Full opinion text
FRANK A. KAUFMAN, Senior District Judge. Plaintiffs are the Frederick County Chapter of the National Association for the Advancement of Colored People (NAACP); the Chapter President, Lord D. Nickens; and JoAnne Evans-Anderson, a black woman, who is Director of Community Relations for the Maryland Human Relations Commission. Defendant is the Zoning Administrator (Administrator) of Frederick County, Maryland (County). On May 15, 1985, the Ku Klux Klan (Klan) applied to the Administrator for a permit to use private property in the County for a Klan rally to be held on August 17, 1985. On June 12, 1985, the Administrator issued that permit. On August 15,1985, the original plaintiffs filed this suit, seeking, inter alia, a temporary restraining order declaring the permit void. Following a hearing on August 17, 1985, plaintiffs withdrew their request for a restraining order, and amended their complaint to seek a permanent injunction barring the Administrator from issuing permits for future Klan rallies not open to all members of the public. Subsequently, plaintiffs have been permitted further to amend their complaint. FACTS The parties have stipulated as follows, without thereby conceding relevancy or materiality of such facts: 1. Section 1-19-213 of the Frederick County Zoning Ordinance, enacted in September, 1981, requires that a person must obtain a Temporary Use Permit from the Frederick County Zoning Administrator pri- or to holding a public rally or public gathering on non-institutional use private property. Public rallies and gatherings are defined in the Ordinance as those open to at least a segment of the general public. 2. On June 12, 1985, acting pursuant to this Ordinance, the then Frederick County Zoning Administrator, Frederick Lowndes, issued to Roger Kelly a Temporary Use Permit for a public Ku Klux Klan (“Klan”) rally to be held on the evening of August 17, 1985, on his father’s property, approximately lU/i acres, in a rural area of Frederick County near Rocky Ridge, Maryland. Lowndes concedes that he learned of the Klan’s plans to exclude all non-whites from the public rally on June 28th, two weeks after the issuance of the permit. Lowndes had issued permits for five similar public Klan rallies that were, on their faces, discriminatory. Those permits specified that the public rallies were open “to white gentile persons only.” These permits were issued for public rallies on June 28, 1980; October 18, 1980; April 4, 1981; July 25, 1981; and September 19, 1981. They were issued pursuant to the then existing Permit Ordinance, which is different from the present one. 3. The last public rally, held on August 17, 1985, was permitted pursuant to the presently effective Zoning Ordinance, § 1-19-213(a). The present permit ordinance is facially neutral as regards race. The ordinance was enacted on September 23, 1981 as a result of the recommendation of an ad hoc advisory committee, appointed by the Frederick County Commissioners to study problems with public rallies and other gatherings. Plaintiff Lord Nickens was a member of the committee. The Frederick County Commissioners also designated June 28, 1980 as “Brotherhood Day” in Frederick County to counteract the discriminating practice of the Ku Klux Klan. 4. Condition number 7 states: “The issuance of this permit shall in no way be construed as the approval of any Frederick County Governmental Agency or official of the purpose of the meeting or of the organization holding the activity.” 5. The Ku Klux Klan (“Klan”) is an organization comprised of individuals who promote and practice racial discrimination. The Klan’s policy of excluding all nonwhites from public and private rallies is codified in its constitution, bylaws and operating procedures. The Klan’s discriminating practices and policies are a matter of general public knowledge in Frederick County and Mr. Lowndes was aware of these practices and policies, which have been the subject of numerous articles in the Frederick and Hagerstown newspapers. 6. The public rallies serve as a forum for the dissemination of the Klan’s political and religious views and as a mechanism for the solicitation of new members. Speeches by individual Klansmen promoting the Klan’s discriminatory racial and religious views are the focus of the public rallies. 7. Klan members actively solicit media coverage of the rallies. Newspaper and television reporters and photographers are routinely permitted to attend public Klan functions. Reporters have been present for virtually all of the public Klan rallies, and in each case have published or broadcast stories about the rallies. Klan members grant interviews to newspaper reporters in which they discuss their plans for upcoming public rallies. 8. Since June, 1980, there have been at least six (6) public Klan rallies in Frederick, County, open to whites only, at which all non-whites have been excluded. These were: (a) The June 28, 1980 public rally (closed to non-whites) in Braddock Heights, Maryland. (b) The October 18, 1980 public rally (closed to non-whites) in Braddock Heights, Maryland. (c) The April 4, 1981 public rally (closed to non-whites) in Braddock Heights, Maryland. (d) The July 25, 1981 public rally (closed to non-whites) in Braddock Heights, Maryland. (e) The September 19, 1981 public rally (closed to non-whites) in Braddock Heights, Maryland. (f) The August 17, 1985 public rally (closed to non-whites) in Rocky Ridge, Maryland. (This is the only Klan public rally that has been held under the new Temporary Use Permit Ordinance that has been in effect since September 1981). More specifically, on June 28, 1980 a black woman JoAnne Evans-Anderson, was refused permission to attend a public Klan rally in Braddock Heights by an armed Klansman, who told her no blacks were permitted to attend the rally. She was excluded by a white male Klansman “dressed in army fatigues and carrying a rifle”. As she was leaving the rally, she overheard another white man dressed in army fatigues telling a black television reporter that he would have to leave because the public rally was closed to non-white persons. In September, 1981, Klansmen excluded an Asian-American photographer, Sam Yu, who was sent by United Press International to cover the public Klan rally in Braddock Heights. 9. As noted above, Klansmen armed with rifles and semi-automatic guns enforce the Klan’s discriminatory policies, escorting all non-whites off the property who attempt to attend a public Klan rally. The exclusions are visible to all who attend these rallies, including State Police and Frederick County Deputy Sheriffs. 