893 F.2d 1387 (D.C. Cir. 1990), 89-7120, Community for Creative Non-Violence v. Turner

Docket Nº:89-7120.
Citation:893 F.2d 1387
Party Name:COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Appellees, v. Carmen TURNER, Appellant.
Case Date:January 26, 1990
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1387

893 F.2d 1387 (D.C. Cir. 1990)

COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Appellees,

v.

Carmen TURNER, Appellant.

No. 89-7120.

United States Court of Appeals, District of Columbia Circuit.

January 26, 1990

Argued Oct. 20, 1989.

Page 1388

Appeal from the United States District Court for the District of Columbia. (Civil Action No. 88-1048)

Linda Lazarus, with whom Gerald J. Stief, Robert J. Kniaz, Robert L. Polk, and Bruce P. Heppen were on the brief for the appellant.

Andrew T. Karron, with whom Maureen E. McGirr, and Arthur B. Spitzer were on the brief for appellees.

Before MIKVA, EDWARDS, and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

Opinion concurring in the judgment filed by Circuit Judge WILLIAMS.

MIKVA, Circuit Judge:

The Washington Metropolitan Area Transit Authority ("WMATA") promulgated a regulation (the "Regulation") governing the use of WMATA property by those wishing to engage in free speech activities. The trial court determined that certain provisions of the Regulation were facially violative of the first amendment and thus invalid. In particular, the trial court invalidated the provisions that require those who wish to engage in free speech activities to obtain a permit, empower WMATA to modify or rescind the permit under certain specified conditions, allow WMATA to set the maximum number of persons who may engage in free speech activities on a station-by-station basis, and prohibit certain forms of expression.

For the reasons expressed below, we affirm the trial court's decision to invalidate the Regulation's permit requirement and the provisions allowing WMATA to establish the maximum number of people who

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may engage in free speech activities in each station, empowering WMATA to suspend or modify a permit, and requiring that free speech activities be carried out in a "conversational tone." We reverse the trial court's decision to strike the provisions banning chanting, dancing, shouting, outcries, and the use of musical instruments and voice amplification devices, and we remand for development of the factual record necessary to evaluate the constitutionality of these restrictions.

I

On January 15, 1987, WMATA adopted the Regulation to govern "the organized exercise of rights and privileges which deal with political, religious, or social matters and are non-commercial." The Regulation requires those wishing to engage in these free speech activities to obtain a permit by mail or in person from the WMATA central business office during normal business hours. The Regulation also provides for the enforcement of its restrictions under applicable local criminal laws and ordinances.

In a separate consolidated criminal action, appellees Snyder, Fennelly, and other members of Community for Creative Non-Violence ("CCNV") were arrested and prosecuted for allegedly violating the Regulation. Superior Court Judge Hamilton dismissed the case on the grounds that the Regulation was facially overbroad and thus violative of the first amendment.

Appellees subsequently filed a complaint charging that the Regulation contravened the first, fifth, and fourteenth amendments to the Constitution. The parties filed cross-motions for summary judgment. On May 17, 1989, Judge Sporkin issued a Memorandum Opinion and Order granting the appellees' motion for partial summary judgment and invalidating the entire Regulation. 714 F.Supp. 29. On May 19, 1989, the trial court issued an Amended and Substituted Order superseding the May 17, 1989 order and granting in part the appellees' motion for partial summary judgment. --- F.Supp. ----.

The trial court's Amended Order invalidated the following provisions of the Regulation:

Section 100.10 Free Speech Activities

....

(b) Permit. All individuals and groups requesting permission to engage in free speech activities on WMATA property must first submit and have approved the permit request in accordance with Section 100.2, permits.

(c) Modification and Suspension. All free speech permits are subject to modification and suspension as a result of or in the event of any emergencies such as snow storms, traffic accidents, power failures, transportation strikes; or on the day of the observance of national holidays; or other conditions which may affect the traffic flow in the area covered by free speech activities creating a dangerous condition or substantially interfering with the general public.

