Kissinger v. New York City Transit Authority, 274 F.Supp. 438 (D.C.N.Y. 1967)

United States District Court S.D. New York.

C. Clark KISSINGER, Paul Booth and Lee Baxendall, on behalf of themselves,

and on behalf of all other persons similarly situated as members of Students

for a Democratic Society, and on behalf of such Committee, Plaintiffs,

v.

NEW YORK CITY TRANSIT AUTHORITY, New York Subways Advertising Co., Inc.,

Joseph E. O'Grady, John J. Gilhooley, Daniel T. Scannell, Thomas O'Ryan and John P.

Cullen, Defendants.

66 Civ. 836.

Sept. 12, 1967.

*440

Jeremiah S. Gutman, New York City, for plaintiffs. Stephen A. Hopkins, New

York City, of counsel.

Sidney Brandes, Brooklyn, N.Y., for defendants New York City Transit

Authority, Joseph E. O'Grady, John J. Gilhooley and Daniel T. Scannell.

Edward W. Summers, Brooklyn, N.Y., for counsel.

Reavis & McGrath, New York City, for defendants New York Subways

Advertising Co., Thomas O'Ryan and John P. Cullen. Martin D. Jacobs, New

York City, of counsel.

MEMORANDUM

BONSAL, District Judge.

Plaintiffs, members of 'Students for a Democratic Society' (Students),

bring this action under 42 U.S.C. § 1983 seeking a declaratory judgment

that the defendant are required to accept for display on the walls in New

York City subway station platform two posters (the posters) opposing

United States participation in the war in Vietnam. Plaintiffs contend that

this court has jurisdiction based upon 28 U.S.C. § 1343(3).

Pursuant to a contract dated April 4, 1962, the defendant New York City

Transit Authority (the Authority), agreed with the defendant New York

Subways Advertising Co., Inc. (the Advertising Company) to permit the

Advertising Company to place and maintain advertisements in the cars of

subway trains and on the walls in subway stations operated by the

authority. The Authority and the Advertising Company admit they refused to

accept the posters for display. Plaintiffs allege they requested the

Authority and the Advertising Company to accept the posters for display at

the same rates for advertising space and upon the same terms applicable to

all others seeking advertising space, and allege that the refusal of the

Authority and the Advertising Company to accept the posters for display

was due to the controversial and unpopular nature of the views expressed,

thus depriving the plaintiffs of their rights to freedom of speech

guaranteed by the First and Fourteenth Amendments to the United States

Constitution. Plaintiffs move pursuant to Rules 12 and 56, F.R.Civ.P., for

summary judgment.

The posters carry a picture of a child with what appears to be a scarred

back and arm and on the left side of the posters the following words

appear in large lettering:

'WHY ARE WE BURNING, TORTURING, KILLING, THE PEOPLE

OF VIETNAM?-- TO PREVENT FREE ELECTIONS'

In smaller lettering the posters continue:

'PROTEST this anti-democratic war

WRITE President Lyndon B. Johnson, The White House, Washington, D.C.

GET THE STRAIGHT FACTS

WRITE

Students for a Democratic Society [n. *] 119 Fifth Avenue, New York, N.Y.

10003'

n. * One poster carries the name of Students and its address; the other

poster carries the name of a subcommittee of Students, 'The New York

Committee to End the War in Vietnam,' and its address.

In small print the poster states:

'This 10-year old girl was burned by napalm bombs'

In 1965 plaintiffs engaged Blumberg & Clarich, Inc. to place the posters

on New York City subway station platforms and in a letter dated October 7,

1965 the Advertising Company notified Blumberg & Clarich, Inc. of its

refusal to accept the posters. The letter was signed by *441

John P. Cullen, Secretary of the Advertising Company and reads as follows:

'This will acknowledge receipt of your letter of September 29, 1965

requesting a Standard Showing of 30 x 46' posters for your client, the New

York Committee to End the War in Vietnam.

As I explained to you on our previous telephone conversation, we are in a

very 'tight' position with regard to space available at the present time

and our present commitments would preclude taking additional contracts at

this time.

In addition, the copy submitted is entirely too controversial to be posted

on the stations publicly owned by the New York City Transit System. Our

policy has always been to refrain from accepting business, the display of

which would be objectionable to large segments of our population.

We regret that we will be unable to accept your proffered contract at this

time.'

