Some of Higher Society’s decor on the Tippecanoe County courthouse. Source: WLFI.

Earlier this week, a federal court in Indiana issued a preliminary injunction in favor of a group of marijuana advocates, Higher Society of Indiana, who wish to hold rallies on the steps of the Tippecanoe County courthouse.  The county government denied the group’s request to hold rallies in that location because the county disagreed with the group’s message.

In 1999, the county issued a policy regarding use of the courthouse grounds by non-governmental groups.  The policy requires a group wishing to hold an event on the courthouse grounds to obtain a sponsorship approval from the board of county commissioners.  The county made clear that the purpose of this requirement was to ensure that their messages while using the courthouse grounds were in accord with the county’s views.  Under the policy, the county had allowed art fairs, events held by the League of Women Voters, and a Fraternal Order of Police rally.  But when Higher Society, which supports the legalization of marijuana, attempted to hold a rally at the courthouse, the county was not nearly as welcoming.

On Higher Society’s motion for preliminary injunction, the district court noted that the county had categorically admitted to viewpoint discrimination in its administration of courthouse events.  While the county defended itself by arguing that the courthouse was reserved for government speech only, the court disagreed.  Applying the test for government speech laid out by the Supreme Court in Pleasant Grove City v. Summum and Walker v. Texas Division, Sons of Confederate Veterans, the district court found that the events held in the courthouse square could not possibly be government speech.  According to the court, the county could not point to any evidence that the courthouse was traditionally used for the government to convey its own messages, passersby were not likely to attribute the messages of groups hosting events as those of the county, and the county exercised almost no control over the messages conveyed at the courthouse square.  Given these factors, the speech occurring at the courthouse was not government speech.  And because the county had effectively admitted to engaging in viewpoint discrimination, regardless of the courthouse’s classification under forum analysis, the county was deemed unlikely to prevail on the merits of the case.

To paraphrase Tom Petty’s song about a girl who grew up in an Indiana town, it looks like this won’t be Tippecanoe County’s last dance with Mary Jane.

Higher Society of Indiana, Inc. v. Tippecanoe County, No. 4:16-CV-43, 2016 WL 7367791 (N.D. Ind. Dec. 19, 2016).

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.