United States District Court,
CITIZENS TO END ANIMAL SUFFERING AND EXPLOITATION, INC., Doreen
Close Lavenson, and, Mark Sommers, Plaintiffs,
FANEUIL HALL MARKETPLACE, INC., Defendant.
Civ. A. No. 90-10722-T.
Aug. 27, 1990.
TAURO, District Judge.
Plaintiffs are a non-profit corporation, Citizens To End Animal
Suffering And Exploitation, and two of its members, Doreen Close
Lavenson and Mark Sommers. They allege that defendant, Faneuil Hall
Marketplace, Inc., infringed their First Amendment right of free
expression when it arrested Lavenson and Sommers on grounds of
criminal trespass for distributing literature on land leased by
defendant from the City of Boston. Based upon that past action, and
defendant's representation that it would arrest plaintiffs again
under similar circumstances, plaintiffs seek to enjoin future
interference with their freedom of expression.
On June 23, 1989, the individual plaintiffs, along with others,
gathered at Faneuil Hall Marketplace ("the Marketplace") 1 to distribute leaflets and protest the
inhumane treatment of calves used for veal. They urged passersby
not to consume veal at the establishments located in the
Marketplace. Plaintiffs claim that, as they and their fellow
protesters were walking in a single line with pedestrian traffic on
North and South Market Streets, they were stopped by defendant's
security officers who allegedly had received complaints from a
commercial tenant. The officers told the protesters that they could
not picket or display signs on "private property." FN2
After the protesters refused to disperse, defendant's security
officers summoned the Boston Police. The police responded quickly,
but left without making any arrests, notwithstanding the
protesters' refusal to disperse. Defendant's security officers then
arrested Lavenson and Sommers for criminal trespass. The pair were
handcuffed and taken to defendant's security offices, where they
were detained until the Boston Police returned. Defendant swore out
criminal complaints against Lavenson and Sommers in the Boston
Municipal Court. These criminal proceedings were ultimately
dismissed for lack of prosecution.
As a result of this incident, plaintiffs filed a five-count
complaint against defendant, alleging: 1) violation of 42 U.S.C.
§ 1983; 2) violation of Mass.Gen.L. c. 12 § 11I; 3) false
arrest; 4) malicious prosecution; and 5) abuse of process.
Presently at issue is plaintiffs' motion for a preliminary
injunction, by which they seek to enjoin future interference with
their freedom of expression. This motion raises issues of
justiciability, state action, first amendment fora, and the
propriety of injunctive relief. Each will be addressed
A federal court may only decide actual cases or controversies.
See U.S. Const. art. III, § 2; Diamond v.
Charles, 476 U.S. 54, 61, 106 S.Ct. 1697, 1703, 90 L.Ed.2d 48
(1986) ("Article III of the Constitution limits the power of
federal courts to deciding 'cases' and 'controversies.' "). To
present a justiciable case or controversy, the plaintiff must
demonstrate "a realistic danger of sustaining a direct injury...."
Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289,
298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979) (citation
Plaintiffs have alleged a justiciable claim here. They wish to
exercise their First Amendment rights at the Marketplace. See
Letter to Michael E. Spear (Appendix B to Affidavit of
Doreen Close Lavenson ). Defendant arrested them for attempting
to do so in the past, and filed a criminal complaint against them.
At oral argument, defense counsel conceded that, if plaintiffs
attempted another such protest on the premises, defendant would
take the same action against them. These circumstances constitute
an actual case or controversy, and justify this court's exercise of
its equitable power. See Pennsylvania v. West Virginia, 262
U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923) ("One does
not have to await the consummation of threatened injury to obtain
preventive relief. If the injury is certainly impending that is
enough."). See also Steffel v. Thompson, 415 U.S. 452, 459,
94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974). The motion for
preliminary injunction, therefore, is properly before the
Before deciding whether defendant can be enjoined from prohibiting
speech on its premises, the court must undertake a two-step
inquiry. First, the court must determine whether this defendant, an
ostensibly private party, may be held to constitutional standards
when it attempts to regulate activity on its premises. See
Hudgens v. National Labor Relations Board, 424 U.S. 507, 96
S.Ct. 1029, 47 L.Ed.2d 196 (1976) (absence of state action
precludes application of constitutional standards). If so, the
court must then characterize the forum at issue, thereby setting
the constitutional standards by which defendant's regulations are
to be judged. See Cornelius v. NAACP Legal Defense and
Educational Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439,
3446, 87 L.Ed.2d 567 (1985) (scope of right of expression is
determined by type of forum involved).
Plaintiffs contend that the public nature of the Marketplace makes
the protections of the First Amendment applicable. FN3 Defendant, on the other hand, argues that
the Marketplace is private property to which the First Amendment
does not apply. See Hudgens, 424 U.S. 507 (1976) (First
Amendment inapplicable to privately-owned shopping mall).
