1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0291P (6th Cir.)

File Name: 04a0291p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

THE UNITED CHURCH OF

CHRIST; RONALD FUJIYOSHI;

GARY QUARLES; JUAN

REYNA,

Plaintiffs-Appellants,

AMERICAN MISSIONARY

ASSOCIATION, et al.,

Plaintiffs,

v.

GATEWAY ECONOMIC

DEVELOPMENT CORPORATION

OF GREATER CLEVELAND,

INC.,

Defendant-Appellee.

X

-

-

-

-

>

,

-

-

-

-

-

-

-

-

-

-

-

-

-

-

N

No. 01-3434

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 00-00661—Kathleen McDonald O’Malley,

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 Honorable Marianne O. Battani, United States District Judge

for the Eastern District of Michigan, sitting by designation.

Before: BOGGS, Chief Judge; COLE, Circuit Judge;

BATTANI, District Judge.*

_________________

COUNSEL

ARGUED: Raymond Vasvari, AMERICAN CIVIL

LIBERTIES UNION OF OHIO FOUNDATION, Cleveland,

Ohio, for Appellants. Dennis R. Wilcox, CLIMACO,

CLIMACO, SEMINATORE, LEFKOWITZ & GAROFOLI,

Cleveland, Ohio, for Appellee. ON BRIEF: Raymond

Vasvari, AMERICAN CIVIL LIBERTIES UNION OF OHIO

FOUNDATION, Cleveland, Ohio, for Appellants. Dennis R.

Wilcox, CLIMACO, CLIMACO, SEMINATORE,

LEFKOWITZ & GAROFOLI, Cleveland, Ohio,forAppellee.

_________________

OPINION

_________________

R. GUY COLE, JR., Circuit Judge. The Indians and

Cavaliers—Cleveland’s respective professional baseball and

basketball teams—play their home games at the Gateway

Sports Complex (“theComplex”). Featuring Jacobs Field and

Gund Arena, the respective stadiums for each team, along

with a parking garage and a common area, the Complex hosts

tens of thousands of visitors on a regular basis. One group of

would-be visitors, Plaintiffs United Church of Christ and its

companions (collectively, “UCC”) appeal the denial of a

requested injunction that would allow them to gather and

demonstrate at the Complex. The district court held that:

(1) even if the privately owned Complex were treated as if it
No. 01-3434 United Church of Christ, et al. v.

Gateway Economic Dev. Corp.

3

were owned by the state, the areas in which UCC sought to

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

On April 14, 2000, the Cleveland Indians played their first

home game of the season. UCC planned to attend the game

to protest the team’s use of the nickname “Indians” and the

cartoon-character mascot “Chief Wahoo,” trademarks that

UCC considers to be racist and offensive to Native

Americans. Specifically, UCC planned to conduct its

demonstrations on the Gateway Sidewalk and the Gateway

Common areas (“Commons”).

The Complex is owned by a private entity, the Gateway

Economic Development Corporation of Greater Cleveland,

Inc. (“Gateway”), which excludes all persons from using the

Gateway Sidewalk or the Commons to solicit, advertise, or

protest (save for three exceptions unimportant to our

resolution of this case). On March 10, 2000, UCC filed suit

against Gateway in the United States District Court, Northern

District of Ohio, arguing that the First Amendment mandated

a preliminary and permanent injunction allowing UCC to

protest on both the Gateway Sidewalk and the Commons on

opening day. On April 13, 2000, the district court refused to

preliminarily enjoin Gateway’s restrictions, and on March 22,

2001, after UCC amended its complaint, the district court

denied UCC’s request for a permanent injunction. UCC

timely appealed.

II. ANALYSIS

The district court declined to decide whether Gateway was

a state actor, holding that even if it were, the Gateway

Sidewalk and the Commons constituted non-public fora

subject to reasonable access restrictions. We review the

4 United Church of Christ, et al. v.

Gateway Economic Dev. Corp.

No. 01-3434

district court’s legal 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 property at issue constituted a public forum. We

employ “forum analysis as a means of determining when the

government’s interest in limiting the use of its property to its

intended purpose outweighs the interest of those wishing to

use the property for other 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 nonpublic forum. Id.

UCC argues that the Gateway Sidewalk is a traditional public

forum, and that the Commons are designated public fora.

