Petition for Writ of Certiorari — Chicago v. Chicago Area Military (No. 74-1268)

— SUPREME COURT | « |

In Tue .

Supreme Court of the Anited States

Ocroser Term, 1974

No. 74-1268

CITY OF CHICAGO, RICHARD J. DALEY,

JAMES B. CONLISK

and WILLIAM E. DOWNES, JR.,

Petitioners,

vs.

CHICAGO AREA MILITARY PROJECT, EMILY FRIEDMAN,

STEVE ROMANOWSKI, LAWRENCE WILLBORN

and LYDIA WILLBORN,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

WILLIAM R. QUINLAN

Acting Corporation Counsel

of the City of Chicago

611 City Hall, Chicago, Mlinois 60602

Attorney for Petitioners

DANIEL PASCALE

Ricwarp F. FrmpMan

Assistant Corporation Counsel

Of Counsel

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

TABLE OF CONTENTS

PAGE

OPINION BELOW 2

JURISDICTION 2

QUESTION PRESENTED 2

PROHIBITION INVOLVED 2

STATEMENT OF CASE 3

REASONS FOR GRANTING THE WRIT .................. 7

The Court of Appeals’ Judgment Is In Direct Con-

flict With This Court’s Determination In Lehman

v. City Of Shaker Heights, Which Involved Issue

Common To Both Cases.

A. The Court of Appeals’ judgment and analysis

in the instant opinion is in conflict with the

Lehman plurality 7

B. The Court of Appeals’ judgment is contrary

to the Lehman separate opinion ...................... 10

CONCLUSION 12

APPENDIX la

CASES

Healy v. James, 408 U.S. 169 9

Lehman v. City of Shaker Heights passim

Lloyd v. Tanner, 407 U.S. 551 8

Marsh v. Alabama, 326 U.S. 501 8

Packer Corp. v. Utah, 285 U.S. 105 10, 11

In THE

Supreme Court of the Anited States

Octroser Term, 1974

No.

CITY OF CHICAGO, RICHARD J. DALEY,

JAMES B. CONLISK

and WILLIAM E. DOWNES, JE.,

Petitioners,

vs.

CHICAGO AREA MILITARY PROJECT, EMILY FRIEDMAN,

STEVE ROMANOWSKI, LAWRENCE WILLBORN

and LYDIA WILLBORN,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners, the City of Chicago, Richard J. Daley, James

B. Conlisk and William E. Downes, Jr., respectfully pray

that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Seventh Circuit

entered in this cause.

a

OPINION BELOW

| The opinion of the Court of Appeals was handed down

January 8, 1975 and has not yet been reported officially.

The opinion is reproduced in the Appendix to this petition.

JURISDICTION

The Court of Appeals’ judgment was entered January

8, 1975. This petition is filed within 90 days thereof. Juris-

diction of this court is invoked pursuant to 28 U.S.C.

§1254(1).

QUESTION /SESENTED

Whether the City of Chicago may be enjoined from en-

forcing, as unconstitutional, a prohibition against distrib-

‘uting literature and soliciting within the terminal buildings

of the city-owned airport.

THE PROHIBITION INVOLVED

The City of Chicago’s prohibition against leafletting and

soliciting within the interior of the terminal buildings at the

airport is as follows:

“No person shall be permitted to picket, sell any-

thing (except for authorized concessionaires or lessees,

and then only at assigned spaces) distribute literature

of any nature, or solicit or collect contributions within .

any building at any airport operated by the City of

Chicago.”

se

STATEMENT OF THE CASE

Respondents filed suit against petitioners, City of Chi-

cago, its Mayor, the Superintendent of Police, and the

Commissioner of the Department of Aviation, alleging that

the City’s prohibition against passing out literature within

the terminal buildings of Chicago-O’Hare International

Airport deprived them of constitutionally guaranteed

rights. Respondents prayed for an injunction against the

enforcement of the prohibition, for a declaration of its

unconstitutionality and damages. The district court en-

tered an injunction, effectively permanent, against: enforce-

ment of the prohibition. The Court of Appeals affirmed.

