Kenneth D. Lansing v. City of Memphis; Memphis Park Commission

20 Lansing v. City of Memphis, et al. Nos. 98-5688/6743
4For a comparable conclusion by a sister circuit in a case presenting
similar facts, see United Auto Workers v. Gaston Festivals, Inc., 43 F.3d
902 (4th Cir. 1995).
CONCLUSION
In summary, we find that none of the factors relied on by
the district court is sufficient to warrant a finding of state
action by Memphis in May under the nexus test. Moreover,
neither of the other two available tests urged by Lansing -- the
public function or the state compulsion test -- offers any more
support for the theory of state action by Memphis in May.
Based on these conclusions, we hold that the district court
erred in finding that Memphis in May was a state actor.4 This
ruling, of course, moots the question of whether Memphis in
May violated the plaintiff’s First Amendment rights when it
acted periodically to remove him from the liminal area of the
festival. We therefore REVERSE the district court’s
judgment in Lansing’s favor and VACATE the permanent
injunction against Memphis in May. Because the plaintiff is
no longer the prevailing party, there is no basis for assessing
attorney’s fees against the defendant, and the district court’s
order to the contrary is hereby VACATED. The case is
REMANDED to the district court for further orders, as
necessary.
*The Honorable Douglas W. Hillman, United States District Judge
for the Western District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0042P (6th Cir.)
File Name: 00a0042p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
KENNETH D. LANSING ,
Plaintiff-Appellee,
v.
C ITY OF M EMPHIS; M EMPHIS
P ARK C OMMISSION ,
Defendants,
M EMPHIS IN M AY
INTERNATIONAL FESTIVAL,
INC.,
Defendant-Appellant.
;>

1
Nos. 98-5688/6743
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 97-03153—Jon Phipps McCalla, District Judge.
Argued: November 3, 1999
Decided and Filed: February 4, 2000
Before: MARTIN, Chief Judge; DAUGHTREY, Circuit
Judge; HILLMAN,* District Judge.

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2 Lansing v. City of Memphis, et al. Nos. 98-5688/6743
_________________
COUNSEL
ARGUED: Thomas J. Walsh, Jr., FORD & HARRISON,
Memphis, Tennessee, for Appellant. Nathan W. Kellum,
McNABB, HOLLEY & WALDROP, Memphis, Tennessee,
for Appellee. ON BRIEF: Thomas J. Walsh, Jr., Herbert E.
Gerson, FORD & HARRISON, Memphis, Tennessee, for
Appellant. Nathan W. Kellum, McNABB, HOLLEY &
WALDROP, Memphis, Tennessee, for Appellee.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. After he
was asked to move from an area near a festival in a city park,
Kenneth D. Lansing, a self-identified “street preacher,” filed
federal and state constitutional claims against the City of
Memphis, the Memphis Park Commission, and Memphis in
May International Festival, Inc., alleging violations of his
freedom of religion, speech, association, and assembly, and of
his right to equal protection under the law. Following a
consolidated hearing on the merits of Lansing’s claim, the
district court denied the defendants’ motions for summary
judgment and issued a permanent injunction barring each of
the defendants from “prohibiting Mr. Lansing’s expressive
activities” within a specified area. Subsequently, the district
court granted Lansing’s motion for attorney’s fees pursuant to
42 U.S.C. §1988.
Only Memphis in May has appealed the injunction,
contending that it is not a state actor and therefore owes no
First Amendment duties to Lansing, and alternatively, that if
it does owe such duties, it did not impose any unreasonable
restrictions on Lansing’s speech. In a separate but
consolidated appeal, Memphis in May argues that the award
of attorney’s fees should be reversed with respect to Memphis
in May, on the grounds that the city has already paid
Nos. 98-5688/6743 Lansing v. City of Memphis, et al. 19
by the very party who later complained of their presence. 48
F.3d at 197. As noted, the Supreme Court has also held that
merely availing oneself of state-sanctioned remedies or
procedures, without more, does not render private action
public. The facts here indicate that in every case, a Memphis
in May representative first approached Lansing and asked him
to move. He refused to leave unless a police officer ordered
him to do so. The Memphis in May representative found an
officer and asked for assistance, and the officer complied. If
this 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. A mere request for assistance
from an available police officer cannot be sufficient to form
a nexus between the state and the private action.
