01-3434 | 6th Cir. | Sep 1, 2004
Before: BOGGS, Chief Judge; COLE, Circuit Judge;
BATTANI, District Judge. [*] UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ COUNSEL ARGUED: Raymond Vasvari, AMERICAN CIVIL T HE U NITED C HURCH OF (cid:88) LIBERTIES UNION OF OHIO FOUNDATION, Cleveland, (cid:45) C HRIST ; R ONALD F UJIYOSHI ; Ohio, for Appellants. Dennis R. Wilcox, CLIMACO, (cid:45) G ARY Q UARLES ; J UAN CLIMACO, SEMINATORE, LEFKOWITZ & GAROFOLI, (cid:45) No. 01-3434 R EYNA , Cleveland, Ohio, for Appellee. ON BRIEF: Raymond (cid:45) > Plaintiffs-Appellants, Vasvari, AMERICAN CIVIL LIBERTIES UNION OF OHIO (cid:44) FOUNDATION, Cleveland, Ohio, for Appellants. Dennis R. (cid:45) Wilcox, CLIMACO, CLIMACO, SEMINATORE, A MERICAN M ISSIONARY (cid:45) LEFKOWITZ & GAROFOLI, Cleveland, Ohio, for Appellee. A SSOCIATION , et al., (cid:45) (cid:45) Plaintiffs, _________________ (cid:45) (cid:45)
OPINION v. (cid:45) _________________ (cid:45) G ATEWAY E CON OMIC (cid:45) R. GUY COLE, JR., Circuit Judge. The Indians and (cid:45) D EVELOPMENT C ORPORATION Cavaliers—Cleveland’s respective professional baseball and (cid:45) OF G REATER C LEVELAND , basketball teams—play their home games at the Gateway (cid:45) Sports Complex (“the Complex”). Featuring Jacobs Field and I NC ., (cid:45) Gund Arena, the respective stadiums for each team, along Defendant-Appellee. (cid:45) with a parking garage and a common area, the Complex hosts (cid:78) tens of thousands of visitors on a regular basis. One group of would-be visitors, Plaintiffs United Church of Christ and its
Appeal from the United States District Court companions (collectively, “UCC”) appeal the denial of a for the Northern District of Ohio at Cleveland. requested injunction that would allow them to gather and No. 00-00661—Kathleen McDonald O’Malley, demonstrate at the Complex. The district court held that: District Judge. (1) even if the privately owned Complex were treated as if it Argued: September 11, 2002 Decided and Filed: September 1, 2004 [*] The Honorab le Marianne O. B attani, United States District Judge
for the Eastern District of Michigan, sitting by designation. 1 No. 01-3434 United Church of Christ, et al. v. 3 4 United Church of Christ, et al. v. No. 01-3434 Gateway Economic Dev. Corp. Gateway Economic Dev. Corp. were owned by the state, the areas in which UCC sought to district court’s legal conclusions anew and its factual protest would be nonpublic fora; and (2) the restrictions on determinations for clear error. Adland v. Russ , 307 F.3d 471" date_filed="2002-10-09" court="6th Cir." case_name="None">307 F.3d 471, UCC’s access were reasonable. For the following reasons, we 477 (6th Cir. 2002). AFFIRM in part, REVERSE in part, and REMAND .
A . Public Forum
I. BACKGROUND
UCC first challenges the district court’s determination that On April 14, 2000, the Cleveland Indians played their first neither property at issue constituted a public forum. We home game of the season. UCC planned to attend the game employ “forum analysis as a means of determining when the to protest the team’s use of the nickname “Indians” and the government’s interest in limiting the use of its property to its cartoon-character mascot “Chief Wahoo,” trademarks that intended purpose outweighs the interest of those wishing to UCC considers to be racist and offensive to Native use the property for other purposes.” United Food & Americans. Specifically, UCC planned to conduct its Commercial Workers Local 1099 v. City of Sidney , 364 F.3d demonstrations on the Gateway Sidewalk and the Gateway 738, 746 (6th Cir. 2004) (internal quotations omitted). There Common areas (“Commons”). are three types of fora: (1) the traditional public forum; (2) the
designated public forum; and (3) the nonpublic forum. Id. The Complex is owned by a private entity, the Gateway UCC argues that the Gateway Sidewalk is a traditional public Economic Development Corporation of Greater Cleveland, forum, and that the Commons are designated public fora. Inc. (“Gateway”), which excludes all persons from using the Gateway Sidewalk or the Commons to solicit, advertise, or 1. Sidewalk protest (save for three exceptions unimportant to our The Gateway Sidewalk encircles the Complex, and looks resolution of this case). On March 10, 2000, UCC filed suit and feels like a typical public sidewalk. Because the Supreme against Gateway in the United States District Court, Northern Court has explained that from “[t]ime out of mind public District of Ohio, arguing that the First Amendment mandated streets and sidewalks have been used for public assembly and a preliminary and permanent injunction allowing UCC to
debate, the hallmarks of a traditional public forum,” Frisby protest on both the Gateway Sidewalk and the Commons on v. Schultz , 487 U.S. 474" date_filed="1988-06-27" court="SCOTUS" case_name="Frisby v. Schultz">487 U.S. 474, 480 (1988), UCC argues that the opening day. On April 13, 2000, the district court refused to Gateway Sidewalk is a traditional public forum, a place in preliminarily enjoin Gateway’s restrictions, and on March 22, which the “right to limit protected expressive activity is 2001, after UCC amended its complaint, the district court sharply circumscribed.” Chabad of S. Ohio v. City of denied UCC’s request for a permanent injunction. UCC Cincinnati , 363 F.3d 427, 434 (6th Cir. 2004) (internal timely appealed.
