The opinion of the court was delivered by: Spatt, District Judge.
At issue in the plaintiff's application for a preliminary
injunction is whether the defendants' denial of the plaintiff's
request to distribute noncommercial religious pamphlets in a
limited area of Jones Beach State Park comports with the First
Amendment to the United States Constitution. The Court
concludes that the defendants' action in denying a limited
permit to the plaintiff is constitutionally impermissible.
Accordingly, plaintiff's application for a preliminary
injunction is granted to the extent set forth below.
Plaintiff is the director of "Mitch Paulsen Outreaches," a
"spiritual outreach program" which lists a Post Office Box in
Baldwin, New York as its address. By Application dated August
2, 1990 plaintiff sought an "Area/Facility Use Permit" from the
New York State Office of Parks, Recreation and Historic
Preservation (the "State Office of Parks" or the "SOP") to
distribute "noncommercial literature with a Christian message"
on September 1, 1990 at the "mosaic area and adjacent
sidewalks" at Jones Beach State Park. In his moving papers, the
plaintiff defines the "mosaic area" at Jones Beach as "the area
where the sidewalk from parking field 4 and parking field 5
converge and channel the pedestrian traffic to the boardwalk
area." (See also Paulsen Aff., Exh. A [map of Jones Beach,
indicating the "mosaic area" with the symbol "*"]).
In response to Application Question 10, "please indicate
specific destination requested," the plaintiff wrote as
The Application also stated that a total of three people would
distribute literature and that "[w]e will not detain people,
but simply extend an arm with leaflet and say `it's free.'"
The State Office of Parks denied plaintiff's Application in
a letter dated August 10, 1990, which in relevant part stated
By reason of an Order issued on August 21, 1990, defendants
were directed to show cause "why a preliminary injunction
should not be issued preventing defendants from refusing to
grant plaintiff a permit to use the Mosaic area or any other
area at Jones beach State Park . . . September 1 and other
holiday weekends until the trial and decision of this action.
. . ."
The Court held a hearing on August 24, 1990. At the hearing
only one witness testified, Mr. John Norbeck, the Director of
Operations at Jones Beach State Park. Mr. Norbeck testified
that SOP has a "policy" of not issuing any area/facility use
permits on "holiday" weekends — that is, Memorial Day, July 4
and Labor Day weekends — to insure that at these "peak" times
sufficient employees are available to meet the needs of the
increased number of visitors to Jones Beach. Mr. Norbeck stated
that many of SOP's Jones Beach employees return to college
prior to Labor Day weekend and that only 40% of its employees
are available to work. Since the "stationary positions" —
watchmen, toll collectors, and first aid personnel, for example
— must operate at normal levels, according to Mr. Norbeck SOP
must substantially reduce the number of "maintenance" and
"supervisory" personnel at Jones Beach over the Labor Day
As to the plaintiff's Application, Mr. Norbeck testified that
were the plaintiff's Application granted, SOP would have to
assign three employees to "monitor" the plaintiff's activities.
Significantly, the only reasons articulated by Mr. Norbeck as
to why SOP would need to monitor the plaintiff and two
associates with three employees, however, was to insure that
the plaintiff was abiding by State policies and to explain the
plaintiff's presence to other park patrons. Specifically, Mr.
Norbeck testified as follows:
Mr. Norbeck also testified that the plaintiff's proposed
activity would not affect garbage collection. The Court notes
that the literature at issue is a four-fold pamphlet, 2 and 3/4
inches wide, 8 and 1/4 inches high, and unfolds to a size of 12
inches wide and 8 and 1/4 inches high. In fact, the plaintiff
was granted a permit to distribute
leaflets on the Saturday prior to Labor Day in 1989 —
September 2, 1989 — and, according to the plaintiff,
"peacefully distributed leaflets on the mosaic and the
boardwalk areas without any disruptions[,] [w]e picked up any
discarded pamphlets on the ground [and] [n]o one from the Parks
Department made any complaints about our activities." (Paulsen
Aff., ¶ 3)
Importantly, the defendants submitted no evidence that the
plaintiff's presence at the mosaic area on September 1, 1990
would cause any strain on the security and peaceful operation
of Jones Beach. No evidence was adduced that the distribution
of leaflets by three persons would obstruct passageways, cause
accidents, kindle altercations or cause any danger or lack of
safety to anyone. In fact, during cross examination Mr. Norbeck
revealed that, on average, 25% less patrons visit Jones Beach
on the Saturday prior to Labor Day than on the Sunday prior to
Labor Day or on Labor Day itself.*fn2 Also absent from the
record is any evidence that any other persons or organizations
submitted applications for area/facility use permits for the
Labor Day weekend.