Furthermore, the letter to the director of police services
from the city attorney’s office regarding expressive activity
near Memphis in May events in no way indicates a nexus
between the city and Memphis in May’s actions; in fact, it is
the best evidence the record provides to show that Memphis
in May and the city were operating as independent decision-
makers during the festival. The letter is quite emphatic in
communicating to city police officers the clear boundary
between public forums controlled by the city, in which
officers were directed to permit protected expressive activity,
and the areas leased and controlled by Memphis in May. The
city does not attempt to instruct its agents regarding activities
by Memphis in May, or in areas controlled by Memphis in
May. It merely clarifies the duties of officers in areas
controlled by the city, stating that “[n]o matter how close
individuals get to the described areas, as long as they do not
cross the leased areas, they are permitted to engage in
protected expressive activities.” No public-private nexus is
indicated.

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18 Lansing v. City of Memphis, et al. Nos. 98-5688/6743
the case at hand, there is no evidence that Memphis in May’s
board of directors or its executive committee had anything to
do with the decision to ask Lansing to move outside the
barricade, let alone that the two public officials on the
executive committee exerted any undue influence over the
decision-making of their seven colleagues. There cannot be
any nexus between the state and Memphis in May’s action
based on the composition of Memphis in May’s board.
Sixth, communications between the city attorney’s office
and Memphis in May regarding Lansing do not indicate that
the city dictated Memphis in May’s decision to remove
Lansing. Certainly, here more than anywhere there is a link
between acts fairly attributable to the state and acts taken by
Memphis in May with regard to Lansing. However, scrutiny
of the content of the correspondence reveals nothing more
than an alert to the situation, an offer to assist, and a request
to act cautiously in order to avoid a lawsuit. Nowhere in the
letter from the city attorney’s office to Memphis in May’s
attorney is there any language suggesting or requiring that
Memphis in May eject Lansing from the festival; in fact, if
anything, the letter counsels a rather more conservative
approach, urging that Memphis in May “remember the
balance” between constitutional rights and festival fun, and
reminding planners that “borders for festival activities . . . can
not infringe on protected constitutional rights.” Although this
single letter indicates that the city knew about Lansing’s
complaint against Memphis in May, and that it was concerned
that the law be upheld, it does not indicate a nexus so close
that Memphis in May’s subsequent actions with respect to
Lansing can be attributed to the state.
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 leased space, indicates a nexus
sufficient to attribute Memphis in May’s actions to the state.
In Ellison v. Garbarino, we held that police assistance in the
lawful exercise of self-help does not convert private action to
public action. In that case as here, the police were solicited
Nos. 98-5688/6743 Lansing v. City of Memphis, et al. 3
Lansing’s fees in full, and alternatively, that Lansing is
ineligible for attorney’s fees under the statute once the district
court’s ruling on the merits is reversed.
After careful review of the factual record and the relevant
law, we conclude that Memphis in May was not a state actor
(rendering moot the constitutional question), and we therefore
find it necessary to reverse the judgment of the district court.
It follows that Memphis in May is not liable for the plaintiff’s
attorney’s fees.
FACTUAL AND PROCEDURAL BACKGROUND
Memphis in May International Festival, Inc. is a not-for-
profit corporation qualified for tax exempt status under
section 501(c)(3) of the Internal Revenue Code. Its stated
mission is “to generate tourism, foster international
commercial trade and enhance the quality of life in the
Memphis-Mid-South area through the organization,
production, and/or promotion of public activities and
education programs focusing on foreign nations and diverse
cultures.” The corporation is run by a volunteer board of
directors, which is itself governed by a nine-member
executive committee. Two of the nine committee members
are selected by city and county representatives.
In furtherance of its mission, Memphis in May organizes an
annual festival held in Memphis during the month of May,
known as “Memphis in May.” The festival includes a number
of events throughout the month; however, the three largest
events sponsored by Memphis in May are the Beale Street
Music Festival, the World Championship Barbecue Cooking
Contest, and the Sunset Symphony. Each of these events is
held on a different weekend in May in Tom Lee Park, and
each routinely draws over 200,000 people.