10. At Klan public rallies, approximately 35 State Police troopers and 15 Frederick County Deputy Sheriffs were, and are routinely assigned to monitor Klan functions, to assist with traffic control, ensure compliance with the conditions of the permit, and to maintain the peace. It is the policy of both the State Police and the Frederick County Sheriffs Department to refrain from interfering with the exclusion of non-whites from public Klan rallies, so long as there is no breach of the peace. In accordance with that policy, no State trooper or Frederick County Deputy Sheriff has ever intervened, or otherwise taken any action to prevent the exclusion of non-whites at any of the public Klan rallies noted above or any other that they have monitored. Frederick County has no control or authority over the Maryland State Police. 11. The most recent public Klan rally took place as scheduled on the evening of August 17, 1985. Some of the Klansmen present at the rally were armed with rifles and semi-automatic weapons. Several representatives from the news media were present to cover the event, including representatives from WMAR-TV in Baltimore (Channel 2), the Frederick News Post and the News American. However, Klan members refused to allow Jocelyn Maminta, an Asian-American reporter from television station WDVM in Washington, D.C., to attend the public rally because she was nonwhite. Ms. Maminta was escorted off the property by armed Klansmen. Approximately six State troopers and an equal number of Deputy Sheriffs were stationed around the perimeter of the property in their usual fashion to assist with traffic control and to maintain the peace. Consistent with previous practice, no State trooper nor Deputy Sheriff intervened to prevent the exclusion of Ms. Maminta. The property in question was private property, an eleven (11) acre farmette owned by the father of the permittee. 12. Under the Maryland Constitution, Article IV, § 44, the sheriff of each county is elected by the voters for a term of four years “to exercise such powers and perform such duties as now or may hereafter be fixed by law.” 13. The parties stipulate to the truth and accuracy of all the facts contained herein and the allegations contained in the Affidavits in support of Plaintiffs’ cross-Motion for Summary Judgment. However, no party concedes the relevancy or materiality of these facts. (Emphases added). Another such rally was apparently held on August 16, 1986 in accordance with a permit seemingly issued by the Administrator in June or July, 1986 pursuant to the 1981 ordinance. No details as to what occurred during that rally have been made known to this Court by the parties or their counsel. The 1981 ordinance is a type of statutory provision designed to require advance governmental authorization and insure traffic and police planning and supervision, in order to try to prevent the kind of traffic problems on public roads leading to the private property on which a public rally is held and the kind of crowd-control problems on such private property, which occurred not too many years ago in connection with a rock music concert open to the public and held on private property in or near Woodstock, New York. In the within case, the 1981 Frederick County ordinance at issue provides in pertinent part: (a) An application must be made for a temporary use permit which may be issued by the zoning administrator for all of the following outdoor activities to which are invited or are open to a segment of the general public: namely carnivals, circuses, tent revival meetings, musical festivals, public gatherings, public rallies, dinners, sales, bazaars, and similar activities in all zoning districts, except residential wherein temporary use permits shall not be issued____ (Outdoor shall include activities in a tent, pavilion or open-type permanent structures.) Before issuing a permit, the zoning administrator shall determine that the site is adequate for its intended temporary use according to the following: (1) The proposed activity is in compliance with all safety, health, and environmental standards, and is not detrimental to the surrounding area. (2) The site is of a sufficient size to accommodate the intended temporary use. (3) A buffer zone devoid of all activities of one hundred (100) feet from all adjacent property lines will be maintained. (4) Safe and orderly traffic can be ensured. (Emphases added). In the context of those stipulated facts, the factual background in this case seems rather clear. The NAACP is an organization dedicated to the achievement of racial equality. Its Frederick County Chapter includes some black members, who plaintiffs have alleged, ... if they were allowed to do so, would seek to, and would attend Ku Klux Klan rallies in the future that Defendant authorize[d] by permit pursuant to the Frederick County Zoning Ordinance. (“Public Klan rallies”). NAACP members would attend these public Klan rallies, among other reasons, to present their views, and the views of the NAACP, in favor of racial integration to the representatives of television stations and print media who attend, and report on these public Klan rallies. Plaintiffs have also alleged: Nickens, if he were allowed to, would seek to, and would attend public Ku Klux Klan rallies in the future that are authorized by Defendant by permit pursuant to the Frederick County Zoning Ordinance. He would attend these public Klan rallies, among other reasons, to present his views in favor of racial integration, and similar views of the NAACP, to the representatives of television stations and print media who attend, and report on these public Klan rallies. He has not attempted to attend such public Klan rallies in the past because, among other reasons, he knew that non-whites had been, and would be excluded from these public Klan rallies by armed Klansmen. JoAnne Evans-Anderson is a black woman who is Director of Community Relations for the Maryland Human Relations Commission. She has held that position since 1979. Her duties as Directory of Community Relations include monitoring the activities of extremist groups, including the various factions of the Maryland Ku Klux Klan. She planned to attend a public Klan rally in Braddock Heights, Maryland on Saturday, June 28, 1980. The rally was to be held on property, adjacent to the Braddock Heights Fire Hall. At approximately 6:00 p.m. on the evening of the rally, she arrived at the State Police look-out point near the Fire Hall. She spoke to State Police Officers for a few minutes and then walked alone onto the property on which the public Klan rally was being held; she walked in the direction of speakers’ platform. She was stopped by a white male dressed in army fatigues and carrying a rifle. He told M’s Evans-Anderson that she could not attend the public Klan rally because “no blacks were allowed.” As she was leaving the property, she overheard another white man dressed in army fatigues telling a black television report[er] that he would have to leave because the rally was closed to non-white persons. From time to time in the future, M’s. Evans-Anderson, if she were allowed to do so, would seek