The Constitution clearly restricts the power of the government to
regulate speech. See, e.g., Columbia Broadcasting System, Inc.
v. Democratic National Committee, 412 U.S. 94, 114, 93 S.Ct.
2080, 2092, 36 L.Ed.2d 772 (1973). Under certain circumstances,
private parties may also be subject to these same constitutional
standards. See Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct.
486, 488, 15 L.Ed.2d 373 (1966) ("[c]onduct that is formally
'private' may become so ... impregnated with a governmental
character" that it can be regarded as governmental action). The
issue, therefore, is whether defendant's actions here may be
"fairly attributable to the State." Lugar v. Edmondson Oil
Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482
(1982); Ponce v. Basketball Federation of Puerto Rico, 760
F.2d 375, 377 (1st Cir.1985). Such a determination is "necessarily
fact-bound," Lugar, 457 U.S. at 939, 102 S.Ct. at 2755, for
"[o]nly 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
Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45
The Supreme Court has identified several factors for courts to
consider in determining whether a party is a "state actor."
FN5 Specifically, three areas of
inquiry are relevant: 1) whether there was a sufficient nexus
between the state and the private actor which compelled the private
actor to act as it did; 2) whether the private actor has assumed a
traditionally public function; and 3) whether there is a sufficient
"symbiotic relationship" between the state and the private actor so
that the state may be recognized as a joint participant in the
challenged activity. See Blum v. Yaretsky, 457 U.S. 991,
1004-05, 102 S.Ct. 2777, 2785-86, 73 L.Ed.2d 534 (1982);
Rendell-Baker v. Kohn, 457 U.S. 830, 841-42, 102 S.Ct. 2764,
2771-72, 73 L.Ed.2d 418 (1982); Ponce, 760 F.2d at 377;
Cohen v. President and Fellows of Harvard College, 568
F.Supp. 658, 659-60 (D.Mass.1983) (Tauro, J.), aff'd 729
F.2d 59 (1st Cir.1984), cert. denied, 469 U.S. 874, 105
S.Ct. 233, 83 L.Ed.2d 161 (1984).FN6
While only one of these areas of inquiry need be satisfied in order
to find state action,FN7 this case
involves, as is shown below, both a private assumption of a
traditionally public function, and a symbiotic relationship between
defendant and the City of Boston.FN8
1. Public Function Analysis
In determining whether the Marketplace is a state actor because it
performs a public function, "the relevant question is not simply
whether a private group is serving a 'public function.' "
Rendell-Baker, 457 U.S. at 842, 102 S.Ct. at 2771. Rather,
"the question is whether the function performed has been
'traditionally the exclusive prerogative of the State.' "
Id. (emphasis in original) (citations omitted).FN9
Notwithstanding the narrowness of this inquiry, defendant's conduct
here is fairly construed as the performance of a "public function."
As defense counsel conceded at oral argument, the lanes on which
plaintiffs wish to protest are encumbered by an easement for public
access.FN10 Many pedestrians wholly
uninterested in the Marketplace's offerings cross its lanes daily
in travelling to the waterfront. Others simply stroll about the
Marketplace, enjoying various shops and pushcarts, as well as the
adjacent Faneuil Hall and Faneuil Hall Square. Affidavit of
Robert Guerra; Affidavit of Robert O'Brien.FN11 As such, the open lanes of the
Marketplace are not unlike a public park which, as the Supreme
Court held in Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486,
15 L.Ed.2d 373 (1966),FN12 must be
"treated as a public institution subject to the command of the
Fourteenth Amendment, regardless of who now has title under state
law." Id. at 302, 86 S.Ct. at 490.FN13
Moreover, the pedestrian walkways here are similar to public
streets, FN14 the regulation of
which is a "public function." Were this a case in which the City
had simply authorized the Marketplace to maintain the public
walkways, defendant's discharge of this duty might not be state
action. See, e.g., Johnson v. Pinkerton Academy, 861
F.2d 335, 338 (1st Cir.1988) ("The maintaining of public roads
would seem a classically state function, but this does not make a
private contractor a state operator...."). But here, the
Marketplace is acting as more than a private contractor. Its
function goes beyond the mere maintenance of a public way. By
prohibiting protesters from assembling in the lanes, the
Marketplace is deciding who can use the public easement, and under
what circumstances they can use it. Rather than acting as a private
contractor, therefore, the function performed by the Marketplace is
more akin to that of a policeman.FN15 This, it seems, is a function that has
traditionally been the exclusive domain of the state. FN16
Indeed, the power to decide who can use a public easement goes
beyond even that of a policeman. Unlike the policeman who merely
executes decisions of policy, defendant here is actually
making those policy decisions. Defendant's role is thus more
like that of a legislature, which is even more clearly an exclusive
state function. The essential purpose of the easement here is to
ensure public access to the Marketplace. The exercise of control
over the public's right to use the easement is subject to
constitutional scrutiny, whether employed directly by the State or
through delegation to a private party.
