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WOLIN v. PORT OF NEW YORK AUTH.

May 3, 1967

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, Plaintiff,
v.
PORT OF NEW YORK AUTHORITY, Albert Rubbert, Manager of the Port Authority Bus Terminal, Captain Robert Friend, Commanding Officer of Port Authority Terminal Police, Lieutenant James Pettis, Lieutenant Fred Rackowski, Lieutenant Hugo Serrati, Lieutenant Anthony Unetich and Lieutenant George Gaulrapp, Officers of the Port Authority Terminal Police, Defendants



The opinion of the court was delivered by: MANSFIELD

MANSFIELD, District Judge.

 Plaintiff, who sues individually and on behalf of two organizations which are opposed to United States policy in Vietnam, *fn1" seeks a declaratory judgment that he be permitted to distribute political leaflets in the main concourse and other passageways of the Terminal Building ("Terminal" herein) operated by the Port of New York Authority ("Port Authority" herein) at Eighth Avenue and 40th Street, Manhattan, and used by the public; and that the defendants be enjoined from restraining such activities, arresting him, requiring him to obtain permission to engage in such activities, or discouraging the public by various means from accepting such leaflets. *fn2" Jurisdiction is based on 42 U.S.C. § 1983, 28 U.S.C. §§ 1331, 1343 and 2201 and the First and Fourteenth Amendments to the United States Constitution. The parties have cross-moved for summary judgment pursuant to Rule 56, F.R.Civ.P.

 Defendant Port Authority is a public corporation created in 1921 pursuant to a compact between New York and New Jersey. McKinney's Unconsolidated Laws of N.Y. § 6401, § 6404. Its business is conducted by twelve commissioners, six of whom are appointed by the State of New York and six of whom are appointed by the State of New Jersey. Ibid. § 6405. The Port Authority, among other 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 a number of areas open to the public, including a main concourse approximately 50 feet wide, an upstairs and a downstairs concourse, a major subway entrance and various subways and walkways. In addition, within the Terminal 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 December 24, 1966, approximately 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 purpose 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 supervision of the Manager of the Terminal, defendant Albert Rubbert. 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 have been given an opportunity to leave the Terminal.

 At various times during the months of October, November and December, 1966, principally on Sunday evenings, plaintiff and those associated with him have distributed outside the 8th Avenue entrance to the Terminal leaflets criticizing our Government's participation in the Vietnam war. Plaintiff's activities, which have consisted of handing out literature to persons on the sidewalks outside the Terminal and occasionally engaging in conversation with someone who stops to take a leaflet, have at all times been conducted in a peaceful and orderly manner, although they have on occasions led others to call out criticisms, attempt to persuade pedestrians not to accept the leaflets, and on four occasions assaults have been made upon plaintiff or one of his associates.

 On the evening of November 6, 1966, plaintiff and five other persons entered the Terminal and distributed political leaflets in a peaceful and orderly manner in the hallway and waiting area near gates 106-115 on the upper bus level for approximately 80 minutes. Despite the fact that they in no way interfered with the movement of traffic in the Terminal, they were forced to leave by Port Authority Police who threatened their arrest. On November 13 and 20 there were similar occurrences. *fn3"

 By letter dated November 16, 1966, plaintiff, on his own behalf and on behalf of the organizations represented by him and their friends and supporters, requested permission of the Manager of the terminal to distribute political handbills or leaflets relating to our Government's policy with respect to the Vietnam war, to carry placards containing political messages or slogans pertaining thereto, to set up folding card tables for distribution of such political literature, and to engage in discussions with pedestrians who might stop to converse with them. Plaintiff advised that his purpose was to communicate views concerning our Government's participation in the Vietnam war to travelling servicemen and members of the public within the Terminal, that plaintiff and the groups represented by him did not intend to interfere in any significant or substantial way with the operation or use of the Terminal for the convenience of bus passengers or other persons using the building, and that plaintiff desired to engage in such activities inside the Terminal rather than be relegated to the sidewalk perimeters for the reason that plaintiff's communication of his group's messages to pedestrians waiting inside the Terminal 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 concourse 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 group would call upon their members to disperse, and plaintiff 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 or concession therein.

 On November 17, 1966, defendant Albert Rubbert, Manager of the Terminal, responded that plaintiff's request was denied pursuant to the Port Authority's standing 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 Authority 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 contributions in the Terminal, that they have permitted glee clubs to sing Christmas carols in the Terminal, which were broadcast over the loud speaker system, and that they have, for a fee, permitted automobile manufacturers 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 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); Watchtower Bible & Tract Society v. Metropolitan Life Insurance Co., 297 N.Y. 339, 79 N.E.2d 433, 3 A.L.R.2d 1423, cert. denied, 335 U.S. 886, 69 S. Ct. 232, 93 L. Ed. 425 (1948). If, on the other hand, the Terminal is property essentially dedicated to public use, the citizen's 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 dominion. 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.
 
* * *
 
"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))

 The citizen's Constitutional right under the First and Fourteenth Amendments to communicate ideas and views to his fellow citizens, however unpopular such views may be, represents 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 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 ...


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