Lee Davenport v. City of Alexandria, Virginia, Charles Strobel, Chief of Police, Douglas Harman, City Manager

710 F.2d 148, 1983 U.S. App. LEXIS 26510, 13 Fed. R. Serv. 1162

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 22, 1983
• Docket: 81-1909
• Status: Published

Opinions

ERVIN, Circuit Judge:

This appeal arises out of a challenge by Lee Davenport, a street musician, to the constitutionality of Ordinance No. 2609 of the City of Alexandria, Virginia. Ordinance No. 2609 prohibits performances and exhibitions on the sidewalks, walkways or other public property of the central business district of Alexandria, and Davenport claims this infringes his first amendment right¹ to perform on and lecture about bagpipes, his particular specialty. Davenport also charges that a permit scheme created by Ordinance No. 2609 allowing limited performances in eight parks and plazas of the central business district confers unbounded discretion on the city manager to restrict protected expression.

The district court, 683 F.2d 853 (4th Cir. 1982), held for Davenport on both constitutional claims, ruling that the City’s total ban of exhibitions and performances from the sidewalks of the central business district was an overbroad and hence unconstitutional restriction on speech, and that the permit scheme allowed city officials to dictate what speech could be heard in the designated open spaces of the district, in violation of the constitutional doctrine prohibiting prior restraints on speech.

On appeal by the City, a panel of this court reversed, holding that Ordinance No. 2609 was a reasonable regulation of the time, place and manner of speech, and that the permit scheme was constitutional because it instructed city officials to issue permits on a first-come, first-served basis leaving no room for discretion.

Davenport petitioned for rehearing en banc, which was granted. We now hold that the permit scheme is constitutional, but because we are unable to say that the ordinance is drawn as narrowly as possible to maximize speech while securing the City’s interest in public safety, we are unable to hold that Ordinance No. 2609 is a constitutional time, place and manner regulation of speech.² We are not prepared, however, to reinstate the district court’s holding that Ordinance No. 2609 is unconstitutionally overbroad, for the opinion of the lower court does not set forth findings of fact sufficient to sustain that conclusion. We therefore remand to the district court with instructions to make explicit factual determinations in accordance with our holding in Hickory Fire Fighters Association v. City of Hickory, North Carolina, 656 F.2d 917 (4th Cir. 1981).

I.

On July 8, 1981, the city council of Alexandria enacted Ordinance No. 2609 to address public safety problems in the historic central business district of Alexandria. The central business district, known as Old Town, comprises 201 acres of the City. Many of the commercial establishments of Old Town cater to the tourist trade, so heavy pedestrian traffic is not uncommon. Ordinance No. 2609 bans certain activities from the sidewalks, walkways and public property of Old Town.³ The ordinance applies to all amusement and entertainment activities requiring business licenses, as set out in section 20-82 of the City Code of Alexandria.⁴ Included among the activities is any “exhibition or performance.” Any “similar nonbusiness activity” is likewise prohibited on the sidewalks of Old Town.

Exhibitors and performers are not totally banished from the central business district. The ordinance allows exhibitions and performances to take place in eight “open spaces”⁵ located within the district, subject to acquisition of a permit from the city manager. Permits are issued on a first-come, first-served basis, and no more than three permits per city block may be issued at any one time. Also, the 9,880 acres of Alexandria lying outside the central business district are not subject to the ordinance.

II.

First, we dispose of Davenport’s argument that the permit scheme created by Ordinance No. 2609 bestows limitless discretion on city officials to govern the content of public expression. See Shuttlesworth v. City of Birmingham, Alabama, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). A fair reading of Ordinance No. 2609 discloses no outlet for the exercise of discretion by city officials, because subsection (a)(4) states that “permits shall be issued on a first-come, first-served basis.” No duly-licensed musicians or persons engaged in similar nonbusiness activity may be refused a permit if they are among the first three applicants for permission to perform in a given open space. Cf. Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 649, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981) (First-come, first-served system for allocation of space at state fair “is not open to the kind of arbitrary application that this court has condemned as inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.”)

Davenport’s second constitutional claim is more difficult to resolve. He contends that the ban on exhibitions and performances and other similar activities from the sidewalks of Old Town is an overly broad infringement of speech. The city’s legitimate interest in the safe flow of pedestrian traffic could be accomplished, says Davenport, by a narrower ordinance that afforded some outlets for protected expression on the sidewalks of Old Town. Under Ordinance No. 2609, speech such as Davenport’s⁶ is confined to the district’s parks and plazas, forums which Davenport claims are inadequate alternatives to the sidewalks of Old Town.

The city counters that Ordinance No. 2609 is a constitutional regulation of the time, place and manner of first amendment activity.

