traditional public forum

Nashville Pride Festival. Source: The Tennessean.

In a case that we reported on over a year ago, last fall, the Sixth Circuit Court of Appeals reversed a Tennessee judge’s entry of summary judgment in favor of the Nashville metropolitan government, finding instead that the relocation of protesters at Nashville’s Pride Festival violated the protesters’ First Amendment rights.

The facts of the case can be found in our prior post.  In short, this case arose from Nashville’s exclusion of anti-homosexuality preachers from the city’s annual Pride Festival, which celebrates the LGBT community of Nashville.

On appeal, the Sixth Circuit agreed with the district court that the area in question was a traditional public forum.  However, the appeals court found the relocation of the protesters to be content based.  Although Nashville contended that the relocation of the protesters was content neutral, because the speech in question interfered with the Pride Festival, its location obstructed ingress and egress to the Festival, and the protesters presented a danger to public safety due to the crowds that they drew.  The appellate court found that the first of these reasons was itself content based, since the protesters’ message was itself the reason that it interfered with the Festival.  In applying strict scrutiny, the Sixth Circuit found that the city had failed to demonstrate any compelling interest justifying its exclusion of the protesters from the Festival.

McGlone v. Metro. Govt. of Nashville, 749 Fed. Appx. 402 (6th Cir. 2018).

An aerial view of the Virginia Run Cove development. Source: Google.

Last month, a federal district court in Tennessee denied a motion for preliminary injunction filed by a man who wished to picket a Planned Parenthood location in a business park in Memphis.  The court determined that the private street on which the plaintiff, John Brindley, intended to picket was not a public roadway and therefore was not a traditional public forum requiring content neutral speech regulations.

Planned Parenthood’s offices are located on Virginia Run Cove, a two-lane street that serves multiple businesses located within the park.  The park is zoned as a planned unit development, and the street serves the businesses located within the park.  Brindley sought to protest Planned Parenthood on Virginia Run Cove, but was asked to move by a police officer on the premise that Virginia Run Cove is a private street.  Brindley subsequently moved to a nearby public street, but was dissatisfied that his protest location was nearly 300 feet from his target audience, Planned Parenthood.  Brindley subsequently filed his complaint in federal district court.

In conducting a forum analysis to determine whether Virginia Run Cove was a public forum for First Amendment purposes, the court noted that some public fora are privately-owned.  These areas include public sidewalks that run across private property, sidewalks on private university campuses, and even the streets of corporate-owned communities.  However, the court observed, private areas are not converted into public fora where the owner of the property allows a more limited use of the property. Continue Reading In Tennessee Planned Parenthood Case, Court Finds Private Street is Not a Public Forum

James Deferio protesting same-sex marriage in Syracuse. Source: Syracuse University Student Voice.

In a case that we reported on in 2016, a federal district court in New York has granted summary judgment to the plaintiff.  The case involves the regulation of protest speech—specifically, a protester’s activities during an LGBTQ rights parade—on public sidewalks.

A brief recap of the facts is merited.  James Deferio is a Christian evangelist who has protested each year at the Central New York Pride Parade and Festival, held in Syracuse.  Each year, the city issued a permit to the organizers of the parade.  That permit indicated that no speakers would be allowed on sidewalks adjacent to the parade.  At the 2014 event, Syracuse police officers threatened Deferio with arrest in reliance on the permit, and he relocated from the site.  In 2015, the city again approved a permit for the parade, giving the parade exclusive control over First Amendment activities and limiting the use of sound amplification devices near the parade route.  The 2015 permit also allowed for a zone where protest activities could occur.  Deferio again attended the parade to protest.  After minor verbal altercations ensued, a Syracuse police officer told Deferio that he could be arrested for his activities, and he relocated to the zone designated for protest activity. Continue Reading Summary Judgment Granted to Christian Evangelist in Syracuse Pride Parade Case

A Street Preacher (though not the one in this case) | by frankieleon, flickr. Used subject to reuse label.

The concrete pathways at the corner of University Boulevard and Hackberry Lane in Tuscaloosa, Alabama, may look and quack like

sidewalks, but as constitutional matter, the Eleventh Circuit considers them something less: an extension of the University of Alabama campus.  In a recent decision, that circuit concluded the sidewalks were not a “traditional public forum” within which the Constitution confines government control of speech and other demonstrations, but rather a “limited public forum” to which the University of Alabama could constitutionally control access. The practical result?  The unlicensed street preacher who sued ‘Bama won’t get a preliminary injunction against the university’s grounds-use policy.

The plaintiff preacher, Continue Reading Can University of Alabama control preacher’s access to campus sidewalks? 11th Circuit: Roll Tide.

Nashville Pride Festival. Source: Nashville Pride.