1. Sidewalk

The Gateway Sidewalk encircles the Complex, and looks

and feels like a typical public sidewalk. Because the Supreme

Court has explained that from “[t]ime out of mind public

streets and sidewalks have been used for public assembly and

debate, the hallmarks of a traditional public forum,” Frisby

v. Schultz, 487 U.S. 474, 480 (1988), UCC argues that the

Gateway Sidewalk is a traditional public forum, a place in

which the “right to limit protected expressive activity is

sharply circumscribed.” Chabad of S. Ohio v. City of

Cincinnati, 363 F.3d 427, 434 (6th Cir. 2004) (internal

quotations omitted). 

There are two key reasons why UCC is correct. 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
No. 01-3434 United Church of Christ, et al. v.

Gateway Economic Dev. Corp.

5

municipal streets. Further, the public and Gateway sidewalks

are made of the same materials and share the same design. In

United States v. Grace, 461 U.S. 171, 180 (1983), the

Supreme Court held that a sidewalk bordering the Supreme

Court constituted a public forum because “[t]here is no

separation, no 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 special type of enclave.” See also Venetian Casino

Resort v. Local Joint Executive Bd. of Las Vegas, 257 F.3d

937, 947 (9th Cir. 2001) (applying First Amendment to

privately owned sidewalk that “is connected to and virtually

indistinguishable from the public sidewalks to its north and

south”); Henderson v. Lujan, 964 F.2d 1179, 1182 (D.C. Cir.

1992) (“The two sidewalks here appear to be classic

instances. They are physically indistinguishable 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 containing trees, this fact does not alter our

conclusion. As the district court rationally determined, the

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

Gateway 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 games, “[t]he mere fact that a sidewalk

abuts property dedicated to purposes other than free speech is

not enough 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 office); Greer v. Spock, 424 U.S.

828 (1976) (sidewalks located in an enclosed military base

and separated from the streets and sidewalks of the city

itself); Chicago Acorn v. Metro. Pier and Exposition Auth.,

150 F.3d 695, 702 (7th Cir. 1998) (“Rather than being part of

the city’s automotive, pedestrian, or bicyclists’ transportation

grid, the sidewalks on the pier and the service street on its

north side are internal to the pier, like the sidewalks, streets,

and parking lots in Disney World[.]”). Whether a given

sidewalk is considered a public forum, 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.

2. Commons

Although UCC concedes that the Commons—an

assortment of plazas, grassy areas, and interior streets within

the Complex—are not traditional public fora, it argues that

they have been designated as public fora by Gateway. The

government (or in this case, Gateway, who we assume, for

purposes of this question, stands in the government’s shoes)

may designate “a place or channel of communication for use

by the public at large for assembly and speech, for use by

certain speakers, or for the discussion of certain subjects.”

Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S.

788, 802 (1985).

UCC’s argument turns on one fact: that although it

generally prohibits access to the Commons during gametime,

“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.

Gateway Economic Dev. Corp.

7

stadium bleachers.” This, along with the fact that fans on

their way to and from the games “routinely carry signs and

banners supportive of the Cleveland Indians across the

common areas and even into the stadium without interference

from Gateway personnel,” indicates 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 interested in the

actual game being played, and has done so for the specific

purpose of contributing to the gametime ambience.

First, the handful of non-ticketed Indians fans who are

allowed access to the Commons are so allowed because they

have an interest in the Indians’ performance on the field.

Second, although the Indians have sometimes allowed radio

stations to use the plaza area to broadcast high-profile games,

this again directly furthers fan enjoyment of the game itself.

UCC, in marked contrast, does not seek access to the

Commons for purpose of fan enjoyment. Rather, it wishes to

make a political statement that is merely incidental to the

game itself. That Gateway has allowed baseball fans access

to the Commons falls far short of suggesting that it has

allowed everyone access to the Commons.

Thus, we agree with the district court that the Commons are

not designated public fora. Moreover, UCC did not challenge

the district court’s conclusion that if they are nonpublic fora,

the restrictions on their use are reasonable. Accordingly, even

if Gateway were treated as a state actor for purposes of the

Commons, the restrictions on their usage would satisfy the

First Amendment.

B. State Action

Although UCC argues that a finding that the Gateway

Sidewalk is a public forum requires that we remand the case

to the district court “for findings regarding the state-actor

8 United Church of Christ, et al. v.

Gateway Economic Dev. Corp.

No. 01-3434

status of the Gateway Corporation,” 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

First Amendment. The following analysis explains why.

Before the district court, UCC advanced three independent

reasons why the First Amendment applied to Gateway. Two

of these arguments had little to do with the character of the

Complex itself; rather, they focused on the relationship

between Gateway and the City, and, if accepted, would lead

to the conclusion that for all practical purposes, the Complex

is publicly owned. First, relying on Lebron v. Nat’l R.R.