The First Amendment to the Constitution, applicable to the
State Office of Parks by reason of the Fourteenth Amendment to
the Constitution (see DeJonge v. Oregon, 299 U.S. 353, 364, 57
S.Ct. 255, 259, 81 L.Ed. 278  ["Freedom of speech and of
the press are fundamental rights which are safeguarded by the
due process clause of the Fourteenth Amendment of the Federal
Constitution"]; NAACP v. Claiborne Hardware Co., 458 U.S. 886,
907 n. 43, 102 S.Ct. 3409, 3422 n. 43, 73 L.Ed.2d 1215 
["First Amendment freedoms are protected by the Fourteenth
Amendment from invasion by the States"]), provides as follows:
"Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the
people peaceably to assemble, and to petition the
Government for a redress of grievances."
(U.S. Const. amend. I)
The plaintiff contends that the defendants' denial of his
August 2, 1990 Application violates his First Amendment rights.
As this is an application for a preliminary injunction, the
plaintiff "must show (1) irreparable harm, and (2) either (a)
likelihood of success on the merits or (b) a sufficiently
serious question going to the merits along with the balance of
hardships tilting decidedly toward the plaintiff." (Alan Skop,
Inc. v. Benjamin Moore, Inc., 909 F.2d 59, 60 [Second Circuit
1990] [citing Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc.,
596 F.2d 70, 72 [2d Cir. 1979]]).
A. Irreparable Harm
If left undisturbed, SOP's denial of the plaintiff's
Application will cause the plaintiff to suffer irreparable
harm. (See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673,
2689, 49 L.Ed.2d 547  ["loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes
irreparable injury"]; Abdul Wali v. Coughlin, 754 F.2d 1015,
1026 [2d Cir. 1985] ["Precious first amendment liberties would
be rendered all but meaningless if those rights could be
restricted even for short periods of time"]).
B. Likelihood Of Success On The Merits
The speech at issue clearly implicates First Amendment rights
(see Schneider v. State, 308 U.S. 147, 162, 60 S.Ct. 146, 151,
84 L.Ed. 155  ["distribution of pamphlets [have] become
historical weapons in the defense of liberty"]).
In "public forums" — "streets and parks which `have
immemorially been held in
trust for the use of the public and, time out of mind, have
been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions'" (Perry
Educational Assn. v. Perry Local Educators' Assn., 460 U.S. 37,
45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794  [quoting Hague
v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423
) — the State can only impose reasonable time, place or
manner restrictions if it can show that the restrictions "are
content neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative channels
of communication." (Perry Educational Assn. v. Perry Local
Educators' Assn., supra, 460 U.S. at p. 45, 103 S.Ct. at p.
In "limited public forums" — "public property which the
State has opened for use by the public as a place for
expressive activity" — the State "is bound by the same
standards as apply in a traditional public forum" as long as
the State retains the open character of the forum. (Id. at pp.
45-46, 103 S.Ct. at p. 955). Finally, as to "nonpublic forums"
— "[p]ublic property which is not by tradition or designation
a forum for public communication" — "[i]n addition to time,
place, and manner regulations, the State may reserve the forum
for its intended purposes, communicative or otherwise, as long
as the regulation on speech is reasonable and not an effort to
suppress expression merely because public officials oppose the
speaker's view." (Id. at p. 46, 103 S.Ct. at p. 955).
Distinctions in access based on subject matter and speaker
identity in nonpublic forums are valid if "they are reasonable
in light of the purpose which the forum at issue serves." (Id.
at p. 49, 103 S.Ct. at p. 957; see Calash v. Bridgeport,
788 F.2d 80, 84 [2d Cir. 1986] [city's policy of limiting
access to stadium, a nonpublic forum, "to civic, charitable and
non-profit organizations is . . . a reasonable restriction"]).
Given the limited record here, the Court cannot determine
whether Jones Beach State Park is a public forum (see United
States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1707, 75
L.Ed.2d 736  [a park]), a limited public forum (see
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct.