Respondents are members of the Chicago Area Military

Project (CAMP). The objective of CAMP is to give legal

and medical advice to persons in the military services.

CAMP publishes a monthly newsletter (CAMP News

(News of the GI Movement)) which contains news of the

group’s activities and legal advice of interest to persons

in military service. It is distributed only to members of

the armed servicés.

On Sunday, March 11, 1973, at approximately 5 p.m.,

seven members of CAMP entered the airport buildings,

and in groups of two or three distributed CAMP News to

persons in military uniform. This occurred both in the

waiting area and in the area of the airline ticket counters.

' After about an hour a plain clothes policeman and subse-

quently a uniformed officer told two members. of CAMP

that leafletting was not permitted and that if they per-

sisted they would be arrested. The two members informed

the rest of the group and then all left the airport. No

arrest was made. One week later at about the same time

‘

=

of day, one member of the group again distributed CAMP

News at the airport. After one-half hour he sighted 2 po-

liceman, and believing he would be arrested for violating

the prohibition against leafletting, he left the airport.

Members of CAMP did not attempt to distribute their

newspaper on the sidewalk surrounding the buildings; the

prohibition does not apply there.

At trial, the airport manager described the airport and

conditions there. O’Hare Airport is the world’s busiest.

Approximately 90,000 airline passengers use the airport

each day, and 20,000 persons are employed there. In addi-

tion, for every passenger using the airport, it is estimated

that there are an additional 144 persons who accompany

passengers (“picker-uppers or dropper-offers”). In total

each year, 100 million passengers, persons accompanying

them, and employees use the airport. Less than one percent

of this number is made up of persons not having airline

business, principally school children and others using the

observation decks.

During normal peak periods, approximately 25-35,000

persons may be in the airport buildings at any given time,

and this number is larger when the airport operations are

delayed.

During peak periods or when there is a delay caused by

weather, every position is manned at the airline ticket and

check-in counters, with 2s many as fifteen to twenty persons

waiting in line at each position. Similarly, in front of the

_ hijack security stations, the lines are sometimes sc full that

“the passenger flow backs up into the lobby.” And in the

waiting areas, at peak times, the lobby is so crowded that

all benches and lounges are filled and passengers sometimes

are required to sit on the floor.

Pe tee

The manager, Mr. Dunne, was asked to describe the

effect on passengers in the queues and reposing in the

waiting area of persons wishing to impose their views,

thrust unwanted literature into passengers’ hands or solicit

contributions :

Q. “You described what you observed about the

passengers in front of the ticket counters during peak

periods; if a passenger was approached by a person

and the passenger did not want to speak to this person,

what recourse would a passenger have, waiting in line

there?”

Mr. Dunne: “Unless he wanted to hit him in the

head, he would have to stand there and take whatever

he is—paper he was passing out or enter into what-

ever conversation he—”

The Court: “He couldn’t refuse to hold his hand

out and not take it? Is that what you are talking

about?”

The Witness: “He can do that, but he is in line

and he is corncred, or he will lose his place in line.”

In addition to the normal airline counters, gates, and

offices, the city leases space in the airport buildings to

econcessionaires such as candy stores, drug stores, barber

shops, valet shops, newspaper stands, and gift shops.

There are also two first aid rooms (used by fifty persons

per day) and a travelers aid stand. All of these facilities

are intended to serve only the passengers.

The airport is removed from the center of the city.

Traveling time is, at best, twenty-five to thirty minutes

from downtown. Some suburban residential areas are a

several-minute automobile trip from the airport. Virtually

no one walks to the airport, and almost no one uses the

elie.

facilities for other than travel purposes because “no one

would want to make the trip.”

As for airline operations, the airport’s 72 gates handle

more than one hundred flights per hour during peak

periods. In transferring between flights, passengers must

rush between gates, carrying children and baggage, often

as far as 2000-2300 feet. Of course, a person attempting to

catch a connecting flight wishes to be able to move hetween

gates unhindered.

