DALLAS ASS'N, ETC. v. DALLAS CTY. HOSPITAL DIST.

• Decision Date: 08 November 1979
• Docket Number: Civ. A. No. 3-79-0055-H.
• Parties: DALLAS ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW, Leon Gowans, and Scott Holladay, Plaintiffs, v. DALLAS COUNTY HOSPITAL DISTRICT, Defendant.
• Court: U.S. District Court — Northern District of Texas

478 F. Supp. 1250

DALLAS ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW, Leon Gowans, and Scott Holladay, Plaintiffs, v. DALLAS COUNTY HOSPITAL DISTRICT, Defendant.

Civ. A. No. 3-79-0055-H.

United States District Court, N. D. Texas, Dallas Division.

November 8, 1979.

COPYRIGHT MATERIAL OMITTED

Roger E. Albright, Dallas Legal Services Foundation, Inc., Dallas, Tex., for plaintiffs.

Earl Luna and Thomas V. Murto, III, Dallas, Tex., for defendant.

OPINION

SANDERS, District Judge.

In this first amendment freedom of speech case plaintiffs challenge the constitutionality of defendant's no solicitation rule at Parkland Memorial Hospital in Dallas. The rule prevents plaintiffs from distributing leaflets at Parkland which are critical of the hospital.

Plaintiffs contend this no solicitation rule is an overly broad prior restraint of speech, and sue to have the rule declared unconstitutional and its enforcement enjoined.

Defendant asserts Parkland Hospital is not a public forum and the no solicitation rule is necessary to enable the hospital in carrying out its purpose and primary activity of rendering health care to patients.

The court holds Parkland Hospital is not a public forum for first amendment activity, and plaintiffs do not have a constitutional right to solicit or to distribute leaflets at Parkland.¹

I. The Parties

A. The Hospital

Parkland Memorial Hospital ("Parkland") in Dallas, Texas, is owned and operated by Defendant Dallas County Hospital District ("the District").² Parkland has facilities for emergency care, inpatient hospital care, and outpatient care.

The Outpatient Clinic ("clinic") is the principal area of the hospital in which Plaintiffs want to distribute their leaflets. This clinic is a five story annex to the main part of the hospital. The clinic provides medical care to indigent patients who are ambulatory, which usually means they are well enough to walk in, receive care, and walk out. The clinic now treats many more patients than it was designed to handle;³ it is always extremely crowded. There is a large waiting room on each floor of the clinic with closed treatment rooms surrounding the waiting rooms. Most of the patients served in the clinic are indigent in contrast to the inpatient hospital areas where there are a substantial number of paying patients.⁴ The clinic has two entrances, one from the main lobby and one from the outside.⁵

Plaintiffs seek to distribute leaflets in the clinic waiting areas, the first floor halls and lobby, the hospital streets and sidewalks, the hospital parking lots, the cafeteria, the gift shop, and the vending machine section. The heart of the first floor is the small main lobby with halls like arteries branching from the lobby.⁶ These halls on the first floor lead to the Outpatient Clinic; to the Triage Clinic, which diagnoses patients and directs them to the appropriate areas of the hospital; to the pharmacy, which has a large and crowded waiting room; and to the administrative offices of the hospital.

Health care personnel sometime use the waiting rooms for activities related to patient care. These activities include teaching patients, counselling families, taking patient histories, and administering medication and I.V.'s. On rare occasions when the treatment rooms are full some medical treatment like drawing blood occurs in the clinic waiting rooms. More commonly, the clinic waiting rooms because of their size are used for teaching patients. For example, instruction to diabetic patients is given in the clinic waiting rooms weekly. There are also classes in the clinic waiting rooms for obstetrics and cardiac patients.

The hospital complex is surrounded by busy public streets. The vehicular access to the hospital is limited to three entrances. (A fourth entrance is to the emergency room.) There is a patient parking lot on the grounds of the hospital, and a public parking lot across the street. Those patients who do not arrive by cars or taxis generally come by bus. There are three bus stops located on city property adjacent to the hospital.