Late last month, a federal district court in Tennessee granted summary judgment to the Nashville metropolitan government in a case involving the rights of protesters at the 2015 Nashville Pride Festival, which is a celebration of LGBTQ rights and culture.

Nashville Pride Festival is held in the City’s Public Square Park.  In order to hold the festival in the park, Nashville required the organization Nashville Pride to obtain a permit.  The event was ticketed, such that only those with tickets could enter into the park.  The plaintiffs in the case, John McGlone and Jeremy Peters, believe that homosexuality is a sin.  They attended the festival in protest, but stayed outside the ticketed area.  A festival employee asked them to leave the area outside of the gate, as it was subject to Nashville Pride’s permit.  Eventually, the protesters were removed to a location on the other side of the street from the park.  This location was unsatisfactory to the plaintiffs, because they believed that their message would reach less people. Continue Reading Court Upholds Relocation of Protesters at Nashville Pride Festival

Twin Oaks Park, the site of the photography dispute. Source: STLtoday.com

Last year, we reported on a case in Twin Oaks, Missouri, where a local wedding photographer, Josephine Havlak, challenged a town ordinance limiting commercial activity in a public park.  Late last month, the Eighth Circuit Court of Appeals affirmed the district court’s denial of the photographer’s motion for preliminary injunction, finding the ordinance content neutral and constitutional as applied to the photographer.

The facts of the case can be found on our post from last year.

On appeal, the Eighth Circuit first evaluated whether the plaintiff’s claim was an as-applied challenge or a facial challenge to the entire ordinance.  A facial challenge can result in invalidation of the entire ordinance, while an as-applied challenge only prohibits enforcement of the ordinance against the plaintiff.  Because the photographer failed to provide any evidence that third parties would be affected in a manner different from her, the court determined that Havlak’s challenge was an as-applied challenge.  Thus, the court only analyzed the ordinance’s application to the plaintiff. Continue Reading Eighth Circuit Upholds Denial of Preliminary Injunction in Photography Case

A homeless individual’s sign in Slidell, Lousiana. Source: WWLTV.com.

This week, a federal district court in Louisiana granted a motion for summary judgment invalidating the City of Slidell’s law requiring panhandlers to register and wear identification before soliciting donations.  In a lengthy but thorough order, the court found the city’s law, which applied only to individuals seeking to solicit donations of money or services, content based and unconstitutional, and issued a permanent injunction against enforcement of the law.

The backstory of Slidell’s “panhandler ID” law starts in 2015.  Since then, the city received 70 complaints relating to panhandling and solicitation, but only 14 were “connected to an identifiable individual.”  Because of the difficulty of tracking down panhandlers who were violating city laws, the city council passed an ordinance containing certain registration and identification requirements.  Specifically, the ordinance required individuals to complete an application at least 48 hours prior to panhandling.  To complete the application, a person was to physically appear at the police department between 9:00 and 5:00 on a weekday, fill out the written application (which required listing an address, telephone number, email, and other identifying information), and show a photo identification.  After a group of indigent individuals sued the city over the law, the city removed the 48-hour waiting period and required issuance of a permit for up to 72 hours of panhandling following filing of a complete application.  The 72-hour permit can be extended for up to a year on certain conditions. Continue Reading Louisiana Town’s “Panhandler ID” Law Struck Down

A photo of the “Temple Burn” engaged in by Catharsis on the Mall in 2015. Source: catharsisonthemall.com.

Last month, the federal district court in Washington, D.C. denied a request for a preliminary injunction against the National Park Service’s enforcement of its bonfire restrictions on the National Mall.  A group sought to host a demonstration on the Mall that would have attracted more than 4,000 participants and involved the burning of a wooden “Temple” as a symbol of support for additional protections and services for veterans.  The National Park Service denied the group’s request for a permit based on newly-enacted rules regarding bonfires on the Mall, which limited the size of bonfires for safety purposes.  Prior regulations allowed bonfires with a National Park Service permit.  Continue Reading No Preliminary Injunction in National Mall Bonfire Case

The Fremont Street Experience in Las Vegas. Source: Vegas Experience.

Fremont Street in Las Vegas is one of the city’s major tourist attractions.  It is operated and managed by a private concessionaire, Fremont Street Experience, LLC.  The city government regulates street performances on Fremont Street, controlling the areas in which street performances take place, limiting noise made by street performers, designating times in which street performances are allowed, establishing a lottery system to allocate times and locations among street performers (25 to 38 performers, depending on the time of the day), and requiring that street performers obtain a city license.  In a prior case, the Ninth Circuit Court of Appeals found Fremont Street to be a traditional public forum.

Continue Reading Court Denies Preliminary Injunction in Las Vegas Mall Case