Considering the complexity of the airport, the rushing

about, the split-second timing, the often crowded conditions,

and the need for anti-hijack and other security precautions,

the defense witnesses believed that airport operations

might be seriously disrupted if all persons who wished

were free to distribute literature among the passengers

using O’Hare Airport. Their testimony was unrebutted.

alias

REASONS FOR GRANTING THE WRIT

THE COURT OF APPEALS’ JUDGMENT IS IN DIRECT

CONFLICT WITH THIS COURT’S DETERMINATION IN

LEHMAN v. CITY OF SHAKER HEIGHTS, WHICH IN-

VOLVED ISSUES COMMON TO BOTH CASES.

A. The Court of Appeals’ judgment and analysis in the

instant opinion is in conflict with the Lehman plurality.

The issue in this case is whether the terminal buildings

at municipally owned airports are a forum appropriate for

First Amendment activities—a forum at which such activ-

ities may be carried on without limitation. The Court of Ap-

peals in the present case held that the O’Hare Airport lob-

bies were equivalent to public thoroughfares and conse-

quently the City was permitted no limitation upon respond-

ents’ activities there. Lehman v. City of Shaker Heights,

418 U.S. 298 (1974), on the other hand, held that a munici-

pality could properly limit expression in a city transporta-

tion facility. This case merits review and reversal by this

Court because of this direct conflict with the Lehman deci-

sion. Supreme Court Rule 19(1)(b). The Court of Appeals’

judgment turns a place reserved for commerce and intended

to serve the needs of travelers into a Hyde Park, complete

with a captive audience.

The Lehman case and the instant case are not identical

but are substantially indistinguishable in all important

respects. Both involve municipally owned and operated

transportation facilities, and although the Lehman case

involved the right of citizens to display protected adver-

tising material within and upon city-owned vehicles, the

av a te ae ee ee eee ee ce a a a ed cS a ne ates ee he heen ° ——

_

instant case presents the question whether a city may pro-

hibit persons from distributing, on a person-to-person basis,

the same kind of materials that may be prohibited if

merely displayed. Under Lehman, the petitioners might

prohibit respondents’ literature from being displayed in

advertising fixtures, but the Seventh Circuit’s judgment

allows petitioners to pass through the queues and crowds

to hand out their literature. The petitioners submit that

if anything, the reasons for affirming the Lehman prohibi-

tion are even stronger in this case because of the personal

nature of the activities. The Court of Appeals’ opinion was

subsequent to Lehman, and although the Court cited Leh-

man and attempted to distinguish it, the Court’s judgment

is contrary to Lehman and should be reversed.

No majority opinion was written in Lehman. However,

the Court of Appeals’ reasoning conflicts with the plurality

opinion as well as the separate opinion of Mr. Justice

Douglas. In the instant case the Court of Appeals asserted

that the city-owned common areas “resemble those public

thoroughfares which have been long recognized to be par-

ticularly appropriate places for the exercise of constitu-

tionally protected rights. . . .” Appendix, p. 6a. But this

Court’s analysis beginning with Marsh v. Alabama, 326

U.S. 501 (1946) and continuing through Lloyd v. Tanner,

407 U.S. 551 (1972) to Lehman has been, not the ownership,

per se, of the place sought to be declared public, but the

use to which it has been put. The Lehman plurality ex-

pressly rejected the notion that public ownership must

necessarily make any place a public forum:

“It is urged that the car cards here constitute a

public forum protected by the First Amendment, and

that there is a guarantee of non-discretionary access

to such publicly owned and controlled areas of com-

PL PRE OO Wr ae a eww & ane EE IR TUITE PE IEE ID CER eer rte, PROPS Riera: oe rose SATAN POON RT

oy

which the area is dedicated.’ .

“We disagree.” 418 U.S. at 301-2.

Airport is “open to the public.” App., p. 7a. But this analysis

is not that of this Court in Lehman. Many places

buildings, courthouses, publicly owned art museums

hospitals would become places where unfettered picketi

leafletting or proselytizing may take place. In rejecti ig

such a theory, the Lehman plurality took note that the si

uation it was confronted with was “different from th

traditional settings where First Amendment values unal-|

terably prevail.” 418 U.S. at 302. “Here, we have no open |\\

spaces, no meeting hall, park, street corner or other public \

thoroughfare. Instead, the City is engaged in commerce.”

