Petition for Writ of Certiorari — Memorial Day Day Weekend Salute to Veterans Corp. v. Wickersham (No. 07-142)

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Supreme Court, U.S.

(1) FILE

No. “02-142 AUG 6 = 2007

IN THE OFFICE OF THE CLERK

Supreme Court of the United States

MEMORIAL DAY WEEKEND SALUTE

TO VETERANS CORPORATION, PETITIONER

Vv.

BILL WICKERSHAM; MAUREEN DOYLE

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

DALE C. DOERHOFF

Counsel of Record

Cook, Vetter, Doerhoff &

Landwehr, P.C.

231 Madison Street

Jefferson City, MO 65101

(573) 635-7977

Attorneys for Petitioner

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QUESTIONS PRESENTED

3. Whether the Eighth Circuit departed from

established principles that previously protected non-

governmental organizers of public events and festivals

like the Memorial Day air show from “state actor” status

under 42 U.S.C. § 1983 and created a conflict with

decisions from the Fourth and Sixth Circuits.

2. Whether the First Amendment allows the non-

governmental organizers of public events and festivals

such as the Memorial Day air show to choose their

message without being compelled to include extraneous

messages.

RULE 29.6

Petitioner has no parent corporations, and there are no

publicly held companies that hold 10% or more of

petitioner’s stock

TABLE OF CONTENTS

Page

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APPENDIX

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TABLE OF AUTHORITIES

Page

CASES

DIENER V. REED, 232 F.SUPP.2D 362, 383 (M.D.

EAR ene NCL ae Pe REE OT TT oa 17

EDMONDSON V. LEESVILLE CONCRETE CO., INC., 500

Rn IE CITE Diiitinsscisiiibisicrneidaiiapialeicimedinidiaeseuteibiieansiin 13, 15

FLAGG BROS., INC. V. BROOKS, 436 U.S. 149, 163

Sor icasticeshtbcacpneihliee deenicaipalecaidiieaibapie 14, 15

GAY VETERANS ASSOCIATION, INC. v. AMERICAN

LEGION, GEE F SUPP. GIG, TO 1B nnn. cccicicscocsssssrevecseierscncevecses 15

GRIFFIN V. DEPARTMENT OF VETERANS AFFAIRS,

Se ae En Gis ED ses itccticicinnisnnsconinccitictrsinnsaiontnbintsiai 26

HAWKINS V. CITY AND COUNTY OF DENVER, 170

ee ee Ce is a ivicscictacinstensiniinsiciiicecideastieipennetitic 23, 24

HURLEY V. IRISH-AMERICAN GAY, LESBIAN &

BISEXUAL GROUP OF BOSTON, 515 U.S. 557 (1995).. passim

INTERNATIONAL SOCIETY FOR KRISHNA

CONSCIOUSNESS, INC. V. LEE, 505 U.S. 672 (1992) ..... 24, 25

JACKSON V. METROPOLITAN EDISON Co., 419 U.S.

Be, CD iinistisnissiniiutiinicsiiateiaeenticiitmnseniianiniianibmaemenineaiins 15

LEE V. KATZ, 276 F.3D 550 (9TH CIR. 2002) ..........secsssesserenees 17

MARSH V. ALABAMA, 326 U.S. 501 (1946)............cesssssseesseeeee 15

MIAMI HERALD PUBLISHING CO. V. TORNILLO, 418

Sree Ey UN UT i hicssiciseciceiicihaiidiatctchiel cinch adeaghiiaaibaiaien 22

NIXON V. CONDON, 286 U.S. 73 (1932) ......scsccsoccosessssessereserensees 15

PACIFIC GAS & ELECTRIC Co. V. PUBLIC UTILITIES

COMMISSION, 475 U.S. 1, 10 (1986) ..........:csccscessssssesssesesseree 22

PRUNEYARD SHOPPING CENTER V. ROBINS, 447 U.S.

, 8 ERP w toners FARE NEP RD Hee OER CT 10, 19

SIXTH AND FOURTH CIRCUITS - LANSING V. CITY OF

MEMPHIS, 202 F.3D 821 (6TH CIR. 2000)............ccccs000e passim

TERRY V. ADAMS, 345 U.S. 461 (1953) ........sccccscscssssssssssssssseres 15

UAW, LOCAL 5285 V. GASTON FESTIVALS, 43 F.3D

Pe Tae A, FI ccs peisitiisansinianivcisinenniicgntvtiedlimeniipbindie passim

VILLEGAS V. CITY OF GILROY, 363 F.SUPP.2D 1207

CI I cniiiiccracinnerdeiicaieildticiiniibbaiapat eit cg tas 17

WOOLEY V. MAYNARD, 340 U.S. 705, 714 (1977) .0.......sescessees 22

STATUTES

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INTRODUCTION

In a case that has drawn the attention of

organizers of Memorial Day events, air shows, and

other public events and festivals, the Eighth Circuit has

broadened the scope of “state actor” liability under 42

U.S.C. § 1983 beyond accepted understandings. As a

result of the Eight Circuit decision, non-governmental

organizers of public events and festivals like Memorial

Day air shows are faced with an all but impossible

dilemma and an enormous financial risk. If they

continue to rely on public services, especially police

protection, will they become “state actors” under §1983

and lose their existence to back-breaking fee awards as

they try to protect themselves from unwanted

messages?

When confronted with substantially identical

facts, the Fourth and Sixth Circuit came down on the

side of non-governmental organizers and held that they

do not become “state actors” under §1983. This Court

needs to resolve this conflict and eliminate the

uncertainty now hanging over public events and

festivals all over the country.

In addition to the opportunity to resolve the

“state actor” issue and settle the conflict between the

circuits, this case also presents a unique opportunity for

the Court to clarify the scope of First Amendment

rights of organizers of public events and festivals to

their own message and their freedom from unwanted

messages. The Eighth Circuit unduly restricted the

First Amendment principles set out in Hurley v. Irish-

American Gay, Lesbian & Bisexual Group of Boston,

515 U.S. 557 (1995), by adding “disruption” and

“dilution” tests that are not found in Hurley and are

inconsistent with Hurley’s principles. Further, the

Eighth Circuit deprived persons of AHurley’s

protections by treating the nonpublic forum for a

Memorial Day event as if it were a commercial

shopping center. The Court’s review is badly needed to

protect commemorative festivals from losing their

identity.

OPINIONS BELOW

The order of the United States District Court for

the Western District of Missouri granting a preliminary

injunction is reprinted at App. 48a-ll5a and is

published at 371 F.Supp.2™ 1061. The order and

judgment of the United States District Court for the

Western District of Missouri granting a permanent

injunction is reprinted at App. 2la-47a and is not

otherwise published. The Eighth Circuit decision is

reprinted at App. la-20a and is published at 481 F.3d

591. The court of appeals’ order denying rehearing and

rehearing en banc is reprinted at App. 116a and is not

otherwise published.

JURISDICTION

The Eighth Circuit rendered its decision on

March 22, 2007, and denied rehearing and rehearing en

banc on May 8, 2007. Petitioner invokes this Court’s

jurisdiction under 28 U.S.C. §1254(1).

RELEVANT PROVISIONS

The First Amendment to the United States

Constitution provides, in pertinent part:

Congress shall make no law ... abridging

the freedom of speech....

Title 42, Section 1983 of the United States Code

provides, in pertinent part:

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State..., subjects, or causes

to be subjected, any citizen of the United

States...to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to

the party injured in an action at law, suit

in equity, or other proper proceeding for

redress,....

STATEMENT

A. Factual Background

Petitioner Memorial Day Weekend Salute to

Veterans Corporation (“Salute”) is a non _ profit

organization whose purpose is to honor and remember

veterans on Memorial Day weekend. Since 1993 Salute

has staged its annual Memorial Day Weekend Salute to

Veterans Air Show at the Columbia Regional Airport.

The airport is owned by the city, but lies outside the

city limits. The city gives Salute control over the

secured tarmac’ for the show. App. 2a-3a.

' The “secured tarmac” where the static displays, exhibits and

ceremonies are held during the air show is the paved area inside

the airport security fence, next to the runway, which is used to

park and taxi airplanes on days other than the air show. There are

three gates for ingress and egress between the motor vehicle

The two day event is free and open to the public,

and tens of thousands of people attend each year. In

addition to feats of aerial acrobatics performed by

military planes, the event features static airplane

displays, exhibits by military recruiters, and food on

the airport’s secured tarmac. During the noontime

hour each day there is a ceremony to honor fallen

veterans at which the national anthem is played, the

names of fallen Boone County service members are

read aloud, and the air show’s honored guests are

introduced to the crowd. The stated purpose of the air

show is “to honor and remember” service members,

past and present. App. 2a-3a.

A resolution passed by the Columbia city council

authorizes the city manager to execute a contract with

Salute for exclusive control of the airport during the

event, subject to the city’s right to retake control in the

event of an emergency. Salute does not pay for this

use. During the remainder of the year the airport is

controlled by the city, and the tarmac is not open to

general public access. App. 3a.

Salute is responsible for deciding on the content

of the air show, including the schedule of events, the list

of honored guests, and the exhibits that will be

displayed. Salute pays for liability insurance, the sound

system, and the fees and incidental costs associated

with the use of the military aircraft and does not

receive any city funds. In order to produce the

Memorial Day air show, Salute has 3,000 volunteers, 65

committee chairpersons, and raises about $100,000.00 in

parking lots at the airport and the secured tarmac. App. 54a; PI.

Ex. 22.

donations every year for the event. City personnel

retain responsibility for operating the airport during

the air show. In addition, the city’s airport manager

has borne primary responsibility for developing the

Ground Operations Plan for the air show and has

coordinated with the Federal Aviation Administration

to facilitate the air show’s compliance with federal

regulations. App. 3a-4a & 23a.

Salute includes a disclaimer in its media releases,

stating that the air show is presented solely by Salute

and should not be referred to as the Columbia Air Show

or “any other designation that would imply it is hosted,

organized, or in any way sponsored by the City of

Columbia.” The city’s contract with Salute also states:

“In no event shall the City and the Corporation be

deemed or construed to be joint venturers or partners.”

App. 4a.

Salute imposes a number of restrictions on the

behavior of the invitees on the secured tarmac during

the air show. Some of the rules are for safety and

others are limits on expressive activities, without

regard to content. There are rules against soliciting,

petitioning, leafleting, political campaigning, and

unauthorized signs. These rules are widely publicized

and often appear on Salute’s media releases about the

air show, on its website, and on signs at the entry gates.

Salute’s rules apply only within the secured tarmac

area which is accessed through several gates. App. 4a-

5a. Outside the gates, there are no rules limiting

expressive activities - anything goes. App. 58a-59a.

Wickersham and others protested on airport property

outside the gates for a number of years, without

incident. Wickersham depo. 53.

Columbia police officers provide security at the

air show. Salute provides no reimbursement to the city

for the officers’ time. The local police captain has

developed a security plan for the event each year which

incorporates Salute’s restrictions on expressive

activity. In 2004, the police wrote an interoffice memo

that officers were to advise persons that the tarmac

area was private property subject to protesting and

petitioning restrictions and to give trespass warnings

prior to arrest. App. 5a.

In 2004, Maureen Doyle attempted to distribute

antiwar fliers inside the secured tarmac. A Columbia

police officer confronted her and stated that she would

be arrested if she continued to hand out leaflets. Soon

more officers arrived, and one grabbed leaflets out of

her hands. Doyle then left the air show. App. 6a.

At that same air show, Bill Wickersham

attempted to collect signatures inside the secured

tarmac area on an initiative petition advocating

renewable energy.” He knew there was a rule against

petitioning on the secured tarmac. He wanted to be

arrested. He was approached by a police officer who

warned him that if he did not cease petitioning, he

2 Wickersham admitted in his testimony that his intention on

entering the secured tarmac with a petition was to be arrested in

order to make a point. Wickersham depo. 33-35. He further

testified that he believes the air show is a psychological operation

by the government to modify the behavior of the local audience,

especially the youth, and what he really wants to do is “have a

petition that petitioned against the military recruiting at the

Memorial Day air show.” Wickersham depo. 12-13.

would be arrested.’ After Wickersham refused to obey

the warning, the officer told him he was under arrest

and took him to the police command post where he was

issued a ticket for trespassing. Wickersham then left

the secured tarmac. The ticket was never prosecuted.

Pitf. Ex. 32a; Wickersham depo. 30-34.

The Columbia Regional Airport is the only

facility in the county capable of hosting the Memorial

Day air show. Boston depo. 107. Respondents and

others have numerous public fora in and around

Columbia for the expression of their ideas, including the

city parks, the area in front of the post office, an

amphitheater at the county courthouse, a speaker’s

circle next to the library at the University of Missouri,

and all the public streets and sidewalks. Wickersham

depo. 506-63. Salute has done nothing to restrict

anyone’s opportunities to express their ideas anywhere

else at any time.

B. Procedural History

Wickersham and Doyle brought this action

against Salute and the City of Columbia under 42

U.S.C. § 1983, seeking injunctive relief permitting them

to distribute leaflets, circulate petitions, and engage in

other expressive activities on the secured tarmac at

future air shows. They alleged violations of their First

Amendment rights to free expression, characterizing

the air show as a public forum. They argued that

although Salute was a private corporation, it was a

3 The officer noted in his report that the coordinator for Salute,

Mary Posner, authorized the trespass warning. Pltf. Ex. 32a. She

also signed a complaint.

state actor in its imposition of restrictions on free

speech given the degree of joint participation between

Salute and the city in staging the air show and

enforcing the restrictions. They also claimed that by

granting Salute discretion to determine who was

arrested at the air show, the city has ceded a public

function to Salute. App. 6a-7a.

On May 18, 2005 the district court granted a

temporary injunction permitting plaintiffs to distribute

leaflets and wear expressive clothing at the 2005 air

show, but not allowing them to circulate petitions or

engage in other forms of solicitation. App. 7a.

At the 2005 air show, leafleting and expressive

clothing were permitted as required by the preliminary

injunction; sign carrying was also allowed even though

it had not been specifically addressed in the order. At

the 2005 event, several persons handed out leaflets and

carried signs inside the secured tarmac. One protestor

ignored the district court’s order to refrain from

expressive activities during the solemn noon event.

Several members of the public submitted written

complaints to Salute about the presence of “protestors”

on the secured tarmac.‘ App. 7a-8a.

On March 3, 2006, after additional depositions

and hearings, the district court issued a permanent

injunction which incorporated its earlier order by

reference. App. 2la-47a. The district court ordered

Salute and the city to permit leafleting, sign carrying,

and the wearing of expressive clothing at future air

‘ There were nine cards with critical comments about anti-war

protestors at the air show. App. 26a-27a.

shows subject to reasonable restrictions on time, place,

and manner, except during Salute’s noontime

ceremony, during which unauthorized expressive

activities were not allowed. App. 8a-9a.

Salute appealed to the Eighth Circuit on both

the “state actor” finding and the district court’s failure

to protect Salute’s First Amendment right to its own

message. The cou t of appeals affirmed. It found that

Salute was a “state actor” for two reasons: 1) the role

of the Columbia police in enforcing Salute’s rules on the

tarmac; and 2) the assistance provided by the city in

planning and operating the air show. The court

attempted to distinguish contrary decisions from the

Sixth and Fourth Circuits — Lansing v. City of

Memphis, 202 F.3d 821 (6 Cir. 2000); UAW, Local 5285

v. Gaston Festivals, 43 F.3d 902 (4 Cir. 1995). App.

13a-14a.

The court of appeals further concluded that

Salute did not have a First Amendment right to control

the expressive content of its own event under Hurley v.

Irish-American Gay, Lesbian & Bisexual Group of

Boston, 515 U.S. 557 (1995), because of the court’s

conclusion that Salute’s message was not diluted by the

presence of a small number of protestors and that such

protests were not likely to be identified with Salute.

App. 17a-18a. The court of appeals avoided the

contention that Salute forfeited some of its right to

deliver its own message unimpeded by others when it

assumed the role of “state actor,” a position that the

plaintiff had advocated and to which the district court

agreed, without citation of any authority. App. 16a-17a.

The Eighth Circuit also said that Pruneyard

Shopping Center v. Robins, 447 U.S. 74 (1980), was

more relevant than Hurley on grounds that the

Memorial Day air show is somehow akin to a

commercial shopping mall. App. 18a.

The Eighth Circuit denied rehearing en banc.

App. 116a.

REASONS FOR GRANTING THE PETITION

The petition should be granted for two reasons.

First, the opinion of the Eighth Circuit conflicts

with Lansing v. City of Memphis, 202 F.3d 821 (6" Cir.

2000), and UAW, Local 5285 v. Gaston Festivals, 48

F.3d 902 (4 Cir. 1995), on the issue of whether the non-

governmental organizer of a public event or festival

becomes a “state actor” under 42 U.S.C. § 1983 if it

avails itself of municipal services on public property

and relies on the police to maintain order and enforce

the rules. The Lansing and Gaston opinions are

practically indistinguishable from this case on the

relevant facts. This case presents the Court with a

much-needed opportunity to eliminate conflicting

circuit rules regarding state actor status on the part of

non-governmental organizers of public events and

festivals such as air shows, art and music festivals, book

fairs, and the like.

