Davenport v. City of Alexandria, Va.

• Decision Date: 07 December 1982
• Docket Number: No. 81-1909,81-1909
• Citation: 710 F.2d 148
• Parties: 13 Fed. R. Evid. Serv. 1162 Lee DAVENPORT, Appellee, v. CITY OF ALEXANDRIA, VIRGINIA, Charles Strobel, Chief of Police, Douglas Harman, City Manager, Appellants. . Heard En Banc
• Court: U.S. Court of Appeals — Fourth Circuit

Page 148

710 F.2d 148

13 Fed. R. Evid. Serv. 1162

Lee DAVENPORT, Appellee, v. CITY OF ALEXANDRIA, VIRGINIA, Charles Strobel, Chief of

Police, Douglas Harman, City Manager, Appellants.

No. 81-1909.

United States Court of Appeals, Fourth Circuit.

Heard En Banc Dec. 7, 1982.

Decided June 22, 1983.

Barbara P. Beach, Asst. City Atty., Arlington, Va., for appellants.

Kenneth E. Labowitz, Labowitz & Labowitz, Alexandria, Va., on brief, and Alan L. Cohen, Alexandria, Va., for appellee.

Before WINTER, Chief Judge, and RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN and CHAPMAN, Circuit Judges, sitting en banc.

ERVIN, Circuit Judge:

This appeal arises out of a challenge by Lee Davenport, a street musician, to the constitutionality of Ordinance No. 2609 of the City of Alexandria, Virginia. Ordinance No. 2609 prohibits performances and exhibitions on the sidewalks, walkways or other public property of the central business district of Alexandria, and Davenport claims this infringes his first amendment right ¹ to perform on and lecture about bagpipes, his particular specialty. Davenport also charges that a permit scheme created by Ordinance No. 2609 allowing limited performances in eight parks and plazas of the central business district confers unbounded discretion on the city manager to restrict protected expression.

The district court, 683 F.2d 853 (4th Cir.1982), held for Davenport on both constitutional claims, ruling that the City's total ban of exhibitions and performances from the sidewalks of the central business district was an overbroad and hence unconstitutional restriction on speech, and that the permit scheme allowed city officials to dictate what speech could be heard in the designated open spaces of the district, in violation of the constitutional doctrine prohibiting prior restraints on speech.

On appeal by the City, a panel of this court reversed, holding that Ordinance No. 2609 was a reasonable regulation of the time, place and manner of speech, and that the permit scheme was constitutional because it instructed city officials to issue permits on a first-come, first-served basis leaving no room for discretion.

Davenport petitioned for rehearing en banc, which was granted. We now hold that the permit scheme is constitutional, but because we are unable to say that the ordinance is drawn as narrowly as possible to maximize speech while securing the City's interest in public safety, we are unable to hold that Ordinance No. 2609 is a constitutional time, place and manner regulation of speech. ² We are not prepared, however, to reinstate the district court's holding that Ordinance No. 2609 is unconstitutionally overbroad, for the opinion of the lower court does not set forth findings of fact sufficient to sustain that conclusion. We therefore remand to the district court with instructions to make explicit factual determinations in accordance with our holding in Hickory Fire Fighters Association v. City of Hickory, North Carolina, 656 F.2d 917 (4th Cir.1981).

I.

On July 8, 1981, the city council of Alexandria enacted Ordinance No. 2609 to address public safety problems in the historic central business district of Alexandria. The central business district, known as Old Town, comprises 201 acres of the City. Many of the commercial establishments of Old Town cater to the tourist trade, so heavy pedestrian traffic is not uncommon. Ordinance No. 2609 bans certain activities from the sidewalks, walkways and public property of Old Town. ³ The ordinance applies to all amusement and entertainment activities requiring business licenses, as set out in section 20-82 of the City Code of Alexandria. ⁴ Included among the activities is any "exhibition or performance." Any "similar nonbusiness activity" is likewise prohibited on the sidewalks of Old Town.

Exhibitors and performers are not totally banished from the central business district. The ordinance allows exhibitions and performances to take place in eight "open spaces" ⁵ located within the district, subject to acquisition of a permit from the city manager. Permits are issued on a first-come, first-served basis, and no more than three permits per city block may be issued at any one time. Also, the 9,880 acres of Alexandria lying outside the central business district are not subject to the ordinance.

