The Supreme Court/The Supreme Court.iso/pc/ascii/1993/93_1201/93_1201.za

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SUPREME COURT OF THE UNITED STATES
CAPITAL AREA RIGHT TO LIFE, INC. v.
 DOWNTOWN FRANKFORT, INC.
on petition for writ of certiorari to the supreme
court of kentucky
No. 93-1201.  Decided May 31, 1994.

  The petition for a writ of certiorari is denied.
  Justice O'Connor, dissenting.
  Each year, Downtown Frankfort, Inc. (DFI), a non-
profit corporation established to promote downtown revi-
talization in Frankfort, Kentucky, organizes a one-day
-Great Pumpkin Festival- on the city's St. Clair Mall.
Capital Area Right to Life, Inc. (CARTL) had a booth at
the 1989 festival, where it, among other things, distrib-
uted plastic models of fetuses in little baskets.  When
many festival-goers objected to this sort of political advo-
cacy at the Festival, DFI adopted a policy of denying
booths to organizations that it deemed incompatible with
the Festival's goals of -fun and entertainment.-  Under
this policy, DFI refused to give CARTL a booth at the
1990 festival; DFI's president explicitly told CARTL
representatives that this was because CARTL was a
-controversial group.-  DFI also denied booths to Ken-
tucky NOW and the Kentucky Religious Coalition for
Abortion Rights, two political groups with a message
opposed to that of CARTL.  862 S. W. 2d 297, 297-298
(Ky. 1993).
  CARTL sued, claiming the policy violated its free
speech rights.  The Kentucky Supreme Court disagreed.
It concluded DFI was a state actor, and thus subject to
the strictures of the First Amendment, because (1) DFI
is principally funded by state agencies, (2) DFI took over
from the city the function of promoting downtown revita-
lization, and (3) the city temporarily delegated to DFI
control over the St. Clair Mall by letting DFI conduct
the Festival and decide who gets booths.  Id., at
299-300.  But the court went on to hold that the Festi-
val's policy was nonetheless -content-neutral,- and there-
fore a valid time, place, and manner restriction.  Id., at
300-301.  The court interpreted the content-neutrality re-
quirement as meaning that the restriction must be -neut-
ral as to the type of message the restriction permits as
well as being nondiscriminatory between messages of the
same type, so long as there is a logical and legitimate
reason for restricting the type of message.-  Id., at 301.
-It is a critical fact in this case,- the court said, -that
CARTL's counterparts, NOW and the Religious Coalition
for Abortion Rights, were also denied booths in keeping
with the festival's theme.-  Ibid.
  This content-neutrality analysis is flatly inconsistent
with our precedents.  The restriction here is clearly not
content-neutral, and therefore cannot be a permissible
time, place, and manner restriction, because it is indis-
putably justified with reference to the controversial con-
tent of the speech.  See, e.g., Boos v. Barry, 485 U. S.
312, 321 (1988).  The fact that pro-choice speakers were
treated similarly under this regulation does not dispose
of the content-neutrality analysis; we have time and
again rejected the argument that viewpoint-neutrality
equals content-neutrality.  See, e.g., Burson v. Freeman,
___ U. S. ___, ___ [112 S. Ct. 1846, 1850] (1992); Boos,
supra, at 319; Arkansas Writers' Project, Inc. v. Ragland,
481 U. S. 221, 230 (1987); Consolidated Edison Co. v.
Public Serv. Comm'n, 447 U. S. 530, 537-538 (1980); Ca-
rey v. Brown, 447 U. S. 455, 462, n. 6 (1980).
  In fact, Heffron v. Int'l Soc. for Krishna Consciousness,
452 U. S. 640 (1981), the case on which the opinion be-
low relied, specifically said that, to be a valid time,

place, and manner restriction, a regulation -may not be
based upon either the content or subject matter of
speech,- id., at 648 (emphasis added).  Perhaps there is
some other reason why the restriction might be permis-
sible; but to call it content-neutral and to uphold it on
that basis is a serious error and an unfortunate prece-
dent.
  I also think the Kentucky Supreme Court's state ac-
tion analysis raises an important and difficult question.
Many private organizations-artists' groups, private hos-
pitals, private universities, organizations that educate
the public on social matters, presidential campaigns-get
government subsidies.  We have made clear that a state
subsidy of a private organization, even a private organi-
zation that exercises functions which might otherwise be
performed by the state, does not make that organization
a state actor for First Amendment purposes.  Rendell-
Baker v. Kohn, 457 U. S. 830, 840-843 (1982) (dealing
with a First Amendment claim based on the discharge
of an employee by a private school for maladjusted high
school students).  That this case also involves the use of
a traditional public forum probably should not change
the analysis.  Many of the groups mentioned above may
put on events in public fora, and it is not clear that
they should have any less right to exclude people from
their events than any other public forum user would
have to exclude others from its rally or parade.
  We have recently granted certiorari in Lebron v. Na-
tional Railroad Passenger Corp., No. 93-1525, to resolve
a related state action question.  While we cannot now
tell to what extent the decision in Lebron may bear on
this case, I would hold this case pending that decision,
and then either grant and remand in light of Lebron, or,
if Lebron proves irrelevant, grant and summarily reverse
on the content-neutrality point.  Accordingly, I respect-
fully dissent from the denial of the petition for a writ of
certiorari.