Second, the Eighth Circuit’s opinion is a radical

departure from well-established First Amendment

protections against compelled speech. The opinion

unduly restricts Hurley v. Irish-American Gay,

Lesbian & Bisexual Group of Boston, 515 U.S. 557

(1995). This case presents a unique opportunity for the

Court to extend the First Amendment protections

articulated in Hurley to commemorative festivals in

general and Memorial Day events in particular, where

people choose to assemble for a shared purpose and do

not want to be compelled to include unwanted

messages.

I. THE COURT SHOULD CLARIFY WHETHER

THE NON-GOVERNMENTAL ORGANIZER

OF AN EVENT LIKE A MEMORIAL DAY AIR

SHOW OR OTHER PUBLIC FESTIVAL

BECOMES A “STATE ACTOR” UNDER 42

U.S.C.§ 1983 IF IT AVAILS ITSELF OF

MUNICIPAL SERVICES AND RELIES ON

THE POLICE TO MAINTAIN ORDER AND

COMPLIANCE WITH THE RULES.

People like to assemble for a shared purpose.

Sometimes they gather in small groups with family and

friends to celebrate a birthday, observe a wedding

anniversary, or mark the years since graduation. Other

times they gather in large crowds with people they

hardly know but with whom they share a common

interest or purpose. Most of the larger gatherings are

held on public property, such as parks, streets, plazas,

harbors or airports. All of them have one thing in

common — somebody has to be in charge, to plan,

schedule, finance, organize, support, carry out, and

clean up. With large festivals, the organizer is typically

a nonprofit corporation, staffed by volunteers and

funded by contributors.

Even though a non-governmental organizer and

its volunteers and contributors shoulder most of the

responsibilities for a public festival, there are certain

functions that traditionally remain in government

hands. Policing is one of those. Local and state police

typically provide traffic and crowd control outside the

venue. Inside, the police provide security and law

enforcement. These responsibilities include enforcing

laws against disturbing the peace, unlawful assembly,

and trespass. A trespass violation occurs when an

invitee fails to stay within the terms of the invitation by

breaking one of the rules.

One of the issues before the Court is whether a

non-governmental organizer loses its private status and

becomes a “state actor” if it turns to the police to deal

with a trespasser. A second issue is whether a non-

governmental organizer becomes a “state actor” by

working with the local government on the planning and

staging of a festival.

Lansing v. City of Memphis, 202 F.3d 821 (6"

Cir. 2000), and UAW, Local 5285 v. Gaston Festivals, 43

F.3d 902 (4 Cir. 1995), previously dealt with these

issues and held that the non-governmental organizer

did not become a “state actor” on either ground. The

Eighth Circuit reached a contrary result. The decisions

cannot be reconciled, and the circuits are clearly in

conflict, as a reading of the cases will show.

Lansing was a §1983 action by a “street

preacher” against the not-for-profit corporation that

sponsored the “Memphis in May” festival. The

preacher was asked to leave the event by a city

policeman, just as Doyle and Wickersham were asked

to leave the air show by a city policeman in this case.

The reason in both cases was the same - failure to

comply with the organizer’s rules. The district court

issued a permanent injunction barring “Memphis in

May” from prohibiting plaintiffs preaching within the

festival area. The organizer appealed. The Sixth

Circuit reversed, holding that the organizer was not a

“state actor”. Thus, the organizer could not be held

liable for violating the plaintiffs First Amendment

rights. In the course of its opinion, the Sixth Circuit

reviewed the controlling authorities. On the “nexus

test” to determine when there is a sufficiently close

nexus between the state and the challenged action of

the entity so that the action of the latter may be fairly

treated as that of the state itself, the court of appeals

found that “it is now well-established that state

regulation, even when extensive, is not sufficient to

justify a finding of a close nexus between the state and

the entity.” Jd. at 830. The court further stated there

is the equally well-established rule that “neither public

funding nor private use of public property is enough to

establish a close nexus between state and private

actors.” Jd. The court also recognized the rule that

“utilization of public services by private actors does not

convert private actions to a state action,” citing, among

other cases, Edmondson v. Leesville Concrete Co., Inc.,

500 U.S. 614, 612 (1991). Even though there was

evidence that there were two public officials on the

Memphis in May board, city and state funding,

coordination with city agencies regarding the

regulation of traffic and security at the festival, use of

city property, use of city employees, and numerous

other entanglements, the Sixth Circuit held that this

did not establish a nexus between the organizer and the

city. The division of labor actually demonstrated the

independence of their operations. Jd. at 832.

The Sixth Circuit specifically rejected the

plaintiffs argument — which was a key element in the

Eighth Circuit’s reasoning as well — that the festival

organizer was a “state actor” because it called on the

city police to enforce its rules by removing the plaintiff

from the festival grounds:

“Finally, neither the supply of

police officers to help enforce Memphis in

May’s decision to remove Lansing, nor the

city’s instruction to its officers not to

interfere with expressive speech activity

outside the lease space, indicates a nexus

sufficient to attribute Memphis in May’s

actions to the state.” 202 F.3d at 833.

The court went on to say that if asking the police

for assistance in this manner were all that was required

to find state action, “then every private citizen who

solicited the aid of the police in resolving disputes or in

ejecting unwanted persons would be transformed into a

state actor.” Id.

UAW, Local 5285 v. Gaston Festivals, Inc., 48

F.3d 902 (4° Cir. 1995), was a §1983 action against the

non-governmental organizer because it denied the union

access to the festival grounds to distribute literature.

The district court dismissed the suit upon a finding that

the organizer was not a “state actor.” The union

appealed. In affirming the dismissal, the court of

appeals observed that functions considered to fall

traditionally within the exclusive prerogative of the

State “compromise a very narrow category, subject to

‘carefully confined bounds,” citing Flagg Bros., Inc. v.

Brooks, 436 U.S. 149, 163 (1978).

After reviewing Supreme Court “state action”

cases,© the court of appeals found that “only those

undertakings that are uniquely sovereign in character

qualify as traditional and exclusive state functions.” 43

F.3d at 907. While many functions have been

traditionally performed by governments, very few have

been “exclusively reserved to the State.” Jd; quoting

Flagg Bros., 436 U.S. at 158. Accordingly, the court of

appeals held that the organization, management and

promotion of events such as festivals “do not fall within

the domain of functions exercised traditionally and

exclusively by the government. The government has

not traditionally been the sole provider of community

entertainment. Nor has it traditionally been the

exclusive organizer of festivals, parades or fairs.” 43

F.3d at 907-908.°

The plaintiffs in the Gaston Festivals case

argued that the festival organizer was a “state actor”

because the City of Gastonia had ceded control of its

town center to the organizer and by showing that the

city provided essential services to support the festival

such as police support, fire support, and the like. The

® This Court has identified as functions “traditionally exclusively

reserved to the State,” activities such as the administration of

elections, Nixon v. Condon, 286 U.S. 73 (1932); Terry v. Adams,

345 U.S. 461 (1953); the operation of a company town, Marsh v.

Alabama, 326 U.S. 501 (1946); eminent domain, Jackson v.

Metropolitan Edison Co., 419 U.S. 345, 353 (1974); and peremptory

challenges in jury selection, Edmonson v. Leesville Concrete Co.,

500 U.S. 614 (1991).

6 See also Gay Veterans Association, Inc. v. American Legion, 621

F.Supp. 1510, 1518 (S.D.N.Y. 1985), holding that the non-

governmental organizer of a Veterans Day parade on public

streets was not a “state actor” under 42 U.S.C. §1983 because

Veterans Day parades are not exclusively governmental functions.

court of appeals held that the involvement by the city

did not change the result. “The principle is that private

organizations who wish to use public property to

organize festivals, fairs, rallies, parades, or meetings,

are not chilled from doing so by the possibility that they

will be subject to liability as if they were agents of the

government.” 43 F.3d at 910.

The court looked at the practical effect of holding

otherwise. “The consequences of finding state action in

this case would be difficult to overstate.” 43 F.3d at

911. The court rightly observed that if it were to hold

that the incidental power to exclude others from public

property during the course of a limited, permitted use

transformed the permit holder into a state actor,

softball teams on the National Mall in Washington, D.C.

would be constitutionally obliged to afford due process

to those not allowed to play on the particular field at

the same time, every family that barbecues at a public

park would theoretically be barred from excluding

uninvited guests on constitutionally suspect grounds,

local churches could no longer use public facilities to

hold events for fear of violating the Establishment

Clause, and every picnic, wedding, company outing,

meeting, rally, and fair held on public grounds would be

subject to constitutional scrutiny merely because the

organizer had been granted exclusive use of city

facilities as well as authority to determine who may use

those facilities and what they may say while on the

public fora. 43 F.3d at 911. Because the festival

organizer was found to not be subject to liability as a

state actor under §1983 when it held its annual festival

in the City of Gaston, the proper course was to dismiss

the complaint against the festival organizer, because it

was not acting “under color of law.” Id.

The Lansing and Gaston Festivals cases

illustrate an important point that was overlooked by

the Eighth Circuit. Festivals are in a class by

themselves when it comes to deciding whether a non-

governmental organizer is a “state actor.” For one

thing, they are limited in time to a day or two. They do

not “hog” a venue. Others are free to stage their own

expressive activities on other days. A_ second

distinguishing feature is that a large, public festival

requires a considerable amount of prior planning and

coordination with public entities.

Cases decided after Lansing and Gaston

Festivals have noted these same distinctive features

and the difference they make in the result.”

A commemorative air show at a city-owned

airport requires a great deal of prior planning and

coordination with public entities. Of course, the airport

manager has to be involved in the plan. Yes, the city

retains the right to suspend the air show and reopen

the airport to other traffic if the need arises. Certainly,

the police have to provide security considering the size

of the crowd and the protection required for the

7 Villegas v. City of Gilroy, 363 F.Supp.2d 1207 (N.D. Cal.

2005), applied Lansing and the Gaston Festivals cases to shield the

Gilroy Garlic Festival Committee from a § 1983 lawsuit by

motorcycle club members who were expelled by the city police

from the Gilroy Garlic Festival at the request of the Committee for

refusing to remove their club vests. See Diener v. Reed, 232

F .Supp.2d 362, 383 (M.D. Penn. 2002), which applied Lansing and

Gaston Festivals to a claim involving a one-day permit for an event

in the park rather than a Lee v. Katz, 276 F.3d 550 (9% Cir. 2002),

where there was a long-term lease of a public forum.

military aircraft furnished by the Department of

Defense. Much more is required than merely asking

people and airplanes to show up on a certain day in the

hope that an air show might break out. But to say that

close cooperation with the city under these

circumstances constitutes “entwinement” for “state

actor” purposes punishes Salute for its diligence.

While the Eighth Circuit decision stands,

organizers of public events like Memorial Day air shows

and other public festivals are faced with enormous

financial risks if they continue to rely on public services

and become “state actors” under § 1983, exposed to

liability and back-breaking fee awards if they or their

volunteers guess wrong as they try to maintain control

over their message. Ostensibly, an organizer is

supposed to be able to ensure that its message is not

submerged by others, according to the Eighth Circuit.

App. 19a. But how is this supposed to work? At the

2005 air show a protestor ignored Salute’s right to have

other messages suspended during the solemn ceremony

at noon when the names of Boone County men killed in

action were read. Trying to stop the protestor during

this solemn time would have magnified the disruption,

according to the officer in charge, so nothing was done.

This would never have happened if the competing

messages had been kept outside the gates, as in former

years.

As a practical matter, the only way a festival

organizer can enforce any rules is to be able to ask the

police for assistance in removing persons who have lost

their status as invitees after they have broken the rules

upon which their invitation was conditioned. Unless

something is done about the Eighth Circuit decision,

non-governmental organizers will lose control of their

message and eventually the support of their volunteers

and contributors, who will not want to feed the cowbird

in the nest.

II. THE DECISION BELOW IS A RADICAL

DEPARTURE FROM WELL-

ESTABLISHED FIRST AMENDMENT

PROTECTIONS AGAINST COMPELLED

SPEECH, AND THE COURT SHOULD

CLARIFY THE RIGHTS OF NON-

GOVERNMENTAL ORGANIZERS OF

PUBLIC EVENTS TO THEIR OWN

MESSAGE AND FREEDOM FROM

UNWANTED MESSAGES.

In the court below, Salute’s rights were

ultimately determined by the choice of an analogy,

which in turn led to a choice of law. Is the Memorial

Day air show more akin to a shopping mall or a festival

parade? The Eighth Circuit chose the shopping mall

and applied PruneYard Shopping Center v. Robins, 447

U.S. 74 (1980), to hold that Salute does not have a First

Amendment right to keep unwanted messages off the

tarmac. App. 18a. The court refused to apply the

festival parade case, Hurley v. Irish-American Gay,

Lesbian & Bisexual Group of Boston, 515 U.S. 557

(1995), and it added additional tests not found in that

decision.

The first test that the Eighth Circuit added to

Hurley was the requirement of disruption.

“The presence of nondisruptive

expressive conduct during the remainder

of the air show was not shown to threaten

to alter Salute’s message.” App. 17a.

Nowhere in Hurley did this Court say that

alternate messages could be injected into the St.

Patrick’s Day Parade of South Boston if they were

“nondisruptive.” Hurley was all about protecting a

speaker’s “autonomy to choose his own message.” 515

U.S. at 573. Disruption or lack of disruption from the

unwanted messages has nothing to do with it. The

Court noted that the plaintiffs in Hurley marched

“uneventfully” the one year they were allowed to do so

under a state-court order. 515 U.S. at 561. But the fact

they were nondisruptive was of no help to them in the

final analysis.

A second test added to Hurley by the Eighth

Circuit was a dilution test.

“There is no evidence that Salute’s

message was diluted by the presence of a

small number of sign carriers and

leafleters at the 2005 air show, which was

attended by over 25,000 people.” App.

17a.

There is no “dilution” exception in Hurley. If

this Court had meant to add one it had ample evidence

upon which to do so. The annual St. Patrick’s Day

Parade of South Boston includes as many as 20,000

marchers and draws up to 1 million watchers. 515 U.S.

at 560-61. The plaintiffs were only one group — a few

fish in a sea of many. Nevertheless, the Court ruled

that the parade sponsor had a First Amendment right

to keep them out of the parade.

How many antiwar leaflets does it take at a

Memorial Day air show to turn people’s attention away

from honoring and remembering veterans to debating

the political dimensions of the war? Disruption

happens one leaflet and one person at a time. The

transformation is immediate and substantial for each

person affected. For each of them, the Memorial Day

message that Salute and its many volunteers and

sponsors work so hard and pay so much to create is

submerged.

As this Court said in Hurley, one’s right to

choose one’s content under the First Amendment “boils

down to the choice of a speaker not to propound a

particular point of view... .” 515 U.S. at 575. Salute

does not want the air show to be a political forum. It

does not want pro-war leafleting or anti-war leafleting

or any other leafleting to promote messages that are

not about honoring and remembering veterans. Over

the years, it has consistently maintained neutrality by

keeping all extraneous messages off the secured

tarmac. It wants to keep it that way. Its interests in

this regard are consistent with hundreds if not

thousands of other sponsors of events on public

property across the country. The court of appeals’

decision diminishes their First Amendment rights

under Hurley, and the Court should grant this petition

in order to redress the diminution.

Hurley recognized that inclusion of unwanted

messages in the St. Patrick’s Day Parade would run the

risk that the public would perceive such messages were

“worthy of presentation and quite possibly of support

as w’'.” Hurley, 515 U.S. at 574. For the lower court

to say in this case that there is no reasonable likelihood

that the public will conclude that the plaintiffs’ message

reflects the beliefs of Salute flies in the face of a

contrary conclusion by this Court based on accepted

standards of human perceptions. Activities on the

secured tarmac at the air show are an integral part of

the expressive message, conveyed through static

displays and ceremonies. Under the Hurley decision,

Salute should not be compelled to accept other

messages at that same place and time.

“Since all speech inherently involves

choices of what to say and what to leave

unsaid, one important manifestation of the

principle of free speech is that one who

chooses to speak may also decide what not

to say.” Hurley, 515 U.S. at 573.

The First Amendment protects “both the right to

speak freely and the right to refrain from speaking at

all.” Wooley v. Maynard, 340 U.S. 705, 714 (1977).

Requiring an individual to present a viewpoint not its

own is the equivalent of forbidding the speaker to say

what it wishes to say. See Miami Herald Publishing

Co. v. Tornillo, 418 U.S. 241, 256 (1974). The

government cannot force a speaker to tailor its speech

to an opponent’s agenda or respond to an opponent’s

arguments when it prefers to be silent. See Pacific Gas

& Electric Co. v. Public Utilities Commission, 475 U.S.

