       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2       United Church of Christ, et al. v.              No. 01-3434
    ELECTRONIC CITATION: 2004 FED App. 0291P (6th Cir.)           Gateway Economic Dev. Corp.
                File Name: 04a0291p.06
                                                              Before: BOGGS, Chief Judge; COLE, Circuit Judge;
                                                                        BATTANI, District Judge.*
UNITED STATES COURT OF APPEALS
                                                                                _________________
              FOR THE SIXTH CIRCUIT
                _________________                                                     COUNSEL

THE UNITED CHURCH OF               X                      ARGUED:       Raymond Vasvari, AMERICAN CIVIL
CHRIST ; RONALD FUJIYOSHI;          -                     LIBERTIES UNION OF OHIO FOUNDATION, Cleveland,
                                    -                     Ohio, for Appellants. Dennis R. Wilcox, CLIMACO,
GARY QUARLES; JUAN                                        CLIMACO, SEMINATORE, LEFKOWITZ & GAROFOLI,
                                    -  No. 01-3434
REYNA,                              -                     Cleveland, Ohio, for Appellee. ON BRIEF: Raymond
          Plaintiffs-Appellants, >                        Vasvari, AMERICAN CIVIL LIBERTIES UNION OF OHIO
                                    ,                     FOUNDATION, Cleveland, Ohio, for Appellants. Dennis R.
                                    -
AMERICAN MISSIONARY                                       Wilcox, CLIMACO, CLIMACO, SEMINATORE,
                                    -                     LEFKOWITZ & GAROFOLI, Cleveland, Ohio, for Appellee.
ASSOCIATION , et al.,               -
                      Plaintiffs, -                                             _________________
                                    -
                                    -                                               OPINION
            v.
                                    -                                           _________________
                                    -
GATEWAY ECON OMIC                   -                       R. GUY COLE, JR., Circuit Judge. The Indians and
DEVELOPMENT CORPORATION -                                 Cavaliers—Cleveland’s respective professional baseball and
OF GREATER CLEVELAND ,              -                     basketball teams—play their home games at the Gateway
INC.,                               -                     Sports Complex (“the Complex”). Featuring Jacobs Field and
                                    -                     Gund Arena, the respective stadiums for each team, along
           Defendant-Appellee. -
                                                          with a parking garage and a common area, the Complex hosts
                                   N                      tens of thousands of visitors on a regular basis. One group of
       Appeal from the United States District Court       would-be visitors, Plaintiffs United Church of Christ and its
      for the Northern District of Ohio at Cleveland.     companions (collectively, “UCC”) appeal the denial of a
      No. 00-00661—Kathleen McDonald O’Malley,            requested injunction that would allow them to gather and
                       District Judge.                    demonstrate at the Complex. The district court held that:
                                                          (1) even if the privately owned Complex were treated as if it
              Argued: September 11, 2002

        Decided and Filed: September 1, 2004                  *
                                                                The Honorab le Marianne O. B attani, United States District Judge
                                                          for the Eastern District of Michigan, sitting by designation.

                            1
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                      Gateway Economic Dev. Corp.                     Gateway Economic Dev. Corp.

