New England Regional v. MA Port Authority ( 2002 )

United States Court of Appeals
For the First Circuit
Nos. 00-2398
01-1977
NEW ENGLAND REGIONAL COUNCIL OF CARPENTERS,
Plaintiff, Appellant,
v.
THOMAS J. KINTON, JR. ET AL.,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Christopher N. Souris, with whom Krakow, Souris & Birmingham,
LLC was on brief, for appellant.
Steven W. Kasten, with whom Cynthia L. Westervelt, McDermott,
Will & Emery, David S. Mackey, Chief Legal Counsel (Massport), and
Michael P. Sady, Senior Legal Counsel (Massport), were on brief,
for appellees.
March 19, 2002
SELYA, Circuit Judge. These appeals require us to decide
two important First Amendment questions. The first relates to
whether a state agency constitutionally may ban all leafletting on
a multi-purpose pier that it controls. The second relates to
whether such an agency may require a person seeking to distribute
handbills on public sidewalks to apply in advance for a permit.
These and other questions arise out of attempts by the
New England Regional Council of Carpenters (NERCC), a labor
organization, to leaflet in locations owned by the Massachusetts
Port Authority (Massport), an instrumentality of the Commonwealth
of Massachusetts. In one instance, NERCC applied for a permit to
leaflet in front of the Exchange Conference Center (ECC), a
structure located on the so-called Fish Pier. Massport policy
forbids such activity in that location, and no permit was
forthcoming. In the other instance, NERCC members tried to leaflet
on the Massport-controlled public sidewalk adjacent to Northern
Avenue, immediately in front of Boston's World Trade Center (WTC).
Massport prevented the leafletters from distributing handbills
until they applied for, and received, a permit.
Invoking 42 U.S.C. § 1983, NERCC repaired to the federal
district court and sued two Massport hierarchs — its executive
director and its director of public safety — in their official
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capacities.1 It sought injunctive relief and a declaration that
Massport's practices violated its right to freedom of speech. See
U.S. Const. Amend. I. While the suit was pending, Massport adopted
new regulations applicable to the Northern Avenue sidewalks. The
district court, acting on cross-motions for summary judgment,
upheld both the outright ban on leafletting at the Fish Pier and
the new regulations. New Engl. Reg'l Council of Carpenters v.
Mass. Port Auth., 115 F. Supp. 2d 84 (D. Mass. 2000) (Massport I).
On the two principal issues, we affirm the district
court's thoughtful decision. We hold that the Fish Pier is a non-
public forum, and that the leafletting ban — which is content-
neutral and reasonable in light of the uses to which the pier is
put — is a valid exercise of governmental authority. As to the
sidewalks adjacent to Northern Avenue, we hold that Massport's
permit requirement is valid on its face: the neoteric regulations
sufficiently limit official discretion and the restrictions imposed
are both content-neutral and narrowly tailored.
1
In the proceedings below the defendants named were Virginia
Buckingham (Massport's executive director) and Joseph M. Lawless
(Massport's director of public safety). By the time these appeals
were argued, other individuals had succeeded to these offices. We
have substituted the incumbents as defendants and appellees
pursuant to Fed. R. App. P. 43(c). Inasmuch as they are sued only
in their official capacities, we refer to them throughout as
"Massport." See Am. Policyholders Ins. Co. v. Nyacol Prods., Inc.,
989 F.2d 1256, 1259 (1st Cir. 1993) (explaining that an official
capacity suit is, in all respects other than in name, a suit
against the government entity that the officer represents).
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There are three more matters. First, we hold that
NERCC's challenge to Massport's original permit policy is moot
insofar as that challenge pertains to the sidewalks adjacent to
Northern Avenue. Second, because the district court did not
address the question of whether Massport controls other sidewalks
to which the original permit policy still attaches, we remand for
factfinding on that question. As a final matter, we hold that the
district court did not abuse its discretion in denying NERCC's
application for an award of attorneys' fees.
I. BACKGROUND
With exceptions that we shall examine in due course, the
facts of this case are largely undisputed. Our mise-en-scène
begins with the Fish Pier, which was constructed by the
Commonwealth almost a century ago to provide a venue for the
Boston-based fishing fleet to unload, process, and auction its
daily catch. Although the volume of activity has decreased
markedly over time, the Fish Pier continues to serve essentially
the same function today.
Geographically, the Fish Pier is located on the eastern
side of Northern Avenue, directly across from Avenue D, in South
Boston. It is separated from the Northern Avenue sidewalk by an
iron fence that runs the full width of the pier. The fence
contains passageways for pedestrian and vehicular traffic. Just
inside the entrance is a security booth, staffed twenty-four hours
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a day, which displays a sign that reads: "Private Property, No
Trespassing." The sign also prohibits unauthorized vehicles and
warns that "drivers must obtain authorization, report name,
address, purpose, and allow inspection of contents" before entering
the Fish Pier.
A two-lane roadway runs the length of the Fish Pier. The
road is bordered on each side by long three-story buildings. The
ECC is located at the very tip of the pier, and the road loops
around it (allowing large trucks to turn around easily). The
outermost periphery of the Fish Pier borders on Boston Harbor. It
is used for the docking, unloading, fueling, and repair of fishing
boats.
There are small parking lots and sidewalks on either side
of the interior road near the entrance to the Fish Pier, but there
are no sidewalks along the length of the three-story buildings.
These buildings do sport raised loading dock platforms. While
NERCC calls these platforms "elevated sidewalks," that nomenclature
is misleading: the photographic evidence shows that each of these
platforms is appurtenant to, and part of, the adjacent building.
Massport became the proprietor of the Fish Pier during
the 1970s and has continued to operate it as a commercial fishing
depot. During this interval, Massport has made room for several
other commercial uses. For example, the long buildings on either
side of the interior road house a number of offices, including
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those of Massport itself, two law firms concentrating in admiralty
practice, a business that compiles sports statistics, and the
Israeli Chamber of Commerce. There are also two restaurants on the
premises. The ECC is a recently-renovated facility — it was
formerly the New England Fish Exchange — that is available to the
general public by reservation. The ECC contains conference and
meeting rooms, and can handle events for as many as 175 people.
Massport's regulations make it unlawful to "[p]ost,
distribute, or display signs, advertisements, circulars, printed or
written matter" in "any area . . . of the Port Properties" without
written permission. Mass. Regs. Code, tit. 740, § 3.02(3)(e). The
same regulation prohibits unauthorized entry into restricted areas
under Massport's control. See id. § 3.02(2). Areas posted as
being closed to the public are deemed "restricted," id., and NERCC
does not dispute that the Fish Pier is so demarcated.2 On that
basis, Massport refuses to permit leafletting on the Fish Pier.
