be avoided. In

other times or better climes travelers have waited wy the

roadside or under some shelter for the oncoming vehicle.

But here, the buses drive into the building and the pas-

sengers meet them there. The Terminal, with its many ad-

_ juncts, becomes something of a small -city—but built in-

doors, with its ‘‘streets”’ in effect set atop one another, and

vehicles operating under, above, and to the side, not unlike

some futuristic design for urban living.

All

Opinion per Kaufman, J.

Thus, we cannot accept the argument that the mere pres- _

ence of a roof alters the character of the place, or makes the

Terminal an inappropriate place for expression. The/pri-

' vacy and solitude of residents may require that apartment

house hallways be insulated frorff the excitement of volatile

- exhortations; or the quiet dignity of judicial administration

may dictate that courthouse passages be kept free of dem-

onstration.’ But that is a result based on wisdom and ex-

perience because the abrasions caused by any protected

speech would too greatly interfere with other interests—

and not simply because there is a covering. on the building.

Indeed, the public forum is surely as traditionally a eovered

meeting hall as a sunlit arena. Thomas v. Collins, 373 U.S.

516 (1945) ; Terminiello v, Chicago, 337 U. 8.1 (1949).

The Terminal building is an appropriate place for ex-

pressing one’s views precisely because the primary activity

for which it is designed® is attended’ with noisy crowds and

7 Watchtower Bible & T. Soc. v. Metropolitan Life Ins. Co., 297

N. Y. 339, 79 N. E. 2d 433, cert. denied 335 U. S. 886 (1948), State

v. McNair, 178 Neb. 763, 135 N. W. 2d 463 (1965).

$Under McKinney’s Unconsolidated Laws § 6701, a: bus ter-

minal exists ‘‘ .. . for the accommodation of omnibuses and _other-

motor vehicles operated by carriers engaged in the transportation

of passengers, or for the loading, unloading, interchange or trans-

‘fer of such passengers or their haggage, or otherwise for the accom-

modation, use or convenience of such passengers or such carriers

or their employees .. .’’ It cannot be doubted that the publie is

afforded free access to the facilities for this purpose, and that the

activity is necessarily accompanied by the noise and unrest of

hurrying crowds. Further, it is.clear that the character and func-

tion of the place chosen for protest will affect the limits of tolerable

disruption from protest. In Edwards. v. South Carolina, 372 U.S. |

229, 233 (1963) the Supreme Court granted protection to ‘‘bois-

terous,’’ ‘‘loud,’’ and “‘flamboyant’’ conduet in the form of cheer-

ing and singing in a statehouse driveway during the day. See also

Coz v. Louisiana, 379 U. 8. 536, 546-48 (1965). Similar activity

would not receive the same treatment if it was conducted near a

hospital, in a public library, an anartment hallway, or a city council

. (Footnote continued on next page)

4 Bins 4 in

. . ae ee

yee Sh a rei ae

Diels ees rein wre rad

A 12

Opinion per Kaufman, J.

vehicles, some urirest oad less than perfect order. Like a

‘ eovered marketplace area, the congestion justifies rules

“

regulating other forms of activity, but it seems undeniable

that the place should be available for use in appropriate

ways as a public forum. The admission of charity solici-

tors, glee a and automobile exhibitions without un-

toward incident evidences the ease with which the Terminal

accommodates different forms of ‘communication. To deny

access to political communication seems an anomalous in-

version of our fundamental values. Cf. Wirta v, Alameda

Contra Costa Transit District, 36 U. S. L. W. 2375 (Calif.

- Sup. Ct. Dee. 12, 1967).

‘The defendant argues that the inappropriateness of the

place is demonstrated by the fact that Wolin’s message

bears no special relation to the operations of the Terminal:

The propricty of a. place for use as a public forum does |

turn on the relevance of the premises to the protest, but

this relation may be found in two ways. In some situations

the place represents. the object of protest, the seat of au-

thority against which the protest is directed. See Brown v.

Louisiana, 383 U.S. 131 (1966) ; Adderley v. Florida, 385

U. 8. 39 (1966) ; Edwards v. South Carolina, 372 U. S. 229

(1963). In other situations, the place is where the relevant

audience may be found. Here, the plaintiff is attempting

to commuicate his antiwar protest to the general publie

and to a special audience—servicemen traveling to and

(Footnote continued from preceding page) ;

chamber, places where ‘‘order and tranquility of ‘a sort entirely

unknown to the public streets are essential to their norfnal opera-

tion.’? See Brown v. Louisiana, 383 U.S. 131, 157 (1966) (Black,

J. dissenting) (see also 383 U. S. at 139 (dictum) ) ; Watchtower

Bible & T. Soc. v.' Metrdpolitan. Life Ins. Co., supra; State ¥.

McNair, 178 Neb. 768, 135 N. W. 2d 463 (1965) (singing and

marching in city eSuncil chamber). See generally, Note, Regula-

tion of Demonstrations, 80 Harv. L. Rev. 1773, 1774-75 (1967).

A113

» Opinion per Kaufman, J.

from their bases, particularly buses arriving from Fort Dix.

The public is there, more than 200,000 persons a day, and it

is. likely that the concourse areas are more appropriate for

_ the proposed activity than a narrow sidewalk. And service- :

men on leave are in the Terminal also in great numbers.

If the Terminal is a proper. place for the exercise of First

Amendment rights under appropriate regulations, a denial '

of these rights cannot be hased’on the statutory authority

granted the Terminal officials’ to -bar miscreants and dis-

orderly persons from the facility. N. Y., Penal Law, § 150.°

As the able trial judge recognized, ‘the purpose of such

disorderly conduct statutes is’ to prevent terminals from

> being infested by those ‘who have no oceasion to be,there,’

such as congregations of degenerates or nondescript charac-

ters who pose a danger to the public... . No such threat is

posed here.’’ 268 F. Supp. at 861; see People v. Bell, 306

N. Y. 110 (1953). The plaintiff is not a ‘‘nondeseript charac-

ter’? who is a danger to the public. Instead, he seeks to ©

exercise an historic right of freemen, to participate in his

society by attempting to persuade others ‘of. his position

on issues of the utmost importance. |

Provocative and controversial the discussion may be, but '

in the excitement generated by political controversy our pre-

_conceptions and prejudices are tested. The framers of the

Constitution opted -for the disharmony of controversy be-

——

_*§ 150. Peddling, unauthorized soliciting of business or trade,

- begging or loitering on air and bus terminal property.

