Don Ater v. David Armstrong and Leon E. Jones, Sr.

961 F.2d 1224

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 26, 1992
• Docket: 90-5424
• Status: Published

Opinions

BAILEY BROWN, Senior Circuit Judge.

Plaintiff, Don Ater (“Ater”), appeals from the district court’s grant of summary judgment in favor of Defendants, David Armstrong, Jefferson County, Kentucky Judge/Executive, and Leon E. Jones, Sr., Jefferson County Police Chief.¹ Ater, a Grand Dragon of the Realm of the Kentucky Invisible Empire, Knights of the Ku Klux Klan, sought to distribute political literature while standing on medians or on Jefferson County, Kentucky roadways. Bobby Crouch, who was then Jefferson County Police Chief, denied permission for such'distribution under Kentucky Revised Statutes (“KRS”) section 189.570, and Ater sued, challenging the constitutionality of the statute as interpreted. For the reasons that follow, we affirm the district court’s grant of Defendants’ motion for summary judgment on this issue.

I

During 1987, Ater sought to distribute political literature while standing on medians or on Jefferson County, Kentucky roadways. Where there was no median, Ater planned to use flashing warning lights. Ater sought permission from then Jefferson County Police Chief Bobby Crouch (“Crouch”). On June 30, 1987, Crouch notified Ater that KRS 189.570 prohibited the proposed conduct. Ater contends that then Jefferson County Judge/Executive Harvey Sloane participated in the interpretation of the statute.

As interpreted, KRS 189.570 generally prohibits persons from standing in the roadways, including the medians. Subsection 21, however, carves out an exception to this rule:

No person shall stand on the highway for the purpose of soliciting contributions unless such soliciting is designated by the presence of a traffic control device or warning signal or an emergency vehicle or public safety vehicle as defined in KRS 189.910 making use of the flashing, rotating or oscillating red, blue or yellow lights on such devices or vehicles.

KRS 189.570(21).

During November of 1987, Ater sued Crouch and Sloane in their official capacities, seeking declaratory and injunctive relief under 42 U.S.C. § 1983. He claimed that Defendants’ interpretation and application of the statute violated his speech and association rights guaranteed by the First and Fourteenth Amendments.

Ater moved for partial summary judgment, and the district court denied his motion on November 28, 1989. The district court stated:

When this statute is read in its entirety, it is clear that the legislature chose to have only one exception [i.e., to solicit contributions]. Pedestrians are restricted to the sidewalk if it is available; if not, then to the shoulder. If no shoulder, they must remain as far as practicable from the edge of the road. It seems logical therefore that the statute prohibits standing or walking on the median to distribute literature.²

The district court held that the statute is a content-neutral restriction on speech because the exception, which allows the solicitation of contributions but not the distribution of literature, “is based on the type of activity, not the content or view of the speech.” It further determined that the prohibition is narrowly tailored to serve a significant government interest and that it leaves open ample alternative channels of communication. The district court concluded, based upon these determinations, that the prohibition did not violate Ater’s rights under the First and Fourteenth Amendments.

In response to the district court’s denial of Ater’s motion for partial summary judgment, Defendants moved for partial summary judgment. The district court granted this motion for the same reasons it denied Ater’s motion. Ater voluntarily dismissed with prejudice his remaining claim of selective enforcement and now appeals from the final order of the district court.

II

The issues on appeal may be succinctly framed. No party denies that the distribution of literature is speech protected by the First and Fourteenth Amendments. Defendants contend that the statute imposes a reasonable time, place, and manner restriction that is content neutral, is narrowly tailored to serve a significant government interest, and leaves open ample alternative channels of communication. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989). In response, Ater contends that the prohibition is a content-based restriction that is neither necessary to serve a compelling state interest nor narrowly drawn to achieve that end. See Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420 (1988). Alternatively, Ater contends that even if the prohibition were content neutral, it is not narrowly tailored to serve the state’s legitimate interest in highway safety.

A

We first briefly discuss the nature of the forum at issue. There can be no doubt that the streets of Jefferson County, Kentucky, are traditional public fora. “No particularized inquiry into the precise nature of a specific street is necessary; all public streets are held in the public trust and are properly considered traditional public fora.” Frisby, 487 U.S. at 481, 108 S.Ct. at 2500. The government’s ability to restrict expressive conduct in traditional public fora is quite limited. See United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983).

It is equally clear, however, that the government may impose reasonable time, place, and manner restrictions on protected conduct, even in traditional public fora. Such restrictions comport with the strictures of the First Amendment so long as they (1) are justified without reference to the content of the speech (content neutrality), (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels for communication of the information. Rock Against Racism, 491 U.S. at 791, 109 S.Ct. at 2753. Because Ater concedes the existence of ample alternative channels for communication, the remainder of this opinion is concerned with the first two requirements of the above standard.

