Lansing v. Memphis

RECOMMENDED FOR FULL-TEXT PUBLICATION

20 Lansing v. City of Memphis, et al. Nos. 98-5688/6743 Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0042P (6th Cir.)

File Name: 00a0042p.06

CONCLUSION

In summary, we find that none of the factors relied on by

the district court is sufficient to warrant a finding of state UNITED STATES COURT OF APPEALS

action by Memphis in May under the nexus test. Moreover,

neither of the other two available tests urged by Lansing -- the FOR THE SIXTH CIRCUIT

public function or the state compulsion test -- offers any more _________________

support for the theory of state action by Memphis in May.

;

Based on these conclusions, we hold that the district4 court



erred in finding that Memphis in May was a state actor. This KENNETH D. LANSING,



ruling, of course, moots the question of whether Memphis in Plaintiff-Appellee,



May violated the plaintiff’s First Amendment rights when it



acted periodically to remove him from the liminal area of the Nos. 98-5688/6743

festival. We therefore REVERSE the district court’s v.



judgment in Lansing’s favor and VACATE the permanent >

injunction against Memphis in May. Because the plaintiff is CITY OF MEMPHIS; MEMPHIS 

no longer the prevailing party, there is no basis for assessing 

Defendants, 

PARK COMMISSION,

attorney’s fees against the defendant, and the district court’s

order to the contrary is hereby VACATED. The case is 

REMANDED to the district court for further orders, as 



necessary. MEMPHIS IN MAY

INTERNATIONAL FESTIVAL, 



Defendant-Appellant. 

INC.,



1

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 97-03153—Jon Phipps McCalla, District Judge.

Argued: November 3, 1999

Decided and Filed: February 4, 2000

Before: MARTIN, Chief Judge; DAUGHTREY, Circuit

Judge; HILLMAN,* District Judge.

4

For a comparable conclusion by a sister circuit in a case presenting *

similar facts, see United Auto Workers v. Gaston Festivals, Inc., 43 F.3d The Honorable Douglas W. Hillman, United States District Judge

902 (4th Cir. 1995). for the Western District of Michigan, sitting by designation.

1

2 Lansing v. City of Memphis, et al. Nos. 98-5688/6743 Nos. 98-5688/6743 Lansing v. City of Memphis, et al. 19

_________________ by the very party who later complained of their presence. 48

F.3d at 197. As noted, the Supreme Court has also held that

COUNSEL merely availing oneself of state-sanctioned remedies or

procedures, without more, does not render private action

ARGUED: Thomas J. Walsh, Jr., FORD & HARRISON, public. The facts here indicate that in every case, a Memphis

Memphis, Tennessee, for Appellant. Nathan W. Kellum, in May representative first approached Lansing and asked him

McNABB, HOLLEY & WALDROP, Memphis, Tennessee, to move. He refused to leave unless a police officer ordered

for Appellee. ON BRIEF: Thomas J. Walsh, Jr., Herbert E. him to do so. The Memphis in May representative found an

Gerson, FORD & HARRISON, Memphis, Tennessee, for officer and asked for assistance, and the officer complied. If

Appellant. Nathan W. Kellum, McNABB, HOLLEY & this were all that was required to find state action, then every

WALDROP, Memphis, Tennessee, for Appellee. private citizen who solicited the aid of the police in resolving

disputes or in ejecting unwanted persons would be

_________________ transformed into a state actor. A mere request for assistance

from an available police officer cannot be sufficient to form

OPINION a nexus between the state and the private action.

_________________

Furthermore, the letter to the director of police services

MARTHA CRAIG DAUGHTREY, Circuit Judge. After he from the city attorney’s office regarding expressive activity

was asked to move from an area near a festival in a city park, near Memphis in May events in no way indicates a nexus

Kenneth D. Lansing, a self-identified “street preacher,” filed between the city and Memphis in May’s actions; in fact, it is

federal and state constitutional claims against the City of the best evidence the record provides to show that Memphis

Memphis, the Memphis Park Commission, and Memphis in in May and the city were operating as independent decision-

