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November 6, 1981


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


On October 16, 1981, this Court issued a temporary restraining order, which was stayed until October 17, 1981, requiring that the defendants and those acting in concert with them remove the structures and other paraphernalia that they had erected, wood that they had stockpiled, and burning barrels that they had placed on the premises owned and operated by the Federal Aviation Administration ("FAA") at the Air Route Traffic Control Center in Aurora, Illinois, and further requiring that defendants refrain from engaging in the activity outlined in the order pending a determination on the merits in the context of a preliminary injunction hearing scheduled for October 21, 1981. At the request of defense counsel, the preliminary injunction hearing was rescheduled for October 27, 1981, and the temporary restraining order was continued to that date by consent. Proceedings were had on the preliminary injunction on October 27, 28,*fn1 and November 4, 1981.*fn2 On the basis of the evidence adduced at the hearings and the arguments of counsel, the Court is now prepared to enter a preliminary injunction restricting the place and manner of the picketing at the Aurora facility as set forth fully below.

At the outset, defendants contend that the property upon which the picketing and other activities are taking place outside the Aurora facility is subject to an easement in favor of the City of Aurora and, thus, that although the property is concededly owned by the federal government, it is subject to the "control" of the City of Aurora. As a result, according to defendants, the government has no right to complain about the activities on the property occupied by the picketers. Defendants' argument does not withstand analysis.

It is undisputed that on August 3, 1964, the FAA granted to the Aurora Township Road District an easement "for the purpose of a public road, but for no other purpose" and that the picketing and other activities being conducted by the PATCO defendants outside the Aurora facility are occurring on the property that is subject to the easement in favor of Aurora. But it does not necessarily follow that the government has no right to complain about the defendants' activities solely because they are occurring on property that is subject to an easement in favor of a local body. First, the easement was granted for a limited purpose and the FAA and the federal government retain the right of access to the property and, more importantly, the right to have unimpeded use of the property upon which the Aurora facility is located. Secondly, even if the existence of the easement is somehow relevant to the government's right of control over that property, there is no authority for the proposition that this precludes the government from complaining about the activity on the easement if such activity should interfere with the health and safety of FAA employees or the efficient operation of the FAA facility. Accordingly, the fact that the picketing and other activities are occurring on property owned by the federal government but subject to an easement in favor of the Aurora Township Road District has no effect upon the merits of the pending motion for a preliminary injunction.

Another threshold matter concerns the scope of the preliminary injunction hearing. Throughout the proceedings held on October 27, 28, and November 4, 1981, defense counsel objected to the introduction of any evidence that did not bear directly on the structures or burning barrels that had been placed outside the main gates of the FAA facility in Aurora by defendants on the ground that such evidence was beyond the scope of the proceedings. However, the preliminary injunction proceedings had never been contemplated as being of such a limited nature.*fn3 On October 16, 1981, the government moved for an order that would require defendants to remove the structures that had been erected at the Aurora facility and the wood they had stockpiled, prohibit the setting of fires in barrels or otherwise, and "prohibit any activity which could be characterized as creating a `battle line' atmosphere at the Chicago Center." In outlining the perimeters of the preliminary injunction hearing during the course of our opinion on October 16, 1981, the Court said, "[a]t that time, the Court expects the government to be prepared to proceed with evidence as to the potential and actual dangers engendered by the defendants' activities at the Aurora facility." United States v. Phillips, 527 F. Supp. 1340 at 1343 (N.D.Ill. 1981). Thus, the preliminary injunction hearing was intended to encompass not only the issue of the structures and burn-barrels, but also the government's allegations that the totality of defendants' activities outside the Aurora facility threatened the efficient operation of the Aurora facility and the health and safety of FAA personnel. Accordingly, we proceed to a discussion of the merits of the government's motion for preliminary injunctive relief.*fn4

In order to support the entry of a preliminary injunction, the movant must show the existence of irreparable harm and the absence of an adequate remedy at law, a probability of ultimate success on the merits, that the threat of harm to the movant outweighs the harm that would result to the opposing party should the injunction issue, and that the public interest will not be disserved by the granting of injunctive relief. Fox Valley Harvestore, Inc. v. A.O. Smith Harvestore Products, Inc., 545 F.2d 1096, 1097 (7th Cir. 1976); Ohio-Sealy Mattress Manufacturing Co. v. Duncan, 486 F. Supp. 1047, 1052 (N.D.Ill. 1980). In the case at bar, these requirements are clearly met.

During the course of the three days of hearings just concluded, the government presented a fair amount of evidence in support of its charges that the defendants'*fn5 activities at the Aurora facility seriously jeopardize the government's legitimate interest in the efficient operation of the facility and the health and safety of FAA personnel who work there. The Court heard testimony from working controllers who described their passage through the defendants' encampment at the facility on a daily basis. The police barricades containing the picketers are set flush with the roadway and main driveway, which is about 24 feet in width. The picketers have tended to remain on the southwest side of the main driveway and the agreed order limits their number to 30, with a mass picketing of 500 permitted once a week upon appropriate notice to the United States Marshal. The testimony also indicated that the picketers yell obscenities at persons entering and leaving the facility, that nails have been strewn on the driveway, that objects have been thrown at cars entering or leaving the facility, that physical confrontations have occurred between picketers and FAA employees, and that the net effect is akin to having to "run the gauntlet" in order to get into or out of the facility during a shift change. FAA personnel also testified that when the shanties and lean-tos that defendants had erected were standing, their ability to see the traffic on Indian Trail Road immediately to the south of the facility intersecting the main driveway was impaired by the structures as well as by the persons clustered about when they drove down the main driveway away from the facility. Although there have been no traffic accidents so far, the testimony indicated that danger of such a possibility exists.

