Paulsen v. County of Nassau

• Decision Date: 04 February 1991
• Docket Number: D,No. 821,821
• Citation: 925 F.2d 65
• Parties: Mitch PAULSEN, Andrew Nesselroth, Mike Plunkett, and John DeRienzo, Plaintiffs-Appellees, v. COUNTY OF NASSAU, Nassau County Veterans Memorial Coliseum and Facility Management of New York, Inc., Defendants-Appellants. ocket 90-7675.
• Court: U.S. Court of Appeals — Second Circuit

Page 65

925 F.2d 65

59 USLW 2498

Mitch PAULSEN, Andrew Nesselroth, Mike Plunkett, and John DeRienzo, Plaintiffs-Appellees, v. COUNTY OF NASSAU, Nassau County Veterans Memorial Coliseum and Facility Management of New York, Inc. Defendants-Appellants.

No. 821, Docket 90-7675.

United States Court of Appeals Second Circuit.

Argued Jan. 11, 1991.

Decided Feb. 4, 1991.

Kevin J. McGill, Clifton, Budd & DeMaria, New York City, for plaintiffs-appellees.

Lonnie K. Seide, Freedman, Weisbein, Samuelson & Rieger, P.C., Garden City, N.Y. (Eugene L. Weisbein, Robert S. Weisbein, of counsel), for defendants-appellants.

Before KAUFMAN, NEWMAN, and McLAUGHLIN, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

From the time of the founding of our nation, the distribution of written material has been an essential weapon in the defense of liberty. Throughout the years, the leaflet has retained its vitality as an effective and inexpensive means of disseminating religious and political thought. Today, when selective access to channels of mass communication limits the expression of diverse opinion, the handbill remains important to the promise of full and free discussion of public issues. For those of This is not to say that the right to dispense literature is not without some restrictions. In recent years, the latitude given to expressive liberty has been increasingly circumscribed by efforts to characterize euphemistically the situs on which the communication is to take place. To illustrate, we have been informed that if the premises constitute a public forum, whether by tradition or by government designation, expression may be abridged only for compelling purposes. Where, however, the First Amendment activity is incompatible with the principal function of the premises, and where the government did not intend to open the facility to the public generally, reasonable regulations are appropriate.

moderate means, but deep conviction, freedom to circulate fliers implicates fundamental liberties.

In this dispute, the District Court for the Eastern District of New York decided that the Nassau County Veterans Memorial Coliseum (the "Coliseum") had been designated by the County as a public forum. Accordingly, Judge Mishler held that leafletting may be restricted only through neutral time, place and manner regulations or by content-based prohibitions narrowly drawn to effectuate a significant state interest. See Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983). Based on these principles, the court granted a preliminary injunction requiring appellants to permit the distribution of noncommercial literature on the Coliseum grounds, subject to reasonable conditions to ensure public safety and to cover costs.

We believe the court's decision was adequately supported by the record. We affirm.

BACKGROUND

A brief overview of the Coliseum's history and physical design provides the relevant background to our analysis. The Nassau Coliseum is a large, county-owned compound located on fifty-four acres of property in Uniondale, New York. Following the completion of construction in 1972, Nassau County commenced operations and managed the stadium until 1979, when it entered into a long-term lease with Hyatt Management. In 1988, after Hyatt changed its name to Facility Management of New York ("Facility Management"), it merged with Spectacor Management and replaced supervising personnel.

The Coliseum arena, an enclosed elliptical structure with a capacity of 18,000 seats, is surrounded by a network of sidewalks, pedestrian thoroughfares and numerous parking lots which can accommodate several thousand automobiles. The stadium serves as home to a National Hockey League club and provides a venue for a wide variety of commercial and charitable events. In addition, a 60,000 square foot underground exhibition hall hosts an assortment of trade shows.

The present dispute began on July 30, 1988 when Mitch Paulsen and Andrew Nesselroth, members of the Christian Joy Fellowship organization, an evangelical group devoted to encouraging bible study, distributed religious leaflets to Coliseum patrons attending a "Judas Priest" rock concert. Paulsen was resting from his activities, when a Nassau County police officer informed him that he was not permitted to distribute the handbills and demanded he leave the premises. After Paulsen protested, the officer forcibly placed him in a patrol car and confiscated the leaflets he carried.

