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KISSINGER v. NEW YORK CITY TRANSIT AUTH.

September 12, 1967

C. Clark KISSINGER, Paul Booth and Lee Baxendall, on behalf of themselves, and on behalf of all other persons similarly situated as members of Students for a Democratic Society, and on behalf of such Committee, Plaintiffs,
v.
NEW YORK CITY TRANSIT AUTHORITY, New York Subways Advertising Co., Inc., Joseph E. O'Grady, John J. Gilhooley, Daniel T. Scannell, Thomas O'Ryan and John P. Cullen, Defendants


Bonsal, District Judge.


The opinion of the court was delivered by: BONSAL

MEMORANDUM

BONSAL, District Judge.

 Plaintiffs, members of "Students for a Democratic Society" (Students), bring this action under 42 U.S.C. § 1983 seeking a declaratory judgment that the defendants are required to accept for display on the walls in New York City subway station platforms two posters (the posters) opposing United States participation in the war in Vietnam. Plaintiffs contend that this court has jurisdiction based upon 28 U.S.C. § 1343(3).

 Pursuant to a contract dated April 4, 1962, the defendant New York City Transit Authority (the Authority), agreed with the defendant New York Subways Advertising Co., Inc. (the Advertising Company) to permit the Advertising Company to place and maintain advertisements in the cars of subway trains and on the walls in subway stations operated by the authority. The Authority and the Advertising Company admit they refused to accept the posters for display. Plaintiffs allege they requested the Authority and the Advertising Company to accept the posters for display at the same rates for advertising space and upon the same terms applicable to all others seeking advertising space, and allege that the refusal of the Authority and the Advertising Company to accept the posters for display was due to the controversial and unpopular nature of the views expressed, thus depriving the plaintiffs of their rights to freedom of speech guaranteed by the First and Fourteenth Amendments to the United States Constitution. Plaintiffs move pursuant to Rules 12 and 56, F.R.Civ.P., for summary judgment.

 The posters carry a picture of a child with what appears to be a scarred back and arm and on the left side of the posters the following words appear in large lettering:

 
"WHY ARE WE BURNING, TORTURING, KILLING, THE PEOPLE OF VIETNAM? - TO PREVENT FREE ELECTIONS"

 In smaller lettering the posters continue:

 
"PROTEST this anti-democratic war WRITE President Lyndon B. Johnson, The White House, Washington, D.C.
 
GET THE STRAIGHT FACTS WRITE
 
Students for a Democratic Society* 119 Fifth Avenue, New York, N.Y. 10003"

 In small print the poster states:

 
"This 10-year old girl was burned by napalm bombs"

 In 1965 plaintiffs engaged Blumberg & Clarich, Inc. to place the posters on New York City subway station platforms and in a letter dated October 7, 1965 the Advertising Company notified Blumberg & Clarich, Inc. of its refusal to accept the posters. The letter was signed by John P. Cullen, Secretary of the Advertising Company and reads as follows:

 
"This will acknowledge receipt of your letter of September 29, 1965 requesting a Standard Showing of 30 x 46" posters for your client, the New ...

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