1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0291P (6th C ir.) File Name: 04a02 91p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
T HE U NITED C HURCH OF C HRIST ; R ONALD F UJI YOSHI ; G ARY Q UARLES ; J UAN R EYNA , Plaintiffs-

Appellant s,

A MERI CAN M ISSI ONARY A SSOC IATI ON , et al., Plaintiffs,

v.

G ATEWAY E CON OM IC D EVEL OPMENT C ORPORATI ON
OF G REATER C LEVEL AND , I NC ., Defendant-Appellee. X - - - -
> , - - - - - - - - - - - - - - N No. 01-3434

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No . 0 0- 00 66 1— Ka th le en Mc Do na ld O’ Ma ll ey,

District Judge. Argued: September 11, 2002 Decided and Filed: September 1, 2004 2 United Church of Christ, et al. v. Gateway Economic Dev. Corp. No. 01-3434

* The Honorab le Marianne O. B attani, Uni ted St ates Distri ct Judge for the Eastern Dist

rict of Michigan, s itti ng by designation. Before: BOGGS, Chief Judge; COL E, Circuit Judge; BATTANI, District Judge. *

_________________ COUNSEL

ARGUED: Ray

mond Vasv ari, AMERI CAN CIVIL LI BERTIES UNION OFOHIO FOUNDATION, Cleveland, Ohio, for Appellants. De nni s R. Wilcox, CLIMACO, CLIMA CO, SEMINATORE, L EFKOWITZ

& GAR OFO LI, Cleveland, Ohio , for Appellee. ON BRI EF: Raymond Vasvar i, AMERI CAN CI

VIL LI BERTI ES U NI ON O F OH IO FOUNDATIO

N, Cleveland, Ohio, for Appe llants. De nnis R. Wilco x, CLI MACO, CL IMACO , SE MINA TORE , LEFKOWI TZ & GAROFOLI , Cleveland, Oh io, for Appellee

.

_________________ OPINION

_________________ R. GUY COLE, JR., Circuit Judge. T he Indians and Cavaliers—Cleveland’s respective professional baseball and b as ketball

teams—play their home games at the Gateway Sports Complex (“t he Compl ex” ). Featuring Jacobs Field and Gund Arena, the respective stad iu ms for each team, along with a parki ng garage and a co mmon are a, the Comp lex hosts tens of thousands of visitors on a regular basis. One group of would-be visitors, Plaintiff s United Ch

urch of C hrist

and its companions (c o llectively, “UCC”) a ppeal the denial of a requested injunction that would allow them to gather and demonstr ate at the Complex. The dist rict cou rt held tha

t: (1) even if the privately

owned Complex were treated as if itNo. 01-3434 United Church of Christ, et al. v. Gateway Economic Dev. Corp. 3

were owned by the state, the area s in which UCC sought t o protest would be nonpublic fora; and (2) the restrictions on UCC’s access were reasonable . For the following reasons , we AFFIRM in part, REVERSE in part, and REMAND

.

I. BACKGROUND

OnApril 14, 2000, the Cleveland Indiansplay ed their first home game of

the seas on. UCC pla

nned to at tend the g ame to protest the team’s use of the nickname “I ndians” and the cartoon-charact er

m ascot “Chief Wahoo,” trademarks that UCC considers to be ra cist a nd offensive to Native America ns. Specific ally , UCC p lannedto conduct its demonstrations on the Gateway Sidewa lk and the Gateway Common areas (“Commons”).

The C omple x is owned by a priva te entity, the Gateway E conomic

Development Corporation of Greate r Clevela nd , Inc. (“Gateway

”), which excludes all persons from using the Gateway Sidewalk or the Commons to solicit, advertise, or protest (save for three exceptions uni mporta nt to our resolution of this case). On March 10, 2000, UCC filed sui

t agains tGateway

in the United States District Court, Northern District of Ohio, arguing that the First Amendment manda ted
a pr eliminar

y a nd perma nent injunction allowing UCC t o protest on both the Gateway Sidewalk and

the Commons on opening day. OnApril 13, 2 000, the d istrict c ourt ref

used to prelimina rily enjoin Gateway ’s restrictions, and on March 22, 2001, after U CC amende d its compla int, the district court denied UCC’s req

uest for a perma nent injunction. UCC timely appealed.

