COURT BATTLE TO MINISTER THE GOSPEL WITH BANNERS, PREACHING AND LITERATURE DISTRIBUTION IN THE APPROACH AREA TO THE PARK GATE ENTRANCE DURING THE MEMPHIS IN MAY EVENTS

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The Banners Unfurled evangelistic teams (BU) were threatened with arrest for several years and forced to proclaim the Gospel outside the approach area (a convergence of two streets, Beale and Riverside, terminating at a ticket gate entrance into the Tom Lee Park) that was closed to vehicle traffic (except Police, Fire, Dignitaries, and Handicapped) but was not closed to pedestrians. BU team had just been forced under threat of arrest to move out of the area closed to vehicle traffic when Attorney Nate Kellum (at the time retained and on the staff of the American Family Association, Tupelo MS) approached and offered any assistance in defending our rights of expression. He was shown the layout and after a year of efforts to resolve our dispute with Memphis police officials he subsequently filed a case in the UNITED STATES DISTRICT COURT.

KENNETH D. LANSING, Plaintiff, v. CITY OF MEMPHIS, THE PARK COMMISSION and MEMPHIS IN MAY INTERNATIONAL FESTIVAL, INC., defendants. Jon P. MaCalla, United States District Judge ordered on the 17 day of April, 1998, “Accordingly, the Court hereby permanently ENJOINS Defendants from prohibiting Mr. Lansing’s expressive activities within the leased areas of Riverside Drive outside the north and south gates.”

The CITY OF MEMPHIS did not appeal and even though MEMPHIS IN MAY did appeal and won, their appeal has had no effect (even though they have tried) on our expressive rights in the contested area because CITY OF MEMPHIS controls the area and the CITY OF MEMPHIS is permanently ENJOINED from prohibiting our expressive activities in the subject area. You may read the case by following the accompanying link. Constitutional Speech Protected, United States District Court, 1998 .

IN MY OPINION THE DECISION BY THE FEDERAL COURT PROVES THAT THE MEMPHIS CITY COUNSEL'S DECLARATION TO CLOSE A STREET TO NORMAL VEHICLE TRAFFIC DOES NOT ENTITLE THE BENEFICIARY OF THE CLOSED STREET (IN THIS CASE MEMPHIS IN MAY) THE RIGHTS ASSOCIATED WITH PRIVATE PROPERTY

COURT BATTLE TO RESTORE THE UNRESTRICTED USE OF POLES USED TO KEEP OUR BANNERS UNFURLED AND UP ABOVE THE CROWD IN THE BEALE STREET HISTORIC DISTRICT

 

On May 5, 2001 the Memphis Police Department denied us access to the Beale Street Historic District with our banner poles. We were again denied access in May, 2002 and every time we appeared on Beale Street thereafter. We have tried unsuccessfully to have this police department decision reversed by appealing to the city attorney to give some instruction to the police, to the police commissioner who turned it back to the officer who made the first decision and then a final appeal to that officer again. All the Memphis Police Department appeals were rejected and thus we were forced to appeal the decision IN THE UNITED STATES DISTRICT COURT. My attorneys, Nate Kellum and Jerry Lang of the CENTER FOR INALIENABLE RIGHTS, filed this action on January 10, 2003.

You may read the PLAINTIFF’S MEMORANDUM IN SUPPORT OF HIS MOTION FOR PRELIMINARY INJUNCTION by clicking HERE.

 

 

 

FINAL JUDGMENT BY CONSENT

Upon this Court’s Order granting Plaintiff’s Motion for Preliminary Injunction on May 2, 2003, the parties have determined that the Court has effectively ruled on the constitutionality of the City’s policy pertaining to poles attached to banners in the Beale Street Historic District. As no further discovery is necessary, the final resolution of this matter and controversy has been settled by and between the parties and accepted by the Court, as reflected herein.
IT IS on this ____7th________ day of ___August, 2003, ORDERED AND ADJUDGED as follows:
1. This Court hereby declares that the policy of the City of Memphis, and its representatives, concerning poles attached to banners in the Beale Street Historic District, as of May 2001 and 2002, during the Memphis in May Festival, is unconstitutionally vague under the guideline against plaintiff carrying an eight to ten foot banner-supporting pole in the Beale Street Historic District unless said policy or guideline is duly enacted by the City’s elected representatives, constitutes a reasonable time, place and manner restriction, is not susceptible to arbitrary enforcement, and is uniformly enforced.
3. This declaratory judgment and permanent injunction does not prevent the defendants from enforcing ordinances otherwise applicable to plaintiff that may operate to limit plaintiff from using his pole in the Beale Street Historic District.
4. There is no evidence that the defendants’ pole policy has been implemented in bad faith or because of an animosity toward plaintiff or his message.
5. No compensatory damages are to be paid in this matter.
6. Defendants shall pay the plaintiff the sum of $27,321.06 in full settlement of all claims for attorney’s fees and costs.
7. This Court shall retain jurisdiction of this action solely for the purpose of enforcing this Order, if such need should arise.

___________________________________ SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE

 

We rejoce in this victory and the liberty we have subsequently enjoyed todate, January 23, 2005 and trust that we will continue in this liberty with pleasant and cordial contact with the Police Officers on the Beale Street beat.

It is noteworthy to state that the case has for some unknown reason also granted to us the use of bullhorns. We never used them until the 2003 Blast and that mostly out of the Historic District. But since we were not stopped we pushed the envelope in 2004 and I have been using a 40 Watt blaster unimpeded all this winter of 2004/5.

"Lansing vs. City of Memphis,
The Memphis Park Commission and Memphis in May International Festival, Inc.",

LELAND M. McNABB
R. LAYNE HOLLEY
DAVID M. WALDROP ----
C. J. BARNETTT
LUCINDA S. MURRAY FONES
NICHOLAS E. BRAGORGOS*
NATHAN W. KELLUM*
CHRISTOPHER L. NEARN
MICHAEL W. HIGGINBOTHAM
CRAIG J. LAZAROV
PAUL T. MARTINI
KIMBERLY CROSS SHIELDS
J. CLAY COLE
WILLIAM H. FRYE

Also admitted in Texas
Also admitted in Mississippi
Also admitted in Florida

MAILLING ADDRESS
POST OFFICE BOX 382007
GERMANTOWN, TN 38183-2007
PLLC
ATTORNEYS AT LAW
FORUM 111, SUITE 222 1770 KIRBY PARKWAY
MEMPHIS, TENNESSEE 38138-7405

TELEPHONE: (901) 759.0075
FACSIMILE: (901) 752.3774

e-mail: mcnabbholley@earthlink.net

May 1, 1998
Kenneth D. Lansing
3060 Woodhills Drive Memphis, Tennessee 38128

RE: Lansing vs. City ofmemphis, The Memphis Park Commission and Memphis in May International Festival, Inc.

Our File No. 960495

Dear Ken:

IN THE UNITED STATES DISTRUCT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
D.c IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TW5p l@ pH 5: WESTERN DIVISION n4

Plaintiff,

V.