The Authority, created under the New York Public Authorities Law,

McKinney's Consol.Laws, c. 43-A, §§ 1200-1221, is a 'public benefit

corporation' (§ 1201(1)) and it operates a subway or rapid transit system

in all the boroughs of New York City except Richmond (Staten Island). The

subway covers a route of more than 222 miles and there are 482 subway

stations. Admission is open to the public upon the payment of a fare and

on an average week day, the subway carries over 4 1/2 million passengers.

The Advertising Company is a New York corporation with its principal place

of business in New York. The contract of April 4, 1962 between the

Authority and the Advertising Company provides in Article Five that:

'The (Advertising Company) agrees * * * no sign or advertisement shall be

or contain anything unlawful, immoral or offensive to good taste, and in

that respect all advertising matter shall be subject to the approval of

the Authority. The (Advertising Company) also agrees that if any signs or

advertisements are objectionable to the Authority, they will be removed

immediately.'

Since the Authority is a 'public benefit corporation' created by a

specific New York statute and operates a public rapid transit system, and

since the Authority has the power to approve or reject advertising to be

placed by the Advertising Company, the refusal by the Authority and the

Advertising Company to accept the posters for display constitutes 'state

action' for purposes of 42 U.S.C. § 1983 and the Fourteenth Amendment

(see, e.g., Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct.

856, 6 L.Ed.2d 45 (1961); Wolin v. Port of New York Authority, 268 F.Supp.

855 (S.D.N.Y.1967); Farmer v. Moses, 232 F.Supp. 154 (S.D.N.Y.1964);

Anderson v. Moses, 185 F.Supp. 727 (S.D.N.Y.1960)), and plaintiffs'

allegations that they have been deprived of rights guaranteed under the

First and Fourteenth Amendments are sufficient to give the court

jurisdiction under 28 U.S.C. § 1343(3). See, e.g., Douglas v. City of

Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); Hague v.

C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Stein v.

Oshinsky, 348 F.2d 999 (2d Cir.), cert. denied, 382 U.S. 957, 86 S.Ct.

435, 15 L.Ed.2d 361 (1965).

Defendants contend that the refusal to accept the posters for display did

not deprive the plaintiffs of their Federal constitutional rights for two

reasons. First, defendants point out that the Advertising Company, with

the approval of the Authority, has limited the advertising it will accept

to: a) commercial advertising for the sale of goods, etc.; b) public

service announcements; and c) political advertising at the time of and in

connection with elections. [n. 1] Plaintiffs' posters *442

did not come within any of these categories. [n. 2] Second, defendants

point out that the Authority is responsible for the safe operation of the

subways and has a duty to protect subway passenger from the possibility of

physical harm. Defendants argue that the posters are provocative and

inflammatory and would be displayed to a large 'captive audience' in the

confined areas of the subways. Under these circumstances, defendants say

the posters would be likely to cause serious disturbances, disorder and

vandalism, endangering safety in the subways and interfering with the

transportation of passengers. [n. 3]

n. 1. The advertising has been limited to these three categories as a

matter of practice and not by reason of statute or regulation or by reason

of any provision in the April 4, 1962 contract between the Authority and

the Advertising Company other than Article Five quoted at page 441, supra.

n. 2. Among the posters that have been accepted for display, however, are

the following:

1) 'U.S.O. is there only if you care * * *.'

2) 'Religion in American Life, give them a faith to live by * * *'

3) Radio Free Europe-- 'The Iron Curtain isn't soundproof'

4) 'Radio Free Europe-- She can't come to you for the truth'

5) 'Read Muhammed Speaks newspaper. * * *'

6) U.S.O.-- 'U.S.O. is there only if you care * * * Give.'

n. 3. Other than the practice with respect to the three categories of

advertising that the Authority and the Advertising Company will accept for

display, the Authority and the Advertising Company, in rejecting the

posters, were not following a previously decided upon policy or practice

as to which posters would endanger safety in the subways.

Absent a showing that the posters would present a 'clear and present'

danger (see, e.g., Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct.

247, 63 L.Ed. 470 (1919)), the guarantee of freedom of speech under the

First and Fourteenth Amendments extends to plaintiffs' posters (see, e.g.,

Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed.

