Kuszynski v. City of Oakland

• Decision Date: 11 February 1971
• Docket Number: No. C-70 2672.,C-70 2672.
• Citation: 322 F. Supp. 689
• Parties: Anne KUSZYNSKI et al., Plaintiffs, v. CITY OF OAKLAND et al., Defendants.
• Court: U.S. District Court — Northern District of California

322 F. Supp. 689

Anne KUSZYNSKI et al., Plaintiffs, v. CITY OF OAKLAND et al., Defendants.

No. C-70 2672.

United States District Court, N. D. California.

February 11, 1971.

Serra & Perelson, Ronald Yank, San Francisco, Cal., John Murcko, Oakland, Cal., for plaintiffs.

J. Kerwin Rooney, Wilson F. Wendt, Oakland, Cal., for defendants.

MEMORANDUM DECISION

SCHNACKE, District Judge.

Plaintiffs by their original complaint as supplemented seek to enjoin the enforcement of, and to have declared unconstitutional, an ordinance of the Board of Port Commissioners of the City of Oakland regulating the distribution of circulars and other material at the municipal airport. The ordinance imposes certain requirements for the distribution of commercial material. As to noncommercial material, it requires that prior to distribution the airport manager shall be notified one day in advance, be given a copy of any literature to be distributed or posted, be advised of the name and address of the person or organization sponsoring, conducting or promoting the activity. It is further required that the applicant state the purpose or subject of the prospective distribution, describe the proposed activity intended to be carried on, the time during which the distribution is intended and the number of persons planning to participate. The ordinance also prohibits hindering the free flow of persons, vehicles or aircraft in the airport, or preventing the orderly and efficient use of the airport property for its primary purpose; limits the number of persons who may engage in distribution activity in various areas of the airport facility; limits the time within which the activity can be carried on by any particular group to no more than four hours in any 24-hour period; prohibits intrusion into non-public areas of the airport; prohibits any person from assailing, coercing or threatening any member of the public; limits the size of tables to be used for the dispensing of literature and prohibits the use of sound or voice amplifying apparatus.

This ordinance supplemented a prior ordinance which defendants concede was too restrictive. Under the prior ordinance plaintiffs had been prohibited from distributing certain literature which is attached to their complaint. Among the literature intended to be distributed and distribution of which was prevented was a newspaper, highly critical of the United States and its military establishment, a handbill purporting to advise members of military under orders to Vietnam that they might avoid their orders, and a handbill crudely drawn representing a white woman displaying her private parts in a highly lascivious manner before a nude Negro male.

Neither the complaint, as supplemented, nor any of the affidavits filed in support of the request for preliminary injunction allege any experience under the amended ordinance, nor any restriction upon the distribution of literature that has occurred since the amendment has gone into effect.

Defendants urge that the amended ordinance is in a form substantially paralleling regulations of the Port of New York Authority which were drafted, apparently under the supervision of the United States District Court for the Southern District of New York, pursuant to guidelines approved in Wolin v. Port of New York Authority, 392 F.2d 83 (2nd Cir. 1968), certiorari denied, 393 U.S. 940, 89 S.Ct. 290, 21 L.Ed.2d 275. There is a substantial parallel between the two regulations. Plaintiffs contend the new ordinance is invalid on its face because it gives preference to commercial literature, prevents the anonymous distribution of literature, limits the number of distributors on the sidewalk in front of the airport, and prevents distribution in certain public areas that are reserved for a particular use such as baggage areas, parking areas, washrooms, ticket-sale counters, restaurants and any areas devoted to business enterprise. Plaintiffs further contend that the ordinance imposes an impermissible prior restraint upon the exercise of their First Amendment rights and an impermissible delegation to the airport manager of the right to determine what literature should be distributed. They urge that the airport manager cannot be permitted to deny the distribution of any literature, but rather must first permit the distribution and then seek a court determination whether any of it should be ordered withdrawn. They criticize the ordinance further for its vagueness and generally for having a chilling...