Intern. Soc. For Krishna Cons. of W. Pa., Inc. v. Griffin

• Decision Date: 23 September 1977
• Docket Number: Civ. A. No. 75-1350.
• Citation: 437 F. Supp. 666
• Parties: INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF WESTERN PENNSYLVANIA, INC., a non-profit religious organization, Individually and on behalf of the Members thereof, and Howard D. Fawley, Dennis Gorrick, Theresa Fawley, Robert Bauer, Susan Yodel, Joseph Campbell, Charles Link, Jonathan Kaufmann, Nancy Vilanelli, Mike McQue, Mary St. John, Barbara Wolf, Suzanne Bladeau, Charlotte Winczer, Mary Riggan, Linda Zacharias, and Marcia Rankin, Plaintiffs, v. Martin J. GRIFFIN, Individually and in his official capacity as Director of the Department of Aviation of the County of Allegheny, Robert Kroner, Individually and in his official capacity as Superintendent of the County Police, Leonard C. Staisey, Thomas J. Foerster and William R. Hunt, M. D., Individually and in their official capacities as Commissioners of the County of Allegheny, and County of Allegheny, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

437 F. Supp. 666

INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF WESTERN PENNSYLVANIA, INC., a non-profit religious organization, Individually and on behalf of the Members thereof, and Howard D. Fawley, Dennis Gorrick, Theresa Fawley, Robert Bauer, Susan Yodel, Joseph Campbell, Charles Link, Jonathan Kaufmann, Nancy Vilanelli, Mike McQue, Mary St. John, Barbara Wolf, Suzanne Bladeau, Charlotte Winczer, Mary Riggan, Linda Zacharias, and Marcia Rankin, Plaintiffs, v. Martin J. GRIFFIN, Individually and in his official capacity as Director of the Department of Aviation of the County of Allegheny, Robert Kroner, Individually and in his official capacity as Superintendent of the County Police, Leonard C. Staisey, Thomas J. Foerster and William R. Hunt, M. D., Individually and in their official capacities as Commissioners of the County of Allegheny, and County of Allegheny, Defendants.

Civ. A. No. 75-1350.

United States District Court, W. D. Pennsylvania.

September 23, 1977.

COPYRIGHT MATERIAL OMITTED

George L. Cass, Buchanan, Ingersoll, Rodewald, Kyle & Buerger, Pittsburgh, Pa., for plaintiffs.

Alexander J. Jaffurs, County Sol., James Victor Voss, Asst. County Sol., Pittsburgh, Pa., Allegheny County Law Department, for defendants.

MEMORANDUM OPINION AND ORDER

FACTS

TEITELBAUM, District Judge.

In October of 1975, the plaintiffs commenced a civil rights action against the then County Commissioners and the Airport Director, to obtain recognition of their right to distribute literature and solicit funds at the Greater Pittsburgh International Airport on behalf of their religion. An Order was entered on December 2, 1975, recognizing the plaintiffs' rights to conduct their activities on the premises of the airport, but imposing restrictions on the conduct of such activities in certain areas where an interference with the functions of the Airport might result.¹ Defendants have now adopted an ordinance regulating the Greater Pittsburgh International Airport and the County Airport. The Ordinance was adopted by the County of Allegheny upon the basis of and intended to be in accordance with Paragraph 3(f) of the December 2, 1975 Order of Court.

The Ordinance adopted by the County of Allegheny provides inter alia, that any person desiring to distribute literature or solicit funds for non-profit charitable or religious purposes must first obtain a written permit from the Director of Aviation, the permit to be issued upon the payment of a $10.00 per day fee, only two permits can be issued for any one day, solicitation of funds must be limited to a booth designated by the Director of Aviation in one of the permissible solicitation areas designated by the Director of Aviation in one of the permissible solicitation areas designated in the Ordinance, and solicitation of funds is absolutely prohibited for 48 days of the year surrounding certain holidays and during the rush hours on Sunday, Monday and Friday.²

On September 2, 1977, two members of plaintiffs' religion were issued citations by Allegheny County police officers for failure to obtain a permit in compliance with the new County Ordinance regarding solicitation at the Greater Pittsburgh International Airport. At the time of issuing the citations, the County officers indicated that subsequent violations would bring further citations possibly resulting in incarceration. Because of these threats of future citations, both members of plaintiffs' religion ceased distributing literature and soliciting funds. Plaintiffs then moved for an Order adjudging the defendants in contempt for having violated the terms of the December 2, 1975 Order of Court. Resolution of the contempt motion was stayed pending disposition of defendants previously filed motion to vacate the December 2, 1975 Order of Court. This decision, therefore, will be dispositive of both the motion to vacate and the motion for contempt.

DISCUSSION

"Background of International Society for Krishna Consciousness (ISKCON)."

Plaintiff International Society for Krishna Consciousness (hereinafter referred to as ISKCON) is a religious society which espouses the missionary views of Hinduism as expressed by the Hindu denomination, Krishna Consciousness. The society maintains temples and schools in cities throughout the United States and the world, including Dallas, Los Angeles, San Francisco, Montreal, Paris, Singapore, Tokyo and India. The Krishna religion imposes upon its followers the obligation to perform a religious ritual known as Sankirtan, which requires disseminating and selling of religious publications and soliciting contributions in public places. Sankirtan is directed to spreading ISKCON's religious beliefs, attracting new followers, and financially supporting their religious activities. Cf. ISKCON v. Englehardt, 425 F.Supp. 176, 178 (W.D.Mo.1977). In light of the foregoing religious roots of ISKCON, it must be concluded that their literature distribution and fund solicitations are motivated by their religion and constitute a form of First Amendment expression.

"Legal Context"

The principle that the First Amendment protects religious literature distribution and solicitation of funds to support one's religion was established by the United States Supreme Court in Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943). In Murdock, it was held that an ordinance imposing a flat license tax, not a mere nominal fee, for the privilege of canvassing or soliciting within a municipality is, when applied to Jehovah's Witnesses engaged in the dissemination of their religious beliefs through the sale of books and pamphlets by solicitation from house to house, an unconstitutional invasion of the rights of freedom of religion and of speech and press. Murdock emphasized that the Constitutional protection of the First Amendment is not confined to conventional religions, but also includes the spreading of religious beliefs through the distribution of religious literature and personal contact.

Some two and a half decades later the High Court reinforced the rationale of Murdock in enunciating the principle that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional. Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). In Shuttlesworth, it was held that a city ordinance making it an offense to participate in any parade or procession or other public demonstration without first obtaining a permit from the city commission and authorizing the members of the commission to refuse a permit if required to by "public welfare, peace, safety, health, decency, good order, morals or convenience," is unconstitutional, since it subjects the exercise of First Amendment freedoms to the prior restraint of a license without narrow, objective, and definite standards to guide the licensing authority.

Having delineated the scope of First Amendment protection as set forth in Murdock and Shuttlesworth, it is now necessary to examine those procedural safeguards which have been deemed essential in order to effectuate the Constitutional dictates of those decisions. In Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), it was held that a process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under the following standards designed to obviate the dangers of a censorship system: 1) the burden of proving that the film is unprotected expression must rest on the censor; 2) the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film; 3) any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution; and, 4) the procedure must assure a prompt final judicial decision. The Constitutional policy underlying Freedman is even more compelling when the subject matter of dissemination concerns religious practice rather than entertainment. ISKCON v. Eaves (N.D.Ga., May 3, 1976).

"Ordinance"

Bearing in mind the preceding fundamental Constitutional precepts arising under the First Amendment, we now turn to a review of the Constitutionality of the relevant provisions of defendants' new ordinance.

The provisions at issue are contained in Section 9(B) of the ordinance. (See Appendix B.) The initial provisions of 9(B)(1) and (B)(2) itemize inter alia the desired purposes and goals of the legislation. While the purpose stated is a salutary one, the substantive provisions are in many instances overly restrictive of First Amendment freedoms. Adoption for a salutary purpose will not save what is otherwise a Constitutionally deficient regulation of expression. Cf. ISKCON v. Rochford, 425 F.Supp. 734 (N.D.Ill.1977).

The first area of the ordinance which is Constitutionally suspect is the permit procedure of 9(B)(3) through 9(B)(5). Under these provisions no person or organization desiring to distribute literature or solicit funds for non-profit religious purposes may do so within the airport unless a permit is obtained from the Director of Aviation. The fee for such a permit is $10.00 per day and only two permits for any one day may be issued.

It is beyond dispute that a tax laid specifically on the exercise of one's First Amendment Constitutional rights is itself unconstitutional. Murdock v. Pennsylvania, supra. As stated in Murdock, "freedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way." Murdock, supra, 319 U.S. at 111, 63 S.Ct. at 874. The payment of $10.00 per day would guarantee that many people could not afford to exercise...