Appeal from dismissal of complaint by the United States District Court for the Eastern District of New York, Walter B. Bruchhausen, J., seeking declaratory and injunctive relief under 42 U.S.C. § 1983 and the First Amendment. Reversed and remanded.
Feinberg, Gurfein and Meskill, Circuit Judges. Meskill, Circuit Judge, dissenting.
Plaintiffs, members of the Socialist Workers Party, attempted to sell socialist newspapers in the New York City subway system by displaying their newspapers by hand and trying to engage interested persons in conversation regarding the content of the papers. Transit Authority policemen threatened to ticket them, and the Transit Authority subsequently told plaintiffs that their activity violated Authority regulations. In February 1975, plaintiffs brought suit in the United States District Court for the Eastern District of New York. Invoking 42 U.S.C. § 1983 and the first amendment, plaintiffs sought a preliminary injunction and other equitable relief against the ban on their sales activity. The district court, Walter B. Bruchhausen, J., denied a preliminary injunction and dismissed the complaint for lack of jurisdiction on the ground that defendants were not "persons" within the meaning of § 1983. This court reversed the latter ruling, but affirmed the denial of plaintiffs' motion for a preliminary injunction. Wright v. Chief of Transit Police, 527 F.2d 1262 (2d Cir. 1976). We remanded to the district court "for expeditious trial." Id. at 1264.
The trial was held before Judge Bruchhausen, without a jury, on May 13, 1976. Plaintiffs testified as to the benefits of using the subway system for their sales, and defendants' witnesses testified concerning the safety hazards posed by plaintiffs' type of activity on the narrow and often crowded subway platforms. Defendants also introduced evidence on the revenues the Transit Authority receives from granting newsstand concessions in the subway system and on the availability of those newsstands for the sale of plaintiffs' papers. The district court then dismissed plaintiffs' complaint, finding, among other things, that "plaintiffs' conduct would interfere with the safety and convenience of the public." Plaintiffs now appeal from that dismissal. Because we find that the purpose of our prior remand has not been fulfilled, we reverse the district court's order and remand for further proceedings.
In our prior opinion, 527 F.2d at 1264, we recognized that
defendants express justifiable concern about passenger safety and convenience, space limitation and the possible inundation of their limited facilities by others who would seek the same rights as plaintiffs.
We nonetheless remanded the case to the district court for determination whether those concerns could be accommodated by reasonable regulations short of a complete ban on plaintiffs' activities or whether a complete ban was justified in light of a compelling state interest. Id. The case has now returned to us, but we still lack any findings on whether defendants' concerns and plaintiffs' objectives can be harmonized through a reasonable set of regulations. The district court opinion rests instead on the general assertion that "plaintiffs' conduct would interfere with the safety and convenience of the public." There is no indication from the opinion that the court explored alternative possibilities short of a total ban, such as permitting plaintiffs' activity in off-peak hours and in areas of the larger stations like Grand Central, Union Square and Times Square, not adjacent to the tracks.*fn1
Plaintiffs, of course, have no absolute right to proselytize and solicit in the New York subway system, and they long ago conceded that their actions must be subject to reasonable regulations. Plaintiffs' combination of proselytizing and selling is, however, protected activity under the first amendment, cf. Wolin v. Port of New York Authority, 392 F.2d 83, 92-93 (2d Cir. 1968), and in similar situations, we have recognized the need for accommodation. See Albany Welfare Rights Organization v. Wyman, 493 F.2d 1319 (2d Cir.), cert. denied, 419 U.S. 838, 42 L. Ed. 2d 64, 95 S. Ct. 66 (1974); Wolin v. Port of New York Authority, supra. We recognize that the problems and characteristics of the subway system are certainly different from those of the Bus Terminal Building of the Port Authority in Wolin, supra, and the Albany Welfare Center in Wyman, supra, but we cannot assume that promulgation and enforcement of reasonable regulations is impractical without appropriate findings from the district court. There were no such findings after our reversal. Instead, the district court relied on the availability of newsstands for the sale of plaintiffs' papers as a ground for dismissing the complaint. This possibility, however, was apparent to the prior panel, since it was briefed by both parties on that appeal, and does not dispose of plaintiffs' claim of a right, limited by reasonable regulations, to use speech and press conjunctively in the presentation of their ideas. Similarly, the district court's reliance on the state's interest in the revenues it receives from its newsstand concessions is misplaced. Again, there was no consideration of the effect reasonable regulations short of a complete ban would have on this interest, nor of the possibility that the Authority might be allowed to charge fees, related to its administrative expense, for the privilege of selling newspapers in the manner plaintiffs propose. See United States Labor Party v. Codd, 527 F.2d 118 (2d Cir. 1975).
In short, this case remains in much the same posture it presented a year and one-half ago: plaintiffs' valid claims of first amendment protection face the state's valid concerns for public safety. As before, we are sympathetic to the state's concerns, but the possibility of reasonable regulations short of a complete ban remains, and the district court still has not made any findings on the issue.
We reverse the order of the district court and remand for further findings in accordance with this opinion.*fn2
We reverse the order of the district court and remand for further findings in ...