Street preachers may be off-limits at Memphis in May
Court reverses judge's ruling
By Tom Bailey Jr.
The Commercial Appeal
In a court battle over free speech between street preachers and Memphis in May, the festival has won Round Two.
As a result, thousands of people queuing up to enter the Beale Street Music Festival at Tom Lee Park next month may not be confronted by the banners and bellows of strident evangelists.
The music festival has drawn the attention of more and more street preachers from around the nation. About 100 converged here last year; as many as 200 are expected this year, when the event is scheduled for May 5-7.
But a federal appeals court has overturned U.S. Dist. Judge Jon McCalla's 1998 order that both the Memphis in May International Festival and the City of Memphis back off and allow the street preachers to proselytize in an area they covet for its dense pedestrian traffic.
The spot is outside the festival gates on Riverside Drive, where tens of thousands of people funnel into Tom Lee Park for the Beale Street Music Festival, World Championship Barbecue Cooking Contest and Sunset Symphony.
Memphis in May leases not only Tom Lee Park from the city, but also the area in question outside the main gate: 400 yards of Riverside Drive from Beale Street to Union Avenue and a section of Beale between Riverside and Wagner Place.
Street preacher Kenneth D. Lansing filed suit against Memphis in May and the city in 1997 after the festival, aided by police, ordered him to leave its leased areas on Riverside Drive in 1995, 1996 and 1997.
Festival officials said they asked Lansing to leave for two reasons: He was a safety hazard to the crowds, especially since he carried a large banner; and he clogged pedestrian traffic.
But Lansing and other street preachers were allowed back in front of the festival gates in 1998 and 1999 after McCalla ruled in Lansing's favor.
Memphis in May and the city unsuccessfully argued to the local federal court that because MIM is a private organization, it owes no one free-speech rights and can ban whomever it wants from the property it leases.
McCalla judged that MIM and the city are so heavily entwined that the festival was essentially taking government action when it banned the street preachers, thus violating their First Amendment rights to public expression.
The city accepted the verdict and paid Lansing's attorneys fees of $29,000. Memphis in May appealed.
In a Feb. 4 ruling, the Sixth U.S. Circuit Court of Appeals reversed McCalla's ruling.
"We hold that the district court erred in finding that Memphis in May was a state actor," Circuit Judge Martha Craig Daughtrey wrote in the opinion.
Also hearing the appeal was Chief Judge Boyce F. Martin Jr. and U.S. Dist. Judge Douglas W. Hillman of Michigan's Western District, who was designated to hear the case.
McCalla had cited a number of examples of how MIM was a "state actor" when it asked Lansing to move outside the barricades, the appeals court said.
McCalla noted the economic benefit the festival brings to the city. He also identified the city and state funding of the festival (less than 3 percent of total festival revenues).
He listed MIM's lease of city property and its payment of fees for vendor booths. And he noted city regulations on alcohol, advertising, traffic and security at the festival.
McCalla cited the presence of two public officials on the MIM board.
He noted communications between the city and MIM regarding Lansing. And he cited the police helping MIM move Lansing away from the gates.
But the appeals court stated, "Although a common sense perusal of this list might suggest that Memphis in May and the city cooperated in the presentation of Memphis in May events, mere cooperation simply does not rise to the level of merger required for a finding of state action."
Lansing is a Memphis CPA who also leads a street-preaching ministry called Banners Unfurled. He is an organizer of a national street-preachers' convention May 4-7 called Beale Street Blast 2000.
Despite the Sixth Circuit's decision, Lansing and his attorney, Nathan Kellum, said the ruling does not bar street preachers from the area.
The appeals court pointed out in its ruling that even though MIM leased the sections of streets for special use, the city retained ultimate control of the streets at all times.
Since the area continues to be under government control, Lansing's free-speech rights must be granted, Kellum said.
And, he noted, Memphis did not appeal McCalla's ruling that the city infringed on Lansing's free speech rights.
He said he wrote a letter last month seeking to clarify with the City Attorney's Office that police will permit Lansing to evangelize in the disputed spot. He had not received a response by Thursday, Kellum said. That response will determine whether they take further court action, such as an appeal of the Sixth Circuit's ruling.
City Atty. Robert Spence was unavailable for comment Friday. Attorneys Thomas J. Walsh Jr. and David J. Harris, who represent Memphis in May, were unaware of Kellum's letter to the city.
"The court, in effect, said we have the right to do it the way we've been doing it," Walsh said.
"That means sometimes asking politicians handing out campaign literature, unauthorized vendors and musicians, and street preachers to move a very short distance."
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