IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Case No. 01 C 3115

Judge Ruben Castillo

AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS, on behalf of all persons and organizations similarly situated, Plaintiff,

v.

UNITED STATES GENERAL SERVICES ADMINISTRATION and RALETTA INGRAM, in her official capacity as General Services Administration Property Manager, Defendants.

AMENDED CLASS ACTION COMPLAINT

The American Civil Liberties Union of Illinois (“ACLU”), by and through its attorneys, submits its Supplemental and Amended Class Action Complaint against defendants General Services Administration (“GSA”) and Raletta Ingram (“Ingram,”) and together with GSA, (“defendants”) as follows:

INTRODUCTION

1. In two counts, this case challenges restrictions on expressive conduct on the federal plaza at the Kluzcynski Federal Building in downtown Chicago (“federal plaza”). In Count I, plaintiff challenges federal regulations and policies as applied to leafleting on the federal plaza.

Specifically, plaintiff challenges:

(a) the ban on leafleting on the federal plaza during the time another group or person holds a permit to use the plaza,

(b) the requirement of a permit to leaflet on the federal plaza, and

(c) the requirement of prior review of all leaflets to be distributed on the federal plaza.

In Count II, plaintiff challenges defendants’ blanket and temporally indefinite ban on expressive conduct on the federal plaza in the wake of the terrorist attacks that occurred in New York City and Washington, D.C. on September 11, 2001.

JURISDICTION AND VENUE

2. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

3. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e).

THE PARTIES

4. Plaintiff ACLU of Illinois, a statewide, non-profit, non-partisan organization with approximately 14,000 members, is dedicated to protecting the principles of liberty and equality embodied in the United States and Illinois Constitutions and civil rights laws. The ACLU engages in a wide range of expressive activity in traditional public fora, like the federal plaza, including speaking and the frequent distribution of written materials to the public at events organized by itself and by other entities. The ACLU intends to continue such activity, including at the federal plaza.

5. Defendant GSA is an independent agency of the United States Government charged with managing federal property. GSA is headquartered at the General Services Building, 1800 F Street, NW, Washington DC 20405, and has a regional office at the John C. Kluzcynski Federal Building, 230 S. Dearborn Street, Chicago, IL 60604. GSA manages property for the United States Government in Chicago, including the federal plaza.

6. Defendant Ingram is a GSA property manager at the Kluczynski Federal Building. Ingram is sued in her official capacity.

COUNT I:

Challenge to regulations and policies as applied to leafleting on the plaza

CLASS ALLEGATIONS

7. Plaintiff brings this action on its own behalf and on behalf of a class of all persons and organizations similarly situated pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. The plaintiff class consists of all persons and organizations that are now and will in the future be subjected to defendants’ regulations and policies regarding leafleting set forth in paragraph one above.

8. The plaintiff class satisfies all of the prerequisites stated in Rule 23(a):

(a) Upon knowledge and belief, hundreds of individuals and organizations have used and in the future will use the federal plaza for expressive purposes, including leafleting, and thus have been or will be subjected to defendants’ regulations and policies regarding leafleting set forth in paragraph one above.

(b) There are questions of law and fact common to the class. The common questions include whether defendants’ regulations and policies regarding leafleting violate the First Amendment.

(c) The claims of the named plaintiff are typical of the claims of the class. The named plaintiff frequently distributes written materials to the public at events organized by itself and by other entities, and it intends to continue doing so, including at the federal plaza. Also, the named plaintiff was subjected to defendants’ regulations and policies regarding leafleting.

(d) The named plaintiff will fairly and adequately represent the interests of the class. It has no interests antagonistic to the class. It seeks declaratory and injunctive relief on behalf of the entire class and such relief will benefit all members of the class. Finally, it is represented by counsel who are competent and experienced in civil rights and class action litigation.

9. The plaintiff class satisfies Rule 23(b)(2) because the defendants have engaged in a course of conduct common to all members of the class, and final declaratory and injunctive relief in favor of the class is therefore appropriate.

FACTS

The federal plaza

10. The federal plaza is a traditional public forum used frequently for rallies, demonstrations, markets and as a general public through-way. Its proximity to the seat of federal government in Chicago, and the access it provides to the significant volume of foot traffic which passes through it each day, make the federal plaza uniquely suited for the discussion of political, social and cultural issues. The federal plaza embodies the characteristics of a traditional public forum including, but not limited to, the fact that:

(a) The paving of the federal plaza is identical to and indistinguishable from the public sidewalks that surround it.

(b) There is no separation between, no fence, and no indication whatever to persons stepping from the sidewalk that borders the federal plaza to the federal plaza itself that they have left the public sidewalk and entered the federal plaza.

(c) The federal plaza is a heavily trafficked through route for those working in and visiting downtown Chicago and is part of the pedestrian transportation grid of downtown Chicago.

(d) The federal plaza was not constructed solely as a means of ingress and egress to the buildings that surround it.

(e) The federal plaza is an outdoor, non-enclosed area, open to the public.

