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"Lansing vs. City of Memphis,
The Memphis Park Commission and Memphis in May International Festival, Inc.",


Also admitted in Texas
Also admitted in Mississippi
Also admitted in Florida

GERMANTOWN, TN 38183-2007

TELEPHONE: (901) 759.0075
FACSIMILE: (901) 752.3774

e-mail: mcnabbholley@earthlink.net

May 1, 1998
Kenneth D. Lansing
3060 Woodhills Drive Memphis, Tennessee 38128

RE: Lansing vs. City ofmemphis, The Memphis Park Commission and Memphis in May International Festival, Inc.

Our File No. 960495

Dear Ken:





No. 97-3153 MI/A


The complaint in this matter alleges that Defendants' actions violated Plaintiff's rights under the First and Fourteenth Amendments of the United States Constitution, as well as rights guaranteed by the Tennessee State Constitution. Plaintiff seeks a declaratory judgment to that effect, a preliminary and permanent injunction enjoining Defendants from prohibiting Plaintiff's expressive activities, compensatory damages, costs, and attorneys' fees.

On March 26, 1998,this matter was heard before the Court on a consolidated hearing on the merits, pursuant to Fed. R. Civ. P 65 (a). For the reasons set forth below, Defendants' motions for summary judgment are DENIED. The Court determines that Plaintiff is entitled to injunctive relief.

This document entered on docket sheet in compliance with rule 58 and/or 79 (a) FRCP ON 4-20-98


Plaintiff, Mr. Kenneth D. Lansing, brought this action challenging the constitutionality of the policies and actions by the City of Memphis, ("the City"), Memphis Park Commission and Memphis in May International Festival, Inc. ("MIM"). The Memphis Park Commission is a division of the City government, charged with the administration and operation of public parks in the City of Memphis. MIM is a Tennessee not-for-profit corporation. MIM’s mission is "to generate tourism and foster commercial international trade, as well as enhance the quality of life in the Memphis-Mid-South area, through the organization of public activities and programs focusing on foreign nations and diverse cultures." Parties’ Stipulation of Facts at ¶ 6 (hereinafter "Stipulations"). MIM promotes and sponsors a series of annual events in Memphis known as "Memphis in May".

These events include the Beale Street Music Festival, the World Championship Barbecue Cooking Contest, and the Sunset Symphony, all of which are events that require paid admission and take place in the area in and around Tom Lee Park, in downtown Memphis. Each year, Tom Lee Park is leased by MIM from the City of Memphis and the Memphis Park Commission for the purpose of


putting on the aforementioned events, l which usually draw large crowds of between 200,000 and 500,000 persons each year. Mr. Lansing describes himself as a "Bible believer" and a Christian. He believes that his faith requires him to proclaim God's message in public through oral and written proclamation. He engages in public preaching, addresses individuals, hands out literature, and carriers a banner. Mr. Lansing, in order to discharge his perceived duty, seeks out locations where he has access to significant numbers of passerbys. He stands on sidewalks or other public ways, sometimes moving through crowds, and peacefully communicates his message. He alleges that the defendants have prevented him from doing so at the Memphis in May festivities since 1995.

In 1995, 1996, and 1997,2 the City and Park Commission leased Tom Lee Park and some of the surrounding areas to MIM for Memphis in May events. They have done so again for the 1998 Memphis in May events. The leased area includes a portion of Beale Street, as well as "Riverside Drive, if closed to traffic".


1 Each of these three years, MIM has signed a lease from the City, and an "Agreement" with the Park Commission, which provides details as to the rights and obligations of the parties.

2 Although Mr. Lansing testified that he has been attending Memphis in May events since the 1980s, the complaint deals only with these three years.


Riverside Drive is a public street in the City of Memphis and is four nes wide at most points. In each of the years 1995, 1996, 1997, the City passed a resolution closing Riverside Drive from Union Street to Georgia Avenue, as well as Beale Street, from Riverside Drive to Wagner Place,3 for the month of May. The resolution indicated that the streets were closed at MIM's request, and stated that "the Festival creates a significant economic impact for the City, brings international recognition to the City of Memphis[,] and promotes tourism and economic development." 1997 Resolution, Exh. K to Stipulations.

During the events for which tickets are required, there are two entrance gates, both located on Riverside Drive ("the south and north gates"). Only patrons with tickets or authorization are permitted to enter through the north or south gate into the event. The area MIM leases from the city extends further north of the north gate, and further south of the south gate, and is marked by temporary orange and white barrels and sawhorses on Riverside Drive.

