Peters v. Metropolitan Government of Nashville and Davidson County, Tennessee

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

JEREMY PETERS AND KENNETH )

WINSLOW )

)

Plaintiffs, )

) Case No. 3:18-cv-00564

v. )

) JUDGE CAMPBELL

METROPOLITAN GOVERNMENT OF ) MAGISTRATE JUDGE NEWBERN

NASHVILLE AND DAVIDSON )

COUNTY, TENNESSEE, et al., )

)

Defendants. )

MEMORANDUM

Pending before the Court is a motion for summary judgment filed by Defendant

Metropolitan Government of Nashville and Davidson County (“Metro”) (Doc. No. 177). In

support of the motion, Metro filed a memorandum of law (Doc. No. 178) and statement of

undisputed material facts (Doc. No. 179). Plaintiffs Jeremy Peters and Kenneth Winslow

responded to the motion (Doc. No. 183) and the statement of facts (Doc. No. 184), and filed a

statement of additional disputed facts (Doc. No. 185). Metro filed a reply (Doc. No. 188) and

responded to Plaintiffs’ statement of facts (Doc. No. 189).

For the reasons stated herein, Defendant’s motion for summary judgment (Doc. No. 177)

will be GRANTED.

I. BACKGROUND

The Bridgestone Arena is an entertainment venue owned by the Sports Authority of the

Metropolitan Government of Nashville and Davidson County (“Sports Authority”). The Arena

was constructed in 1997 to house Nashville’s professional hockey team, the Nashville Predators

and to present “cultural, educational, entertainment, business, sporting, social and other public

events.” (See Management Agreement (2012), Doc. No. 179-1 at PageID# 2037, 2050). The

Bridgestone Arena property includes the building and outdoor plaza areas adjacent to the

building (collectively, the “Arena”). (Def. SOF at ¶ 10). It undisputed that the Arena has

commercial purposes. (Id. ¶ 18).

Powers Management LLC (“Powers”) has managed and operated the Arena since at least

2002.1 (Def. SOF ¶¶ 1, 11; Powers Decl., Doc. No. 179-5 at ¶ 5). In furtherance of these

management responsibilities, Powers implemented policies and procedures regarding use of the

Arena (the “Arena Policies”), including policies prohibiting the use of any “noise/voice

amplification device,” and distribution of “flyers, pamphlets, leaflets, [and] brochures” without

express written consent from the Arena.2

At issue here is the application of these policies to the main outdoor plaza (the “Plaza”).

Individuals and entities leasing the Arena facilities have the full use of the Arena, including the

Plaza, and may permit sponsors, performers, or vendors to use portions of the Plaza for purposes

of promoting or selling merchandise or other materials, advertising, or conducting activities in

1 The Second Amended and Restated Operating Management Agreement (“Management

Agreement”) between Powers and the Sports Authority grants Powers “the exclusive right to operate and

manage the Arena” from July 1, 2012, until July 1, 2019. (See Management Agreement, Doc. No. 179-1).

The Management Agreement was in effect until the execution of a Lease Agreement between the Sports

Authority and Powers dated July 1, 2019. (See Lease Agreement, Doc. No. 179-2). The Lease Agreement

“leases to Powers … the Premises for the purpose of managing and operating the Arena owned by the

Authority.” (Id.).

2 The Management Agreement and the Lease Agreement authorized Powers to “[i]mpose and

enforce such rules and regulations governing the use of the Arena as [Powers] deems necessary from time

to time (acting reasonably and subject to prior consultation with the Sports Authority with respect thereto)

to ensure that the Arena is used in a manner consistent with the terms of this Agreement.” (Doc. Nos.

179-1, 179-2).

The same Arena Policies were in effect at all times relevant to the claims in this case. (Def. SOF

¶ 12). Although some of the Arena Policies were amended in March 2018, no substantive changes were

made to the policies at issue.

2

connection with the event. (Def. SOF ¶¶ 20-22). In addition to these activities, the Plaza is used

for entry and exit to the Arena building and as a security screening area. (Id.).

During events, Powers sets up bicycle racks to delineate the Plaza area from the public

sidewalk. (Id. ¶¶ 29, 30). When events are not being held, the Plaza serves as a public

throughfare, no barricades are in place to physically delineate the Plaza area from the adjacent

public sidewalks, and the surface of the Plaza is physically indistinguishable from the

surrounding sidewalks. (Pl. SOF ¶¶ 26-27).

During events, Powers utilizes a security team that includes private security and Metro

Nashville Police Department (“MNPD”) officers. Powers and MNPD have agreed on a protocol

to address violations of Arena Policies pursuant to which someone from Powers or its designee is

responsible for addressing the violation with the individual and presenting them with the choice

of discontinuing the violation or leaving the property. (Id. ¶¶ 42-43). If the individual refuses

either option, Powers can enlist the assistance of MNPD officers and may opt to prosecute that

person for trespassing. (Id. ¶ 44). MNPD officers do not proactively enforce Arena Policies, but

they may advise individuals that they may be subject to criminal liability for trespass if they do

not discontinue the conduct or relocate to an area outside the Plaza. (Id. ¶ 45). MNPD officers

have never arrested anyone for violation of the Arena Policies or for trespass. (Id. ¶¶ 47-48).

