University City, Missouri, home to Washington University and the Loop, a buzzy restaurant and theater district bordering the City of St. Louis, recently survived a challenge to its ordinance prohibiting activities that obstructed sidewalks and walkways.  That victory followed litigation against an earlier ordinance that had prohibited a much broader, vaguer set of activities, like “tending to hinder or impede the free and uninterrupted passage of … pedestrians” and remaining stationary in a public sidewalk while engaged in speech or performance.  The original ordinance also prohibited musical performances on private property without a permit.

Diners enjoying an evening in the Loop, presumably without a permit. (Image in the public domain.)

After several street performers challenged the original ordinance, the city amended it to add a mens rea requirement and remove the “tending to hinder or impede” pedestrian traffic component.  It also agreed not to enforce the non-stationary policy and appeared to give up enforcing the permit requirements.

Still dissatisfied, the street performers renewed their challenge, asserting violations of the First and Fourteenth Amendments under the amended ordinance and seeking nominal damages for violations of the same rights based on the city’s actions under the prior ordinance.

Assessing the amended ordinance under the typical standard for time, place, and manner restrictions, the court upheld the city’s prohibition on sidewalk obstructions as applied to the plaintiffs, noting that the city had not enforced the ordinance against them since adopting it, and that it had no plans to do so.  The court also observed that the ordinance did not prohibit all expressive activities—just those that obstructed the reasonable flow of pedestrian traffic.

The court also concluded that the city’s policy of requiring a permit to perform on private property fronting a public sidewalk was unconstitutional as a prior restraint that could not survive strict scrutiny, yet it declined to enjoin the policy because the plaintiffs failed to show that the city was enforcing or intended to enforce the policy.

As to the plaintiffs’ backward-looking claims under the prior ordinance, the court agreed that the ordinance violated both the First Amendment and the Due Process Clause of the Fourteenth Amendment and awarded nominal damages.  The prior ordinance, the court concluded, failed to provide reasonable notice of the prohibited conduct, and its prohibition on remaining stationary (without regard to whether being stationary obstructed pedestrians) burdened substantially more speech than was necessary and was not narrowly tailored to advance a significant governmental interest.

Jennings v. City of Univ. City, Missouri, 4:20-CV-00584 JAR, 2022 WL 157495 (E.D. Mo. Jan. 18, 2022)