Samantha Sistrunk v. City of Strongsville and Bush-Quayle '92 Committee, Inc.

SPIEGEL, District Judge,

dissenting.

Today, the majority concludes that neither the City of Strongsville nor the Bush-Quayle ’94 Committee violated Ms. Sistrunk’s constitutional rights. I believe the majority’s decision is erroneous. Accordingly, I respectfully dissent.

First, the majority decides an issue that I believe is not before the Court. As a result, the majority unnecessarily resolves a constitutional question when this case was before the Court on the more mundane question of state action. Second, I believe the majority has misapplied the Supreme Court’s holding in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, — U.S. -, 115 S.Ct. 2338 , 132 L.Ed.2d 487 (1995). In fact, the majority may have turned the narrow holding of Hurley on its head in order to defeat Ms. Sistrunk’s First Amendment claim.

The United States Supreme Court generally follows a policy of avoiding unnecessary adjudication of constitutional issues. United States v. National Treasury Employees Union, — U.S. -, -, 115 S.Ct. 1003, 1019 , 130 L.Ed.2d 964 (1995) (citing Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341 , 56 S.Ct. 466, 480 , 80 L.Ed. 688 (1936) (Brandeis, J., concurring)). In Ash-wander, Justice Brandéis identified numerous doctrines used by the Court to avoid needless adjudication of constitutional questions including standing, mootness and ripeness. For purposes of this appeal, Justice Brandéis’ most important admonition was that the “Court will not pass upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.” Ashwander, 297 U.S. at 347 , 56 S.Ct. at 483 (Brandeis, J., concurring); see also Burton v. United States, 196 U.S. 283, 295 , 25 S.Ct. 243, 245 , 49 L.Ed. 482 (1905) (“It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.”).

The Supreme Court developed the abstention doctrines in order to prevent premature and unnecessary decisions on federal constitutional questions. See Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 501-02 , 61 S.Ct. 643, 645-46 , 85 L.Ed. 971 (1941) (requiring courts to withhold decision on the unconstitutionality of state law until pending proceedings in state court can pro *201 vide definitive construction of state statutes). The Court stressed that judicial restraint is even more important when a case presents an issue of social or political significance. “The complaint of the Pullman porters undoubtedly tendered a substantial constitutional issue. It is more than substantial. It touches a sensitive area of social policy upon which the federal courts ought not enter unless no alternative to its adjudication is open.” Id. at 498 , 61 S.Ct. at 644 .

In this instance, the majority fails to follow the Supreme Court’s guidance. The issue on appeal is strictly the jurisdictional question whether the conduct in question amounts to state action. A threshold hurdle in any 42 U.S.C. § 1983 action is a showing that the infringement resulted from conduct performed under .the “color, of state law.” See Hurley, - U.S. at -, 115 S.Ct. at 2344 (quoting Shelley v. Kraemer, 334 U.S. 1, 13 , 68 S.Ct. 836, 842 , 92 L.Ed. 1161 (1948) (“[T]he guarantees of free speech and equal protection guard only against encroachment by the government and ‘erec[t] no shield against merely private conduct’-”)). Accordingly, a First Amendment ruling based upon Hurley is not only unnecessary, but premature since Ms. Sistrunk does not have a claim if she cannot show state action.

Second, the majority’s application of Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, — U.S.-, 115 S.Ct. 2338 , 132 L.Ed.2d 487 (1995), to this case is improper. In Hurley , plaintiffs, gay, lesbian and bisexual Irish-Americans, sought to be included in a parade sponsored by a veterans organization. The veterans argued that the application of Massachusetts’ public accommodations law to compel participation by the gays in their parade violated the veterans’ freedom of speech. The Supreme Court agreed and found the public accommodations law to be unconstitutional as applied in this context.

Although it recognizes that Hurley did not involve a First Amendment claim on the part of the plaintiffs, the majority finds the facts of the two cases so analogous as to “strongly suggest that the city could not have required the committee to include in the rally persons imparting a message that the committee did not wish to convey.” This analysis is incorrect for several reasons. First, the factual context of the two cases is distinct enough to warrant deeper investigation before blind adherence to the conclusion in Hurley . Allowing Ms. Sistrunk to attend the rally with her button does not necessarily mean that she is participating in the rally. Second, the Court in Hurley appears to have limited the holding to its context and is completely inapplicable in this situation. Finally, the majority ignores the Supreme Court’s and this Circuit’s methodology for examining First Amendment claims involving public fora.

Unlike the gay marchers, Ms. Sistrunk did not seek to intrude upon the Committee’s speech by participating in the proceedings. Instead, she wished to attend the rally, and at the same time, express her support for Mr. Clinton by wearing a button.

The majority equates Ms. .Sistrunk’s desire to attend the Bush-Quayle Rally with the gay’s wish to march in the St. Patrick’s Day Parade. The majority concludes that being a member of the rally’s audience is akin to marching in the parade. I disagree. A marcher in the parade is an active participant in the event, while one in attendance at a political rally is merely a spectator. In actuality, marching in a parade is equivalent to speaking at a rally since both are involved in conveying the message.