On more than one occasion in 2017 and 2018 when the Arena was being used for events,

Plaintiffs Jeremy Peters and Kenneth Winslow went to the Arena Plaza to share their religious

messages with event attendees using voice amplification and, at times, distributing religious

literature. (See Declarations of Powers and Winslow, Doc. Nos. 185-1, 185-2). When their

conduct violated the Arena Policies, they were asked to either cease the conduct or leave the

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Plaza. (Id.). Plaintiffs were advised that if they did not do so they would be arrested for

trespassing. (Id.). Plaintiffs were never arrested, but they claim the threat of arrest caused them to

leave the Plaza and stand behind the bicycle racks at the perimeter of the Plaza. (Id.). They claim

this distance from event attendees prevented them from effectively communicating their message

with their intended audience. (Id.).

Both Plaintiffs bring facial challenges to the Arena Policies on amplification and

leafletting.3 Peters also challenges the Arena Policies as applied to him on four specific

occasions: November 8, 2017 (CMA Awards), December 31, 2017 (New Years’ Eve event),

February 2, 2018 (CCM Winter Jam), and June 6, 2018 (CMA Festival).4

A. November 8, 2017

On November 8, 2017, the Arena was hosting the Country Music Association (“CMA”)

Awards. Peters and Winslow were preaching in the Plaza using an amplification device. Peters

“was threatened with arrest for trespassing if [he] did not move off the plaza” while he was

preaching with an amplification device inside the barricades erected around the Plaza. (Id. ¶ 54).

Peters continued to preach in the Plaza and eventually left the area of his own accord. (Id. ¶ 55).

Peters and Winslow claim that the threat of arrest caused them to “preach[] in fear” and to leave

3 The Amended Complaint also raises a facial challenge to the Arena Policy on handheld signs.

(Doc. No. 80 ¶¶ 34-37). The specific policy challenged in the Amended Complaint banned handheld signs

that are “distasteful in nature or content.” (Id.). This policy was amended in October 2020 and is no

longer in effect. (Def. SOF ¶¶ 35, 36). Accordingly, Plaintiffs’ facial challenge to the pre-2020 sign

policy is moot.

4 Although Peters and Winslow were together and engaging in similar activities on most of these

dates (Winslow was not present on December 31, 2018), Winslow does not allege violations of his

constitutional rights on any of these dates. (See Amended Complaint, Doc. No. 80). Winslow’s claims

related to distribution of literature in the Plaza during PredsFest on September 29, 2019, were dismissed.

(See Memorandum and Order, Doc. Nos. 147, 148). Accordingly, Winslow’s remaining claims are facial

challenges to the Arena Policies.

4

sooner than they otherwise would have.5 (Id.; see also, Winslow Decl., Doc. No. 185-2 at ¶ 4).

Peters posted a video of this interaction to his YouTube account.6 (Id. ¶ 53).

B. December 31, 2017

On December 31, 2017, the Arena was hosting a New Years’ Eve event. (Pl. SOF ¶ 6).

Peters was in the Plaza, inside the barricades, preaching through a voice amplification device

when an MNPD officer informed him that he could continue to preach in the Plaza, but could not

do so with amplification. (Id. ¶¶ 59-61). Peters posted a video of this interaction to his YouTube

account.7 (Id. ¶ 57).

C. February 2, 2018

On February 2, 2018, the Arena was hosting CCM Winter Jam. Peters was outside the

Plaza on the public sidewalks preaching with a voice amplification device. (Id. ¶ 64). He was not

threatened with arrest, told to stop using his amplifier, or otherwise prevented from preaching on

that date. (Id. ¶ 65). While Peters was preaching from the public sidewalk, Winslow was in the

5 Defendant objects that Winslow’s Declaration contradicts his deposition testimony during which

he stated that he could not remember if anyone asked him to leave or move from where he was preaching

and that he was able to exercise his freedom of speech that day and was not restricted from expressing his

message in any way. (Winslow Dep., Def. Ex. K at 99, 105). Because these statements may reflect a lapse

in memory and do not directly contradict the Declaration, the Court will, as it must, construe the facts in

the light most favorable to the non-moving party and presume, for purposes of this motion, that Winslow

was threatened with arrest. The Court notes that Winslow does not identify who made the threat. (See

Winslow Decl., Doc. No. 185-2 at ¶ 4 (“I was told I had to leave the Plaza, and that if I did not, I would

be arrested.”)).

6 The parties agree the video was posted at https://www.youtube.com/watch?v=2WkQOS YuC0.

(See Def. SOF ¶ 53). The video is not currently available at that URL.

7 The video is available online at https://www.youtube.com/watch?v=VJpTt3ZI51s (last visited

Aug. 12, 2024).

5

Plaza distributing Gospel literature.8 (Pl. SOF ¶ 17). An MNPD officer told Winslow that if he

did not stop handing out literature, he would be arrested. (Id.). Winslow opted to stop

distributing literature. (Id.).