CITY OF MEMPHIS,
THE MEMPHIS PARK COMMISSION and MEMPHIS IN MAY
No. 97-3153 MI/A
INTERNATIONAL FESTIVAL, INC., Defendants.

MEMORANDUM OPINION AND ORDER

The complaint in this matter alleges that Defendants' actions violated Plaintiff's rights under the First and Fourteenth Amendments of the United States Constitution, as well as rights guaranteed by the Tennessee State Constitution. Plaintiff seeks a declaratory judgment to that effect, a preliminary and permanent injunction enjoining Defendants from prohibiting Plaintiff's expressive activities, compensatory damages, costs, and attorneys' fees.

On March 26, 1998,this matter was heard before the Court on a consolidated hearing on the merits, pursuant to Fed. R. Civ. P 65 (a). For the reasons set forth below, Defendants' motions for summary judgment are DENIED. The Court determines that Plaintiff is entitled to injunctive relief.

This document entered on docket sheet in compliance with rule 58 and/or 79 (a) FRCP ON 4-20-98

FINDINGS OF FACT

Plaintiff, Mr. Kenneth D. Lansing, brought this action challenging the constitutionality of the policies and actions by the City of Memphis, ("the City"), Memphis Park Commission and Memphis in May International Festival, Inc. ("MIM"). The Memphis Park Commission is a division of the City government, charged with the administration and operation of public parks in the City of Memphis. MIM is a Tennessee not-for-profit corporation. MIM’s mission is "to generate tourism and foster commercial international trade, as well as enhance the quality of life in the Memphis-Mid-South area, through the organization of public activities and programs focusing on foreign nations and diverse cultures." Parties’ Stipulation of Facts at ¶ 6 (hereinafter "Stipulations"). MIM promotes and sponsors a series of annual events in Memphis known as "Memphis in May".

These events include the Beale Street Music Festival, the World Championship Barbecue Cooking Contest, and the Sunset Symphony, all of which are events that require paid admission and take place in the area in and around Tom Lee Park, in downtown Memphis. Each year, Tom Lee Park is leased by MIM from the City of Memphis and the Memphis Park Commission for the purpose of

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putting on the aforementioned events, l which usually draw large crowds of between 200,000 and 500,000 persons each year. Mr. Lansing describes himself as a "Bible believer" and a Christian. He believes that his faith requires him to proclaim God's message in public through oral and written proclamation. He engages in public preaching, addresses individuals, hands out literature, and carriers a banner. Mr. Lansing, in order to discharge his perceived duty, seeks out locations where he has access to significant numbers of passerbys. He stands on sidewalks or other public ways, sometimes moving through crowds, and peacefully communicates his message. He alleges that the defendants have prevented him from doing so at the Memphis in May festivities since 1995.

In 1995, 1996, and 1997,2 the City and Park Commission leased Tom Lee Park and some of the surrounding areas to MIM for Memphis in May events. They have done so again for the 1998 Memphis in May events. The leased area includes a portion of Beale Street, as well as "Riverside Drive, if closed to traffic".

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1 Each of these three years, MIM has signed a lease from the City, and an "Agreement" with the Park Commission, which provides details as to the rights and obligations of the parties.

2 Although Mr. Lansing testified that he has been attending Memphis in May events since the 1980s, the complaint deals only with these three years.

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Riverside Drive is a public street in the City of Memphis and is four nes wide at most points. In each of the years 1995, 1996, 1997, the City passed a resolution closing Riverside Drive from Union Street to Georgia Avenue, as well as Beale Street, from Riverside Drive to Wagner Place,3 for the month of May. The resolution indicated that the streets were closed at MIM's request, and stated that "the Festival creates a significant economic impact for the City, brings international recognition to the City of Memphis[,] and promotes tourism and economic development." 1997 Resolution, Exh. K to Stipulations.

During the events for which tickets are required, there are two entrance gates, both located on Riverside Drive ("the south and north gates"). Only patrons with tickets or authorization are permitted to enter through the north or south gate into the event. The area MIM leases from the city extends further north of the north gate, and further south of the south gate, and is marked by temporary orange and white barrels and sawhorses on Riverside Drive.

According to the maps submitted as Exhibit 4 at the hearing and attached to the Stipulations, the portion of Riverside Drive

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3 The leased area of Beale Street includes the "street, sidewalks and public right of ways adjacent to and contiguous to the leased Beale Street Area." 1997 Lease, Exh. J to Stipulations.

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from the north gate to the northern end of the leased space is more than three blocks long. It crosses Beale, Peabody, Gayoso and ends at Union. From the scaled map attached to the Parties'Stipulations, it appears that the length of this area is approximately 1200 feet, or 400 yards. The portion of Riverside Drive that extends from the south gate to the southern end of the leased area is more than 3500 feet long, or over six-tenths of a mile (0.6 miles). Therefore, there is a substantial amount of Riverside Drive within the leased area, but still outside of the entrance gates. Although vehicles are not permitted within this area, any pedestrian may enter into the leased area without a ticket. According to Defendants, this area is used to facilitate preparation and implementation of the festival events.

MIM's counsel described it as an area for ingress and egress of the crowds going and to and from events, and the place where lines of people form to enter the gates.

Mr. Lansing seeks to engage in his religious and speech activities within the leased area of Riverside Drive, but outside the north and south gates.4 He has not, nor does he intend to, purchase a ticket to the events. On various occasions, before being asked to leave, he stood approximately 30 to 50 feet from

____________________

4 Sometimes, Plaintiff has had other people with him engaging in similar activities. He testified, however, that he is often alone.

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the north gate, and 60 to 75 feet from the south gate. He wants to stand in these specific areas because nearly all of the people going to or leaving from Memphis in May events must pass by one of these two points. In 1995, 1996, and 1997, MIM officials asked Mr. Lansing to move from Riverside Drive to the intersection of Beale Street and Wagner Place; essentially, he was asked to leave the leased area. When asked to move by MIM officials, he responded that he would only move if law enforcement officers asked him to move under threat of arrest. When officers asked him to move, he did so.5 Plaintiff asserts, and Defendants concede, that the location of Beale and Wagner will not allow Plaintiff access to as many people as he would have access to if he stood outside either of the entrance gates on Riverside Drive.6

After seeking assurances from the City in 1997 that he could stand on Riverside Drive, and eventually being told that he could not,7 Plaintiff filed this action, claiming that Defendants'

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5 In 1996, Mr. Lansing was asked to leave by a Deputy Sheriff from Shelby County. In 1997, Mr. Lansing was asked to leave by Memphis City police officers. The City of Memphis, though its police department, provides security and traffic control for the "Memphis in May" activities during the times of these events.

6 There is considerable pedestrian traffic that parks to the north of Tom Lee Park and walks south on Riverside Drive to the north gate that never passes by the intersection of Beale and Wagner.

7 On May 2, 1997, the City's attorney sent Plaintiff's counsel a letter, indicating the City's position that Mr. Lansing may engage in his expressive activities, "within the confines of the law", outside of the leased area only.

