City of Seven Hills v. Aryan Nations

667 N.E.2d 942, 76 Ohio St. 3d 304
CourtOhio Supreme Court
DecidedAugust 14, 1996
DocketNo. 95-730
StatusPublished
Cited by21 cases

This text of 667 N.E.2d 942 (City of Seven Hills v. Aryan Nations) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Seven Hills v. Aryan Nations, 667 N.E.2d 942, 76 Ohio St. 3d 304 (Ohio 1996).

Opinions

Cook, J.

This case presents the single issue of whether the permanent injunction’s prohibition on simultaneous picketing by groups with opposing viewpoints violates the United States Constitution’s guarantee of free speech.1 Seven Hills does not appeal the ruling that the ordinance was unconstitutional, nor does Weiss challenge the injunction’s registration requirements, time restrictions, or limitation on the number of picketers. For the following reasons, we reverse the [306]*306court of appeals and find that the trial court abused its discretion in completely banning simultaneous expression of contrary views.

It is well settled that picketing is a “pristine and classic” exercise of First Amendment freedoms, Edwards v. South Carolina (1963), 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697, 707, striking at the core of our nation’s commitment to the principle that “debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan (1964), 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686, 701. While citizens do not enjoy the absolute right to free speech, neither does the state enjoy the absolute right to regulate speech. Rather, the degree to which a state may regulate speech depends upon the place of that speech. Frisby v. Schultz (1988), 487 U.S. 474, 479, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420, 428, citing Perry Edn. Assn. v. Perry Local Educators’ Assn. (1983), 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794, 804. In this case, the picketing takes place on the street in front of Demjanjuk’s home, a traditional or “quintessential” public forum regardless of its physical narrowness and residential character. See Frisby, 487 U.S. at 481, 108 S.Ct. at 2500, 101 L.Ed.2d at 429.

The constitutionality of restrictions on speech in a public forum is measured by whether the particular restriction is content-based or content-neutral. Perry Edn. Assn., 460 U.S. at 45, 103 S.Ct. at 955, 74 L.Ed.2d at 804. Content-neutral speech restrictions are those that are “ ‘justified without reference to the content of the regulated speech.’ ” Ward v. Rock Against Racism (1989), 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661, 675, quoting Clark v. Community for Creative Non-Violence (1984), 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221, 227; Boos v. Barry (1988), 485 U.S. 312, 320, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333, 344. On the other hand, restrictions that focus on the direct impact of the speech on its audience are properly analyzed as content-based. Boos, 485 U.S. at 321, 108 S.Ct. at 1163-1164, 99 L.Ed.2d at 344.

In determining whether a restriction is content-based or content-neutral, our primary consideration is the purpose of the restriction. Madsen v. Women’s Health Ctr., Inc. (1994), 512 U.S. -, -, 114 S.Ct. 2516, 2523, 129 L.Ed.2d 593, 606; Ward, 491 U.S. at 791, 109 S.Ct. at 2753-2754, 105 L.Ed.2d at 675. In Madsen, the court held that an injunction which restricted speech by antiabortion picketers was not content-based because it was premised on that group’s repeated violations of court orders. 512 U.S. at -, 114 S.Ct. at 2523-2524, 129 L.Ed.2d at 606. Because the restrictions were remedial in nature and thus incidental to the speech, the court determined that the injunction was content-neutral. Id. We find that the prohibition on simultaneous picketing by groups with opposing viewpoints in the present case focuses directly upon the impact the speech will have on its audience rather than on the prior misconduct of the speakers. Therefore, we analyze this injunction as content-based.

[307]*307Seven Hills sought the prohibition at issue because of the potential for serious problems if two antagonistic groups, such as the KKK and the CJC, demonstrated simultaneously. The primary justification for seeking this portion of the injunction was Seven Hills’ fear of a hostile reaction among listeners. The speech restriction in this case is directly related to the speech’s impact on listeners rather than being incidental to the purpose. “Listeners’ reaction to speech is not a content-neutral basis for regulation.” Forsyth Cty., Georgia v. Nationalist Movement (1992), 505 U.S. 123, 134, 112 S.Ct. 2395, 2403, 120 L.Ed.2d 101, 114, citing Boos, 485 U.S. at 321, 108 S.Ct. at 1163, 99 L.Ed.2d at 344.

Moreover, the prohibition on counterdemonstration in the present case is not based on the prior misconduct of the parties, as was the content-neutral injunction in Madsen. Here, there have been no arrests, no threats of arrest, no violence, no injuries, and no violations of the temporary or preliminary injunctions. To the contrary, the KKK and CJC have engaged only in peaceful picketing. Rather than being a remedial injunction to correct past misconduct, the injunction in this case is prospective, applying to all groups regardless of past conduct.

This content-based injunction may also be properly characterized as a prior restraint upon speech. See Northeast Women’s Ctr., Inc. v. McMonagle (C.A.3, 1991), 939 F.2d 57, 63. “The term prior restraint is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’ M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4r-14 (1984) (emphasis added). * * * [Pjermanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints.” Alexander v. United States (1993), 509 U.S. 544, 550, 113 S.Ct. 2766, 2771, 125 L.Ed.2d 441, 450.

Having determined that the injunction in this case is a content-based restriction in a public forum, we now turn to the standard to apply in determining whether it is a constitutionally permissible restriction. We initially note that a prior restraint on speech carries a “ ‘heavy presumption’ against its constitutional validity.” Organization for a Better Austin v. Keefe (1971), 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1, 5; New York Times Co. v. United States (1971), 403 U.S. 713, 723, 91 S.Ct. 2140, 2146, 29 L.Ed.2d 822, 830. Content-based restrictions in a public forum are also subjected to the most exacting scrutiny. Boos, 485 U.S. at 321, 108 S.Ct. at 1164, 99 L.Ed.2d at 345. To be victorious, Seven Hills must show that the “regulation is necessary to serve a compelling state interest and * * * is narrowly drawn to achieve that end.” Perry Edn. Assn., 460 U.S. at 45, 103 S.Ct. at 955, 74 L.Ed.2d at 804.

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Cite This Page — Counsel Stack

Bluebook (online)
667 N.E.2d 942, 76 Ohio St. 3d 304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-seven-hills-v-aryan-nations-ohio-1996.