D. The Port Authority Bus Terminal
The Bus Terminal is located between 40th and 42nd Streets and between 8th and 9th Avenues in Manhattan. It consists of two buildings, a North Wing between 41st and 42nd Streets, and a South Wing between 41st and 42th Streets. The Bus Terminal is used by at least 165,000 people each day, and is generally open to the public for 18 hours a day.
Between midnight and 6 a.m., however, only the North Wing Lower Bus Level is open for bus and passenger traffic. Tr. 5/3 at 9, 54.
There are no written rules that designate the locations presently available for First Amendment activity at the Bus Terminal, or the number of persons permitted in each location.
However, as a matter of practice, the Port Authority has adopted very specific rules. During the 18 hours per day that the Bus Terminal is open to the public, First Amendment activity may be conducted by thirty-six people in a total of seven fixed locations. In the Main Concourse, six people are permitted in each of three locations, and two are permitted in one additional location. In the Suburban Concourse, six are allowed in each of two locations and four are permitted in one other location. Tr. 4/25 at 127-30; Tr. 5/3 at 21-24, 59-60. The seven fixed locations were selected as sites for First Amendment activity because they are close enough to pedestrian traffic to provide access to an audience, but are out of the direct paths of pedestrian traffic. Tr. 5/3 at 21-25. These locations are consistent with recommendations made in studies conducted in 1988 and 1990 regarding appropriate areas for conducting First Amendment activity directed at the public. Tr. 5/3 at 38, 69.
A person wishing to apply for space to conduct First Amendment activity at the Bus Terminal must fill out a permit request form. However, the form used at the Bus Terminal has been in existence since 1986 and is obsolete in certain respects. Although the form purports to list all of the locations available for First Amendment activity, it is no longer accurate. Certain areas have been shifted to accommodate changes in the structure of the Bus Terminal; positions at the Upper and Lower Bus Levels have been eliminated due to construction; and two additional areas have been added in the Main Concourse and Suburban Concourse. See Permit Request Form, Def. Ex. B.; Tr. 5/3 at 7, 10, 17-18. The total number of people who may engage in First Amendment activity at fixed locations has been reduced from 38 to 36. See Letter from Richard D. Williams, Attorney for Defendants, dated March 1, 1996, Def. Ex. A; Def. Ex. B.
In addition to the activity permitted at fixed locations, ten people may communicate with Bus Terminal patrons by walking through the Bus Terminal as "rovers." Tr. 5/3 at 25. The ten rovers are currently permitted as part of the compromise previously reached by the parties, and are required to operate in a manner that does not obstruct the flow of pedestrian traffic. Tr. 4/25 at 76, 78, 80, 81. However, the permit request form also describes rovers, and Defendants have indicated that they do not object to the continuation of roving activity.
First Amendment activity is also allowed on the sidewalks outside of the Bus Terminal. In anticipation of such activity by Plaintiffs, Defendants established areas where Plaintiffs would be visible to the crowds, but would not disrupt traffic patterns. Tr. 4/25 at 42-43, 49-50. One such area was established on 42nd Street from 8th Avenue towards 9th Avenue, and is over 50 feet long and can accommodate up to 75 people. Tr. 4/25 at 49. A second area was established on 41st Street between 8th and 9th Avenues, and a third on 40th Street and 9th Avenue.
As part of the compromise negotiated by the parties, two smaller areas were added on 8th Avenue, near the south exits of the North and South Wings. These areas are cordoned off on three sides and are each large enough for five people. Defendants have no objection to continuing to allow activity at these locations.
Permit request forms are available at the Bus Terminal from 8:30 a.m. to 9:30 a.m. and from 2:00 p.m. to 3:00 p.m., and permits are valid for fourteen days. Tr. 4/25 at 32, 90. A completed permit request form must be submitted no less than 36 hours and no more than seven days before the activity is to commence. Tr. 4/25 at 120; Tr. 5/3 at 50; Tr. 5/6 at 79-80. This waiting period enables Port Authority personnel to prepare for any contingencies that the requested activity might engender, such as counterdemonstrations. Tr. 5/3 at 47-50. In order to determine whether such an occurrence is likely, Port Authority personnel review the contents of any materials that will be distributed by the individual or group requesting a permit. However, no one has been refused permission to engage in First Amendment activity at the Bus Terminal because of the content of the materials to be disseminated. Tr. 4/25 at 91-94, 99; Tr. 5/3 at 33. In fact, locations for First Amendment activity are given out on a first-come, first-served basis, without any exercise of discretion. Tr. 4/25 at 99, 115; Tr. 5/3 at 33; Tr. 5/6 at 111.
II. Legal Standard
A party seeking injunctive relief must ordinarily demonstrate:
(a) that it will suffer irreparable harm in the absence of an injunction and (b) either (i) a likelihood of success on the merits or (ii) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor.
Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33 (2d Cir. 1995). However, the movant is required to meet a higher standard where the injunction would alter the status quo by commanding a defendant to perform a positive act. See id. at 33-34. An order granting such relief is known as a "mandatory injunction," and will issue "only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief." Id. at 34 (quoting Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985)); see also SEC v. Unifund SAL, 910 F.2d 1028, 1039 (2d Cir. 1990) (injunction which alters status quo requires "a more substantial showing of likelihood of success").
In the present case, the requested injunction is largely mandatory. Plaintiffs seek greater access to the WTC Concourse and the Bus Terminal than is presently permitted. An order granting this relief would effect a dramatic shift in policy at both locations and require the Port Authority to issue new rules and procedures for regulating First Amendment activity. See Jolly v. Coughlin, 76 F.3d 468, 474 (2d Cir. 1996) (characterizing injunction as mandatory where it would require a "dramatic shift" in policy of Department of Correctional Services). Plaintiffs must therefore meet the heightened standard required for a mandatory injunction to issue.
A. Forum Analysis
The Supreme Court has adopted a "forum based" approach for evaluating restrictions that the government places on the use of its property. See Int'l Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 120 L. Ed. 2d 541, 112 S. Ct. 2701 (1992). Under this approach, public property is divided into three categories: (1) the traditional public forum, property which has historically been available for public expression; (2) the designated public forum, property the state has specifically selected for First Amendment activity; and (3) the nonpublic forum. Any effort to regulate speech on property that falls into the first two categories is subject to heightened scrutiny. Although content-neutral time, place and manner restrictions may be promulgated, they must be narrowly drawn to serve a significant governmental interest, and must leave open ample alternative means of communication. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983). By contrast, regulations concerning non-public fora are permissible provided they are reasonable and do not discriminate on the basis of the speaker's viewpoint. Id. at 46.
Plaintiffs assert that the Bus Terminal and the WTC Concourse are traditional public fora. They rely upon the Second Circuit's holding in Wolin v. Port of New York Authority, 392 F.2d 83 (2d Cir.), cert. denied, 393 U.S. 940, 21 L. Ed. 2d 275, 89 S. Ct. 290 (1968). There, the court held that the Bus Terminal is a public forum, stating:
[The Terminal] is a thoroughfare used by thousands of people each day. It is one of the busiest passageways in the country, with persons hurrying to and from subways, buses, shops, theaters, and other streets. In design and physical appearance, the main concourse resembles a street.