JOHN R. BROWN, Chief Judge:
The District Court entered a preliminary injunction prohibiting the City of Jacksonville from permitting the National State's Rights Party (NSRP) — a lily-white group — from using the Little Theatre of the City's Civic Auditorium for its annual convention "so long as [the] Party's membership policies discriminate on the basis of race or color." The City and NSRP each appeal. The case, simple enough to state, presents awesome problems as First and Fourteenth Amendment rights collide. We vacate and remand to the District Court with directions to (i) dismiss the City of Jacksonville as a defendant for lack of jurisdiction, (ii) allow Appellee to amend her complaint to name the appropriate City officials over whom jurisdiction would exist under 42 U.S.C.A. § 1983 and (iii) to determine and then enter specific findings of fact as to whether the meeting in issue was intended to be a purely private meeting or one open to the public at large.
The City leases the Theatre on a first come first served basis to all applicants. The City entered into an agreement to lease the Theatre to NSRP for the Party's annual convention scheduled for June 23, 1973.
Appellee Cason brought this class action on behalf of black taxpaying citizens of Jacksonville who desired to attend the National State's Rights Party's meeting against the City of Jacksonville and J. M. Johns, as representative of the Party
A hearing on the preliminary injunction was held the day before the meeting was scheduled. It was stipulated that NSRP, "is a self-procliamed white racist Christian organization",
Without reaching the First Amendment issues raised by NSRP, the District
Before getting to our disposition on the merits we must, as often, face a jurisdictional problem. In Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, the Court held that the District Court did not have jurisdiction over a § 1983 damage claim against the City of Chicago since a City is not a person within the meaning of § 1983.
In Harkless v. Sweeny Independent School District, 5 Cir., 1970, 427 F.2d 319 we distinguished Monroe and held that a "municipality"—in that case a school district—was a "person" within § 1983 for the purpose of equitable relief. In justifiable reliance on Harkless, Appellee Cason based her claim for relief and jurisdiction on §§ 1983 and 1343(3)
Since the injunction in issue runs against the City proper we must vacate for lack of jurisdiction. Even in the wake of Kenosha it is of course clear that appropriate individual city officials are persons within § 1983 and may properly be named as defendants.
On the merits the case is one, or at any rate close to one, of noble principles on a collision course. See 33 U.S. C.A. §§ 146(2), 201, 341a. NSRP girds its loins with the First Amendment and its guaranteed right of freedom of association and expression of ideas—those palatable as well as obnoxious. Cason, for the class of black citizens taking as Buckler and Shield the equal protection clause of the Fourteenth Amendment, claims that permission by the state for use of public facilities by a particular race or sect and the exclusion of others for reasons of race, or color, is a denial of that right.
In the arguments before us each undertakes to find the answer to this constitutional riddle in two cases.
The closest in factual setting is the en banc decision of the Fourth Circuit in National Socialist White People's Party v. Ringers, 1973, 473 F.2d 1010 (en banc).
We do not think we should either try to draw the Equal Protection/First Amendment line or elucidate some principle of accommodation or in doing so embrace or reject Ringers. Before we adjudicate that problem of transcendent significance we should be certain that we are doing so in the light of a real Article III case and controversy on facts which really are, not what some one supposes or says them to be. Byer v. Byer, 5 Cir., 1958, 254 F.2d 205.
The arguments of counsel highlighted what we do not know and the likely significance one way or the other of the fact once found. What we do not know
If it were closed to all save NSRP members and specifically invited guests the result might be one thing.
If, on the other hand, the Court finds that the meeting would have in fact been open to non-members but limited to the white public at large, we can say without reservation that the District Court's injunction would be entirely proper. If the meeting was not intended to be a private meeting at all but was to be open to the public at large whether white or black, then Appellee's request for admission to the meeting would dissolve but we would then have the problem decided by the Fourth Circuit (see note 12).
The fact that we require the District Court to make a factual finding as between the two possible types of use of the facilities is not intended to suggest that our ultimate decision of the law will necessarily depend upon the distinction made by the trial court. We simply pretermit this question until the record is completed.
Although this Court will, as it always has, face up to resolution of the potential conflict between the First Amendment right to associate in a public forum and the Fourteenth Amendment right to be free from racially discriminatory state action, the very shape of the issues as well as their resolution will be dependent upon the specific facts. Accordingly, we regard an ascertainment by the District Court of the public/private character of the intended meeting as a prerequisite to further constitutional adjudication.
The judgment is vacated and the cause remanded for further evidentiary hearing, findings of fact, conclusions of law and other action consistent with this opinion.
Vacated and remanded.
Furthermore, in a letter to the City Director of Community Relations (which was made available to NSRP) the General Counsel for the City stated that he was of the opinion that the City could lease the Theatre to NSRP without violating the Hampton injunction so long as the meeting from which blacks would necessarily be excluded would not be open to the public at large.
The District Court determined that NSRP's membership policies reflected a purpose on its part not to comply with the Hampton injunction.
Of more importance to our case, the Court vacated that portion of the injunction which prohibited the City from permitting private organizations with discriminatory membership policies from using public recreation facilities solely on the basis of the membership policies. In so holding, the Court emphasized the individual's right to associate in private organizations.
The Supreme Court, on review, agreed that it was proper for the City to be enjoined from permitting exclusive access to public recreational facilities by segregated private schools. The Court reversed and remanded the case with directions to remand to the District Court, however, because it was unable to determine upon the record given whether the non-exclusive use of recreational facilities by private school groups or the exclusive use of such facilities by private nonschool organizations would "[involves] a government so directly . . . as to warrant court intervention on constitutional grounds." The Court pointed out that the appropriateness of the relief would depend entirely on factors such as the use the group made of the facility, the type of facility involved, the type of group involved, and whether such use was in contravention of any desegregation order. We refrain from any analysis of the Court's holding lest it infringe in any way on the prerogative of the panel reviewing the case or the District Court on remand.
Later, by text and note 16, it declared:
473 F.2d at 1018.
Judge Butzner in dissenting took another view: