Full opinion text
OPINION BIUNNO, District Judge. The question presented in this case is whether the New Jersey Sports and Exhibition Authority (Authority) may have and enforce a policy forbidding the solicitation of money and the distribution of literature and other goods in exchange for a solicited donation, at the Meadowlands Sports Complex (Sports Complex) without thereby contravening the First Amendment as applied to the States through the Fourteenth Amendment. The suit is grounded on 42 U.S.C. § 1983. There is no issue of denial of access, as there was in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), which was an equal protection case involving the right of the Eagle Coffee Shoppe, Inc., a lessee of a Delaware public agency, to exclude Mr. Burton as a patron, and to refuse to serve him as it served others, solely on the ground that he was a Negro. At the time of Burton, of course, the Civil Rights Act of 1964 had not yet been enacted, and the constitutional issue in Burton could not arise today. See 42 U.S.C. § 2000a, which guarantees equal access to any “place of public accommodation” without regard to race, color, religion or national origin [par. (a) ], and which defines such a “place” as including “any restaurant .. . principally engaged in selling food for consumption on the premises” [par. (b)(2) ], as well as any “sports arena, stadium or other place of exhibition or entertainment” [par. (b)(3)]. The same concept is embodied even more broadly in New Jersey’s Law Against Discrimination, which forbids discrimination because of “race, creed, color, national origin, ancestry, age, sex, marital status or liability for service in the Armed Forces”, NJSA 10:5-3, or because of the “physical handicap of such person”, NJSA 10:5-4.1. For the definition of a “place of public accommodation”, see NJSA 10:5-5(7), and for the specific prohibition of denial of access for that category, see NJSA 10:5-12(f). Although there is an entrance fee (by way of a parking charge) to enter the Sports Complex at all, and an admission fee (by way of ticket) to enter the racetrack or stadium, all who pay may enter without restriction based on any ground forbidden by either the federal or state statute. Nor do plaintiffs claim any right to enter without payment of the parking and admission fees charged to all patrons. Nor is there any issue of equal protection raised against the policy forbidding solicitation and distribution. There is no suggestion that the policy allows some patrons to solicit or distribute and others not, or that there is any discretion to do so. The policy is uniform and applies to all patrons. Of course, there is distribution and sale of literature and merchandise by the concessionaires of the Authority, and by its tenants and licensees, such as the Giants football team and the Cosmos soccer club, but these are items directly connected with the specific activities carried on, such as programs and related souvenirs, or necessary incidentals such as food and beverages. All of these are an inherent part of the conduct of the Sports Complex and to not only accommodate patrons but also to support the revenues. Also, there is no issue in this case involving denial of pure speech. Nothing in the policy forbids conversations between patrons on any subjects of interest to them. Reasonably construed, the policy is aimed at the organized solicitation of funds, by whatever means, to support a purpose unrelated to the activities for which the Sports Complex is operated, no matter how worthy or appealing such other purposes may be. The evidence showed without contradiction and without exception that all requests for permission to solicit have been uniformly declined. Finally, there is no issue in this case of allowing solicitation and sales by outside groups from booths, in contrast to peripatetic solicitation and sales away from booths, as has been involved in some State Fair cases. There are no solicitation booths for use by outsiders, whether civic, charitable, religious or commercial. The only booths, and they are few in number, are portable (usually wheeled) ones for the concessionaires selling food, beverages, souvenirs, programs, and newspapers known for publishing daily racing information. From the court’s viewing, of the racetrack on one occasion and of the stadium on another, it is obvious that both structures were designed and built to Spartan standards, without the provision of space for booths in sufficient number to accommodate the wide array of solicitors who would be entitled to a fair and reasonable opportunity to be assigned a booth if that system were adopted. Nor do the pleadings or the evidence even remotely suggest that the Authority is under any obligation to provide booths, or that plaintiffs have any desire to make use of a booth. The claim is one for peripatetic or ambulatory solicitation and distribution coupled with requests for donations. I. The Sports Complex. The Authority was created by N.J.P.L. 1971, c.137, NJSA 5:10-1, et seq. The title of the Act is: “An Act to provide stadiums and other buildings and facilities in the Hackensack meadowlands for athletic contests, horse racing and other spectator sporting events and for trade shows and other expositions; creating the New Jersey Sports and Exhibition Authority and defining its powers and duties; authorizing the issuance of bonds and notes of the authority, providing for the terms and security thereof; and providing an appropriation therefor.” The general history preceding this enactment is well-known throughout the State and may be judicially noticed. Much of the history is reviewed in the litigation challenging the validity of the Act under the N.J. Constitution. See N.J. Sports and Exposition Authority v. McCrane, 119 N.J.Super. 457, 292 A.2d 580 (1971), modified and affirmed 61 N.J. 1, 292 A.2d 545 (1972), appeal dismissed 409 U.S. 943, 93 S.Ct. 270, 34 L.Ed.2d 215. Very briefly, the impetus arose from the long dissatisfaction felt in New Jersey with its perceived inferior position between the major cities of New York and Philadelphia, as well as vis-a-vis other States, in respect to professional athletic facilities. In the old days, before TV cut into stadium attendance, New Jersey had at least two important baseball farm teams, the Newark Bears (a farm team for the Yankees) and the Jersey City Giants (a farm team for the Giants). These have long vanished. When professional football made its bow, there were some minor league games at the Newark School Stadium, but not much else, and even that vanished when professional football built a following on TV broadcasting, culminating with the Superbowl game. The economics of professional sports also changed drastically with time. Major revenues came to be derived from TV broadcasting rather than from paid attendance, and with the enlargement of leagues and transfer of teams to various parts of the country, New Jersey saw itself slighted. During the administration of Governor Cahill, the idea was conceived of trying to attract a major league professional team to a New Jersey home location. The only interest developed was with the New York Football Giants who, for a while, were without a stadium and played their home games at the Yale Bowl in Connecticut. There was never any question about where a stadium should be located, if one were to be built, and that location was in the Hackensack meadowlands, some 20,000 acres of semi-swampland and the largest undeveloped area of real estate near New York City.