The opinion of the court was delivered by: MANNING
This matter comes before the court on the motion of plaintiffs, Chicago Acorn, SEIU Local No. 880, Ted Thomas and John Donahue, (hereinafter referred to as "plaintiffs"), requesting that this court grant a temporary restraining order allowing them to engage in a rally and protest at Navy Pier. This is a civil rights action brought pursuant to 42 U.S.C. Section 1983, 42 U.S.C. Section 1988, and 28 U.S.C. Section 2201, et seq. Plaintiffs' allege that their rights which are enumerated in the First Amendment to the United States Constitution are in great danger of being violated.
Plaintiffs are supporters of the Chicago Jobs and Living Wage Campaign, a movement which seeks to have the City of Chicago "adopt a municipal ordinance that would require city contractors and recipients of financial assistance pay their employees at least $ 7.60 per hour when they are employed on city contracts or projects receiving city assistance". Plaintiffs allege that the support of Chicago Mayor Richard M. Daley is crucial to the passage of the proposed ordinance. Thus, they wish to organize and protest, particularly directing their message to other Democratic party officials and mayors who support the Living Wage campaign in an effort to induce Mayor Daley to the bargaining table.
While the Democratic National Convention is scheduled to be held here in the city of Chicago, two related events are scheduled to be held at Navy Pier on August 24, 1996 and August 27, 1996. Mayor Daley is scheduled to attend both events. On August 24, 1996, a private media party is planned at which it is expected that no less than 25,000 persons will attend throughout the evening from 7:00 p.m. to 11:00 p.m. On that day, the Pier will close to the public at the conclusion of the Air and Water Show and will not reopen until it is time for the party. The attendees will all be invited guests and will be equipped with credentials. It appears that no one will be allowed without these credentials. The public will be excluded from the Pier for this event. On August 27, 1996, a reception will be held in the Terrace A section of the Pier. On that day, the Pier will be open to the public as the reception is expected to have no more than 300 persons. Many of the guests will be members of the National Conference of Mayors, as well as other dignitaries. It is also conceivable that the Vice-President will appear at one or both of the events.
Accordingly on August 24, 1996, plaintiffs wish to organize and participate in a public demonstration. Specifically, plaintiffs have asked to demonstrate on sidewalks in front of Navy Pier, along the sides of Navy Pier, inside the mall area of Navy Pier, at the bottom steps that lead up to the Crystal Garden, without obstructing these steps, and at other external entrances that will be used to enter the Crystal Garden, without obstructing these entrances. Plaintiffs also desire to distribute written information about the Living Wage Ordinance, asserting that the Mayor has refused to support it, invite the press and other persons to attend a tour of the low-wage workplaces that would be affected by the proposed ordinance, carry signs and banners, sing and chant. Lastly, plaintiffs desire to hang banners from boats in the water near Navy Pier also protesting the Mayor's refusal to support the Living Wage Ordinance.
On August 27, 1996, plaintiffs also wish to organize and participate in a public demonstration. On this date, plaintiffs wish to utilize the sidewalks outside the Terrace A area of Navy Pier, without obstructing the entrances to Terrace A. Plaintiffs wish to distribute written information about the proposed Living Wage ordinance and the mayor's refusal to support it and invite the press, mayors and other persons to attend a tour of low-wage workplaces that would be affected by the proposed ordinance. Additionally, they wish to carry banners, sing, and chant. Again, they wish to hang banners from boats in the water near Navy Pier to protest the Mayor's refusal to support the proposed Living Wage ordinance.
Navy Pier's policies and procedures provide that public demonstrations are prohibited without a permit granted by Navy Pier Management. Upon approval, the demonstration may occur only at the time, place and manner which is authorized by management.
ACORN's Field Director of Chicago, Madeline Talbott, testified that she was informed by staff at the Navy Pier on August 6, 1996 that the public areas of the Pier were reserved for the exclusive use of persons attending the welcoming reception for Democratic party officials. Plaintiffs sent a letter by telefax on August 7, 1996 to legal counsel for the Pier Authority describing their plans to hold protests at the Pier on these aforementioned dates. In that letter, plaintiffs reference information they allegedly received from an individual at Navy Pier's information booth, which indicated that their requests to protest would not be honored. Thus, Talbott contacted defendant's legal counsel, asking for reassurance that they would indeed be allowed to protest in the fashion described in the letter. On August 8, 1996, during a telephone conversation initiated by Talbott, the Director of Marketing at Navy Pier, Louise Sloan, told Talbott that the internal mall space of the Pier has been open to the public for charitable solicitation by some groups in the past. The record is clear, however, supporting the fact that plaintiffs still have not received a reply from defendants.