1, 10 (1986). The choice of a speaker not to propound a

particular point of view is presumed to lie beyond the

government’s power to control, and “when

dissemination of a view contrary to one’s own is forced

upon a speaker . . . the speaker’s right to autonomy over

the message is compromised.” Hurley v. Irish-

American Gay, Lesbian and Bisexual Group of Boston,

515 U.S. 557, 575-76 (1995).

What Respondents are attempting to do, and

what the Eighth Circuit decision is allowing them to do,

is force Salute to provide a forum on the secured tarmac

during the air show for other messages, including anti-

military and anti-war advocacy. Respondents and

others similarly situated are not offering to contribute

anything toward the event, so the effect of their

request is to have Salute and its volunteers and

contributors play host for speech with which they do

not agree. The First Amendment does not permit their

rights to be disregarded in this manner. They, too,

have rights to free speech, which include the right to

not be compelled to support speech with which they

disagree.®

Hawkins v. City and County of Denver, 170 F.3d

1281 (10 Cir. 1999), shows how Hurley has been

applied by another circuit. Plaintiffs were a group of

union musicians who wanted to picket and distribute

leaflets expressing their grievances against the

Colorado Ballet in the “Galleria” area of the Denver

Performing Arts Complex. There was evidence that

Denver allowed leaseholders to promote their

businesses within the Galleria through the use of signs.

There was also evidence that Denver made brochures

listing events at other venues it owned and distributed

8 Government compulsion over what Salute must include in the air

show is a given. Under its annual lease with the city, Salute is

required to allow on the secured tarmac such other expressive

activities as this case determines. As the case currently stands,

Salute is being compelled to host messages that it does not want to

host.

a publication that promoted events at the complex

available in the Galleria. Occasionally, Denver also

leased promotional space within the Galleria. Plaintiffs

argued that these activities converted the area into a

public forum and that they should be allowed to leaflet

and picket in the forum. The trial court disagreed. On

appeal, the Tenth Circuit affirmed the dismissal of the

complaint. After reviewing the applicable Supreme

Court decisions, the court of appeals found that in a

nonpublic forum “the government has much greater

latitude to restrict protected speech. The law draws no

distinction between content-neutral and content-based

restrictions in a nonpublic forum.” Jd. at 1287. Just

because the City of Denver allowed some speech in the

Galleria did not create a designated public forum, in the

opinion of the court. Jd. at 1288. The ban against

leafleting was held not to be discrimination based on

viewpoint. Because the ban was on all leafleting, there

was no unlawful viewpoint discrimination. Id. at 1288-

1289. The court distinguished the leafleting allowed the

Krishna sect in Justice O’Conner’s concurring opinion in

International Society for Krishna Consciousness, Inc.

v. Lee, 505 U.S. 672 (1992) on the grounds that Justice

O’Conner’s analysis was based upon a finding that the

airports at issue were huge complexes open to travelers

and non-travelers alike containing a multitude of

commercial establishments, like a shopping mall as well

as an airport. Clearly, the secured tarmac at the

Columbia Regional Airport, which does not include the

airport terminal or any commercial establishments, is

not equivalent to a shopping mall, either, when it comes

to applying the First Amendment.

Memorial Day is a civic holiday with deep roots

in American history and culture. Three years after the

Civil War ended, General John A. Logan, the head of an

organization of Union veterans—the Grand Army of

the Republic (GAR) —established May 30" as

“Decoration Day,” to honor and remember the soldiers

“who died in defense of their country during the late

rebellion, and whose bodies now lie in almost every city,

village and hamlet churchyard in the land.” General

Orders No. 11, Headquarters of the Grand Army of the

Republic, May 5, 1868. Although Gen. Logan urged the

people to garland the graves with flowers, he made it

clear that “in this observance no form of ceremony is

prescribed,” leaving it to local posts and comrades to

“arrange such fitting services and testimonials of

respect as circumstances may permit.” [bid.

The first Decoration Day in 1868 was at

Arlington National Cemetery. Approximately 5,000

people attended. Various federal officials, including

General and Mrs. Ulysses S. Grant, participated in the

ceremonies. After speeches, children from the Soldiers’

and Sailors’ Orphan Home and members of the GAR

made their way through the cemetery, strewing

flowers on both Union and Confederate graves, reciting

prayers and singing hymns. Memorial

Day Background,(wwwl1.va.gov/opa/speceven/memday/h

istory. asp), U.S. Department of Veterans Affairs.

By the end of the 19" century, Memorial Day

ceremonies were being held throughout the nation.

After World War I, the purpose was extended to honor

and remember those who died in the all the nation’s

wars. In 1971, Memorial Day was declared a national

holiday by an act of Congress. 5 U.S.C. §6103. In

December 2000 the observance was further enhanced

by “The National Moment of Remembrance Act,” P.L.

106-579, which created the White House Commission on

the National Moment of Remembrance.

Beyond question, Memorial Day has a message,

and a commemorative event like a Memorial Day air

show should not have been likened to a commercial

shopping mall for purposes of First Amendment

analysis, as the Eighth Circuit did in this case. People

do not gather at shopping malls to assemble for a

common purpose. They go to shopping malls to satisfy

individual desires for goods and services. As with the

“state actor” analysis under Point I, the court of

appeals fell into error when it failed to take into account

the fundamental differences between festivals and

permanent fora and what those differences mean when

it comes to the application of First Amendment rights.°

CONCLUSION

For the foregoing reasons, this Court should

grant the petition for writ of certiorari. The Court may

also wish to consider summary reversal.

Respectfully submitted,

%Salute has First Amendment rights, even if it is found to be a

“state actor.” See Griffin v. Department of Veterans Affairs, 274

F. 3d 818 (4" Cir. 2001)(recognizing the right of the VA to not to

fly the Confederate flag over a national cemetery). Government

entities make decisions every day about what expressive materials

to include and what to exclude as they decide what to exhibit or

not exhibit in a museum, what books to buy for a library, what art

to exhibit in a park, etc. A “state actor” does not check its First

Amendment rights at the door, and the Eighth Circuit should not

have avoided this issue as if it does not make any difference. It

does to Salute to Veterans, who has the right to decide what does

or does not happen on the secured tarmac during the air show.

August 6, 2007

Dale C. Doerhoff

COOK, VETTER,

DOERHOFF &

LANDWEHR, P.C.

231 Madison Street

Jefferson City, MO 65101

(573) 635-7977

(573) 635-7414 — facsimile

Attorneys for Petitioner

(any footnotes trail end of each document)

No. 06-1922

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Bill Wickersham; Maureen Doyle,

Plaintiffs/Appellees,

¥.

City of Columbia,

Defendant,

Memorial Day Weekend Salute

to Veterans Corporation,

Defendant/Appellant.

November 16, 2006, Submitted

March 22, 2007, Filed

COUNSEL: For Bill Wickersham, Maureen Doyle,

Plaintiff-Appellees: James G. Felakos, New York, NY,

Anthony Edward Rothert, ACLU OF EASTERN

MISSOURI, St. Louis, MO, Marilyn S. Teitelbaum,

SCHUCHAT & COOK, St. Louis, MO, Dan Viets,

Columbia, MO.

For Memorial Day Weekend Salute to Veterans

Corporation, Defendant-Appellant: Dale C. Doerhoff,

COOK & VETTER, Jefferson City, MO.

JUDGES: Before MURPHY, ARNOLD, and

BENTON, Circuit Judges.

OPINION BY: MURPHY

OPINION

MURPHY, Circuit Judge.

Bill Wickersham and Maureen Doyle brought this §

1983 action against the City of Columbia and a

nonprofit corporation known as the Memorial Day

Weekend Salute to Veterans Corporation (Salute),

seeking an injunction that would permit them to engage

in expressive activities at Salute's Memorial Day air

show at the municipal airport. The district court!

concluded that enforcement of the air show rules, which

is carried out by city police on behalf of Salute, violated

the First Amendment. It issued a permanent injunction

against the city and Salute requiring them to permit

certain expressive activities at the annual event. The

city does not appeal but Salute does, arguing that it is

not liable as a state actor for its speech restrictions and

that the injunction violates its own First Amendment

right to be free from compelled speech. We affirm.

Since 1993 Salute has staged its annual Memorial Day

Weekend Salute to Veterans Air Show at the Columbia

Regional Airport. Although the airport is owned by the

city, the city gives Salute control over the tarmac for

the show. The two day event is free and open to the

public, and tens of thousands of people attend each

year. In addition to feats of aerial acrobatics performed

by military planes, the event features static airplane

displays, exhibits by military recruiters, and food on

the airport's secured tarmac. During the noontime hour

each day there is a ceremony to honor fallen veterans at

which the national anthem is played, the names of fallen

Boone County service members are read aloud, and the

air show's honored guests are introduced to the crowd.

The stated purpose of the air show is "to honor and

remember" service members, past and present.

A resolution passed by the Columbia city council

authorizes the city manager to execute a contract with

Salute for exclusive control of the airport during the

event, subject to the city's right to retake control in the

event of an emergency.’ Salute does not pay for this

use. During the remainder of the year the airport is

controlled by the city, and the tarmac is not open to

general public access. At the time the city began

leasing the airport to Salute for its annual event, the

Columbia city code provided that the city could "make

no lease or contract with any person...that will impair

the City's control of [the] airport and its facilities." That

ordinance was repealed in 2005 after commencement of

this litigation.

Salute is responsible for deciding on the content of the

air show, including the schedule of events, the list of

honored guests, and the exhibits that will be displayed.

Salute pays for liability insurance, the sound system,

and the fees and incidental costs associated with the use

of the military air craft. City personnel are responsible

for operating the airport during Salute's air show, and

Salute's president Mary Posner conceded that airport

manager Bill Boston, a city employee, is "absolutely

essential" to the event's success. In the past few years,

he has borne primary responsibility for developing the

Ground Operations Plan for the air show and has

coordinated with the Federal Aviation Administration

to facilitate the air show's compliance with federal

regulations. Numerous city officials participate in

briefings in preparation for the air show. While Salute

receives a variety of services from the city at no charge,

as authorized by the city council, it does not receive

direct payment of public funds.

Salute must apply to the Department of Defense (DOD)

to secure the involvement of the federal military

aircraft that are displayed at the air show. On its

application Salute attests each year that the event is

"officially supported by local government," one of the

requirements for access to the planes. It also states that

the event will be open to the public, another DOD

condition for use of its planes. City Manager Raymond

Beck signs the application forms on behalf of the city.

In 2005 the city listed the air show on its website under

sections entitled "Guide to City Services" and "Public

Works Provided for Residents and Businesses." Salute

includes a disclaimer in its media releases, stating that

the air show is presented solely by Salute and should

not be referred to as the Columbia Air Show or "any

other designation that would imply it is hosted,

organized, or in any way sponsored by the City of

Columbia." The city's contract with Salute also states:

"In no event shall the City and the Corporation be

deemed or construed to be joint venturers or partners."

Salute imposes a number of restrictions on behavior at

the air show, including limits on expressive activities.

Although the list of prohibited conduct differs slightly

from time to time in its precise wording, it has included

prohibitions against soliciting, petitioning, leafleting,

political campaigning, and "unauthorized" signs. These

rules are widely publicized and often appear on Salute's

media releases about the air show. Salute's restrictions

apply within the fenced tarmac area which is accessed

through several gates.

Columbia police officers provide security at the air

show, and it is coordinated by Captain Michael Martin.

Salute provides no reimbursement to the city for the

officers' time. Captain Martin has developed a security

plan for the event each year which incorporates

Salute's restrictions on expressive activity. Posner

testified in her deposition that she had no personal role

in developing the security plan, but that Salute gave

directions to the police department about which

activities were to be prohibited. The 2003 version of

Martin's security plan stated that "no protests are

permitted inside the tarmac fence."* An interoffice

memorandum was also circulated in 2004 to instruct

police officers about their role in enforcing Salute's

speech restrictions. It included the following:

Protesters are likely at the show. . . Should protesters

attempt to enter the premises, officers will immediately

advise the Command Center and will stop their forward

progress. Officers will advise them of the area being

private property and of the restrictions related to

carrying signs, seeking signatures to petitions, or

demonstrating. Any person who persists in entering

will be given a trespass warning prior to arrest. Keep in

mind that persons are not restricted from entering,

only those who intend to conduct a protest once entry is

made.Police officers are instructed to have their police

identification badges visible at all times during the

event.

Captain Martin stated in his deposition that the air

show was the only event for which he could recall being

asked to enforce a private organization's speech

restrictions. He stated that Salute's president Mary

Posner was the final arbiter of what constituted

unwanted protest at the event. He testified further that

if she were ever to ask him to remove someone on

account of that person's race, he would readily comply.

In 2004 appellee Maureen Doyle attempted to

distribute antiwar fliers inside the secured tarmac. A

Columbia police officer confronted her and stated that

she would be arrested if she continued to hand out

leaflets. Soon more officers arrived, and one grabbed

leaflets out of her hands. Doyle then left the air show.

At that same air show, appellee Bill Wickersham

attempted to collect signatures inside the fenced

tarmac area on an initiative advocating renewable

energy. He was approached by a police officer and

advised to cease petitioning. When he refused, the

police officer took him to the department's command

post at the air show and issued him a trespass warning.

After Posner directed that he be arrested for first

degree trespassing, the police arrested him at the show

but he was never prosecuted.

Wickersham and Doyle brought this action against

Salute and the City of Columbia under 42 U.S.C. § 1983,

seeking injunctive relief permitting them to distribute

leaflets, circulate petitions, and engage in other

expressive activities at future air shows. They alleged

violations of their First Amendment rights to free

expression, characterizing the air show as a public

forum. They argued that although Salute was a private

corporation, it was a state actor in its imposition of

restrictions on free speech given the degree of joint

participation between Salute and the city in staging the

air show and enforcing the restrictions. They also

claimed that by granting Salute complete discretion to

determine who was arrested at the air show, the city

had ceded a public function to Salute.

During discovery plaintiffs produced evidence about

the joint activity of Salute and the city in staging the

air show. Among the depositions they took were those

of Mary Posner of Salute and Captain Martin. Captain

Martin testified that the police department was

responsible for enforcing Salute's speech restrictions as

part of the city's agreement to lease Salute the

property, and Posner testified that the police

discharged this enforcement’ responsibility "on

[Salute's] behalf."

On May 18, 2005 the district court granted a temporary

injunction permitting plaintiffs to distribute leaflets

and wear expressive clothing at the 2005 air show, but

not allowing them to circulate petitions or engage in

other forms of solicitation. It found that Salute was a

state actor because of the degree to which the city and

Salute were intertwined in the staging of the air show.

The court also found that the city had delegated a

public function to Salute by giving Posner control over

the police during the air show. Subsequent to the

court's order and prior to the 2005 air show, Salute

wrote to the police department disavowing any

delegation of police authority and stating that Salute

“will play no role in the exercise of authority and

discretion by the City Police... ."

At the 2005 air show, leafleting and expressive clothing

were permitted as required by the temporary

injunction; sign carrying was also allowed even though

it had not been specifically addressed in the order. At a

subsequent deposition, Captain Martin testified that no

one had tried to circulate petitions at the 2005 event

but that he would have stopped anyone who did, not

because such activity violated a city ordinance, but

because Salute disapproved it and it was not protected

by the temporary injunction. A handful of individuals

were present inside the secured tarmac at the 2005

event to hand out leaflets or carry signs. Martin

observed no disturbances caused by their presence at

the air show. Several members of the public did submit

written complaints to Salute about the presence of

"protestors" on the tarmac. One individual handed out

commercial leaflets advertising a nearby restaurant,

and Posner later testified that she was concerned that

there would be more commercial leafleting at future

shows.

On March 3, 2006, after additional depositions and

hearings had occurred and evidence about the 2005 air

show had been produced, the district court issued a

permanent injunction. The injunction incorporated its

earlier May 18, 2005 order by reference. As a predicate

to its First Amendment analysis, the district court once

again found Salute to be a state actor when it enforced

its speech restrictions against plaintiffs, because it was

entangled with the city in planning the air show and

monitoring unwanted expressive activities. It also held

the city accountable for the direct role of the police in

enforcing the speech restrictions.

The court concluded that the air show was a non public

forum in which Salute as a state actor could impose

reasonable and neutral regulations without offending

the First Amendment, but that a blanket prohibition on

leafleting and sign carrying was neither reasonable nor

viewpoint neutral. It found that Salute's prohibition on

petitioning was permissible, however, because it was

both reasonable and uniformly enforced. The district

court ordered Salute and the city to permit leafleting,

sign carrying, and the wearing of expressive clothing at

future air shows subject to reasonable restrictions on

time, place, and manner. The court also gave special

consideration to Salute's noontime ceremony at the

show, ordering that Salute could restrict expressive

activities at that daily event and the city could lawfuily

remove individuals who did not respect those

restrictions. The court rejected Salute's argument that

it had a First Amendment right to exclude all unwanted

forms of expression at its air show, questioning

whether a state actor like Salute had First Amendment

rights. Even if it did, the court reasoned, the presence

of other messages on the tarmac would not interfere

with such rights.

