Knolls Action Project v. Knolls Atomic Power Laboratory

771 F.2d 46
Court of Appeals for the Second Circuit·Decided August 26, 1985·No. No. 1168, Docket 85-6040·Published·Cited by 2 cases

Opinion

WINTER, Circuit Judge:

Knolls Action Project (“KAP” or “the Project”) and several KAP members appeal from Judge Miner’s denial of their claims for declaratory and injunctive relief allowing them to continue to distribute literature on the grounds of the Knolls Atomic Power Laboratory (“KAPL”), 600 F.Supp. 1353. We affirm Judge Miner’s decision holding that they have no First Amendment right to enter that property for such purposes.

Background

KAP is an organization based in Albany, New York and has approximately thirty active members. Its purpose is to alert the local community to the dangers of nuclear war and to advocate disarmament. The Project disseminates its message through newsletters, demonstrations, and leaflets. At issue is KAP’s leafletting activity at KAPL, a nuclear research facility in Niskayuna, New York, owned by the United States and operated by the General Electric Company (“GE”).

[48] KAPL’s Niskayuna site employs approximately sixty federal employees and 2,000 GE employees under the general direction of the Department of Energy. While the record does not reflect the precise nature of the work done at the site, the Project contends that KAPL has played a major role in the development of a nuclear reactor for the Trident submarine.

Part of KAPL’s Niskayuna facility is surrounded by a fence, and entry into this area is possible only through a gatehouse. South of the gatehouse and outside the fence, but still on KAPL property, is the main parking lot. Approximately 80 percent of KAPL employees enter the parking lot through a paved entryway at the southwest corner of the facility. The employees generally turn left from River Road, a state-owned road south of the facility, into the entryway. The southern boundary of KAPL property runs about twenty feet north of River Road and is marked with a white line on the paved entryway. Signposts designate the boundary on the grassy area separating River Road from the parking lot. At the northern edge of the parking lot is a cement walkway extending about 75 feet to either side of the gatehouse, which KAPL employees use after leaving their cars.

KAP began leafletting at the Niskayuna facility in 1978. In the beginning, the KAP members stood on state property on the south side of River Road across the street from the entry way1 and handed out leaflets to drivers about to make the left turn into the entryway. The leafletting appears to have caused traffic to back up along River Road, and sometime prior to 1981 the KAP members began to stand in the entryway itself. This move allowed them to distribute leaflets to drivers who had already made the left turn and were about to enter the parking lot. The leafletting was conducted by one or two persons on Friday mornings between 7:00 and 8:00 as KAPL employees arrived. Occasionally, KAP members would cross the line into KAPL property, but the KAPL security personnel appear to have been indifferent to such minor intrusions.

In January, 1981, Lance Stewart, the head of security at the Niskayuna facility, told the leafletteers to move further into the entryway and thus onto KAPL property. Stewart testified that he was concerned that if drivers continued to stop and take the leaflets immediately after making the left turn into the entryway, a rear-end collision could result. He noted that a KAPL employee had complained of this potential safety problem. KAP thus began to leaflet on KAPL property at KAPL’s suggestion and continued to do so for some eighteen months. The KAP leaf letting was not disruptive, and there were no accidents or other incidents associated with it.

In late June, 1982, Albert Kakretz, KAPL’s general manager, received a letter from a KAPL employee named Bill Fisher complaining of a potential safety hazard from the Project’s leafletting and threatening to sue KAPL should an accident occur. The letter also expressed strong disapproval of the Project’s political message.2 Kakretz testified that after receiving this let[49] ter, he asked an aide “to look into the situation.” After meeting with Stewart and Jamie Gearon, KAPL’s general counsel, Kakretz informed KAP that it could no longer leaflet on KAPL property. The Project then requested permission to leaflet on the walkway at the north end of the parking lot, but KAPL refused this request.

Since then, KAP’s leafletting has been limited to the south side of River Road, the original site. KAP asserts that this site is more dangerous and less effective for disseminating its message. It claims that, since the ban took effect, the number of leaflets distributed per week has declined from 250 to less than 100. It therefore brought the instant action seeking an injunction permitting it to leaflet in the entryway or on the walkway.

Discussion

KAP proffers three arguments based on the First Amendment. First, it contends that KAPL, by permitting the leafletteers to enter its property, transformed a portion of its grounds into a limited public forum. Second, it argues that government property that is not a public forum may not be completely closed to First Amendment activity unless such activity is unavoidably incompatible with the character of the property. Finally, KAP argues that KAPL’s ban on leafletting was unconstitutional because it was content-motivated.3

KAP’s first argument is easily dismissed. KAP does not, nor could it, argue that KAPL or its parking lot is a traditional public forum. Rather, KAP contends that KAPL’s parking lot has become a “designated” public forum within the meaning of Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).

In Perry the Court defined government property as falling into three categories: (i) traditional public forums such as streets and parks; (ii) “designated” forums; and (iii) nonforums. As to the first, “[i]n these quintessential public forums, the government may not prohibit all communicative activity,” id. at 45, 103 S.Ct. at 955, but may enforce content-neutral time, place, and manner regulations narrowly drawn to serve a significant governmental interest and to allow adequate means of communication. Content-based exclusions can be justified only when they serve a compelling governmental interest and are narrowly tailored to achieve it. The second Perry category involves property made available or “designated” by the state for expressive activity. “Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum.” Id. at 46, 103 S.Ct. at 955. The third category involves property “which is not by tradition or designation a forum for public communication.” Id. KAP argues that KAPL transformed its non-secure areas outside the fence into a “designated” forum when it invited the leafletteers to use the entryway for leaflet-ting.

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Knolls Action Project v. Knolls Atomic Power Laboratory, 771 F.2d 46 (2d Cir. 1985).

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