Citizens to End Animal Suffering v. Faneuil Hall, Civ. A. No. 90-10722-T.

• Decision Date: 27 August 1990
• Docket Number: Civ. A. No. 90-10722-T.
• Citation: 745 F. Supp. 65
• Parties: CITIZENS TO END ANIMAL SUFFERING AND EXPLOITATION, INC., Doreen Close Lavenson, and, Mark Sommers, Plaintiffs, v. FANEUIL HALL MARKETPLACE, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

745 F. Supp. 65

CITIZENS TO END ANIMAL SUFFERING AND EXPLOITATION, INC., Doreen Close Lavenson, and, Mark Sommers, Plaintiffs, v. FANEUIL HALL MARKETPLACE, INC., Defendant.

Civ. A. No. 90-10722-T.

United States District Court, D. Massachusetts.

August 27, 1990.

COPYRIGHT MATERIAL OMITTED

James A. Frieden, Boston, Mass., for plaintiffs.

Edward Raymond Lev, Lynn Peterson Read, Robert Buchanan, Sullivan & Worcester, Boston, Mass., for defendant.

MEMORANDUM

TAURO, District Judge.

Plaintiffs are a non-profit corporation, Citizens To End Animal Suffering And Exploitation, and two of its members, Doreen Close Lavenson and Mark Sommers. They allege that defendant, Faneuil Hall Marketplace, Inc., infringed their First Amendment right of free expression when it arrested Lavenson and Sommers on grounds of criminal trespass for distributing literature on land leased by defendant from the City of Boston. Based upon that past action, and defendant's representation that it would arrest plaintiffs again under similar circumstances, plaintiffs seek to enjoin future interference with their freedom of expression.

I.

On June 23, 1989, the individual plaintiffs, along with others, gathered at Faneuil Hall Marketplace ("the Marketplace")¹ to distribute leaflets and protest the inhumane treatment of calves used for veal. They urged passersby not to consume veal at the establishments located in the Marketplace. Plaintiffs claim that, as they and their fellow protesters were walking in a single line with pedestrian traffic on North and South Market Streets, they were stopped by defendant's security officers who allegedly had received complaints from a commercial tenant. The officers told the protesters that they could not picket or display signs on "private property."²

After the protesters refused to disperse, defendant's security officers summoned the Boston Police. The police responded quickly, but left without making any arrests, notwithstanding the protesters' refusal to disperse. Defendant's security officers then arrested Lavenson and Sommers for criminal trespass. The pair were handcuffed and taken to defendant's security offices, where they were detained until the Boston Police returned. Defendant swore out criminal complaints against Lavenson and Sommers in the Boston Municipal Court. These criminal proceedings were ultimately dismissed for lack of prosecution.

As a result of this incident, plaintiffs filed a five-count complaint against defendant, alleging: 1) violation of 42 U.S.C. § 1983; 2) violation of Mass.Gen.L. c. 12 § 11I; 3) false arrest; 4) malicious prosecution; and 5) abuse of process.

Presently at issue is plaintiffs' motion for a preliminary injunction, by which they seek to enjoin future interference with their freedom of expression. This motion raises issues of justiciability, state action, first amendment fora, and the propriety of injunctive relief. Each will be addressed seriatim.

II.

A federal court may only decide actual cases or controversies. See U.S. Const. art. III, § 2; Diamond v. Charles, 476 U.S. 54, 61, 106 S.Ct. 1697, 1703, 90 L.Ed.2d 48 (1986) ("Article III of the Constitution limits the power of federal courts to deciding `cases' and `controversies.'"). To present a justiciable case or controversy, the plaintiff must demonstrate "a realistic danger of sustaining a direct injury...." Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979) (citation omitted).

Plaintiffs have alleged a justiciable claim here. They wish to exercise their First Amendment rights at the Marketplace. See Letter to Michael E. Spear (Appendix B to Affidavit of Doreen Close Lavenson). Defendant arrested them for attempting to do so in the past, and filed a criminal complaint against them. At oral argument, defense counsel conceded that, if plaintiffs attempted another such protest on the premises, defendant would take the same action against them. These circumstances constitute an actual case or controversy, and justify this court's exercise of its equitable power. See Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923) ("One does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough."). See also Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974). The motion for preliminary injunction, therefore, is properly before the court.

III.

