392 F.2d 83 (2nd Cir. 1968), 251, Wolin v. Port of New York Authority

Docket Nº:251, 31715.
Citation:392 F.2d 83
Party Name:Ronald G. WOLIN, Individually and on Behalf of Veterans and Reservists to End the War in Vietnam and the Fifth Avenue Vietnam Peace Parade Committee, Plaintiff-Appellee-Cross-Appellant, v. PORT OF NEW YORK AUTHORITY, Albert Rubbert, Manager of the Port Authority Bus Terminal, Captain Robert Friend, Commanding Officer of Port Authority Terminal Poli
Case Date:March 01, 1968
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 83

392 F.2d 83 (2nd Cir. 1968)

Ronald G. WOLIN, Individually and on Behalf of Veterans and Reservists to End the War in Vietnam and the Fifth Avenue Vietnam Peace Parade Committee, Plaintiff-Appellee-Cross-Appellant,

v.

PORT OF NEW YORK AUTHORITY, Albert Rubbert, Manager of the Port Authority Bus Terminal, Captain Robert Friend, Commanding Officer of Port Authority Terminal Police, Lieutenant James Pettis, Lieutenant Fred Rackowski, Lieutenant Hugo Serrati,Lieutenant Anthony Unetich and Lieutenant George Gaulrapp, Officers of the Port Authority Terminal Police, Defendants-Appellants.

No. 251, 31715.

United States Court of Appeals, Second Circuit.

March 1, 1968

Argued Jan. 8, 1968.

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Bradley R. Brewer, New York City (Eugene G. Eisner, David Fitzpatrick, Henry di Suvero, New York City, New York Civil Liberties Union, on the brief), for plaintiff-appellee-cross-appellant.

Patrick J. Falvey New York City (Sidney Goldstein, Arthur M. Schneider, New York City, on the brief), for defendants-appellants.

Before SMITH, KAUFMAN and HAYS, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

Ronald Wolin and the organizations he represents 1 have brought before this court questions that are significant and perplexing. We set them forth seriatim. May the Port of New York Authority 2

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bar the use of its Terminal to all exercise of First Amendment rights? Are the peaceful activities proposed by the plaintiff, including distribution of leaflets, carrying placards, setting up card tables and conducting discussions with passers-by entitled to substantial protection under the First and Fourteenth Amendments? Are the plaintiff and his associates, who have promised to withdraw and discontinue these activities in the event of a disturbance, entitled to official protection against disturbances provoked by a hostile audience? These questions have been tactfully and carefully framed for us by the parties who appear here in confrontation after a constitutional pas de deux. Some fifteen months have passed since the plaintiff first sought to exercise his asserted right of protest.

We hold that the Port Authority may not abridge by absolute prohibition the right of political expression. The peaceful activities proposed by Wolin are protected against denial by the Port Authority, and accordingly, they may be restricted only by regulations narrowly drawn to serve legitimate interests of the general public who use the Terminal. We therefore affirm the judgment of the District Court, with modifications as set forth.

I.

During the latter part of 1966, Ronald Wolin and others associated with the Fifth Avenue Vietnam Peace Parade Committee and the Veterans and Reservists to End the War in Vietnam assembled outside an entrance to the Bus Terminal building operated by the Port of New York Authority at Eighth Avenue and 40th Street, Manhattan. They came there for the purpose of distributing literature to persons on the sidewalk and occasionally engaging in conversation with persons in the area. These activities, designed to publicize the views of the group concerning the Vietnam war, were at all times conducted in a peaceful and orderly manner.

The Port of New York Authority is a public corporation created in 1921 by agreement between the States of New York and New Jersey. McKinney's Unconsolidated Laws of N.Y., §§ 6401, 6404. The Bus Terminal Building operated by the Port Authority occupies a full city block in Manhattan. Thousands of persons use the terminal facilities, entering from the subway or through six outside entrances, using the fifty foot wide main concourse and four other levels to get to and from buses, subways, city streets, shops and other concessions. In 1966 the average number of persons passing through the building each day approximated 205,000 and on December 24, 1966 some 325,000 people used the facility. The Terminal contains, in addition to the open concourse areas and waiting rooms, bus line ticket counters, newsstands, restaurants, snack bars, a bakery, a drugstore, a bar, a bowling alley, a bank, gift shops and various other shops and concessions which are open to the general public. The defendant Albert Rubbert is the manager of the Terminal with general supervisory responsibility for its operations. The Port Authority maintains its own police force of 38 men who are charged with maintaining order and patrolling the terminal; the defendant Captain Robert Friend is the head of this contingent of the Port Authority police, and the other named defendants are officers assigned to duty in the terminal. 3

