Jones v. Heyman

• Citation: 888 F.2d 1328
• Decision Date: 22 November 1989
• Docket Number: No. 88-5858,88-5858
• Parties: Douglas M. JONES, Plaintiff-Appellee, v. Richard A. HEYMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1328

888 F.2d 1328

Douglas M. JONES, Plaintiff-Appellee, v. Richard A. HEYMAN, Defendant-Appellant.

No. 88-5858.

United States Court of Appeals Eleventh Circuit.

Nov. 22, 1989.

Michael T. Burke, Ft. Lauderdale, Fla., for defendant-appellant.

David P. Karcher, Miami, Fla., for plaintiff-appellee.

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

Before ANDERSON and COX, Circuit Judges, and BUTLER ^*, District Judge.

PER CURIAM:

This appeal arises from an action that Douglas M. Jones, a citizen of the city of Key West, Florida, filed against Key West's former mayor, Richard Heyman, and the City of Key West. ¹ Jones claimed that the mayor and the city violated his First and Fourteenth Amendment rights when Jones was silenced and removed from a public meeting of the Key West City Commission. The district court agreed and awarded Jones compensatory and punitive damages. For the reasons set forth below, we reverse.

I. BACKGROUND

On February 5, 1985, Jones attended a meeting of the Key West City Commission. As the mayor of the city, Heyman presided at the meeting. Although Jones was a member of the city's civil service board, Jones attended the meeting in his capacity as a private citizen. Jones had attended and voiced his opinion at many commission meetings in the past. On the evening in question, Jones complied with the customary procedure to be recognized to speak on an item on the agenda. He submitted his name and the topic on which he wished to speak--senior citizen discounts for garbage removal.

The meeting began at approximately 8:00 p.m. Two and one half hours later, the city commissioners turned to this topic, and the mayor recognized Jones' request to speak. Jones approached the podium, and began by criticizing the commission's general spending habits. The mayor quickly rebuked Jones, advising him to confine his comments to the topic at hand. Jones retorted in a raised voice: "Let me tell you something Mister, I am on the subject. If you can't stay germane in your mind, that's your problem, not mine." At this point, Jones' attitude was decidedly antagonistic. The mayor warned Jones that any further outbursts would result in his removal from the meeting. Jones responded by saying, "I don't think you're big enough," and the mayor ordered his expulsion. ²

Jones was escorted out of the meeting by two city police officers, taken to a detaining room, and handcuffed to the wall. He was later released when the mayor told an officer he wanted Jones removed rather than arrested. Although advised by the police officers not to reenter the commissioners' meeting, which was still continuing, Jones attempted to do so. He was then handcuffed again and taken back to the detaining room. There is no evidence that the mayor caused Jones to be handcuffed or arrested. At the time, Jones was charged with violating City Ordinance 85-1 ³, which prohibits conduct intended to disrupt city commission meetings. ⁴

Key West City Commission meetings are broadcast live in the city and surrounding county. Area television viewers thus witnessed both the verbal exchange between Jones and the mayor and Jones' subsequent expulsion from the room. The incident was re-televised several times after the initial broadcast and publicized by the local newspaper and radio stations. Jones testified that both the incident and the surrounding publicity embarrassed his family and caused his business to decline.

Jones filed suit against the mayor and the City of Key West for a violation of 42 U.S.C.A. Sec. 1983 (1981), alleging that his removal from the meeting constituted a deprivation of his rights under the First and Fourteenth amendments. Jones also sought a declaratory judgment invalidating Ordinance 85-1 as unconstitutionally vague and overbroad, and a permanent injunction barring its enforcement. The city and the mayor answered that Jones was removed from the meeting for creating a disturbance in violation of the ordinance and that the mayor had acted in good faith and under the reasonable belief that this ordinance was constitutional. The mayor also asserted that his decision to remove Jones was protected by the qualified immunity doctrine because the mayor did not violate Jones' clearly established First Amendment rights.

