New England Regional Council v. Massachusetts Port

• Decision Date: 15 September 2000
• Docket Number: No. Civ.A. 98-12538-DPW.,Civ.A. 98-12538-DPW.
• Citation: 115 F.Supp.2d 84
• Parties: NEW ENGLAND REGIONAL COUNCIL OF CARPENTERS, Plaintiff, v. MASSACHUSETTS PORT AUTHORITY, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

115 F.Supp.2d 84

NEW ENGLAND REGIONAL COUNCIL OF CARPENTERS, Plaintiff, v. MASSACHUSETTS PORT AUTHORITY, et al., Defendants.

No. Civ.A. 98-12538-DPW.

United States District Court, D. Massachusetts.

September 15, 2000.

Christopher N. Souris, Krakow & Souris, Boston, MA, for New England Regional Council of Carpenters, Plaintiff.

Robert J. Cordy, Jason Levy, Steven W. Kaste, McDermott, Will & Emery, Boston, MA, for Massachusetts Port Authority, Peter Blute and Joseph M. Lawless, Defendants.

MEMORANDUM AND ORDER

WOODLOCK, District Judge.

A labor union brings this § 1983 action against a port authority and its officers seeking declaratory and injunctive relief to end limitation of expressive activity on government property. The port authority flatly bans leafletting on restricted port authority property and prohibits leafletting on public sidewalks in front of port authority property without permission. The plaintiff contends the regulations violate its First Amendment speech rights. The port authority counters that the pattern of regulation has in the past involved reasonable time, place and manner controls necessary to preserve the function of the properties. In response to concerns regarding assurance that future regulation will not be subject to unbridled discretion, the port authority during the course of this litigation implemented written regulations. The parties have filed cross motions for summary judgment. I will grant the port authority's motion, finding that the port authority has committed no past constitutional violations and that the port authority has adopted a facially constitutional permit scheme for the future.

I. BACKGROUND

A. The Parties

Plaintiff New England Regional Council of Carpenters (NERCC) is a labor organization representing carpenters from local unions throughout New England that are affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL—CIO. Its principal place of business is in Boston, Massachusetts.

Defendant Massachusetts Port Authority (Massport) is a public instrumentality chartered by the Massachusetts Legislature. Its principal place of business is in Boston, Massachusetts. Also named as defendants are the Executive Director of Massport, sued solely in an official capacity, and the Director of Public Safety of Massport, who is also sued solely in his official capacity.

B. The Stage for the Dispute

Massport is the owner of extensive property along the harbor in Boston. The specific sites forming the stage for this dispute are the Fish Pier, which juts into the Boston Harbor at the intersection of Northern Avenue and D Street, and the Northern Avenue sidewalks and crosswalks directly in front of the World Trade Center (WTC), which sits atop Commonwealth Pier just west of and parallel to the Fish Pier.¹

1. The Boston Fish Pier

The Boston Fish Pier was built by the Commonwealth between 1910 and 1915 to provide a location for the Boston fishing fleet to bring its daily catch for auctioning, processing, and distribution. The property was leased to the Boston Fish Market Corporation (BFMC) by the Massachusetts Board of Harbor and Land Commissioners. With the decline of the fish industry over time, the BFMC relinquished its lease during the 1970s to Massport, a successor of the Commissioners. Massport refurbished the facilities and continues to operate it as a commercial fishing center for the unloading, processing, and auctioning of fish.

An iron fence running the width of the pier sets the pier off from the sidewalk. Passing through the gates on either side one encounters parking areas bisected by the roadway. Directly inside the gate is a brick guardhouse upon which a large sign states "Private Property: No Trespassing." The guardhouse is staffed with Massport Port Officers. The Port Officers are instructed to stop all vehicles entering the pier and inquire as to the nature of their business and the approximate length of time of their business on the pier. Furthermore, individuals parking on the pier must stop at the gate and show a pass or obtain a temporary permit.

The primary structures on the Fish Pier are two long three-story buildings, which run the length of the pier, and the Exchange Conference Center (ECC), formerly known as the Fish Exchange, which abuts the harbor along the terminus of the pier at the end of the roadway between the long buildings. The water or dock sides of the long structures are used by fishing vessels for offloading, refueling, and repair purposes. A loading platform facing inward runs the length of the two long structures on the roadway side. The first and second floors of the three-story long buildings are leased principally to various fish wholesalers for their processing operations and sales space. Substantial commercial truck traffic, for the delivery of seafood products off-site, flows in and out of the pier.