2. Symbiotic Relationship Analysis
Under the "symbiotic relationship" test, actions of a private party
are attributable to the State only where the State "has so far
insinuated itself into a position of interdependence with [the
private entity] that it must be recognized as a joint participant
in the challenged activity." Burton v. Wilmington Parking
Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 862, 6 L.Ed.2d 45
(1961). Again, notwithstanding the narrowness of this
inquiry,FN17 there is present here,
as there was in Burton, such a substantial degree of
interdependence between defendant and the City that it is fair to
construe their relationship as "symbiotic."
In Burton, the Court attributed state action to a private
restaurant, located in a public parking garage, that discriminated
against black customers. In reaching its conclusion, the Court
placed great emphasis on the fact that the restaurant leased its
land from the State and was located in a public facility "dedicated
to public uses," FN18 and that the
rent from the restaurant contributed to the support of the public
facility. Burton, 365 U.S. at 723-24, 81 S.Ct. at
This case involves many of these same indicia. First, as in
Burton, defendant leases its property from the City.FN19 The City continues to own the land in
fee simple, having acquired it by eminent domain.
Second, the lanes between the three buildings are "dedicated to
public uses." In Burton, the Court noted that the garage
building in which the restaurant was situated existed for the
public's benefit, pursuant to a state statute authorizing the
development of "adequate parking facilities for the convenience of
the public." Burton, 365 U.S. at 717, 723, 81 S.Ct. at 857,
861. Similarly, as noted above, the City of Boston here reserved an
easement over the Marketplace's lanes for the public's access and
passage. See supra note 10. Indeed, the City's overall
purpose in leasing the premises to defendant was the rejuvination
of the downtown area, all for the benefit of the community.FN20
Third, and most important, the City derives an economic benefit
from defendant's policy of restrictions, at least as directly as
that found in Burton.FN21 In
Burton, the Court concluded that the State profited from the
restaurant's policy of discrimination, because the State's
financial position was directly influenced by the restaurant's
profits. Those profits, in turn, were enhanced by the policy of
discrimination because, according to the restaurant's own argument,
the restaurant would lose business if it did not discriminate.
Burton, 365 U.S. at 724, 81 S.Ct. at 861. The Court found
that this economic relationship was a direct one, noting that "the
commercially leased areas were not surplus state property, but
[instead] constituted a physically and financially integral and,
indeed, indispensable part of the State's plan...." Id. at
723-24, 81 S.Ct. at 861.
Like the restaurant in Burton, defendant here argues that
its business would suffer if it were to permit plaintiffs to
demonstrate on the premises. FN22
Perhaps even more so than in Burton, this downturn in
business directly affects the City's economic goals, as the
Marketplace is clearly an "indispensable" part of the City's plan.
The City's primary purpose in leasing the property to defendant was
to revitalize the downtown area. See supra, note 20. To this
end, the City depends on the ability of the Marketplace to attract
business to the area. See id. Consequently, to the extent
that the Marketplace fails to attract business, the City's goal of
revitalizing the downtown area is frustrated. As in Burton,
therefore, the City derives a direct economic benefit from
defendant's policy of restricting plaintiffs' access to the
premises. Accordingly, the relationship between defendant and the
City is sufficiently interdependent to be considered "symbiotic."
For these reasons-namely, that defendant performs a "public
function" and is involved in a "symbiotic relationship" with the
City-it is fair to attribute defendant's action to the state and,
accordingly, to examine defendant's conduct with constitutional
Under the First Amendment, a state actor may not restrict access to
a forum without an appropriate governmental justification.
Cornelius v. NAACP Legal Defense and Educational Fund, Inc.,
473 U.S. 788, 800, 105 S.Ct. 3439, 3447, 87 L.Ed.2d 567 (1985). The
degree of interest a state must show to justify its restriction
depends on the type of forum it is regulating. Id. There are
three types of fora: 1) traditional, or "quintessentially" public;
FN24 2) limited public; FN25 and 3) nonpublic.FN26 The more a forum resembles a
traditional public forum, the greater an interest the state must
show to justify restricting access. Student Government Assoc. v.
Board of Trustees of University of Massachusetts, 676 F.Supp.
384, 386 (D.Mass.1987) (Tauro, J.), aff'd 868 F.2d 473 (1st
If the Marketplace were either a traditional or limited public
forum, defendant's restriction would have to be valid at least in
terms of "time, place, and manner." See Perry, 460 U.S. at
45, 103 S.Ct. at 955 (in traditional public forum, content-based
exclusions must be necessary to serve compelling state interest,
but content-neutral exclusions are permissible if valid regulations
of time, place and manner.) FN27 To
be a valid regulation of time, place, and manner, the restriction
must be content-neutral, narrowly tailored to serve a significant
government interest, and offer ample alternative channels of
communication. Id. at 37, 103 S.Ct. at 948.