B. ACORN

Plaintiffs are Dallas Association of Community Organizations for Reform Now ("ACORN"); Scott Holladay, the past regional organizer for ACORN; and Leon Gowans, chairman of a neighborhood group affiliated with ACORN. ACORN is an organization of low to moderate income families which operates through neighborhood groups to promote social and economic changes. In the fall of 1978 one of the issues in which ACORN members were interested was the improvement of health care provided to low and moderate income residents of Dallas County. During this time ACORN members were attending meetings of the Board of Managers of the District and speaking to the press about their grievances. Plaintiffs make no complaint regarding their access to the Board meetings.

Parkland is the primary hospital in Dallas County providing medical care to the indigent. ACORN believes that the quality of the medical care rendered at Parkland Hospital is good. ACORN, however, desires to mobilize the patrons of Parkland to improve defective health care conditions. ACORN, therefore, prepared two leaflets identifying these defective conditions as (1) the need for neighborhood clinics, which ACORN believed the Board of Managers of the District opposed; (2) improved waiting room conditions; (3) reduced waiting time at Parkland; (4) Spanish-speaking employees in the clinic; and (5) additional parking for patients and their families.⁷

II. The Prior Restraint

A. The No Solicitation Rule

In 1967 the Board of Managers of the Defendant District adopted the no solicitation rule which is challenged in this lawsuit. The rule states:

"For the protection of our employees and patients, solicitation of any kind on hospital premises is prohibited without prior written approval of the Hospital Administrator."

The purpose of the no solicitation rule is to shield patients, their families, and employees from potentially disruptive influences unrelated to the health care function of the hospital. Other hospitals have similar no solicitation rules.

The Board interprets the no solicitation rule to prohibit distribution of written material on hospital property both inside and outside the buildings. The rule, of course, does not ban solicitation on public property around the hospital, such as the city streets, sidewalks, and public parking lots.

The current Administrator testified that he does not refuse permission to distribute written material because he disagrees with its content. Since the adoption of the no solicitation rule no Administrator has ever approved the distribution of leaflets or pamphlets by an outside group.

The hospital staff believes that distribution of literature not related to health care would be disruptive and incompatible with the hospital's health care function.

B. ACORN Activity at Parkland Hospital

ACORN members twice went to Parkland Hospital in September, 1978. Both times the Administrator asked them to leave and they did leave peacefully. ACORN did not seek the prior approval of the Administrator on either occasion. The first time about forty-five ACORN members convened in the main lobby on the first floor to read a statement criticizing conditions at Parkland. This event was covered by two local television stations and the press. A crowd gathered in the lobby which obstructed the flow of traffic across the lobby to the clinics on the first floor. About ten days later six to eight ACORN members entered the first floor of the Outpatient Clinic and attempted to distribute their leaflets to people in the waiting room.

ACORN concedes leafleting in patient rooms or other areas of immediate patient care would be inappropriate but asserts the more public area of the hospital, e. g., waiting rooms, should be open for distribution of leaflets.

III. Public Hospital: Public Forum?

As a prior restraint on speech the hospital's no solicitation rule carries a heavy presumption against its validity. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). Prior restraints against leafleting are particularly suspect because of the importance of pamphleteering in the birth of liberty in this country. Lovell v. Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 82 L.Ed. 949 (1938). However, simply stating that prior restraints on speech are presumptively invalid does not establish the analytical framework for a first amendment case. Recent Supreme Court cases suggest a three step approach for analyzing freedom of speech cases. Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976); Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The court must first determine if the activity is the type of speech protected by the first amendment. If the activity is protected speech, the court must next decide whether the proposed forum is a public forum; that is, whether it is an appropriate forum for the speech. If the court concludes that the proposed forum is not a public forum, the analysis stops there. If the court concludes that the area is a public forum, it must then balance first amendment rights against the interests of the state in regulating the speech.

This analytical framework is overlaid with several well established principles of first amendment law. The previously mentioned presumption against prior restraints is one of these principles. Another tenet is that first amendment guarantees are not absolute; a person does not have a constitutional right to speak whenever and however and wherever he or she pleases. Adderly v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966); Greer v. Spock, 424 U.S. at 836, 96 S.Ct. 1211 (1976). The corollary...