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April 2, 1980


The opinion of the court was delivered by: Moran, District Judge.


I. Background

University of Illinois, Circle Campus is a publicly owned and operated commuter school which includes classrooms, administration buildings, recreation areas and parking facilities. The student union, known as Circle Center, is described in the University's student handbook as "the hub of campus activities." The Center contains a wide variety of facilities, including lounges, four food service areas, recreational facilities, the main bookstore, a travel agency, a post office, student organization offices and meeting rooms for campus and community functions. The general public is invited to numerous lectures, forums and discussions in the Center. Recent studies show that the Center is used by 10,000 persons each day. Persons entering the Center need not show any student identification.

Registered student organizations are permitted to reserve booths from which they may conduct discussions with and distribute literature to passersby in the main lobby on the second floor of the Center. A large number of people frequent the area since it is situated immediately outside one of the public food service areas and at the head of the escalators. The University requires that membership in a registered student organization be limited to students, faculty and staff of the Circle Campus. To become a registered student organization, the group must submit a statement containing the name, purpose, membership requirements of the organization, officeholders, the number of members, and a faculty supervisor. There are over 190 registered student organizations on Circle Campus, including the Spartacus Youth League (SYL). Status as a registered student organization entitles the group to money from a Student Activities Fund.

In July, 1975, the University promulgated various regulations outlining the manner in which goods and literature could be distributed. [See Appendix]. The regulations specified that free printed materials could only be distributed by students, faculty or staff of Circle Campus. The material was required to bear the name of the issuer and the distributor was required to furnish identification upon request. Distribution in Circle Center was confined to assigned booths or to an area near the escalators.

University regulations also discussed the sale of materials. Sales of merchandise were generally prohibited, except in designated University shops. All salesmen and vendors were required to obtain prior authorization to be present on campus. Registered student organizations had somewhat greater latitude. They were permitted to sell publications and engage in fund-raising. Sales of publications, however, required advance written approval, necessitating submission of a statement describing the name of the organization, the date of the sales, the things to be sold, and the names of the sellers. In 1975, only University students and personnel were permitted to sell items on behalf of registered student organizations. All proceeds of sales and other fund-raising activities were required to be deposited in a University account under the organization's name.

On several occasions in the fall of 1977, defendants McKay and Delaney warned John that he could not distribute SYL's political literature because he was not a student, faculty or staff member of the University. The defendants state that they sought to prevent John from selling literature in the Center lobby. In his affidavit, John states he was told that he could not distribute literature either with or without charge at Circle Center or elsewhere on the campus.

On November 22, 1977, Mr. Rothenbaum and Mr. Delaney of the University staff, asked John to stop selling newspapers on the second floor. John refused and Delaney phoned the campus police. Officer Mel Walker told John he would be arrested for criminal trespass unless he discontinued his sales activities. John maintained that the regulations violated his constitutional rights, and stated his intention to continue selling newspapers in the lobby. Walker then arrested John and escorted him to Chicago police headquarters, where Rothenbaum signed a criminal trespass complaint against him.

Acting on the University's complaint, the State's Attorney initiated a criminal misdemeanor action charging John with criminal trespass to state-supported land, 1977 Ill. Rev.Stats., Ch. 38 § 21-5. On August 15, 1978, Judge John McDonnell dismissed the complaint, resting his decision on the ground that the University regulations prohibiting distribution of literature by persons who are not students, faculty or staff were unconstitutional as applied to John's conduct. Judge McDonnell also found that the Circle Center lobby was a "public forum" within the meaning of Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) and thus subject to the requirements of the First and Fourteenth Amendments.

The plaintiffs filed suit in this court on April, 1978, and sought a preliminary injunction enjoining enforcement of the challenged regulations. Before that motion was decided, the University of Illinois on December 19, 1978 amended their regulations to permit distribution of literature by persons like John, who although not themselves students, faculty or staff of the University, wish to distribute literature on behalf of registered student organizations.*fn1 In January, 1979 the defendants filed a motion to dismiss the complaint as moot, in light of the amended regulations.

The plaintiffs filed their first amended complaint on May 21, 1979, joining three additional plaintiffs and seeking a preliminary injunction. The party plaintiffs now include the Spartacus Youth League and four individual party plaintiffs: 1) Sandor John, a non-student affiliate of SYL, a registered student organization, 2) Nay Foggs, a student and member of a registered student organization, 3) Thomas Tank, a student but not a member of any registered student organization and 4) Susan Pickgrobe, a non-student without any affiliations with Circle Campus.