May International Festival, Inc., alleging violations of his makers during the festival. The letter is quite emphatic in

freedom of religion, speech, association, and assembly, and of communicating to city police officers the clear boundary

his right to equal protection under the law. Following a between public forums controlled by the city, in which

consolidated hearing on the merits of Lansing’s claim, the officers were directed to permit protected expressive activity,

district court denied the defendants’ motions for summary and the areas leased and controlled by Memphis in May. The

judgment and issued a permanent injunction barring each of city does not attempt to instruct its agents regarding activities

the defendants from “prohibiting Mr. Lansing’s expressive by Memphis in May, or in areas controlled by Memphis in

activities” within a specified area. Subsequently, the district May. It merely clarifies the duties of officers in areas

court granted Lansing’s motion for attorney’s fees pursuant to controlled by the city, stating that “[n]o matter how close

42 U.S.C. §1988. individuals get to the described areas, as long as they do not

Only Memphis in May has appealed the injunction, cross the leased areas, they are permitted to engage in

contending that it is not a state actor and therefore owes no protected expressive activities.” No public-private nexus is

First Amendment duties to Lansing, and alternatively, that if indicated.

it does owe such duties, it did not impose any unreasonable

restrictions on Lansing’s speech. In a separate but

consolidated appeal, Memphis in May argues that the award

of attorney’s fees should be reversed with respect to Memphis

in May, on the grounds that the city has already paid

18 Lansing v. City of Memphis, et al. Nos. 98-5688/6743 Nos. 98-5688/6743 Lansing v. City of Memphis, et al. 3

the case at hand, there is no evidence that Memphis in May’s Lansing’s fees in full, and alternatively, that Lansing is

board of directors or its executive committee had anything to ineligible for attorney’s fees under the statute once the district

do with the decision to ask Lansing to move outside the court’s ruling on the merits is reversed.

barricade, let alone that the two public officials on the

executive committee exerted any undue influence over the After careful review of the factual record and the relevant

decision-making of their seven colleagues. There cannot be law, we conclude that Memphis in May was not a state actor

any nexus between the state and Memphis in May’s action (rendering moot the constitutional question), and we therefore

based on the composition of Memphis in May’s board. find it necessary to reverse the judgment of the district court.

It follows that Memphis in May is not liable for the plaintiff’s

Sixth, communications between the city attorney’s office attorney’s fees.

and Memphis in May regarding Lansing do not indicate that

the city dictated Memphis in May’s decision to remove FACTUAL AND PROCEDURAL BACKGROUND

Lansing. Certainly, here more than anywhere there is a link

between acts fairly attributable to the state and acts taken by Memphis in May International Festival, Inc. is a not-for-

Memphis in May with regard to Lansing. However, scrutiny profit corporation qualified for tax exempt status under

of the content of the correspondence reveals nothing more section 501(c)(3) of the Internal Revenue Code. Its stated

than an alert to the situation, an offer to assist, and a request mission is “to generate tourism, foster international

to act cautiously in order to avoid a lawsuit. Nowhere in the commercial trade and enhance the quality of life in the

letter from the city attorney’s office to Memphis in May’s Memphis-Mid-South area through the organization,

attorney is there any language suggesting or requiring that production, and/or promotion of public activities and

Memphis in May eject Lansing from the festival; in fact, if education programs focusing on foreign nations and diverse

anything, the letter counsels a rather more conservative cultures.” The corporation is run by a volunteer board of

approach, urging that Memphis in May “remember the directors, which is itself governed by a nine-member

balance” between constitutional rights and festival fun, and executive committee. Two of the nine committee members

reminding planners that “borders for festival activities . . . can are selected by city and county representatives.

not infringe on protected constitutional rights.” Although this

single letter indicates that the city knew about Lansing’s In furtherance of its mission, Memphis in May organizes an

complaint against Memphis in May, and that it was concerned annual festival held in Memphis during the month of May,

that the law be upheld, it does not indicate a nexus so close known as “Memphis in May.” The festival includes a number

that Memphis in May’s subsequent actions with respect to of events throughout the month; however, the three largest

Lansing can be attributed to the state. events sponsored by Memphis in May are the Beale Street

Music Festival, the World Championship Barbecue Cooking

Finally, neither the supply of police officers to help enforce Contest, and the Sunset Symphony. Each of these events is

Memphis in May’s decision to remove Lansing, nor the city’s held on a different weekend in May in Tom Lee Park, and

instruction to its officers not to interfere with expressive each routinely draws over 200,000 people.