D. June 6, 2018

On June 6, 2018, the 2018 Country Music Television (“CMT”) awards show was held at

the Arena. (Id. ¶ 67). Fifth Avenue, which runs adjacent to the Plaza, was partially closed and

barricaded off, pursuant to a permit issued by Metro to the CMA. (Id. ¶¶ 68, 70). Peters and

Winslow claim to have observed the barricades encroaching on the public sidewalk. (Winslow

Decl., Doc. No. 185-2 ¶ 17). As during the other events, Peters and Winslow were outside the

Arena to share their religious message with event attendees using a voice amplification device.

(Winslow Decl., Doc. No. 185-2 ¶ 11; Peters Decl., Doc. No. 185-1 ¶ 20; Def. SOF ¶ 71). Peters

and Winslow claim they were told that they would be arrested if they did not leave the Plaza and

the sidewalk. (Peters Decl., Doc. No. 185-1 ¶ 22; Winslow Decl., Doc. No. 185-2 ¶ 13).

The video of the interactions that Peters posted to his YouTube account provides

additional detail.9 (See Def. SOF ¶ 66). The video shows that Peters was preaching on the public

sidewalk area between the barricades set up on the Plaza and Fifth Avenue when he was

informed by a white male in a black t-shirt that he could not be in that area. (Id. ¶ 72-73 (citing

video at 4:36-5:00)). The parties agree this person was not employed by Powers and was not

wearing a police uniform. (Id. (citing video at 4:36-5:00 and Powers Decl. ¶ 34)).

8 Defendant again objects that Winslow’s Declaration contradicts his deposition testimony during

which he stated that he did not remember whether he had any interactions with MNPD on that date.

(Winslow Dep., Def. Ex. K at 117). As stated above, Winslow’s present recollection of the events does

not directly contradict his deposition testimony.

9 The video is available online at https://www.youtube.com/watch?v=ZQJWJLOoEWs (last visited

Aug. 12, 2024).

6

The video also shows Peters preaching in the Plaza using a voice amplification device

when he was informed by one or more uniformed police officer(s), who were not MNPD

officers, that he needed to move to the public sidewalks on the north side of the Plaza near

Broadway or to the other side of the barricades set up on Fifth Avenue. (Def. SOF ¶ 76 (citing

video at 5:54-7:20)). After receiving that warning, Peters and/or Winslow asked what would

happen if they continued to preach in the Plaza, at which time they were informed by a police

officer employed by the City of Goodlettsville that they could be arrested for criminal

trespassing. (Id. ¶ 75). After being advised that they could be arrested for trespass, Peters moved

to the south end of the Plaza, outside of the barricades, where he resumed preaching. (Id. ¶ 77

(citing Peters Dep. at 135)). Peters later resumed preaching inside the Plaza without further threat

of arrest. (Id. ¶ 78 (citing Peters Dep. at 135-36)).

II. ANALYSIS

A. Section 1983

Plaintiffs bring this case under 42 U.S.C. § 1983, which provides a mechanism for civil

claims for violation of a federal right by a person acting under color of law. See Kottmyer v.

Maas, 436 F.3d 684, 688 (6th Cir. 2006). Municipalities and local governments “cannot be held

liable under § 1983 on a respondeat superior theory.” Monell v. N.Y.C. Dept. of Social Servs.,

436 U.S. 658, 691 (1978). Plaintiffs must show that the municipality of local government itself is

responsible for the alleged civil rights violation through either its adoption or enforcement of an

official policy or a custom “so widespread as to have the force of law.” Bd. of Cty. Comm’rs of

Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997). Thus, in order to sustain a constitutional claim

against a municipality or local government, a plaintiff must prove, “(1) that a violation of a

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federal right took place, (2) that the defendants acted under color of state law, and (3) that a

municipality’s policy or custom caused that violation to happen.” Bright v. Gallia Cty., 753 F.3d

639, 660 (6th Cir. 2014). The plaintiff must “identify the policy, connect the policy to the

[municipality] itself and show the particular injury was incurred because of the execution of that

policy.” Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993).

Plaintiffs contend Metro is subject to municipal liability for the alleged constitutional

violations on various theories, including that Metro adopted the Arena Policies. The parties are,

of course, not in agreement on this issue. Metro contends the Arena Policies are not a

“government action” because the Arena is privately operated and managed by Powers and the

Arena Policies were created and implemented by Powers, a private entity, as part of its

operations and management obligations. (Doc. No. 178 at 8-12). Plaintiffs disagree. They argue

that even if Powers manages and operates the property, Metro cannot “hide behind Powers” and

“abdicat[e] its responsibility to protect the constitutional rights of its citizens in public fora.”

(Doc. No. 183 at 9). Plaintiffs also dispute Metro’s contention that it had no role in developing

the Arena Policies. Plaintiffs point to provisions in the Management Agreement and Lease

Agreement that authorize Powers to develop regulations “subject to prior consultation with the

[Sports] Authority.” (Id. at 5 (citing Management Agreement, Doc. No. 179-1 at PageID# 2053;

Lease Agreement, Doc. No. 179-2 at PageID# 2122)).

For reasons explained below, the Court finds the Arena Policies survive constitutional

scrutiny. Accordingly, the Court need not decide whether the Policies are, in fact, attributable to

Metro. Therefore, for purposes of this motion, the Court assumes, without deciding, that the

Arena Policies are a government regulation on speech.

