Wickersham v. City of Columbia, Mo.
| Decision Date | 18 May 2005 |
| Docket Number | No. 05-4061CVCNKL.,05-4061CVCNKL. |
| Parties | Bill WICKERSHAM and Maureen Doyle, Plaintiffs, v. CITY OF COLUMBIA, MISSOURI and Memorial Day Weekend Salute to Veterans Corp., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Dan Viets, Dan Viets Law Office, Columbia, MO, Marilyn S. Teitelbaum, Rhona S. Lyons, Schuchat, Cook & Werner St. Louis, MO, for Plaintiff.
Robert J. Krehbiel, King, Krehbiel, Hellmich, Hentz & Borbonus, St. Louis, MO, Dale C. Doerhoff, Cook, Vetter, Doerhoff & Landwehr, P.C., Jefferson City, MO, for Defendants.
Plaintiffs Bill Wickersham ("Wickersham") and Maureen Doyle ("Doyle") seek a preliminary injunction so that they can distribute leaflets and circulate petitions at a Memorial Day Air Show which is to be held at the City of Columbia's airport. Because it is likely that Doyle and Wickersham will be partially successful on the merits and will be irreparably harmed if an injunction does not issue, the Court will grant some but not all of the relief sought by the Plaintiffs.
The Memorial Day Air Show ("Air Show") is to be held on May 29 and 30, 2005, at the Columbia Regional Airport ("Airport"), which is owned by the City of Columbia ("City"). The Air Show consists of an aerial display viewed by the public from a designated part of the Airport tarmac. In addition to the aerial display, various booths and stationary displays are authorized to occupy the designated tarmac. The Defendant, Memorial Day Weekend Salute to Veterans Corporation ("Corporation"), does not permit any unauthorized displays or booths, but the Air Show is open to the public because the federal government will not permit the use of its planes unless the public can attend.
Although the entire event is open to the public, including the designated tarmac where the public comes to watch the show, the Defendants claim that the Corporation has the authority to exclude anyone from the public crowd who does not meet its approval. To support this proposition, Defendants point to a contract between the City and the Corporation which gives the Corporation exclusive control over the designated tarmac, subject only to the City's right to retake possession of the tarmac in the event of an undefined emergency. This contract was executed despite a City Ordinance which specifically provides that the City cannot cede control of any part of the Airport to a third party.1
The City and the Corporation contend that, regardless of the ordinance, the City has no power to require the Corporation to permit any free speech at the Air Show because to do so would interfere with or dilute the Corporation's message. According to the Corporation, the message of the Air Show is to honor and remember veterans, and if any group or individual engages in any expression unapproved by the Corporation, it would violate the Corporation's right to free speech because the Corporation does not want to be associated with anyone else's message.
The problem with the Defendants' argument is that the City is inextricably involved in the Memorial Day Air Show and, therefore, neither the Corporation nor the City has a right to control all expression at this public event. The City runs the Airport during the Air Show and provides other necessary support such as special police, fire and sanitation resources. While the Corporation plans the order of the aerial demonstrations, the plan must be approved by the City's Airport personnel. While the Corporation contracts with the federal government and other pilots to bring their planes to the City and pays for some to come,2 it simply cannot make the planes fly without the contemporaneous operation of the Airport by City personnel. Furthermore, the federal government will not even send its planes unless the City attests that the City is making the Airport available for the Air Show and it is officially supported by local government.
This is not like turning over a city park to a private organization and letting them put on an event to honor and remember veterans, or to individuals for a family reunion, or even having an arts festival on all the city's streets. Under those circumstances, the private group merely has the use of public property and, therefore, could exclude whoever they wanted even though the event is occurring on public land and open to the public.3 In contrast, once the city becomes a substantial, necessary and active participant in the event, it cannot rely on superficial distinctions created by contract to insulate itself from constitutional obligations. While the Corporation has 3,000 volunteers and spends about $100,000 each year for the event, it is undisputable that the Air Show could not occur without the substantial involvement of the City before, during and after the event.