On December 10, 1998, NERCC applied for permission to
distribute handbills in front of the ECC. It believed that the ECC
was to be used six days later for a holiday party sponsored by the
Tocci Building Corporation and desired to leaflet on that date to
call attention to certain employment practices engaged in by the
2
NERCC does question whether the restrictions on entry to the
Fish Pier are enforced, but its counsel made clear at oral argument
that this factual dispute is only relevant to whether the Fish Pier
is a public forum We shall return to that question shortly. See
infra Part V(A).
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company (whose chief executive officer, John Tocci, also serves on
a Massport advisory board). After NERCC's counsel learned
informally that Massport intended to deny the request and to
restrict leafletting to the Fish Pier entrance on Northern Avenue,
NERCC filed suit seeking injunctive relief and a declaration that
Massport's "no leafletting" policy violated the First Amendment.
When NERCC thereafter learned that it was mistaken as to the date
of the Tocci event, it withdrew the request for a preliminary
injunction but chose to proceed with the constitutional challenge.
NERCC included in its complaint a prior permit dispute
concerning a neighboring location: the sidewalk in front of the
WTC. The WTC is located on Northern Avenue, proximate to the Fish
Pier and to Avenues B and D. Due to massive construction efforts
in that part of South Boston, some sidewalks near the WTC are
isthmian corridors bounded by walls of plywood and concrete. Even
where no construction is presently ongoing and makeshift
arrangements do not predominate, the sidewalks are narrow.
Northern Avenue is a major transportation artery, and at peak hours
the entire area is congested. Constant vehicular traffic is
compounded by high pedestrian traffic.
Massport owns the section of Northern Avenue that runs in
front of the WTC, subject to an agreement with the City of Boston
to preserve it as a public right-of-way. On November 17, 1998 — a
date when John Tocci was scheduled to speak at the WTC — thirteen
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NERCC members attempted to leaflet at various locations in the
vicinity of the building. They were threatened with arrest and
told that they could not distribute handbills until they received
permission from Massport. NERCC's counsel immediately transmitted
a permit application by facsimile to Massport's director of public
safety (DPS) while the union members and the police officers
waited. The permit issued around four hours later. In its
complaint, NERCC attacked the process on two grounds: that the
issuance of the permit had been unduly delayed, and that Massport's
requirement for a permit, based on an essentially standardless
policy, was in any event unconstitutional.
In the early stages of the litigation, the district court
expressed concern that Massport's original policy requiring a
permit to distribute leaflets on a public sidewalk lacked adequate
safeguards. The court wisely offered Massport time to consider its
position. Massport proceeded to crystallize its policy by
promulgating a directive amending Mass. Regs. Code, tit. 740, §
3.02(3)(e) with respect to the portions of Northern Avenue under
its control. These amended regulations are reproduced in an
appendix to the lower court's opinion, see Massport I, 115 F. Supp.
2d at 99-100, and we assume the reader's general familiarity with
the text.
Under the new regime, all persons desiring to distribute
leaflets, picket, demonstrate, or conduct similar expressive
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activity on those portions of Northern Avenue under Massport's
control must furnish the agency with advance notice describing the
activity, its time and location, and the number of people who will
engage in it. The notice also must contain the name, address, and
telephone number of a contact person. The filing of this
information allows the applicant to engage in the described
activity, but Massport may modify, revoke, or deny the permit on a
number of grounds either prior to or during the course of the
activity. Pertinently, Massport may take such a step if the DPS
determines that the activity "presents a danger to public safety or
would impede the convenient passage of pedestrian or vehicular
traffic" (subparagraph E.1); or if either the DPS or a police
officer determines that the activity is being conducted in an
unsafe or unreasonably dangerous manner, exceeds the scope of the
notice, or violates time, place, and manner restrictions delineated
elsewhere in the regulation (subparagraph E.2); or if Massport has
taken appropriate measures to "close the pertinent area for
purposes of construction or to ensure safe and convenient travel to
an event" (subparagraph E.3).
Focusing on Northern Avenue, the district court rejected
NERCC's facial challenge to these regulations and entered summary
judgment for the defendants. The court found, inter alia, that the
permit provisions were not an unconstitutional prior restraint
because they sufficiently limited official discretion. Massport I,
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115 F. Supp. 2d at 96. The court also found that the regulations
comprised valid time, place, and manner restrictions. Id. at 97.
The court did not rule on the original permit policy, commenting
only that NERCC "has established no past violation of its
constitutional rights." Id.The district court also ruled in Massport's favor on the
Fish Pier claim. The court held that the Fish Pier is a non-public
forum, id. at 91, and that the ban on leafletting is reasonable in
light of the nature of the premises, id. at 94. In a subsequent
rescript, the court noted that Massport's promulgation of the
revised regulations had not been judicially decreed and, therefore,
concluded that NERCC could not collect attorneys' fees as a
prevailing party under 42 U.S.C. § 1988. NERCC v. Buckingham, No.
98-12538 (D. Mass. June 4, 2001) (unpublished order). These
appeals followed.
II. JUSTICIABILITY
We pause at the outset to determine whether the issues
that NERCC raises are properly before us.
Section 1983 guards against violations of federal rights
by state actors, and there is no dispute that Massport, for our
purposes, qualifies as such. See generally Mass. Gen. Laws ch. 91,
§§ 1-2; Opinion of the Justices, 136 N.E.2d 223, 226 (Mass. 1956).
The law is settled that federal subject matter jurisdiction exists
for colorable claims brought under 42 U.S.C. § 1983. See Bonas v.
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Town of N. Smithfield, 265 F.3d 69, 73-74 (1st Cir. 2001); see also
28 U.S.C. § 1331. NERCC's claims qualify under this rubric.
The question of standing is somewhat less pellucid. It
is black-letter law that:
The basic requirements for Article III
standing are that the petitioner is someone
who has suffered or is threatened by injury in
fact to a cognizable interest, that the injury
is causally connected to the defendant's
action, and that it can be abated by a remedy
the court is competent to give.
Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 55 (1st Cir. 2001).
NERCC easily meets the injury requirement with respect to the Fish
Pier claim and the as-applied portion of its Northern Avenue claim:
in both instances, it alleges injury from the way Massport handled
its permit requests. But whereas the former injury is fully
redressable by judicial decree, the latter no longer can be
remedied by a court.
To be sure, that injury was redressable when NERCC
commenced this litigation. But time did not stand still, and
Massport subsequently revised the policy applicable to Northern
Avenue. This revision rendered the as-applied portion of the
Northern Avenue claim moot. See Becker v. FEC, 230 F.3d 381, 386
n.3 (1st Cir. 2000) (distinguishing mootness from redressability).
