RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Parks v. Finan, et al. No. 03-3848 ELECTRONIC CITATION: 2004 FED App. 0331P (6th Cir.) File Name: 04a0331p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Elise W. Porter, OFFICE OF THE ATTORNEY FOR THE SIXTH CIRCUIT GENERAL OF OHIO, Columbus, Ohio, for Appellants. _________________ Nathan W. Kellum, Memphis, Tennessee, for Appellee. ON BRIEF: Elise W. Porter, Tomi L. Dorris, OFFICE OF DOUGLA S R. PARKS, X THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, Plaintiff-Appellee, - for Appellants. Nathan W. Kellum, Memphis, Tennessee, for - Appellee. - No. 03-3848 v. - ROGERS, J., delivered the opinion of the court, in which > SCHWARZER, D. J., joined. COOK, J. (pp. 23-25), , delivered a separate dissenting opinion. RICHARD H. FINAN; RONALD - T. KELLER; KENNETH L. - _________________ MORCKEL; LEE A. DARDEN , - Defendants-Appellants. - OPINION - _________________ N Appeal from the United States District Court ROGERS, Circuit Judge. On two separate occasions in for the Southern District of Ohio at Columbus. April 2002, Douglas Parks entered the grounds of the Ohio No. 03-00094—Gregory L. Frost, District Judge. state capitol and attempted to preach a Christian message—the first time by preaching, the second time by Argued: March 16, 2004 wearing a sandwich board and distributing leaflets. Both times Ohio State Highway Patrol (“OSHP”) troopers Decided and Filed: September 29, 2004 informed Parks that he was required to obtain a permit prior to conducting these activities on the Capitol Square and asked Before: ROGERS and COOK, Circuit Judges; Parks to leave. After the second of these encounters, Parks SCHWARZER, District Judge.* instituted this action in the district court, seeking an injunction preventing the Capitol Square Review and Advisory Board (“CSRAB”) and OSHP from enforcing the permit requirement against him.1 The district court, finding
1 The defendants are the CSRAB chairman, its executive director, and * various mem bers o f the Ohio State Highway Patrol. For convenience The Ho norable W illiam W Schwarzer, United States District Judge when speaking of the defendant officials as litigants on this appeal, we for the Northern District of California, sitting by designation. refer to them as CSRAB.
1 No. 03-3848 Parks v. Finan, et al. 3 4 Parks v. Finan, et al. No. 03-3848
the permitting scheme deficient in many respects under the permit, a person seeking to use the capitol grounds must First Amendment, permanently enjoined CSRAB from apply, in writing, to CSRAB anywhere from 15 to 180 days enforcing the permitting scheme against individual speakers. prior to the planned event. OAC § 128-4-03(A). The We construe the injunction to apply only to the application of application must include, inter alia, the name, address and the permitting scheme to individuals who are not acting as telephone number of the person responsible for organizing the part of a group or in concert, and we affirm on grounds more event, and must be accompanied by a $20 fee “to cover the limited than those relied upon by the district court. administrative cost of issuing a permit.” OAC § 128-4- 03(A)(6), (C). I CSRAB reviews timely filed applications and issues a Ohio’s Capitol Square consists of the state capitol buildings response, generally granting the permit unless there is a and the surrounding Capitol grounds, a ten-acre area bounded conflict for use of the space or the use threatens to violate the on all sides by city streets. See Ohio Rev. Code Ann. restrictions of § 128-4-02(A). CSRAB may waive the § 105.41(L) (Anderson 2001) (amended 2002); Ohio Admin. timeliness requirements “for good cause shown.” OAC Code (OAC) § 128-4-01(B) (2001). Use of the grounds, § 128-4-03(A), (Q). which are generally open to the public, is governed by state regulations rather than by Columbus ordinances. See Ohio On April 11, 2002, Parks entered the capitol grounds, Rev. Code Ann. § 105.41(E)(2). The Capitol grounds positioned himself on a sidewalk near a plaque bearing the includes the steps of the capitol itself, and all the area Ohio state motto, “With God, All Things Are Possible,” and bounded by the surrounding streets, including the walkways, began to preach. On the same day, an animal rights group grassy areas, monuments and fountains contained therein. called Protect Our Earth’s Treasures (“POET”) staged a small OAC § 128-4-01(B). CSRAB has plenary control of Capitol rally in the same area of Capitol Square, to call on Ohio’s Square, and is empowered to promulgate rules and regulations legislature to adopt an excise tax on meat. POET had a for the use of the square. See Ohio Rev. Code Ann. permit to gather there, obtained with a waiver of the 15-day § 105.41(D)(3), (E). waiting period because the legislature had taken up a tax measure on short notice. Although Parks and the leader of the CSRAB makes the square available for speeches and POET rally were aware of each other’s presence, there is no public gatherings advocating various causes, both secular and religious, but requires a permit as a prerequisite for those activities. Although CSRAB issues the permits on a first- been received, if such use: come, first-served basis, it may deny permits if in its (1) Does not interfere with the primary use of the capitol discretion it finds that the planned activity fails to meet one buildings or gro unds; of five criteria.2 OAC § 128-4-02(A). In order to obtain a (2) Is appropriate to the physical context of the capitol buildings or gro unds; (3) Do es not unduly burden the m anaging authority; 2 (4) Is not a hazard to the safety of the public o r state In pertinent part, the regulation provides that “Capitol buildings or employees; and grounds are available for use by the public for the purpose of (5) Does not expose the state to the likelihood of expenses governmental business, pub lic meetings for free discu ssion o f public and/or da mages which cann ot be recovered .” questions, or for activities of a broad pub lic purpose, provided the authorized procedure has been followed and appropriate approvals have OA C § 128 -4-02 (A). No. 03-3848 Parks v. Finan, et al. 5 6 Parks v. Finan, et al. No. 03-3848