418 US. at 303. This is consistent with the opinion in Healy

v. James, 408 U.S. 169, that the proper analysis of limita-

tions upon First Amendment rights must take into account

the nature of the place chosen for their exercise. “| A]s Mr.

Justice Fortas made clear in Tinker [v. DeMoines Inde-

pendent School District, 393 U.S. 503, 506 (1969)], First

Amendment rights must always be applied in light of the

special characteristics of the . . . environment in the par-

ticular case.” 408 U.S. at 180.

The Court of Appeals also reached its conclusion that

O’Hare was a proper public forum because the buildings

were used not only in connection with air travel but its

areas were available for shopping, dining, or sightseeing.

Although that may not be said for the Lehman railroad

cars, that distinction is without a difference. Clearly, other

publicly owned facilities, such as offices, courthouses and

Bibscsccomv ssc IPL PE LM STE PLE LIL BAIT MEE IS et NE SS SEONG TIP Wi EL IE LE EE ILE ROI

entlhlcs

museums, to name a few, have restaurants and shops open

to the public, but the interior and lobbies of such places

are not for that reason public forums.

It is true, as the Court of Appeals noted, that this par-

ticular case involved only seven persons at O’Hare. But

that small number of persons does not indicate the true

importance of the Court of Appeals’ decision. The opinion

affects the entire operation of O’Hare, where almost 100,000

persons transact business daily, as well as similar munici-

pally owned facilities. The result of the opinion is that not

seven, but all persons who wish, are free to enter the termi-

nal buildings and pass among the passengers—in line, seat-

ed in waiting areas, waiting for hijack security checks, or

carrying luggage through the lobby to boarding areas—and

thrust themselves or their ideologies upon them. As unre-

butted testimony of petitioners’ witnesses at trial indicated,

if all who desired were free to turn the airport terminals

into a public forum, airport operations might be seriously

disrupted.

B. The Court of Appeals’ judgment is contrary to the

Lehman separate opinion.

The alternative theory of Lehman presented in the sepa-

rate opinion of Mr. Justice Douglas was that of privacy—-

that it was improper to force upon passengers who have

no choice but to use the transportation facilities views

and opinions the passengers have no opportunity to reject.

Mr. Justice Douglas noted that Mr. Lehman, while seeking

to express his views, overlooked the constitutional rights of

the commuters: “While petitioner clearly has a right to

express his views to those who wish to listen, he has no

right to force his message upon an audience incapable of

ee ee

declining to receive it.” 418 U.S. at p. 307. Cf., Packer Corp.

v. Utah, 285 U.S. 105 (1932).

Clearly, persons using O’Hare Airport have no escape.

They have no alternatives to using O’Hare, since more

than 95% of commercial flights to the Chicago area make

use of the airport. Conversely, virtually no one else other

than passengers and employees use the airport because,

as one witness put it, “No one would want to make the

trip.”

The Court of Appeals’ judgment now creates the oppor-

tunity for all persons to roam the airport (with the limited

exception of security areas or boarding corridors) and

propagandize all persons they find there. The airport is

often jammed with passengers, especially at times of

weather delays and at peak periods. Persons must wait

in queues to receive tickets, to enter the hijack security

checking areas and they fill all available seats in waiting

areas. Must persons in line or in lounges be forced to give

up their places in order to decline to receive the respond-

ents’ messages? Rejecting their messages is not as simple

a matter as switching television channels or declining to

purchase a newspaper or even of averting one’s eyes. Not

all proselytizing and propagandizers are as mannerly as

the respondents. A person should not be required to give

up his right to privacy in order to catch an airplane.

The Court of Appeals attempted to distinguish away

the privacy argument of the alternative Lehman theory by

stating that it was based “almost entirely upon” the nature

of the medium involved—display advertising, “to which

the passenger’s eye is captive.” App. p. 8a. But at O’Hare,

it is not merely the passenger’s eye which is captive, it is

the passenger himself. As noted at trial by one of the

petitioners’ witnesses, a passenger “is in line and he is

—j3—

cornered.” He must listen or receive literature “or he will

lose his place in line.”