Memphis in May receives funding for its festival from a
variety of sources, including gate receipts, private
contributions, sponsorships, and local government. In the
years 1995 - 1997, Memphis in May’s total revenues ranged
from approximately $2.5 million - $3.9 million. During that

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4 Lansing v. City of Memphis, et al. Nos. 98-5688/6743
same time period, the combined public support from city,
county and state governments ranged from 1.8% - 2.3% of
total revenues. Gate receipts for that period totaled between
63.4% - 73.5% of revenues.
For each of the years 1995, 1996, and 1997, Memphis in
May signed a lease agreement with the City of Memphis for
Tom Lee Park and a park use agreement with the Memphis
Park Commission, and requested and received a Memphis
City Council resolution closing the streets surrounding the
festival site to vehicular traffic. The substantive terms of
these documents did not change in any material respect from
year to year, with the exception of the park use agreement,
which was revised for 1997. The property covered by the
lease included “all curbs, sidewalks, and abutments and any
other public property within, on the boundary, or immediately
contiguous to the Property.” According to the park use
agreement (in all years), for the purpose of the Memphis in
May events, “the boundaries of Tom Lee Park shall be: a. The
tract of land west of Riverside Drive generally known as Tom
Lee Park; b. Riverside Drive if closed to traffic . . . ”
The lease further provides that “Lessee shall comply with
the directives of the Memphis Police Department and the
Memphis Fire Department to minimize interference with
traffic in and out of said area so as not to create a nuisance”
and “Lessee shall not create or allow any nuisance to exist on
said property and to abate any nuisance that may arrive
promptly and free of the expense of the Lessor . . . ” The
1997 park use agreement states that “Applicant shall provide
. . . Security and/or Traffic Control based on the guideline for
1,000-20,000 attendees of two (2) Officers per 1,000 and;
20,000 or more, one (1) additional Officer [p]er 1,000.” The
city council resolution included a clause stating: “BE IT
FURTHER RESOLVED that in each case, streets will open
before the time listed if the streets are cleared and approved
by Memphis Police Department Traffic Bureau.” Finally, the
1997 park use agreement provided that “[t]he applicant
accepts responsibility for determining and complying with all
applicable rules, regulations, ordinances, statutes , policies,
Nos. 98-5688/6743 Lansing v. City of Memphis, et al. 17
Fourth, the fact that the city required Memphis in May to
coordinate with city agencies regarding the regulation of
alcoholic beverages, advertising, traffic and security at the
festival, far from establishing a nexus between them, in fact
demonstrates the independence of their operations. By
conditioning the lease, the use agreement, and the council
resolution on Memphis in May’s compliance with city
regulations and authorities, the city and Memphis in May
clearly established separate spheres of responsibility for the
festival period. Memphis in May was responsible for
organizing the festival and making all appropriate
administrative and logistic contacts, while Memphis retained
responsibility for all the traditional functions of government,
such as controlling traffic, maintaining security, and
regulating alcohol consumption.
Furthermore, the level of regulation to which Memphis in
May was subjected for a single month-long festival cannot
compare with the degree of state regulation in enterprises
such as insurance, schooling, worker’s compensation, or
electrical utilities. Yet, even in these extensively regulated
arenas, the courts have been unwilling to find that state
regulation alone is sufficient to impute the actions of the
regulated entity to the state. See, e.g., American
Manufacturers, 119 S.Ct. 977; Rendell-Baker, 457 U.S. 830;
Blum, 457 U.S. 991; Jackson, 419 U.S. 345; Adams, 855 F.2d
312; Crowder, 740 F.2d 447. Coordinating traffic control and
security with city police is not a sufficient nexus to attribute
Memphis in May’s actions to the state.
Fifth, the presence of two public officials on the Memphis
in May board in this case fails to satisfy the nexus test. In
Crowder v. Conlan, this court held that even when a hospital
board was responsible for the decision which resulted in the
alleged civil rights violation, the presence of two pubic
officials on the board of thirteen members was insufficient to
create a close nexus between the board’s decision and the
state. 740 F.2d at 451. In Adams v. Vandemark, the court
came to a similar conclusion regarding a board one-third of
whose members were public officials. 855 F.2d at 317. In

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16 Lansing v. City of Memphis, et al. Nos. 98-5688/6743
that Lansing move outside the barricades. See, e.g., Burton,
365 U.S. at 724 (finding it significant that “profits earned by
discrimination not only contribute to, but also are
indispensable elements in, the financial success of a
government agency” when holding that restaurant was state
actor (emphasis added)). There is no evidence in the record
to indicate that any economic benefit the city received from
Memphis in May’s activities depended on the removal of
Lansing from the festival.