Defendant's restriction does not satisfy these requirements. First,
it is not "narrowly tailored." The only content-neutral interest
proffered by defendant in support of its restriction is that
"protests by groups of the size here involved ... during crowded
periods obstruct passage by patrons of the Marketplace." Leaving
aside the question of whether this is a "significant" governmental
interest, defendant's policy of arresting demonstrators is not
narrowly tailored to this end. There is no suggestion that
defendant attempted to reduce the bulk of the demonstration by, for
example, requesting that the group break up into smaller segments
and spread out through other parts of the area in order to remove
obstructions to the patrons' access. Nor did defendant suggest that
plaintiffs could resume their demonstration during a less-crowded
period. Instead, defendant simply gave plaintiffs the choice of
either leaving, or being arrested.
Second, defendant's restriction is not entirely content-neutral.
While defendant does offer as a justification for the restriction
the removal of obstructions to passage, it also stresses the
harmful effects of the particular message of plaintiffs' protest.
Specifically, defendant argues that "[p]icketing targeted at
specific Marketplace lessees injures their business." Presumably,
then, if plaintiffs were protesting with regard to some other issue
unrelated to the businesses in the Marketplace, defendant would see
less reason to remove them from the premises. Defendant's
justification for the restriction is thus, at least in part, tied
directly to the content of the protest and, therefore, is not
Although restrictions in a nonpublic forum need only be reasonable
to be valid, see United States v. Kokinda, 497 U.S.
720, ----, 110 S.Ct. 3115, 3120, 111 L.Ed.2d 571 (1990), the
Marketplace is more than a nonpublic forum. As was stated above, a
nonpublic forum is one which "is not by tradition or designation a
forum for public communication...." Perry, 460 U.S. at 46,
103 S.Ct. at 955. Here, however, the Marketplace has both
traditional and designated characteristics of a public forum.
For example, the entire Faneuil Hall area has long been a center
for public debate and expression. See supra, note 11. And,
while the lanes at issue were taken by eminent domain and leased to
defendant, that was done under the express condition that they
maintain their historic public character.FN29
Moreover, as noted above, the City reserved a public easement over
the lanes. The lanes are used for access, for strolling about the
Marketplace, and as a "historic pedestrian connection" to the
purely and traditionally public adjoining areas. These lanes thus
resemble public sidewalks. Although sidewalks are not public fora
per se, see Kokinda, 497 U.S. at ----, 110 S.Ct. at
3120-3121, ("[T]he dissent is simply incorrect in asserting that
every 'public sidewalk' is a public forum"), the facts here
establish that these lanes must be considered, at the least, as
limited public fora. FN30 See
id. ("[T]he location and purpose of a publicly-owned sidewalk
is critical to determining whether such a sidewalk constitutes a
public forum."). Because the Marketplace is at least a limited
public forum, therefore, it is unnecessary to determine whether
defendant's restrictions would satisfy the "reasonableness"
standard applied to non-public fora. FN31
Finally, the court must decide the appropriateness of injunctive
relief here. A party is entitled to a preliminary injunction if it
can establish: (1) a likelihood that it will succeed on the merits;
(2) that it will suffer irreparable harm in the absence of
injunctive relief; (3) that the balance of harms weighs in its
favor; and (4) that issuance of the decree would not adversely
affect the public interest. See Vargas-Figueroa v. Saldana,
826 F.2d 160, 162 (1st Cir.1987).
For the reasons detailed in § III, supra, plaintiffs
have established a likelihood of success on the merits. Plaintiffs
have also demonstrated that they would suffer irreparable harm from
the threatened arrest. See Elrod v. Burns, 427 U.S. 347,
373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976) ("The loss of First
Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury."); Dombrowski v.
Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22
(1965). The balance of harms also weighs in plaintiffs' favor.
Plaintiffs' harm is immediate and irreparable, whereas defendant
will suffer, if at all, only a decrease in business. Finally, the
public interest is advanced by preserving First Amendment
protections over an area long associated with expressive
The Faneuil Hall area is no mere commercial shopping mall with a
Colonial theme. Rather, it is a marketplace of ideas, expression,
and community, providing a unique monument and tribute to one of
this nation's most cherished centers for public debate. While the
private interests of the participating entrepreneurs are important,
and must be respected and protected, they can never be permitted to
overshadow the fundamental purpose of this special landmark.
Accordingly, and for all of the foregoing reasons, Plaintiffs'
Motion for Preliminary Injunction is hereby ALLOWED.
FN1. Faneuil Hall Marketplace, one of the
nation's foremost tourist attractions, is a commercial development
of restaurants, food stands, cocktail bars, boutique shops, and
pushcarts offering sundry arts and crafts. It has wide, open
cobblestoned lanes separating three buildings that house these
commercial enterprises. There is also a large public outdoor
seating area. The Faneuil Hall Marketplace Corporation holds a
ninety-nine year lease for the Marketplace, which consists of the
Quincy Market, North Market, and South Market buildings, and the
cobblestoned lanes between them and to the west of them. See
Affidavit of Robert O'Brien, ¶ 2.