NERCC seeks only injunctive and declaratory relief, not damages —
and it would be pointless either to enjoin the enforcement of a
regulation that is no longer in effect or to declare its
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constitutional status. See D.H.L. Assocs., Inc. v. O'Gorman, 199
F.3d 50, 54-55 (1st Cir. 1999).
NERCC concedes that the original permit policy no longer
applies to Northern Avenue, but asserts that it continues to apply
to other public streets under Massport's control. This allegation
falls short of salvaging the as-applied challenge: the bare
possibility that Massport may attempt to enforce its original
policy in other locations is insufficient to invoke the narrow
exception for cases capable of repetition yet evading review. See
Cruz v. Farquharson, 252 F.3d 530, 534 (1st Cir. 2001). The record
does not show that Massport controls any other location that is
either similar to Northern Avenue or likely to be the site of
leafletting activity. Thus, NERCC has not "demonstrated [a]
probability" that the objectionable conduct will recur. Id. On
this basis, we find the Northern Avenue as-applied challenge moot.
This case does not fall into the exception to mootness
articulated in City of Mesquite v. Alladin's Castle, Inc., 455 U.S.
283 (1982). There, the Court held that "a voluntary cessation of
a challenged practice does not deprive a federal court of its power
to determine the legality of the practice." Id. at 289. Under
circuit precedent, however, the City of Mesquite exception applies
"only when there is a reasonable expectation that the challenged
conduct will be repeated following dismissal of the case." D.H.L.
Assocs., 199 F.3d at 55. Here, there is simply no basis for
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suggesting that the original permit policy will be reinstated
following the conclusion of the litigation.3
This does not mean, of course, that NERCC's claim
regarding other Massport-owned streets is completely eclipsed.
NERCC has alleged that the original policy still applies in those
venues, and it has challenged that policy on its face. "It is well
established that in the area of freedom of expression an overbroad
regulation may be subject to facial review . . . ." Forsyth County
v. Nationalist Movement, 505 U.S. 123, 129 (1992). Under that
rule, leafletters may facially challenge permit schemes despite the
fact that they have neither applied for a permit to distribute
handbills on a particular street nor made definitive plans to do
so. City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750,
755-56, 761 (1988).
We thus conclude that four issues are properly before us:
(1) the constitutionality of Massport's ban on leafletting at the
Fish Pier; (2) the facial validity of Massport's newly-promulgated
3
Even if City of Mesquite applied, the Court has made clear
that, under these circumstances, the granting of equitable relief
is discretionary. See City of Mesquite, 455 U.S. at 288 (noting
that the court of appeals could have dismissed the issue as moot,
but that it was under no duty to do so); accord Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189
(2000). Given the circumstances of this case, we think it wise to
avoid an adjudication addressed to a policy that no longer applies
at the site in question. Cf. El Dia, Inc. v. Hernandez-Colon, 963
F.2d 488, 496 (1st Cir. 1992) (eschewing discretionary review where
the challenged order was "merely a precursor to the later
formulation of actual regulations").
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leafletting regulations vis-à-vis Northern Avenue; (3) the facial
validity of Massport's original leafletting policy vis-à-vis
streets and sidewalks apart from Northern Avenue; and (4) the
correctness of the district court's denial of attorneys' fees.
We quickly dispense with the third issue. The district
court never focused on this claim — although preserved, it was not
emphasized below — and the record is simply too sketchy to tell
whether Massport controls any other public streets or sidewalks.
Massport denies such ownership, but a map of its South Boston
properties appears to indicate that other streets, including Avenue
D, traverse them. Whether Massport controls those streets, and
whether sidewalks run alongside, are even more enigmatic questions
on this record. Due to this pervasive uncertainty, we think that
the course of prudence is to remand this issue to the district
court for factfinding. Accordingly, we do not address it further.
III. STANDARD OF REVIEW
Summary judgment is appropriate only "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Thus,
the trial court must resolve all disputed facts in favor of the
non-moving party and draw all reasonable inferences to that party's
benefit. See, e.g., Dynamic Image Techs., Inc. v. United States,
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221 F.3d 34, 39 (1st Cir. 2000). These principles apply equally
when all parties cross-move for summary judgment. See EEOC v.
Steamship Clerks Union, 48 F.3d 594, 603 (1st Cir. 1995) ("Barring
special circumstances, the nisi prius court must consider each
motion separately, drawing inferences against each movant in turn
. . . .").
On appeal, we utilize the same framework. In that
process, we afford de novo review to orders granting or denying
summary judgment. E.g., Suarez v. Pueblo Int'l, Inc., 229 F.3d 49,
53 (1st Cir. 2000). This case (apart from the remanded issue, see
supra Part II) seems a suitable candidate for summary judgment. At
oral argument in this court, counsel for all parties explicitly
denied the existence of any material factual disputes with respect
to the Fish Pier claim, and the Northern Avenue claim reduces to a
facial challenge to Massport's new regulations (and, thus, presents
a pure question of law).
IV. THE CONSTITUTIONAL STANDARDS
Leafletting is a respected tradition in our democratic
society, and it ranks as one of the core free speech activities
shielded by the First Amendment. United States v. Grace, 461 U.S.
171, 176-77 (1983). Though solicitously protected, however, the
right to leaflet is not absolute. E.g., Hill v. Colorado, 530 U.S.
703, 730 (2000). The constitutional standard by which the validity
of a restriction on leafletting will be tested depends on two
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variables: the nature of the forum in which a restriction applies
and the type of restriction. See Perry Educ. Ass'n v. Perry Local
Educ. Ass'n, 460 U.S. 37, 44-46 (1983). We discuss these
sequentially.4
A forum can be a traditional public forum, a designated
public forum (sometimes called a limited public forum), or a non-
public forum. In a traditional or designated public forum,
content-neutral restrictions on the time, place, and manner of
expression must be narrowly tailored to serve some substantial
governmental interest, and must leave open adequate alternative
channels of communication. Id. at 45-46. In a non-public forum,
the constitutional hurdle is considerably lower: to clear it, a
viewpoint-neutral restriction need only be reasonable. Id. at 46.
In such a setting, the reasonableness of a particular regulation is
determined by a fact-intensive balancing test that takes into
account such factors as the uses to which the forum typically is
put, the particular risks associated with the speech activity at
4
In Jews for Jesus, Inc. v. Mass. Bay Transp. Auth., 984 F.2d
1319 (1st Cir. 1993), a panel of this court chose to analyze a
leafletting ban without first determining the nature of the forum,
maintaining that both the public and non-public forum inquiries
converge when there is no "credible reason why the regulations
further the forum's purpose." Id. at 1324. This analytic approach
is awkward, however, because it requires a reviewing tribunal to
know the results of a test before knowing which test applies.
Comparable cases, of more recent vintage, have indicated a
preference for a more deliberate analysis, e.g., Chicago Acorn v.
Metro. Pier & Expo. Auth., 150 F.3d 695, 702 (7th Cir. 1998)
(determining the nature of the forum first), and we follow that
path.
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issue, and the proffered rationale for the restriction. See Int'l
Soc'y for Krishna Consciousness, Inc. v. Lee (ISKCON), 505 U.S.
672, 687-93 (1992) (O'Connor, J., concurring); see also id. at 683-
85 (plurality op.).5
Some spaces — such as public streets, sidewalks, and
parks — are presumptively public fora, and in most cases no
particularized inquiry into their precise nature is necessary.
See, e.g., Frisby v. Schultz, 487 U.S. 474, 481 (1988). We say
"most" rather than "all" because this presumption can be rebutted
in specific instances. See United States v. Kokinda, 497 U.S. 720,
728-29 (1990) (plurality op.) (rejecting the suggestion that all
sidewalks are public fora). The problem of classification grows
increasingly difficult in instances in which no presumption is
available, and categorical distinctions are of little help in
borderline cases. See, e.g., ISKCON, 505 U.S. at 681-82 (plurality
op.) (rejecting the suggestion that all transportation terminals
5
The ISKCON Court upheld a ban on solicitation within an
airport terminal. In a companion case, the Court struck down a
concomitant ban on leafletting, basing that decision on the reasons
stated in the concurrences and dissent in ISKCON. Lee v. Int'l
Soc'y for Krishna Consciousness, Inc., 505 U.S. 830, 831 (1992)
(per curiam). Because Justice O'Connor's ISKCON concurrence
constitutes the narrowest ground for the decision, it is the most
authoritative pronouncement on the standards applicable to
leafletting in a non-public forum. See City of Lakewood, 486 U.S.
at 764 n.9 (explaining that "when no single rationale commands a
majority, the holding of the Court may be viewed as the position
taken by those Members who concurred in the judgmen[t] on the
narrowest of grounds") (citations and internal quotation marks
omitted).
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should be analyzed in the same manner). In the end, an inquiring
court must examine the nature of the locus, as well as its history,
to determine whether it qualifies as a traditional public forum.
See id. at 680-82. The situation is somewhat different in respect
to designated public fora; for purposes of that classification, the
Supreme Court has required evidence that the State intentionally
has opened the area for expressive purposes. See id. at 680.
In addition to this taxonomy, the case at hand also
requires an understanding of the doctrine of prior restraints.
This venerable doctrine guards against the threat of government
censorship by requiring that public licensing and permit schemes
contain adequate substantive and procedural safeguards against
arbitrary (or content-based) State action. See, e.g., FW/PBS, Inc.
v. Dallas, 493 U.S. 215, 225-26 (1990). Two lines of cases have
sprouted in this soil: one focused on the substantive criteria
that restrain official discretion and the other on procedural
safeguards. See id. The substantive strand reflects the hoary
principle that the First Amendment demands that such regulations
contain "narrow, objective, and definite standards to guide the
licensing authority." Forsyth County, 505 U.S. at 131 (quoting
Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969)).
The procedural strand is elaborated in Freedman v. Maryland, 380
U.S. 51 (1965), in which the Court ruled, in the motion picture
licensing context, that prior restraints may be imposed only
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temporarily; that they must allow for prompt judicial review; and
that the licensor must bear the burden of asking a court to
suppress the speech. Id. at 58-60.
Until very recently, it was unclear whether the Freedman
formulation applied to content-neutral permit schemes designed to
ensure public safety in a traditional public forum. Compare, e.g.,
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 560 (1975)
(stating that Freedman applies in a public forum), with Poulos v.
New Hampshire, 345 U.S. 395, 403 (1953) (suggesting that a
different standard applies if the license requirement reflects "a
ministerial police routine"). The Supreme Court erased this
uncertainty within the past few months. In Thomas v. Chicago Park
Dist., 122 S. Ct. 775 (2002), the Court clarified that Freedman's
procedural requirements do not apply to permit schemes that eschew
any consideration of the content of speech, but, rather, limit
themselves to addressing public safety concerns. Id. at 780. At
the same time, the Court reaffirmed the pertinence of the Forsyth
County line of cases to such permit schemes, holding that even
content-neutral time, place, and manner regulations must "contain
adequate standards to guide the official's decision." Id. The
framework erected by the Thomas Court governs this case.6
6
It does not require citation of authority to acknowledge that
Thomas, which comes to us with the imprimatur of the Supreme Court,
supersedes any contrary intimation contained in our earlier
precedent, namely, Jews for Jesus, Inc. v. Mass. Bay Transp. Auth.,
984 F.2d 1319, 1327 (1st Cir. 1993).
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V. THE FISH PIER BAN
We divide our discussion of the outright ban on
leafletting imposed in respect to the Fish Pier proper into two
segments. See supra note 4. We grapple first with the status of
the Fish Pier and then ponder the validity of the ban.
A. Status of the Fish Pier.
We consider the Fish Pier to be a property separate and
apart from the abutting section of Northern Avenue. See ISKCON,
505 U.S. at 676-79 (proceeding similarly in the case of an airport
terminal), Hawkins v. City of Denver, 170 F.3d 1281, 1287 (10th
Cir. 1999) (doing the same in the context of a government-owned
performing arts center); see also Chicago Acorn v. Metro. Pier &
Expo. Auth., 150 F.3d 695, 698 (7th Cir. 1998) (treating separately
each distinct area of Chicago's Navy Pier). Since the Fish Pier is
autonomous for First Amendment purposes, we treat Massport's policy
as a total ban, rather than as a time, place, and manner regulation
that restricts leafletting to the Northern Avenue sidewalk (which
lies outside the gates).
NERCC contends that the Fish Pier is a traditional public
forum, or, alternatively, a designated public forum. In
determining whether either of those labels applies, we must
consider both the nature of the property and its past uses. See
ISKCON, 505 U.S. at 680-82. Historically, the Fish Pier was used
only for purposes related to the commercial fishing industry.
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While the permitted uses have changed over time, the pier remains
quite different from the types of property that are most often
deemed to be public fora. It is not a public thoroughfare like a
street or sidewalk, e.g., Frisby, 487 U.S. at 481, or a gathering
place like a park or town green, e.g., Knights of Columbus v. Town
of Lexington, 272 F.3d 25, 31 (1st Cir. 2001).
Although space on the pier is no longer limited to
activities directly related to receiving, storing, and shipping
fish — the Fish Pier is now home to a conference center, two
eateries, and several offices — the dominant character of the
property is still that of a commercial fishery. Space on the
seaward side is used for unloading fish; the two long buildings are
used to store the catch; and the central area is used for loading
fish onto trucks, which circle around the ECC (formerly known as
the Fish Exchange) and exit through the gate onto Northern Avenue.
