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MOSKOWITZ v. CULLMAN

June 1, 1977

Howard MOSKOWITZ, Plaintiff,
v.
Joseph F. CULLMAN, III, et al., Defendants



The opinion of the court was delivered by: STERN

 Plaintiff, Howard Moskowitz, brought this civil action for a declaratory judgment and injunctive relief against the defendants, the Commissioners of the Port Authority of New York and New Jersey and Leslie Shenkler, the Manager of the PATH Terminal in Journal Square, Jersey City. The complaint asserted that the defendants denied plaintiff the right to pass out handbills and political leaflets in the PATH Terminal concourse in support of his candidacy for the Jersey City Council. The Terminal is a multi-level transportation facility containing bus and train platforms, several concourse levels, information and ticket facilities, and a variety of stores, newsstands, and other public services. Plaintiff sought a temporary restraining order, a declaratory judgment and a permanent injunction barring further interference with what he asserted to be his constitutional right to leaflet in the Terminal. Jurisdiction was asserted under Title 28 U.S.C. § 1343(3), (4), and Title 28 U.S.C. § 2201.

 According to the allegations of the verified complaint, filed March 13, 1977, plaintiff was a candidate for the City Council of Jersey City in a municipal election to be held on May 10, 1977. (Complaint, para. 4) Plaintiff requested a permit to pass out leaflets concerning his candidacy from the defendants by telephone and in person on March 10 and 11, 1977. He sought to distribute the leaflets in the concourse area of the PATH Terminal in Journal Square, Jersey City. (Id., P 7) Without adverting to any written regulations or guidelines purporting to govern such conduct, the defendants refused to permit plaintiff to pass out his leaflets in the concourse area. (Id., P 8) Plaintiff contended that this refusal violated his First Amendment rights. The complaint further pleaded that plaintiff would be permitted to pass out leaflets at the New York terminal at 41st Street and 8th Avenue in New York. (Id., P 9) Thus, the plaintiff charged that the Authority's refusal to grant him the privilege of leafletting in the Journal Square facility was also a denial of equal protection. (Id., P 10)

 In support of his complaint, plaintiff submitted two affidavits. In the first, sworn to by plaintiff on March 14, 1977, he stated that he and the managers of the Terminal were in agreement that handing out leaflets on the bus platforms themselves would pose a safety hazard. (Affidavit of Moskowitz, 3/14/77, para. 4) Plaintiff averred that when he then stated that he wished to conduct leafletting in the concourse area of the Terminal, he was told that such activity would be

 
. . . "a problem." He [Defendant Shenkler] said it would pose a safety hazard for terminal patrons. He said it might be a harassment for people. He said it would cause littering problems. I told him it was not up to him to decide if individuals would feel harassed by being offered a leaflet and that fear of littering could not be an excuse to deny my First Amendment Rights. He said that he had authority to decide what activity could take place on the concourse and that leafletting would not be permitted.

 (Id., at P 6) According to the affidavit, a later meeting with officials of the PATH Terminal resulted in verbal authorization for plaintiff to set up two "literature tables", but that it was conveyed to him that no leaflets could be handed out in the indoor concourse area of the Terminal. (Id., at P 8) When plaintiff requested an application for a leafletting permit, defendants said that no such form existed and denied his oral application to leaflet. (Id., P 9)

 On this record, the plaintiff sought temporary relief in the form of a temporary restraining order directing the defendants to permit him to leaflet in support of his candidacy in the concourse area of the PATH Terminal at Journal Square. The Port Authority appeared before the Court to contest plaintiff's application. The position of the Port Authority was not made entirely clear at the hearing. At the outset of the hearing, the Authority contended that only "literature tables" would be permitted to plaintiff on the concourse area. Subsequently, however, the Authority apparently conceded that plaintiff could leaflet, but sought to restrict him to certain areas outside the normal flow of heavy commuter traffic. Plaintiff, who stated at the hearing that he is an independent and little-known candidate for office, argued that in order to convey his message it was imperative that he be permitted to enter the traffic flow of commuters to distribute his leaflets.