speech activity outside the leased space, indicates a nexus

sufficient to attribute Memphis in May’s actions to the state. Memphis in May receives funding for its festival from a

In Ellison v. Garbarino, we held that police assistance in the variety of sources, including gate receipts, private

lawful exercise of self-help does not convert private action to contributions, sponsorships, and local government. In the

public action. In that case as here, the police were solicited years 1995 - 1997, Memphis in May’s total revenues ranged

from approximately $2.5 million - $3.9 million. During that

4 Lansing v. City of Memphis, et al. Nos. 98-5688/6743 Nos. 98-5688/6743 Lansing v. City of Memphis, et al. 17

same time period, the combined public support from city, Fourth, the fact that the city required Memphis in May to

county and state governments ranged from 1.8% - 2.3% of coordinate with city agencies regarding the regulation of

total revenues. Gate receipts for that period totaled between alcoholic beverages, advertising, traffic and security at the

63.4% - 73.5% of revenues. festival, far from establishing a nexus between them, in fact

demonstrates the independence of their operations. By

For each of the years 1995, 1996, and 1997, Memphis in conditioning the lease, the use agreement, and the council

May signed a lease agreement with the City of Memphis for resolution on Memphis in May’s compliance with city

Tom Lee Park and a park use agreement with the Memphis regulations and authorities, the city and Memphis in May

Park Commission, and requested and received a Memphis clearly established separate spheres of responsibility for the

City Council resolution closing the streets surrounding the festival period. Memphis in May was responsible for

festival site to vehicular traffic. The substantive terms of organizing the festival and making all appropriate

these documents did not change in any material respect from administrative and logistic contacts, while Memphis retained

year to year, with the exception of the park use agreement, responsibility for all the traditional functions of government,

which was revised for 1997. The property covered by the such as controlling traffic, maintaining security, and

lease included “all curbs, sidewalks, and abutments and any regulating alcohol consumption.

other public property within, on the boundary, or immediately

contiguous to the Property.” According to the park use Furthermore, the level of regulation to which Memphis in

agreement (in all years), for the purpose of the Memphis in May was subjected for a single month-long festival cannot

May events, “the boundaries of Tom Lee Park shall be: a. The compare with the degree of state regulation in enterprises

tract of land west of Riverside Drive generally known as Tom such as insurance, schooling, worker’s compensation, or

Lee Park; b. Riverside Drive if closed to traffic . . . ” electrical utilities. Yet, even in these extensively regulated

arenas, the courts have been unwilling to find that state

The lease further provides that “Lessee shall comply with regulation alone is sufficient to impute the actions of the

the directives of the Memphis Police Department and the regulated entity to the state. See, e.g., American

Memphis Fire Department to minimize interference with Manufacturers, 119 S.Ct. 977; Rendell-Baker, 457 U.S. 830;

traffic in and out of said area so as not to create a nuisance” Blum, 457 U.S. 991; Jackson, 419 U.S. 345; Adams, 855 F.2d

and “Lessee shall not create or allow any nuisance to exist on 312; Crowder, 740 F.2d 447. Coordinating traffic control and

said property and to abate any nuisance that may arrive security with city police is not a sufficient nexus to attribute

promptly and free of the expense of the Lessor . . . ” The Memphis in May’s actions to the state.

1997 park use agreement states that “Applicant shall provide

. . . Security and/or Traffic Control based on the guideline for Fifth, the presence of two public officials on the Memphis

1,000-20,000 attendees of two (2) Officers per 1,000 and; in May board in this case fails to satisfy the nexus test. In

20,000 or more, one (1) additional Officer [p]er 1,000.” The Crowder v. Conlan, this court held that even when a hospital

city council resolution included a clause stating: “BE IT board was responsible for the decision which resulted in the

FURTHER RESOLVED that in each case, streets will open alleged civil rights violation, the presence of two pubic

before the time listed if the streets are cleared and approved officials on the board of thirteen members was insufficient to

by Memphis Police Department Traffic Bureau.” Finally, the create a close nexus between the board’s decision and the

