dissenting.
I respectfully dissent from the majority opinion because the discriminatory activities of DFI in refusing a booth at the Great *302Pumpkin Festival to Capital Area Right to Life, Ine. constituted impermissible state action and as such is a clear denial of the constitutional right of free speech.
The majority opinion notes that we must look for guidance to Heffron v. International Society For Krishna Cons., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981), and then states that it considers the issue before this Court as the opposite side of the same coin. The majority opinion proceeds to interpret “content-neutral” in a rather novel manner in which the use of the public square was regulated by DFI so as to discriminate. It is an illusion to claim that those who were denied the right of a booth could freely circulate in the mall area and consequently their free speech rights were not abridged. Certainly such a contention begs the question. Anyone could exercise free speech in the public square; the discrimination lies in the prohibition to fully participate with a booth in the festival. It is obvious that the application of the policy by DFI was not even-handed and was discriminatory with no legitimate relationship to any proper public policy.
Unfortunately, the majority opinion has totally misunderstood Heffron, supra, and misapplied it to this situation. Candidly, the majority opinion admits that its interpretation of Heffron is the “opposite side of the same coin.” However, Heffron was a case where the United States Supreme Court, in unmistakably clear language, reversed a decision by the Minnesota Fair Board which would have restricted Krishna to their booth. Clearly all the parties in that case accepted the fact that the Krishna had a right to have a booth at the fair. The only legal issue was the right to restrict the Krishna participants from leaving the booth and walking around through the crowd. The Supreme Court determined that the state fair rule did not violate the First and Fourteenth Amendments because there was a defined standard for participation by means of circulation in the crowd and that the group was not denied the right to arrange for a booth and distribute literature or solicit funds from such a location.
In this case, the right to fully participate by means of a booth was denied by DFI although the majority opinion generously allows CARTL members to walk through the festival and exercise free speech without supervision or restriction.
To say that an individual enjoys freedom of speech except as to the question of the content of the speech is contradictory to the real meaning of the First Amendment. It is similar to saying you have a right to free speech as long as the state can control what you say. Such an analysis is seriously flawed.
The majority opinion may be sincere in stating that “CARTL and its counterparts were free to walk about the mall and exercise their free speech without any supervision or restriction from DFI.” It is a non sequitur to say that DFI only denied a permit for booth space and not the right to engage in what it calls “controversial speech.”
If the state has a right to examine the content of speech and to deny its free exercise simply because it denies the free exercise of others, then free speech means nothing. This ease is only about free speech. It is not about abortion.
In this case there is no record of any disturbance or controversy. Consequently there is no factual, legal or logical basis in the record on which DFI could deny a booth permit to any of the groups requesting booth space. There is no evidence of disorder or even a record of any single complaint. Considering the vague unspecified generalities on which DFI bases its discriminatory behavior, one could only conclude that it is simple, unadulterated censorship. The rhetoric of the majority opinion cannot dispel this simple unvarnished fact.
The majority opinion has stumbled over the threshold of free speech and has fallen into the morass of a misinterpretation of the term “content-neutral.” Apparently, the opinion cannot get up. The neutrality of the standards governing the licensing authority must be objective, definite and nondiscriminatory. See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). It is the regulation that must be content-neutral rather than a direct inquiry into the nature of the speech. The content is important only as it relates to a *303significant government interest in maintaining orderly crowd movement or the public health or safety. Any restriction on free expression should not be overly intrusive. Perhaps this is a difficult concept to grasp, but it is most important in determining the right to free expression.
When public property is used to promote a public purpose such as revitalization, the fact that the government is involved requires open access to all the public. An entirely private fund and entertainment festival or promotion is free to do as it chooses, but that is not so when government funds or public property is involved. It has been held that the lease of a city convention hall is not state action and that a private entity could refuse to allow the press and supposedly the public into the convention hall. Cf. NBC v. Communications Workers of America, 860 F.2d 1022 (11th Cir.1988).
The decision of DFI to ban CARTL’s booth was not content-neutral, rather it was entirely content-based. It amounts to simple prior restraint or censorship. It is based on what is said while totally ignoring the right to say it.
The analysis provided by the majority opinion might well be thought of by Kentucky legal scholars as an excellent example of true judicial activism. The issue of content-neutral was only marginally discussed in either briefs, trial or appellate court. DFI, in its brief, states that Heffron, swpra, is not on point because the Minnesota action was obviously state action. The majority opinion clearly admits several times that the festival committee qualified as a “state actor.” It states “we agree with ... the dissenting opinion” that DFI qualifies as a state actor.