The site is notable for the absence of either sidewalks or other
design characteristics that might be viewed as welcoming the
general public.
NERCC points out, correctly, that there is an interior
roadway on the Fish Pier, and that members of the public enter the
premises for a variety of purposes. Furthermore, NERCC has sought
to cast doubt upon Massport's contention that the Fish Pier is a
closed facility limited to authorized persons by proffering
affidavits of NERCC members who assert that they entered the Fish
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Pier without being stopped or questioned. But Massport has taken
appropriate steps to restrict access to the site; and even if
Massport's policy of restricted access is erratically enforced, the
fence, gate, security booth, and signage hardly add up to an open
invitation for the public to enter.
We do not believe that these attributes are enough to
convert the Fish Pier into a traditional public forum. See ISKCON,
505 U.S. at 680 (expressly stating that comparable evidence,
without more, is insufficient to justify a finding that a location
is a public forum); Greer v. Spock, 424 U.S. 828, 836 (1976)
(similar). While the level of public access is a salient
consideration, it cannot be accorded decretory significance —
especially since the Fish Pier's primary use does not depend at all
on public access.
Nor is the Fish Pier a designated public forum. At most,
the circumstances suggest that Massport tolerates the presence of
some members of the public on the Fish Pier, including persons
attending ECC events, restaurant patrons, and an occasional
passerby bent on contemplating the harbor's scenic beauty. Such
tolerance is not tantamount to an affirmative act — and an
affirmative act of a governmental body is required to support a
finding that the authorities have designated a forum as a place for
public expression. ISKCON, 505 U.S. at 680 (plurality op.).
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The proof of the pudding is in the case law. On balance,
the Fish Pier is far less of a public space than, say, the airport
terminal at issue in ISKCON or the post office sidewalk at issue in
Kokinda, neither of which was found to be a public forum. See id.
at 683; Kokinda, 497 U.S. at 730. This conclusion flows
principally from the fact that the Fish Pier's primary uses are not
dependent upon public access. We hold, therefore, that the Fish
Pier is a non-public forum.
B. The Validity of the Ban.
Because the ban on leafletting, as written, is clearly
content-neutral, and there is absolutely no record evidence to
support an inference that Massport has applied it unevenly, we turn
next to the reasonableness of the ban.
At the expense of belaboring the obvious, we reiterate
that leafletting is one of the most highly respected (and,
therefore, highly protected) ways in which citizens may exercise
First Amendment rights. See Grace, 461 U.S. at 176-77. Building
on this sturdy foundation and highlighting the unobtrusive nature
of the activity, NERCC suggests that an outright ban on leafletting
never can be reasonable. We do not agree.
NERCC bases much of its argument on the fact that the
ISKCON Court invalidated a ban on leafletting in an airport.
However, NERCC's attempts to reason from that analogy are
unpersuasive. ISKCON did not go so far as to suggest that a ban on
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leafletting is always unconstitutional. To the contrary, the case
suggests that we should refrain from basing a reasonableness
determination on any single factor (such as whether a ban involves
leafletting or whether a non-public forum is a multi-purpose
facility), encouraging us instead to weigh all the factors that
point in favor of allowing speech against those that support the
need for restrictions. See ISKCON, 505 U.S. at 690 (O'Connor, J.,
concurring). In this process, we bear in mind that while the
regulation adopted by the State need not be the most reasonable of
all available options, id. at 683 (plurality op.), the State's
justifications must be solidly grounded. We hold, therefore, that
a ban on leafletting in a non-public forum is not impermissible per
se. See Hawkins, 170 F.3d at 1289-90, 1292 (sustaining a total ban
on leafletting).
We proceed from the general to the particular. As said,
the Fish Pier accommodates multiple uses, and thus is
distinguishable from the sidewalk in Kokinda and from other single-
purpose fora. See ISKCON, 505 U.S. at 688 (O'Connor, J.,
concurring) (making this distinction). But context in this type of
case often involves matters of degree, and there is much less
diversity of use on the Fish Pier than at a large international
airport, see id. at 689 (noting that the airport terminal at issue
doubled in brass as a shopping mall), in Boston's subway stations,
see Jews for Jesus, Inc. v. Mass. Bay Transp. Auth., 984 F.2d 1319,
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1325 (1st Cir. 1993) (noting the presence of "a myriad of . . .
nontransit activity"), or even at the Chicago Navy Pier, see
Chicago Acorn, 150 F.3d at 702 (noting the existence of a shopping
mall, an entertainment center, and an amusement park on the pier).
The closest parallel is Hawkins, in which there were a comparable
number of secondary uses: three commercial establishments
incidental to the venue's primary purpose (a performing arts
center). 170 F.3d at 1290. There, however, unlike in this case,
the forum's primary use depended upon access by members of the
public — yet the Tenth Circuit nonetheless found an outright ban on
leafletting reasonable. Id. at 1289-90. All in all, the nature of
the Fish Pier weighs quite heavily against NERCC's position.
This brings us to Massport's rationale for barring the
distribution of handbills on the Fish Pier.7 Massport has offered
several reasons supporting the ban. Some of these reasons are of
uncertain force in the First Amendment calculus (e.g., Massport's
insistence that it may legitimately exclude leafletters from the
Fish Pier because they are undesirable to tenants or because the
Fish Pier is classified as a restricted area), and we do not dwell
on them. Rather, we go directly to Massport's principal rationale:
7
Although the regulations cover the Fish Pier as a whole and
apply not only to leafletting but also to other First Amendment
activities, the parties focus on leafletting in the vicinity of the
ECC. Accordingly, we limit our holding to that activity and place.
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that public safety would be endangered if leafletting were allowed
at the entrance to the ECC.
As an abstract matter, this rationale stands on solid
legal footing. See Hill, 530 U.S. at 715 (stating that protection
of citizens' health and safety is within the government's
traditional police power). In the particular setting, the
rationale also withstands scrutiny: the fishing fleet generates a
great deal of activity; there is a high volume of truck traffic;
and there appears to be precious little room in front of the ECC.
What space is available serves primarily as a roadway and truck
turnaround. In these cramped confines, pedestrian safety and
traffic flow are vital concerns. The validity of these concerns is
underscored by the fact that, when Massport erected concrete
bollards to protect the entrance to the ECC several years ago, the
bollards were so severely damaged by trucks executing turnarounds
that Massport had to remove them. Thus, although there are few, if
any, problems intrinsic to the act of leafletting, safety is a
plausible concern here.