1997 park use agreement provided that “[t]he applicant state. 740 F.2d at 451. In Adams v. Vandemark, the court

accepts responsibility for determining and complying with all came to a similar conclusion regarding a board one-third of

applicable rules, regulations, ordinances, statutes , policies, whose members were public officials. 855 F.2d at 317. In

16 Lansing v. City of Memphis, et al. Nos. 98-5688/6743 Nos. 98-5688/6743 Lansing v. City of Memphis, et al. 5

that Lansing move outside the barricades. See, e.g., Burton, and procedures of federal, state, county and city authorities

365 U.S. at 724 (finding it significant that “profits earned by and agencies.”

discrimination not only contribute to, but also are

indispensable elements in, the financial success of a Memphis in May events in Tom Lee Park are ticketed. In

government agency” when holding that restaurant was state order to enforce the ticket-admission policy, temporary

actor (emphasis added)). There is no evidence in the record barricades are erected around the event area, with entrance

to indicate that any economic benefit the city received from gates at the north and south ends of the park. Beyond the

Memphis in May’s activities depended on the removal of event barricades are street barriers indicating that the streets

Lansing from the festival. contiguous to the park are closed to vehicles. The area

between the street barriers and the event barriers is open to

Second, the fact that Memphis in May received a small part the general public at no charge. Vending and ticketing booths

of its funding from government sources is not enough to are located in this liminal space, as are check-in sites for

convert its decisions to state action. As noted, the Supreme members of the press and Memphis in May volunteers.

Court and this circuit have held that even in cases where Patrons of the festival also line up in this area as they wait

private entities received virtually all of their funding from the their turn for admission.

state, that fact alone was insufficient to establish a close

nexus between the state and the activity of the private entity. Kenneth Lansing is a Christian who believes that he is

In this case, the record indicates that Memphis in May never discharging a duty to God by public proclamation and

received more than 3% of its revenues from government communication of his faith. In fulfilment of this duty,

sources during the period at issue. Such limited public Lansing seeks out public locations that have access to a

support is simply not enough to require that we impute maximum number of passers-by, where he engages in

Memphis in May’s actions to the state. religious speech including preaching, counseling, handing out

literature, and holding signs and banners. In the years since

Third, the fact that Memphis in May leased Tom Lee Park 1989, Lansing has chosen areas near Memphis in May events

and contiguous public ways from the city does not convert it in Tom Lee Park as a venue for his message. His preferred

from a private to a state actor. We have been consistent in location is an area on Riverside Drive, outside the north gate

holding that a lease for public land or facilities from the in the strip between the traffic barricades and the event

government is insufficient evidence of a nexus between the barricades. He chooses this area expressly because it affords

state and the activities that take place on the land. See him the best opportunity to reach the maximum number of

Wolotsky, 960 F.2d at 1336; Adams, 855 F.2d at 316; people with his message.

Crowder, 740 F.2d at 450, 453. Nor is the fact that the city

received a percentage of gross sales of beer indicative of a Each year since 1995, during peak attendance periods,

sufficiently close nexus between Memphis and Memphis in Memphis in May officials have asked Lansing to move from

May. While such an arrangement may have given the city an his chosen location to an area outside the traffic barricades,

economic interest in the success of the beer vendors, nothing approximately 50-300 feet away.1 Lansing has responded

indicates any connection between beer sales and Lansing’s

presence in the liminal space. See Burton, 365 U.S. at 724.

This limited profit-sharing agreement is insufficient to impute 1

Lansing’s complaint includes claims based on events occurring in

Memphis in May’s request of Lansing to the city. 1995, 1996, and 1997. The district court ruled that the 1995 and 1996

claims were time-barred, presumably by Tennessee’s one-year statute of

limitations for “civil actions for compensatory or punitive damages, or

6 Lansing v. City of Memphis, et al. Nos. 98-5688/6743 Nos. 98-5688/6743 Lansing v. City of Memphis, et al. 15

each time by indicating that he would move only at the assistance of state officials’ cannot [properly be considered

request of a police officer. In each case a police officer was state action]”); Edmonson v. Leesville Concrete Co., Inc.,

summoned to make the request, and Lansing moved without 500 U.S. 614, 622 (1991) (“private use of state-sanctioned

incident. private remedies or procedures does not rise, by itself, to the

level of state action”); Ellison, 48 F.3d at 197 (holding that

On May 29, 1996, Lansing’s attorney initiated police assistance in lawful exercise of self-help does not

correspondence with city officials, seeking assurances that convert private action to state action).