There was also testimony to the effect that statistically the greatest likelihood of controller error exists during the first 30 minutes after a controller assumes his or her position. Several controllers testified that they have been nervous and under considerable stress since the defendants set up camp at the entrance to the facility and that they feel that their job performance has or may suffer as a result. At least one controller had to be relieved of his position soon after he reported for work because, in his supervisor's view, he was too agitated to properly handle his duties as a result of his encounter with the picketers outside the facility. One controller testified that he and his wife, also a controller, try to get to work early so that they can calm down before beginning their duties and leave late to avoid confrontations with the picketers outside the facility during the unusually active period around the shift changes.

As defense counsel stated during his closing argument before the Court, tempers and emotions have tended to run high on both sides of this dispute as the confrontation between PATCO and the FAA continues into its fourth month. The totality of the evidence presented during the hearing indicated the potentially volatile situation outside the Aurora facility during the period prior to the issuance of the temporary restraining order on October 16, 1981, and continuing to some extent thereafter. The Court is satisfied that the government has met its threshold burden of showing that it may suffer irreparable harm if defendants' activities are not restricted in some way, consistent with the principles embodied in the first amendment.

It is firmly established that picketing is expressive activity entitled to first amendment protection. Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 2289, 65 L.Ed.2d 263 (1980); Police Department of Chicago v. Mosley, 408 U.S. 92, 98, 92 S.Ct. 2286, 2291, 33 L.Ed.2d 212 (1972); Thornhill v. Alabama, 310 U.S. 88, 102, 106, 60 S.Ct. 736, 744-46, 84 L.Ed. 1093 (1940). This is not to say that all forms of picketing must always be allowed. Courts have consistently upheld reasonable time, place and manner restrictions on picketing necessary to further significant governmental interests. Mosley, supra, 92 S.Ct. at 2291; Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2303-04, 33 L.Ed.2d 222 (1972); Concerned Jewish Youth v. McGuire, 469 F. Supp. 1296, 1299 (S.D.N.Y. 1979); National Treasury Employees Union v. Fasser, 428 F. Supp. 295, 298, (D.D.C. 1976). The test to be applied when speech and nonspeech elements are combined in the same act as set forth by the Court on United States v. O'Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). Thus, a restriction will be upheld if it (1) furthers an important government interest (2) unrelated to the suppression of expression, and (3) the incidental restriction of protected first amendment activity is not greater than is essential to the furtherance of the government interest. See National Treasury Employees Union, supra, 428 F. Supp. at 298. Where the government can further its interest by a lesser restraint at little or no added inconvenience to the first amendment rights of the picketers, it must do so. United States v. Robel, 389 U.S. 258, 267-68, 88 S.Ct. 419, 425-26, 19 L.Ed.2d 508 (1967).

The balance of the hardships in this case, along with the public interest, also strongly favors the entry of some sort of injunctive relief limiting the activities of the picketers at Aurora. As we indicated earlier in this opinion, the current state of affairs at the Aurora facility constitutes a substantial threat to the efficient operation of the facility and the health and safety of FAA personnel who must pass through the area occupied by the defendants each day on their way to and from work. The defendants can claim no hardship if their speech is allowed to continue and be heard, subject to reasonable restrictions necessary to the furtherance of legitimate governmental interests. As the court said in National Treasury Employees Union v. Fasser, 428 F. Supp. 295, 298 (D.D.C. 1976), "[s]topping the disruption of Government services justifies an incidental limitation on First Amendment freedoms." In the context of the case at bar, informational picketing that is limited in place and focus, and which does not interfere with the operation of the FAA facility at Aurora or endanger FAA personnel, is permissible under the terms of the agreed order*fn6 under which the parties have been operating and the first amendment.

As we stated earlier, the government has not shown any legitimate interest in denying defendants shelter or heat in connection with their vigil at the Aurora facility as long as the shelter and heating element do not constitute a safety hazard or interfere with the operation of the FAA facility. In fact, during the preliminary injunction hearing, defense counsel suggested that an adequate alternative to the shanty, lean-to and burn-barrel that defendants had put on the property would be a tent and a clean burning kerosene camping heater. Accordingly, the Court will allow the defendants to have a tent and a kerosene heater provided that they are placed at the distances from the main driveway and Indian Trail Road indicated below.

The Court finds it necessary to limit the placement of the tent and the heater in order to reduce the possibility of any physical confrontation between the picketers and the FAA personnel and to assure an unobstructed view of the intersection of Indian Trail Road and the main driveway to the FAA facility. The testimony at the hearing indicated both the danger of such physical confrontations and the obstruction of the view due to the shelters themselves and the clustering of people around the shelters and the burn-barrel. In order to further assure that the view of traffic will be unobstructed and to further defuse a potentially volatile situation, the Court will also order that the barricades that are currently placed at the edge of the main driveway and Indian Trail Road be set back from the roadway and the driveway.

Accordingly, the government's motion for a preliminary injunction is granted.*fn7 It is further ordered that:

1. The barricades currently resting at the western edge of the main driveway and the northern edge of Indian Trail Road be moved to a point at least eight feet back from the road and the driveway;

2. At a point not less than 100 feet to the west of the main driveway and not less than eight feet from Indian Trail Road, defendants may place a tent for the purpose of providing some shelter during the inclement weather. The tent shall not ...

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