Celli v. City of St. Augustine

• Decision Date: 31 January 2000
• Docket Number: No. 3:98-CV-253J21B.,3:98-CV-253J21B.
• Citation: 214 F.Supp.2d 1255
• Parties: Warren CELLI, Plaintiff, v. CITY OF ST. AUGUSTINE, Florida, Defendant.
• Court: U.S. District Court — Middle District of Florida

Page 1255

214 F.Supp.2d 1255

Warren CELLI, Plaintiff, v. CITY OF ST. AUGUSTINE, Florida, Defendant.

No. 3:98-CV-253J21B.

United States District Court, M.D. Florida, Jacksonville Division.

January 31, 2000.

COPYRIGHT MATERIAL OMITTED

D. Gray Thomas, Sheppard, White and Thomas, P.A., Jacksonville, FL, Michael R. Yokan, Law Office of Michael R. Yokan, Jacksonville, FL, for plaintiff.

Susan S. Erdelyi, Marks, Gray, P.A., Jacksonville, FL, for defendant.

MEMORANDUM ORDER

NIMMONS, District Judge.

Plaintiff Warren Celli challenges an ordinance of the City of St. Augustine, Florida on the basis that it deprives him of his First Amendment right to free speech. After a jury trial and verdict, the Court sets forth below its findings on the reserved issues of law.

I. Facts

Plaintiff Warren Celli is a self-described "street artist." Mr. Celli creates graphic images, mostly of a political nature and usually containing poems or other written words. Mr. Celli also produces his own newspaper, called The St. Aug Dog, which contains political cartoons and opinions. Plaintiff contends that the Defendant City of St. Augustine prevented him from displaying, offering for sale, and selling his art on the public sidewalks and streets of St. Augustine. Plaintiff argues that he was so prevented through the enforcement of Ordinance 82-54 (January 10, 1983), codified as St. Augustine, Florida, Code of Ordinances ch. 22, art. I, § 22-6 (hereinafter referred to as "Section 22-6" or "Ordinance")¹, which provides in pertinent part:

(a) It shall be unlawful for any person or organization to use or occupy any public square, park, street, sidewalk or other public property within the city for the purpose of selling, displaying, offering for sale or peddling any goods, wares or merchandise, except any nonprofit organization, religious, literary, scientific, charitable, educational purpose who shall have obtained a permit from the city manager or his designee.

On March 5, 1998, Plaintiff set up a tripod stand on public property outside of a private park on the corner of Hypolita Street and St. George Street, located within the historic district of St. Augustine. St. George Street allows only pedestrian traffic. Hypolita Street is a street that allows vehicular traffic. Plaintiff's stand contained a petition for a constitutional defense organization. He had buttons for his constitutional defense organization. However, the primary purpose of Plaintiff's stand was to sell his political newspaper, The St. Aug Dog. The focus of Plaintiff's organization and newspaper was commentary on the City's enforcement of Section 22-6 against street artists along St. George Street. Other street artists protested Section 22-6 that day and television news cameras were present. Also present were friends of the Plaintiff, some of whom had brought video cameras.

While Plaintiff was selling his newspapers and graphic art, a St. Augustine police officer observed the Plaintiff and approached him. The police officer also called his sergeant to the scene. What transpired between the police officers and the Plaintiff was disputed at trial. Plaintiff claimed that the City, through its police officers enforcing Section 22-6, violated his Constitutional right to free speech by preventing him from selling his art and newspaper. Defendant contended that the police officers were not enforcing Section 22-6. Rather, Defendant asserted, the police officers were concerned for public safety inasmuch as the Plaintiff's stand was situated where a busy pedestrian street crossed a vehicular street.

At the conclusion of a full trial on the factual issues, the jury returned a verdict for the Plaintiff. The facts found by the jury on its interrogatory verdict form (Dkt.67) were: (1) the Defendant, through its police officers, prevented the Plaintiff from displaying and/or selling his newspapers and/or art on March 5, 1998; (2) the enforcement, or threatened enforcement, by the officers of Section 22-6 was a substantial motivating factor for the above referred acts of the officers; and (3) the Defendant's above acts were the proximate cause of damages sustained by Plaintiff. The jury then awarded damages in the amount of $23,500.

