International Soc. for Krishna Consciousness of New Orleans, Inc. v. City of Baton Rouge

• Decision Date: 05 July 1989
• Docket Number: No. 88-3381,88-3381
• Citation: 876 F.2d 494
• Parties: The INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF NEW ORLEANS, INC., Plaintiff-Appellant, v. CITY OF BATON ROUGE and Parish of East Baton Rouge, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 494

876 F.2d 494

58 USLW 2059

The INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF NEW

ORLEANS, INC., Plaintiff-Appellant, v. CITY OF BATON ROUGE and Parish of East Baton Rouge,

Defendants-Appellees.

No. 88-3381.

United States Court of Appeals, Fifth Circuit.

July 5, 1989.

J. Arthur Smith, III, Baton Rouge, La., for plaintiff-appellant.

W. Michael Stemmans, William R. Aaron, Asst. Parish Attys., Baton Rouge, La., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Louisiana.

Before ALDISERT ^*, REAVLEY and HIGGINBOTHAM, Circuit Judges.

ALDISERT, Circuit Judge.

We are to decide whether an ordinance enacted by the City of Baton Rouge and the Parish of East Baton Rouge (city-parish) trenches upon first amendment rights and is, therefore, unconstitutional. The ordinance prohibits soliciting employment, business or charitable contributions from the occupants of any vehicle on any street or roadway.

The International Society for Krishna Consciousness of New Orleans, Inc., (ISKCON) appeals from the district court's denial of relief. 668 F.Supp. 527. ISKCON had sought a declaratory judgment and injunction against the city-parish to have the ordinance declared unconstitutional and to restrain the city from enforcing it. ISKCON contends that the ordinance is overly broad and that the city-parish failed in its duty to employ the least restrictive means of serving the municipality's interest in traffic flow and roadway safety. The appellees meet the argument head on. They argue the ordinance is narrowly tailored, that it is not substantially overbroad, and that it qualifies as the least restrictive means of achieving its goal of regulating traffic and protecting motorist and pedestrian safety. The district court held that the ordinance did not offend the constitution. We agree and will affirm.

Jurisdiction was proper in the district court under 28 U.S.C. Sec. 1331. The appeal was timely filed under Rule 4(a) Fed.R.App.P. The appeal is from a final judgment and we have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

I.

The appellant society is part of the International Krishna Consciousness movement. The Society is a religious organization entitled to the protection of the first amendment. Int'l Soc'y for Krishna Consciousness v. City of Houston, 689 F.2d 541 (5th Cir.1982). Its adherents believe that in order to glorify God, and to enlighten the public generally, they must practice the ritual of Sankirtan, which requires them to publicly distribute religious literature and to solicit financial contributions to further their cause.

Victor Mistretta, the Society's president, testified that he had decided the Sankirtan ritual would be performed in Baton Rouge during the 1986 Christmas season. Several members of the Society were then dispatched from New Orleans to Baton Rouge to solicit donations at its busiest intersections. All were dressed in Santa Clause costumes. Mr. Mistretta testified that those who participated were carefully instructed regarding safety and told to stay on the sidewalk or neutral ground if at all possible. Krishna members who were soliciting donations at intersections were warned by Baton Rouge police officers that their activities violated a local ordinance, and that they would be arrested if they persisted. Although no arrests were actually made, the Society instituted this action in the United States district court for the Middle District of Louisiana.

The ordinance, section 96(b) of Title 11 of the Code of Ordinances of the City of Baton Rouge and Parish of East Baton Rouge, was enacted by the Baton Rouge city council in 1983. The preamble to the ordinance reads:

WHEREAS, a problem has been identified with persons attempting to solicit rides, employment, business, or charitable contributions from the occupants of moving vehicles on certain city streets; and

WHEREAS, this practice has been identified as being unsafe for both the person engaging in the solicitation and for traffic in general; and

WHEREAS, the activity of soliciting rides, business, employment, or charitable contributions from the occupants of vehicles constitutes an impediment to the normal and safe flow of traffic in the City of Baton Rouge; and

WHEREAS, this activity has in the past resulted in accidents one of which resulted in the death of the person engaged in the soliciting activity.