to, and would attend public Ku Klux Klan rallies that are authorized by permit pursuant to Section 1-19-213 of the Frederick Zoning Ordinance for the purposed of monitoring the activities of the Ku Klux Klan. She has not attempted to attend public Klan rallies in Frederick County in the past, other than the June 28, 1980 one, because, among other things, she knew nonwhites had been, and would be excluded from these public Klan rallies by armed Klansmen. Plaintiffs’ Motion to Amend Second Amended Complaint. Additionally, plaintiffs have alleged that Seaven Gordon, a black male resident of Frederick County, Maryland who is Vice President of the NAACP, Frederick County Chapter, has stated that he would attend future Klan rallies after June 6, 1985 if he could because, inter alia, he would then be able to report on such rallies to the NAACP and others. See Plaintiffs’ Motion to Amend Second Amended Complaint, Affidavit of Seaven Gordon. The application for the August 17, 1985 permit indicated that the “[i]ntended use [of the] property [is] for KKK rally on August 17, 1985.” The application for the rallies in June 1980, April 1981 and July 1981 read respectively, in pertinent part, as follows: June 1980 Recruiting rally for Ku Klux Klan; open for white, gentile persons; cross-burning ceremony. April 1981 To hold Rally on Saturday, April 4, 1981 between the hours 7:30-10:30 p.m. for cross lighting — open to white gentile persons only. July 1981 To hold rally on Saturday, July 25, 1981 between the hours 7:30-10:30 p.m. for cross lighting — open to white gentile persons only. STANDING At the threshold the question arises as to whether plaintiffs have standing. In Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), Justice Rehnquist wrote: We need not mince words when we say that the concept of “Art III standing” has not been defined with complete consistency in all of the various cases decided by this Court which have discussed it, nor when we say that this very fact is probably proof that the concept cannot be reduced to a one-sentence or one-paragraph definition. But of one thing we may be sure: Those who do not possess Article III standing may not litigate as suitors in the Courts of the United States. Id. at 475-76, 102 S.Ct. at 760 (footnote omitted). Earlier in that opinion the Justice had commented: The term “standing” subsumes a blend of constitutional requirements and prudential considerations, see Warth v. Seldin, 422 U.S. 490, 498 [95 S.Ct. 2197, 2204, 45 L.Ed.2d 343] (1975), and it has not always been clear in the opinions of this Court whether particular features of the “standing” requirement have been required by Art III ex proprio vigore, or whether they are requirements that the Court itself has erected and which were not compelled by the language of the Constitution. See Flast v. Cohen, 392 U.S., [83] at 97 [88 S.Ct. 1942, at 1951, 20 L.Ed.2d 947 (1968)]. A recent line of decisions, however, has resolved that ambiguity, at least to the following extent: at an irreducible minimum, Art III requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1607, 60 L.Ed.2d 66] (1979), and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976). Id. at 471-72, 102 S.Ct. at 757-58 (footnote omitted). Beyond the constitutional requirements, the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing. Thus, this Court has held that “the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S., at 499 [95 S.Ct., at 2205]. In addition, even when the plaintiff has alleged redressable injury sufficient to meet the requirements of Art III, the Court has refrained from adjudicating “abstract questions of wide public significance” which amount to “generalized grievances,” pervasively shared and most appropriately addressed in the representative branches. Id., at 499-500 [95 S.Ct., at 2205]. Finally, the Court has required that the plaintiff’s complaint fall within “the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153 [90 S.Ct. 827, 829, 25 L.Ed.2d 184] (1970). Id. at 474-75, 102 S.Ct. at 759-60 (footnotes omitted). In Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), Chief Justice Burger, in holding that a Washington state agency had standing to challenge the constitutionality of a North Carolina statute regulating the sale of apples, wrote: [W]e have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit. Id. at 343, 97 S.Ct. at 2441. “[A]n organization whose members are injured may represent those members in a proceeding for judicial review.” Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972), citing NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405 (1963). See also NAACP v. Alabama, 357 U.S. 449, 458-60, 78 S.Ct. 1163, 1169-70, 2 L.Ed.2d 1488 (1958). Herein the NAACP and the individual plaintiffs, Mr. Nickens and Ms. Evans-Anderson, have alleged “injury in fact,” see Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970), and have stated complaints which meet “the Art. Ill requirement of actual or threatened injury amenable to judicial remedy.” Valley Forge Christian College, supra 454 U.S. at 475, 102 S.Ct. at 760. Each of these individuals has alleged a desire to attend, or has in fact attempted to attend, one or more of the Klan rallies held on private property in Frederick County and has demonstrated or explained specifically why each of them desired to be present at such rallies. The basic purpose of the NAACP itself reveals the nature of its interest and the interests of its members in not being excluded from such events open to all members of the public except non-whites and non-gentiles. Accordingly, all of the plaintiffs herein have standing to challenge the constitutional validity of the grant of a permit of the type issued by the Administrator on June 12, 1985. STATE ACTION The term “state action” includes action by a subdivision of a state, such as Frederick County. “[A]ll problems relating to the existence of government action — local, state or federal — which would subject an individual to constitutional restrictions come under the heading of ‘state action.’ ” J. Nowak, R. Rotunda & J. Young, Constitutional Law, 498 (2d ed. 1983). Herein plaintiffs do not challenge the constitutionality of the Frederick County Zoning Ordinance itself. Indeed they agree that the ordinance is facially neutral as regards race. Nor do plaintiffs challenge the Klan’s right to hold private, members-only, segregated meetings on private property. Rather plaintiffs contend that the exclusion of individuals from a public rally on private property which is authorized by, and may not be held without, a county-issued permit, is unconstitutional. It would seem clear that if the Administrator had issued a permit for a rally on private property, without which the rally could not be held, and that such permit itself had specifically provided that all members of the public, except nonwhites and/or non-gentiles, could attend, and that non-whites and/or non-gentiles could not attend, such action would be state action, involving discrimination against non-whites and/or non-gentiles, which would be a denial of equal protection under the fourteenth amendment to the Constitution. But what has occurred in this case does not meet that explicit factual description. Herein, acting under a facially neutral ordinance, the Administrator has issued permits, some of which specifically disclaim approval of the purpose of each of the rallies in question, and of the Klan. The added factual factors are that traffic control, crowd-control and the need for police presence in connection with the rallies has been handled by Frederick County Deputy Sheriffs and Maryland State policemen and that in the context of the same, blacks have, in fact, been excluded and escorted from the private property rally premises by private persons enforcing the Klan’s said exclusionary policy, in the presence of such deputies and policemen and without any intervention by any of them. If the totality of the actions and nonactions in this case by state and county officials add up to “state action”, then the County has involved itself in depriving plaintiffs of their constitutional right to be free of racially discriminatory conduct by the County. The core issue therefore is whether state action has taken place. The County’s attorneys contended in argument to this Court that neither the County, by enacting an amendment to the ordinance, nor the Zoning Administrator, by his action, could, without violating the federal Constitution, condition the grant of a permit to hold a public rally on private property so as to cause the permit holder to admit all members of the public, without reference to race or religion, to the rally. That question, as such, is not before this Court. But if the County’s position is correct, then the precise issue before this Court would need to be considered in the context of the Administrator perhaps being placed in the dilemma of, on the one hand, violating the federal Constitution if he refused to grant the permit for the public rally unless the latter is open to all persons without reference to race or religion, or, on the other hand, if the County is deemed to have engaged in “state action” herein, violating the federal Constitution by issuing the permit without conditioning such issuance on nonexclusion of racial or religious minorities. In this Court’s view the County’s said position is not correct and the Administrator is not confronted with that dilemma because the issuance of the permit could be conditioned by him upon such public rallies being open to all persons, regardless of race or religion, without violating the federal Constitution. Defendant, however, also argues that under the limited powers granted by the State of Maryland to Frederick County, the County does not have the authority so to condition the grant of a rally permit. Assuming arguendo only that that contention has merit, the State of Maryland seemingly could, if it desired, grant the necessary power to Frederick County to enable the Administrator so to condition the grant of a permit upon lack of racial discrimination. In any event, there is no federal constitutional impediment involved in that regard. In Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976), the Supreme Court, while concluding that a shopping center was not required by federal constitutional principles to permit picketing on its premises, held that the shopping center could be required to do so by federal statute. Justice Stewart wrote: It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state____ This elementary proposition is little more than a truism. But even truisms are not always unexceptionably true, and an exception to this one was recognized almost 30 years ago in Marsh v. Alabama, 326 U.S. 501 [66 S.Ct. 276, 90 L.Ed. 265 (1946)]. In Marsh, a Jehovah’s Witness who had distributed literature without a license on a sidewalk in Chickasaw, Ala., was convicted of criminal trespass. Chickasaw was a so-called company town, wholly owned by the Gulf Shipbuilding Corp. Id. at 513, 96 S.Ct. at 1033 (citation omitted). It was the Marsh case that in 1968 provided the foundation for the Court’s decision in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308 [88 S.Ct. 1601, 20 L.Ed.2d 603 (1968)]. That case involved peaceful picketing within a large shopping center near Altoona, Pa. One of the tenants of the shopping center was a retail store that employed a wholly nonunion staff. Members of a local union picketed the store, carrying signs proclaiming that it was nonunion and that its employees were not receiving union wages or other union benefits. The picketing took place on the shopping center’s property in the immediate vicinity of the store. A Pennsylvania court issued an injunction that required all picketing to be confined to public areas outside the shopping center, and the Supreme Court of Pennsylvania affirmed the issuance of this injunction. This Court held that the doctrine of the Marsh case required reversal of that judgment. The Court’s opinion pointed out that the First and Fourteenth Amendments would clearly have protected the picketing if it had taken place on a public sidewalk____ The Court’s opinion then reviewed the Marsh case in detail, emphasized the similarities between the business block in Chickasaw, Ala., and the Logan Valley shopping center, and unambiguously concluded: The shopping center here is clearly the functional equivalent of the business district of Chickasaw involved in Marsh. 391 U.S., at 318 [88 S.Ct., at 1608]. Upon the basis of that conclusion, the Court held that the First and Fourteenth Amendments required reversal of the judgment of the Pennsylvania Supreme Court. Four years later the Court had occasion to reconsider the Logan Valley doctrine in Lloyd Corp. v. Tanner, 407 U.S. 551 [92 S.Ct. 2219, 33 L.Ed.2d 131 (1972)]. That case involved a shopping center covering some 50 acres in downtown Portland, Ore. On a November day in 1968 five young people entered the mall of the shopping center and distributed handbills protesting the then ongoing American military operations in Vietnam. Security guards told them to leave, and they did so, “to avoid arrest.” Id., at 556 [92 S.Ct., at 2222]. Id. at 514-16, 96 S.Ct. at 1033-34 (citations omitted). The Court in its Lloyd opinion did not say that it was overruling the Logan Valley decision. Indeed, a substantial portion of the Court’s opinion in Lloyd was devoted to pointing out the differences between the two cases, noting particularly that, in contrast to the handbilling in Lloyd, the picketing in Logan Valley had been specifically directed to a store in the shopping center and the pickets had had no other reasonable opportunity to reach their intended audience. 