the United Church of Christ; Ronald Fujiyoshi; Gary Quarles; Juan Reyna v. Gateway Econ Omic Development Corporation of Greater Cleveland, Inc.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0291P (6th Cir.)
File Name: 04a0291p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
THE UNITED CHURCH OF
CHRIST; RONALD FUJIYOSHI;
GARY QUARLES; JUAN
REYNA,
Plaintiffs-Appellants,
AMERICAN MISSIONARY
ASSOCIATION, et al.,
Plaintiffs,
v.
GATEWAY ECON OMIC
DEVELOPMENT CORPORATION
OF GREATER CLEVELAND,
INC.,
Defendant-Appellee.
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No. 01-3434
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 00-00661—Kathleen McDonald O’Malley,
District Judge.
Argued: September 11, 2002
Decided and Filed: September 1, 2004
2 United Church of Christ, et al. v.
Gateway Economic Dev. Corp.
No. 01-3434
*The Honorab le Marianne O. B attani, United States District Judge
for the Eastern District of Michigan, sitting by designation.
Before: BOGGS, Chief Judge; COLE, Circuit Judge;
BATTANI, District Judge.*
_________________
COUNSEL
ARGUED: Raymond Vasvari, AMERICAN CIVIL
LIBERTIES UNION OF OHIO FOUNDATION, Cleveland,
Ohio, for Appellants. Dennis R. Wilcox, CLIMACO,
CLIMACO, SEMINATORE, LEFKOWITZ & GAROFOLI,
Cleveland, Ohio, for Appellee. ON BRIEF: Raymond
Vasvari, AMERICAN CIVIL LIBERTIES UNION OF OHIO
FOUNDATION, Cleveland, Ohio, for Appellants. Dennis R.
Wilcox, CLIMACO, CLIMACO, SEMINATORE,
LEFKOWITZ & GAROFOLI, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
R. GUY COLE, JR., Circuit Judge. The Indians and
Cavaliers—Cleveland’s respective professional baseball and
basketball teams—play their home games at the Gateway
Sports Complex (“the Complex”). Featuring Jacobs Field and
Gund Arena, the respective stadiums for each team, along
with a parking garage and a common area, the Complex hosts
tens of thousands of visitors on a regular basis. One group of
would-be visitors, Plaintiffs United Church of Christ and its
companions (collectively, “UCC”) appeal the denial of a
requested injunction that would allow them to gather and
demonstrate at the Complex. The district court held that:
(1) even if the privately owned Complex were treated as if it

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were owned by the state, the areas in which UCC sought to
protest would be nonpublic fora; and (2) the restrictions on
UCC’s access were reasonable. For the following reasons, we
AFFIRM in part, REVERSE in part, and REMAND.
I. BACKGROUND
On April 14, 2000, the Cleveland Indians played their first
home game of the season. UCC planned to attend the game
to protest the team’s use of the nickname “Indians” and the
cartoon-character mascot “Chief Wahoo,” trademarks that
UCC considers to be racist and offensive to Native
Americans. Specifically, UCC planned to conduct its
demonstrations on the Gateway Sidewalk and the Gateway
Common areas (“Commons”).
The Complex is owned by a private entity, the Gateway
Economic Development Corporation of Greater Cleveland,
Inc. (“Gateway”), which excludes all persons from using the
Gateway Sidewalk or the Commons to solicit, advertise, or
protest (save for three exceptions unimportant to our
resolution of this case). On March 10, 2000, UCC filed suit
against Gateway in the United States District Court, Northern
District of Ohio, arguing that the First Amendment mandated
a preliminary and permanent injunction allowing UCC to
protest on both the Gateway Sidewalk and the Commons on
opening day. On April 13, 2000, the district court refused to
preliminarily enjoin Gateway’s restrictions, and on March 22,
2001, after UCC amended its complaint, the district court
denied UCC’s request for a permanent injunction. UCC
timely appealed.
II. ANALYSIS
The district court declined to decide whether Gateway was
a state actor, holding that even if it were, the Gateway
Sidewalk and the Commons constituted non-public fora
subject to reasonable access restrictions. We review the
4 United Church of Christ, et al. v.
Gateway Economic Dev. Corp.
No. 01-3434
district court’s legal conclusions anew and its factual
determinations for clear error. Adland v. Russ, 307 F.3d 471,
477 (6th Cir. 2002).
A. Public Forum
UCC first challenges the district court’s determination that
neither property at issue constituted a public forum. We
employ “forum analysis as a means of determining when the
government’s interest in limiting the use of its property to its
intended purpose outweighs the interest of those wishing to
use the property for other purposes.” United Food &
Commercial Workers Local 1099 v. City of Sidney, 364 F.3d
738, 746 (6th Cir. 2004) (internal quotations omitted). There
are three types of fora: (1) the traditional public forum; (2) the
designated public forum; and (3) the nonpublic forum. Id.
UCC argues that the Gateway Sidewalk is a traditional public
forum, and that the Commons are designated public fora.
1. Sidewalk
The Gateway Sidewalk encircles the Complex, and looks
and feels like a typical public sidewalk. Because the Supreme
Court has explained that from “[t]ime out of mind public
streets and sidewalks have been used for public assembly and
debate, the hallmarks of a traditional public forum,” Frisby
v. Schultz, 487 U.S. 474, 480 (1988), UCC argues that the
Gateway Sidewalk is a traditional public forum, a place in
which the “right to limit protected expressive activity is
sharply circumscribed.” Chabad of S. Ohio v. City of
Cincinnati, 363 F.3d 427, 434 (6th Cir. 2004) (internal
quotations omitted).
There are two key reasons why UCC is correct. First, the
Gateway Sidewalk blends into the urban grid, borders the
road, and looks just like any public sidewalk. Indeed, a
public sidewalk—which runs parallel to the Gateway
Sidewalk—circumscribes the Complex and borders the

