Lansing v. Memphis

RECOMMENDED FOR FULL-TEXT PUBLICATION 20 Lansing v. City of Memphis, et al. Nos. 98-5688/6743 Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0042P (6th Cir.) File Name: 00a0042p.06 CONCLUSION In summary, we find that none of the factors relied on by the district court is sufficient to warrant a finding of state UNITED STATES COURT OF APPEALS action by Memphis in May under the nexus test. Moreover, neither of the other two available tests urged by Lansing -- the FOR THE SIXTH CIRCUIT public function or the state compulsion test -- offers any more _________________ support for the theory of state action by Memphis in May.

; Based on these conclusions, we hold that the district4 court

 erred in finding that Memphis in May was a state actor. This KENNETH D. LANSING,  ruling, of course, moots the question of whether Memphis in Plaintiff-Appellee,  May violated the plaintiff’s First Amendment rights when it

 acted periodically to remove him from the liminal area of the Nos. 98-5688/6743 festival. We therefore REVERSE the district court’s v.  judgment in Lansing’s favor and VACATE the permanent > injunction against Memphis in May. Because the plaintiff is CITY OF MEMPHIS; MEMPHIS  no longer the prevailing party, there is no basis for assessing  Defendants,  PARK COMMISSION, attorney’s fees against the defendant, and the district court’s order to the contrary is hereby VACATED. The case is  REMANDED to the district court for further orders, as   necessary. MEMPHIS IN MAY INTERNATIONAL FESTIVAL,   Defendant-Appellant.  INC.,

 1 Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 97-03153—Jon Phipps McCalla, District Judge. Argued: November 3, 1999 Decided and Filed: February 4, 2000 Before: MARTIN, Chief Judge; DAUGHTREY, Circuit Judge; HILLMAN,* District Judge. 4 For a comparable conclusion by a sister circuit in a case presenting * similar facts, see United Auto Workers v. Gaston Festivals, Inc., 43 F.3d The Honorable Douglas W. Hillman, United States District Judge 902 (4th Cir. 1995). for the Western District of Michigan, sitting by designation.

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_________________ by the very party who later complained of their presence. 48 F.3d at 197. As noted, the Supreme Court has also held that COUNSEL merely availing oneself of state-sanctioned remedies or procedures, without more, does not render private action ARGUED: Thomas J. Walsh, Jr., FORD & HARRISON, public. The facts here indicate that in every case, a Memphis Memphis, Tennessee, for Appellant. Nathan W. Kellum, in May representative first approached Lansing and asked him McNABB, HOLLEY & WALDROP, Memphis, Tennessee, to move. He refused to leave unless a police officer ordered for Appellee. ON BRIEF: Thomas J. Walsh, Jr., Herbert E. him to do so. The Memphis in May representative found an Gerson, FORD & HARRISON, Memphis, Tennessee, for officer and asked for assistance, and the officer complied. If Appellant. Nathan W. Kellum, McNABB, HOLLEY & this were all that was required to find state action, then every WALDROP, Memphis, Tennessee, for Appellee. private citizen who solicited the aid of the police in resolving disputes or in ejecting unwanted persons would be _________________ transformed into a state actor. A mere request for assistance from an available police officer cannot be sufficient to form OPINION a nexus between the state and the private action. _________________ Furthermore, the letter to the director of police services MARTHA CRAIG DAUGHTREY, Circuit Judge. After he from the city attorney’s office regarding expressive activity was asked to move from an area near a festival in a city park, near Memphis in May events in no way indicates a nexus Kenneth D. Lansing, a self-identified “street preacher,” filed between the city and Memphis in May’s actions; in fact, it is federal and state constitutional claims against the City of the best evidence the record provides to show that Memphis Memphis, the Memphis Park Commission, and Memphis in in May and the city were operating as independent decision- May International Festival, Inc., alleging violations of his makers during the festival. The letter is quite emphatic in freedom of religion, speech, association, and assembly, and of communicating to city police officers the clear boundary his right to equal protection under the law. Following a between public forums controlled by the city, in which consolidated hearing on the merits of Lansing’s claim, the officers were directed to permit protected expressive activity, district court denied the defendants’ motions for summary and the areas leased and controlled by Memphis in May. The judgment and issued a permanent injunction barring each of city does not attempt to instruct its agents regarding activities the defendants from “prohibiting Mr. Lansing’s expressive by Memphis in May, or in areas controlled by Memphis in activities” within a specified area. Subsequently, the district May. It merely clarifies the duties of officers in areas court granted Lansing’s motion for attorney’s fees pursuant to controlled by the city, stating that “[n]o matter how close 42 U.S.C. §1988. individuals get to the described areas, as long as they do not Only Memphis in May has appealed the injunction, cross the leased areas, they are permitted to engage in contending that it is not a state actor and therefore owes no protected expressive activities.” No public-private nexus is First Amendment duties to Lansing, and alternatively, that if indicated. 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

