Liberman v. Schesventer

• Decision Date: 31 March 1978
• Docket Number: No. 78-45-Civ-J-C.,78-45-Civ-J-C.
• Citation: 447 F. Supp. 1355
• Parties: David LIBERMAN and International Society for Krishna Consciousness of North Florida, Inc., a non-profit corporation organized under the laws of the State of Florida, Plaintiffs, v. George F. SCHESVENTER, Individually, and as Superintendent of the Castillo de San Marcos National Monument, Cecil D. Andrus, as Secretary of the Department of the Interior of the United States and Griffin Bell, as Attorney General of the United States, Defendants.
• Court: U.S. District Court — Middle District of Florida

447 F. Supp. 1355

David LIBERMAN and International Society for Krishna Consciousness of North Florida, Inc., a non-profit corporation organized under the laws of the State of Florida, Plaintiffs, v. George F. SCHESVENTER, Individually, and as Superintendent of the Castillo de San Marcos National Monument, Cecil D. Andrus, as Secretary of the Department of the Interior of the United States and Griffin Bell, as Attorney General of the United States, Defendants.

No. 78-45-Civ-J-C.

United States District Court, M. D. Florida, Jacksonville Division.

March 31, 1978.

Hugh A. Carithers, Jr., Jacksonville, Fla., for plaintiffs.

John L. Briggs, U.S. Atty., Robert S. Yerkes, Asst. U.S. Atty., Jacksonville, Fla., for defendants.

MEMORANDUM OPINION

CARR, District Judge.

I

The Plaintiffs bring this constitutionally based action for declaratory and injunctive relief under the authority of Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and 28 U.S.C. sections 2201-02. The Plaintiffs have challenged the constitutional validity of a federal regulation which governs the sale and distribution of printed matter in national park areas.¹ They assert that the regulation, promulgated by Defendant Andrus in his capacity as Secretary of the Department of the Interior, violates their rights under the first and fifth amendments to the constitution.

The Plaintiffs' Motion for a Temporary Restraining Order was denied by this court. It was then ordered that the trial on the merits be advanced and consolidated with the hearing on Plaintiffs' Motion for Preliminary Injunction, as permitted by Rule 65(a)(2), Federal Rules of Civil Procedure. Based upon the Plaintiffs' verified complaint, stipulations entered into by the parties, and evidence adduced at the trial, this court makes the following findings and conclusions.

The Plaintiff, International Society for Krishna Consciousness (ISKCON), is a nonprofit religious corporation which is organized under the laws of the State of Florida, and which maintains temples and schools throughout the world. Plaintiff, David Liberman, is a Hare Krishna Priest, and is known by the spiritual name of Armarendra Das. Liberman is also President of ISKCON of North Florida, Inc.

The Hare Krishna religion and its scriptures call upon its followers to perform a ritual known as Sankirtan. The ritual consists of approaching as many people as possible in public places, seeking donations, and disseminating literature. Sankirtan is dedicated to spreading the Krishna belief and philosophy, while attracting new members and obtaining financial support for the society's religious activities. The present action stems from the desire of the Plaintiff Liberman and his followers to practice Sankirtan on the grounds of the Castillo de San Marcos National Monument in St. Augustine, Florida.² The Castillo is owned and operated by the Department of Interior through the National Park Service. Defendant Schesventer is the superintendent of the Castillo, and is charged with implementing the regulation which is challenged.

The conflict which culminates in this action is not one which has arisen suddenly and can be sharply circumscribed for purposes of analysis. Hare Krishna devotees first began to practice Sankirtan at the Castillo in 1975. According to Plaintiff Liberman they were at that time asked to leave and threatened with arrest if they remained. They persisted, however, and within a few months were allowed to carry on their activities unhindered.³ In 1976, however, two Krishna devotees were arrested at the Castillo in connection with their activities there. The charges were subsequently dropped when the parties entered into an informal agreement which allowed the Krishnas to perform their activities in certain areas of the Monument grounds. Restricted areas contained in the agreement were approximately the same areas which have been designated as unavailable for sale and distribution activity by the superintendent pursuant to the challenged regulation.

