United States District Court, Southern District of New York
December 18, 1990
NEW YORK NEWS, INC., PLAINTIFF,
METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY AND ROBERT KILEY, CHAIRMAN OF THE METROPOLITAN TRANSPORTATION AUTHORITY, DEFENDANTS, AND RON REALE, AS PRESIDENT OF THE POLICE BENEVOLENT ASSOCIATION, NEW YORK CITY TRANSIT POLICE DEPARTMENT, AND LOCAL 100, TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, INTERVENORS.
The opinion of the court was delivered by: Cedarbaum, District Judge.
OPINION AND ORDER
The question presented by this motion for a preliminary
injunction is whether plaintiff is likely to succeed at trial
in showing that by revoking permits for the sale of The Daily
News by direct sellers ("hawkers") because of threatened
unlawful conduct, defendants abridged plaintiff's freedom of
speech and of the press in violation of the First and
Fourteenth Amendments to the United States Constitution. For
the reasons discussed below, plaintiff is likely to succeed in
establishing that the revocation was unconstitutional because
it was not reasonable regulation, and accordingly, plaintiff's
motion for a preliminary injunction is granted to the extent
Plaintiff is the publisher of The Daily News, a daily
newspaper. Defendants Metropolitan Transportation Authority
("MTA") and the New York City Transit Authority ("TA") are
public benefit corporations which are responsible for the
operation of the subway and commuter railroad systems serving
the New York metropolitan area, including the Long Island Rail
Road and the Metro-North Commuter Railroad ("Metro-North").
Defendant Robert Kiley is the Chairman of the MTA and the TA.
Intervenor Ron Reale is the president of the Police Benevolent
Association for the New York City Transit Police Department.
Intervenor Local 100, Transport Workers Union of America,
AFL-CIO, is the collective bargaining representative of some
35,000 hourly rated TA employees responsible for the operation
and maintenance of the New York City bus and subway system. The
New York Civil Liberties Union has filed a brief amicus curiae
in support of plaintiff's position.
Nine of the ten unions representing employees of The Daily
News are on strike. Before the strike began on October 25,
1990, most newsstands in the subway and commuter train stations
operated by defendants offered The Daily News for sale. Since
the strike, most of these newsstands have stopped selling The
Daily News. Plaintiff's verified complaint states that direct
sales of The Daily News through the use of hawkers is
plaintiff's only viable means of distributing the newspaper in
On November 28, 1990, plaintiff and the MTA entered into two
agreements, described as "permits," allowing plaintiff's
"hawkers" to sell The Daily News at designated locations in the
subway and train systems. One permit authorized sales by no
more than three hawkers at each of 43 Long Island Rail Road and
15 Metro-North commuter train stations, but not within 100 feet
of any newsstand selling The Daily News. The second permit
authorized sales by no more than three hawkers at each of 120
subway stations, provided sales were made within 10 feet of a
newsstand, newspaper rack, or newspaper vending machine not
selling The Daily News. Both permits could be terminated by
either side upon 48 hours' written notice or by the MTA upon
less than 48 hours' written notice "in the event of an
On the day after defendants granted the permits to plaintiff,
representatives of several transportation workers' unions,
including intervenor Local 100, informed defendants that the
presence of hawkers selling The Daily News in the transit
system would be likely to disrupt transportation services and
create safety risks for MTA employees and riders. Defendants
have submitted affidavits describing telephone conversations
with union leaders and copies of letters and telegrams received
from union leaders. According to the affidavits, officials of
defendants received the following communications before the
permits were revoked:
(1) Gary Dellaverson, Director of Labor
Relations for the MTA, states that an attorney
representing the AFL-CIO told him that if the MTA
continued to allow The Daily News to be sold
through hawkers, "MTA should expect `trouble'."
Dellaverson Affidavit, ¶ 3.
