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January 4, 1985


The opinion of the court was delivered by: MINER




 This action arises out of alleged constitutional violations stemming from defendants' decision to bar plaintiffs, and all other groups, from distributing leaflets at the Knolls Atomic Power Laboratory ("KAPL") in Niscayuna, New York. Plaintiffs seek injunctive and declaratory relief and predicate jurisdiction upon 28 U.S.C. ยงยง 1341, 1343. A trial to the Court was held on July 11-12, 1984. *fn1" The final submissions of counsel were filed on October 15, 1984. There follows the findings of fact and conclusions of law mandated by Fed. R. Civ. P. 52(a).


 Plaintiff Knolls Action Project ("KAP") is an organization of concerned residents in the Albany, New York area whose purpose is to inform the public of th dangers of nuclear war. *fn2" Presently, there are approximately thirty active members of KAP with several hundred other individuals receiving KAP mailings on a regular basis. KAP disseminates its message by sending newsletters and other pertinent information to the individuals on its mailing list, assisting in the organization and preparation of peaceful demonstrations against the deployment and use of nuclear weapons, and leaf letting on a regular basis at nuclear research sites in upstate New York. See Trial Transcript at 6-8. In its leaf letting activity, KAP believes that the ability to have personal contact with those individuals it is seeking to reach is critical in relaying the full message of KAP. As one member of KAP explained, "[w]e are more interested in being able to talk to people, and say good morning, have a nice day, than we are interested in having the sign that says good morning and have a nice day." Trial Transcript at 37.

 Defendant KAPL is a federally-owned, classified nuclear research facility, located in Niscayuna, New York, and operated by the General Electric Company ("GE") pursuant to a government contract. *fn3" KAPL occupies a large, rural tract of land bordering the Mohawk River to the north, River Road, a public highway, to the south, the city of Schenectady to the west, and the Town of Colonie to the east. A substantial portion of the property, containing the laboratories and other buildings, is access-restricted and encircled by a fence. In order to enter this restricted area, an individual must pass through a guarded checkpoint where identification is verified.

 To the south of the secured area, though still within KAPL property, is a parking lot for employee use. A paved walkway connects the parking lot to the checkpoint at the secured area. *fn4" A grass field separates the parking lot from KAPL's southern boundary along River Road. *fn5" Two roads, one from an east entrance and one from a west entrance, traverse the field, thus connecting River Road to the parking lot and providing access to KAPL from a public highway. *fn6" KAPL's property line is located approximately twenty feet north of River Road. In addition, signs are posted at the beginning of each access road indicating that the property is restricted and that no trespassing is permitted. Defendants' Exhibit E. Signs also are posted at approximately one hundred foot intervals along the border of the property, indicating that no trespassing is permitted. Defendants' Exhibit D; Trial Transcript at 91, 132, 157.

 In 1978, KAP commenced handing out leaflets, reflecting opposition to the work being performed at KAPL, to KAPL employees as they arrived for work in the morning. At first, KAP members positioned themselves on the south side of River Road, across the road from KAPL's property. At some time prior to 1981, the leafletters moved across River Road and began to stand on the KAPL property line at the entrance to the west access road. *fn7" Generally, every Friday morning between 7:00 AM and 8:00 AM, one or two KAP members would stand on the yellow dividing line in the middle of the access road and offer the leaflets to drivers as they turned onto the access road from River Road. In January of 1981, due to concerns over the possibility of automobile accidents involving drivers stopping at the entrance to the access road to speak with KAP members and to receive leaflets, Lance Stewart, KAPL's security manager, informed the KAP members that they could station a person across the KAPL property line, further onto the access road. *fn8" Apparently, although not the fault of the leafletters, just prior to Stewart's decision, an accident in fact had occurred at the entrance to the access road. Trial Transcript at 117.