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actions constitute a violation of his rights under the United States and Tennessee constitutions. Defendants argue that Mr. Lansing may be prohibited from engaging in his speech activities within the leased area.

CONCLUSIONS OF LAW

A. Timeliness of Plaintiff's Claims

As an initial matter, the Court must determine the timeliness of Plaintiff's claims. Defendants are correct in their assertion that Plaintiff's claims based on events occurring in 1995 and 1996 are barred by the one-year statute of limitations applicable here. See Jackson v. Richards Med. Co., 961 F.2d 575,578 (6th Cir. 1992) (federal courts in Tennessee should apply the most analogous Tennessee statute for a civil right complaint). The complaint in this matter was filed on December 17, 1997. All claims arising in May of 1995 and May of 1996, therefore, are time-barred. The allegations arising from in May of 1997, as well as the injunctive relief sought by Plaintiff, are properly before the Court.

B. State Action Requirement

Absent state action, there can be no claim for a violation of constitutional rights under 42 U.S.C. § 1983. A private entity acting on its own cannot deprive a citizen of his First Amendment rights. Central Hardware Co. v. NLRB, 407 U.S. 539, 547 (1972); Ghandi v. Police Dep't of Detroit, 823 F.2d 959, 963 (6th Cir. 1987), Accordingly, the Court must also determine whether there is sufficient state action in this case to hold each Defendant liable.

MIM argues that it is a private party and that its actions are not attributable to the state. The City, similarly, argues

that, because it leased its property to MIM, and because MIM could ban who it wished, the City is not a proper Defendant.

1. The City and Park Commission

The City and the Park Commission's argument is unpersuasive and unsupported by authority. Through its police officers, its participation in the decision-making process, and its agreements the Memphis Park Commission and the City of Memphis can be held liable for the actions designed to curtail Mr. Lansing's speech.8 The active involvement by law enforcement officials in this case may constitute state action, and may render the City liable.9

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8 The actions of the Memphis Park Commission, as an organization operating under the structure of the City of Memphis, are imputed to the City of Memphis.

9 The Court acknowledges that the officers who work Memphis in May events are reserve (i.e., unpaid) officers. Stipulations at ¶ 26. Nonetheless, the officers were instructed by the City regarding where and when Mr. Lansing could engage in expressive activities and remain under the

8

See United States v. Coleman, 628 F.2d 961,964 (6th Cir. 1980) (in self-help repossession, police intervention and aid would constitute state action); Menchaca v.Chrvsler Credit Corp., 613 F.2d 507, 512 (5th Cir. 1980) (same). More importantly, the City determined in advance that Mr. Lansing could engage in protected activities only outside the leased space and asked the police to enforce that policy. Apparently they worked with MIM in making this decision. See Exhibits R, U, and V to Parties' Stipulations (letters from City's attorney to MIM attorney, to Mr. Lansing's attorney, and to Director of Police, Walter Winfrey, discussing the City's position regarding Mr. Lansing's speech). Thus, the City itself has participated in determining that MIM can ban Mr. Lansing from engaging in his expressive activities within the leased areas.

The City's primary argument at the consolidated hearing was that they had leased the space to a private entity and should thus be released from all liability. As described above, however, Defendants Memphis Park Commission and the City of Memphis, both through their decision-making and their police officers, have actively participated in barring Mr. Lansing's speech. Hence, there is action and involvement on the part of the City and the Park Commission.

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supervision of the Director of Police and the City. Moreover, the Court's decision does not rest on this ground alone.

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2. Memphis in May

While it is generally true that a private entity may not be held liable for a violation of an individual's rights under First and Fourteenth Amendments, even a private entity may be a state actor for some purposes. The Sixth Circuit acknowledges three tests for determining whether a private entity, such as MIM, is a state actor: (1) the public function test; (2) the state compulsion test; and (3) the nexus test.1O Ellis v.Garbarino, 48 F.3d 192, 195 (6th Cir. 1995).

Of these three, the Court determines that the nexus test is the most applicable here.ll The connection between MIM and the _________________________________

10 The nexus test is sometimes referred to as the symbiotic relationship test. See Adams v. Vandemark, 855 F.2d 312, 314(6th Cir. 1988)

11 While Plaintiff does not argue that MIM's actions satisfy the requirements of the state compulsion test, he does contend that the public function test is satisfied here. The public function test requires that the private entity exercise powers exclusively reserved to the State. Ellis, 48 F.3d at 195. Plaintiff argues that MIM accomplishes this here, by maintaining a public street, Riverside Drive. In Citizens to End Animal Sufferinq and Exoloitation v. Faneuil Hall, 745 F. Supp. 65 (D. Mass. 1990), the district court addressed the situation of a private entity that deterred demonstrators from gathering in open lanes of Faneuil Hall, a public marketplace leased to the entity by the City. The Court held that by prohibiting protestors from assembling in the lanes, the marketplace is deciding who can use a public road, under what circumstances. Rather than acting as a private contractor, therefore, the function performed by the marketplace is more akin to that of policeman, and constitutes a function that has traditionally been the exclusive domain of the state. Id. at 71-72. Accordingly, the Faneuil Hall court found state action under the public function test.

There is a distinction between Faneuil Hall and the present case, however. In Faneuil Hall, the city retained a public easement for the street running through the marketplace. By contrast, the lease of Riverside Drive to MIM is an exclusive use permit and does not explicitly reserve a public easement. The Court need not decide whether this distinction is dispositive, however, because the nexus test for state action is satisfied in the instant case.

10

City is sufficiently close to attribute the actions of MIM to that of the state under the nexus test. Under this test, "the action of a private party constitutes state action when there is a sufficiently close nexus between the state and challenged action of the private party so that the action of the latter may be fairly treated as that of the state itself." Hollev v. Deal, 948 F. Supp. 711, 715 (M.D. Tenn. 1996) (citation omitted).

Whether there is a sufficient nexus is a factual determination. As the Sixth Circuit has recognized, neither public funding, nor the fact that a private company leases space from a city, is sufficient, without more, to find the requisite nexus. Crowder v. Conlan, 740 F.2d 447, 450-51, 453 (6th Cir. 1984). Likewise, extensive regulation of a private entity, standing alone, is not sufficient. Id. at 453. That is, it is not enough that there is generally a symbiotic relationship between a private entity and the state. Rather, the nexus must be between the state and the challenged action itself.

In this case, there is a strong symbiotic relationship between MIM and the City. In addition to the general benefits that MIM bestows on the City, as evidenced by the City's

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resolutions closing Riverside Drive,12 MIM also receives funding from both the city and the State of Tennessee. MIM leases space from the City, and the City closes a large portion of a four-lane road each year at MIM's request. The City, through the Park Commission, dictates the timing and consumption of alcoholic beverages on the property, and the admission fees charged. Also, MIM is required to coordinate security and traffic control through the Memphis Police Department. No commercial speech in the form of advertising is permitted without prior consent of the Memphis Park Commission.