8

B. First Amendment10

The Free Speech Clause of the First Amendment, which is applicable to state and local

governments through the Fourteenth Amendment, limits the government’s power to regulate

speech on public property. Const., Amend. I.; Am. Freedom Def. Initiative v. Suburban Mobility

Auth., 978 F.3d 481, 485 (6th Cir. 2020); Sisters for Life, Inc. v. Louisville-Jefferson Cty., 56

F.4th 400, 403 (6th Cir. 2022).

“[W]hen a plaintiff alleges that government action has interfered with protected speech,

to determine whether a First Amendment violation has occurred, the court must evaluate: (1)

whether the speech at issue is protected; (2) the nature of the forum in which the speech

occurred; and (3) whether the government’s action is justified under the requisite standard.” New

Century Foundation v. Robertson, 400 F. Supp. 3d 684 (M.D. Tenn. 2019) (citing Cornelius v.

NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985), and Bible Believers v. Wayne

Cty., Mich., 805 F.3d 228, 242 (6th Cir. 2015)).

There is no dispute that Plaintiffs’ amplified preaching and leafletting fall within the

scope of speech protected by the First Amendment. At issue is the nature of the forum and

whether the Arena Policies are justified under the requisite standard. The Court begins with the

nature of the forum, which determines the standard under which the Court considers whether the

restrictions are justified. See Ison v. Madison Loc. Sch. Dist. Bd. of Ed., 3 F.4th 887, 893 (6th

10 Plaintiffs’ claims are based on alleged violations of their First Amendment rights to free speech

and free exercise of religion. (See Amended Complaint, Doc. No. 80). Plaintiffs agree that their free

speech and free exercise claims which are “pursued in tandem and involve the same conduct, religious

speech,” may be considered together. (Doc. No. 183 at 30 (citing Bible Believers v. Wayne Cty., 805 F.3d

228, 256 (6th Cir. 2015) (en banc)). Accordingly, the analysis and disposition of the free speech claim

applies equally to the free exercise claim.

9

Cir. 2021) (“The strength of the First Amendment protection, and the level of justification

required for a speech restriction, varies depending on the forum where the speech occurs.”).

1. The Nature of the Forum

“The Supreme Court has recognized three types of public fora: the traditional public

forum, the designated public forum, and the limited public forum.” Miller v. City of Cincinnati,

622 F.3d 524, 534 (6th Cir. 2010) (citing Pleasant Grove v. Summum, 555 U.S. 460 (2009)). “A

nonpublic forum, in contrast, is a government-owned property that is not by tradition or

governmental designation ‘a forum for public communication.’” Id. (citing Helms v. Zubaty, 495

F.3d 252, 256 (6th Cir. 2007)).

A traditional public forum is a type of property that has traditionally been available for

public expression. The quintessential examples of traditional public fora are streets, sidewalks,

and public parks, because as “the Supreme Court has explained that from ‘[t]ime out of mind

public streets and sidewalks have been used for public assembly and debate, the hallmarks of a

traditional public forum.’” United Church of Christ, 383 F.3d at 452 (quoting Frisby v. Schultz,

487 U.S. 474, 480 (1988)); see also, Perry Educ. Ass’n v. Perry Local Educ. Ass’n, 460 U.S. 37,

45 (1983) (explaining that streets and parks “have immemorially been held in trust for the use of

the public, and, time out of mind, have been used for purposes of assembly, communicating

thoughts between citizens, and discussing public questions” and are therefore traditional public

fora).

A designated public forum is created when a government intentionally opens a

nontraditional public forum for public discourse. Miller v. City of Cincinnati, 622 F.3d 524, 534

(6th Cir. 2010) (citing Cornelius v. NAACP Legal Defense & Educ. Fund Inc., 473 U.S. 788, 802

10

(1985)). “Governmental intent is the ‘touchstone’ of a court’s analysis in determining whether it

has created a public forum.” Id. (citing Kincaid v. Gibson, 236 F.3d 342, 348-49 (6th Cir. 2001)).

To determine governmental intent, courts ‘look to the government’s policy and practice with

respect to the forum as well as to the nature of the property at issue and its ‘compatibility with

expressive activity.’” Id. “A government may [] transform a publicly-owned property into a

public forum by making it ‘a place or channel of communication for use by the public at large for

assembly and speech, for use by certain speakers, or for the discussion of certain subjects.’” Id.

When the Government designates a property as a public forum, it is not required to “indefinitely

retain the open character of the facility,” but so long as it does so, it is “bound by the same

standards as apply in a traditional public forum.” Perry Educ. Ass’n, 460 U.S. at 46.

When a publicly owned property is not a public forum by tradition or designation, the

government has much greater discretion to restrict expressive activity. The government “may

reserve [a nonpublic] forum for its intended purposes, communicative or otherwise, as long as

the regulation on speech is reasonable and not an effort to suppress expression merely because

public officials oppose the speaker’s view.” Id.

To determine the nature of the forum at issue, courts look to the forum’s physical

characteristics and its historic and intended use. United Church of Christ, 383 F.3d at 453.

Whether a given forum is considered a public forum, “hinges on a case-by-case inquiry in which

no single factor is dispositive.” Id.

