Bays v. City of Fairborn

• Decision Date: 13 February 2012
• Docket Number: No. 10–4059.,10–4059.
• Citation: 668 F.3d 814
• Parties: Tracy BAYS; Kerrigan Skelly, Plaintiffs–Appellants, v. CITY OF FAIRBORN; Peter Bales, individually and in his official capacity as Parks and Recreation Superintendent for the City of Fairborn; Rodney Myers, individually and in his official capacity as Police Officer for the City of Fairborn; Mark Stannard, individually and in his official capacity as Police Officer for the City of Fairborn, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

668 F.3d 814

Tracy BAYS; Kerrigan Skelly, Plaintiffs–Appellants,

v.CITY OF FAIRBORN; Peter Bales, individually and in his official capacity as Parks and Recreation Superintendent for the City of Fairborn; Rodney Myers, individually and in his official capacity as Police Officer for the City of Fairborn; Mark Stannard, individually and in his official capacity as Police Officer for the City of Fairborn, Defendants–Appellees.

No. 10–4059.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 13, 2012.Decided and Filed: Feb. 13, 2012.

ARGUED: Nathan W. Kellum, Alliance Defense Fund, Memphis, Tennessee, for Appellants. Joshua R. Schierloh, Surdyk, Dowd & Turner Co., L.P.A., Miamisburg, Ohio, for Appellees. ON BRIEF: Nathan W. Kellum, Jonathan A. Scruggs, Alliance Defense Fund, Memphis, Tennessee, for Appellants. Joshua R. Schierloh, Jeffrey C. Turner, Dawn M. Frick, Surdyk, Dowd & Turner Co., L.P.A., Miamisburg, Ohio, for Appellees.Before: SILER and KETHLEDGE, Circuit Judges; ADAMS, District Judge. ^*

OPINION

SILER, Circuit Judge.

Plaintiffs Tracy Bays and Kerrigan Skelly brought this action against the City of Fairborn and various Fairborn officials (collectively “Fairborn”), claiming that the solicitation policy in effect at the Fairborn Sweet Corn Festival (“Festival”) violates the free speech clause of the First Amendment. The plaintiffs' request for a preliminary injunction was denied by the district court, which found that the plaintiffs were not likely to succeed on the merits because the solicitation policy and its enforcement were not state action, and the policy, even if it was attributable to Fairborn, was a reasonable time, place, and manner restriction on speech. For the reasons stated below, we REVERSE the district court's order and REMAND to the district court with instructions to grant the preliminary injunction.

I.

The Festival is an annual event held since 1982 at Community Park, a 200–acre public park in Fairborn, Ohio. The Festival takes place in a designated portion of Community Park and involves a sweet corn eating competition, live music, and various booths displaying and selling arts and crafts and other goods. The Fairborn Parks and Recreation Department has entered into an “Agreement for Facility Use” with the Fairborn Arts Association (“FAA”) and the Fairborn Lions Club (“Lions Club”) that allows the use of the park for the Festival. The agreement provides that the “Sweet Corn Festival is the responsibility of the FAA and Lions Club organizations” and that “[p]romotion, conduct, registration, fund raising and other festival-related issues are the responsibility of the FAA and Lions Club Organizations.” Fairborn agrees to support the Festival in a number of ways, including by raising and lowering Festival banners, providing picnic tables and bleachers, and supplying general labor at a set cost. Community Park remains free and open to the public during the Festival.

The FAA and Lions Club accept applications for booth space for those wishing to sell merchandise, food, or arts and crafts. The application is to be submitted to the FAA prior to the Festival and requires applicants to pay between $85 and $135 for a booth. Attached to the application is a set of Terms and Conditions, which includes the solicitation policy at issue in this case. Paragraph 5 of the Terms and Conditions provides that “[t]here shall be no sales or soliciting of causes outside of the booth space.”

Bays and Skelly are Christians who seek to publicly convey their religious beliefs by speaking, preaching, distributing literature, and displaying signs. They planned to meet at Community Park on August 15, 2009, to express their religious views during the Festival. Bays arrived at the park around 11:00 a.m. and began walking through the Festival speaking and carrying a 2' x 2' sandwich board sign that read “Jesus is the Way, the Truth and the Life. John 14:6” on the front and “Are you born again of the Holy Spirit?” on the back. Bays was soon approached by a Festival worker who told him to remove his sign or leave the park. After Bays asked if there was a written policy substantiating this request, the Festival worker walked away and Bays followed him to a nearby tent. When Bays repeated his question about the policy, the worker referred to a Festival policy against solicitations. Bays remained convinced of his right to speak and display signs, so he left the tent and began to distribute religious tracts while continuing to wear the sign.