(2) Dellaverson states that Damaso Seda, the
Secretary Treasurer of Local 100, telephoned him
"to express the union's [Local 100's] anger at
allowing MTA to be in the middle of The Daily News
strike. He said he could not guarantee what his
members will do, that this was a very violent
strike, and that he feared for the safety of his
members and MTA passengers and that he was
instructing his members to take whatever steps are
necessary to insure his members own safety." Id., ¶
(3) Dellaverson states that Barry Feinstein, a
member of the MTA's Board of Directors, as well as
the President of the New York State Public
Employee Conference and of Local 237,
International Brotherhood of Teamsters, which
represents 20,000 municipal employees, "telephoned
[Dellaverson] to register his dissatisfaction with
the presence of the hawkers in the systems, and
said that MTA should expect `plenty of trouble.'"
Id., ¶ 5.
(4) Donald Nelson, Executive Vice President of
Metro-North, states that he had a series of
telephone conversations with James Phelan, General
Chairman of the United Transportation Union, which
represents Metro-North conductors and trainmen.
Nelson states that Phelan told him that officials
of the striking Daily News unions had communicated
to him "that there would be handbilling and
picketing of Metro-North property by the strikers
if hawkers sold the Daily News." Nelson states that
Phelan said "his members would not cross those
lines and would not report for work." Nelson
Affidavit, ¶¶ 3-4.
(5) Phelan sent a letter to defendant Kiley
which stated that the presence of hawkers in
Metro-North stations "is an insult to every MTA
employee who is a union member and deliberately
puts MTA employees and the traveling public at
great personal risk. Should MTA's action result in
danger or potential threat of danger to our
members, the UTU is prepared to defend a member's
right to decline to enter the area involved."
Id., Exhibit C.
(6) Chris Silvera, Secretary-Treasurer of Local
808 of the International Brotherhood of Teamsters,
which represents Metro-North maintenance of way
workers, sent Nelson a letter and a telegram which
stated that "Local 808 is totally and
unequivocally opposed" to MTA's decision to grant
the permits to The Daily News, that The Daily News
strike "has been marred/enforced with 860
documented acts of violence," and that "[i]n the
event that striking picketers are present around
Grand Central Terminal we will inform our members
of their rights under the Federal Rail Safety Act
not to enter the property." Id., Exhibits D, E.
(7) Andrew Paul, Assistant Director of Labor
Relations for Metro-North, states that he had
three telephone conversations with James Phelan.
Phelan told Paul that he had been informed by
officials of the striking Daily News unions that
"supporters of striking employees of the Daily News
would begin handbilling at Metro-North stations,"
which would "confuse Metro-North employees who
would very likely perceive this handbilling by
strike supporters as a picket line which they might
well not cross." Paul Affidavit, ¶¶ 2, 4.
(8) Anthony Conti, a Labor Relations
Representative for Metro-North, stated that Howard
Dash, Regional Chairman of United Transportation
Union-Yardmasters, which represents Metro-North
yardmasters, told him during a phone conversation
that "due to the violent nature of the Daily News'
strike should there be any picket lines he would
instruct his members that pursuant to `a provision'
of the Railway Labor Act they would not have to
cross those lines." Conti Affidavit, ¶ 3.
On the night of November 29, 1990, the MTA sent plaintiff a
letter, the entire text of which is as follows:
Please be advised that effective immediately the
permits for the direct sale of newspapers in the
New York City Subway System and in the
Metropolitan Transportation Authority's (the
commuter rail system dated November 28, 1990 are
terminated, effective immediately, pursuant to the
emergency provision of said permits.
Goering Declaration, Exhibit B.
In an affidavit submitted by plaintiff, David Hiller, Vice
President and General Counsel of Tribune Company, plaintiff's
parent company, states that he was told by Robert Bergen,
General Counsel of Metro-North, that the permits were being
terminated "because MTA unions had threatened a work stoppage
if the Daily News were sold at MTA locations and striking News
workers picketed these locations." Hiller Reply Affidavit, ¶ 3.
