(dissenting):
I respectfully dissent. I would reverse the trial court’s grant of summary judgment to the City of Myrtle Beach and affirm the grant of summary judgment to Smith, the City Manager, and Stone, the Convention Center Director.
The defendants concede at the outset that the painting is not obscene, and was not determined to be so when Todd was told to close his exhibit or remove the painting. Yet, speech need not be adjudged obscene to be regulated. Before determining whether Todd’s painting was permissibly regulated, however, other thresholds should be crossed.
In Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. (2d) 611 (1978), the United States Supreme Court held for the first time that a municipality is a “person” subject to liability under Section 1983 for violating another’s federally protected rights. To state a cause of action against a municipality under Section 1983, a plaintiff is required to plead three elements: (1) an official policy or custom (2) that causes the plaintiff to be subjected to (3) a denial of a constitutional right. Moore v. City of Columbia, 284 S.C. 278, 326 S.E. (2d) 157 (Ct. App. 1985). A municipality may only be held liable under Section 1983 if the action complained of was taken pursuant to official policy. Also, the municipal policy must be the “moving force of the constitutional violation.” Polk C. v. Dodson, 454 U.S. 312, 326, 102 S. Ct. 445, 454, 70 L. Ed. (2d) 509 (1981). Thus:
a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, *233whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury the government as an entity is responsible under § 1983.
Monell, supra, 436 U.S. at 694, 98 S. Ct. at 2037-38.
Todd contends the acts of Carey Smith and Mack Stone represent official policy and thus give rise to liability for the City of Myrtle Beach. The circuit court ruled that Smith and Stone lacked authority to set City policy, since the City had adopted the council/manager form of government in which the determination of policy is vested in the City Council. On this ground, he ruled Todd’s § 1983 action must fail. I disagree.
Under Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 89 L. Ed. (2d) 452 (1986), it is clear that municipal liability may be imposed for a single decision by municipal policy makers under appropriate circumstances. Further, in Moore v. City of Columbia, our Court of Appeals stated:
The policy need not be one officially adopted and promulgated by the municipality’s officials----
The de facto policies of a municipality may be established in several ways. They may be established by the omissions of a municipality or supervisory officials where their unreasonable failure to make rules causes the unconstitutional conduct practiced by their employees. Such omissions are actionable, however, only if they constitute “tacit authorization” of or “deliberate indifference” to constitutional violations.
284 S.C. at 284, 326 S.E. (2d) at 160-161. (citations omitted).
In my opinion, the evidence presented before the lower court appears to indicate this standard was satisfied by Todd, as is demonstrated by the following transcript excerpt.1
Q. Was this decision made by you and Mr. Stone?
A. Yes.
Q. So this decision was made by you? He was carrying out your order to close down the show?
*234A. Yes.
Q. Did you clear this with the city?
A. Well, what do you mean by “clear”?
Q. Well, did you ask them for their input and their thoughts on what should be done?
A. Yes.
Q. And who did you talk to?
A. I did discuss it with them in general terms. Of course, by that time, there was a lot of publicity in the newspapers and the radio and the television and that sort of thing. So they were generally aware of what had happened. We basically, my recollection is, talked to them individually and told them what we were going to do, what we thought was best to do in the situation.
Q. Did they concur with that?
A. No one really said — and, of course, the council would have had to have acted as a body to have told me, you know, “Don’t do this.” And if they had done that as a body, then I would not have done it. But they did not give me any such instructions.
A. Did you talk with Mayor Ficken?
A. I’m sure that I did, yes.
Q. He concurred that it should be removed or closed down?
A. I don’t recollect, you know, his specific reaction. What I do recollect, though, is that I was not given any instruction. The council was aware of what we were going to do and we were not given any instruction to the contrary as to not to do what we planned.
(Tr. 118-120). I would find the above excerpts from the record sufficient, were they to consist of the sole evidence on the issue, to demonstrate a “policy” of the City of Myrtle Beach creating liability.
*235“A municipal governing body may not avoid attribution of policy to itself simply by officially retaining unexercised ultimate authority to countermand a policy or to discipline or discharge the policymaker.” Spell v. McDaniel, 824 F. (2d) 1380 (4th Cir. 1987). “If a higher official has the power to overrule a decision but as a practical matter never does so, the decision-maker may represent the effective final authority on that question.” Bowen v. Watkins, 669 F. (2d) 979 (5th Cir. 1982). Here, while the City did not implement in a formal manner its policy of excluding offensive but non-obscene speech from the inner lobby of the Convention Center, it, on the record before this Court, appears to have done so through the use of lesser agents of the City, viz., Smith and Stone, and through its acquiescence in their actions and decisions.
However, the lower court’s ruling would still be upheld if no violation of Todd’s constitutional rights took place. The City argues it is free to regulate speech on its own property in a manner it chooses. The City rightly concedes that traditional areas of public assembly and debate such as streets and parks are public forums in which the State may not, due to First Amendment protections, prohibit all communicative activity. It argues the inner lobby is not a public forum.
