Paulsen v. Lehman

• Decision Date: 29 August 1990
• Docket Number: No. CV 90-2942 (ADS).,CV 90-2942 (ADS).
• Citation: 745 F. Supp. 858
• Parties: Mitch PAULSEN, Plaintiff, v. Orin LEHMAN, in his official capacity as Commissioner of the New York State Office of Parks, Recreation and Historic Preservation, and the New York State Office of Parks, Recreation and Historic Preservation, Defendants.
• Court: U.S. District Court — Eastern District of New York

745 F. Supp. 858

Mitch PAULSEN, Plaintiff, v. Orin LEHMAN, in his official capacity as Commissioner of the New York State Office of Parks, Recreation and Historic Preservation, and the New York State Office of Parks, Recreation and Historic Preservation, Defendants.

No. CV 90-2942 (ADS).

United States District Court, E.D. New York.

August 29, 1990.

Clifton Budd & DeMaria, New York City by Brian J. Clark and Kevin J. McGill, for plaintiff.

Robert Abrams, Atty. Gen. of State of N.Y., New York City by Ira Halfond, for defendants.

MEMORANDUM AND ORDER

SPATT, District Judge.

At issue in the plaintiff's application for a preliminary injunction is whether the defendants' denial of the plaintiff's request to distribute noncommercial religious pamphlets in a limited area of Jones Beach State Park comports with the First Amendment to the United States Constitution. The Court concludes that the defendants' action in denying a limited permit to the plaintiff is constitutionally impermissible. Accordingly, plaintiff's application for a preliminary injunction is granted to the extent set forth below.

I. BACKGROUND

Plaintiff is the director of "Mitch Paulsen Outreaches," a "spiritual outreach program" which lists a Post Office Box in Baldwin, New York as its address. By Application dated August 2, 1990 plaintiff sought an "Area/Facility Use Permit" from the New York State Office of Parks, Recreation and Historic Preservation (the "State Office of Parks" or the "SOP") to distribute "noncommercial literature with a Christian message" on September 1, 1990 at the "mosaic area and adjacent sidewalks" at Jones Beach State Park. In his moving papers, the plaintiff defines the "mosaic area" at Jones Beach as "the area where the sidewalk from parking field 4 and parking field 5 converge and channel the pedestrian traffic to the boardwalk area." (See also Paulsen Aff., Exh. A map of Jones Beach, indicating the "mosaic area" with the symbol "*").

In response to Application Question 10, "please indicate specific destination requested," the plaintiff wrote as follows:

"Mosaic area as indicated above. Alternate location: Any non-obscure board walk area, at Jones Beach. As a last choice any remote Jones Beach Location is OK." (emphasis in original)

The Application also stated that a total of three people would distribute literature and that "we will not detain people, but simply extend an arm with leaflet and say `it's free.'" (Id.)

The State Office of Parks denied plaintiff's Application in a letter dated August 10, 1990, which in relevant part stated as follows:

"This letter will confirm our telephone conversation during which I denied your request to hand out non-commercial religious literature at the mosaic area of Jones Beach State Park on September 1, 1990 ... permits are not available during holidays and holiday weekends. We limit the issuance of many permits due to limited park resources.

Typically, on holidays or holiday weekends during the summer season, attendance may reach capacity. Our operations, maintenance, police and first aid resources are strained to provide necessary service to our patrons. We try not to schedule any special activities which would further burden our resources or require additional supervision or monitoring. It is for this reason we chose to limit special activities where possible. Our purpose is not to infringe on your Constitutional rights of free speech.

Non-holiday weekends and weekdays are available for the activity you propose. We have been consistent in limiting activities and have cancelled events to insure that park resources are not overburdened. I indicated to you during our telephone conversation that other dates might be acceptable to you such as September 8, 1990, which is the following Saturday, or if you had another date that you wished ... and I would determine if that was available. You indicated to me that you are booked at other locations throughout the tri-county region, and that was the only available date you could make."