Salute appeals from the final judgment, contesting the

district court's conclusion that it was a state actor and

arguing that the injunction violates its own First

Amendment rights by forcing it to provide a forum for

messages it does not support. Although the City of

Columbia is also subject to the court's injunction, it has

not appealed.

Il.

Generally a district court's conclusions of law are

reviewed de novo and its findings of fact, for clear

error. See Doe v. Pulaski County Special Sch. Dist.,

306 F.3d 616, 621 (8th Cir. 2002) (en banc). Where the

10a

First Amendment is implicated, however, we make an

"independent examination of the whole record" in

assessing the factual predicates of the free speech

claim. Id. (quoting New York Times Co. v. Sullivan, 376

U.S. 254, 285, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)). We

nevertheless continue to apply a clear error standard to

facts not directly related to the First Amendment issue,

see Doe, 306 F.3d at 621, including the factual

predicates to the state action inquiry. See Howerton v.

Gabica, 708 F.2d 380, 384 (9th Cir. 1983).

The first Amendment guarantee of free speech guards

against abridgment through state action alone. It does

not inhibit private restrictions on speech. Hudgens v.

NLRB, 424 U.S. 507, 513, 96 S. Ct. 1029, 47 L. Ed. 2d

196 (1976). In certain circumstances the government

may become so entangled in private conduct that "the

deed of an ostensibly private organization or individual

is to be treated .. . as if a State had caused it to be

performed." Brentwood Acad. v. Tenn. Secondary Sch.

Ath. Ass'n, 531 U.S. 288, 295, 121 S. Ct. 924, 148 L. Ed.

2d 807 (2001).

To ascertain whether there is state action in a case, we

examine the record to determine "whether the conduct

at issue is ‘fairly attributable' to the state." Montano v.

Hedgepeth, 120 F.3d 844, 848-849 (8th Cir. 1997)

(quoting Lugar v. Edmondson Oil Co., 457 U.S. 922,

937, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982)). We are

guided in this inquiry by two additional queries:

whether the claimed deprivation "resulted from the

exercise of a right or privilege having its source in state

authority" and whether the party engaging in the

deprivation "may be appropriately characterized as [a]

state actor[]." See Lugar, 457 U.S. at 939 (internal

lla

quotations omitted). Since Salute's authority to impose

speech restrictions at its air show derives from the

city's grant to it of temporary control over the airport,

Lugar's first prerequisite for state action is met. See

UAW, Local 5285 v. Gaston Festivals, 43 F.3d 902, 906

n.l (4th Cir. 1995) (grant of permit to hold festival

satisfies first Lugar inquiry). The key issue is whether

Salute may appropriately be considered a state actor in

the circumstances presented. If a party's conduct meets

the requirements for state action, the same acts also

qualify as actions taken “under color of state law" for

purposes of § 1983. Lugar, 457 U.S. at 935.

The Supreme Court has recognized a number of

circumstances in which a private party may be

characterized as a state actor, such as where the state

has delegated to a private party a power "traditionally

exclusively reserved to the State," see Jackson v.

Metro. Edison Co., 419 U.S. 345, 352, 95 S. Ct. 449, 42 L.

Ed. 2d 477 (1974), where a private actor is a "willful

participant in joint activity with the State or its

agents," see Adickes v. S. H. Kress & Co., 398 U.S. 144,

151, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970), and where

there is "pervasive entwinement" between the private

entity and the state, see Brentwood, 531 U.S. at 291.

These particular circumstances are merely examples

and not intended to be exclusive. See id. at 295.

Our ultimate conclusion must turn on the particular

facts of the case, since "only by sifting facts and

weighing circumstances can the nonobvious

involvement of the State in private conduct be

attributed its true significance." Burton v. Wilmington

Parking Auth., 365 U.S. 715, 722, 81S. Ct. 856, 6 L. Ed.

2d 45 (1961). The one unyielding requirement is that

12a

there be a "close nexus" not merely between the state

and the private party, but between the state and the

alleged deprivation itself. See Brentwood, 531 U.S. at

295. No such nexus exists where a private party acts

with the mere approval or acquiescence of the state, see

Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S. Ct.

2777, 73 L. Ed. 2d 534 (1982), but a private entity may

be considered a state actor if it "has acted together with

or has obtained significant aid from state officials" in

furtherance of the challenged action. Lugar, 457 U.S. at

937.

Salute argues that this case is governed by our decision

in Reinhart v. City of Brookings, 84 ¥.3d 1071 (8th Cir.

1996). In Reinhart, we held that the actions of a private

organization in restricting political campaigning at its

arts festival could not be attributed to the city, even

though the festival took place in a public park. The fact

that a city allows a private entity to hold a major event

on its property is not sufficient to convert the private

conduct of event organizers into state action even

where the organizers impose their own rules on

expressive conduct, for the state's "mere acquiescence"

in an alleged deprivation is not enough. /d. at 1073. The

degree of entanglement between the City of Columbia

and Salute goes well beyond the relationship in

Reinhart. There, the city had no role in planning,

advertising, or managing the festival, and the

organizers were solely responsible for enforcing the

restrictions on expressive activity. Jd. at 1072-73.

Here, the city's role was far more than "mere

acquiescence," for the city not only provided critical

assistance in planning and operating the show, but also

played an active role in enforcing the particular speech

13a

restrictions challenged in this action. City police, not

Salute volunteers, enforce the restrictions every year, a

role that Captain Martin characterized as part of "the

agreement that's in place" with Salute. The active and

prearranged role of the police in effectuating the

event's private speech policies also sets this case apart

from Lansing v. City of Memphis, 202 F.3d 821 (6th Cir.

2000), another case relied on by Salute. In Lansing, the

court specifically noted that the City of Memphis had

made no attempt to instruct its officers on how to police

unwanted speech activities on festival grounds. Jd. at

833-34.

The direct role of the Columbia police in enforcing

Salute's speech restrictions provided the critical nexus,

absent in other cases, between the challenged conduct

and the exercise of state authority.‘ See, e.g., Gaston,

43 F.3d at 909 n.4 (appellant conceded absence of

nexus); see also D'Amario v. Providence Civic Ctr.

Auth., 783 F.2d 1, 3 (1st Cir. 1986) (city officials’

enforcement of private speech restriction provides

requisite nexus between alleged deprivation and state

involvement).

Salute contends that its contract with the city

transformed the airport into its own temporary private

property,° over which it had the right to decide who

was welcome and who was not and thereafter to seek

police assistance in ejecting trespassers. To be sure, the

mere invocation of state legal procedures, including

police assistance, does not convert a private party into

a state actor. See Youngblood v. Hy-Vee Food Stores,

Inc., 266 F.3d 851, 855 (8th Cir. 2001) (invoking state

assistance to apprehend shoplifter).

14a

The contributions of the Columbia police go beyond the

kind of neutral assistance that would normally be

offered to private citizens in enforcing the law of

trespass. In Griffin v. Maryland, the Supreme Court

distinguished between a deputy sheriff's enforcement

of trespass law and his active enforcement of a private

park's segregation policy, holding that the latter

situation amounted to state action. 378 U.S. 130, 136-37,

84 S. Ct. 1770, 12 L. Ed. 2d 754 (1964). Here, the police

department's security plan instructed the officers to

enforce Salute's rules rather city ordinances, and police

took an active role in identifying and intercepting

protesters at the air show, including Wickersham and

Doyle. The city's cooperation with Salute was directed

toward effectuating the challenged policy rather than

merely keeping the peace. See Howerton v. Gabica, 708

F.2d 380, 385 (9th Cir. 1983) (active and repeated police

involvement amounts to state action even though

response to citizen's complaint does not).

When a private entity has acted jointly and

intentionally with the police pursuant to a "customary

plan," it is proper to hold that entity accountable for the

actions which it helped bring about. See Murray v.

Wal-Mart, Inc., 874 F.2d 555, 558-559 (8th Cir. 1989);

see also Dossett v. First State Bank, 399 F.3d 940, 950

(8th Cir. 2005) (applying joint action test for state

action to § 1983 action alleging First Amendment

violation). In making its findings the district court

specifically rejected the suggestion that Salute had

asked for nothing more from the city than the use of its

property. The record supports the trial court's findings,

for it contains evidence of a mutual understanding that

city police would work to restrict speech activities at

the air show according to Salute's wishes.

15a

Although certain changes occurred between the entry

of the temporary and permanent injunctions, including

Posner's statement to the police disclaiming authority

to direct their actions at the air show, the overall

"momentum" of the cooperation remained unaltered.

See Brentwood, 531 U.S. at 301 (quoting Evans v.

Newton, 382 U.S. 296, 301, 86 S. Ct. 486, 15 L. Ed. 2d

373 (1966)). In its order granting the permanent

injunction the district court again found that Salute and

the city had acted "like partners" with respect to the

2005 air show and that their mutual understanding

about the city's role in enforcing the speech restrictions

continued as before.® In light of the evidence showing a

continuing history of cooperation and Captain Martin's

admission that he would have enforced Salute's rules at

the 2005 air show even where city ordinances had not

been violated, we cannot characterize these findings as

clearly erroneous. Even if the police no longer received

directions from Salute at the air show or consulted

Salute members about whom to arrest, they

nevertheless continued to respond to the broader

directives of Salute by enforcing its speech restrictions

as part of their security duties. Cf. Brentwood, 531 U.S.

at 301 n4 ("underlying reality" of private entity's

relationship to the state often trumps legal formalities

erected in attempt to thwart a finding of state action).

Since Salute and the city were knowingly and

pervasively entangled in the enforcement of the

challenged speech restrictions, we conclude that Salute

was a state actor when it interfered with appellees’

expressive activities. The district court did therefore

not err in holding that Salute's curtailment of appellees'

freedom of expression constituted state action and was

actionable under § 1983.

l6a

Salute next argues that the district court's order

requiring it to permit leafleting, sign carrying, and

expressive clothing at the air show interferes with its

own First Amendment right to control the expressive

content of its event, relying on Hurley v. Irish-

American Gay, Lesbian & Bisexual Group, 515 US.

557, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995). In Hurley,

a state court had ordered a private association to

include a group of gays, lesbians, and bisexuals as a

marching unit in its St. Patrick's Day Parade in

compliance with a state public accommodation law

prohibiting discrimination on the basis of sexual

orientation. Jd. at 562-63. The Supreme Court reversed,

holding that application of the state law violated the

parade organizer's First Amendment rights since the

state cannot compel a private entity to disseminate

particular views or to alter its message to suit the

government. /d. at 573. Salute cites Hurley as authority

for its argument that the order compelling it to permit

other messages at its air show violates its First

Amendment rights.

Appellees respond that as a state actor Salute cannot

assert rights under the First Amendment, echoing the

district court's suggestion that state actors do not enjoy

the same constitutional rights guaranteed to private

entities like the parade organizer in Hurley. Neither

appellees nor the district court cited authority for this

proposition. Appellees also argue that even if Salute

had the full panoply of First Amendment rights, the

district court's injunction would not violate those rights

because Salute is not being compelled to affirm any

message with which it disagrees; rather it is being

required to tolerate the presence of other messages

from which it may easily dissociate itself.

17a

Unlike Salute the parade organizer in Hurley was not a

state actor, see id. at 566, and there was no question

that the organizer maintained its full rights under the

First Amendment. The Supreme Court concluded that

those rights were violated by the presence of unwanted

marching units because they would have altered the

organizer's message which was communicated by the

composition of the parade. Id. at 576. In contrast Salute

has not shown that its message was dependent upon the

composition of the crowd at the air show. The

competing expressive interests were also considered in

Hurley. The Court pointed out that the gay, lesbian,

and bisexual group could put on a parade of its own to

promote its message, see id. at 578, but appellees here

could not likely organize an event similar to the air

show in order to advance their views or secure the kind

of privileged access to city property that Salute enjoys.

Whether a private entity like Salute forfeits some of its

right to deliver its own message unimpeded by others

when it assumes the role of state actor need not be

decided on this record because Salute has not shown

that the injunction infringed its own ability to deliver

its chosen message. The district court's injunction

protects Salute's daily noontime ceremony in honor and

remembrance of veterans from any competing

expressive activities, giving Salute complete control

over the message that it wants to communicate during

this special event. The presence of nondisruptive

expressive conduct during the remainder of the air

show was not shown to threaten to alter Salute's

message. There is no evidence that Salute's message

was diluted by the presence of a small number of sign

carriers and leafleters at the 2005 air show, which was

attended by over 25,000 people. Appellees sought only

18a

to express their own views as spectators at the air

show, and their signs and leaflets were “not likely [to]

be identified" with Salute. See Pruneyard Shopping

Ctr. v. Robins, 447 U.S. 74, 87, 100 S. Ct. 2085, 64 L. Ed.

2d 741 (1980); see also Parks v. City of Columbus, 395

F.3d 643, 651 (6th Cir. 2005). The fact that after the

2005 air show some individuals complained to Salute

about the presence of "protesters" at the event speaks

to the public's ability to distinguish between Salute's

message and any others permitted by the court's

injunction. See Rumsfeld v. Forum for Academic and

Institutional Rights, Inc., 547 U.S. 47, 126 S. Ct. 1297,

1310, 164 L. Ed. 2d 156 (2006).

Unlike the situation in Hurley, where the sponsor had

been unconstitutionally required to include in its parade

a particular message favored by the state, namely

support for the rights of gays, lesbians, and bisexuals,

see 515 U.S. at 579, here there is "no specific message . .

. dictated by the State to be displayed," mitigating

concerns that the government is coercing affirmance of

a particular favored viewpoint. See Pruneyard, 447

U.S. at 87. If the City of Columbia has shown any

preference for a particular message, it has been for

Salute's. The present situation involving a large air

show, free and open to the public, has more relevant

similarities to Pruneyard, where the Supreme Court

held that a mall owner's First Amendment rights were

not violated by a state constitutional requirement that

he allow petitioning on his property. /d. at 88.

On this record we cannot say that tne presence of

leafleters and sign carriers interfered with any First

Amendment rights Salute might have in the

circumstances where its involvement is that of a state

19a

actor. In deciding that Salute could not constitutionally

prohibit ali sign carrying and leafleting at its air show,

the district court did not hold that Salute could impose

no restrictions on those activities. Salute remains free

to impose reasonable and viewpoint neutral rules

related to time, place, and manner. The reasonableness

of any restrictions are “assessed in light of the purpose

of the forum and all the surrounding circumstances."

International Soc'y for Krishna Consciousness v. Lee,

505 U.S. 672, 687, 112 S. Ct. 2711, 120 L. Ed. 2d 541

(1992) (O'Connor, J., concurring) (quoting Cornelius v.

NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788,

809, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985)). Salute

remains free to take reasonable steps to ensure that its

air show message would not be submerged by any

alternate forms of speech which prove to be unduly

intrusive in their timing, place, or manner of

expression.

ITT.

In sum, the speech restrictions imposed at the annual

air show involved state action on the part of Salute

because it was consistently entangled with the city in

effectuating them, and the district court did not err or

abuse its discretion in fashioning the permanent

injunction requiring Salute and the city to permit

certain expressive activities at this public event. There

has been no showing that Salute's constitutional rights

were violated by the injunction, and Salute is free to

return to the district court if changed circumstances

were to warrant modification of the injunction or any

other action. Accordingly, we affirm the judgment of

the district court.

20a

Footnotes

1The Honorable Nanette K. Laughrey, United States

District Judge for the Western District of Missouri.

2The city's resolution and its contract with Salute have

remained substantially the same for the past several

years.

3Captain Martin stated in his deposition that the plan

had been approximately the same from year to year

until the 2005 air show, during which Salute and the

city were required by the preliminary injunction to

permit leafleting.

4Municipalities are state actors for the purpose of §

1983 claims. Monell v. Dep't of Soc. Servs., 436 U.S. 658,

690, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

5The city's own ordinance prohibited it from ceding

control of the airport to Salute or any other party until

2005 when the relevant ordinance was repealed.

6The district court specifically found that "the City

knows, when it enters into the temporary lease of the

tarmac, that the Corporation will exclude ll

unauthorized speech and will seek the assistance of the

City to enforce those rules."

2la

Case No. 05-4061-CV-C-NKL

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI,

CENTRAL DIVISION

BILL WICKERSHAM and MAUREEN DOYLE,

Plaintiffs,

Vv.

CITY OF COLUMBIA, MISSOURI and MEMORIAL

DAY WEEKEND SALUTE TO VETERANS CORP.,

Defendants.

March 31, 2006, Decided

COUNSEL: For Bill Wickersham, Maureen Doyle,

Plaintiffs: Dan Viets, Dan Viets Law Office, Columbia,

Mo; James G. Felakos, American Civil Liberties Union

of Eastern Missouri, St. Louis, MO; Marilyn S.

Teitelbaum, Schuchat, Cook & Werner, St. Louis, MO.

For Columbia, City of, Defendant: Robert J. Krehbiel,

King,Krehbiel,Hellmich,Hentz & Borbonus, St. Louis,

MO.

For Salute to Veterans Corp., Defendant: Dale C.

Doerhoff, Cook, Vetter, Doerhoff & Landwehr, P.C.,

Jefferson City, MO.

