The opinion of the court was delivered by: CONLON
SUZANNE B. CONLON, UNITED STATES DISTRICT JUDGE
All plaintiffs sell their newspapers directly to the traveling public through coin-operated vending machines or newsboxes in Terminal 3 at O'Hare. Plaintiffs' newspapers have thereby been available to the traveling public every day at virtually any time, day or night, for an undetermined number of years. Plaintiffs' newspapers are also sold in Terminal 3 by privately owned retail concessionaires or newsstands operated by W. H. Smith under contractual arrangements with the city and American. The newsstands resell plaintiffs' newspapers, and various other items, to the public during certain business hours disputed by the parties.
The city and American operate and maintain the passenger walkways to the gates in Terminal 3 known as the H and K concourses. Newsboxes utilized by plaintiffs for many years in the H and K concourses of Terminal 3 are located within a secured area; any person purchasing newspapers from these boxes first must pass through a security checkpoint. The newsboxes were placed inside the secured area as a safety precaution at the request of the Federal Aviation Administration ("FAA"). The design and color of the newsboxes were approved by the city's Department of Aviation some time ago.
American is in the process of remodeling the H and K concourses of Terminal 3 at a cost of approximately $ 329,000,000. On January 5, 1989, American removed most of plaintiffs' newsboxes from the remodeled stem area of the H and K concourses without prior notice to plaintiffs. This action was taken pursuant to a plan to eliminate all newsboxes from O'Hare, announced some time ago by the city's Department of Aviation. According to this plan, newspapers would be sold only by concessionaires who produce revenue for the city and the airlines. After plaintiffs protested the January 5th seizure, American and the city agreed to allow the placement of one newsbox for each of the five newspapers in a visually inaccessible alcove off the public walkway where the H and K concourses meet in a "Y" formation ("the stem area"). At a meeting on January 19, 1989, the city and American notified plaintiffs that they must remove all remaining newsboxes from the stem area of Terminal 3 by January 25, 1989. Plaintiffs were temporarily permitted to leave 37 newsboxes in concourse H and 39 newsboxes in concourse K until the newsboxes are replaced by concessionaires according to the defendants' joint plan.
On January 25, 1989, this court issued a temporary restraining order to reinstate the status quo : plaintiffs were permitted to replace the seized or relocated newsboxes to their original site in the stem area, and defendants were prohibited from removing any newsboxes until plaintiffs' motion for a preliminary injunction could be heard on February 3, 1989.
American claims that plaintiffs' newsboxes interfere with its property and contract rights in the H and K concourses by siphoning revenue from authorized concessionaires who pay rent to American, by damaging and marring expensive wall panels, by impeding pedestrian traffic, by providing locations where terrorists may place bombs, and by aesthetically detracting from the appearance of American's remodeling efforts. Photographic exhibits submitted by plaintiff Chicago Sun-Times, however, illustrate that the stem area and the passenger walkways of the H and K concourses contain numerous potential safety hazards and unsightly conditions, such as abandoned service carts, freestanding waste receptacles, unsecured construction materials and equipment lockers, telephone booths, shoeshine stands, unlocked and unattended closets, public storage lockers, trash carts and various unattended objects protruding into public hallways and cluttering concession areas.
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.
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 ...