offense to participate in any parade or procession or other public demonstration without first obtaining a permit from the city commission and authorizing the members of the commission to refuse a permit if required to by "public welfare, peace, safety, health, decency, good order, morals or convenience," is unconstitutional, since it subjects the exercise of First Amendment freedoms to the prior restraint of a license without narrow, objective, and definite standards to guide the licensing authority.
Having delineated the scope of First Amendment protection as set forth in Murdock and Shuttlesworth, it is now necessary to examine those procedural safeguards which have been deemed essential in order to effectuate the Constitutional dictates of those decisions. In Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965), it was held that a process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under the following standards designed to obviate the dangers of a censorship system: 1) the burden of proving that the film is unprotected expression must rest on the censor; 2) the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film; 3) any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution; and, 4) the procedure must assure a prompt final judicial decision. The Constitutional policy underlying Freedman is even more compelling when the subject matter of dissemination concerns religious practice rather than entertainment. ISKCON v. Eaves, (N.D. Ga. May 3, 1976).
Bearing in mind the preceding fundamental Constitutional precepts arising under the First Amendment, we now turn to a review of the Constitutionality of the relevant provisions of defendants' new ordinance.
The provisions at issue are contained in Section 9(B) of the ordinance. (See Appendix B.) The initial provisions of 9(B)(1) and (B)(2) itemize inter alia the desired purposes and goals of the legislation. While the purpose stated is a salutary one, the substantive provisions are in many instances overly restrictive of First Amendment freedoms. Adoption for a salutary purpose will not save what is otherwise a Constitutionally deficient regulation of expression. Cf. ISKCON v. Rochford, 425 F. Supp. 734 (N.D. Ill. 1977).
The first area of the ordinance which is Constitutionally suspect is the permit procedure of 9(B)(3) through 9(B)(5). Under these provisions no person or organization desiring to distribute literature or solicit funds for non-profit religious purposes may do so within the airport unless a permit is obtained from the Director of Aviation. The fee for such a permit is $10.00 per day and only two permits for any one day may be issued.
It is beyond dispute that a tax laid specifically on the exercise of one's First Amendment Constitutional rights is itself unconstitutional. Murdock v. Pennsylvania, supra. As stated in Murdock, "freedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way." Murdock, supra 319 U.S. at 111. The payment of $10.00 per day would guarantee that many people could not afford to exercise their Constitutional rights. A muting of Constitutional expression is both inevitable and intolerable when conditioned on such a substantial financial obstacle. The $10.00 permit fee is therefore declared void.
Additionally, the provision limiting the number of permits to two a day is unduly restrictive of First Amendment rights. Religious beliefs should not be suppressed by an artificially low permit limit which is unrelated to the free and orderly functioning of the airport. The defendants have failed to demonstrate any necessity for a two permit restriction. Absent some showing of compelling need, First Amendment rights cannot be so easily relegated to such a minor role at the airport. Accordingly, the Director shall henceforth be authorized to issue six (6) permits for any day. Such a number, while admittedly arbitrary, more closely approximates the desired accommodation between First Amendment expression and orderly functioning of the airport.
Section 9(B)(4) provides that if a permit is denied, the applicant can appeal the decision within thirty days to the Board of County Commissioners. The issue is whether such an appellate procedure comports with the Constitutional safeguards deemed necessary in the First Amendment area.
The application of Freedman v. Maryland, supra, to the case sub judice results in the invalidation of Section 9(B)(4) insofar as it requires the applicant to initiate an appeal from the denial of a permit. Freedman is authority for the proposition that the County must either issue a permit or itself affirmatively seek court approval of their decision within a brief period. The rationale for such a position is that absent the County bearing the burden of initiating swift judicial review, the time-consuming appellate process will cause ISKCON followers to forego their right to appeal. Cf. Freedman v. Maryland, supra 380 U.S. at 54, 58. "Because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." Freedman v. Maryland, supra, at 57. Accordingly, the County must apply to a court of record having jurisdiction within ten days of the denial of a permit to obtain judicial review of such a restriction on ISKCON's First Amendment rights.
The last aspect of the permit procedure which necessitates judicial scrutiny is Section 9(B)(4)(A). That section sets forth the permissible reasons for the denial, refusal or cancellation of a permit. These reasons must be measured by the Constitutional yardstick of Shuttlesworth v. Birmingham, supra, to determine whether they set forth narrow, objective and definite standards for the guidance of the Director of Aviation.