JUDGES: NANETTE K. LAUGHREY, United States

District Judge.

OPINION BY: NANETTE K. LAUGHREY

22a

OPINION

ORDER GRANTING PERMANENT

INJUNCTION'

I. Background

On May 18, 2005, the Court entered a preliminary

injunction which permitted Plaintiffs to distribute

leaflets at the May 2005 Memorial Day Air Show ("Air

Show") and to wear expressive clothing, hats and

buttons. The Court denied Plaintiffs' request to

circulate petitions or engage in any other form of

solicitation. Subsequent to the 2005 Air Show, the

parties supplemented the factual record and provided

additional briefing and oral argument. The Court must

now determine whether a permanent injunction should

issue, taking into account the factual record presented

at both the preliminary and permanent injunction

hearings.

II. Supplemental Facts ”

A. Change in City Ordinance

On May 16, 2005, the Columbia City Council ("City")

repealed Ordinance § 3-3, Ord. No. 10665 (1985), which

stated: "The city shall, at all times, maintain full control

of the airport. The city shall adopt no ordinance,

resolution or motion and shall make no lease or contract

with any person, including the United States

Government, which will impair the City's control of

such airport and its facilities, nor shall it enter into any

agreement which may be contrary to the Federal

Aviation Act." It appears that the City was not aware

of this ordinance when it gave exclusive control of the

airport tarmac to the Salute to Veterans Corporation

("Corporation") in 2000, 2001, 2002, 2003 and 2004. When

it became aware of the ordinance, the City Counsel

repealed it so that the City could legally contract with

the Corporation for the 2005 Air Show.

B. Change in Law Enforcement Protocol

Subsequent to the Court's May 18, 2005, Order,

Mary McCleary Posner ("Posner"), the president of the

Corporation, wrote a letter to Columbia's City

Counselor notifying the City that the Corporation “will

play no role in the exercise of authority and discretion

by the City Police and the supporting law enforcement

officers from other agencies during the 2005 Air Show

or at any other time or place. The City Police and

supporting law enforcement officers will be acting on

their own initiative and discretion in the enforcement of

city ordinances and the laws of Missouri during the

2005 Air Show as they do at other times and places.

Without limitation, this includes enforcement of laws

against trespassing and offenses against public order."

Def. Ex. 8. Thus, it now appears that the City Police

will exercise independent judgment before removing

Plaintiffs and similarly situated people from the airport

tarmac. Def. Ex. 15 (Martin Dep.) at 10-14.

C. 2005 Air Show

The 2005 Air Show occurred on May 29 and 30, 2005.

The Corporation and the City complied with the

Court's Preliminary Injunction Order which permitted

leafleting and expressive clothing. While the Court's

Order did not address the issue of signs, the

Corporation and the City permitted signs to be carried

during the Air Show. Plaintiffs have now requested the

24a

Court for a declaration that signs may be displayed at

future Air Shows.

Approximately 25,000 to 27,000 people attended the

2005 Air Show. During the two-day program, there

were ceremonies and speeches honoring veterans and

current troops, aerobatic and static displays of

aircrafts; a static antique automobile show; vendors

selling souvenirs and books related to the military and

war; armed forces recruiters and military exhibits, such

as an Army climbing wall, Army NASCAR, Army

adventure van, Army shooting gallery, Navy Taj

Mahal, Air Force Raptor and van, Marine Corps

obstacle course, 128th Field Artillery Howitzer Battery

and multiple national guard vehicles and pieces of

equipment.

The 2005 Air Show also included a toy police car

with robot driver; a swearing in ceremony for new

recruits; advertisements honoring the military and

veterans or simply advertising various private

companies; and a radio station with a van broadcasting

from the tarmac. Def. Ex. 188; Def. Ex. 15 (Martin

Dep.) at 79:3-15, 94:1-95:2; Pl. Ex. 50; and Pl. Ex. 52.

Captain Martin testified that the pictures in

Plaintiffs’ Exhibit 50 accurately reflect the overall

atmosphere of the Air Show. It is fair like and generally

open except along the orange fence which is closest to

the air display or where lines have formed for food or

other activities.» Crowding also occurred when

attendees were talking to, taking pictures with and

obtaining autographs from parachutists on their

souvenir program.

On both days of the Air Show, a group calling itself

“Operation Simply Shred" approached attendees and

25a

asked if they wanted any leaflets shredded. There were

at least two separate people with shredders on the

tarmac during the Air Show. Def. Ex. 15 (Martin Dep.)

at 19-22. Also see Def. Ex. 193 (Preckshot Dep.) at 29

(Preckshot admitted that shredders occasionally were

on the tarmac), and Def. Ex. 189 (Sanders Dep.) at 6-7

(Sanders observed the shredders on the tarmac).

The people with shredders carried a recycling bag

and would take any paper from the public, shred it and

then use it as cat litter. Operation Simply Shred was

organized in response to those persons at the Air Show

who were distributing leaflets. See Def. Ex. 193

(Preckshot Dep.) at 6-9. "After a while, it gets to be too

much. If they want their freedom of speech, then we

have our freedom of speech." Def. Ex. 193 (Preckshot

Dep.) at 22. On occasion, the public was permitted to

put their leaflets in the shredder themselves. Def. Ex.

193 (Preckshot Dep.) at 26-27.

A television reporter interviewed Captain Martin

and Plaintiff Bill Wickersham ("Wickersham") on the

secured tarmac at the 2005 Air Show, and people had

their lawn chairs on the tarmac. Pl. Ex. 52; Def. Ex. 15

(Martin Dep.) at 95-96:16,

C. Complaints at 2005 Air Show

None of these many and diverse events disrupted

the 2005 Air Show. Operation Simply Shred did not

create any disruption, Def. Ex. 15 (Martin Dep.) at

60:11-19, and no one complained about them. However,

David Williamson, a firefighter, was upset when

someone passed out leaflets during the national

anthem. Def. Ex. 192 (Williamson Dep.) at 5:18-22. Also,

Dr. Annette Sanders ("Sanders") testified that because

26a

someone handed her a leaflet she lost sight of the

television crew that she was following, and, therefore,

had a shorter interview with them once she found the

reporters. Def. Ex. 189 (Sanders Dep.) at 20-23. There

was also a person carrying an anti-war sign who walked

in the area adjacent to the grandstand during the

noontime program to honor veterans. Def. Ex. 15

(Martin Dep.) at 80-83.

In 2005, for the first time, the Corporation set up a

tent that had a banner labeled "Comment Cards." Def.

Ex. 189 (Sanders Dep.) at 11. They collected 54

comment cards and nine of those cards directly or

indirectly contained complaints about the presence of

anti-war protestors at the Air Show. Def. Ex. 189

(Sanders Dep.) at 12-16, 24-25, 33-34. The nine critical

comment cards read as follows:

. "I enjoyed the Airshow, but was greatly

disappointed in seeing the ‘'Un-American'

protestors disgracefully passing out

propaganda. I believe something needs to be

done to them which limits their 'Un-

American' tactics for the future air shows. It

seems as if they don't understand who

protects their freedoms.

. "No protestors in tarmac."

. The third one said that he was stopped

fifty yards in the gate by someone with a

copy of the Bill of Rights. "Almost ran into

me, here for the heritage & sights, not

politics."

. "I have one complaint. The guy with the

sign (protesting) was the only one walking

27a

around during the National Anthem in front

of grand central. These guys with protesting

signs are the ones showing lack of respect to

our country & to our veterans. Why are

they in here?"

. "The protestors should not be allowed

to walk around on the air field carrying their

signs. The men & women in uniform do not

need to see this. It's the day to

commemorate the military not protest

them."

. "Get rid of protestors inside tarmac."

. "If at all possible keep demonstrators

out!"

"Please restrict the conscientious

objectors & other unpatriotic demonstrators

to designated areas where they do not

desecrate the memories of our veterans."

Additionally, Posner objected to the leaflets which

were distributed by a little restaurant located in the

airport terminal because people might go to the

restaurant and drink and then return to the Air Show.

Def. Ex. 190 (Posner Dep.) at 9:15-11:3. However,

people could also go to their cars and drink and then

return to the Air Show.

Posner testified that she had to move the Tuskegee

airmen between the bagpipe players and the honored

guests to ensure their protection because she feared the

airmen might be confronted by members of the Ku

Klux Klan. Def. Ex. 190 (Posner Dep.) at 16:5-17:15. She

28a

did not present any evidence that the Ku Klux Klan

would attend the Air Show, much less disrupt it.

D. Air Show Attendance

Posner and Sanders testified that attendance at the

2005 Air Show was down and they contend that the

drop in attendance was because of publicity

surrounding this lawsuit. However, there is no

objective evidence in the record to show that any

decline in attendance was related to the Plaintiffs' First

Amendment activities. Posner and Sanders did not

identify a specific year with a comparable program that

had a higher attendance. Nor does the record contain

news articles or media coverage of the lawsuit.

III. Standard of Review - Permanent Injunction

The Dataphase factors applicable to a request for

preliminary injunction are also used to evaluate a

request for a permanent injunction, except the focus is

on whether the Plaintiff has established the merits of

the claim. See Dataphase Systems, Inc. v. C L Systems,

Inc., 640 F.2d 109, 112-114 (8th Cir. 1981)(en banc);

Bank One, Utah v. Guttau, 190 F.8d 844, 847 (8th Cir.

1999).

IV. State Action ‘

A. City

The City is a state actor because it is a creature of

the state. Nonetheless, the City argues that it has not

violated the Plaintiffs' First Amendment rights by

excluding them from Air Shows because City Police

have only enforced rules established by a private

29a

entity. Thus, any injury sustained by the Plaintiffs was

caused by the Corporation, not the actions of the City.

As the Court has previously held, the Defendants

cannot assume all the benefits of a partnership but

accept none of the burdens. The City and the

Corporation act like partners; are perceived to be

partners and are mutually benefitted by their

relationship. The City cannot avoid responsibility for its

actions by simply giving control of the tarmac to the

Corporation, especially while the City retains an

easement to re-enter, and actively assists the

Corporation by operating the airport during the Air

Show. Because of the special relationship between the

City and the Corporation, this case is not governed by

Reinhart v. City of Brookings, 84 F.3d 1071 (8th Cir.

1996). In addition, because the Columbia Police will

now be exercising discretion if they remove Plaintiffs

or similarly situated persons from the tarmac, the City

cannot claim that it is merely following the directive of

a private party.

B. Corporation

Because the Corporation has disavowed any special

control that it once had over the Columbia Police at the

Air Show, it urges the Court to reconsider its finding

that the Corporation is a state actor. The Court is not

persuaded. While the Corporation no longer directs the

Police, it still receives substantial governmental

assistance for the Air Show. It is also so entangled with

the local, state and federal governments that there is an

appearance that the Corporation is acting in concert

with them.

30a

While the Corporation claims to have never asked

for anything other than the use of the tarmac for the

Air Show, Def. Ex. 190 (Posner Dep.) at 23:2-7, ° the

record clearly demonstrates that the Air Show could

not occur without the simultaneous involvement of

every governmental entity in the area. The federal

government sends military personnel and multi-million

dollar airplanes and equipment. The local governments

provide everything from the land for the event to

special on-site trash, police, fire and ambulance

services. Of primary importance is the fact that the

Corporation is putting on an Air Show which cannot

occur without the operation of the City's airport. Nor

can the Corporation get FAA approval for the Air

Show without submitting a ground operation plan

which is prepared by the City. In addition, the military

will not send its aircraft unless the City attests that it is

making the airport available and the event is officially

supported by the City.

If the Corporation is not a state actor given these

facts, then the state action doctrine can be rendered

meaningless by the simple expedient of shifting

temporary control of public property to a private

corporation while the governmental entity continues to

provide essential support for the event. A wink and a

nod should not be enough, particularly when the City

knows, when it enters into the temporary lease of the

tarmac, that the Corporation will exclude all

unauthorized speech and will seek the assistance of the

City to enforce those rules.

IV. Hurley

The Corporation and the City continue to argue that

the First Amendment rights of the Corporation will be

3la

violated if the Plaintiffs are permitted to distribute

leaflets or carry signs at future Air Shows. They rely

primarily on the case of Hurley v. Irish-American Gay,

Lesbian and Bisexual Group of Boston, 515 U.S. 557,

115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995). ® It is now

clear that Hurley is inapplicable and the Corporation's

First Amendment rights are not violated by the

Plaintiffs' expressive activity at the Air Show.

In Hurley, the United Supreme Court held that a

private group has a right to express a certain

viewpoint, and as a corollary to that right, can exclude

people from its organization. * For this reason, the state

of Massachusetts could not require the private

organizers of a St. Patrick's Day parade to include in

their parade the Irish-American Gay, Lesbian and

Bisexual Group of Boston, because the inclusion of that

group would interfere with the message being

conveyed by the parade, which is itself a form of

expression. Similar logic led the Supreme Court in BSA

v. Dale, 530 U.S. 640, 120 S. Ct. 2446, 147 L. Ed. 2d 554

(2000), to find in favor of the Boy Scouts who wanted to

exclude homosexuals from its organization. According

to the Boy Scouts, they had a long history of opposing

homosexuality, so requiring them to admit a

homosexual Scout leader would interfere with their

expressive association.

The Plaintiffs, however, are not trying to participate

in the Air Show or become members of the Corporation.

They are not even asking to operate a booth. They only

want to come into the public area of the event and pass

out leaflets, petition, carry signs and wear expressive

clothing. Neither Dale or Hurley are applicable. See

Gathright v. City of Portland, Oregon, 439 F.3d 578 (9th

Cir. Feb. 24, 2006); Parks v. City of Columbus, 395 F.3d

32a

643 (6th Cir. 2005); Mahoney v. Babbitt, 323 U.S. App.

D.C. 120, 105 F.3d 1452, 1456 (D.C. Cir. 1997) (parade

organizers could not exclude people watching the

parade merely because they carried protest signs).

Further clarification on these issues has been given

recently by the United States Supreme Court in

Rumsfeld v. Forum for Academic and Institutional

Rights, Inc., 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006).

The Forum for Academic and Institutional Rights

("FAIR") is an association of law schools and law

faculties with policies against gender orientation

discrimination. Because the United States military

discriminates against homosexuals, members of the

Association have not permitted military recruiters to

interview their law students at recruitment events

sponsored by the law schools. In response, the United

States Congress passed the Solomon Amendment,

which requires all universities which receive federal

funds to give military recruiters the same access to

their students that other employers receive.

FAIR sought a preliminary injunction of the

Solomon Amendment, claiming that it violated the

First Amendment freedoms of speech and association

of its members. By giving military recruiters equal

access, the Solomon Amendment forced the schools to

be associated with the discriminatory policies of the

military and compelled them to speak a message with

which they disagreed.

The Supreme Court rejected FAIR's speech claim

primarily because recruitment is not speech or even

symbolic speech, it is merely conduct. It also rejected

the law schools' argument that the Solomon

33a

Amendment required the law schools to accommodate

speech with which they disagreed.

The Supreme Court distinguished Hurley, saying

that a parade is a form of expression and the organizer's

message would be affected if it was forced to include

someone else's message. In contrast, requiring the law

schools to accommodate the military's message, “does

not affect the law school's speech, because the schools

are not speaking when they host interview and

recruiting receptions." Jd. at 1309. In addition,

permitting military recruiters on campus does not

suggest that the law schools agree with the message

being expressed by the recruiters. The court

emphasized that even high school students "can

appreciate the differences between speech a school

sponsors and speech the school permits because legally

required to do so." Jd. at 1310.

Similarly, the Corporation is not speaking when

they stage an Air Show anymore than the law schools

are speaking when they host a recruitment fair. An Air

Show is conduct, not speech, and there is no evidence in

the record that the public could or did perceive the Air

Show itself to be a form of expression. In addition,

there is no reasonable likelihood that the Plaintiffs will

be seen as spokesmen for the Corporation merely

because they are present in a public area of the Air

Show. If high school students are sophisticated enough

to understand the difference between sponsored speech

and free speech, the public attending an Air Show can

as well.

In Rumsfeld, the Supreme Court also rejected the

law schools' argument that their freedom to engage in

34a

expressive association was violated by the Solomon

Amendment. The Supreme Court said:

Law schools . . . "associate" with military

recruiters in the sense that they interact

with them. But recruiters are not part of the

law school. Recruiters are, by definition,

outsiders who come onto campus for the

limited purpose of trying to hire students--

not become members cf the _ school's

expressive association. This distinction is

critical ... The law schools say that allowing

military recruiters equal access impairs

their own expression by requiring them to

associate with the recruiters, but just as

saying conduct is undertaken for expressive

purposes, cannot make it symbolic speech . .

. SO too a speaker cannot "erect a shield"

against laws requiring access "simply by

asserting" that mere association "would

impair its message."

Rumsfeld, 126 S. Ct. at 1812. Similarly, the

Corporation's statement that the Air Show is to honor

the military and veterans does not transform the Air

Show into symbolic speech. Nor can the Corporation

create a protective shield by merely asserting that its

message will be impaired by association with the

Plaintiffs.