Lansing’s perceived right to speak in the liminal area between

barriers at the Memphis in May events would be protected. The district court was correct in identifying several of the

On July 31, 1996, the Memphis city attorney’s office aforementioned nexus test factors as the relevant law for this

responded to Lansing’s request, stating: case. Nevertheless, throughout its analysis of Memphis in

May’s relationship with the City of Memphis, the court drew

The City of Memphis agrees that Mr. Lansing has certain conclusions that in many instances are in direct conflict with

constitutional rights to engage in protected speech. It is the principles identified above. As justification for its finding

our position to ensure that for the 1997 Memphis in May that Memphis in May was a state actor when it asked Lansing

Festival that we provide information to the festival to move outside the traffic barricades, the court listed the

organizers as well as to the Memphis Police Department economic benefit to the city of the festival; city and state

regarding any limitations that may be placed on those funding of Memphis in May; Memphis in May’s lease of city

who wish to engage in protected speech. property and payment of fees for vendor’s booths; city

regulations regarding alcoholic beverages, advertising, traffic

That same day, the city attorney’s office wrote to Memphis in and security at the festival; the presence of two public

May’s attorney, saying: officials on the Memphis in May board; communications

between the city attorney’s office and Memphis in May

The City Attorney’s Office is willing to assist you and regarding Lansing; and the provision of police officers to help

Memphis in May officials in determining what are enforce Memphis in May’s decision to remove Lansing.

constitutional legal boundaries for protected speech . . . Although a common sense perusal of this list might suggest

All things considered it is imperative that there is better that Memphis in May and the city cooperated in the

coordination between Memphis in May officials and the presentation of Memphis in May events, mere cooperation

City to ensure that protected constitutional rights are not simply does not rise to the level of merger required for a

abridged . . . I would only ask that when negotiations are finding of state action.

underway this year that you remember the balance

between . . . competing interests when Memphis in May First, the fact that Memphis in May confers an economic

is drawing the borders for the festival activities. Those benefit on the city by operating the festival is insufficient to

borders cannot infringe on protected constitutional rights. establish that Memphis in May is a state actor. A great many

private entities confer economic benefits on the state without

their activities being imputed to the state; consider, as

examples, major employers or home football teams.

both, brought under the federal civil rights statutes”. T.C.A. § 28-3-

104(a)(3). Although the incidents of 1995 and 1996 are outside the Furthermore, the test requires a close nexus not merely

statutory period, many of the events described from that time period shed between the city and Memphis in May in general, but

light on the question of whether Memphis in May operated as a state actor specifically between the city and Memphis in May’s request

in 1997. Hence, a description of those events is included.

14 Lansing v. City of Memphis, et al. Nos. 98-5688/6743 Nos. 98-5688/6743 Lansing v. City of Memphis, et al. 7

costs and paid medical expenses of more than 90% of On April 25, 1997, Lansing’s attorney again wrote to the

patients); Wolotsky, 960 F.2d at 1336 (finding private not-for- city attorney’s office requesting assurances that Lansing

profit corporation which derived “a significant portion of its would be permitted to engage in religious speech activities

funding from the government” and which leased one of its “on Riverside Drive, as well as other public property” during

facilities from the government at nominal cost was not a state the 1997 Memphis in May events. On May 2, 1997, the city

actor); Adams, 855 F.2d at 316 (holding private not-for-profit attorney’s office sent a letter to the director of police services,

corporation was not a state actor, even though funded “almost requesting that

entirely by public sources” and leasing office space from the

city for a nominal fee); Crowder, 740 F.2d at 450, 453 [officers on duty during Memphis in May activities be]

(holding state was not responsible for private hospital’s reminded that public streets and parks are public forums

personnel decisions even if hospital derived “a considerable and individuals can engage in First Amendment activities

percentage of its revenues from government funding” and without running afoul of the law so long as they do not

county was “owner and lessor of the hospital’s physical present a danger to themselves or others or impede traffic

plant”). . . . This is a special situation because Memphis in May

officials have leased space from the City for a limited

The minority presence of public officials on the board of a time . . . No matter how close individuals get to the

private entity does not render the entity a state actor; nor does [leased] areas, as long as they do not cross the leased

the mere approval or acquiescence of the state in private area, they are permitted to engage in protected expressive

activity. See, e.g., Blum, 457 U.S. 991 (“Mere approval of or activities.