* -* *.

“2. Any person who ‘loiters ‘about any toilet, area, station, sta-

tion platform, waiting room or any other appurtenance of an air -

or bus terminal, or who is found sleeping therein or thereon. and

who is unable to give satisfactory explanation of his presence is

guilty of an offense.’’ ‘

se LT iain

‘ :

Sophbbeabascar she aaaian cela antink ae al

q yy.

apt Uae A14

Opinion per Kaufman, J.

cause they believed that in that unrest lay ‘the best pros-

pect of an ordered society.” — 7

Others may quarrel with Wolin’s choice of forum and

vigorously dispute his message, but we believe the Port

Authority may not abridge his right to choose this place

any more than they can control his choice of message. ‘We

hold the Constitiation precludes the Port Authority from

enforcing a plenary prohibition of speech within the Ter-.

minal."?. | : :

)

III.

_ We must now consider whether Wolin’s proposed activi-

ties including distribution of leaflets, carrying placards,

setting up card tables, and engaging in conversation with

others.using the Terminal are entitled to substantial pro- .

tection under the First and Fourteenth Amendments. Judge

‘Mansfield decided the question with respect to the distri-

bution of leaflets; he carefully cénsidered and countered the

assorted reasons offered by defendants in justification of

‘an absolute bar on, such activity. Thus, a uniform and

absolute prohibition could not be defended on the ground

that the..action. would obstruct traffic since there was 0

contention that every leaflet distribution would be obstrue-

tive regardless of time‘or location. The prospect of littering

from the distribution of -political circulars within the facil

10 “Speech is often provocative and challenging. It may strike

at prejudices and preconceptions and have profound unsettling

Affects as it presses for acceptance of an idea.”’ Terminiello V.

Chicago, 337 U. 8. 1; 4 (1949), quoted in Cox v. Louisiana, 319

U. 8. at 551-52. eee era

_AVIn the rare case where the speech itself amounts to illegal ac.

Ativity, as where the speaker incites desertion from the armed forces:

or counsels insubordination by a serviceman, see 18 U.S. C. §§ 1381,

2387, the speaker is.of course subject to arrest on warrant or prob-

able cause and to prosecution in the normal course. —

A 15

Opinion per Kaufman, J.

ity, while acknowledged, is constitutionally insufficient to

‘support a flat proscription. Schneider v. State, 308 U. S.

147 (1939). Similarly, the availability. of some alternative

-. forum, and the likelihood of a swarm of protesters each

with their special ery disrupting the normal: operation of

the Terminal, are not material where the issue involves a

blanket and wholesale ban: The potential’ provocation —

caused by heated debate is not a valid reason ‘to preclude

discussion. Judge Mansfield stated it well: ‘‘The right of

free public.expression on political issues is too dearly prized

to be curtailed without equally important public cause.

Such suppression would be the first step toward ultimate

stagnation of essential debate.’’ 268 F.Supp. at 863.

We agree with the District Court that a flat prohibition

on distribution of leaflets in a place appropriate for ,politi-

eal expression ‘cannot stand. The Supreme. Court. has

dearly recognized that “pamphlets (have) become historic

weapons in the defense of: liberty,’’ and that ‘‘publie eon-

venience in respect to cleanliness of the streets’? does not |

justify such drastic interference with precious rights of

communication. Schneider v. State, 308 U.S. 147, 160-61 -

(1939) ; see also Jamison v. Texas, 318 U: 8. 413 (1943);

Talley v. California, 362 U, S. 60 (1960) ; Kalven, The Con.

cept of.the Public Forum, 1965 Sup. Ct. Rev. 1, 15-21;

Emerson, Toward a General Theory: of the First Amend-

ment, 72 Yale L. J. 877, 926-28 (1963) ;, Niemotko v. Mary-.

land, 340.U. S. 268, 273-89, (1951) (separate opinion of .

Frankfurter, J.). It seems to us that these cases clearly |

_ establish that non-commercial leaflet distribution is an es-

sential right that cannot be barred except for especially

good reasons, and that the burden of street cleaning is not

good enough. We believe it beyond dispute that the con-

gestion and controversy that may attend the activity in -

the Terminal, while pertinent to the enactment of rules and

regulations to govern the activity, cannot be invoked to

support a flat prohibition.

A 16

oe wee e@.-

‘ + . ‘

Opinion per Kaufman, J.

Although Judge Mansfield directed the defendant to in-

- corporate the other activities proposed by the plaintiff in

“the new regulations he ordered the Port Authority to issue,

the Judge does not seem to have determined if those .ac-

tivities were protected under the First Amendment. His”

. hesitancy is understandable fér we might look in vain

through recent Supreme Court cases involving public dem-

We believe each proposed activity must be afforded some

measure of protection. Whether we — of placards or

-eonversation or tables laden with literAture™ we deal with

forms of communication developed to express the plain-

tiff’s yiews to the particular audience. The methods’

pare y

- (1966) and Brown V. Louisiana, 383 U.S. 131, 151 (1966) (dissent-

ing) with opinions by Justice Fortas in Brown v. Louisiana, 383

U. 8. 131 (1966) and Justice Douglas in Adderley v. Florida, 3%

U. S. 39, 48 (1966). be also Justice White's opinion in Brown ¥.

Louisiana, 383 U. 8. 131, 150 (1966) and Justice Stewart's opinion

in Edwards v. South Carolina, 372 U. 8. 229 (1963). See Kalven,

ly al aametae ieee Cox v. Louisiana, 1965 Sup. Ct. |

» de

18'The New York Court of Appeals has recently decided that

thé uve of card tables on a street for the distribution of polit

literature is protected against plenary denial. People v. Kate,

__— N. Y. 24 —— (Dee. 28, 1967). The potential of card tables

OO —a————

Al7

Opinion per Kaufman, J.