Indeed, in Rumsfeld, the Supreme Court reaffirmed.

its earlier decision in PruneYard Shopping Center v.

Robins, 447 U.S. 74, 100 S. Ct. 2035, 64 L. Ed. 2d 741

(1980), which is closely analogous to the facts before

this Court. In PruneYard, the Supreme Court found

35a

that the First Amendment rights of a shopping center

owner were not infringed by the California Constitution

which required the owner to permit solicitations and

leafleting on its private property. The shopping center

was open to the public, but had a policy that prohibited

any expressive activities, including the circulation of

petitions. The policy was strictly enforced in a

nondiscriminatory manner. Nonetheless, the Supreme

Court held that the State of California could require the

shopping center to allow students to set up a table and

distribute literature opposing a UN resolution against

Zionism. The Supreme Court said:

The shopping center by choice of its owner

is not limited to the personal use of

appellants. It is instead a _ business

establishment that is open to the public to

come and go as they please. The views

expressed by members of the public in

passing out pamphlets or seeking signatures

for a petition thus will not likely be

identified with those of the owner... .

' Finally, as far as appears here appellants

ean expressly disavow any connection with

the message by simply posting signs in the

area where the speakers or handbillers

stand. Such signs, for example, could

disclaim any sponsorship of the message and

could explain that the persons are

communicating their own messages by

virtue of state law.

PrunzYard, 447 U.S. at 87.

36a

Like the owners of the shopping center in

PruneYard, the Corporation has invited the public onto

the tarmac and was required to do so by the military in

exchange for its airplanes, personnel and equipment. In

this environment, there is no reasonable likelihood that

the public will conclude that the Plaintiffs' message

reflects the beliefs of the Corporation. As was done in

2005, the Corporation can post signs indicating its

disapproval of public expression at the Air Show. ®

A Designated Public Forum or Nonpublic Forum?

The Plaintiffs continue to argue that the Air Show

has been designated by the City and the Corporation as

a forum to discuss the military and war. Therefore, any

First Amendment restrictions on the tarmac are

subject to strict scrutiny. This argument is reminiscent

of the Corporation's position that the Air Show itself

expresses support for veterans and current military,

and any competing speech violates the Corporation's

First Amendment rights.

For purposes of this litigation, both parties would

like to make the Air Show something it is not. The Air

Show is a fair like event that entertains and educates

and provides a good crowd for Memorial Day

ceremonies. There is no persuasive evidence that the

Corporation or the City intends the Air Show be a place

to discuss the military or the war, and there is no

evidence that most people come to the Air Show to hear

speeches on any topic. ° ;

Furthermore, merely because the Corporation

speaks when it distributes programs, announces events

or conducts the noontime program to honor veterans,

does not mean that it intentionally opens the event for

37a

public comment on these subjects. Every time a state

actor holds a public event and speaks at it does not

mean that the state actor is intentionally creating a

designated public forum. See Families Achieving

Independence and Respect (FAIR) v. Nebraska Dep't

of Social Services, 111 F.8d 1408, 1418 (8th Cir. 1997)

(en banc).

VI. What Restrictions are Reasonable?

A. Leafleting, but not Petitioning

The Plaintiffs contend that the fair like environment

of the Air Show is compatible with petitioning, given

the other activities which are permitted on the tarmac

and the open spaces that are apparent. Admittedly, an

airport tarmac is not the same as an airport terminal.

Both, however, serve a public that comes for a specific

purpose. In the case of the Air Show, most people come

to see aerobatic maneuvers by airplanes. In that

environment, petitioning poses a slight risk that the

public's enjoyment will be compromised if it is

distracted by petitioners or people soliciting money.

Petitioning requires, at a minimum, substantive

communication about the content of a petition, a

request for a signature and a refusal. In contrast,

leafletters can be dissuaded with the wave of the hand.

While it is true that the public interacts with many

other people on the tarmac during the Air Show, almost

all that contact is initiated by the public. The military

recruiters do not go into the crowd and solicit recruits.

Souvenirs, books, food and other commercial items are

sold from booths or tables. It is not unreasonable, under

these circumstances, that the Corporation prefers to

give the public the right to initiate substantive

38a

communication rather than have it thrust on them. In

contrast, leaflets, signs and expressive clothing are so

minimally intrusive and can be so easily ignored, that

there is little, if any, objective risk that the public will

be distracted from viewing the show. For similar

reasons, in International Soc'y for Krishna

Consciousness v. Lee, 505 U.S. 672, 690, 112 S. Ct. 2701,

120 L. Ed. 2d 541 (1992), the United States Supreme

Court found that a city could restrict all solicitations in

an airport terminal but could not prohibit leafleting

even though the terminal was a nonpublic forum.

In support of its argument, Plaintiffs point to the

case of Jews for Jesus, Inc. v. Mass. Bay Transp. Auth.,

984 F.2d 1319 (1st Cir. 1993), where the First Circuit

found that it was unreasonable to restrict petitioning in

the Boston subway system. While the First Circuit

discusses Lee in other contexts, it does not mention the

finding in Lee that petitioning can be prohibited in an

airport terminal. Either the First Circuit failed to

follow Supreme Court precedent or, more probably, it

found distinguishing facts because the subway system

administrators gave no justification for the petitioning

restriction and permitted newspaper sales and

musicians, which created at least as much congestion as

would be created by petitioners. For these reasons, the

Court finds the Plaintiffs' argument unpersuasive. The

Court is bound by Supreme Court precedent and there

is not evidence that activities similar to petitioning are

permitted at the Air Show.

The Court recognizes that Operation Simply Shred

was allowed to come onto the tarmac and take leaflets

from members of the public. Taking leaflets is not

materially different from handing out leaflets. While

some members of the public were permitted to actually

39a

shred their own documents which required somewhat

more interaction, it is not the same as petitioning,

which requires substantive communication. Given the

current record, the Court cannot say that Operation

Simply Shred's conduct would justify a finding that

petitioning or other forms of solicitation are compatible

with the Air Show.

While the Plaintiffs object to the Court's limitation

on petitioning, the Defendants object to the Court's

finding that the Plaintiffs have a right to distribute

leaflets at the Air Show. The Defendants cite New

England Regional Council of Carpenters v. Kinton,

284 F.3d 9 (1st Cir. 2002), and Hawkins v. City and

County of Denver, 170 F.3d 1281 (10th Cir. 1999), for

the proposition that all leafleting can be banned at the

Air Show. Both cases are distinguishable. The area in

dispute in Hawkins was a 600 foot walkway connecting

two theaters and a public parking garage. The walkway

was between 32 and 40 feet wide and musicians sought

to picket during peak traffic flow. The walkway was

open all year so problems with traffic control would be

difficult to manage.

In New England Regional Council of Carpenters,

the First Circuit also found that safety considerations

justified a complete ban of leaflets at Boston's Fish

Pier. The Court emphasized that:

the fishing fieet generates a great deal of

activity; there is a high volume of truck

traffic; and there appears to be precious

little room in front of the ECC. What space

is available serves primarily as a roadway

and truck turnaround. In these cramped

confines, pedestrian safety and traffic flow

40a

are vital concerns. The validity of these

concerns is underscored by the fact that,

when Massport erected concrete bollards to

protect the entrance to the ECC several

years ago, the bollards were so severely

damaged by trucks executing turnarounds

that Massport had to remove them. Thus,

although there are few, if any, problems

intrinsic to the act of leafleting, safety is a

plausible coneern here. . . . Given the

peculiar setting of the ECC entrance,

leafletters run a serious risk of obstructing

vehicular traffic and distracting pedestrians

as they traverse the roadway.

New England Regional Council of Carpenters, 284

F.3d at 25. In contrast, the Air Show is held in a huge,

open area on only two days a year and neither

Defendants have presented plausible evidence that

leafleting poses a safety risk or would impair traffic.

Finally, merely because there were a few complaints

about the Plaintiffs' First Amendment activity on the

tarmac, does not justify excluding all leafleting. It is

well established in First Amendment jurisprudence

that speech which merely offends cannot be prohibited.

In a democracy, the solution is more speech not less.

This was aptly manifested by Operation Simply Shred.

B. Signs

The City permitted signs at the 2005 Air Show even

though the Court's preliminary injunction order did not

require it to do so. Other than a sign being carried at

the noontime event to honor veterans, signs did not

create any disruption. Given this record, it would be

4la

unreasonable to implement a rule that prohibits all

signs at future Air Shows. Like leafleting and

expressive clothing, signs require no interaction with

people observing the Air Show. The City and the

Corporation implicitly recognized this when it

permitted signs at the 2005 Air Show.

All First Amendment activities on the tarmac,

including signs, are subject to reasonable time, place

and manner restrictions which are viewpoint and

content neutral.

VII. Noontime Event

No one has objected to the Court's finding that the

City and the Corporation can _ restrict First

Amendment activities on the tarmac during the

Corporation's noontime event to honor veterans. The

City, however, has requested the Court to include "a

provision in the permanent injunction to the effect that

the police may remove any person from the tarmac

engaged in carrying a sign or in leafleting during the

memorial who refuses to stop those forms of ‘activity

and speech'... ." City of Columbia's Brief Regarding

Issuance of a Permanent Injunction at p. 17. Neither

the Corporation nor Plaintiffs have objected to this

request. The Court will interpret the City's request as

an amendment to its pleadings and will address the

issue in this Order.

VIII. Conclusion

After the 2005 Air Show, the Court had hoped that

the parties would mediate their dispute and find an

acceptable accommodation for their competing

interests. They are in a much better position than the

42a

Court to identify creative and nonconfrontational

solutions. They have not done so. Accordingly, it is

ORDERED that:

Plaintiffs' Motion for Permanent Injunction and

Declaratory Judgment is GRANTED in part and

DENIED in part.

1. Plaintiffs and similarly situated

individuals may distribute leaflets at future

Memorial Day Air Shows at the Columbia

Regional Airport, subject to the permissible

restrictions identified in this Order.

2. Plaintiffs and similarly situated

individuals may carry signs at future

Memorial Day Air Shows at the Columbia

Regional Airport, subject to permissible

restrictions identified in this Order.

3. Plaintiffs and similarly situated people

may wear expressive clothing, hats and

buttons at future public Air Shows at the

Columbia Regional Airport, subject to the

permissible restrictions identified in this

Order.

4. The City and the Corporation do not

violate the First Amendment rights of the

Plaintiffs and similarly situated people when

they prohibit petitioning on the airport

tarmac during the Air Show, so long as their

rules and enforcement practices are content

and viewpoint neutral.

43a

The City's Counterclaim for a declaratory judgment

is also GRANTED.

violate the First Amendment rights of the

Plaintiffs and similarly situated people when

they prohibit First Amendment activities

during the noontime event to honor

veterans.

2. The City may remove any person from

the tarmac engaged in First Amendment

activities during the noontime event to

honor veterans. This includes persons who

distribute leaflets or carry signs if the

person refuses to stop carrying the sign or

distributing leaflets during the noontime

event.

NANETTE K. LAUGHREY

United States District Judge

Dated: March 31, 2006

Jefferson City, Missouri

CLERK'S JUDGMENT

Decision by Court. This action came to

trial or hearing before the Court. The issues

have been determined and a decision has

been made.

1. The City and the Corporation do not

{T IS ORDERED AND ADJUDGED that pursuant

| to the Order entered by the Honorable Nanette K.

| Laughrey on March 31, 2006, Plaintiffs' Motion for

Permanent Injunction and Declaratory Judgment is

GRANTED in part and DENIED in part.

44a

1. Plaintiffs and similarly situated individuals may

distribute leaflets at future Memorial Day Air Shows at

the Columbia Regional Airport, subject to the

permissible restrictions identified in this Order.

2. Plaintiffs and similarly situated

individuals may carry signs at future

Memorial Day Air Shows at the Columbia

Regional Airport, subject to permissible

restrictions identified in this Order.

3. Plaintiffs and similarly situated people

may wear expressive clothing, hats and

buttons at future public Air Shows at the

Columbia Regional Airport, subject to the

permissible restrictions identified in this

Order.

4. The City and the Corporation do not

violate the First Amendment rights of the

Plaintiffs and similarly situated people when

they prohibit petitioning on the airport

tarmac during the Air Show, so long as their

rules and enforcement practices are content

and viewpoint neutral.

The City's Counterclaim for a declaratory judgment

is also GRANTED.

a. The City and the Corporation do not

violate the First Amendment rights of the

Plaintiffs and similarly situated people when

they prohibit First Amendment activities

during the noontime event to honor

veterans.

b. The City may remove any person from

the tarmac engaged in First Amendment

45a

activities during the noontime event to

honor veterans. This includes persons who

distribute leaflets or carry signs if the

person refuses to stop carrying the sign or

distributing leaflets during the noontime

event.

Dated: March 31, 2006

By: Renea Kanies, Courtroom Deputy

Footnotes

1 The Court incorporates by reference its May 18, 2005

Order ("Order") [Doc. 57], including the facts which

were included in that Order.

2 Because the 2005 Air Show has now passed,

Plaintiffs’ request for a permanent injunction, as it

relates to the 2005 Air Show, is moot. However, both

parties have indicated that this will be an ongoing

dispute and both have requested the Court to take

these additional facts into account to resolve the

Plaintiffs' request for declaratory juagment and

permanent injunction. Therefore, the Court has

considered both these supplemental facts, as well as the

facts that were presented at the preliminary injunction

hearing, to resolve the Plaintiffs’ request for

declaratory judgment and permanent injunction.

3 The food booths remained open during the solemn

ceremony to honor fallen soldiers. Def. Ex. 15 (Martin

Dep.) at 83:11-13. Although Posner testified that the

food stalls were closed during this event, which

46a

occurred over the noon hour, the Court finds Officer

Martin's testimony more credible.

4 The Court will not restate here the legal authority

for its conclusions. Its May 18, 2005 Order is

incorporated verbatim and contains the relevant legal

authority.

5 Posner's exact quotation is, "In the entire 17 years

that I've been associated with this effort, we have

never asked the City of Columbia for anything, other

than approval of our 2535's to obtain the tarmac in

order to hold the two-day air show." Def. Ex. 190

(Posner Dep.) at 23:2-7.

6 In Hurley, The Supreme Court specifically stated

that it was not addressing the question of whether the

parade constituted state action. Because the Court has

found that both the Corporation and the City are state

actors, Hurley is irrelevant. Nonetheless, because

Defendants' primary focus has been on Hurley, the

Court will explain why it is inapplicable to the Air

Show, even if the Corporation is not a state actor.

7 The latter is sometimes referred to as “expressive

association."

8 PruneYard stands for the proposition that the First

Amendment rights of the Corporation are not violated

if leafleting, petitioning, or other First Amendment

activities occur on the tarmac. An entirely separate

issue is whether the Plaintiffs have the right under the

United States Constitution to distribute leaflets and to

circulate petitions on the tarmac. That issue will be

discussed in the next section.

47a

9 Memorial Day parades and ceremonies in Columbia

did not historically attract large crowds. Salute to

Veterans was organized in the 19863 because Memorial

Day festivities then consisted of “five men gathering at

the courthouse for 5 minutes of speeches. If it rained,

they [held] it in the garage of the funeral home." Def.

Ex. 110. It is, therefore, logical to conclude that many, if

not most, of the 25,000 people who attended the 2005

Air Show were attracted to the exhibits and aerobatic

displays of aircraft and not the speeches or other

expressive activity sponsored by the Corporation at the

Air Show.

48a

Case No. 05-4061-CV-C-NKL

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI,

CENTRAL DIVISION

BILL WICKERSHAM and MAUREEN DOYLE,

Plaintiffs,

Vv.

CITY OF COLUMBIA, MISSOURI and MEMORIAL

DAY WEEKEND SALUTE TO VETERANS CORP.,

Defendants.

May 18, 2005, Decided

May 18, 2005, Filed

COUNSEL: For Bill Wickersham, Maureen Doyle,

Plaintiffs: Dan Viets, Dan Viets Law Office, Columbia,

Mo; Marilyn S. Teitelbaum, Schuchat, Cook & Werner,

St. Louis, MO.

For Columbia, City of, Defendant: Robert J. Krehbiel,

King, Krehbiel, Hellmich, Hentz & Borbonus, St. Louis,

MO.

For Salute to Veterans Corp., Defendant: Dale C.

Doerhoff, Cook, Vetter, Doerhoff & Landwehr, P.C.,

Jefferson City, MO.

JUDGES: NANETTE K. LAUGHREY, United States

District Judge.

OPINION BY: NANETTE K. LAUGHREY

49a

OPINION

ORDER

I, Summary

Plaintiffs Bill Wickersham ("Wickersham") and

Maureen Doyle ("Doyle") seek a preliminary injunction

so that. they can distribute leaflets and circulate

petitions at a Memorial Day Air Show which is to be

held at the City of Columbia's airport. Because it is

likely: that Doyle and Wickersham will be partially

successful on the merits and will be irreparably harmed

if an injunction does not issue, the Court will grant

some but not all of the relief sought by the Plaintiffs.