1239, 43 L.Ed.2d 448  [a municipal theatre]), or a
nonpublic forum (see Perry Educational Assn. v. Perry Local
Educators' Assn., supra, 460 U.S. at p. 46, 103 S.Ct. at p. 955
[public interschool mail facility]; Naturalist Soc., Inc. v.
Fillyaw, 736 F. Supp. 1103, 1117 [S.D.Fla. 1990] [John D.
MacArthur Beach State Park]). Irrespective of the forum
qualification of Jones Beach, the Court finds that the
plaintiff has demonstrated a likelihood of success on the
merits of its claim that SOP's denial of his Application was
i. Content Neutral
There is no evidence in the instant record that SOP denied
the plaintiff's permit Application because of disagreement with
the message contained in the plaintiff's pamphlets. (See Ward
v. Rock Against Racism, ___ U.S. ___, 109 S.Ct. 2746, 2754, 105
L.Ed.2d 661  ["The principal inquiry in determining
content neutrality, in speech cases generally and in time,
place or manner cases in particular, is whether the government
has adopted a regulation of speech because of disagreement with
the message it conveys"]). In fact, Mr. Norbeck testified that
the purpose of SOP's policy of denying area/facility use
permits on holiday weekends was to insure that sufficient
employees were available to meet the increased number of Jones
Beach patrons. (See Id. ["The government's purpose is the
controlling consideration"]; Young v. New York City Transit
Authority, 903 F.2d 146, 159 [2d Cir. 1990] ["There is nothing
in the record to suggest even remotely that the [New York City]
A[uthority]'s interests in stopping begging arises because the
TA objects to a particularized idea or message"]).
SOP has demonstrated that its reason for denying plaintiff's
Application was content neutral.
ii. Narrow Tailoring To Serve A Significant Government
In Ward v. Rock Against Racism (a "public forum" case), the
Supreme Court held as follows:
"Lest any confusion on the point remain, we
reaffirm today that a regulation of the time,
place, or manner of protected speech must be
narrowly tailored to serve the government's
legitimate content-neutral interests but that it
need not be the least-restrictive or
least-intrusive means of doing so. Rather, the
requirement of narrow tailoring is satisfied `so
long as the . . . regulation promotes a
substantial government interest that would be
achieved less effectively absent the regulation.'
. . . To be sure, this standard does not mean that
a time, place, or manner regulation may burden
substantially more speech than is necessary to
further the government's legitimate interests. . .
. So long as the means chosen are not
substantially broader than necessary to achieve
the government's interest, however, the regulation
will not be invalid simply because a court
concludes that the government's interest could be
adequately served by some less-speech-restrictive
(Ward v. Rock Against Racism, supra, 109 S.Ct. at pp. 2757-58;
see also Young v. New York City Transit Authority, supra, 903
F.2d at pp. 159-60). In upholding New York City's sound
amplification guideline, the Court in Ward v. Rock Against
"The guideline does not ban all concerts, or even
all rock concerts, but instead focuses on the
source of the evils the city seeks to eliminate
— excessive and inadequate sound amplification —
and eliminates them without at the same time
banning or significantly restricting a substantial
quantity of speech that does not create the same
evils. This is the essence of narrow tailoring. A
ban on handbilling, of course, would suppress a
great quantity of speech that does not cause the
evils that it seeks to eliminate, whether they be
fraud, crime, litter, traffic, congestion, or
noise. . . . For that reason, a complete ban on
handbilling would be substantially broader than
necessary to achieve the interests justifying it."
(Ward v. Rock Against Racism, supra, 109 S.Ct. at p. 2758 n. 7
The Court finds that SOP has failed to establish any
legitimate governmental interest in denying plaintiff's
Application. Although Mr. Norbeck described the shortage of
workers at Jones Beach over the Labor Day weekend, the
defendants failed to state, let alone prove, any correlation
between the size of its labor shortage and a legitimate state
interest motivating the denial of the plaintiff's Application.