After operating under the agreement for a time the Plaintiffs contended that the restrictions made it impossible for them to reach a certain percentage of the visitors to the Monument.⁴ As a result they then abrogated the agreement. Several arrests followed. The regulation at issue was promulgated soon thereafter, and became effective on July 15, 1977.

The regulation states that the sale and distribution of printed matter will be allowed in national park areas provided that a permit has been obtained from the superintendent. There are five grounds upon which the superintendent must deny a permit, otherwise he "shall without unreasonable delay, issue a permit."⁵ One of the stated grounds for denial arises when the applicant has applied for an area of the park which has been designated as unavailable for the sale or distribution of printed matter.⁶ The process of designation of areas as being available or not available is governed by subsection (d) of the regulation. This subsection states that areas may be designated as not available only if they are such that the permitted activity would, "(1) cause injury or damage to park resources; or (2) unreasonably impair the atmosphere of peace and tranquility maintained in wilderness, natural, historic or commemorative areas; or (3) unreasonably interfere with interpretive, living history, visitors services, or other program activities or with the administrative functions of the national park service; or (4) substantially impair the operation of public use facilities or services of national park service concessioners or contractors."⁷

A permit was issued to the Plaintiffs on January 17, 1978 after their application was made in conformance with the challenged regulation. This permit included the area designations made by the superintendent pursuant to subsection (d) of the regulation.⁸ On January 27, 1978, Plaintiff Liberman went to the office of the defendant Schesventer and requested that the Plaintiffs be allowed to carry on their activities in areas which had previously been designated as unavailable. He was told that the request would be considered, and that he would be notified the following week as to the decision. This action was filed on January 27, 1978. On January 31, 1978, the Plaintiffs received a letter from acting superintendent, Robert C. Amdor, stating that after conferring with the regional office of the National Park Service it had been determined that the areas made available for the activities covered by the permit could not be expanded, and that the Plaintiffs request would be denied. The Plaintiffs have voluntarily ceased all activity at the fort pending the disposition of this action.

II

The Plaintiffs have alleged that the regulation is unconstitutional on its face, and as applied, in that it grants unbridled authority to Defendant to grant or deny a permit to perform an activity protected by the first amendment. They assert that the denial of their request to perform Sankirtan in areas which had been designated as unavailable for sale and distribution of printed matter was arbitrary and capricious. The Plaintiffs also contend that the regulation lacks procedural protections required by the fifth and first amendments, thus constituting a denial of due process. Defendants, on the other hand, argue that the challenged regulation is a reasonable restriction as to the time, place and manner of first amendment activity. They further contend that no special procedures are constitutionally mandated.

As an aid to analysis, several questions may be posed. First, is the Plaintiffs' activity protected by the first amendment? Second, if so, to what extent may it be restricted, if at all? Third, is the challenged regulation within constitutional boundaries? Fourth, what procedural safeguards are required by the first amendment in this context?

The Defendants have stipulated to the fact that the practice of Sankirtan is protected by the first amendment. It has been clearly and consistently established that this type of religious activity comes within the ambit of first amendment protection. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1939); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943).⁹ It is thus incumbent upon the Court to determine whether, and to what the extent the activity may be regulated.

The freedom of an individual to hold religious beliefs and opinions is absolute. It may not be restricted in any way. Braunfeld v. Brown, 366 U.S. 599, 603, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961). However, the right to take action on behalf of one's beliefs, while embraced by the first amendment, is subject to reasonable regulation designed to safeguard the competing rights of others, applied in a non-discriminatory fashion.

The Supreme Court has taken the position that, "when `speech' and `nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the `non-speech' element can justify incidental limitations on first amendment freedoms." United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968). The task of the regulator in these instances lies in the proper balancing of first amendment rights against other legitimate interests in a manner which is both constitutional and an acceptable accommodation of all factors. In addition, the scheme of regulation must not present a risk of abuse through the grant of a broad censorship power.¹⁰

A general rule may be drawn from the decisions in which a governmental attempt at regulation has been weighed against the first amendment: Incidental restrictions upon the exercise of first amendment rights may be imposed in furtherance of a legitimate governmental interest if that interest is unrelated to the suppression of expression, and if the restrictions are no greater than necessary for the...