On the other hand, the folks along a parade route or in á public square during a rally are the audience. The audience comprises those present who can see and hear the event. 1 In fact, both events are pointless without an audience.

The majority counters that Ms. Sistrunk “could have stood with her button on the sidewalk leading up to the rally to express her support for [President] Clinton....” Forcing an individual to stand outside the square would be like, forbidding the gay Irish-Americans from standing on a street *202 corner along the parade route. It is doubtful that the Supreme Court would find such action acceptable.

In addition to the factual distinctions, Hurley ’s legal conclusions are also inapplicable in this situation. In Hurley , the Court held that First Amendment forbids a State from “compel[ling] affirmance of a belief with which the speaker disagrees.” Hurley , — U.S. at -, 115 S.Ct. at 2347. The question here is not whether the City can require action by the Bush-Quayle Committee, but rather, whether granting a private entity the power to exclude citizens from a traditional public forum' based upon their viewpoint amounts to state action.

In Hurley , the plaintiffs fought exclusion from the St. Patrick’s Day Parade as a violation of the Massachusetts public accommodations law. They, however, failed to argue that, their First Amendment rights were violated by the exclusion. By contrast, Ms. Sistrunk argues that the First Amendment precludes the City and the Committee from excluding her irom a traditional public forum based upon her viewpoint (i.e., wearing a political button). The balance struck in Hurley is between a state law and the First Amendment. The Supreme Court had no difficulty finding that the Massachusetts public accommodations law must yield to the First Amendment rights of the Boston Veterans.

The conflict between the First Amendment rights of two individuals, however, is a much different and more difficult inquiry. The Court did not address this issue in Hurley . On the other hand, the Court has only upheld viewpoint-based restrictions when the regulation is narrowly tailored to promote a compelling state interest. Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 , 103 S.Ct. 948, 954 , 74 L.Ed.2d 794 (1983).

In a nearly identical factual situation, this Court developed a methodology for confronting the difficult issues presented here. Bishop v. Reagan-Bush ’84, 1987 WL 35970 , 1987 U.S.App. LEXIS 6669 (unpublished) (6th Cir. May 22,1987). Although this case is unpublished, I believe it provides a helpful guidepost and should have been followed in this instance.

In Bishop , the plaintiffs attempted to attend a political rally being held on Fountain Square in downtown Cincinnati. They carried signs critical of the Reagan Administration or its policies, but security confiscated the signs before allowing them to enter the square. The district court dismissed all claims finding that the City permit allowed the defendants to take whatever action they desired with Fountain Square. Bishop v. Reagan-Bush ’84 Committee, 635 F.Supp. 1020 (S.D.Ohio 1986). This Court reversed. The proper inquiry starts with a determination of the type of forum involved. Bishop, 1987 WL 35970, at *3 ,1987 U.S.App. 6669, at *6. Then, the trial court must determine if the City has the power to convert it into a private forum. Id. 1987 WL 35970, at *3 , 1987 U.S.App. 6669, at *9. If so, the court must address the questions of state action and qualified immunity. Id. Finally, the court must decide if the limitations employed comport with reasonable time, place or manner regulations.

The fundamental question is how much control over a traditional public forum may a municipality cede to a private group. The Supreme Court has expressed a strong desire to protect public fora as an important safeguard of the First Amendment. See e.g., Perry, 460 U.S. at 45 , 103 S.Ct. at 954 (“In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed.”); Schwitzgebel v. City of Strongsville, 898 F.Supp. 1208, 1216 (N.D.Ohio 1995) (“In essence, public fora serve as bulwarks protecting the right of all persons, especially those who have no access to any other outlet, to speak their minds freely. Courts must not allow the government to overcome the bastions protecting such an important right through so simple an exercise as the granting of a permit.”). The Sixth Circuit noted that there is “the possibility that the nature of certain public forums cannot be altered, either by government fiat or private will.” Bishop, 1987 WL 35970, at *2 , 1987 U.S.App. 6669, at *6.

*203 In this ease, the district court did not determine whether the City had the power to convert a public forum into a private forum through the use of a permit. Compare Community for Creative Non-Violence v. Hodel, 628 F.Supp. 528 (D.D.C.1985) (allowing government to convert an otherwise public forum into a non-public forum through the use of a permit) with Irish Subcommittee v. Rhode Island, Heritage Commission, 646 F.Supp. 347 (D.R.I.1986) (holding government cannot change the essence of public forum). Instead, the district court determined that no state action existed. The record has not been sufficiently developed on either question. Accordingly, I would reverse and remand this ease for further factual development of these issues.

. Audience is a "group of spectators at a public event; listeners or viewers collectively, as in attendance at a theater, concert, or the like...." The Random House Dictionary, unabridged edition (1979).