In an effort to parry this thrust, NERCC argues that
Massport has exhibited a general disregard for pedestrian safety by
allowing pedestrians to walk the length of the pier to attend
events at the ECC (or, sometimes, merely to gaze at the harbor).
NERCC's factual premise is sound: a pedestrian must traverse the
interior roadway to reach and enter the ECC. But NERCC's suggested
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conclusion — that Massport cares not a fig for pedestrian safety —
does not follow.
At most, NERCC's allegations suggest that a leafletting
ban would not solve every safety problem on the Fish Pier. But
even in a public forum, "partial solutions" may be acceptable.
Globe Newspaper Co. v. Beacon Hill Arch'l Comm'n, 100 F.3d 175, 191
(1st Cir. 1991). In a non-public forum, the reasonableness
standard is satisfied as long as there is a plausible basis for
distinguishing between restricted activities and allowed
activities.
Here, there is such a basis for differentiating between
leafletters and ordinary pedestrians. Given the peculiar setting
of the ECC entrance, leafletters run a serious risk of obstructing
vehicular traffic and distracting pedestrians as they traverse the
roadway.
We have said enough on this score. Massport's public
safety concerns pass the reasonableness screen. Accordingly, we
hold that Massport's interest in public safety in the context of a
commercial fishery and truck depot justifies the outright ban on
leafletting activity that it has imposed (at least in front of the
ECC, see supra note 7).
VI. THE NORTHERN AVENUE PERMIT
We next address NERCC's challenge to Massport's newly-
adopted regulations (which pertain to leafletting on Northern
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Avenue, in the vicinity of the WTC). Two things are clear: the
sidewalks along Northern Avenue constitute a traditional public
forum, see Frisby, 487 U.S. at 481, and the challenged regulations,
on their face, are content-neutral. Thus, the lens of our inquiry
narrows to whether the regulations (1) possess adequate standards
to guide the exercise of official discretion, and (2) are narrowly
tailored to a significant state interest while leaving open
satisfactory alternative means of communication. See Thomas, 122
S. Ct. at 780 & n.3. We address these questions separately.
A. The Adequacy of the Standards.
NERCC charges that the regulations afford Massport
unbridled discretion to deny leafletting requests. It seems
obvious, however, that certain provisions contained in the
regulations, specifically, the notice and "automatic permit"
provisions, are purely ministerial. Those provisions involve no
affirmative action on Massport's part.
The fact that permits issue automatically does not end
our inquiry. The regulations do identify several instances in
which either Massport officials or police officers may deny or
revoke permits by acting affirmatively. We look closely at those
provisions.
Subparagraph E.2 allows Massport to revoke a permit based
on particular conduct by leafletters. Because this proviso grants
discretion to limit activity at the time when it occurs, it is not
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a prior restraint on speech, but, rather, a means through which
public safety personnel may terminate an activity that becomes
dangerous or comes to violate the time, place, and manner
restrictions contained in the regulations. As such, the proviso
constitutes an unremarkable and ubiquitous safeguard,
constitutional on its face. Whether the power that it vests in
public officials may, at some future date, be applied in an
unconstitutional manner is not now before us.
Subparagraphs E.1 and E.3 are a different breed. Those
provisions are prior restraints on speech because each of them
envisions revocation of a permit before the leafletting event
begins.8 Consequently, these rules may be sustained only if they
contain "narrow, objective, and definite" criteria. Shuttlesworth,
394 U.S. at 151. We undertake that inquiry.
Subparagraph E.1 gives the DPS power to deny or revoke a
permit if the proposed activity would present "a danger to public
safety or would impede the convenient passage of pedestrian or
vehicular traffic." Subparagraph E.3 authorizes Massport to bar
access to an area "for purposes of construction or to ensure safe
and convenient travel to an event" by issuing a specific written
8
To be sure, the automatic issuance of permits negates one
potential concern about the regulations, namely, that officials
could effectively deny permits by dragging their feet. See FW/PBS,
493 U.S. at 223-24. In all other respects, however, the power to
revoke a permit prior to the event presents the same Shuttlesworth
concerns as the power to deny it in the first place.
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directive explaining the extent of, and justification for, the
closure. Public safety and convenience are paradigmatically
permissible considerations in the issuance of permits. See, e.g.,
Cox v. New Hampshire, 312 U.S. 569, 575-76 (1941). Nonetheless, a
regulation adopted to serve these salutary ends may fail to pass
constitutional muster if it also authorizes officials to make
judgments on matters beyond their competence. See, e.g.,
Shuttlesworth, 394 U.S. at 149-50, 159 (striking down a permit
ordinance that involved consideration of public morals and
decency); DeBoer v. Village of Oak Park, 267 F.3d 558, 572-73 (7th
Cir. 2001) (invalidating a regulation that empowered a local
official to decide what "benefits the public as a whole"). That
criticism has no application here, as the challenged regulations
focus on judgments about public safety — the sort of judgments that
are inherently within the competence of the DPS and the
constabulary.
A more difficult question is whether these regulations
are sufficiently definite to limit official discretion. See
Thomas, 122 S. Ct. at 780; see also City of Lakewood, 486 U.S. at
769-70 (holding that unfettered — and, therefore, impermissible —
discretion may exist when a regulation is silent as to the criteria
to be used by the official administering it). Once again, however,
we must give weight to the agency's narrowing interpretation of its
own regulations — especially since the record contains no evidence
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that the regulations have been administered in an unfair or
discriminatory fashion. See Cox, 312 U.S. at 577. In this
instance, it is possible, as Massport argues, to construe the
regulations to limit Massport's discretion to revoke permits to
cases of substantial safety and access concerns. We honor that
plausible interpretation. See City of Lakewood, 486 U.S. at 770
n.11 (directing courts to "presume any narrowing construction or
practice to which [a state] law is fairly susceptible") (citations
and internal quotation marks omitted). So interpreted, the
regulations survive a facial challenge. See Thomas, 122 S. Ct. at
781 (warning against "insisting upon a degree of rigidity that is
found in few legal arrangements"). If and when a pattern of abuse
emerges, that will be the time to deal with infelicitous
applications of the regulations. See id.B. Narrow Tailoring.
This leaves the status of the notice and permit
revocation provisions as time, place, and manner restrictions.
Massport contends that the information supplied in the notice
allows it to allocate security resources appropriately and to
accommodate competing requests for the use of limited space.
Relatedly, it points to the narrow, thronged sidewalks of Northern
Avenue and insists that the ability to modify, coordinate, and
sometimes revoke permits is necessary to protect public safety and
convenience there.
