iMatter Utah v. Njord
| Decision Date | 22 December 2014 |
| Docket Number | No. 13–4173.,13–4173. |
| Citation | 774 F.3d 1258 |
| Parties | IMATTER UTAH, an unincorporated association; Ryan Pleune; Lauren Wood; Linda Parsons, Plaintiffs–Appellees, and Alex Mateus, Consolidated–Plaintiff–Appellee, v. John NJORD, UDOT Executive Director; Mark Velasquez, UDOT Right–of–Way Control Coordinator; Nazee Treweek UDOT District Permits Officer, Defendants–Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
J. Clifford Petersen, Assistant Attorney General (Joni J. Jones and Kyle J. Kaiser, Assistant Utah Attorneys General, with him on the briefs), Salt Lake City, UT, for Defendants–Appellants.
Stewart Gollan, of the Utah Legal Clinic, (John Mejia and Leah Farrel, ACLU of
Utah, with him on the brief), Cooperating Attorney for the Utah Civil Rights & Liberties Foundation, Salt Lake City, UT, for Plaintiffs–Appellees.
Before BRISCOE, Chief Judge, HARTZ and HOLMES, Circuit Judges.
Before the Utah Department of Transportation will grant a permit authorizing a parade on a Utah state highway, an applicant must obtain liability insurance and sign an indemnification form. Two environmental groups brought suit in the United States District Court for the District of Utah, challenging these requirements under the First Amendment. The district court granted summary judgment in favor of the plaintiffs, holding that the permit requirements are facially invalid. Officials from the Utah Department of Transportation (John Njord, Mark Velasquez, and Nazee Treweek, collectively “Utah” or “UDOT”) appeal. We exercise appellate jurisdiction under 28 U.S.C. § 1291 and affirm.
iMatter Utah1 is an unincorporated, voluntary association concerned with raising awareness of climate change. As part of this effort, iMatter organized a parade scheduled for May 7, 2011. The group planned to march down State Street past various government buildings in Salt Lake City, Utah. Salt Lake City granted the group a free-expression permit for the event. But because State Street is a Utah state highway, which falls under Utah's jurisdiction, the free-expression permit was conditioned on the group's ability to obtain an additional permit from UDOT.
Before UDOT will grant a permit authorizing a parade on a Utah state highway, an applicant must satisfy two requirements.2 First, the applicant must “obtain and provide proof of liability insurance at time of application naming the ‘State of Utah, the Department and its employees' as additional insured under the certificate, with a minimum of $1,000,000 coverage per occurrence and $2,000,000 in aggregate.” Utah Admin. Code r. 920–4–5. Second, the applicant must sign an indemnification form. Id. The indemnification form provides:
iMatter claimed that it could not afford the required insurance and sought a waiver from UDOT. When UDOT declined that request, iMatter sought a temporary restraining order in the United States District Court for the District of Utah. The district court denied iMatter's request.
iMatter nevertheless held its parade on May 7, 2011. Because iMatter did not obtain a UDOT permit, the group could only march on the sidewalks of State Street. iMatter then held a second parade on September 24, 2011. As before, the group refused to comply with UDOT's insurance and indemnification requirements, did not obtain a permit from UDOT, and marched only on the sidewalks of State Street.
Around the same time, another environmental group confronted the UDOT permit requirements. This group, formed by plaintiff Alex Mateus, is called Positive Change Utah. Mateus planned to hold a parade on State Street in October 2011. Mateus could not afford the insurance policy, and UDOT denied his application for a permit. Mateus's parade never materialized.
Both iMatter and Mateus filed complaints challenging the constitutionality of UDOT's permit requirements in the United States District Court for the District of Utah, naming as defendants several UDOT officials. The cases were consolidated, and all parties moved for summary judgment. Applying the Supreme Court's criteria for evaluating time, place, and manner restrictions, the district court concluded that neither permit requirement was narrowly tailored to advance Utah's interests in public safety and protecting the public fisc. The district court granted summary judgment in favor of the plaintiffs, holding that the permit requirements were facially invalid under the First Amendment and enjoining the defendants from enforcing them as currently written.3 iMatter Utah v. Njord, 980 F.Supp.2d 1356, 1385–86 (D.Utah 2013).
On appeal, Utah raises a single issue: whether its insurance and indemnification requirements violate the First Amendment.
We review a district court's summary judgment ruling de novo, applying the same standard as the district court. EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1116 (10th Cir.2013). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “In assessing a motion for summary judgment, we view the facts, and all reasonable inferences those facts support, in the light most favorable to the nonmoving party.” Abercrombie & Fitch Stores, 731 F.3d at 1116 (alteration omitted) (internal quotation marks omitted).
“[D]uly enacted laws are ordinarily presumed constitutional.” Ass'n of Cmty. Orgs. for Reform Now (ACORN) v. Municipality of Golden, Colo., 744 F.2d 739, 746 (10th Cir.1984). But “when a law infringes on the exercise of First Amendment rights, its proponent”—here, Utah—“bears the burden of establishing its constitutionality.” Id.; see also Doe v. City of Albuquerque, 667 F.3d 1111, 1120 (10th Cir.2012) ().
The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech, ... or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I. The First Amendment applies to the States under the Due Process Clause of the Fourteenth Amendment. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 749 n. 1, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) ; see also 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n. 1, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996). At its core, “the First Amendment reflects a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Boos v. Barry, 485 U.S. 312, 318, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ) (internal quotation marks omitted). Yet “[n]othing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799–800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). Thus, our commitment to free speech exists in balance with other government interests. However, “[i]n places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed.” Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). We refer to such places as “traditional public forums.” See id. at 45–46, 103 S.Ct. 948 (1983).
Here, the parties agree that State Street is a traditional public forum. See also Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (). Even in a public forum, however, “the government may impose reasonable restrictions on the time, place, or manner of protected speech....” McCullen v. Coakley, ––– U.S. ––––, 134 S.Ct. 2518, 2529, 189 L.Ed.2d 502 (2014) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ) (internal quotation marks omitted). Such restrictions must: (1) be “justified without reference to the content of the regulated speech;” (2) be “narrowly tailored to serve a significant governmental interest;” (3) “leave open ample alternative channels for communication of the information;” and (4) “not delegate overly broad licensing discretion to a government official.” Id. (); Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) ().
iMatter brings both facial and as-applied challenges to Utah's permit requirements.4 iMatter Utah, 980 F.Supp.2d at 1365. “A facial challenge considers the restriction's application to all conceivable parties, while an as-applied challenge tests the application of that...
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