The facts are very critical to a complete understanding of this case. Downtown Frankfort, Inc. is a nonprofit corporation whose exclusive purpose is the revitalization and promotion of the downtown Frankfort area as a business and commercial center and as a desirable place for people to live, work, shop and visit. The record indicates that DFI organizes various public events on the city streets and sidewalks and the city-owned St. Clair Mall.
The event in question is named “The Great Pumpkin Festival” and was held October 27, 1990. DFI sponsored the same festival in 1989 and an affidavit from the secretary of the organization indicates that the permission received from city government to use the mall area was to hold “Great Pumpkin” activities and to allow vendors, civic groups and others to set up sales and informational booths. Capital Area Right to Life received permission from DFI to participate in the 1989 event and set up a booth. The record is devoid of any incident or disturbance of any kind relating to the Right to Life booth. An affidavit in the record indicates that a similar festival entitled “Dog Days” was sponsored by DFI in August of 1990 and CARTL was denied a booth. However, two months prior to the Pumpkin festival, DFI’s President Gray indicated that Right to Life would be welcomed “with open arms” at future events. The record indicates that DFI placed an ad in the local newspaper, The State Journal, soliciting participation from various civic organizations by means of booth rental. When CARTL applied for a booth, DFI’s president denied the request as “too controversial.”
On October 2, 1990, the DFI Board of Directors adopted a festival policy which reserved to it “the right to deny participation to any display or merchandiser deemed inappropriate to that theme and purpose” which was fun and entertainment. At the same meeting DFI again denied CARTL’s request for a booth on the basis that such participation was inconsistent with the new festival policy.
In 1990, DFI was primarily funded with public money from the City of Frankfort, the Franklin County Fiscal Court and the Kentucky Heritage Council and some membership dues. Members of the board at that time included officials from the city, county and Heritage Council.
The festivals sponsored by DFI are held exclusively on public property, either a mall, sidewalk or city streets. Apparently no written permit was ever issued by the city to DFI.
Other critical facts involve a dispute between counsel at oral argument as to whether the CARTL advocates were orderly or *304otherwise. There is nothing in the record indicating any disruption of any activity. The statements by DFI that CARTL is too controversial are vague and undocumented. At oral argument, counsel for DFI admitted that there had been no record kept of any of the alleged complaints. In fact, DFI does not assert that there was any disorder, only that the group was “too controversial” and “inappropriate.” CARTL maintains that it distributed 200 balloons and had available literature and other information in 1989. DFI contends that the CARTL activities were bothering some people attending the festival. Again, the record is totally silent as to any question of disorder or disruption.
As conceded by the majority opinion, DFI was a state actor. Certainly, totally private conduct, whether discriminatory or even wrongful, is not prohibited by the Fourteenth Amendment to the Federal Constitution. Anyone who engages in a purely private activity does not invade individual rights unless the State becomes involved to some significant extent. Cf. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). However, private persons and entities may be held to be state actors where the alleged infringement of a right is fairly attributable to the State. West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).
There have been various tests applied to state action. The functional approach has been most recently noted in Georgia v. McCollum, 505 U.S.-, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). It is interesting to note that although this case was decided on the basis of a summary judgment, the United States Supreme Court in Edmonson v. Leesville Concrete Company, 500 U.S.-, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), held that the issue of whether private conduct constitutes state action is a factual inquiry. The seemingly simple question of ascertaining whether any private individuals become state actors can result in a complex legal situation. Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967) stated that the effort to determine “neutral principles” in the area of government action was an impossible task.
Any extension of the philosophy unwittingly expressed by DFI in this situation could possibly exclude a booth by an environmental group, the NAACP or a church with religious articles of any kind on display or any literature connected therewith. Certainly, I doubt the State can justify restrictions that exclude anyone on the basis of race, gender, religion or free speech simply by delegating a governmental function to a private entity or by permitting a private party to assume a governmental function.
It would appear that DFI has perhaps unthinkingly subjected individuals and other groups to a prior restraint on any participation at a public event on public property. Surely the State cannot selectively exclude individuals or groups from participating in public activities based on a subjective determination that such an individual or group is “inappropriate” to its theme or purpose or that it is “too controversial” without any supporting evidence and without any record of previous disturbance. Obviously the question becomes what is inappropriate and who determines what is inappropriate.
When it is decided that an individual or group cannot fully participate in a public event then the use of State property as a traditional public forum for the exercise of the fundamental right of free speech is dramatically restricted. Legitimate First Amendment rights have been infringed. Cf. Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975).
Once the majority opinion recognizes that DFI engaged in state action, the ultimate decision should be obvious. The right to freedom of expression and free speech by means of participation in the festival with a booth should be clear. Such a right should be held by any group in the absence of some obvious danger to public safety or health. The record here discloses no such danger. Any group would enjoy the same right to free expression. The public enjoys the right not to listen to the message of any group, but that is the right of the individual and the State may not suppress the message.