On the following day, plaintiff filed this lawsuit attacking
defendants' regulations as invalid on their face and as applied
under the First and Fourteenth Amendments and asserting that
defendants' actions violated the Fourteenth Amendment due
process and equal protection clauses and 42 U.S.C. § 1983.
Plaintiff moved by order to show cause for a temporary
restraining order and a preliminary injunction. After hearing
both sides, I granted a temporary restraining order directing
defendants to allow plaintiff's hawkers to sell The Daily News
in accordance with the terms and conditions of the permits
pending determination of plaintiff's motion for a preliminary
injunction. On December 7 and December 14, I extended the
temporary restraining order. No evidentiary hearing was held
because all parties agreed that an evidentiary hearing was
In order to obtain a preliminary injunction, plaintiff must
show (a) irreparable harm and (b) either (1) likelihood of
success on the merits or (2) sufficiently serious questions
going to the merits to make them a fair ground for litigation
and a balance of hardships tipping decidedly in its favor.
Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 972
(2d Cir. 1989); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc.,
596 F.2d 70, 72 (2d Cir. 1979) (per curiam).
1. Irreparable Harm
Irreparable harm means injury for which a monetary award
cannot be adequate compensation. Jackson Dairy v. H.P. Hood,
596 F.2d at 72. The loss of First Amendment freedoms, for even
minimal periods of time, constitutes irreparable injury. Elrod
v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d
Plaintiff has made a showing of irreparable harm. Plaintiff
has established a restriction of its right to sell newspapers,
which is protected by the First Amendment. City of Lakewood v.
Plain Dealer Publishing Co., 486 U.S. 750, 768, 108 S.Ct. 2138,
2149, 100 L.Ed.2d 771 (1988); Gannett Satellite Information
Network, Inc. v. Metropolitan Transportation Authority,
745 F.2d 767, 772 (2d Cir. 1984). The injury to this right is
defendants' revocation of the permits and refusal to allow
plaintiff to sell its newspapers through hawkers at stations at
which newsstands refuse to carry those newspapers.
2. Likelihood of Success
a. The unreasonableness of the revocation of the permits
The Supreme Court has divided public property into three
categories for purposes of First Amendment analysis. Perry
Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37,
44-46, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983). The
standard to be applied in testing defendants' restriction of
plaintiff's exercise of its First Amendment right to sell
newspapers depends upon how the public areas of the train and
subway stations are characterized. Perry, 460 U.S. at 44, 103
S.Ct. at 954; Gannett v. MTA, 745 F.2d at 772. The first
category consists of traditional public forums such as streets
and parks. Perry, 460 U.S. at 45, 103 S.Ct. at 955. The second
category is public property designated by the government for
use by the public as a place for expressive activity. Id. The
third category is "[p]ublic property which is not by tradition
or designation a forum for public communication." Id. at 46,
103 S.Ct. at 955.
The Second Circuit has held that the public areas of MTA
stations are in the third category. Gannett v. MTA, 745 F.2d at
773. Property in the third category "can still serve as a forum
for First Amendment expression if the expression is appropriate
for the property and is not `incompatible with the normal
activity of a particular place at a particular time.'" Id.
(citations omitted). The Second Circuit has also noted that the
public areas of MTA stations are appropriate forums for the
sale of newspapers because "[t]he thousands of commuters who
pass through the stations each day provide a ready market for
morning newspapers." Id. The same reasoning unquestionably
applies to the public areas of subway stations through which
millions of travelers pass virtually every day.
The standard for measuring the constitutionality of a
particular regulation of speech on property in the third
category is reasonableness. United States v, Kokinda, 497 U.S.
