decided as amended october 29 1982.: October 15, 1982.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Aldisert and Weis, Circuit Judges, and Edward D. Re, Chief Judge.*fn*
Invoking the First Amendment, the International Society for Krishna Consciousness, Inc. challenges a policy that prohibits outside organizations from soliciting money at the race track and stadium in the Meadowlands Sports Complex in New Jersey. Although the complex is owned by the state, we hold that it is not a public forum, and that the policy is reasonable. Consequently, die-hard football fans and railbirds may anticipate some bad days for their favorite teams and steeds, but the irritation will not be compounded by the importunings of those seeking contributions for special interest groups. We will affirm the order of the district court upholding the "no solicitation" policy.
The International Society for Krishna Consciousness, Inc., a religious body, brought this action for declaratory and injunctive relief under 42 U.S.C. § 1983. ISKCON contests the refusal by the New Jersey Sports and Exposition Authority to allow the Society's members to distribute literature and solicit donations at the Meadowlands. Two organizations whose teams play their home games at the stadium in the complex, the New York Football Giants, Inc. and the Cosmos Soccer Club, Inc., were later added as defendants. The district court denied plaintiffs' claims for preliminary relief and, after a comprehensive hearing, refused to grant a permanent injunction.
The New Jersey Sports and Exposition Authority was created by the state legislature in 1971 to construct and operate a sports complex, including a football stadium and racetrack, in the Hackensack Meadowlands. N.J. Stat. Ann. §§ 5:10-1 to 5:10-38 (West Supp. 1982-83). The certificate of incorporation establishes the Authority as "a public body corporate and politic, . . . an instrumentality of the State exercising public and essential governmental functions. . . ." Id. at § 5:10-4a. The authority is established in the Department of Community Affairs, id., and the Governor may veto any action that it takes. Id. at § 5:10-4 i.
After the stadium was built, the Authority gave a long-term lease to the New York Football Giants, and a license to the Cosmos Soccer Club, providing them with exclusive use of the stadium on designated days. The Authority and the two teams share the revenue from parking charges, admission fees and concession sales. On occasion, the Authority also leases the stadium for such events as high school and college football games, religious conventions, and commencement exercises.
The race track is operated directly by the Authority. It is located near the stadium, and the two structures share a parking lot. Although an admission fee is charged, parimutuel betting is the chief source of revenue from the track, and there are nearly 600 seller and cashier windows to facilitate the enterprise. As an added convenience, numerous closed-circuit television monitors inform the patrons of the shifting odds in the races.
Betting actually carries the entire Meadowlands project. It enables the Authority to meet its debt service and operating expenses. Without the race track proceeds, the Authority would be unable to pay its bond holders.
The Authority has adopted a policy prohibiting anyone from soliciting money or distributing literature at the complex. The ban does not apply to concessionaires selling souvenirs, programs, racing forms, or food and beverages. Other than that exception, the Authority's policy is uniform and non-discriminatory. All requests for permission to solicit funds or distribute literature have been refused. There are no booths or other structures available for use by outside groups.
ISKCON made two applications to the district court for preliminary relief which were denied for failure to demonstrate a probability of success on the merits. After a 15-day trial on the request for a permanent injunction, the court concluded that the Authority's policy is not unconstitutional.
In reaching this decision, the court found that "neither the race track nor the stadium is designed, built, intended or used as a public forum. The same is true of the blacktop automobile areas bordering them." The court also determined that the Authority's policy had a rational basis. The large crowds at the stadium and race track make free movement throughout the two structures and their surrounding areas essential. As the court observed, "for the size of the stadium . . . and the number of patrons present at one time, the structure is 'snug '. Minimum clearances are found in the seats, stairs and aisles. . . . The parking area fills up to its outer boundaries. It empties with remarkable speed. . . . The same is true of the race track, although here there is a further aspect of prime importance, and that is not to allow any kind of interference with the pari-mutuel betting activity which is the life blood of the whole project."*fn1
The private defendants, the Giants and the Cosmos, were joined at the direction of the judge who heard the request for a temporary restraining order. In its final adjudication, the district court, 532 F. Supp. 1088, apparently found that the two clubs were entitled to judgment for ...