B

Ater first contests the district court’s conclusion that the prohibition is content neutral. The Supreme Court has held that, to be content neutral, a restriction “ ‘may not be based upon either the content or subject matter of [the] speech.’ ” Heffron v. Int’l Soc. of Krishna Consc., 452 U.S. 640, 648, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981) (quoting Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980)). The central inquiry with respect to content néutrality is “whether the government has adopted a regulation of speech because of disagreement with the message it conveys,” Bamon Corp. v. City of Dayton, 923 F.2d 470, 473 (6th Cir.1991) (citation omitted), or because of a desire to suppress information. The restriction must apply “even-handedly to all who wish to distribute and sell written materials or to solicit funds.” Heffron, 452 U.S. at 649, 101 S.Ct. at 2564. The restriction, moreover, must not “suffer from the more covert forms of discrimination that may result when arbitrary discretion is vested in some governmental authority.” Id.

The Kentucky statute, KRS 189.570, is content neutral on its face. Because the statute prohibits all parties from distributing literature in the roadways, and because it permits all parties to solicit contributions in the roadways if the precautions prescribed by subsection 21 are undertaken, the statute applies evenhandedly to all those who wish to distribute written materials or solicit funds. For example, both the Ku Klux Klan and the NAACP are barred from distributing their literature to motorists, regardless of their diverse viewpoints or the informational content of their messages. Both organizations, however, could solicit for contributions, provided that each meets the safety requirements set forth in subsection 21 of the statute.

Ater contends, however, that the local officials designated the individuals who have been allowed access to Kentucky’s roadways. This selective designation, Ater contends, is based on the content of the message. We disagree. The statute does not vest the officials with such arbitrary discretion. The statute, as interpreted and applied, provides that all parties are prohibited from disseminating literature but, provided the lighting safeguards of subsection 21 are met, are permitted to solicit contributions. The county officials’ interpretation and application of the statute, therefore, were not based on the content of Ater’s message.³

Ater also contends that a recent opinion of this court undercuts the content-neutral characterization of Kentucky’s disparate treatment of distribution of literature and solicitation for contributions. See Discovery Network v. Cincinnati, 946 F.2d 464, 471-72 (6th Cir.1991). In Discovery Network, we concluded that a Cincinnati ordinance prohibiting the newsrack distribution of “commercial” publications (such as magazines listing real estate for sale), but allowing such distribution of “non-commercial" publications (which had been interpreted and applied to cover newspapers), was a content-based restriction that violated the First Amendment as- incorporated by the Fourteenth Amendment. “The ordinance treats newsracks differently on the basis of the commercial content of the publications distributed.” Discovery Network, at 472.

In contrast, the Kentucky statute that Ater challenges is content neutral. It is aimed at the noncommunicative impact of the conduct (the creation of unsafe conditions on Kentucky’s roadways); it is not motivated by a governmental intent to suppress ideas or information. The ordinance at issue in Discovery Network was facially aimed at the suppression of a particular type of information: that contained in “commercial” publications. The Kentucky statute does not suffer from such a defect.

The solicitation of money and the distribution of literature are two different categories of speech, each of which enjoys protection under the First Amendment. See Heffron, 452 U.S. at 647, 101 S.Ct. at 2563. As this court recently noted:

“A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some ... messages but not others.” (Citation omitted). Regulations that apply to a particular category of speech because the regulatory targets happen to be associated with that type of speech are properly characterized as content-neutral, as long as the regulations are justified without reference to the content of that speech.

Bamon Corp. v. City of Dayton, 923 F.2d 470, 473 (6th Cir.1991) (citing Boos v. Barry, 485 U.S. 312, 320, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333 (1988)). The goal of the Kentucky statute is to promote public safety in the roadways. The officials’ application of the statute was not based on the content of any message.

Finally, the Supreme Court recently discussed a regulation that prohibited solicitation but allowed other expressive conduct. It held that “[cjlearly, the regulation does not discriminate on the basis of content or viewpoint.” United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 3124, 111 L.Ed.2d 571 (1990).⁴ Similarly, the Kentucky statute, which allows solicitation but prohibits other expressive conduct, does not discriminate on the basis of content or viewpoint. Thus, the district court correctly concluded that the statute imposes a content-neutral restriction on speech.

C

Ater also argues that the statute is not narrowly tailored to serve a significant governmental interest. Although he concedes Kentucky’s legitimate interest in the safe and orderly flow of traffic on its roadways, Ater argues that the statute “is so broad in its sweep as to infringe upon speech unrelated to the identified purpose.” He also argues that “the Discovery Network court’s analysis of the ‘reasonable fit’ between Cincinnati’s asserted ends and its chosen means ... is analogous to Ater’s argument....”

In Discovery Network, we cited Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661, for the proposition that a time, place, and manner restriction of speech must be narrowly tailored. Discovery Network, 946 F.2d at 473 n. 14. Rock Against Racism supports the conclusion that the Kentucky statute challenged by Ater, which arguably is underinclusive because it allows the solicitation of funds, meets this requirement:

So long as the means chosen are not substantially broader than necessary to achieve the government’s interest, however, the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative. “The validity of [time, place, or manner] regulations does not turn on a judge’s agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests” or the degree to which those interests should be promoted.