II. ANALY SIS
The district c ourt dec lined to decide whether Gateway was a state ac tor, holding that even if it were, the Gateway Sidewalk and the Commons constituted non-public fora subj ectto reasonable access restrictions. We review the 4 United Church of Christ, et al. v. Gateway Economic Dev. Corp. No. 01-3434

districtcourt’s lega l conclusions anew and its factual determinations for clear error. Adland v. Russ , 307 F.3d 471, 477 (6th Cir. 2002).

A

. Public Forum

UCC first challenges the district court’s determination that neither propert y a t i ssue c onsti

tuted a pub lic f

orum. We employ “forum analysis as a mea

ns of determining when the government’s interest

inlimiting the use of its p roperty to its intended purpose outwe ighs the

interest of those w

ishing to
use th e pr operty for othe r purposes.” United Food & Commercial

Workers Local 1099 v. City of Sidney , 364 F.3d 738, 746 (6th Cir. 2004) (internal quotations omitted). There
are three types of fora : (1) the traditional public forum; (2) the designated

public forum; and (3) the non publi c forum. Id. UCC argues that the Gatewa y Sid ewalk is a traditi onal publi c forum, and that the Commons are designated public fora.

1. Sidewalk

The Gatewa

y Sid ewalk e ncircle s the Co mplex, and looks and feels like a typic al public sidewalk. Because theSupreme Courthas explained that from “[t]im e out of min

d public streetsand sidewalks have been use d for publ ic assembly and debate, the hallmarks of a traditional publ ic forum,” Frisby

v. Schultz , 487 U.S. 474, 480 (1988), UCC ar gues that the Gateway Sidew alk is a traditi onal publi c forum, a place in whichth e “ ri gh t t o l im it pr ot ec te d e xp re ss iv e a ct iv it y i s sha rply circumscribed.” Chabad of S. Ohio v. Cit yo f Cincinnati , 363 F.3d 4 27, 434 (6 thCir . 2004) (internal quotations omitted).

Th ere are two k

ey reasons why UCC is corr

ect. First, th e Gateway S i dewalk blends into the urban grid, borders the road, and looks j ust lik e a ny public sidewalk. I ndeed, a public sidewalk—whi ch runs parallel to the Gateway Sidewalk —circum scrib es t he Complex and borders theNo. 01-3434 United Church of Christ, et al. v. Gateway Economic Dev. Corp. 5

municipal streets. Further, the public and Gateway sidewalks
are mad e of

th e sa me m ate ria ls and sha re t he s ame des ign . In U nit ed States v. Grace , 461 U.S. 171, 180 (1983), the Supreme Court held

that a side

walk bor dering the Supre

me Courtconstituted a public forum be ca use “[t]here is no separation, n o fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve
as the perimeter

of the Court grounds that they have entered
some s pecial type of

enclave.” See also V

enetian Ca

sin o Resort v. Local J

oint Executive Bd. of La s Vegas , 257 F.3d 937, 947 (9th Ci r. 2001) ( apply ing First Amendme

nt to private ly owned sidewalk that

“is connected to and

virtually indisting uishable from the p ublic sidewalks to its north and south”); Henderson v. Lujan , 964 F.2d 1179, 1182 (D.C. Cir. 19 92) (“The two sidewa lks here appear to be cla ssi c instance s. They ar

e physically

indistingui sh able from ordinary sidewalks used for the full gamut of urban walking.”). Moreover, although in some areas the Gateway Sidewalk’s border is roughly delineated

by fifteen-foot-long planter boxes c ontaini ng trees, this fact does not alter our
c on clusion. As the district court rationally de termined, the average observe

r would be

unfamilia

r with th e geog raphic significance of this sporadic veg etation. Second, like its publicly owned counterparts, the Gateway Sidewa lk also is a public thoroughfare. By design, the Gateway Sidewalk

contribute s to the City’s downtown trans portatio ngrid and is open to the public for gener al pedestrian

passage. I

ndeed, rather than

leading to the rest of the Complex, the Gatewa y Sid ewalk e ncircle s it as a th rough route