Plaintiffs' protest took place on the lanes separating the three
buildings. These lanes were formerly public streets known as North
and South Market Streets which, in coordination with the Faneuil
Hall Marketplace development, were decommissioned and closed to
FN2. The characterization of this property as
public or private is, of course, a central issue in determining
whether plaintiffs' rights were violated. See infra.
FN3. Specifically, plaintiffs contend that the
First Amendment applies to the Marketplace because: (1) the
underlying property is owned in fee simple by the City of Boston;
(2) Faneuil Hall traditionally has been a forum for public
discourse in Boston; (3) the City of Boston extensively regulates
the Marketplace; and (4) the lease of the Marketplace to defendant
reserved an easement for public access over the leasehold. In
addition, plaintiffs contend that defendant's agent acted "under
color of state law" by arresting them.
FN4. It should be noted at the outset of any such
inquiry that, while the principle of "state action" may be "easily
stated, the question of whether particular ... conduct is private,
on the one hand, or amounts to 'state action,' on the other,
frequently admits of no easy answer." Moose Lodge No. 107 v.
Irvis, 407 U.S. 163, 172, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627
FN5. These factors "are not tests in the
traditional sense. More precisely, they are different methods of
analyzing and appraising the facts and circumstances of a
particular case." Gerena v. Puerto Rico Legal Services,
Inc., 697 F.2d 447, 449, n. 2 (1st Cir.1983).
FN6. The Supreme Court in Rendell-Baker,
supra, considered a fourth factor, namely, the extent to which
the defendant received and depended on federal funds.
Rendell-Baker and its progeny make clear, however, that
"receipt of government funds does not render the government
responsible for a private entity's decisions concerning the use of
those funds" and, therefore, it is not an independent factor to be
considered. Stone v. Dartmouth College, 682 F.Supp. 106,
108, n. 1 (D.N.H.1988) (quoting Gerena, 697 F.2d at
FN7. See Flagg Bros., Inc. v. Brooks, 436
U.S. 149, 157-66, 98 S.Ct. 1729, 1733-39, 56 L.Ed.2d 185 (1978)
(implicitly recognizing that state action could be found under any
alternative rationale). See also, Schneider, The 1982
State Action Trilogy: Doctrinal Contraction, Confusion, and a
Proposal for Change, 60 Notre Dame L.Rev. 1150, 1177 (1985)
(noting that, although it is "unclear from the Blum decision
whether the Court now demands that all three 'principles' ... be
satisfied in a single case ... [,] [i]t would be a significant
departure from precedent for the Court to now require that all
three requirements be met in order to establish state action.")
Cf. Lugar v. Edmondson Oil Co., 457 U.S. 922, 939,
102 S.Ct. 2744, 2755, 73 L.Ed.2d 482 (1982) (unclear "[w]hether
these different tests are actually different in operation or simply
different ways of characterizing the necessarily fact-bound inquiry
that confronts the Court in such a situation....").
FN8. This case does not satisfy the "nexus test,"
however. Under the nexus analysis, a government " 'can be held
responsible for a private decision only when it has exercised
coercive power or has provided such significant encouragement,
either overt or covert, that the choice must in law be deemed to be
that of the State.' " San Francisco Arts & Athletics, Inc.
v. United States Olympic Committee, 483 U.S. 522, 546, 107
S.Ct. 2971, 2986, 97 L.Ed.2d 427 (1987), quoting Blum v.
Yaretsky, 457 U.S. at 1004, 102 S.Ct. at 2786. Indeed, "the
party seeking to establish that action of a private party violated
the Constitution must be able to point to the specific act or
actions of the government which in fact motivated the private
action." Ponce, 760 F.2d at 378 (citation omitted); see also
Cohen v. President and Fellows of Harvard College, 568
F.Supp. 658, 660 (D.Mass.1983) (Tauro, J.) (nexus analysis
"focus[es] on whether the challenged action of the private entity
was compelled or influenced by the government."). In the present
case, plaintiffs have not offered evidence of such a high degree of
involvement by the City of Boston in the decision by defendant to
ban plaintiffs' protest.
FN9. This test has proven difficult to satisfy.
See, e.g., Blum, 457 U.S. 991, 102 S.Ct. 2777, 73
L.Ed.2d 534 (provision of nursing homes not an exclusively state
function); Rendell-Baker, 457 U.S. 830, 102 S.Ct. 2764, 73
L.Ed.2d 418 (education of maladjusted high school students not an
exclusively state function); Vincent v. Trend Western Technical
Corp., 828 F.2d 563 (9th Cir.1987) (maintenance of military
equipment not an exclusively state function).