Paulsen was then taken to the Coliseum command trailer where the officers reviewed his arrest record. Lieutenant Robert Turk then informed him that if he wished to continue dispensing handbills, he needed the permission of Lance Elder, Nassau Coliseum Director of Operations. Elder advised him later that a local ordinance prohibited the distribution of material on Coliseum sidewalks. Appellees were not charged with violating any law and were informed they could retrieve their leaflets from the police following the concert.

During a two day evidentiary hearing before Judge Mishler on the motion for a preliminary injunction, brought pursuant to 42 U.S.C. Sec. 1983, Paulsen revealed his modus The Christian Joy Fellowship specifically targeted heavy metal and rock concert fans because the Fellowship was convinced that the young people who attended these events required more spiritual guidance. Paulsen specified several such occasions during which Coliseum employees or police officers affirmatively consented to these activities. Nesselroth's testimony concurred substantially with Paulsen's account.

                operandi.    He testified that on at least fifteen previous occasions, he and his associates had circulated more than 100,000 handbills at the Coliseum.  On average, between six and ten individuals would stand in the mall area for approximately two hours before a scheduled event to distribute their fliers to incoming patrons
                

Facility Management and Nassau County vigorously contested appellees' version of events. They claimed that for the past several years the Coliseum management consistently has forbidden all noncommercial leafletting. When Coliseum employees or the police have discovered groups soliciting donations or distributing literature, appellants contended, the offending parties were advised of stadium policy and requested to cease their activities.

Following the hearing, Judge Mishler granted Paulsen and Nesselroth's motion for preliminary injunctive relief, finding a serious likelihood that their First and Fourteenth Amendment rights to engage in expressive activity had been violated. He directed appellants to issue a permit allowing the distribution of noncommercial literature on that portion of the property located outside the arena, subject to reasonable regulations related to community safety and necessary expenses.

DISCUSSION

Under our well-established standard for the granting of preliminary injunctive relief, a moving party must demonstrate: it will suffer irreparable harm and either a likelihood of success on the merits or a sufficiently serious question that raises a fair ground for litigation, with the balance of hardships tipping decidedly in its favor. Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d 904, 907 (2d Cir.1990). Our review is limited to determining whether the district court abused its discretion in granting the motion.

Initially, we note that improper conduct for which monetary remedies cannot provide adequate compensation suffices to establish irreparable harm. Jackson Dairy, Inc. v. H.P. Hoods & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). Specifically, our historical commitment to expressive liberties dictates that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976). Since prohibitions on leafletting and dissemination of religious views contravene core First Amendment values, see, e.g., United States v. Grace, 461 U.S. 171, 176, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983), appellees have satisfied the initial requirement for securing injunctive relief.

Accordingly, we turn our attention to another prerequisite for securing injunctive relief: establishing a likelihood of success on the merits. Resolution of this issue depends on a determination whether appellants violated the First Amendment by completely excluding noncommercial leafletting from the Coliseum grounds. Central to this inquiry will be the nature of the county property on which the expression at issue occurred. Before passing on whether Paulsen and Nesselroth are likely to prevail in pursuing their claims, however, we pause to consider the public forum doctrine.

A. The Public Forum Doctrine

Government-owned property has been divided into three categories for purposes of forum analysis: (1) traditional public forums, which "by long tradition or by government fiat have been devoted to assembly and debate," Perry Education Assn., 460 U.S. at 45, 103 S.Ct. at 954, including such areas as public streets, parks and sidewalks; (2) public forums by government designation that are state-created and opened for limited public use, for example, university meeting facilities and municipal theatres; and (3) nonpublic forums which, by tradition or design, are not appropriate platforms for unrestrained communication--military installations and federal workplaces, for instance, fall into this category. Id.

Analysis of First Amendment rights reveals the relevancy of forum classification. Quintessential public forums may be regulated only via content-neutral time, place and manner restrictions. In rare instances, narrowly drawn content-based exclusions that are necessary to serve a compelling state interest are acceptable. See Frisby v. Schultz, 487 U.S. 474, 480-81, 108 S.Ct. 2495, 2499-2500, 101 L.Ed.2d 420 (1988).

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