(It should be further noted that the four justices’ dissent

in Lehman did not take issue with the “public forum”

analysis of the plurality or with the privacy argument of

the separate opinion, but only noted that the city had

no right to distinguish among the messages being dis-

played, since if it allowed commercial advertising it was

required to permit all messages.)

CONCLUSION

The Court of Appeals’ opinion permits airports and all

similar publicly owned spaces, regardless of the principal

use of the area, to become public forums open to all who

wish to make their views known. This is contrary to Leh-

man v. City of Shaker Heights, 418 U.S. 298 (1974) and

a series of prior cases. Moreover, the opinion now per-

mits persons who have no choice but to use public facilities

to become unwilling audiences for all persons who wish

to proselytize and propagandize. The result is completely

contrary to Lehman. Certiorari should he granted and the

judgment reversed.

Respectfully submitted,

WILLIAM R. QUINLAN

Acting Corporation Counsel

of the City of Chicago

611 City Hall, Chicago, Illinois 60602

Attorney for Petitioners

:

|

|

statis

APPENDIX

In the

GAnited States Court of Appeals

For the Seventh Circuit

No. 74-1475

Cuicaco Area Miuitrary Prosect, Emiry FriepmMan, Steve

Romanowski, LawreENcE WiLiBorn and Lypia WILLBoRN,

Plaintiff s-A ppellees,

v.

Crry or Cuicaco, Ricnarp J. Datey, James B. Con.isk and

Wituiuo E. Downes, Jr.,

Defendants-Appellants.

Appeal from the United States District Court for the Northern

District of Illinois, Eastern Division — No. 73 C 758

Richard B. Austin, Judge

Arcuep Novemser 6, 1974 — Deciwep January 8, 1975

Before Swycert, Chief Judge, and Maris* and Cum-

mincs, Circuit Judges.

Manis, Circuit Judge. This is an appeal by the defend-

ants from an order of the district court enjoining them

from preventing the plaintiffs from distributing literature

to servicemen and the general public in the terminal build-

ings at O’Hare Airport, Chicago, except as to the areas

immediately leading to the arrival and departure gates.

The plaintiffs, the Chicago Area Military Project, an

unincorporated nonprofit organization located in Chicago

* Of the Third Circuit, sitting by designation.

euilliibeis

and known as CAMP, and four of its members and asso-

ciates brought the suit against the defendants, the City of

Chicago and the Mayor, Superintendent of Police, and

Commissioner of the Department of Aviation, of the City,

claiming that actions by the defendants and their agents

and employees in prohibiting the plaintiffs from passing

out literature within the terminal buildings at O’Hare Air-

port deprived them of the rights of free speech, free press,

and peaceable assembly guaranteed them by the federal .

constitution. The plaintiffs’ complaint sought an injunc-

tion restraining the defendants from further depriving

them of these rights and a declaration that the defendants’

practice and acts were in violation of the Constitution and

that their own conduct in distributing literature wes pro-

tected by the First and Fourteenth Amendments. An

amended complaint was filed including a second count,

claiming damages, which is not involved in this appeal.

The district court granted a temporary restraining order.

Subsequently a preliminary injunction was issued which

on appeal this court vacated for failure of the district

court to state its findings of fact and conclusions of law

as required by Rule 52(a) of the Rules of Civil Procedure

and because the injunction lacked the specificity required

by Rule 65(d). 492 F.2d 1246. In response to our mandate

the district court thereafter stated findings of fact and

conciusions of law and entered an order enjoining the’ de-

fendants and their agents and employees “from obstructing

plaintiffs engaged in leafletting or otherwise distributing

CAMP NEWS or other literature within the terminal

buildings (not to include the ‘fingers’ leading to the ar-

rival and departure gates) of O’Hare Field Airport.” This

order has been treated by the parties as a permanent in-

junction and we shall so regard it. From the order granting

this injunction the defendants took the appeal now be-

fore us.