lopted may be unsophisticated or crude and even ineffec-

al when compared with other means, but they are no less

ybust and no less intended to air the speaker’s views as

fectively as his resources and energy permit." The tech-

iques involved here are peaceful afid orderly ; we deal with

n attempt to communicate directly-by forms that are classic

: simplicity and worthy of emulation. Ronald Wolin does

ot present us with a program of coercion or defiance of

ws or physical confrontation. He asks that he and his ~~

ssociates be permitted fo stand with placards and con-

erse with persons who accept their handbills; also, that

ey be allowed to set their display on tables rather than

oors. In this context, such activity is the substance of

xe ‘free trade in ideas’’ no less than the soapbox orator,

lbrams v. United States, 250 U.S. 616, (1919) (Holmes,

. dissenting). No less than the leaflet, the newspaper, or -

ie oration it appeals ‘‘to the power of reason as applied

hrough public discussion,’’ Whitney v. Contfounte, 274 U.S.

57, 375 (1927) (Brandeis, J. concurring).

We should in these times be mindful that to the extent

e secure legitimate and orderly access to means of com-

munication for all views, we create conditions in witich

here is no meentive to resort to more disruptive coriduct.

ionald Wolin seeks protection through the channels of his

overnment of rights accérded him by the Constitution and

e, as the agency of that goyernment charged with seeur-

ig those rights, ought ensure that no unneeded delay en-

umber the exercise of such critical freedoms.

™ Professor Meiklejohn put it this way: ‘‘ What is essential is

ot that everyone shall speak, but that everything worth saying

ball be said.’’ A. Meiklejohn, Political Freedom: The Constitu-

onal Powers of the People 25-28 (1960) ; V. O. Key, Public Opin-

m and American Democracy 378-87 (1961) ; Barron, Access to the

ress—A° New First Amendment Right, 80 Harv. L. Rev. 1641 |

1967) ; Ferry, Masscomm as Educator, 35 Am. Scholar 293 (1966).

_ Al8

‘Opinion per Kaufman, J.

IV.

We are brought then to consideration of the regulations

under which the plaintiff was denied access to the Termi-

nal. Judge Mansfield found, and we agree, that the pres-

ent regulations are an excessive delegation of unfettered

discretion placed in the power of the Terminal Manager,

defendant Rubbert, and that therefore they are unconsti-

tutional. Coz v. Louisiana, 379 U. S. 536 (1965); Lovell v.

City of Griffin, 303 U.S, 444 (1938). The effect of the pres-

ent regulations is to empower a single official to refuse ac- |

cess on his mere opinion that a denial will prevent incon-

venience and disorder. By such devices official authority. |

- ean become ‘‘an instrument of arbitrary suppression of

opinion on public questions.’’ Cox v. New Hampshire, 312

U.S. 569, 577 (1941). .

As we have indicated, the District Court directed the de-

fendant to promulgate new regulations carefully drawn to

control the conduct of plaintiff and similar groups within

the building. No one can question the legitimate public

interest in maintaining a free fo of traffic in the Termi-

nal, in avoiding excessive disruption of normal activities

there, in. ensuring the convenience and movement of pas-— _

sengers and vehicles. To meet this need, the relevanf au-

thority, whether municipal or otherwise, may prescribe

‘< rules of order”? for the use of the premises. The character

of the place, including the number of persons passing

through at different times and the enclosed. design of the

forum, will affect the degree of restriction tolerable under

the Constitution. We need not—indeed it would be inad-

visable for us to do so without more adequate information

—prescribe in detail the standards or terms of such rules.

We believe the drafting of regulations is, in the first in-

stance, properly the function of .the responsible officials.

But, some guidelines are in order. In accommodating the

interest of protesters and general public, the Port Author- |

ity. may set approximate and reasonable limitations on the

ee a = . pon —— Wants Bs le i a re ee

| A1I9 °

Opinion per Kaufman, J.

iber of persons who may engage’ in such activities at

specific time, the duration of the activity and the spe-

places within the building where the rights of expres-

may be exercised. Certainly, the officials in drawing

e rules will be mindful that the plaintiff has a consti-

mally cognizable interest in reaching a broad audien

he is entitled to do so within limits tolerable in light\,

he usual activities in the Terminal.” 4 ;

n drawing appropriate regulations the Terminal offi-

may consider whether the circumstances justify a re-

ement that groups like those represented by the*plain- |

should give advance notice to the Terminal officials.

1 notice requirements must be examined with special

in view of the tendency to abuse. See Cox v. New

shire, 312 U. S. 569 (1941) ; Freund, Supreme Court

Civil Liberties, 4 Vand. L. Rev. 533 (1951). Whether ,

ireumstances in this case support such a requirement

erly rests in the first instance with the officials who

draft the regulations, and therefore, we intimate no

on this question:

1 the’exercise of his rights under fair and reasonable

lations, the plaintiff is also entitled: to protection by

‘erminal police. * Hague v. CIO, 307 U. S. 496 (1939) ;

See, e.g., Cottonreader v. Johnson, 252 F. Supp. 4

1966) ; Williams v. Wallace, 240 F. Supp. 100 (M.D

; Farmer v. Moses, 232 F.. Supp. 154 (8. D. N. Y.

Inc. v. Wilson, 402 Pa. 94, 166 A. 2d 271 (1960) ; Anora

ement Corp. v. Doe, 171 Mise. 279, 12 N. Y. S. 24 400 (Sup.

39). Note, Regulations of Demonstrations, 80 Harv. L. Rey

1967).