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the case at hand, there is no evidence that Memphis in May’s Lansing’s fees in full, and alternatively, that Lansing is board of directors or its executive committee had anything to ineligible for attorney’s fees under the statute once the district do with the decision to ask Lansing to move outside the court’s ruling on the merits is reversed. barricade, let alone that the two public officials on the executive committee exerted any undue influence over the After careful review of the factual record and the relevant decision-making of their seven colleagues. There cannot be law, we conclude that Memphis in May was not a state actor any nexus between the state and Memphis in May’s action (rendering moot the constitutional question), and we therefore based on the composition of Memphis in May’s board. find it necessary to reverse the judgment of the district court. It follows that Memphis in May is not liable for the plaintiff’s Sixth, communications between the city attorney’s office attorney’s fees. and Memphis in May regarding Lansing do not indicate that the city dictated Memphis in May’s decision to remove FACTUAL AND PROCEDURAL BACKGROUND Lansing. Certainly, here more than anywhere there is a link between acts fairly attributable to the state and acts taken by Memphis in May International Festival, Inc. is a not-for- Memphis in May with regard to Lansing. However, scrutiny profit corporation qualified for tax exempt status under of the content of the correspondence reveals nothing more section 501(c)(3) of the Internal Revenue Code. Its stated than an alert to the situation, an offer to assist, and a request mission is “to generate tourism, foster international to act cautiously in order to avoid a lawsuit. Nowhere in the commercial trade and enhance the quality of life in the letter from the city attorney’s office to Memphis in May’s Memphis-Mid-South area through the organization, attorney is there any language suggesting or requiring that production, and/or promotion of public activities and Memphis in May eject Lansing from the festival; in fact, if education programs focusing on foreign nations and diverse anything, the letter counsels a rather more conservative cultures.” The corporation is run by a volunteer board of approach, urging that Memphis in May “remember the directors, which is itself governed by a nine-member balance” between constitutional rights and festival fun, and executive committee. Two of the nine committee members reminding planners that “borders for festival activities . . . can are selected by city and county representatives. not infringe on protected constitutional rights.” Although this single letter indicates that the city knew about Lansing’s In furtherance of its mission, Memphis in May organizes an complaint against Memphis in May, and that it was concerned annual festival held in Memphis during the month of May, that the law be upheld, it does not indicate a nexus so close known as “Memphis in May.” The festival includes a number that Memphis in May’s subsequent actions with respect to of events throughout the month; however, the three largest Lansing can be attributed to the state. events sponsored by Memphis in May are the Beale Street Music Festival, the World Championship Barbecue Cooking Finally, neither the supply of police officers to help enforce Contest, and the Sunset Symphony. Each of these events is Memphis in May’s decision to remove Lansing, nor the city’s held on a different weekend in May in Tom Lee Park, and instruction to its officers not to interfere with expressive each routinely draws over 200,000 people. speech activity outside the leased space, indicates a nexus sufficient to attribute Memphis in May’s actions to the state. Memphis in May receives funding for its festival from a In Ellison v. Garbarino, we held that police assistance in the variety of sources, including gate receipts, private lawful exercise of self-help does not convert private action to contributions, sponsorships, and local government. In the public action. In that case as here, the police were solicited years 1995 - 1997, Memphis in May’s total revenues ranged from approximately $2.5 million - $3.9 million. During that