indication in the record that Parks’s preaching disrupted in the context of this case are the same. For five reasons, the POET’s activities. Nor did the permit indicate that POET had district court found that CSRAB’s permitting scheme was not the exclusive right to use any portion of Capitol Square. narrowly tailored to serve a significant government interest, as required by the First Amendment. Shortly after Parks began speaking, two uniformed OSHP troopers approached him and asked him to present his permit. First, the district court reasoned that the permitting scheme Learning that Parks had none, the troopers told him that he lacked any meaningful time limit on the permitting process. would have to leave. The supervising officer informed Parks The district court considered the regulation requiring CSRAB that a permit was required for speaking on the capitol to act “without unreasonable delay” to be so vague as to grounds, but he was free to speak on the perimeter sidewalks “impose[] no concrete period of time in which the CSRAB without a permit. Parks, fearing arrest, complied with the must decide whether to issue a permit.” The lack of a definite troopers’ request to leave. time period, in the district court’s view, created an impermissible risk of the suppression of ideas, and this He returned to Capitol Square on April 19, 2002. This time concern was not allayed by the “first-come, first-served” instead of preaching he wore a sandwich board bearing standard, inasmuch as the standard could be waived by religious content and distributed leaflets with religious CSRAB. messages. Again, Parks had not obtained a permit. Parks testified in the district court that his religious beliefs preclude Second, the district court concluded that the permitting him from obtaining a permit to preach. As Parks had no scheme granted CSRAB overly broad discretion to waive its permit, OSHP troopers again confronted him and asked him $20 permit fee. Although the district court noted that there to leave the area. The troopers told Parks that he would be was no evidence of improper manipulation of the permit fee arrested and charged with criminal trespass if he remained. to include or exclude certain speakers for content-based Parks complied with the request and left the area. reasons, it reasoned that the permitting scheme was flawed nonetheless because there were no restrictions to permit On January 31, 2003, Parks filed suit in the district court CSRAB from applying waivers to the permit fee for content- seeking a declaratory judgment and a permanent injunction biased reasons in the future. Moreover, the district court preventing CSRAB from enforcing its permitting scheme concluded, CSRAB “failed to present a correlation between against his activities. After conducting an evidentiary the permit fee and the costs associated with the permit hearing, the district court entered an order on June 4, 2003, scheme.” permanently enjoining CSRAB from enforcing the permitting scheme “against individual speakers.” The district court Third, the district court reasoned that the permitting scheme concluded that, in several respects, the permitting scheme was lacked precise standards to guide CSRAB’s discretion in not narrowly tailored to serve a significant government determining whether to grant or deny a permit to use Capitol interest. Square. According to the district court, the provision by which CSRAB “reserves the right to regulate any conduct or The district court found that the Capitol Square area was a activity not appropriate or consistent with the use of the public forum, but did not find it necessary to determine capitol buildings or grounds, or which may cause damage to whether the area was a “traditional public forum” or a state property” gives CSRAB discretion to exclude virtually “designated public forum,” as the relevant constitutional tests No. 03-3848 Parks v. Finan, et al. 7 8 Parks v. Finan, et al. No. 03-3848
any activity without sufficient safeguards to prevent the “absolutely empty in terms of the [regulation’s] stated suppression of speech. goals.” Grossman [v. City of Portland], 33 F.3d at 1207 .... Fourth, the district court identified three problems with the permitting scheme that implicated the Supreme Court’s The district court concluded that the permit scheme opinion in Watchtower Bible and Tract Society of New York, constituted an impermissible prior restraint on speech, a prior Inc. v. Village of Stratton, 536 U.S. 150 (2002). The district restraint that was unconstitutional on its face with respect court noted first that the requirement that permit seekers individual speakers, and as applied to Parks. The district identify themselves on the permit application might deter court permanently enjoined the defendants from enforcing the speakers who prefer to remain anonymous. The district court permit scheme against individual speakers. Defendants also concluded that the permit scheme would chill a appeal. substantial number of religious speakers who might opt to remain silent rather than to ask the Government’s permission II to engage in evangelical activities. Also, the district court reasoned that the permitting scheme eliminates a substantial We affirm on the narrow ground upon which the district amount of spontaneous speech because the advance notice court concluded its opinion, that the permitting scheme as it requirement precludes the expression of speakers who wish to presently exists is invalid with respect to individuals.3 The express themselves at the moment the speech becomes ripe. injunction is limited to