407 U.S., at 561-567 [92 S.Ct., at 2225-2228]. But the fact is that the reasoning of the Court’s opinion in Lloyd cannot be squared with the reasoning of the Court’s opinion in Logan Valley. Id. at 517-18, 96 S.Ct. at 1035 (footnote omitted). [W]e make clear now, if it was not clear before, that the rationale of Logan Valley did not survive the Court’s decision in the Lloyd case. Id. at 518, 96 S.Ct. at 1035 (footnote omitted). If a large self-contained shopping center is the functional equivalent of a municipality, as Logan Valley held, then the First and Fourteenth Amendments would not permit control of speech within such a center to depend upon the speech’s content. For while a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for First Amendment purposes [citations omitted] and may even forbid altogether such use of some of its facilities, [citations omitted] what a municipality may not do under the First and Fourteenth Amendments is to discriminate in the regulation of expression on the basis of the content of that expression, [citation omitted], “[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v. Mosley, 408 U.S. 92 [92 S.Ct. 2286, 33 L.Ed.2d 212] (1972). It conversely follows, therefore, that if the respondents in the Lloyd case did not have a First Amendment right to enter that shopping center to distribute handbills concerning Vietnam, then the pickets in the present case did not have a First Amendment right to enter this shopping center for the purpose of advertising their strike against the Butler Shoe Company [the company whose employees re the pickets were on strike]. We conclude, in short, that under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this. From what has been said it follows that the rights and liabilities of the parties in this case are dependent exclusively upon the National Labor Relations Act. Under the Act the task of the Board, subject to review by the courts, is to resolve conflicts between § 7 rights and private property rights, “and to seek a proper accommodation between the two.” Central Hardware Co. v. NLRB, 407 U.S. [539] at 543 [92 S.Ct. 2238, at 2241, 33 L.Ed.2d 122] [1972], Id. at 520-21, 96 S.Ct. at 1036-37 (emphasis added; footnotes omitted). For the reasons stated in this opinion, the judgment is vacated and the case is remanded to the Court of Appeals with directions to remand to the National Labor Relations Board, so that the case may be there considered under the statutory criteria of the National Labor Relations Act alone. Id. at 523, 96 S.Ct. at 1038. The Kelly property is certainly more like the shopping centers involved in Logan, Lloyd and Hudgens than the company town in Marsh. Indeed, the Kelly property has many less public property attributes than do those shopping centers, since those centers were regularly and continually open to the public, while the private property in Frederick County used for the Klan rallies was only open to the public for those several rallies. Since despite the Court’s holding in Hudgens that there was no constitutional right of the striking employees to picket within the shopping center, the Congress, as Justice Stewart suggests, had the constitutional authority to direct, by federal statute, the National Labor Relations Board to permit such picketing, then there would seem to be no reason why Frederick County and the State of Maryland may not, if they so desire, condition the grant of a permit to the Klan to hold a public rally upon private property upon such rally being open to all members of the public without regard to race or creed. Further support for that view is to be found in Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980). In that case, high school students, in a “peaceful and orderly” manner, id. at 77, 100 S.Ct. at 2038, solicited support within a privately owned and operated California shopping center containing over seventy-five places of business, for their position opposing a United Nations resolution against “Zionism.” The Supreme Court noted that the Supreme Court of California had held that: [T]he California Constitution protects “speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned.” [Robins v. Pruneyard Shopping Center ] 23 Cal 3d 899, 910 [153 Cal.Rptr. 854, 860], 592 P2d 341, 347 (1979). It concluded that appellees are entitled to conduct their activity on Pruneyard property. In rejecting appellants’ contention that such a result infringed property rights protected by the Federal Constitution, the California Supreme Court observed: It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the [shopping center there]. A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations ... would not markedly dilute defendant’s property rights. Pruneyard at 78, 100 S.Ct. at 2039 (citations omitted). After citing to and discussing Logan Valley, Lloyd and Hudgens, Justice Rehnquist wrote in Pruneyard: Our reasoning in Lloyd, however, does not ex proprio vigore limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution. [Citations omitted]. In Lloyd, supra, there was no state constitutional or statutory provision that had been construed to create rights to the use of private property by strangers, comparable to those found to exist by the California Supreme Court here. It is, of course, well established that a State in the exercise of its police power may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision. Pruneyard at 81, 100 S.Ct. at 2040 (citations omitted). It may well be that Mr. Kelly, by opening his private farm property to the public for a Klan rally did not bestow upon attendees of that rally any right to speak during that rally or to require the Klan to call upon anyone to speak at the rally other than as the Klan desired. But, herein, plaintiffs do not seek the opportunity to speak at such a rally; rather, plaintiffs complain herein of being excluded entirely from attending such Klan rallies. In Pruneyard Justice Rehnquist further wrote: It is true that one of the essential sticks in the bundle of property rights is the right to exclude others. Kaiser Aetna v. United States, 444 U.S. 164, 179-80 [100 S.Ct. 383, 392-93, 62 L.Ed.2d 332] (1979). And here there has literally been a “taking” of that right to the extent that the California Supreme Court has interpreted the State Constitution to entitle its citizens to exercise free expression and petition rights on shopping center property. But it is well established that “not every destruction or injury to property by governmental action has been held to be a ‘taking’ in the constitutional sense.” Armstrong v. United States, 364 U.S. 40, 48 [80 S.Ct. 1563, 1568, 4 L.Ed.2d 1554] (1960). Rather, the determination whether a state law unlawfully infringes a landowner’s property in violation of the Taking Clause requires an examination of whether the restriction on private property “forc[es] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Id., at 49 [80 S.Ct. at 1569]. This examination entails inquiry into such factors as the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations. Kaiser Aetna v. United States, 444 U.S., supra, at 175 [100 S.Ct., at 390]. When “regulation goes too far it will be recognized as a taking.