It appears that the plaintiff CAMP publishes a monthly

newspaper called CAMP NEWS (News of the GI Move-

ment) which is primarily directed to members of the mili-

tary forces but is also distributed to the general public. It

Dens eeneneeereeeeeneeeeeeeeeeeeeeeensianeeeeeemeceetitl

elie:

carries news of the “GI Movement”, news of recent ‘legal

and political developments pertinent to military personnel

and news of a general nature. One of the methods used to

disseminate CAMP News is to hand out free copies at

O’Hare Airport to individuals, particularly servicemen,

who desire to, receive them.

O’Hare Airport, located within the limits of the City of

Chicago, is owned by the City and administered by the

City’s Department of Aviation. It is a two-or-three-minute

_ drive from the nearest residential area, a thirty-minute

drive ‘from the Chicago downtown area with which it is

connected by major expressways and is served by bus

lines and taxicabs. Private automobiles are accommodated

in massive public parking lots. Leased space in the air-

port terminal buildings houses numerous concessionaires

including restaurants and shops of every description. Sev- |

enty-two departure gates handle more than 100 flights per

hour during peak periods. Approximately 20,000 persons

are employed at the airport and a total of 100,000,000

passengers, persons accompanying them, and employees,

use the facility each year. The district court found as a

fact that large numbers of persons in the military service

use the airport, many without ever leaving the terminal

buildings, merely changing flights there for other locations.

At 6:00 p.m. on Sunday, March 11, 1973 Truman Walker,

an associate of CAMP, and Steve Romanowski, a member,

commenced distributing CAMP News: to servicemen in

one of the O’Hare Airport terminal buildings in the gen-

eral area of the check-in, counters but somewhat removed

from the lines of persons waiting to be served at the

counters. They did not approach anyone in a line. Ap:

proximately an hour later they were told by a plain-clothes

policeman and subsequently by a uniformed Chicago police

officer that leafletting was not permitted and that if they

persisted in their activity, they would ‘be arrested. The

two then informed five other leafletters who were distrib-

uting the newspaper in the waiting areas in other ter- ,

minal buildings what had transpired and all left the air-

i

Be acted

port. One of the plaintiffs testified that he stopped leaf-

letting because his family responsibilities were such that

he could not afford being arrested.

The municipal regulation, admittedly unwritten, which

the defendants enforced against the plaintiffs had been in

existence since before the opening of the present terminal

buildings at O’Hare Airport. It appears that it was orally

promulgated by the Director of Airports of the City prior

to June 1, 1956 and, in the words of the Director, it pro-

vided in substance that

“no person shall be permitted to picket, sell anything

(except for authorized concessionaires or lessees, and

they only at assigned spaces) distribute literature of

any nature, or solicit or collect contributions within

any building at any airport operated by the City of

Chicago.”

The defendants assert that this oral regulation was pro-

mulgated under the authority of sections 8.2-2 and 37-4

of the Municipal Code of the City of Chicago and of the

prior ordinances codified in those sections, and that it is

enforceable under section 193-1.4(b) of the Code. Section

193-1.4 is in pertinent part as follows:

“193-1.4. A person commits trespass when he know-

ingly:

(b) Remains upon the property, or any part there-

of, of another after receiving notice, either oral or

written, from the owner or occupant to depart; or

(c) Enters upon property open to the public, or

any part thereof, and remains thereon with a malicious

and mischievous intent after receiving notice, either

oral or written, from the owner or occupant to depart.

Any person convicted of trespass shall be fined not

less than $5.00 nor more than $500.00.”

However, in the view which we take of the case it becomes

unnecessary for us to consider the question whether the

i

Municipal Code does authorize the promulgation and en-

forcement of such an oral regulation as the one upon

which the defendants here rely.

The First Amendment to the Constitution proscribes

federal action which abridges an individual’s right to

freedom of speech, press and assembly and it has long

been settled that the Fourteenth Amendment extends these

First Amendment proscriptions to state action. DeJonge

v. Oregon, 1937, U.S. 353. One of the primary reasons

for the adoption of the First Amendment was to ensure

the right to distribute copies of one’s own publication in

public places. Near v. Minnesota, 1931, 283 U.S. 697, 716-

717; Lovell v. City of Griffin, 1938, 303 U.S. 444, 451-452.