II.

First, we dispose of Davenport's argument that the permit scheme created by Ordinance No. 2609 bestows limitless discretion on city officials to govern the content of public expression. See Shuttlesworth v. City of Birmingham, Alabama, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). A fair reading of Ordinance No. 2609 discloses no outlet for the exercise of discretion by city officials, because subsection (a)(4) states that "permits shall be issued on a first-come, first-served basis." No duly-licensed musicians or persons engaged in similar nonbusiness activity may be refused a permit if they are among the first three applicants for permission to perform in a given open space. Cf. Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 649, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981) (First-come, first-served system for allocation of space at state fair "is not open to the kind of arbitrary application that this court has condemned as inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.")

Davenport's second constitutional claim is more difficult to resolve. He contends that the ban on exhibitions and performances and other similar activities from the sidewalks of Old Town is an overly broad infringement of speech. The city's legitimate interest in the safe flow of pedestrian traffic could be accomplished, says Davenport, by a narrower ordinance that afforded some outlets for protected expression on the sidewalks of Old Town. Under Ordinance No. 2609, speech such as Davenport's ⁶ is confined to the district's parks and plazas, forums which Davenport claims are inadequate alternatives to the sidewalks of Old Town.

The city counters that Ordinance No. 2609 is a constitutional regulation of the time, place and manner of first amendment activity.

In order to pass constitutional muster as a valid time, place and manner restriction on speech, a government enactment must meet several conditions. The enactment and its enforcement cannot be based on the content of the speech thereby restricted. Consolidated Edison Company of New York, Inc. v. Public Service Commission of New York, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980); Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972). A compelling governmental interest unrelated to speech must be served by the restriction on free expression, and the restriction must be drawn with narrow specificity to be no more restrictive than necessary to secure the government's interest. Grayned v. City of Rockford, 408 U.S. 104, 116-17, 92 S.Ct. 2294, 2303-04, 33 L.Ed.2d 222 (1972); Hickory Fire Fighters Ass'n v. City of Hickory, N.C., 656 F.2d 917, 923 (4th Cir.1981). In addition, adequate alternative channels of communication must be left open by the restriction. Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 75-76, 101 S.Ct. 2176, 2186-87, 68 L.Ed.2d 671 (1981).

The parties agree that Ordinance No. 2609 is a content-neutral enactment motivated by the city's compelling interest in public safety. Where the parties differ is on the question of specificity, i.e., whether the ordinance is narrowly tailored to the government's interest so as to minimize the curtailment of speech. The district court found it was not, writing that

[the ordinance] catches this plaintiff acting by himself, as well as a group composed of ten. It catches and prohibits the activity of this plaintiff and others regardless of the number of them that are in the block, regardless of the width of the sidewalk, and more importantly, regardless of whether they, by their activities, impede or deny public access to commercial buildings or impede the free flow of pedestrian traffic.

The problem we confront on this appeal is that the district court's conclusions are not supported by explicit factual findings, findings which must form the basis of a determination of overbreadth. The district judge, a long-time resident of Alexandria, was invited by the parties to take judicial notice of the character of Old Town, pursuant to Fed.R.Evid. 201(b), which permits a court to exercise judicial notice over facts "generally known within the territorial jurisdiction of the court." While we have no doubt that the district court's exercise of judicial notice was proper, the judge omitted from his opinion a recital of the facts derived from his personal observations of the historic district. After describing the geographical boundaries of Old Town the judge proceeded directly to his conclusions that the ordinance ensnared performers regardless of the number of performers on the block, regardless of the width of the sidewalk, and regardless of whether their activities impeded public access to buildings or the free flow of pedestrian traffic. These conclusions may be drawn from the language of the ordinance itself, of course, and require no empirical observation. The purpose of our review, however, is to determine whether the blanket proscription contained in Ordinance No. 2609 is the narrowest means of securing public safety in Old Town. Before we can make this determination, we need to know more facts about Old Town. In a constitutional challenge such as the present one, the task is to decide "whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Grayned v. City of Rockford, 408 U.S. 104, 116,...