In short, while Mr. Norbeck testified that he would need three
employees to "monitor" plaintiff's activities, this record is
devoid of any evidence as to why three employees were necessary
to monitor three pamphleteers. There is simply no evidence that
plaintiff's activities will result in a risk to patron safety;
there is no evidence that plaintiff's activities will cause
large amounts of people to congregate so as to impede the
smooth operation of the beach (see Grayned v. Rockford,
408 U.S. 104, 115, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222  ["two
parades cannot march on the same street simultaneously, and
government may allow only one"]); there is no evidence that
granting plaintiff's Application would require SOP to permit
other persons to distribute leaflets on September 1 (see
Heffron v. International Soc. For Krishna Consciousness, Inc.,
452 U.S. 640, 653, 101 S.Ct. 2559, 2567, 69 L.Ed.2d 298 
["there would be a much larger threat to the State's interest
in crowd control if all other religious, nonreligious, and
noncommercial organizations could likewise move freely about
the fairgrounds distributing and selling literature and
soliciting funds at will"]; and there is no evidence that
plaintiff would not comply with SOP policies
if his Application were approved (see Cantwell v. Connecticut,
310 U.S. 296, 306-07, 60 S.Ct. 900, 904, 84 L.Ed. 1213 
["The State is likewise free to regulate the time and manner of
solicitation generally, in the interest of public safety,
peace, comfort or convenience"]).
Plaintiff's Application is not a request for a parade, for a
protest march or for formal speech making, but merely a request
by three persons to hand out pamphlets in one particular area.
In Heffron v. International Soc. For Krishna Consciousness,
Inc., supra, 452 U.S. at p. 654, 101 S.Ct. at p. 2567 ,
the Supreme Court held "that the State's interest in confining
distribution, selling, and fund solicitation activities to
fixed locations [at state fairgrounds] is sufficient to satisfy
the requirement that a place or manner restriction must serve a
substantial state interest." Absent any proof of a legitimate
government interest, SOP's total denial of plaintiff's
Application is constitutionally impermissible. (See Ward v.
Rock Against Racism, supra, 109 S.Ct. at p. 2758 n. 7 ["a
complete ban on handbilling would be substantially broader than
necessary to achieve the interests justifying it"]; Frisby v.
Schultz, 487 U.S. 474, 108 S.Ct. 2495, 2502-03, 101 L.Ed.2d 420
 ["A complete ban can be narrowly tailored, but only if
each activity within the proscription's scope is an
appropriately targeted evil"]).
iii. Alternative Channels
"While the First Amendment does not guarantee the right to
employ every conceivable method of communication at all times
and in all places, . . . a restriction on expressive activity
may be invalid if the remaining modes of communication are
inadequate." (Members Of City Council v. Taxpayers For Vincent,
466 U.S. 789, 812, 104 S.Ct. 2118, 2132, 80 L.Ed.2d 772
By inviting the plaintiff to submit applications to
distribute leaflets on other days, SOP argues that there are
alternative channels of communication open to the plaintiff.
The plaintiff, however, responds as follows:
". . . the only effective means of communication
is the high volume distribution of small leaflets
to a special audience not found anywhere else in
the County during this holiday weekend. I could
spend days or weeks on street corners and never
hope to reach the volume of public concentrated
within one hour on the Jones Beach Park grounds.
Jones Beach Park is one of the few places in the
county where I can get direct access to large
numbers of adolescent teenagers and young adults
during the summer months."
(Paulsen Aff., ¶ 16)
The Court finds that the defendants' have not demonstrated
that there are adequate alternative channels of communication
available to the plaintiff. An "adequate" alternative channel
of communication to the plaintiff's Application would be to
allow the plaintiff to distribute his pamphlets during specific
hours or at particular locales at Jones Beach on September 1,
1990, not to allow the plaintiff to speak on other, nonholiday
weekend days. By denying the plaintiff's Application, SOP has
denied the plaintiff his First Amendment rights in toto on a
day where the plaintiff would admittedly have access to a large
audience; there is no viable alternative to permitting the
pamphlet distribution during the peak weekend, and therefore
SOP has denied the plaintiff alternative channels of
communication. (See Members Of City Council v. Taxpayers For
Vincent, supra, 466 U.S. at p. 812, 104 S.Ct. at 2132-33
[citation omitted] ["The Los Angeles ordinance does not affect
any individual's freedom to exercise the right to speak and to
distribute literature in the same place where the posting of
signs on public property is prohibited"]; Heffron v.