quotations omitted).
II. ANALYSIS
There are two key reasons why UCC is correct. First, the The district court declined to decide whether Gateway was Gateway Sidewalk blends into the urban grid, borders the a state actor, holding that even if it were, the Gateway road, and looks just like any public sidewalk. Indeed, a Sidewalk and the Commons constituted non-public fora public sidewalk—which runs parallel to the Gateway subject to reasonable access restrictions. We review the Sidewalk—circumscribes the Complex and borders the No. 01-3434 United Church of Christ, et al. v. 5 6 United Church of Christ, et al. v. No. 01-3434
Gateway Economic Dev. Corp. Gateway Economic Dev. Corp. municipal streets. Further, the public and Gateway sidewalks Of course, not all sidewalks are public fora. See, e.g. , are made of the same materials and share the same design. In United States v. Kokinda , 497 U.S. 720" date_filed="1990-06-27" court="SCOTUS" case_name="United States v. Kokinda">497 U.S. 720 (1990) (postal service United States v. Grace , 461 U.S. 171, 180 (1983), the sidewalk separated from main highway sidewalk and could be Supreme Court held that a sidewalk bordering the Supreme used only to enter the post office); Greer v. Spock , 424 U.S. Court constituted a public forum because “[t]here is no 828 (1976) (sidewalks located in an enclosed military base separation, no fence, and no indication whatever to persons and separated from the streets and sidewalks of the city stepping from the street to the curb and sidewalks that serve itself); Chicago Acorn v. Metro. Pier and Exposition Auth. , as the perimeter of the Court grounds that they have entered 150 F.3d 695" date_filed="1998-07-21" court="7th Cir." case_name="Chicago Acorn, Seiu Local No. 880, and Ted Thomas v. Metropolitan Pier and Exposition Authority, Cross-Appellee">150 F.3d 695, 702 (7th Cir. 1998) (“Rather than being part of some special type of enclave.” See also Venetian Casino the city’s automotive, pedestrian, or bicyclists’ transportation Resort v. Local Joint Executive Bd. of Las Vegas , 257 F.3d grid, the sidewalks on the pier and the service street on its 937, 947 (9th Cir. 2001) (applying First Amendment to north side are internal to the pier, like the sidewalks, streets, privately owned sidewalk that “is connected to and virtually and parking lots in Disney World[.]”). Whether a given indistinguishable from the public sidewalks to its north and sidewalk is considered a public forum, of course, hinges on a south”); Henderson v. Lujan , 964 F.2d 1179" date_filed="1992-05-22" court="D.C. Cir." case_name="David Henderson v. Manuel Lujan, Jr., Secretary of the United States Department of Interior">964 F.2d 1179, 1182 (D.C. Cir. case-by-case inquiry in which no single factor is dispositive. 1992) (“The two sidewalks here appear to be classic The Gateway Sidewalk differs from those sidewalks that have instances. They are physically indistinguishable from not been held to be public fora because it is fully integrated ordinary sidewalks used for the full gamut of urban into the downtown and indistinguishable from its adjoining walking.”). Moreover, although in some areas the Gateway publicly owned sidewalk both physically and in its intended Sidewalk’s border is roughly delineated by fifteen-foot-long use. planter boxes containing trees, this fact does not alter our
2. Commons conclusion. As the district court rationally determined, the average observer would be unfamiliar with the geographic
Although UCC concedes that the Commons—an significance of this sporadic vegetation. assortment of plazas, grassy areas, and interior streets within the Complex—are not traditional public fora, it argues that Second, like its publicly owned counterparts, the Gateway they have been designated as public fora by Gateway. The Sidewalk also is a public thoroughfare. By design, the government (or in this case, Gateway, who we assume, for Gateway Sidewalk contributes to the City’s downtown purposes of this question, stands in the government’s shoes) transportation grid and is open to the public for general may designate “a place or channel of communication for use pedestrian passage. Indeed, rather than leading to the rest of
by the public at large for assembly and speech, for use by the Complex, the Gateway Sidewalk encircles it as a through certain speakers, or for the discussion of certain subjects.” route. Although Gateway contends that the majority of the Cornelius v. NAACP Legal Defense & Educ. Fund , 473 U.S. Gateway Sidewalk’s pedestrians are traveling to and from 788, 802 (1985). Indians and Cavaliers games, “[t]he mere fact that a sidewalk abuts property dedicated to purposes other than free speech is