acquiescence in the initiatives of a private party is not

sufficient to justify holding the State responsible for those Finally, on the same day, the city attorney’s office wrote to

initiatives under the terms of the Fourteenth Amendment”); Lansing’s attorney, including a description of the leased area

Jackson, 419 U.S. 345 (“Approval by a state utility and saying: “Your client should feel free to engage in

commission of such a request from a regulated utility, where protected expressive activities, within the confines of the law,

the commission has not put its own weight on the side of the in the areas that are not included in the attached description.”

proposed practice by ordering it, does not transmute a practice

initiated by the utility and approved by the commission into On at least two different occasions that May, Lansing

‘state action’”); Adams, 855 F.2d 312 (holding private not- appeared outside the entrance gates of the Memphis in May

for-profit corporation was not a state actor, even though state festival, in the space between barricades, and began

law required one-third of its board to be public officials, since preaching, counseling, leafleting and holding signs. When,

board had no direct involvement in challenged action); after some time, Memphis in May representatives asked him

Crowder, 740 F.2d 447 (holding state was not responsible for to move off the leased property, he responded that he would

private hospital’s personnel decisions even if two of the only move at the request of a police officer. An officer was

thirteen board members were public officials). summoned and made the request, and Lansing moved.

Finally, the cases indicate that utilization of public services In December 1997, Lansing filed suit pursuant to 42 U.S.C.

by private actors does not convert private action to state §§ 1983 and 1988 against the City of Memphis, the Memphis

action. See American Manufacturers, 119 S.Ct. at 987 Park Commission, and Memphis in May, alleging violations

(holding that “a private party’s mere use of the State’s dispute of his state and federal constitutional rights. He sought

resolution machinery, without the ‘overt, significant declaratory and injunctive relief and damages. Subsequently,

the City of Memphis (for itself and on behalf of its

8 Lansing v. City of Memphis, et al. Nos. 98-5688/6743 Nos. 98-5688/6743 Lansing v. City of Memphis, et al. 13

subdivision, the Memphis Park Commission) and Memphis a positive test cannot be adequately formulated in the abstract,

in May both filed summary judgment motions. In April, the both this circuit and the Supreme Court have nevertheless

court entered judgment for Lansing and permanently enjoined identified some factors which are decidedly insufficient, by

all defendants “from prohibiting Lansing’s expressive themselves, to justify a finding of a close nexus between the

activities within the leased areas of Riverside Drive outside state and a private actor.

the north and south gates.” In his memorandum and opinion

and order, the district judge made the following conclusions Consequently, it is now well-established that state

of law: regulation, even when extensive, is not sufficient to justify a

finding of a close nexus between the state and the regulated

! Lansing’s claims with respect to events occurring in entity. See, e.g., American Manufacturers, 119 S.Ct. 977

1995 and 1996 were time-barred, and only the events of (holding that despite location in state’s “regulatory web,”

May 1997 were properly before the court. private insurer’s decision to withhold payment for disputed

worker’s compensation claim not attributable to the state);

! The City of Memphis and its subdivision the Memphis Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (holding private

Park Commission “actively participated in barring Mr. school’s personnel decisions not attributable to the state,

Lansing’s speech,”and hence there was state action on despite “extensive regulation of the school generally”); Blum

the part of the city. v. Yaretsky, 457 U.S. 991 (1982) (refusing to hold New York

State responsible for nursing home’s patient transfer

! The nexus between the activities of the city and of decisions, “although it is apparent that nursing homes in New

Memphis in May was sufficiently close to attribute the York are extensively regulated”); Jackson, 419 U.S. 345

action of Memphis in May to the state, and hence there (refusing to find state action in electric company’s decision to

was state action on the part of Memphis in May. terminate service, notwithstanding that it was “a heavily

regulated utility with at least something of a governmentally

! Lansing’s speech warranted protection under the First protected monopoly”); Adams v. Vandemark, 855 F.2d 312

