On Appeal From the United States District Court for the District of New Jersey. (D.C. Civil No. 90-01951)
Before: Becker, Hutchinson and Higginbotham, Circuit Judges
Acting as administrator of the New Jersey judicial system, New Jersey Supreme Court Chief Justice Robert N. Wilentz ("the Chief Justice") refused to allow Warner Brothers to use several New Jersey courthouses to film a scene for the movie "Bonfire of the Vanities." The Chief Justice based his decision on the ground that the scene (which depicted African-Americans rioting in a courtroom against a perceived judicial injustice) offensively stereotyped blacks and might undermine their "already vulnerable" confidence in the state judiciary. One of the courthouses to which Warner Brothers specifically sought access was the old Essex County Courthouse in Newark, New Jersey. To induce Essex County to consent to the use of the courthouse, Warner Brothers had offered to donate $250,000 to the Courthouse Restoration Fund.
Faced with the threat of an injunction against filming in the Essex County Courthouse, Warner Brothers proceeded to shoot the scene elsewhere. Essex County and County Executive Nicholas R. Amato (collectively "the County") thereupon brought suit in the district court for the District of New Jersey under 42 U.S.C. § 1983 (1988) against Chief Justice Wilentz individually and in his official capacity as administrator of the New Jersey judiciary.*fn1 The County claimed that Chief Justice Wilentz violated Warner Brothers' First Amendment rights and caused the County to lose $250,000 in revenue. The County sought damages, declaratory relief, and attorneys' fees. Warner Brothers neither joined the suit nor took any public stand on it, and the Chief Justice sought dismissal on the ground that the County lacked standing to raise Warner Brothers' rights.
After the suit was filed but before decision was rendered, Chief Justice Wilentz altered the procedure for handling courthouse filming requests so that a nonjudicial committee would review the proposals according to an official policy and would determine whether to permit filming. Because the County elected not to challenge the new system directly, the Chief Justice argued that the claims for prospective relief were moot even if the damages claim was live. The County disagreed, contending that under the new policy, applications could still be denied for identical reasons, and that studios would lack incentive to challenge the denials; in the County's view, the declaratory relief claim was live because essentially similar violations were capable of repetition yet evading review.
The parties also hotly disputed the the First Amendment issues. Addressing the County's motion for summary judgment and the Chief Justice's cross-motion for dismissal or summary judgment, the district court ruled that (1) the County had third party standing to assert Warner Brothers' claims; (2) the declaratory relief claim was not moot; (3) the Essex County Courthouse was the relevant "forum" for First Amendment purposes, and it was a "designated public forum" for filmmaking; (4) the Chief Justice violated the First Amendment by discriminating on the basis of content in a manner not narrowly tailored to further a compelling state interest; (5) the Chief Justice also violated the First Amendment by discriminating based on viewpoint; and (6) the Chief Justice was not entitled to Eleventh Amendment or absolute judicial immunity, but he was entitled to qualified immunity from damages because he did not violate clearly established law.
Chief Justice Wilentz appealed, pressing every defense he raised before the district court. The County cross-appealed, claiming that the Chief Justice was not entitled to qualified immunity from damages. The district court subsequently awarded attorneys' fees to the County under 42 U.S.C. § 1988 (1988), thereby rejecting Chief Justice Wilentz's objections that qualified immunity and the Eleventh Amendment foreclosed the award, that the County did not substantially prevail, and that the fees were excessive in any event. The Chief Justice appealed the attorneys' fees ruling as well, and we consolidated the appeals.
For the reasons that follow, we hold that the County lacked third party standing to raise the First Amendment rights of Warner Brothers. We will therefore set aside both the judgment on the merits and the attorneys' fees award, and we will direct the district court to dismiss the case. Because our holding bars all the County's claims, we need not decide whether the declaratory judgment claim was still live, whether the Chief Justice violated the First Amendment, or whether attorneys' fees would have been appropriate.
I. FACTS AND PROCEDURAL HISTORY
The relevant facts are essentially undisputed. Before 1988, the New Jersey state judiciary had no formal written policy governing the use of state courthouses for commercial filmmaking, but under prevailing practice such requests were referred to the Chief Justice for approval. In 1988, the judiciary adopted a formal policy which confirmed the existing practice: judges in the various vicinages were to "consult" with the Chief Justice before consenting to commercial uses of courtrooms. No statistics were kept before 1988, but a 1989 survey showed that the Chief Justice approved seven of twelve requests to film in state courthouses that year.
In mid-April 1990, Warner Brothers sought access to the Essex County Courthouse to film a brief "walking" scene for its movie adaptation of Tom Wolfe's novel, Bonfire of the Vanities.*fn2 The Chief Justice approved the request, finding the proposed scene "innocuous." In late April 1990, Warner Brothers apparently sought to film the climactic scene from "Bonfire" in the federal courthouse in Newark, but the request was denied for reasons not disclosed in the record. Warner Brothers then contacted officials in several New Jersey counties possessing old courthouses (including Ocean and Somerset Counties, but not Essex County) about filming the scene in their county courthouses. Those officials, consistent with the established policy, contacted the Chief Justice's office, and Chief Justice Wilentz turned down Warner Brothers' request.
In the scene in question, the trial judge (portrayed by African-American actor Morgan Freeman) dismisses an indictment against the main character, an upper-middle-class white man accused of running over a young black man with a car, and thereby provokes the predominantly black audience to riot over the racism of the criminal justice system and to chase the judge and the defendant from the courtroom. According to Chief Justice Wilentz's later press release and affidavit, he based his denial of the filming request on his beliefs that African-Americans might resent the state judiciary's having supplied the setting for the scene, and that his approval might "seriously undermine" the black community's "already vulnerable" confidence in the state judiciary. He specifically cited the scene's portrayal of black people "acting in a riotous, lawless and life-threatening manner" and its depiction of them "in the worst possible stereotype."