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 [43 S.Ct. 158, 160, 67 L.Ed. 322] (1922). Id. at 82-83, 100 S.Ct. at 2041 (footnotes omitted). In the light of that analysis Justice Rehnquist concluded that there had been no unconstitutional taking in Pruneyard and held that the California Court’s decision did not deny to the shopping center owners “their property without due process of law.” Id. at 84, 100 S.Ct. at 2042. In Pruneyard, Justice Rehnquist also rejected the contention “that a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others,” id. at 85, 100 S.Ct. at 2042 (footnote omitted), commenting: [T]he shopping center by choice of its owner is not limited to the personal use of appellants. It is instead a business establishment that is open to the public to come and go as they please. The views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner. Second, no specific message is dictated by the State to be displayed on appellants’ property. There consequently is no danger of governmental discrimination for or against a particular message. Finally, as far as appears here appellants can expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand. Such signs, for example, could disclaim any sponsorship of the message and could explain that the persons are communicating their own messages by virtue of state law. Id. at 87, 100 S.Ct. at 2044. In the within litigation no governmental agency has prescribed the need for any speaker to say or not say or to do or not do anything on or with regard to the private property. But, “by choice of its owner,” the property was, on the occasion of each Klan rally, made “open to the public.” Having made that “choice,” the private property owner cannot complain that he has been deprived of his privacy, or of his freedom to use his own private property as he desires, if he is required not to discriminate among the members of the public by excluding all persons belonging to a particular race or to a particular religious group. A private property owner can surely invite whomever he selects to attend a private gathering on his property. But when he offers his private property to the public, he has placed himself in a position which enables the government, if it so desires, to impose certain requirements upon him. If, as in Pruneyard and in Hudgens, a state or federal statute can require a shopping center owner to permit certain solicitation or picketing within the shopping center, then there would appear no federal constitutional barrier to Frederick County requiring the Klan to hold an open-to-all, non-racially, non-religiously discriminating, public rally on private property before issuing a permit. That view is supported, though probably not compelled, by Chief Justice Burger’s comment in Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723] (1973): [Although the Constitution does not proscribe private bias, it places no value on discrimination as it does on the values inherent in the Free Exercise Clause. Invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but is has never been accorded affirmative constitutional protections. And even some private discrimination is subject to special remedial legislation in certain circumstances under § 2 of the Thirteenth Amendment; Congress has made such discrimination unlawful in other significant contexts. Id. at 469-70, 93 S.Ct. at 2812-13. Norwood presented the question of whether the State of Mississippi could supply text books to students “in both public and private schools, without reference to whether any participating private school has racially discriminatory policies.” Id. at 456, 93 S.Ct. at 2806. Answering that question in the negative, the Supreme Court in Norwood required a “school-by-school” examination to determine which private schools could receive the state aid. In so concluding, the Chief Justice wrote: [T]he Constitution does not permit the state to aid discrimination even when there is no precise causal relationship between state financial aid to a private school and the continued well-being of that school. A State may not grant the type of tangible financial aid here involved if that aid has a significant tendency to facilitate, reinforce, and support private discrimination. Id. at 465-66, 93 S.Ct. at 2810-11 (emphasis added). While Norwood arose in a different factual and legal context than is presented herein, the Chief Justice’s comment about state action having a “significant tendency to facilitate, reinforce and support private discrimination” and his statement that “[i]nvidious private discrimination ... has never been accorded affirmative constitutional protections,” id. at 470, 93 S.Ct. at 2813, seems strongly to support the conclusion that Frederick County, if it wished, could, without violating the federal Constitution,' condition the issuance of permits to hold public rallies upon private property upon a non-discriminating, open-to-all requirement. Accordingly, the question of whether the County must proscribe such conduct when it issues such a permit will be considered herein on the basis that the County is permitted by the federal Constitution so to do. Analysis of that “must” question can perhaps best be approached by consideration, next, of the use of public property for rallies of the type the Klan has held on the Kelly property, as opposed to the use cf private property for such purposes. In National Socialist White People’s Party v. Ringers, 473 F.2d 1010 (4th Cir.1973), after the Arlington County, Virginia School Board had refused to permit the Party to use a high school auditorium for a meeting during non-school hours, the Party brought suit to compel the Board to permit such use. The district court dismissed the complaint, holding inter alia, that “the Board could not accommodate the party without involving the state unconstitutionally in the Party’s racially discriminatory practices.” Id. at 1012. Judge Winter, writing for the Fourth Circuit, reversed. In so doing he noted that the Board’s conduct with respect to other non-school groups had resulted in the auditorium being partially dedicated as a public forum, id. at 1014-15, and that “the first amendment protects from state interference the expression in a public place of the unpopular as well as the popular and the right to assemble peaceably in a public place in the interest and the furtherance of the unpopular as well as the popular.” Id. at 1015 (footnotes omitted). Judge Winter also wrote that “the state action doctrine is not applicable where a group seeks to exercise first amendment rights in a public forum dedicated to that