In a case of first impression within the Sixth Circuit, a district court held that a city’s interest in protecting the exercise of a permit holder’s First Amendment rights is—at least in some circumstances—a significant interest supporting the content-neutral regulation of speech.

In 2018, Johnson City, Tennessee granted a Special Events Permit to LGBTQ organization TriPride to hold a parade and festival in a city park. At the festival, city officers enforcing the Special Events Policy moved religious protesters from blocking the park’s entrance. The protesters filed suit, claiming that this allegedly arbitrary enforcement violated their rights to free speech and free exercise of religion.

Under the Special Events Policy, city officials are to assist organizers in hosting safe, successful, and minimally-disruptive permitted events. Given credible threats against TriPride and the city’s geographic proximity to the recent, violent Unite the Right rally in Charlottesville, Virginia, officials were particularly concerned about event safety and interference. Toward the beginning of the festival, the religious protesters walked through the park, speaking to attendees and distributing pamphlets without issue. However, when they later blocked the entrance to the park, TriPride organizers called police officers, who removed the protesters to the sidewalk in order to stop event interference. Although TriPride representatives later asked officers to remove protesters from the sidewalk, officers declined, noting that the protesters were relaying an expressive message but no longer interfering with the event.

On cross motions for summary judgment, both parties agreed that the protesters’ speech at issue is protected by the First Amendment and occurred in a traditional public forum. The protesters urged the court to apply the strict scrutiny test to the application of the Special Event Policy, claiming that officers moved them to the sidewalk because of the content of their message. The city advocated for an intermediate scrutiny test, maintaining that the decision was content-neutral and based solely on the policy to promote safe, successful, and minimally-disruptive events.

At the outset, the court clarified that although protesters had a First Amendment right to exercise free speech while attending the festival, they had no right to interfere with TriPride’s own expressive message by disturbing it. As video evidence and testimony clearly showed, however, the protesters’ blocking of the park entrance did in fact interfere with TriPride’s expressive message and ability to use its permit, as attendees could not enter the festival. The court then easily found the application of the Special Events Policy to be content-neutral, citing the officers’ decision to only move protesters from the entrance and, despite the organizers’ requests, allow them to stay on the adjacent sidewalk. Had officers enforced the policy in a content-based manner, they likely would have agreed to move protesters to a location where their message could not reach festival attendees. No evidence in the record showed that any officer acted in opposition to the content of the protesters’ message; the city satisfied its burden to show no genuine dispute of material fact.

Justifying its decision to sideline the protesters, the city argued that it held a significant interest in protecting TriPride’s own First Amendment right to use its permit as intended. Other circuits have recognized a government’s significant interest in protecting a permit holder’s right to use its permit as intended, including the right of city officials to prevent protesters from interfering with the message of the permit holder. Declining to adopt a hard rule, the court instead employed a fact-specific determination that considers the nature and function of the forum. Comparing with the Supreme Court case of Heffron v. International Society for Krishna Consciousness, where the Court found a significant interest in fixing solicitation locations at a state fair to control crowds, the court found substantial similarities between fairs and festivals, particularly regarding safety concerns.

Having thus determined the state interest significant, the court also quickly found the regulation narrowly tailored: after being moved from blocking the entrance, protesters could still shout their message and reach attendees. Similarly, the court found this afforded ample alternative channels for communication. Finding no violation of free speech rights, and further chiding the protesters’ lack of evidence for their claims, the court granted summary judgment to the city. As the free speech claim was outcome-determinative of the protesters’ other claims, including free exercise of religion and violations of the Religious Freedom Restoration Act, the court did not examine them.

Waldrop v. City of Johnson City, 2020 WL 7038909 (E.D. Tenn. Nov. 30, 2020).