To:Really Important PartnerFrom:Date :April 6th, 2004Re:Joshua Edward v. City of Bakersville, File number. 03-0257_________________________________________________________ISSUES1. In what type of forum was Joshua Edward displaying his artwork?2. Why is a 42 United States Code 1983 (2000) action filed?SHORT ANSWER1. Mr. Edward was displaying his artwork in a nonpublic forum due tothe area in which it was placed as well as the designation by the city thatthis parcel was for business purposes.

2. A Section 1983 claim is filed because of a perceived violation ofa constitutional right against an individual by a state or municipal entitywhich can result in monetary relief and an injunction banning restrictionson the behavior of the government. FACTSMr. Edward, an art student at the University of Jackson, set up anart display on the second anniversary of the terrorist attacks of September11th, 2001 by displaying Federal Express shipping boxes to spell out theword “FEAR” symbolizing America’s triumph over the climate of fear thatfollowed those attacks. He set up the art display directly in front ofretail shops who leased their space from the City of Bakersville, andactually displayed the exhibit on a parcel licenced to those retailbusinesses..

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After the bomb squad was called out to determine the alarmingnature of the boxes, which were found to be harmless, the police orderedthe removal of the art display. DISCUSSIONThe type of forum that his exhibit was placed to determine thestandard by which the government can regulate that activity. The SupremeCourt laid out a test for the three forum types, namely a traditionalpublic forum, a designated public forum, and a nonpublic forum. Perry Educ.Assn.

v. Perry Local Educ. Assn.

, 460 U.S. 37 (1983). Mr. Edward would filean action against the municipality under 42 U.S.

C. 1983 (2000) for aviolation of his constitutional right for expressive activity.Discussion on Forum TypeThe test for determining the three forum types was lain out in thedecision in Perry.

The first type of forum is that of a traditional publicforum. In a traditional public forum, these areas are “places by which longtradition or by government fiat have been devoted to assembly and debate”where “at one end of the spectrum, are streets and parks which haveimmemorially been held for use of the public, and, time out of mind havebeen used for places of assembly.” Perry Educ. Assn., 460 U.

S. 37, 45. Amore stringent standard is that of a limited or designated public forumwhere there is “public property where the state has opened for use by thepublic as a place for expressive activity” though the “state is notrequired to indefinitely retain the open character of the facility.” Id. at45,46. The last type of forum, and more importantly the forum which appliesin this fact pattern, is that of a nonpublic forum. A nonpublic forum isthe “public property which is not by tradition or designation a forum forpublic communication.” Id.

at 46.The best answer for determining what type of forum would be that Mr.Edward placed his art exhibit in a nonpublic forum.

The factual scenariostates that Mr. “Edward’s display was located directly in front of theretail shops” in which “use of that area is granted in the various shopowner’s leases.” The Supreme Court has held that even though the governmentallows for ‘some outside organizations…to use the facilities..

.thistype of selective public access does not transform government property intoa public forum.” Id at 556. That case involved a teachers union usingteachers mailboxes to the exclusion of a rival union within a school withthe schools permission. Id. The court ruled that the facilities were notopen to the public and the school could exclude whomever it wanted due tothe nature of the forum even though it allowed certain groups to use theforum as well. Id. The ruling mirrors the current scenario because the cityallows pedestrian traffic as well as certain business who bargained for thelicense to use the area where the art display was presented.

Therefore thecity restricted access to who could use the area and for what purpose;namely for foot traffic, access to the city office building, and for thebusinesses to use for the advancement of their trade.Mr. Edward should, in all fairness, try to establish that his exhibitwas in the park and is entitled to use the entirety of the park as hisforum. This labeling of the forum may entitle Mr. Edward a designation ofhis exhibit being placed in a traditional public forum. Absent the factthat the record is speculative on the precise area of the forum, to wit;the area being one that is licensed to retail businesses or one that is aconverted city employee parking lot, he may choose to argue that hisexhibit was in the area known as Ivy Square, as opposed to a much morelimited designation that would lead to a label of a nonpublic forum.The City of Bakersville did not dedicate the licensed portion topublic expressive activity, though Bakersville did allow this type ofactivity on the unlicenced portion of Ivy Square.

In an opinion given byJustice O’Connor, she stated a sidewalk dedicated for an expressed use “isnot a traditional public forum” nor had this sidewalk been expressedlydedicated to any expressive activity” U.S. v.

Kokinda, 110 S. Ct. 3115(1990) (relating to a post office restricting the solicitation of politicaladvocacy materials on a sidewalk running to the post office where theactivity did not restrict public access). The scenario is not conclusiveabout the actual area where the exhibit was displayed. Careful scrutiny ofthe fact pattern, however, gives rise to the assumption that the area isnot a public sidewalk or the actual Ivy Square, rather the area must besomething akin to a concrete pad in front of the retail shops resembling afront patio.