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same time period, the combined public support from city, Fourth, the fact that the city required Memphis in May to county and state governments ranged from 1.8% - 2.3% of coordinate with city agencies regarding the regulation of total revenues. Gate receipts for that period totaled between alcoholic beverages, advertising, traffic and security at the 63.4% - 73.5% of revenues. festival, far from establishing a nexus between them, in fact demonstrates the independence of their operations. By For each of the years 1995, 1996, and 1997, Memphis in conditioning the lease, the use agreement, and the council May signed a lease agreement with the City of Memphis for resolution on Memphis in May’s compliance with city Tom Lee Park and a park use agreement with the Memphis regulations and authorities, the city and Memphis in May Park Commission, and requested and received a Memphis clearly established separate spheres of responsibility for the City Council resolution closing the streets surrounding the festival period. Memphis in May was responsible for festival site to vehicular traffic. The substantive terms of organizing the festival and making all appropriate these documents did not change in any material respect from administrative and logistic contacts, while Memphis retained year to year, with the exception of the park use agreement, responsibility for all the traditional functions of government, which was revised for 1997. The property covered by the such as controlling traffic, maintaining security, and lease included “all curbs, sidewalks, and abutments and any regulating alcohol consumption. other public property within, on the boundary, or immediately contiguous to the Property.” According to the park use Furthermore, the level of regulation to which Memphis in agreement (in all years), for the purpose of the Memphis in May was subjected for a single month-long festival cannot May events, “the boundaries of Tom Lee Park shall be: a. The compare with the degree of state regulation in enterprises tract of land west of Riverside Drive generally known as Tom such as insurance, schooling, worker’s compensation, or Lee Park; b. Riverside Drive if closed to traffic . . . ” electrical utilities. Yet, even in these extensively regulated arenas, the courts have been unwilling to find that state The lease further provides that “Lessee shall comply with regulation alone is sufficient to impute the actions of the the directives of the Memphis Police Department and the regulated entity to the state. See, e.g., American Memphis Fire Department to minimize interference with Manufacturers, 119 S.Ct. 977; Rendell-Baker, 457 U.S. 830; traffic in and out of said area so as not to create a nuisance” Blum, 457 U.S. 991; Jackson, 419 U.S. 345; Adams, 855 F.2d and “Lessee shall not create or allow any nuisance to exist on 312; Crowder, 740 F.2d 447. Coordinating traffic control and said property and to abate any nuisance that may arrive security with city police is not a sufficient nexus to attribute promptly and free of the expense of the Lessor . . . ” The Memphis in May’s actions to the state. 1997 park use agreement states that “Applicant shall provide . . . Security and/or Traffic Control based on the guideline for Fifth, the presence of two public officials on the Memphis 1,000-20,000 attendees of two (2) Officers per 1,000 and; in May board in this case fails to satisfy the nexus test. In 20,000 or more, one (1) additional Officer [p]er 1,000.” The Crowder v. Conlan, this court held that even when a hospital city council resolution included a clause stating: “BE IT board was responsible for the decision which resulted in the FURTHER RESOLVED that in each case, streets will open alleged civil rights violation, the presence of two pubic before the time listed if the streets are cleared and approved officials on the board of thirteen members was insufficient to by Memphis Police Department Traffic Bureau.” Finally, the create a close nexus between the board’s decision and the 1997 park use agreement provided that “[t]he applicant state. 740 F.2d at 451. In Adams v. Vandemark, the court accepts responsibility for determining and complying with all came to a similar conclusion regarding a board one-third of applicable rules, regulations, ordinances, statutes , policies, whose members were public officials. 855 F.2d at 317. In