According to the maps submitted as Exhibit 4 at the hearing and attached to the Stipulations, the portion of Riverside Drive


3 The leased area of Beale Street includes the "street, sidewalks and public right of ways adjacent to and contiguous to the leased Beale Street Area." 1997 Lease, Exh. J to Stipulations.


from the north gate to the northern end of the leased space is more than three blocks long. It crosses Beale, Peabody, Gayoso and ends at Union. From the scaled map attached to the Parties'Stipulations, it appears that the length of this area is approximately 1200 feet, or 400 yards. The portion of Riverside Drive that extends from the south gate to the southern end of the leased area is more than 3500 feet long, or over six-tenths of a mile (0.6 miles). Therefore, there is a substantial amount of Riverside Drive within the leased area, but still outside of the entrance gates. Although vehicles are not permitted within this area, any pedestrian may enter into the leased area without a ticket. According to Defendants, this area is used to facilitate preparation and implementation of the festival events.

MIM's counsel described it as an area for ingress and egress of the crowds going and to and from events, and the place where lines of people form to enter the gates.

Mr. Lansing seeks to engage in his religious and speech activities within the leased area of Riverside Drive, but outside the north and south gates.4 He has not, nor does he intend to, purchase a ticket to the events. On various occasions, before being asked to leave, he stood approximately 30 to 50 feet from


4 Sometimes, Plaintiff has had other people with him engaging in similar activities. He testified, however, that he is often alone.


the north gate, and 60 to 75 feet from the south gate. He wants to stand in these specific areas because nearly all of the people going to or leaving from Memphis in May events must pass by one of these two points. In 1995, 1996, and 1997, MIM officials asked Mr. Lansing to move from Riverside Drive to the intersection of Beale Street and Wagner Place; essentially, he was asked to leave the leased area. When asked to move by MIM officials, he responded that he would only move if law enforcement officers asked him to move under threat of arrest. When officers asked him to move, he did so.5 Plaintiff asserts, and Defendants concede, that the location of Beale and Wagner will not allow Plaintiff access to as many people as he would have access to if he stood outside either of the entrance gates on Riverside Drive.6

After seeking assurances from the City in 1997 that he could stand on Riverside Drive, and eventually being told that he could not,7 Plaintiff filed this action, claiming that Defendants'


5 In 1996, Mr. Lansing was asked to leave by a Deputy Sheriff from Shelby County. In 1997, Mr. Lansing was asked to leave by Memphis City police officers. The City of Memphis, though its police department, provides security and traffic control for the "Memphis in May" activities during the times of these events.

6 There is considerable pedestrian traffic that parks to the north of Tom Lee Park and walks south on Riverside Drive to the north gate that never passes by the intersection of Beale and Wagner.

7 On May 2, 1997, the City's attorney sent Plaintiff's counsel a letter, indicating the City's position that Mr. Lansing may engage in his expressive activities, "within the confines of the law", outside of the leased area only.


actions constitute a violation of his rights under the United States and Tennessee constitutions. Defendants argue that Mr. Lansing may be prohibited from engaging in his speech activities within the leased area.


A. Timeliness of Plaintiff's Claims

As an initial matter, the Court must determine the timeliness of Plaintiff's claims. Defendants are correct in their assertion that Plaintiff's claims based on events occurring in 1995 and 1996 are barred by the one-year statute of limitations applicable here. See Jackson v. Richards Med. Co., 961 F.2d 575,578 (6th Cir. 1992) (federal courts in Tennessee should apply the most analogous Tennessee statute for a civil right complaint). The complaint in this matter was filed on December 17, 1997. All claims arising in May of 1995 and May of 1996, therefore, are time-barred. The allegations arising from in May of 1997, as well as the injunctive relief sought by Plaintiff, are properly before the Court.

B. State Action Requirement

Absent state action, there can be no claim for a violation of constitutional rights under 42 U.S.C. § 1983. A private entity acting on its own cannot deprive a citizen of his First Amendment rights. Central Hardware Co. v. NLRB, 407 U.S. 539, 547 (1972); Ghandi v. Police Dep't of Detroit, 823 F.2d 959, 963 (6th Cir. 1987), Accordingly, the Court must also determine whether there is sufficient state action in this case to hold each Defendant liable.

MIM argues that it is a private party and that its actions are not attributable to the state. The City, similarly, argues

that, because it leased its property to MIM, and because MIM could ban who it wished, the City is not a proper Defendant.

1. The City and Park Commission

The City and the Park Commission's argument is unpersuasive and unsupported by authority. Through its police officers, its participation in the decision-making process, and its agreements the Memphis Park Commission and the City of Memphis can be held liable for the actions designed to curtail Mr. Lansing's speech.8 The active involvement by law enforcement officials in this case may constitute state action, and may render the City liable.9


8 The actions of the Memphis Park Commission, as an organization operating under the structure of the City of Memphis, are imputed to the City of Memphis.

