Daily Development for Tuesday, October 19, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

CONSTITUTIONAL LAW; FREE SPEECH; SIDEWALKS: Private sidewalk abutting a public sidewalk that is used for general ingress and egress without obstacle to the general public is a "public forum" and its owner has responsibilities to protect Constitutional free speech rights even though the owner is private and the majority of the public users of the sidewalk use the area is to obtain access to the owner's other private property (a sports stadium).

The United Church of Christ v. Gateway Economic Development Corp. Of Greater Cleveland, Inc.

The Gateway Sports Complex in Cleveland, Ohio is the home of the Cleveland Indians professional baseball team and the Cleveland Cavaliers professional basketball team. The stadium and its environs are owned by Gateway Corp., which is a private corporation.

Plaintiffs sought to exercise free speech rights on property owned by Gateway. They wished to protest the use of the term "Indians" as the name of the baseball team and the use of "Chief Wahoo" as the team mascot. Upon being refused, they sought an injunction protecting their free speech rights, which the trial court denied.

On appeal, the Sixth Circuit Court of Appeals recognized the plaintiffs' free speech rights on an area of the property consisting of the private sidewalk abutting the public sidewalk that provided access to the facility, but affirmed the denial of the injunction, thereby protecting the private property of the defendants, with respect to a public gathering area outside the fenced area of the stadium property known as the "Commons," which is accessed by crossing over the sidewalk.

As to the sidewalk, the court cited a U.S. Supreme Court decision finding that the property outside of the Supreme Court building that is part of the Supreme Court property, and not a public sidewalk, is a "public forum." Of course, the Supreme Court itself is a public agency and required to provide free speech access in any event. But another decision, by the Ninth Circuit Court of Appeals, held that the private sidewalk abutting the public sidewalk at the Venetian Casino in Las Vegas was a public forum for purposes of free speech rights.

Here is what the court said about the characteristics of the sidewalk that made it a public forum:

"First, the Gateway sidewalk blends into the urban grid, borders the road, and looks just like any public sidewalk. Indeed, a public sidewalk - which runs parallel to the Gateway Sidewalk, circumscribes the Complex and borders the municipal streets. Further, the public and Gateway sidewalks are made of the same materials and share the same design. . . Moreover, although in some areas the Gateway Sidewalk's border is rougly delineated by fifteen foot long planter boxes containing trees, this does not alter our conclusion. . . [t]he average observer would be unfamiliar with the geographic significance of this sporadic vegetation. . .

Second, like its publicly owned counterparts, the Gateway Sidewalk also is a public thoroughfare. By design the [sidewalk] contributes to the City's downtown transportation grid and is open to the public for general pedestrian passage. Indeed, rather than leading to the rest of the Complex, the Gateway Sidewalk encircles it as a through route. Although Gateway contends that the majority of the Gateway Sidewalk's pedestrians are traveling to and from Indians, and Cavaliers gamse, the mere fact that a sidewalk abuts property dedicated to purposes other than free speech is not enough to strip it of public forum status. . .

. . . Whether a given sidewalk is considered a public form, of course, hinges on a case-by-case inquiry in which no single factor is dispositive. The Gateway Sidewalk differs from those sidewalks that have not been held to be public fora because it is fully integrated into the downtown and indistinguishable from its adjoining publicly owned sidewalk both physically and in its intended use." [citations and internal quotes removed]

The court refused to view as a public forum another area, known as the Commons, that the plaintiffs sought to use for their demonstrations. The Commons, which consists of paved and grassy areas, and apparently usually is readily accessible by the general public, is closed off from the public at game times. The defendants had the practice of permitting a few nonticketed fans to gather on the Commons during games, apparently to "breathe in the atmosphere" of what was happening on the other side of the fence, but the court held that this limited provision of access did not alter the character of the Commons and make it a public forum. "That Gateway has allowed baseball fans access to the Commons falls far short of suggesting that it has allowed everyone access to the Commons."
Even though the plaintiffs felt that the trial court, on remand, would be required to go on to find that Gateway itself be treated as "state owned" in order for it to obtain relief, the court rejected that notion and, apparently, gave that issue to the plaintiffs as part of its decision. Although the court agreed that there was insufficient evidence of public involvement to find that in fact Gateway was publicly controlled or an instrument of state action, it concluded that these questions were moot. Simply as the owner and controller of a public forum, Gateway had an obligation to provide the same level of free speech rights that a public entity would have to provide on the sidewalks. The question is whether the private entity exercises powers and controls similar to those normally exercised by the State. By restricting access to a "public forum," the court noted, Gateway surely was doing that.

The benefit of ducking the conclusion that Gateway was effectively a state agency was that, in the eyes of the court, it deferred any consideration as to whether, for other purposes, Gateway owed to those with whom it dealt the responsibilities that an agency of government might owe - such as employment rights or due process rights.

Comment 1: In First Unitarian Church of Salt Lake City v. Salt Lake City Corporation, 308 F.3d 1114 (10th Cir. 2002), the DD for 5/2/03, the court found that a where the city vacated a street and created a private easement that provided through passage between two public streets, that easement was necessarily a public forum because of the traditional use of the area as a public thoroughfare. The First Unitarian case is reasonably scary on its facts - probably more so than the instant case, but the broad “all the factors” test employed by the court in the instant case will provide some pause to developers.

Comment 2: What possible difference should it make whether the area in question is made of the same materials of the adjacent public sidewalk? Shouldn’t the question be whether an implicit invitation is extended to the public? That could be true regardless of the building materials used. Appearance matters in identifying whether that invitation exists, true, but certainly the invitation can be there whether the area is paved with brick, boards, or sand.

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