relief against enforcement of the permitting scheme against individuals, and that is all that we Fifth, the district court further concluded that the permitting have before us. The district court expressly refrained from scheme was invalid in particular as applied to individual enjoining continued application of the permit scheme “as it speech. The district court reasoned that the scheme pertains to groups,” and we take this limitation to extend to proscribed more speech than was necessary to effectuate the individuals speaking as part of a previously coordinated or “laudable” and important government interests of organized effort to create a crowd. Much of the district “preserv[ing] . . . the historical site, maintaining order and court’s rationale would appear to invalidate the permitting safety, ensuring that adequate support services are available, scheme as applied to groups as well. We are largely and maintaining the primary use of Ohio’s Statehouse to carry unpersuaded by the parts of the district court’s reasoning that out the business of state government . . . .” CSRAB, would logically invalidate the permitting scheme altogether. according to the district court, does not “explain sufficiently Affirmance of the injunction that was actually entered by the how requiring a lone individual to obtain a permit actually district court does not require us to make a definitive ruling targets the preservation of the grounds”: on those issues, and we therefore consider them only briefly.
the permit scheme labels those lone individuals with something to say as dangerous, while failing to offer what distinguishes them from other lone individuals who 3 CSRAB does not challenge the district court’s determination that the traverse onto capitol grounds, for example, to enjoy their Capitol grounds area at issue is a public forum, and the parties on appeal lunch on the Statehouse steps. The distinctions—the make no issue of whether the area is a “traditional public forum” or a addition of a sign, a leaflet, or something to “designated public forum .” The d istrict court found that its analysis did say—become, in the words of the Ninth Circuit, not require that the distinction be made in this case, and our analysis as well does not require that we make such a determination. No. 03-3848 Parks v. Finan, et al. 9 10 Parks v. Finan, et al. No. 03-3848
The permitting scheme does not appear to vest burden[s] the managing authority.” Without a definition of unconstitutional discretion in CSRAB to grant and deny “undue burden,” or even an exemplary list of “burdensome” permits to engage in expressive activity on Capitol Square. activities, the provision arguably leaves it to CSRAB to When a law predicates expressive activity on the prior decide on any basis whether the burden of an activity on the acquisition of a permit, the law must contain narrow and managing authority is undue. On the other hand, it is precise standards to control the discretion of the permitting reasonably clear that the provision addresses the concern that authority. Forsyth County v. Nationalist Movement, 505 U.S. some activities require extra public expenditures for sanitation 123, 131 (1992). Section 128-4-02(A), with the possible or police presence. A court reviewing a denial of a permit to exception of subsection (3), contains clear and precise Parks could easily conclude that there was no undue burden standards which CSRAB can apply in making permitting on the managing authority to permit him to speak. We leave determinations. for another day the question of whether this provision warrants invalidation of the permitting scheme with respect The district court determined that the permitting scheme to groups. It provides but a questionable basis for the order grants CSRAB virtually unchecked discretion to deny permits in this case invalidating the permitting scheme with respect to for content-based reasons. In support of this conclusion, individuals like Parks. Parks isolates several terms in the regulation that he claims would allow CSRAB to conceal favoritism or censorship in The district court’s reliance on the waiver provision in making permit determinations. Most of the terms clearly § 128-4-02(I) as a basis for invalidating the permitting limit the decision-maker’s discretion. See City of Lakewood scheme is also questionable. In this regard, Parks maintains v. Plain Dealer Publ’g. Co., 486 U.S. 750, 758 (1988) that the phrase “for good cause shown” allows CSRAB to (explaining that “[o]nly standards limiting the licensor’s waive or refuse to waive the permit rules for virtually any discretion will eliminate” danger of chilling protected reason. Although he produced no evidence that CSRAB speech). There is no statute or regulation imaginable that granted waivers in an arbitrary or discriminatory fashion, does not require some degree of interpretation by the agency Parks maintains that the discretion contained in the provision charged with its enforcement. The First Amendment requires alone renders it unconstitutionally defective. only that the regulation give the agency sufficient standards to apply in determining whether to issue a permit. In our Because the waiver provision does not act as a restriction view, the standards “appropriate to the physical context of the on expressive activity, the discretion must be treated capitol,” “hazard to the safety of the public,” and “expose the differently from that contained in the bases for granting or state to the likelihood of [unrecoverable expenses],” are not denying a permit. Even where discretion is broad, we would so vague as to engender content-based favoritism. Although generally not invalidate a waiver provision for overly broad these terms do require CSRAB to evaluate whether an activity discretion unless and until there is a showing of “a pattern of conflicts with one of these provisions, these terms provide unlawful favoritism.” Thomas v. Chicago Park Dist., 534 CSRAB sufficient guidance to determine whether it would be U.S. 316, 325 (2002). To do otherwise would have the appropriate to deny a permit, and allow for effective judicial unintended effect of restricting more speech because CSRAB review. could not relax its permitting rules to increase access to the forum. A rigid application of the permitting scheme would It is a closer question with respect to § 128-4-02(A)(3), prevent any group with an emergent need, or any speaker with which allows CSRAB to deny a permit if an activity “unduly the inability to pay the permit fee, to use Capitol Square for No. 03-3848 Parks v. Finan, et al. 11 12 Parks v. Finan, et al. No. 03-3848
