930 F.2d 1163 (7th Cir. 1991), 90-1954, Stokes v. City of Madison

Docket Nº:90-1954.
Citation:930 F.2d 1163
Party Name:Elliot STOKES and Jeff Goldstein, Plaintiffs-Appellants, v. CITY OF MADISON, a Municipal Corporation Within the State of Wisconsin and Wisconsin Mutual Insurance Company, a Corporation Licensed to do Business in the State of Wisconsin, Defendants-Appellees.
Case Date:April 19, 1991
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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930 F.2d 1163 (7th Cir. 1991)

Elliot STOKES and Jeff Goldstein, Plaintiffs-Appellants,

v.

CITY OF MADISON, a Municipal Corporation Within the State of

Wisconsin and Wisconsin Mutual Insurance Company,

a Corporation Licensed to do Business in

the State of Wisconsin,

Defendants-Appellees.

No. 90-1954.

United States Court of Appeals, Seventh Circuit

April 19, 1991

Argued Sept. 19, 1990.

As Amended on Denial of Rehearing and

Rehearing En Banc June 6, 1991.

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[Copyrighted Material Omitted]

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Mark F. Borns, Tammy S.G. Baldwin, Borns, Macaulay & Jacobson, Madison, Wis., for plaintiffs-appellants.

Bradley D. Armstrong, Michael S. Anderson, Axley & Brynelson, Madison, Wis., for defendants-appellees.

Before CUMMINGS, CUDAHY and COFFEY, Circuit Judges.

CUDAHY, Circuit Judge.

This case presents a First Amendment challenge to two Madison ordinances. One specifies the times during which sound amplification devices can be used on the city streets and on the State Street Mall, and the other governs the issuance of parade permits (called Street Use Permits). Appellants argue that the ordinances constitute a prior restraint and impose constitutionally infirm time, place and manner restrictions on protected speech. The district court found the ordinances constitutional. We affirm, on the basis that the regulations, as implemented, contain neither an impermissible prior restraint nor an unreasonable time, place and manner restriction.

I.

Elliot Stokes and Jeff Goldstein participated in a rally on March 16, 1989, sponsored by the El Salvador Action Coalition at the State Street Mall (the Mall) in Madison, Wisconsin. The event's organizers had received a Street Use Permit that permitted them to hold the rally, but because they had not applied to use sound amplification devices, their permit stated, "No amplification devices will be permitted per City ordinance." When Goldstein attempted to speak to the assembled crowd, several people complained that they could not hear him, so he attempted to speak through a hand-held, battery-powered bullhorn. He was immediately arrested. He passed the bullhorn to Stokes, who also was arrested when he refused to give the bullhorn to the police.

Municipal regulations govern use of amplification devices both on Madison streets in general and at the Mall in particular. Madison General Ordinance (M.G.O.) 24.04(3)(a) 1 prohibits the use of "any device, apparatus or instrument for the amplification of the human voice or any sound or

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noise, or other sound-making or sound reproducing device" except during the hours of 12:00-1:30 p.m. and 5:00-7:00 p.m. The regulation exempts amplified music from churches on Sundays or religious holidays, sound produced by emergency vehicles, sound otherwise approved by the state of Wisconsin and sound produced incidental to a Street Use Permit.

Another section of the ordinance, MGO 24.04(3)(b)(1), governs sound amplification specifically on the Mall by requiring the Mall Coordinator's permission to use any sound amplifying equipment. Such permission must be granted during the same hours as MGO 24.04(3)(a) permits amplification on the streets generally (12:00-1:30; 5:00-7:00), but authority to waive the prohibition at other times is in the Coordinator's discretion. The ordinance establishes procedures and timetables for appeal of the Coordinator's decision to the Parks Commission. The regulation does not specify criteria that the Coordinator must consider in evaluating a permit request and does not specify the Parks Commission's standard of review. The ordinance also grants the Parks Commission exclusive authority to grant permission in the "C4 commercial zoning district" for music or noncommercial messages during the Christmas holiday season.