were owned by the state, the areas in which UCC sought to       district court’s legal conclusions anew and its factual
protest would be nonpublic fora; and (2) the restrictions on    determinations for clear error. Adland v. Russ, 307 F.3d 471,
UCC’s access were reasonable. For the following reasons, we     477 (6th Cir. 2002).
AFFIRM in part, REVERSE in part, and REMAND.
                                                                A. Public Forum
                   I. BACKGROUND
                                                                  UCC first challenges the district court’s determination that
  On April 14, 2000, the Cleveland Indians played their first   neither property at issue constituted a public forum. We
home game of the season. UCC planned to attend the game         employ “forum analysis as a means of determining when the
to protest the team’s use of the nickname “Indians” and the     government’s interest in limiting the use of its property to its
cartoon-character mascot “Chief Wahoo,” trademarks that         intended purpose outweighs the interest of those wishing to
UCC considers to be racist and offensive to Native              use the property for other purposes.” United Food &
Americans. Specifically, UCC planned to conduct its             Commercial Workers Local 1099 v. City of Sidney, 364 F.3d
demonstrations on the Gateway Sidewalk and the Gateway          738, 746 (6th Cir. 2004) (internal quotations omitted). There
Common areas (“Commons”).                                       are three types of fora: (1) the traditional public forum; (2) the
                                                                designated public forum; and (3) the nonpublic forum. Id.
  The Complex is owned by a private entity, the Gateway         UCC argues that the Gateway Sidewalk is a traditional public
Economic Development Corporation of Greater Cleveland,          forum, and that the Commons are designated public fora.
Inc. (“Gateway”), which excludes all persons from using the
Gateway Sidewalk or the Commons to solicit, advertise, or       1.   Sidewalk
protest (save for three exceptions unimportant to our
resolution of this case). On March 10, 2000, UCC filed suit        The Gateway Sidewalk encircles the Complex, and looks
against Gateway in the United States District Court, Northern   and feels like a typical public sidewalk. Because the Supreme
District of Ohio, arguing that the First Amendment mandated     Court has explained that from “[t]ime out of mind public
a preliminary and permanent injunction allowing UCC to          streets and sidewalks have been used for public assembly and
protest on both the Gateway Sidewalk and the Commons on         debate, the hallmarks of a traditional public forum,” Frisby
opening day. On April 13, 2000, the district court refused to   v. Schultz, 487 U.S. 474, 480 (1988), UCC argues that the
preliminarily enjoin Gateway’s restrictions, and on March 22,   Gateway Sidewalk is a traditional public forum, a place in
2001, after UCC amended its complaint, the district court       which the “right to limit protected expressive activity is
denied UCC’s request for a permanent injunction. UCC            sharply circumscribed.” Chabad of S. Ohio v. City of
timely appealed.                                                Cincinnati, 363 F.3d 427, 434 (6th Cir. 2004) (internal
                                                                quotations omitted).
                      II. ANALYSIS
                                                                  There are two key reasons why UCC is correct. First, the
  The district court declined to decide whether Gateway was     Gateway Sidewalk blends into the urban grid, borders the
a state actor, holding that even if it were, the Gateway        road, and looks just like any public sidewalk. Indeed, a
Sidewalk and the Commons constituted non-public fora            public sidewalk—which runs parallel to the Gateway
subject to reasonable access restrictions. We review the        Sidewalk—circumscribes the Complex and borders the
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                       Gateway Economic Dev. Corp.                     Gateway Economic Dev. Corp.

municipal streets. Further, the public and Gateway sidewalks        Of course, not all sidewalks are public fora. See, e.g.,
are made of the same materials and share the same design. In     United States v. Kokinda, 497 U.S. 720 (1990) (postal service
United States v. Grace, 461 U.S. 171, 180 (1983), the            sidewalk separated from main highway sidewalk and could be
Supreme Court held that a sidewalk bordering the Supreme         used only to enter the post office); Greer v. Spock, 424 U.S.
Court constituted a public forum because “[t]here is no          828 (1976) (sidewalks located in an enclosed military base
separation, no fence, and no indication whatever to persons      and separated from the streets and sidewalks of the city
stepping from the street to the curb and sidewalks that serve    itself); Chicago Acorn v. Metro. Pier and Exposition Auth.,
as the perimeter of the Court grounds that they have entered     150 F.3d 695, 702 (7th Cir. 1998) (“Rather than being part of
some special type of enclave.” See also Venetian Casino          the city’s automotive, pedestrian, or bicyclists’ transportation
Resort v. Local Joint Executive Bd. of Las Vegas, 257 F.3d       grid, the sidewalks on the pier and the service street on its
937, 947 (9th Cir. 2001) (applying First Amendment to            north side are internal to the pier, like the sidewalks, streets,
privately owned sidewalk that “is connected to and virtually     and parking lots in Disney World[.]”). Whether a given
indistinguishable from the public sidewalks to its north and     sidewalk is considered a public forum, of course, hinges on a
south”); Henderson v. Lujan, 964 F.2d 1179, 1182 (D.C. Cir.      case-by-case inquiry in which no single factor is dispositive.
1992) (“The two sidewalks here appear to be classic              The Gateway Sidewalk differs from those sidewalks that have
instances. They are physically indistinguishable from            not been held to be public fora because it is fully integrated
ordinary sidewalks used for the full gamut of urban              into the downtown and indistinguishable from its adjoining
walking.”). Moreover, although in some areas the Gateway         publicly owned sidewalk both physically and in its intended
Sidewalk’s border is roughly delineated by fifteen-foot-long     use.
planter boxes containing trees, this fact does not alter our
conclusion. As the district court rationally determined, the     2.   Commons
average observer would be unfamiliar with the geographic
significance of this sporadic vegetation.                          Although UCC concedes that the Commons—an
                                                                 assortment of plazas, grassy areas, and interior streets within
   Second, like its publicly owned counterparts, the Gateway     the Complex—are not traditional public fora, it argues that
Sidewalk also is a public thoroughfare. By design, the           they have been designated as public fora by Gateway. The
Gateway Sidewalk contributes to the City’s downtown              government (or in this case, Gateway, who we assume, for
transportation grid and is open to the public for general        purposes of this question, stands in the government’s shoes)
pedestrian passage. Indeed, rather than leading to the rest of   may designate “a place or channel of communication for use
the Complex, the Gateway Sidewalk encircles it as a through      by the public at large for assembly and speech, for use by
route. Although Gateway contends that the majority of the        certain speakers, or for the discussion of certain subjects.”
Gateway Sidewalk’s pedestrians are traveling to and from         Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S.
Indians and Cavaliers games, “[t]he mere fact that a sidewalk    788, 802 (1985).
abuts property dedicated to purposes other than free speech is
not enough to strip it of public forum status.” Henderson,         UCC’s argument turns on one fact: that although it
964 F.2d at 1182.                                                generally prohibits access to the Commons during gametime,
                                                                 “Gateway has allowed as many as one hundred unticketed
                                                                 fans at a time to congregate along Eagle Avenue, behind the
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                       Gateway Economic Dev. Corp.                      Gateway Economic Dev. Corp.