9 The Court acknowledges that the officers who work Memphis in May events are reserve (i.e., unpaid) officers. Stipulations at ¶ 26. Nonetheless, the officers were instructed by the City regarding where and when Mr. Lansing could engage in expressive activities and remain under the


See United States v. Coleman, 628 F.2d 961,964 (6th Cir. 1980) (in self-help repossession, police intervention and aid would constitute state action); Menchaca v.Chrvsler Credit Corp., 613 F.2d 507, 512 (5th Cir. 1980) (same). More importantly, the City determined in advance that Mr. Lansing could engage in protected activities only outside the leased space and asked the police to enforce that policy. Apparently they worked with MIM in making this decision. See Exhibits R, U, and V to Parties' Stipulations (letters from City's attorney to MIM attorney, to Mr. Lansing's attorney, and to Director of Police, Walter Winfrey, discussing the City's position regarding Mr. Lansing's speech). Thus, the City itself has participated in determining that MIM can ban Mr. Lansing from engaging in his expressive activities within the leased areas.

The City's primary argument at the consolidated hearing was that they had leased the space to a private entity and should thus be released from all liability. As described above, however, Defendants Memphis Park Commission and the City of Memphis, both through their decision-making and their police officers, have actively participated in barring Mr. Lansing's speech. Hence, there is action and involvement on the part of the City and the Park Commission.


supervision of the Director of Police and the City. Moreover, the Court's decision does not rest on this ground alone.


2. Memphis in May

While it is generally true that a private entity may not be held liable for a violation of an individual's rights under First and Fourteenth Amendments, even a private entity may be a state actor for some purposes. The Sixth Circuit acknowledges three tests for determining whether a private entity, such as MIM, is a state actor: (1) the public function test; (2) the state compulsion test; and (3) the nexus test.1O Ellis v.Garbarino, 48 F.3d 192, 195 (6th Cir. 1995).

Of these three, the Court determines that the nexus test is the most applicable here.ll The connection between MIM and the _________________________________

10 The nexus test is sometimes referred to as the symbiotic relationship test. See Adams v. Vandemark, 855 F.2d 312, 314(6th Cir. 1988)

11 While Plaintiff does not argue that MIM's actions satisfy the requirements of the state compulsion test, he does contend that the public function test is satisfied here. The public function test requires that the private entity exercise powers exclusively reserved to the State. Ellis, 48 F.3d at 195. Plaintiff argues that MIM accomplishes this here, by maintaining a public street, Riverside Drive. In Citizens to End Animal Sufferinq and Exoloitation v. Faneuil Hall, 745 F. Supp. 65 (D. Mass. 1990), the district court addressed the situation of a private entity that deterred demonstrators from gathering in open lanes of Faneuil Hall, a public marketplace leased to the entity by the City. The Court held that by prohibiting protestors from assembling in the lanes, the marketplace is deciding who can use a public road, under what circumstances. Rather than acting as a private contractor, therefore, the function performed by the marketplace is more akin to that of policeman, and constitutes a function that has traditionally been the exclusive domain of the state. Id. at 71-72. Accordingly, the Faneuil Hall court found state action under the public function test.

There is a distinction between Faneuil Hall and the present case, however. In Faneuil Hall, the city retained a public easement for the street running through the marketplace. By contrast, the lease of Riverside Drive to MIM is an exclusive use permit and does not explicitly reserve a public easement. The Court need not decide whether this distinction is dispositive, however, because the nexus test for state action is satisfied in the instant case.


City is sufficiently close to attribute the actions of MIM to that of the state under the nexus test. Under this test, "the action of a private party constitutes state action when there is a sufficiently close nexus between the state and challenged action of the private party so that the action of the latter may be fairly treated as that of the state itself." Hollev v. Deal, 948 F. Supp. 711, 715 (M.D. Tenn. 1996) (citation omitted).

Whether there is a sufficient nexus is a factual determination. As the Sixth Circuit has recognized, neither public funding, nor the fact that a private company leases space from a city, is sufficient, without more, to find the requisite nexus. Crowder v. Conlan, 740 F.2d 447, 450-51, 453 (6th Cir. 1984). Likewise, extensive regulation of a private entity, standing alone, is not sufficient. Id. at 453. That is, it is not enough that there is generally a symbiotic relationship between a private entity and the state. Rather, the nexus must be between the state and the challenged action itself.