The third floors of each of the two long structures have been converted into office space for Massport. Additionally, space has been leased to private, non-fish related entities including a well known seafood establishment, the No-Name Restaurant; a sandwich shop; two law offices with an admiralty speciality; a business that compiles and sells sports statistics; and the New England Israeli Chamber of Commerce.

Located at the end of the pier is the ECC which was renovated in 1995 and converted into a conference, meeting, and event center. The ECC contains a number of conference rooms for rent to the general public, in addition to a few Massport offices. The ECC also houses exhibits on the Port of Boston.

Since its renovation, the ECC has been managed privately by World Trade Center Boston pursuant to a management agreement with Massport. The management company rents rooms for meetings and functions for a fee, and arranges for catering and valet parking services. The ECC can handle events involving up to 175 people. Two parking areas for the ECC, each with ten spaces for parking, are located on either side of the ECC. The ECC also has an additional 25 spots that it can use in the parking areas located just inside at the entrance to the pier. Overflow parking is available on various lots off the pier.

2. The World Trade Center

A short distance away from the Fish Pier on the adjacent Commonwealth Pier sits the WTC. The WTC is managed by a private commercial real estate manager pursuant to a long-term lease. In addition to being an office building, the WTC is the site of numerous conventions, trade shows, and other special events throughout the year. The main entrance to the WTC is along Northern Avenue. Buses carrying visitors to and from the WTC stop on Northern Avenue directly in front of the WTC's entrance.

C. Massport's Policy on Leafletting

Massport does not permit handbilling, picketing, or any other form of demonstrative activity on the Fish Pier proper. A Massport regulation states that port properties not open to the general public are restricted, and prohibits those without official business from entering without Massport's prior permission. 740 CMR 3.02(2). Other Massport regulations prohibit loitering and the posting, distribution, or display of "signs, advertisements, circulars, printed or written matter." 740 CMR 3.02(3) and (5). Accordingly, Massport has limited leafletting, picketing, and other demonstrations directed to activities on the Fish Pier to the sidewalk on Northern Avenue located at the entrance to the pier.

Massport's policy and practice with respect to sidewalks on Northern Avenue, including in front of the WTC, has been to require those who wish to picket, handbill, or otherwise demonstrate to first obtain a permit from Massport's Public Safety Office.² While there have been no written guidelines setting out this policy, Massport submitted in evidence a description of what permit applicants are required to supply. Massport requires permit applications to supply the name of the group or individual applicant, the name of a contact person and the location, dates, and times that the applicant wishes to conduct its activities. No information is requested concerning the content or purpose of the expressive activities. Massport asserts that it has approved all permit requests, placing restrictions only as appropriate to ensure public safety. The record does not indicate that any permits to leaflet on the sidewalks of Northern Avenue have ever been denied.

D. The Leafletting Episodes

1. Leafletting in Front of the World Trade Center

During the week of November 17, 1998, a construction industry trade show called "Build Boston" was held at the WTC. Build Boston is an annual event consisting of meetings, presentations, and displays that attracts large numbers of professionals, contractors, vendors, and others involved in the construction industry. NERCC learned that John Tocci, president of Tocci Building Corporation which is a construction industry contractor, was scheduled to address a gathering at Build Boston on November 17, 1998. NERCC wanted to publicize its grievances with Tocci, namely that Tocci Building Corporation pays its carpenters substandard wages and benefits, at the Build Boston event because of the high concentration of individuals involved in a variety of aspects with the construction industry. Tocci is a member of the Massport Advisory Board.

On November 17, 1998, without obtaining a permit, approximately thirteen NERCC members attempted to distribute leaflets at various locations around the WTC. Shortly after the union members began leafletting they were told by a security officer that they would have to leave or they would be arrested. Massport's Director of Public Safety told the state police to instruct the leafletters to stop their activities and obtain a permit. The leafletters stopped distributing leaflets and moved to an area across Northern Avenue from the WTC while the union attempted to obtain a permit from Massport.

Counsel for the union...