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NERCC does not challenge Massport's version of the
underlying facts: the area is congested; the sidewalks are
crowded; and there is not much space for movement. NERCC also
concedes that requirements such as those contained in the
regulations may very well address substantial governmental
interests in the case of disruptive uses of the space (e.g.,
parades or rallies). It persists, however, in claiming that the
regulations are not narrowly tailored because they encompass even
solitary leafletting.
NERCC's argument on this point hinges primarily on its
reading of the Supreme Court's decision in Lovell v. City of
Griffin, 303 U.S. 444 (1938). In NERCC's view, Lovell stands for
the proposition that any permit restriction on leafletting on
public sidewalks is unconstitutional. We do not agree.
In Lovell, the Court struck down a permit requirement
that applied to the distribution of handbills on municipal
sidewalks. Id. at 451. Notwithstanding this outcome, Lovell
cannot be read as authority for a broad rule that permit
requirements are unconstitutional per se insofar as they apply to
leafletting on public sidewalks. The vice that troubled the Lovell
Court was not that the permit scheme affected leafletting, but,
rather, that it amounted to a citywide censorship scheme. See Cox,
312 U.S. at 577 (distinguishing Lovell on this basis). The right
to leaflet on public sidewalks, like any core speech activity, "may
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be regulated in the interest of all; it is not absolute, but
relative, and must be exercised in subordination to the general
comfort and convenience." Greer, 424 U.S. at 836 (citation and
internal quotation marks omitted).9
To reconcile these competing interests, our
constitutional jurisprudence applies different tests depending on
whether a particular location — whatever its use — is deemed to be
a traditional public forum, a designated public forum, or a non-
public forum. Compare id. at 838 (upholding a restriction on
leafletting on portions of a military base that did not comprise a
public forum), with Flower v. United States, 407 U.S. 197, 199
(1972) (per curiam) (overturning a conviction for leafletting on
portions of a military base as to which the military had abandoned
any claim of non-public forum status). Even in a public forum, a
permit requirement that is narrowly tailored to a significant
governmental interest and affords adequate alternative means of
communication is allowable. See Thomas, 122 S. Ct. at 780 & n.3.
Such a regulation need not be the least restrictive alternative to
be considered narrowly tailored. Knights of Columbus, 272 F.3d at
33.
9
To be sure, the Court has, in certain contexts, rejected
particular justifications for a leafletting ban, e.g., Schneider v.
State (Town of Irvington), 308 U.S. 147, 162 (1939) (rejecting
litter prevention as a justification), but cases such as these do
not come close to suggesting that leafletting restrictions must be
analyzed under a different test than restrictions on other core
speech activities.
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What we have said does not mean that the particular type
of speech activity is immaterial in evaluating the legitimacy of
restrictions. It is the function of the narrow tailoring inquiry
to determine whether the State's articulated rationale actually
supports restrictions placed on particular conduct. See McGuire v.
Reilly, 260 F.3d 36, 48 (1st Cir. 2001) ("A law is narrowly
tailored if it promotes a substantial governmental interest that
would be less effectively achieved without the law and does so
without burdening substantially more speech than is necessary to
further this goal."). We turn to that task.
Relying principally on Community for Creative Non-
Violence v. Turner, 893 F.2d 1387 (D.C. Cir. 1990) (CCNV), NERCC
hypothesizes that the permit requirement is invalid because it
burdens substantially more speech than necessary. The permit
revocation provision is not narrowly tailored, this thesis runs,
because it applies to small-scale leafletting that is not inimical
to public safety and convenience.
In CCNV, the D.C. Circuit held that a similar regulation
failed the narrow tailoring test because it affected many incidents
of free expression that posed little or no threat to the safety and
convenience of persons in a public forum. Id. at 1392. Other
courts reached similar conclusions on particular facts. See, e.g.,
Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996) (finding a
parade permit ordinance not narrowly tailed because it applied to
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groups as small as ten persons); Grossman v. City of Portland, 33
F.3d 1200, 1206 (9th Cir. 1994) (invalidating a permit ordinance
partly because it applied to single protesters as well as large
groups). Given the narrowing interpretation of the regulations
that Massport urges here, however, we fail to see how the permit
revocation procedure burdens more speech than necessary.
Aside from the possibility of a chilling effect (a
possibility that we already have considered and discounted, see
supra Part VI(A)), the only burden that the permit revocation
provision imposes is on those against whom it is improperly
invoked. This means, in practice, that Massport may have
significantly more ability to limit large parades or demonstrations
than small-scale leafletting. That is more an issue of application
than a drafting requirement: Massport is not under any mandate to
adopt regulations that, on their face, are specific to each form of
expression.
This leaves only the question of adequate alternative
modes of communication. NERCC, though ably represented, has made
no developed argument that the regulations, as applied to Northern
Avenue, leave it without adequate alternative modes of
communication. The point is, therefore, forfeited. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). At any rate,
Massport only may revoke permit applications that pose significant
safety or access concerns; thus, an application modified to address
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those concerns would be approved. This means, in effect, that the
challenged permit-revocation provisions leave open virtually all
the means of expression originally available to the applicant.
NERCC has one final string to its bow: it attacks the
"written notice" requirement on the ground that this condition
mandates self-identification (and, thus, burdens a leafletter's
right to anonymity). This argument derives from McIntyre v. Ohio
Elections Comm'n, 514 U.S. 334 (1995), a case in which the Supreme
Court struck down a requirement that individual leafletters
identify themselves to the public. See id. at 357. Although NERCC
concedes that notice requirements have been upheld (at least by
implication) in regard to large-scale events, see, e.g., Thomas,
122 S. Ct. at 781; Cox, 312 U.S. at 578, it argues that the
regulations here at issue — which encompass even unobtrusive
leafletting by one or a few people — sweep too broadly.
McIntyre will not support the weight that NERCC consigns
to it. That case dealt with a public identification requirement
for each leafletter, 514 U.S. at 338 & n.3. Here, however, the
regulations contain no requirement that the speaker identify
himself; instead, they require only that the event organizer
provide contact information to Massport. This is a meaningful
difference. See Buckley v. Am. Const. Law Found., 525 U.S. 182,
187 (1999) (upholding a registration requirement for paid petition
circulators while striking down a "name badge" requirement).
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Moreover, the contact person need not be the progenitor of the
proposed speech, but may be an attorney for, or other
representative of, the sponsoring organization. This too is a
crucial distinction. Because the regulations sub judice do not
require the speaker either to disclose his identity or to reveal
the source of the speech to the public, we deem McIntyre
inapposite.
As a fallback, NERCC sings the praises of Rosen v. Port
of Portland, 641 F.2d 1243 (9th Cir. 1981), in which the Ninth
Circuit held an advance notice requirement for leafletters not
narrowly tailored. Id. at 1252. In reaching this conclusion, the
court relied on Thomas v. Collins, 323 U.S. 516 (1945). That
decision held unconstitutional a registration requirement for labor
organizers, citing the chilling effects of such a requirement. Id.
at 538-41.