UCC’s argument turns on one fact: that although it not enough to strip it of public forum status.” Henderson , generally prohibits access to the Commons during gametime, 964 F.2d 1179" date_filed="1992-05-22" court="D.C. Cir." case_name="David Henderson v. Manuel Lujan, Jr., Secretary of the United States Department of Interior">964 F.2d at 1182. “Gateway has allowed as many as one hundred unticketed fans at a time to congregate along Eagle Avenue, behind the
No. 01-3434 United Church of Christ, et al. v. 7 8 United Church of Christ, et al. v. No. 01-3434 Gateway Economic Dev. Corp. Gateway Economic Dev. Corp. stadium bleachers.” This, along with the fact that fans on status of the Gateway Corporation,” our decision that the their way to and from the games “routinely carry signs and Gateway Sidewalk is a public forum necessarily requires that banners supportive of the Cleveland Indians across the the Sidewalk be treated as state owned for the purposes of the common areas and even into the stadium without interference First Amendment. The following analysis explains why. from Gateway personnel,” indicates to UCC that Gateway has Before the district court, UCC advanced three independent opened up the Commons to the gamut of public expression. reasons why the First Amendment applied to Gateway. Two The record reveals, however, that to the extent that Gateway of these arguments had little to do with the character of the has allowed non-ticketholders to access the Commons during Complex itself; rather, they focused on the relationship gametime, it has done so only for those interested in the between Gateway and the City, and, if accepted, would lead actual game being played, and has done so for the specific
to the conclusion that for all practical purposes, the Complex purpose of contributing to the gametime ambience. is publicly owned. First, relying on Lebron v. Nat’l R.R. First, the handful of non-ticketed Indians fans who are Passenger Corp. , 513 U.S. 374, 400 (1995), in which the allowed access to the Commons are so allowed because they Supreme Court held that Amtrak was an instrumentality of have an interest in the Indians’ performance on the field. the government, UCC argued that “because like Amtrak, its Second, although the Indians have sometimes allowed radio history, mandate and leadership are so tied up with the stations to use the plaza area to broadcast high-profile games, government—in this case the City and the County—that this again directly furthers fan enjoyment of the game itself. [Gateway] should be deemed an agency or instrumentality of UCC, in marked contrast, does not seek access to the local, and therefore state government.” Second, in a similar Commons for purpose of fan enjoyment. Rather, it wishes to vein, UCC argued that “the relationship between the Gateway make a political statement that is merely incidental to the Corporation, the City and the County is so deeply symbiotic game itself. That Gateway has allowed baseball fans access as to make the Gateway Corporation a state actor.” Both of to the Commons falls far short of suggesting that it has these arguments turned on the amount of control exercised allowed everyone access to the Commons. over by the Complex by the state—a subject that has been
detailed in other cases, see N. Ohio Chapter of Associated Thus, we agree with the district court that the Commons are Builders & Contractors, Inc. v. Gateway Econ. Dev. Corp. , not designated public fora. Moreover, UCC did not challenge 1992 WL 119375 (N.D. Ohio May 12, 1992), but upon which the district court’s conclusion that if they are nonpublic fora, the record in our case is largely silent. Thus, we agree that a the restrictions on their use are reasonable. Accordingly, even determination of whether Gateway is a state actor under these if Gateway were treated as a state actor for purposes of the
two tests would require a remand to the district court for Commons, the restrictions on their usage would satisfy the additional findings. First Amendment. But the third justification that UCC advanced to apply the B. State Action First Amendment to Gateway was that “in managing access to the sidewalks, malls and plazas of the Gateway Complex, Although UCC argues that a finding that the Gateway the Gateway Corporation is performing a function that is Sidewalk is a public forum requires that we remand the case traditionally the exclusive prerogative of the state.” This to the district court “for findings regarding the state-actor inquiry—the so-called “public function test”—is not satisfied No. 01-3434 United Church of Christ, et al. v. 9 10 United Church of Christ, et al. v. No. 01-3434 Gateway Economic Dev. Corp. Gateway Economic Dev. Corp. when a private