Anderson v. Milwaukee County

• Decision Date: 11 January 2006
• Docket Number: No. 05-1267.,05-1267.
• Citation: 433 F.3d 975
• Parties: Gail ANDERSON, Plaintiff-Appellant, v. MILWAUKEE COUNTY and Milwaukee Transport Services, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

433 F.3d 975

Gail ANDERSON, Plaintiff-Appellant, v. MILWAUKEE COUNTY and Milwaukee Transport Services, Inc., Defendants-Appellees.

No. 05-1267.

United States Court of Appeals, Seventh Circuit.

Argued September 28, 2005.

Decided January 11, 2006.

Mathew D. Staver (argued), Liberty Counsel, Longwood, FL, for Plaintiff-Appellant.

Mary Ellen Poulos (argued), Office of the Corporation Counsel, Mary P. Ninneman (argued), Brian D. Winters, Quarles & Brady, Milwaukee, WI, for Defendants-Appellees.

Before FLAUM, Chief Judge, and MANION and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

In this case, filed pursuant to 42 U.S.C. § 1983, Gail Anderson alleges that Milwaukee County and Milwaukee Transport Services, Inc., the operator of the Milwaukee County bus system, violated her First and Fourteenth Amendment rights by their "tariff," which prohibits the distribution of literature on county buses.

Ms. Anderson, a woman in her mid-fifties, lives in Milwaukee. She doesn't drive a car and so is a regular customer on Milwaukee's buses. But she is not, it would appear, your typical bus rider. As anyone who rides buses in urban communities knows, most passengers mind their own business. Most avoid conversation and many even avoid eye-contact, with other passengers. Not Ms. Anderson. She (here, of course, we take her allegations as true) has a "sincerely held religious belief" and a wish to "share her faith with those sitting next to her on the bus by talking to them and giving them religious literature." She also wants to give her literature to other passengers who pass by her seat on the bus. It's unclear just how long, and how often, she has followed her urge to share her views with other riders.

Ms. Anderson's urge to "share her faith" and the bus company's tariff collided on July 8, 2003. On that day, she boarded a bus and took a seat near the front. From there, she attempted to hand out copies of a book, later identified as "The Book of Hope." The book contains stories from the Bible. In the past, she says she has been allowed to hand out the book on the bus, but this time the driver, Rozell Smith, observed what she was doing and asked her to stop. Despite repeated requests, Ms. Anderson did not stop and, in fact, said, "I will not stop." At this point, Smith did not know the book contained religious material.

Because Ms. Anderson refused to stop handing out copies of her book, Smith called the transit system dispatch office. He spoke to dispatcher Valdis Salmins. The transcript of the call is as follows:

Operator: ... 63 on 63, bus 4442, badge 2637.... OK, I want the company rules on passing out literature on the bus, there. I'm sure we have some kind of regulation, there. Is that possible for people to pass out literature, all different types of literature, over?

Dispatch: That's a negative. There is no solicitation of any kind allowed on our buses. (S0) whether it's free or for charge or what-ever.... Nothing is to be given out on the buses.

Operator: Well, that's affirmative on that. I thought that was a rule. I got a lady on here who's passing out books on the bus, annoying the passengers, and I told her that she couldn't do that. She told me I couldn't stop her from doing that, over.

Dispatch: Ok, I'll send the CPOs to intercept you. If she gets off before you're intercepted, please give us a call back.

Operator: Roger.

Mr. Salmins called system security. The transcript of that call:

CPO: CPO 8, dispatch ... we're in the downtown area, what do you have?

Dispatch: EB from 107th and Silver Spring, I have vehicle 4442, 63 on 63, badge 2037. Female on board trying to hand out booklets. I don't know if they're religious or political, or what, but no solicitation allowed on our buses whatsoever.