stadium bleachers.” This, along with the fact that fans on         status of the Gateway Corporation,” our decision that the
their way to and from the games “routinely carry signs and         Gateway Sidewalk is a public forum necessarily requires that
banners supportive of the Cleveland Indians across the             the Sidewalk be treated as state owned for the purposes of the
common areas and even into the stadium without interference        First Amendment. The following analysis explains why.
from Gateway personnel,” indicates to UCC that Gateway has
opened up the Commons to the gamut of public expression.              Before the district court, UCC advanced three independent
The record reveals, however, that to the extent that Gateway       reasons why the First Amendment applied to Gateway. Two
has allowed non-ticketholders to access the Commons during         of these arguments had little to do with the character of the
gametime, it has done so only for those interested in the          Complex itself; rather, they focused on the relationship
actual game being played, and has done so for the specific         between Gateway and the City, and, if accepted, would lead
purpose of contributing to the gametime ambience.                  to the conclusion that for all practical purposes, the Complex
                                                                   is publicly owned. First, relying on Lebron v. Nat’l R.R.
   First, the handful of non-ticketed Indians fans who are         Passenger Corp., 513 U.S. 374, 400 (1995), in which the
allowed access to the Commons are so allowed because they          Supreme Court held that Amtrak was an instrumentality of
have an interest in the Indians’ performance on the field.         the government, UCC argued that “because like Amtrak, its
Second, although the Indians have sometimes allowed radio          history, mandate and leadership are so tied up with the
stations to use the plaza area to broadcast high-profile games,    government—in this case the City and the County—that
this again directly furthers fan enjoyment of the game itself.     [Gateway] should be deemed an agency or instrumentality of
UCC, in marked contrast, does not seek access to the               local, and therefore state government.” Second, in a similar
Commons for purpose of fan enjoyment. Rather, it wishes to         vein, UCC argued that “the relationship between the Gateway
make a political statement that is merely incidental to the        Corporation, the City and the County is so deeply symbiotic
game itself. That Gateway has allowed baseball fans access         as to make the Gateway Corporation a state actor.” Both of
to the Commons falls far short of suggesting that it has           these arguments turned on the amount of control exercised
allowed everyone access to the Commons.                            over by the Complex by the state—a subject that has been
                                                                   detailed in other cases, see N. Ohio Chapter of Associated
   Thus, we agree with the district court that the Commons are     Builders & Contractors, Inc. v. Gateway Econ. Dev. Corp.,
not designated public fora. Moreover, UCC did not challenge        1992 WL 119375 (N.D. Ohio May 12, 1992), but upon which
the district court’s conclusion that if they are nonpublic fora,   the record in our case is largely silent. Thus, we agree that a
the restrictions on their use are reasonable. Accordingly, even    determination of whether Gateway is a state actor under these
if Gateway were treated as a state actor for purposes of the       two tests would require a remand to the district court for
Commons, the restrictions on their usage would satisfy the         additional findings.
First Amendment.
                                                                      But the third justification that UCC advanced to apply the
B. State Action                                                    First Amendment to Gateway was that “in managing access
                                                                   to the sidewalks, malls and plazas of the Gateway Complex,
  Although UCC argues that a finding that the Gateway              the Gateway Corporation is performing a function that is
Sidewalk is a public forum requires that we remand the case        traditionally the exclusive prerogative of the state.” This
to the district court “for findings regarding the state-actor      inquiry—the so-called “public function test”—is not satisfied
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                       Gateway Economic Dev. Corp.                       Gateway Economic Dev. Corp.