___, ___, 110 S.Ct. 3115, 3119, 111 L.Ed.2d 571, 581 (1990);
Perry, 460 U.S. at 46, 103 S.Ct. at 955; Gannett v. MTA, 745
F.2d at 773. Defendants argue that their refusal to allow
plaintiff to sell its newspapers through hawkers is reasonable
because of the danger that the presence of The Daily News
hawkers in the transit system will create a safety risk to MTA
employees and passengers and because of the possibility that
transit operations will be disrupted if The Daily News unions
picket or handbill MTA facilities and transit workers refuse to
report to work.
Based on the undisputed facts, I find that plaintiff is
likely to be able to show that defendants revoked the permits
solely because of fear of illegal conduct by The Daily News
strikers and the transit unions, and that such interference
with freedom of speech and of the press is unreasonable
Defendants' revocation of the permit for the subway system
was unreasonable because the danger and disruption defendants
anticipated in the subway system would have been illegally
caused. Violence by the strikers, of course, is illegal. A
strike, job action, or refusal to report to work by defendants'
employees who work in the New York City subway system is
illegal under the Taylor Law. N.Y.Civil Service Law § 210
(McKinney 1983).*fn1 When one person attempts by illegal
conduct to inhibit another's constitutionally protected speech
on public property appropriate to that speech, the reasonable
governmental response is to seek to prevent the illegal
conduct, not the constitutionally protected speech. Indeed, in
the event of a strike or other job action by subway workers,
the Taylor Law would require defendants to seek an injunction
against the illegal action. Id. § 211. It is against public
policy to accept a threat of illegal conduct as justification
for restricting First Amendment rights. Thus, a government
agency cannot use a threat of illegal conduct as a rational
basis for interfering with freedom of speech or the press.
Defendants' revocation of the portion of the permit
pertaining to Long Island Rail Road stations was also
unreasonable. Defendants have not submitted any evidence
showing that when they revoked the permits they had received
any communications that the presence of hawkers at Long Island
Rail Road stations would cause any danger or disruption of
So too, defendants' revocation of the portion of the permit
pertaining to Metro-North stations was unreasonable. First, it
should be noted that the threat by Silvera was only "in the
event that striking picketers are present around Grand Central
Terminal." Grand Central Terminal is not one of the railroad
stations in which hawking of The Daily News is authorized by
the revoked permit. But far more fundamental is that all of the
communications from unions representing Metro-North employees
are premised on predictions of violence. Although the MTA
argues that its judgment
of the imminence of the threatened conduct must control, it
does not contend that the threatened conduct is lawful. On the
contrary, it argues that it may yield to threats of unlawful
conduct if in its judgment such conduct may disrupt the
I am well aware that I must not substitute my judgment for
that of the defendants in assessing the immediacy and
seriousness of the threats that have been made, and I have not
done so. But when I find, as I have, that the response by
defendants to those threats is unreasonable, then the court
must intervene to assure that the governmental authorities do
not yield to protests and unlawful pressures at the expense of
stifling constitutionally protected freedoms.
At oral argument, although not at the time the permits were
revoked, defendants argued that their refusal to permit
plaintiff to sell its newspapers through hawkers in subway and
train stations was reasonable because hawking contributes to
congestion and other conditions that interfere with the safe
and efficient operation of the transit system. Plaintiff is
likely to succeed on the merits in spite of this argument for
several reasons. First, defendants concede that their
regulations do not prohibit hawking of newspapers.*fn2
Moreover, the effect of hawking on the operation of the transit
system was not the real reason for which defendants revoked
plaintiff's permits. Defendants granted plaintiff permits to
use hawkers in spite of these considerations. They revoked the
permits immediately after the transit unions objected.
Furthermore, defendants have not offered a reasonable
distinction between hawking of newspapers and other activities
they do permit, such as solicitation of charitable donations.