speech activities. It is undoubtedly preferable to allow some III flexibility in the name of increasing the exercise of protected speech. The injunction is warranted, however, because application of the permitting scheme to individuals like Parks, who may That is not to say that the exercise of discretion in granting be speaking, wearing signs, and/or leafletting, and denying waivers could not, in some instances, present unconstitutionally burdens free expression in violation of the constitutional problems. When a permitting authority uses First Amendment. Two aspects of the permitting scheme lead waivers to promote preferred speakers or to inhibit disfavored us to this conclusion. speakers, a court may invalidate the waiver scheme. See id. In order to predicate a constitutional challenge to the waiver First, the regulation by its ambiguity sweeps too broadly provision based on the existence of discretion in the with respect to when an individual must obtain a permit. The regulatory scheme, a plaintiff would bear the burden of language of the regulation does not literally prohibit activity establishing that the permitting authority used the waivers in in the absence of a permit, but instead makes the Capitol a discriminatory manner. Parks, however, produced no grounds evidence that CSRAB used its discretion to grant waivers to preferred speakers, or deny waivers to disfavored speakers. available for use by the public for the purpose of governmental business, public meetings for free The district court also found unconstitutional vagueness in discussion of public questions, or for activities of a broad the provision in the regulation that “[t]he board shall, without public purpose, provided the authorized procedure has reasonable delay, act upon the request [for a permit].” OAC been followed and appropriate approvals have been § 128-4-03(B) (emphasis added). The district court found received, if such use [here follow the five conditions that this phrasing precluded reasonable delay but not discussed above]. unreasonable delay. The language in the regulation, however, was obviously a scrivener’s error; the intent was undoubtedly OAC § 128-4-02(A) (emphasis added). The obvious negative to require the board to take action without unreasonable inference, assumed by the parties and the district court, is that delay. See Griffin v. Oceanic Contractors, Inc., 458 U.S. the grounds are unavailable for the named activities without 564, 571 (1982) (explaining that, where literal reading of a permit. If we make the same assumption, then the statute is obviously at odds with intentions of drafters, the regulation prohibits the following activities without a permit: drafters’s intent must control). The regulation has since been (1) use for the purpose of governmental business, (2) “public revised to correct the error. OAC § 128-4-03(B) (Anderson meetings for free discussion of public questions,” and 2004). This part of the district court’s analysis does not (3) “activities of broad public purpose.” The first two are support the issuance of the injunction.4 obviously not applicable to individuals like Parks: there is no governmental business involved, and an individual speaker is not a “meeting.” It follows that the regulatory basis for 4 The district court relied on another apparent scrivener’s error in telling Parks to stop his activities was that he was conducting questioning the reasonability of the hours during which the grounds were open. The court read the relevant regulation as limiting availability of the capitol grounds to morning ho urs. The regulation did limit ava ilability to the hours of “7 a.m. to 12:00 p.m.,” but “12 p.m.” was obviously read “seven a.m. to twelve midnight.” OAC § 128-4-02(D) (Anderson intended to mean mid night. T he regulation ha s since be en co rrected to 2004). No. 03-3848 Parks v. Finan, et al. 13 14 Parks v. Finan, et al. No. 03-3848
an “activity of broad public purpose” on the Capitol grounds 536 U.S. at 165-66. While there are some important without a permit. differences between the permit scheme in this case and the one at issue in Watchtower, one of the core reasons for This ban is exceptionally broad, as demonstrated by the invalidating the latter clearly applies to the permit scheme in facts of this case. When Parks first came to the Capitol this case as applied to individuals. That is, the permitting grounds, he was engaged in public declamation, apparently scheme effectively bans spontaneous speech on the Capitol directed at least in part to the POET crowd, and he was told grounds. The Supreme Court expressed this concern in to stop. When he returned, a week later, he merely wore the Watchtower in the following words: sandwich boards and handed out leaflets, but again he was told to stop. It is certainly not clear from the record that there is a significant amount of spontaneous speech that merely wearing the sandwich boards, without the leafletting, is effectively banned by the ordinance. A person who would have been allowed without a permit. And it is hard to made a decision on a holiday or a weekend to take an see how wearing sandwich boards is in any relevant