The opinion of the court was delivered by: MOTLEY
FINDINGS OF FACT AND CONCLUSIONS OF LAW ON MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs are the International Society for Krishna Consciousness, Inc., (ISKCON) and two of its individual members. They have brought suit on their own behalf and on behalf of all other similarly situated members of ISKCON for declaratory and injunctive relief, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1651, 2201 and 2202. Plaintiffs allege that their rights under the First and Fourteenth Amendments to the Federal Constitution have been violated. They invoke jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(3) and (4). Defendants are the City of New York and its Police Commissioner, Robert McGuire.
The matter is now before the court on plaintiffs' motion for an order preliminarily enjoining defendants from prohibiting plaintiffs, through arrests, threats of arrests and prosecutions, from peaceably proselytizing and soliciting donations, and from otherwise peaceably exercising their First Amendment rights, on the sidewalks immediately adjacent to the Visitors' Gate at the United Nations Headquarters (U.N.) on the east side of First Avenue between 45th and 46th Streets in the City of New York. The motion for preliminary injunction is denied. The court makes the following findings of fact and conclusions of law after a hearing on the motion.
ISKCON is a religious society. The proselytizing and soliciting of funds in which plaintiffs wish to engage in the immediate vicinity of the U.N. Visitors' Gate is part of a religious ritual known to plaintiffs as Sankirtan. Sankirtan is mandated by the Vedic Scriptures, ISKCON's basic religious text.
It is beyond dispute that the practice of Sankirtan is an activity protected by the First Amendment to the Federal Constitution, made applicable to the states by the Fourteenth Amendment, as many cases have recognized. See, e.g., ISKCON v. Rochford, 585 F.2d 263 (7th Cir. 1978); ISKCON V. McAvey, 450 F. Supp. 1265 (S.D.N.Y.1978); ISKCON v. State Fair of Texas, 461 F. Supp. 719 (N.D.Tex.1978); ISKCON v. Hays, 438 F. Supp. 1077 (S.D.Fla.1977); ISKCON v. Conlisk, 374 F. Supp. 1010 (N.D.Ill.1973); and ISKCON v. City of New Orleans, 347 F. Supp. 945 (E.D.La.1972).
It is also not disputed that the exercise of First Amendment rights is subject to reasonable regulation by government. Cox v. New Hampshire, 312 U.S. 569, 574, 61 S. Ct. 762, 765, 85 L. Ed. 1049 (1941); Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940).
The narrow issue before this court is whether plaintiffs' constitutional rights are violated by a policy of the New York City Police Department which bars plaintiffs from proselytizing and soliciting funds in the immediate vicinity of the Visitors' Gate at the U.N. Headquarters.
The U.N. holds title to the area in New York City in which its Headquarters is located. This area is between 42nd Street on the south, 48th Street on the north, the Franklin D. Roosevelt Drive on the east, and the east side of First Avenue on the west. The City of New York owns the sidewalk in front of the U.N. Headquarters on the east side of First Avenue between 42nd and 48th Streets. The east side of First Avenue is open to pedestrian traffic. It was originally deeded by the New York State Legislature to the U.N. However, the U.N. transferred the east side of First Avenue back to the City of New York. This was done for security reasons. The New York City police do not have jurisdiction to arrest persons on any property to which the U.N. holds title. The above described property to which the U.N. holds title is located behind a readily scalable fence bordering the easternmost border of the sidewalk on the east side of First Avenue between 42nd and 48th Streets. This property is under the jurisdiction of the U.N. and is patrolled by U.N. security guards.
The New York City Police Department has been designated as the proper governmental authority to guarantee the peace and tranquility of the U.N. Headquarters. In order to carry out this responsibility, the New York City Police Department decided, among other things, to ban all First Amendment activity on the east side of First Avenue between 42nd and 48th Streets, thus creating a buffer zone between the U.N. Headquarters and all possible security risks. The east side of First Avenue and the adjacent area to the west, i. e., the west side of First Avenue between 42nd and 48th Streets and between First and Second Avenues is specially patrolled by the City of New York, pursuant to the "Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations," 22 U.S.C. § 287, historical note § 16.