In their amended complaint and motion for a preliminary injunction, the plaintiffs argue that the Circle Center and the outdoor walkways on campus are public forums deserving the highest constitutional protection and that the University regulations go beyond permissible controls on the time, place and manner of speech activities in public forums by discriminating between speakers based upon their status as University insiders or outsiders. They further contend that the insiders and "non-University agents" face written permission and identification requirements which are vague, overbroad and abridge their rights to freedom of speech and association. They argue that since any attempted distribution will subject the plaintiffs to possible arrest, criminal prosecution or harassment, the regulations have a chilling effect on the exercise of their rights and that irreparable injury caused by these restrictions justifies preliminary relief.

In response to the plaintiffs' motion, defendants argue that the standards for issuance of a preliminary injunction have not been met. The defendants state that the plaintiffs have not alleged that they have refrained from the distribution and sale of written materials at the Circle Center or on Circle Campus. Absent such attempts and official enforcement of the regulations, defendants say that the plaintiff's challenge does not present a controversy that is ripe for judicial decision. They urge that the plaintiffs have not shown a likelihood of success on the merits. While some portions of Circle Campus may be devoted to public purposes, they contend, it is not a quintessential public forum with unlimited public access.

In this case, according to the defendants, the minimal injury to the plaintiffs caused by the prohibition on non-member sales is outweighed by the University's interests in 1) protecting the educational character of the campus from an invasion of outside commercial vendors and 2) protecting the treasuries of student organizations from potential looting by persons who are outside the University's supervisory powers. They further contend that the identification and written permission requirements are reasonable in light of the special needs of the University. Finally, defendants urge that disputed factual issues must be resolved in an evidentiary hearing before an injunction may issue.

Before reaching the merits of this claim, the court will consider two preliminary matters. The Illinois state court addressed some of the same factual and legal issues that are presented here when it dismissed criminal trespass charges against Sandor John. That court considered whether the Circle Center lobby is a public forum for First Amendment purposes and whether University regulations on literature distribution in that area contravened John's right of free speech and assembly. The University regulations as applied to John were changed after that decision. This court will consider whether that action has a preclusive effect on the defendants to the present action. Federal courts have recognized that a prior state judgment may work an estoppel in a subsequent § 1983 action brought in federal court. Heidelberg v. Hammer, 577 F.2d 429, 432 n.1 (7th Cir. 1978). The applicability of collateral estoppel principles to federal cases is a byproduct of a federal statute, implementing the full faith and credit clause of the Constitution, which requires federal courts to give a prior state judgment the same conclusive effects as would the courts of that state. 28 U.S.C. § 1738; see Winters v. Lavine, 574 F.2d 46, 54 (2d Cir. 1978). Under this section, a federal court must look to state law to determine the scope of the estoppel. Under Illinois law, the doctrine of collateral estoppel operates to bar relitigation of issues of fact or law which were actually decided in and necessary to the prior judgment, even if the second suit is based on a different cause of action. See People v. Borchers, 67 Ill.2d 578, 10 Ill.Dec. 346, 367 N.E.2d 955 (1977). However, for the doctrine to apply, the parties as well as the issues in the two lawsuits must be the same. People v. Williams, 59 Ill.2d 557, 322 N.E.2d 461 (1975). The defendants in the present action were not parties to the state criminal proceeding, and did not have a full and fair opportunity to defend the constitutionality of the University regulations. Therefore, collateral estoppel does not apply to foreclose relitigation of the constitutional issues.

Nonetheless, even though there is no formal estoppel, the state court judgment provides authority supporting plaintiffs' claim that they have a probability of success on the merits of their action. Given the state court's perhaps primary interest in enforcing state criminal laws, and the presumption of regularity which may attach to the policies of a major university, the state court's acceptance of John's constitutional theories will be considered by this court.

II. Justiciability

This court must also consider defendants' arguments that plaintiffs lack standing to maintain this action and that the controversy is not ripe for judicial action. Both contentions fall under the rubric of justiciability. The defendants assert that the plaintiffs have not been injured by University regulations since none has alleged that he or she has refrained from the distribution and sale of written materials at the Circle Center. Other than John, none has ever been prosecuted, charged or arrested under University regulations. In defendant's view, the plaintiffs' action is no more than "a search of state statutes and city ordinances [or University regulations] with a view to picking out certain ones that . . . might possibly be used by the authorities as devices for bad-faith prosecutions." Boyle v. Landry, 401 U.S. 77, 81, 91 S.Ct. 758, 760, 27 L.Ed.2d 696 (1971).