purpose,” id. at 1017, and then summarized his holdings as follows: First, political organizations are entitled to first amendment protections, including the use of facilities for meetings and other appropriate purposes. (Citation omitted). Secondly, the use of facilities partially dedicated as a public forum for the expression of diverse views does not amount to state espousal of racist views, whether they are merely expressed or whether they are expressed by a group which implements them by racist membership policies. Id. at 1017. In Ringers, however, the factual predicate of the majority opinion, authored by Judge Winter, was that while the party discriminated in its membership policies, the public meetings held by the Party were open to all members of the public, regardless of race. Judge Winter seemingly suggested that had the Party discriminated as to attendance of its public meetings, the Board would not have been required to permit the Party to use school facilities, writing: Perhaps a difference may exist where as a result of the discriminatory membership policy, the public building is open for use only on a discriminatory basis. But here, although the Party does not admit Negroes to membership, the proposed March 7 meeting was open to the public at large. Id. at 1018 (footnote omitted). In Cason v. City of Jacksonville, 497 F.2d 949 (5th Cir.1974), the National State’s Rights Party sought to use the city’s Civic Auditorium for its annual convention. Plaintiff, a black woman, sought an injunction prohibiting the use of the auditorium by the Party. The district court granted the injunction on the basis of the Party’s discriminatory membership policies. Id. at 950-51. Chief Judge Brown, noting that the record did not disclose “whether this meeting was a purely private one or one to be open to the public,” id. at 953 (footnote omitted), remanded the case for a determination of that factual question, and wrote “[i]f the [district] court finds that the meeting would have in fact been open to nonmembers but limited to the white public at large, we can say without reservation that the district court’s injunction would have been entirely proper.” Id. at 954. In Knights of the Ku Klux Klan, Realm of Louisiana v. East Baton Rouge Parish School Board, 578 F.2d 1122 (5th Cir.1978), Judge Gee concluded that the Klan was entitled to a temporary injunction restraining the School Board from prohibiting the Klan from using school facilities for public meetings, writing that “there simply is no state involvement here in KKK’s [sic] ideas or practices, whatever they may be, and no state action endorsing them.” Id. at 1128. However, as Judge Gee noted, the parties had stipulated that the meeting was open to all, with no restriction as to admission of any individuals on a racial basis. Id. 1126. Judge Gee did not address the question of whether such exclusion would have resulted in a finding of state action. Ringers, supported by Cason and Knights, would appear to teach that a state may not deny the use of public property to a group with racially discriminatory membership policies if the group’s public meetings are open to the public as a whole, but also indicates that a state must deny the use of public property by such a group if the group’s public meetings exclude nonwhites. However, a state’s involvement in a Klan-type rally, when the use of public property is involved, is, of course, quite different than when the rally is held on private property. In Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), the Supreme Court held violative of the equal protection clause of the fourteenth amendment the judicial enforcement by state courts of covenants restricting the use or occupancy of real property to persons of the Caucasian race. Noting that such a result “could not be squared with the requirements of the Fourteenth Amendment if imposed by state statute or local ordinance,” id. at 11, 68 S.Ct. at 841, Chief Justice Vinson recognized: Here the particular patterns of discrimination and the areas in which the restrictions are to operate, are determined, in the first instance, by the terms of agreements among private individuals____ The crucial issue with which we are here confronted is whether this distinction removes these cases from the operation of the prohibitory provisions of the Fourteenth Amendment. 4c afc ♦ ♦ 4* 4* [T]he restrictive agreements standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated. [Citation omitted]. But here there was more. These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements. Id. at 13-14, 68 S.Ct. at 842. Continuing, the Chief Justice, referring to the long-standing proposition that action by a state court is state action just as is action by a state’s legislative and executive officials, concluded: [B]ut for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint. These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. The difference between judicial enforcement and non-enforcement of the restrictive covenants is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights on an equal footing. Id. at 19, 68 S.Ct. at 845. In Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), a privately owned and operated restaurant, which leased space from a Delaware state agency, refused to serve food or drink to a person solely because he was a Negro. Justice Clark, for a majority of five, held that the said exclusion constituted “discriminatory state action in violation of the Equal Protection Clause of the Fourteenth Amendment.” Id. at 717, 81 S.Ct. at 857. The restaurant was located in downtown Wilmington, Delaware in a structure which was principally used as a parking garage with some space leased for commercial use by tenants, including the restaurant. The latter occupied space located within the “ ‘exterior walls of the structure [with] ... no marked public entrance leading from the parking portion of the facility into the restaurant proper.’ ” Id. at 719, 81 S.Ct. at 858. The restaurant’s lease “contains no requirement that its restaurant services be made available to the general public on a nondiscriminatory basis, in spite of the fact that the Authority [the state agency — lessor] has power to adopt rules and regulations respecting the use of its facilities except any as would impair the security of its bondholders.” Id. at 720, 81 S.Ct. at 859. In that context, Justice Clark' wrote: The Civil Rights Cases, 109 U.S. 3 [3 S.Ct. 18, 21 L.Ed. 835] (1883) “embedded in our constitutional law” the principle “that the action inhibited by the first section [Equal Protection Clause] of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.” Chief Justice Vinson in Shelley v. Kraemer, 334 U.S. 1, 13 [68 S.Ct. 836, 842, 92 L.Ed. 1161] (1948). It was language in the opinion in the Civil Rights Cases (U.S.) supra, that phrased the broad test of state responsibility under the Fourteenth Amendment, predicting [sic] its consequence upon “State action of every kind ... which denies ... the equal protection of the laws.” At p. 11 [68 S.Ct. at p. 841]. And only two Terms ago, some 75 years later, the same concept of state responsibility was interpreted as necessarily following upon “state participation through any arrangement, management, funds or property.” Cooper v. Aaron, 358 U.S. 1, 4 [78 S.Ct. 1401, 1402, 3 L.Ed.2d 5] (1958). It is clear, as it always has been since the Civil Rights Cases (U.S.) supra, that “Individual invasion of individual rights is not the subject-matter of the amendment,” at p. 11 [78 S.Ct. at p. 1406], and that private conduct abridging individual rights does no violence to the Equal Protection Clause unless to some significant extent the State in any of its manifestations has been found to have become involved in it. Because the virtue of the right to equal protection of the laws could lie only in the breadth of its application, its constitutional assurance was reserved in terms whose impression was necessary if the right were to be enjoyed in the variety of individual-state relationships which the Amendment was designed to embrace. For the same reason, to fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an “impossible task” which “This Court has never attempted.” Kotch v. River Port Pilot Comrs., 330 U.S. 552, 556 [67 S.Ct. 910, 912, 91 L.Ed. 1093 (1947)]. Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance. Id. at 721-22, 81 S.Ct. at 859-60 (emphases added). Analyzing the governmental operation of the building and the benefits to the governmental owner from the operation of the restaurant, Justice Clark concluded that there was present “that degree of state participation and involvement in discriminatory action which it was the design of the Fourteenth Amendment to condemn,” id. at 724, 81 S.Ct. at 861, that the “good faith” of the state agency, i.e., the lack of intent or desire to discriminate, was seemingly not relevant or material, that the state agency “by its inaction ... has not only made itself a party to the refusal of service, but has elected to place its power, property and prestige behind the admitted discrimination,” id. at 725, 81 S.Ct. at 861, and that: [t]he State has so far insinuated itself into a position of interdependence with [the restaurant] that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so “purely private” as to fall without the scope of the Fourteenth Amendment. (Emphasis added). Id. at 725, 81 S.Ct. at 861. Justice Clark stated that “nigh universal application of a constitutional precept” was not possible because the decision in each case would be so largely governed by its own facts. Id. at 726, 81 S.Ct. at 862. In Griffin v. Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964), petitioners, five young Negroes, entered a privately owned and operated amusement park, whose policy was to exclude Negroes, but which welcomed all other members of the public. A special policeman, privately paid by the park but deputized as a sheriff of Montgomery County, Maryland and who wore a sheriffs badge, arrested the five for trespassing, transported them to the Montgomery County police station, and charged them with criminal trespass. Subsequently, after they were convicted in the Circuit Court for Montgomery County and the Court of Appeals of Maryland affirmed their convictions, petitioners successfully sought reversal thereof in the Supreme Court of the United States. In his opinion, Chief Justice Warren wrote: If an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity or that the particular action which he took was not authorized by state law. [Citation omitted]. Thus, it is clear that Collins’ [the deputy sheriff] action was state action. [Citations omitted]. The only question remaining in this case is whether Collins’ action denied petitioners the equal protection of the laws secured to them by the Fourteenth Amendment. If it did, these convictions are invalid. It cannot be disputed that if the State of Maryland had operated the amusement park on behalf of the owner thereof, and had enforced the owner’s policy of racial segregation against petitioners, petitioners would have been deprived of the equal protection of the laws. Id. at 135, 84 S.Ct. at 1772 (citations omitted). It is argued that the State may nevertheless constitutionally enforce an owner’s desire to exclude particular persons from his premises even if the owner’s desire is in turn motivated by a discriminatory purpose. The State, it is said, is not really enforcing a policy of segregation since the owner’s ultimate purpose is immaterial to the State. In this case it cannot be said that Collins was simply enforcing the park, management’s desire to exclude designated individuals from the premises. The president of the corporation which owned and managed the park testified that he had instructed Collins to enforce the park's policy of racial segregation. Collins was told to exclude Negroes from the park and escort them from the park if they entered. He was instructed to arrest Negroes for trespassing if they did not leave the park when he ordered them to do so. In short, Collins, as stated by the Maryland Court of Appeals, was “then under contract to protect and enforce ... [the] racial segregation policy of the operator of the amusement park____” [Citations omitted]. Pursuant to this obligation Collins ordered petitioners to leave and arrested them, as he testified, because they were Negroes. This was state action forbidden by the Fourteenth Amendment. Id. at 136-37, 84 S.Ct. at 1773 (emphasis added). In Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), a white school teacher from New York brought a damage suit under 42 U.S.C. § 1983, naming only Kress — and not naming any governmental official — as party defendant, for refusal to serve lunch to her in a restaurant in Hattiesburg, Mississippi, operated by a Kress store “because she was a Caucasian in the company of Negroes” and for conspiring with the Hattiesburg police to deprive her of her federal constitutional rights. In his majority opinion, Justice Harlan wrote: Few principles of law are more firmly stitched into our constitutional fabric than the proposition that a State must not discriminate against a person because of his race or the race of his companions, or in any way act to compel or encourage racial segregation. Id. at 150-52, 90 S.Ct. at 1605-05 (emphasis added and footnote omitted). [S]ettled practices of state officials may, by imposing sanctions or withholding benefits, transform private predilections into compulsory rules of behavior no less than legislative pronouncements. Id. at 168, 90 S.Ct. at 1613. For petitioner to recover under the substantive count of her complaint, she must show a deprivation of a right guaranteed to her by the Equal Protection Clause of the Fou