Second, the fact that Memphis in May received a small part
of its funding from government sources is not enough to
convert its decisions to state action. As noted, the Supreme
Court and this circuit have held that even in cases where
private entities received virtually all of their funding from the
state, that fact alone was insufficient to establish a close
nexus between the state and the activity of the private entity.
In this case, the record indicates that Memphis in May never
received more than 3% of its revenues from government
sources during the period at issue. Such limited public
support is simply not enough to require that we impute
Memphis in May’s actions to the state.
Third, the fact that Memphis in May leased Tom Lee Park
and contiguous public ways from the city does not convert it
from a private to a state actor. We have been consistent in
holding that a lease for public land or facilities from the
government is insufficient evidence of a nexus between the
state and the activities that take place on the land. See
Wolotsky, 960 F.2d at 1336; Adams, 855 F.2d at 316;
Crowder, 740 F.2d at 450, 453. Nor is the fact that the city
received a percentage of gross sales of beer indicative of a
sufficiently close nexus between Memphis and Memphis in
May. While such an arrangement may have given the city an
economic interest in the success of the beer vendors, nothing
indicates any connection between beer sales and Lansing’s
presence in the liminal space. See Burton, 365 U.S. at 724.
This limited profit-sharing agreement is insufficient to impute
Memphis in May’s request of Lansing to the city.
Nos. 98-5688/6743 Lansing v. City of Memphis, et al. 5
1Lansing’s complaint includes claims based on events occurring in
1995, 1996, and 1997. The district court ruled that the 1995 and 1996
claims were time-barred, presumably by Tennessee’s one-year statute of
limitations for “civil actions for compensatory or punitive damages, or
and procedures of federal, state, county and city authorities
and agencies.”
Memphis in May events in Tom Lee Park are ticketed. In
order to enforce the ticket-admission policy, temporary
barricades are erected around the event area, with entrance
gates at the north and south ends of the park. Beyond the
event barricades are street barriers indicating that the streets
contiguous to the park are closed to vehicles. The area
between the street barriers and the event barriers is open to
the general public at no charge. Vending and ticketing booths
are located in this liminal space, as are check-in sites for
members of the press and Memphis in May volunteers.
Patrons of the festival also line up in this area as they wait
their turn for admission.
Kenneth Lansing is a Christian who believes that he is
discharging a duty to God by public proclamation and
communication of his faith. In fulfilment of this duty,
Lansing seeks out public locations that have access to a
maximum number of passers-by, where he engages in
religious speech including preaching, counseling, handing out
literature, and holding signs and banners. In the years since
1989, Lansing has chosen areas near Memphis in May events
in Tom Lee Park as a venue for his message. His preferred
location is an area on Riverside Drive, outside the north gate
in the strip between the traffic barricades and the event
barricades. He chooses this area expressly because it affords
him the best opportunity to reach the maximum number of
people with his message.
Each year since 1995, during peak attendance periods,
Memphis in May officials have asked Lansing to move from
his chosen location to an area outside the traffic barricades,
approximately 50-300 feet away.1 Lansing has responded

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6 Lansing v. City of Memphis, et al. Nos. 98-5688/6743
both, brought under the federal civil rights statutes”. T.C.A. § 28-3-
104(a)(3). Although the incidents of 1995 and 1996 are outside the
statutory period, many of the events described from that time period shed
light on the question of whether Memphis in May operated as a state actor
in 1997. Hence, a description of those events is included.
each time by indicating that he would move only at the
request of a police officer. In each case a police officer was
summoned to make the request, and Lansing moved without
incident.
On May 29, 1996, Lansing’s attorney initiated
correspondence with city officials, seeking assurances that
Lansing’s perceived right to speak in the liminal area between
barriers at the Memphis in May events would be protected.
On July 31, 1996, the Memphis city attorney’s office
responded to Lansing’s request, stating:
The City of Memphis agrees that Mr. Lansing has certain
constitutional rights to engage in protected speech. It is
our position to ensure that for the 1997 Memphis in May
Festival that we provide information to the festival
organizers as well as to the Memphis Police Department
regarding any limitations that may be placed on those
who wish to engage in protected speech.