respect active part in a political campaign could not begin to pass different from wearing an expressive T-shirt or carrying an out handbills until after he or she obtained the required expressive balloon. The permitting scheme, then, by the permit. Even a spontaneous decision to go across the breadth of the activity that to which it applies, raises serious street and urge a neighbor to vote against the mayor First Amendment concerns. could not lawfully be implemented without first obtaining the mayor’s permission. Second, we are instructed by the Supreme Court in Watchtower Bible and Tract Society of New York, Inc. v. 536 U.S. at 167. Village of Stratton, 536 U.S. 150, 167 (2002), to give weight to the concern that a permitting scheme will stifle Similarly, under the CSRAB permit scheme, two friends spontaneous expressive activity. In Watchtower, the Supreme debating which candidate should be elected President in Court invalidated a village ordinance that required that door- November while walking across the Capitol grounds are to-door canvassers obtain a prior permit from the mayor’s regulated by the permitting scheme, at least according to its office by completing and signing a registration form. literal terms, but it is highly unlikely that these people would Applying the ordinance to all canvassers raised constitutional continue their discussion if they knew a permit was required concerns by virtue of the very breadth of the ordinance: to do so. The permitting scheme also constrains the heckler who wishes to disagree with the expressive activity of a It is offensive—not only to the values protected by the permitted activity. A beef rancher out for a leisurely stroll First Amendment, but to the very notion of a free along Capitol Square who happened upon the POET society—that in the context of everyday public discourse demonstration and wished to take on the protestors on the a citizen must first inform the government of her desire issue of meat taxation would first need to obtain a permit to to speak to her neighbors and then obtain a permit to do carry on debate with POET. If the rancher were aware that a so. Even if the issuance of permits by the mayor’s office permit were required to debate this issue, he might be more is a ministerial task that is performed promptly and at no likely to keep his mouth shut as he passed the demonstration. cost to the applicant, a law requiring a permit to engage In each of these hypothetical situations, not only would the in such speech constitutes a dramatic departure from our speakers need to pay $20 and obtain permits, but they would national heritage and constitutional tradition. either need to have done so fourteen days prior to speaking or No. 03-3848 Parks v. Finan, et al. 15 16 Parks v. Finan, et al. No. 03-3848
to have shown good cause for obtaining a waiver of the The resolution therefore does not merely reach the permit policy. The permit fee and the bureaucratic formalities activity of respondents at LAX; it prohibits even talking involved in obtaining a permit are likely to chill casual and reading, or the wearing of campaign buttons or speakers who would otherwise make statements on Capitol symbolic clothing. Under such a sweeping ban, virtually Square but find that the benefit of expression is far every individual who enters LAX may be found to outweighed by the expense of applying for a permit. While violate the resolution by engaging in some “First these examples may appear far-fetched, there is no apparent Amendment activit[y].” We think it obvious that such a way that the present regulation, applied as it has been, can ban cannot be justified even if LAX were a nonpublic easily be read not to apply. forum because no conceivable governmental interest would justify such an absolute prohibition of speech. The permitting scheme is thus a substantially overbroad restriction on individual speech. Although there may be some Id. at 574-75. Under the sweeping ban of OAC § 128-4-02 on types of situations in which the regulation could validly be “activities of a broad public purpose,” one could also read a applied to individual speakers, such as if a famous rock singer ban on “wearing of campaign buttons or symbolic clothing.” were to start performing or a Klansman were to start spouting Of course the CSRAB regulation, rather than prohibiting the racist remarks,5 the permitting scheme sweeps a broad array activity, only requires a prior permit, but the sweeping facial of ordinarily protected speech within its regulatory purview. effect is similar. When it comes to wearing a campaign Indeed, it is close in its sweep to the Los Angeles Airport button or symbolic clothing, requiring a permit obtained 15 (LAX) resolution that the Supreme Court found facially days ahead of time, at a cost of $20, is pretty close in its effect unconstitutional in Board of Airport Commissioners v. Jews to an outright prohibition.6 for Jesus, Inc., 482 U.S. 569, 574-75 (1987). That resolution stated that “any individual and/or entity [who] seeks to The CSRAB permit scheme is also not sufficiently engage in First Amendment activities within the Central narrowly tailored. As the Court in Watchtower instructs, Terminal Area . . . shall be deemed to be acting in breadth alone does not render a permitting scheme invalid. contravention of the stated policy of the Board of Airport 536 U.S. at 168. It must also be determined whether the Commissioners . . . .” 