....

(e) Number of Individuals. The number of persons permitted to engage in free speech activities at each Metro Station will be designated on a station-by-station basis.

....

(g) Prohibitions. Free speech activities are to take place in a conversational tone and at no time shall such activities include chanting, dancing, shouting, outcries, or the use of any device for voice amplification or any other sound device including musical instruments.

II

  1. The Permit Requirement

    The trial court determined that the Regulation's permit requirement, Sec. 100.10(b), constitutes an unconstitutional prior restraint on the exercise of first amendment rights. Because Sec. 100.10(b) requires that any party who wishes to engage in free speech activities on WMATA property must first obtain a permit from the Office of General Counsel, it is a prior

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    restraint, as it gives " 'public officials the power to deny use of a forum in advance of actual expression.' " Ward v. Rock Against Racism, --- U.S. ----, 109 S.Ct. 2746, 2756 n. 5, 105 L.Ed.2d 661 (1989) (quoting Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239, 1244, 43 L.Ed.2d 448 (1976)). The Supreme Court has consistently indicated that a system of prior restraint comes to a court "bearing a heavy burden against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 n. 10, 83 S.Ct. 631, 639 n. 10, 9 L.Ed.2d 584 (1963). The Court has also noted, however, that prior restraints are not per se invalid. A prior restraint may be constitutional if attended by procedural safeguards designed "to obviate the dangers of a censorship system." Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 739, 13 L.Ed.2d 649 (1965). To this end, the Court has required the regulating body to provide "narrow, objective, and definite standards to guide the licensing authority" and ensure a content-neutral determination. Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969).

    In accord with these precedents, this court has indicated that reasonable time, place, and manner restrictions are an exception to the general prohibition against prior restraints. See Lebron v. WMATA, 749 F.2d 893, 896 (D.C.Cir.1984). This court has also stated that

    it is common ground that appropriate permit systems are permissible under the First Amendment.... A permit system is an embodiment of time, place, and manner restrictions that have long enjoyed the approbation of the Supreme Court.

    Kroll v. United States Capitol Police, 847 F.2d 899 (D.C.Cir.1988), modified on reh'g, No. 83-2014 (Jan. 19, 1989) (emphasis added).

    The standard for reviewing time, place, and manner restrictions on expression protected by the first amendment depends on the nature of the forum being regulated. If it is a "public forum," the Supreme Court has held that the regulation must be content-neutral, narrowly tailored to serve a significant governmental interest, and allow for sufficient alternative channels of communication. See Rock Against Racism, 109 S.Ct. at 2753. If the proposed forum for expression is not a public forum, the regulation will be upheld as long as the restrictions are reasonable and are not directed at opposing the views of particular individuals. See Adderley v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1986).

    Courts that have addressed the public forum question have determined that a property may become a public forum in two ways. First, courts have tended to characterize as a public forum property that resembles streets and parks because such property historically has been devoted to the exchange of free ideas. See, e.g., United States v. Grace, 461 U.S. 171, 179, 103 S.Ct. 1702, 1708, 75 L.Ed.2d 736 (1982) (sidewalks surrounding the Supreme Court grounds); see also U.S. Southwest Africa/Namibia Trade & Cultural Council v. United States, 708 F.2d 760, 763-66 (D.C.Cir.1983) (discussing the factors that support "public forum" status). Second, in Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985), the Court stated that it

    has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum. The Court has also examined the nature of the property and its compatibility with expressive activity to discern the government's intent.

    Id. at 802, 105 S.Ct. at 3449; see Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (state university created public forum for students' use by express policy of making its meeting facilities available for their use); Madison Joint School Dist. v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) (state statute providing for open school board meetings created public forum); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (municipal auditorium

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    and city-leased theater were public fora because they were designed for and dedicated to expressive activities).

    In contrast, the Court has refused to find a designated public forum where there is clear evidence of contrary intent or the nature of the regulated property is inconsistent with free speech activity...

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