International Soc. For Krishna Consciousness, Inc., supra, 452
U.S. at p. 655, 101 S.Ct. at p. 2567  [rule limiting
distribution of religious literature at state fairgrounds "does
not exclude ISKCON from the fairgrounds, nor does it deny that
organization the right to conduct any desired activity at some
point within the forum. Its members may mingle with the crowd
and orally propagate their views. The organization may
also arrange for a booth and distribute and sell literature and
solicit funds from that location on the fairgrounds itself"];
Carew-Reid v. Metropolitan Transp. Authority, supra, 903 F.2d
at p. 919 ["The amplifier ban applies only to subway platforms.
. . . Appellees can perform in some of the subway mezzanines
and above ground and still reach similar, if not the same,
audiences that they could perform for on the subway
iv. Reasonable Regulation
State regulations of speech in nonpublic forums, while
subject to more relaxed standards than regulations of speech in
public or limited public forums, are permissible only to
"reserve the forum for its intended purposes, communicative or
otherwise, as long as the regulation on speech is reasonable"
(Perry Educational Assn. v. Perry Local Educators' Assn.,
supra, 460 U.S. at p. 46, 103 S.Ct. at p. 955). SOP's denial of
plaintiff's Application neither reserves Jones Beach for its
intended purpose nor is reasonable.
Plaintiff's Application does not ask permission to distribute
pamphlets on the beach itself, and thus SOP's denial of
plaintiff's Application cannot be justified as a regulation
designed to reserve Jones Beach for its intended purpose, i.e.
bathing (compare Naturalist Soc., Inc. v. Fillyaw, 736 F. Supp.
at p. 1116 ["personal solicitation of the park's visitors on
the beach would be incompatible with the property's primary
purpose"]). In fact, SOP admittedly grants similar applications
at Jones Beach for all days but holiday weekends.
As to the reasonableness of the defendants' action, despite
the fact that the plaintiff listed alternative locations other
than the "mosaic" area in his Application (see Paulsen Aff.,
Exh. H), SOP banned the plaintiff from distributing pamphlets
throughout the length and breadth of Jones Beach at any time of
day during the three day Labor Day weekend. There is no
rational basis for the 72 hour total ban for the entire Jones
In addition, SOP's inability to establish any reason for its
alleged need to assign three employees to "monitor" plaintiff's
activities; SOP's inability to establish that assigning three
employees to monitor the plaintiff for a limited period of time
at a confined locale will strain SOP's ability to serve its
patrons on September 1, 1990; and SOP's inability to establish
that it could not hire three additional employees to monitor
the plaintiff's activities for a limited period of time
(see Schneider v. State, supra, 308 U.S. at p. 162, 60 S.Ct. at
p. 151 ["Any burden imposed upon the city authorities in
cleaning and caring for the streets as an indirect consequence
of such distribution [of literature] results from the
constitutional protection of the freedom of speech and press"])
demonstrates that the defendants' action was unreasonable.
The Court finds that SOP's denial of plaintiff's Application
did not reserve Jones Beach for its intended purpose and was
For the reasons discussed above, the Court finds that SOP's
denial of the plaintiff's Application will cause the plaintiff
to suffer irreparable harm and that there is a likelihood of
success on the merits of the plaintiff's claim that SOP's
denial of his Application violated the First Amendment.
Being cognizant of the fact that SOP will operate at only 40%
of its full workforce on September 1, 1990 and that, presuming
clement weather, Jones Beach State Park will be at peak
capacity on that day, plaintiff's application to preliminarily
enjoin the defendants from denying him a permit to distribute
noncommercial pamphlets which contain a religious message on
September 1, 1990 at the mosaic area of Jones Beach State Park
is granted only to the following extent: the defendants are
directed to issue a permit to the plaintiff which allows the
plaintiff and two other persons to distribute the literature
set forth in his August 2, 1990 Application from 11:00 a.m. to
2:00 p.m. on September 1, 1990 at the mosaic area (as defined
by the plaintiff [see supra, p. 859]) of Jones Beach State Park
subject to the conditions that (a) the plaintiff obtain his
park badges at 7:45 a.m. on
September 1, 1990; and that (b) at 2:00 p.m. on September 1,
1990 the plaintiff clean up all of his pamphlets which have
been discarded at or near the mosaic area.
This ruling is solely directed to the plaintiff's request for
a preliminary injunction as to the September 1, 1990 outing.
At this time, the Court makes no determination as to the
constitutionality of the defendants' policy not to issue any
area/facility use permits on all holiday weekends or the merits
of plaintiff's other causes of action.