INTERN. SOC. FOR KRISHNA, ETC. v. St. Fair of Tex.

• Decision Date: 18 October 1978
• Docket Number: Civ. A. No. CA-3-78-1279-G.
• Citation: 461 F. Supp. 719
• Parties: INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS and Bill Glick on Behalf of all Members of the International Society for Krishna Consciousness v. STATE FAIR OF TEXAS, a Nonprofit Corporation, Wayne Gallagher, Executive Vice President and General Manager of the State Fair of Texas, George Schrader, City Manager of Dallas, Texas, Donald Byrd, Police Chief of Dallas, Texas, and Jack W. Robinson, Director of the Department of Parks and Recreation of the City of Dallas, Texas, and the City of Dallas.
• Court: U.S. District Court — Northern District of Texas

461 F. Supp. 719

INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS and Bill Glick on Behalf of all Members of the International Society for Krishna Consciousness v. STATE FAIR OF TEXAS, a Nonprofit Corporation, Wayne Gallagher, Executive Vice President and General Manager of the State Fair of Texas, George Schrader, City Manager of Dallas, Texas, Donald Byrd, Police Chief of Dallas, Texas, and Jack W. Robinson, Director of the Department of Parks and Recreation of the City of Dallas, Texas, and the City of Dallas.

Civ. A. No. CA-3-78-1279-G.

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

October 18, 1978.

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

Joe G. Werner, Asst. City Atty., Dallas, Tex., for defendant City of Dallas.

Russell B. Smith, Dallas, Tex., for defendants State Fair of Texas and Wayne Gallagher.

MEMORANDUM ORDER

PATRICK E. HIGGINBOTHAM, District Judge.

The State Fair has a day for school children, teachers, farmers, and others. It is, I suppose, in keeping with the times that October 17th is Federal Judges Day.

The International Society for Krishna Consciousness (ISKCON) asks this court to stop City of Dallas police officers, the State Fair of Texas, a nonprofit corporation, and others from interfering with their soliciting of funds and proselytizing of converts at the State Fair.

This court has described both ISKCON makeup and activity in other cases and will not burden this order with its repetitions.¹

The ISKCON members are engaging in essentially the same activities at the State Fair as they were at the Civic Center.

Upwards of three million people attend the fair held annually on a tract of approximately 250 acres located near downtown Dallas. That the State Fair is a public forum is not disputed. And as this court noted in its "Civic Center" opinion:

ISKCON's activity in a public forum would indisputedly be protected by the First Amendment. Memorandum Opinion, May 5, 1978.

The rub comes from the assertion by State Fair officials that the solicitations are being made in an illegal manner. ISKCON devotees allegedly refuse to make change, take advantage of children and retarded persons, and misrepresent their purpose to persons solicited. Numerous complaints have been received. Responding to these complaints, State Fair officials on Saturday, October 14, 1978, requested the Dallas police to escort from the fair grounds persons soliciting away from their designated booths or locations. This was the first time that the State Fair had taken this position although all exhibitors are to execute a standard form lease that provides in paragraph 14:

14. Lessee-Exhibitor's personnel shall restrict their solicitations and demonstration efforts at all times to the area within the contract space.

The exhibitors include some eight religious groups as well as the county Republican and Democratic Parties, all operating under the State Fair's form lease that forbids solicitation away from a lessee's booth. The State Fair stands ready to make a booth in a prominent place available to ISKCON under the same rules as all "exhibitors."

ISKCON devotees argue, however, that they cannot effectively carry out their mission if confined to a booth; they argue that a booth would not allow them to seek out a person and engage him in discussion (and solicit him). The reply is that the confinement to booth requirement is not aimed at ISKCON's protected activity but is uniformly applied to achieve a government goal of orderly administration.

In order to determine whether the challenged restriction is valid, this court must answer the following questions:

1. May the state exert any control over activities at the Fair, that is, may any restrictions be placed on solicitors?

2. If so, do the same restrictions apply to ISKCON as to all other solicitors?

A fair is almost by definition a congeries of hawkers, vendors of wares and services, and purveyors of ideas, commercial, esthetic, and intellectual. The crowds are not captive but move freely to those places and booths they choose. True, the Fair's passageways and grounds are a public forum; yet this does not mean that the Fair functions without restrictions. Even religious practices and speeches occurring in a public forum are subject to a test of time, place, and manner balancing. That is, recognition that the fair grounds are a public forum does not mean that the activities of ISKCON and all other solicitors cannot be subjected to reasonable time, place, and manner restrictions. Those restrictions, however, must be nondiscriminatorily administered and may not be premised on censorship of the message which protected speech or conduct conveys. This is true whether the rights have their genesis in the belief or speech values of the First Amendment. Consider the following language of the Supreme Court first as to speech and second as to belief:

Schneider v. State, 308 U.S. 147, 160-161, 60 S.Ct. 146, 150, 84 L.Ed. 155:

"Municipal authorities, as trustees for the public, have the duty to keep their communities' streets open and available for movement of people and property, the primary purpose to which the streets are dedicated. So long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of literature, it may lawfully regulate the conduct of those using the streets. For example, a person could not exercise this liberty by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to the stoppage of all traffic; a group of distributors could not insist upon a constitutional right to form a cordon across the street and to allow no pedestrian to pass who did not accept a tendered leaflet; nor does the guarantee of freedom of speech or of the press deprive a municipality of power to enact regulations against throwing literature broadcast in the streets. Prohibition of such conduct would not abridge the constitutional liberty since such activity bears no necessary relationship to the freedom to speak, write, print or distribute information or opinion."

Cantwell v. Connecticut, 310 U.S. 296, 306-307, 60 S.Ct. 900, 84 L.Ed. 1213:

. . . . .

"Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection. One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions." Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049.

There would be no fair without some control of the place of the vendors' locations. With thousands of vendors and hundreds of thousands of potential purchasers, control is central. ISKCON suggested in argument that its rights are different from the other vendors and that voiding the requirement that all solicitors remain in booths as to its devotees would not free other State Fair's lessees. The argument is premised on the continued vitality of the doctrine that commercial speech has little if any First Amendment protection. That idea found substantial support in several decisions of the Supreme Court. See, e. g., Valentine v. Chrestensen, 316 U.S. 52, 54-55, 62 S.Ct. 920, 86 L.Ed. 1262 (1942); Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951). This exception for commercial speech has, however, fallen before recent Supreme Court decisions. See Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975); Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). In the latter case the Court observed:

Last Term, in Bigelow . . . the notion of unprotected "commercial speech" all but passed from the scene. . . . Id. at 759, 96 S.Ct. at 1824.

Yet the demise of the doctrine did not necessarily place commercial speech on a parity with other forms. The Court by a footnote dropped a caveat in Va. Pharmacy Bd. v. Va. Consumer Council:

In concluding that commercial speech enjoys First Amendment protection, we have not held that it is wholly undifferentiable from other forms. There are commonsense differences between speech that does "no more than propose a commercial transaction,"

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