- Development of the Meadowlands had been a much discussed and studied dream for a very long time. In 1968, the Meadow-lands Development Commission was created, P.L. 1968, c. 404, NJSA 13:17-1, et seq. to try to organize a specific plan or program to put this area to use. Aside from its proximity to New York City, the area is threaded with major highways and is accessible via Route 3 to mid-town New York, via Route 80 and the N.J. Turnpike to the George Washington Bridge, and via the Garden State Parkway and Route 3 to the N.Y. Thruway. The northern segment of New Jersey is heavily populated as well, and adds to the New York potential “market”. It was soon found, however, that no professional team had the financial ability to undertake the capital expense of land acquisition, site preparation and construction of a major league stadium and supporting facilities. Direct State funding was ruled out because of the need for a statewide referendum under NJ.Const., 1947, Art. 8, sec. 2, par. 3. An autonomous public instrumentality issuing revenue bonds was out of the question because the revenues from a stadium could not possibly meet bond service requirements and it would be impossible to sell the bonds. Whoever the author was, someone came up with the idea that if a pari-mutuel race track were built along with the stadium, its revenues could carry the combined project. This is what was done. The policy declaration in NJSA 5:10-2 emphasizes the public need for inducing professional athletic teams (particularly major league football and baseball) to locate their franchises in New Jersey, and the need to provide stadiums in addition to horse racing. The powers in NJSA 5:10-5 mention the holding of horse race meetings and the operation of a pari-mutuel system of wagering, but do not mention a “stadium”. This is mentioned in NJSA 5:10-6. Even after the act was passed and its validity under local law established, however, the project was not activated at once, no doubt due to the financial uncertainties of the 1973 OPEC oil embargo and the ensuing quadrupling of oil prices. In any event, in the transition period between the Cahill and Byrne administrations, the latter decided to have the project go forward. See Exh C-3, the financial “prospectus” for the 1974 revenue bonds dated January 15, 1974. The insert between pp. 8-9 of that exhibit shows the master site plan, which has been executed substantially as shown. The estimates at that time foresaw $58.8 million for land acquisition, $46.7 million for site preparation and parking areas, $42.8 million for the race track, and $48.8 million for the stadium. See Exh C-3, p.12. Net operating revenue for 1977 were estimated at $28.7 million from the racetrack, Exh. P-3, p.18, but no estimate was made of net revenues from the stadium. The “prospectus” for the 1978 refunding bonds, Exh. C-4, carries actual figures for 1977. At p. 15, it shows $49.4 million of racing revenue before administrative expenses, and $1.2 million of stadium revenue before those expenses, which aggregated $3.3 million. See, also, p. B-6 of Exh. C-4. So far as land, site preparation and construction costs are concerned, Exh. C-4 shows at p. B-18 that land cost at the end of 1977 was $57.7 million, site preparation was $55.5 million, construction of the race track was $60.6 million, and of the stadium $75.9 million. Taking just the stadium construction cost of $75.9 million, the net revenue of $1.2 million before administrative expense works out to less than 2%, or not even enough to pay the stadium’s share of bond interest (7.5% on the 1974 term bonds and 6.25% on the 1978 term bonds). That the race track revenue substantially carries the entire project is beyond dispute. From the standpoint of the N.J. constitution, the authorization to conduct pari-mutuel wagering at the race track derives from an amendment to Art. 4, sec. 7, par. 2 of the 1844 Constitution, adopted at a special election June 20, 1939 and proclaimed July 11, 1939. That amendment authorized pari-mutuel betting at duly legalized race tracks, thereby modifying the original 1844 Constitution which barred the legalization of any lottery, and the 1897 amendment which barred the legalization of any “pool-selling, book-making or gambling of any kind.” When the 1947 Constitution was adopted, the 1939 authorization for pari-mutuel betting at legalized race tracks was continued in force by reference: Art 4, sec. 7, par. 2 begins with the general prohibition: “No gambling of any kind shall be authorized by the Legislature” It then excepts: “unless the specific kind, restrictions and control thereof have been heretofore submitted to, and authorized by a majority of the votes cast by, the people at a special election...” The 1939 special election for pari-mutuel betting at horse race tracks was the only one within this language. One of the difficult problems with the Authority’s enabling legislation was one of the controls specified by the 1939 amendment, which allowed: “pari-mutuel betting on the results of the racing of horses only, from which the State shall derive a reasonable revenue for the support of government...” (emphasis added) Detailed analysis of this provision is found in the several opinions in 61 N.J. 1, 292 A.2d 545 (1972). After the 1939 constitutional amendment authorizing pari-mutuel betting at legalized race tracks, there were four separate tracks licensed by the State Racing Commission. These were the Garden State Race Track (outside of Camden), the Monmouth Park Race Track (west of Long Branch), Atlantic City Race Track (near Atlantic City) and Freehold Race Track (off Route 9, Freehold). All four were privately owned and operated, with the State receiving a share of the gross bets. The first three were “flat” or thoroughbred tracks, while Freehold was a harness racing track. Thus, the race track at the Sports Complex is the only New Jersey track owned and operated by an instrumentality of the State, i.e., the Authority. To satisfy the 1939 constitutional amendment that the legalized pari-mutuel betting provide a reasonable revenue for the support of government, the enabling legislation requires that xh of 1% of the gross amounts bet be deposited annually in the General State Fund “as an initial payment to the State”, NJSA 5:10-7(f). In addition, after making all payments and setting aside all reserves called for by the bond resolution, and payments to local municipalities in lieu of taxes under NJSA 5:10-18, subd. b and c, the remaining balance is to be deposited in the General State Fund, NJSA 5:10-6, subd. b(6), with 40% thereof to be appropriated to the Meadowlands Commission. By amendment of 1978 in connection with refunding bonds issued by the State pursuant to referendum, the 40% share for the Meadowlands Commission is to be appropriated from the balance of the amount so paid after deducting debt service savings realized from the refinancing so achieved. Also, in 1978, after a fire that destroyed the structures at the Garden State Race Track, a supplemental law was passed to enable the Authority to acquire the land, reconstruct and operate the track, but only upon presentation of a feasibility study demonstrating that the project would generate