*305In Heffron, there was no dispute that Krishna was entitled to a booth at the Minnesota State Fair. CARTL repeatedly argues that the booth was a “given”. The United States Supreme Court observed that space at the Minnesota fair was rented in a nondis-eriminatory fashion, on a first come/first served basis and that this allocation applied alike to nonprofit, charitable and commercial enterprises. The method of allocating space in Heffron, supra, was not open to the kind of arbitrary allocation that the U.S. Supreme Court has condemned as inherently inconsistent with a valid time, place and manner regulation. However, such discretion has the potential for becoming a means of suppressing a particular point of view.
Heffron correctly notes that valid time, place and manner restrictions on the exercise of First Amendment rights must serve a significant governmental interest and may not be based on either the content or subject matter of the speech. (Emphasis added.)
The seeming assumption by DFI that they can exclude everyone from expressing their First Amendment rights is without any foundation in law. Although it may be unintentional it is a clear abridgement of the right to free speech.
The United States Supreme Court noted in Heffron that:
These nonreligious organizations seeking support for their activities are entitled to rights equal to those of religious groups to enter a public forum and spread their views, whether by soliciting funds or by distributing literature.
452 U.S. at page 653, 101 S.Ct. at page 2566, 69 L.Ed.2d at page 309.
It should be clear that when a private party acting as the State, sponsors an event open to the general public on public property, it cannot exclude certain participants on the basis of a vague, standardless policy. The First Amendment protects expressions of speech in public places whether such expressions are popular or unpopular. It does not require citation for the court to recognize that free speech rights have been accorded to draft resisters and flag burners. Certainly the distribution of balloons and literature would seem not to be disruptive in any fun and entertainment festival.
This situation is very close to the establishment of a policy that determined who could use public property and be included in full participation in public events similar to that denounced in Citizens to End Animal Suffering and Exploitation, Inc. v. Faneuil Hall, 745 F.Supp. 65 (D.Mass.1990). In that case, Faneuil Hall leased the marketplace from the City of Boston and refused to permit a citizen’s group to distribute literature and protest inhumane treatment of calves. Faneuil Hall was found to have engaged in state action and to have infringed on the group’s right to free speech.
It has long been recognized that any regulation of First Amendment rights must be content-neutral and narrowly tailored to serve a significant governmental purpose or interest. Cf. Perry Education Assn. v. Perry Local Educators Assn., 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Here the restrictions placed by DFI are neither content-neutral nor narrowly tailored. Participation was denied to anyone whom DFI thought to be inappropriate.
There are innumerable cases relating to the limitation of the state or anyone acting on its behalf to restrict free expression. The cases cover almost every possible human activity. A brief sampling include the following:
Government has no power to restrict expression because of its message, its ideas, its subject matter or its content ...
Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972).
When the regulation is based on the content of speech, governmental action must be scrutinized more carefully to ensure that communication has not been prohibited merely because public officials disapprove of the speaker’s view.
Consolidated Edison Company v. Public Service Commission, 447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980), quoting Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267 (1951).
*306We have consistently rejected the suggestion that a government may justify a content based prohibition by showing that speakers have alternate means of expression.
Consolidated Edison, supra.
To preserve civility is one thing; to insist that all dialogue proceed on a model of an ordered meeting should be quite another.
Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284, Reh. Denied 404 U.S. 876, 92 S.Ct. 26, 30 L.Ed.2d 124 (1971).
Legal writers have also expressed their views on this subject as follows: The autonomy of the individual and of the press from government’s content based restriction is thus nearly absolute. Lawrence H. Tribe. American Constitutional Law § 12-8 at page 836, Second Edition, 1988, and the constitutional guarantee of free speech should not be avoided by government action which seeks to attain that unconstitutional objective under some other guise. Tribe, supra.
In a separate concurring opinion, Justice William O. Douglas of the United States Supreme Court in Mulkey, supra, stated in regard to an anti-discrimination statute involving real property that a provision that is a form of sophisticated discrimination in which the people harness the energy of private groups to do indirectly what the state cannot do should be condemned.
North Shore Right to Life Committee v. Manhasset American Legion, 452 F.Supp. 834 (E.D.N.Y.1978), is similar to this case. There, members of the right to life group sought permission to march in a Memorial Day parade sponsored by the American Legion to be held on the public streets. The group was denied a permit. The Federal district court held that the First and Fourteenth Amendment require that a parade permit be issued.
Although DFI disputes the validity of North Shore, supra, it was followed in Gay Veterans Association, Inc. v. American Legion, 621 F.Supp. 1510 (S.D.N.Y.1985); Rabino v. City of Mt. Vernon, 563 F.Supp. 907 (S.D.N.Y.1982); and Abel v. Town of Orangetown, 759 F.Supp. 161 (S.D.N.Y.1991).