(The U.N. Agreement). Accordingly, the New York City Police Department has also designated six areas for demonstrations and picketing within the area bounded by the west side of First Avenue between 42nd and 48th Streets and Second Avenue.
It has agreed to allow plaintiffs to exercise their First Amendment rights at any place in the area except the east of First Avenue and in front of the United States Mission to the U.N. on the southwest corner of 45th Street and First Avenue. First Avenue between 42nd and 48th Streets is also known as United Nations Plaza. The U.N. Visitors' Gate is located on the east side of First Avenue between 45th and 46th Streets. The dispute in this case focuses on this small area.
Lieutenant John J. Judge, a defendant witness in this action and an operations officer for the New York City Police Department responsible for regulating demonstrations and other forms of First Amendment activity in the proximity of the U.N., testified that the police officers would voice no objections to First Amendment activity on the west side of First Avenue, except in front of the United States Mission to the United Nations. (Tr. at 202-203). He testified that the sole reason for the ban was the peace and security of the U.N. More specifically he testified that the ban was imposed to prevent crowd formations on the east side of First Avenue which might heighten the security risks to the U.N. and thus interfere with the peace and tranquility of the U.N. Headquarters which by agreement it has undertaken to ensure.
The court finds that crowd formation is a serious problem in the immediate vicinity of the Visitors' Gate and heightens the security risks. The court also finds that the practice of Sankirtan in the vicinity of the Visitors' Gate tends to obstruct the flow of traffic.
The Visitors' Gate is, admittedly, the sole entry and exit point to the U. N. for many thousands of visitors each day. Although there is a separate entrance between 42nd and 43rd Streets for U. N. delegates and other personnel, such persons also enter the U. N. Headquarters through the Visitors' Gate. (Tr. at 99). On an average day, at least 3,000 visitors arrive at the Visitors' Gate. (Tr. at 97). These crowd formations thus generated each day are exacerbated, from a security point of view, by heavy vehicular traffic near the Visitors' Gate. Each day, up to 100 tour and City buses arrive at the landing islands in the roadway near the Visitors' Gate. These landing islands stretch from 45th to 47th Streets on the east side of First Avenue. (Tr. at 100). These buses discharge passengers onto the landing islands in front of the Visitors' Gate and in the immediate vicinity of the Gate, producing at times constant streams of pedestrian traffic on the east side of First Avenue, particularly between 45th and 47th Streets. The police are therefore concerned with keeping both pedestrian and vehicular traffic moving on the east side of First Avenue between 42nd and 48th Streets.
On some occasions, the evidence disclosed, the U. N. security guard posted inside the Visitors' Gate has been required to enlist the assistance of additional U. N. security guards to disperse crowds gathered at the Visitors' Gate. (Tr. at 140). U. N. security guards have requested plaintiffs to leave the immediate area of the Visitors' Gate because their practice of Sankirtan obstructed the already heavy flow of pedestrian traffic converging at the Gate. (Tr. at 100). The U. N. security guards have also received during the course of their duties complaints from visitors concerning the disruptive nature of plaintiffs' solicitations, and on at least one occasion, intervened in a dispute over a contribution to plaintiffs. (Tr. at 153). Plaintiffs have disregarded requests of U. N. security guards to move a distance of 100 feet from the immediate vicinity of the Visitors' Gate. (Tr. at 161). In order to forestall crowd formation, the New York City police officers try to discourage any continuous presence such as plaintiffs on the east side of First Avenue from 42nd to 48th Streets. (Tr. at 170).
The evidence also disclosed that many visitors to the U. N. Headquarters cross First Avenue to the west side and visit Dag Hammarskjold Plaza, a memorial at 47th Street and First Avenue, one block away from the Visitors' Gate, and are found ...