(f) The federal plaza is compatible with the full range of expressive activity and has accommodated, for example, public rallies, demonstrations, performances, vendors, leafletters and other various and sundry persons or groups exercising their First Amendment Rights. The federal plaza has further accommodated persons or groups simply resting, talking, eating lunch or studying a map or tourist guidebook.

(g) Since its construction, the federal plaza has been open to the public for all manner of expressive activities. Defendants’ regulations and policies over expressive activity on the federal plaza

11. Defendants require a permit to leaflet on the federal plaza.

(a) The occasional use of certain GSA managed property is regulated by 41 C.F.R. 101.20.4, which provides: “Any person or organization desiring to use a public area shall file an application for permit with the GSA Building Manager.” 41 C.F.R. 101.20.401(a).

(b) Federal regulation prohibits the distribution of any materials such as pamphlets, handbills, or flyers on GSA controlled property except in “public areas.” 41 C.F.R. 101-20.309(b). The regulation states that “any person or organization proposing to distribute material in a public area under this section shall first obtain a permit from the building manager under Subpart 101-20.4 and shall conduct distribution in accordance with the provisions of Subpart 101-20.4.” 41 C.F.R. 101-20.309(b).

(c) For purposes of 41 C.F.R. 101-20.401, 403 and 309, the term “public area” is defined as “any area of a building under the control and custody of GSA which is ordinarily open to the public, including lobbies, courtyards, auditoriums, meeting rooms, and other such areas not assigned to a lessee or occupant agency.” 41 C.F.R. 101-20.003(z).

(d) On information and belief, GSA has construed the term “public area” to include the federal plaza for purposes of 41 C.F.R. 101-20.401, 403 and 309.

12. Defendants refuse to grant to any group or individual a permit to leaflet on the federal plaza during the time period that another group or individuals holds a permit to use the federal plaza.

13. Third, as a condition of securing a permit to distribute materials on the federal plaza, defendants require permit applicants to submit for review the handouts, posters, or pamphlets that will be distributed.

The October 22nd Coalition rally

14. The October 22nd Coalition (the “Coalition”) organizes nationwide rallies against police brutality. It obtained a permit from GSA to stage a rally on the federal plaza on October 20, 2000 (the “Coalition rally”).

15. Prior to the Coalition rally, the Coalition asked the ACLU and a number of other organizations concerned about the issue of police brutality to attend the Coalition rally and distribute each organization’s own anti-brutality literature. The Coalition sent a facsimile to the GSA in Chicago expressing its plans in this regard. GSA’s denial of a permit to the ACLU

16. The ACLU intended to distribute “Bust Cards” at the Coalition rally in order to reach an audience concerned about the issue of police brutality. Bust Cards are small reference cards written by the ACLU that list steps to take to avoid conflict during police encounters, and an explanation of rights individuals may exercise during such encounters. All of the expression within the Bust Cards is constitutionally protected speech under the First Amendment.

17. On October 19, 2000, ACLU Communications Director Edwin Yohnka went to the Kluczynski Federal Building to obtain a permit to distribute Bust Cards at the Coalition rally on October 20.

18. When Mr. Yohnka arrived, a GSA employee gave him a permit application and asked him to submit a copy of the Bust Card, stating that “we need to know what is being distributed.”

19. Mr. Yohnka completed the application under protest and submitted a Bust Card. The application and bust card were then brought to defendant Ingram.

20. Approximately five minutes later, defendant Ingram approached Mr. Yohnka and told him that GSA would not approve the ACLU’s application for a permit to distribute the Bust Cards on October 20th because another group (presumably the Coalition) already held a permit to use the federal plaza for the time period requested.

21. The distribution by the ACLU of the Bust Cards in conjunction with the Coalition rally on October 20 posed no reasonable threat of interference with access to any public area, disruption of any official government business, interference with the approved uses of the federal plaza, any damage to property, or any other injury or threat of injury to any governmental interest.

Injury to plaintiff

22. The ACLU did not distribute Bust Cards at the Coalition rally because it was denied a permit. There existed no reasonable alternative channel for communicating the ACLU’s message to those attending the Coalition rally.

23. Defendants’ regulations and policies regarding leafleting at the federal plaza set forth in paragraph one above impose an unreasonable restriction on the First Amendment rights of citizens and groups like the ACLU to express their views on political, social and cultural issues.

Necessity of injunctive relief

24. Unless enjoined by this Court, defendants will continue to impose the regulations set forth in paragraph one above upon individuals and organizations that seek to distribute leaflets on the federal plaza.

25. Plaintiff has suffered and will continue to suffer irreparable harm as a result of the regulations and policies set forth in paragraph one above.

26. Plaintiff has no adequate remedy at law.

CLAIM FOR RELIEF ON COUNT I

27. Plaintiffs incorporate by reference the allegations contained in paragraphs 1-26 as if fully set forth herein.

28. The distribution of written materials is a form of speech fully protected by the First Amendment.

29. The federal plaza is a traditional public forum for the purposes of the First Amendment.

30. The protections guaranteed by the First Amendment apply to regulations and policies promulgated and adopted by federal agencies such as GSA to the same extent they apply to laws passed by Congress.