Importantly, the Agreement provides that the Park Commission receives fees for each vendor's booths, as well as a percentage of gross sales on beer. See Burton v. Wilminaton Parking Auth., 365 U.S. 715, 724 (1961) (restaurant's refusal to serve an African-American man was state action where restaurant was located in a municipally-owned parking garage, and the city profited from the success of the restaurant). Also, two of the nine members of MIM's Executive Committee are selected by City and county government representatives.

In addition to the ties enumerated above, the Court finds ______________________________

12 The City's resolution notes that MIM creates "a significant economic impact for the City."

12

that there is a sufficient nexus between the City and the restriction on Mr. Lansing's speech. As described above,13 the City has played a large role in determining where and when Mr.Lansing may speak, as well as providing police officers and instructing them to enforce that determination. Because of this, the Court finds that there is state action by MIM.

The district court in Faneuil Hall found state action with fewer connection between the private entity and the city. In Faneuil Hall, a sufficient nexus was found upon the private entity leasing the property from the city, the property leased being dedicated for public purposes, and the city deriving an economic benefit from the policies of the private entities. 745 F. Supp. at 73-74. These factors are certainly present here, in addition to all of the other indicia listed above. The relationship here is sufficiently close to label MIM a state actor.

Accordingly, the Court concludes that the state action requirement is satisfied here by each Defendant.

c. Restriction on Mr. Lansing's Speech

Having determined that there is state action on the part of ________________

13 See infra at 8-9.

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each Defendant, the Court must next determine whether the restrictions on Mr. Lansing's speech are a violation of his constitutional rights. 14

As set forth in the Court's findings, the restrictions imposed by Defendants prohibit Mr. Lansing from engaging in speech activity on Riverside Drive during the month of May. He has been, and will be, required to move to the corner of Beale and Wagner, about one hundred (100) yards from where he wants to be. He has not been, and presumably will not be, precluded from engaging in his speech activities from anywhere outside the leased area.

In determining the propriety of this restriction, this Court must judge (1) whether the speech deserves protection, (2) the nature of the forum, and (3) whether the proffered justification satisfies the appropriate standard. Bishop v. Reaaan-Bush '84 Comm., 819 F.2d 289, 1987 WL 35970 (6th Cir. 1987) (unpublished) (requiring this analysis where plaintiff was prohibited from attending political rally).

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14 Plaintiff has asserted causes of action under both the United States and the Tennessee constitutions. Although the Tennessee provision, Article I, Section 19, is "substantially stronger" than its federal counterpart, Press, Inc. v. Verran, 569 S.W.2d 435, 442 (Tenn. 1978), Tennessee courts rarely address the state standards and consistently discuss federal constitutional standards. See, e.g., State v. Smoky Mt. Secrets, 937 S.W.2d 905, 910 n.4 (Tenn. 1996). Accordingly, the Court's analysis under the federal constitution is applicable under the Tennessee constitution, as well.

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1. Type of Speech

There can be no question here that Mr. Lansing's speech falls into a category of speech fully protected by the First Amendment. Religious speech is entitled to the same protection as any other kind of speech. Capital Square Review and Advisory v. Pinette, 515 U.S. 753, 760 (1995); Widmar v. Vincent, 454 U.S. 263, 269 {1981) (religious worship and discussion, such as street evangelism, is a form of speech protected by the First Amendment). Oral and written dissemination of religious views is entitled to the utmost constitutional protection, Heffron v. International Soc'v for Krishna Consciousness, 452 U.S. 640, 647 (1981), as is the display of signs and placards. 485 U.S. 312, 318 (1988); Carey v. Brown, 447 U.S. Boos v. Barry, 455, 466-67 (1980).Likewise, the distribution of free religious literature is a type of communication well within First Amendment protection. Heffron, 452 U.S. at 647.

Moreover, the protection does not fade away merely because the speech is despised or controversial. See e.g., United States v. Eichman, 496 U.S. 310 (1990) (flag burning). As the United States Supreme Court explained:

[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they

15

are, or even disturbs people with anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech is protected against censorship or punishment. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.

Cox v. Louisiana, 379 U.S. 536,551 (1965) (editing marks and citation omitted).

There are different levels of protection for speech, however. Having determined that Plaintiff’s speech is worthy of protection, the Court must next determine what level of protection it should be afforded. In large part, this will turn on the forum where the speech is being regulated. Frisby v. Schultz, 487 U.S. 474, 479 (1988).
0.1. Nature of Forum

There are three types of fora: public, limited public, 15 and private. Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 802 (1985); Perry v. Educ. Ass’n v. Perry Local Educators’ Ass’n, 406 U.S. 37,45 (1983). Speech in traditional public fora, such as public streets and sidewalks, is entitled to

15 A limited public forum is a place the state opens for some period of time for either limited or unlimited use by the public for expressive activity. Perry, 460 U.S. at 45-46. In terms of levels of protection,a limited public forum is subject to the same standards as a public forum for the time that it is so designated.

16

greater protection than speech in a private forum. See e.g., Boos, 485 U.S. at 318 (public way within five hundred feet of foreign embassy); United States v. Grace, 461 U.S. 171,179 (sidewalk in front of Supreme Court) (1983). The capacity to limit expressive activity in public fora is severely restricted. Boos, 485 U.S. at 318.

Defendants argue that, although Riverside Drive is normally a public forum, because it is closed to traffic and part of the space leased to MIM, it should not be considered a public forum in this case. A traditional public forum, however, is not transformed into private property by government contract. The government "may not by its own ipse dixit destroy the ‘public forum’ status of streets and parks which have historically been public forums. . . ." United States Postal Serv. V. Council of Greenburgh Civic Ass’ns,453 U.S. 114, 133 (1981). See Irish Subcomm. V. Rhode Island Heritage Comm’n, 646 F. Supp. 347, 353 n.3 (D.R.I. 1986)("[t]o allow the government to limit traditional public forum property and thereby create within it a nonpublic forum would destroy the entire concept of a public forum"); see also Hague v. CIO,307 U.S. 496, 515 (1939) (Robert, J., concurring) ("Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of

17

assembly, communicating thoughts between citizens, and discussing public questions.")(emphasis added); see Bishop, 1987 WL 35970 at ¶ 3 & n.3 (6th Cir. 1987)(recognizing that it may not be possible to convert a public forum into a private one, simply by conferring exclusive use on a private party). But see Committee for Creative Non-Violence v. Hodel, 623 F. Supp. 528 (D.D.C. 1985)(Christmas Pageant of Peace, held on Washington D.C.’s Ellipse, was non-public forum because it was not opened to all expressive activity).

A Supreme Court decision that is instructive on this issue is United States v. Grace, 461 U.S. 171 (1983). In Grace, the Supreme Court held unconstitutional a ban on speech activities on public ways adjoining the Supreme Court building. Grace, 461 U.S. at 179. In reaching this conclusion, the Court acknowledged that government cannot convert a traditionally public forum, a sidewalk, into private property from which speech could be precluded. Id. At 180 (government may not "transform the character of the property by the expedient of including it within the statutory definition of what might considered a non-public forum parcel of property"). See Mahoney v. Babbitt, 105 F. 3d 1452 (D.C. Cir. 1997) (national park service prohibited from changing public forum status of sidewalk by behaving as private actor).