Before deciding whether defendant can be enjoined from prohibiting speech on its premises, the court must undertake a two-step inquiry. First, the court must determine whether this defendant, an ostensibly private party, may be held to constitutional standards when it attempts to regulate activity on its premises. See Hudgens v. National Labor Relations Board, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976) (absence of state action precludes application of constitutional standards). If so, the court must then characterize the forum at issue, thereby setting the constitutional standards by which defendant's regulations are to be judged. See Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 3446, 87 L.Ed.2d 567 (1985) (scope of right of expression is determined by type of forum involved).

Plaintiffs contend that the public nature of the Marketplace makes the protections of the First Amendment applicable.³ Defendant, on the other hand, argues that the Marketplace is private property to which the First Amendment does not apply. See Hudgens, 424 U.S. 507 (1976) (First Amendment inapplicable to privately-owned shopping mall).

A.

The Constitution clearly restricts the power of the government to regulate speech. See, e.g., Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 114, 93 S.Ct. 2080, 2092, 36 L.Ed.2d 772 (1973). Under certain circumstances, private parties may also be subject to these same constitutional standards. See Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 488, 15 L.Ed.2d 373 (1966) ("conduct that is formally `private' may become so ... impregnated with a governmental character" that it can be regarded as governmental action). The issue, therefore, is whether defendant's actions here may be "fairly attributable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982); Ponce v. Basketball Federation of Puerto Rico, 760 F.2d 375, 377 (1st Cir.1985). Such a determination is "necessarily fact-bound," Lugar, 457 U.S. at 939, 102 S.Ct. at 2755, for "only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961).⁴

The Supreme Court has identified several factors for courts to consider in determining whether a party is a "state actor."⁵ Specifically, three areas of inquiry are relevant: 1) whether there was a sufficient nexus between the state and the private actor which compelled the private actor to act as it did; 2) whether the private actor has assumed a traditionally public function; and 3) whether there is a sufficient "symbiotic relationship" between the state and the private actor so that the state may be recognized as a joint participant in the challenged activity. See Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S.Ct. 2777, 2785-86, 73 L.Ed.2d 534 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 841-42, 102 S.Ct. 2764, 2771-72, 73 L.Ed.2d 418 (1982); Ponce, 760 F.2d at 377; Cohen v. President and Fellows of Harvard College, 568 F.Supp. 658, 659-60 (D.Mass.1983) (Tauro, J.), aff'd 729 F.2d 59 (1st Cir.1984), cert. denied, 469 U.S. 874, 105 S.Ct. 233, 83 L.Ed.2d 161 (1984).⁶

While only one of these areas of inquiry need be satisfied in order to find state action,⁷ this case involves, as is shown below, both a private assumption of a traditionally public function, and a symbiotic relationship between defendant and the City of Boston.⁸

1. Public Function Analysis

In determining whether the Marketplace is a state actor because it performs a public function, "the relevant question is not simply whether a private group is serving a `public function.'" Rendell-Baker, 457 U.S. at 842, 102 S.Ct. at 2771. Rather, "the question is whether the function performed has been `traditionally the exclusive prerogative of the State.'" Id. (emphasis in original) (citations omitted).⁹

Notwithstanding the narrowness of this inquiry, defendant's conduct here is fairly construed as the performance of a "public function." As defense counsel conceded at oral argument, the lanes on which plaintiffs wish to protest are encumbered by an easement for public access.¹⁰ Many pedestrians wholly uninterested in the Marketplace's offerings cross its lanes daily in travelling to the waterfront. Others simply stroll about the Marketplace, enjoying various shops and pushcarts, as well as the adjacent Faneuil Hall and Faneuil Hall Square. Affidavit of Robert Guerra; Affidavit of Robert O'Brien.¹¹ As such, the open lanes of the Marketplace are not unlike a public park which, as the Supreme Court held in Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966),¹² must be "treated as a public institution subject to the command of the Fourteenth Amendment, regardless of who now has title under state law." Id. at 302, 86 S.Ct. at 490.¹³

Moreover, the pedestrian walkways here are similar to public streets,¹⁴ the regulation of which is a "public function." Were this a case in which the City had simply authorized the Marketplace to maintain the public walkways, defendant's discharge of this duty might not be state action. See, e.g., Johnson v. Pinkerton Academy, 861 F.2d 335, 338 (1st Cir.1988) ("The maintaining of public roads would seem a classically state function, but this does...