Rogers v. New York City Transit Authority

Decision Date01 May 1997
Parties, 680 N.E.2d 142, 25 Media L. Rep. 1788 In the Matter of James L. ROGERS, Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Respondent.
CourtNew York Court of Appeals Court of Appeals


This CPLR article 78 proceeding seeks review and annulment of the New York City Transit Authority's determination, under which petitioner-appellant James Rogers was fined $50 for selling his organization's newspaper on a subway station platform in violation of Rules of the Metropolitan Transportation Authority § 1050.6(b) (21 NYCRR 1050.6[b] ). The Appellate Division order reversed a Supreme Court judgment in Rogers' favor, confirmed the Transit Authority determination and dismissed the proceeding. Rogers appeals as of right on constitutional grounds (CPLR 5601[b][1] ).

The principal, intertwined issues relate to whether (1) the Transit Authority's adoption and promulgation of regulations for specified distributions of expressive materials on subway platforms transforms those transportation system locations into public forums; (2) Rogers' sale of the newspaper is commercial activity subject to the Transit Authority regulation; (3) Rogers' claimed not-for-profit political campaign activity provides a general immunity from reasonable regulation by reason of supervening First Amendment protections; and (4) the Transit Authority's particularly applied ruling here, under the challenged regulatory paradigm, meets precedential and constitutional standards of reasonableness and fairness.

We uphold the Appellate Division ruling in favor of the Transit Authority because appellant's claims do not constitute constitutional deprivations. Rather, the Transit Authority's regulatory and adjudicative actions are within reasonable constitutional parameters, dictated by its primary and essential public transportation function and responsibility to provide safe and secure services. This case also reflects its reasonable management of a subsidiary role in fairly and evenhandedly controlling the large number and variety of purveyors of ideas, views, goods and services on its stretched network and myriad properties.


Rogers is a member of a political organization known as the Socialist Workers' Party (SWP). On October 30, 1993, just prior to the New York City elections, he and other SWP volunteers set up a card table on the mezzanine level of a subway station in Jamaica, Queens, for the purpose of campaigning for their candidates. While Rogers distributed some literature for free, he offered books and a weekly party newspaper, the Militant, for sale only. In response to a warning from a Transit Authority officer that this sales activity violated Transit Authority rules, Rogers and his associates removed their table from the subway station. Due to inclement weather, they later moved the table back inside, repositioned themselves by the station escalator and resumed their activities, including offering materials for sale. A Transit Authority officer issued Rogers a notice charging him with violating a rule against selling materials of this kind in the subway.

A hearing was held and the Transit Adjudication Bureau (TAB) determined that Rogers violated section 1050.6(b) by engaging in "unauthorized commercial activity," and imposed the standard $50 fine. TAB's Appeals Board sustained the determination. Rogers sued, asserting that he did not receive a fair hearing, that his activities were permitted under 21 NYCRR 1050.6(c) and that the Transit Authority action violated his right to free speech under the Federal and State Constitutions.

The trial court ruled in Rogers' favor. It reasoned in part that the "incidental sale of a few copies of a political party's newspapers during the course of a political campaign does not constitute 'commercial activity.' " It further held that "[t]he protection afforded free speech on the street, under the circumstances of the case at bar, can be extended to include the conduct of Petitioner [on the subway premises]."

The Appellate Division unanimously reversed and dismissed the proceeding (227 A.D.2d 629, 643 N.Y.S.2d 601). The Court held that the Transit Authority's determination that Rogers violated 21 NYCRR 1050.6(b) was supportable in that it properly applied the rational rule and was entitled to deference (id., at 630, 643 N.Y.S.2d 601). Addressing the constitutional claim, the Court reasoned that the subway is not a public forum and was not transformed into one by the Transit Authority's enactment of 21 NYCRR 1050.6(c), which authorizes certain nontransit activity (id., at 630-631, 643 N.Y.S.2d 601). It concluded that the Transit Authority's limited expansion of the function of the subway, by the enactment of 21 NYCRR 1050.6(c), "expressly did not encompass the commercial activity at issue" (id., at 631, 643 N.Y.S.2d 601). We now affirm.


