284 F.3d 9 (1st Cir. 2002), 00-2398, New England Council of Carpenter v. Kinton Jr.

Docket Nº:00-2398 & 01-1977
Citation:284 F.3d 9
Party Name:NEW ENGLAND REGIONAL COUNCIL OF CARPENTERS, Plaintiff, Appellant, v. THOMAS J. KINTON, JR. ET AL., Defendants, Appellees.
Case Date:March 19, 2002
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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284 F.3d 9 (1st Cir. 2002)

NEW ENGLAND REGIONAL COUNCIL OF CARPENTERS, Plaintiff, Appellant,

v.

THOMAS J. KINTON, JR. ET AL., Defendants, Appellees.

Nos. 00-2398 & 01-1977

United States Court of Appeals, First Circuit

March 19, 2002

Amended May 10, 2002

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Christopher N. Souris, with whom Krakow, Souris & Birmingham, LLC was on brief, for appellant.

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Steven W. Kasten, with whom Cynthia L. Westervelt, McDermott, Will & Emery, David S. Mackey, Chief Legal Counsel (Massport), and Michael P. Sady, Senior Legal Counsel (Massport), were on brief, for appellees.

Before Boudin, Chief Judge, Torruella and Selya, Circuit Judges.

SELYA, Circuit Judge.

These appeals require us to decide two important First Amendment questions. The first relates to whether a state agency constitutionally may ban all leafletting on a multi-purpose pier that it controls. The second relates to whether such an agency may require a person seeking to distribute handbills on public sidewalks to apply in advance for a permit.

These and other questions arise out of attempts by the New England Regional Council of Carpenters (NERCC), a labor organization, to leaflet in locations owned by the Massachusetts Port Authority (Massport), an instrumentality of the Commonwealth of Massachusetts. In one instance, NERCC applied for a permit to leaflet in front of the Exchange Conference Center (ECC), a structure located on the so-called Fish Pier. Massport policy forbids such activity in that location, and no permit was forthcoming. In the other instance, NERCC members tried to leaflet on the Massport-controlled public sidewalk adjacent to Northern Avenue, immediately in front of Boston's World Trade Center (WTC). Massport prevented the leafletters from distributing handbills until they applied for, and received, a permit.

Invoking 42 U.S.C. § 1983, NERCC repaired to the federal district court and sued two Massport hierarchs -- its executive director and its director of public safety -- in their official capacities. 1 It sought injunctive relief and a declaration that Massport's practices violated its right to freedom of speech. See U.S. Const. Amend. I. While the suit was pending, Massport adopted new regulations applicable to the Northern Avenue sidewalks. The district court, acting on cross-motions for summary judgment, upheld both the outright ban on leafletting at the Fish Pier and the new regulations. New Engl. Reg'l Council of Carpenters v. Mass. Port Auth., 115 F.Supp.2d 84 (D. Mass. 2000) (Massport I).

On the two principal issues, we affirm the district court's thoughtful decision. We hold that the Fish Pier is a non-public forum, and that the leafletting ban -- which is content-neutral and reasonable in light of the uses to which the pier is put -- is a valid exercise of governmental authority. As to the sidewalks adjacent to Northern Avenue, we hold that Massport's permit requirement is valid on its face: the neoteric regulations sufficiently limit official discretion and the restrictions imposed are both content-neutral and narrowly tailored.

There are three more matters. First, we hold that NERCC's challenge to Massport's original permit policy is moot insofar as that challenge pertains to the sidewalks adjacent to Northern Avenue. Second, Page 15

because the district court did not address the question of whether Massport controls other sidewalks to which the original permit policy still attaches, we remand for fact finding on that question. As a final matter, we hold that the district court did not abuse its discretion in denying NERCC's application for an award of attorneys' fees.

I. BACKGROUND

With exceptions that we shall examine in due course, the facts of this case are largely undisputed. Our mise-en-scene begins with the Fish Pier, which was constructed by the Commonwealth almost a century ago to provide a venue for the Boston-based fishing fleet to unload, process, and auction its daily catch. Although the volume of activity has decreased markedly over time, the Fish Pier continues to serve essentially the same function today.