Theodore Fetter, Deputy Director of New Jersey's Administrative Office of the Courts, notified Warner Brothers of the rejection on April 30, 1990, although he may not have told Warner Brothers exactly why permission was denied. Warner Brothers contacted Fetter several times to seek reconsideration of the Chief Justice's decision, and at one point even offered to pay a higher than normal fee or to make a sizeable charitable donation. Fetter repeatedly advised Warner Brothers that the decision was final, although the record does not make clear whether Warner Brothers understood that the decision applied to all New Jersey state courthouses.
In any event, Warner Brothers soon thereafter contacted then-Essex County Executive Nicholas Amato and sought to film the same courthouse riot scene in the old Essex County Courthouse in Newark. Warner Brothers was under time pressure to film the scene right away because Freeman had other, upcoming dramatic commitments, which Warner Brothers was contractually obligated to respect. Warner Brothers therefore agreed with County Executive Amato to donate $250,000 (far in excess of the County's normal fees) to the Essex County Courthouse Restoration Fund for the right to film at the courthouse on evenings and weekends beginning May 9, 1990. Apparently, Warner Brothers did not advise Essex County of the Chief Justice's earlier ruling. On May 8, 1990, County Executive Amato notified Essex County Assignment Judge Burrell I. Humphreys of the request and agreement. Judge Humphreys, following the official policy, notified Chief Justice Wilentz, who instructed Judge Humphreys to reject the request. The Chief Justice also directed Judge Humphreys to enjoin filming of that scene in the courthouse, the order to be enforceable by the sheriff.
The injunction proved unnecessary because Warner Brothers general counsel John A. Schulman notified Judge Humphreys by telephone that Warner Brothers would film the scene in New York beginning that night instead, which it did. Despite the apparent mootness of an injunction against Essex County, the County nonetheless obtained a hearing before Judge Humphreys, where the County argued that the Chief Justice's actions violated the First Amendment and were capable of repetition, yet would evade review with respect to further scenes from the same film. Because the County had yet to notify the state judiciary of any further filming requests, Judge Humphreys found the injunction issue before him (relating to that evening's filming) moot. He suggested that if Essex County remained aggrieved it should file a declaratory judgment action in due course.
A public uproar ensued. County Executive Amato complained to the press about Chief Justice Wilentz's actions, and the Chief Justice responded with a public statement defending what he did.*fn3 Nevertheless, on May 11, 1990, Warner Brothers requested permission to film a different scene at the old Essex County Courthouse. In this scene, a continuation of the courthouse riot scene, the main character escapes from the rioting mob along with the judge. Chief Justice Wilentz advised Warner Brothers that it could film the parts of the escape scene that did not depict a rioting black mob, but that it would have to film the rest of the scene (containing such depictions) elsewhere. He issued another press release explaining his decision.*fn4 Warner Brothers then proceeded to shoot the escape scene elsewhere.
On May 16, 1990, the County brought this action under 42 U.S.C. § 1983 (1988) in the District Court for the District of New Jersey. The County averred that the Chief Justice had violated the First Amendment and sought both damages and declaratory or injunctive relief. The next day, the Chief Justice created an advisory committee (known as the Martin Committee, after its chairman, Judge Ralph Martin) to recommend a policy on commercial filming in county courthouses. In the interim before the committee completed its study, commercial filming was suspended. On July 5, 1990, the Martin Committee reported, recommending that policies regarding off-hour filming be left to county option without statewide content restriction, thereby removing the state judiciary from the process altogether.
On October 18, 1990, the Chief Justice agreed with the recommendation to remove the state judiciary from the process but rejected the county option recommendation; instead he established a statewide nonjudicial committee to handle filming requests. He specifically included content guidelines, instructing the permit committee to deny permission for courthouse use "if it finds that granting permission poses a significant risk of loss of confidence in the judiciary or of diminishing the public's respect for the courtroom or courthouse as a symbol of the rule of law, or of the values served by a judiciary." Particularly noted as posing such risks were pornographic films (legally obscene or not), "films that concern highly controversial current issues, upon which the public may be divided into severely antagonistic groups," partisan political films, and films so offensive to particular groups as to threaten their confidence in the judiciary (including those with "a devastating stereotype of a racial, ethnic, or religious group"). The Chief Justice stated that he would review the committee system after one year.
On October 24, 1990, the County moved for summary judgment. On October 26, 1990, the Chief Justice cross-moved, seeking dismissal of the complaint because (1) the County lacked standing to raise all its claims or (2) the damages claim was barred by the Eleventh Amendment and by immunity doctrines under 42 U.S.C. § 1983 (1988), while the declaratory and injunctive claims were moot. In the alternative, the Chief Justice moved for summary judgment on all claims on the ground that his actions did not violate the First Amendment.
On December 18, 1990, the district court ruled on the motions in a written opinion. See Amato v. Wilentz, 753 F. Supp. 543 (DNJ 1990). The court first held that Essex County had third party standing to assert Warner Brothers' First Amendment rights. Id at 549-51. It also ruled that the claims for prospective relief were not moot, even though the filming of "Bonfire of the Vanities" was complete and the Chief Justice had established a new permit system, which the County had expressly declined to challenge. Id at 551-52. ...