That same day, the city attorney’s office wrote to Memphis in
May’s attorney, saying:
The City Attorney’s Office is willing to assist you and
Memphis in May officials in determining what are
constitutional legal boundaries for protected speech . . .
All things considered it is imperative that there is better
coordination between Memphis in May officials and the
City to ensure that protected constitutional rights are not
abridged . . . I would only ask that when negotiations are
underway this year that you remember the balance
between . . . competing interests when Memphis in May
is drawing the borders for the festival activities. Those
borders cannot infringe on protected constitutional rights.
Nos. 98-5688/6743 Lansing v. City of Memphis, et al. 15
assistance of state officials’ cannot [properly be considered
state action]”); Edmonson v. Leesville Concrete Co., Inc.,
500 U.S. 614, 622 (1991) (“private use of state-sanctioned
private remedies or procedures does not rise, by itself, to the
level of state action”); Ellison, 48 F.3d at 197 (holding that
police assistance in lawful exercise of self-help does not
convert private action to state action).
The district court was correct in identifying several of the
aforementioned nexus test factors as the relevant law for this
case. Nevertheless, throughout its analysis of Memphis in
May’s relationship with the City of Memphis, the court drew
conclusions that in many instances are in direct conflict with
the principles identified above. As justification for its finding
that Memphis in May was a state actor when it asked Lansing
to move outside the traffic barricades, the court listed the
economic benefit to the city of the festival; city and state
funding of Memphis in May; Memphis in May’s lease of city
property and payment of fees for vendor’s booths; city
regulations regarding alcoholic beverages, advertising, traffic
and security at the festival; the presence of two public
officials on the Memphis in May board; communications
between the city attorney’s office and Memphis in May
regarding Lansing; and the provision of police officers to help
enforce Memphis in May’s decision to remove Lansing.
Although a common sense perusal of this list might suggest
that Memphis in May and the city cooperated in the
presentation of Memphis in May events, mere cooperation
simply does not rise to the level of merger required for a
finding of state action.
First, the fact that Memphis in May confers an economic
benefit on the city by operating the festival is insufficient to
establish that Memphis in May is a state actor. A great many
private entities confer economic benefits on the state without
their activities being imputed to the state; consider, as
examples, major employers or home football teams.
Furthermore, the test requires a close nexus not merely
between the city and Memphis in May in general, but
specifically between the city and Memphis in May’s request

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14 Lansing v. City of Memphis, et al. Nos. 98-5688/6743
costs and paid medical expenses of more than 90% of
patients); Wolotsky, 960 F.2d at 1336 (finding private not-for-
profit corporation which derived “a significant portion of its
funding from the government” and which leased one of its
facilities from the government at nominal cost was not a state
actor); Adams, 855 F.2d at 316 (holding private not-for-profit
corporation was not a state actor, even though funded “almost
entirely by public sources” and leasing office space from the
city for a nominal fee); Crowder, 740 F.2d at 450, 453
(holding state was not responsible for private hospital’s
personnel decisions even if hospital derived “a considerable
percentage of its revenues from government funding” and
county was “owner and lessor of the hospital’s physical
plant”).
The minority presence of public officials on the board of a
private entity does not render the entity a state actor; nor does
the mere approval or acquiescence of the state in private
activity. See, e.g., Blum, 457 U.S. 991 (“Mere approval of or
acquiescence in the initiatives of a private party is not
sufficient to justify holding the State responsible for those
initiatives under the terms of the Fourteenth Amendment”);
Jackson, 419 U.S. 345 (“Approval by a state utility
commission of such a request from a regulated utility, where
the commission has not put its own weight on the side of the
proposed practice by ordering it, does not transmute a practice
initiated by the utility and approved by the commission into
‘state action’”); Adams, 855 F.2d 312 (holding private not-
for-profit corporation was not a state actor, even though state
law required one-third of its board to be public officials, since
board had no direct involvement in challenged action);
Crowder, 740 F.2d 447 (holding state was not responsible for
private hospital’s personnel decisions even if two of the
thirteen board members were public officials).