482 U.S. at 571. The Court reasoned: scheme is narrowly tailored to the government’s interest. Id. The Watchtower Court held that the ordinance in that case was insufficiently tailored to be warranted by the city’s 5 CSRAB suggests that a lone Klansman conveying a racist message legitimate interests in preventing fraud and crime, and in on the Capitol grounds could lead to a disruptive disturbance. Something protecting citizens’ privacy. In the instant case, CSRAB has more than the mere objec tionab ility of the Klansman’s spe ech is indeed identified important government interests supporting necessary, however, in o rder to warrant a restriction o n his exp ression . the need for a permitting process. These include CSRAB’s W hether a speaker m ay be subjected to a permitting requirement must turn on the time, place and manner of speech, and not the content of the message or the likelihood that it will incite a response . Forsyth C oun ty, 6 505 U.S. at 134-35. If the Klansman example were enough to conclude Parks invokes two other concerns raised by the Watchtower court: that the permit req uirement should be upheld in this case, then the the protection of those who c hoo se to speak anonym ously and those who exam ple proves too much. After all, the mere presence of certain would be chilled from speaking because of religious scruples against controversial individuals might draw a crowd or incite a response, but that seeking state permission to preach. In view of our reso lution of this fact could no t be a sufficient basis for requiring a permit for any app eal, we need not decide whether these concerns weigh against the individual to enter a p ublic forum. CSRAB p ermitting schem e. No. 03-3848 Parks v. Finan, et al. 17 18 Parks v. Finan, et al. No. 03-3848
interests in protecting the physical condition of Capitol regulation. 491 U.S. at 798-99. In upholding a requirement Square, ensuring the safety of the public, and ensuring that that New York City’s sound technician control the mixing permitted speakers are able to engage effectively in board during rock concert performances, the Court in Ward expressive activities. The permitting scheme as it is now distinguished a total ban on handbills as follows: structured however restricts more expressive activity than is necessary to accomplish those goals, and is not narrowly The guideline does not ban all concerts, or even all rock tailored to meet these goals. Instead, the permitting scheme concerts, but instead focuses on the source of the evils regulates a significant amount of casual and spontaneous the city seeks to eliminate—excessive and inadequate speech that is unlikely to implicate these significant concerns. sound amplification—and eliminates them without at the same time banning or significantly restricting a In determining whether regulation of expressive activity is substantial quantity of speech that does not create the narrowly tailored, we look to determine whether the same evils. This is the essence of narrow tailoring. A ban substantial government interest would be achieved less on handbilling, of course, would suppress a great effectively without the permitting scheme. Ward v. Rock quantity of speech that does not cause the evils that it Against Racism, 491 U.S. 781, 799 (1989). Particular types seeks to eliminate, whether they be fraud, crime, litter, of individual activity that might cause damage, endanger traffic congestion, or noise. See Martin v. Struthers, 319 public safety, or interfere with other speakers, can be U.S. 141, 145-146 (1943). For that reason, a complete governed just as effectively, if not more so, by regulations ban on handbilling would be substantially broader than prohibiting or limiting such actions directly, without necessary to achieve the interests justifying it. imposing the requirement that individuals wanting to speak or carry a sign obtain a permit 15 days ahead of time. For 491 U.S. at 799 n.7. This case is closer to the handbill ban instance, the current regulatory limitations on permittees, if than to the regulation upheld in Ward. not already binding on persons legally present without a permit, could easily be extended to such persons. These CSRAB also asserts that the permitting process is necessary include limits on bringing structures or vehicles on the to regulate competing uses of the grounds and protect the free grounds, attaching signs or banners to buildings, bringing speech rights of those who use the process to obtain access to animals on the grounds, commercial solicitation, operating the grounds. Relying on our decision in Sistrunk v. City of concessions, possessing alcohol, or using sound Strongsville, 99 F.3d 194 (6th Cir. 1996), CSRAB maintains amplification. See OAC § 128-4-03(G)-(M). The blanket that the permitting scheme enables it to “enhance” free speech application of the permitting scheme to individuals, in rights by limiting the use of areas on the capitol grounds to contrast, is not sufficiently narrowly tailored to the interests one permitted group, thereby amplifying the message of that of protecting property, promoting safety, and permitting group. In Sistrunk, we found no First Amendment violation others to speak. when an official for the Bush-Quayle ’92 campaign confiscated a button advocating the opposing candidate from In Ward, the Supreme Court held that narrow tailoring did a young woman seeking admission to a rally for the Bush- not require the least restrictive means of serving legitimate Quayle campaign conducted in a public park. Id. at 196. government interests, but that narrow tailoring is satisfied as Sistrunk makes clear that the First Amendment “does not long as the regulation promotes a substantial government prohibit the [government] from issuing permits to groups interest that would be achieved less effectively absent the No. 03-3848 Parks v. Finan, et al. 19 20 Parks v. Finan, et al. No. 03-3848