FN10. See also Exhibit II, Attachment to
Indenture of Lease dated as of 1974, between the City of Boston and
the Boston Redevelopment Authority ("The City hereby reserves
unto itself ... a perpetual, non-exclusive easement, for the
benefit of and use by the general public, for reasonable, peaceful
and orderly pedestrian access and passage ... over and upon the
surface of such portions of former North Market Street, former
South Market Street, [etc.]").
FN11. Fanueil Hall, also known as "The Cradle of
Liberty," is one of Boston's most significant historical buildings.
It has served as the city's central political forum for over two
and one-half centuries, and has long been a site of great oratory
and political agitation. See generally, A.E. Brown, Faneuil
Hall and Market (Lee and Shepard 1900); see also, A.J.
Langguth, Patriots: The Men Who Started The American Revolution
(1988) (town meetings held at Faneuil Hall to discuss Colonial
response to British tyranny); C. Bahne, The Complete Guide to
Boston's Freedom Trail (1990) at 27 ("Nearly every American war
from 1812 to Vietnam has also been debated within these walls.").
The parties do not dispute that Faneuil Hall and Faneuil Hall
Square are still purely public areas.
FN12. In Evans, a former Georgia Senator
devised to the City of Macon a "park and pleasure ground" for
whites only. The city maintained the all-white park for years, but
eventually decided to desegregate the park. Consequently, several
individual managers of the park brought suit against the city to
preserve the Senator's intentions. As a result of this lawsuit, the
city resigned as trustee of the park, and three private individuals
were appointed as trustees for the purpose of maintaining a
segregated park. Several black citizens intervened, arguing that
the racial limitation on the park was unconstitutional.
The Court concluded that, even if the park were maintained by
private trustees, it was nevertheless sufficiently "public" to
justify the application of constitutional standards to it.
Id. It based its decision on the fact that the park had long
been maintained by the city prior to being taken over by private
trustees. The Court held: "[W]here the tradition of municipal
control had become so firmly established, we cannot take judicial
notice that the mere substitution of trustees instantly transferred
this park from the public to the private sector." Id. at
301, 86 S.Ct. at 489. And, in a discussion of parks generally, the
The service rendered [to the community] even by a private park of
this character is municipal in nature.... Golf clubs, social
centers, luncheon clubs, schools such as Tuskegee was at least in
origin, and other like organizations in the private sector are
often racially oriented. A park, on the other hand, is more like a
fire department or police department that traditionally serves the
community. Mass recreation through the use of parks is plainly in
the public domain, and state courts that aid private parties to
perform that public function on a segregated basis implicate the
State in conduct proscribed by the Fourteenth Amendment. Id.
at 301-302, 86 S.Ct. at 490.
FN13. The similarity of the Marketplace to a
municipal park is underscored by the absence of any discernable
boundaries between the Marketplace and the immediately-adjacent,
public areas, such as Fanueil Hall Square. The absence of such
boundaries has proven to be critical in distinguishing between
purely private shopping centers and shopping centers to which the
Constitution applies. See Hudgens v. NLRB, 424 U.S. 507,
513, 96 S.Ct. 1029, 1033, 47 L.Ed.2d 196 (1976) (" 'The town and
the surrounding neighborhood ... can not be distinguished from the
Gulf property by anyone not familiar with the property lines....'
"), quoting Marsh v. Alabama, 326 U.S. 501, 502-503, 66
S.Ct. 276, 277, 90 L.Ed. 265 (1946); Hudgens, 424 U.S. at
518, n. 5, 96 S.Ct. at 1035, n. 5 (" 'The principle difference [ ]
between the two centers [is] that ... Lloyd Center is much more
intertwined with public streets than Logan Valley.' "), quoting
Lloyd Corp. v. Tanner, 407 U.S. 551, 575, 92 S.Ct. 2219,
2232, 33 L.Ed.2d 131 (1972).
Defendant argues, unconvincingly, that the boundaries are
discernable because "[t]he outdoor areas are defined by physical
barriers to vehicles," and that "demonstrators apparently recognize
the private nature of the Marketplace, since relatively few
incidents have occurred." The first of these arguments is
unavailing because barriers to vehicles do not render an area
"private" where it is otherwise fully open to pedestrians. The
second argument, as well, is unavailing because it merely
speculates, based on mere coincidence, as to whether the public is
actually aware of the boundaries.
FN14. A similar analogy was drawn in
Fernandes v. Limmer, 663 F.2d 619 (5th Cir.1981), in which
the Fifth Circuit concluded that airport terminals, leased by
private airlines from the State, were like public streets. The
court reasoned that:
The parallel between public streets and the crescent-shaped central
concourses of the D/FW terminal buildings, where air travelers as
well as the general public may shop, dine, imbibe, and sightsee, is
clear and powerful.... The analogy between these terminal
concourses and public streets is further strengthened by the lack
of restrictions on public access to the commercial establishments
located along the crescent-shaped passageways, whether or not
persons must pass through security checkpoints first.
