Appeal by plaintiffs from so much of a judgment of the United States District Court for the Southern District of New York, Richard Owen, Judge, entered after a bench trial, as denied plaintiffs' request for declaratory and injunctive relief and damages in an action brought under 42 U.S.C. § 1983. Affirmed in part, vacated and rejanded in part. Judge Murphy dissents, in part, in a separate opinion.
Before Timbers and Kearse, Circuit Judges, and Murphy, District judge.*fn*
Plaintiffs-appellants, the New York City Unemployed and Welfare Council (the "Council") and three of its members, appeal from so much of a judgment of the United States District Court for the Southern District of New York, Richard Owen, Judge, entered after a bench trial, as denied relief on plaintiffs' claims, brought under 42 U.S.C. § 1983 (Supp. III 1979), that regulations issued by defendants-appellees, officials of the New York City Human Resources Administration ("HRA"), an agency that administers the City's welfare program, violated plaintiffs' rights under the First and Fourteenth Amendments to the Constitution. Plaintiffs challenged HRA regulations that restricted the rights of organizations to converse with, distribute leaflets to, and collect contributions from welfare recipients and applicants on the premise of the City's Income Maintenance Centers ("IMCs"). In an oral opinion, the district court ordered a modification of an HRA regulation confining all organization representatives within the IMCs to a table, and in all other respects denied plaintiffs' requests for relief. For the reasons below, we affirm in large part, but we vacate and remand for further consideration so much of the judgment as upheld the HRA's complete ban on solicitation of contributions inside the IMCs.
The Council is an association composed of welfare recipients.*fn1 It has between 8,000 and 10,900 members, most of whom pay membership dues of $1 per year, although some pay no dues. The Council has five offices, one in each of New York City's five boroughs, which are operated and staffed principally by its members on a volunteer basis. The Council's income from dues and donations is used to pay the operating expenses of Council offices.
The purposes of the Council are, generally, to organize welfare recipients, to educate them as to their legal rights, to improve conditions at the IMCs, and to eliminate poverty. In addition to pursuing these broad goals, the Council also endeavors to assist individual members in obtaining welfare benefits. In pursuing these objectives and in seeking to increase its membership, the Council has used methods such as distributing leaflets, conversing with members and prospective members, holding demonstrations, acting as advocate for individual members, and soliciting contributions or membership fees.
The principal focal points of the Council's activities are the forty-odd IMCs, located in various sections of New York City and administered by the HRA. Welfare recipients and applicants (collectively referred to as "clients") go to these centers to, inter alia, receive welfare checks and food stamps, obtain information about eligibility requirements, and receive assistance with their applications and with their personal and financial problems. In a typical IMC,*fn2 welfare clients first enter a reception area containing a waiting room, where, after waiting for some period of time, they receive instructions as to where to proceed to pursue whatever items or services they have come to the center to obtain. They go next to another area, ordinarily located on an upper floor. This area is typically composed of two sections, separated by a partition; on one side, the IMC staff works and interviews clients; on the other, clients wait further to meet with the staff.
In pertinent part the challenged HRA regulations, issued on March 15, 1977, provide as follows:
(1) Organizations desiring to converse with clients and distribute literature will be stationed at the Community Client-Advisary's (sic) distribution table located in a designated waiting area at each Income Maintenance Center.
(2) No more than two (2) representatives from a particular organization will be permitted at the distribution table.
(3) The Agency's Office of Community Affairs (Mr. Burt Chevers, Supervisor of Bronx Unit, 553-6072 or 5918) will schedule and control the use of the table to insure that all organizations desiring to distribute literature will have equal access in the center. Use of the table will depend on the demand from the various organizations.
(4) Organizations will not be permitted to solicite (sic) membership fees or contributions from public assistance recipients in the center.*fn3
As regulation (1) has been interpreted, the "designated waiting area" is normally the IMC's first-floor waiting room, with organizations barred from proceeding to any second-floor waiting area. Regulation (3) is construed to require only one day's advance notice of an organization's desire for access to an IMC.
