JOSEPH H. YOUNG, District Judge.
I. THE FACTS
Each year during a ten-day period in late summer, the Maryland State Fair and Agricultural Society, Inc. ("Agricultural Society") sponsors the annual Maryland State Fair ("Fair") at the fair grounds in Timonium. The Fair provides an occasion at which agricultural interests throughout the State can gather to demonstrate farming techniques and machinery. At the same time, various exhibits and amusements, such as horseracing, attract large numbers of the general public as well, and the total number of visitors attending the the Fair each year approaches half a million.
On August 28, 1978, after the 1978 Fair had already begun, the individual plaintiffs in this case filed for injunctive and declaratory relief in the form of a temporary restraining order.
Plaintiffs, on the other hand, contended that the booth restriction limited their freedom of expression in violation of the First
ISKCON members find the booth rule particularly offensive because of their religious obligation to perform the ritual known as Sankirtan which consists of gratuitously disseminating religious tracts, making converts, and soliciting funds to support the organization. "Sankirtan is directed to spreading religious truth as it is known to Krishna Consciousness, attracting new members and supporting ISKCON's religious activities. Donations and book distribution in exchange for contributions to defray printing and other distribution costs are the very lifeblood and principal means of support of this religious movement." Complaint at ¶ 10. According to ISKCON, restricting Krishna disciples to a booth would confine their movements and deny them the right to practice Sankirtan.
Because of the late filing of this case initially, plus the fact that granting plaintiffs' requested relief would have secured for them the entire relief sought for last year's Fair, Judge Harvey declined to issue a temporary restraining order. Consequently, the case was set in for ultimate trial on the merits. In the months following Judge Harvey's ruling, extensive discovery was conducted, and ISKCON's Baltimore Chapter was added as a corporate plaintiff. The case is now before this Court on cross motions for summary judgment which raise two issues: (1) whether enforcement of the booth rule by the Agricultural Society constitutes sufficient state action in this context to satisfy the "color of state law" requirement of 42 U.S.C. § 1983, and (2) whether the booth rule represents a reasonable time, place, and manner restriction upon the exercise of plaintiffs' First Amendment rights.
II. THE STATE ACTION REQUIREMENT
Both section 1 of the Fourteenth Amendment and the First Amendment proscribe only governmental activities.
To prevail in their claim under 42 U.S.C. § 1983, plaintiffs must demonstrate
While there is little question that the Supreme Court's developments in this area have been uneven and occasionally contradictory,
326 U.S. at 506, 66 S.Ct. at 278. As to the competing rights, he explained that "[w]hen we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of the press and religion, as we must here, we remain mindful of the fact that the latter occup[ied] a preferred position." 326 U.S. at 509, 66 S.Ct. at 280.
In the years after Marsh, however, the balancing approach gave way to a "symbiotic relationship" test by which the presence of such a symbiosis between the State and a private party who was discriminating illegally could involve the State as a joint participant in the unlawful conduct so as to render the activity subject to the fourteenth amendment. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). The Burton court also referred to the need for "sifting facts and weighing circumstances" in evaluating competing claims. 326 U.S. at 722, 66 S.Ct. 276. Only in recent years has state action analysis shown a tendency to abandon a quantitative contacts analysis in favor of the earlier balancing approach of Marsh. See, e. g., Evans v. Abney, 396 U.S. 435, 90 S.Ct. 628, 24 L.Ed.2d 634 (1970); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972); Columbia Broadcasting Systems, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). While these cases have been interpreted as signaling a restrictive trend in state action analysis,
Note, 60 Va.L.Rev., supra, at 850.
Having reviewed these more recent approaches to state action analysis, the Court must now apply a balancing analysis which evaluates not only the overall relationship between the state and private entities (regardless of whether it is termed a "symbiosis" or a "nexus") but also the relationships between competing liberty interests and constitutional values. Utilizing this analysis, the Court finds that the relationship between the State of Maryland and the Agricultural Society is sufficient to find that the enforcement of the booth rule constitutes state action.
Several facts support this finding. The Fair is definitely a public function. It is open to the public and constitutes a public forum frequently used by political, religious, and civil groups. The Maryland Annotated Code authorizes the creation of a Maryland State Fair Board ("Board"), an executive state agency, which has designated
Furthermore, the State's financial promotion of the Fair is evidenced in several areas. The Agricultural Society receives annually some $115,000.00 from the Board to be awarded as premiums to successful fair contestants.
