INTERN. SOC. FOR KRISHNA CONSCIOUSNESS v. Schrader

• Citation: 461 F. Supp. 714
• Decision Date: 05 May 1978
• Docket Number: Civ. A. No. CA-3-77-1329-G.
• Parties: INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS and Gregory Ferguson on Behalf of all Members of the International Society for Krishna Consciousness v. George SCHRADER, City Manager of Dallas, Texas, Donald Byrd, Police Chief of Dallas, Texas, and Jerry Barshop, Director of Dallas Convention Center.
• Court: U.S. District Court — Northern District of Texas

461 F. Supp. 714

INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS and Gregory Ferguson on Behalf of all Members of the International Society for Krishna Consciousness v. George SCHRADER, City Manager of Dallas, Texas, Donald Byrd, Police Chief of Dallas, Texas, and Jerry Barshop, Director of Dallas Convention Center.

Civ. A. No. CA-3-77-1329-G.

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

May 5, 1978.

John F. Jordan and Howard C. Rubin of Jordan, Rubin & Pace, Dallas, Tex., for plaintiffs.

Joe G. Werner, Asst. City Atty., Dallas, Tex., for defendants.

MEMORANDUM OPINION

PATRICK E. HIGGINBOTHAM, District Judge.

On October 17, 1977, this court denied the International Society for Krishna Consciousness (ISKCON)'s application for temporary injunction. The City of Dallas (City) by enforcement of an ordinance sought to bar ISKCON from entering the environs of its Convention Center to solicit funds and proselytize surgeons attending a medical meeting. The doctors had leased the convention auditorium from the City, its owner. ISKCON asked the court to enjoin the ordinance. As then stated:

"The quarrel is precipitated by the desire of Iskcon members to proselytize people in attendance at events conducted at the convention center and the desire of the City to prevent activity that might annoy its tenants and reduce the attractiveness of the convention center to prospective tenants. Iskcon asserts that the City Ordinance is constitutionally anemic in that it stifles First Amendment expression, is impermissibly vague, grants standardless discretion to officials to determine the propriety of views to be disseminated and impermissibly delegates to lessees of the City the right to censor use of public facilities." Order Denying Application for Temporary Injunction.

The court did not reach the constitutional question because it found the ordinance otherwise unenforceable against ISKCON. The City fell back to its "rights" as a landowner and invoked state trespass laws. Because the City continues to offer the Center for rent, the question of the legality of ISKCON's exclusion from certain areas of the Convention Center remains.

ISKCON urges that the First Amendment bans the City's efforts to exclude their activity. The City responds that it is acting only as a landowner leasing its facility to all with financial means, denies that it lets the auditorium in a discriminatory manner, and lastly denies it influences a lessee's admission practices. The material facts are not in dispute.

The Facility

The parties stipulated that the Dallas Convention Center is owned by the City of Dallas, but leased for compensation.¹ The Convention Center is a large building containing an arena, theater, ballroom, meeting rooms, and several meeting halls, all connected with wide interior corridors. Each are available for rent under a standard form lease (Defendants' Exhibit 39) that provides ". . . Lessee shall have reasonable rights of ingress and egress through the halls, passageways, lobbies and corridors, subject to the terms and conditions of this agreement, including but not limited to Section 12 herein." Section 12 provides "No portion of the sidewalks, ramps, entries, corridors, passageways, vestibules, halls, lobbies, stairways, aisles, driveways, or access to public utilities of said Dallas Convention Center shall be obstructed by Lessee or used for any other purpose other than for ingress or egress from the demised premises without the written consent of the Director of the Dallas Convention Center. The doors, skylights, stairways or openings that reflect or admit light into any place in the building, including hallways, fire hose cabinets, corridors and passageways, radiators and house lighting appurtenances shall not be covered or obstructed by Lessee without written approval of the Director." The general public does not use the interior corridors, passageways, sidewalks, or other places to gather. They are in fact of little practical value except as means of ingress and egress to parts of the Center. Admission to all events is controlled by the Center's lessees on conditions determined by each lessee. Part of the Center's construction cost came from revenue bonds issued pursuant to City ordinance. Evidence at trial revealed that the Center has occasionally received additional money from general funds of the City.

Public Forum

ISKCON's activity² in a public forum would indisputedly be protected by the First Amendment. Equally basic is the principle that not all city owned property is a public forum. ISKCON contends that the Civic Center is a public forum, relying upon Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Southeastern Promotions, Ltd. v. City of West Palm Beach, 457 F.2d 1016, 1079 (5th Cir. 1972); Wolin v. Port of New York Authority, 392 F.2d 83 (2nd Cir. 1968). ISKCON seems to argue that the auditorium is a public forum solely because it is financed by general revenue bonds of the City or otherwise occasionally draws for its operation upon the local public fisc; alternatively, that the Center is a public forum by virtue of the use to which it has been put.

Stating what is not presented may assist in the framing of what is. There is no contention (because apparently the City has not) that the City in any way censors either in its rental practices or in its practice of allowing use of interior passageways only as means of ingress and egress. Instead the question is whether the City, either by its control over all interior corridors or by enforcement of any "right" of its tenant to censor and exclude, is violating the First Amendment. No one would seriously urge that a city can legally engage in "content-based discrimination" in renting its municipal auditorium.³ The Southeastern Promotions cases, supra, relied upon by ISKCON so held but are not here factually apposite because the City of Dallas has not censored in its rental activity nor discriminated in its uniform ban on usage of interior ways for other than ingress or egress. That the facility is municipally owned and supported by tax money alone will not fix its status as a public forum. This argument would swallow too much if a municipality can own any nonpublic forum property, and obviously a city can. As the Supreme Court stated in Adderley v. Florida:

"The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. For this reason there is no merit to the petitioners' argument that they had a constitutional right to stay on the property . . the United States Constitution does not forbid a State to control the use of its own property for its own lawful nondiscriminatory purpose." 385 U.S. 39, 47-48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966).

Instead, as ISKCON recognizes by the emphasis of its briefs, the use made of the facility is important in answering the question of public forum status.

It is more than appropriateness. That facilities are appropriate for public expression is insufficient to make them a public forum. Adderley v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), cf. Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). And more than frequent public usage of property is required. Lloyd Corp. v. Tanner, supra. As the Supreme Court stated in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968):

"The public is invited to the premises but only in order to do business with those who maintain establishments there . ." 391 U.S. at 338, 88 S.Ct. at 1619.

In Wolin the general public had free access to the Port Authority Concourse, shops, waiting rooms, and services. In Wolin there was both state ownership and an invitation to the public; and real property notions of dedication to the public ran through it all. The result was that a public place became a public forum. The cases suggest two ingredients — first, operation by the state, and second, a place usually associated with places of public expression such as streets, parks, or airports. The parties seek a declaration that the Convention Center, or as a lesser unit, its interior passageways, is or is not a public forum. The difficulty is that censorship by a tenant enforced by the City is not wholly private ordering. As the amount of state involvement increases, so correspondingly does the required justification for any censorship. Although city participation is not great, it is not absent. Moreover, the second element is a changing one. With state ownership there is a lessened tension between First Amendment and private property values. It follows that Wolin is distinguishable from Tanner in part by who owned the property. Here, although the City owns the property, there is a tension between the private property interests of the tenant and the First Amendment. Accordingly, the standards of Tanner for determining whether a public forum exists ought to be applied.

The City...