Finally, the cases indicate that utilization of public services
by private actors does not convert private action to state
action. See American Manufacturers, 119 S.Ct. at 987
(holding that “a private party’s mere use of the State’s dispute
resolution machinery, without the ‘overt, significant
Nos. 98-5688/6743 Lansing v. City of Memphis, et al. 7
On April 25, 1997, Lansing’s attorney again wrote to the
city attorney’s office requesting assurances that Lansing
would be permitted to engage in religious speech activities
“on Riverside Drive, as well as other public property” during
the 1997 Memphis in May events. On May 2, 1997, the city
attorney’s office sent a letter to the director of police services,
requesting that
[officers on duty during Memphis in May activities be]
reminded that public streets and parks are public forums
and individuals can engage in First Amendment activities
without running afoul of the law so long as they do not
present a danger to themselves or others or impede traffic
. . . This is a special situation because Memphis in May
officials have leased space from the City for a limited
time . . . No matter how close individuals get to the
[leased] areas, as long as they do not cross the leased
area, they are permitted to engage in protected expressive
activities.
Finally, on the same day, the city attorney’s office wrote to
Lansing’s attorney, including a description of the leased area
and saying: “Your client should feel free to engage in
protected expressive activities, within the confines of the law,
in the areas that are not included in the attached description.”
On at least two different occasions that May, Lansing
appeared outside the entrance gates of the Memphis in May
festival, in the space between barricades, and began
preaching, counseling, leafleting and holding signs. When,
after some time, Memphis in May representatives asked him
to move off the leased property, he responded that he would
only move at the request of a police officer. An officer was
summoned and made the request, and Lansing moved.
In December 1997, Lansing filed suit pursuant to 42 U.S.C.
§§ 1983 and 1988 against the City of Memphis, the Memphis
Park Commission, and Memphis in May, alleging violations
of his state and federal constitutional rights. He sought
declaratory and injunctive relief and damages. Subsequently,
the City of Memphis (for itself and on behalf of its

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8 Lansing v. City of Memphis, et al. Nos. 98-5688/6743
subdivision, the Memphis Park Commission) and Memphis
in May both filed summary judgment motions. In April, the
court entered judgment for Lansing and permanently enjoined
all defendants “from prohibiting Lansing’s expressive
activities within the leased areas of Riverside Drive outside
the north and south gates.” In his memorandum and opinion
and order, the district judge made the following conclusions
of law:
! Lansing’s claims with respect to events occurring in
1995 and 1996 were time-barred, and only the events of
May 1997 were properly before the court.
! The City of Memphis and its subdivision the Memphis
Park Commission “actively participated in barring Mr.
Lansing’s speech,”and hence there was state action on
the part of the city.
! The nexus between the activities of the city and of
Memphis in May was sufficiently close to attribute the
action of Memphis in May to the state, and hence there
was state action on the part of Memphis in May.
! Lansing’s speech warranted protection under the First
Amendment.
! The area between the event barriers and the traffic
barriers was a traditional pubic forum.
! The defendants’ restrictions on Lansing’s speech were
not narrowly tailored to serve a significant government
interest, nor did they leave open ample alternative
channels of communication.
! Injunctive relief was appropriate, but since Lansing
did not present proof as to damages, damages would not
be awarded.
In the wake of the district court’s ruling, Memphis in May
filed its notice of appeal, and Lansing moved for an award of
attorney’s fees, pursuant to 42 U.S.C. § 1988. Each of the
Nos. 98-5688/6743 Lansing v. City of Memphis, et al. 13
a positive test cannot be adequately formulated in the abstract,
both this circuit and the Supreme Court have nevertheless
identified some factors which are decidedly insufficient, by
themselves, to justify a finding of a close nexus between the
state and a private actor.
Consequently, 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 regulated
entity. See, e.g., American Manufacturers, 119 S.Ct. 977
(holding that despite location in state’s “regulatory web,”
private insurer’s decision to withhold payment for disputed
worker’s compensation claim not attributable to the state);
Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (holding private
school’s personnel decisions not attributable to the state,
despite “extensive regulation of the school generally”); Blum
v. Yaretsky, 457 U.S. 991 (1982) (refusing to hold New York
State responsible for nursing home’s patient transfer
decisions, “although it is apparent that nursing homes in New
York are extensively regulated”); Jackson, 419 U.S. 345
(refusing to find state action in electric company’s decision to
terminate service, notwithstanding that it was “a heavily
regulated utility with at least something of a governmentally
protected monopoly”); Adams v. Vandemark, 855 F.2d 312
(6th Cir. 1988) (holding private not-for-profit corporation was
not a state actor, even though subject to state and federal
regulation); Crowder v. Conlan, 740 F.2d 447 (6th Cir. 1984)
(holding state was not responsible for private hospital’s
personnel decisions even if state regulation was “extensive
and detailed”).