In this case, there is a strong symbiotic relationship between MIM and the City. In addition to the general benefits that MIM bestows on the City, as evidenced by the City's


resolutions closing Riverside Drive,12 MIM also receives funding from both the city and the State of Tennessee. MIM leases space from the City, and the City closes a large portion of a four-lane road each year at MIM's request. The City, through the Park Commission, dictates the timing and consumption of alcoholic beverages on the property, and the admission fees charged. Also, MIM is required to coordinate security and traffic control through the Memphis Police Department. No commercial speech in the form of advertising is permitted without prior consent of the Memphis Park Commission.

Importantly, the Agreement provides that the Park Commission receives fees for each vendor's booths, as well as a percentage of gross sales on beer. See Burton v. Wilminaton Parking Auth., 365 U.S. 715, 724 (1961) (restaurant's refusal to serve an African-American man was state action where restaurant was located in a municipally-owned parking garage, and the city profited from the success of the restaurant). Also, two of the nine members of MIM's Executive Committee are selected by City and county government representatives.

In addition to the ties enumerated above, the Court finds ______________________________

12 The City's resolution notes that MIM creates "a significant economic impact for the City."


that there is a sufficient nexus between the City and the restriction on Mr. Lansing's speech. As described above,13 the City has played a large role in determining where and when Mr.Lansing may speak, as well as providing police officers and instructing them to enforce that determination. Because of this, the Court finds that there is state action by MIM.

The district court in Faneuil Hall found state action with fewer connection between the private entity and the city. In Faneuil Hall, a sufficient nexus was found upon the private entity leasing the property from the city, the property leased being dedicated for public purposes, and the city deriving an economic benefit from the policies of the private entities. 745 F. Supp. at 73-74. These factors are certainly present here, in addition to all of the other indicia listed above. The relationship here is sufficiently close to label MIM a state actor.

Accordingly, the Court concludes that the state action requirement is satisfied here by each Defendant.

c. Restriction on Mr. Lansing's Speech

Having determined that there is state action on the part of ________________

13 See infra at 8-9.


each Defendant, the Court must next determine whether the restrictions on Mr. Lansing's speech are a violation of his constitutional rights. 14

As set forth in the Court's findings, the restrictions imposed by Defendants prohibit Mr. Lansing from engaging in speech activity on Riverside Drive during the month of May. He has been, and will be, required to move to the corner of Beale and Wagner, about one hundred (100) yards from where he wants to be. He has not been, and presumably will not be, precluded from engaging in his speech activities from anywhere outside the leased area.

In determining the propriety of this restriction, this Court must judge (1) whether the speech deserves protection, (2) the nature of the forum, and (3) whether the proffered justification satisfies the appropriate standard. Bishop v. Reaaan-Bush '84 Comm., 819 F.2d 289, 1987 WL 35970 (6th Cir. 1987) (unpublished) (requiring this analysis where plaintiff was prohibited from attending political rally).


14 Plaintiff has asserted causes of action under both the United States and the Tennessee constitutions. Although the Tennessee provision, Article I, Section 19, is "substantially stronger" than its federal counterpart, Press, Inc. v. Verran, 569 S.W.2d 435, 442 (Tenn. 1978), Tennessee courts rarely address the state standards and consistently discuss federal constitutional standards. See, e.g., State v. Smoky Mt. Secrets, 937 S.W.2d 905, 910 n.4 (Tenn. 1996). Accordingly, the Court's analysis under the federal constitution is applicable under the Tennessee constitution, as well.


1. Type of Speech

There can be no question here that Mr. Lansing's speech falls into a category of speech fully protected by the First Amendment. Religious speech is entitled to the same protection as any other kind of speech. Capital Square Review and Advisory v. Pinette, 515 U.S. 753, 760 (1995); Widmar v. Vincent, 454 U.S. 263, 269 {1981) (religious worship and discussion, such as street evangelism, is a form of speech protected by the First Amendment). Oral and written dissemination of religious views is entitled to the utmost constitutional protection, Heffron v. International Soc'v for Krishna Consciousness, 452 U.S. 640, 647 (1981), as is the display of signs and placards. 485 U.S. 312, 318 (1988); Carey v. Brown, 447 U.S. Boos v. Barry, 455, 466-67 (1980).Likewise, the distribution of free religious literature is a type of communication well within First Amendment protection. Heffron, 452 U.S. at 647.

Moreover, the protection does not fade away merely because the speech is despised or controversial. See e.g., United States v. Eichman, 496 U.S. 310 (1990) (flag burning). As the United States Supreme Court explained:

[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they


are, or even disturbs people with anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech is protected against censorship or punishment. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.

Cox v. Louisiana, 379 U.S. 536,551 (1965) (editing marks and citation omitted).

