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SELFRIDGE v. CAREY

September 22, 1981

Grant Thomas SELFRIDGE, as President of the Eastern Rugby Union of America, Inc. and Stephen Arnsdorff, Individually and as a Member of the Eastern Rugby Union of America, Inc., Plaintiffs,
v.
The Honorable Hugh L. CAREY, as Governor of the State of New York, the State of New York, Erastus Corning, as Mayor of the City of Albany and the City of Albany, Defendants



The opinion of the court was delivered by: MUNSON

MEMORANDUM-DECISION AND ORDER

The plaintiffs seek both preliminary and permanent injunctive relief from this Court to insure the pursuit of their plans to meet the South African Springboks in a rugby match scheduled to take place in Albany, New York on Tuesday, September 22, 1981.

 Plaintiffs' claims arise under both the First and Fourteenth Amendments, and 42 U.S.C. § 1983 (1976). Proper jurisdiction is conferred upon this Court by Article III, § 2 of the Constitution, and by 28 U.S.C. § 1343 (1976).

 Prior negotiations between the Eastern Rugby Union of America, Inc., and the offices of the Mayor of Albany had established both the September 22 playing date, and the Bleecker Stadium site for the game. Not only is that stadium a public city-owned facility, but the security for the game was also to be provided by the City police department. Mayor Corning subsequently sought the option of supplemental security from Governor Carey. This additional request did not reflect Mayor Corning's opinion that security problems were insurmountable; rather the Mayor himself firmly stated that based on his available information, the proposed game plans seemed well in hand. (Statement of Mayor Corning at oral argument). The request, however, prompted an investigation by the Governor's office, which resulted in a press release on September 17, 1981. At that time, Governor Carey unequivocally stated that the rugby game could not be held in Albany.

 That public communique and the supplemental affidavit provided by William G. Connelie, Superintendent of the New York State Police, stated that the game could create "widespread violence" and "imminent danger of riot and breach of the peace," yet neither document describes the intelligence procedures or the sources used to substantiate what otherwise appear as mere suppositions.

 Although no additional data was introduced at the hearing, this Court was provided with the official intelligence report from Superintendent Connelie to Governor Carey, under instructions that it provided the entire basis for the Governor's decision. The report was strictly limited to in camera review.

 Significantly, all of the sources discussed above acknowledge that extended security protection could be made available, but were limited by considerations of cost and timeliness of the request. In anticipation of further discussion herein, this Court finds such flexible handicaps wholly unacceptable to support a rationale for total prohibition of plaintiffs' rights.

 II.

 This Court's threshold inquiry must establish the existence of plaintiffs' constitutionally protected rights. The plaintiffs seek protection afforded by both the First and Fourteenth Amendments. Although expressions shielded by the First Amendment have traditionally been accorded primary status, they are neither absolute, Concerned Jewish Youth v. McGuire, 621 F.2d 471, 473 (2d Cir. 1980), cert. denied, 450 U.S. 913, 101 S. Ct. 1352, 67 L. Ed. 2d 337 (1981); Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965), nor consistently easy to identify. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S. Ct. 1239, 43 L. Ed. 2d 448 (1975) (protected theatrical productions); Burstyn v. Wilson, 343 U.S. 495, 72 S. Ct. 777, 96 L. Ed. 1098 (1952) (protected motion pictures); Schad v. Mount Ephraim, 452 U.S. 61, 101 S. Ct. 2176, 2180, 68 L. Ed. 2d 671 (1981) (protected nude dancing entertainment).

 Considering the broad scope of the First Amendment, it is essential that this Court recognize the significance of contextual basis in measuring protected subject matter. Of course this has been best reflected in the traditional judicial "time, place and manner" analysis. With this in mind, it becomes obvious that any given activity may deserve more or less protection, depending on the unique operative facts.

 The present case exemplifies perfectly the importance of context. While a superficial analysis exposes nothing more than a request to extend constitutional protection to a sporting event, this Court recognizes, in all candor, that this particular match has attracted extraordinary political prejudice, reflecting current global awareness of South Africa's apartheid policies. With this as a context, DeFrantz v. United States Olympic Committee, 492 F. Supp. 1181 (D.C.D.C.1980) is easily distinguishable. The plaintiffs there claimed both statutory and constitutional rights to compete in a foreign country under the auspices and funding of a legislatively created program. In both DeFrantz and its cited authority, Parish v. National Collegiate Athletic Association, 506 F.2d 1028 (5th Cir. 1975), plaintiffs sought to escape rigid athletic association guidelines by claiming broader constitutional principles; in both, the courts rejected plaintiffs' claims.

 The present case clearly exceeds that narrower view. The plaintiffs here are members of a representative sports organization being thwarted in their plan to schedule an event on public land.

 It is important to note here that it was the action of the Governor's office that prompted plaintiffs' request before this Court. Their affirmative choice to then seek judicial protection as a means of reinforcing their aims, has presented this Court with an added dimension to a First Amendment position.

 At this juncture, a denial of a safe public forum would place the plaintiffs in stymied silence, and deprive them of their right to withstand political criticism by pursuing an activity which they choose to view as apolitical. Plaintiffs' intentional ignorance of the racial syntax involved here deserves First Amendment protections under Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1976). Chief Justice Burger carefully described that "(t)he right to speak and the right to refrain from speaking are complementary components of the broader concept of "individual freedom of mind.' " Id. at 714, 97 S. Ct. at 1435, ...


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