This would mean that the area was not a direct route forpedestrian traffic, but instead, the patio is at most an alternate routefor entry and exit into and out of the building, much like what is foundin Kokinda..The restriction of speech, of the type that is found in the presentfactual scenario, is legitimate when neither by tradition or purpose hadthe forum been open to expressive activity. Another similar forum which isheld to be a nonpublic forum is that of government owned air terminals. TheSupreme Court has held that a forum must “qualify as a property that has’immemorially. .

. time out of mind’ been held in the public trust andused.” Intl. Soc. for Krishna Consciousness, Inc. v. Lee, 112 S.

Ct. 2701,2704 (1992) (quoting Hague v. Comm.

for Indus. Org., 307 U.S. 496, 515(1939)). There is some doubt about whether the licensed portion of cityowned property has been held in the “public trust and used.” Id.

Surely IvySquare will most certainly fall under this test due to the statement that”there is evidence that artists have previously displayed their work in IvySquare”, however the concept is a mental stretch to imply that thisspecific licensed area that is used by retail shops, or in the alternative,a converted employee parking lot is held in the same sort of trust whichfacilitated expressive activity. The Supreme Court affirmed the Appellatecourts ruling that the airlines, since they leased the space from thegovernment yet the government retains the licensed portions for generalpublic access and availability for commercial enterprises, that this forumis labeled a nonpublic forum and as such expressive activity can belimited. Id. at 2708-09. This ruling mirrors the current scenario becausethe retail business lease a building from the city and have a license touse the area directly outside which is available for public access yet isnot labeled a forum for nonpublic use.Mr. Edward’s activity meets the test for a nonpublic forum set forthin Perry. The test is that “a nonpublic forum is one that is not by’tradition or designation a forum for public communication.

‘” Hobbs v.County of Westchester, __ F. Supp. 2d. __, 2003 WL 21919882 (S.

D.N.Y. Aug.

13, 2003) (quoting Perry Educ. Assn., 460 U.S. 37, 46).

The court in thisinstance found that the area that was used by the amusement park was notavailable to performers. Id. This court reasoned that way because therewere areas that were public fora nearby, there would have to be a “requiredhearing before specific areas could be found to constitute public, asopposed to nonpublic fora.” to allow for the amusement park to be atraditional public forum. Id. at 1.

As in the factual scenario, theamusement park was not traditionally held in the public domain nor was thearea designated as for public use. The forum was designated as a forum inwhich business could conduct activities that advanced their trade, and isapposite to unbridled public expression on the premises.The opponents of the idea that this is a nonpublic forum also havesome difficulty in designating a forum that has not “by long tradition orgovernment fiat have been devoted to assembly and debate.” Cornelius v.NAACP, 105 S. Ct. 3439, 3449 (1985) (quoting Perry Educ. Assn.

, 460 U.S.37, 45). Another such example that is similar to the exhibits area is thatof the lobby of a government building being labeled as a nonpublic forumfor the exposition of an artists exhibit, very similar to that which wasplaced in Bakersville by Mr.

Edward. The northern district of Illinoislabeled a lobby of the Metcalfe Federal Building which contains governmentworkers, but it accessible by the public, a nonpublic forum. Sefick v.U.S., 1999 WL 778588 (May 6, 1999). This exhibit of Mr.

Sefick’s, much likethat of Mr. Edward, alarmed many onlookers, and prompted complaints fromthe community. Id. This case further illustrates the fact that Mr. Edward’sdisplay on the licensed government owned area in Bakersville will bedistinguished as a nonpublic forum.Mr.

Edwards may attempt to argue that his exhibit is in a traditionalpublic forum, however this argument is unlikely to gain traction with thecourt. The court will find that an area is a traditional public forum onlywhen “by long tradition or government fiat have been devoted to assemblyand debate” or when the government created a public forum “by itsdesignation of a place or channel of communication for use by the public atlarge for assembly and speech.” United Food & Com. Workers Loc. 1099 v.City of Sydney, 2004 U.S. App.

LEXIS 5451 (March 24, 2004) (quotingCornelius, 473 U.S. 800, 805). While it is true that the actual Ivy Squarewould be designated a traditional public forum due to the fact that it has,by tradition, been held for use of the public at large with a tradition ofbeing available for that purpose, the licensed portion would not be. HotelEmpl.

& Rest. Empl. Union, Local 100 of N.Y.C. v. City of N.

Y.C. Dept.

OfParks & Recreation, 311 F.3d. 534, 556 (2d.

Cir. 2002)(finding that thelicensed Lincoln Square in N.Y.C. was not a traditional public forum).

United encompasses that the government can bar solicitation of signatureswithin 100 feet of a polling place because the area is a nonpublic forum.Just as this speech was limited due to the burden on the property due toelections, the area that Mr. Edward was using for his exhibit was similarlyburdened because of a prescribed usage given by the city to businesses.Mr. Edward was seeking a more limited access to Ivy square in whichto display his exhibit.