Upon examination of the five reasons which can be the basis of a permit denial, we find all except 9(B)(4)(A)(4) to be Constitutionally proper.
In spite of plaintiffs' argument that 9(B)(4)(A)(1) and (3) are overbroad and vest standardless discretion in the Director of Aviation, we find that such provisions are sufficiently definite to comply with the First Amendment. As stated in ISKCON v. Eaves, F. Supp. (N.D. Ga. Dec. 27, 1976):
"Plaintiffs would have each of the disputed words in Section 9 clearly defined. However, all words are malleable and open to some interpretation and the cases construing limitations on First Amendment rights do not require definition upon definition, nor do they require that no discretion be vested in administrative officials. Condemned to the use of words, we can never expect mathematical certainty from our language."
Accordingly, 9(B)(4)(A)(1) and (3) can be stamped with the Constitutional imprimatur.
Plaintiffs attack 9(B)(4)(A)(5) alleging that under its terms the entire membership of ISKCON can be denied its First Amendment rights because of one member's violation of a rule or regulation of the airport. Presumably, however, applicants for permits will be the individual ISKCON followers and not the religious group as a whole. Thus, ISKCON would not be the agent or representative of the applicant but rather the applicant would be the agent or representative of ISKCON. Should the provision be applied in a manner to taint religious followers who have violated no rules or regulations, ISKCON retains the remedy of challenging such application before the court of record selected by the County as hereinabove set forth. On its face, however, 9(B)(4)(A)(5) is not Constitutionally defective.
Plaintiffs also attack Section 9(B)(4)(A)(2) on the ground that the Director of Aviation cannot be invested with the authority to determine if religious solicitation is fraudulent or bona fide. There is substantial support for plaintiffs' position in some of the High Court's holdings. Schneider v. State, 308 U.S. 147, 84 L. Ed. 155, 60 S. Ct. 146 (1939); Cantwell v. Connecticut, 310 U.S. 296, 84 L. Ed. 1213, 60 S. Ct. 900 (1940). Those decisions focused upon the undesirability of any licensing authority acting as a censor of First Amendment expression. They did not consider the procedural safeguards which were subsequently set up by the Court in Freedman v. Maryland, supra, vintage 1965. In light of the County's obligation to apply to a court of record having jurisdiction within ten days of the denial of any permit as directed by today's decision, the abrasiveness of the Director of Aviation's initial ruling on Constitutional freedoms is considerably diminished. Viewed in the context of Freedman's guaranteed judicial review, 9(B)(4)(A)(2) outlines a proper function of the Director of Aviation.
Section 9(B)(4)(A)(4), however, is clearly unconstitutional for failure to provide a narrow, objective and definite standard to aid the Director of Aviation. Shuttlesworth v. Birmingham, supra, invalidated an almost identical ordinance provision which allowed the City public officials to decide whether or not the granting of a permit served the public interest. Such a standard contains overly broad criteria which can only result in the Director of Aviation applying his own notion of the public interest. This provision is so completely amorphous that it cannot be sustained even with the realization that judicial review of its violations would occur within ten days. Accordingly, Section 9(B)(4)(A)(4) is hereby invalidated.
While Section 9(B)(7) overall is a proper implementation of the general guidelines set forth in Paragraph 4 of the December 2, 1975 Order of Court, 9(B)(7)(C) and (E) require a somewhat closer analysis.
Section 9(B)(7)(C) purports to restrict ISKCON activity to within ten feet of any area leased exclusively to a tenant of the airport. However, paragraph 3(c) of the Order of Court merely limits ISKCON evangelism when conducted at entrances or exits. This Court finds that interference with the operation of the airport should be the standard by which regulations are measured, rather than an arbitrary physical distance from specific airport areas. Accordingly, since defendants' regulation in 9(B)(7)(C) is inconsistent with the prior Order of Court and no showing of necessity as required by Paragraph 3(f) of said Order has been made, Section 9(B)(7)(C) is hereby declared invalid.
Section 9(B)(7)(E) prohibits the solicitation of funds by ISKCON members for 48 days of the year surrounding certain holidays and during the rush hours on Sunday, Monday and Friday. Section 9(B)(7)(E), like the ordinance in its entirety, is alleged to have been enacted by defendants pursuant to paragraph 3(f) of the prior Order of Court which provides for the enactment of "other reasonable rules and regulations." The prohibition of solicitation on holidays and during rush hours is patently unreasonable. It is precisely at these prohibited times that ISKCON's religious activities are likely to be most effective. The prohibition of 9(B)(7)(E) provides a forum for ISKCON's First Amendment expression only during periods when there are the least number of persons around to listen. The First Amendment was not designed to allow expression only when its effects are destined to be futile. Accordingly, Section 9(B)(7)(E) is hereby deemed an overly broad restriction on ISKCON's First Amendment rights and is henceforth invalid.
