Ater v. Armstrong

• Decision Date: 26 June 1992
• Docket Number: No. 90-5424,90-5424
• Citation: 961 F.2d 1224
• Parties: Don ATER, Plaintiff-Appellant, v. David ARMSTRONG and Leon E. Jones, Sr., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1224

961 F.2d 1224

Don ATER, Plaintiff-Appellant, v. David ARMSTRONG and Leon E. Jones, Sr., Defendants-Appellees.

No. 90-5424.

United States Court of Appeals Sixth Circuit.

Argued Nov. 8, 1990.

Decided April 17, 1992.

Rehearing En Banc Denied June 26, 1992.

David A. Friedman (Argued and Briefed), American Civ. Liberties Union of Kentucky, Louisville, Ky., Samuel Hunt Fritschner, Hendersonville, N.C., for plaintiff-appellant.

Stuart L. Adams, Jr. (Argued and Briefed), Rich, Adams, Sisney & D'Ambrosio, Corp. Center, Louisville, Ky., for defendants-appellees.

Before: MILBURN, Circuit Judge; and BROWN and KRUPANSKY, Senior Circuit Judges.

BAILEY BROWN, Senior Circuit Judge.

Plaintiff, Don Ater ("Ater"), appeals from the district court's grant of summary judgment in favor of Defendants, David Armstrong, Jefferson County, Kentucky Judge/Executive, and Leon E. Jones, Sr., Jefferson County Police Chief. ¹ Ater, a Grand Dragon of the Realm of the Kentucky Invisible Empire, Knights of the Ku Klux Klan, sought to distribute political literature while standing on medians or on Jefferson County, Kentucky roadways. Bobby Crouch, who was then Jefferson County Police Chief, denied permission for such distribution under Kentucky Revised Statutes ("KRS") section 189.570, and Ater sued, challenging the constitutionality of the statute as interpreted. For the reasons that follow, we affirm the district court's grant of Defendants' motion for summary judgment on this issue.

I

During 1987, Ater sought to distribute political literature while standing on medians or on Jefferson County, Kentucky roadways. Where there was no median, Ater planned to use flashing warning lights. Ater sought permission from then Jefferson County Police Chief Bobby Crouch ("Crouch"). On June 30, 1987, Crouch notified Ater that KRS 189.570 prohibited the proposed conduct. Ater contends that then Jefferson County Judge/Executive Harvey Sloane participated in the interpretation of the statute.

As interpreted, KRS 189.570 generally prohibits persons from standing in the roadways, including the medians. Subsection 21, however, carves out an exception to this rule:

No person shall stand on the highway for the purpose of soliciting contributions unless such soliciting is designated by the presence of a traffic control device or warning signal or an emergency vehicle or public safety vehicle as defined in KRS 189.910 making use of the flashing, rotating or oscillating red, blue or yellow lights on such devices or vehicles.

KRS 189.570(21).

During November of 1987, Ater sued Crouch and Sloane in their official capacities, seeking declaratory and injunctive relief under 42 U.S.C. § 1983. He claimed that Defendants' interpretation and application of the statute violated his speech and association rights guaranteed by the First and Fourteenth Amendments.

Ater moved for partial summary judgment, and the district court denied his motion on November 28, 1989. The district court stated:

When this statute is read in its entirety, it is clear that the legislature chose to have only one exception [i.e., to solicit contributions]. Pedestrians are restricted to the sidewalk if it is available; if not, then to the shoulder. If no shoulder, they must remain as far as practicable from the edge of the road. It seems logical therefore that the statute prohibits standing or walking on the median to distribute literature. ²

The district court held that the statute is a content-neutral restriction on speech because the exception, which allows the solicitation of contributions but not the distribution of literature, "is based on the type of activity, not the content or view of the speech." It further determined that the prohibition is narrowly tailored to serve a significant government interest and that it leaves open ample alternative channels of communication. The district court concluded, based upon these determinations, that the prohibition did not violate Ater's rights under the First and Fourteenth Amendments.

In response to the district court's denial of Ater's motion for partial summary judgment, Defendants moved for partial summary judgment. The district court granted this motion for the same reasons it denied Ater's motion. Ater voluntarily dismissed with prejudice his remaining claim of selective enforcement and now appeals from the final order of the district court.