actor merely holds its property out to the Amendment applied); Rouse v. City of Aurora , 901 F.Supp. public. See Hudgens v. NLRB , 424 U.S. 507" date_filed="1976-03-03" court="SCOTUS" case_name="Hudgens v. National Labor Relations Board">424 U.S. 507 (1976) (First 1533, 1535-36 (D. Colo. 1995), (evaluating plaintiffs’ claim Amendment does not apply to privately-owned shopping that the First Amendment applied to a privately owned center); Lloyd Corp. v. Tanner , 407 U.S. 551" date_filed="1972-05-26" court="SCOTUS" case_name="Lloyd Corp. v. Tanner">407 U.S. 551 (1972) (same). shopping center sidewalk, and observing that “[t]he linchpin Rather, we ask whether the “private entity exercise[s] powers to this claim, and, indeed, to plaintiffs’ case theory underlying which are traditionally exclusively reserved to the state.” all claims in this action, is their allegation that the Granada Lansing v. City of Memphis , 202 F.3d 821, 828 (6th Cir. Park Shopping Center is a public forum”); cf. Citizens to End 2000). Examples of such public functions have included the Animal Suffering & Exploitation v. Faneuil Hall Marketplace, operation of a park that is public in character, see Evans v. Inc. , 745 F.Supp. 65, 70-72, 76 & n.30 (D. Mass 1990) Newton , 382 U.S. 296" date_filed="1966-01-18" court="SCOTUS" case_name="Evans v. Newton">382 U.S. 296, 302 (1966) (“[T]he public character of (treating public function and public forum inquiries as this park requires that it be treated as a public institution technically distinct, but applying identical factors to both subject to the command of the Fourteenth Amendment, decisions). regardless of who now has title under state law.”), and the Thus, for the purpose of this case, we need not decide running of a company town that functions as if municipally- whether Gateway is a state actor under the other two theories controlled, see Marsh v. Alabama , 326 U.S. 501" date_filed="1946-01-28" court="SCOTUS" case_name="Marsh v. Alabama">326 U.S. 501, 507 (1946) advanced by UCC: our decision in today’s case has no (“Whether a corporation or a municipality owns or possesses bearing, for instance, on whether, Gateway’s employees the town the public in either case has an identical interest in would receive First Amendment protection for their the functioning of the community in such manner that the
workplace speech or whether Gateway would have to comply channels of communication remain free.”). with the Due Process Clause when firing a subcontractor. The particular “public function” that UCC asserts in our Rather, our holding today means only that Gateway is a case is the regulation of the public’s access to a sidewalk that public actor when performing the public function of functions as a public sidewalk—in other words, the operation regulating the public’s access to the Gateway Sidewalk. of a public forum. Because—owing to the fact that it sits in C. Time, Place, and Manner Restriction the heart of the City, is connected and indistinguishable from a publicly-owned sidewalk, and is open to the public as a
Because the Gateway Sidewalk is a public forum, Gateway through route—the Gateway Sidewalk constitutes a public may saddle it only with content-neutral time, place, and forum, Gateway’s operation therein serves as a public manner restrictions that are narrowly tailored to further a function. See Lee v. Katz , 276 F.3d 550" date_filed="2002-01-10" court="9th Cir." case_name="None">276 F.3d 550, 555 (9th Cir. 2002) significant governmental interest and reserve sufficient (“The particular public function that the plaintiffs allege the alternative avenues of communication. See Chabad , 363 F.3d [defendant] performed was the regulation of free speech at 434. In light of the highly fact-bound nature of the time, within the Commons, a public forum. Previous courts have place, and manner analysis and the limited briefing we have found this function to be a traditional and exclusive public received on the question, we remand to the district court to function.”); Venetian Casino , 257 F.3d at 943 (9th Cir. 2001) consider this question in the first instance. See Lee , 276 F.3d (stating that “[t]he issue before us is whether the sidewalk on at 557. private property that requires unobstructed pedestrian traffic is a public forum,” and proceeding to determine that because the privately owned sidewalk was a public forum, the First No. 01-3434 United Church of Christ, et al. v. 11
Gateway Economic Dev. Corp.
III. CONCLUSION
The district court’s judgment AFFIRMED in part and REVERSED in part. We REMAND for the district court to consider whether the restrictions on access to the Gateway Sidewalk satisfy the standards applicable to traditional public fora.