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that Lansing move outside the barricades. See, e.g., Burton, and procedures of federal, state, county and city authorities 365 U.S. at 724 (finding it significant that “profits earned by and agencies.” discrimination not only contribute to, but also are indispensable elements in, the financial success of a Memphis in May events in Tom Lee Park are ticketed. In government agency” when holding that restaurant was state order to enforce the ticket-admission policy, temporary actor (emphasis added)). There is no evidence in the record barricades are erected around the event area, with entrance to indicate that any economic benefit the city received from gates at the north and south ends of the park. Beyond the Memphis in May’s activities depended on the removal of event barricades are street barriers indicating that the streets Lansing from the festival. contiguous to the park are closed to vehicles. The area between the street barriers and the event barriers is open to Second, the fact that Memphis in May received a small part the general public at no charge. Vending and ticketing booths of its funding from government sources is not enough to are located in this liminal space, as are check-in sites for convert its decisions to state action. As noted, the Supreme members of the press and Memphis in May volunteers. Court and this circuit have held that even in cases where Patrons of the festival also line up in this area as they wait private entities received virtually all of their funding from the their turn for admission. state, that fact alone was insufficient to establish a close nexus between the state and the activity of the private entity. Kenneth Lansing is a Christian who believes that he is In this case, the record indicates that Memphis in May never discharging a duty to God by public proclamation and received more than 3% of its revenues from government communication of his faith. In fulfilment of this duty, sources during the period at issue. Such limited public Lansing seeks out public locations that have access to a support is simply not enough to require that we impute maximum number of passers-by, where he engages in Memphis in May’s actions to the state. religious speech including preaching, counseling, handing out literature, and holding signs and banners. In the years since Third, the fact that Memphis in May leased Tom Lee Park 1989, Lansing has chosen areas near Memphis in May events and contiguous public ways from the city does not convert it in Tom Lee Park as a venue for his message. His preferred from a private to a state actor. We have been consistent in location is an area on Riverside Drive, outside the north gate holding that a lease for public land or facilities from the in the strip between the traffic barricades and the event government is insufficient evidence of a nexus between the barricades. He chooses this area expressly because it affords state and the activities that take place on the land. See him the best opportunity to reach the maximum number of Wolotsky, 960 F.2d at 1336; Adams, 855 F.2d at 316; people with his message. Crowder, 740 F.2d at 450, 453. Nor is the fact that the city received a percentage of gross sales of beer indicative of a Each year since 1995, during peak attendance periods, sufficiently close nexus between Memphis and Memphis in Memphis in May officials have asked Lansing to move from May. While such an arrangement may have given the city an his chosen location to an area outside the traffic barricades, economic interest in the success of the beer vendors, nothing approximately 50-300 feet away.1 Lansing has responded indicates any connection between beer sales and Lansing’s presence in the liminal space. See Burton, 365 U.S. at 724. This limited profit-sharing agreement is insufficient to impute 1 Lansing’s complaint includes claims based on events occurring in Memphis in May’s request of Lansing to the city. 1995, 1996, and 1997. The district court ruled that the 1995 and 1996 claims were time-barred, presumably by Tennessee’s one-year statute of limitations for “civil actions for compensatory or punitive damages, or

