Burk v. Augusta-Richmond County, No. 03-11756.

• Decision Date: 15 April 2004
• Docket Number: No. 03-11756.
• Citation: 365 F.3d 1247
• Parties: Martha BURK, Chair, National Council of Women's Organizations, National Council of Women's Organizations, et al., Plaintiffs-Appellants, v. AUGUSTA-RICHMOND COUNTY, Consolidated Government, Augusta-Richmond County Commission, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

365 F.3d 1247

Martha BURK, Chair, National Council of Women's Organizations, National Council of Women's Organizations, et al., Plaintiffs-Appellants, v. AUGUSTA-RICHMOND COUNTY, Consolidated Government, Augusta-Richmond County Commission, et al., Defendants-Appellees.

No. 03-11756.

United States Court of Appeals, Eleventh Circuit.

April 15, 2004.

COPYRIGHT MATERIAL OMITTED

Sarah M. Shalf, Jeffrey O. Bramlett, Jill A. Pryor, Bondurant, Mixson & Elmore, Gerald R. Weber, American Civil Liberties Union Foundation, Atlanta, GA, for Plaintiffs-Appellants.

James W. Ellison, James B. Wall, Burnside, Wall, Daniel, Ellison & Revell, Augusta, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Georgia.

Before ANDERSON, BARKETT and RONEY, Circuit Judges.

ANDERSON, Circuit Judge:

INTRODUCTION

Martha Burk, the National Council of Women's Organizations, and the Rainbow/PUSH Coalition (referred to collectively as "Burk") appeal from the district court's denial of their motion for preliminary injunction in a challenge to the constitutionality of Augusta-Richmond County's permitting requirement for public demonstrations in groups of five or more people. The appeal presents two questions: (1) the facial constitutionality of requiring groups of five or more persons to obtain a permit before publicly engaging in political expression in a public forum; and (2) whether requiring permit applicants to submit an indemnification agreement "in a form satisfactory" to the county attorney grants the attorney unconstitutional discretion over permitting decisions. We find the Ordinance unconstitutional in each respect and reverse.

A. The Augusta-Richmond County Ordinance

Section 3-4-11 of the Augusta-Richmond County Code (the "Ordinance"), enacted in anticipation of protests during the then-forthcoming Masters Golf Tournament held annually at the Augusta National Golf Club, states:

There shall be no public demonstration or protest, (hereinafter collectively referred to as "event") consisting of five (5) or more persons on any sidewalk, street, public right-of-way or other public property within Augusta unless a permit for same has been issued for such event by the Sheriff of Richmond County.

Augusta-Richmond County Code § 3-4-11. The Code defines "Protest/Demonstration" as "Any expression of support for, or protest of, any person, issue, political or other cause or action which is manifested by the physical presence of persons, or the display of signs, posters, banners, and the like." § 3-4-1(e). Violating the Ordinance is a misdemeanor punishable by a $1,000 fine and/or 60 days imprisonment. §§ 3-4-13; 1-6-1.

In addition to information such as the name and address of the applicant and a description of the planned event, see §§ 3-4-11(a)(1)-(2), a permit applicant must furnish an indemnification and hold-harmless agreement suitable to the county attorney, § 3-4-11(a)(3). The County Sheriff may deny an application for any of several reasons. See § 3-4-11(b)(3).

B. Procedural History

Burk sued the Augusta-Richmond County Consolidated Government, the Augusta-Richmond County Commission, the Mayor of Augusta, and the Richmond County Sheriff (collectively, "the County") under 42 U.S.C. § 1983 to enjoin enforcement of the Ordinance, claiming it violated her First Amendment right to free speech. The district court converted Burk's motion for a temporary restraining order into a motion for preliminary injunction and denied it, finding that Burk failed to prove a likelihood of success on the merits. Burk appeals that determination and asks this Court to uphold her facial challenge to the Ordinance.¹ Because this appeal presents pure questions of law and our disposition dictates the outcome of the underlying claim, we accept the invitation. See, e.g., Callaway v. Block, 763 F.2d 1283, 1287 & n. 6 (11th Cir.1985). We review the district court's legal conclusions de novo. This That & the Other Gift & Tobacco, Inc. v. Cobb County, 285 F.3d 1319, 1321 (11th Cir.2002).

DISCUSSION

A. The Constitutionality of the Permitting Provision

Burk argues that the permitting provision constitutes a facial violation of the First Amendment by impermissibly discriminating on the basis of content of speech in public fora² and by granting the County Sheriff excessive discretion over permitting decisions. Because we agree with her on content discrimination, we decline to reach her discretion argument as it relates to the permitting requirement generally.

