Eastern Connecticut Citizens Action Group v. Powers, 400

• Decision Date: 07 December 1983
• Docket Number: D,No. 400,400
• Citation: 723 F.2d 1050
• Parties: EASTERN CONNECTICUT CITIZENS ACTION GROUP, et al., Plaintiffs-Appellants, v. Arthur B. POWERS, et al., Defendants-Appellees. ocket 83-7544.
• Court: U.S. Court of Appeals — Second Circuit

Page 1050

723 F.2d 1050

EASTERN CONNECTICUT CITIZENS ACTION GROUP, et al Plaintiffs-Appellants, v. Arthur B. POWERS, et al., Defendants-Appellees.

No. 400, Docket 83-7544.

United States Court of Appeals Second Circuit.

Argued Nov. 16, 1983.

Decided Dec. 7, 1983.

Martin Margulies, Hartford, Conn. (Connecticut Civil Liberties Union Foundation; Martha Stone, Laurence P. Nadel, of counsel), for plaintiffs-appellants.

Robert Y. Pelgrift, Wethersfield, Conn., Asst. Atty. Gen., for defendants-appellees.

Before KAUFMAN and VAN GRAAFEILAND, ^* Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

The right to communicate freely with one's fellow citizens and with the government on issues of public importance is a cornerstone of our American polity. The broad precepts of the First Amendment protect those who seek "peaceably to assemble, and to petition the Government for a redress of grievances." Expression of views on political issues must, however, be accomplished without unduly disrupting the orderly functioning of government. Accommodating the right of public speech and the state's need to discharge its responsibilities to its citizenry efficiently can indeed be a delicate task.

In this case, we are presented not with a direct prohibition on public expression, but with the subtler problem of government regulation which burdens an organization's ability to publicize its views in what it determines to be the most effective manner. The State of Connecticut has permitted appellant, the Eastern Connecticut Citizens Action Group (ECCAG), to use a particular piece of state property as a forum for political expression. That use, however, is conditioned on terms laid down by the state which ECCAG contends impose a prohibitive financial burden on its First Amendment rights. The district court held the regulations to be reasonable. We find that the state has failed to justify the burdens imposed on ECCAG's proposed activities, and remand for the fashioning of less restrictive administrative requirements.

I

ECCAG, a non-profit organization headquartered in Willimantic, Connecticut, has as its goals the development of the economy and transportation systems of eastern Connecticut. The group's paramount concern in recent years has been halting the planned construction through the region of Interstate 84, and promoting, as an alternative, the revival of rail transportation. In pursuit of that aim, ECCAG developed a plan to conduct a "Railathon," or march, in 1980, along a thirteen-mile abandoned railway bed running between the towns of Willimantic and Manchester. ECCAG hoped the Railathon would express the group's opposition to the highway extension, and demonstrate the availability of a suitable corridor for a rail line. Because the rail bed passes under the interstate at one point, ECCAG felt that the selected route would graphically illustrate the choice between two competing modes of transportation.

The rail bed is owned by the state and managed by its Department of Transportation (DOT), which is required by statute to preserve it for future transportation purposes. Although the land is formally closed to the public, hikers, bicyclists, and others frequently use it for recreational purposes, and DOT makes no effort to deter trespassing. The rails and most of the ties have been removed, and the rail bed now resembles, according to appellants' uncontested testimony, a "country dirt road" which is "flat and walkable."

As planning for the Railathon proceeded, ECCAG's director, Geri Langlois, contacted DOT official Donald Leavitt to request permission to use the land. Leavitt initially informed Langlois that no such permission was needed, since hikers already walked on the property without interference from DOT. Subsequently, however, Langlois received a letter from Leavitt demanding a written request for use of the railway bed, and establishing four pre-conditions. ECCAG would have to agree to (1) pay an administrative fee of $100, (2) obtain adequate liability insurance coverage for the event, (3) execute a "save-harmless" clause protecting the state against legal actions relating to the march, and (4) covenant to clean up any debris, and to avoid trespassing on adjacent property. DOT later sent a "temporary right of entry" form to ECCAG, specifying the need to obtain a $750,000 insurance policy naming the state as co-insured.