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each time by indicating that he would move only at the assistance of state officials’ cannot [properly be considered request of a police officer. In each case a police officer was state action]”); Edmonson v. Leesville Concrete Co., Inc., summoned to make the request, and Lansing moved without 500 U.S. 614, 622 (1991) (“private use of state-sanctioned incident. private remedies or procedures does not rise, by itself, to the level of state action”); Ellison, 48 F.3d at 197 (holding that On May 29, 1996, Lansing’s attorney initiated police assistance in lawful exercise of self-help does not correspondence with city officials, seeking assurances that convert private action to state action). Lansing’s perceived right to speak in the liminal area between barriers at the Memphis in May events would be protected. The district court was correct in identifying several of the On July 31, 1996, the Memphis city attorney’s office aforementioned nexus test factors as the relevant law for this responded to Lansing’s request, stating: case. Nevertheless, throughout its analysis of Memphis in May’s relationship with the City of Memphis, the court drew The City of Memphis agrees that Mr. Lansing has certain conclusions that in many instances are in direct conflict with constitutional rights to engage in protected speech. It is the principles identified above. As justification for its finding our position to ensure that for the 1997 Memphis in May that Memphis in May was a state actor when it asked Lansing Festival that we provide information to the festival to move outside the traffic barricades, the court listed the organizers as well as to the Memphis Police Department economic benefit to the city of the festival; city and state regarding any limitations that may be placed on those funding of Memphis in May; Memphis in May’s lease of city who wish to engage in protected speech. property and payment of fees for vendor’s booths; city regulations regarding alcoholic beverages, advertising, traffic That same day, the city attorney’s office wrote to Memphis in and security at the festival; the presence of two public May’s attorney, saying: officials on the Memphis in May board; communications between the city attorney’s office and Memphis in May The City Attorney’s Office is willing to assist you and regarding Lansing; and the provision of police officers to help Memphis in May officials in determining what are enforce Memphis in May’s decision to remove Lansing. constitutional legal boundaries for protected speech . . . Although a common sense perusal of this list might suggest All things considered it is imperative that there is better that Memphis in May and the city cooperated in the coordination between Memphis in May officials and the presentation of Memphis in May events, mere cooperation City to ensure that protected constitutional rights are not simply does not rise to the level of merger required for a abridged . . . I would only ask that when negotiations are finding of state action. underway this year that you remember the balance between . . . competing interests when Memphis in May First, the fact that Memphis in May confers an economic is drawing the borders for the festival activities. Those benefit on the city by operating the festival is insufficient to borders cannot infringe on protected constitutional rights. establish that Memphis in May is a state actor. A great many private entities confer economic benefits on the state without their activities being imputed to the state; consider, as examples, major employers or home football teams. both, brought under the federal civil rights statutes”. T.C.A. § 28-3- 104(a)(3). Although the incidents of 1995 and 1996 are outside the Furthermore, the test requires a close nexus not merely statutory period, many of the events described from that time period shed between the city and Memphis in May in general, but light on the question of whether Memphis in May operated as a state actor specifically between the city and Memphis in May’s request in 1997. Hence, a description of those events is included.

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costs and paid medical expenses of more than 90% of On April 25, 1997, Lansing’s attorney again wrote to the patients); Wolotsky, 960 F.2d at 1336 (finding private not-for- city attorney’s office requesting assurances that Lansing profit corporation which derived “a significant portion of its would be permitted to engage in religious speech activities funding from the government” and which leased one of its “on Riverside Drive, as well as other public property” during facilities from the government at nominal cost was not a state the 1997 Memphis in May events. On May 2, 1997, the city actor); Adams, 855 F.2d at 316 (holding private not-for-profit attorney’s office sent a letter to the director of police services, corporation was not a state actor, even though funded “almost requesting that entirely by public sources” and leasing office space from the city for a nominal fee); Crowder, 740 F.2d at 450, 453 [officers on duty during Memphis in May activities be] (holding state was not responsible for private hospital’s reminded that public streets and parks are public forums personnel decisions even if hospital derived “a considerable and individuals can engage in First Amendment activities percentage of its revenues from government funding” and without running afoul of the law so long as they do not county was “owner and lessor of the hospital’s physical present a danger to themselves or others or impede traffic plant”). . . . This is a special situation because Memphis in May officials have leased space from the City for a limited The minority presence of public officials on the board of a time . . . No matter how close individuals get to the private entity does not render the entity a state actor; nor does [leased] areas, as long as they do not cross the leased the mere approval or acquiescence of the state in private area, they are permitted to engage in protected expressive activity. See, e.g., Blum, 457 U.S. 991 (“Mere approval of or activities. acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those Finally, on the same day, the city attorney’s office wrote to initiatives under the terms of the Fourteenth Amendment”); Lansing’s attorney, including a description of the leased area Jackson, 419 U.S. 345 (“Approval by a state utility and saying: “Your client should feel free to engage in commission of such a request from a regulated utility, where protected expressive activities, within the confines of the law, the commission has not put its own weight on the side of the in the areas that are not included in the attached description.” proposed practice by ordering it, does not transmute a practice initiated by the utility and approved by the commission into On at least two different occasions that May, Lansing ‘state action’”); Adams, 855 F.2d 312 (holding private not- appeared outside the entrance gates of the Memphis in May for-profit corporation was not a state actor, even though state festival, in the space between barricades, and began law required one-third of its board to be public officials, since preaching, counseling, leafleting and holding signs. When, board had no direct involvement in challenged action); after some time, Memphis in May representatives asked him Crowder, 740 F.2d 447 (holding state was not responsible for to move off the leased property, he responded that he would private hospital’s personnel decisions even if two of the only move at the request of a police officer. An officer was thirteen board members were public officials). summoned and made the request, and Lansing moved.