Plaintiffs argue the Plaza is a traditional public forum where restrictions on speech are

subject to strict scrutiny based primarily on the physical characteristics of the Plaza and its use as

11

a public thoroughfare. Defendant argues that the physical characteristics are not dispositive and

contends the Plaza is a nonpublic forum where reasonable restrictions on speech are permissible.

Concerning the physical characteristics of the Plaza, it is undisputed that the Plaza is

bordered by the public sidewalk on two sides and that, when events are not being held, there is

nothing to distinguish the Arena Plaza from the public sidewalk. (Pl. SOF ¶ 27). Both the

sidewalk and the Plaza are paved in the same-colored concrete, and the individual tiles are all the

same size and shape. (Id.). When events are not being held, there are no physical barriers or

anything else to separate the Plaza from the sidewalk, and pedestrians traversing the area walk on

both the Plaza and the sidewalk without distinction. (Id.). When events are being held, as is the

case at all times relevant to this lawsuit, the Plaza is delineated from the adjacent sidewalk with

metal bicycle racks that serve as temporary barricades to delineate the Plaza from the public

sidewalk. (Def. SOF ¶ 29). Plaintiffs argue that these physical characteristics and use of the Plaza

as a public thoroughfare support a determination that the Plaza is, at all times, a traditional public

forum, and that physically separating the Plaza from the public sidewalk with barriers during

events does not transform it into a nonpublic forum. (Doc. No. 183 at 14).

Plaintiffs cite a long list of cases holding that streets and sidewalks are traditional public

fora. (Doc. No. 183 (citing United Church of Christ v. Gateway Economic Dev., 383 F.3d 449

(6th Cir. 2004) (sidewalk surrounding the Gateway Sports Complex); McGlone v. Bell, 681 F.3d

718, 733 (6th Cir. 2012) (sidewalks on university campus); Brindley v. City of Memphis, 934

F.3d 461, 469 (6th Cir. 2019) (privately owned street); Grayned v. City of Rockford, 408 U.S.

104 (1972) (sidewalk adjacent to high school); Grace, 461 U.S. at 180 (sidewalk adjacent to

Supreme Court); Boos v. Barry, 485 U.S. 312 (1988) (sidewalk adjacent to embassy); Frisby v.

12

Schultz, 487 U.S. 474 (1988) (streets of a residential neighborhood); McCullen v. Coakley, 573

U.S. 464 (2014) (sidewalk near abortion facility)). These cases, while not entirely inapplicable,

are distinguishable for the very straightforward reason that the Plaza, though it is adjacent to a

sidewalk, is not, in fact, a sidewalk or a street.

Plaintiffs argue the Plaza is comparable to the sidewalk encircling the Gateway Sports

Complex in Cleveland, which was held to be a traditional public forum. (Doc. No. 183 at 12

(citing United Church of Christ v. Gateway Econ. Dev., 383 F.3d 449 (6th Cir. 2004)

(“Gateway”)). In Gateway, the court found the Gateway Sidewalk, which encircled the Gateway

Sports Complex, but did not lead to its entry, was indistinguishable from the adjoining publicly

owned sidewalk in physical appearance and intended use. 383 F.3d at 452. Although planter

boxes roughly delineated the private sidewalk, the court found these were insufficient to alert the

casual observer of the private nature of the sidewalk as compared to the indistinguishable public

sidewalk. Id. (“[T]he average observer would be unfamiliar with the geographic significance of

this sporadic vegetation.”).

The Arena Plaza is distinguishable from the Gateway Sidewalk. First, it is not a sidewalk.

While sidewalks may be a quintessential traditional public forum, a plaza that serves as an

extension of and entrance to a commercial structure does not have the same status. See Kokinda,

497 U.S. 720 (1990); Grace, 461 U.S. at 177 (noting that public venues such as sidewalks have

been “historically associated” with expressive activities and “are considered, without more, to be

‘public forums’”). Second, unlike the Gateway Sidewalk, which was separated from the

indistinguishable public sidewalk only by “sporadic vegetation,” at all times at issue, the Plaza is

13

clearly demarcated with barriers leaving little doubt the distinction between the public and non-

public areas.

Finally, the intended use of the Gateway Sidewalk was as a sidewalk – i.e., to serve as a

public throughfare, which was no different from the use of the adjoining publicly owned

sidewalk. But here, the purpose of the Arena is not to serve as a public thoroughfare, but to

present “cultural, educational, entertainment, business, sporting, social and other public events.”

(See Def. SOF at ¶ 18; Management Agreement (2012), Doc. No. 179-1 at PageID# 2037, 2050).

And the Plaza itself serves as an entrance to and extension of the Arena during events and

provides space for commercial vendors associated with the event, security screening, and other

event-related endeavors. (Def. SOF ¶¶ 20-22). In other words, a commercial purpose.

Moreover, although Plaintiffs are correct that traditional public fora are, like the Plaza,

generally open to the public. But a nonpublic forum does not lose its private nature simple

because the public is permitted to access the property when it is not being used for other

purposes. Indeed, in United States v. Kokinda, 497 U.S. 720, 728 (1990), the Supreme Court held

that the public sidewalk leading to a post office was not a public forum even though the sidewalk

was open and accessible to the public. See also, Greer v. Spock, 424 U.S. 828 (1976) (holding

that sidewalks within military base are a nonpublic forum even though the public was permitted

free access to certain areas); see also, Grace, 461 U.S. at 178 (observing that even though the

grounds of the Supreme Court were generally open to the public, they were “not transformed into

‘public forum’ property merely because the public [was] permitted to freely enter and leave the

grounds at practically all times”).