In order to pass constitutional muster as a valid time, place and manner restriction on speech, a government enactment must meet several conditions. The enactment and its enforcement cannot be based on the content of the speech thereby restricted. Consolidated Edison Company of New York, Inc. v. Public Service Commission of New York, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980); Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972). A compelling governmental interest unrelated to speech must be served by the restriction on free expression, and the restriction must be drawn with narrow specificity to be no more restrictive than necessary to secure the government’s interest. Grayned v. City of Rockford, 408 U.S. 104, 116-17, 92 S.Ct. 2294, 2303-04, 33 L.Ed.2d 222 (1972); Hickory Fire Fighters Ass’n v. City of Hickory, N.C., 656 F.2d 917, 923 (4th Cir.1981). In addition, adequate alternative channels of communication must be left open by the restriction. Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 75-76, 101 S.Ct. 2176, 2186-87, 68 L.Ed.2d 671 (1981).

The parties agree that Ordinance No. 2609 is a content-neutral enactment motivated by the city’s compelling interest in public safety. Where the parties differ is on the question of specificity, i.e., whether the ordinance is narrowly tailored to the government’s interest so as to minimize the curtailment of speech. The district court found it was not, writing that

[the ordinance] catches this plaintiff acting by himself, as well as a group composed of ten. It catches and prohibits the activity of this plaintiff and others regardless of the number of them that are in the block, regardless of the width of the sidewalk, and more importantly, regardless of whether they, by their activities, impede or deny public access to commercial buildings or impede the free flow of pedestrian traffic.

The problem we confront on this appeal is that the district court’s conclusions are not supported by explicit factual findings, findings which must form the basis of a determination of overbreadth. The district judge, a long-time resident of Alexandria, was invited by the parties to take judicial notice of the character of Old Town, pursuant to Fed.R.Evid. 201(b), which permits a court to exercise judicial notice over facts “generally known within the territorial jurisdiction of the court.” While we have no doubt that the district court’s exercise of judicial notice was proper, the judge omitted from his opinion a recital of the facts derived from his personal observations of the historic district. After describing the geographical boundaries of Old Town the judge proceeded directly to his conclusions that the ordinance ensnared performers regardless of the number of performers on the block, regardless of the width of the sidewalk, and regardless of whether their activities impeded public access to buildings or the free flow of pedestrian traffic. These conclusions may be drawn from the language of the ordinance itself, of course, and require no empirical observation. The purpose of our review, however, is to determine whether the blanket proscription contained in Ordinance No. 2609 is the narrowest .means of securing public safety in Old Town. Before we can make this determination, we need to know more facts about Old Town. In a constitutional challenge such as the present one, the task is to decide “whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.” Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972). That inquiry in turn “requires careful consideration of highly particularized facts, such as the length or lengths of city blocks, sidewalk widths, and traffic patterns at various times and places around town.” Hickory Fire Fighters Ass’n v. City of Hickory, N.C., 656 F.2d 917, 924 (4th Cir.1981).⁷ Those facts, in this case, have yet to be adduced. We therefore remand to the district court to articulate the factual premises contemplated by Hickory Fire Fighters. Among the facts to be elucidated are:

1) the daily pedestrian and vehicular traffic patterns throughout Old Town;

2) the streets inside the district where constant congestion precludes sidewalk entertainment and the streets where entertainment could be presented safely, at least during some hours of the day;

3) the forms of entertainment that could be accommodated on those streets found to be safe for performances and exhibitions; and

4) the normal activities of the business district at different times and places.⁸

This is not meant as an exhaustive list of the fact findings which will enable review of the district court’s ultimate conclusion. We invite the district court to make any other determinations — either through the taking of evidence or through a proper exercise of judicial notice- — which it feels bear on the question of whether street musicians and other entrepreneurs could function compatibly with the normal activities of the business district. Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972).⁹ Finally, we emphasize that we reserve judgment on the ultimate question of the constitutionality of Ordinance No. 2609. Upon further elucidation of the facts, it may well become apparent that this ordinance is the least restrictive alternative for achieving safety goals in Old Town.

III.

We reverse the district court’s holding that the permit scheme set up by Ordinance No. 2609 was unconstitutional. We vacate the holding that Ordinance No. 2609 is over-broad and remand for further proceedings in accordance with this opinion. The order of the district court is, therefore,

REVERSED IN PART, VACATED IN PART AND REMANDED WITH INSTRUCTIONS.

1 . The constitutional prohibition against government infringement of speech applies to states under the fourteenth amendment. See Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138 (1925).

