Lansing v. City of Memphis

• Decision Date: 03 November 1999
• Docket Number: Nos. 98-5688,98-6743,s. 98-5688
• Citation: 202 F.3d 821
• Parties: (6th Cir. 2000) Kenneth D. Lansing, Plaintiff-Appellee, v. City of Memphis; Memphis Park Commission, Defendants, Memphis in May International Festival, Inc., Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 821

202 F.3d 821 (6th Cir. 2000)

Kenneth D. Lansing, Plaintiff-Appellee, v. City of Memphis; Memphis Park Commission, Defendants, Memphis in May International Festival, Inc., Defendant-Appellant.

Nos. 98-5688, 98-6743

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: November 3, 1999

Decided and Filed: February 4, 2000

Appeal from the United States District Court for the Western District of Tennessee at Memphis, No. 97-03153--Jon Phipps McCalla, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Thomas J. Walsh, Jr., Herbert E. Gerson, Curtis L. Bowe, III, FORD & HARRISON, Memphis, Tennessee, for Appellant.

Nathan W. Kellum, McNABB, HOLLEY & WALDROP, Memphis, Tennessee, for Appellee.

Before: MARTIN, Chief Judge; DAUGHTREY, Circuit Judge; HILLMAN,^* District

Judge.

OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

After he was asked to move from an area near a festival in a city park, Kenneth D. Lansing, a self-identified "street preacher," filed federal and state constitutional claims against the City of Memphis, the Memphis Park Commission, and Memphis in May International Festival, Inc., alleging violations of his freedom of religion, speech, association, and assembly, and of his right to equal protection under the law. Following a consolidated hearing on the merits of Lansing's claim, the district court denied the defendants' motions for summary judgment and issued a permanent injunction barring each of the defendants from "prohibiting Mr. Lansing's expressive activities" within a specified area. Subsequently, the district court granted Lansing's motion for attorney's fees pursuant to 42 U.S.C. §1988.

Only Memphis in May has appealed the injunction, contending that it is not a state actor and therefore owes no First Amendment duties to Lansing, and alternatively, that if it does owe such duties, it did not impose any unreasonable restrictions on Lansing's speech. In a separate but consolidated appeal, Memphis in May argues that the award of attorney's fees should be reversed with respect to Memphis in May, on the grounds that the city has already paid Lansing's fees in full, and alternatively, that Lansing is ineligible for attorney's fees under the statute once the district court's ruling on the merits is reversed.

After careful review of the factual record and the relevant law, we conclude that Memphis in May was not a state actor (rendering moot the constitutional question), and we therefore find it necessary to reverse the judgment of the district court. It follows that Memphis in May is not liable for the plaintiff's attorney's fees.

FACTUAL AND PROCEDURAL BACKGROUND

Memphis in May International Festival, Inc. is a not-for-profit corporation qualified for tax exempt status under section 501(c)(3) of the Internal Revenue Code. Its stated mission is "to generate tourism, foster international commercial trade and enhance the quality of life in the Memphis-Mid-South area through the organization, production, and/or promotion of public activities and education programs focusing on foreign nations and diverse cultures." The corporation is run by a volunteer board of directors, which is itself governed by a nine-member executive committee. Two of the nine committee members are selected by city and county representatives.

In furtherance of its mission, Memphis in May organizes an annual festival held in Memphis during the month of May, known as "Memphis in May." The festival includes a number of events throughout the month; however, the three largest events sponsored by Memphis in May are the Beale Street Music Festival, the World Championship Barbecue Cooking Contest, and the Sunset Symphony. Each of these events is held on a different weekend in May in Tom Lee Park, and each routinely draws over 200,000 people.

Memphis in May receives funding for its festival from a variety of sources, including gate receipts, private contributions, sponsorships, and local government. In the years 1995 - 1997, Memphis in May's total revenues ranged from approximately $2.5 million - $3.9 million. During that same time period, the combined public support from city, county and state governments ranged from 1.8% - 2.3% of total revenues. Gate receipts for that period totaled between 63.4% - 73.5% of revenues.