Finally, plaintiffs note two other aspects indicative of the State's involvement in the Fair. The Board leases office space from the Agricultural Society, and State Police protect the general public attending the Fair and direct traffic outside the grounds.
Contesting that these factors either individually or in their totality are sufficient to constitute state action, defendants argue that the Fair cannot be considered a public function. They note that conducting a fair is not traditionally the State's sole prerogative and that the State has no affirmative duty to have a fair. While this point may be true, it cannot contravene the fact that the State has chosen to conduct such an enterprise. Having done so, the State cannot shield itself from possible constitutional scrutiny for its activities merely because its involvement was with private entities or on a voluntary basis. Even under the more restrictive interpretations of state action analysis, the State certainly "must be recognized as a joint participant in the challenged activity . . .." Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172-73, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627 (1972), quoting Burton v. Wilmingon Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961).
Defendants further contend that under Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352-53, 95 S.Ct. 449, 454, 42 L.Ed.2d 477 (1974), state action cannot be found under the public function test unless the private party exercises powers "traditionally exclusively reserved to the State" or performs functions that the State has an affirmative duty to provide. See also New York City Jaycees, Inc. v. United States Jaycees, Inc., 512 F.2d 856, 859-60 (2d Cir. 1975). While it is true that the State need not authorize and hold the Fair, at most defendant's reasoning supports the conclusion that perhaps the public function test is the inappropriate one to apply in these circumstances. Assuming arguendo that the Fair is not a public function, there are nonetheless several remaining state action theories supporting the Court's conclusion that the state action requirement has been satisfied. Among these theories are the amount of government regulation, control, or support, the delegation of governmental power, and entwinement, all of which could be applied to the facts of this case.
Finally, since modern state action analysis requires some assessment of the competing interests involved, the Court cannot overlook the free speech interests at stake here plus the public-private dichotomy recognized in Moose Lodge, supra. The Fair is open to the general public, and, as such, is more analogous to the public restaurant in Burton than the private social club in Moose Lodge. Consequently, after examining the causal relationships between state activity and the alleged discrimination, the public nature of the Fair, and the nature of the particular rights being asserted, the Court concludes that the state action requirement is fully satisfied.
III. THE BOOTH RULE
Even though the Court has found the Agricultural Society to be acting under color of state law, liability will only be found in the presence of a constitutional violation. Defendants recognize that the booth rule functions as a time, place, and manner restraint on plaintiffs' free speech rights; however, they justify it as a necessary form of crowd control which is uniformly applied to all Fair participants. As such, they maintain that the booth rule accomplishes a legitimate, compelling, and overriding governmental interest, is sufficiently focused to avoid overbreadth or overinclusiveness, and accomplishes its purpose in the least restrictive manner possible. Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).
Within recent years, ISKCON has litigated the constitutional validity of the booth rule and other "time, place, and manner" restraints which confined their practice of Sankirtan at public events. ISKCON has generated an impressive track record with the majority of lower federal courts holding in their favor. See, e. g., ISKCON v. State Fair of Texas, 461 F.Supp. 719 (N.D.Tex. 1978); ISKCON v. Bowen, 456 F.Supp. 437 (S.D.Ind.1978); ISKCON v. Rochford, 425 F.Supp. 734 (N.D.Ill.1977); ISKCON v. Engelhardt, 425 F.Supp. 176 (W.D.Mo.1977); ISKCON v. Conlisk, 374 F.Supp. 1010 (N.D. Ill.1973); ISKCON v. City of New Orleans, 347 F.Supp. 945 (E.D.La.1972).
To date, only a few courts have ruled against ISKCON on the constitutional issues raised here. See, e. g., ISKCON v. McAvey, 450 F.Supp. 1265 (S.D.N.Y.1978); ISKCON v. Evans, 440 F.Supp. 414 (S.D. Ohio 1977); ISKCON v. Heffron, District Court, Second Judicial District, County of Ramsey, Minn. (File No. 421843 Aug. 18, 1978).
Plaintiffs contend that the booth rule fails to satisfy the standards of Nebraska Press Association, supra, and the line of cases developing that standard. In their motion for summary judgment, plaintiffs state that:
The solicitation of donations and the selling of religious literature to further one's religion are activities fully protected by the First Amendment. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943). Prior restraints imposed upon such activities are inherently suspect, Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969), and can only be justified when there is a compelling governmental interest, the existence of which the government must prove. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976).