Plaintiffs argue, on the other hand, that their First Amendment rights have been chilled by the existence of the challenged regulations, the threat of their enforcement and the knowledge of John's arrest for exercise of those rights.

The standard for justiciability determinations is ". . . whether the facts alleged . . . show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant . . ." judicial review. Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). The test is an imprecise one, with only the opposite poles of the factual continuum providing clear guidance. A plaintiff need not invariably wait until he has been directly subjected to a law or policy before he brings a judicial challenge, but he cannot go to court simply by showing that a regulation exists and that he believes it will be enforced against him. National Student Association v. Hershey, 412 F.2d 1103, 1110 (D.C.Cir. 1969). Between these principles fall the majority of the cases, where the probability of several contingencies must be evaluated on a case-by-case basis: ". . . the likelihood that the complainant will disobey the law, the certainty that such disobedience will take a particular form, any present injury occasioned by the threat of prosecution, and the likelihood that a prosecution will actually ensue." Regional Rail Reorganization Act Cases, 419 U.S. 102, 143 n.29, 95 S.Ct. 335, 358, 42 L.Ed.2d 320 (1974).

In the First Amendment area, however, a somewhat relaxed standard of uncertainty is applicable. Injury to First Amendment rights may result from the threat of enforcement itself, since it may chill the plaintiff's ardor and eliminate his desire to engage in protected expression. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); 13 Wright, Miller & Cooper, Federal Practice & Procedure § 3532, at 245 n.29 (1975). "The threat of sanctions may deter their [First Amendment rights'] exercise almost as potently as the actual application of sanctions." Dombrowski v. Pfister, supra; NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). Although not every chill will create a justiciable controversy, it may be enough that the plaintiff raises "a credible threat of enforcement and plausible allegations of intent or desire to engage in the threatened activities . . ." Hershey, supra, 412 F.2d at 1111-12; see also Thoms v. Heffernan, 473 F.2d 478, 483-85 (2d Cir. 1973), vacated and remanded on other grounds 418 U.S. 908, 94 S.Ct. 3199, 41 L.Ed.2d 1154 (1974); Smith v. Boyer, 442 F. Supp. 62 (W.D.N.Y. 1977).

The present suit involves four individual plaintiffs. Each desires to distribute literature but believes that the University regulations unconstitutionally infringe upon their First Amendment rights. To distribute literature under these circumstances would require them to submit to what they believe are unconstitutional regulations or risk prosecution by failing to comply with them. Each is aware of John's arrest and the University's intent to enforce its own regulations. Each fears the expense, risk, humiliation and impairment to his or her livelihood which would result from the enforcement of the regulations against them.

Plaintiff Susan Pickgrobe has no University affiliations and is not a member of any registered student organization. The regulations clearly prohibit her distribution of literature on Circle Campus. A request to distribute materials would be futile in light of the clear ban which the regulation provides. This court finds that there are sufficient facts to create a justiciable controversy concerning the regulations prohibiting her distribution of free and paid literature on campus.

Both Nay Foggs, a student member of an unnamed registered student organization and Sandor John, a non-student member of SYL, may distribute literature by adhering to University regulations which require them to receive written permission and divulge organizational affiliations. Based upon their representations, this court finds that the regulations regarding the manner of distribution of literature sufficiently ripe for decision.

Thomas Tank, a student at Circle Campus, is not a member of any registered student organization. In his affidavit, he states that he is prohibited from distributing literature anywhere on campus. The defendants represent that he may distribute free literature without membership in a registered student organization but may not sell literature. Tank alleges a chilling effect from these regulations which this court will consider.

III. Standards for issuance of a preliminary

Defendants argue that plaintiffs have not satisfied the standards for issuance of a preliminary injunction. A preliminary injunction will not issue unless plaintiffs establish: 1) that they have a substantial likelihood of success on the merits; 2) that they will be irreparably injured if preliminary relief is denied; 3) that others will not suffer serious adverse effects if relief is granted and 4) that the ultimate public interest lies in the protection of the constitutional rights which plaintiffs assert. Wynn v. Scott, 448 F. Supp. 997, 1001 (N.D. Ill. 1978); aff'd sub nom. Wynn v. Carey, 582 F.2d 1375 (7th Cir. 1978); Illinois Migrant Council v. Pilliod, 398 F. Supp. 882, 901 ...

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