In Wright v. Georgia, 373 U. 8, 284, 293 (1963) the Supreme

said that ‘‘the possibility of disorder by others cannot justify

ion of persons from a: place if they otherwise have a consti-

al right . . . to be present.’’ See also Brown v. Louisiana, 383

131, 133 n. 1 (1966). Of course the law enforcement officers

@ permitted to exercise judgment in maintaining order within

rminal. We hold simply that thé order acknowledge the

shed proposition that the speaker must be protected from

t by others.

weer

Pee. 4

Opinion per Kaufman, ss

Lobe eee

Kelly v. Page, 339 F. 2a 114 (5 Cir. 1964); Williams v.

Wallace, 240 F. Supp- 100 (M. D. Ala. 1965): This pro-

. tection should be included in the order issued ‘by the court

so that the officials will be on notice of their constitutional

responsibility to protect those properly exercising rights

of expression. In- this way the district court will be dis-

charging its responsibility to reconcile the interests at odds

in the public forum. :

One final observation. It is essential that these regula-

tions be issued promptly. The plaintiff has waited many |

months for the protection of rights secured to him by the

Constitution. These rights are as effectively stifled by de-

lay as by suppression. :

We therefore affirm the order as modified. The District

Court is directed to retain jurisdiction and prescribe a |

time schedule for the promulgation and adoption of rea-

sonable, non-discriminatory regulations of general appli- |

cation governing the activities proposed.by fhe plaintiff.

the plaintiff and those represented by him will be permitted

to engage in such activities in a manner consistent with the

standards set forth above. .

RP ae auistase~ 0

—n

a A21

APPENDIX B R

Opinion of the United States District Court for the

Southern District of New York |

Mansrte.p, District Judge. a

Plaintiff, who sues individually and on behalf of two

ganizations which are opposed to United States policy in

ietnam,! seeks a declaratory judgment that he be per-

itted to distribute political leaflets in the main concourse ~

nd other passageways of the Terminal Building (‘‘Ter-

inal’? herein) operated by the Port of New York Au-

rity (“Port Authority”’ herein) at Eighth Avenue and

\th Street, Manhattan, and used by the public; and that

1e defendants be enjoined from restraining such activities,

rresting him, requiring him to obtain permission to engage

1 such activities, or discouraging the public by various

eans fromp-aecepting such leaflets.2 Jurisdiction is based

n 42 U. S. C. § 1983, 28 U. S. C. §§ 1331, 1343 and 2201

nd the First and Fourteenth Amendments to the United

tates Constitution. The parties have cross-moved for

ummary judgment pursuant to Rule 56, F. R. Civ. P.

Defendant Port Authority is a public corporation

reated in 1921 pursuant to a compact between New York

nd New Jersey. McKinney’s Unconsolidated Laws of

v. ¥. § 6401, 4 6404. Its business is conducted by twelve

ommissioners, six of whom are appointed by the State of

New York and six of whom are appointed by the State of _

New Jersey. Ibid. 46405. The Port Authority, among

ther things, operates the Terminal which occupies one

full city block between Eighth and Ninth Avenues and 40th —

and 41st Streets in Manhattan. The Terminal contains

'The organizations are the Fifth Avenue Vietnam Peace Parade

Committee and-the Veterans and Reservists to End the War in

Vietnam. ’ oe.

2Defendants are the Port Authority, its Manager, the Com-

manding Officer and various other officers of the Port Authority

Terminal Police. . : ,

re Balad Db

. OED Her tide vs

Scnienambare es

A 22

Opinion of Mansfield, J.

a number of areas open to the public, including a main con-

course ‘approximately 50 feet wide, an upstairs and a down.

stairs concourse, a niajor subway entrance and various sub-

ways and walkways. In -addition, within ‘the Términal

there.are bus line ticket counters, newsstands, restaurants,

snack bars, a bakery, a drugstore, a bar, a bowling alley, a

bank, gift shops and various other shops and concessions

which are open to the general public. Thousands of people

use the Terminal facilities on each day. For example, the

average number of persons passing through the Terminal

daily in 1966 was 205,000 and on De¢ember 24, 1966, ap-

proximately 325,000 persons used the Terminal. During

1965 over 68,000,000 persons used the Terminal. It may

well be the busiest terminal in the world. .

The Port Authority maintains a police force for the pur-

pose of maintaining order in the Terminal and enforcing

Port Authority rules and regulations. The force consists

of a substantial number of officers. serving under the super- |

vision of the Manager of the Terininal,-defendant Albert}

‘Rubbeft. The Manager has instructed members of the Port

Authority’s police force to arrest any persons who attempt

to distribute leaflets in the ‘Terminal when they have been

denied permission by the Terminal to do so and haye been

given an opportunity to leave the Terminal.

At various.times during the months of October, Nover-

ber and December, 1966, principally on Sunday evenings

plaintiff and those associated with him have distributed out-

side the 8th Avenue entrance to the Terminal leaflets criti}

cizing eur Government’s participation in the Vietnam wat.)

Plaintiff’s activities, which have consisted. of handing out

literature to persons on the sidewalks outside the Termin! >

and occasionally engaging in conversation with someon}

who stops to take a leaflet, have at all times been conduetel he

in a peaceful and orderly manner, although they liave ™f .

occasions led others to call out criticisms, attempt to per}

suade pedestrians not to accept the leaflets, and on fou},

”

Be imsna ey oh

Sea he: . abr A eRe EA

a NB ess ARS etna nas Re Aa et weiie el BA atin be the de

TP Re ee RE

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ee A298

| Opinion of Mansfield, J.

xecasions assaults have been made upon plaintiff or one of

his associates.