In October 1980, plaintiffs commenced the present action, contending that the regulations are overbroad and thus impermissibly restrict plaintiffs' rights under the First Amendment. At the close of a three-day bench trial, the district court found that insofar as regulations (1)-(4) restrict the activities of organizations to the first-floor reception areas, require that notice of a desire to use the IMC tables be given one day in advance, and ban the solicitation of membership fees or contributions from clients inside the centers, they are "reasonable," and "legitimately promulgated to meet a need." As to so much of regulation (1) as required that all representatives of organizations remain stationed at the table, however, the court ruled that the regulation was unduly restrictive. It therefore ordered that that regulation be modified to allow at least one representative of each organization to move freely about the first-floor reception rooms in order to communicate with clients waiting there.*fn4
Plaintiffs appeal from the district court's judgment insofar as it upheld the regulations;*fn5 defendants have not cross-appealed from the portion of the judgment that ordered modification of regulation (1). We affirm the district court's decision except to the extent that it upheld HRA regulation (4), which bans all solicitation of contributions and membership fees. As to regulation (4), we vacate the judgment and remand for consideration of whether a less restrictive regulation would likely be adequate to achieve defendants' legitimate aims.
Freedom of expression, safeguarded by the First and Fourteenth Amendments to the Constitution, is a fundamental right, essential to our democratic society and accorded great weight by our courts. See, e.g., De Jonge v. Oregon, 299 U.S. 353, 365, 57 S. Ct. 255, 260, 81 L. Ed. 278 (1937); NAACP v. Button, 371 U.S. 415, 431, 83 S. Ct. 328, 337, 9 L. Ed. 2d 405 (1963). Thus, government restrictions on the exercise of this right require careful scrutiny. Since one of the primary goals of the First Amendment is to "assure unfettered interchange of ideas," Roth v. United States, 354 U.S. 476, 484, 77 S. Ct. 1304, 1308, 1 L. Ed. 2d 1498 (1957), and to ensure "the widest possible dissemination of information from diverse and antagonistic sources," Associated Press v. United States, 326 U.S. 1, 20, 65 S. Ct. 1416, 1424, 89 L. Ed. 2013 (1945), restrictions based on the content of communication are especially disfavored, see, e.g., United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 101 S. Ct. 2676, 69 L. Ed. 2d 517 (1981) (dictum); Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 537-39, 100 S. Ct. 2326, 2333-34, 65 L. Ed. 2d 319 (1980); Police Department v. Mosley, 408 U.S. 92, 95-96, 92 S. Ct. 2286, 2289-2290, 33 L. Ed. 2d 212 (1972), and have been upheld only in very limited circumstances, see Schneider v. State, 308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155 (1939). Moreover, when regulation of expression takes the form of prior restraint, it is presumptively unconstitutional, and the government, in seeking to justify it, bears a " "heavy burden.' " See Healy v. James, 408 U.S. 169, 184, 92 S. Ct. 2338, 2347, 33 L. Ed. 2d 266 (1977) (quoting Near v. Minnesota, 283 U.S. 697, 713-16, 51 S. Ct. 625, 630-31, 75 L. Ed. 1357 (1931)).
Nonetheless, in protecting freedom of speech, the First Amendment does not prohibit all regulation of expressive activities; First Amendment rights may be governed by appropriate limitations on the time, place, and manner of their exercise. See, e.g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981); Consolidated Edison v. Public Service Commission, 447 U.S. 530, 100 S. Ct. 2326, 65 L. Ed. 2d 319 (1980); Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972); Albany Welfare Rights Organization v. Wyman, 493 F.2d 1319 (2d Cir.), cert. denied, 419 U.S. 838, 95 S. Ct. 66, 42 L. Ed. 2d 64 (1974). The validity of a particular time, place, and manner regulation depends on several factors. First, the regulation must be content-neutral. See, e.g., Heffron v. International Society for Krishna Consciousness, Inc., supra; Consolidated Edison Co. v. Public Service Commission, supra; Police Department v. Mosley, supra. In addition, the regulation must be closely related to a significant governmental interest, and must be the least restrictive means of serving that interest. See, e.g., Heffron v. International Society for Krishna Consciousness, Inc., supra; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976); Grayned v. City of Rockford, supra. In assessing the importance of the government's interest in regulation, the characteristics of the place and the particular expressive activities involved must be considered. Thus, for example, if the area sought to be regulated is one that has traditionally been considered a "public forum," such as a street or park, see, e.g., United States Postal Service v. Council of