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The determination of the nature of the forum in this case is a difficult one. Plaintiff wishes to speak on a public street and its sidewalks- the quintessential public forum. Moreover, this portion of Riverside Drive is open to all pedestrian traffic. People do not need a ticket to enter this space, and Defendants concede that if a person were simply standing there, or sitting with a group of friends, they would not be asked to leave. However it is a leased area and the area is distinguished from the areas around it by barrels or other temporary indicators. In Grace, the Supreme Court noted that the sidewalks where speech was being restricted were not differentiated at all from other nearby sidewalks. 461 U.S. at 179.

Although the case of Hampton Int’l Communications, Inc. v. Las Vegas Convention & Visitors Auth., 913 F. Supp. 1402 (D. Nev. 1986) was not cited by the parties, the Court finds it helpful. In Hampton, the district court held that the ingress-egress walkways into a municipal convention center were not a public forum, despite the fact that members of the public could freely walk upon them. Id. at 1410, citing Greer v. Spock, 424 U.S. 828, 836 (1976). The Hampton court made this determination, however, based on the underlying purposes of the walkways:

The ingress and egress walkways at issue here have the appearance and clear purpose to assist Convention Center

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patrons in traveling between the privately-leased Convention Center and public areas. They do not constitute a public thoroughfare. They were created solely to manage the heavy pedestrian traffic which generally accompanies large privately-organized events for which the Convention Center was built.

913. F. Supp. At 1410.

Applying this same analysis to Riverside Drive, one of the underlying purposes of the street at any time other than May is to serve as a public forum.16 Indeed, Defendants do not dispute this. The question then becomes whether the leasing of the street to MIM, and its use by MIM as an ingress-egress passage, converts the "public forum" into a private forum. While this is a difficult question to answer, the Court finds that under the specific facts of this case, the area where Plaintiff wishes to engage in expressive activities is a public forum.

In so deciding, the court relies primarily on the facts that Riverside Drive is a traditional public forum, and that the area is accessible to the public generally, as pedestrian traffic may come and go as it pleases. See also Eagon v. City of Elk City, 72 F.3d 1480, 1486-87 (10th Cir. 1996) public park, in which annual holiday event was held and which is unavailable to any

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16 The Hampton case is also distinguishable in that it involved commercial speech, which can be more easily regulated without offending the First Amendment than the speech at issue here. Nonetheless, this fact did not affect the analysis of the nature of the forum.

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groups for other purposes during event was public forum, despite fact that the event was organized and operated by private non-profit groups); International Soc’y for Krishna Consciousness v. Schrader, 461 F. Supp. 714, 718 (N.D. Tex. 1978) ("Any suggestion that a tenant enjoys unfettered rights to exclude because its activity is wholly private ignores the dual role of the City as sovereign and as landlord in enforcing that censorship; it equally ignores the reality that public forum is not a concept controlled by the common law or real property, running with the land or reverting to and among tenancies."); City of Jamestown v. Beneda, 477 N.W.2d 830,838 (N.D. 1991) (public walkways within city-owned shopping mall is public forum, even though City assigned its interest in mall to private developer, who then leased space).
0.2. Constitutionality of Restriction

Within a traditional public forum, the prohibition of all communicative activity is simply unconstitutional. Perry, 460 U.S. at 45. Likewise, restrictions based on content are an impermissible violation of First Amendment freedoms, unless the restriction is necessary to serve a compelling interest and narrowly drawn to achieve that objective. Perry, 460 U.S. at 45; Gooding v. Wilson, 405 U.S.518, 520-21 (1972).

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A government may, though, enforce reasonable "time, place, and manner" restrictions, even in a public forum. Perry, 460 U.S. at 45. Time, place, and manner restrictions will be upheld as valid only if those restrictions are: (1) content-neutral; (2) narrowly tailored to serve a significant governmental interest; and (3) leave open ample alternative channels of communication. Id.

Whether the regulation of speech in this case is content-neutral is not clear. Defendants have, however, presented evidence that other individuals, such as street musicians, unauthorized vendors, and politicians passing out campaign literature, have all been asked to leave the same area that Plaintiff was asked to leave. The Court does not resolve this issue, though, because even under the lower standard for content-neutral regulations, Defendants’ restriction on Plaintiff’s speech is unconstitutional.

As noted above, in order for a content-neutral restriction on speech to pass constitutional muster, it must be narrowly tailored to serve a significant governmental interest and leave open ample alternative channels of communication. Perry, 460 U.S. at 45. Defendants’ restriction cannot meet either of these criteria.

22

Defendants proffered justification for asking Mr. Lansing to move was that they were concerned he might present either a safety problem, largely due to his banner, or that he might block pedestrian traffic. The affidavit of Ruth Hendrix, the bookkeeper for MIM, indicates that Plaintiff "was carrying a large top heavy sign inside the Leased Area." She states that she considered his presence, with the sign, to be a disruption to the flow of traffic and a threat to public health safety and convenience.

Assuming that these concerns constitute significant governmental interests, the Court remains skeptical that these concerns are the true basis for MIM asking Mr. Lansing to leave, precisely because the restriction (requiring him to leave the leased area) is not narrowly tailored to these concerns.

In order to regulate speech constitutionally, a restriction must be narrowly drawn so as not to infringe on protected speech. Grayned v. City of Rockford, 408 U.S. 104, 116-117 (1972). "Only by requiring these narrowly drawn and precise enactments that aim at specific conduct can courts produce a reasonable reconciliation of the minority’s right to protest, and the majority’s right to peace and order." Davis v.Francois,395

23

F.2d 730, 736(5th Cir. 1968).

A restriction is "narrowly tailored," if it targets only the precise evil it seeks to remedy. Frisby, 487 U.S. at 485. See e.g.,Grace, 461 U.S. at 180-84 (statute barring banners and displays from public sidewalk in front of Supreme Court was not narrowly tailored to serve significant governmental interest of maintaining proper order and decorum of Supreme Court building grounds); United Food and Commercial Workers Int’l Union v. IBP, Inc., 857 F.2d 422, 430-32 (8th Cir. 1988) (statute which set out numbers or distance restrictions on picketing was not narrowly tailored to serve significant government interest of regulating violence).

An analogous restriction to the ban enforced by the Defendants in this case was found not to be narrowly tailored in Citizens to End Animal Suffering and Exploitation v. Faneuil Hall Marketplace, 745 F. Supp. 65 (D. Mass. 1990). In Faneuil Hall, demonstrators were precluded from and arrested for handing out leaflets in between buildings of a marketplace that was leased and maintained by an private party. 745 F. Supp. At 67-68. The proffered content-neutral intent concerned the obstruction of passageways by patrons of the marketplace. Id. at 75. The district court, in finding this justification lacking, held that

24

the restriction of the speech was not narrowly tailored to the supposed objective.