On the evening of November 6, 1966, plaintiff and five

»ther persons entered the Terminal and distributed political

ind waiting area-near gates 106-115 on the upper bus level |

‘or approximately 80 minutes. “Despite the fact that they

hn no way interfered with the movement of traffic in the |

Terminal, they were.-forced to leave by Port Authority

»olice who threatened their arrest. On November 13 and 20

here were similar occurrences.*

- By letter dated November 16, 1966, plaintiff, on his own.

ehalf and on behalf of the organizations represented by

im and their friends and supporters, requested permission .

f the Manager of the terminal -to distribute political hand-

ills or leaflets relating to our Government’s policy with re-

pect to the Vietnam war, to carry placards containing

litical. messages or slogans pertaining thereto, to set up

olding card tables for distribution of such political litera- «

ure, and to engage in discussions with pedestrians who. .

ight stop to converse with them.. Plaintiff advised that |

is purpose was to communicate views concerning our Gov-

rnment’s participation in the Vietnam war to travelling

ervicemen and members of the public within the Terminal,

iat plaintiff and the groups represented by him did not in-

nd to interfere in any significant or substantial way with

le operation or use of the Terminal for the convenience

f bus passengers or other persons using the building, and

at plaintiff desired to engage in such activities inside the

erminal rather than be relegated to the sidewalk perim- .

ers for the reason that -plaintiff’s communication of his

roup’s messages to pedestrians waiting inside the Termi-

*The parties have stipulated that on November 13 no “‘inci-

nts’’ occurred and there was no interference with the free flow

traffic in the Terminal. There is no evidence as to whether there

s such interference on November 20. ° =

DN dete RIT te

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pe Grey ia oe oe

Opinion of Mansfield, J.

nal would be more effective than attempts to communicate ,

views to persons using-the sidewalks to enter or leave the :

Terminal, since passengers waiting inside the Terminal con-

course had more time and hence were more receptive than

those hurrying across the sidewalk to or from the Terminal.

Plaintiff further advised that if a group of bystanders, in

response to plaintiff’s dissemination of such information,

should create any interference with traffic, plaintiff and his

-gronp would call upon their members to disperse, and plain-

tiff would temporarily cease activities until such a situation

no longer existed, so that his activities would not obstruct

_ the passage of anyone in the Terminal or interfere with the

operation of any’ business 6ér coneession therein. :

On November 17, 1966, defendant Albert Rubbert, Man-

ager of the Terminal, responded that plaintiff’s_ request

was denied pursuant to the’ Port Authority’s: standing-T

policy of refusing to permit anyone to engage in picketing,,

demonstrations and leaflet distribution. He further advised

that if, notwithstanding such refusal, plaintiff attempted to

engage in such activities, he would request the Port Author-

ity police to arrest them after.a reasonable opportunity was

given to cease such activity.

It has been stipulated between the parties that the Port

- Authority and the defendant. Rubbert have in the. past

granted permission to various charities to solicit eontribu-

tiéns in the Terminal, that they have permitted glee clubs

to sing Christmas carols in the Terminal, which were

broadeast.over the loud speaker system, and that they have,

for a fee, permitted automobile manufactygers’ to place

automobiles. and advertising material on display in the

- Terminal.

_° A threshold question is. whether the Port Authority

Terminal is a public or quasi-public place. If it were

private property, used for the owner’s private purposes,

the plaintiff’s Constitutional right to disseminate ideas and

. 93 L. Ed. 425 (1948). \If, on the other hand, the Terminal.

is property essentially dedicated to. public use, the citizen’s |

A 25

Opinion of M ansfield, J. -

communicate beliefs and: views would be required to yield

to the: owner’s right to be protected against trespass or

invasion of his Constitutional right of privacy. Adderley

v. State of Florida, 385 U. S. 39, 87 S. Ct. 242, 17 L. Ed: 2d -.

149 (1966); Watchtdwer Bible & Tract Society v. Metro-

politan Life Insurangg Co., 297 N. Y. 339, 79 N. E. 2d 433,

3 A. L. R. 2d 1423, cat. denied, 335 U. S. 886, 69 S. Ct. 232,

fundamental right freely to express his views in a public

' place must be recognized and this right may be curbed only

to the extent that reasonable, non-discriminatory regulation

is essential to prevent crippling the primary public use to

which the property is dedicated. As the Supreme Court

stated in Marsh v. State of Alabama:

‘‘Ownership does not always mean absolute do-

minion. The more an owner, for his advantage, opens

up his property ‘for use by the public in general, the

more do his rights become circumscribed by the

- Statutory and constitutional rights of those who

use it. . 2 | :

* * *

‘When we balance ‘the Constitutional rights of

owners of property-against those of the people to

enjoy freedom of press and religion, * * * we remain

mindful of the fact that the latter occupy a preferred

position.’ (326 U. S. 501, 506, 509, 66 S. Ct. 276, 278,

280, 90 L. Ed. 265 (1946)) rate ao

The citizen’s Constitutional right under the F'rst: and Four-

teenth Amendments to communieate ideas and views to his

fellow citizens, however unpopular such views may be, rep-

resents one of the bulwarks of our free, democratic society.

Traditionally our public streets, meeting halls, parks and

similar places have been recognized as locations in which

this sacred right may be exercised, not only because such ~

| places, being dedicated to public use, are held in trust for

all citizens, but also because they are usually locations

BR ABS A sn GAO AR EEE NE ELE Ais SR :

A26 | :

oe Opinion of Mansfield, J. :

Vin eae NO AED!

SS ORR ae

where the ears of large numbers of fellow citizens can most

effectively be reached. Such public-sites are the ‘‘natural

and proper places for the dissemination of information and

opinion’’. Schneider v. State of New Jersey;308 U. 8S. 147,

608. Ct. 146, 84 L. Ed. 155 (1939) ; Hague v. tO, 307 U.S.

496, 515, 516, 59 8. Ct. 954, 83 L. Ed. 1423 (1939).

si ' «Wherever 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, . and discussing public |

questions. Stch use of the streets and public places |

has, from ancient times, been a part of the privileges, '

immunities, rights, and liberties of citizens. - The

privilege of a citizen of the United States to use the

, streets and parks for communication of views on

. national questions: may be regulated in the interest

of all; it is not absolute, but relative, and must be |

exercised in subordination to tHe general comfort

and convenience, and in consonance with peace and |

good order; but it must not, in the guise of regula-

tion, be abridged or denied.’? (From opinion of Mr. |.

Justice Roberts in Hague v. CIO, 307 U. S. 496, f=.