Id. at 627.
FN15. A similar distinction between a private
contractor and a state actor was noted in McQueen v. Druker,
438 F.2d 781 (1st Cir.1971). In McQueen, the First Circuit
found state action where the City had contracted with private
parties to carry out its duty to provide for urban renewal
displacees. The court concluded that the private parties were more
than contractors because the function they contracted to perform
was traditionally governmental. Id. at 784.
This distinction was further fleshed out in Ponce, wherein
the court hypothesized:
Suppose, for example, that a municipality entered into a
contractual relationship with a private developer to manage a
public housing project with the result that only white individuals
were accepted as tenants. Were the state or town to do nothing when
confronted with the discriminatory screening policy, we might well
conclude that the state's total abstention from the performance of
its legislative function would be equivalent to state approval of
private action. See McQueen v. Druker, 438 F.2d 781 (1st
Ponce, 760 F.2d at 379.
Similarly, here, the City's abstention from the regulation of the
public easement is equivalent to approval of defendant's regulation
of the easement and, therefore, "state action."
FN16. The Supreme Court has been quick to point
out that it "has never considered [whether] the private exercise of
traditional police functions [is a 'public function.']" Flagg
Bros., Inc. v. Brooks, 436 U.S. 149, 163-64, n. 14, 98 S.Ct.
1729, 1737-38, n. 14, 56 L.Ed.2d 185 (1978). Moreover, those lower
courts that have faced the question have not had occasion to
address it squarely. See, e.g., Collins v. Womancare,
878 F.2d 1145, 1151-53 (9th Cir.1989), cert. denied, 493
U.S. 1056, 110 S.Ct. 865, 107 L.Ed.2d 949 (finding no state action
on other grounds, court concluded that it was "unnecessary to reach
the 'public function' argument...."); Carey v. Continental
Airlines, Inc., 823 F.2d 1402, 1404 (10th Cir.1987) ("citizen's
arrest" in airport was not "state action."); Lee v. Estes
Park, 820 F.2d 1112, 1115 (10th Cir.1987) (no state action
where private party merely reports criminal activity and action is
ultimately taken by state officials). But see,
McQueen, 438 F.2d at 784 (the provision of public housing,
"while perhaps not so traditionally governmental as parks, fire
or police services, ... is today one of the major concerns of
most cities....") (emphasis added).
Nevertheless, it seems clear that defendant's action here-the
regulation of a public way-is a "public function." One preeminent
constitutional law scholar illustrates the point in this
For example, deciding to cross the street when a police officer
says you may is not ... a 'public function;' but
authoritatively deciding who is free to cross and who must stop
is a 'public function' whether or not the person entrusted
under state law to perform that function wears a police uniform and
is paid a salary from state revenues or wears civilian garb and
serves as a volunteer crossing guard.
L. Tribe, American Constitutional Law § 18-5 (2d ed. 1988)
FN17. See Cohen v. President and Fellows of
Harvard College, 568 F.Supp. at 658 ("[T]he symbiotic
relationship category is very narrow.").
FN18. See Edwards v. Lutheran Senior Services
of Dover, 603 F.Supp. 315 (D.Del.), aff'd without
opinion, 779 F.2d 42 (3d Cir.1985) ( " Rendell-Baker and
Blum reaffirm that ... a court must find stronger indicia of
state-private interdependence, such as location on public
property...."). Id. at 321 (emphasis added).
FN19. Several lower courts have also considered
the fact that the property is leased from the State to be a
significant indicium of state action. See, e.g.,
Fernandes v. Limmer, 663 F.2d 619, 626-27 (5th Cir.1981);
International Society for Krishna Consciousness, Inc. v.
Lee, No. 75 Civ. 5388 (S.D.N.Y.1982) (LEXIS, Genfed library,
Dist. file); International Society for Krishna Consciousness v.
Schrader, 461 F.Supp. 714, 717 (N.D.Texas 1978). Cf.
International Society for Krishna Consciousness v. Lee 721
F.Supp. 572 (S.D.N.Y.1989) (private airlines settled case after
magistrate concluded that they could be held liable for
constitutional violations in privately-leased terminal areas).
FN20. For example, in the lease itself,
the City expressly "recognize [d] that, in view of:
(a) The importance of the redevelopment of the Property to the
general welfare of the community;
(b) The substantial financing and other public aids that have been
made available by law and by the United States and the City for the
purpose of making such development possible; ...
the qualification and identity of the Lessee and any Owner are of
particular concern to the community and the Lessor."