Finally, the cases indicate that utilization of public services In December 1997, Lansing filed suit pursuant to 42 U.S.C. by private actors does not convert private action to state §§ 1983 and 1988 against the City of Memphis, the Memphis action. See American Manufacturers, 119 S.Ct. at 987 Park Commission, and Memphis in May, alleging violations (holding that “a private party’s mere use of the State’s dispute of his state and federal constitutional rights. He sought resolution machinery, without the ‘overt, significant declaratory and injunctive relief and damages. Subsequently, the City of Memphis (for itself and on behalf of its

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subdivision, the Memphis Park Commission) and Memphis a positive test cannot be adequately formulated in the abstract, in May both filed summary judgment motions. In April, the both this circuit and the Supreme Court have nevertheless court entered judgment for Lansing and permanently enjoined identified some factors which are decidedly insufficient, by all defendants “from prohibiting Lansing’s expressive themselves, to justify a finding of a close nexus between the activities within the leased areas of Riverside Drive outside state and a private actor. the north and south gates.” In his memorandum and opinion and order, the district judge made the following conclusions Consequently, it is now well-established that state of law: regulation, even when extensive, is not sufficient to justify a finding of a close nexus between the state and the regulated ! Lansing’s claims with respect to events occurring in entity. See, e.g., American Manufacturers, 119 S.Ct. 977 1995 and 1996 were time-barred, and only the events of (holding that despite location in state’s “regulatory web,” May 1997 were properly before the court. private insurer’s decision to withhold payment for disputed worker’s compensation claim not attributable to the state); ! The City of Memphis and its subdivision the Memphis Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (holding private Park Commission “actively participated in barring Mr. school’s personnel decisions not attributable to the state, Lansing’s speech,”and hence there was state action on despite “extensive regulation of the school generally”); Blum the part of the city. v. Yaretsky, 457 U.S. 991 (1982) (refusing to hold New York State responsible for nursing home’s patient transfer ! The nexus between the activities of the city and of decisions, “although it is apparent that nursing homes in New Memphis in May was sufficiently close to attribute the York are extensively regulated”); Jackson, 419 U.S. 345 action of Memphis in May to the state, and hence there (refusing to find state action in electric company’s decision to was state action on the part of Memphis in May. terminate service, notwithstanding that it was “a heavily regulated utility with at least something of a governmentally ! Lansing’s speech warranted protection under the First protected monopoly”); Adams v. Vandemark, 855 F.2d 312 Amendment. (6th Cir. 1988) (holding private not-for-profit corporation was not a state actor, even though subject to state and federal ! The area between the event barriers and the traffic regulation); Crowder v. Conlan, 740 F.2d 447 (6th Cir. 1984) barriers was a traditional pubic forum. (holding state was not responsible for private hospital’s ! The defendants’ restrictions on Lansing’s speech were personnel decisions even if state regulation was “extensive not narrowly tailored to serve a significant government and detailed”). interest, nor did they leave open ample alternative Equally well-established is the principle that neither public channels of communication. funding nor private use of public property is enough to ! Injunctive relief was appropriate, but since Lansing establish a close nexus between state and private actors. See, did not present proof as to damages, damages would not e.g., Rendell-Baker, 457 U.S. 830 (finding private school’s be awarded. personnel decisions not attributable to the state, despite the fact that “virtually all of the school’s income was derived In the wake of the district court’s ruling, Memphis in May from government funding””); Blum, 457 U.S. 991 (refusing filed its notice of appeal, and Lansing moved for an award of to hold New York state responsible for nursing home’s patient attorney’s fees, pursuant to 42 U.S.C. § 1988. Each of the transfer decisions, even though the state subsidized operating