II. Conclusions of Law

Since the jury has now determined that the Defendant was enforcing Section 22-6 against the Plaintiff, the Court must address whether Section 22-6 is unconstitutional. If the Ordinance is unconstitutional then Plaintiff did, indeed, suffer a cognizable injury and the jury's award of damages may stand. However, if the Court finds that the Ordinance is not unconstitutional then Plaintiff will not have suffered any cognizable injury, despite the fact that Section 22-6 was enforced against him. The Plaintiff would have suffered no more from the Ordinance's enforcement than if he had received a speeding ticket; thus the jury's award of damages could not stand.

A. Protected Speech Materials

The Court has no hesitation in finding that Plaintiff's materials are protected under the First Amendment. On the day of the incident, Plaintiff was selling a newspaper and visual art. The newspaper is a quintessential example of protected expression. See Mills v. State of Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966) ("The Constitution specifically selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, to play an important role in the discussion of public affairs"). Likewise, the Court finds that the visual art is protected speech in this instance.

There is no Eleventh Circuit precedent to guide the Court on whether artworks are protected expression under the First Amendment. The Second Circuit has held that all visual art is protected under the First Amendment. See Bery v. City of New York, 97 F.3d 689, 695-96 (2d Cir. 1996) ("Visual artwork is as much an embodiment of the artist's expression as is a written text, and the two cannot always be readily distinguished"). Nevertheless, the Court need not reach as far as the Second Circuit in resolving the instant case. Plaintiff's visual art contains phrases and poems, making each artwork a form of political parody or statement. As such, each piece of Plaintiff's visual art clearly incorporates written expression that is protected under the First Amendment. See International Caucus of Labor Comms. v. City of Montgomery, 111 F.3d 1548, 1551 (11th Cir.1997) (holding that the "distribution of literature is a type of speech protected by the First Amendment").

When analyzing the Ordinance for facial unconstitutionality, the Court also examines whether on its face the Ordinance applies to speech. The Ordinance prohibits the use or occupation of public property "for the purpose of selling, displaying, offering for sale or peddling any goods, wares or merchandise." The Supreme Court has held that the sale of protected materials is protected. See City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 756 n. 5, 108 S.Ct. 2138, 2143 n. 5, 100 L.Ed.2d 771 (1988) ("the degree of First Amendment protection is not diminished merely because the newspaper or speech is sold rather than given away"). "It is well settled that a speaker's rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak." Riley v. National Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 801, 108 S.Ct. 2667, 2680, 101 L.Ed.2d 669 (1988) (finding a North Carolina law regulating professional fundraisers unconstitutional). See also Martin v. City of Struthers, Ohio, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943) (explaining that First Amendment freedom "embraces the right to distribute literature and necessarily protects the right to receive it"); Sentinel Communications Co. v. Watts, 936 F.2d 1189, 1196 (11th Cir.1991) (finding that the Eleventh Circuit "has joined an increasingly lengthy body of Supreme Court and federal precedent emphasizing that there is `no doubt' that the right to distribute and circulate newspapers through the use of newsracks is protected by the first amendment").

Thus, while Section 22-6 may be geared toward application against vendors of wares, as argued by Defendant, the Ordinance is also capable of application against vendors of protected speech.² The fact that the jury found that the Ordinance was enforced, or threatened to be enforced, against the Plaintiff is ample proof of this possibility. Consequently, the Court finds that Section 22-6 is capable of being enforced against protected speech activities and must undergo constitutional scrutiny.

B. Forum Analysis and the Standard of Review

The Court must now analyze the City of St. Augustine's attempt to restrict Plaintiff's speech through Section 22-6. Plaintiff argues that Section 22-6 is unconstitutional both on its face and as applied to the Plaintiff. The Court will first scrutinize the Ordinance on its face. The Ordinance seeks to ban individuals and organizations from using or occupying "any public square, park, street, sidewalk or other public property within the city." Since these areas are public property, the first step in the analysis is to determine the type of forum in which the speech occurs.

The Supreme Court has "identified three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum." Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985). A traditional public forum is a place that has been "devoted to assembly and debate" either by "long tradition" or "government fiat." 473 U.S. at 802, 105 S.Ct. at 3449 (quoting Perry Educ. Assn. v. Perry Local Educators' Ass'n., 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983)). Public parks, streets, and sidewalks are all traditional public fora. See Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449; ...