. A lthough Gateway contends that the majority of the Gateway Sidewalk ’s pedes trians a re tra veling to and from Indians and Cava

liers g ames, “[t]he mere fact that a side

walk abuts property de dicated to purposes other thanfree sp eech is notenough to strip it of public forum status.” Henderson , 964 F.2d at 1182. 6 United Church of Christ, et al. v. Gateway Economic Dev. Corp. No. 01-3434

Of course, not all sidewalks are public fora. See, e.g. , United States v. Kokinda , 497 U.S. 720 (1990) (postal service sidewalk separated from main highway sidewalk and could be used only to enter the post offic e); Greer v. Spock , 424 U.S. 828 (1976) (sidewalks located in an enclosed militar y base and separa ted from t

he stree ts and side

walks of th e city itself); Chicago Acorn v. Me tro. Pier a nd Exposi ti on Au th. , 150 F.3d 695, 702 (7th

Cir. 1998) (“Rather than

being part of the city’sautomotive, pedestrian, or bicy clists’ transportation grid, the sidew alks on the pier and the service stre et on its north side are internal to the pier, like the sidew alks, stre ets, and pa rk in g l ot s i n D is ne y Wo rld[.]”). Whether a given sidewalk is considered a public forum, of course, hinges on a case-by- caseinquiry

in which no single

factor is dispositive. The Gatewa

y Sid ewalk differs from those

sidewalks that have notbeen held to be public fora because it is fully integrated into the downt

own and in

distingu ishable f rom i ts a djoining publicly ow ne d s id ew al k b ot h p hys ic al ly an d in its intended
use.
2. Commons

Alth ough UCC concedes that the Comm ons—an assortment

of plazas , grassy

areas, and interior

streets w ithin the Complex—are no t traditional public fora, it argues that they have been designat ed as public fora by Gateway . The government

(or in t his case, Gateway , who we assume, for purposes of this que stion, stan

ds in the g overnme

nt’s shoe s) may designate “a place or c

hannel of communic ation for

use by t he pu blic at large for assembly and speech, for use by certain speakers, or

for t he discussion of certain subjects.” Cornelius v. NAACP

Legal Defense &

Educ. Fund , 473 U.S. 788, 802 (1985).

UCC’s argume

nt turns on

one fact: that alth

ough it gener ally prohibits access to the Commons during gametime, “Gateway has allow ed as man

y a s one hundred unticketed fans at a time to congregate along Eagle Avenue, behind theNo. 01-3434 United Church of Christ, et al. v. Gateway Economic Dev. Corp. 7

stadium bleachers.” This, along with the fac t that fans on their way to and fr

om the games “routinely

carry signs and banners supportive of the Cle veland Indians across the
commonareas and even into thestadium without interference fromGatewa

y pe rsonnel, ” indica

tes to UCC that Gateway

has opened up the Commons to the gamut of public expression. The record reveals, however, that to the extent that Gateway has allowed non-ticketholders to access the Commons during gametime, it has done so only for those intere sted in the actual game be ing play

ed, and has done so

for the s pecific purpose of contributing to the gametime ambience

. First, the ha ndful of non-ticketed Indians fa ns who are allowed access to the Commons are so allowed because they have an inter est in

the Indians’ perfor

mance on the field. Second, although the Indians have sometimes allowed r

adio stations to use the

plaza ar ea to bro adcast

high-pr ofile games, this ag ain directly fur

thers fan enjoy

ment of the game itself. UCC, in marke d contra st , doe s not seek access to the Commons for purpose of fan enjoyment. Rather, it wishes to make a politica