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Wolotsky, 960 F.2d at 1335. Lansing urges that this test is defendants opposed the motion for attorney’s fees, arguing met here, since the city attorney’s office corresponded with that the district court should not rule on it until the pending Memphis in May’s attorney regarding Lansing, and because appeal on the merits was resolved. However, the district city police officers asked Lansing to move from the liminal court entered an order granting Lansing’s motion; Memphis area. However, neither of these actions imply “such coercive in May filed its notice of appeal of that order as well; and the power” that the choice of Memphis in May to request that two appeals have now been consolidated. In the meantime, Lansing move outside the traffic barricades must “in law” be the City of Memphis has paid Lansing the full amount of deemed that of the city. attorney’s fees sought in his post-judgment motion. The record indicates only one letter from the city attorney’s DISCUSSION office to Memphis in May’s attorney, which includes simply an offer to assist in the determination of “constitutional legal Pursuant to Fed. R. Civ. P. 52(a), findings of fact by a boundaries for protected speech,” and a request to consider district judge are not reversed unless “clearly erroneous.” the issue when planning the next year’s event. This is hardly Owens-Illinois, Inc. v. Aetna Cas. & Sur. Co., 990 F.2d 865, “significant encouragement” of Memphis in May’s decision 870 (6th Cir. 1993). We review de novo conclusions of law to ask Lansing to leave; in fact, if anything, it seems to and mixed questions of law and fact. Golden v. Kelsey-Hays encourage the opposite result. Furthermore, the involvement Co., 73 F.3d 648, 653 (6th Cir. 1996); Sandler v. AII of Memphis police officers in Lansing’s removal from the Acquisition Corp., 954 F.2d 382, 384-5 (6th Cir. 1992). liminal space occurred solely at Lansing’s own request. Again, this can hardly be seen as an exercise of “coercive State Action Requirement power” over Memphis in May by the city; but for Lansing’s insistence, the city would not have been involved at all. We It is undisputed that First and Fourteenth Amendment therefore conclude that the state compulsion test is not met. protections, codified in 42 U.S.C. § 1983, are triggered only in the presence of state action and that a private entity acting c. The Nexus Test on its own cannot deprive a citizen of First Amendment rights. See, e.g., Flagg Brothers Inc. v. Brooks, 436 U.S. 149 Under the nexus test, “the action of a private party (1978) (“most rights secured by the Constitution are protected constitutes state action when there is a sufficiently close only against infringement by governments”); Hudgens v. nexus between the state and the challenged action of the NLRB, 424 U.S. 507 (1976) (“It is, of course, a commonplace regulated entity so that the action of the latter may be fairly that the constitutional guarantee of free speech is a guarantee treated as that of the state itself.” Wolotsky, 960 F.2d at 1335. only against abridgment by government, federal or state.”). The cases establish no clear standard for identifying a Memphis in May contends that the district court erred when “sufficiently close nexus.” Rather, the Supreme Court it ruled that Memphis in May, despite its status as a private reminds us that “readily applicable formulae may not be corporation, operated as a state actor in ejecting Lansing from fashioned” for finding state action in civil rights cases; such the area between the barricades. a finding “can be determined only in the framework of the peculiar facts or circumstances present.” Burton v. However, a private entity can be held to constitutional Wilmington Parking Authority, 365 U.S. 715, 726 (1961); see standards when its actions so approximate state action that also Lugar, 457 U.S. 922, 939 (calling the state action they may be fairly attributed to the state. See, e.g., American determination a “necessarily fact-bound inquiry”). Although Manufacturers Mutual Insurance Co. v. Sullivan, 119 S.Ct. 977, 985 (1999); Lugar v. Edmonson Oil Co., Inc., 457 U.S.

