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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