Stevens v. New York Racing Ass'n, Inc.

• Decision Date: 28 July 1987
• Docket Number: No. CV-87-1831.,CV-87-1831.
• Citation: 665 F. Supp. 164
• Parties: Gene STEVENS, Plaintiff, v. NEW YORK RACING ASSOCIATION, INC., Defendant.
• Court: U.S. District Court — Eastern District of New York

665 F. Supp. 164

Gene STEVENS, Plaintiff, v. NEW YORK RACING ASSOCIATION, INC., Defendant.

No. CV-87-1831.

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

July 28, 1987.

Summit Rovins & Feldesman, New York City, for plaintiff; by Ira G. Greenberg.

Cahill Gordon & Reindel, New York City, for defendant; by H. Richard Schumacher, Patricia Dobberstein.

MEMORANDUM DECISION AND ORDER

SIFTON, District Judge.

Plaintiff, a publisher of a horse racing newspaper, commenced this action against defendant, New York Racing Association, Inc. ("NYRA"), based upon allegations that defendant's conduct limiting plaintiff's ability to take or be in photographs at defendant's racing tracks violates plaintiff's rights under the first and fourteenth amendments to the United States Constitution as well as under New York State law. This Court's jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331-32, § 1343, and principles of pendent jurisdiction.

The matter is currently before the Court on plaintiff's application for an order enjoining defendant, pending the trial of this action, from (1) denying plaintiff and a photographer employed by him access to areas of defendant's tracks which are otherwise open to the press, and (2) barring plaintiff from taking and being in photographs in all areas of defendant's tracks where members of the press take such photographs, pursuant to Rule 65 of the Federal Rules of Civil Procedure. Defendant has cross-moved for summary judgment pursuant to Rule 56.

On July 2, 1987, the Court granted plaintiff's request for a hearing to determine whether defendant should be enjoined from restricting plaintiff's ability to take and be in photographs at defendant's tracks pending a trial on the merits. The Court also granted plaintiff's application for expedited discovery in advance of the hearing. During the week of July 6th, plaintiff served and defendant answered limited interrogatories and document requests. On July 9, 1987, plaintiff took the depositions of defendant's president, Gerard McKeon, and defendant's executive director of media relations, Steven Schwartz. On July 10, 1987, the Court granted the parties' request to submit affidavits, memoranda, and the deposition transcripts in lieu of conducting a hearing with live testimony.

Based upon the affidavits, exhibits, and discovery materials submitted in connection with these applications, plaintiff's application for a preliminary injunction is granted, and defendant's motion for summary judgment is granted in part and denied in part. The following constitutes the Court's findings of fact and conclusions of law on which these determinations are founded as required by Rule 65(d).

Plaintiff, a citizen of Florida, is the publisher of Post Time USA, a newspaper that reports on the thoroughbred horse racing industry. Plaintiff's newspaper concentrates its coverage on the "racing social scene" and includes "photographs of racing personalities." Plaintiff's Aff. ¶ 3. Indeed, it appears from copies of plaintiff's newspaper that such photographs of racing people, including pictures of the plaintiff himself, are an important part of Post Time USA's coverage. Plaintiff credibly states that such photojournalism is important to maintaining readership interest and securing advertising and that access to all parts of a race track is "crucial" to fulfilling these objectives. Id. The copies of plaintiff's newspaper which have been submitted as exhibits to plaintiff's affidavit indicate that plaintiff devotes several articles and "photo pages" to defendant's events, such as the Belmont Stakes and the Saratoga meet. Indeed, the August 1985 edition is entitled "Triple Crown Review & Saratoga Issue." Cf. Plaintiff's Reply Aff. ¶ 12 (two entire issues devoted to defendant's events).

Defendant is a New York stock corporation organized as a non-profit racing association under the authority of N.Y. Racing, Pari-Mutuel Wagering & Breeding Law (hereafter "Racing Law") § 202. Defendant owns and operates the Aqueduct, Belmont Park, and Saratoga thoroughbred racing tracks. Defendant issues a variety of credentials to members of the press to cover events at its tracks. These credentials generally give press representatives access to areas of the racing tracks such as the paddock¹ which are closed to paying patrons. The press is given access to the paddock so that, for example, representatives can see the condition of the horses before the race and talk to the trainer if the trainer is available. To take photographs in the paddock, a journalist must obtain a photographer's credential. There is no dispute that members of the press with the requisite credentials take photographs in the paddock area of defendant's tracks.