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No. 01-3434 United Church of Christ, et al. v.
Gateway Economic Dev. Corp.
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municipal streets. Further, the public and Gateway sidewalks
are made of the same materials and share the same design. In
United States v. Grace, 461 U.S. 171, 180 (1983), the
Supreme Court held that a sidewalk bordering the Supreme
Court constituted a public forum because “[t]here is no
separation, no fence, and no indication whatever to persons
stepping from the street to the curb and sidewalks that serve
as the perimeter of the Court grounds that they have entered
some special type of enclave.” See also Venetian Casino
Resort v. Local Joint Executive Bd. of Las Vegas, 257 F.3d
937, 947 (9th Cir. 2001) (applying First Amendment to
privately owned sidewalk that “is connected to and virtually
indistinguishable from the public sidewalks to its north and
south”); Henderson v. Lujan, 964 F.2d 1179, 1182 (D.C. Cir.
1992) (“The two sidewalks here appear to be classic
instances. They are physically indistinguishable from
ordinary sidewalks used for the full gamut of urban
walking.”). Moreover, although in some areas the Gateway
Sidewalk’s border is roughly delineated by fifteen-foot-long
planter boxes containing trees, this fact does not alter our
conclusion. As the district court rationally determined, the
average observer would be unfamiliar with the geographic
significance of this sporadic vegetation.
Second, like its publicly owned counterparts, the Gateway
Sidewalk also is a public thoroughfare. By design, the
Gateway Sidewalk contributes to the City’s downtown
transportation grid and is open to the public for general
pedestrian passage. Indeed, rather than leading to the rest of
the Complex, the Gateway Sidewalk encircles it as a through
route. Although Gateway contends that the majority of the
Gateway Sidewalk’s pedestrians are traveling to and from
Indians and Cavaliers games, “[t]he mere fact that a sidewalk
abuts property dedicated to purposes other than free speech is
not enough to strip it of public forum status.” Henderson,
964 F.2d at 1182.
6 United Church of Christ, et al. v.
Gateway Economic Dev. Corp.
No. 01-3434
Of course, not all sidewalks are public fora. See, e.g.,
United States v. Kokinda, 497 U.S. 720 (1990) (postal service
sidewalk separated from main highway sidewalk and could be
used only to enter the post office); Greer v. Spock, 424 U.S.
828 (1976) (sidewalks located in an enclosed military base
and separated from the streets and sidewalks of the city
itself); Chicago Acorn v. Metro. Pier and Exposition Auth.,
150 F.3d 695, 702 (7th Cir. 1998) (“Rather than being part of
the city’s automotive, pedestrian, or bicyclists’ transportation
grid, the sidewalks on the pier and the service street on its
north side are internal to the pier, like the sidewalks, streets,
and parking lots in Disney World[.]”). Whether a given
sidewalk is considered a public forum, of course, hinges on a
case-by-case inquiry in which no single factor is dispositive.
The Gateway Sidewalk differs from those sidewalks that have
not been held to be public fora because it is fully integrated
into the downtown and indistinguishable from its adjoining
publicly owned sidewalk both physically and in its intended
use.
2. Commons
Although UCC concedes that the Commons—an
assortment of plazas, grassy areas, and interior streets within
the Complex—are not traditional public fora, it argues that
they have been designated as public fora by Gateway. The
government (or in this case, Gateway, who we assume, for
purposes of this question, stands in the government’s shoes)
may designate “a place or channel of communication for use
by the public at large for assembly and speech, for use by
certain speakers, or for the discussion of certain subjects.”
Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S.
788, 802 (1985).
UCC’s argument turns on one fact: that although it
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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No. 01-3434 United Church of Christ, et al. v.
Gateway Economic Dev. Corp.
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stadium bleachers.” This, along with the fact that fans on
