Capital Area Right to Life v. Downtown Frankfort, Inc.

• Decision Date: 31 May 1994
• Docket Number: 931201
• Parties: CAPITAL AREA RIGHT TO LIFE, INC., petitioner, v. DOWNTOWN FRANKFORT, INC., et al
• Court: U.S. Supreme Court

114 S.Ct. 2153

128 L.Ed.2d 878

CAPITAL AREA RIGHT TO LIFE, INC., petitioner,

v DOWNTOWN FRANKFORT, INC., et al.

No. 93-1201.

Supreme Court of the United States

May 31, 1994

On petition for writ of certiorari to the Supreme Court of Kentucky.

The petition for a writ of certiorari is denied.

Justice O'CONNOR, dissenting.

Each year, Downtown Frankfort, Inc. (DFI), a non-profit corporation established to promote downtown revitalization in Frankfort, Kentucky, organizes a one-day "Great Pumpkin Festival" on the city's St. Clair Mall. Capital Area Right to Life, Inc. (CARTL) had a booth at the 1989 festival, where it, among other things, distributed plastic models of fetuses in little baskets. When many festival-goers objected to this sort of political advocacy at the Festival, DFI adopted a policy of denying booths to organizations that it deemed incompatible with the Festival's goals of "fun and entertainment." Under this policy, DFI refused to give CARTL a booth at the 1990 festival; DFI's president explicitly told CARTL representatives that this was because CARTL was a "controversial group." DFI also denied booths to Kentucky NOW and the Kentucky Religious Coalition for Abortion Rights, two political groups with a message opposed to that of CARTL. 862 S.W.2d 297, 297-298 (Ky.1993).

CARTL sued, claiming the policy violated its free speech rights. The Kentucky Supreme Court disagreed. It concluded DFI was a state actor, and thus subject to the strictures of the First Amendment, because (1) DFI is principally funded by state agencies, (2) DFI took over from the city the function of promoting downtown revitalization, and (3) the city temporarily delegated to DFI control over the St. Clair Mall by letting DFI conduct the Festival and decide who gets booths. Id., at 299-300. But the court went on to hold that the Festival's policy was nonetheless "content-neutral," and therefore a valid time, place, and manner restriction. Id., at 300-301. The court interpreted the content-neutrality requirement as meaning that the restriction must be "neutral as to the type of message the restriction permits as well as being nondiscriminatory between messages of the same type, so long as there is a logical and legitimate reason for restricting the type of message." Id., at 301. "It is a critical fact in this case," the court said, "that CARTL's counterparts, NOW and the Religious Coalition for Abortion Rights, were also denied booths in keeping with the festival's theme." Ibid.

This content-neutrality analysis is flatly inconsistent with our precedents. The restriction here is clearly not content-neutral, and therefore cannot be a permissible time, place, and manner restriction, because it is indisputably justified with reference to the controversial content of the speech. See, e.g., Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 1164, 99 L.Ed.2d 333 (1988). The fact that pro-choice speakers were treated similarly under this regulation does not dispose of the content-neutrality analysis; we have time and again rejected the argument that viewpoint-neutrality equals content-neutrality. See, e.g., Burson v. Freeman, --- U.S. ----, ---- [112 S.Ct. 1846, 1850, 119 L.Ed.2d 5] (1992); Boos, supra, 485 U.S. at 319, 108 S.Ct., at 1162; Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 230, 107 S.Ct. 1722, 1728, 95 L.Ed.2d 209 (1987); Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 537-538, 100 S.Ct. 2326, 2333-2334, 65 L.Ed.2d 319 (1980); Carey v. Brown, 447 U.S. 455, 462, n. 6, 100 S.Ct. 2286, 2291, n. 6, 65 L.Ed.2d 263 (1980).

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