International Caucus v. City of Montgomery

• Decision Date: 07 July 1994
• Docket Number: Civ. A. No. 93-H-519-N.
• Citation: 856 F. Supp. 1552
• Parties: 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, 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.
• Court: U.S. District Court — Middle District of Alabama

856 F. Supp. 1552

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, 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.

Civ. A. No. 93-H-519-N.

United States District Court, M.D. Alabama, Northern Division.

July 7, 1994.

COPYRIGHT MATERIAL OMITTED

James Edward Wilson, Jr., Montgomery AL, for plaintiff.

Thomas, Means & Gillis, Mark Englehart and Kenneth L. Thomas, and Thomas C. Tankersley, City of Montgomery Legal Dept. Montgomery, AL, for defendant.

MEMORANDUM OPINION

HOBBS, District Judge.

Plaintiffs, the International Caucus of Labor Committees (ICLC) and three of its individual members (Richard Boone, Gary D. Kanitz, and Gerald E. Berg), instituted this action against the City of Montgomery, the Montgomery Police Department, and Chief John Wilson alleging that the City's recently enacted policy prohibiting the placement of tables on City sidewalks violated the First Amendment's command that governmental bodies "shall make no law ... abridging the freedom of speech, or of the press." U.S. CONST. amend. I. Under the auspices of the First and Fourteenth Amendments to the United States Constitution, as well as 42 U.S.C. § 1983, plaintiffs have prayed for a declaratory judgment, 28 U.S.C. §§ 2201 & 2202, and injunctive relief regarding the actions of defendants in denying plaintiffs the right to distribute political literature from tables placed on public sidewalks.¹ Jurisdiction over this action, which was tried without a jury on May 11, 1994, is predicated upon 28 U.S.C. § 1331. Based on the following findings of fact and conclusions of law, the court is of the opinion that the City's policy fails to comport with fundamental First Amendment principles and that plaintiffs are entitled to a declaratory judgment in their favor.

I. FINDINGS OF FACT

ICLC is an organization devoted to altering the contemporary political landscape. ICLC distributes literature and recruits new members in several ways; one of its preferred ways is to place tables in common, public areas in an effort to attract people to take its literature from these tables. Plaintiffs use the distribution of literature to solicit membership as well as to attempt to persuade people to accept its political views. The tables upon which plaintiffs routinely display several stacks of assorted books, pamphlets, and newspapers enhance plaintiffs' ability to disseminate literature in a meaningful fashion, and consequently, plaintiffs view the use of tables as a necessary part of their day to day street activities.

This case arises out of plaintiffs' use of a table on two occasions on public sidewalks owned by the City of Montgomery. On both occasions, post office personnel called the Montgomery Police Department (MPD) to complain about plaintiffs' distributing literature in front of the post office. On both occasions the MPD responded to the call and directed plaintiffs to move without indicating that the table either caused or aggravated the concern over plaintiffs' presence. On both occasions plaintiffs were located not on postal property but on City property, and on both occasions plaintiffs were distributing literature from a card table that contained several stacks of books and literature.

Plaintiffs' initial encounter with police occurred during the first week of June 1992, at the West Side Station Post Office. At that time plaintiff Kanitz was selling and handing out literature, soliciting contributions and memberships, endorsing candidates running for local, state and national office, voicing support for ICLC's candidate for President of the United States, and generally promoting the political platform and worldview of ICLC. The masthead of the newspaper Kanitz was selling prominently displays this statement of Ben Franklin made in 1772: "Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech ...."

Kanitz commenced distributing his materials shortly after nine in the morning and continued until approximately one in the afternoon. During this time Kanitz stood beside the table while attempting to converse with passersby and witnessed an average of three to four patrons enter the post office each hour. The table was placed roughly thirty feet from the post office building. At all times, the table was located on the grassy region between the curb and the concrete walkway. No part of the table touched the concrete walkway.

The table's dimensions are three feet by three feet; the grassy region outside the West Side Station is roughly four and one half feet wide; the concrete walkways are five feet wide. Plaintiff witnessed no more than four patrons per hour enter the post office. At no time did the table obstruct any person's use of the sidewalk.

Mr. Dorsey, the relief supervisor at the West Side Station, testified that he received more than one complaint about plaintiffs' presence at the post office; there was no evidence, however, that such complaints related to the table. From the evidence it appeared that the objection was to persons attending the display tables and approaching pedestrians in an effort to interest them in available literature. Dorsey, acting under the mistaken belief that plaintiffs were on federal property, informed plaintiffs they would have to move. Dorsey called the police, who upon arrival, informed plaintiffs that they would be arrested if they did not move.

Within the next two days, plaintiffs set up their table at the Carolyn Station Post Office at approximately 10 a.m. Although most of the table occupied space only on the six-foot-wide grassy area, two of the table's four legs were placed on the concrete walkway such that the table occupied a few inches of the four-foot, three-inch wide concrete walkway. During the time plaintiffs' were at the Carolyn Station, two or three people used the walkway and talked with plaintiffs; an additional person walked by the table without speaking to plaintiffs. The post office received no complaints regarding plaintiffs or their table. Defendants adduced no evidence of actual obstruction or interference with pedestrian traffic. Shortly after plaintiffs set up their table, however, the police arrived and directed plaintiffs to leave or submit to arrest.

On June 10, 1992, a representative of ICLC wrote to the Mayor of Montgomery regarding plaintiffs' desire to promote their views "by setting up literature tables at public sites." The letter stated that ICLC does "not block public access and does not look for physical confrontations." The letter indicated that plaintiffs would adhere to a reasonable procedure regulating the use of tables within the City and that plaintiffs were amenable to notifying Police Chief Wilson in advance of the sites upon which plaintiffs intended to place the tables. The City responded on June 16, 1992, with a letter imposing a total ban on plaintiffs' practice of placing tables on City sidewalks. That letter states, in pertinent 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.

No reference was made to the City ordinance prohibiting the obstruction of sidewalks, although such ordinance presumably furnished the authority to issue the ban.² Kanitz testified that after imposition of the complete ban, ICLC decided to curtail drastically its efforts in Montgomery until the question regarding tables could be resolved.

II. CONCLUSIONS OF LAW

To evaluate the constitutionality of the City's ban, the court must first determine whether the placement of tables on city sidewalks is subject to First Amendment scrutiny at all. If the First Amendment is found to apply, then the court must determine whether the prohibition is content-neutral or content-based. This determination will enable the court to scrutinize the present dispute under the appropriate constitutional standard.

The defendants can hardly dispute that sidewalks constitute a classic setting for the robust exercise of First Amendment rights and thus enjoy the status of a traditional public forum. Frisby v. Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420 (1988); Carey v. Brown, 447 U.S. 455, 460-61, 100 S.Ct. 2286, 2289-91, 65 L.Ed.2d 263 (1980). The Supreme Court has stated that "public streets and sidewalks ... `time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.'" Boos v. Barry, 485 U.S. 312, 318, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988) (quoting Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 963-64, 83 L.Ed. 1423 (1939) (Roberts, J.)). An unbroken line of Supreme Court cases conclusively establishes that "streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot be constitutionally denied broadly and absolutely." Amalgamated Food Employees Union 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 315, 88 S.Ct. 1601, 1606-07, 20 L.Ed.2d 603 (1968), overruled on other grounds, Hudgens v. NLRB, 424 U.S. 507, 517-19, 96 S.Ct. 1029, 1035-36, 47 L.Ed.2d 196 (1976); see also United States v. Grace, 461...