The Coordinator processes requests for a waiver for times other than 12:00-1:30 and 5:00-7:00 by requiring the organizer to apply for a Street Use Permit, governed by M.G.O. 10.056(4)(b). 2 A "Staff Team," which the Coordinator chairs, evaluates applications. The ordinance specifies that the Team is to employ the Events Criteria and Street Use Policy adopted by the Common Council. See Order (Mar. 30, 1990) at 7-8. These criteria include both "operational" factors (organizational structure of the sponsor, physical size of the event, conflicts with other activities, etc.), as well as some potentially content-based factors (appropriateness of event, past experience and "special problems," which include the general "health, safety and welfare" of residents). However, the stipulated facts indicate that the Team does not refer to the Events Criteria because it has settled on a generous interpretation of its mandate--no request for a Street Use Permit has been denied to a party wanting to speak on the Mall. There have been approximately twenty-five such requests over the last five years.

Not appearing in the quoted sections of the ordinances are the fees for the two types of permits. Use of a sound amplifying device during the "permitted" time periods or during a "waived" period requires an electrical use permit, which costs $5.00 plus $.15 for each hour of use and which must be paid whether or not the sound amplification device requires electricity. A Street Use Permit usually costs $20.00 and requires proof of adequate insurance

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coverage. (The event organizers did not pay the $20.00 fee, presumably because they did not anticipate needing electricity.) The insurance provision is waived for students because of the University's blanket insurance policy. The bullhorn that Stokes and Goldstein used apparently ran on battery power.

In sum, Madison regulates sound amplification on the Mall with a two-tier regulatory structure. To use such a device during the "permitted" hours, an applicant receives, per the ordinance, automatic permission from the Mall Coordinator by applying for and receiving an electrical permit costing $5.00 plus $.15 per hour. At other times, a sound-amplification applicant must secure a $20.00 Street Use Permit. Apparently, no permit or permission is required and no fee is assessed to speak on the Mall without a sound amplification device at any time.

Following Stokes' and Goldstein's arrests, they sued Madison under 42 U.S.C. section 1983, alleging that M.G.O. 24.04 amounts to a prior restraint on protected expression and that both the sound amplification and Street Use Permit ordinances constitute unreasonable time, place and manner restrictions. They also argued that the fees are unconstitutional because they bear no relationship to the costs of administering the regulation. On cross motions for summary judgment and on stipulated facts, the district court dismissed the plaintiffs' claims and held for defendants. The court found M.G.O. 24.04 constitutional because the regulation is a permissible time, place and manner restriction; does not offend the establishment clause under Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); and is not an impermissible prior restraint because it regulates amplified speech and not speech per se. Furthermore, the court held that because officials grant all requests for Street Use Permits, they implement the regulation in a constitutional manner, citing Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).

II.

Plaintiffs challenge the ordinances on both a facial and "as applied" basis. Defendants challenge plaintiffs' standing, alleging that the regulations do not limit plaintiffs' right to unamplified speech and that the plaintiffs' injury is the result of their failure to apply for a permit. The district court made the ambiguous finding that:

in this case plaintiffs may not have standing under the "extraordinary doctrine" to facially challenge the ordinances because the ordinances regulate merely the amplification of speech and not speech itself. However, the Court will address the merits of plaintiffs' claims.

Order at 10. It is unclear why the district court reached the merits if standing was in doubt. However, because we conclude plaintiffs have standing, this anomaly has no significance.

In Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988), the Supreme Court held that a publishing company had standing to challenge on its face a licensing scheme, even before the company applied for a license. The Court reasoned that:

a facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers.... The law must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks.

486 U.S. at 759, 108 S.Ct. at 2145. The Madison ordinances have the requisite nexus. First, the Mall Coordinator has the discretion to grant or deny a permit during hours other than 12:00-1:30 and 5:00-7:00. Second, the criteria employed by the Mall Coordinator and the Staff Team are sufficiently flexible to permit censorship to slip into regulatory decisions. Moreover, defendants admit that the Staff Team decides whether to grant permits for demonstrations without referring to the criteria in the ordinances, although to date all requests have been granted.

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The authorities' willingness to grant licenses does not destroy plaintiffs' "as applied" standing. Defendants argue that it does, citing the Supreme Court decision in Ward, which provided that a reviewing court must consider any "limiting construction" that a state court or agency has placed on a statute. 109 S.Ct. at 2756. This argument confuses substantive review with standing. The class of plaintiffs eligible for standing includes all who are affected by its implementation....

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