515-516, 59 S. Ct. 954, 964, which was later adopted |.

as the opinion of the Supreme Court.) .

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- Tn determining whether a particular location, such 4

as the Terminal in the presgnt case, is a public one, {7

-we look to substance rather than to form. The fact. that [>

title to-the site may be held in the name of a separate cor- E

poration or entity is not controlling, if in fact its purpose 3

‘and use are public in nature. Marsh v. State of Alabama, |)

396 U. S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946) ; Farmer [7

v. Moses, 232. F. Supp. 154 (S. D. N. Y. 1964). Dedication |

‘of property to public use in effect dedicates it to the- exer- 4

cise by the public of en mage rights, including the };

rights of free speech and as embly under the First Amend: F

"ment. ies . oh :

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+ + AST 6

- Opinion'of Mansfield, J.

Applying these fundamental principles ‘here, there can

be no serious question about the fact that the Termina]

is essentially a public establishment, dedicated to public

use. It is a creature of the States of New York and New ;

Jersey. It exists and operates under their direction and

control, being an agent of both states, McKinney’s Uncon-

solidated Laws § 6451; Port of New York Authority v. J. E.

Linde Paper Co., 205 Mise. 110, 127 N. Y. 8. 2d 155 (1953) ;

Port of New York Authority .v. City of Newark, 17 N. J.

Super. 328, 85 A. 2d 815 (1952). Its powers emanate from —

an agreement ‘between the two states: Its Terminal] is

designated by statute as heing ‘‘in all respects for the bene-’.

fit of the people of the states of New York * * *,?’ and the

Port Authority is described as performing an essential

“governmental function in undertaking the construction,

maintenance and operation thereof and in carrying out the ;

provisions of law relating thereto”, McKinney’s Uneon-

solidated Laws.{§ 6703.4 Its securities are tax exempt, Ibid. -

§ 6409. It has the power of subpoena (Ibid. § 6463) and its

police foree are expressly provided with all the powers’

of ‘‘peace officers’? (N. Y. Code of Crim. Prog, § 154).

Although it is true, as defendants note, that a ‘‘bus ter-

minal’? under New York law (Ibid. § 6701). exists

‘«* ** for the accommodation of omnibuses and other |

motor vehicles-operated by carriers. engaged in the

transportation. of passengers, or for the loading,

function ni >

“The establishment, maintenance and operation of such motor

us terminal within the port of New York district is and will be.

n all respeets for the benefit of the people of the states of New York

ind New Jersey, for the increase of their commerce and prosperity

ind for the improvement of their health and living conditions; an

he port authority shall be regarded as performing an essenti

overnmental function in undertaking the construction, mainte-

lance and operation thereof and in carrying out the provisions of

aw relating thereto.’’

4668 6703. Benefits from terminal: construction as governmental

ie.”

| A2® ae )

Opinion of Mansfeld, J.

«. unloading, interchange or transfer of ‘such passen-

*. gers ‘or .eir baggage, or otherwise for the accom.

modation, use pr cogvenienee. of such’ pareengece or

such carriers ot their employees scales oa

. the dentin of the Terminal requires the Port Authority,

as a practical matter, to permit the;general public to have

free access to the eeoncourse, waiting reoms, and shops and

services located in the Terminal building. It has not been

suggested that non-passengers are excluded ‘from the Ter.

minal. On the contrary, it appears that certainportions of

the Terminal (such as the concourse) may be used by

members of the public for the purpose of patronizing shops.

“or other services located in the Terminal building, and that

friends of passengers mayetreely use the waiting room fa.

cilities. No fee is exacted as a condition to entry into the

Terminal, a factor considered relevant by the €ourt in

holding that the concourse or well of the Pennsylvania

Railroad Station in New York City was a public place itt

which picketing might be conducted. People v. Barisi, 198

Misc. 934, 86 N. Y. S. 2d 277 (Magistrate’s Ct. 1948), Un

- like the jail grounds in‘ Adderley v. State of Florida, 38

U. S..39, 87 S. Ct. 242, 17 L. Ed. 2d 149 (1966), which the

Supreme Court found not tobe open to the public, since

’ the jail was ‘‘built for security purposes”’, the Terminal

here is open to the public and is at least as. ‘public’ a

place as the ‘‘company-owned”’ town in Marsh v. State of

Alabama, supra, and as the grounds of the New York

World’s Fair, whith Judge Tyler of this Court found to

be a*location where the public was entitled to distribute

leaflets, even though a fee was charged for admission te

' the fair oe Farmer v. Moses, 232 F, Supp. 1

(S. D. N. Y. 1964).* In effect the concourses. of the Ter

5 See also Schwartz-Torrance Investment ..v. Bakery é¢

Confectionery Workers’ Union Local No. 231, 61 Cal. 2d 766, #

Cal. Rptr. 233; 394 P. 2d 921 (1964), cert. denied, 380 U. S. %&

85 S. Ct. 888, 18 L. Ed. 2d 794 (1965) (shopping center parking

lot) ; People v. Ribinovich, 171 Mise. 569, 13 N. Y. S. 24 185 (Spe.

Beaton, 2d Dept. 1939) (Coney Island boardwalk).

- °

‘

A 29

Opinion of Mansfield, J. |

fare through waich an average of over 200,000 pedestrians

_ pass daily for the purpose of getfing to and from their

- places of business, a shops, and other locations.