revenues sufficient to insure repayment of indebtedness incurred, and that the operation will not have a materially adverse effect on the operations and financial condition of the Sports Complex. Legislative approval is also required before undertaking the project. See NJPL 1978, c. 1, NJSA 5:10-27 (pocket part). The Garden State project has not been undertaken. At the time of trial, the Sports Complex consisted only of the two facilities: the race track and Giants stadium. The racetrack had been enlarged by adding a fourth floor to house an enclosed restaurant seating 1,000 patrons and equipped with some 70 pari-mutuel windows (Exh. C-4, p. 14). Another project, in the early stages of construction at the time, was a 20,000 seat arena on a previously undeveloped 67 acres at the east end of the Sports Complex site. Aside from indoor sports activities (i.e., basketball, hockey, etc.), the facility was planned with 40,000 sq. ft. of potential exhibit space which, if used with the arena floor, can support industrial and leisure-type exhibits and shows. Parking would be provided for 4,000 cars with overflow using the 20,000 car area in existence for the race track and stadium. See Exh. C-4, p. 13. Since trial, the arena has been completed and was opened in August, 1981. No part of the present suit, and none of the evidence of record, deals with this third structure. This opinion contains no ruling in connection with the arena structure. II. The “State Action” Issue In order to support a claim under 42 U.S.C. § 1983, the deprivation of asserted rights under the Constitution or laws of the United States must be “under color of state law”. The defendants have taken the position that the race track and stadium are operated precisely in the same fashion as private facilities are. Reliance is placed on testimony, such as that of the witness Harter, to the effect that: 1. The Authority project was financed with funds from the private sector through the issuance of bonds (the capital structure is 100% debt and zero equity), and not with tax funds. 2. The Authority is a supplier of funds rather than a user of funds. It is to be a profitmaker. It generates revenues in the same way as private enterprises. It relies on ticket sales, institutional advertising, and the efforts of its lessee and licensee, the Giants and the Cosmos. 3. The employees at the managerial level are drawn from private enterprise and with experience in the subject field. 4. All employees, whether managerial or rank and file, are not in the civil service, and such labor unions as are recognized are private sector unions. 5. The Authority has its own private plan for medical and life insurance benefits, entirely separate and apart from any plan applicable to State employees. 6. The Authority depends on being able to meet competition from private industry such as Madison Square Garden, Roosevelt Raceway, Monmouth Park, Yonkers Raceway, and others. 7. It deals on a day-to-day basis with business people as customers, such as the Giants and the Cosmos. Even colleges and high schools utilizing the facilities are dealt with as business customers. 8. A large group in private business with which it deals are in the race track: owners, trainers, horsemen, suppliers, vendors, grooms, jockeys and drivers are all in private business and deal with the Authority as independent contractors. 9. It depends a good deal on advertising. There is no captive market. The Authority is not like a sewerage or water authority where there is but one place to go. 10. It uses outside consultants in the fashion of a private corporation, including outside general counsel, advertising and public relations consultants, TV consultants, and a variety of others. In sum, the argument is that the Authority is engaged in business activities of a private sector nature — what is generally regarded as a proprietary function rather than a governmental function, such as providing roads and streets, or water or sewerage or general police and fire protection and the like. The distinction has long been recognized for one purpose or another. That the facts testified to are true the court has no doubt, and it is a fact that the betting operation (on which the financial success of the effort mainly depends) is required to provide reasonable revenues for the support of government, just as privately owned and operated New Jersey race tracks must do. These facts, though they may be relevant to other issues, however, are not controlling as the court sees it on the question of State action. See, e.g., Marsh v. Alabama, 326 U.S. 501, 502, 66 S.Ct. 276, 277, 90 L.Ed. 265 (1946), involving a “company town” privately owned. The Authority’s “certificate of incorporation” establishes it as “a public body corporate and politic ... as an instrumentality of the State exercising public and essential governmental functions .. .”, NJSA 5:10-4, subd. a. Also, N.J.Const.1947, Art. 5, sec. 4, par. 1 requires that “All executive and administrative offices, departments, and instrumentalities of the State government ... shall be allocated by law among and within not more than twenty principal departments. ..” By NJSA 5:10-4, subd. a, the Authority is established “in the Department of Community Affairs”, in compliance with the constitutional mandate. Action taken by the members of the Authority (equivalent to its directors or trustees) is subject to veto by the Governor within 15 days after delivery of the minutes of each meeting to him, NJSA 5:10-4, subd. i. The challenged policy is reflected in minutes of meetings of July 14, 1977 (Exh. P-102) and October 13, 1977 (Exh. P-101). There was no evidence that the minutes were delivered to the Governor, but if they were not, then under the veto provision they never took effect. Since that section requires that a true copy of the minutes of every meeting be delivered “forthwith” to the Governor, the presumption is that the law was obeyed. And, since there is nothing to show that the Governor disapproved them within 15 days, they took effect with his implied consent. Beyond that, in the litigation challenging the constitutionality of the enabling act, it could not have withstood the challenge without the determination by the Supreme Court of New Jersey that the statute was for public purposes and that the Authority was a public entity and an instrumentality of the State. This it found, 61 N.J. 1, 292 A.2d 545 (1972). In these circumstances, the court sees no legal basis for determining that the challenged policy is not under color of state law, and concludes that State action exists. Of course, a finding of State action is only the beginning of the inquiry. Without it, the inquiry would end. But the existence of State action does not at all imply that the action taken is invalid. The policy of the Authority is confined to its restricted domain at the Sports Complex, covering at most 750 acres of meadowlands, see NJSA 5:10-22. A site of 750 acres is hardly the entire State of New Jersey or, for that matter, is it more than a speck of the State’s total area of 8,204.87 sq. miles. III. The Religion and the bona-fides of plaintiffs. There was considerable testimony, and massive amounts of documentary exhibits about the claimed religion. A summary of what was shown is set out in Appendix A to this opinion. It is enough here to say that the claimed religion is a