2 . The dissent argues that in requiring the City to prove its ordinance is drawn as narrowly as possible to maximize speech, we have raised the constitutional standard above present Supreme Court benchmarks which speak of “reasonable” restrictions of expression. See Consolidated Edison Co. of New York, Inc. v. Public Service Commission of New York, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980); Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 75, 101 S.Ct. 2176, 2186, 68 L.Ed.2d 671 (1981); Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1970). As we interpret these authorities and others, see, e.g., United States v. Grace, ___ U.S. ___, ___, 103 S.Ct. 1702, 1706-07, 75 L.Ed.2d 736 (1983); Perry Education Ass’n v. Perry Local Educators’ Ass’n, ___ U.S. ___, ___-___, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794, 804-805 (1983), the reasonableness of a restriction is to be determined in a large measure by the narrowness with which it is drawn. For example, in Grayned, one of the cases relied on by the dissent, the Court wrote;

Our cases make clear that in assessing the reasonableness of a regulation, we must weigh heavily the fact that communication is involved; the regulation must be narrowly tailored to further the State’s legitimate interest.

408 U.S. at 116-17, 92 S.Ct. at 2303-04. Finally, the dissent itself acknowledges at page 154 that government regulations affecting speech “must be drawn with reasonable specificity so as to be no more restrictive than necessary." (Emphasis supplied).

3 . Such activities are permitted on civic holidays.

4 . Davenport has obtained the business license required by section 20-82.

5 . The open spaces are:

Market Square Plaza

Torpedo Plant Plaza

Founders Park

Waterfront Park

Ramsey House Garden

Washington Way

King Street Right-of-Way Park

Bicentennial Center

6 . Live entertainment is protected speech. Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981). The dissenting judges characterize Davenport’s activity as “commercial speech” and suggest that a lesser standard of protection applies to speech intended to generate financial rewards. This is not our reading of the law. In the first place, “commercial speech” is a legal term of art referring to advertising, and Davenport’s activity is unrelated to advertising. More importantly, the law draws no distinction between expression which generates a profit and expression which does not. For example, in New York Times v. Sullivan, 376 U.S. 254, 266, 84 S.Ct. 710, 718, 11 L.Ed.2d 686 (1964), the Supreme Court upheld the right of a newspaper to publish a paid political advertisement, and in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 780, 96 L.Ed. 1098 (1952), the Court held that an “operation for profit” does not divest film distributors of first amendment rights.

The dissent also argues that since Old Town merchants are prohibited under Ordinance No. 2609 from placing their wares on the sidewalks, it is unfair to hold that Davenport may sell his product on the city streets. The short answer to this argument is that we hold no such thing in this opinion, but await further proceedings in the lower court. As to the substance of the argument, we would point out that there is no protected speech component in the placement of clothes racks on a public sidewalk, while, as the Schad Court makes clear, the content of live entertainment is protected expression. 452 U.S. at 65, 101 S.Ct. at 2181.

7 . In the original panel opinion, some members of this court found Hickory Fire Fighters inap-posite to the present case. The panel noted that Hickory Fire Fighters involved a restriction on picketing rather than performances. The panel went on to reason:

The object of the picketer is not to draw a crowd but to engender sympathy for his position from passersby by publishing his message on placards. On the other hand, the primary purpose for performing on public sidewalks, indeed Davenport’s purpose, is to draw a crowd that will reward the performer for proficiency at his trade. The size of the audience is, for the most part, dependent upon the quality of performance and notoriety of the performer. Because these characteristics cannot be measured adequately prior to performance, the most important factor in terms of public safety, crowd size, is undeter-minable in advance. Factors such as the size of the troupe or width of sidewalks are relevant, but these are inadequate indicators of the actual impact a performer might have on traffic flow and access to public buildings. Because of this inadequacy it would be unreasonable to require the city to structure its ordinance to take into account the width of each foot of sidewalk in the central business district. The most narrow sidewalk might be unobstructed by a single performer who commands only passing notice; however, if the performer is a Frank Sinatra, a Willie Nelson or a Dolly Parton the widest sidewalk in Alexandria could not accommodate the crowd that would gather.

We disagree with this analysis. A picketer may very well hope to draw a crowd of onlookers. And some picket lines will inevitably attract attention. Consider, for example, a walkout by the Hollywood actors guild. On the other hand, most street musicians will attract only the passing attentions of pedestrians rather than a large, expectant audience. Whatever the event, crowd size prediction will always be inexact. When the “actual impact” of a performance threatens public safety, Hickory Fire Fighters leaves room for a municipality to take emergency safety measures in response. All that Hickory Fire Fighters forbids is overbroad prior restraints on speech on the public sidewalks, which is precisely the claim we are dealing with here.

8 . It is well settled that in a suit alleging the' infringement of speech, the governmental defendant bears the burden of demonstrating that its enactment is narrowly tailored to the accomplishment of a compelling state interest. Here, the City of Alexandria is called upon to prove that traffic patterns and other factors justify a total exclusion of entertainment from sidewalks of Old Town. We realize that the detailed proof required by Hickory Fire Fighters saddles the City with a heavy burden, but where freedom of expression is at stake, a governmental entity must always be prepared to come forward with a strong factual justification for its action.

9 . Since we have held that the permit system for Old Town’s open spaces is constitutional, we also ask the district court to reconsider the question whether these open spaces offer an adequate alternative forum to the sidewalks.