By reason of an Order issued on August 21, 1990, defendants were directed to show cause "why a preliminary injunction should not be issued preventing defendants from refusing to grant plaintiff a permit to use the Mosaic area or any other area at Jones beach State Park ... September 1 and other holiday weekends until the trial and decision of this action...."¹

The Court held a hearing on August 24, 1990. At the hearing only one witness testified, Mr. John Norbeck, the Director of Operations at Jones Beach State Park. Mr. Norbeck testified that SOP has a "policy" of not issuing any area/facility use permits on "holiday" weekends — that is, Memorial Day, July 4 and Labor Day weekends — to insure that at these "peak" times sufficient employees are available to meet the needs of the increased number of visitors to Jones Beach. Mr. Norbeck stated that many of SOP's Jones Beach employees return to college prior to Labor Day weekend and that only 40% of its employees are available to work. Since the "stationary positions" — watchmen, toll collectors, and first aid personnel, for example — must operate at normal levels, according to Mr. Norbeck SOP must substantially reduce the number of "maintenance" and "supervisory" personnel at Jones Beach over the Labor Day weekend.

As to the plaintiff's Application, Mr. Norbeck testified that were the plaintiff's Application granted, SOP would have to assign three employees to "monitor" the plaintiff's activities. Significantly, the only reasons articulated by Mr. Norbeck as to why SOP would need to monitor the plaintiff and two associates with three employees, however, was to insure that the plaintiff was abiding by State policies and to explain the plaintiff's presence to other park patrons. Specifically, Mr. Norbeck testified as follows:

"What happens is when our staff goes a lot of people — while we do have to monitor the activities whether its Mr. Paulsen or anybody else who applies for a permit, has to make sure that they are abiding by the location and the procedures of the policy. Also, we have people that are assigned badges when they check in and quite a few people are spent explaining why these policies are in existence to our park patrons."

Mr. Norbeck also testified that the plaintiff's proposed activity would not affect garbage collection. The Court notes that the literature at issue is a four-fold pamphlet, 2 and ¾ inches wide, 8 and ¼ inches high, and unfolds to a size of 12 inches wide and 8 and ¼ inches high. In fact, the plaintiff was granted a permit to distribute leaflets on the Saturday prior to Labor Day in 1989—September 2, 1989 — and, according to the plaintiff, "peacefully distributed leaflets on the mosaic and the boardwalk areas without any disruptions, we picked up any discarded pamphlets on the ground and no one from the Parks Department made any complaints about our activities." (Paulsen Aff., ¶ 3)

Importantly, the defendants submitted no evidence that the plaintiff's presence at the mosaic area on September 1, 1990 would cause any strain on the security and peaceful operation of Jones Beach. No evidence was adduced that the distribution of leaflets by three persons would obstruct passageways, cause accidents, kindle altercations or cause any danger or lack of safety to anyone. In fact, during cross examination Mr. Norbeck revealed that, on average, 25% less patrons visit Jones Beach on the Saturday prior to Labor Day than on the Sunday prior to Labor Day or on Labor Day itself.² Also absent from the record is any evidence that any other persons or organizations submitted applications for area/facility use permits for the Labor Day weekend.

II. DISCUSSION

The First Amendment to the Constitution, applicable to the State Office of Parks by reason of the Fourteenth Amendment to the Constitution (see DeJonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278 1937 "Freedom of speech and of the press are fundamental rights which are safeguarded by the due process clause of the Fourteenth Amendment of the Federal Constitution"; NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907 n. 43, 102 S.Ct. 3409, 3422 n. 43, 73 L.Ed.2d 1215 1982 "First Amendment freedoms are protected by the Fourteenth Amendment from invasion by the States"), provides as follows:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

(U.S. Const. amend. I)

The plaintiff contends that the defendants' denial of his August 2, 1990 Application violates his First Amendment rights. As this is an application for a preliminary injunction, the plaintiff "must show (1) irreparable harm, and (2) either (a) likelihood of success on the merits or (b) a sufficiently serious question going to the merits along with the balance of hardships tilting decidedly toward the plaintiff." (Alan Skop, Inc. v. Benjamin Moore, Inc., 909 F.2d 59, 60 Second Circuit 1990 citing Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 2d Cir.1979).

A. Irreparable Harm

If left undisturbed, SOP's denial of the plaintiff's Application will cause the plaintiff to suffer irreparable harm. (See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 1976 "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury"; Abdul Wali v. Coughlin, 754 F.2d 1015, 1026 2d Cir.1985 "Precious first amendment liberties would be rendered all but meaningless if those rights could be restricted even for short periods of time").

B. Likelihood Of Success On The Merits

The speech at issue clearly implicates First Amendment rights (see Schneider v. State, 308 U.S. 147, 162, 60 S.Ct. 146, 151, 84 L.Ed. 155 1939 "distribution of pamphlets have become historical...