 In July of 1982, after a meeting between Stewart, Jamie Gearon, KAPL's general counsel, Robert Traxler, KAPL's manager of laboratory support services, Theodore Glasson, KAPL's manager of Health and Environment Portection, and Albert Kakretz, KAPL's general manager, the permission for KAP was informed that neither it nor any other group not affiliated with business at KAPL could enter onto KAPL property. KAPL cited several reasons for its decision. First, KAPL stated that a ban on all access to its property, other than for business purposes, was consistent with GE's policy of restricting public access to its plants and was necessary considering the classified nature of the work performed at KAPL. Trial Transcript at 114, 189, 202. Second, KAPL indicated that it was concerned with the potential liability that it could incur if an incident occurred on its property involving a KAP member. Id. at 104, 111, 139, 147, 190. *fn9" KAPL's awareness of this risk was heightened in June of 1982 when Kakretz received a latter from an employee informing Kakretz of the risks involved and the potential for legal action. Id. at 221. Finally, KAPL feared that continued leafletting on KAPL property could potentially interfere with GE's policy prohibiting unions from meeting or picketing on plant property. Id. at 114, 143, 194, 197. This concern assertedly was prompted by labor difficulties and picketing at KAPL during the spring of 1982. Id. at 225.

 KAP, however, contends that the decision to bar its members from leafletting on KAPL property infringes upon its first amendment right of free expression. Initially, KAP argues that the true reason for the ban was not fear of liability or union reprisals. KAP points out that between January of 1981 and July of 1982 its members distributed leaflets on the access road weekly without incident. In addition, security reports, which were prepared by KAPL security officers on a weekly basis, never mentioned any incident caused by, or involving, KAP members. Plaintiffs' Post-Trial Memorandum of Law at 10. In fact, at least one security report stated that KAP leaflets "were very courteous and friendly and appeared to cause no threat to the site." Trial Transcript at 174. According to KAP, the true reason for the ban was the increased publicity generated by KAP activities at KAPL and elsewhere. For example, in May of 1982, a group of protestors, including members of KAP, marched past KAPL as part of a nationwide "peace walk" to a disarmament rally in New York City. In addition, on May 30, 1982, a "Pentecost prayer vigil" was held along the south side of River Road in which KAP members, and other protestors, sang songs and said prayers for the elimination of nuclear weapons. Both events received extensive media coverage. These activities had a direct impact on KAPL when, in June of 1982, a secretary at KAPL publicly resigned from her position due to the message relayed by KAP in its leaflets and at its demonstrations. These incidents, along with the increased general press coverage of the nuclear issue, according to KAP, led KAPL to implement its ban on leafletting.

 Since the inception of this ban, KAP has offered, as a compromise, to leaflet on the paved walkway connecting the parking lot to the secured area. To date, KAPL has refused this offer, claiming that leafletting on the walkway also would be inconsistent with the purpose of KAPL. Thus, KAP currently is being forced to limited it leafletting activities to KAPL to the south side of River Road, across from the access road entrance. According to KAP, this alternative poses a substantially greater risk of injury to the leafletters, due to the narrowness of the roadside, and also has decreased the number of leaflets distributed by its members from 250 a week to less than 100 a week. Plaintiffs thus commenced this action seeking injunctive and declaratory relief on the basis of alleged first amendment violations.


 It is well established that peaceful leafletting and picketing constitute "expressive activities involving "speech" protected by the First Amendment." United States v. Grace, 461 U.S. 171, 103 S. Ct. 1702, 1706, 75 L. Ed. 2d 736 (1983). The first amendment, however, "does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired." Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981). The mere fact that property is government owned and controlled does not guarantee an individual access to it under all circumstances. United States Postal Service v. Greenburgh Civic Association, 453 U.S. 114, 129, 69 L. Ed. 2d 517, 101 S. Ct. 2676 (1981). "There is little doubt that in some circumstances the Government may ban the entry on to [sic] public property that is not a "public forum" of all persons except those who have legitimate business on the premises." United States v. Grace, 103 S. Ct. at 1707. The ability of a leafletter to occupy a specific public tract of land, and the ability of the government to ban or restrict the use of that land, ...

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