Western World variation of an offshoot or sect of the ancient Hindu religion, attributed to Lord Caitanya in the late 1400’s or early 1500’s. His teachings are said to have been brought to Canada in 1896, and to New York in about 1965. There seems not to be any specific name for the Western variation. It is described as the Hare Krishna movement, or Krishna consciousness, but these terms seem equally applicable to the underlying Caitanya sect. At least so far as secular auxiliary entities of the religion are concerned, the phrase most commonly used seems to be the International Society for Krishna Consciousness, and its acronym, ISKCON. However, as the Appendix discloses, more than a dozen separate entities exist in the United States with the same or nearly the same name. The religious umbrella for these units appears to be a vaguely described group of “commissioners”, each assigned to a territorial segment on a world-wide basis, yet there seems not to be any central unit of a structural or organizational nature. About all that can be said is that all of the local or regional units are devoted to the common deity, Krishna. The tenets of the religion itself are unfamiliar ones, but this in no way indicates anything of substance in this case. The world is filled with countless religions unfamiliar to non-believers. See, for example, Malnak v. Yogi, 440 F.Supp. 1284 (D.N.J.1977), dealing with the Science of Creative Intelligence or Transcendental Meditation. Perhaps all that can be said is that each religion, familiar or strange, is marked by the faith of its adherents. “Faith is the substance of things hoped for, the evidence of things not seen.” New Testament, Hebrews, xi, 1. As a perceptive skeptic once put it, “Faith may be described briefly as an illogical belief in the occurrence of the improbable.” H.L. Mencken, “Prejudices”, Series iii, p. 267. The difficulty, of course, is that to enter into the question of faith is to invite tests of the kind employed during the Spanish Inquisition, and our secular courts have historically avoided such entanglements. The issue at trial evoked considerable testimony approaching the subject while also skirting or avoiding it. This is due to the fact that the plaintiffs assert that the solicitation of donations, or the distribution of literature or merchandise intended to secure donations, is an essential part of a Krishna religious ritual called sankirtan. The defendants’ position is that the claim is a sham and no more than a cover for fraudulent and scheming solicitations. So far as the bulk of the religious literature put in evidence discloses, sankirtan consists of a display of the complete emotional and spiritual unity of a true believer with Krishna, which takes the form of an ecstatic dancing, singing, chanting, playing of musical instruments, and the like. Plaintiffs do not contest this, but say that obtaining donations is an essential part of sankirtan, and so is itself called sankirtan even in the absence of its other components. This dispute, and its resolution (if it could be resolved) has no influence on the outcome of this suit. The ISKCON units and the devotees of Krishna are at least auxiliaries seeking to raise funds for the advancement of the religion, whatever its name, and to proselytize or propagate the faith, even though the former may predominate. It is well established that colporteuring, by itself, comes within the protection of the “free exercise” clause. See Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 81 L.Ed. 869 (1943); Largent v. Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873 (1943); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Follett v. McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944), for example. New Jersey law recognizes religious activity, or activity in support of religion, as falling within the sphere of charitable works. In MacKenzie v. Trustees, etc., 67 NJ.Eq. 652, at 665, 61 A. 1027 (E & A, 1904), and in Noice v. Schnell, 101 N.J.Eq. 252, at 259, 137 A. 582 (E & A, 1927), its then highest court quoted with approval and followed the classic definition expressed by Mr. Justice Gray, in Jackson v. Phillips, 96 Mass. 539, at 556 (1867): “A charity, in the legal sense, may be more fully defined as a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government.” To come within the protection of the “free exercise” clause, it is not necessary that the form of exercise itself be a ritual or ceremony typical of or required by the particular religion. At least so far as fund raising is concerned, it is clear from the cases that such activity, carried on to advance and support the religious purpose, is sufficient in and of itself. Again, local law provides a good example. By referendum of November 3, 1953, N.J. Const., 1947, Art. 4, sec. 7, par. 2 was amended to legalize the conduct of bingo games and raffles by bona fide charitable and benevolent or civic organizations, so long as “the entire net proceeds of such games of chance are to be devoted” to the charitable or public-spirited uses. Religious purposes are expressly included. It is true that the enabling statutes, NJSA 5:8-1, et seq., and the rules and regulations of the Legalized Games of Chance Control Commission, N.J.A.C. 13:47-1.1, et seq. impose strict regulatory controls and detailed reporting and accounting to assure that only bona fide qualified organizations are licensed, that commercial or fraudulent aspects are excluded, that the gross receipts are not siphoned off, and that the entire net proceeds of the games are actually devoted to one or another of the authorized purposes. The point is, however, that the games may be run by a church, or by some auxiliary secular organization in support of a church, without regard to whether gambling is a sinful activity from the standpoint of the particular religion. Thus, the court finds from the evidence that the ambulatory colporteuring which plaintiffs wish to carry on within the Sports Complex comes within the protection of the free exercise clause, without regard to whether the activity is in fact one required by the Krishna religion and without regard to whether it is or is not part of the ceremony of sankirtan. The question so decided is quite different than that which would arise if the activity were an actual religious ceremony, and if the observance of it involved the expenditure of funds by the Authority, see Gilfillan v. City of Philadelphia, 637 F.2d 924 (CA 3, 1980). IV. The Forum Issue. The major issue presented is whether the Sports Complex, as it was built and operated at the time of trial, was a “forum” at all. There are relatively few decisions dealing with the point, no doubt because few, if .any, organizations would attempt to engage in colporteuring in locations that cannot reasonably be regarded as public forums. The invisible, indefinable and thin division that constitutes “social order” is a division marked by self-restraint. It is the common understanding that insistence upon the unlimited exercise of “rights” by one will inevitably degrade and invade the “rights” of others, or, as the Latin expression goes, sic utere tuo, ut alienum non laedas. In those cases where the point has been dealt with, the Supreme Court has not hesitated to make clear that merely because someone wants to express views, or proselytize, or colporteur, or carry signs