A federal judge from the Middle District of Tennessee has granted the Metropolitan Government of Nashville and Davidson County’s motion for summary judgment in a case in which these parties were sued by two men, Jeremy Peters and Kenneth Winslow, who claim they were unlawfully prevented from sharing religious messaging outside the city’s Bridgestone Arena.
By way of background, the Arena is an entertainment venue owned by the Sports Authority of the Metropolitan Government of Nashville and Davidson County (Sports Authority). The Arena was constructed in 1997 to house Nashville’s professional hockey team, the Nashville Predators, and to present “cultural, educational, entertainment, business, sporting, social and other public events.” Notably, the Bridgestone Arena property includes the building and outdoor plaza areas adjacent to the building.
Powers Management LLC (Powers) has managed and operated the Arena since at least 2002. In furtherance of these management responsibilities, Powers implemented policies and procedures regarding use of the Arena (Arena Policies), including policies prohibiting the use of any “noise/voice amplification device,” and distribution of “flyers, pamphlets, leaflets, [and] brochures” without express written consent from the Arena.
“At issue here is the application of these policies to the main outdoor plaza (Plaza),” wrote the court, noting that individuals and entities leasing the Arena facilities have “the full use of the Arena, including the Plaza, and may permit sponsors, performers, or vendors to use portions of the Plaza for purposes of promoting or selling merchandise or other materials, advertising, or conducting activities in connection with the event. In addition to these activities, the Plaza is used for entry and exit to the Arena building and as a security screening area.
“During events, Powers sets up bicycle racks to delineate the Plaza area from the public sidewalk. When events are not being held, the Plaza serves as a public throughfare, no barricades are in place to physically delineate the Plaza area from the adjacent public sidewalks, and the surface of the Plaza is physically indistinguishable from the surrounding sidewalks.”
The court added that Powers uses a security team that includes private security and Metro Nashville Police Department (MNPD) officers. Powers and MNPD have agreed on a protocol to address violations of Arena Policies pursuant to which someone from Powers or its designee is responsible for addressing the violation with the individual and presenting them with the choice of discontinuing the violation or leaving the property. If the individual refuses either option, Powers can enlist the assistance of MNPD officers and may opt to prosecute that person for trespassing. MNPD officers do not proactively enforce Arena Policies, but they may advise individuals that they may be subject to criminal liability for trespass if they do not discontinue the conduct or relocate to an area outside the Plaza. MNPD officers have never arrested anyone for violation of the Arena Policies or for trespass, according to the court.
Plaintiffs Peters and Winslow, on more than one occasion in 2017 and 2018, went to the Arena Plaza to share their religious messages with event attendees using voice amplification and, at times, distributing religious literature. When their conduct violated the Arena Policies, they were asked to either cease the conduct or leave the Plaza. “Plaintiffs were advised that if they did not do so they would be arrested for trespassing,” wrote the court. “Plaintiffs were never arrested, but they claim the threat of arrest caused them to leave the Plaza and stand behind the bicycle racks at the perimeter of the Plaza. They claim this distance from event attendees prevented them from effectively communicating their message with their intended audience.”
In their lawsuit, the plaintiffs challenged Arena Policies on amplification and leafletting Peters also challenged the Arena Policies as applied to him on four specific occasions: November 8, 2017 (CMA Awards), December 31, 2017 (New Years’ Eve event), February 2, 2018 (CCM Winter Jam), and June 6, 2018 (CMA Festival).
The plaintiffs brought their claim, pursuant Section 1983, which provides a mechanism for civil claims for violation of a federal right by a person acting under color of law.
“Plaintiffs contend Metro is subject to municipal liability for the alleged constitutional violations on various theories, including that Metro adopted the Arena Policies,” wrote the court. “The parties are, of course, not in agreement on this issue. Metro contends the Arena Policies are not a ‘government action’ because the Arena is privately operated and managed by Powers and the Arena Policies were created and implemented by Powers, a private entity, as part of its operations and management obligations. Plaintiffs disagree. They argue that even if Powers manages and operates the property, Metro cannot ‘hide behind Powers’ and ‘abdicate its responsibility to protect the constitutional rights of its citizens in public fora.’ Plaintiffs also dispute Metro’s contention that it had no role in developing the Arena Policies. Plaintiffs point to provisions in the Management Agreement and Lease Agreement that authorize Powers to develop regulations subject to prior consultation with the [Sports] Authority.
“ … the Court finds the Arena Policies survive constitutional scrutiny. Accordingly, the Court need not decide whether the Policies are, in fact, attributable to Metro. Therefore, for purposes of this motion, the Court assumes, without deciding, that the Arena Policies are a government regulation on speech.”
The court next turned to that part of the complaint, implicating the Free Speech Clause of the First Amendment, which is applicable to state and local governments through the Fourteenth Amendment. The clause limits the government’s power to regulate speech on public property.
“There is no dispute that Plaintiffs’ amplified preaching and leafletting fall within the scope of speech protected by the First Amendment,” wrote the court. “At issue is the nature of the forum and whether the Arena Policies are justified under the requisite standard. The Court begins with the nature of the forum, which determines the standard under which the Court considers whether the restrictions are justified. See Ison v. Madison Loc. Sch. Dist. Bd. of Ed., 3 F.4th 887, 893 (6th Cir. 2021) (‘The strength of the First Amendment protection, and the level of justification required for a speech restriction, varies depending on the forum where the speech occurs.’).”
If the Plaza could be deemed a public property, or a type of property that has traditionally been available for public expression, such as a sidewalk, then the restrictions would not be justified and the plaintiffs’ argument would be successful.
However, the Plaza “is not a quintessential traditional public forum … . Rather, the Plaza’s status as a nonpublic forum is based on its intended and historic use and physical characteristics. Overall, considering the Plaza’s physical characteristics, purpose, and historic use, the Court concludes that the Arena Plaza is a nonpublic forum.”
Jeremy Peters and Kenneth Winslow v. Metropolitan Government of Nashville and Davidson County, Tennessee, et al.; M.D. Tenn.; Case No. 3:18-cv-00564; 8/14/24
