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Eastern Connecticut Citizens Action Group v. Powers

decided: December 7, 1983.

EASTERN CONNECTICUT CITIZENS ACTION GROUP, ET AL., PLAINTIFFS-APPELLANTS,
v.
ARTHUR B. POWERS, ET AL., DEFENDANTS-APPELLEES



Eastern Connecticut Citizens Action Group appeals from a judgment entered in the United States District Court for the District of Connecticut (Jose A. Cabranes, Judge), in favor of the Department of Transportation of the State of Connecticut, after trial of appellant's claim alleging infringement of First Amendment rights of freedom of speech and assembly.

Kaufman and Van Graafeiland,*fn* Circuit Judges.

Author: Kaufman

KAUFMAN, Circuit Judge:

The right to communicate freely with one's fellow citizens and with the government on issues of public importance is a cornerstone of our American polity. The broad precepts of the First Amendment protect those who seek "peaceably to assemble, and to petition the Government for a redress of grievances." Expression of views on political issues must, however, be accomplished without unduly disrupting the orderly functioning of government. Accommodating the right of public speech and the state's need to discharge its responsibilities to its citizenry efficiently can indeed be a delicate task.

In this case, we are presented not with a direct prohibition on public expression, but with the subtler problem of government regulation which burdens an organization's ability to publicize its views in what it determines to be the most effective manner. The State of Connecticut has permitted appellant, the Eastern Connecticut Citizens Action Group (ECCAG), to use a particular piece of state property as a forum for political expression. That use, however, is conditioned on terms laid down by the state which ECCAG contends impose a prohibitive financial burden on its First Amendment rights. The district court held the regulations to be reasonable. We find that the state has failed to justify the burdens imposed on ECCAG's proposed activities, and remand for the fashioning of less restrictive administrative requirements.

I

ECCAG, a non-profit organization headquartered in Willimantic, Connecticut, has as its goals the development of the economy and transportation systems of eastern Connecticut. The group's paramount concern in recent years has been halting the planned construction through the region of Interstate 84, and promoting, as an alternative, the revival of rail transportation. In pursuit of that aim, ECCAG developed a plan to conduct a "Railathon," or march, in 1980, along a thirteen-mile abandoned railway bed running between the towns of Willimantic and Manchester. ECCAG hoped the Railathon would express the group's opposition to the highway extension, and demonstrate the availability of a suitable corridor for a rail line. Because the rail bed passes under the interstate at one point, ECCAG felt that the selected route would graphically illustrate the choice between two competing modes of transportation.

The rail bed is owned by the state and managed by its Department of Transportation (DOT), which is required by statute to preserve it for future transportation purposes. Although the land is formally closed to the public, hikers, bicyclists, and others frequently use it for recreational purposes, and DOT makes no effort to deter trespassing. The rails and most of the ties have been removed, and the rail bed now resembles, according to appellants' uncontested testimony, a "country dirt road" which is "flat and walkable."

As planning for the Railathon proceeded, ECCAG's director, Geri Langlois, contacted DOT official Donald Leavitt to request permission to use the land. Leavitt initially informed Langlois that no such permission was needed, since hikers already walked on the property without interference from DOT. Subsequently, however, Langlois received a letter from Leavitt demanding a written request for use of the railway bed, and establishing four pre-conditions. ECCAG would have to agree to (1) pay an administrative fee of $100, (2) obtain adequate liability insurance coverage for the event, (3) execute a "save-harmless" clause protecting the state against legal actions relating to the march, and (4) covenant to clean up any debris, and to avoid trespassing on adjacent property. DOT later sent a "temporary right of entry" form to ECCAG, specifying the need to obtain a $750,000 insurance policy naming the state as co-insured.

ECCAG's 1980 budget totalled $12,000, all of which was allocated for rent, salaries and office expenses. Nevertheless, to avoid delay in the application process, the group paid the $100 fee and executed the temporary right of entry. Inquiries about insurance coverage were also made. Because ECCAG had no general liability coverage, the organization discovered it might not be able to obtain a "special events" policy of the type required. If it were, the quoted estimates for premiums ranged from $500 to $900. Because this expense was beyond its resources, ECCAG instituted a lawsuit against DOT to declare the requirements unlawful. Shortly afterwards, however, a separate but related organization calling itself the Connecticut Citizens Action Group was able to obtain a one-time rider on its insurance policy to cover the Railathon for an additional premium of $150. ECCAG paid this cost from moneys allocated for other purposes.

The first Railathon was conducted on June 14, 1980. Numerous precautions were taken, successfully, to insure that no injury to persons or damage to property would occur. The route was plotted on topographical maps, and surveyed in advance so that dangerous spots could be bypassed. Appellants informed the police departments in all adjoining towns about the march. Each participant was given a brochure describing the event, and a map and set of rules before the march commenced. Each walker was required to sign a waiver of all claims arising from the Railathon. Directional signs were posted along the route, checkpoints were established at periodic intervals with refreshments and first-aid equipment, and five cars with identification approved by the State police patrolled the route. In all, the Railathon was staffed by twenty-two persons associated with ECCAG, better than one for every three participants.

The march took place entirely without incident. There were no injuries to marchers, and no reports of damage to State or adjoining private property. In fact, ECCAG considered the Railathon so successful that it decided to repeat the event in 1982. Upon inquiry, the group learned that DOT's administrative fee had risen to $200, and that the cost of insurance would be approximately $780. In the meantime, the group's annual budget had dropped to $9,500, and it carried a deficit of $4,600. Obtaining insurance coverage on ECCAG's policy was no longer possible. Appellees, however, were unwilling to waive any of their access requirements. Faced with apparently insuperable obstacles to the second Railathon, ECCAG proceeded with this litigation.

A one-day trial was held before Judge Cabranes in June 1982. The judge concluded that the State "had a special interest in maintaining the railway bed free of casual public use." DOT, he found, had "reasonably regulated" ECCAG's access to the property in furtherance of this interest, and had not infringed the group's First Amendment rights. He also held against appellants on their equal protection claim, finding that they "were not treated differently than other applicants for use of ...


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