Defendants Tely. upo § 150_of of New York’s Penal Law,

that as far as peysons in the position of the plaintiff are con-

cerned a bus terminal, is to be considered private property.®

Their reliance, however, is, misplaced. As New York’s

- Court of Appeals noted in People v. Bell, 306 N. Y. 110, 115

N. E. 2d 821 (1953), in construing identical language in

4 1990-a of the Penal Law, the purpose of such disord@ly

conduct statutes is to prevent terminals from being infested

by those ‘‘who have no occasion to be there’’, such as con-

gregations of degenerates or nondescript- chatacters who

pose & danger to the public. In the interest of public wel-

turned into a publi@ housing development for reprobates

5 who might rush like lemmings to its shelter and thus con-

is posed here. Furthermore, as the Court noted in’ Bell,

there are many purposes other than travel for which a citi-

zen may lawfully be present i in a termina] (e.g., patronizing

shops, bowling alleys, or- using toilet facilities) so that the

Soe a's oe Se

cided as the case arises’’; Recognizing the reluctance of

t f New York’s highest court to affirm convictions in the absence __ '

tof Of proof of more than mere unexplained presence in a ter-

. *«<§.150. Peddling, unauthorized soliciting of bushines or trade,

1 begging or lettering on air and bus terminal property. —

er Bi “9. Any person who en ian any toilet, area, oon

BR tion platform, waiting room or any other appurtenance of an air

y € B) or bus terminal, or who is found sleeping therein or thereon and —

, 4 FF who is unable to give satisfactory explanation of his presence is

906, B) guilty of an offense,’’

king

pe. .

| minal, like the streets of New York, function as a thorough-

- MeKinnty’s Consol. ie. ce. 40°as evidencing an intent ;

fare and safety, the law prohibits a bus terminal from being —

gest and disrupt its essential operations. No such threat °

legitimacy of a person ’@ presence in a terminal must be ‘‘de- -

' ” The public is entitled to such service free from any substan-

A 30.

Opinion of Mansfield, J.

minal (See Bell, and People v. Dreares, 15 A. D. 2d 204, 20f

N. Y. S. 2d 819 (1st Dept. 4961), a#fd. without opinion, 11

N. Y. 2d 906, 228 N. Y. S. 2d 1 467, 182-N. E. 24 12 (196%)), we

do not view § 150 of the Pénal Law as casting doubt on our

conclusion that the Terminal concourses are ‘essentially

public thoroughfares which may be used by persons: like the

plaintiff here who do not fall within the category of mis.

-creants intended te be barred. . ee

The fact that the concourtes bf the Terminal are public

does not have the effect of granting a license to the plain.

- tiff or other citizens #0 engage in unbridled or uncon

trolled activities in the name of Constitutional freedom.’ It

must be remembered that the primary purpose and prin-

cipal function of the Terminal is to provide transportation

facilities for the more than 200,000 people who use it daily.

tial obstruction and toward that end the Port Authority may

exercise its governmental responsibility to insure the free

flow of traffic through the Terminal, unimpeded and um.

‘hampered to any substantial degree by distribution of

leaflets, picketing, or similar. conduct. As the Supreme

‘Court recently pointed out in Cox v. State of Louisiana, 379

U. S. 536, at 554-555, 85 8. Ct. 453, 464, 13 L. Hd. 2d 471

(1965): | :

_ The rights of free speech and assembly, while

fundamental in our democratic society, still

mean that everyéne with opinions or beliefs to et-

press may address a group at any public, place ani

‘at any time. The constitutional guarantee of liberty

implies the existence of an organized society mail-

taining public order, without which liberty. itself

would be lost in the excesses.of anarchy. The contrd

of travel on the streets is ‘a clear example of goverr

mental-responsibility to insure this necessary order

A restriction in that relation; designed to’ promot

the public convenience in -the interest of all, and no

susceptible to abuses of discriminatory applicatiol

cannot be disregarded by the attempted exercise d

ABI

Opinion of Mansfield, J. st

4 ‘

. some civil right which, in other circumstances, would

be entitled to protection. One would not be .justi-

fied in ignoring the familiar red light because this |

was thought to be a means of ‘social protest. Nor

could one, contrary to traffic regulations, insist upon

a street meeting in the middle of Times Square at

the rush hour as a form of freedom of sfech or as-

sembly. Governmental authorities have the duty and

responsibility to keep their streets: open and avail-

‘able for movement. A group of demonstrators could -

not insist upon the right to cordon off a street, or—

entrance to a public or private building, and allow

* no one to pass who did not agree to listen 46 their

exhottations.

In the exercise of its responsibility ‘to insure the flow of

traffic through. the Terminal,.free from any undue obstruc-

‘ tion the Port Authority may promulgate reasonable, uni-

form and nondiscriminatory regulations of general applica-

tion that -are calculated ‘to achieve -that objective.

McKinney’s Unconsolidated Laws § 6419.. ‘In the absence

of proof that the proposed activities here, however, would

obstruct or hamper the Terminal for transportation pur-

poses, the Port Authority may not ban such activities al--

together. In balancing the citizen’s Constitutional right

to communicate ideas and views against the public respon-

sibility to maintain a frée flow of traffic, the exercise of

Constitutional rights will be favored-unless it is shown that

prohibition is essential under the circumstances to insure

operation of the Terminal for its primary purpose, ~

It does not appear to be conteyded by the defendants

that every leaflet distribution would automatically obstruct

traffic regardle&s of the time, frequency and number. of

leafleters involved. On the contrary, they’ have stipu- _.

lated that on at least two occasions plaintiff’s leafleting

within the Terminal was peaceful-and did not interfere in

any way with the movement of pedestrian traffic. Thus the

present case is clearly distinguishable from. those where

° . ’ . ‘

= Mb, 2 é 7

Bie y= . Co

- ae | sas A

Opinion of Mansfeld, ‘ |

the challenged conduct, usually picketing i ina bing dispute,

- has been found to obstruct or impede the flow of traffic, eg,

-. Adderley v. State of Florida, 385 U. S. 39, 87 S. Os, 24

17 L, Ed. 2d 149 (1966) ; Nelson v. Chicago, CCH Aviation

- Service 117, 878 (N. D. Til. 1965)...