The events that resulted in this lawsuit involve defendant's decision to limit plaintiff's ability to take and be in photographs at defendant's racing tracks. At some point prior to the August 1986 meet at Saratoga, Mr. Schwartz, who decides in the first instance whether to grant a request for press credentials, denied plaintiff's request for working credentials. Mr. Schwartz testified that the decision to deny plaintiff's request was based upon information that he received from others.

Messrs. Rudy and Allen, respectively the former and current press directors at Churchill Downs, the site of the Kentucky Derby, has told Mr. Schwartz "over the years" that plaintiff had to be forcibly ejected from the press box at Churchill Downs because he appeared without credentials and that plaintiff, during the 1984 running of the Kentucky Derby, stationed himself behind ABC's television presentation in the paddock. As a result, Schwartz was advised that Churchill Downs no longer issues credentials to plaintiff.

In addition, plaintiff once appeared at the press box at Belmont Park, one of defendant's tracks, without a credential. He did not have to be forcibly removed, however. When told he needed a credential, plaintiff went to Mr. Schwartz who allowed him to visit the press box.

Mr. Keenan, who is in charge of security at defendant's tracks, told Mr. Schwartz that plaintiff's "actions weren't those of a normal reporter" but provided Mr. Schwartz with no particular information about plaintiff's conduct. Schwartz Dep. at 23. Ms. Garges, who is responsible for clubhouse activities, told Mr. Schwartz that "she felt plaintiff was a general nuisance," which Mr. Schwartz took to mean that plaintiff was "extremely visible" during a meet at Saratoga. Id. at 24-25. Mr. Scherf, who was defendant's press director, worked with Mr. Schwartz during an incident involving plaintiff which occurred during the 1981 running of the Gotham Stakes. At that time, plaintiff "managed to get himself into the winner's circle picture taken by the New York Times" without a credential. Id. at 20-21. After the incident, plaintiff wrote to defendant explaining that, because he participated in the sale of the winning horse, he was invited into the winner's circle by the owner. Mr. Schwartz did not believe the explanation because the letter contained a statement that Mr. Scherf had apologized to plaintiff, which Mr. Schwartz believed to be false.

Beyond the statements which these five individuals made to Mr. Schwartz, it also appears that Mr. Schwartz decided to deny plaintiff a credential because plaintiff, by taking and being in photographs, "was making himself bigger than the event" he was covering. Schwartz Dep. at 47. Mr. Schwartz' decision was also based on his belief that plaintiff, through his activities, was promoting himself at defendant's expense. Mr. Schwartz' decision was not based on any conversations with or complaints from horse owners, trainers, or jockeys concerning plaintiff's activities.

When Mr. Schwartz denied plaintiff's request for a press credential in 1986, he did not explain to plaintiff the reason for the decision.

Thereafter, plaintiff approached Mr. McKeon, defendant's president and Mr. Schwartz' boss, to obtain a credential. Mr. McKeon decided to give plaintiff a credential but to prohibit him from bringing a camera into the paddock. Mr. McKeon testified that he imposed the photography restriction for a number of reasons. First, in 1984 or 1985, Mr. McKeon was taken by the arm and led into a picture with plaintiff in the paddock at Saratoga. Mr. McKeon has seen plaintiff lead — or in Mr. McKeon's words "collar" — other people into pictures on occasion. Second, Ms. Garges would occasionally complain to him, "what is plaintiff doing in the paddock with that camera." McKeon Dep. at 12. She never related a complaint to Mr. McKeon from any individual, however. Third, Mr. Schwartz, without relating any specific complaints, "expressed his irritation with plaintiff's collaring people in the paddock for pictures." Id. at 14. The decision to impose a photography restriction on plaintiff, however, was not based on the fact that plaintiff's conduct was interfering with the regular activities in the paddock area.

Upon making the decision Mr. McKeon testified that he told plaintiff that

"... you are going to get press credentials just like everybody else, but I don't want you going into the paddock area with the camera because some people have complained to me, and I find it personally offensive to be collared while in the paddock; so if you want to take pictures, put your cameraman on the rail, surrounding the paddock, and have him shoot you from there. Or in the alternative, if you want to take a picture with somebody, do it when you are outside of the paddock."

McKeon Dep. at 16-17.

There is some question as to the breadth of the restriction that defendant imposed on plaintiff. In contrast to the restriction described by Mr. McKeon, Mr. Schwartz testified that, after he discussed the limitation with Mr. McKeon, he told plaintiff that he could not take or be in pictures "anywhere in the track." Schwartz Dep. at 44. Defendant is currently prepared to issue plaintiff a...