The Memorial Day Air Show ("Air Show") is to be

held on May 29 and 30, 2005, at the Columbia Regional

Airport ("Airport"), which is owned by the City of

Columbia ("City"). The Air Show consists of an aerial

display viewed by the public from a designated part of

the Airport tarmac. In addition to the aerial display,

various booths and stationary displays are authorized

to occupy the designated tarmac. The Defendant,

Memorial Day Weekend Salute to Veterans

Corporation ("Corporation"), does not permit any

unauthorized displays or booths, but the Air Show is

open to the public because the federal government will

not permit the use of its planes unless the public can

attend.

Although the entire event is open to the public,

including the designated tarmac where the public

comes to watch the show, the Defendants claim that the

Corporation has the authority to exclude anyone from

the public crowd who does not meet its approval. To

50a

support this proposition, Defendants point to a contract

between the City and the Corporation which gives the

Corporation exclusive control over the designated

tarmac, subject only to the City's right to retake

possession of the tarmac in the event of an undefined

emergency. This contract was executed despite a City

Ordinance which specifically provides that the City

cannot cede control of any part of the Airport to a third

party. '

The City and the Corporation contend that,

regardless of the ordinance, the City has no power to

require the Corporation to permit any free speech at

the Air Show because to do so would interfere with or

dilute the Corporation's message. According to the

Corporation, the message of the Air Show is to honor

and remember veterans, and if any group or individual

engages in any expression unapproved by the

Corporation, it would violate the Corporation's right to

free speech because the Corporation does not want to

be associated with anyone else's message.

The problem with the Defendants’ argument is that

the City is inextricably involved in the Memorial Day

Air Show and, therefore, neither the Corporation nor

the City has a right to control all expression at this

public event. The City runs the Airport during the Air

Show and provides other necessary support such as

special police, fire and sanitation resources. While the

Corporation plans the order of the aerial

demonstrations, the plan must be approved by the

City's Airport personnel. While the Corporation

contracts with the federal government and other pilots

to bring their planes to the City and pays for some to

come, * it simply cannot make the planes fly without the

contemporaneous operation of the Airport by City

5la

personnel. Furthermore, the federal government will

not even send its planes unless the City attests that the

City is making the Airport available for the Air Show

and it is officially supported by local government.

This is not like turning over a city park to a private

organization and letting them put on an event to honor

and remember veterans, or to individuals for a family

reunion, or even having an arts festival on all the city's

streets. Under those circumstances, the private group

merely has the use of public property and, therefore,

could exclude whoever they wanted even though the

event is occurring on public land and open to the

public.’ In contrast, once the city becomes a substantial,

necessary and active participant in the event, it cannot

rely on superficial distinctions created by contract to

insulate itself from constitutional obligations. While the

Corporation has 3,000 volunteers and spends about $

100,000 each year for the event, it is undisputable that

the Air Show could not occur without the substantial

involvement of the City before, during and after the

event.

Because of the symbiotic relationship between the

City and the Corporation, the Constitution does not

permit them to exclude all unapproved expression. On

the other hand, the Constitution does permit

reasonable time, place and manner restrictions. Most of

the Air Show is devoted to entertainment, but there

are events during that Air Show which specifically

recognize the sacrifices made by the current and former

men and women in the armed services. During such

solemn events, the Defendants can exclude leafleting,

protests, petitioning, or any other speech or activity

that might distract the crowd or offend those whose

loved ones are being recognized. ‘ But the Defendants

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may not simply say that the entire Air Show is to honor

and remember veterans and, therefore, any message

other than ones approved by the Corporation will

distract, mar or offend.

Because the Court finds the Air Show to be a

nonpublic forum, it is permissible for the Defendants to

exclude all petitioning. The Supreme Court has

permitted such restrictions in the terminal of an airport

which also contained substantial other commercial

activity and this is closely analogous to the event at

hand. The Defendants cannot, however, exclude all

leafleting. The Supreme Court and other courts have

recognized in similar circumstances that leafleting

cannot be prohibited. Nor can the Defendants ban all

protests because such a rule is patently overbroad and

vague. For example, the Defendants cannot exclude

clothing which expresses a viewpoint with which the

Corporation disagrees.

While all First Amendment activities at the Air

Show are subject to reasonable time, place and manner

limitations, any rules adopted by either Defendant

must be content neutral and must be uniformiy

enforced. For example, the Defendants cannot let in a

sigan which says "God Bless our Troops" and exclude a

sign which says "God is Watching," which was done in

the past.

Defendants do retain control over who will be

permitted to fly in the Air Show and who may sell

goods or have a booth at the event. The Defendants,

and in particular the Corporation, have an interest in

controlling who is perceived to be associated with them.

A reasonable person would not think that someone

handing out leaflets in a crowd represents the

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viewpoint of the organizers of an event absent some

identifying mark. However, they could reasonably

associate the Corporation with the booths and displays

at the event. Just because the Corporation has

entwined itself with the City, that does not mean that

the Corporation's interests are to be ignored. All three

parties in this dispute are entitled to have their

respective interests protected in such a way as to not

interfere with the objective interests of the others.

II. Facts

A. Corporation's Background

Prior to the Corporation's formation and the

inception of the Air Show, the City did not have many

activities to celebrate Memorial Day. When Mary

McCleary Posner ("Posner"), the president of the

Corporation, first moved back to Columbia in the 1980s,

the Memorial Day festivities consisted of "five men

gathering at the Court House for five minutes of

speeches. If it rained, they [held] it in the garage of the

funeral home." Def. Ex. 110. To correct the situation,

Posner worked with five veterans from the Korean War

and they decided to have a parade and, eventually, they

came up with the idea of an Air Show.

The Corporation was officially organized in 1991 as a

private not-for-profit corporation. Pl. Ex. 1. Its mission

statement is: "To Honor and Remember those who

served, those currently serving in our Armed Forces,

Guard, Reserves, and our Allies." Def. Ex. 110. In her

deposition, Posner stated that the purpose of the

Corporation was not to glorify war. Posner Dep. at

49:18-22.

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The Corporation sponsors two major events during

the Memorial Day weekend: (1) a parade through

downtown Columbia on Memorial Day, and (2) a two-

day Air Show that is held at the Columbia Regional

Airport. Def. Ex. 121, 127.

B. Air Show

The Corporation's Air Show is defined as "the

aerobatic and static display of aircraft and related

exhibits, a static antique automobile show together

with the sale of food for consumption on the Airport

grounds and entertainment events and_ related

activities." Pl. Ex. 5. The Air Show usually draws

approximately 30,000 people. Pl. Ex. 6 and 7.

The Air Show is held on a secured tarmac of the

Airport, which is owned by the City of Columbia.

Boston Dep. at 6:22-24. ° The City provides use of the

Airport to the Corporation free of charge. Posner Dep.

at 249:19 to 250:3. The Airport is located outside the

Columbia city limits in an unincorporated area of Boone

County, but is owned by the City. Boston Dep. at 6: 25

to 7:10. The Air Show is open to the public and is free of

charge. Def. Ex. 122. The federal government, which

has provided planes and personnel for the Air Show,

requires that the event be open to the public;

otherwise, it will not participate. Pl. Ex. 6 and 7.

On the map of the Airport contained in Plaintiffs’

Exhibit 22, the area outlined with the words "Crowd

Area Static Displays" is the tarmac that the public is

allowed to enter during the Air Show. Pl. Ex. 22. The

tarmac is enclosed with a fence and there are three

gates onto the tarmac from the parking area that help

control ingress and egress of the crowds. Posner Dep.

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at 127:1-4. All three gates are open to the public during

the Air Show. Pl. Ex. 26 (public map identifying three

gates as Entrances to the Air Show). The tarmac is not

open to the public except during the Corporation's Air

Show. Boston Dep. at 112:1-20. When the tarmac is not

being used for the Air Show, airplanes park there and

cargo and commercial flights arrive there. Boston Dep.

at 112:1-10.

During each of the two days of the Air Show, the

Corporation sponsors a ceremony during the middle of

the day. Annette Sanders ("Sanders"), the former

volunteer media chair for the Air Show, testified at the

hearing that during the ceremony, they play the

national anthem, lower the flag to half staff, read the

names of the 225 Boone County veterans who have died

during combat, and then play Taps. During the hearing,

the Corporation's counsel stated that they used to read

the names at the Boone County Courthouse ceremony

at the conclusion of the parade, but they moved it to the

Air Show because there is a larger crowd at the Air

Show.

To book the aircraft for the Air Show, the

Corporation often has to pay the owners of private

aircraft an appearance fee and reimburse the aircraft

owners for their fuel and other expenses, including

lodging, meals, and transportation costs. It also gets

planes and equipment from the federal government, but

pays only for the travel expenses of the government

employees. In addition to aerial support from the

federal government, the Corporation receives support

from the Boone County Fire Department and the

University of Missouri-Columbia ambulance services

for emergency services. Boston Dep. 33:19 to 34:1. The

University of Missouri-Columbia, the Missouri

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Highway Patrol, and the Boone County Sheriff's

Department also provide law enforcement personnel to

work security at the Air Show at no expense to the

Corporation. City Police Captain, Michael Martin

("Martin") Dep. at 74:10-25; 76:5-20. The Corporation

estimates that it spends $ 100,000 per year to sponsor

the Air Show. The Corporation has 3,000 volunteers

and 65 committee chairpersons, including a board of

directors who work on the Air Show and its other

activities.

1. Air Show Rules

The Corporation has adopted a number of rules

concerning the Air Show. Some of those are found on

the Corporation's website and include:

— No coolers, picnic baskets, no alcohol, no

pets

-- No bikes, tricycles, scooters or roller

blades

-- No smoking inside the gates

-- No unauthorized sales

-- No petitioning

-- No soliciting

— No political campaigns

Def. Ex. 122. The Corporation alse communicates these

spectator restrictions in its press releases and fact

sheets. Def. Ex. 144 and 148. In 2003, the Corporation's

restrictions expanded to prohibit umbrellas, glass

containers, and signs. Pl. Ex. 4.

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The Corporation fleshes out its prohibitions in its

Security Detail which is given to the City Police who

provide security at the Air Show. Specifically, the

instructions state: "No protests are permitted inside the

tarmac fence. No signing of petitions for any reason,

and no passing of handbills for any reason is permitted

inside the tarmac. Authorized programs, and

authorized handout materials on the part of exhibitors

is permitted." Pl. Ex. 29.

In preparation for the 2003 Air Show, the Columbia

Police Department created an intra-office security

memorandum that anticipated how it would respond to

protesters at the Air Show. The memorandum stated:

[Protesters] are not allowed to enter onto

the tarmac area and are restricted to

protesting outside of the Columbia Bust

Gate, noted as Gate #1... . Should

protestors attempt to enter the premises,

officers will immediately advise the

Command Center and will stop their

forward progress .... Any person who

persists in entering will be given a trespass

warning prior to arrest. Keep in mind that

persons are not restricted from entering,

only those who intend to conduct a protest

once entry is made. . . . Once given a

trespass warning, any person who attempts

to enter onto the airport property is subject

to arrest. The Tarmac Supervisor and Law

Enforcement Security Commander should

be notified. A representative of [the

Corporation] will be asked to respond.

Should the person continue to refuse to obey

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directions the representative from [the

Corporation] may request that person be

arrested for trespassing and will sign the

summons issued to the arrested person.

Pl. Ex. 48. Also see Pl. Ex. 29 for the Columbia Police

Department's security form which is used to implement

this policy.

The Corporation, by its president, Mary Posner, is

the ultimate arbiter of what speech is allowed to occur

on the tarmac and she alone decides whether particular

conduct violates the restrictions outlined above. Martin

Dep. 51:21 to 52:1; Pl. Ex. 43 (instructing officers to

contact the Corporation representative in the event of

protesters). Martin testified that, "if [Posner] says that

she does not want somebody on her property,

regardless of what her reasoning is, I would ask that

person to leave," even if the reason was the person's

race or viewpoint. * Martin Dep. 67:24 to 65:2.

In her deposition, Posner testified that the

Corporation's restrictions on leafleting and handbills

would prevent disruptions at the Air Show, debris on

the tarmac, and increase the enjoyment of the public.

Posner Dep. 235:22 to 236:7. Posner also expressed

concern that distributing information on the tarmac

would cause the size of the crowd to increase; Posner

Dep. 238:17-21, and "it just is not an acceptable way for

us to be able to honor and remember." Posner Dep.

238:25 to 239:1.

Although the Corporation restricts protest

activities on the tarmac, it does not restrict activities

outside the fenced area. In his deposition, Martin, who

was responsible for coordinating security at the Air

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Show, testified that it was alright for individuals to

protest or distribute leaflets or handbills anywhere

outside the fenced tarmac area. Martin Dep. 117:13-21.

2. Speech Restrictions at Prior Air Shows

At the 1999 Air Show, Plaintiff Doyle carried a sign

around the tarmac that stated, "God Bless our Troops."

Doyle Dep. at 8:5-11. Doyle estimated that the sign was

approximately two by three feet in size. Doyle did not

hand out leaflets during her 1999 visit to the Air Show.

Doyle Dep. 8:25 to 9:2. Doyle estimated that she walked

around the tarmac with the sign in front of her for

approximately ninety minutes. At the same Air Show,

Steve Jacobs was refused entry onto the tarmac

because he was carrying a sign that said, "God is

watching." Wickersham Dep. at 68:2-16. Wickersham

testified that a City police officer tore up the sign and

refused entry for Steve Jacobs. Wickersham Dep. at

68:2-16.

Doyle attended the Air Show on Saturday, May 29,

2004, and tried to distribute fliers with the following

quotes:

Thoughts On War and Peace

"We have grasped the mystery of the

atom and rejected the Sermon on the

Mount. Ours is a world of nuclear giants and

ethical infants. We know more about war

than we know about peace, more about

killing that [sic] we know about living." -~

General Omar Bradley

"Why is it so easy for us to be willing to

pick up arms and risk our lives, and so

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difficult to put down those same weapons

and still risk our lives - in the cause of life?" -

- Rams Kysia, a young Muslim-American

peace activist

Pl. Ex. 33. After she had distributed some leaflets, a

City police officer approached Doyle and told her she

could not distribute them. Doyle Dep. 23:2-4. During

this interaction, the officer advised Doyle that he would

arrest her if she continued to hand out leaflets. Doyle

Dep. 23:5 to 26:13. The officer who approached Doyle

was riding a bicycle and he was wearing a yellow t-

shirt, navy blue shorts, and a bike helmet. Doyle Dep.

22:13-19. The officer was also wearing an identification

badge that had the words “Columbia Police

Department" on it. Doyle Dep. 27:4-11.

Approximately seven additional officers

subsequently arrived on the scene and they were

dressed the same as the original officer who approached

Doyle. Doyle Dep. 26:14-17, 26:22-23. One of the newly-

arrived officers grabbed some of Doyle's fliers out of

her hands, and Doyle subsequently left the Air Show.

Doyle Dep. 29:7-25.

At the 2004 Air Show, Wickersham also attempted

to collect signatures for a petition for renewable

energy. Wickersham Dep. at 14:11 to 15:6; Pl. Ex. 31.

Wickersham would ask individuals if they wanted to

sign the petition; if they refused, then he did not ask

them again. Wickersham Dep. At 16:24 to 17:4.

Wickersham was standing approximately thirty to

forty yards inside the tarmac when a City police officer

approached him and told him he could not circulate his

petition. Wickersham Dep. 30:10-15. The officer

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handcuffed Wickersham and took him to the police

department's command post at the Air Show.

Wickersham Dep. 32:5-16. The officers at the command

post confiscated Wickersham's clipboard and issued him

a citation for trespassing. Pl. Ex. 32 and 32A. Martin

consulted with Posner regarding Wickersham and

Posner instructed Martin and the officers to arrest

Wickersham for trespassing. Martin Dep. at 54:5-10.

Neither the police report nor Martin's testimony at his

deposition reflect that Wickersham was being

disruptive. Pl. Ex. 32A; Martin Dep. at 64:3-7. To date,

the City has not prosecuted the trespassing citation

against Wickersham, but the matter is still pending.

Wickersham Dep. at 34:15-18.

a. Future Speech

Doyle testified that she intends to distribute leaflets

again at the 2005 Air Show. Doyle Dep. at 33:5-13.

Wickersham is not sure whether he will attend the 2005

Air Show or attempt to engage in free speech activities

at the 2005 Air Show.

b. Speech At the Air Show By Parties Other than

Plaintiffs

In her deposition, Posner testified that at one of the

Air Shows in the late 1990s, Posner observed a group of

protesters on the tarmac who were holding a banner

that Posner believed was anti-military, although she

cannot remember the details of the banner. Posner

Dep. 209:18 to 212:10. Posner testified that there were

six individuals carrying the banner and that they were

blocking the entrance onto the tarmac. Posner Dep.

209:18 to 212:10.