Collins is not controlling here. That case dealt with
labor organizing, not leafletting, and did not imply — nor is there
any reason to believe — that a registration requirement burdens
leafletters more than it burdens parade organizers or would-be
solicitors. See Rescue Army v. Mun. Court of Los Angeles, 331 U.S.
549, 582-83 & n.52 (1947) (indicating that a "mere identification"
requirement for the latter activity would be constitutional).
Common sense would suggest that concerns over anonymity and the
effort required to file the notice would be the same for a parade
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organizer as for an organizer of a leafletting event. If a
distinction between the two is to be drawn, it must be made not on
the pan of the scales on which burdens are weighed, but, rather, on
the pan that weighs the State's interests in notice for each type
of activity. Here, Massport advances a convincing site-specific
rationale for the requirement. This is quite different from
Collins, in which the Court confronted a licensing requirement that
was not tied to a particular expressive forum, and so could not be
justified by any site-specific rationale.10 In our view, the Rosen
court misapplied Collins — and we therefore decline NERCC's
invitation to follow its lead.
Massport insists that the notice requirement allows it
not only to allocate security resources properly but also to deal
with competing applications for limited space. Given the physical
characteristics of the area and the uses to which it is put, these
concerns ring true. This locale accommodates a significant volume
of pedestrian traffic, which, when coupled with the narrow
sidewalks and ubiquitous road construction, results in rampant
congestion. Northern Avenue itself is a major thoroughfare, and
vehicular traffic is correspondingly heavy. In light of these
idiosyncracies, it appears reasonable for Massport to require
10
While we have grave doubts about the validity of a blanket
registration requirement for leafletters anywhere in view of the
relatively few problems intrinsic to leafletting, see ISKCON, 505
U.S. at 690 (O'Connor, J., concurring), that issue is not before us
today.
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advance notice of leafletting events in this location so that
security officers may ensure that all leafletters comply with the
time, place, and manner restrictions established in the interests
of public safety.
That ends this aspect of the case. We find that the
challenged regulations meet the narrow tailoring requirement. We
therefore uphold them as content-neutral time, place, and manner
restrictions insofar as they pertain to Northern Avenue.
VII. ATTORNEYS' FEES
The Fees Act, 42 U.S.C. § 1988, provides a vehicle for
the recovery of attorneys' fees by prevailing parties in cases
brought pursuant to 42 U.S.C. § 1983. See, e.g., Lipsett v.
Blanco, 975 F.2d 934, 937 (1st Cir. 1992). Despite its failure to
obtain a favorable ruling on the merits, NERCC contends that it
"prevailed" by pressuring Massport to adopt new regulations, and so
should be entitled to reasonable attorneys' fees.
In the district court, NERCC relied on the so-called
catalyst theory to support this claim. See New Hampshire v. Adams,
159 F.3d 680, 685-86 (1st Cir. 1998) (delineating that theory and
explaining its operation). The Supreme Court thwarted that
initiative when it recently consigned the catalyst theory to the
scrap heap. See Buckhannon Board & Care Home, Inc. v. W. Va. Dep't
of Health & Human Res., 532 U.S. 598, 601-10 (2001). The Court
ruled that a fee-shifting award cannot be made unless there is a
-39-
"judicially sanctioned change in the legal relationship of the
parties." Id. at 605.
Buckhannon was decided while the district court had
NERCC's fee application under advisement. The court considered,
sua sponte, whether NERCC could pass the Buckhannon test and
concluded that it could not. NERCC now reshapes its argument to
suggest that the demands of Buckhannon have been satisfied here
because the district court virtually ordered Massport to revise its
regulations.
We review a district court's grant or denial of
attorneys' fees for manifest abuse of discretion, mindful that the
district court has an "intimate knowledge of the nuances of the
underlying case." Gay Officers Action League v. Puerto Rico, 247
F.3d 288, 292 (1st Cir. 2001). Such deference is particularly
appropriate where, as here, the correctness of the court's decision
depends in large part on the proper characterization of its own
statements. Cf. Lefkowitz v. Fair, 816 F.2d 17, 22 (1st Cir. 1987)
(explaining that "uncertainty as to the meaning and intendment of
a district court order can sometimes best be dispelled by deference
to the views of the writing judge"). Clearly, the district court
is in the best position to determine whether its statements to
Massport should be considered as the functional equivalent of a
judicial order within the meaning of Buckhannon.
-40-
We have carefully examined the transcript of the pivotal
proceeding — the hearing held on January 26, 2000. That transcript
reveals an extended colloquy in which the district court discussed
the possibility of ordering Massport to reduce its regulations to
writing and to infuse them with a greater degree of specificity.
In the end, however, the court eschewed an order and gave Massport
sixty days within which to decide what (if anything) it wished to
do, reserving the possibility that the court might enter an order
at a later date.
Within the sixty-day period, Massport submitted a revised
policy to the court. That policy was the subject of comments by
the court and by NERCC's counsel at a hearing held on August 16,
2000. The court then gave Massport a further extension of time to
fine-tune its proposal. Massport adopted the new regulations, in
final form, on August 28, 2000.
The district court did not compel Massport to adopt the
regulations. Under the Buckhannon rule, that ends the matter.
Because the district court entered no explicit order compelling, or
even leading to, Massport's adoption of the regulations, we cannot
say that the district court's refusal to award attorneys' fees
constituted an abuse of discretion.
VIII. CONCLUSION
We summarize succinctly. Because Massport's original
permit policy no longer governs Northern Avenue, we dismiss as moot
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NERCC's as-applied challenge with respect to the leafletting
incident that occurred there. We remand to the district court for
consideration of what, if any, other public streets and sidewalks
are controlled by Massport; if so, for a determination as to
whether the original permit policy still governs those streets and
sidewalks; and if so, for an adjudication of the constitutionality
of that policy. We caution that nothing contained in our opinion
should be construed to preclude the possibility that if the
original policy applies to other public sidewalks, that policy may
be unconstitutional.
We uphold the district court's finding that the Fish Pier
is a non-public forum, and, thus, we affirm the court's
determination that the total ban on leafletting in front of the ECC
is constitutional. We also uphold, as against NERCC's facial
challenge, the permit scheme contained in Massport's newly-revised
regulations pertaining to the sidewalks adjacent to Northern
Avenue. In that respect, we note that these regulations are
content-neutral, vest no excessive discretion in Massport, and
constitute a narrowly tailored restriction on speech. Finally, we
affirm the lower court's denial of NERCC's application for
attorneys' fees, and direct that costs be taxed in favor of
Massport.
So Ordered.
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