Greenburgh Civic Associations, supra (dictum); Police Department v. Mosley, supra; Martin v. City of Struthers, 319 U.S. 141, 63 S. Ct. 862, 87 L. Ed. 1313 (1943); Schneider v. State, supra, or, has become a public forum because it was designed to be used as an area where members of the public may exchange views or engage in expressive activities, see, e.g., City of Madison Joint School District v. Wisconsin Employment Relations Commission, 429 U.S. 167, 97 S. Ct. 421, 50 L. Ed. 2d 376 (1976) (public meeting hall); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S. Ct. 1239, 43 L. Ed. 2d 448 (1975) (municipal theatre used for performance of plays for the local public); see also L. Tribe, American Constitutional Law, § 12-21, at 690, then few restrictions on its use for the exercise of First Amendment freedoms will be tolerated. See id. If, however, an area is not a public forum, but is one used by the government to perform some non-speech-related function, it may nevertheless be "appropriate" for the exercise of First Amendment activities if that exercise does not interfere with the primary activity for which it is intended, see e.g., Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969) (public school); Brown v. Louisiana, 383 U.S. 131, 86 S. Ct. 719, 15 L. Ed. 2d 637 (1966) (public library); Albany Welfare Rights Organization v. Wyman, supra, (welfare center); Wolin v. Port of New York Authority, 392 F.2d 83 (2d Cir.) (bus terminal), cert. denied, 393 U.S. 940, 89 S. Ct. 290, 21 L. Ed. 2d 275 (1968), and if that exercise does not infringe the rights of a captive audience, Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S. Ct. 2714, 41 L. Ed. 2d 770 (1974); see Tinker v. Des Moines Independent Community School District, supra, 393 U.S. at 508, 513, 89 S. Ct. at 737, 740. See also Stone, Fora Americana: Speech in Public Places, 1974 Sup.Ct.Rev. 233, 252-55. Since the government in this situation has a significant interest in ensuring the normal functioning of the place, greater restrictions on the exercise of First Amendment rights are permitted. Finally, the availability of alternative forums must be considered. Heffron v. International Society for Krishna Consciousness, Inc., supra; Albany Welfare Rights Organization v. Wyman, supra.
The first floor waiting rooms of welfare centers, although not characterizable as traditional public forums, see Albany Welfare Rights Organization v. Wyman, supra, 493 F.2d at 1323; but see Unemployed Workers Union v. Hackett, 332 F. Supp. 1372, 1379 (D.R.I.1971) (office of Department of Employment Security held to be public forum), are nevertheless public places, open to all, and are therefore areas in which First Amendment rights with regard to welfare issues may not be banned. Wolin v. Port of New York Authority, supra, 392 F.2d at 90. However, expressive activities inside the centers may be restricted by reasonable time, place, and manner regulations, narrowly drawn and designed to ensure the proper functioning of the centers' primary activities. Id. at 85, 93; Albany Welfare Rights Organization v. Wyman, supra, 493 F.2d at 1323; Unemployed Workers Union v. Hackett, supra, 332 F. Supp. at 1377.
In the present case, we find no error in the district court's ruling that regulations (1), as amended, (2), and (3), which require advance scheduling of the use of IMC tables and limit plaintiffs' right to circulate freely, are valid time, place, and manner regulations. The evidence showed that all of the regulations are content-neutral. They apply not only to the Council but as well to other independent organizations and to the Client Advisory Committees set up by the HRA itself (see note 5, supra ). All of the regulations are intended to protect a valid governmental interest-that of ensuring the orderly functioning of the IMCs. Given the space limitations of the IMCs, it appears that the restrictions on numbers of representatives of each organization who may be present and who may circulate among the welfare clients are directly related to that interest. The advance-notice requirement is similarly designed to avoid the presence of more organizations than can be accommodated in an orderly fashion. Finally, the evidence supports the conclusion that regulations (1), as modified, (2), and (3) are no more restrictive than necessary, in the circumstances, to serve the valid governmental interests. For example, the advance notice that is required may be given by telephone on the day before attendance is desired, and seems to be the least restrictive efficient method of coordinating the various organizations. Similarly, the restriction of organization representatives to the waiting room on the main floor also seems no more limiting than is needed to ensure that the actual working areas of IMC staff remain free of disruption. These working areas normally are located on the second floor and are separated from the smaller waiting areas located there only by ...