The opinion of the court was delivered by: KRAFT
This is a civil rights action in which plaintiffs seek injunctive relief to require the defendant Commissioners to issue a permit to plaintiffs to enable them to conduct an "anti-war" rally on May 1, 1969, on John F. Kennedy Plaza between the hours of 4:00 P.M. and 7:00 P.M.
The permit, initially applied for on February 20, 1969, was granted by the Commission on March 12, 1969. It was later revoked by the Commission after a hearing held on April 21, 1969. The reasons advanced for the denial of the permit were that: (1) traffic would be snarled and disorder would result from the rally held between 4:00 P.M. and 7:00 P.M. at the peak of the rush hour in that area of the city which embraces a concentration of public transportation centers and heavily traveled streets; and (2) the object of the rally is to cause persons unlawfully to "turn in" their draft cards, as an expression of such persons' disagreement with the prevailing foreign policy of the United States concerning the conduct of the Vietnam War.
The issue framed for our decision is whether the policies and regulations of the Commission, as applied to plaintiffs, "deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places." Cox v. State of New Hampshire, 312 U.S. 569, 574, 61 S. Ct. 762, 765, 85 L. Ed. 1049 (1941).
After hearing and upon careful consideration of the prevailing law, we conclude that the right of political expression, no matter how unpopular, is superior to the right of the Commission to deny the use of John F. Kennedy Plaza to the plaintiffs for expression of their views.
At the hearing before this Court, the Director of the Fairmount Park Commission testified that the Plaza was not designed for political rallies. Exhibit 4,
however, attached to plaintiffs' complaint disclosed that on September 9, 1968 "Citizens For Humphrey" conducted a political rally from 11:30 A.M. to 1:30 P.M., which was attended by 5,000 to 7,000 persons.
The anticipated obstruction of traffic, littering of the Plaza and possible damage to trees, shrubs and lamps will not support an absolute prohibition of political rallies on the premises. Wolin v. Port of New York Authority, 392 F.2d 83, 91 (2 Cir.1968) cert. denied 393 U.S. 940, 89 S. Ct. 290, 21 L. Ed. 2d 275 (1968).
The fact that some misguided participants or spectators at the rally may "turn in" their draft cards, as symbolic of their disapproval of the Vietnam War, does not justify the denial of the right of citizens to express views which may provoke such conduct. Any individual who, by his voluntary act, surrenders his draft card, can be effectively prosecuted under existing federal law. That potential provocation may result from heated debate is not a valid reason to preclude discussion. Wolin v. Port of New York Authority, id. 92.
The right of free speech, though sacred to our ordered sense of liberty, is not unrestricted. The rights of free speech and assembly "do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time." Cox v. Louisiana, 379 U.S. 536, 554, 85 S. Ct. 453, 464, 13 L. Ed. 2d 471; Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969) (dissenting opinion of Mr. Justice Black).
While we think it would be more desirable to remand this proceeding to the Commission to draft appropriate regulations to govern the conduct of the proposed rally, the record discloses that the Commission has been unduly dilatory in dealing with this matter. Prior to the present application for a permit, the Director of the Commission, as a general rule, issued the permits as an administrative practice. Only when he felt that a "policy" decision was involved, did he refer a permit request to the full Commission.
Regulation 10 of the Commission's "Personal Regulations",
invests the Commission with the complete and unrestricted power to deny a permit "for * * *." No ascertainable standards are a meeting for an unlawful purpose set forth to render the term "unlawful" capable of objective and even-handed regulation. Application of the present standard appears to depend essentially on the subjective feelings of the respective members of the Commission. Clearly, this regulation as applied in this case is unconstitutional.
"It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official - as by requiring a permit or license which may be granted or withheld in the discretion of such official - is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms." Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 89 S. Ct. 935, 938, 22 L. Ed. 2d 162 (March 11, 1969).