and banners, it does not follow that they have a constitutional right to do so whenever and however and wherever they please. When that premise has been advanced, the Supreme Court has rejected it ■ vigorously, forthrightly and repeatedly. It has emphasized that the United States Constitution does not forbid a State to control the use of its own property for its own lawful and nondiscriminatory purposes. It has said that it is a mistake to think that whenever members of the public are permitted to enter a place owned and operated by government, then that place becomes a “public forum” for purposes of the First Amendment. It has said that such a principle of constitutional law has never existed and does not exist now. It has said that the State, no less than a private person, has the power to preserve the property under its control for the use to which it is dedicated. See, for example, Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966); and Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976). The point is significant because when the government property is not a “public forum”, it need only demonstrate a rational basis for the restraints imposed or, put another way, show that they are not arbitrary, capricious or invidious. Thus, Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) held that a municipal decision not to accept political advertising (even though paid for) on its mass transit system was warranted “in order to minimize chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience”. 418 U.S. at 304, 94 S.Ct. at 2718 (emphasis added). In Jones v. North Carolina, etc., 433 U.S. 119, at 134, 97 S.Ct. 2532, at 2452, 53 L.Ed.2d 629 (1977), the Court said that since the prison was not a public forum, the authorities need only demonstrate “a rational basis” for the regulation under challenge. The decision in Lehman, supra, 418 U.S. at 303, 94 S.Ct. at 2717, put the test of policies regulating advertising space on the basis of whether they were “arbitrary, capricious, or invidious.” In the present case, it is important to note the difference between what the enabling Act empowers the Authority to do, and what it had done as of trial time. Thus, NJSA 5:10-2 expresses a legislative policy to provide stadiums, facilities for horse racing, “forums” and exhibitions for the public. Similarly, NJSA 5:10-6, in granting the Authority power to construct, operate and maintain projects on a site not to exceed 750 acres of Hackensack meadowlands, speaks of stadiums, a race track and other buildings suitable for the holding of “public meetings” and other uses such as “recreation areas”. The opinion of Judge (now Justice) Pashman, in upholding the constitutionality of the enabling Act under State law, N.J. Sports etc. v. McCrane, 119 N.J.Super. 457, 292 A.2d 580 (Law, 1972), modified and affirmed 61 N.J. 1, 292 A.2d 545 (1972) referred to the powers and plans to provide “forums”, facilities for “public meetings”, as well as “parks” and “recreation areas” (119 N.J.Super. at 463, 292 A.2d 580). He mentioned “preliminary design” for a stadium, a race track, “an exposition hall, a hotel”, a baseball stadium and a “20,000 seat arena.” (119 N.J.Super. at 467, 292 A.2d 580). He mentions the power to create a “forum” again, 119 N.J.Super. at 477 and at 479, 292 A.2d 580. He refers to papers filed by the Authority chairman indicating that the complex, in addition to racing, will consist of “flowing stocked pools for fishing, an aquarium, enclosed all-weather tennis courts”, 119 N.J.Super. at 490, 292 A.2d 580. The fact of the matter is that at trial time the Authority had not yet constructed or provided any facilities other than the race track and the stadium, with the supporting facilities. There was no facility that could be regarded legitimately as a “forum”, a place for “public meetings”, or any “parks” or “recreation areas”, or any “exposition hall”, or “hotel” or “20,000 seat arena”. There were no fishing pools, there was no aquarium, and no enclosed all-weather tennis courts. All these envisioned and empowered projects were in the future as the Complex gradually became reality built on the dream of swampland. The prospectus for the 1978 bonds, Exh. C-4, at p. 13, in discussing plans for the 20,000 seat arena opened in August, 1981, mentions the availability of some 40,000 square feet of potential exhibit space which, if used in conjunction with the arena area floor space, would provide the facility with the capability of supporting industrial and leisure-oriented exhibits and shows. It may well be that such uses, when scheduled, will support the placement and availability of booths for the exchange of money arising from fund solicitation by organized charities, including plaintiffs, on a basis like that dealt with in Heffron v. International etc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). The record here, however, was compiled before the Arena was completed and so does not contain any factual basis for considering the Authority’s challenged policy in respect to the Arena, and the court is limited to considering the Complex as it stood, with just the race track and the stadium. In any event, the fact is not in dispute that the development of the Complex has been phased in stages. The basic figures set out above in Part I — The Sports Complex, show that the construction and operation of the race track was the sine qua non to the sale of the revenue bonds and to the start of any part of the project. It was built and began operations in September, 1976, see Exh. G-i, p. 12. The stadium began operations a month later, idem. Even before the race track was open, the Authority was conducting race meetings at other track facilities and deriving revenue from them. The tabulation in Exh. C-4, p. 15, shows that in 1976 the Authority derived more than $1 million in revenues from “offsite racing”. This revenue dropped to $127,218 in 1977 as the racetrack came into full operation and dropped to zero in 1978. In 1977, the race track operated for 280 racing days, with net racing revenues of more than $84.4 million (after purses, remittances to the trust account and to the State, but before racing expenses), or an average of $301,460 for each racing day. In the same year, there were 14 professional football games (i.e., Giants) and 21 professional soccer games (i.e., Cosmos) for a total of 35 events involving the two major users, plus 9 other events for a grand total of 44 days. See Exh. C-4, p. B-6, footnote 1. For that year, stadium revenues (before Stadium expenses) were $6,357,821 which averages $145,000 a day for each of the 44 days. This average per day is a little less than half the average per racing day, but there were more than 6 times the number of racing days than there were stadium days. So, as these ratios indicate, the track revenue was more than 13 times the stadium revenue. It was not until about two full years of operation that it became financially feasible to market bonds to enlarge the racetrack by adding the fourth floor restaurant and betting windows, and to undertake construction of the Arena, as shown by Exh. C-4, the prospectus of December 1, 1978, whose figures embrace the period from September, 1976 to the end of October (10 months) of 1978. As the Prospectus points out: “Future Facilities. The Authority has given consideration to the future development of