seeking to make exclusive use of the Commons for expressive complained that a member of POET asked him to leave, activity during a limited period of time.” Id. at 198. perhaps Sistrunk would have some application in this case. Here, however, Parks happened to be standing in the general Sistrunk is distinguishable in two important ways. First, vicinity of POET’s demonstration, but made no attempt to this is not a situation where one organization has been given appear affiliated with it. There is no indication in the record an exclusive permit to use grounds for a limited period. In that Parks disrupted POET’s rally or that the POET Sistrunk, the permit specifically provided that the use of the organizers felt that Parks’s presence imposed upon the grounds was limited to the members of the permittee protest. Moreover, there is no indication that there was any organization and their invitees. Id. at 196. The campaign permitted use on April 19 when OSHP troopers asked Parks committee had its own First Amendment interest in to leave Capitol Square because he was wearing sandwich controlling who could attend its rally and what could be said boards and handing out leaflets. CSRAB cannot avail itself there. See Hurley v. Irish-American Gay, Lesbian and of Sistrunk with regard to that incident. Bisexual Group of Boston, Inc., 515 U.S. 557, 573-74 (1995) (holding that organizers of Boston’s St. Patrick’s Day- This case is also different from our well-reasoned, albeit Evacuation Day Parade had First Amendment interest in unpublished, decision in Spingola v. Village of Granville, excluding marchers with messages that organizers chose not 2002 WL 1491874 (6th Cir., July 11, 2002). In that case, for to convey). In contrast, the record does not show that POET the duration of an assemblage permit issued to the Granville was granted an exclusive permit to use a portion of the Kiwanis Club to hold a Fourth of July celebration on a grounds, or that Parks was in that exclusive area, or indeed portion of the village streets, a village ordinance provided that that POET objected to Parks’s presence. Granville could designate within the assemblage area a public speaking area. We upheld the ordinance’s prohibition of Second, in the instant case there is a greater level of “public speaking designed to gather crowds” in the governmental involvement in the filtration of inconsistent assemblage area outside of the designated public speaking messages than in Sistrunk. In Sistrunk, while the government area. We reasoned that the village had a significant interest granted the permitted organization the power to make in crowd control, and that the interest would be less exclusive use of the park, the government itself did not sort effectively achieved without the ordinance because preventing out “discordant speakers” whose messages were inconsistent uncontrolled public speaking “provid[ed] a smoother flow of with the theme of the demonstration. In the instant case, state traffic within the festival crowd.” Spingola involved two troopers determined that Parks’s activities were inconsistent factors different from the instant case. First, the ordinance with the permitted use. Although the government may have applied during the limited-duration grant of a permit to the power to grant permits for speakers to use public lands, another private party to use a portion of the public streets. and the speakers have First Amendment rights to exclude Second, the ordinance was specific in the expressive activity others whose messages are conflicting or inconsistent, that that was isolated—“public speaking designed to gather does not permit a governmental authority to determine which crowds”—activity that, so tailored, had a direct impact on the messages are discordant and to excise those messages to village’s interest in crowd control. In contrast, the CSRAB ensure the clarity of the permitted speaker’s message. prohibition on “activities of a broad public purpose,” extending as it does to the mere wearing of a sign and If Parks tried to interpose himself in POET’s rally so that handing out of leaflets, cannot be considered narrowly he appeared to be a participant in that rally, and he tailored to the interests CSRAB has identified. No. 03-3848 Parks v. Finan, et al. 21 22 Parks v. Finan, et al. No. 03-3848
The CSRAB permitting scheme as enforced against For the foregoing reasons, the judgment of the district court individuals thus is not narrowly tailored to a significant is AFFIRMED. government interest, and this conclusion is sufficient to uphold the district court’s injunction. We therefore need not reach the additional requirement that ample alternative channels be left open for communication. In concluding, we emphasize the limited nature of our holding. The injunction does not preclude the enforcement of the present permitting scheme to groups. The injunction is expressly limited to individuals. We interpret this limitation to allow application of the permit requirement to gatherings of multiple persons by previous publicity or pre-arranged coordination. We need not decide at this time the constitutionality of applying the permitting scheme to such gatherings. In addition, the injunction does not prevent CSRAB from modifying its regulations to require a prior permit for certain types of individual conduct, albeit expressive, that may more directly implicate concerns of public order or safety. We have been advised during our consideration of this case, for instance, that a gentleman was considering parachuting onto the Capitol grounds. Nothing prevents the CSRAB from requiring a permit for such a stunt. And as our discussion of Spingola demonstrates, the injunction does not prohibit CSRAB from modifying its regulations to require a permit for public speaking that is designed to gather an audience, although we certainly do not decide the validity of such a hypothetical CSRAB rule today. We note only that a modification of the regulation to require a permit for such individual activities would not run afoul of the district court’s injunction, which by its terms extends only to enforcement of the regulation “presently set forth” in OAC § 128-4.7