Indenture of Lease between Boston Redevelopment Authority and
Faneuil Hall Marketplace, Inc. ("The Lease"), dated February
21, 1975, § 14.02. In addition, in its Urban Renewal Plan, the
City stated as its "Basic Goals:"
The basic goal of urban renewal action in the Downtown
Waterfront-Faneuil Hall Area is to stimulate and to facilitate
development efforts in the area, by eliminating those severe
conditions of blight, deterioration, obsolescence, traffic
congestion and incompatible land uses which hinder private
investment in new development without the aid of governmental
action, in order to (1) revitalize a key portion of downtown
Boston; (2) upgrade the pattern of land uses close by the North End
residential community; (3) establish a functional connection
between the area and its surrounding districts....
Downtown Waterfront-Faneuil Hall Urban Renewal Plan ("The
Plan"), § 201, incorporated by reference in The Lease. The
Plan also stated as policy objectives, inter alia, the
elimination of blighting conditions, prevention of erosion of
property values, the strengthening of Boston's tax base, promotion
of historic preservation, the stimulation of tourism, and the
provision of "public ways, parks and plazas which encourage the
pedestrian to enjoy the harbor and its activities." The
Plan, § 202. See also Id. at § 902 (relating
to plan's conformity with community objectives).
FN21. See Ponce, 760 F.2d at 382 ("[T]he
key factor in determining the existence of a symbiotic relationship
is whether the state profited from the discriminatory activity."),
citing Rendell-Baker, supra.
FN22. Defendant specifically argues:
Plaintiff's demonstration within the Marketplace injures its
operations. Protests by groups of the size here involved ... during
crowded periods obstruct passage by patrons of the Marketplace.
Picketing targeted at specific Marketplace lessees [ i.e.,
veal-serving restaurants] injures their business....
Defendant's Memorandum in Support of Motion To Dismiss at
FN23. This conclusion is bolstered by evidence
that not only the City benefits from the relationship by realizing
its policy objectives, see McQueen, 438 F.2d at 784
("[T]he landlords are, in return for an assured consideration, ...
helping the state realize its specific priority objective...."),
but defendant receives economic benefits as well. Cf.
Burton, 365 U.S. at 724, 81 S.Ct. at 861 ("It cannot be
doubted that the peculiar relationship of the restaurant to the
parking facility in which it is located confers on each an
incidental variety of mutual benefits.").
Most significantly, defendant receives a very valuable leasehold at
a very favorable price-$10.00/year. Moreover, the proximity of the
Marketplace to many of Boston's historic-and purely public-areas
enables defendant to profit from the passage of tourists through
the Marketplace's terrain. While each of these benefits alone may
not prove the existence of a symbiotic relationship, the totality
of these circumstances do support such a finding.
FN24. A traditional public forum is a forum
which "by long tradition or by governmental fiat [has] been devoted
to assembly and debate...." Perry Education Assn. v. Perry Local
Educators' Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74
L.Ed.2d 794 (1983).
FN25. A limited public forum is a forum that is
"generally open to the public even if [the state] was not required
to create the forum in the first place." Id.
FN26. A nonpublic forum is a forum which "is not
by tradition or designation a forum for public communication...."
FN27. See also, id. at 46, 103 S.Ct. at
955 (In limited public forum, "[a]lthough a State is not required
to indefinitely retain the open character of the facility, as long
as it does so it is bound by the same standards as apply in a
traditional public forum.")
FN28. Because the restriction is not
content-neutral, it must, in order to be valid, be "necessary to
serve a compelling state interest and ... narrowly drawn to achieve
that end." Perry, 460 U.S. at 37, 103 S.Ct. at 948. The
shielding of veal-serving restaurants from the commercial effects
of protestors' speech, however, cannot be considered a "compelling
FN29. For example, the City's Urban Renewal
Plan, which is incorporated as one of the main purposes of the
Lease, stated with respect to the Faneuil Hall area:
This area is one of the most valuable historic assets to the City
of Boston, to the State of Massachusetts, and to the Nation.... It
is intended that the historic uniqueness of this area be retained
through a thoughtful blend of new construction, rehabilitation and
conservation.... It is intended that the space formed by Faneuil
Hall, the new Boston City Hall, the rehabilitated buildings along
Faneuil Hall Square, and the proposed new building ... be so
designed that the intimate pedestrian scale that once existed in
this area again be recaptured.
The Plan, § 204(5).
FN30. Indeed, the lanes are similar to the
public street described in Heffron v. Int'l Soc. for Krishna
Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d
298 (1981), which was "continually open, often uncongested, and
constitute[d] not only a necessary conduit in the daily affairs of
a locality's citizens, but also a place where people [could] enjoy
the open air or the company of friends and neighbors in a relaxed
environment." Id. at 651, 101 S.Ct. at 2566.
FN31. And, because the analysis is the same for
both traditionally public and limited public fora, see
supra, it is unnecessary to categorize the Marketplace as one
or the other. Cf. Kokinda (Kennedy, J., concurring)
(unnecessary to categorize sidewalk as public or nonpublic forum
where regulation satisfies tests under either category).