There exist, however, certain circumstances in which First Amendment privileges in a public forum have been circumscribed by the imposition of reasonable regulations which are focused to regulate the time, place, or manner of speech. Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105 (1953); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951); Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949); Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). Any such regulations, however, must further a substantial governmental interest which has no relation to the content of the First Amendment expression involved. Mosley, supra, 408 U.S. at 98, 92 S.Ct. 2286. Additionally, the regulations must be precisely tailored and present standards capable of objective application in order to avoid giving overbroad discretion to the officials charged with implementing them. Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267 (1951). See also Toward A Gayer Bicentennial Committee v. Rhode Island Bicentennial Foundation, 417 F.Supp. 632 (D.R.I.1976).
The majority of federal district courts which have considered the validity of prior restraints on ISKCON activities in varying locations and forums have failed to uphold the regulations under the time, place, or manner rationale. A number of these cases can, however, be distinguished or limited on their facts.
In ISKCON v. Kearnes, 454 F.Supp. 116 (E.D.Cal.1978), a city ordinance requiring persons engaging in charitable solicitation to obtain permits was held to be facially unconstitutional. The court reasoned that prevention of fraud was an inadequate justification for the ordinance which indirectly sought to regulate the content of speech. The time, place, or manner limitations were not involved since the court noted that the ordinance made no attempt "to accommodate both the rights of those seeking to solicit and collateral state interests such as traffic control." 454 F.Supp. at 119.
ISKCON v. Griffin, 437 F.Supp. 666 (W.D.Pa.1977), held invalid a county ordinance imposing numerous regulations requiring inter alia a permit, payment of a daily fee, and restriction of solicitations to booths and certain times in connection with the operation of a local airport. Holding the regulations unconstitutional, the court focused its attention primarily on the absence of narrow, objective, and definite standards which resulted in arbitrary determinations such as the restricting of ISKCON activities to within ten feet of any area leased exclusively to an airport tenant. Similarly, the booth rule was also invalidated because "[t]he defendants [had] asserted no justification for limiting ISKCON's First Amendment rights in such a manner." 437 F.Supp. at 673.
Both Kearnes and Griffin differ from the present case in light of the fact that the
Although Kearnes and Griffin found for ISKCON, their holdings can be limited in such a fashion that valid time, place, or manner restraints might nonetheless be imposed if they are properly drafted, applied, and justified. For the most part, the courts which have found in ISKCON's favor have done so because of this final point, namely, justification. To evaluate the validity of an offered justification, however, is necessarily to undertake a balancing of the competing interests involved. Thus, in ISKCON v. Bowen, 456 F.Supp. 437 (S.D.Ind.1978), the court held unconstitutional a booth rule similar in effect to Maryland's. Chief Judge Steckler ruled that "[i]t is clear that adoption of the resolution for a salutory purpose (e. g., so that fairgoers are assured the maximum opportunity to enjoy the Indiana State Fair) will not save what is otherwise a constitutionally deficient regulation of expression." 456 F.Supp. at 443. Citing Cantwell, supra, the court opined further that "[a] certain amount of inconvenience, discomfort, litter or other incidental effects of first amendment protected activity is not a sufficient justification for restricting such activity." 456 F.Supp. at 444. The court concluded that "under any test applied to restrictions on expression, the Indiana Fair rule is not sufficiently, narrowly, and precisely related to the interests advanced by the State." 456 F.Supp. at 444.
