Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 73 C 758 Richard B. Austin, Judge.
Swygert, Chief Judge, and Maris*fn* and Cummings, Circuit Judges.
This is an appeal by the defendants from an order of the district court enjoining them from preventing the plaintiffs from distributing literature to servicemen and the general public in the terminal buildings at O'Hare Airport, Chicago, except as to the areas immediately leading to the arrival and departure gates.
The plaintiffs, the Chicago Area Military Project, an unincorporated nonprofit organization located in Chicago and known as CAMP, and four of its members and associates brought the suit against the defendants, the City of Chicago and the Mayor, Superintendent of Police, and Commissioner of the Department of Aviation, of the City, claiming that actions by the defendants and their agents and employees in prohibiting the plaintiffs from passing out literature within the terminal buildings at O'Hare Airport deprived them of the rights of free speech, free press, and peaceable assembly guaranteed them by the federal constitution. The plaintiffs' complaint sought an injunction restraining the defendants from further depriving them of these rights and a declaration that the defendants' practice and acts were in violation of the Constitution and that their own conduct in distributing literature was protected by the First and Fourteenth Amendments. An amended complaint was filed including a second count, claiming damages, which is not involved in this appeal.
The district court granted a temporary restraining order. Subsequently a preliminary injunction was issued which on appeal this court vacated for failure of the district court to state its findings of fact and conclusions of law as required by Rule 52(a) of the Rules of Civil Procedure and because the injunction lacked the specificity required by Rule 65(d). 492 F.2d 1246. In response to our mandate the district court thereafter stated findings of fact and conclusions of law and entered an order enjoining the defendants and their agents and employees from "obstructing plaintiffs engaged in leafletting or otherwise distributing CAMP NEWS or other literature within the terminal buildings (not to include the 'fingers' leading to the arrival and departure gates) of O'Hare Field Airport." This order has been treated by the parties as a permanent injunction and we shall so regard it. From the order granting this injunction the defendants took the appeal now before us.
It appears that the plaintiff CAMP publishes a monthly newspaper called CAMP News (News of the GI Movement) which is primarily directed to members of the military forces but is also distributed to the general public. It carries news of the "GI Movement", news of recent legal and political developments pertinent to military personnel and news of a general nature. One of the methods used to disseminate CAMP News is to hand out free copies at O'Hare Airport to individuals, particularly servicemen, who desire to receive them.
O'Hare Airport, located within the limits of the City of Chicago, is owned by the City and administered by the City's Department of Aviation. It is a two-or-three-minute drive from the nearest residential area, a thirty-minute drive from the Chicago downtown area with which it is connected by major expressways and is served by bus lines and taxicabs. Private automobiles are accommodated in massive public parking lots. Leased space in the airport terminal buildings houses numerous concessionaires including restaurants and shops of every description. Seventy-two departure gates handle more than 100 flights per hour during peak periods. Approximately 20,000 persons are employed at the airport and a total of 100,000,000 passengers, persons accompanying them, and employees, use the facility each year. The district court found as a fact that large numbers of persons in the military service use the airport, many without ever leaving the terminal buildings, merely changing flights there for other locations.
At 6:00 p.m. on Sunday, March 11, 1973 Truman Walker, an associate of CAMP, and Steve Romanowski, a member, commenced distributing CAMP News to servicemen in one of the O'Hare Airport terminal buildings in the general area of the check-in counters but somewhat removed from the lines of persons waiting to be served at the counters. They did not approach anyone in a line. Approximately an hour later they were told by a plain-clothes policeman and subsequently by a uniformed Chicago police officer that leafletting was not permitted and that if they persisted in their activity, they would be arrested. The two then informed five other leafletters who were distributing the newspaper in the waiting areas in other terminal buildings what had transpired and all left the airport. One of the plaintiffs testified that he stopped leafletting because his family responsibilities were such that he could not afford being arrested.
The municipal regulation, admittedly unwritten, which the defendants enforced against the plaintiffs had been in existence since before the opening of the present terminal buildings at O'Hare Airport. It appears that it was orally promulgated by the Director of Airports of the City prior to June 1, 1956 and, in the words of the Director, it provided in substance that
"no person shall be permitted to picket, sell anything (except for authorized concessionaires or lessees, and they only at assigned spaces) distribute literature of any nature, or solicit or collect contributions within any building at any airport operated by the City of Chicago."
The defendants assert that this oral regulation was promulgated under the authority of sections 8.2-2 and 37-4 of the Municipal Code of the City of Chicago and of the prior ordinances codified in those sections, and that it is enforceable under section 193-1.4(b) of the Code. Section 193-1.4 is in pertinent part as follows:
"193-1.4. A person commits trespass when he knowingly:
(b) Remains upon the property, or any part thereof, of another after receiving notice, either oral or written, from the ...