An excellent discussion of this entire question can be found in Irish Subcommittee v. Rhode Island Heritage Commission, 646 F.Supp. 347 (D.R.I.1986). In that case the Rhode Island Heritage Commission sponsored and funded a festival on city property with booths and tables for various ethnic groups. An organization interested in assisting Northern Irish people had participated two times in the past without incident. In 1985 the Rhode Island Heritage Commission refused further participation because they determined that the group was too political. The Federal district court issued a summary judgment in favor of Irish Northern Aid and allowed them to participate in the event with a booth. The district court held that political speech was entitled to First Amendment protection; that the function was on public property and that the booth was no less a public forum than the lawn beneath it to which access could not be restricted; and that the Rhode Island Commission’s regulation was a content-based restriction of speech lacking compelling justification.
The district court went on to note that public inconvenience, annoyance and even unrest can never justify curtailment of speech in a public forum. Here, although DFI argues that the CARTL presence was disruptive there is no evidence in the record of any such disruption, let alone a compelling justification.
The Irish Subcommittee noted in pertinent part:
Government officials may not restrict access to a public forum merely because they disagree with the views to be expressed there ... There is always a great danger that the standards for official approval will serve only as a mask behind which the government hides as it excludes speakers from the public forum solely because of what they intend to say.
646 F.Supp. at 357.
DFI’s argument is that their interest in the fun and entertainment theme is sufficient justification for its exclusionary policy. A similar contention was previously rejected in Toward a Gayer Bicentennial Committee v. Rhode Island Bicentennial Foundation, 417 F.Supp. 632 (D.R.I.1976). In that case the *307Rhode Island Foundation denied use of state property to the Gayer Committee during bicentennial events. The Rhode Island Commission’s standard was based on programs that were “tasteful, appropriate and suitable.” The Gayer Committee did not pass these tests but the U.S. District Court allowed them to participate fully in the event.
I would sharply differ with any implication that might be taken from the majority opinion that there is no difference between the federal and state constitutions. I believe that such an implication would be incorrect.
This case was entirely decided on the application of Federal law. However, it would appear that the decision of the trial court was erroneous because the conduct of DFI clearly violates the Kentucky Constitution.
Section 1 of the Bill of Rights guarantees to all people of Kentucky “The right of freely communicating their thoughts and opinions.” Section 8 provides “Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.” If the Kentucky Constitution had been invoked, it would appear that there is an even greater protection for the right of free speech than that provided in the United States Constitution.
Although it may be totally unintentional, DFI is clearly open to a charge of prejudice by relying on the vague standard they have adopted. This policy would seemingly permit DFI to exclude anyone from the use of public property if deemed inappropriate or if thought too controversial. Clearly this has an incredibly chilling effect on the First Amendment and other freedoms that should not be tolerated, particularly where public money, public purpose, public property and public attendance are significant factors.
Moving to a purely procedural and legal approach, it was error for the trial judge to grant summary judgment to DFI and fail to grant a temporary injunction to CARTL. Under the principles established by the U.S. Supreme Court, DFI engaged in state action and as a result, CARTL’s constitutional right to free speech was infringed. DFI was a state actor whose broad and vague regulations were not content-neutral but were content-based and the application of the DFI policy violated the First Amendment to the Federal Constitution.
There were significant questions of fact that were not resolved in the summary judgment proceedings pursuant to Steelvest v. Scansteel Service, Ky., 807 S.W.2d 476 (1991). A movant should not succeed unless the right to judgment is shown with such clarity that there is no room for controversy.
In any event CARTL was entitled to in-junctive relief under Maupin v. Stansbury, Ky.App., 575 S.W.2d 695 (1978) because there was irreparable injury in the loss of First Amendment rights even for a minimal period of time. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). The failure to obtain preliminary relief through injunction resulted in the complete and permanent denial of CARTL’s opportunity to participate in the festival. Clearly, such injury is irreparable. The issuance of a temporary injunction was absolutely necessary to maintain CARTL’s right pending a full decision on the merits and a substantial claim to a personal right of free speech was alleged. Cf. Commonwealth ex rel. Cowan v. Wilkinson, Ky., 828 S.W.2d 610 (1992).
Here DFI clearly focuses on the content of the speech and as a result the State has engaged in a prior restraint. It doesn’t matter that everyone is excluded. It only matters that anyone is excluded. The decision of DFI is not content-neutral, it is content intensive. The decision was entirely based on content.
I would reverse the decision of the Court of Appeals and the trial court.
LAMBERT, J., joins this dissent.