In Schneider v. State, 1939, 308 U.S. 147, 162, the Supreme

Court, deciding that the evil of the littering of its streets

was not a sufficiently grave reason for a city to ban all

leafletting, pointed out that in such a situation the evil

required to be regulated was, in fact, the act of littering

not the activity of leafletting. While not contesting these

basic constitutional principles, the defendants strongly

urge that the terminal buildings at the O’Hare Airport,

because of the limited purpose which they serve, are not

public places of the kind in which unrestricted leafletting

must be permitted. In considering this contention we lay

aside for the moment the question whether leafletting may

be restricted in those particular areas, if any, in the ter-

minal buildings where unrestricted leafletting might sub-

stantially interfere with airport operations.

In support of their contention that the terminal buildings

at O’Hare Airport are not public places where the restric-

tion of leafletting is constitutionally prohibited the de-

fendants make a number of arguments. They assert that

public ownership of the airport is not determinative of

the question of the plaintiff’s protection under the First

Amendment, citing Marsh v. Alabama, 1946, 326 U.S. 501.

They claim that only a limited invitation is extended to

the public to use the airport and that this is determinative,

citing Lloyd Corp. v. Tanner, 1972, 407 U.S. 551. Alleging

that its function, location, and often congested condition

—§fa—

make the airport an inappropriate forum for First Amend-

ment protected expression, the defendants cite Adderley

v. Florida, 1966, 385 U.S. 39, and Lehman v. City of Shaker

Heights, 1974, 41 L.Ed. 2d 770. Asserting that its users

represent a captive audience for leafletters, the defend-

ants rely on Lehman v. City of Shaker Heights, supra.

Finally, the defendants argue that other appropriate

forums are available to the plaintiffs.

The proscriptions of the First and Fourteenth Amend-

ments are primarily directed to governmental activity.

But since O’Hare Airport is government-owned and admin-

istered, the Amendments are directly applicable to it.

Marsh v. Alabama, supra, involved a privately owned “com-

pany town” and is inapplicable here except to reinforce

the plaintiffs’ claim to protection of their right to free

speech, since the Supreme Court in that case saw fit to

extend the overriding interest of the United States in

freedom of speech as expressed in the Constitution even to

privately owned property. Lloyd Corp. v. Tanner, supra,

which merely clarified the extent of the application of the

First Amendment to private property, is also inapplicable.

That case involved a privately owned shopping center

mall. In that ease the owners were not required by the

Court to permit handbilling on a controversial subject

unrelated to their enterprise. The only similarity of that

case to this one is the commercial nature of the airport

facility. However, the plaintiffs do not here claim any

right to distribute leaflets on airplanes or in other pri-

vately owned or leased places but only in the spacious,

city-owned common areas which resemble those public

thoroughfares which have been long recognized to be par-

ticularly appropriate places for the exercise of constitu-

tionally protected rights to communicate ideas and infor-

mation. Hague v. CIO, 1939, 307 U.S. 496, 515-516. This

well-established principle has been applied to a publicly

owned bus terminal in Wolin v. Port of New York Author-

ity, 2d Cir. 1968, 392 F.2d 83, cert. den. 393 U.S. 940, and

to the airport of the City of Oakland in Kuszynski v. Oak-

land, 9 Cir. 1973, 479 F.2d 1130.

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The City’s claim that the public receives a limited invi-

tation to use O’Hare Airport for travel purposes only is

not supported by the evidence nor do we think it is real-

istic. For the fact is that great numbers of people are freely

admitted to the public areas of the terminal buildings not

only in connection with air travel, but also for shopping.

dining, sightseeing, or merely to satisfy their curiosity.

There is no question but that the’ terminal buildings at

O’Hare Airport, city-owned and operated, are freely avail-

able to the general public and that their wide-open public

areas which perhaps 90,000 transients visit daily can ac-

commodate seven persons peacefully distributins, in zgivups

of twos and threes, free copies of their publication to

interested persons. Indeed, although airport and airline of-

ficials testified that unrestricted leafletting and solicitation

could conceivably interfere with important airport opera-

tions, the City does not contend that the activities of the

plaintiffs do in fact obstruct airport traffic.