Amendment. (6th Cir. 1988) (holding private not-for-profit corporation was

not a state actor, even though subject to state and federal

! The area between the event barriers and the traffic regulation); Crowder v. Conlan, 740 F.2d 447 (6th Cir. 1984)

barriers was a traditional pubic forum. (holding state was not responsible for private hospital’s

! The defendants’ restrictions on Lansing’s speech were personnel decisions even if state regulation was “extensive

not narrowly tailored to serve a significant government and detailed”).

interest, nor did they leave open ample alternative Equally well-established is the principle that neither public

channels of communication. funding nor private use of public property is enough to

! Injunctive relief was appropriate, but since Lansing establish a close nexus between state and private actors. See,

did not present proof as to damages, damages would not e.g., Rendell-Baker, 457 U.S. 830 (finding private school’s

be awarded. personnel decisions not attributable to the state, despite the

fact that “virtually all of the school’s income was derived

In the wake of the district court’s ruling, Memphis in May from government funding””); Blum, 457 U.S. 991 (refusing

filed its notice of appeal, and Lansing moved for an award of to hold New York state responsible for nursing home’s patient

attorney’s fees, pursuant to 42 U.S.C. § 1988. Each of the transfer decisions, even though the state subsidized operating

12 Lansing v. City of Memphis, et al. Nos. 98-5688/6743 Nos. 98-5688/6743 Lansing v. City of Memphis, et al. 9

Wolotsky, 960 F.2d at 1335. Lansing urges that this test is defendants opposed the motion for attorney’s fees, arguing

met here, since the city attorney’s office corresponded with that the district court should not rule on it until the pending

Memphis in May’s attorney regarding Lansing, and because appeal on the merits was resolved. However, the district

city police officers asked Lansing to move from the liminal court entered an order granting Lansing’s motion; Memphis

area. However, neither of these actions imply “such coercive in May filed its notice of appeal of that order as well; and the

power” that the choice of Memphis in May to request that two appeals have now been consolidated. In the meantime,

Lansing move outside the traffic barricades must “in law” be the City of Memphis has paid Lansing the full amount of

deemed that of the city. attorney’s fees sought in his post-judgment motion.

The record indicates only one letter from the city attorney’s DISCUSSION

office to Memphis in May’s attorney, which includes simply

an offer to assist in the determination of “constitutional legal Pursuant to Fed. R. Civ. P. 52(a), findings of fact by a

boundaries for protected speech,” and a request to consider district judge are not reversed unless “clearly erroneous.”

the issue when planning the next year’s event. This is hardly Owens-Illinois, Inc. v. Aetna Cas. & Sur. Co., 990 F.2d 865,

“significant encouragement” of Memphis in May’s decision 870 (6th Cir. 1993). We review de novo conclusions of law

to ask Lansing to leave; in fact, if anything, it seems to and mixed questions of law and fact. Golden v. Kelsey-Hays

encourage the opposite result. Furthermore, the involvement Co., 73 F.3d 648, 653 (6th Cir. 1996); Sandler v. AII

of Memphis police officers in Lansing’s removal from the Acquisition Corp., 954 F.2d 382, 384-5 (6th Cir. 1992).

liminal space occurred solely at Lansing’s own request.

Again, this can hardly be seen as an exercise of “coercive State Action Requirement

power” over Memphis in May by the city; but for Lansing’s

insistence, the city would not have been involved at all. We It is undisputed that First and Fourteenth Amendment

therefore conclude that the state compulsion test is not met. protections, codified in 42 U.S.C. § 1983, are triggered only

in the presence of state action and that a private entity acting

c. The Nexus Test on its own cannot deprive a citizen of First Amendment

rights. See, e.g., Flagg Brothers Inc. v. Brooks, 436 U.S. 149

Under the nexus test, “the action of a private party (1978) (“most rights secured by the Constitution are protected

constitutes state action when there is a sufficiently close only against infringement by governments”); Hudgens v.

nexus between the state and the challenged action of the NLRB, 424 U.S. 507 (1976) (“It is, of course, a commonplace

regulated entity so that the action of the latter may be fairly that the constitutional guarantee of free speech is a guarantee

treated as that of the state itself.” Wolotsky, 960 F.2d at 1335. only against abridgment by government, federal or state.”).