There are different levels of protection for speech, however. Having determined that Plaintiff’s speech is worthy of protection, the Court must next determine what level of protection it should be afforded. In large part, this will turn on the forum where the speech is being regulated. Frisby v. Schultz, 487 U.S. 474, 479 (1988).
0.1. Nature of Forum

There are three types of fora: public, limited public, 15 and private. Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 802 (1985); Perry v. Educ. Ass’n v. Perry Local Educators’ Ass’n, 406 U.S. 37,45 (1983). Speech in traditional public fora, such as public streets and sidewalks, is entitled to

15 A limited public forum is a place the state opens for some period of time for either limited or unlimited use by the public for expressive activity. Perry, 460 U.S. at 45-46. In terms of levels of protection,a limited public forum is subject to the same standards as a public forum for the time that it is so designated.


greater protection than speech in a private forum. See e.g., Boos, 485 U.S. at 318 (public way within five hundred feet of foreign embassy); United States v. Grace, 461 U.S. 171,179 (sidewalk in front of Supreme Court) (1983). The capacity to limit expressive activity in public fora is severely restricted. Boos, 485 U.S. at 318.

Defendants argue that, although Riverside Drive is normally a public forum, because it is closed to traffic and part of the space leased to MIM, it should not be considered a public forum in this case. A traditional public forum, however, is not transformed into private property by government contract. The government "may not by its own ipse dixit destroy the ‘public forum’ status of streets and parks which have historically been public forums. . . ." United States Postal Serv. V. Council of Greenburgh Civic Ass’ns,453 U.S. 114, 133 (1981). See Irish Subcomm. V. Rhode Island Heritage Comm’n, 646 F. Supp. 347, 353 n.3 (D.R.I. 1986)("[t]o allow the government to limit traditional public forum property and thereby create within it a nonpublic forum would destroy the entire concept of a public forum"); see also Hague v. CIO,307 U.S. 496, 515 (1939) (Robert, J., concurring) ("Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of


assembly, communicating thoughts between citizens, and discussing public questions.")(emphasis added); see Bishop, 1987 WL 35970 at ¶ 3 & n.3 (6th Cir. 1987)(recognizing that it may not be possible to convert a public forum into a private one, simply by conferring exclusive use on a private party). But see Committee for Creative Non-Violence v. Hodel, 623 F. Supp. 528 (D.D.C. 1985)(Christmas Pageant of Peace, held on Washington D.C.’s Ellipse, was non-public forum because it was not opened to all expressive activity).

A Supreme Court decision that is instructive on this issue is United States v. Grace, 461 U.S. 171 (1983). In Grace, the Supreme Court held unconstitutional a ban on speech activities on public ways adjoining the Supreme Court building. Grace, 461 U.S. at 179. In reaching this conclusion, the Court acknowledged that government cannot convert a traditionally public forum, a sidewalk, into private property from which speech could be precluded. Id. At 180 (government may not "transform the character of the property by the expedient of including it within the statutory definition of what might considered a non-public forum parcel of property"). See Mahoney v. Babbitt, 105 F. 3d 1452 (D.C. Cir. 1997) (national park service prohibited from changing public forum status of sidewalk by behaving as private actor).


The determination of the nature of the forum in this case is a difficult one. Plaintiff wishes to speak on a public street and its sidewalks- the quintessential public forum. Moreover, this portion of Riverside Drive is open to all pedestrian traffic. People do not need a ticket to enter this space, and Defendants concede that if a person were simply standing there, or sitting with a group of friends, they would not be asked to leave. However it is a leased area and the area is distinguished from the areas around it by barrels or other temporary indicators. In Grace, the Supreme Court noted that the sidewalks where speech was being restricted were not differentiated at all from other nearby sidewalks. 461 U.S. at 179.

Although the case of Hampton Int’l Communications, Inc. v. Las Vegas Convention & Visitors Auth., 913 F. Supp. 1402 (D. Nev. 1986) was not cited by the parties, the Court finds it helpful. In Hampton, the district court held that the ingress-egress walkways into a municipal convention center were not a public forum, despite the fact that members of the public could freely walk upon them. Id. at 1410, citing Greer v. Spock, 424 U.S. 828, 836 (1976). The Hampton court made this determination, however, based on the underlying purposes of the walkways:

The ingress and egress walkways at issue here have the appearance and clear purpose to assist Convention Center


patrons in traveling between the privately-leased Convention Center and public areas. They do not constitute a public thoroughfare. They were created solely to manage the heavy pedestrian traffic which generally accompanies large privately-organized events for which the Convention Center was built.

913. F. Supp. At 1410.

Applying this same analysis to Riverside Drive, one of the underlying purposes of the street at any time other than May is to serve as a public forum.16 Indeed, Defendants do not dispute this. The question then becomes whether the leasing of the street to MIM, and its use by MIM as an ingress-egress passage, converts the "public forum" into a private forum. While this is a difficult question to answer, the Court finds that under the specific facts of this case, the area where Plaintiff wishes to engage in expressive activities is a public forum.