II

The issues on appeal may be succinctly framed. No party denies that the distribution of literature is speech protected by the First and Fourteenth Amendments. Defendants contend that the statute imposes a reasonable time, place, and manner restriction that is content neutral, is narrowly tailored to serve a significant government interest, and leaves open ample alternative channels of communication. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989). In response, Ater contends that the prohibition is a content-based restriction that is neither necessary to serve a compelling state interest nor narrowly drawn to achieve that end. See Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420 (1988). Alternatively, Ater contends that even if the prohibition were content neutral, it is not narrowly tailored to serve the state's legitimate interest in highway safety.

A

We first briefly discuss the nature of the forum at issue. There can be no doubt that the streets of Jefferson County, Kentucky, are traditional public fora. "No particularized inquiry into the precise nature of a specific street is necessary; all public streets are held in the public trust and are properly considered traditional public fora." Frisby, 487 U.S. at 481, 108 S.Ct. at 2500. The government's ability to restrict expressive conduct in traditional public fora is quite limited. See United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983).

It is equally clear, however, that the government may impose reasonable time, place, and manner restrictions on protected conduct, even in traditional public fora. Such restrictions comport with the strictures of the First Amendment so long as they (1) are justified without reference to the content of the speech (content neutrality), (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels for communication of the information. Rock Against Racism, 491 U.S. at 791, 109 S.Ct. at 2753. Because Ater concedes the existence of ample alternative channels for communication, the remainder of this opinion is concerned with the first two requirements of the above standard.

B

Ater first contests the district court's conclusion that the prohibition is content neutral. The Supreme Court has held that, to be content neutral, a restriction " 'may not be based upon either the content or subject matter of [the] speech.' " Heffron v. Int'l Soc. of Krishna Consc., 452 U.S. 640, 648, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981) (quoting Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980)). The central inquiry with respect to content neutrality is "whether the government has adopted a regulation of speech because of disagreement with the message it conveys," Bamon Corp. v. City of Dayton, 923 F.2d 470, 473 (6th Cir.1991) (citation omitted), or because of a desire to suppress information. The restriction must apply "even-handedly to all who wish to distribute and sell written materials or to solicit funds." Heffron, 452 U.S. at 649, 101 S.Ct. at 2564. The restriction, moreover, must not "suffer from the more covert forms of discrimination that may result when arbitrary discretion is vested in some governmental authority." Id.

The Kentucky statute, KRS 189.570, is content neutral on its face. Because the statute prohibits all parties from distributing literature in the roadways, and because it permits all parties to solicit contributions in the roadways if the precautions prescribed by subsection 21 are undertaken, the statute applies evenhandedly to all those who wish to distribute written materials or solicit funds. For example, both the Ku Klux Klan and the NAACP are barred from distributing their literature to motorists, regardless of their diverse viewpoints or the informational content of their messages. Both organizations, however, could solicit for contributions, provided that each meets the safety requirements set forth in subsection 21 of the statute.

Ater contends, however, that the local officials designated the individuals who have been allowed access to Kentucky's roadways. This selective designation, Ater contends, is based on the content of the message. We disagree. The statute does not vest the officials with such arbitrary discretion. The statute, as interpreted and applied, provides that all parties are prohibited from disseminating literature but, provided the lighting safeguards of subsection 21 are met, are permitted to solicit contributions. The county officials' interpretation and application of the statute, therefore, were not based on the content of Ater's message. ³

Ater also contends that a recent opinion of this court undercuts the content-neutral characterization of Kentucky's disparate treatment of distribution of literature and solicitation for contributions. See Discovery Network v. Cincinnati, 946 F.2d 464, 471-72 (6th Cir.1991). In Discovery Network, we concluded that a Cincinnati ordinance prohibiting the newsrack distribution of "commercial" publications (such as magazines listing real estate for sale), but allowing such distribution of "non-commercial" publications (which had been interpreted and applied to cover newspapers), was a content-based restriction that violated the First Amendment as incorporated by the Fourteenth Amendment. "The ordinance treats newsracks differently on the basis of the commercial content of the publications...