Notwithstanding the relatively peaceful nature of plain.

tiff’s activities to date, anal the absence of any adverse

effect on the operations of the Terminal, defendants argue

that the controversial nature of the ‘subject matter of plain.

tiff’s leaflets (protests against our Government’s involve.

ment in Vietnam) will lead to violence or rioting, particv.

larly since the Terminal is heavily frequented by member }

of*the Armed Services. Recent anti-Vietnam ‘‘marches”, |

_ “parades’”’, and similar activities in New York City, lend

some support to defendants’ apprehensions. On- the other |

hand, plajntiff has represented to, the Court that 1 in such}

event he and his group would suspend their activities until}

they could. be resumed peacefully; and should: plaintiff's}

activities lead to violence, riots or other obstruction off

traffic appropriate relief must be made available. Hovw-[

ever, it isstthe very expression of views with respect to cor fi

troversial political issues that most requires protection}

under the First and Fourteenth Amendments, however dis-};

tasteful such views may be to certain segments of ow}

society. The right of free public expression on political

issues is too dearly prized to be curtailed without equally

important public cause. Such suppression would be thf

first step toward ultimate stagnation of essential debate

See Edwards v. South Carolina, 372 U. S. 229, 83 S. Ct. -

9 L. Ed. 2d 697 (1963).

Other ‘‘reasons’’ submitted by . the defendants arf

equally unimpressive. The fact ‘that the passing out df

leaflets might lead to the littering of the Terminal buildim

is unfortunate but certainly is not’a sufficient justificatio

for circumscribing a person’s Constitutional right

Schneider v. State of New Jersey,.308 U. S. 147, 60 8. (tf

“A 33

| 4 aa Noa “Opinion of Mansfeld J.

146, 84 L Ed. 155 (1939). N or dons the fact a person sg

|. impart his: ideas effectively in another place provide any

;. reason for denying a. person ’s right to manifest his views

in a spot of his own choosing. Ibid. The contentian that the

“operation of the Terminal building would be stifled by a flock

- of leafleters subsequent to a decision adverse to the defend- .

ants carries little weight since the Court ‘is dealing’ only.

with the rights of the plaintiff and cid whom he repre- ;

sents. Farmer v. Moses, supra. °

Defendants further contend that they are entitled to

-bar plaintiff’s proposed leafleting activity by. virtue of

the following rules and regulations promulgated by the Port

Authority pursusnt to — McKinney’ S | Unconsolidated

Laws:

_ «2, The Superintendent - of the Pessutnal shall =

have authority to deny the use of the Terminal+to any

, individual violating Port Authority Rules and Regu-

lations, or laws, ordinances or regulations of * * * the -

State of New York York or. the City of New York,

‘$5. No person shall carry on any commercial or

other activity at the Terminal without permission.

8, .No person shall post, distribute or display

_. Signs, advertisenients, cir¢ulars or printed or written

= matter within the Terminal without permission.’’*

-In practice the Port Authority has dblegated to the defend-

ant Rubbert, Manager of the Terminal, the decision as to .

whether permission will be granted or denied in any par-* . -

ticular case, which he exercised to deny plaintiff’s written.

request of November 16, 1966. ‘The effect of these regula-

tions, therefore,.is to vest in one individual the awesome

power, unrestricted by any objective rn. to giant or

TIn addition, without defining what constibnten a ‘gpieinien”?

Regulation 12 prohibits any person from doing any act or thing fy

‘the Terminal.

«traffic. Presumably such regulations, in order to maintain _

As — re ‘ee

Opinion of Mansfeld, d= “eis

deny any application for reasons “wholly shiinlaidalbii with

the flow of traffic, and thus to censor the expression of views .

with which ‘he- disagrees. ‘In addition the aetivities pro-

. scribed aré so vaguely described as to make it difficult, if not

_ impossible, for the average citizen to guess what might be

_ permitted. For these reasons such regulations are patently —

unconstitutional. Cox v. State of Louisiana, 379 U. 8. 536,

85 S. Ct. 453, 13 L. Ed. 2d 471 (1965) ; Largent v. State of

Texas, 318 U. S. 418, 63 S. Gt. 667, 87 L. Ed. 873 (1943); |

Cantwell v. State of Connecticut, 310 U.S. 296, 60 S. Ct. 900,

84 L. Ed. 1213 (1940) ; Schneider v. State of’ New Jersey,

82 L. Ea. 949 (1938). They threaten the fabric of a free

society by permitting unrestricted censorship of eauses and .

views. Already, for instance, the Manager of the Terminal.

has exercised this power to permit certain charities to solicit

funds within the Terminal. Nothing prevents him in his”

- absolute discretion from exercising the same power to per-

mit certain groups. te distribute leaflets and to deny that

- right to others. s

For all of the ve reagons plaintiff’s motion

for summary judgment must be-granted to the extent that

plaintiff and those represented by him may engage in dis-

tribution of leaflets within thé concourses of the Terminal

* in a manner that does not substantially. or unduly impede >

» either the flow of pedestrian traffic through the Terminal or.

the furnishing and use of transportation and other services |

‘offered by the Terminal. The activities of the plaintiff and

of other leafleters may also be subject to such reasonable,

- uniform, objective and non-discriminatory regulations of

general application, with limited discretion vested in appro-

priate administrative officials, as may be adopted by the

Port Authority for the purpose of assuring the flow of

. a balance between the different rights and interests in-

volved, would prescribe the number of persons who may.

A35

Rec _ Opinion of Mansfeld, a

engage in isch activities at specific times, their vation,

‘the procedure for obtaining permission, the limit on

number of permits for a given period, the places within

the Terminal: where such persons miay be stationed, and.

other similar restrictions of general application. The flow -

of traffic might even require that during certain peak travel -

_ hours any such activities must cease. . For instance, photo®

" graphs. submitted by the parties show the concourses to be, °

‘erowded at certain times and virtually empty -at others.

|. The problems faced.in adopting reasonable regulations ap-

pear to be essentially the same as those resolved by munic- |

ipal authorities in adopting rules. regulating such: conduct

“in, public streets, parks and_other places.

e :

- Pending the adoption by the Port Authority of reason- '

i non-diseriminatory regulations of general application,

. the plaintiff and those represented by him wil] be permitted

to engage in distribution of leaflets to the extent heretofore -

indicated, in accordance with an order fixing terms and

conditions more apenoally.

Settle order.

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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.