In so deciding, the court relies primarily on the facts that Riverside Drive is a traditional public forum, and that the area is accessible to the public generally, as pedestrian traffic may come and go as it pleases. See also Eagon v. City of Elk City, 72 F.3d 1480, 1486-87 (10th Cir. 1996) public park, in which annual holiday event was held and which is unavailable to any


16 The Hampton case is also distinguishable in that it involved commercial speech, which can be more easily regulated without offending the First Amendment than the speech at issue here. Nonetheless, this fact did not affect the analysis of the nature of the forum.


groups for other purposes during event was public forum, despite fact that the event was organized and operated by private non-profit groups); International Soc’y for Krishna Consciousness v. Schrader, 461 F. Supp. 714, 718 (N.D. Tex. 1978) ("Any suggestion that a tenant enjoys unfettered rights to exclude because its activity is wholly private ignores the dual role of the City as sovereign and as landlord in enforcing that censorship; it equally ignores the reality that public forum is not a concept controlled by the common law or real property, running with the land or reverting to and among tenancies."); City of Jamestown v. Beneda, 477 N.W.2d 830,838 (N.D. 1991) (public walkways within city-owned shopping mall is public forum, even though City assigned its interest in mall to private developer, who then leased space).
0.2. Constitutionality of Restriction

Within a traditional public forum, the prohibition of all communicative activity is simply unconstitutional. Perry, 460 U.S. at 45. Likewise, restrictions based on content are an impermissible violation of First Amendment freedoms, unless the restriction is necessary to serve a compelling interest and narrowly drawn to achieve that objective. Perry, 460 U.S. at 45; Gooding v. Wilson, 405 U.S.518, 520-21 (1972).


A government may, though, enforce reasonable "time, place, and manner" restrictions, even in a public forum. Perry, 460 U.S. at 45. Time, place, and manner restrictions will be upheld as valid only if those restrictions are: (1) content-neutral; (2) narrowly tailored to serve a significant governmental interest; and (3) leave open ample alternative channels of communication. Id.

Whether the regulation of speech in this case is content-neutral is not clear. Defendants have, however, presented evidence that other individuals, such as street musicians, unauthorized vendors, and politicians passing out campaign literature, have all been asked to leave the same area that Plaintiff was asked to leave. The Court does not resolve this issue, though, because even under the lower standard for content-neutral regulations, Defendants’ restriction on Plaintiff’s speech is unconstitutional.

As noted above, in order for a content-neutral restriction on speech to pass constitutional muster, it must be narrowly tailored to serve a significant governmental interest and leave open ample alternative channels of communication. Perry, 460 U.S. at 45. Defendants’ restriction cannot meet either of these criteria.


Defendants proffered justification for asking Mr. Lansing to move was that they were concerned he might present either a safety problem, largely due to his banner, or that he might block pedestrian traffic. The affidavit of Ruth Hendrix, the bookkeeper for MIM, indicates that Plaintiff "was carrying a large top heavy sign inside the Leased Area." She states that she considered his presence, with the sign, to be a disruption to the flow of traffic and a threat to public health safety and convenience.

Assuming that these concerns constitute significant governmental interests, the Court remains skeptical that these concerns are the true basis for MIM asking Mr. Lansing to leave, precisely because the restriction (requiring him to leave the leased area) is not narrowly tailored to these concerns.

In order to regulate speech constitutionally, a restriction must be narrowly drawn so as not to infringe on protected speech. Grayned v. City of Rockford, 408 U.S. 104, 116-117 (1972). "Only by requiring these narrowly drawn and precise enactments that aim at specific conduct can courts produce a reasonable reconciliation of the minority’s right to protest, and the majority’s right to peace and order." Davis v.Francois,395


F.2d 730, 736(5th Cir. 1968).

A restriction is "narrowly tailored," if it targets only the precise evil it seeks to remedy. Frisby, 487 U.S. at 485. See e.g.,Grace, 461 U.S. at 180-84 (statute barring banners and displays from public sidewalk in front of Supreme Court was not narrowly tailored to serve significant governmental interest of maintaining proper order and decorum of Supreme Court building grounds); United Food and Commercial Workers Int’l Union v. IBP, Inc., 857 F.2d 422, 430-32 (8th Cir. 1988) (statute which set out numbers or distance restrictions on picketing was not narrowly tailored to serve significant government interest of regulating violence).