Plaintiffs bring this action seeking declaratory and injunctive relief seeking to bar defendant from banning plaintiffs' expressive activities at the Pier. Plaintiffs also request injunctive relief which orders defendants to allow such activity, and to adopt and implement neutral time and place restrictions. Plaintiffs assert that a temporary restraining order is needed in this case to prevent their first amendment rights from being violated.
In response, defendant Metropolitan and Pier Exposition Authority (hereinafter referred to as "defendant"), asserts that Navy Pier is not a public forum for the purposes of the First Amendment. Instead, defendant asserts that Navy Pier is a commercial and recreational center, which welcomes the public for the limited purpose of shopping, dining and entertainment. Because Navy Pier is not devoted to public assembly or debate, defendant asserts that its suggestion, which recommends that plaintiffs protest outside the South Dock entryway and in Gateway Park, directly across the street from the main access points, is reasonable and constitutionally permissible for a nonpublic forum. As an affirmative defense, defendants assert that plaintiffs failed to follow the established permit procedure to obtaining approval to demonstrate.
This court conducted an evidentiary hearing on the matter on August 20, 1996 and based upon the evidence presented, the written submissions and arguments of the parties, the motion for temporary restraining order is granted in part.
Freedom of speech has been recognized as one of the preeminent rights of Western democratic theory, the touchstone of individual liberty. In fact, Justice Cardozo characterized it as "...the matrix, the indispensable condition of nearly every other form of freedom." Palko v. Connecticut, 302 U.S. 319, 327, 58 S. Ct. 149, 152, 82 L. Ed. 288 (1937). Justice Holmes observed, "... it is...not free thought for those who agree with us, but freedom for the thought that we hate," which gives the theory its most enduring value. United States v. Schwimmer, 279 U.S. 644 at 654, 49 S. Ct. 448, 451, 73 L. Ed. 889 (1929) (dissenting opinion).
While there is an ongoing debate over whether political speech should be the exclusive concern of the First Amendment, there is no dispute that it is one of the First Amendment's primary concerns. That is, whatever differences that may exist about the interpretations of the First Amendment, almost universal agreement supports the conclusion that a major purpose of the amendment is the protection of free discussion regarding governmental affairs. "...Speech concerning public affairs is more than self-expression, it is the essence of self-government". Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S. Ct. 209, 216, 13 L. Ed. 2d 125 (1964).
The first amendment "bars the state from imposing upon its citizens an authoritative vision of truth. It forbids the state from interfering with the communicative processes through which its citizens exercise and prepare to exercise their rights of self-government. And the amendment shields those who would "censure the state or expose its abuses". Herbert v. Lando, 441 U.S. 153, 184-85, 60 L. Ed. 2d 115, 99 S. Ct. 1635, (1979). In the words of Justice Brennan, "the First Amendment embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government". Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 587, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980). It is with this historical background of the First Amendment that we must view the case before us.
Before this federal court can decide whether defendant can be enjoined from prohibiting plaintiffs' speech on its premises, we are bound by a two-step inquiry established by the United States Supreme Court. It is clear that the constitution restricts the power of the government to regulate speech. See e.g., Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 114, 93 S. Ct. 2080, 2092, 36 L. Ed. 2d 772 (1973). Yet, in order for this premise to apply to any case, it must be established that the entity at issue is a governmental entity sufficient for the application of constitutional standards. First, we must establish that defendant in this case should be held to constitutional standards when it attempts to regulate plaintiffs' activity on its premises. See Hudgens v. National Labor Relations Board, 424 U.S. 507, 96 S. Ct. 1029, 47 L. Ed. 2d 196 (1976)(absence of state action precludes application of constitutional standards). If so, the court must characterize the forum at issue, in order to determine the constitutional standards by which defendant's regulations and restrictions are to be judged. See Cornelius v. NAACP Legal Defense and Educational Fund., 473 U.S. 788, 797, 105 S. Ct. 3439, 3446, 87 L. Ed. 2d 567 (1985) (scope of right of expression is determined by type of forum involved).
Generally, state actors are subject to constitutional requirements. However, the conduct of private parties generally lies beyond the constitution's scope. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 114, 93 S. Ct. 2080, 2092, 36 L. Ed. 2d 772 (1973). While the principle of "state action" may be "easily stated, the question of whether particular ... conduct is private, on the one hand, or amounts to 'state action' on the other, frequently admits of no easy answer". Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S. Ct. 1965, 1971, 32 L. Ed. 2d 627 (1972). In some cases, conduct that is formally private may become so impregnated with a "governmental character" that it can be regarded as governmental action.
