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N.Y. NEWS v. METROPOLITAN TRANSP. AUTH.

December 18, 1990

NEW YORK NEWS, INC., PLAINTIFF,
v.
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 indicated below.

PARTIES

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.

THE FACTS

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 the system.

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 emergency."

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., ¶
  4.
    (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 ...

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