An analogous restriction to the ban enforced by the Defendants in this case was found not to be narrowly tailored in Citizens to End Animal Suffering and Exploitation v. Faneuil Hall Marketplace, 745 F. Supp. 65 (D. Mass. 1990). In Faneuil Hall, demonstrators were precluded from and arrested for handing out leaflets in between buildings of a marketplace that was leased and maintained by an private party. 745 F. Supp. At 67-68. The proffered content-neutral intent concerned the obstruction of passageways by patrons of the marketplace. Id. at 75. The district court, in finding this justification lacking, held that


the restriction of the speech was not narrowly tailored to the supposed objective.

There is no suggestion that defendant attempted to reduce the bulk of the demonstration by, for example, requesting that the group break up into smaller segments and spread out through other parts of the area in order to remove obstructions to the patrons’ access. Nor did defendant suggest that Plaintiffs could resume their demonstration during a less-crowded period. Instead, defendant simply gave Plaintiff a choice of either leaving, or being arrested.


Likewise, Mr. Lansing was not asked to take down his banner, nor was he asked to stay out of the way when a crowd formed.

Instead, he was simply asked to leave the leased area. This restriction does not target only the precise evil it seeks to remedy. Frisby, 487 U.S. at 485.

The fact that the restriction was not narrowly tailored is troubling because it indicates that the "interests" propounded by MIM may have been pretextual. For example ,the evidence regarding the sign did not indicate that it posed a danger; it was not particularly heavy, and certainly not so large that an individual could not control it.17 Mr. Lansing testified that no MIM official ever asked or told him he could stay without his


17 The sign was four feet by six feet; it is a window shade attached to a light aluminum rod.


sign. Nor was he ever told that there was a concern over his sign. These facts support the factual finding that the real motivation for asking him to leave was not a concern regarding his sign injuring someone, but simply that MIM officials did not want him speaking there at all, with or without a sign.

Likewise, the concern that his presence with the sign might cause a bottleneck in the pedestrian traffic seems exaggerated. While true that a large number of people pass through the area where Plaintiff wishes to stand and speak,they do not all pass through at the same time. 18 It is difficult to see how one man, or even two or three, preaching in this rather large area and handing out literature, could block pedestrian traffic on a long stretch of a four-lane road. Moreover, Plaintiff testified that there were bicyclists and rollerbladers allowed in the area, and that there were people milling about, sitting on the curb, or simply standing in small groups. Defendants did not produce evidence that any of the bicyclists or other people simply standing or congregating in small groups were asked to leave. It is unlikely that Mr. Lansing, more than any of these other individuals, would cause a bottleneck. Again, the Court


18 Defendant Memphis in May’s counsel argued that there are a vast number of people who come to Memphis in May events, and that long lines can form. However, as the Court noted during the hearing, not all of these people enter the park at once. Even at peak times, the Court finds it unlikely that Mr. Lansing posed a threat either to security or to traffic flow.


emphasizes that, while preventing bottlenecking could be a significant government interest, it appears to the Court not to be the actual concern of MIM officials in this case. In addition, no MIM official asked him to simply move out of the way of traffic or to stand to the side; they asked him to leave.

From the evidence presented to the Court, the Court is unpersuaded that Mr. Lansing presented either a threat to safety or that he blocked traffic flow. More importantly, Defendants’ restriction is not narrowly tailored to those governmental interests.

Morever, the prohibition here fails to leave open ample means of alternative channels of communication. Perry, 460 U.S. at 45. Mr. Lansing wishes to engage in a number of speech activities, ranging from holding up banners, leafleting, public proclamation of his message, preaching, Bible reading, counseling with individuals, and public prayer. Defendants prohibit all of these activities within their leased area during the month of May and the alternative they suggest will not provide Plaintiff with access to the same number of people.

Defendants assert that they do not actually require Mr. Lansing to stop his religious speech activities and insist that


Mr. Lansing is free to engage in his desired activities as long as he conducts those activities somewhere else or at some other time. MIM argues that, at any other time of the year, Mr. Lansing could engage in expressive activites on Riverside Drive. Adopting a similar position, Defendant City of Memphis advised Mr. Lansing that he has many available alternatives for communicating his message, as long as it does not include Riverside Drive during the month of May. This argument is unpersuasive. A viable alternative for Mr. Lansing’s message is not to say it in another area at another time. See Mahoney v. Babbitt, 105 F.3d 1452, 1459 (D.C. Cir. 1997) (government could not choose what public forum speaker could use, noting "it cannot rightly be said that all such forums are equal"). Mr. Lansing has strategically sought to speak on Riverside Drive because of the opportunity of communicating his message to the maximum number of individuals available at that time and place. Mr. Lansing is not afforded another opportunity to speak to the same people at any other location other than the desired location at the desired time.

