Rubin v. Young

373 F. Supp. 3d 1347
CourtDistrict Court, N.D. Georgia
DecidedMarch 14, 2019
DocketCIVIL ACTION FILE NO. 1:19-cv-1158-SCJ
StatusPublished
Cited by1 cases

This text of 373 F. Supp. 3d 1347 (Rubin v. Young) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rubin v. Young, 373 F. Supp. 3d 1347 (N.D. Ga. 2019).

Opinion

HONORABLE STEVE C. JONES, UNITED STATES DISTRICT JUDGE

This matter appears before the Court on Plaintiffs' Motion for Temporary Restraining Order/Preliminary Injunction (Doc. No. [2] ).

I. BACKGROUND

In their Motion, Plaintiffs state that they seek emergency relief to allow them to exercise their First Amendment rights in the public areas of Capitol Square property, which includes the State Capitol Building. Doc. No. [2-1], p. 1. Specifically, Plaintiffs wish to wear a pink button that states: "Don't Fuck With Us[,] Don't Fuck Without Us." Doc. No. [2-1], p. 2. The language in the button is also followed by *1351a logo associated with the organization, Planned Parenthood. Plaintiffs state that: "[t]he first part of the message is intended to convey anger and urge lawmakers not to harm women by banning abortion. The second part of the message is a health advisory that, in a humorous but serious manner, reminds people not to have sexual intercourse without birth control or protection." Id.

In support of their motion, Plaintiffs included declarations in which they state that on March 7, 2019, they were wearing the above-described pink buttons in the public areas of the State Capitol Building and were told to remove the buttons by Capitol Police. Doc. Nos. [4], [5]. Plaintiffs state that they were not doing anything disruptive at the time that they were asked to remove the buttons. Id.

The State Capitol Police Officer Defendants (hereinafter "Defendants") filed a response brief on March 13, 2019. In their affidavits and supporting materials, Defendants assert that individuals wearing the pink buttons at issue were asked to remove them because the language on the buttons was considered "obscene, vulgar, or profane, was worn in the presence of minors, and was threatening an immediate breach of the peace as prohibited by O.C.G.A. § 16-11-39(a)(4)." Doc. No. [11-1], p. 4, ¶ 7.

The Court held a hearing on the motion on March 14, 2019. This matter is now ripe for review.

II. LEGAL STANDARD

The Court considers four factors when deciding whether to issue a preliminary injunction1 pursuant to Federal Rule of Civil Procedure 65 : (1) whether there is a substantial likelihood of success on the merits; (2) whether the preliminary injunction is necessary to prevent irreparable injury; (3) whether the threatened injury outweighs the harm that the preliminary injunction would cause to the non-movant; and (4) whether the preliminary injunction would be adverse to the public interest. Parker v. State Bd. of Pardons and Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001). Injunctive relief is an extraordinary and drastic remedy and should not be granted unless the movant clearly establishes the burden of persuasion as to each of these four factors. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000). In addition, "[a]t the preliminary injunction stage, a district court may rely on affidavits and hearsay materials which would not be admissible evidence for a permanent injunction, if the evidence is 'appropriate given the character and objectives of the injunctive proceeding.' " Levi Strauss & Co. v. Sunrise Int'l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995) (quoting Asseo v. Pan Am. Grain Co., 805 F.2d 23, 26 (1st Cir. 1986) ). The decision to grant preliminary injunctive relief is within the broad discretion of the district court. Majd-Pour v. Georgiana Cmty. Hosp., Inc., 724 F.2d 901 (11th Cir. 1984).

III. LEGAL ANALYSIS

A. Likelihood of Success on the Merits

As stated above, the first factor when determining whether to issue temporary or preliminary injunctive relief is whether the movant has a substantial likelihood of success on the merits. Parker, 275 F.3d at 1035.

*1352In their Complaint, Plaintiffs assert that Defendants have violated their First Amendment rights by prohibiting them from wearing the pink buttons at issue in public areas of the State Capitol Building. Doc. No. [1], p. 7, ¶ 22.

"The First Amendment prohibits governments from abridging free speech," which includes expressive conduct. N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1565 (11th Cir. 1990) ; see also R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992).2 In determining whether a state government official violated the First Amendment, "the initial inquiry is whether the speech or conduct affected by the government action comes within the ambit of the First Amendment." One World One Family Now v. City of Miami Beach, 175 F.3d 1282, 1285 (11th Cir. 1999).

Wearing a button with a political message is a form of expression within the protection of the First Amendment. See Minnesota Voters All. v. Mansky, --- U.S. ----, 138 S.Ct. 1876, 1885, 201 L.Ed.2d 201 (2018). However, "obscene material is unprotected by the First Amendment." Miller v.

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Bluebook (online)
373 F. Supp. 3d 1347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rubin-v-young-gand-2019.