The cases establish no clear standard for identifying a Memphis in May contends that the district court erred when

“sufficiently close nexus.” Rather, the Supreme Court it ruled that Memphis in May, despite its status as a private

reminds us that “readily applicable formulae may not be corporation, operated as a state actor in ejecting Lansing from

fashioned” for finding state action in civil rights cases; such the area between the barricades.

a finding “can be determined only in the framework of the

peculiar facts or circumstances present.” Burton v. However, a private entity can be held to constitutional

Wilmington Parking Authority, 365 U.S. 715, 726 (1961); see standards when its actions so approximate state action that

also Lugar, 457 U.S. 922, 939 (calling the state action they may be fairly attributed to the state. See, e.g., American

determination a “necessarily fact-bound inquiry”). Although Manufacturers Mutual Insurance Co. v. Sullivan, 119 S.Ct.

977, 985 (1999); Lugar v. Edmonson Oil Co., Inc., 457 U.S.

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

922, 937 (1982). The Supreme Court in Lugar identified a express condition of both the lease and the park use

two-part approach to the question of “fair agreement was that Memphis in May would “comply with the

attribution,”effectively requiring that the action be taken (a) directives of the Memphis Police Department and the

under color of state law, and (b) by a state actor. See Lugar, Memphis Fire Department to minimize interference with

457 U.S. at 937. In this circuit we have applied three tests to traffic in and out of said area” and “provide . . . Security

help in determining when the Lugar conditions are met. and/or Traffic Control based on the guideline” furnished by

These are: (1) the public function test; (2) the state the city agency. Additionally, according to the city council

compulsion test; and (3) the symbiotic relationship or nexus resolution, “streets will open before the time listed if the

test. See, e.g., Brentwood Academy v. Tennessee Secondary streets are cleared and approved by Memphis Police

Schools Athletic Association, 180 F.3d 758, 763 (6th Cir. Department Traffic Bureau.” These provisions indicate quite

1999); Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir. clearly that although Memphis in May had permission from

1995); Wolotsky v. Huhn, 960 F.2d 1331 (6th Cir. 1992). the city to put its streets to special use during the time of the

Each should be considered in turn. festival, the city retained ultimate control of the streets at all

times. The City of Memphis, not Memphis in May, made the

a. The Public Function Test decision to close Riverside Drive to traffic, and the City of

Memphis retained decision-making authority over issues of

The public function test requires that “the private entity traffic control and safety. There is nothing in the record to

exercise powers which are traditionally exclusively reserved indicate that Memphis in May usurped “powers which are

to the state, such as holding elections or eminent domain.” traditionally exclusively reserved to the state” by applying for

Wolotsky, 960 F.2d at 1335 (internal citations omitted). See and 3receiving permission to put the street to a special, limited

also Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 use. Hence, we conclude that the public function test is not

(1974) (holding that provision of utility service is not a power met here.

reserved exclusively to the state).

b. The State Compulsion Test

Lansing asserts that in the operation of its festival,

Memphis in May maintained control over the public streets The state compulsion test requires that a state “exercise

surrounding Tom Lee Park, a function usually reserved to the such coercive power or provide such significant

city. We need not reach the question of whether control of encouragement, either overt or covert, that in law the choice

city streets is a public function in the tradition of eminent of the private actor is deemed to be that of the state.”

domain and public elections, however, because Lansing fails

to establish that Memphis in May actually had exclusive

control of the streets surrounding the festival. Although it is

true that Memphis in May was the lessee and/or licensee of citizen must comply with the law, perhaps not every user of Tom Lee

the streets in question and, as such, 2exercised more control Park is expected to determine the applicable law.

over them than the average citizen, it is also true that an 3

Lansing also asserts, in the alternative, that “Memphis in May sets

itself up as decision-maker, judging who can be on Riverside Drive and

2 who can speak on that street. It is precisely this authoritative role that

See, e.g., the park use agreement, by which Memphis in May subjects Memphis in May to constitutional scrutiny.” This argument begs

“accepts responsibility for determining and complying with all applicable the question, however. If Memphis in May is found to be a private actor,

rules, regulations, ordinances, statutes, policies, and procedures of it can judge who can speak on Riverside Drive without constitutional

federal, state, county and city authorities and agencies.” While every scrutiny.