Memorandum








To: Really Important Partner


From:


Date : April 6th, 2004


Re: Joshua Edward v. City of Bakersville, File number. 03‑0257


_________________________________________________________


ISSUES





1. In what type of forum was Joshua Edward displaying his artwork?


2. Why is a 42 United States Code § 1983 (2000) action filed?


SHORT ANSWER





1. Mr. Edward was displaying his artwork in a nonpublic forum due to the area in which it was placed as well as the designation by the city that this parcel was for business purposes.


2. A Section 1983 claim is filed because of a perceived violation of a constitutional right against an individual by a state or municipal entity which can result in monetary relief and an injunction banning restrictions on the behavior of the government.


FACTS





Mr. Edward, an art student at the University of Jackson, set up an art display on the second anniversary of the terrorist attacks of September 11th, 2001 by displaying Federal Express shipping boxes to spell out the word "FEAR" symbolizing America’s triumph over the climate of fear that followed those attacks. He set up the art display directly in front of retail shops who leased their space from the City of Bakersville, and actually displayed the exhibit on a parcel licenced to those retail businesses.. After the bomb squad was called out to determine the alarming nature of the boxes, which were found to be harmless, the police ordered the removal of the art display.


DISCUSSION





The type of forum that his exhibit was placed to determine the standard by which the government can regulate that activity. The Supreme Court laid out a test for the three forum types, namely a traditional public forum, a designated public forum, and a nonpublic forum. Perry Educ. Assn. v. Perry Local Educ. Assn., 460 U.S. 37 (1983). Mr. Edward would file an action against the municipality under 42 U.S.C. § 1983 (2000) for a violation of his constitutional right for expressive activity.


Discussion on Forum Type





The test for determining the three forum types was lain out in the decision in Perry. The first type of forum is that of a traditional public forum. In a traditional public forum, these areas are "places by which long tradition or by government fiat have been devoted to assembly and debate" where "at one end of the spectrum, are streets and parks which have immemorially been held for use of the public, and, time out of mind have been used for places of assembly." Perry Educ. Assn., 460 U.S. 37, 45. A more stringent standard is that of a limited or designated public forum where there is "public property where the state has opened for use by the public as a place for expressive activity" though the "state is not required to indefinitely retain the open character of the facility." Id. at 45,46. The last type of forum, and more importantly the forum which applies in this fact pattern, is that of a nonpublic forum. A nonpublic forum is the "[p]ublic property which is not by tradition or designation a forum for public communication." Id. at 46.


The best answer for determining what type of forum would be that Mr. Edward placed his art exhibit in a nonpublic forum. The factual scenario states that Mr. "Edward’s display was located directly in front of the retail shops" in which "[u]se of th[at] area is granted in the various shop owner’s leases." The Supreme Court has held that even though the government allows for ‘some outside organizations...to use the facilities...[t]his type of selective public access does not transform government property into a public forum." Id at 556. That case involved a teachers union using teachers mailboxes to the exclusion of a rival union within a school with the schools permission. Id. The court ruled that the facilities were not open to the public and the school could exclude whomever it wanted due to the nature of the forum even though it allowed certain groups to use the forum as well. Id. The ruling mirrors the current scenario because the city allows pedestrian traffic as well as certain business who bargained for the license to use the area where the art display was presented. Therefore the city restricted