Section 96(b) provides:

No person shall be upon or go upon any street or roadway or shall be upon or go upon any shoulder of any street or roadway nor shall any such person be upon or go upon any neutral ground of any street or roadway for the purpose of soliciting employment, business, or charitable contributions of any kind from the occupant of any vehicle.

The reasons for and the purpose of the ordinance were explained by the witnesses at the hearing. Richard Redd, legal advisor to the city's police department testified that the city-parish enacted the ordinance after a traffic death in which a news vendor was fatally injured while soliciting sales in a Baton Rouge street. Redd personally drafted the ordinance and said he could not envision drafting another ordinance that would achieve the desired intent, taking into account safety and traffic flow considerations.

James Webb, an expert in traffic engineering, established that the purpose of streets, highways, and roads was to move people and goods both safely and efficiently. He testified that streets, highways, and roads are not designed for the purpose of soliciting funds. He also testified that he could not envision another drafting scheme that would achieve the desired result and eliminate hazardous consequences and traffic problems.

The city-parish introduced into evidence a local newspaper dated December 13, 1986, displaying a front page photograph of a female wearing a Santa Claus costume standing beside a vehicle in a line of vehicles. The court found that both feet were planted firmly in the roadway, not on the neutral ground. The individual was identified by Mr. Mistretta as one of the Krishna members who did indeed solicit donations in Baton Rouge at that time.

The district court found as a fact that in Baton Rouge members of the sect solicit donations from occupants of motor vehicles that are temporarily stopped at traffic lights. Such donations are solicited only at high traffic times, and at the busiest intersections. R.E. 60-61.

II.

Whether ISKCON's first amendment free speech rights have been infringed is a mixed question of law and fact. Dunagin v. City of Oxford, 718 F.2d 738, 748 n. 8 (5th Cir.1983), cert. denied, 467 U.S. 1259, 104 S.Ct. 3553, 82 L.Ed.2d 855 (1984). The appropriate standard of review is de novo because the application of constitutional law to the facts of this case "requires subtle legal distinctions, a sense of history, and an ordering of conflicting rights, values and interests." See id. Appellate courts have "considerable leeway" in this context. Id. at 849 n. 8.

III.

The Society argues that public streets, sidewalks, and neutral grounds constitute public fora which may be freely used for purposes of assembly, communication, and discussion of public questions. The Supreme Court "has adopted a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes." Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985); see also Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).

In Perry, the court identified three types of fora: the traditional public forum, the public forum created by designation, and the non-public forum. Traditional public fora generally are those places which "by long tradition or by government fiat have been devoted to assembly and debate." Perry, 460 U.S. at 45, 103 S.Ct. at 954. Public sidewalks, streets, and parks have been recognized as traditional public fora which "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed.2d 1423 (1939); see also Frisby v. Schultz, --- U.S. ----, ----, 108 S.Ct. 2495, 2499-501, 101 L.Ed.2d 420 (June 27, 1988); Perry, 460 U.S. at 45, 103 S.Ct. at 954.

The government's ability to permissibly restrict expressive activity in a public forum is very limited. United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1707, 75 L.Ed.2d 736 (1983). "The appropriate level of scrutiny is initially tied to whether the statute distinguishes between prohibited and permitted speech on the basis of content." Frisby, --- U.S. at ----, 108 S.Ct. at 2500. Content-based regulation must be necessary to serve a compelling state interest and be narrowly drawn to achieve that end; content-neutral regulations of time, place, and manner of expression are enforceable if they are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. Perry, 460 U.S. at 45, 103 S.Ct. at 955 (cited in Frisby, --- U.S. at ----, 108 S.Ct. at 2500).

When public property is not characterized as a public forum, the government "may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." Perry, 460 U.S. at 46, 103 S.Ct. at 955. Indeed, a complete ban on free expression may be imposed in a non-public forum if the prohibition is reasonable and content-neutral. See United States Postal Service v. Council of Greenburgh Civic Assoc's, 453 U.S. 114, 132, 101 S.Ct. 2676, 2686, 69...