Equally well-established is the principle that neither public
funding nor private use of public property is enough to
establish a close nexus between state and private actors. See,
e.g., Rendell-Baker, 457 U.S. 830 (finding private school’s
personnel decisions not attributable to the state, despite the
fact that “virtually all of the school’s income was derived
from government funding””); Blum, 457 U.S. 991 (refusing
to hold New York state responsible for nursing home’s patient
transfer decisions, even though the state subsidized operating

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12 Lansing v. City of Memphis, et al. Nos. 98-5688/6743
Wolotsky, 960 F.2d at 1335. Lansing urges that this test is
met here, since the city attorney’s office corresponded with
Memphis in May’s attorney regarding Lansing, and because
city police officers asked Lansing to move from the liminal
area. However, neither of these actions imply “such coercive
power” that the choice of Memphis in May to request that
Lansing move outside the traffic barricades must “in law” be
deemed that of the city.
The record indicates only one letter from the city attorney’s
office to Memphis in May’s attorney, which includes simply
an offer to assist in the determination of “constitutional legal
boundaries for protected speech,” and a request to consider
the issue when planning the next year’s event. This is hardly
“significant encouragement” of Memphis in May’s decision
to ask Lansing to leave; in fact, if anything, it seems to
encourage the opposite result. Furthermore, the involvement
of Memphis police officers in Lansing’s removal from the
liminal space occurred solely at Lansing’s own request.
Again, this can hardly be seen as an exercise of “coercive
power” over Memphis in May by the city; but for Lansing’s
insistence, the city would not have been involved at all. We
therefore conclude that the state compulsion test is not met.
c. The Nexus Test
Under the nexus test, “the action of a private party
constitutes state action when there is a sufficiently close
nexus between the state and the challenged action of the
regulated entity so that the action of the latter may be fairly
treated as that of the state itself.” Wolotsky, 960 F.2d at 1335.
The cases establish no clear standard for identifying a
“sufficiently close nexus.” Rather, the Supreme Court
reminds us that “readily applicable formulae may not be
fashioned” for finding state action in civil rights cases; such
a finding “can be determined only in the framework of the
peculiar facts or circumstances present.” Burton v.
Wilmington Parking Authority, 365 U.S. 715, 726 (1961); see
also Lugar, 457 U.S. 922, 939 (calling the state action
determination a “necessarily fact-bound inquiry”). Although
Nos. 98-5688/6743 Lansing v. City of Memphis, et al. 9
defendants opposed the motion for attorney’s fees, arguing
that the district court should not rule on it until the pending
appeal on the merits was resolved. However, the district
court entered an order granting Lansing’s motion; Memphis
in May filed its notice of appeal of that order as well; and the
two appeals have now been consolidated. In the meantime,
the City of Memphis has paid Lansing the full amount of
attorney’s fees sought in his post-judgment motion.
DISCUSSION
Pursuant to Fed. R. Civ. P. 52(a), findings of fact by a
district judge are not reversed unless “clearly erroneous.”
Owens-Illinois, Inc. v. Aetna Cas. & Sur. Co., 990 F.2d 865,
870 (6th Cir. 1993). We review de novo conclusions of law
and mixed questions of law and fact. Golden v. Kelsey-Hays
Co., 73 F.3d 648, 653 (6th Cir. 1996); Sandler v. AII
Acquisition Corp., 954 F.2d 382, 384-5 (6th Cir. 1992).
State Action Requirement
It is undisputed that First and Fourteenth Amendment
protections, codified in 42 U.S.C. § 1983, are triggered only
in the presence of state action and that a private entity acting
on its own cannot deprive a citizen of First Amendment
rights. See, e.g., Flagg Brothers Inc. v. Brooks, 436 U.S. 149
(1978) (“most rights secured by the Constitution are protected
only against infringement by governments”); Hudgens v.