when a private actor merely holds its property out to the          Amendment applied); Rouse v. City of Aurora, 901 F.Supp.
public. See Hudgens v. NLRB, 424 U.S. 507 (1976) (First            1533, 1535-36 (D. Colo. 1995), (evaluating plaintiffs’ claim
Amendment does not apply to privately-owned shopping               that the First Amendment applied to a privately owned
center); Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) (same).        shopping center sidewalk, and observing that “[t]he linchpin
Rather, we ask whether the “private entity exercise[s] powers      to this claim, and, indeed, to plaintiffs’ case theory underlying
which are traditionally exclusively reserved to the state.”        all claims in this action, is their allegation that the Granada
Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir.            Park Shopping Center is a public forum”); cf. Citizens to End
2000). Examples of such public functions have included the         Animal Suffering & Exploitation v. Faneuil Hall Marketplace,
operation of a park that is public in character, see Evans v.      Inc., 745 F.Supp. 65, 70-72, 76 & n.30 (D. Mass 1990)
Newton, 382 U.S. 296, 302 (1966) (“[T]he public character of       (treating public function and public forum inquiries as
this park requires that it be treated as a public institution      technically distinct, but applying identical factors to both
subject to the command of the Fourteenth Amendment,                decisions).
regardless of who now has title under state law.”), and the
running of a company town that functions as if municipally-          Thus, for the purpose of this case, we need not decide
controlled, see Marsh v. Alabama, 326 U.S. 501, 507 (1946)         whether Gateway is a state actor under the other two theories
(“Whether a corporation or a municipality owns or possesses        advanced by UCC: our decision in today’s case has no
the town the public in either case has an identical interest in    bearing, for instance, on whether, Gateway’s employees
the functioning of the community in such manner that the           would receive First Amendment protection for their
channels of communication remain free.”).                          workplace speech or whether Gateway would have to comply
                                                                   with the Due Process Clause when firing a subcontractor.
   The particular “public function” that UCC asserts in our        Rather, our holding today means only that Gateway is a
case is the regulation of the public’s access to a sidewalk that   public actor when performing the public function of
functions as a public sidewalk—in other words, the operation       regulating the public’s access to the Gateway Sidewalk.
of a public forum. Because—owing to the fact that it sits in
the heart of the City, is connected and indistinguishable from     C. Time, Place, and Manner Restriction
a publicly-owned sidewalk, and is open to the public as a
through route—the Gateway Sidewalk constitutes a public               Because the Gateway Sidewalk is a public forum, Gateway
forum, Gateway’s operation therein serves as a public              may saddle it only with content-neutral time, place, and
function. See Lee v. Katz, 276 F.3d 550, 555 (9th Cir. 2002)       manner restrictions that are narrowly tailored to further a
(“The particular public function that the plaintiffs allege the    significant governmental interest and reserve sufficient
[defendant] performed was the regulation of free speech            alternative avenues of communication. See Chabad, 363 F.3d
within the Commons, a public forum. Previous courts have           at 434. In light of the highly fact-bound nature of the time,
found this function to be a traditional and exclusive public       place, and manner analysis and the limited briefing we have
function.”); Venetian Casino, 257 F.3d at 943 (9th Cir. 2001)      received on the question, we remand to the district court to
(stating that “[t]he issue before us is whether the sidewalk on    consider this question in the first instance. See Lee, 276 F.3d
private property that requires unobstructed pedestrian traffic     at 557.
is a public forum,” and proceeding to determine that because
the privately owned sidewalk was a public forum, the First
No. 01-3434           United Church of Christ, et al. v.    11
                       Gateway Economic Dev. Corp.

                    III. CONCLUSION
  The district court’s judgment AFFIRMED in part and
REVERSED in part. We REMAND for the district court to
consider whether the restrictions on access to the Gateway
Sidewalk satisfy the standards applicable to traditional public
fora.