Rock Against Racism, 491 U.S. at 800, 109 S.Ct. at 2758 (emphasis added) (alteration in original) (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 2906, 86 L.Ed.2d 536 (1985)).

The district court held, and we agree, that the Kentucky statute is intended to promote the legitimate goal of safety in the roadways. By prohibiting the distribution of literature in the roadways, the statute eliminates no more activity than was considered necessary. Kentucky’s legitimate interest in safety would support the prohibition of all pedestrian activities on its roadways, even the solicitation of funds, which it has chosen to except from the prohibition. For this reason, we agree with the district court’s conclusion that the statute’s failure to prohibit solicitation of funds in the roadways does not render it unconstitutional. See Rock Against Racism, 491 U.S. at 800, 109 S.Ct. at 2758; Erznoznik v. City of Jacksonville, 422 U.S. 205, 215, 95 S.Ct. 2268, 2275, 45 L.Ed.2d 125 (1975) (problems of underinclusiveness are rarely problems of constitutional magnitude, unless they signify an impermissible discriminatory motive). Although we might question the wisdom of excepting solicitation from the general prohibition, our questions relate to the degree and method that Kentucky has chosen for the promotion of its legitimate interest in safe and uncongested roads.

The dissent contends that the underinclusiveness of the statute raises serious doubts about its true objective and renders it impossible to determine whether the statute targets no more than the source of the evil it seeks to remedy. The Supreme Court has shown great reluctance to make First Amendment-related speculations on the hidden motives of legislative bodies. See United States v. O’Brien, 391 U.S. 367, 383-84, 88 S.Ct. 1673, 1682-83, 20 L.Ed.2d 672 (1968). Although this statute presents an underinclusive remedy, it clearly serves the state’s interest in avoiding traffic congestion and fostering road safety. It cannot be doubted that Kentucky has the power to limit pedestrian activities upon its roadways. We cannot believe, as the dissent apparently would have us hold, that Kentucky prohibited nearly all forms of pedestrian activity upon its roads, excepting only solicitation, because it wished to censor expression. Its reason clearly was safety.⁵

D

The district court also correctly found that there are ample alternative channels of communication, a determination that Ater does not dispute.

Ill

Because we hold that the statute is not an unconstitutional restriction on Ater’s speech, we AFFIRM the district court’s grant of summary judgment in favor of the defendants.

1 . Armstrong and Jones were substituted for Harvey Sloane and Bobby Crouch, who respectively held the positions of Jefferson County Judge/Executive and Police Chief at the time Ater filed his complaint. Ater sued these defendants in their official capacities, which is tantamount to suing Jefferson County itself. See Brandon v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 877-78, 83 L.Ed.2d 878 (1985).

2 . It was part of Ater's contention that, properly interpreted, the statute did not apply to the distribution of literature while standing on a median.

3 . We note that, although Ater contended below that the statute did not bar the conduct he proposed and that the statute was selectively enforced, he expressly abandoned both of those contentions on this appeal.

4 . The dissent cites United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990), for the proposition that solicitation presents a greater traffic and safety hazard than distribution of literature. It fails to note that, in Kokin-da, five members of the Supreme Court concluded that a content-neutral distinction could be made between solicitation and distribution of literature. In Kokinda, the Postal Service barred solicitation on its sidewalks because of its desire to facilitate customers' postal transactions. See Kokinda, 110 S.Ct. at 3124. Similarly, the Kentucky statute bars most expressive conduct because of Kentucky's desire to provide safe and uncongested roadways. In Kokinda, the failure of the Postal Service to bar other forms of expressive conduct did not lead to the conclusion that the regulation was content based. Similarly, Kentucky's failure to bar solicitation does not support the dissent’s erroneous conclusion that the statute, as interpreted and applied, is content based.

It is unclear why the Kentucky statute excepts solicitation from the general prohibition of pedestrian activities upon its roads. But it absolutely defies reason to hold that Kentucky excepted solicitation because it wished to suppress certain ideas, information, viewpoints, or otherwise impose a content-based restriction on speech. Because anyone, from the Ku Klux Klan to the NAACP, may solicit but no one may undertake other expressive conduct in Kentucky’s roads, the exception leaves all content on equal footing. A content-based motive cannot be logically inferred from this exception.

5 . The dissent would require a legitimate government interest that justifies the exception of solicitation from the general proscription of pedestrian activity on the roads. The legitimate government interest need only justify the general prohibition of protected activity; so long as its distinctions are content neutral, it need not justify the allowance of some expression. The government’s interest in safety and the avoidance of traffic congestion adequately supports the statute’s prohibition of pedestrian activities on Kentucky’s roads. Unless a prohibition is content based, we examine the legislature’s motive for prohibiting the forms of conduct it chooses to prohibit, not its motive for excepting other forms of conduct from the prohibition.