7 CSRAB has not argued , in light of the absence of a certified class, that the district court’s order should have enjoined enforcement of the permitting schem e against Parks only, and no t against other individuals who are not parties. Accordingly, we do not reach that issue. No. 03-3848 Parks v. Finan, et al. 23 24 Parks v. Finan, et al. No. 03-3848
_______________ Although the permit scheme in Thomas could be considered more narrowly tailored than CSRAB’s policy, the fact that DISSENT this court can imagine regulations that would be more closely _______________ tailored to achieving CSRAB’s goals does not mean that CSRAB’s scheme is unconstitutional—“[the Supreme COOK, Circuit Judge, dissenting. Because I disagree with Court’s] cases quite clearly hold that restrictions on the time, the majority’s conclusion that CSRAB’s regulations are place, or manner of protected speech are not invalid simply vague, overbroad or not narrowly tailored, I respectfully because there is some imaginable alternative that might be dissent. less burdensome on speech.” Ward, 491 U.S. at 797 (internal quotation marks omitted). CSRAB’s interests in preserving First, CSRAB’s permitting scheme is not a “ban.” It does the Capitol grounds and maintaining order and safety are not prohibit speech; it merely regulates the time, place, and substantial, and they would be achieved less effectively if manner of speaking to accommodate the government’s individual speakers were not required to comply with the interest in maintaining the Capitol grounds. Such regulations permitting regulations. are valid “provided the restrictions [of protected speech] are ‘justified without reference to the content of the regulated Additionally, I disagree with the majority’s conclusion that speech, that they are narrowly tailored to serve a significant the phrase “for broad public purpose” is so vague as to render governmental interest, and that they leave open ample the regulations facially unconstitutional. The regulations alternative channels for communication of the information.’” applied to Parks’s conduct because he was preaching and Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) distributing leaflets to the public. If someone were “wearing (quoting Clark v. Community for Creative Non-Violence, 468 an expressive T-shirt or carrying an expressive balloon” and U.S. 288, 293 (1984)). CSRAB’s regulations satisfy all three also standing on the Capitol grounds in an effort to criteria. communicate with the public, then her conduct would likewise require a permit. The majority’s statement that it is That CSRAB’s regulations are content-neutral and leave affirming the district court’s injunction only with respect to available ample alternative channels of communication is not individuals, but not with respect to individuals “speaking as in dispute. And contrary to the majority’s conclusion, the part of . . . [an] organized effort to create a crowd,” implicitly regulations are narrowly tailored because they “promote[] a recognizes that valid, non-vague regulations can draw substantial government interest that would be achieved less distinctions based on speakers’ different purposes. The effectively absent the regulation.” Ward, 491 U.S. at 799. In majority draws a somewhat different distinction than CSRAB Thomas v. Chicago Park District, the Supreme Court upheld has drawn—the majority’s opinion requires two or three a permit system that, like the one here, enabled the individuals organized for the purpose of creating a crowd, but government “to coordinate multiple uses of limited space, to not two or three individuals who just happen to show up on assure preservation of the park facilities, to prevent uses that the Capitol Square at the same time, to obtain permits—but are dangerous, unlawful, or impermissible under the Park under both the majority’s opinion and CSRAB’s regulations, District’s rules, and to assure financial accountability for whether a speaker must obtain a permit depends upon the damage caused by the event.” 534 U.S. 316, 322 (2002). speaker’s purpose. No. 03-3848 Parks v. Finan, et al. 25
I also disagree that the regulations are overbroad. The regulations are not overbroad because they do not prohibit any constitutionally protected speech, much less the “substantial amount” of protected speech that would justify a finding of facial invalidity. See Kreimer v. Bureau of Police, 958 F.2d 1242, 1265 (3d Cir. 1992) (“[T]he doctrine of overbreadth is appropriately applied in a facial challenge only where ‘the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail’” (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982))); accord Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989); Bd. of Airport Comm’rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987). Rather than proscribing speech, the regulations establish a permitting scheme that applies only to speakers using Capitol Square for “activities of a broad public purpose.” Ironically, the majority reads this phrase as prohibiting virtually all speech—equating it with the Los Angeles International Airport’s “First Amendment Free Zone”—but the phrase instead constrains the reach of the permitting scheme. The majority’s hypothetical T-shirt wearers or balloon carriers might fall within the ambit of the permitting scheme, but only if the purpose of their activity on Capitol Square were broadly public. And nothing in the record suggests that the regulations would apply to “two friends debating which candidate should be elected President in November while walking across the Capitol grounds,” because these speakers would be engaged in a private conversation rather than an activity of broad public purpose. For the same reason, the majority’s concerns about stifling spontaneous speech are unfounded. As for the rancher who might want to stop and “debate” with the members of POET, nothing in the First Amendment grants a would-be heckler the right to disrupt the message of other speakers. For the foregoing reasons, I respectfully dissent.