In early November, 1966 Wolin and his group decided to take their protest inside the terminal where they might find in greater numbers than on the sidewalks their particular audience, traveling servicemen. Accordingly, with five others, Wolin entered the terminal on the evening

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of November 6 and distributed leaflets in the area near gates 108-115 on the upper bus level for approximately 80 minutes. Although it is agreed that their conduct was peaceful and did not cause any interference with the traffic in the Terminal, they were nevertheless approached by Lieutenant Serrati who requested their names. The six individuals refused to comply with Serrati's request and after some discussion, he threatened to arrest them if they refused to disband and leave the building. During this discussion, the police officer stated that the protesters were on 'private' property, and demanded to know if they were there for the purpose of buying a ticket or travel by bus. The plaintiff and his associates replied that they were exercising their right of free speech by distributing the leaflets.

In this brief confrontation the pattern for the future encounters was set. On November 13, plaintiff entered the building with two others, and distributed handbills for about thirty minutes before they were asked to leave by Lieutenant Gaulrapp. Next, on November 16, 1966, plaintiff wrote to defendant Rubbert, the Manager of the Terminal, to request permission 'to conduct free speech activities in the public areas of the Port Authority Bus Terminal'; in particular to distribute political handbills, to carry placards, to use card tables for the distribution of literature, to engage in discussions with others. Wolin proposed to conduct these activities every Sunday evening, and, in addition, on Wednesday evening, November 23, Friday evening, December 23 between 6 p.m. and 11 p.m. and Saturday, December 24, 1966 between 11 a.m. and 11 p.m. The nature of the proposed protest activity was evident from the letter:

The purpose of the activities covered by this request will be to communicate our views concerning the Vietnam war to traveling servicemen and to members of the public within the terminal and to persuade them to join our cause.

We do not intend to interfere in any significant or substantial way with the operation and use of the terminal for the convenience of bus passengers or other persons who may be passing through or waiting in the building. * * *

We intend to conduct our activities inside the terminal because this is the most effect-- and perhaps the only effective-- way to achieve our purpose. * * *

We do not intend to be in any way riotous, tumultuous, violent, threatening, intimidating, abusive, obscene, or insulting; nor do we intend to incite, provoke, or encourage any such behavior by anyone else. * * * If a situation should arise which the Terminal police cannot control, we shall temporarily cease our activities until such situation no longer exists. We intend to obey any police order reasonably designed to prevent serious disorder or blockage of pedestrian traffic.

Action leading to this lawsuit soon followed. On November 17, 1966, Rubbert denied the plaintiff's request, relying on the regulations governing use of the Terminal facility and the consistent policy of the Port Authority to deny permission to groups interested in conducting demonstrations or distributing leaflets in the building. 4 The Manager threatened arrest

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if the plaintiff persisted in his desire to protest within the Terminal.

Wolin then brought this action in the Southern District, seeking a declaratory judgment that he be permitted to distribute leaflets and to conduct other enumerated activities in the main concourse and passageways of the Terminal. Plaintiff also asked that the defendants be enjoined from restraining such activities, or arresting those persons exercising their rights of protest, or requiring him to obtain permission to engage in these activities, or in any way discouraging the public from accepting the leaflets, or harassing and interfering with the peaceful and orderly conduct of the plaintiff. Jurisdiction was based on 42 U.S.C. § 1983, 28 U.S.C. §§ 1331, 1343 and 2201 and the First and Fourteenth Amendments to the United States Constitution.

Eventually, both parties moved for summary judgment. Judge Mansfield, in a carefully reasoned opinion, 5 granted the plaintiff's motion to the extent of finding that the Terminal area was dedicated to public use as a thoroughfare and that it was therefore an appropriate place for the exercise of rights protected by the First Amendment. He decided that plaintiff had a right to distribute the leaflets and this right could only be restricted under reasonable, limited, and clear regulations promulgated by the Authority. Accordingly, the court declared four sections of the Rules and Regulations unconstitutional and enjoined defendants from interfering with the plaintiff's right to distribute leaflets in a manner that would not unduly obstruct traffic in the terminal. He directed the Port Authority to promulgate new regulations that met standards of uniformity and specificity, to govern distribution of leaflets as well as the other methods of communication proposed by the plaintiff. The Port Authority appealed,...

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