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ALBRECHT v. METROPOLITAN PIER AND EXPOSITION AUTHORITY

KATHERINE ALBRECHT and QUENTIN YOUNG, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
METROPOLITAN PIER AND EXPOSITION AUTHORITY, Defendant.



The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge

MEMORANDUM OPINION AND ORDER

This case comes before this Court on Defendant Metropolitan Pier and Exposition Authority's Motion to Dismiss Plaintiffs' Second Amended Class Action Complaint. Plaintiffs Katherine Albrecht and Quentin Young ("Plaintiffs") assert a constitutional challenge against the Metropolitan Pier and Exposition Authority's policies regarding First Amendment activity at McCormick Place, a large convention center located near downtown Chicago. The issue to be decided is whether Plaintiffs have failed to state a claim upon which relief can be granted. For the reasons stated herein, Defendant's motion to dismiss is denied. I. BACKGROUND FACTS*fn1

On July 8, 2004, Plaintiffs Katherine Albrecht ("Albrecht") and Quentin Young ("Young") filed a Second Amended and Supplemental Class Action Complaint ("Compl.") against the Metropolitan Pier and Exposition Authority ("MPEA"), the state unit that owns, operates, and controls McCormick Place. Compl. ¶¶ 1, 6-8. Plaintiffs allege that the MPEA has violated the First Amendment of the United States Constitution pursuant to 42 U.S.C. §§ 1983 and 1988 and 28 U.S.C. § 2201 et seq., by adopting and enforcing two policies that restrict expressive activity inside and outside of McCormick Place by non-licensees. Compl. ¶¶ 1-2. Albrecht and Young seek declaratory and injunctive relief as well as damages. Compl, ¶ 1.

  A. McCORMICK PLACE

  McCormick Place is a large convention center located near downtown Chicago that is visited by over four million people per year. Compl. ¶¶ 13, 15. McCormick Place is comprised of the Lakeside Center east of Lake Shore Drive, the Grand Concourse, North Building, and South Building west of Lake Shore Drive. Compl. ¶ 14. These buildings contain approximately 2.2 million square feet of exhibition space, 112 meeting rooms, three theaters, and seating for 10,000 people. Id. The Grand Concourse is open to the public, contains a Metra train stop, restaurants, stores, and works of art. Id.

  The MPEA licenses McCormick Place's exhibition and meeting rooms to a wide array of customers, who gather to communicate about a wide variety of subjects. Compl. ¶ 15. Some of McCormick Place's customers use the facility to discuss a myriad of important public issues. Id. The MPEA has promulgated two written policies regarding expressive activities by "non-licensees" at McCormick Place. Compl. ¶¶ 17, 34. The first, created in 2001, prohibited all forms of expressive activity in the interior spaces of McCormick Place, but allowed two areas for non-licensees outside of the buildings. Compl. ¶ 17, 19. The second policy, adopted in 2004, replaced the 2001 policy and allowed non-licensees to engage in expressive activity in the same two outdoor areas but added five indoor locations. Compl. ¶ 34.

  B. THE MPEA'S 2001 POLICY

  On October 1, 2001, the MPEA promulgated a written policy regarding expressive activities by non-licensees at McCormick Place (the "2001 policy"). Compl. ¶ 17. This policy limited "First Amendment expression" by non-licensees to two outdoor designated areas ("Designated Areas 1 and 2"). Id. "First Amendment expression" was defined as including but not limited to: "literature distributions, signature solicitation and picketing." Id. Designated Area 1 was outside and 103 feet from Gate 30 of the Lakeside Center. Compl. ¶ 22. Designated Area 2 was on the western edge of McCormick Square and 279 feet away from Gate 4 (the main entrance into the facility). Compl. ¶ 23. C. THE MPEA'S APPLICATION OF ITS 2001 POLICY AGAINST PLAINTIFF ALBRECHT

  Albrecht, the founder and director of Consumers Against Supermarket Privacy Invasion and Numbering ("CASPIAN"), requests relief regarding an incident that occurred under the MPEA's 2001 policy. Compl. ¶¶ 24-33. In September of 2003, Albrecht and CASPIAN decided to protest the Electronic Product Code Symposium which took place in McCormick Place's North Building meeting rooms and exhibition halls on September 15 through 17, 2003. Compl. ¶ 25-26. The subject of the conference was the development of Radio Frequency Identification ("RFID") technology, which is used to tag and to track individual consumer products. Compl. ¶ 24. Albrecht and CASPIAN members oppose business practices such as RFID usage, which they believe invade consumer privacy. Id.

  On September 9, 2003, Albrecht requested permission from the MPEA to allow Albrecht and CASPIAN members to distribute leaflets, wear expressive clothing, and engage in public education within the Grand Concourse. Compl. ¶ 29. Albrecht's request was denied by the MPEA and she was informed that other than for private trade shows, expositions and similar events, "the facility's interior is not otherwise open to the public for free expression." Compl. ¶ 30. Albrecht filed a lawsuit on September 12, 2003, requesting equitable relief declaring the 2001 policy unconstitutional and enjoining the MPEA from restricting her and like-minded persons to the Designated Areas. On September 15, 2003, Albrecht requested this Court to enter a temporary restraining order against the MPEA, enjoining it from enforcing its policy against Albrecht and other CASPIAN members. This Court denied Albrecht's request for a temporary restraining order against the MPEA, however, the MPEA did permit Albrecht to wear expressive clothing inside McCormick Place. Compl. ¶ 32. In addition, the Court allowed Albrecht to pass out business cards inside McCormick Place. Albrecht and 20 to 25 others went ahead with the protest on September 16, 2003, but claimed that during the two hours they were at Designated Area 2, very few visitors walked near them. Compl. ¶ 33.

  On April 22, 2004, Albrecht moved for leave to file an amended complaint. The amended complaint alleged that Designated Areas 1 and 2 were inadequate venues for expressive activities. The amended complaint sought class relief on behalf of all others seeking to engage in expressive activity at McCormick Place. In connection with the amended complaint, Albrecht filed a motion for class certification. This motion has been stayed, pending the outcome of Defendant's current motion to dismiss. The claims articulated in Plaintiffs' first amended complaint have been incorporated into Plaintiffs' most recent second amended complaint. Compl. ¶¶ 17-33. However, Plaintiffs' now seek damages in addition to the declaratory and injunctive relief sought in the earlier complaints. Compl. ¶ 1, 21.

  D. THE MPEA'S 2004 POLICY

  Effective June 30, 2004, the MPEA adopted a new written policy regarding expressive activity by non-licensees at McCormick Place (the "2004 policy"). Compl. ¶ 34. The 2004 policy retains the 2001 policy's Designated Areas 1 and 2 but also includes 5 indoor locations. Id. These five indoor areas are 3' × 6' or 3' × 9' and are scattered throughout the McCormick Place buildings. Compl. ¶¶ 37-41. Plaintiffs now allege that the two outdoor areas and five indoor areas are "wholly inadequate venues for expressive activities by non-licensees." Compl. ¶ 42.

  Upon implementation of its 2004 policy, the MPEA moved to dismiss the Plaintiffs' First Amended Complaint as moot because the old 2001 policy was no longer in effect. On June 23, 2004, Defendant agreed to withdraw its motion to dismiss upon Plaintiffs' representation that they would file a second amended complaint.

  On July 8, 2004, this Court granted Plaintiffs' motion for leave to file their second amended and supplemental class action complaint. In their second amended complaint, a second plaintiff, Quentin Young, was added. Compl. ¶ 7. Plaintiffs also included claims for equitable relief and damages ...


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