Bays was then approached by Peter Bales, the Fairborn Parks and Recreation Department Superintendent, who told Bays he could not display a sign or distribute literature in the park. After Bales walked away from Bays, Bays found Skelly in the park. While the two were talking, they were approached by Bales and three Fairborn police officers, including Mark Stannard and Rodney Myers. Bays and Skelly invoked their First Amendment rights, but the officials again stated that they could not display signs or hand out literature and that they would be arrested for criminal trespassing if they did not stop those activities. Officer Myers also informed them that they would need a “permit,” presumably for a booth, if they wanted to stand and preach stationary, but that they could still talk to other people as long as “people [do not] indicate to us that you are bothering them.... If we start getting approached by people who say, hey these two guys are approaching me and bothering me and talking about stuff I don't want to hear, then you're going to have a problem.”

After a lengthy discussion, Bays and Skelly decided to avoid arrest and leave the Festival at Community Park. They filed their complaint with the district court on July 19, 2010, seeking declaratory relief, an injunction, and nominal damages pursuant to 42 U.S.C. §§ 1983 and 1988. The district court denied their request for a preliminary injunction, concluding that the alleged policy was not Fairborn's and that there was therefore no state action. The district court went on to explain that, even if there was state action, the plaintiffs were not likely to succeed on the merits because the solicitation policy is constitutional as a reasonable time, place, and manner restriction on speech.¹

II.

A district court must balance four factors when considering a motion for a preliminary injunction: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction. Certified Restoration Dry Cleaning Network, LLC v. Tenke Corp., 511 F.3d 535, 542 (6th Cir.2007). The parties disagree over the standard of review that should apply to the district court's denial of the motion for a preliminary injunction in this case. While Fairborn argues that the district court's determination should be reviewed for an abuse of discretion, Bays and Skelly correctly assert that the standard of review is de novo.

A district court's decision regarding whether to grant a preliminary injunction-and its weighing of the four factors-is normally reviewed for an abuse of discretion. Id. at 540. In First Amendment cases, however, “ ‘the crucial inquiry is usually whether the plaintiff has demonstrated a likelihood of success on the merits. This is so because ... the issues of the public interest and harm to the respective parties largely depend on the constitutionality of the [state action].’ ” Hamilton's Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir.2007) (quoting Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir.2000)); see Cnty. Sec. Agency v. Ohio Dep't of Commerce, 296 F.3d 477, 485 (6th Cir.2002) (“[W]hen First Amendment rights are implicated, the factors for granting a preliminary injunction essentially collapse into a determination of whether restrictions on First Amendment rights are justified to protect competing constitutional rights.”). The public interest analysis and the question of whether Bays and Skelly will suffer irreparable injury entirely depend on whether the solicitation policy and its enforcement by Fairborn are constitutional. Because the “determination of whether the movant is likely to succeed on the merits is a question of law and is accordingly reviewed de novo,” Tenke Corp., 511 F.3d at 541, the standard of review for a district court decision regarding a preliminary injunction with First Amendment implications is de novo. Hamilton's Bogarts, 501 F.3d at 649; Cnty. Sec. Agency, 296 F.3d at 485.

Determining the plaintiffs' likelihood of success on the merits involves two questions. The first question is whether the solicitation policy and its enforcement should be considered state action attributable to Fairborn. If there is state action, the question then becomes whether the solicitation policy is constitutional under the First Amendment.

III.

“It is undisputed that [First Amendment] protections ... are triggered only in the presence of state action and that a private entity acting on its own cannot deprive a citizen of First Amendment rights.” Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir.2000). Fairborn argues that there is no state action in this case because the solicitation policy found in the Terms and Conditions attached to the booth application is attributable to the FAA and Lions Club, the private groups that organize the Festival, and not to Fairborn. They further argue that the enforcement of the policy by Fairborn officials does not transform the private policy into state action.

On the question of state action, Parks v. City of Columbus, 395 F.3d 643 (6th Cir.2005), is controlling. In Parks, similar to the Festival in Fairborn, the city of Columbus issued a permit to a private entity, the Columbus Arts Council, to hold a festival on public...