available land at the Sports Complex site, and it expects that further development will occur. Plans for such future development are not yet sufficiently advanced to be included in the financial forecasts.” (Exh. C-4, p. 14) Thus, while the power exists to further develop the site to provide forums, places for public meetings, parks, recreation areas, a hotel, a baseball stadium, flowing stocked pools for fishing, an aquarium, enclosed all-weather tennis courts, and the like, none of these had been provided at trial time and they simply do not exist except, as noted above, to the extent that the new Arena may constitute a forum or place for public meetings, depending on the events scheduled from time to time, but in respect to which there is no evidence in the present record. Certainly, it cannot be successfully maintained, as a matter of local law under the enabling Act, or as a matter of constitutional law under the First Amendment, that the Authority is obliged now and at once to provide a public forum at which plaintiff and others may engage in the activities they desire. All of the cases on the subject deal with what exists, and none the court is aware of remotely suggests that where a facility in existence is not a public forum, there is some undefined obligation either to make it one or to provide one. The record in this case is clear that neither the race track nor the stadium is designed, built, intended or used as a public forum. The same is true of the blacktop automobile parking areas bordering them. For this reason, neither the plaintiffs nor any others desiring to carry on like solicitation for their own ends may legitimately advance the claims made here. The evidence in the case, supplemented by the observations made at the two views (one for the racetrack and the other for the stadium) shows that the patrons come to the Complex as their destination, to attend the event scheduled. They pay to enter the site, they pay to enter each structure, and stay within it until ready to leave. Patrons may not move freely from the structures to the parking areas and back again on the same admission ticket. At the daytime event at the stadium viewed by the court, there' were some early arrivals who set up tables, grills and the like until ready to enter the stadium, but it would strain credulity to say that they came to the Complex for a picnic in the park. They came to attend the game, and the picnics are incidental to and an inherent part of that attendance. Those who picnicked were a small fraction of the total, and by the time the main group has arrived the lots are paved with cars for acres around, and once the game begins there are no people in the parking areas at all. Once the game is over, all but a hardy few leave as rapidly as the surrounding roads and traffic patterns permit. At the race track there was no sign of picnics, even though it was still daylight at 6:30 PM. When the racing ends, it is dark (even with daylight saving) and there is no lingering in the parking areas. The proffered testimony of the witness Kent did not show otherwise, or have any tendency to. His opinions merely expressed the view that any open area can physically be put to use for any of the wide variety of uses that open areas can be used, disregarding the fact that the actual use was quite different and did not include the imaginary uses to which he testified. He ignored the realities of the situation, namely that patrons come to go to the race track or the stadium, and do not come for other purposes. He ignored the fact that the walkways outside and inside the stadium are essentially empty during the game, except during half-time when the interior walkways are extremely crowded with those in line at food counters or at restroom doors, and that movement is quite difficult. Similarly, at the race track, his attention was centered on watching individual patrons or groups of patrons but ignored the pari-mutuel operation which is the financial support of the entire project. He was unfamiliar with or' did not notice the numerous displays, by boards or closed circuit TV screens throughout the building, which are used to disseminate the figures for the odds relied on by every bettor, skilled or not. From his testimony it would be difficult to tell that anyone was much interested in the races or the betting, a perspective that is at odds with reality. Although received, his testimony both as an observer of fact and as expert opinion was of little weight and unpersuasive. There is nothing that the court observed in its two viewings to support the proposition that either structure or the areas around them have any sensible resemblance to streets, parks or other public places that have “immemorially been held in trust for use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens and discussing public questions.” Hague v. C.I.O., 307 U.S. 496, at 515, 59 S.Ct. 954 at 964, 83 L.Ed. 1423 (1939). The only similarity between a “park” and the “parking areas” at the Complex is semantic, in that the same four letters appear in both terms. V. The Giants and the Cosmos. The New York Football Giants, Inc. is a privately owned, profit-making corporation. It is the primary tenant of the stadium and its parking area under a 30-year lease signed August 26,1971. Under that lease it is entitled to exclusive possession of the property on the dates and for the periods specified. At times when it is not using the stadium facilities for its own activities, the Authority may allow use by others. The Cosmos Soccer Club, Inc. is also a privately owned, profit-making corporation. It uses the stadium facilities at times allowed by the Giants’ lease, under a 10 year license signed in October, 1977. The Authority derives revenue from these uses on a formula basis that deals with parking charges, admission fees, concessions and the like, the effect of which is for a sharing of the revenues between the Authority on the one hand and the Giants or Cosmos on the other. The number of occasions when the stadium is in use by one or the other, and at which revenues are generated, is limited by the particular season for football or soccer, by the frequency of games during the season (including exhibition and play-off games), and by the system of playing games “at home” or “away”. The stadium is also used at other times for such purposes as college or high school football games, religious conventions, commencement exercises, and so on. These uses are not numerous and do not generate the level of revenues produced by Giants games or Cosmos games. For a substantial part of a whole year, then, the stadium generates no revenues at all. Under the arrangements with the Authority, these two professional sports organizations derive revenue from patrons for their own use in conducting their enterprises, hopefully at a profit. As to those aspects, each makes its own decisions. Both were made parties defendant at the direction of Judge Stern when the case was assigned to him, due to the obvious and continuing interest which each would have in the outcome of the case. The evidence was that plaintiffs made no request of either the Giants or the Cosmos, as they did of the Authority, and there is no evidence of a policy or rule or regulation of either, in its own right as tenant or licensee, to bar solicitation of funds, and so on, as the Authority has. Despite