No one disputes that Rogers' general right to sell books and promote his personal and his organization's political views falls within First Amendment protection (see, Heffron v. International Socy. for Krishna Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559, 2563-2564, 69 L.Ed.2d 298; Murdock v. Pennsylvania, 319 U.S. 105, 111, 63 S.Ct. 870, 873, 87 L.Ed. 1292). This case is not about that.

Pertinently here, nothing in the Constitution commands that dissemination of all forms of speech at all times on all kinds of property are absolutely protected under the First Amendment, without regard for the nature of the activity, the property or the disruption that might be engendered by unregulated expressive activity in certain circumstances (see, International Socy. for Krishna Consciousness, v. Lee, 505 U.S. 672, 677, 112 S.Ct. 2701, 2704-2705, 120 L.Ed.2d 541; Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 799-800, 105 S.Ct. 3439, 3447-3448, 87 L.Ed.2d 567; United States Postal Serv. v. Council of Greenburgh Civic Assns., 453 U.S. 114, 129, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517). "Recognizing that the Government, 'no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated,' " the United States Supreme Court has accepted a "forum based" approach for assessing restrictions that the government may place upon the use of property (Cornelius v. NAACP Legal Defense & Educ. Fund, supra, 473 U.S. at 800, 105 S.Ct. at 3448 [quoting Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 1211, 1217, 47 L.Ed.2d 505]; see also, International Socy. for Krishna Consciousness, v. Lee, supra, 505 U.S. at 678, 112 S.Ct. at 2705). This principle should apply as well to quasi-public entities.

Under the public forum doctrine, regulation of speech on government property that traditionally or by designation has been opened up for public expression and debate should be subjected to the sharpest scrutiny. Regulations of time, place and manner of expression may be permissible only when they are content-neutral and narrowly tailored to serve a significant government interest and allow for alternative modes and methods of communication (Perry Educ. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794). Indeed, a content-based prohibition might survive only when it is narrowly drawn to achieve a compelling governmental interest (see, id.; see also, International Socy. for Krishna Consciousness, v. Lee, supra, 505 U.S. at 677, 112 S.Ct. at 2704-2705; Cornelius v. NAACP Legal Defense & Educ. Fund, supra, 473 U.S. at 800, 105 S.Ct. at 3448). Importantly, everyone agrees that this case does not involve content-based regulations of any kind or quality.

A corollary principle allows government, when it acts as proprietor, to reserve property for its intended primary purpose, as long as restrictive regulations on speech are reasonable and not an effort to suppress expression because of disagreement with the speaker's view (see, Perry Educ. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. at 45, 103 S.Ct. at 955 [citing United States Postal Serv. v. Council of Greenburgh Civic Assns., 453 U.S. 114, 131, 101 S.Ct. 2676, 2686, supra ]; see also, International Socy. for Krishna Consciousness, v. Lee, supra, 505 U.S. at 678-679, 112 S.Ct. at 2705-2706).

Also of significance is the rubric that "[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse" (Cornelius v. NAACP Legal Defense & Educ. Fund, supra, 473 U.S. at 802, 105 S.Ct. at 3449). Absent evidence of a contrary intent, authorization of certain speech activities by the government--or a quasi-governmental entity like the Transit Authority--will not be deemed to transform an otherwise nonpublic forum into a wholly open public forum freed of any reasonable regulation regimens (id., at 803, 105 S.Ct. at 3449-3450). Thus, utilization of a nonpublic forum may be limited by speaker, subject matter and form of expression, so long as the restriction is viewpoint-neutral; to the extent a forum is designated to engender or foster some First Amendment activity, reasonable limitations on access are recognized to preserve and protect the retained nonpublic uses (see, id., at 806, 105 S.Ct. at 3451; International Socy. for Krishna Consciousness v. Lee, supra, 505 U.S. at 682, 112 S.Ct. at 2707; United States v. Kokinda, 497 U.S. 720, 730, 110 S.Ct. 3115, 3121, 111 L.Ed.2d 571; see also, Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440; Madison Joint School Dist. No. 8 v. Wisconsin Empl. Relations Commn., 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376; Southeastern Promotions v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448; Loper v. New York City Police Dept., 999 F.2d 699, 703 [2d...

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