Although invited to do so at the hearing on plaintiffs' motion for a temporary restraining order on January 25, 1989, the city has not submitted any factually supported affidavits to establish their conclusory assertion that the newsboxes in Terminal 3 pose a threat to public safety. American submitted testimony from a New Jersey case to show that newsboxes create a general security risk, without reference to the specific circumstances presented by this case. Plaintiffs submitted the affidavit of John R. Baber, an independent security consultant who has had extensive training in terrorist activity as a former supervisor with the Federal Bureau of Investigation in Chicago. Baber is familiar with O'Hare and Terminal 3 and also has consulted other security experts familiar with airport and airline terrorist incidents. It is Baber's opinion that newsboxes within the secured H and K concourse areas of Terminal 3 do not present a significant security threat or risk. This is because newsboxes are subject to random and frequent access by the public and newspaper distribution personnel, in contrast with other containers in public areas where explosives could be hidden and not discovered quickly, such as coin-operated lockers, recessed trash receptacles, fire extinguisher closets and luggage carts. The FAA database and other historical data do not indicate that an explosive device has ever been hidden in an airport newsbox.
Newsboxes may be designed and configured to provide complete viewing of the interior and contents, thus eliminating concern that they may be used as a place for secreting explosive devices or other contraband. Plaintiffs have offered to redesign and reconfigure their newsboxes to meet defendants' security concerns and to maintain their newsboxes in locations that do not impede pedestrian traffic.
The parties dispute the extent to which the average daily sales of plaintiffs' newspapers were affected by American's seizure and relocation of plaintiffs' newsboxes from January 5, 1989 to January 25, 1989. A reasonable inference may be drawn from plaintiffs' affidavits that sales decreased a significant degree, although the court is unable to make a precise determination based on the current state of the record.
CONCLUSIONS OF LAW
This action arises under 42 U.S.C. § 1983 and the First and Fourteenth Amendments to the United States Constitution. The court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §§ 1331, 1343 and 2201 et seq.
The First Amendment protects the means of newspaper distribution as well as the content and ideas expressed in newspapers. The right to distribute and circulate newspapers includes use of newsboxes or newsracks. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S. Ct. 2138, 2150, 100 L. Ed. 2d 771 (1988); Chicago Newspaper Publishers v. City of Wheaton, 697 F. Supp. 1464, 1466 (N.D. Ill. 1988); Miller Newspapers, Inc. v. City of Keene, 546 F. Supp. 831, 833 (D.N.H. 1982).
The standard applied in determining whether a total ban against newsboxes is constitutionally permissible depends upon whether the K and H concourses of Terminal 3 are classified as a public or a nonpublic forum for the activity involved. Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 107 S. Ct. 2568, 2571, 96 L. Ed. 2d 500 (1987). In a traditional public forum, governmental authority to restrict First Amendment activity is minimal. Restrictions are valid only if narrowly drawn to serve a significant governmental interest and if ample alternative channels of communication are provided. Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 41, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983). First Amendment access to a nonpublic forum may be regulated in any reasonable manner, as long as it is viewpoint-neutral. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 567, 98 L. Ed. 2d 592 (1988).
It appears likely that plaintiffs will be able to establish that the city and American acted in concert to further a plan to ultimately seize and ban all newsboxes from a public forum (the secured, passenger walkways in Terminal 3 where newsboxes have been maintained for years) and that their action does not serve a significant governmental interest. It does not appear likely that defendants can establish that they were acting pursuant to a bona fide concern for public safety or that they have provided plaintiffs with ample alternative channels of communication. City of Watseka v. Illinois Public Action Council, 796 F.2d 1547, 1552-53 (7th Cir. 1986). The availability of newspapers at privately operated concession stands authorized by defendants in Terminal 3 is constitutionally irrelevant. Providence Journal Co. v. City of Newport, 665 F. Supp. 107, 118 (D.R.I. 1987); Chicago Newspaper Publishers v. City of Wheaton, 697 F. Supp. at 1470.
Defendants have not shown that the relatively unobtrusive manner in which plaintiffs exercise their First Amendment rights, by distributing their newspapers in a limited number of newsboxes, interferes with airport security or essential airport functions. Compare Intern. Soc. for Krishna Consc. v. Rochford, 585 F.2d 263, 268-69 (7th Cir. 1978) (constitutionally permissible to bar the distribution of religious literature combined with solicitation of contributions in secured concourses where travelers are captive audience and space is limited).
Even if defendants were able to establish that the passenger walkways of Terminal 3 are not a traditional public forum, it appears likely that plaintiffs will be able to show that the concerted action of the city and American in restricting plaintiffs' First Amendment activity was unreasonable under the specific circumstances presented by this case.
Defendants' actions were not taken pursuant to any ordinance or regulation, narrowly drawn or otherwise. It therefore appears likely plaintiffs will succeed in their claim that the challenged conduct is an unconstitutional exercise of unfettered discretion and operates as a prior restraint on plaintiffs' First Amendment activities. Miller Newspapers, Inc. v. City of Keene, 546 F. Supp. 831, 835-36 (D.N.H. 1982); Chicago Newspaper Publishers v. City of Wheaton, 697 F. Supp. at 1466-69.
Therefore, there is a reasonable likelihood plaintiffs will prevail on the merits. The denial of plaintiffs' First Amendment rights to distribute and circulate their newspapers in a public forum constitutes an irreparable injury that cannot be remedied by monetary damages. Jacobsen v. U.S. Postal Service, 812 F.2d 1151, 1154 (9th Cir. 1987); O'Brien v. Town of Caledonia, 748 F.2d 403, 409 (7th Cir. 1984); Citizens for a Better Environment v. City of Park Ridge, 567 F.2d 689, 691 (7th Cir. 1975). The threatened injury to plaintiffs' First Amendment rights outweighs any economic harm that the city or American may suffer due to lost revenue from the sale of newspapers by their authorized concessionaires or by alleged property damage. If proven, the claimed injuries to defendants may be compensated by monetary damages.
The public interest strongly favors a preliminary injunction where vindication of a First Amendment right to distribute and circulate newspapers is at issue. Plaintiffs have satisfied the requirements for issuance of a preliminary injunction. Brunswick Corporation v. Jones, 784 F.2d 271, 273-74 (7th Cir. 1986). Therefore, a preliminary injunction shall issue restraining the City of Chicago and American Airlines from seizing or relocating plaintiffs' newsboxes in Terminal 3 pending resolution of the constitutional issues raised in this case.
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