Last month, a federal district court in Tennessee denied a motion for preliminary injunction filed by a man who wished to picket a Planned Parenthood location in a business park in Memphis. The court determined that the private street on which the plaintiff, John Brindley, intended to picket was not a public roadway and therefore was not a traditional public forum requiring content neutral speech regulations.
Planned Parenthood’s offices are located on Virginia Run Cove, a two-lane street that serves multiple businesses located within the park. The park is zoned as a planned unit development, and the street serves the businesses located within the park. Brindley sought to protest Planned Parenthood on Virginia Run Cove, but was asked to move by a police officer on the premise that Virginia Run Cove is a private street. Brindley subsequently moved to a nearby public street, but was dissatisfied that his protest location was nearly 300 feet from his target audience, Planned Parenthood. Brindley subsequently filed his complaint in federal district court.
In conducting a forum analysis to determine whether Virginia Run Cove was a public forum for First Amendment purposes, the court noted that some public fora are privately-owned. These areas include public sidewalks that run across private property, sidewalks on private university campuses, and even the streets of corporate-owned communities. However, the court observed, private areas are not converted into public fora where the owner of the property allows a more limited use of the property.
In analyzing Virginia Run Cove, the court noted several items that dictated that the street was not a traditional public forum. First, the City of Memphis had not accepted a dedication of the street via the plat for the property. Second, the owner of the private street transferred the property by quitclaim deed shortly after recording the plat, indicating no intent to create a public forum. The court also noted that the street is not used as a public thoroughfare, and free public access is not provided in the area, but the court did find that the physical characteristics of the street do not suggest that it is a private street. Nonetheless, the court agreed that the street was not a traditional public forum.
The court went on, however, to analyze Virginia Run Cove as a nonpublic forum. The court found that the exclusion of loiterers and uninvited users of the street was reasonable in light of the purposes of the private street, and that the exclusion of the plaintiff did not constitute viewpoint discrimination.
By way of observation, the court’s decision to analyze the private street as a nonpublic forum is perplexing. Typically, once a court determines that private property is not a public forum, the First Amendment analysis should terminate. It is not clear from the court’s decision why it elected not to treat the private street as simply a non-forum that is not subject to First Amendment analysis. Adding to this issue, it appears that the court acknowledged that the exclusion of parties from the street was a policy of the business park and not the city, yet the business park was not a party to the lawsuit. Nonetheless, it appears that the private property owners in question will be able to exclude those who engage in unwanted speech activity within Virginia Run Cove.
The decision has already been appealed to the Sixth Circuit Court of Appeals.