14

The Fifth Circuit decision in Brister v. Faulkner, 214 F.3d 675 (5th Cir. 2000), relied on

by Plaintiffs, in which the court considered the forum status of a paved area connecting a public

sidewalk with an event center, is more on point, but still distinguishable. In Brister, the court

found a paved area front of a university event center a public forum, largely because of the lack

of distinction between the sidewalk and the paved area. Id. at 682-83. The Court was concerned

about a potential chilling effect on free speech because those wishing to speak would be “left to

guess whether they have crossed some invisible line between a public and non-public forum.”11

Id. Unlike the paved area in Brister, the Plaza is clearly demarcated with barricades during

events. Thus, there is no concern that the inability to distinguish the public and private fora will

have a chilling effect on speech.

Defendant argues the Eight Circuit’s decision in Ball v. City of Lincoln, which considered

the forum status of the Pinnacle Bank Arena, a large sports and entertainment venue with an

adjoining plaza, is more analogous than cases considering the forum status of sidewalks. (Doc.

No. 178 at 18 (citing Ball v. City of Lincoln, 870 F.3d 722, 727 (8th Cir. 2017)). As in this case,

the city entered into a management agreement with a private entity that promulgated a policy that

restricted certain activities in the nonpublic areas of the arena, including an outdoor plaza. Ball,

870 F.3d at 727-28. Similar to the Arena Policies at issue here, the purpose of the use policy at

issue in Ball was to “provide Arena patrons … safe and efficient access to the Arena and related

facilities, as well as to allow the full use of the Arena by the performers, sports teams, trade

shows, conventions, and others who leased the Arena for various events.” Id. at 727-28. After he

11 Notably, although the Brister court found the paved area was a public forum, it also held the

university did not improperly remove persons distributing literature there because they were impeding the

flow of traffic into the event center. Brister v. Faulkner, 214 F.3d 675, 683 (5th Cir. 2000) (finding these

were reasonable time, place, and manner restrictions as applied).

15

was arrested for violating the leafletting prohibition, the Ball plaintiff filed suit challenging the

policy as an unconstitutional restraint on his First Amendment right to free speech. Id. at 728.

After carefully examining the plaza’s physical characteristics, use, and government intent,

purpose, and policy, the court concluded that the plaza outside the Pinnacle Bank Arena was a

nonpublic forum. Id. at 731-36.

Plaintiff argues that the plaza in Ball had more distinctive physical characteristics than

the Arena Plaza. (Doc. No. 183 at 19). The Ball plaza had “special characteristics” that

distinguished it from the adjacent public sidewalks, including curved irregular borders that were

identified by conspicuous markers such as cement planters, bollards, and flagpoles, and a

different surface than that of the public sidewalks. Ball, 870 F.3d at 732-33. The court found that

“[t]hese physical features, coupled with the general size, unique shape, and overall appearance of

the Plaza Area, serve[d] to distinguish it from the adjacent public sidewalks.” Id. at 733.

After observing that the “mere physical characteristics of the property cannot dictate

forum analysis,” the Ball court also considered the use and purpose of the plaza. Id. (citing

Kokinda, 497 U.S. at 727). Similar to the Arena Plaza, the plaza in Ball was used as “a venue for

commercial use by Arena Tenants, as a means to facilitate safe and orderly access to the Arena

for its patrons, as a security screening area, and as a gathering place and entryway for Arena

patrons” and had consistently been used as intended [for] commercial purposes associated with

events occurring inside the Arena.” Id. at 734-35. The Ball court rejected the plaintiff’s argument

that the plaza’s use by members of the public en route to other destinations resulted in public

forum status. Id.

16

The Plaza here is more analogous to the plaza at issue in Ball, than the Gateway sidewalk

in United Church of Christ. Like the plaza in Ball, the Arena Plaza has a commercial purpose

and historic use. It does not function primarily as a sidewalk or thoroughfare like the Gateway

sidewalk (or any other sidewalk). And, at relevant times, the Plaza is delineated from the public

sidewalk with temporary barriers.

Plaintiffs argue the presence of the temporary barriers cannot serve to transform the Plaza

from a public to a nonpublic venue. But no transformation takes place. Rather the venue is

always a nonpublic venue, the temporary barriers simply serve to provide a visual physical

delineation between the nonpublic Plaza area and the public sidewalk during events – i.e., when

Plaza is being used for its primary purpose. The record indicates that Plaintiffs have only

attempted to engage in religious speech when events are being held and the barricades are in

place. Therefore, they cannot plausibly contend that the temporary nature of the barricades has a

chilling effect on their constitutionally protected speech. Moreover, even if the precise contours

of the Plaza are indiscernible when the barricades are not present, no reasonable person would

perceive the entirety of the Plaza as a sidewalk.

