Knowles v. City of Waco, Tex., 05-50598.

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: Edith H. Jones
• Citation: Knowles v. City of Waco, Tex., 462 F.3d 430 (5th Cir. 2006)
• Decision Date: 24 August 2006
• Docket Number: No. 05-50598.,05-50598.
• Parties: Carolyn KNOWLES, et al., Plaintiffs, Carolyn Knowles; Joe Rodriguez, Jr., Plaintiffs-Appellants, v. CITY OF WACO, TEXAS, Defendant-Appellee.

462 F.3d 430

Carolyn KNOWLES, et al., Plaintiffs Carolyn Knowles; Joe Rodriguez, Jr., Plaintiffs-Appellants, v. CITY OF WACO, TEXAS, Defendant-Appellee.

No. 05-50598.

United States Court of Appeals, Fifth Circuit.

August 24, 2006.

Stephen M. Crampton (argued), Am. Fam. Ass'n Ctr. for Law & Policy, Tupelo, MS, for Plaintiffs-Appellants.

Stuart Gregory Smith (argued), Naman, Howell, Smith & Lee, Waco, TX, for Defendant-Appellee.

On Appeal from the United States District Court for the Western District of Texas.

Before JONES, Chief Judge, and WIENER and PRADO, Circuit Judges.

EDITH H. JONES, Chief Judge:

Appellants Carolyn Knowles and Joe Rodriguez, Jr. filed suit in district court challenging the facial constitutionality of two city ordinances that threaten their ability to protest peacefully near an abortion clinic in Waco, Texas. The district court dismissed their claims. Because the challenged ordinances are unconstitutional time, place, and manner regulations, we REVERSE the judgment of the district court and remand for entry of appropriate relief against the City.

I. BACKGROUND

Appellants pray, display anti-abortion signs, distribute literature, and counsel clinic clients on the public sidewalk outside an abortion clinic in Waco, Texas. Rodriguez has been demonstrating outside the clinic for over ten years.

The clinic is located in a "school zone," an area subject to two ordinances challenged in this action: § 25-133(c) of Waco's Code of Ordinances ("School Zone ordinance"); and § 25-266 of Waco's Code of Ordinances ("Parade ordinance"). Waco characterizes both ordinances as traffic regulations.¹ The challenged School Zone ordinance provides:

Sec. 25-133. School zones and crossing speed limits; street activity and parades restricted.

* * *

(c) Street activity and parades are prohibited within school zones . . . during the hours that school zones and crossing speed limits are in effect or when warning lights are flashing. Street activity shall mean a dance, party, demonstration, or any other type of public assemblage, where persons are collected together in one place, and the collection of persons is reasonably anticipated to obstruct the normal flow of traffic upon a public street, sidewalk, or other public right of way. Parade shall mean a procession of pedestrians, vehicles and animals or any combination thereof along or upon a street or sidewalk, park or other public place, which does not comply with normal and usual traffic regulations or controls. The term parade shall also include a race or competition of any kind, which is reasonably anticipated to obstruct the normal flow of traffic upon a public street, sidewalk, or other public right of way.

The Parade ordinance provides:

Sec. 25-266. Permit required; exceptions.

(a) No person shall engage in, participate in, aid, form, or start any parade or other street activity without first applying for and obtaining from the city a permit for that parade or street activity.

(b) The requirement to obtain a permit shall not apply to the following:

(1) Funeral processions, which shall be regulated by section 25-279.

(2) Students going to and from school classes or participating in educational or recreational activities under the immediate direction and supervision of the proper school authorities.

(3) A governmental agency acting within the scope of its functions.

(4) Processions or demonstrations at a fixed location which is not a street or sidewalk.

Because the School Zone ordinance prohibits "parades" and "street activity" in school zones only when school zone speed limits are in effect or warning lights are flashing, such activities are permitted there at other times subject, however, to the Parade ordinance's pre-activity permit requirement. Appellants have engaged and plan to engage in both "street activity" and "parades," as defined by the ordinances. Their activity does not fall within any of the exceptions to the parade permit requirement, nor are they protected by the extratextual "wingspan" exception, the City's interpretation that excludes from the School Zone ordinance people gathered together in school zones who remain at least one arm's length apart from each other.