Passenger Corp., 513 U.S. 374, 400 (1995), in which the

Supreme Court held that Amtrak was an instrumentality of

the government, UCC argued that “because like Amtrak, its

history, mandate and leadership are so tied up with the

government—in this case the City and the County—that

[Gateway] should be deemed an agency or instrumentality of

local, and therefore state government.” Second, in a similar

vein, UCC argued that “the relationship between the Gateway

Corporation, the City and the County is so deeply symbiotic

as to make the Gateway Corporation a state actor.” Both of

these arguments turned on the amount of control exercised

over by the Complex by the state—a subject that has been

detailed in other cases, see N. Ohio Chapter of Associated

Builders & Contractors, Inc. v. Gateway Econ. Dev. Corp.,

1992 WL 119375 (N.D. Ohio May 12, 1992), but upon which

the record in our case is largely silent. Thus, we agree that a

determination of whether Gateway is a state actor under these

two tests would require a remand to the district court for

additional findings.

But the third justification that UCC advanced to apply the

First Amendment to Gateway was that “in managing access

to the sidewalks, malls and plazas of the Gateway Complex,

the Gateway Corporation is performing a function that is

traditionally the exclusive prerogative of the state.” This

inquiry—the so-called “public function test”—is not satisfied
No. 01-3434 United Church of Christ, et al. v.

Gateway Economic Dev. Corp.

9

when a private actor merely holds its property out to the

public. See Hudgens v. NLRB, 424 U.S. 507 (1976) (First

Amendment does not apply to privately-owned shopping

center); Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) (same).

Rather, we ask whether the “private entity exercise[s] powers

which are traditionally exclusively reserved to the state.”

Lansing v. City of Memphis, 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 requires that it be treated as a public institution

subject to the command of the Fourteenth Amendment,

regardless of who now has title under state law.”), and the

running of a company town that functions as if municipallycontrolled, see Marsh v. Alabama, 326 U.S. 501, 507 (1946)

(“Whether a corporation or a municipality owns or possesses

the town the public in either case has an identical interest in

the functioning of the community in such manner that the

channels of communication remain free.”).

The particular “public function” that UCC asserts in our

case is 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 that it sits in

the heart of the City, is connected and indistinguishable from

a publicly-owned sidewalk, and is open to the public as a

through route—the Gateway Sidewalk constitutes a public

forum, Gateway’s operation therein serves as a public

function. See Lee v. Katz, 276 F.3d 550, 555 (9th Cir. 2002)

(“The particular public function that the plaintiffs allege the

[defendant] performed was the regulation of free speech

within the Commons, a public forum. Previous courts have

found this function to be a traditional and exclusive public

function.”); Venetian Casino, 257 F.3d at 943 (9th Cir. 2001)

(stating that “[t]he issue before us is whether the sidewalk on

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

10 United Church of Christ, et al. v.

Gateway Economic Dev. Corp.

No. 01-3434

Amendment applied); Rouse v. City of Aurora, 901 F.Supp.

1533, 1535-36 (D. Colo. 1995), (evaluating plaintiffs’ claim

that the First Amendment applied to a privately owned

shopping center sidewalk, and observing that “[t]he linchpin

to this claim, and, indeed, to plaintiffs’ case theory underlying

all claims in this action, is their allegation that the Granada

Park Shopping Center is a public forum”); cf. Citizens to End

Animal Suffering&Exploitation v. Faneuil Hall Marketplace,

Inc., 745 F.Supp. 65, 70-72, 76 & n.30 (D. Mass 1990)

(treating public function and public forum inquiries as

technically distinct, but applying identical factors to both

decisions). 

Thus, for the purpose of this case, we need not decide

whether Gateway is a state actor under the other two theories

advanced by UCC: our decision in today’s case has no

bearing, for instance, on whether, Gateway’s employees

would receive First Amendment protection for their

workplace speech or whether Gateway would have to comply

with the Due Process Clause when firing a subcontractor.

Rather, our holding today means only that Gateway is a

public actor when performing the public function of

regulating the public’s access to the Gateway Sidewalk. 

C. Time, Place, and Manner Restriction

Because the Gateway Sidewalk is a public forum, Gateway

may saddle it only with content-neutral time, place, and

manner restrictions that are narrowly tailored to further a

significant governmental interest and reserve sufficient

alternative avenues of communication. See Chabad, 363 F.3d

at 434. In light of the highly fact-bound nature of the time,

place, and manner analysis and the limited briefing we have

received on the question, we remand to the district court 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. 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.