Nor is this, as Plaintiffs argue, a case where the city has ipse dixit destroyed the public

forum status of a historical public forum such as a sidewalk, street, or park. (See Doc. No. 183 at

15 (citing Grace, 461 U.S. at 175 (the government may not “transform the character of the

property by the expedient of including it within the statutory definition of what might be

considered a non-public forum parcel of property”)). Unlike the sidewalk at issue in Grace, the

Plaza is not quintessential traditional public forum and it has not been transformed into a

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nonpublic forum ipse dixit. Rather, the Plaza’s status as a nonpublic forum is based on its

intended and historic use and physical characteristics.12

Overall, considering the Plaza’s physical characteristics, purpose, and historic use, the

Court concludes that the Arena Plaza is a nonpublic forum.

2. Reasonableness

For a nonpublic forum, the government may limit access “based on subject matter and

speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by

the forum and are viewpoint neutral.” Helms v. Zubaty, 495 F.3d 252, 256 (6th Cir. 2007)

(internal quotation marks omitted). A restriction on expressive activity in a nonpublic forum

“need only be reasonable; it need not be the most reasonable or the only reasonable limitation” to

be constitutionally permissible. Kokinda, 497 U.S. at 730.

a. Amplification

Metro argues the ban on amplification is reasonable because “[t]he Arena makes

important announcements, directs crowd traffic, and provides verbal instructions to patrons in the

Plaza in connection with events, and the use of voice amplification devices by others clearly

hinders that ability.” (Doc. No. 178 at 24). Plaintiffs argue this is insufficient to show that the

amplification ban is reasonable because Metro has not provided any evidence to show that

amplified sound would hinder its ability to make announcements or that Peters’ use of

amplification actually hindered the event. (Doc. No. 183 at 27). Peters contends the messages

12 At most, the Plaza is a designated public forum, which is only open to the public for traditional

expressive activities when the Area is not being used for events. See Perry Educ. Ass’n v. Perry Local

Educ. Ass’n, 460 U.S. 37, 45 (1983) (noting that the state is not required to “indefinitely retain the open

character” of a designated public forum).

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given on Arena loudspeakers could still be heard. (Id. (citing Peters Decl., Doc. No. 185-1, ¶

10)).

The Court finds the amplification ban reasonable given the established use of the Plaza.

Defendant has shown that the Arena makes important announcements, directs crowd traffic, and

provides verbal instructions to patrons in the Plaza in connection with events and the use of voice

amplification devices by other hinders this ability. Moreover, the Arena Policies, including the

amplification ban, protect the contractual rights of those leasing the Arena facilities. (See Def.

SOF ¶¶ 19-22). Accordingly, Plaintiffs’ challenge to the Arena Policy banning amplification

fails.

b. Leafletting

The Arena Policies generally prohibit distribution of flyers, pamphlets, leaflets, and

brochures “without the express written consent from [the] Arena.” (Def. SOF ¶ 23). The decision

whether to grant or deny requests to distribute written materials during an event is based upon

whether the requesting party has a connection to the event and whether the requesting party has

paid or offered some other consideration for its use of the Arena and/or the Plaza in connection

with the event. (Id. ¶ 25). When a written request to distribute materials is made based on the

requestor’s connection with an event, decisions on the written request are promptly made. If the

applicant has a demonstrable connection to the Team, Arena tenant(s) or licensee(s), event

promoter(s), and/or their affiliates, then the request will be approved unless one of the foregoing

parties objects. (Id. ¶ 26). Defendant states this leafletting restriction is necessary to protect and

enhance the ability of the Team and Powers to enter into full contracts with various promoters,

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artists, and vendors, as well as to prevent interference with the contractual uses of the Arena and

Plaza. (Def. SOF ¶ 24 (citing Powers Decl., Doc. No. 179-5, ¶ 11)).

The parties agree that Peters and Winslow assert a facial challenge to the Arena Policy on

distribution of literature. Winslow, who claims to have been asked to leave the Plaza while

distributing literature, does not bring an as-applied challenge to the Policy, but Peters claims to

do so on behalf of his “associates.” Because Peters does not claim that he was personally asked

to cease distribution of literature or leave the Plaza because of these activities, he cannot bring an

as-applied challenge to the Policy. Accordingly, the Court considers Plaintiffs’ challenge to the

Arena Policy on distribution of literature on its face.

The vast majority of Plaintiffs’ arguments concerning the constitutionality of the

leafletting restriction are based on the assumption that the Plaza is a public forum, which, for the

reasons stated above, is incorrect. In a nonpublic forum, the government may limit access “based

on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of

the purpose served by the forum and are viewpoint neutral.” Helms v. Zubaty, 495 F.3d 252, 256

(6th Cir. 2007). Decisions whether to allow leafletting are made based on the applicant’s

relationship to the event. If there is a connection to the event, the application is generally

approved unless the event holder objects. This policy is viewpoint neutral, and Plaintiffs do not

argue otherwise.

The policy is also reasonable in light of the commercial purposes of the Arena and Plaza.

Plaintiffs argue that the restrictions are unreasonable because they constitute a “total ban on all

literature distribution” and there is no evidence that Plaintiffs’ distribution of literature interferes

with the events. (Doc. No. 183 at 25). But the leafletting restriction is not a “total ban on all

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literature distribution,” and it is reasonable for the Arena to limit literature distribution to those

associated with events. Because the Arena Policy on leafletting is viewpoint neutral and

reasonable, Plaintiffs’ facial challenge to the regulation fails.

