SPARTACUS, ETC. v. Board of Trustees of Illinois

• Decision Date: 02 April 1980
• Docket Number: No. 78 C 1224.,78 C 1224.
• Citation: 502 F. Supp. 789
• Court: U.S. District Court — Northern District of Illinois
• Parties: SPARTACUS YOUTH LEAGUE, an unincorporated association, Sandor John, Nay Foggs, Susan Pickgrobe, and Thomas Tank, Plaintiffs, v. BOARD OF TRUSTEES OF the ILLINOIS INDUSTRIAL UNIVERSITY, Honorable James R. Thompson, Governor, as Ex-Officio Member of the Board of Trustees of the Illinois Industrial University, George W. Howard III, William D. Forsyth, Jr., Ralph C. Hahn, Robert J. Lenz, Park Livingston, Earl Langdon Neal, Jane Hayer Rader, Nina T. Shepherd, Arthur R. Velasquez, Individually and as Member of the Board of Trustees of the Illinois Industrial University, Dr. Donald H. Riddle, Individually and as Chancellor of the University of Illinois Chicago Circle Campus, and Willie E. McKay and Stanton Delaney, Individually and as Officials of the University of Illinois Circle Campus, Defendants.

502 F. Supp. 789

SPARTACUS YOUTH LEAGUE, an unincorporated association, Sandor John, Nay Foggs, Susan Pickgrobe, and Thomas Tank, Plaintiffs, v. BOARD OF TRUSTEES OF the ILLINOIS INDUSTRIAL UNIVERSITY, Honorable James R. Thompson, Governor, as Ex-Officio Member of the Board of Trustees of the Illinois Industrial University, George W. Howard III, William D. Forsyth, Jr., Ralph C. Hahn, Robert J. Lenz, Park Livingston, Earl Langdon Neal, Jane Hayer Rader, Nina T. Shepherd, Arthur R. Velasquez, Individually and as Member of the Board of Trustees of the Illinois Industrial University, Dr. Donald H. Riddle, Individually and as Chancellor of the University of Illinois Chicago Circle Campus, and Willie E. McKay and Stanton Delaney, Individually and as Officials of the University of Illinois Circle Campus, Defendants.

No. 78 C 1224.

United States District Court, N. D. Illinois, E. D.

April 2, 1980.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David C. Thomas, Edward T. Stein, Singer & Stein, Chicago, Ill., for plaintiffs.

John C. Tucker, Barry Sullivan, Jenner & Block, Chicago, Ill., for defendants.

MEMORANDUM AND ORDER

MORAN, District Judge.

This is a civil rights action brought under the First Amendment, the Fourteenth Amendment and 42 U.S.C. § 1983, challenging regulations governing the sale and distribution of literature at the University of Illinois' Chicago Circle Campus. The plaintiffs are the Spartacus Youth League, two University of Illinois students and two nonstudents. The defendants are members of the Board of Trustees of the University of Illinois and certain officials at the University's Chicago Circle Campus. The plaintiffs seek both a declaration that the challenged regulations are unconstitutional and an injunction preventing the defendants from enforcing them. Jurisdiction is invoked pursuant to 28 U.S.C. § 1331, § 1343(3), § 1343(4), § 1651, § 2201, § 2202, 42 U.S.C. § 1981, § 1983, § 1988 and under the First and Fourteenth Amendments. Plaintiffs have now moved for a preliminary injunction.

I. Background

University of Illinois, Circle Campus is a publicly owned and operated commuter school which includes classrooms, administration buildings, recreation areas and parking facilities. The student union, known as Circle Center, is described in the University's student handbook as "the hub of campus activities." The Center contains a wide variety of facilities, including lounges, four food service areas, recreational facilities, the main bookstore, a travel agency, a post office, student organization offices and meeting rooms for campus and community functions. The general public is invited to numerous lectures, forums and discussions in the Center. Recent studies show that the Center is used by 10,000 persons each day. Persons entering the Center need not show any student identification.

Registered student organizations are permitted to reserve booths from which they may conduct discussions with and distribute literature to passersby in the main lobby on the second floor of the Center. A large number of people frequent the area since it is situated immediately outside one of the public food service areas and at the head of the escalators. The University requires that membership in a registered student organization be limited to students, faculty and staff of the Circle Campus. To become a registered student organization, the group must submit a statement containing the name, purpose, membership requirements of the organization, officeholders, the number of members, and a faculty supervisor. There are over 190 registered student organizations on Circle Campus, including the Spartacus Youth League (SYL). Status as a registered student organization entitles the group to money from a Student Activities Fund.

