International Caucus of Labor Committees v. City of Montgomery, 94-6699

• Decision Date: 09 May 1997
• Docket Number: No. 94-6699,94-6699
• Citation: 111 F.3d 1548
• Parties: , 133 Lab.Cas. P 11,814, 10 Fla. L. Weekly Fed. C 912 The INTERNATIONAL CAUCUS OF LABOR COMMITTEES, Richard Boone, Reverend, individually and as a member of International Caucus of Labor Committees, Gary D. Kanitz, individually and as a member of International Caucus of Labor Committees, Gerald E. Berg, individually and as a member of International Caucus of Labor Committees, Plaintiffs-Appellees, v. The CITY OF MONTGOMERY, The City of Montgomery Police Department, John Wilson, in his official capacity as Chief of Police of the City of Montgomery, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1548

111 F.3d 1548

65 USLW 2730, 133 Lab.Cas. P 11,814,

10 Fla. L. Weekly Fed. C 912

The INTERNATIONAL CAUCUS OF LABOR COMMITTEES, Richard Boone,

Reverend, individually and as a member of International

Caucus of Labor Committees, Gary D. Kanitz, individually and

as a member of International Caucus of Labor Committees,

Gerald E. Berg, individually and as a member of

International Caucus of Labor Committees, Plaintiffs-Appellees, v. The CITY OF MONTGOMERY, The City of Montgomery Police

Department, John Wilson, in his official capacity

as Chief of Police of the City of

Montgomery, Defendants-Appellants.

No. 94-6699.

United States Court of Appeals, Eleventh Circuit.

May 9, 1997.

Kenneth L. Thomas, Mark Englehart, Thomas Means & Gillis, Montgomery, AL, Thomas C. Tankersley, City of Montgomery, Legal Department, Montgomery, AL, for Appellants.

James E. Wilson Jr., Montgomery, AL, for Appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before ANDERSON and COX, Circuit Judges, and RONEY, Senior Circuit Judge.

PER CURIAM:

The opinion originally issued in this case is withdrawn. International Caucus of Labor Comms. v. City of Montgomery, 87 F.3d 1275 (11th Cir.1996). The following opinion is issued as the opinion of the Court on this appeal.

This case involves a challenge to the constitutionality of a city policy banning tables from city sidewalks. On two occasions, plaintiffs, The International Caucus of Labor Committees and three of its members, were distributing literature from a card table placed on the sidewalk when police told them to leave or submit to arrest. The district court found that The International Caucus is an organization devoted to altering the contemporary political landscape. It distributes literature and recruits new members in several ways. One of its preferred ways is to place tables in public areas in an effort to attract people to take its literature from these tables. Plaintiffs wrote a letter to the City explaining their desire to promote their views "by setting up literature tables at public sites." The City's responsive letter banned tables from city sidewalks. The letter stated in relevant part:

Your actions do not violate the laws of this city unless you impede the orderly flow of traffic in the streets and at the street corners.

Your organization will not be allowed to set up tables or booths on the sidewalks of this city. These tables or booths would create a partial blockage of pedestrian traffic and therefore will not be allowed on the sidewalks. Your organization may set up tables or booths on private property where you have the permission of the property owner.

The City maintains that its policy is a complete ban of any tables on all sidewalks.

Plaintiffs sued the City of Montgomery, its police department and police chief, seeking a declaration that the City's policy violated plaintiffs' First Amendment right of free speech and to enjoin the City from denying plaintiffs the right to distribute political literature from tables placed on the sidewalks.

The district court, in a carefully constructed opinion, entered a declaratory decree that the City's ban excessively and unnecessarily infringes on the plaintiffs' rights guaranteed by the First Amendment. International Caucus of Labor Comms. v. City of Montgomery, 856 F.Supp. 1552 (M.D.Ala.1994). The court initially held that the placement of tables on city sidewalks is subject to First Amendment scrutiny, and that the ban is content neutral so that it is subject to the time, place and manner test set out in Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753-54, 105 L.Ed.2d 661 (1989). The court then held first, it is inappropriate to conclude on this record that the City's interests are significant ones; second, even if the City's interests are viewed as significant, the regulation is not narrowly tailored to serve those interests; and third, since the ban fails the narrow tailoring requirement, the court need not decide whether the ban leaves ample alternative means of communication open. The court denied an injunction with confidence that the defendants would abide the declaration that the ban is unconstitutional.

