925 F.2d 65 (2nd Cir. 1991), 821, Paulsen v. County of Nassau

Docket Nº:821, Docket 90-7675.
Citation:925 F.2d 65
Party Name: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.
Case Date:February 04, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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925 F.2d 65 (2nd Cir. 1991)

Mitch PAULSEN, Andrew Nesselroth, Mike Plunkett, and John

DeRienzo, Plaintiffs-Appellees,


COUNTY OF NASSAU, Nassau County Veterans Memorial Coliseum

and Facility Management of New York, Inc.,


No. 821, Docket 90-7675.

United States Court of Appeals, Second Circuit

February 4, 1991

Argued Jan. 11, 1991.

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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

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

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.

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.


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...

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