l stateme nt that is me

rely i ncidental to the game itself. That Gateway

has allowed baseball fans access to the Commons

fall s far sho rt of suggesting that it has allowed e very one acc ess to the

Commons. Thus, we agr

ee with the district court that the Commons are notdesigna

ted public fora. Moreover , UCC did notchall enge the districtcourt’s conclusion that if they are

nonpublic fora, the restrictions on the ir

use are reasonable. Accor dingly, eve

n if Gateway were treated as a state actor for purposes of the Commons, the restr

ictions on their usa ge woul d satisf

y the First Ame

ndment.

B. State Action

Alth ough UCC ar gues th at a fi ndin g tha t the Gateway Sidewalk is a public forum requires that we rema nd the ca se to the district court “for fi n dings regarding the sta te-actor 8 United Church of Christ, et al. v. Gateway Economic Dev. Corp. No. 01-3434

status of the Gatew ay Cor poration,” our decision that the Gateway Sidewalk is a public forum necessarily requires that the Sidewalk be treated as state owned for the purposes of the Fi rs t A me nd me nt . T he fo ll ow in g a na lys is ex pl ai ns wh y.
Before the district court, UCC advanced three independent
reasons why the

Fi rs t A me nd me nt ap pl ie d t o G at ew ay. Two of these ar guments had li ttl e to do with the character of the C omp lex itself; ra

ther, the y f ocused on the rel ationship between Gateway and the Cit y, and, if ac cepted, would lead to the conclusionthat for all practical purposes, the Complex is publicly owned. First, re lying on Lebron v. Nat’ l R. R. Passeng er

Corp

. , 513 U.S. 374, 400 (1995), in which the Su preme C ourt held that Amtrak was an instrumentality of the government, UCC argued that “be cause like Amtrak, i ts hi st or y, mandate and leadership are so tie d up with the g o vernmen

t—in this case the City and the County —that [G at ew ay] should be deemed an agency or instrumentality of local, and therefore state gover nment.” Second, in a

similar vein, UCC argued

that “the relationship between the Gateway Corporation, the City and the County

is so deep ly s ymb iotic
as to make the Gatew ay Corporation a state actor.” Both of theseargum ents turned on the amount of control exercised
over by t h e Complex by the state—a subject that has bee n detailed in other cases, see N. O hio Chapter of Associated Builders & Contractors, I

nc. v. Gateway Econ. Dev. Corp. , 1992 WL 119375 (N.D. Ohio May 12, 1992) , but upon which the record in our ca se is larg ely

silent. Thus, we a

gree t hat a determination

of whether Gateway

is a state actor

under the se two tests woul d require a remand to the district court for additiona l finding s.
But the th ird justif ication that UCC adv anced to apply the First Am en dm en t t o G at ew ay w as th at “in man aging access to the side

walks, ma

lls and plazas of the Gate way Compl ex, the Gateway

Corporation is per forming a functi on that is traditionally

the exclusive pre rogative of the state.” This inquiry—the

so-calle d “public

function test”—is not satisfiedNo. 01-3434 United Church of Christ, et al. v. Gateway Economic Dev. Corp. 9

when a private actor mere ly ho lds its property out to the public. See Hudgens v. NLRB , 424 U.S . 5 07 (1976)(First Amendment

does not apply to pr

ivate ly-owned shopping center); Lloyd

Corp. v. Tanner , 407 U.S. 551 (1972) (same). Rather, we ask whether the “privat e entity exercise [s] powers whichare tr

aditio nally exclusively

reserved to the state.” Lansing v. City o f M emphis , 202 F.3d 821, 828 (6th Cir. 2000). Examples of such public functions have included the operation of a park that is public in character, see Evans v. Newton , 382 U.S. 296, 302 (1966) (“[T]he public character of this park re quires th at it b e treated as a public institution
su bject to the command of the Fourteenth Amendment , regar dless of w ho now has title under state law.”), and the running of a company

town th at fu nc ti on s a s i f m un ic ip al lycontrolled, see Marsh v. Alabama , 326 U.S. 501, 507 (1946) (“Whether

a corporation or a municipality owns or possesses the town the p

ublic in e ither ca se has an identica l in t erest in the functioning of the commun it y in such manner that the channels of communication remain free.”)