31. The following GSA regulations and policies, both individually and collectively, violate the First Amendment:

(a) the ban on leafleting on the federal plaza during the time another group or person holds a permit to use the plaza,

(b) the requirement of a permit to leaflet on the federal plaza, and

(c) the requirement of prior review of all leaflets to be distributed on the federal plaza.

PRAYER FOR RELIEF ON COUNT I

32. WHEREFORE, plaintiffs request the following relief:

A. Entry of a declaratory judgment that:

(1) the refusal to grant to any person or group a permit to leaflet on the federal plaza because during the time period another person or group holds a permit to use the plaza violates the First Amendment;

(2) the requirement of a permit to leaflet on the federal plaza violates the First Amendment; and

(3) the requirement of prior review of all materials to be distributed on the federal plaza violates the First Amendment.

B. Entry of a preliminary injunction and then a permanent injunction:

(1) prohibiting defendants from refusing to grant to any group a permit to leaflet on the federal plaza because during the time period another group holds a permit to use the plaza;

(2) prohibiting defendants from requiring a permit to leaflet on the federal plaza; and

(3) prohibiting defendants from requiring prior review of all materials to be distributed on the federal plaza.

C. Award plaintiff its reasonable attorneys’ fees and costs.

D. Enter such additional relief as this Court may deem just and proper.

COUNT II:

Challenge to defendants’ blanket and temporally indefinite ban on expressive activity on the plaza

33. Plaintiff incorporates by reference the allegations contained in paragraphs 1-6 and 10 as if fully set forth herein.

CLASS ALLEGATIONS

34. Plaintiff brings this action on its own behalf and on behalf of a class of all persons and organizations similarly situated pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. The plaintiff class consists of all persons and organizations that are now and in the future will be prevented or deterred from engaging in expressive conduct on the federal plaza by defendants’ indefinite blanket ban on expressive conduct on the plaza.

35. The plaintiff class satisfies all of the prerequisites stated in Rule 23(a):

(a) Upon knowledge and belief, various individuals and organizations since September 11, 2001, have had their permits to use the federal plaza canceled and have been and will be unable to use the federal plaza for expressive purposes until the defendants’ blanket and temporally indefinite ban on such expressive activity on the federal plaza is lifted.

(b) There are questions of law and fact common to the class. The common questions include whether defendants’ blanket and temporally indefinite ban on expressive activity on the federal plaza violates the First Amendment.

(c) The claims of the named plaintiff are typical of the claims of the class. The named plaintiff frequently engages in expressive activity at traditional public fora, and it intends to continue doing so, including at the federal plaza.

(d) The named plaintiff will fairly and adequately represent the interests of the class. It has no interests antagonistic to the class. It seeks declaratory and injunctive relief on behalf of the entire class and such relief will benefit all members of the class. Finally, it is represented by counsel who are competent and experienced in civil rights and class action litigation.

36. The plaintiff class satisfies Rule 23(b)(2) because the defendants have engaged in a course of conduct common to all members of the class, and final declaratory and injunctive relief in favor of the class is therefore appropriate.

FACTS

37. Defendants have advised this Court through their counsel that defendants will not issue any permits to use the plaza during the remainder of this calendar year, and that defendants do not know when after the end of this calendar year they will begin to issue permits to the use the plaza. Thus, defendants have imposed an indefinite blanket ban on expressive conduct on the plaza.

38. Plaintiff seeks to exercise its First Amendment right to engage in expressive conduct on the plaza during the remainder of this calendar year and thereafter.

Injury to plaintiff

39. The ACLU would have, but has been unable to engage in any expressive activity on the federal plaza since September 11, and will be unable to engage in any such expressive activity on the federal plaza in the foreseeable future, because the GSA has banned all expressive activity on the federal plaza.

40. Defendants’ blanket and temporally indefinite ban on expressive activity on the federal plaza set forth in paragraph one above is an unconstitutional restriction on the First Amendment rights of citizens and groups like the ACLU who wish to express their views on political, social and cultural issues on the federal plaza, a traditional public forum.

Necessity of injunctive relief

41. Unless ordered by this Court, defendants will continue to impose their ban on speech on the federal plaza set forth in paragraph one above upon individuals and organizations that seek to engage in expressive activity on the federal plaza.

CLAIM FOR RELIEF ON COUNT II

42. Defendants’ blanket and temporally indefinite ban on expressive conduct on the federal plaza violates plaintiff’s First Amendment right to engage in expressive conduct on the federal plaza.

PRAYER FOR RELIEF ON COUNT II

43. WHEREFORE, plaintiff requests the following relief:

A. Entry of a declaratory judgment that defendants’ blanket and temporally indefinite ban on expressive conduct on the federal plaza violates the First Amendment.

B. Entry of a preliminary injunction and then a permanent injunction ordering defendants to lift their blanket and temporally indefinite ban on expressive conduct on the plaza; and

C. Award plaintiff its reasonable attorneys’ fees and costs.

D. Enter such additional relief as this Court may deem just and proper.

DATED: December 3, 2001