Farmer v. Moses

• Citation: 232 F. Supp. 154
• Parties: James FARMER, Eugene T. Reed, Rev. Gardner Taylor and Rev. Robert J. Stone on behalf of themselves and all other persons similarly situated, Plaintiffs, v. Robert MOSES, President of New York World's Fair 1964-1965 Corporation, and New York World's Fair 1964-1965 Corporation, a New York Corporation, Defendants.
• Decision Date: 30 June 1964
• Court: U.S. District Court — Southern District of New York

232 F. Supp. 154

James FARMER, Eugene T. Reed, Rev. Gardner Taylor and Rev. Robert J. Stone on behalf of themselves and all other persons similarly situated, Plaintiffs, v. Robert MOSES, President of New York World's Fair 1964-1965 Corporation, and New York World's Fair 1964-1965 Corporation, a New York Corporation, Defendants.

United States District Court S. D. New York.

June 30, 1964.

Howard M. Squadron, Carl Rachlin, Jack Greenberg, Constance Baker Motley, Michael Meltsner, and Lois Waldman, New York City, for plaintiffs.

Whitman, Ransom & Coulson, New York City, for defendants, Charles F. Preusse, John V. Thornton, Bernard L. Sanoff, and Pincus M. Berkson, New York City, of counsel.

TYLER, District Judge.

Plaintiffs have sued to enjoin the New York World's Fair 1964-1965 Corporation (hereinafter "the Fair Corporation") from preventing them from picketing and disseminating handbills in a peaceful and orderly manner inside the Fair grounds before certain specified pavilions or exhibits. More particularly, the present application seeks a temporary mandatory injunction to compel the Fair Corporation to grant plaintiffs the right to picket and pass out handbills. Jurisdiction is stated to rest upon the provisions of 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983.

Plaintiffs assert that on May 20, 1964 a lawyer of the NAACP Legal Defense and Educational Fund, Inc. acting on their behalf sent a telegram to Mr. Robert Moses, President of the Fair, requesting permission, upon payment of regular admission prices, to picket peacefully in "public areas in front of or near the Florida and Louisiana Pavilions", and further requested "permission for a reasonable number of persons to distribute handbills relative to racial discrimination on May 28, 1964 at the fair" in the areas aforementioned. The telegram also asked the favor of a prompt reply. It is conceded that the Fair Corporation never replied to this telegram request.

Plaintiffs therefore contend that their suit is one in equity specifically authorized by statute to restrain a claimed deprivation, under color of state law, of their rights, privileges and immunities secured by the First and Fourteenth Amendments to the Constitution. Essentially, they claim that, under the facts and circumstances here involved, the Fair Corporation is prohibiting them and others similarly situated from picketing peacefully and passing out handbills before designated pavilions within the Fair grounds and that this prohibition amounts to action of a state instrumentality acting under color of state law. More particularly, plaintiffs argue that they have a constitutional right to do these acts within the enclosed confines of the Fair grounds, particularly inasmuch as there has been sufficient state involvement in and impact upon the World's Fair organization, operation and site so as to establish the roads and walk-ways within the Fair grounds as public thoroughfares.

It is argued for the Fair Corporation that there is no such state action or control as to permit this court to take jurisdiction and that, secondly, and in any event, there has been no denial of a substantial constitutional right of the plaintiffs. Moreover, it is urged that picketing, even if reasonably peaceful, within the crowded confines of the Fair grounds would be inherently dangerous; that paying patrons have a right to be protected against picketing of any kind under circumstances where they are paying for amusement, education and culture; and that to permit these plaintiffs to picket would, of necessity, open the Fair gates to many and diverse groups desiring to picket, all of which would create such formidable obstacles to operation and enjoyment of the Fair as to be legally and factually impracticable.

The first question to be answered is whether there is sufficient "state action" or control as to confer upon this court jurisdiction of this controversy. As plaintiffs and defendants are well aware, neither the aforementioned statutes nor the Fourteenth Amendment are aimed at essentially private conduct.

There appears to be no substantial dispute about the following facts:

By Chapter 429 of the Laws of New York of 1960, a New York State Commission on the World's Fair was established to prepare for the State's active participation in the 1964-1965 Fair. In 1962, the legislature further provided that this Commission be empowered to perform such acts as would be necessary and appropriate to insure that "the maximum number of visitors will be attracted to the state's exhibits and the entire state during the fair period". (L.1962, Ch. 818).