There is no suggestion that defendant attempted to reduce the bulk of the demonstration by, for example, requesting that the group break up into smaller segments and spread out through other parts of the area in order to remove obstructions to the patrons’ access. Nor did defendant suggest that Plaintiffs could resume their demonstration during a less-crowded period. Instead, defendant simply gave Plaintiff a choice of either leaving, or being arrested.

Id.

Likewise, Mr. Lansing was not asked to take down his banner, nor was he asked to stay out of the way when a crowd formed.

Instead, he was simply asked to leave the leased area. This restriction does not target only the precise evil it seeks to remedy. Frisby, 487 U.S. at 485.

The fact that the restriction was not narrowly tailored is troubling because it indicates that the "interests" propounded by MIM may have been pretextual. For example ,the evidence regarding the sign did not indicate that it posed a danger; it was not particularly heavy, and certainly not so large that an individual could not control it.17 Mr. Lansing testified that no MIM official ever asked or told him he could stay without his

______________

17 The sign was four feet by six feet; it is a window shade attached to a light aluminum rod.

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sign. Nor was he ever told that there was a concern over his sign. These facts support the factual finding that the real motivation for asking him to leave was not a concern regarding his sign injuring someone, but simply that MIM officials did not want him speaking there at all, with or without a sign.

Likewise, the concern that his presence with the sign might cause a bottleneck in the pedestrian traffic seems exaggerated. While true that a large number of people pass through the area where Plaintiff wishes to stand and speak,they do not all pass through at the same time. 18 It is difficult to see how one man, or even two or three, preaching in this rather large area and handing out literature, could block pedestrian traffic on a long stretch of a four-lane road. Moreover, Plaintiff testified that there were bicyclists and rollerbladers allowed in the area, and that there were people milling about, sitting on the curb, or simply standing in small groups. Defendants did not produce evidence that any of the bicyclists or other people simply standing or congregating in small groups were asked to leave. It is unlikely that Mr. Lansing, more than any of these other individuals, would cause a bottleneck. Again, the Court

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18 Defendant Memphis in May’s counsel argued that there are a vast number of people who come to Memphis in May events, and that long lines can form. However, as the Court noted during the hearing, not all of these people enter the park at once. Even at peak times, the Court finds it unlikely that Mr. Lansing posed a threat either to security or to traffic flow.

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emphasizes that, while preventing bottlenecking could be a significant government interest, it appears to the Court not to be the actual concern of MIM officials in this case. In addition, no MIM official asked him to simply move out of the way of traffic or to stand to the side; they asked him to leave.

From the evidence presented to the Court, the Court is unpersuaded that Mr. Lansing presented either a threat to safety or that he blocked traffic flow. More importantly, Defendants’ restriction is not narrowly tailored to those governmental interests.

Morever, the prohibition here fails to leave open ample means of alternative channels of communication. Perry, 460 U.S. at 45. Mr. Lansing wishes to engage in a number of speech activities, ranging from holding up banners, leafleting, public proclamation of his message, preaching, Bible reading, counseling with individuals, and public prayer. Defendants prohibit all of these activities within their leased area during the month of May and the alternative they suggest will not provide Plaintiff with access to the same number of people.

Defendants assert that they do not actually require Mr. Lansing to stop his religious speech activities and insist that

27

Mr. Lansing is free to engage in his desired activities as long as he conducts those activities somewhere else or at some other time. MIM argues that, at any other time of the year, Mr. Lansing could engage in expressive activites on Riverside Drive. Adopting a similar position, Defendant City of Memphis advised Mr. Lansing that he has many available alternatives for communicating his message, as long as it does not include Riverside Drive during the month of May. This argument is unpersuasive. A viable alternative for Mr. Lansing’s message is not to say it in another area at another time. See Mahoney v. Babbitt, 105 F.3d 1452, 1459 (D.C. Cir. 1997) (government could not choose what public forum speaker could use, noting "it cannot rightly be said that all such forums are equal"). Mr. Lansing has strategically sought to speak on Riverside Drive because of the opportunity of communicating his message to the maximum number of individuals available at that time and place. Mr. Lansing is not afforded another opportunity to speak to the same people at any other location other than the desired location at the desired time.

Defendants also rely on a number of cases which involve the doctrine of compulsion of participatory speech. For example, in the Supreme Court case of Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995), the issue was whether the government, through a public accommodations law,

28

could require a private entity to include a message in its parade that they did not wish to convey. The Court held that the law could not. The Hurley Court determined that the parade was a form of expression deserving of First Amendment protection and that the participation of a group the parade organizers did not want to march in the parade would dilute and contradict the desired message of the council. The Court held the public accommodations law unconstitutional as it applied to the compulsion of parade organizers to accept the participation of undesired speech. Id. at 572-73.

Likewise, in Sistrunk v. City of Stongsville, 99 F 3d. 194 (6th Cir. 1996),the Sixth Circuit relied heavily on Hurley to find that an individual who wished to wear a political button expressing support for Bill Clinton at a political rally designed to campaign for then President Bush, could be prohibited from entering the rally wearing the button. Id. at 199-200.

As a critical finding in both Hurley and Sistrunk, the plaintiffs’ speech was found to interfere or be contrary to the organizer’s message. In Hurley, the Supreme Court emphasized that a parade constituted a form of speech. Hurley, 515 U.S. at 568-69. In Sistrunk, a public rally was likened to a parade and found to be a form of speech. The appellate court noted: "The

29

Committee here did not seek merely to assemble and ‘stand around,’ anymore than the parade organizers sought merely to reach a particular destination." Sistrunk, 99 F3d at 199

The Court agrees with Plaintiff that both of these cases are distinguishable, because both deal with the issue of participatory speech. Unlike a political rally or parade, the Memphis in May events involve minimal expression and no particular message. The whole idea behind a parade or a political rally is to convey a certain message to the public. This concern does not arise from a barbeque contest. Indeed, Defendant Memphis in May’s counsel admitted that there is no "message" that Memphis in May is trying to promote. If there is no message to be conveyed by the private entity, then there can be no contrary message. Even if Memphis in May did have a "message", however, there is no claim that Mr. Lansing has sought to speak on matters contrary to the beliefs of organizers of the barbeque contest. Neither does his speech interfere with the Music Festival or Sunset Symphony.