The defendants argue that not all publicly owned facili-

ties are available for every expression of free speech and

they cite Adderley v. Florida, supra, and Lehman vy. City

of Shaker Heights, supra. With this we, of course, agree.

Thus. hospitals, libraries, office buildings and prisons may

eall for restrictive regulations appropriate to their func-

tions. The Supreme Court, in upholding the conviction of

32 student demonstrators on charges of trespass with ma-

licious and mischievous intent on the premises of a county

jail, stated, in distinguishing an earlier case, “Tradition-

ally, state capitol grounds are open to the public. Jails.

built for security purposes, are not.” Adderley v. Florida,

supra, at p. 41. The public areas of the terminal buildings

at O’Hare Airport are not security facilities and are open

to the public.

Like the decision in Adderley v. Florida, supra, Lehman

v. City of Shaker Heights, supra, does not purport to

deal with the distribution of the printed word, the tradi-

tionally protected expression of free speech with which

we are here concerned. The Lehman case, settling an equal

witli

protection argument as to access to car card spaces in the

vehicles of a city-owned rapid transit system, is based

almost entirely upon the nature of the free-speech expres-

sion involved therein, display advertising, as to which the

passenger’s eye is captive. The city’s policy in that case

of refusing to permit politicul display advertising in its

cars occupied by paying commuters was upheld. The case

has no relevance to the present problem.

Defendants’ argument that the plaintiffs have alternate

forums for distributing their literature and that for this

reason access to O’Hare Airport may be totally «lenied

under the Constitution is without merit. An individual “is

not to have the exercise of his liberty of expression in

places abridged on the plea that it may be exercised in

some other place.” Schneider v. State, 1939, 308 U.S. 147,

163; Amalgamated Food Employees v. Logan Valley Plaza,

1968, 391 U.S. 308, 323-324; Wolin v. Port of New York

Authority, 2d Cir. 1968, 392 F.2d 83, 91-92, cert. den. 393

US. 940.

The defendants have argued that the plaintiffs failed to

establish their right to a preliminary injunction because

they failed to prove that if such relief was not granted

they would suffer irreparable injury during the trial. As

to this it is perhaps enough to point out that the injunction

now before us on this appeal has been treated by the

parties as a final injunction terminating the litigation.

However, we think that in any case an adequate showing

of irreparable injury has been made. For the evidence indi-

cates that the defendants, through their agents, threatened

the individual plaintiffs with arrest if they persisted in

asserting their First Amendment rights. Such threats un-

doubtedly had a chilling effect on the plaintiffs’ exercise

of their rights, in fact deterring them from exercising

those rights. This was an adequate showing to support

injunctive relief in a case of this kind. Dombrowski v.

Pfister, 1965, 380 U.S. 479.

We conclude that the district court did not err in en-

joining the defendants from obstructing the plaintiffs from

aR ey eee ee EOL EANM TS 7 LS PMNS LID RE DLE NTO ENDED EEE NS RENTS tl ott

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leafletting in the terminal buildings of O’Hare Airport.

At the same time we recognize, as the district court did

when it excluded the “fingers” leading to the arrival and

departure gates from its injunction, that the Constitution

does not prohibit all regulation of leafletting in publicly

owned facilities. Regulations narrowly drawn to protect

the state’s substantial interests with the least possible con-

striction of the exercise of free speech and press have

long been upheld. Cox v. Louisiana, 1965, 379 U.S. 559,

562. Thus regulations prohibiting leafletting might validly

be extended from the passageways leading to the arrival

and departure gates to include also leafletting at check-in

counters, for example, if it should appear that such activi-

ties substantially interfere with rapid and efficient airport

operations. However, it does not appear from the present

record that the plaintiffs’ leafletting took place at check-in

counters or with people waitine at them to be checked in

or that the plaintiffs intend in the future to carry on their

activities at such places. It will be time enough, therefore,

to consider enlarging the present exception to the general

scope of the injunction in question if and when the City

promulgates a suitable restrictive regulation and makes

the requisite showing to the district court of the need for it.

Affirmed.

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