The opinion of the court was delivered by: Lowe, District Judge.
Plaintiff International Society for Krishna Consciousness ("ISKCON") commenced this lawsuit in 1975, challenging the policy of the Port Authority of New York and New Jersey which prohibits the continuous and repetitive distribution of literature to, and solicitation of contributions from, passers-by in the public areas of the passenger terminals at John F. Kennedy, LaGuardia, and Newark International Airports ("the airports"). Plaintiffs claim that the Port Authority's prohibition of these activities within the public areas of the airports violates their rights under the First and Fourteenth Amendments of the United States Constitution. Presently before this Court is plaintiffs' motion for summary judgment declaring the Port Authority's regulation unconstitutional. For the reasons set forth below, we adopt the Magistrate's recommendation and grant plaintiffs' motion pursuant to Fed.R.Civ.P. 56.
Pursuant to a 1921 Congressionally consented-to compact between the States of New York and New Jersey, the Port Authority is charged with operating the airports at issue in this action. Numerous airlines lease much of that airport space for their own business purposes, and these leased areas are primarily within the control of the airlines. However, the unleased areas, namely, the Arrivals Building of the International Arrivals Building at Kennedy, the Central Terminal Building at LaGuardia, and the North Terminal at Newark, remain within the control of the Port Authority. Affidavit of Morris Sloane at ¶ 4.
Plaintiff ISKCON is a New York not-for-profit religious corporation which promotes the theological and missionary views of the Krishna Consciousness. Plaintiff Brian Rumbaugh is a member and trustee of ISKCON. As related by counsel for plaintiffs, members of the Krishna Consciousness, in accordance with their religious mandate, are required to perform a ritual known as sankirtan, which consists of "going into public places, disseminating religious literature, and soliciting funds to support the religion." Plaintiff's Brief in Support of Motion for Summary Judgment at 6. The performance of sankirtan is apparently integral to the practice of Krishna Consciousness, indeed it is "the very lifeblood and principal means of support of this religious movement." Id. It is the performance of precisely these activities, however, which the Port Authority, through its regulations, prohibits within the public areas of the airports.
ISKCON commenced this action in 1975 against the Port Authority and its then Police Superintendent, Walter Lee. Because plaintiffs were, in the initial stages of this litigation, seeking access to airline-controlled property as well, Judge Carter-before whom this action was then pending*fn1 -held the airlines to be indispensable parties and, on that basis, denied plaintiffs' motion for preliminary injunctive relief. International Society for Krishna Consciousness v. New York Port Auth., 425 F.Supp. 681 (S.D.N.Y.1977). Shortly thereafter, plaintiffs amended their Complaint to include, as defendants, several of the airlines leasing space from the Port Authority.
Arguing that their prohibition of plaintiffs' activities did not constitute state action, the airlines moved, in 1979, for dismissal of the Complaint as against them. This Court denied their motion, but certified the state action question to the Second Circuit. After accepting certification, the Court of Appeals subsequently remanded the case for further discovery and development of the evidentiary record. ISKCON v. Air Canada, 727 F.2d 253 (2d Cir.1984). In 1984, we referred the action to Magistrate Michael H. Dolinger for completion of all pretrial matters.
Once discovery was completed, the airlines again moved for dismissal. In 1987, Magistrate Dolinger issued a Report and Recommendation in which he urged that, because the state action requirement had been satisfied, the motions be denied. Subsequent to this Report's issuance, all of the airlines entered into settlement agreements with plaintiffs. Consequently, the Superintendent of the Port Authority Police remains the only defendant to this action.*fn2
Arguing that the Port Authority's regulations unconstitutionally prohibit protected First Amendment activity within a public forum, plaintiffs moved, in 1987, for summary judgment or, in the alternative, for a preliminary injunction.*fn3 Significantly, or so defendant argues, the Port Authority formally adopted regulations, in February of 1988, which prohibit, within the terminal buildings, the type of activity encompassed by sankirtan. However, these new regulations do not appear to interfere with the performance of that ritual in the exterior portions of the airports outside the terminal buildings. See Affidavit of Morris Sloane, Exhibit B.*fn4
In his Report and Recommendation ("R & R"), dated October 25, 1988, Magistrate Dolinger found that the terminal areas of the airports are, indeed, public fora, and accordingly held that the Port Authority's regulations unconstitutionally restrict the plaintiffs' First Amendment rights. Presently before this Court is the Magistrate's recommendation that plaintiff's motion for summary judgment be granted.
The preliminary issue raised by the Magistrate's R & R, and defendant's Objections thereto, is what effect the Port Authority's newly adopted regulations have on the scope of this Court's inquiry. Defendant urges that all of the real property used in terminal operations-including the exterior sidewalks outside the terminal buildings where sankirtan is permitted-should be viewed as the relevant forum and that, accordingly, the regulations at issue be treated as time, place and manner restrictions. Adoption of this approach would have a significant impact on the course of this litigation since, as the R & R indicates, plaintiffs have disclaimed any intention of litigating the validity of such place restrictions. R & R at 8; Transcript of March 25, 1988 hearing at 19. In effect, there would be no litigable controversy remaining and this Court would be forced to dismiss the action.
However, we agree with the Magistrate that "in defining the forum we [should focus] on the access sought by the speaker." Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788, 801, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985). In the instant case, plaintiffs have consistently limited their demands for access to the interior of the terminal buildings only. Plaintiffs have never, during the fourteen year course of their lawsuit, sought similar access to the airports' exterior sidewalks, nor have they placed their availability in issue, presumably because their status as public fora is beyond peradventure. Moreover, defendant's identification of all airport property as the relevant forum, itself, appears to be of very recent origin. Thus to adopt, at this stage of the proceedings, defendant's present position as to the relevant forum would not only be ...