Appeal from order of United States District Court for the District of Connecticut, Ellen Bree Burns, J., denying preliminary injunction to concert promoter seeking to use municipal stadium. Affirmed.
John Calash, d/b/a Paradise Productions, appeals from an order of Judge Ellen Bree Burns of the United States District Court for the District of Connecticut, which denied his application for a preliminary injunction. Calash, a concert promoter, sought access to Kennedy Stadium, a facility controlled by the City of Bridgeport's Parks and Recreation Board (the Board). The district court found that the facility was not a public forum and that, in any event, appellant had not made the requisite showing of irreparable injury. Because we believe that recent Supreme Court decisions compel the conclusion that on this record the district court reached the correct result, we affirm Judge Burns' denial of preliminary injunctive relief.
Appellant Calash is a professional concert promoter who has staged rock concerts throughout southern Connecticut. He first sought permission to use Kennedy Stadium for a Beach Boys concert in the summer of 1983. The proposed concert was designed as a profit making venture. The Board denied his application, citing its policy restricting use of the facility to civic, charitable and non-profit entities. In May 1985, Calash again applied for permission to hold concerts at Kennedy Stadium. He appeared before the Board on June 11 and presented his proposal. The proposal indicated that the concerts would benefit the Beardsley Park Zoo. The Board reserved decision in order to study the matter further. On June 17, the Board informed him that his application was denied without prejudice to renewal if Calash provided the Board with information about his finances and prior experience and the arrangement with the zoo. Instead of following this course, Calash chose to sue, as indicated below.
Kennedy Stadium, the facility in question, is a large, outdoor arena, located on parkland adjacent to a public high school. It was built with funds provided by a federal grant and is used primarily for football and soccer. It is also used for the City's annual Barnum Festival and for such events as drum corps exhibitions. The stadium has been used for at least one rock concert: in the summer of 1984, Dennis Dean, director of the Klein Memorial Auditorium (a City-owned theater), obtained permission to use the facility for a Beach Boys concert to benefit the Klein Memorial and various charitable organizations. Because the City was unwilling to advance the funds for the concert, a private corporation assumed the financial risk in exchange for thirty percent of the profit from concessions. In May 1985, the Board announced that Dean had permission to hold a series of concerts at Kennedy Stadium. The district court noted that, as of July 11, no concerts were scheduled; the record does not indicate whether any concerts were in fact held.
In August 1984, Calash sued the City and individual Board members, seeking damages and a permanent injunction. He claimed that his exclusion from Kennedy Stadium violated state and federal antitrust law and denied him the equal protection of the laws. After the Board denied his second application in June 1985, Calash amended his complaint to include a first amendment claim. He also moved for a preliminary injunction requiring defendants to make Kennedy Stadium available to him on "fair and equal terms." The district court held a hearing on his motion for preliminary relief and denied it on August 7.
The district court concluded that, based on the Board's policy restricting use of the facility to civic, charitable and non-profit organizations, Kennedy Stadium was a non-public forum under Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983). Although the district judge found that lack of written guidelines, coupled with the Board's rejection of Calash's application "without prejudice," raised fair grounds for litigation of the public forum issue, she held that Calash failed to establish irreparable injury. Viewing the relief sought as limited to two concert dates in the summer 1985 concert season, Judge Burns found that "granting plaintiff the relief he requests . . . at this date would not serve to protect him from the irreparable harm he claims he will suffer." The district court denied Calash's motion for reconsideration. This appeal followed.
II. First Amendment Claim
As a preliminary matter, we recognize that musical entertainment is a form of protected speech. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981)(live entertainment); Cinevision Corp. v. City of Burbank, 745 F.2d 560, 567 (9th Cir. 1984), cert. denied, 471 U.S. 1054, 105 S. Ct. 2115, 85 L. Ed. 2d 480 (1985) (rock music). That appellant seeks to make a profit does not deprive him of the protection of the first amendment. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 783, 55 L. Ed. 2d 707, 98 S. Ct. 1407 (1978). However, recognition that protected speech is involved only begins the inquiry, since "even protected speech is not equally permissible in all places and at all times." Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788, 105 S. Ct. 3439, 3448, 87 L. Ed. 2d 567 (1985).
Whether a city can, consistent with the first amendment, exclude profit-making entities from a municipal facility appears to be a matter of first impression. However, the validity of the City's limited access policy depends largely on the classification of the public property involved. In its two most recent decisions on public forum doctrine, Perry, supra, and Cornelius, supra, the Supreme Court has defined three categories of public property: the traditional public forum, including public streets and parks, dedicated to assembly and debate by "tradition or by government fiat," Perry, 460 U.S. at 45; the limited public forum, which the government has designated "a place or channel of communication for use by the public at large . . .[or] for use by certain speakers, or for the discussion of certain subjects," Cornelius, 105 S. Ct. at 3449; and the nonpublic forum for public communication," Perry, 460 U.S. at 46. The right to access to government must be evaluated vary according to the classification. Id. at 44.
In the first category, the government must show that a content-based exclusion is necessary to serve a compelling state interest and narrowly drawn to achieve its purpose. Id. at 45. The government can also achieve its purpose. Id. at 45. The government can also impose narrow, content-neutral time, place and manner restrictions to serve a significant interest, so long as there remain adequate alternative channels of communication. Id. With regard to the second category, although the government can close a limited public forum altogether, the court noted that when the forum remains open as a whole it it governed by the same standards as the traditional public forum. Id. at 46, citing Widmar v. Vincent, 454 U.S. 263, 269-270, 70 L. Ed. 2d 440, 102 S. Ct. 269 (1981). When the government, however, creates a limited public forum for the use of certain speakers or for the discussion of certain subjects, the first amendment protections provided to traditional public forums only apply to entities of a character similar to those the government admits to the forum. Perry, 460 U.S. at 48, Cornelius, 105 S. Ct. at 3449. In the third category, the government can "reserve the forum for its intended purposes, communicative or otherwise" through reasonable restrictions on expression, so long as the regulations are not based on hostility to the speaker's views. Perry, 460 U.S. at 46. Indeed, "implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity." Id. at 49. In ...