This post was authored by Otten Johnson summer law clerk David Brewster.  David is a rising third-year law student at the University of Denver Sturm College of Law.

Last week, the Seventh Circuit Court of Appeals upheld a preliminary injunction preventing an Indiana county from denying a marijuana advocacy organization’s request to demonstrate.  We first reported on this case last December.  As a refresher, the Higher Society of Indiana is a non-profit organization currently lobbying for “full legalization of Cannabis in Indiana.”   In 1999, the Tippecanoe County board declared the courthouse grounds a “closed forum,” and enacted the following policy for those seeking demonstration approval on the grounds:

Only displays and events sponsored and prepared by a department or office of county government will be allowed in the windows of the Tippecanoe County Office Building or on the grounds of the Tippecanoe County Courthouse. Said displays and events shall be scheduled through the Board of Commissioners of the County of Tippecanoe.

Many courthouse events have been sponsored by the board of commissioners including an annual art fair, a march supporting Syrian refugees, and an event honoring fallen police officers. Due to a misunderstanding with a County official, the Society held one marijuana advocacy event on the courthouse grounds.  But when the Society petitioned for a second event, the board declined, citing the closed forum policy.  The Society sought a preliminary injunction, which was granted by the district court.

The Seventh Circuit found the district court’s “well-reasoned opinion” persuasive.  The County conceded in its briefs and oral arguments before the Seventh Circuit that its policy was not viewpoint neutral, thereby disqualifying the County from arguing permissible forum restrictions.  Alternatively, the County contended that permitting or promoting events within this closed forum constituted government speech.  In line with Summum and Walker, the court stated that the relevant factors to determine whether an action constitutes government speech are:  (1) whether governments have traditionally spoken to the public in the manner at issue; (2) whether observers of the speech at issue would reasonably interpret it to be that of the government; and (3) whether the government maintained editorial control over the speech.

As applied here, the courthouse grounds were not historically used for government speech, nor was there a history of the county using private group events to convey its own messages. Next, the court determined that a reasonable observer would not attribute the views expressed at the Society’s rally as being the government’s opinion. Protests are distinctly different from permanent monuments, and reasonable observers understand that protestors often carry out demonstrations on symbolic public property even when the government does not approve of the message. Finally, the private speakers at board-approved events are not the County’s “alter egos” in that they are allowed to express views on any topic once the permit to hold an event has been approved.  Thus, the County does not maintain editorial control of any individual speakers.

The Seventh Circuit acknowledged a dilemma presented by this case: “[T]he County is in a difficult position. It would like to open the courthouse grounds to some events that it believes add cultural or civic value to the community, yet it doesn’t want to create a public forum for everything under the sun.”  As the body of government speech doctrine case law develops, this dilemma will likely play center stage.

Higher Society of Indiana v. Tippecanoe County, ___ F.3d ___, 2017 WL 2455911 (7th Cir. Jun. 7, 2017).

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.