this evident gap, it is the posture of plaintiffs that should the Authority policy be set aside, they will be entitled to enter and engage in the desired fund raising activity (by colporteuring or otherwise) even while the Giants or the Cosmos have exclusive possession for the conduct of their separate business activities. Both private defendants take the position that plaintiffs failed to make even a prima facie case that either team has acted under color of state law, or that either team has deprived plaintiffs of alleged First Amendment rights. As the court sees the matter, it is no doubt true that so long as the Authority policy is in force, the subject need not be dealt with by either the Giants or the Cosmos, at least so long as they do not perceive the policy as adversely affecting any interest or right of theirs under the lease or the license. On the other hand, a different posture would be presented if either one wished to allow plaintiffs to come in and engage in peripatetic solicitation and so on at a time when it had exclusive possession. The reverse situation would occur if there were no Authority policy, or if it be held invalid, and either one wished to bar peripatetic solicitation at a time when it had exclusive possession. Plaintiffs rely heavily on Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) for what amounts to the proposition that the nexus between the Authority’s activities and those of the Giants and Cosmos is so close and so complete that if the Authority cannot bar the plaintiffs, neither can the Giants or the Cosmos. The argument claims too much. In the first place, as noted at the outset, Burton was an access case, not a First Amendment case. In the second place under the later Civil Rights Act of 1964, 42 U.S.C. § 2000a, and under New Jersey’s Law Against Discrimination, neither the Giants nor the Cosmos could bar access to anyone on grounds of religion or creed, since the stadium comes within the definition of both statutes as a “place of public accommodation”. And those statutes both apply to such places even when wholly owned and operated by private interests. No “state action” need be shown. Put another way, Mr. Burton was found entitled to enter the Eagle Coffee Shoppe just as any other customer, without regard to his race or color, and be served in the same way and to the same extent. Nothing in Burton, or in any other case, remotely suggests that having gained access, he could further claim a constitutional right to engage in First Amendment activity within the restaurant, such as distributing literature for donations, or make a. speech, or carry a placard, or whatever, contrary to the rules of the establishment. So, here, even if there were no Authority policy, the Giants and Cosmos are obliged by law to allow access to all persons who seek to attend, without regard to “race, color, religion or national origin” (under the federal law), and without regard to “race, creed, color, national origin, ancestry, age, sex, marital status or liability for service in the Armed Forces” or to “physical handicap” (under the State statute). The Authority policy is not addressed to any limitation on access to a place of public accommodation, nor is it addressed to pure speech, as noted above. It is directed to conduct, in whatever form, designed to solicit funds from the patrons. As private enterprises, the Giants and the Cosmos would have the same right as any other to regulate the activities of its patrons while they are on the premises of which either one has exclusive rights to possess, and actual possession, at the time. Even if constitutional principles applied, and the court is satisfied that they do not, the fact that cheer leaders and bands are allowed to parade, dance, sing and play musical instruments on the playing field would not mean that some group of patrons could do the same in the stands, in the corridors or outside in order to raise money. VI. Rationale for the Authority Policy. The Authority policy was shown to have a rational basis, and not to be arbitrary, capricious or discriminatory. These are the tests for locations that are not public forums. Even if this were a public forum, which the court has found it is not, the special attributes of the facility would be relevant since the significance of the governmental interest is to be assessed in light of the characteristics, nature and functions of the particular facility involved. See Heffron v. International Society, etc., 452 U.S. 640, at 650, 101 S.Ct. 2559, at 2565, 69 L.Ed.2d 298, at 308 (1981). In the first place, the testimony and exhibits utterly failed to show any rational resemblance between city streets, parks and other “forum” like locations, and the Complex. As the discussion above has shown, patrons come to the Complex to attend particular events, attend it while there, and then depart. So far as the racetrack and the stadium are concerned during such periods, they bear no resemblance even to fairs, subway stations, airports, convention centers or other such facilities and activities. Both structures show every sign of thrifty design to limit construction costs to bare essentials. For the size of the stadium for example, and the number of patrons present at one time, the structure is “snug”. Minimum clearances are found in the seats, stairs and aisles. Direct movement for maximum flow is encouraged by the design. Escalators move directly from the ground to each of the three levels. Before the game they all move upward. For a period, one moves up while another moves down, and at the end of the game all move down. The parking area fills up to its outer boundaries. It empties with remarkable speed. Thus, despite the “bare essentials” approach, it is designed to meet the patron’s interests effectively and efficiently, no doubt on the theory that an unhappy patron may not return. The same is true of the race track, although here there is a further aspect of prime importance, and that is not to allow any kind of interference with the pari-mutuel betting activity which is the life blood of the whole project. The racing revenues are derived from commissions on the gross bets. Exh. DS-14, the breakdown for July 31, 1979, shows that the commissions on the 10 regular races are 17%; on the daily double or exacta they are 19%, and on the trifecta they are 25%. Part of this commission or “takeout” goes for payments to the State, for purses and to the trust account. The Authority’s share runs from 10.5% to 16.5%. Exh. DS-15 shows how these bets distributed on the same day among various betting pools, among various denominations of bets (from $2 to $100), and at various locations of betting windows. It shows figures for per capita wagers on that day, the average for 1979 through that day, and the corresponding figure for a year before. It is a characteristic of pari-mutuel betting that the only money at risk is the money bet by the patrons. In effect, they bet against each other. The money bet by those who lose is used to pay those who win, and the pay-off odds are determined entirely by the amounts available. But, when the money is bet, it goes into pools, from the gross amount of which the commission is subtracted and only what is left is distributed to the winners. When the commission is 17%, as it is for the 10 regular races, this means that for each $100 bet a commission of $17 is deducted and only $83 is distributed to winners. Also, since some of the patrons win their bets in each race, they are paid back their original bet plus their share of the distribution (all after commission) thus providing funds for more or larger bets in later races. The “handle”, which is the aggregate of all gross bets, is the figure on which the commission is calculated. It does not imply, by its magnitude, that all the patrons actually had that amount of cash in their possession. This is because the net after commissions is redistributed among those patrons who had winning bets, and so is then available to make new ones. This recirculating process means that the total handle is a result of a pyramiding process in which the same recirculated dollars have a commission deducted each time they are bet, each time they are “handled”. Any excellent discussion of this aspect of pari-mutuel betting is found in Scarne, “Complete Guide to Gambling” (Simon & Schuster, N.Y. 1961) at pp. 56-57, a copy of the passage being attached as Exhibit B. Thus, as the Authority witnesses testified, the solicitation of money from patrons, to the extent it is successful, removes available funds for betting to a greater degree than the non-compounded commission percentage would make it appear. Also, an interception of patrons will have a tendency to cause arrival at a window after the bets are closed, and this adversely affects the revenue. Some patrons may prefer to attend other tracks where there are no solicitors, and this would reduce revenues. In short, except for the parking charge and admission fees paid by the solicitors, every feature of the desired activity would tend to run counter to the generating of revenue from betting, and so would adversely affect the one activity which, by itself, supports all the others. The track is also unique in that large numbers of patrons are holding or handling cash for every bet they make and every bet they win. The presence and exposure of cash under such circumstances is unique and wholly unlike what might be found elsewhere. Thus, there are unique and especially strong considerations of safety, quite aside from matters of movement, congestion, and other elements of safety. The presence and exposure of cash possessed by a large number of people also enhances the risks of misrepresentation, fraud or other misconduct which, in turn, would have a significant likelihood of causing disorder. The patrons at the racetrack also form a set of very definite groups of captive audiences, usually located in the vicinity of each row of ticket and cashier windows. Their general locations, and the aggregate bets placed at each, are shown on Exh. DS-15 under the heading “Divisions”. Plaintiffs offered testimony that they would not approach those who were seated in restaurants, in lounges, or standing at food counters and the like, but did intend to approach patrons in the spaces surrounding the betting windows, i.e., in the “betting ring.” In the context of a gambling facility of this kind, it seems to the court rather obvious that the patrons are more “captive” in the areas around the betting windows than anywhere else in the building. A patron who doesn’t bet will be sitting somewhere, but bettors will inevitably be moving to and from one or another betting window, because they cannot bet anywhere except at the windows. All in all, taking the specific features of each structure and the ways in which they are used at the very times that plaintiffs’ wish to solicit, the court is satisfied that the policy is warranted, by any or all of the tests discussed. In arriving at this conclusion, the court has taken into account the fact that any modification of Authority policy could not legally be limited to the plaintiffs. If the Complex were opened up to the plaintiffs, the Authority would be faced with the need to open it up to others as well. The fact that the Hare Krishna devotees may regard peripatetic solicitation as an element of religious ritual does not entitle them to superior rights in comparison with adherents of other religious groups that raise money by solicitation but not as a religious ritual. It is also true that in the context of this case, religious groups as a whole do not enjoy greater rights than members of non-religious groups for like purposes. Thus, an opening up for solicitation by plaintiffs would be to open up for all, and in view of the physical and dynamic characteristics at both the race track and the stadium, the Authority has no reasonably effective means to achieve the legitimate purposes of its policy. While courts in some cases of true public forums have expressed their own views in respect to methods for dealing adequately with the problems involved, some measure of sound judgment must be left to those responsible for the day-to-day operations and for their success. The court has carefully considered the decision in Heffron, supra, but finds nothing in it to suggest any obligation to provide booths for the plaintiffs and others to distribute literature and solicit funds. The fact is, as mentioned in footnote 4, that the Minnesota State Fair was set up or structured with more than 1,400 exhibit and concession booth spaces, with several hundred applicants denied space for lack of room. Footnote 5 lists some of the fund raising organizations that rented booth space for that purpose on a first come, first served basis. Given this structural arrangement, the Supreme Court regarded the fair as a “limited public forum” (452 U.S. at —, 101 S.Ct. at 2568, 62 L.Ed.2d at 311). Nothing of this nature, either structurally or functionally, exists at the racetrack or the stadium. The “booths” at the racetrack are the nearly 600 betting windows. At the stadium, there is a handful of stands on wheels for the incidental concessions .related to the convenience of patrons (for food, etc.) or related to the event (for souvenirs, etc.). These are placed outside the stadium before the game begins, and are moved inside after the patrons have entered. Nothing about either arrangement remotely suggests that either facility exists to provide a means for a great number of exhibitors to present their products or their views, on a temporary basis, to “fairgoers” who attend in order to inspect the exhibits. Functionally, either the Authority, or the Giants or Cosmos, could have undertaken to use their own personnel to provide this bare minimum of booths for food or souvenirs as a convenience to their patrons. That they have chosen to delegate the function to a concessionaire does not alter the character of the function. VII. Evidence Questions. During trial, several evidence questions arose during the testimony of plaintiffs’ witness Kent. Originally, another witness, a Mr. Zupan (sic) had been engaged, and he had recorded videotapes of patron movement at the stadium, and took some counts as well, under a court order for entry and inspection under Rule 34(a)(2). His employer, the court was told, objected to his becoming involved in outside litigation, and Mr. Kent was engaged in his place. Mr. Kent offered drawings, charts and calculations based upon the videotapes recorded by his predecessor and this material was objected to since the underlying data was never authenticated, see Fed.Ev.Rules 703 and 705. On several occasions, the court observed that if plaintiffs cou