The last provisions of the ordinance which require comment are 9(B)(9) and 9(B)(10)(C). The initial problem with 9(B)(9) is that those areas which are therein defined as permissible for solicitation are characterized graphically on floorplan maps of the airport. These maps are confusing and fail to alert the public in general, and this Court in particular, as to which parts of the airport are allowable areas of solicitation. Accordingly, the term " area " used in 9(B)(9) cannot be restricted to its purported definition in 9(B)(8) until such time as the floor plans are made more readily understandable and this Court has had an opportunity to assess the validity of such restrictions.
Secondly, Sections 9(B)(9) and 9(B)(10)(C) require that solicitations occur only from designated solicitation booths and that any exchange of money must take place in such booths. This provision is likely to discourage contributions by requiring the traveler to go to a specific location if he desires to make a contribution. Most people are unlikely to go out of their way on their own initiative to make a contribution. Thus, the ISKCON members would be denied, or at least restricted in, the opportunity to solicit funds from those travelers who do not pass near the designated booth area. The defendants have asserted no justification for limiting ISKCON's First Amendment rights in such a manner. Accordingly, neither solicitation by ISKCON members nor exchanges of money can be confined to "solicitation booths."
"Amendment of Order"
Having conducted a seriatim review of the Constitutionality of defendants' ordinance, we must now confront a problem which is not specifically addressed in either the December 2, 1975 Order of Court or the subject ordinance. This Court is aware of a practice by ISKCON members whereby the solicitor will pin a flower on the prospective donor without his consent and prior to any indication that the prospective donor wishes to make a contribution. As a result, there have been altercations arising out of ISKCON's attempted solicitation of funds. Defendants have taken the position that these assault and battery matters are private actions and the assaulted person should be required to file a complaint before the local magistrate. Defendants' position is untenable because it ignores the realities of human behavior. Almost all travelers will elect to forego filing a complaint for an assault, which although it represents a continuing course of harassing conduct vis a vis the airport travelers, is minor in stature. Ratification of defendants' view would in effect sanction ISKCON's conduct and leave the transient group of airline passengers without a practical remedy. Accordingly, the December 2, 1975 Order of Court is hereby amended to include a provision prohibiting any physical contact by the ISKCON follower with the prospective donor unless said donor has either consented or already agreed to make a contribution.
"Motion for Contempt"
As it appears to this Court that defendants acted in good faith when enforcing the terms of the ordinance in dispute sub judice, plaintiffs' motion for a contempt judgment and costs of this proceeding will be denied.
The decision sub judice is an attempt to guarantee the protected rights of ISKCON under the First Amendment and at the same time allow the defendants sufficient latitude to enact reasonable regulations which will prevent undue interference with the transportation function of the airport. It must be remembered that each case is circumscribed by its facts and therefore we intimate no opinion whatsoever as to the Constitutionality of Section 9(A) of the defendants' ordinance which concerns commercial speech. It is this Court's hope that the defendants will use the guidelines set forth in today's Opinion to construct an ordinance which complies with the Constitutional directives of the First Amendment.
An appropriate Order will issue.
Hubert I. Teitelbaum United States District Judge
AND NOW, to-wit, this 23rd day of September, 1977, in accordance with the foregoing Opinion in the above-captioned case, IT IS ORDERED that defendants' motion to vacate the Court Order of December 2, 1975 be and the same is hereby denied; IT IS FURTHER ORDERED that defendants' new ordinance adopted by the County of Allegheny on July 21, 1977 with an effective date of September 1, 1977 be incorporated into the Court Order of December 2, 1975 pursuant to Paragraph 3(f) of said Court Order except for the following provisions of said ordinance which are held invalid for the reasons set forth in the foregoing Opinion:
(1) Section 9(B)(4)'s opening paragraph insofar as it purports to exact a $10.00 per day permit fee and insofar as it purports to require the applicant to initiate an appeal from a permit denial;
(2) Section 9(B)(4)(A)(4);
(3) Section 9(B)(7)(C);