ECCAG's 1980 budget totalled $12,000, all of which was allocated for rent, salaries and office expenses. Nevertheless, to avoid delay in the application process, the group paid the $100 fee and executed the temporary right of entry. Inquiries about insurance coverage were also made. Because ECCAG had no general liability coverage, the organization discovered it might not be able to obtain a "special events" policy of the type required. If it were, the quoted estimates for premiums ranged from $500 to $900. Because this expense was beyond its resources, ECCAG instituted a lawsuit against DOT to declare the requirements unlawful. Shortly afterwards, however, a separate but related organization calling itself the Connecticut Citizens Action Group was able to obtain a one-time rider on its insurance policy to cover the Railathon for an additional premium of $150. ECCAG paid this cost from moneys allocated for other purposes.

The first Railathon was conducted on June 14, 1980. Numerous precautions were taken, successfully, to insure that no injury to persons or damage to property would occur. The route was plotted on topographical maps, and surveyed in advance so that dangerous spots could be bypassed. Appellants informed the police departments in all adjoining towns about the march. Each participant was given a brochure describing the event, and a map and set of rules before the march commenced. Each walker was required to sign a waiver of all claims arising from the Railathon. Directional signs were posted along the route, checkpoints were established at periodic intervals with refreshments and first-aid equipment, and five cars with identification approved by the State police patrolled the route. In all, the Railathon was staffed by twenty-two persons associated with ECCAG, better than one for every three participants.

The march took place entirely without incident. There were no injuries to marchers, and no reports of damage to State or adjoining private property. In fact, ECCAG considered the Railathon so successful that it decided to repeat the event in 1982. Upon inquiry, the group learned that DOT's administrative fee had risen to $200, and that the cost of insurance would be approximately $780. In the meantime, the group's annual budget had dropped to $9,500, and it carried a deficit of $4,600. Obtaining insurance coverage on ECCAG's policy was no longer possible. Appellees, however, were unwilling to waive any of their access requirements. Faced with apparently insuperable obstacles to the second Railathon, ECCAG proceeded with this litigation.

A one-day trial was held before Judge Cabranes in June 1982. The judge concluded that the State "had a special interest in maintaining the railway bed free of casual public use." DOT, he found, had "reasonably regulated" ECCAG's access to the property in furtherance of this interest, and had not infringed the group's First Amendment rights. He also held against appellants on their equal protection claim, finding that they "were not treated differently than other applicants for use of the railway bed." Holding that no injury to appellants' rights had been incurred, the judge entered judgment for appellees.

II

ECCAG has abandoned its Equal Protection argument on appeal. It urges three claims relating to the infringement of its free speech rights. The group argues that the abandoned railway bed must be deemed a "public forum for purposes of expressive activity pertaining to rail transportation policy." Appellants also assert that the fee and insurance requirements represent facially unconstitutional prior restraints on public expression. Alternatively, they suggest that those requirements, even if facially valid, cannot lawfully be applied to parties who are demonstrably unable to comply and whose speech is therefore chilled by state action.

The genesis of public forum law lies in Justice Roberts' oft-quoted dicta in Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). Public streets and parks, he wrote for the Court, "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Id. at 515, 59 S.Ct. at 963. While the use of these public spaces "for communication of views on national questions may be regulated in the interest of all ... it must not, in the guise of regulation, be abridged or denied." Id. at 516, 59 S.Ct. at 964. Hague thus rests the availability of a given locale as a public forum for speech upon its historical role as an arena for public expression. ¹ See Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308, 315, 88 S.Ct. 1601, 1606, 20 L.Ed.2d 603 (1968); Stone, Fora Americana: Speech in Public Places, 1974 Sup.Ct.Rev. 233, 238-39, 251-52.

Since Hague, courts have broadened the public forum inquiry, recognizing that in many cases the use of a certain locale may be integral to the meaningful communication of a particular message. As we have noted,

The propriety of a place for use as a public forum [turns] on the relevance of the premises to the protest .... In some situations the place represents the object of protest, the seat of authority against which the protest is directed. In other situations, the place is where the relevant audience may be found.

Wolin v. Port of New York Authority, 392 F.2d 83, 90 (2d Cir.1968) (citations omitted). Applying these principles, courts have opened to specific forms of expressive activity public property that...