Previously, on August 18, 1959, the Fair Corporation had been organized and chartered as a membership corporation under the laws of the State of New York. Its charter states, among other things, that the 1964-1965 World's Fair is to be held and operated for "exclusively educational purposes".

On May 27, 1960, the City of New York entered into a lease agreement with the Fair Corporation. By its terms, the City leased to the Fair Corporation real property which actually is part of Flushing Meadow Park, a City facility. Thereafter, on June 10, 1960, the agreement of lease was approved by the Board of Estimate of the City of New York. Under the terms of its lease agreement with the City, the Fair Corporation does not pay any specified rental. It is obliged to pay over to the City, however, all net revenues remaining to its credit after the close of the Fair. At this time, it is estimated that all of such net revenue will probably amount to around fifty million dollars. Moreover, the Fair Corporation is obliged under the terms of its lease to turn over to the City, at the end of the Fair in 1965, all buildings, structures, pavements and other facilities useful for park purposes as certified by the Commissioner of Parks of the City of New York.

The Fair Corporation has raised its capital and operating funds through the sale of promissory notes and by means of bank loans; in addition, it has raised monies through rental of space to exhibitors, concessionaires and others. It also has raised funds through advanced ticket sales. These monies have been used for the construction of the Fair grounds and for current operations. The City of New York has expended twenty-four million dollars in the area; this money was appropriated by the City in accordance with usual capital budget procedures to pay for permanent improvements in Flushing Meadow Park, which, of course, is the site of the Fair.

Approximately seven hundred million dollars have been invested in the Fair, including all building and exhibit costs and operating expenses. The governments of the United States, the State of New York, the City of New York and a number of other states have participated in this investment for construction and operation of their own exhibits and, in the case of the City of New York, for the permanent park improvements referred to hereinabove. None of these governmental funds have been appropriated, however, for use by the Fair Corporation.

The United States, the State of New York and the City of New York have granted to the Fair Corporation tax exemptions respecting property, receipts, sales, fees and other income.

The arterial highways in the vicinity of the Fair site were concededly constructed on an accelerated basis in view of the fact that the Fair was being held this year and next. Obviously, both the State of New York and the federal government have expended funds and otherwise participated in the development and construction of these highways. No funds from governmental sources for these highways have been contributed to or paid over to the Fair Corporation, and it appears beyond controversy that the highways were constructed in accordance with the usual federal and state statutory authorizations.

The Fair Corporation has entered into contractual arrangements with the Pinkerton Agency whereby the latter agency supplies a force of approximately 1,000 men to handle policing and security arrangements in and at the Fair grounds. Section 1 of Chapter 892 of the Laws of the State of New York of 1963 provides that members of the private police force at the Fair site are to be deemed "peace officers" within the meaning of that term as used in state statutes.

Section 3 of Chapter 892 of the New York Laws of 1963, as amended by Chapter 580 of the Laws of 1964, purports to define the status of certain streets, roads, sidewalks and walkways within the Fair site under the jurisdiction of the Fair Corporation. It reads as follows:

"A violation of any provision of law relating to safety, regulation of traffic or the preservation of order occurring at or on the streets, roads, highways, sidewalks, walkways, parking fields, parking areas, parking facilities or bus terminals of the property under the jurisdiction of New York World's Fair 1964-1965 Corporation shall be deemed to have occurred on a public street, road, highway, sidewalk, walkway, parking field, parking area, parking facility or bus terminal and not on private property, and such parking fields, parking areas, parking facilities and bus terminals shall be deemed streets, roads or highways. This act shall not, however, affect the private property status of such streets, roads, highways, sidewalks, walkways, parking fields, parking areas, parking facilities or bus terminals for the purposes of subdivision fourteen of section sixty-one of the public service law, or for the purposes of any law, act or ordinance relating to taxation or licensing or for regulatory or any other purposes; nor shall this act or any other law, act or ordinance be deemed to require the registration of such vehicles as may be authorized by the New York World's Fair 1964-1965 Corporation for use, operation or display within the property under the jurisdiction of said corporation which vehicles are used, operated or displayed solely thereat, or to require the licensing

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