For each of the years 1995, 1996, and 1997, Memphis in May signed a lease agreement with the City of Memphis for Tom Lee Park and a park use agreement with the Memphis Park Commission, and requested and received a Memphis City Council resolution closing the streets surrounding the festival site to vehicular traffic. The substantive terms of these documents did not change in any material respect from year to year, with the exception of the park use agreement, which was revised for 1997. The property covered by the lease included "all curbs, sidewalks, and abutments and any other public property within, on the boundary, or immediately contiguous to the Property." According to the park use agreement (in all years), for the purpose of the Memphis in May events, "the boundaries of Tom Lee Park shall be: a. The tract of land west of Riverside Drive generally known as Tom Lee Park; b. Riverside Drive if closed to traffic . . . "

The lease further provides that "Lessee shall comply with the directives of the Memphis Police Department and the Memphis Fire Department to minimize interference with traffic in and out of said area so as not to create a nuisance" and "Lessee shall not create or allow any nuisance to exist on said property and to abate any nuisance that may arrive promptly and free of the expense of the Lessor . . . " The 1997 park use agreement states that "Applicant shall provide . . . Security and/or Traffic Control based on the guideline for 1,000-20,000 attendees of two (2) Officers per 1,000 and; 20,000 or more, one (1) additional Officer [p]er 1,000." The city council resolution included a clause stating: "BE IT FURTHER RESOLVED that in each case, streets will open before the time listed if the streets are cleared and approved by Memphis Police Department Traffic Bureau." Finally, the 1997 park use agreement provided that "[t]he applicant accepts responsibility for determining and complying with all applicable rules, regulations, ordinances, statutes , policies, and procedures of federal, state, county and city authorities and agencies."

Memphis in May events in Tom Lee Park are ticketed. In order to enforce the ticket-admission policy, temporary barricades are erected around the event area, with entrance gates at the north and south ends of the park. Beyond the event barricades are street barriers indicating that the streets contiguous to the park are closed to vehicles. The area between the street barriers and the event barriers is open to the general public at no charge. Vending and ticketing booths are located in this liminal space, as are check-in sites for members of the press and Memphis in May volunteers. Patrons of the festival also line up in this area as they wait their turn for admission.

Kenneth Lansing is a Christian who believes that he is discharging a duty to God by public proclamation and communication of his faith. In fulfilment of this duty, Lansing seeks out public locations that have access to a maximum number of passers-by, where he engages in religious speech including preaching, counseling, handing out literature, and holding signs and banners. In the years since 1989, Lansing has chosen areas near Memphis in May events in Tom Lee Park as a venue for his message. His preferred location is an area on Riverside Drive, outside the north gate in the strip between the traffic barricades and the event barricades. He chooses this area expressly because it affords him the best opportunity to reach the maximum number of people with his message.

Each year since 1995, during peak attendance periods, Memphis in May officials have asked Lansing to move from his chosen location to an area outside the traffic barricades, approximately 50-300 feet away.¹ Lansing has responded each time by indicating that he would move only at the request of a police officer. In each case a police officer was summoned to make the request, and Lansing moved without incident.

On May 29, 1996, Lansing's attorney initiated correspondence with city officials, seeking assurances that Lansing's perceived right to speak in the liminal area between barriers at the Memphis in May events would be protected. On July 31, 1996, the Memphis city attorney's office responded to Lansing's request, stating:

The City of Memphis agrees that Mr. Lansing has certain constitutional rights to engage in protected speech. It is our position to ensure that for the 1997 Memphis in May Festival that we provide information to the festival organizers as well as to the Memphis Police Department regarding any limitations that may be placed on those who wish to engage in protected speech.

That same day, the city attorney's office wrote to Memphis in May's attorney, saying:

The City Attorney's Office is willing to assist you and Memphis in May officials in determining what are constitutional legal boundaries for protected speech . . . All things considered it is imperative that there is better coordination between Memphis in May officials and the City to ensure that protected constitutional rights are not abridged . . . I would only ask that when negotiations are underway this year that you remember the balance between . . . competing interests when Memphis in May is drawing the borders for the festival activities. Those borders cannot infringe on protected constitutional rights.

On April 25, 1997, Lansing's attorney again wrote to the city attorney's office requesting assurances that Lansing would be permitted to engage in religious speech activities "on Riverside Drive, as well as other public property" during the 1997 Memphis in May events. On May 2, 1997, the city attorney's office sent...