Chicago Acorn v. Metropolitan Pier and Exposition Authority

• Decision Date: 21 July 1998
• Docket Number: 98-1977,No. 880,Nos. 98-1939,880,s. 98-1939
• Citation: 150 F.3d 695
• Parties: CHICAGO ACORN, SEIU Local, and Ted Thomas, Plaintiffs-Appellees, Cross-Appellants, v. METROPOLITAN PIER AND EXPOSITION AUTHORITY, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 695

150 F.3d 695

CHICAGO ACORN, SEIU Local No. 880, and Ted Thomas Plaintiffs-Appellees, Cross-Appellants, v. METROPOLITAN PIER AND EXPOSITION AUTHORITY Defendant-Appellant, Cross-Appellee.

Nos. 98-1939, 98-1977.

United States Court of Appeals Seventh Circuit.

Argued June 5, 1998.

Decided July 21, 1998.

Paul Strauss (argued), Miner, Barnhill & Galland, Chicago, IL, for Plaintiffs-Appellees.

Michele Odorizzi (argued), Mayer, Brown & Platt, Renee Benjamin, Metropolitan Pier and Exposition Authority, Chicago, IL, for Metropolitan Pier & Exposition Authority.

Before POSNER, Chief Judge, and BAUER and KANNE, Circuit Judges.

POSNER, Chief Judge.

We have an appeal and a cross-appeal from an injunction that restricts the right of the Metropolitan Pier and Exposition Authority (MPEA)--the Illinois governmental unit that owns Navy Pier in Chicago--to limit the exercise of free speech by people who frequent the pier. The plaintiffs want to engage in a range of expressive activities there--leafletting, soliciting signatures on petitions, carrying signs and banners, wearing clothing festooned with symbols and slogans chanting, speechifying--all to the end of advocating an increase in the minimum wage. They wanted to do these things during the Democratic National Convention in 1996, when the MPEA rented the entire pier to the Democrats for $1 for a party, and they were turned away, and brought this suit.

Navy Pier, in downtown Chicago, juts out 3,000 feet into Lake Michigan and is more than 400 feet wide at its widest point. Formerly a naval facility, by the 1980s it was little used and in 1989 the Illinois legislature handed it over to the MPEA (at the time known as the Metropolitan Fair and Exposition Authority) and appropriated $200 million for the pier's renovation. The pier was to be transformed into a recreational and commercial center--part park, part meeting and exhibition facility, part shopping emporium, part amusement park. The reconstruction was completed in 1995.

The stylized map at the end of this opinion will give the reader a rough sense of the pier's current design. For our purposes, the design has four elements. The first consists of outdoor strolling areas, mainly sidewalks. The principal sidewalk--the pier's thoroughfare--is Dock Street (misnamed--it is not a street; except for parking, the pier is closed to vehicles other than service vehicles). It runs the length of the pier on its south side. It is broad, abuts the lake, and is more like a boardwalk than a conventional sidewalk. Tourist boats are moored on the lake side of the street, and the other side is lined with shops (the Arcade Shops) and restaurants. Dock Street ends, at the eastern end of the pier, in a plaza in which sculpture is sometimes exhibited. There is a sidewalk on the north side of the pier as well, between the lake and the service street, but it is narrow and little used. The district court treated what we are calling the first design element as a traditional public forum, which means (as we shall see) that the MPEA must open it up to the full range of First Amendment expressive activities, subject however to reasonable restrictions as to the time, place, and manner of expression.

The second design element is a tiny amusement park, consisting of a ferris wheel, carousel, reflecting pool, and small indoor park, called Crystal Gardens, which has fountains that squirt columns of water to each other, surmounted by a glass dome. The second element, too, the district judge deemed a traditional public forum. The third element, consisting mainly of the Family Pavilion at the western end of the pier and the Arcade Shops, which lead off from the Family Pavilion, is an indoor shopping mall. The district judge treated this as a nonpublic forum in which the plaintiffs have no right to engage in expressive activity. The fourth element, which includes the Grand Ballroom and Festival Hall, consists of large meeting rooms suitable for trade and other conventions (such as the trade association of candy manufacturers, which held its annual convention recently in Festival Hall), weddings and other parties (in the Grand Ballroom), and exhibitions (for example the annual Chicago Art Fair, which is also held in the Grand Ballroom). The fourth element the district judge held was a designated public forum, which she equated to a traditional public forum.