Following a bench trial, the district court held that the mayor had silenced Jones based on the content of his comments and thus deprived him of his First Amendment right of free speech. The court examined the manner and content of Jones' "challenge" to the mayor--"I don't think you're big enough"--and concluded it was neither sufficiently violent or provocative to constitute "fighting words" outside the scope of First Amendment protection. Although noting its lack of clarity, the court declined to pronounce Ordinance 85-1 void for vagueness or unconstitutionally overbroad. The court then rejected the mayor's qualified immunity defense. Based on Jones' testimony as to the emotional and economic injury he suffered from the incident, the court awarded Jones compensatory damages of $31,500. The district court also found that the mayor's actions had "evinced callous indifference to the Plaintiff's first amendment rights," and ordered that the mayor pay $31,500 in punitive damages. ⁵ Jones v. City of Key West, Fla., 679 F.Supp. 1547, 1563 (S.D.Fla.1988).

The mayor presents three issues on appeal. ⁶ First, he challenges the district court's ruling that his actions impermissibly deprived Jones of his freedom of speech. Second, he contends he is entitled to qualified immunity for his discretionary decision to remove Jones from the meeting. Third, the mayor argues that the award of punitive damages is unsupported by the law and the evidence of the case. Because we reverse on the first issue, we need not address the mayor's second and third contentions.

II. DISCUSSION

We initially note that we must conduct a de novo review of the evidence in the record and independently determine whether Jones' First Amendment rights have been violated. "In reviewing findings of fact in first amendment cases, this Court must make an 'independent examination of the whole record,' rather than relying solely on the 'clearly erroneous' standard." McMullen v. Carson, 754 F.2d 936, 938 (11th Cir.1985) (citing Bose Corp. v. Consumers Union, 466 U.S. 485, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984); New York Times v. Sullivan, 376 U.S. 254, 284-86, 84 S.Ct. 710, 728-29, 11 L.Ed.2d 686 (1964)). The facts in this case are essentially undisputed. We conclude that Jones has not demonstrated that the mayor's actions abridged his freedom of speech within the meaning of the First Amendment.

The freedom of expression protected by the First Amendment is not inviolate; the Supreme Court has established that the First Amendment does not guarantee persons the right to communicate their views "at all times or in any manner that may be desired." Heffron v. International Soc'y. for Krishna Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981); Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 246, 17 L.Ed.2d 149 (1966). Accordingly, in evaluating a citizen's right to express his opinion on public property, the Court has established certain boundaries within which it balances a citizen's First Amendment rights and the government's interest in limiting the use of its property. In a traditional public forum, such as a park or a street, the government's power to limit expressive activity is severely curtailed:

"For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.... The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication."

Airport Comm'rs. of Los Angeles v. Jews for Jesus, 482 U.S. 569, 573, 107 S.Ct. 2568, 2571, 96 L.Ed.2d 500 (1987) (quoting Perry Educ. Ass'n. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983)). The same analysis applies to speech on property which is not a traditional public forum, but which has been intentionally designated a public forum for a certain time period. ⁷ In a nonpublic forum, however, the government may limit expressive activity with less exacting scrutiny by the courts. Such regulations are upheld in a nonpublic forum if they are reasonable and not merely the result of disagreement with the speaker's point of view. Jews for Jesus, 482 U.S. at 573, 107 S.Ct. at 2571; Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788, 806, 105 S.Ct. 3439, 3451, 87 L.Ed.2d 567 (1985); Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 812, 104 S.Ct. 2118, 2133, 80 L.Ed.2d 772 (1984).

We agree with the district court that the city commission designated their meeting a public forum when the commission intentionally opened it to the public and permitted public discourse on agenda items. ⁸ As noted by the district court, although the commission need not have created this forum in the first place, once it did so, the commission became bound by the same standards that apply in the case of a traditional public forum. Content-neutral time, place and manner restrictions are permissible if they are narrowly drawn to achieve a significant governmental interest and if they allow communication through other channels. Content-based exclusions must be narrowly tailored to effectuate a compelling governmental interest. We address each question separately.

A. Content

The government's purpose in limiting one's speech in a public forum constitutes the "controlling consideration" in determining content neutrality. Ward v. Rock Against Racism, --- U.S. ----, ----, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989). Even if a...