Because it requires groups of five or more people to obtain permission from the County Sheriff in order to carry out a protest or demonstration, the Augusta-Richmond Ordinance is a prior restraint on speech. See United States v. Frandsen, 212 F.3d 1231, 1236-37 (11th Cir.2000) ("A prior restraint of expression exists when the government can deny access to a forum before the expression occurs."). Prior restraints are presumptively unconstitutional and face strict scrutiny. Id. at 1237; Church of Scientology Flag Serv. v. City of Clearwater, 2 F.3d 1514, 1547-48 (11th Cir.1993). Nonetheless, a prior restraint may be approved if it qualifies as a regulation of the time, place, and manner of expression rather than a regulation of content. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989); Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1316 (11th Cir.2000). A content-neutral time, place, and manner regulation must leave open alternative channels of communication and survive "intermediate scrutiny," the requirement that it not restrict substantially more speech than necessary to further a legitimate government interest. Ward, 491 U.S. at 799, 109 S.Ct. at 2758.³ By contrast, content-based speech regulations face "strict scrutiny," the requirement that the government use the least restrictive means of advancing a compelling government interest. United States v. Playboy Entm't Group, 529 U.S. 803, 813, 120 S.Ct. 1878, 1886, 146 L.Ed.2d 865 (2000).

Accordingly, we first inquire whether the Ordinance is content-neutral. See Ward, 491 U.S. at 791, 109 S.Ct. at 2754. It is not. The Ordinance applies only to "public demonstration or protest," § 3-4-11, defined as "support for, or protest of, any person, issue, political or other cause or action," § 3-4-1(e). Neither in its brief nor at oral argument has the County disputed Burk's assertion that this language targets "political" expression, however defined.⁴ Nor has the County disputed the fact that the Ordinance leaves other speech untouched. The Ordinance therefore classifies and regulates expression on the basis of content. Accord Hall v. Bd. of Sch. Comm'rs, 681 F.2d 965, 970-71 (5th Cir. Unit B 1982) ("The Board has sought to regulate that speech based upon its content: whether it is `political or sectarian,' or `special interest material.' This is not regulation of `time, place, or manner' of expression");<sup>5</sup> see also Consol. Edison Co. v. Pub. Serv. Comm'n, 447 U.S. 530, 533, 100 S.Ct. 2326, 2330-31, 65 L.Ed.2d 319 (1980) (holding content-based a regulation that barred utility company bill inserts expressing "opinions or viewpoints on controversial issues of public policy" but did not bar "topics that are not `controversial issues of public policy'").

The County argues that we must find the Ordinance content-neutral under Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), and Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). We disagree; we do not believe either decision erodes our holding in Hall that targeting only political speech renders a regulation content-based. We address each case in turn.⁶

In Hill v. Colorado, the Supreme Court found content-neutral a Colorado statute that prohibited any person "within the regulated areas ... to knowingly approach within eight feet of another person, without that person's consent, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person." Id. at 707, 120 S.Ct. at 2484. The County argues that if a statute regulating only those engaged in protest, education, or counseling is content-neutral, then surely an ordinance regulating only political protests and demonstrations is content-neutral as well.

A close reading of Hill reveals that the analogy fails. Hill relied heavily on the notions that "[t]he principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys," id. at 719, 120 S.Ct. at 2491 (citing Ward, 491 U.S. at 791, 109 S.Ct. at 2754), and "government regulation of expressive activity is `content neutral' if it is justified without reference to the content of regulated speech," id. at 720, 120 S.Ct. at 2491 (citing Ward, 491 U.S. at 791, 109 S.Ct. at 2754). The statute at issue in Hill was "justified without reference to the content of regulated speech" because it did not "distinguish among speech instances that are similarly likely to raise the legitimate concerns to which it responds." Id. at 724, 120 S.Ct. at 2493. The distinctions it drew were justified by a legislative concern independent of content — protecting persons walking into health care facilities. Id. ("[T]he statute's restriction seeks to protect those who enter a health care facility from the harassment, the nuisance, the persistent importuning, the dogging, and the implied threat of physical touching that can accompany an unwelcome approach within eight feet of a patient by a person wishing to argue vociferously face-to-face and perhaps thrust an undesired handbill upon her."). In fact, the statute at issue in Hill "places no restrictions on — and clearly does not prohibit — either a particular viewpoint or any subject matter." Id. at 723, 120 S.Ct. at 2493.

The ...