1213 (1940); Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146,

84 L.Ed. 155 (1939)), and although it may be that the Authority and the

Advertising Company could refuse to accept all posters for display in the

subways (see Danskin v. San Diego Unified School District, 28 Cal.2d 536,

171 P.2d 885 (1946); but see Wolin v. Port of New York Authority, supra;

cf. Barron, 'Access To The Press-- A New First Amendment Right,' 80

Harv.L.Rev. 1641 (1967)), the Authority and the Advertising Company cannot

accept some posters and refuse the plaintiffs' for reasons that conflict

with the First Amendment guarantee of the right to freedom of speech. See

Danskin v. San Diego Unified School District, supra; East Meadow Community

Concerts Association v. Board of Education of Union Free School Dist. #3,

18 N.Y.2d 129, 272 N.Y.S.2d 341, 219 N.E.2d 172 (1966), after remand, 19

N.Y.2d 605, 278 N.Y.S.2d 393, 224 N.E.2d 888 (1967); Buckley v. Meng, 35

Misc.2d 467, 230 N.Y.S.2d 924 (Sup.Ct.N.Y. Co. 1962); Van Alstyne,

'Political Speakers at State Universities,' 111 U.Pa.L.Rev. 329, 337-38

(1963).

Plaintiffs' posters are an expression of political views. They are

not obscene or profane. Compare Chaplinsky v. State of New Hampshire, 315

U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Consequently, the Authority

and the Advertising Company cannot refuse to accept the posters for

display unless the posters present a serious and immediate threat to the

safe and efficient operation of the subways. See Terminiello v. City of

Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); Cantwell v. State

of Connecticut, supra; schneider v. State, supra; see generally Bridges v.

State of California, 314 U.S. 252, 261-263, 62 S.Ct. 190, 86 L.Ed. 192

(1941); compare Feiner v. New York, 340 U.S. 315 (1951). The Supreme

Court in Cantwell v. State of Connecticut, supra, 210 U.S. at 308, 60 S.Ct. at

905 stated the test in these terms,

'When clear and present danger of riot, disorder, interference with

traffic upon the public streets, or other immediate threat to public

safety, peace, or order, appears, the power of the *443

state to prevent or punish is obvious. Equally obvious is it that a state

may not unduly suppress free communication of views, * * * under the guise

of conserving desirable conditions.'

The Authority and the Advertising Company cannot refuse to accept

the posters for display because they are 'entirely too controversial' and

'would be objectionable to large segments of our population.' (letter from

John P. Cullen, dated October 7, 1965). See Terminiello v. City of

Chicago, supra, 337 U.S. at 4, 69 S.Ct. at 896. [n. 4] However, the

defendants contend that the posters would seriously endanger safety in the

subways; would give rise to a 'clear and present' danger. [n. 5] This

contention raises questions of fact which can be resolved only at trial.

[n. 6]

n. 4. 'a function of free speech * * * is to invite dispute. * * * Speech

is often provocative and challenging. It may * * * have profound

unsettling effects as it press for acceptance of an idea. That is why

freedom of speech * * * is * * * protected against censorship or

punishment, unless shown likely to produce a clear and present danger of a

serious substantive evil that rises far above public inconvenience,

annoyance, or unrest.'

n. 5. The posters however, may involve less danger to safety than other

forms of expression such as picketing or live speakers (compare Wolin v.

Port of New York Authority, supra; Farmer v. Moses, supra) since no person

is physically publicizing the views expressed in the posters.

n. 6. Defendants also argue that if they accept the posters for display,

they will have to accept other posters relating to United States

participation in the war in Vietnam with the result that commercial

advertising will be curtailed and the subways will become a political and

ideological battle-field. Even if the Authority and the Advertising

Company are required to accept the posters for display, however, it does

not follow that others must be accepted, and, in addition, the Authority

and the Advertising Company could impose reasonable regulations on the

display of plaintiffs' posters and others of a similar nature as to the

number to be displayed and the time and place for their display. See

Farmer v. Moses, supra 232 F.Supp. at 162. The imposition of reasonable

regulations sufficiently protects the Authority and the Advertising

Company from the type of injury described by the California Court of

Appeal in Wirta v. Alameda-Contra Costa Transit District, 61 Cal.Rptr. 419

(First Appellate District, Division One, August 11, 1967), viz., the

possibility that commercial advertising will be preempted and that other

persons will be deprived of advertising space. In addition, Wirta is

distinguishable since there the Transit District in refusing the

advertising that was offered for display reaffirmed a 'previously

expressed policy concerning political advertising' by adopting a

resolution stating that political advertising would be accepted only 'in

connection with and at the time of a duly called election * * *.' Although

defendants contend that the Authority and the Advertising Company have

similarly limited political advertising to advertising in connection with

and at the time of duly called elections (see page 441 supra), other

posters of a political nature have nevertheless been accepted. See note 2,

supra at 441.

Accordingly, plaintiffs' motion for summary judgment is denied.

It is so ordered.