We reverse on the ground that a ban against tables on sidewalks, contrary to the decision of the district court, satisfies the time, place and manner test required when the actions of a city implicate the First Amendment.

Preliminarily, there was some question as to whether the issue was properly before the court. Some consideration has been given by the panel and in the supplemental briefing and reargument to the fact that the policy here challenged is in the form of a letter from the City Attorney, rather than being incorporated in a duly adopted city ordinance. The parties agree, however, that the policy of banning all tables from city sidewalks is the fixed policy of the City which will be enforced by the police, the transgression of which would lead to trouble for the plaintiffs. The parties are entitled to a decision on the constitutionality of such a policy. This Court previously has considered the constitutionality of an "unwritten" scheme for regulating newsracks in interstate areas. Sentinel Communications Co. v. Watts, 936 F.2d 1189 (11th Cir.1991).

When the government seeks regulation that restricts content neutral expressive activity in a public forum, the First Amendment requires that the regulation satisfy the time, place, and manner test. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983).

A sidewalk, although specifically constructed for pedestrian traffic, also constitutes a public forum. Frisby v. Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420 (1988) (" '[T]ime out of mind' public streets and sidewalks have been used for public assembly and debate, the hallmarks of a traditional public forum."). The Supreme Court has repeatedly held that public streets and sidewalks are traditional public fora. Boos v. Barry, 485 U.S. 312, 318, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988); Perry Education Ass'n., 460 U.S. at 44, 103 S.Ct. at 954.

Pamphleteering and the distribution of literature constitute expressive activity protected by the First Amendment. Talley v. State of California, 362 U.S. 60, 63-64, 80 S.Ct. 536, 538, 4 L.Ed.2d 559 (1960). The cases clearly hold that the distribution of literature is a type of speech protected by the First Amendment. United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983); Schneider v. State, 308 U.S. 147, 162, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938).

In the present case, therefore, the City of Montgomery is regulating expressive activity in a public forum. Consequently, the district court correctly held that the regulation must pass the time, place, and manner test. The district court erred, however, in its application of the time, place, and manner test.

In reviewing the district court's application of this test, we utilize a de novo standard of review concerning issues of law and the district court's application of the law to the facts. Simmons v. Conger, 86 F.3d 1080, 1084 (11th Cir.1996).

The City may impose reasonable restrictions on the time, place, and manner of protected speech in a public forum as long as the restrictions (1) are content neutral, (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels for communication of the information. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753-54, 105 L.Ed.2d 661 (1989).

The district court properly held that the first prong of this test was satisfied: Montgomery's ban was content neutral, both on its face and as applied.

The district court erred, however, in holding that the second prong was not met. The district court's analysis as to this prong was wrong in two respects:

First, the district court incorrectly concluded that the City of Montgomery's interests in enacting the table ban were not significant. The first priority of a sidewalk is for the use of pedestrians. The City's interests, as stated in the ban itself, include "the orderly flow of traffic in the streets and at the street corners" and the prevention of "a partial blockage of pedestrian traffic" on the city sidewalks. It is well settled that "a State's interest in protecting the 'safety and convenience' of persons using a public forum is a valid governmental objective." Heffron v. International Society For Krishna Consciousness, 452 U.S. 640, 650, 101 S.Ct. 2559, 2565, 69 L.Ed.2d 298 (1981). See also Messer v. City of Douglasville, Ga., 975 F.2d 1505, 1510 (11th Cir.1992) (holding that "both traffic safety and aesthetics are substantial governmental goals"). As the Supreme Court stated, "[M]unicipal authorities, as trustees for the public, have the duty to keep their communities' streets open and available for the movement of people and property, the primary purpose to which the streets are dedicated." Schneider v. State of New Jersey, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939).

To demonstrate the significance of its interest, the City is not required to present detailed evidence of pedestrian or traffic flow on or around specific sidewalks; the City is "entitled to advance its interests by arguments based on appeals to common sense and logic." Multimedia Publishing Co. of S. Carolina, Inc. v. Greenville-Spartanburg Airport, 991 F.2d 154, 160 (4th Cir.1993). We hold that the City has adequately demonstrated the significance of its interest.

Second, the district court erred in holding that the regulation was not narrowly tailored to achieve the City's interest. To satisfy the requirement of narrow tailoring, the City may not impose a regulation that will "burden substantially more speech than is necessary to...