their way to and from the games “routinely carry signs and
banners supportive of the Cleveland Indians across the
common areas and even into the stadium without interference
from Gateway personnel,” indicates to UCC that Gateway has
opened up the Commons to the gamut of public expression.
The record reveals, however, that to the extent that Gateway
has allowed non-ticketholders to access the Commons during
gametime, it has done so only for those interested in the
actual game being played, and has done so for the specific
purpose of contributing to the gametime ambience.
First, the handful of non-ticketed Indians fans who are
allowed access to the Commons are so allowed because they
have an interest in the Indians’ performance on the field.
Second, although the Indians have sometimes allowed radio
stations to use the plaza area to broadcast high-profile games,
this again directly furthers fan enjoyment of the game itself.
UCC, in marked contrast, does not seek access to the
Commons for purpose of fan enjoyment. Rather, it wishes to
make a political statement that is merely incidental to the
game itself. That Gateway has allowed baseball fans access
to the Commons falls far short of suggesting that it has
allowed everyone access to the Commons.
Thus, we agree with the district court that the Commons are
not designated public fora. Moreover, UCC did not challenge
the district court’s conclusion that if they are nonpublic fora,
the restrictions on their use are reasonable. Accordingly, even
if Gateway were treated as a state actor for purposes of the
Commons, the restrictions on their usage would satisfy the
First Amendment.
B. State Action
Although UCC argues that a finding that the Gateway
Sidewalk is a public forum requires that we remand the case
to the district court “for findings regarding the state-actor
8 United Church of Christ, et al. v.
Gateway Economic Dev. Corp.
No. 01-3434
status of the Gateway Corporation,” our decision that the
Gateway Sidewalk is a public forum necessarily requires that
the Sidewalk be treated as state owned for the purposes of the
First Amendment. The following analysis explains why.
Before the district court, UCC advanced three independent
reasons why the First Amendment applied to Gateway. Two
of these arguments had little to do with the character of the
Complex itself; rather, they focused on the relationship
between Gateway and the City, and, if accepted, would lead
to the conclusion that for all practical purposes, the Complex
is publicly owned. First, relying on Lebron v. Nat’l R.R.
Passenger Corp., 513 U.S. 374, 400 (1995), in which the
Supreme Court held that Amtrak was an instrumentality of
the government, UCC argued that “because like Amtrak, its
history, mandate and leadership are so tied up with the
government—in this case the City and the County—that
[Gateway] should be deemed an agency or instrumentality of
local, and therefore state government.” Second, in a similar
vein, UCC argued that “the relationship between the Gateway
Corporation, the City and the County is so deeply symbiotic
as to make the Gateway Corporation a state actor.” Both of
these arguments turned on the amount of control exercised
over by the Complex by the state—a subject that has been
detailed in other cases, see N. Ohio Chapter of Associated
Builders & Contractors, Inc. v. Gateway Econ. Dev. Corp.,
1992 WL 119375 (N.D. Ohio May 12, 1992), but upon which
the record in our case is largely silent. Thus, we agree that a
determination of whether Gateway is a state actor under these
two tests would require a remand to the district court for
additional findings.
But the third justification that UCC advanced to apply the
First Amendment to Gateway was that “in managing access
to the sidewalks, malls and plazas of the Gateway Complex,
the Gateway Corporation is performing a function that is
traditionally the exclusive prerogative of the state.” This
inquiry—the so-called “public function test”—is not satisfied

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

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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.

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