In a case decided just days ago, the court lays outa test for deciding the relevant forum to which a designation for public ornonpublic forum can be lain out. The court stated that “When speakers seekgeneral access to public property, the forum encompasses that property” ,however, when speakers seek more limited access, we must take a ‘moretailored approach to ascertaining the parameters of the forum’ within theconfines of the government property at issue” United Food ; Com. WorkersLoc ., 2004 6th.Cir App.

LEXIS 5451, *18. The government property at issuein the given scenario is a parcel of city owned property with a licensegiven to retail business with a restriction upon those businesses not torestrict access to public ingress and egress to the city owned building. Ashas been stated, the lobby of a government building is a nonpublic forum,and therefore an exhibit directly in front of the retail businesses whichis licensed to those businesses should be convincing evidence that Mr.

Edward is trying to limit his access to the forum. Mr. Edwards is sure toargue that only by mistake did he place his exhibit on the licensed parcel,and therefore he was seeking, though unsuccessfully, general access to thepublic property. As such, Mr. Edward believes that the exhibit should bedesignated as lying on a traditional public forum.There is, however, some evidence that a court may determine that Mr.

Edward’s exhibit was placed in a traditional public forum. Mr. Edward wouldargue that the courts have found that “the propriety of a place for useas a public forum does turn on the relevance of the premises to thespeech” and this “relation is found in either the forum representing theobject of the place, or where the relevant audience can be found.” Galvinv. Hay, __ F.3d. __, 2004 WL 527857 (9th Cir. March 18, 2004) The courtsfound that a demonstration in a public park was in a traditional publicforum because the object of their demonstration was a building which theprotestors wanted to be converted into homeless housing near San Francisco.

The demonstration was located in front of that building. Id. Mr. Edwardcould, by this courts standard, label his area a traditional public forumif he could prove that this area was one of the only places in which his”relevant audience could be found”, or if the parcel was the “object” ofdefining his speech. Id. The city would argue, however, that since Mr.

Edward’s speech was to a general audience, the area in which he chose wouldbe no different to one a few more feet away and, in the alternative, thatthe retail shops or city building which he was directly in front of was notthe direct object of his speech. Mr. Edward’s display may have littlechance, under this rational, of his exhibit passing the muster of beingspecifically targeted at either the forum or audience.

Mr. Edwards may also propose that his exhibit is in a “place open foruse by the public as a place for expressive activity”, thereby making thearea a limited public forum. Calvary Chapel Church, Inc. v. Broward Co.

,299 F. Supp.2d. 1295, 1301 (S.D. Fla. 2003). The forum is also one in whichthe state has “thrown open to the public for a range of limited expressiveactivities such as university meeting facilities and public theaters.

“Producciones Gran Escenarios, Inc. v. Ruiz, __ F. Supp.2d. __, 2004 WL635268 (D.P.R.

March 22, 2004) The court in this case stated that thegovernment must have an “intent in establishing and maintaining theproperty” with a purpose as well as determining the “nature of the propertyas well as its compatibility with expressive activities.” Id. In thecurrent scenario, Bakersville did have the intent in establishing the areawhich the businesses used, but may or may not have been responsible for themaintenance of that area. If the city was responsible for the property ‘smaintenance, the property would likely not be compatible with expressiveactivity. However, this is a rather fact intensive assumption, and it ispossible that a fact-finder could reasonably find that this area wascompatible with expressive forms of activities. Filing a 42 U.

S.C. 1983 (2000) ClaimThe original purpose of 42 U.S.C.

1983 was to “prevent de factodiscrimination and intimidation of slaves by persons acting under statelaw”, and has since been used to allow a person to sue the government for aviolation of a constitutional right by someone acting under the color of astate law. LSU L. Sch., Comparing 42 U.S.C.

1983 and Tort Claims Act,http:// MACROBUTTON

edu/cases/immunity/FTC_v_1983.htm. The action may bebrought against an “individual in his personal capacity”, or in thealternative, an individual in his official capacity to allow for theemployer to pay. Id. The person instituting the action may get “moneydamages from local government entities and individuals” as well as”injunctions to stop unconstitutional behavior. Id. In this instance, Mr.Edward would attempt to make a claim against the City of Bakersville, thecity’s police department for actually ordering the removal of the display,and possibly several high ranking city officials both in their individualand official capacities for monetary damages and an injunction for thealleged unconstitutional behavior.

However, his claim for punitive damageswould be barred due to the fact that he is suing the City of Bakersville.The legislative history has been firm on establishing that municipalitieshave immunity from punitive damages. Martin A. Schwartz, Section 1983 inthe Second Circuit, 59 Brook. L. Rev. 285, 288 (1993). He could be allowedactual damages arising from the violation as well as injunctive relief toallow him to display his exhibit in the contested area.

If Mr. Baker has aclaim for a violation or constitutionally protected rights, he will sueunder this section of the United States Code.