Because of the symbiotic relationship between the City and the Corporation, the Constitution does not permit them to exclude all unapproved expression. On the other hand, the Constitution does permit reasonable time, place and manner restrictions. Most of the Air Show is devoted to entertainment, but there are events during that Air Show which specifically recognize the sacrifices made by the current and former men and women in the armed services. During such solemn events, the Defendants can exclude leafleting, protests, petitioning, or any other speech or activity that might distract the crowd or offend those whose loved ones are being recognized.4 But the Defendants may not simply say that the entire Air Show is to honor and remember veterans and, therefore, any message other than ones approved by the Corporation will distract, mar or offend.
Because the Court finds the Air Show to be a nonpublic forum, it is permissible for the Defendants to exclude all petitioning. The Supreme Court has permitted such restrictions in the terminal of an airport which also contained substantial other commercial activity and this is closely analogous to the event at hand. The Defendants cannot, however, exclude all leafleting. The Supreme Court and other courts have recognized in similar circumstances that leafleting cannot be prohibited. Nor can the Defendants ban all protests because such a rule is patently overbroad and vague. For example, the Defendants cannot exclude clothing which expresses a viewpoint with which the Corporation disagrees.
While all First Amendment activities at the Air Show are subject to reasonable time, place and manner limitations, any rules adopted by either Defendant must be content neutral and must be uniformly enforced. For example, the Defendants cannot let in a sign which says "God Bless our Troops" and exclude a sign which says "God is Watching," which was done in the past.
Defendants do retain control over who will be permitted to fly in the Air Show and who may sell goods or have a booth at the event. The Defendants, and in particular the Corporation, have an interest in controlling who is perceived to be associated with them. A reasonable person would not think that someone handing out leaflets in a crowd represents the viewpoint of the organizers of an event absent some identifying mark. However, they could reasonably associate the Corporation with the booths and displays at the event. Just because the Corporation has entwined itself with the City, that does not mean that the Corporation's interests are to be ignored. All three parties in this dispute are entitled to have their respective interests protected in such a way as to not interfere with the objective interests of the others.
Prior to the Corporation's formation and the inception of the Air Show, the City did not have many activities to celebrate Memorial Day. When Mary McCleary Posner ("Posner"), the president of the Corporation, first moved back to Columbia in the 1980s, the Memorial Day festivities consisted of Def. Ex. 110. To correct the situation, Posner worked with five veterans from the Korean War and they decided to have a parade and, eventually, they came up with the idea of an Air Show.
The Corporation was officially organized in 1991 as a private not-for-profit corporation. Pl.Ex. 1. Its mission statement is: "To Honor and Remember those who served, those currently serving in our Armed Forces, Guard, Reserves, and our Allies." Def. Ex. 110. In her deposition, Posner stated that the purpose of the Corporation was not to glorify war. Posner Dep. at 49:18-22.
The Corporation sponsors two major events during the Memorial Day weekend: (1) a parade through downtown Columbia on Memorial Day, and (2) a two-day Air Show that is held at the Columbia Regional Airport. Def. Ex. 121, 127.
The Corporation's Air Show is defined as "the aerobatic and static display of aircraft and related exhibits, a static antique automobile show together with the sale of food for consumption on the Airport grounds and entertainment events and related activities." Pl.Ex. 5. The Air Show usually draws approximately 30,000 people. Pl.Ex. 6 and 7.
The Air Show is held on a secured tarmac of the Airport, which is owned by the City of Columbia. Boston Dep. at 6:22-24.5 The City provides use of the Airport to the Corporation free of charge. Posner Dep. at 249:19 to 250:3. The Airport is located outside the Columbia city limits in an unincorporated area of Boone County, but is owned by the City. Boston Dep. at 6:25 to 7:10. The Air Show is open to the public and is free of charge. Def. Ex. 122. The federal government, which has provided planes and personnel for the Air Show, requires that the event be open to the public; otherwise, it will not participate. Pl.Ex. 6 and 7.
On the map of the Airport contained in Plaintiffs' Exhibit 22, the area outlined with the...
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