In July, 1975, the University promulgated various regulations outlining the manner in which goods and literature could be distributed. See Appendix. The regulations specified that free printed materials could only be distributed by students, faculty or staff of Circle Campus. The material was required to bear the name of the issuer and the distributor was required to furnish identification upon request. Distribution in Circle Center was confined to assigned booths or to an area near the escalators.

University regulations also discussed the sale of materials. Sales of merchandise were generally prohibited, except in designated University shops. All salesmen and vendors were required to obtain prior authorization to be present on campus. Registered student organizations had somewhat greater latitude. They were permitted to sell publications and engage in fund-raising. Sales of publications, however, required advance written approval, necessitating submission of a statement describing the name of the organization, the date of the sales, the things to be sold, and the names of the sellers. In 1975, only University students and personnel were permitted to sell items on behalf of registered student organizations. All proceeds of sales and other fund-raising activities were required to be deposited in a University account under the organization's name.

During the fall of 1977, Sandor John, a member of SYL but not a student, was present on the campus on numerous occasions to distribute literature for the SYL. The SYL is a registered student organization with less than ten members. It maintains a booth at the Center with fairly regular weekday hours. SYL political literature is distributed from the booth. Its members sometimes ask for, but never require, contributions for the materials. Examples of such literature include a flyer announcing a series of classes covering the fundamentals of Marxism, handbills protesting claimed University harassment of leftist campus organizations, and the Worker Vanguard, which describes itself as a Marxist working-class newspaper. SYL also distributes literature on the outdoor walkways within Circle Campus.

On several occasions in the fall of 1977, defendants McKay and Delaney warned John that he could not distribute SYL's political literature because he was not a student, faculty or staff member of the University. The defendants state that they sought to prevent John from selling literature in the Center lobby. In his affidavit, John states he was told that he could not distribute literature either with or without charge at Circle Center or elsewhere on the campus.

On November 22, 1977, Mr. Rothenbaum and Mr. Delaney of the University staff, asked John to stop selling newspapers on the second floor. John refused and Delaney phoned the campus police. Officer Mel Walker told John he would be arrested for criminal trespass unless he discontinued his sales activities. John maintained that the regulations violated his constitutional rights, and stated his intention to continue selling newspapers in the lobby. Walker then arrested John and escorted him to Chicago police headquarters, where Rothenbaum signed a criminal trespass complaint against him.

Acting on the University's complaint, the State's Attorney initiated a criminal misdemeanor action charging John with criminal trespass to state-supported land, 1977 Ill. Rev.Stats., Ch. 38 § 21-5. On August 15, 1978, Judge John McDonnell dismissed the complaint, resting his decision on the ground that the University regulations prohibiting distribution of literature by persons who are not students, faculty or staff were unconstitutional as applied to John's conduct. Judge McDonnell also found that the Circle Center lobby was a "public forum" within the meaning of Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) and thus subject to the requirements of the First and Fourteenth Amendments.

The plaintiffs filed suit in this court on April, 1978, and sought a preliminary injunction enjoining enforcement of the challenged regulations. Before that motion was decided, the University of Illinois on December 19, 1978 amended their regulations to permit distribution of literature by persons like John, who although not themselves students, faculty or staff of the University, wish to distribute literature on behalf of registered student organizations.¹ In January, 1979 the defendants filed a motion to dismiss the complaint as moot, in light of the amended regulations.

The plaintiffs filed their first amended complaint on May 21, 1979, joining three additional plaintiffs and seeking a preliminary injunction. The party plaintiffs now include the Spartacus Youth League and four individual party plaintiffs: 1) Sandor John, a non-student affiliate of SYL, a registered student organization, 2) Nay Foggs, a student and member of a registered student organization, 3) Thomas Tank, a student but not a member of any registered student organization and 4) Susan Pickgrobe, a non-student without any affiliations with Circle Campus.

In their amended complaint and motion for a preliminary injunction, the plaintiffs argue that the Circle Center and the outdoor walkways on campus are public forums deserving the highest constitutional protection and that the University regulations go beyond permissible controls on the time, place and manner of speech activities in public forums by discriminating between speakers based upon their status as University insiders or outsiders. They further contend that the insiders and "non-University agents" face written permission and identification requirements which are vague, overbroad and abridge their rights to freedom of speech and association. They argue that since any attempted distribution will subject the plaintiffs to possible arrest, criminal prosecution or harassment, the regulations have a chilling effect on the exercise of their rights and that irreparable injury caused by these restrictions justifies preliminary relief.

In response to the plaintiffs' motion, defendants argue that the standards for issuance of a preliminary injunction have not been met. The defendants...