The sidewalk, park, and mall sections of the pier are open to the public without charge, except that they are closed from 2 a.m. to 6 a.m., the same hours that the parks owned by the Chicago Park District are closed. The MPEA's suggestion that only a facility that is open 24 hours a day can be classified as a public forum for First Amendment purposes does not merit discussion.

The injunction entered by the district court (and in this court challenged by both sides) gives the plaintiffs no rights in the indoor shopping mall but full First Amendment rights in the rest of the pier, though subject to reasonable time, place, and manner restrictions.

All the buildings on the pier, as well as the pier itself, are owned by the MPEA; and because the legislature has appropriated no operating funds for the pier, the MPEA must defray the cost of running the pier out of the lease rentals that it receives from the shops and other concessions and the fees that it receives for renting out the meeting rooms. Since Navy Pier is, thus, essentially a commercial enterprise, the MPEA is naturally highly sensitive to the spillover effects whether positive or negative, of each activity on the pier on every other activity on the pier. The positive effects are illustrated by the MPEA's sponsorship of fireworks displays for which there is no charge. The displays are a form of advertising; they publicize the pier and attract people who buy goods or services from the shops and restaurants on the pier. So while the displays generate no revenue directly, their cost is recouped in the greater sales that they generate for the MPEA's lessees. The act of largesse that set off this suit--the rental of the entire pier to the Democratic Party for $1--was motivated, we are assured by the MPEA, not by any fealty to the Democrats but by the enormous and on the whole favorable publicity that the event was expected to generate for the pier. When we asked the MPEA's lawyer at argument whether her client would rent the pier to the American Nazi Party for $1, we received an emphatic negative answer; there would be enormous publicity, but of the wrong kind. The MPEA refuses to waive fees for the plaintiffs, who like to hold a rally in the Grand Ballroom in support of their proposal for a higher minimum wage.

If the MPEA were a private entity, it would have a free hand in deciding whom to admit to its property and on what terms, provided that it did not violate certain antidiscrimination laws that are of no moment to this suit. The pier if privately owned would not fall within the "company town" exception of Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), to the rule that the First Amendment constrains only governmental action; it is not a town. Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972); compare Petersen v. Talisman Sugar Corp., 478 F.2d 73, 82 (5th Cir.1972). But it is publicly owned, and so its owner, the MPEA, is subject to the First Amendment and as a result its discretion is curtailed. Clearly, it is not permitted to pick and choose among the users of its facilities on political grounds: to waive fees for the Democratic Party because the mayor of Chicago is a Democrat and wanted to avoid in 1996 any repetition of the disastrous events that attended the 1968 Democratic National Convention, the last to be held in Chicago, but not to waive fees for Chicago Acorn and the other plaintiffs because the mayor opposes the increase in the minimum wage that they advocate. Arkansas Educational Television Comm'n v. Forbes, --- U.S. ----, ----, 118 S.Ct. 1633, 1640, 140 L.Ed.2d 875 (1998); Rosenberger v. Rector, 515 U.S. 819, 828-29, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); May v. Evansville-Vanderburgh School Corp., 787 F.2d 1105, 1113 (7th Cir.1986). The MPEA denies that its decisions are politically motivated, and the record contains no direct evidence that they are. There is favoritism for events associated with Chicago's mayor, who is a Democrat; but the MPEA contends that the motivation for this favoritism is purely economic; its policy is to waive fees for users who will generate large favorable publicity. A policy so motivated is likely, however, to favor the political establishment. As applied to political applicants for fee waivers, a favorable-publicity criterion is especially likely to have political consequences, since the only political users of the pier who will generate large amounts of favorable publicity are respectable, popular politicians and respected, well-established political groups; pariahs need not apply.

We doubt that the MPEA has to allow its meeting rooms to be used for political events at all, for we disagree with the district judge's ruling that these rooms constitute a public forum. Unlike public streets or the speakers' corner in London's Hyde Park, the exhibition, convention, and meeting facilities of Navy Pier are not traditional sites for public assembly, demonstrations, or debate. They thus are not what in the jargon of free-speech law are called "traditional public forums." United States v. Grace, 461 U.S. 171, 179-80, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983); Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Nor are they nontraditional such sites (that is, not public streets, public sidewalks, or public parks) which the government by throwing open to the public for a range of expressive purposes has dedicated as a public forum ("designated public forums," id.), though unlike...