Plaintiffs rely heavily on ISKCON v. State Fair of Texas, 461 F.Supp. 719 (N.D. Tex.1978), a case which is virtually identical to the instant one. The Texas State Fair draws an annual crowd of over three million people over a 250 acre tract, and the State had offered valid crowd control as a legitimate justification for its booth rule. In holding the rule unconstitutional, however, Judge Higginbotham noted both the effect of the booth rule on Sankirtan and the inadequate justification provided by the State:
461 F.Supp. at 723. Oddly enough, after finding in ISKCON's favor, the court went
This result, however, seems at odds with the court's initial premises. A negative impact upon Sankirtan is a negative impact whether it is created by a booth rule or a no-disguise rule. First Amendment freedoms should not depend on whether a Krishna wears a Brooks Brothers' suit or the more familiar flowing gowns and pony tails associated with their spirited group appearances on city streets. Freedom of expression can no more be regulated on the basis of content than on the basis of a speaker's clothing. Judge Higginbotham is moved by the spectre of the retarded child from a state home being conned out of his allowance at a state fair in the name of religion, but surely the likelihood of this occurring repeatedly is hardly sufficient to confine Krishnas in three-piece suits to booths! In the marketplace of religious freedom of choice, some degree of caveat emptor must prevail, and individuals must be presumed competent to think before they contribute. As the court aptly noted, "[a] fair is almost by definition a congeries of hawkers, vendors of wares and services, and purveyors of ideas, commercial, esthetic, and intellectual." 461 F.Supp. at 721. Caveat emptor, then, is just a more refined expression for the adage that "a sucker is born every minute," and at events such as fairs and circuses, one expects this to be applicable more than at other times. While ISKCON v. State Fair of Texas may initially tend to support plaintiffs' position, its reasoning makes any victory pyrrhic at best. At the same time, one can fault the court for having imposed its no-disguise restriction on the basis of hypothetical fraud when the problem created by crowd control was in every respect both real and serious.
What the above cases demonstrate is that a court's appraisal or balancing of competing values will depend to a large part on judgments it makes as to the relationship between the state interest and the constitutional guarantee. In ISKCON v. McAvey, 450 F.Supp. 1265 (S.D.N.Y.1978), the court struck a different balance and refused to enjoin enforcement of regulations governing Sankirtan in lower Manhattan's World Trade Center. These regulations limited the number of devotees who could practice Sankirtan as well as the place and manner in which they could conduct their activities. The court specifically sanctioned the Port Authority's crowd control rationale:
450 F.Supp. at 1269.
After reviewing the authorities cited by plaintiffs to support their claim that the booth rule is unconstitutional, this Court feels compelled nonetheless to resolve this issue in line with the minority of courts which have found such restrictions to constitute legitimate means of crowd control. McAvey, supra; ISKCON v. Evans, 440 F.Supp. 414 (S.D.Ohio 1977). What is being balanced here is not religious belief versus state interest but religious conduct versus state interest, and although belief and conduct cannot be completely divorced from one another, time, place or manner restrictions are permissible when what they regulate is behavior rather than ideas. "[T]he freedom to act, even when the action is in accord with one's religious convictions, is not totally free from legislative restrictions." Braunfeld v. Brown, 366 U.S. 599, 603, 81 S.Ct. 1144, 1146, 6 L.Ed.2d 563
The Maryland Fair's booth rule is uniformly applied to all concessionaires without distinction. It does not seek to curtail any speech on the basis of its content, and it has been adopted pursuant to a valid concern for crowd control. ISKCON members may still solicit contributions and make religious converts, albeit confined to the interior of a booth. To allow them more freedom would grant them an advantage over other vendors or concessionaires who must rely on individuals' freedom of choice to patronize their particular booths. Space at the Fair is limited, and with so many groups and organizations vying for the public's attention, a booth rule makes obvious practical sense as a means of crowd control as well as a means of guaranteeing even access to all booths at the Fair. ISKCON will still be permitted to disseminate its religious beliefs to all who want to hear them. While this Court has no doubt that Sankirtan is a legitimate religious ritual, granting plaintiffs' requested relief would obviously risk the possibility that other groups would claim to be "religious" and therefore invent some unorthodox religious rituals which, being important to their newly created faith, would inflict themselves upon fairgoers in the name of religious freedom.
Professor Tribe notes that "[o]ur society is truly one in which one person's seemingly bizarre cult, easily dismissed by an outsider as insincerely held, is another's true religion. And, to the extent that we achieve the goal of religious pluralism, the problem becomes still more complex." L. Tribe, supra, at 861, n. 13.
Nevertheless, courts have had to rule on religious practices which have raised the question of sincerity of religious belief. See, e. g., United States v. Kuch, 288 F.Supp. 439, 445 (D.D.C.1968) (no religious exemption from federal drug regulations where only a tactical pretense of religion involved; Neo-American Church members were known as Boo Hoos and adopted a seal displaying a three-eyed toad and "Victory over Horseshit" as their motto). Contrast Kuch, however, with People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813 (1964), in which the California Supreme Court declared unconstitutional the application of state criminal statutes to Native Americans using peyote in a religious ritual.