Defendants also rely on a number of cases which involve the doctrine of compulsion of participatory speech. For example, in the Supreme Court case of Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995), the issue was whether the government, through a public accommodations law,


could require a private entity to include a message in its parade that they did not wish to convey. The Court held that the law could not. The Hurley Court determined that the parade was a form of expression deserving of First Amendment protection and that the participation of a group the parade organizers did not want to march in the parade would dilute and contradict the desired message of the council. The Court held the public accommodations law unconstitutional as it applied to the compulsion of parade organizers to accept the participation of undesired speech. Id. at 572-73.

Likewise, in Sistrunk v. City of Stongsville, 99 F 3d. 194 (6th Cir. 1996),the Sixth Circuit relied heavily on Hurley to find that an individual who wished to wear a political button expressing support for Bill Clinton at a political rally designed to campaign for then President Bush, could be prohibited from entering the rally wearing the button. Id. at 199-200.

As a critical finding in both Hurley and Sistrunk, the plaintiffs’ speech was found to interfere or be contrary to the organizer’s message. In Hurley, the Supreme Court emphasized that a parade constituted a form of speech. Hurley, 515 U.S. at 568-69. In Sistrunk, a public rally was likened to a parade and found to be a form of speech. The appellate court noted: "The


Committee here did not seek merely to assemble and ‘stand around,’ anymore than the parade organizers sought merely to reach a particular destination." Sistrunk, 99 F3d at 199

The Court agrees with Plaintiff that both of these cases are distinguishable, because both deal with the issue of participatory speech. Unlike a political rally or parade, the Memphis in May events involve minimal expression and no particular message. The whole idea behind a parade or a political rally is to convey a certain message to the public. This concern does not arise from a barbeque contest. Indeed, Defendant Memphis in May’s counsel admitted that there is no "message" that Memphis in May is trying to promote. If there is no message to be conveyed by the private entity, then there can be no contrary message. Even if Memphis in May did have a "message", however, there is no claim that Mr. Lansing has sought to speak on matters contrary to the beliefs of organizers of the barbeque contest. Neither does his speech interfere with the Music Festival or Sunset Symphony.

Sistrunk recognized that a person not seeking to participate, but merely to protest or spread a message nearby, could do so. 99 F.3d at 199 (a person who wanted to merely stand on the edge of the parade as it went by, and hold up protest


signs or shout protests, would be entitled to do so and plaintiff could have stood with her buttons on the sidewalk leading up to the rally); see Mahoney v. Babbitt, 105 F 3d 1452, 1456 (D.C. Cir. 1997) (holding that Hurley did not apply in the case of individuals wishing to display banners and signs critical of the President’s policies on a sidewalk along the route of an inaugural parade, because the plaintiffs only sought to stand on the sidewalk,and not participate in the parade); see also Invisible Empire of the Knights of the Klu Klux Klan v. Town of Thurmont, 700 F. Supp.281,190 (D. Md. 1988) (in ruling that NAACP could not participate in parade, court held: "The NAACP is certainly permitted to shout on the adjoining sidewalks"). Mr.Lansing only seeks to do that allowed in Hurley and Sistrunk, and upheld as a constitutional right in Mahoney: to convey his message on the outskirts of the events.
0.1. Propriety of Injunctive Relief 19

Where the plaintiff establishes a constitutional violation after a trial on the merits, the plaintiff is entitled to permanent injunctive relief upon showing: 1) a continuing irreparable injury if the court fails to issue the injunction; and 2) the lack of an adequate remedy at law. Dayton Christian


19 Although Plaintiff has also requested damages in his Complaint, he did not present any proof as to damages. Accordingly, the Court does not address what damages, if any, are proper.


Schs., Inc. vs. Ohio Civil Rights Comm’n,766 F.2d 932, 961 (6th Cir. 1985) (quoting Newman v. Alabama, 683 F.2d 1312,1319 (11th Cir. 1982). The decision to grant or deny a preliminary or permanent injunction is with the sound discretion of the district court. See Wayne v. Village of Sebring, 36 F.3d 517, 531 (6th Cir. 1994).

Defendants have stated their intention to continue prohibiting Mr. Lansing from speaking within the leased area. Due to the reasons discussed above, this is a clear violation of Plaintiff’s constitutional rights, and, absent an injunction, he will suffer irreparable injury. Furthermore, it is clear that no remedy at law could adequately compensate Plaintiff for this restriction on his constitutional rights. Accordingly, the Court hereby permanently ENJOINS Defendants from prohibiting Mr. Lansing’s expressive activities within the leased areas of Riverside Drive outside the north and south gates.

IT IS SO ORDERED this 17th day of April, 1998.

Jon P. McCalla
United States District Judge