Sistrunk recognized that a person not seeking to participate, but merely to protest or spread a message nearby, could do so. 99 F.3d at 199 (a person who wanted to merely stand on the edge of the parade as it went by, and hold up protest

30

signs or shout protests, would be entitled to do so and plaintiff could have stood with her buttons on the sidewalk leading up to the rally); see Mahoney v. Babbitt, 105 F 3d 1452, 1456 (D.C. Cir. 1997) (holding that Hurley did not apply in the case of individuals wishing to display banners and signs critical of the President’s policies on a sidewalk along the route of an inaugural parade, because the plaintiffs only sought to stand on the sidewalk,and not participate in the parade); see also Invisible Empire of the Knights of the Klu Klux Klan v. Town of Thurmont, 700 F. Supp.281,190 (D. Md. 1988) (in ruling that NAACP could not participate in parade, court held: "The NAACP is certainly permitted to shout on the adjoining sidewalks"). Mr.Lansing only seeks to do that allowed in Hurley and Sistrunk, and upheld as a constitutional right in Mahoney: to convey his message on the outskirts of the events.
0.1. Propriety of Injunctive Relief 19

Where the plaintiff establishes a constitutional violation after a trial on the merits, the plaintiff is entitled to permanent injunctive relief upon showing: 1) a continuing irreparable injury if the court fails to issue the injunction; and 2) the lack of an adequate remedy at law. Dayton Christian

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19 Although Plaintiff has also requested damages in his Complaint, he did not present any proof as to damages. Accordingly, the Court does not address what damages, if any, are proper.

31

Schs., Inc. vs. Ohio Civil Rights Comm’n,766 F.2d 932, 961 (6th Cir. 1985) (quoting Newman v. Alabama, 683 F.2d 1312,1319 (11th Cir. 1982). The decision to grant or deny a preliminary or permanent injunction is with the sound discretion of the district court. See Wayne v. Village of Sebring, 36 F.3d 517, 531 (6th Cir. 1994).

Defendants have stated their intention to continue prohibiting Mr. Lansing from speaking within the leased area. Due to the reasons discussed above, this is a clear violation of Plaintiff’s constitutional rights, and, absent an injunction, he will suffer irreparable injury. Furthermore, it is clear that no remedy at law could adequately compensate Plaintiff for this restriction on his constitutional rights. Accordingly, the Court hereby permanently ENJOINS Defendants from prohibiting Mr. Lansing’s expressive activities within the leased areas of Riverside Drive outside the north and south gates.

IT IS SO ORDERED this 17th day of April, 1998.

Jon P. McCalla
United States District Judge

2000
How the Court Ruling Affected Us This Year

We´ve had an exciting May 2000. It is impossible to capture in words the blessings we had at the Blast 2000 the first weekend in May and the following weeks have been full of activity too. Just before the Blast I got a call from Tom Bailey Jr., the Commercial Appeal reporter that interviewed and wrote an article last year. I gave a lengthy phone interview in which I made it clear that I did not think the City of Memphis (Police Dept.) would interfere with our preaching activities on any of the streets in Memphis including the area approaching the Memphis in May event entrance, which was the only contested area in our lawsuit. Afterwards this headline appeared, "STREET PREACHERS MAY BE OFF-LIMITS AT MIM," subtitled, "Court reverses judge´s ruling."

The article included a picture of Doug Coates and others on 3rd and Beale with this caption, "In May 1999, street preachers were allowed downtown at Beale and Third because of U.S. District Judge Jon Mc Calla´s 1998 ruling that Memphis in May and the City of Memphis no longer should prevent their proselytizing in certain disputed areas." Now if you put this together you would think that all of downtown Memphis (rather than a 1 block contested area) would be free of all evangelists and the heathen could ´party-hardy´ without distractions or rebuke. Even though Nate Kellum (my attorney) and Tom Bailey of the Commercial Appeal contacted the City of Memphis Attorney´s office they wouldn´t utter a word in advance (that we know of) and still have not responded to Nate´s letter. My attorney´s letter told them that we did not consider the court´s reversal to affect me since the City did not appeal and in the earlier ruling they had been prohibited from infringing on my freedom of speech.

The truth of the matter is that the 1998 ruling had nothing to do with street preachers "downtown at Beale and Third." The ruling was over a disputed area, essentially one intersection at Beale and Riverside. What a joke! Beale and 3rd had nothing to do with the disputed area. And, "street preachers were allowed," is another joke in the same sentence. That´s like saying, "Newspapers finally were allowed to be printed because of a 1999 ruling." Street preachers have basically enjoyed the same freedom of expression the newspapers have since the Mayflower.

The headline, "Court reverses judge´s ruling," is a half-truth because only one defendant in the 1998 ruling appealed the ruling. Although the ruling was against the City of Memphis and Memphis in May, the City didn´t appeal. They paid my lawyer $29,000. That was it for Memphis! They had enough. I endorsed the check. Maybe it´s only 1/4th truth because reversing the ruling had nothing to do with whether I could preach in the disputed area. The appeal court didn´t say, "Memphis in May can now control the disputed area." The opinion actually stated, "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." Big deal. The City of Memphis already paid the bill. But, MIM thought it was great news for them- they thought they had me out. It seemed clear to them that since they are not a state actor they wouldn´t have to protect my ´freedom of expression´. Their problem however is that they never obtain complete control over the disputed area. The City of Memphis retains ultimate control outside the paid event area and the City of Memphis is a state actor. But the City of Memphis would not make a peep until they were forced to because they (I think) hoped we would be intimidated by Memphis in May.

I told Nate and others I didn´t think MIM would try to bother us at the Music Festival but instead would wait until the Barbeque Cooking Contest to push their weight around because that is their corporate sponsors party weekend. That´s what happened! Thursday about ten minutes after I unfurled my banner up came City of Memphis Police Officer Jackson in all his wrath and bluster and ordered me to the sidewalk because I was in the way. I asked him where these instructions came from and he said, "from the top," I think. I asked him if he was willing to go to court again over the issue. He didn´t care and didn´t want to talk about it. He was as hostile as he could be without actually striking me. He ordered me to the sidewalk and I thought I could live with that so I went to the sidewalk,called my attorney and commenced preaching from what turned out to be a superior location. Just across the street was the ticket booth with people four to five deep twenty yards long. But Memphis in May still wanted me out of the disputed area. So, after one message on ´The Party life will end in sorrow and tears´ another City Police officer came up and said I had to leave the disputed area. According to him they were no longer under the injunction like they were last year and I would have to leave. I told him Memphis had not appealed the lawsuit and then I told him the last officer had ordered me to the sidewalk. To make a long story shorter, he spent some time on his radio and a lieutenant arrived. When he got there I told him about the court case and he got on his radio to talk to the City Attorney. After a minute or two he said he would get back to me. After twenty or thirty minutes with no more activity, someone walked from behind me and said as he went by, "Well, I guess you won!" I replied. "Yeah, I guess I did!" Friday evening and night I took my position back in the middle of the disputed intersection of Beale and Riverside. During the ´watch´ the lieutenant came by in his command golf cart and asked how I was doing. I replied, "Just fine, how about you?" as he nodded his head and drove on by.

God gave the victory again and that´s how it turned out in May 2000!

Court reverses judge's ruling
By Tom Bailey Jr.

The Commercial Appeal

In a court battle over free speech between street preachers and Memphis in May, the festival has won Round Two.

As a result, thousands of people queuing up to enter the Beale Street Music Festival at Tom Lee Park next month may not be confronted by the banners and bellows of strident evangelists.

