A member of the street ministry of the Seminole Baptist Church, the plaintiff in the case. Source: Seminole Baptist Church
A member of the street ministry of the Seminole Baptist Church, the plaintiff in the case. Source: Seminole Baptist Church

The plaintiff in Williamson v. City of Foley was a Baptist pastor whose congregation periodically engaged in evangelistic street ministry by preaching and witnessing orally and with signs on public sidewalks at the intersection of two major highways. In 2014, the City adopted an ordinance requiring anyone wishing to engage in speech on public property to obtain a permit before doing so. Shortly after the court enjoined enforcement of that ordinance, the City adopted a new ordinance that created a new regime governing speech on public property. The second ordinance, which repealed the first in its entirety, allowed speech to occur on public property without a permit except between the hours of 8 a.m. and 5 p.m. on three of the four corners of the intersection. Anyone wishing to speak during that period and in those locations was required to obtain a permit to close the street to vehicle traffic.

As a preliminary matter, the court considered whether the plaintiff’s challenge, brought against the original ordinance, was moot given the repeal by the second ordinance. The court held that, although the defendants met the initial burden of showing that the original ordinance had been unambiguously terminated, “when an ordinance is repealed by the enactment of a superseding statute, then the superseding statute or regulation moots a case only to the extent that it removes challenged features of the prior law. To the extent that those features remain in place, and changes in the law have not so fundamentally altered the statutory framework as to render the original controversy a mere abstraction, the case is not moot.” Here, the court reasoned that the second ordinance’s limitations on the plaintiff’s access during business hours to three of the four corners of the intersection disadvantaged the plaintiff in the same fundamental way as the original ordinance.

After determining that portions of the claim were not moot, the court considered the constitutionality of the second ordinance. For speech in a traditional public forum, such as the public sidewalks at the intersection in question, “a time, place and manner restriction can be placed… only if it is content neutral, narrowly tailored to achieve a significant government interest, and leaves open ample channels of communication.” The City’s purported “significant government interest” for purposes of constitutional analysis was speaker safety, the sufficiency of which was undisputed at trial by either party. Despite the plaintiff’s claims that the second ordinance did not meet the “narrow tailoring” requirement by, on the one hand, permitting speech at the intersection without a permit during the night hours, when safety and visibility should be more of a concern, and on the other failing to regulate non-speaking pedestrian access to the intersection at any time, the court determined that the plaintiff failed to present anything evidencing the second ordinance’s overbreadth for review. Ultimately, the court held that “the requirement of narrow tailoring is satisfied so long as the… regulation promotes a substantial government interest that would be achieved less effectively absent the regulations.” “So long as the means chosen are not substantially broader than necessary to achieve the government’s interest… 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.” Since, according to the court, the plaintiff only presented evidence of the existence of less-speech-restrictive alternatives, and not to the broadness of the second ordinance, the plaintiff did not “employ the governing analysis of that inquiry and so present(ed) nothing for review.”

Finally, the court sided with the plaintiff in determining that the police chief was not eligible for qualified immunity for his actions in enforcing a portion of the original ordinance that was, based on a 1992 Supreme Court decision, clearly unconstitutional. The original ordinance had permitted the police chief, who was charged with issuing speech permits, to consider whether the proposed speech was likely to “provoke disorderly conduct.” Since this type of regulation was precisely the type of regulation deemed unconstitutional by the 1992 case, the court determined that the prior case gave fair warning that the original ordinance was unconstitutional, thereby removing the police chief from the protection of qualified immunity.

Williamson v. City of Foley, No. 15-0430-WS-B, 2016 WL 4014708 (S.D. Ala. July 26, 2016)

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Photo of Cory Rutz Cory Rutz

Cory Rutz represents industrial, commercial, residential, and mixed-use real estate owners and developers in various matters relating to land use entitlements. Her practice includes assisting clients with subdivision, zoning, public improvement fees, easements, and common interest community development under the Colorado Common Interest…

Cory Rutz represents industrial, commercial, residential, and mixed-use real estate owners and developers in various matters relating to land use entitlements. Her practice includes assisting clients with subdivision, zoning, public improvement fees, easements, and common interest community development under the Colorado Common Interest Ownership Act (CCIOA).