This is why this circuit has established four instances where the government will find state action sufficient to apply constitutional standards, despite the presence of a private party. In these cases, the governmental authority has dominated activity to such an extent that its participants must be deemed to act "with the authority of the state" sufficient for constitutional standards to apply. Sherman v. Community Consolidated School Dist., 8 F.3d 1160, 1168 (7th Cir. 1993). State action exists when there is a "symbiotic relationship" between the private actor and the state. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 721, 81 S. Ct. 856, 859, 6 L. Ed. 2d 45 (1961). Pursuant to the "nexus test", state action exists when the state commands or encourages private discriminatory action. See Rendell-Baker v. Kohn, 457 U.S. 830, 840, 102 S. Ct. 2764, 2770, 73 L. Ed. 2d 418 (1982). State action also exists when a private party performs on a traditionally public function. Sherman, 8 F.3d at 1168. Last, state action is present when the involvement of governmental authority aggravates or contributes to the unlawful conduct. Sherman, 8 F.3d at 1168. Determination of these factors is largely a fact-specific inquiry that examines the particulars of the relationship of the state to the alleged private entity. See Burton, 365 U.S. at 725.
If the court determines that state action exists, the first threshold has been met. In this instance, the party is regarded as a governmental actor sufficient to apply constitutional standards. Finding this, the court must examine the nature of the property that the potential speaker desires to use. A potential speaker's rights depend in part, upon the type of government property that the speaker seeks to access. See Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44, 103 S. Ct. 948, 954, 74 L. Ed. 2d 794 (1983).
The traditional public forum, typically defined as an area like a sidewalk or a park, has traditionally been used for expressive activity. Perry, 460 U.S. at 45. The designated public forum is defined as an area that the government has dedicated to use by the public as a place for expressive activity or, in some cases that area that may be opened generally for all expressive activity. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S. Ct. 1239, 43 L. Ed. 2d 448 (1975). In some cases, designated public forums have existed for more limited purposes, i.e. use by certain groups. See Widmar v. Vincent, 454 U.S. 263, 102 S. Ct. 269, 70 L. Ed. 2d 440 (1981). Whether a public forum is traditional or designated, the restrictions on the governmental entity are the same. That entity may only enforce exclusions of speech that are content-based, if there is a showing that the restriction is necessary to serve a compelling state interest and if the exclusions are narrowly drawn to achieve that end. Perry, 460 U.S. at 45-46. The third type of forum, a nonpublic forum, only requires that restrictions on speech be reasonable and not discriminate on the basis of viewpoint. Perry, 460 U.S. at 45-46.
This determination requires us to examine the government's intent in its establishment and maintenance of the property. Cornelius, 473 U.S. at 802, 105 S. Ct. at 3448. This inquiry is not merely a matter of deference to defendant's stated purpose. Instead, we examine two factors to determine intent: (1) the policy and practice of the government with respect to the property and (2) the nature of the property and its compatibility with expressive activity. Air Line Pilots Association International v. Department of Aviation of the City of Chicago, 45 F.3d 1144, 1151 (7th Cir. 1994).
First, our examination of the government's intent requires a factual inquiry into its policy and practice. Cornelius, 473 U.S. at 802. Because it is virtually impossible to identify a public forum by legal inquiry alone, a district court is required to develop findings on matters such as the forum's past uses, and the government's consistent policy and practice. Air Line, 45 F.3d at 1152. This inquiry is one that should not be resolved without due attention to an underlying record. Air Line, 45 F.3d at 1152. By doing this, we avoid giving deference to the dangers of post-hoc policy formulation or to the discretionary enforcement of an effectively inoperative policy. Air Line, 45 F.3d at 1153. In other words, the government cannot "create" a policy to implement its newly-discovered desire to suppress a particular message nor invoke an otherwise unenforced policy to justify that suppression. Air Line, 45 F.3d at 1153. We must review the entire record to make sure that we are not deceived by such a policy.
"If a state wishes to rely on a 'policy' to demonstrate that it has not in fact opened a channel for expressive communication, however, that policy must be something more than a strategy adopted or relied upon for the purposes of litigation. A stated or paper policy, without more, does not negate public forum status". Air Line, 45 F.3d at 1153.
If we find that our review of the government's policy and practice leads us to conclude that this forum has indeed been designated for expressive activity, we are then required to determine whether the forum at issue is compatible with expressive activity. Cornelius, 473 U.S. at 802. If there is any indication that the proposed type of expression is incompatible with the purpose of the forum, that factor would indeed be relevant. Air Line, 45 F.3d at 1156. Our circuit, however, has drawn a very distinct line -- mere objection to the "incompatibility" of a proposed message is not a permissible basis for avoiding public forum status. Air Line, 45 F.3d at 1157.
Thus, our mission is clear. As a district court, we are charged to focus primarily on the practice and past policy of defendant's property in order to determine if it, indeed, operated for all intensive purposes as a designated public forum. Air Line, 45 F.3d at 1157. If this court finds past policy and practice inconclusive, it must also examine, whether the type of expression is incompatible with the nature of the property. Air Line, 45 F.3d at 1157. After examination of these two factors, we can then conclude whether defendant's property is a designated public forum. Air Line, 45 F.3d at 1157. If we reach this determination, defendant's ...