The music festival has drawn the attention of more and more street preachers from around the nation. About 100 converged here last year; as many as 200 are expected this year, when the event is scheduled for May 5-7.

But a federal appeals court has overturned U.S. Dist. Judge Jon McCalla's 1998 order that both the Memphis in May International Festival and the City of Memphis back off and allow the street preachers to proselytize in an area they covet for its dense pedestrian traffic.

The spot is outside the festival gates on Riverside Drive, where tens of thousands of people funnel into Tom Lee Park for the Beale Street Music Festival, World Championship Barbecue Cooking Contest and Sunset Symphony.

Memphis in May leases not only Tom Lee Park from the city, but also the area in question outside the main gate: 400 yards of Riverside Drive from Beale Street to Union Avenue and a section of Beale between Riverside and Wagner Place.

Street preacher Kenneth D. Lansing filed suit against Memphis in May and the city in 1997 after the festival, aided by police, ordered him to leave its leased areas on Riverside Drive in 1995, 1996 and 1997.

Festival officials said they asked Lansing to leave for two reasons: He was a safety hazard to the crowds, especially since he carried a large banner; and he clogged pedestrian traffic.

But Lansing and other street preachers were allowed back in front of the festival gates in 1998 and 1999 after McCalla ruled in Lansing's favor.

Memphis in May and the city unsuccessfully argued to the local federal court that because MIM is a private organization, it owes no one free-speech rights and can ban whomever it wants from the property it leases.

McCalla judged that MIM and the city are so heavily entwined that the festival was essentially taking government action when it banned the street preachers, thus violating their First Amendment rights to public expression.

The city accepted the verdict and paid Lansing's attorneys fees of $29,000. Memphis in May appealed.

In a Feb. 4 ruling, the Sixth U.S. Circuit Court of Appeals reversed McCalla's ruling.

"We hold that the district court erred in finding that Memphis in May was a state actor," Circuit Judge Martha Craig Daughtrey wrote in the opinion.

Also hearing the appeal was Chief Judge Boyce F. Martin Jr. and U.S. Dist. Judge Douglas W. Hillman of Michigan's Western District, who was designated to hear the case.

McCalla had cited a number of examples of how MIM was a "state actor" when it asked Lansing to move outside the barricades, the appeals court said.

McCalla noted the economic benefit the festival brings to the city. He also identified the city and state funding of the festival (less than 3 percent of total festival revenues).

He listed MIM's lease of city property and its payment of fees for vendor booths. And he noted city regulations on alcohol, advertising, traffic and security at the festival.

McCalla cited the presence of two public officials on the MIM board.

He noted communications between the city and MIM regarding Lansing. And he cited the police helping MIM move Lansing away from the gates.

But the appeals court stated, "Although a common sense perusal of this list might suggest that Memphis in May and the city cooperated in the presentation of Memphis in May events, mere cooperation simply does not rise to the level of merger required for a finding of state action."

Lansing is a Memphis CPA who also leads a street-preaching ministry called Banners Unfurled. He is an organizer of a national street-preachers' convention May 4-7 called Beale Street Blast 2000.

Despite the Sixth Circuit's decision, Lansing and his attorney, Nathan Kellum, said the ruling does not bar street preachers from the area.

The appeals court pointed out in its ruling that even though MIM leased the sections of streets for special use, the city retained ultimate control of the streets at all times.

Since the area continues to be under government control, Lansing's free-speech rights must be granted, Kellum said.

And, he noted, Memphis did not appeal McCalla's ruling that the city infringed on Lansing's free speech rights.

He said he wrote a letter last month seeking to clarify with the City Attorney's Office that police will permit Lansing to evangelize in the disputed spot. He had not received a response by Thursday, Kellum said. That response will determine whether they take further court action, such as an appeal of the Sixth Circuit's ruling.

City Atty. Robert Spence was unavailable for comment Friday. Attorneys Thomas J. Walsh Jr. and David J. Harris, who represent Memphis in May, were unaware of Kellum's letter to the city.

"The court, in effect, said we have the right to do it the way we've been doing it," Walsh said.

"That means sometimes asking politicians handing out campaign literature, unauthorized vendors and musicians, and street preachers to move a very short distance."

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This article was copied in full from gomemphis.com:
Only the page formatting has been modified. To reach reporter Tom Bailey Jr. , call 529-2388 or E-mail baileytom@gomemphis.com

Copyright, 2000, The Commercial Appeal, Memphis, TN. Used with permission. Visitors to this site are authorized to make one printout of the article for personal, non-commercial use only. No additional reproduction or distribution of this article in any form -- including but not limited to electronic, print, photocopy, audio, video and broadcast formats -- is permitted without the written permission of The Commercial Appeal.

04/21/98 TUE 17:05 FAX 901 752 3774 McNABB HOLLEY & WALDROP
Filed by: D.C.
UNITED STATES DISTRICT COURT 98 APR 17 PM 5:13 WESTERN DISTRICT OF TENNESEE
Robert R. Ditrolio Clerk, U.S. Dist. Ct. W.D. of TN, Memphis
WESTERN DIVISION
KENNETH D. LANSING	JUDGMENT IN A CIVIL CASE
VS.
CITY OF MEMPHIS, et al.	CASE NO: 97-3153 M1/A
DECISION BY COURT. This action came to consideration before the court. The issues have been considered and a decission has been rendered.
IT IS SO ORDERED AND ADJUDGED that, in accordance with the Memorandum and Opinion, entered April 17, 1998, judgment is ENTERED for Plaintiff. Defendants are hereby ENTERED permanently ENJOINED from prohibiting Mr. Lansing's expressive activities within the leased areas of Riverside Drive outside the north and south gates.
APPROVED: John Phipps McCalla UNITED STATES DISTRICT COURT Aug. 17, 1998 Date
Robert R. Ditrolio Clerk of Court Earline Grayer (By) Deputy Clerk

 

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Brother Ken Lansing
ken@winfarms.com
3060 Woodhills Dr.
Memphis, TN 38128
901 326-6379a

"Lansing vs. City of Memphis, The Memphis Park Commission and Memphis in May International Festival, Inc.", IN THE UNITED STATES DISTRUCT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION on 98 APR 17, CASE NO: 97-3153 M1/A. --"permanently ENJOINED from prohibiting Mr. Lansing´s expressive activities within the leased areas of Riverside Drive outside the north and south gates." The Court´s MEMORANDUM OPINION AND ORDER may be read by clicking here

MEMPHIS IN MAY INTERNATIONAL FESTIVAL, INC. appeals to United States Court of Appeals for the Sixth Circuit: Opinion was for MEMPHIS IN MAY INTERNATIONAL FESTIVAL, INC. 

Read how the Appellate Court Ruling Affected Us in 2000 and our response to the news coverage we got prior to the Beale Street Blast 2000.

Memphis Commercial Appeal says "Street preachers may be off-limits at MIM". Read the full article here. (Article written on 04-08-2000)

 

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Brother Ken Lansing
lansing1@concentric.net
3060 Woodhills Dr.
Memphis, TN 38128
901 386-2035