See N.Y.Comp.R. & Regs., tit. 21, § 1050.6(c) (as amended
December 29, 1989), available in N.Y. St. Reg. Vol. XII, Issue
3 at 37 (January 17, 1990); Levine Affidavit, Exhibit A.
b. The facial invalidity of defendants' regulations
Plaintiffs are also likely to succeed on their claim that
defendants' regulations are facially invalid because they give
MTA officials unfettered discretion over the issuance of
permits for the hawking of newspapers in the transit system.
Defendants have four sets of regulations that govern the sale
of newspapers in the transit system. New York Code of Rules and
Regulations § 1050.6(b) provides:
No person, unless duly authorized by the
[Metropolitan Transit] Authority, shall engage in
any commercial activity upon any facility or
conveyance. . . . Commercial activities include:
(1) the advertising, display, sale, lease, offer
for sale or lease, or distribution of food, goods,
services or entertainment (including the free
distribution of promotional goods or materials). .
Id., § 1050.6(b) (emphasis added). This regulation does not set
out the standards upon which authorization by the MTA will be
The "Rules and Regulations Governing the Conduct and Safety
of the Public in the Use of Metro-North Commuter Railroad
Company Terminals, Stations, and Trains" provide:
No act otherwise prohibited by any of these Rules
may be undertaken unless specifically authorized by
the terms of any written contract, agreement,
permit, license or lease of the type issued in the
ordinary course of business of Metro-North. . . .
Levine Affidavit, Exhibit B (emphasis added) (adopted but not
published at N.Y. St. Reg. Vol. XII, Issue 15 at 39 (April 11,
1990), to be codified at N.Y.Comp.R. & Reg. tit. 21, §
1085.3(a)). Metro-North's rules and regulations do not
otherwise provide for the sale of newspapers, and they do not
set out the standards by which Metro-North will determine
whether to enter into contracts and agreements or grant
permits, licenses, or leases.
The Long Island Rail Road's rules and regulations are
substantially the same as Metro-North's. Goering Affidavit,
Exhibit C (adopted but not published at N.Y. St. Reg. Vol. XII,
Issue 15 at 36 (April 11, 1990), to be codified at N.Y.Comp.R.
& Reg. tit. 21, § 1097).
The MTA Real Estate Department Guidelines for Distribution of
Newspapers, Books and Magazines provide for sale of newspapers
at newsstands authorized by the MTA and at temporary newsracks
pending reconstruction of certain newsstands. Levine Affidavit,
Exhibit F. The only other provision for distribution of
publications under the Guidelines pertains to distribution
without charge or sales by charitable organizations.
None of the rules and regulations cited by any party set out
standards by which the MTA will issue permits for hawking of
newspapers. Indeed, the MTA Real Estate Guidelines apparently
do not contemplate distribution of newspapers by hawkers or
vending machines, although the MTA admits that it has issued
permits for both types of distribution.
"[A] law subjecting the exercise of First Amendment freedoms
to the prior restraint of a license, without narrow, objective,
and definite standards to guide the licensing authority, is
unconstitutional." Shuttlesworth v. Birmingham, 394 U.S. 147,
150-151, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969). "[A] law or
policy permitting communication in a certain manner for some
but not for others raises the specter of content and viewpoint
censorship. This danger is at its zenith when the determination
of who may speak and who may not is left to the unbridled
discretion of a government official." City of Lakewood v. Plain
Dealer, 486 U.S. at 763, 108 S.Ct. at 2147. The absence of
standards violates the First Amendment because it may inhibit
those newspapers seeking permits from expressing views critical
of the MTA or its union employees. See Id. at 757-758, 108
S.Ct. at 2143-2144. The transit system's non-forum status does
not eliminate the constitutional requirement of standards for
discretionary licensing, although it may require that any
standards promulgated be reviewed only for reasonableness
instead of some higher level of scrutiny.
For all of the foregoing reasons, plaintiff's motion for a
preliminary injunction is granted to the extent that pending
final adjudication of this case defendants are enjoined from
unilaterally revoking the permits previously issued to
plaintiff without the permission of this Court.