. The particu

lar “pub lic func tion” tha

t UCC asse rts in our
caseis the regulation

of the public’s access to a sidewalk that functions as a

public sidewalk—in other words, the operation of a public forum. Because—owing to the fact tha t it sits in the heart of

the City , is connected and indistinguishable from
a publicly -owned s idewalk, and is ope n to the pub lic as a throu gh route—the Gateway Sidewalk constitutes a public forum, Gatewa

y’ s operat

i o n therei

n serves as a publi c function. See Lee

v. Katz , 276 F.3d 550, 555 (9th Cir. 2002) (“The particular public function tha t the plaintiffs allege the [defendant ] perf

ormed was the regulation of free speech within the Commo ns, a public forum. Previous courts have found this function to be a traditional and exclusive pub li c function.”); Venetian Casino , 257 F.3d at 943 (9th Cir. 2001) (stating that “[t]he

issue bef ore us is w

hether t he sidew alk

on private property that

require s unobstru

cted ped estrian t raffic is a public forum,” and proc eeding to deter mine that b ecause the privately ow

nedsidewalk

was a pub lic forum , the First 10 United Church of Christ, et al. v. Gateway Economic Dev. Corp. No. 01-3434

Amendment

applied) ; Rouse v. City of Auro ra , 9 01 F.Supp. 1533, 1535-36 (D. Colo. 1995), (evaluating plaintiff s’ claim that the Firs t A mendment applied to a privately owned shopping center sidewalk, and observing that “[t]he

linchpin to this claim , and, ind

eed, to pl aintiffs ’ case

theory under

lying all claims in this action, is their al legat ion that the Granada Park Shopping Center

is a public f

orum”); cf. Citizens to End Ani mal Suffering & Expl

oitation v. Faneuil Hall Marketplace, Inc. , 745 F.Supp. 65, 70-72, 76 & n.30 (D . Mass 1990) (treatingpublic fu

nction an

d public f

orum in qui ries as techni cally distinct, b

ut apply ing iden tical fa ctors to b oth decisions).

Thus , for the purpose of this case, we need not dec i d e whether Gatewa y is a state actor under the other two theories advanced by UCC: our decision in today ’s cas e ha s no bearin g, for insta

nce, on w

heth er, Gateway ’s employees would receive First Amendment protection f ortheir workplace speech

or whether

Gatewa y w ould have

to comply with the Due Process Clause when firing a subcon trac tor. Rat her, our holdin

g today means onl

y th at Gateway

is a public actor w he n performing the public function of regulating the public’s acce ss to the Gateway Sidewalk.

C. Time, Place, and Manner Restriction

Becau se the Gate

way Sidewalk is a public forum, Gateway

m ay saddle it only with content-neutra l time, place , an d
ma nner restrictions that are narrowly tailored to further a significant

gover nmental in

te rest and reserve sufficient alternative avenues of co mmunication. See Chabad , 363 F.3d at 434. I n light of the high ly f act-bou nd natu re of t he time, place, and manner analy sis and the limited briefing we have received on the q u estion, we

remand t o the distr

ict cour t to consider this question in the first instance. See Lee , 276 F.3d at 557.No. 01-3434 United Church of Christ, et al. v. Gateway Economic Dev. Corp. 11

III. CONCL USION
The district c ourt’s jud

gme nt AFFIRMED in part and REVERSED in part. We REMAND for the d istrict c ourt to consider whether the restrictions on access to the Ga teway Sidewalk satisfy the standards

applica ble to tra ditional pu

blic fora.