The City passed the School Zone and Parade ordinances in response to a series of demonstrations that allegedly caused traffic problems and compromised the safety of school children. The recitals in and preamble to Ordinance No. 2004-0541, parts of which were eventually codified as the School Zone and Parade ordinances, reflect these traffic and safety concerns:

WHEREAS, the health, safety and welfare of persons who use the public rights of way is of paramount importance in the regulation of the public rights of way; and

WHEREAS, those persons who engage in street activity in certain rights of way pose a serious risk and danger to themselves and users of the public rights of way, as well as impede the orderly flow of traffic; and

WHEREAS, those persons who engage in street activity in certain public rights of way located in school zones adjacent to schools during the hours buses and parents are dropping off or picking up children pose a serious risk and danger to the children arriving or leaving schools, as well as impede the orderly flow of traffic; and

WHEREAS, the City Council wishes to impose reasonable time and place regulations to safely and effectively control the public rights of way but also provide adequate opportunities for street activities in areas and at times when the risk of danger to children and other users of the public rights of way is lessened.²

In March 2004, Waco cited approximately twenty of Appellants' co-demonstrators for violating a former, broader version of the School Zone ordinance.³ Fearing that they would be cited next, Appellants filed this lawsuit in June 2004, seeking relief against the challenged ordinances based on the First Amendment. In September 2004, Waco amended the ordinances to their present form; it then moved for summary judgment, arguing that the amendments mooted Appellants' claims. Appellants proceeded to challenge the facial constitutionality of the new versions of the School Zone and Parade ordinances.⁴ After taking into account the Appellants' amended claims and Waco's response, the district court denied Appellants' summary judgment motion and dismissed all claims. Appellants' appeal is before us.

II. DISCUSSION

Whether the district court erred in denying Appellants' motion for summary judgment and dismissing their claims raises issues that we review de novo, applying the same legal standards as the district court. Mayo v. Hartford Life Ins. Co., 354 F.3d 400, 403 (5th Cir.2004). Appellants maintain that the School Zone and Parade ordinances are unconstitutional time, place, and manner regulations, are substantially overbroad, and are vague. Because we hold that both ordinances are invalid time, place, and manner regulations, we find it unnecessary to reach Appellants' over-breadth and vagueness arguments.

Appellants wish to continue their peaceful protests against abortion while reaching out to clinic employees and clients. The optimum time to protest coincides with school hours, precisely when the School Zone ordinance's potential ban is in effect. "Public streets a[re] the archetype of a traditional public forum" and from "time out of mind . . . have been used for public assembly and debate." Frisby v. Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420 (1988) (quotation marks and citations omitted). Thus, the rights of the government to limit First Amendment activity in a public forum are "sharply circumscribed." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). But

even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions "are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they 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, 105 L.Ed.2d 661 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984)).

The district court determined, and Appellants do not seriously dispute, that the ordinances are content-neutral. At issue, therefore, are Appellants' contentions that neither ordinance is narrowly tailored and that they fail to leave open ample alternative channels for communication. The broad outline of the standards for these contentions is well settled. A regulation "is narrowly tailored if it targets and eliminates no more than the exact source of the `evil' it seeks to remedy." See Frisby, 487 U.S. at 485, 108 S.Ct. at 2503. If "a substantial portion of the burden on speech does not serve to advance" the ordinance's stated goals, then the ordinance is not narrowly tailored. See Ward, 491 U.S. at 799, 109 S.Ct. at 2758. Nevertheless, the regulation "need not be the least restrictive or least intrusive means of furthering the government's interest." Id. at 798, 109 S.Ct. at 2757. As to alternative avenues of communication, "[w]hile the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places, a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate." Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 812, 104 S.Ct. 2118, 2132, 80 L.Ed.2d 772 (1984). Against this background, we assess each ordinance.

A. School Zone Ordinance

An ordinance infringing the right to demonstrate peacefully on public sidewalks must serve and narrowly promote significant government interests. Waco's asserted interests in protecting school children and citizens...