In another incident in the late 1990s, Posner

testified that there were six people on the tarmac

62a

circulating a petition against cockfighting and another

issue, although Posner did not know what the other

issue was. Posner Dep. 212:15 to 217:22. Posner stated

that some patrons of the Air Show complained to her

that the circulators were harassing them and their

families by repeatedly asking them to sign the petition

and sticking clipboards in their faces. Posner Dep.

212:15 to 217:22.

Posner also testified that one individual who was

distributing leaflets threw the leaflets in the air and left

them as trash on the tarmac when the individual was

asked to leave the Air Show. Posner Dep. 221:15 to

222:6.

c. Safety

In his deposition, Martin could not identify any

security risk that may be attendant to allowing peaceful

speech activity on the tarmac. Although leaflets

distributed by protesters may increase debris on the

tarmac, and thereby increase the risk of harm to the

aircraft, Martin acknowledged that those risks are

already present because there are authorized handouts

and trash on the tarmac. Martin Dep. at 70:14-19.

Martin stated his only concern with free speech

activity on the tarmac was the possibility of disruption

or volatility due to unwanted petitioning. Martin Dep.

at 44:14-19. In 2004, Martin stated that petitioning-

related complaints were "minimal" and that he was

aware of only the two speech-related incidents in 2004

which involved Wickersham and Doyle. Martin Dep. at

48:7 to 49:2. Boston has not witnessed any disruptions

with speech-related activity on the tarmac, although he

indirectly heard about the problems with petitions.

Boston Dep. at 76:2 to 77:1.

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3. Other Activities at the Air Show

a. Vendors

In addition to the aerial and static displays of the

aircraft, other activities take place on the tarmac.

Numerous vendors sell food, beverages, ice cream, and

souvenirs on the tarmac. Pl. Ex. 26. Posner testified

that there were four food and beverage tents, two ice

cream vendors, and three souvenir tents, all of which

are on the tarmac. Posner Dep. at 99:13-20. Civic

organizations, like the Columbia Downtown Optimist

Club, staff some of these vendor booths and they split

the profits with the Corporation. ’ Posner Dep. at 97:19

to 98:4. In 2004, the University of Missouri Bookstore

was allowed to sell approved books on the tarmac and

conduct a book signing. Posner Dep. at 96:22 to 97:12.

Boy Scouts also offer souvenir programs on the tarmac

during the Air Show in return for a five dollar donation.

Posner Dep. at 103:6-10.

b. Recruiters

Armed forces recruiters staff booths on the tarmac

and provide handouts to patrons of the Air Show.

Specifically, recruiters from the Army, Navy, Navy

Reserve, Marine Corps, Air Force, Air Force Reserve,

Coast Guard, and Missouri National Guard are all on

the tarmac during the Air Show at booths for their

respective branch of the armed forces. Pl. Ex. 26.

In addition to their recruiting booths, the recruiters

from the armed forces also set up exhibits for patrons of

the Air Show. Those exhibits include: an Army climbing

wall, NASCAR, adventure van, and shooting gallery; a

Navy Taj Mahal; Air Force Raptor and van; Marine

Corps obstacle course; and multiple National Guard

vehicles and pieces of equipment. Pl. Ex. 6. Plaintiffs

64a

contend that the recruiters circulated in the crowd and

handed out materials, but the Court does not find

sufficient support in the record for that contention. *

c. Rejected Activities

Although the Corporation allows vendors and

armed forces recruiters onto the tarmac, it does limit

the presence of other organizations. For example, in

March 1998, The American Legion inquired about

staffing an information booth inside the tarmac during

the Air Show. Def. Ex. 182. The American Legion was

concerned that its organization did not have enough

visibility during the Air Show. Def. Ex. 182. The

Corporation rejected The American Legion's request

and wrote: "We do not allow any booths, tables or

handouts at our events. ... I think that you will

understand that we are bombarded with requests to

use the Memorial Day Weekend Salute to Veterans

Celebration for other purposes than to ‘Honor and

Remember' and we say 'no' to all of them." Def. Ex. 119.

However, the Corporation did encourage The American

Legion to staff one of the vendor booths available on

the tarmac and suggested: "The civic groups are

encouraged to hang their banners on the tent." Def. Ex.

119.

In her deposition, Posner testified that the

Corporation receives approximately 50 to 150 requests

every year from groups seeking display space on the

tarmac during the Air Show. Posner Dep. at 268:17 to

269:21. Groups include the American Red Cross, a

company from New York that wants to solicit bank

cards from patrons of the Air Show, and the Columbia

Fire Department. Posner Dep. at 268:17 to 269:21,

274:7-17.

4. The Corporation's Advertising

The Corporation produces glossy posters to hang

around the City in anticipation of the Air Show. Posner

Dep. at 266:15 to 267:10; Def. Ex. 120. ° The caption at

the top of the poster states, "Memorial Day Weekend

Corporation Air Show." Def. Ex. 120. The poster does

not have the word "veteran" on it anywhere nor does it

reflect that it is an event in honor of veterans. Def. Ex.

120. The Corporation distributes approximately 2,000 of

these posters around the City. Posner Dep. at 266:15 to

267:10.

The Corporation also develops a 30-second public

service announcement for the local television stations

around the City. Posner Dep. at 267:5-13. The Court

does not have the content of this public service

announcement.

In addition to the foregoing, the Corporation

produces a souvenir booklet that it provides to Air

Show attendees in return for a donation. Def. Ex. 112-

114. Although the brochures do not promote the Air

Show in advance, they are used as promotional tools for

both the Corporation and the Air Show. The cover of

the 2002 booklet contains the Corporation's full name

and the phrase "A Salute To Those Who Serve, Save

and Protect Us." Def. Ex. 112. Inside the booklet, there

is information concerning the Corporation's year-round

efforts for the Air Show, logistical information (i.e.,

parking, vendor map, etc.) for the Air Show, and

advertisements for businesses in the City area. Def. Ex.

112. Some of the businesses choose to honor and salute

veterans in their advertisements. For example, the

McDonald's advertisement stated, "We Salute You!

Thank you for your dedication." Def. Ex. 112 at p. 40.

Another advertisement was purchased by Little Dixie

Construction, L.L.C., and the advertisement stated, "A

proud salute to America's Armed Forces." Def. Ex. 112

at p. 41. Both the McDonald's and Little Dixie

advertisements also include their company logos and, in

the instance of Little Dixie, contact information for the

company.

While some advertisers in the brochure honor

veterans with the text of their advertisement, many do

not. For example, the inside back cover of the brochure

was purchased by Columbia Ready Mix and it makes no

mention of veterans. Def. Ex. 112. Similarly, the

advertisements for Hertz and the University of

Missouri Hospital make no mention of veterans or the

Corporation's goal of honoring and remembering

veterans. Def. Ex. 112 at pp. 42 (Hertz) and 24

(University of Missouri full page ad). Thus, the

Corporation does not require that its advertisers

incorporate its mission of saluting and honoring

veterans and, instead, allows advertisers to control the

content of their advertisements.

C. Role of the City in the Air Show

The City of Columbia devotes substantial public

resources to the Air Show.

1. Resolutions and Agreements

The Airport is owned by the City. In 2000, 2001,

2002, 2003, and 2005, the Columbia City Council

adopted resolutions authorizing Columbia's City

67a

Manager to "execute an agreement with [the

Corporation] for an Air Show to be held at Columbia

Regional Airport." Pl. Ex. 5A-5E. The resolutions

authorized the City Manager "to provide support

services for the Memorial Day activities planned by

[the Corporation] within the constraints of the city

budget and taking into consideration the limited

resources and operational duties of the various city

departments.” Pl. Ex. 5A-5E.

Pursuant to these resolutions, Raymond Beck

("Beck"), Columbia's City Manager, entered into

agreements with the Corporation. Under the

agreements, the City granted the Corporation

"exclusive control, subject to the rights of tenants and

the provisions of [the agreement], to control activities

taking place on the [tarmac] during the time period of

the event." Pl. Ex. 5A-5E. However, the City has an

ordinance which provides: "The city shall, at all times,

maintain full control of the airport. The city shall adopt

no ordinance, resolution or motion and shall make no

lease or contract with any person, including the United

States Government, which will impair the City's control

of such airport and its facilities. . . ." Columbia, Mo.,

Ordinance § 3-3, Ord. No. 10665 (1985) (attached as PI.

Ex. 38A).

Furthermore, the City still operates normal

commercial air-traffic during the Air Show period and,

of course, the tower is in operation for the Air Show.

Boston Dep. at 21:6-21. Boston testified that the

Airport "remains open" but that the airspace "may be

closed at various times due to the aerobatic events"

from the Air Show. Boston Dep. at 21:19-21. Boston also

testified that in the event of an emergency, the Airport

tower would order the Air Show to be stopped. Boston

68a

Dep. at 92:8-12. Then the Air Show airplanes would

clear the runway or other emergency area and Boston's

emergency crew from the Airport would respond to the

emergency. Boston Dep. at 92:8-12. Pl. Ex. 5A-5E at

P23.

2. Planning and Coordinating Activities

To conduct the Air Show, the Corporation must

submit a Ground Operations Plan ("GOP") to the

Federal Aviation Administration ("FAA") for approval.

The GOP includes information regarding the flight

restrictions, areas of access on airport grounds,

hazardous material plan for the Air Show, integrity of

the runway and taxiway safety areas, movement area

maintenance, crowd barriers, parking for aircraft,

debris control, noise, fueling of aircraft, protection of

the public, authorized vehicles, and other aspects of

Airport oversight. Pl. Ex. 22. For 2004 and 2005,

Boston prepared the entire GOP for submission to the

FAA except for the schedule of events contained

therein. Pl. Ex. 22 and 27; Boston Dep. at 14:6-24.

Boston and the other Airport staff incur additional

job-related duties as a result of the Air Show. Boston

Dep. at 62:12 to 63:8. The Corporation did not

reimburse the City for any of these employees' time

spent working on the Air Show. Boston Dep. at 63:9-13.

In a June 2003 memorandum to the Columbia City

Council, Beck also acknowledged that "while no direct

financial support comes from [the City] for [the Air

Show], the city does provide some in-kind support

through airport staff time." Pl. Ex. 37.

Boston's help is undisputedly essential to the Air

Show. Boston has described the Airport's role in the

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Air Show as a "community partner" and as a "host." Pl.

Ex. 25C; Boston Dep. at 81:1-4. In fact, Boston stated

that without the City's support, the "Air Show couldn't

take place." Boston Dep. at 9:8-12. In her deposition,

Posner described Boston as "absolutely essential" to the

Air Show's continuation. Posner Dep. at 151:21 to 152:2.

3. Air Boss Briefings and Meetings

Numerous City officials participated in the Air Boss

briefings that immediately led up to and during the

course of the Air Show. In his deposition, Boston

estimated the Air Boss briefings tovk place both days of

the Air Show and possibly on the Friday preceding the

Air Show and the Monday immediately thereafter.

Boston Dep. at 51:10-15. Specifically, Boston, the air

traffic controller, an FAA representative, the City's

fire chief, and Martin all participate in the briefings. PI.

Ex. 9.

In addition to the Air Boss briefings, Boston and

Martin both regularly attend the Corporation's monthly

meetings to plan for the upcoming Air Show. Boston

Dep. 46:8-24.

4. Transportation

During the Air Show, The City helped coordinate

shuttle services to and from the Airport to help

alleviate parking limitations. In 2004, a City police

officer arranged for a shuttle to be provided by a

private organization to shuttle attendees to and from

the Air Show. Martin Dep. at 73:3-6. Also in 2004,

Martin was listed as a primary contact for the Air Show

in an article published by The Columbia Missourian

that discussed the shuttle service to the Air Show. PI.

Ex. 21.

5. Security

a. Security Plan

Prior to each Air Show, Martin and Boston work

together to prepare a Security Plan. Under the

Security Plan, Martin coordinates security for the

public-access areas of the tarmac while Boston plans

security for the non-public areas of the tarmac,

including the airfield, taxiways, runways, and grassy

areas. Boston Dep. at 36:14 to 38:15. During the Air

Show, City police officers act in accordance with a

Security Detail prepared by Martin, which is included

as Pl. Ex. 29. The Security Detail outlines the uniform

for the Air Show and specifies the rules for the Air

Show, including the ban against "protesting." Pl. Ex. 29.

b. Personnel

The City police coordinate security for the Air

Show. Posner Dep. at 103:25 to 104:4. In his role as a

Columbia police officer, Martin has coordinated and

directed security at the Air Show since 2001. Martin

Dep. at 10:20-24. In addition to the City police, other

agencies also provide personnel for security at the Air

Show, including the Missouri State Highway Patrol, the

Boone County Sheriffs Department, and _ the

University of Missouri Police Department. Martin Dep.

at 74:10-25. Each of the governmental agencies that

employ these security officers pay their officers out of

their respective operating budgets; the Corporation

provides no reimbursement for the officers’ time.

Martin Dep. at 76:5-20. The City alone incurred over $

15,000 in overtime compensation for providing its police

officers for the Air Show, and this figure does not

include time that officers committed to the Air Show

Tla

during their regular work schedules. Pl. Ex. 42; Martin

Dep. at 83:21-25.

In addition to his other air-show-related duties,

Martin annually attends the International Convention

of Air Shows where he receives training and attends

workshops related to Air Show security. Martin Dep. at

17:4-14. Posner and other Corporation officials also

attended the Convention, but Martin was the only

governmental employee to attend. Martin Dep. at 17:6-

20. The Corporation pays for Martin's expenses at the

Convention, but the City pays his salary while he

attends the Convention during working hours. Martin

Dep. at 17:21 to 18:12. The Convention includes a

session regarding First Amendment activity at Air

Shows and includes information for how to handle free

speech activity during Air Show functions. Martin Dep.

at 19:9-24.

6. Emergency Services

The City provides emergency services in the form of

"crash, fire and rescue protection services, surveillance

and equipment" during the Air Show. Pl. Ex. 5A-5E.

Under the agreements, the Corporation does not pay

for these services. Pl. Ex. 5A-5E. Boston helps

coordinate the additional emergency services needed

for the Air Show. Boston Dep. at 30:2-17. Some of these

additional emergency services include support from the

Boone County Fire Districts and the various ambulance

services around the City. Boston Dep. 33:19 to 34:1.

Posner testified at the hearing that the University of

Missouri-Columbia provides some of its ambulances to

support the Air Show.

7. Miscellaneous Services

72a

The City also provides recycling bins for the Air

Show, Boston Dep. at 43:14 to 44:10; and a pavement

sweeper and a driver to keep the tarmac clean. Boston

Dep. at 48:6 to 49:14. It has sent out articles about the

Air Show with its utility bills which go to

approximately 45,000 residents. Beck Dep. at 27:9 to

29:3. Pl. Ex. 13. In 2004, the City ran a front-page

article about the Corporation's Air Show in CitySource,

a City publication, but the Corporation did not pay any

fee for the article to appear in CitySource.

The City's website also advertised the Air Show. In

2004, the City's website advertised the Air Show in the

section of the City's website where residents could pay

their utility bills. Pl. Ex. 30. The website invited the

general public to attend the Air Show and "spend the

day as we Honor and Remember our Nation's and our

Allies' veterans, and say 'Thank You!’ to current active

duty members of our Armed Forces, members of the

National Guard and Reserve and Allied Forces." Pl. Ex.

30. Moreover, on the Airport's official website, there is

a link to the Corporation's website. Pl. Ex. 36D.

8. Public Confusion and Sponsorship

In its press releases and other materials, the

Corporation tries to distance itself from the perception

that the Air Show is sponsored by the City. In a 2004

Fact Sheet, the Corporation stated: "PLEASE NOTE:

This event is in no way a function of or sponsored by

the City of Columbia, its Chamber of Commerce, or the

Columbia Convention/Visitors Bureau." Def. Ex. 155. In

a Media Advisory dated April 2003, the Corporation

stated:

73a

PLEASE NOTE: Do not refer to this as

the "Columbia Airshow", "Columbia's"

Memorial Day Airshow, this "Columbia

event", "Columbia's Memorial Day

Weekend", etc., or any other designation

that would imply it is hosted, organized, or

in any way produced or sponsored by the

City of Columbia, Missouri. It is presented

solely by [the Corporation], a registered

501(c)(3) not-for-profit corporation in the

State of Missouri, which consists of 3000

volunteers and 65 volunteer committee

chairmen. Media credentials are mandatory.

Def. Ex. 152.

The City holds itself out as a sponsor of the Air

Show. To obtain federal military aircraft, the

Corporation must submit specific applications to the

armed forces and the FAA. In the applications, Beck

signed in his official role as City Manager verifying that

the Airport was available for the Air Show and that the

Air Show was "officially supported by local

government." Pl, Ex. 6 and 7.

Assistant City Manager Hiram Watkins has denied

that the City is a sponsor of the Air Show, but admitted

that its relationship is "more of a partnership." Watkins

Dep. 20:16. Boston said that the Airport "hosted" the

Air Show. Boston Dep. 80:19 to 81:4.

III. Standard of Review - Preliminary Injunction

In determining whether to grant a preliminary

injuncti

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