NLRB, 424 U.S. 507 (1976) (“It is, of course, a commonplace
that the constitutional guarantee of free speech is a guarantee
only against abridgment by government, federal or state.”).
Memphis in May contends that the district court erred when
it ruled that Memphis in May, despite its status as a private
corporation, operated as a state actor in ejecting Lansing from
the area between the barricades.
However, a private entity can be held to constitutional
standards when its actions so approximate state action that
they may be fairly attributed to the state. See, e.g., American
Manufacturers Mutual Insurance Co. v. Sullivan, 119 S.Ct.
977, 985 (1999); Lugar v. Edmonson Oil Co., Inc., 457 U.S.

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10 Lansing v. City of Memphis, et al. Nos. 98-5688/6743
2See, e.g., the park use agreement, by which Memphis in May
“accepts responsibility for determining and complying with all applicable
rules, regulations, ordinances, statutes, policies, and procedures of
federal, state, county and city authorities and agencies.” While every
922, 937 (1982). The Supreme Court in Lugar identified a
two-part approach to the question of “fair
attribution,”effectively requiring that the action be taken (a)
under color of state law, and (b) by a state actor. See Lugar,
457 U.S. at 937. In this circuit we have applied three tests to
help in determining when the Lugar conditions are met.
These are: (1) the public function test; (2) the state
compulsion test; and (3) the symbiotic relationship or nexus
test. See, e.g., Brentwood Academy v. Tennessee Secondary
Schools Athletic Association, 180 F.3d 758, 763 (6th Cir.
1999); Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir.
1995); Wolotsky v. Huhn, 960 F.2d 1331 (6th Cir. 1992).
Each should be considered in turn.
a. The Public Function Test
The public function test requires that “the private entity
exercise powers which are traditionally exclusively reserved
to the state, such as holding elections or eminent domain.”
Wolotsky, 960 F.2d at 1335 (internal citations omitted). See
also Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351
(1974) (holding that provision of utility service is not a power
reserved exclusively to the state).
Lansing asserts that in the operation of its festival,
Memphis in May maintained control over the public streets
surrounding Tom Lee Park, a function usually reserved to the
city. We need not reach the question of whether control of
city streets is a public function in the tradition of eminent
domain and public elections, however, because Lansing fails
to establish that Memphis in May actually had exclusive
control of the streets surrounding the festival. Although it is
true that Memphis in May was the lessee and/or licensee of
the streets in question and, as such, exercised more control
over them than the average citizen,2 it is also true that an
Nos. 98-5688/6743 Lansing v. City of Memphis, et al. 11
citizen must comply with the law, perhaps not every user of Tom Lee
Park is expected to determine the applicable law.
3Lansing also asserts, in the alternative, that “Memphis in May sets
itself up as decision-maker, judging who can be on Riverside Drive and
who can speak on that street. It is precisely this authoritative role that
subjects Memphis in May to constitutional scrutiny.” This argument begs
the question, however. If Memphis in May is found to be a private actor,
it can judge who can speak on Riverside Drive without constitutional
scrutiny.
express condition of both the lease and the park use
agreement was that Memphis in May would “comply with the
directives of the Memphis Police Department and the
Memphis Fire Department to minimize interference with
traffic in and out of said area” and “provide . . . Security
and/or Traffic Control based on the guideline” furnished by
the city agency. Additionally, according to the city council
resolution, “streets will open before the time listed if the
streets are cleared and approved by Memphis Police
Department Traffic Bureau.” These provisions indicate quite
clearly that although Memphis in May had permission from
the city to put its streets to special use during the time of the
festival, the city retained ultimate control of the streets at all
times. The City of Memphis, not Memphis in May, made the
decision to close Riverside Drive to traffic, and the City of
Memphis retained decision-making authority over issues of
traffic control and safety. There is nothing in the record to
indicate that Memphis in May usurped “powers which are
traditionally exclusively reserved to the state” by applying for
and receiving permission to put the street to a special, limited
use.3 Hence, we conclude that the public function test is not
met here.
b. The State Compulsion Test
The state compulsion test requires that a state “exercise
such coercive power or provide such significant
encouragement, either overt or covert, that in law the choice
of the private actor is deemed to be that of the state.”

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