In a traditional public forum such as a street or park:
[f]or the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.
Perry Educ. Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 45, 103 S. Ct. 948, 955, 74 L. Ed. (2d) 794 (1983) (citations omitted). As for other public property, it is true that the “First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” United States Postal Serv. v. Council of Greenburgh Civic Ass’ns., 453 U.S. 114, 129, 101 S. Ct. 2676, 2684, 69 L. Ed. (2d) 517 (1981). However, where the State (or City) designates *236public property for expressive activity, the respective First Amendment rights of the State and individual change.
When the State has opened public property as a place for expressive activity:
[t]he Constitution forbids a State to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling State interest.
Perry, supra, 460 U.S. at 45, 46, 103 S. Ct. at 955. Furthermore, a limited public forum may be designated by the State for use by certain groups or for the discussion of certain subjects. Perry, supra, 460 U.S. at 46, n. 7, 103 S. Ct. at 955 n. 7. See also Widmar v. Vincent, 454 U.S. 263, 102 S. Ct. 269, 70 L. Ed. (2d) 440 (1981).
Myrtle Beach argues it has not designated the inner lobby of the Convention Center as even a limited public forum because it has always maintained control of the kind of expression allowed into the inner lobby. On the record, I must disagree. The record reflects Myrtle Beach allowed the Guild to police itself and took no part whatsoever in restricting, regulating, or screening speech. The Guild members in charge could just as easily have asked Todd to exhibit more works like “Narcissus” as it could have asked him to remove the painting, and Myrtle Beach’s policy was to simply trust the Guild. This amounts to an abdication of any restrictions in my view, and I would hold that Myrtle Beach designated a limited public forum in the inner lobby for Guild members who express themselves through art.
Having found a limited public forum to exist, and in light of the obvious fact that Todd’s painting was restricted because of its content, I would proceed to apply the test articulated in Perry, supra, viz.: was the restriction of Todd’s speech (i.e., his painting) “narrowly drawn to effectuate a compelling State interest”? First, I address whether the City has shown *237a compelling interest warranting the speech restriction. The United States Supreme Court has recognized a compelling State interest in protecting minors from exposure to vulgar and offensive spoken language. FCC v. Pacifica Found, 438 U.S. 726, 98 S. Ct. 3026, 57 L. Ed. (2d) 1073 (1978). The Court has also recognized that children may be protected from sexually explicit speech in the context of a school environment.2 Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. (2d) 549 (1986). The record here reflects the City was concerned with the fact that children might be exposed to the “Narcissus” painting. Even assuming this constitutes a compelling state interest, however, I would hold the City did not “narrowly tailor” its restriction of Todd’s speech. The City should have adopted a less draconian remedy for its concerns than forcing Todd to remove the painting or close his exhibit. I am far from satisfied with the City’s excuse that “negotiations fell through” concerning alternative methods of restricting Todd’s exhibit. The City must demonstrate that it offered various measures, such as placing “Narcissus” in a separate area for adult viewers, that Todd could have taken and which he unreasonably refused; or the City must clearly demonstrate why those .other measures were not feasible. The City utterly failed on this point.
Hence, I would hold that the record indicates the City has, pursuant to a “policy,” infringed upon Todd’s First Amendment rights. I would therefore reverse the lower court’s granting of summary judgment for Myrtle Beach. However, Todd did not seek summary judgment on this basis.3 Thus, I would remand this case for further proceedings regarding the defendant Myrtle Beach. If Todd moved for summary judgment on this ground, the City would of course be then free to place any additional evidence it has before the lower court to negate what, on the record before this Court, appears to be a defacto “policy” of the City.
As for the defendants Carey Smith and Mack Stone, I would affirm the lower court’s ruling that they enjoy qualified *238immunity from suit by virtue of Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. (2d) 396 (1982). In Harlow, the United States Supreme Court held:
government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
Id., 457 U.S. at 818, 102 S. Ct. at 2738. Because this case presents a close question as to whether, inter alia, the inner lobby constitutes a “public forum,” I would hold that Stone and Mack are immune for their actions here under the Harlow decision.4
Chandler, J., concurring, in result, with the dissent, in separate opinion.This excerpt involves the decision made by City Manager Carey Smith to close Todd’s exhibit.
The Fraser ease involved a so-called “captive audience” of children, however — a fact not present here.
Todd moved for summary judgment on the sole ground that an earlier temporary restraining order operated as collateral estoppel against the City. I reject this argument.
Harlow qualified immunity is reserved for government officials, and may not be asserted by the City of Myrtle Beach. See, Flanagan v. Hunger, 890 F. (2d) 1557 (10th Cir, 1989); Bovey v. City of Lafayette, 586 F. Supp. 1460 (N.D. Ind. 1984).