The Planned Parenthood location on Virginia Cove in Memphis. Source: The Business Journals.

In a case we reported on last year, the Sixth Circuit Court of Appeals reversed the district court’s denial of a preliminary injunction in a case involving protests outside of a Planned Parenthood location in a Memphis, Tennessee business.  The case previously turned on the fact that the street in front of the clinic was a private street.  The district court had determined that, because the street was private, it could not be a public forum in which anti-abortion protests could take place.

The Sixth Circuit’s decision, issued yesterday, turned on the fact that the private street in question was “physically indistinguishable” from adjacent public streets.  The court reasoned that, because the private street was paved and had no signage indicating that it was privately-owned, a reasonable member of the public would likely consider the street public.  Thus, the court classified the street as a traditional public forum.  The court was also swayed by the fact that there appeared to be a dedication of the street on the subdivision plat for the business park in question, and that the public had impliedly accepted the street as a public street through public use of the street.  The court went on to apply strict scrutiny (although it did not conduct any analysis as to whether the restrictions on the street’s use were content based), and reversed the district court’s order.
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An aerial view of the Virginia Run Cove development. Source: Google.

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.
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A gated community in Puerto Rico. Source: latinamericacurrentevents.com

This post was authored by Otten Johnson summer law clerk Matt Bender.  Matt is a rising third-year law student at the University of Denver Sturm College of Law.

Recently, the U.S. District Court for the District of Puerto Rico, in Watchtower Bible Tract Society of New York v. Municipality of Ponce, decided that streets built and maintained by a small, gated community and never deeded to the local municipality, were a public forum.  The court prohibited the neighborhood and its guards from excluding the plaintiffs, Jehovah’s Witnesses, and ordered the municipality to affirmatively ensure that the plaintiffs’ constitutional rights would be protected.
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