C. June 6, 2018

Plaintiffs point to one alleged constitutional violation that involved their exclusion from

an undisputably traditional public forum – the public sidewalk – on June 6, 2018. On that date,

the Arena was hosting the CMT Awards show. (Def. SOF. ¶ 68). CMT Awards organizers had

obtained a street closure permit from the city to partially close Fifth Avenue between

Demonbruen and Broadway, a section of Fifth Avenue that runs along one side of the Arena and

boarders the Plaza. (Id. ¶ 70). On that date Peters and Winslow were told by an unidentified

person that they could not preach on the sidewalk area between the barricades set up on the Plaza

and Fifth Avenue. (Pl. SOF ¶ 20; Def. SOF ¶¶ 72, 73). They were later told by a police officer

that they had to leave both the Plaza and the sidewalk. (Pl. SOF ¶ 20 (citing Peters. Decl., Doc.

No. 185-1, ¶ 22; Winslow Decl. ¶ 13; Peters Dep. at 132, 135, 142, 144)). The parties appear to

agree that the police officer who told them they could not preach on the sidewalk was not

employed by MNPD. (Def. SOF ¶¶ 74-76).

At this juncture, we must return to the crux of municipal liability. As explained above, in

order to sustain a constitutional claim against a municipality or local government, a plaintiff

must prove, “that the municipality’s policy or custom caused the violation to happen.” Bright,

753 F.3d at 660. The plaintiff must “identify the policy, connect the policy to the [municipality]

itself and show the particular injury was incurred because of the execution of that policy.”

Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993).

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Plaintiffs acknowledge that the police officer who told them they could not preach on the

public sidewalk was not employed by MNPD, but argue that Metro is nevertheless responsible

for his conduct because: (1) Metro and/or Powers delegated its responsibility over public

property to the officer; and (2) the officer was enforcing Arena Policies.13 (Doc. No. 183 at 28).

Plaintiffs argue that “in this way, these individuals were acting as agents of Metro, and Metro is

responsible for their actions.” (Id.).

Plaintiffs does not point to any evidence in support of these assertions. In contrast,

Defendant has provided evidence that MNPD does not enforce the Arena Policies (Def. SOF, ¶

41-46 (stating that MNPD officers do not “enforce the [Arena’s] ‘House Rules’ proactively” and

explaining the agreed protocol for addressing violations of Arena Policies)). And even if MNPD

or others designated by Powers did enforce the Arena Policies, there is nothing in the Arena

Policies, which apply specifically to the Arena and Plaza, that would prohibit Plaintiffs from

preaching on the public sidewalk. In other words, when the officer told Plaintiffs that they could

not preach on the public sidewalk, it was not pursuant to the Arena Policies. Nor is there any

evidence that this action was pursuant to any direction by Metro or Powers or attributable to a

municipal policy or custom of Metro. Therefore, summary judgment will be granted in favor of

Metro on Plaintiffs’ claim arising out the actions by the unnamed officer on June 6, 2018.

D. Due Process

“A law is overbroad under the First Amendment if it ‘reaches a substantial number of

impermissible applications’ relative to the law’s legitimate sweep.” New York v. Ferber, 458

13 Of course, because municipal liability cannot be based on respondeat superior, whether the

officer was employer by Metro is beside the point. See Monell v. N.Y.C. Dept. of Social Servs., 436 U.S.

658, 691 (1978) (holding that municipalities and local governments “cannot be held liable under § 1983

on a respondeat superior theory”).

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U.S. 747, 771 (1982). Defendant contends Plaintiffs’ claims that the leafletting restriction and

amplification ban are overbroad is without merit because “the policies neither implicate nor

proscribe a substantial amount of constitutionally protected conduct.” Plaintiffs respond that “the

outright bans on amplification and literature distribution are overbroad” and argues that Metro

has not shown the alternative channels of communication are adequate.

Plaintiffs’ argument appears to again be based on the assumption that the Plaza is a

public forum, which it is not. In any event, Plaintiffs have entirely failed to develop any

argument that the policies at issue proscribe any constitutionally protected conduct, let alone a

substantial amount. A party may not present a skeletal argument, leaving the court to put flesh on

its bones. United States v. Hendrickson, 822 F.3d 812, 829 n.10 (6th Cir. 2016). In instances

such as this, where “[i]ssues [are] adverted to in a perfunctory manner, unaccompanied by some

effort at developed argumentation,” the issue is considered forfeited. Buetenmiller v. Macomb

Cty. Jail, 53 F.4th 939, 946 (6th Cir. 2022) (quoting McPherson v. Kelsey, 125 F.3d 989, 995-96

(6th Cir. 1997)). Defendant’s motion for summary judgment of Plaintiffs’ due process claim is

effectively unopposed. Accordingly, summary judgment will be granted in favor of Defendant on

the due process claim.

Hil. CONCLUSION

For the reasons stated herein, Defendant’s motion for summary judgment (Doc. No. 177)

will be GRANTED as to all claims.

An appropriate Order will enter.

AMEX

(fz Cl

CHIEF UNITED STATES DISTRICT JUDGE

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