Two security officers intercepted the bus, boarded it, approached Ms. Anderson, and asked whether they could talk to her off the bus. At that point, they did not know what she was handing out. After she was off the bus, Ms. Anderson told the officers about "The Book of Hope." The officers explained to her that the Transit System had a rule against distributing literature on buses. They asked her whether she wanted to board the next bus to continue her trip. Being within six blocks of her home, she decided to walk.

The "rule" discussed by the bus driver and the dispatcher is one of the "Passenger Tariffs," under which the bus system operates. The tariffs set out fare information and rules regarding passenger conduct. Tariff 116 says "No person furnished transportation under fares named in this tariff shall be permitted to enter or remain in the system's buses: (a) For purpose of distributing any form of advertising or literature."

Based on these facts, the district judge (the Honorable Lynn Adelman) granted the defendants' motion for summary judgment. Ms. Anderson now appeals, claiming that the tariff is impermissibly vague, overbroad, and unreasonable. She also claims it discriminates against religious literature. We review a summary judgment determination as well as any questions of constitutional law under the de novo standard of review. Weinberg v. City of Chicago, 310 F.3d 1029, 1035 (7th Cir.2002).

We will turn first to Ms. Anderson's claims that the tariff, on its face, is unconstitutionally vague and overbroad. The tariff is vague, she says, because it is unclear what "distributing" means. She poses several hypothetical examples. For instance, is handing out one book distributing? A bus company witness said no. But, she asks, is handing out one item a day for more than one day considered distribution? How about the businessman who hands a seat mate his business card? Her examples of the outer limits of possible meanings of the word "distributing" fall short of convincing us that the tariff is unconstitutionally vague. Common sense must not be and should not be suspended when judging the constitutionality of a rule or statute.

A law is void for vagueness if it fails to give fair warning of what is prohibited, if it fails to provide explicit standards for the persons responsible for enforcement and thus creates a risk of discriminatory enforcement, and if its lack of clarity chills lawful behavior. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). On the other hand, the Court has said that "perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity." Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). There are, of course, limits to how precise language can be in the context of a law, ordinance, or, for that matter, a bus system tariff. In United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 578-79, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973), the Court remarked that "there are limitations in the English language with respect to being both specific and manageably brief...." Looking at the Civil Service Rules interpreting the then-existing version of the Hatch Act, 5 U.S.C. § 7324(a)(2), the Court said the "ordinary person exercising ordinary common sense" knows perfectly well what they mean.

Ms. Anderson's arguments that the tariff is vague are reminiscent of those in Schultz v. Frisby, 877 F.2d 6, 8 (7th Cir.1989), which involved abortion opponents who wished to picket the home of an abortion provider.¹ The plaintiffs claimed that an ordinance which outlawed picketing that was "directed at" a particular home was unconstitutionally vague. We set out their concern:

Will it be enough to go `round and `round the block? Could the picketers march in front of the five houses on either side of the [providers']? May they stop for one minute, or two, or five, in front of the ... place before moving along? Surely they can't evade the law by standing in front of the... home and occasionally jumping one house on either side. How much longer must the route be?

We rejected these concerns in favor of common sense:

No matter how clear the ordinance seems, a hundred nice questions may follow in its wake. The Constitution does not require [the town] to answer each of these before it may enforce the law. Incompleteness is a curse of language, as of human imagination. To say that precision is a precondition to enforcement is to say that no ordinance regulating speech may stand—a proposition the Supreme Court has rejected over and again.

Id. In our case, we cannot imagine that the tariff would have a chilling effect, for instance, on a bus-riding businessman who wanted to hand his business card to a seat mate. In short, we do not find the ordinance unconstitutionally vague.

Neither can the tariff be seen as facially overbroad. The overbreadth doctrine allows a plaintiff to ask that a law be struck down based not on how it affects the plaintiff but on how it might be applied to third parties not before the court. Because that is "strong medicine," the "overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 614-615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Again, in Virginia v. Hicks, 539 U.S. 113, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003), the Court emphasized that to be overbroad, the law's application to protected speech must be substantial. That simply is not ...