10 Lansing v. City of Memphis, et al. Nos. 98-5688/6743 Nos. 98-5688/6743 Lansing v. City of Memphis, et al. 11

922, 937 (1982). The Supreme Court in Lugar identified a express condition of both the lease and the park use two-part approach to the question of “fair agreement was that Memphis in May would “comply with the attribution,”effectively requiring that the action be taken (a) directives of the Memphis Police Department and the under color of state law, and (b) by a state actor. See Lugar, Memphis Fire Department to minimize interference with 457 U.S. at 937. In this circuit we have applied three tests to traffic in and out of said area” and “provide . . . Security help in determining when the Lugar conditions are met. and/or Traffic Control based on the guideline” furnished by These are: (1) the public function test; (2) the state the city agency. Additionally, according to the city council compulsion test; and (3) the symbiotic relationship or nexus resolution, “streets will open before the time listed if the test. See, e.g., Brentwood Academy v. Tennessee Secondary streets are cleared and approved by Memphis Police Schools Athletic Association, 180 F.3d 758, 763 (6th Cir. Department Traffic Bureau.” These provisions indicate quite 1999); Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir. clearly that although Memphis in May had permission from 1995); Wolotsky v. Huhn, 960 F.2d 1331 (6th Cir. 1992). the city to put its streets to special use during the time of the Each should be considered in turn. festival, the city retained ultimate control of the streets at all times. The City of Memphis, not Memphis in May, made the a. The Public Function Test decision to close Riverside Drive to traffic, and the City of Memphis retained decision-making authority over issues of The public function test requires that “the private entity traffic control and safety. There is nothing in the record to exercise powers which are traditionally exclusively reserved indicate that Memphis in May usurped “powers which are to the state, such as holding elections or eminent domain.” traditionally exclusively reserved to the state” by applying for Wolotsky, 960 F.2d at 1335 (internal citations omitted). See and 3receiving permission to put the street to a special, limited also Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 use. Hence, we conclude that the public function test is not (1974) (holding that provision of utility service is not a power met here. reserved exclusively to the state). b. The State Compulsion Test Lansing asserts that in the operation of its festival, Memphis in May maintained control over the public streets The state compulsion test requires that a state “exercise surrounding Tom Lee Park, a function usually reserved to the such coercive power or provide such significant city. We need not reach the question of whether control of encouragement, either overt or covert, that in law the choice city streets is a public function in the tradition of eminent of the private actor is deemed to be that of the state.” domain and public elections, however, because Lansing fails to establish that Memphis in May actually had exclusive control of the streets surrounding the festival. Although it is true that Memphis in May was the lessee and/or licensee of citizen must comply with the law, perhaps not every user of Tom Lee the streets in question and, as such, 2exercised more control Park is expected to determine the applicable law. over them than the average citizen, it is also true that an 3 Lansing also asserts, in the alternative, that “Memphis in May sets itself up as decision-maker, judging who can be on Riverside Drive and 2 who can speak on that street. It is precisely this authoritative role that See, e.g., the park use agreement, by which Memphis in May subjects Memphis in May to constitutional scrutiny.” This argument begs “accepts responsibility for determining and complying with all applicable the question, however. If Memphis in May is found to be a private actor, rules, regulations, ordinances, statutes, policies, and procedures of it can judge who can speak on Riverside Drive without constitutional federal, state, county and city authorities and agencies.” While every scrutiny.