Tribe also examines the difficulty courts face in evolving a workable definition of "religion" for purposes of the free exercise and establishment clauses. Under the free exercise clause "a dichotomy can usefully be drawn between things `arguably religious' and things not even arguably having a religious character; all that is `arguably religious' should be considered religious in a free exercise analysis." L. Tribe, supra, at 828. Tribe comments that:
L. Tribe, supra, at 831. Yet, one can envision potential conflict between this "arguably religious" test and the centrality test, since some activity could be arguably religious yet not central enough to overcome curtailment in appropriate circumstances.
Precisely this conflict arises in the present case. While the Court recognizes that dissemination of religious information lies at the core of religious practice, second perhaps only to worship, L. Tribe, supra, at 863, the practice of Sankirtan can be distinguished from the situation in People v. Woody, supra. Both Hinduism and Buddhism have centuries-old traditions emphasizing the importance of begging and almsgiving.
The Court want to emphasize that it is expressing no doubts as to the legitimacy, sincerity, or seriousness of ISKCON's religious claims. In order, then, to accommodate both ISKCON's interest in disseminating its religious views and the State's interest in maintaining proper crowd control at the Fair, certain practical limitations must be drawn given the circumstances and context of this case. The booth rule provides such a reasonable accommodation and passes constitutional muster.
The Court is satisfied that there are no genuine issues in this case respecting any material propositions of fact, and defendants are therefore entitled to judgment as a matter of law. F.R.Civ.P. 56.
Accordingly, it is this 17th day of August, 1979, by the United States District Court for the District of Maryland, ORDERED:
1. That plaintiffs' motion for summary judgment be, and the same is, hereby DENIED; and
2. That defendants' motion for summary judgment be, and the same is, hereby GRANTED.
The first amendment reads:
Id. at 1158.
What this analysis yields is yet another occasion for the application of judicial balancing. Simply totting up the number of state contacts is no longer a proper way of resolving close state action questions. In Seidenberg v. McSorley's Old Ale House, Inc., 317 F.Supp. 593 (S.D.N.Y.1970), the court explained that:
317 F.Supp. at 597.
Outcomes today will turn on judicial balancing which will be heavily influenced by the particular rights asserted:
Note, State Action and the Burger Court, 60 Va.L.Rev. 840, 854 (1974).
Glennon & Nowak, supra, at 232.
Value judgments are constantly at work in the judicial balancing process and are nonetheless minimized by the more "quantitative" theories such as the degree of government regulation or control, the amount of government support, the enforcement of policies by governmental officials or institutions, the delegation of governmental power, performance of a public function, entwinement, or conspiracy. Note, 81 Dickinson L.Rev., supra, at 326-38. After identifying the presence or absence of any of these factors, one is still faced with the qualitative dilemma of assigning relative strengths and evaluating their roles in the overall fabric of competing rights.
To the extent that balancing is less formalistic and more candid, however, it can frequently serve constitutional adjudication by fostering more reasoned articulation.
While noting that the Supreme Court has failed to clarify whether the "overall relationship" or the "close nexus" theory is to be preferred, Chief Judge Northrop concludes that Fourth Circuit case law seems to point increasingly towards preferring the close nexus approach. 469 F.Supp. at 195. See generally, Fourth Circuit Review, 35 WASH. & LEE L.REV. 433 (1978). Greene, however, presented a fairly narrow question, namely whether the university's receipt of de minimis state funds made it a State agency, and did not involve a conflict between competing governmental and personal values.
Numerous state fairs have entered into consent decrees allowing ISKCON devotees to solicit without being confined to a booth. Winslow v. Kansas Fair Bd., Civ. No. 78-1374 (D.Kan.); Mills v. State Fair of West Virginia, No. 78-5167 (D.W.Va.); Gorrick v. Erie County Agric. Ass'n., Civ. No. 78-505 (W.D.N.Y.).
Finally, the Attorneys General of at least six states have issued letter opinions declaring ISKCON devotees' rights to be free from booth restrictions. See Letters from the Attorneys General of Florida, Kentucky, Michigan, New Mexico, North Carolina, and Pennsylvania, attached as Exhibits 10 through 15 of Plaintiffs' Memorandum in Support of Temporary Injunction.