Geographically, the Fish Pier is located on the eastern side of Northern Avenue, directly across from Avenue D, in South Boston. It is separated from the Northern Avenue sidewalk by an iron fence that runs the full width of the pier. The fence contains passageways for pedestrian and vehicular traffic. Just inside the entrance is a security booth, staffed twenty-four hours a day, which displays a sign that reads: "Private Property, No Trespassing." The sign also prohibits unauthorized vehicles and warns that "drivers must obtain authorization, report name, address, purpose, and allow inspection of contents" before entering the Fish Pier.

A two-lane roadway runs the length of the Fish Pier. The road is bordered on each side by long three-story buildings. The ECC is located at the very tip of the pier, and the road loops around it (allowing large trucks to turn around easily). The outermost periphery of the Fish Pier borders on Boston Harbor. It is used for the docking, unloading, fueling, and repair of fishing boats.

There are small parking lots and sidewalks on either side of the interior road near the entrance to the Fish Pier, but there are no sidewalks along the length of the three-story buildings. These buildings do sport raised loading dock platforms. While NERCC calls these platforms "elevated sidewalks," that nomenclature is misleading: the photographic evidence shows that each of these platforms is appurtenant to, and part of, the adjacent building.

Massport became the proprietor of the Fish Pier during the 1970s and has continued to operate it as a commercial fishing depot. During this interval, Massport has made room for several other commercial uses. For example, the long buildings on either side of the interior road house a number of offices, including those of Massport itself, two law firms concentrating in admiralty practice, a business that compiles sports statistics, and the Israeli Chamber of Commerce. There are also two restaurants on the premises. The ECC is a recently-renovated facility -- it was formerly the New England Fish Exchange -- that is available to the general public by reservation. The ECC contains conference and meeting rooms, and can handle events for as many as 175 people.

Massport's regulations make it unlawful to "[p]ost, distribute, or display signs, advertisements, circulars, printed or written matter" in "any area . . . of the Port Properties" without written permission. Mass. Regs. Code, tit. 740, § 3.02(3)(e). The same regulation prohibits unauthorized entry into restricted areas under Massport's control. See id. § 3.02(2). Areas posted as being closed to the public are deemed "restricted," id., and NERCC does not dispute that the Fish Pier is so Page 16

demarcated. 2 On that basis, Massport refuses to permit leafletting on the Fish Pier.

On December 10, 1998, NERCC applied for permission to distribute handbills in front of the ECC. It believed that the ECC was to be used six days later for a holiday party sponsored by the Tocci Building Corporation and desired to leaflet on that date to call attention to certain employment practices engaged in by the company (whose chief executive officer, John Tocci, also serves on a Massport advisory board). After NERCC's counsel learned informally that Massport intended to deny the request and to restrict leafletting to the Fish Pier entrance on Northern Avenue, NERCC filed suit seeking injunctive relief and a declaration that Massport's "no leafletting" policy violated the First Amendment. When NERCC thereafter learned that it was mistaken as to the date of the Tocci event, it withdrew the request for a preliminary injunction but chose to proceed with the constitutional challenge.

NERCC included in its complaint a prior permit dispute concerning a neighboring location: the sidewalk in front of the WTC. The WTC is located on Northern Avenue, proximate to the Fish Pier and to Avenues B and D. Due to massive construction efforts in that part of South Boston, some sidewalks near the WTC are isthmian corridors bounded by walls of plywood and concrete. Even where no construction is presently ongoing and makeshift arrangements do not predominate, the sidewalks are narrow. Northern Avenue is a major transportation artery, and at peak hours the entire area is congested. Constant vehicular traffic is compounded by high pedestrian traffic.

Massport owns the section of Northern Avenue that runs in front of the WTC, subject to an agreement with the City of Boston to preserve it as a public right-of-way. On November 17, 1998 -- a date when John Tocci was scheduled to speak at the WTC -- thirteen NERCC members attempted to leaflet at various locations in the vicinity of the building. They were threatened with arrest and told that they could not distribute handbills until they received permission from Massport. NERCC's counsel immediately transmitted a permit application by facsimile to Massport's director of public safety (DPS) while the union members and the police officers waited. The permit issued around four hours later. In its complaint, NERCC attacked the process on two grounds: that the issuance of the permit had been unduly delayed, and that Massport's requirement for a permit, based on an essentially standard less policy, was in any event unconstitutional.

In the early stages of the litigation, the district court expressed concern...

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