New England Regional v. MA Port Authority

• Court: Court of Appeals for the First Circuit
• Decided: March 19, 2002
• Docket: 00-2398
• Status: Published

Opinion

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

-2- 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).

-3- 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

-4- 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

-5- 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).

-6- 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

-7- 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

-8- 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,

-9- 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.

-10- 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

-11- 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

-12- 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").

-13- 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,

-14- 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

-15- 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.

-16- 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).

-17- 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

-18- 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).

-19- 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.

-20- 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

-21- 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.).

-22- 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

-23- 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,

-24- 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.

-25- 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

-26- 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

-27- 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

-28- 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.

-29- 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

-30- 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.

-31- 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

-32- 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.

-33- 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

-34- 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

-35- 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).

-36- 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

-37- 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.

-38- 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

-41- 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.

-42-