 The first question presented by the plaintiff's application for interim relief was the nature of the forum he sought to utilize to communicate his political message. The defendants argued that the concourse platform of the PATH Terminal in Journal Square, Jersey City, is not a "public forum" within the meaning of the case law dealing with the First Amendment. This Court disagreed. The PATH is a subdivision of the Port of New York and New Jersey Authority, see N.J.S.A. 32:1-35.61 et seq. (1963), created by agreement between New York and New Jersey; see N.J.S.A. 32:1-1 et seq. (1963). Whatever restrictions may flow from the status of property denoted as "private", compare Lloyd Co. v. Tanner, 407 U.S. 551, 92 S. Ct. 2219, 33 L. Ed. 2d 131 (1972) with Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 88 S. Ct. 1601, 20 L. Ed. 2d 603 (1968), and Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946), are here wholly irrelevant. The terminal is a building, constructed, owned, operated and maintained by a public authority. It is open to the public, and it is in fact used by thousands of citizens each day as they travel to and from work. The Court of Appeals for the Second Circuit has held, under identical circumstances, that a New York bus terminus of the same Port Authority is a public forum. Wolin v. Port of New York Authority, 392 F.2d 83 (2nd Cir.), cert. denied, 393 U.S. 940, 89 S. Ct. 290, 21 L. Ed. 2d 275 (1968). Similar results have been reached by other courts with respect to a municipal auditorium, Southeastern Promotions, Ltd. v. City of West Palm Beach, 457 F.2d 1016, 1019 (5th Cir. 1972); O'Hare International Airport terminals, Chicago Area Military Project v. City of Chicago, 508 F.2d 921 (7th Cir. 1975); and the Oakland Municipal Airport, Kuszynski v. City of Oakland, 479 F.2d 1130 (9th Cir. 1973). Because of the public nature of the PATH Terminal, this Court was guided by the words of Mr. Justice Roberts, speaking for the Court in another case in which Journal Square and Jersey City figured:

 
Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulations, be abridged or denied.

 Hague v. CIO, 307 U.S. 496, 515-516, 59 S. Ct. 954, 964, 83 L. Ed. 1423 (1939). Accordingly, this Court held, with the Wolin Court, that the PATH Terminal is a public forum in which the expression of First Amendment activity, including the distribution of printed material, is constitutionally protected. Flower v. United States, 407 U.S. 197, 92 S. Ct. 1842, 32 L. Ed. 2d 653 (1972). Compare Adderley v. Florida, 385 U.S. 39, 87 S. Ct. 242, 17 L. Ed. 2d 149 (1966). As Mr. Justice Roberts noted, however, this determination did not end the inquiry. Cf. Niemotko v. Maryland, 340 U.S. 268, 273, 71 S. Ct. 325, 95 L. Ed. 267 (1951) (Frankfurter, J., concurring).

 
The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.

 Lovell v. Griffin, 303 U.S. 444, 452, 58 S. Ct. 666, 669, 82 L. Ed. 949 (1938). See also Schneider v. State, 308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155 (1939); Talley v. California, 362 U.S. 60, 80 S. Ct. 536, 4 L. Ed. 2d 559 (1966). Inquiry thus began with a protected activity, occurring in a public forum. To what extent, and under what circumstances may defendants regulate plaintiff in his leafletting?

 Clearly, the fact that plaintiff was engaged in a protected activity within an area which must be considered a public forum does not foreclose all regulation. He could have been subjected to certain rules which have as their object the public safety. But such regulations, to be valid, would have to be narrowly and specifically drawn. See Hynes v. Mayor and Council of the City of Oradell, 425 U.S. 610, 96 S. Ct. 1755, 48 L. Ed. 2d 243 (1976); NAACP v. Button, 371 U.S. 415, 433, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963); Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965); Saia v. New York, 334 U.S. 558, 559-560, 68 S. Ct. 1148, 92 L. ...


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