Nationalist Movement v. City of Cumming, Forsyth County, Ga.

• Decision Date: 02 October 1990
• Docket Number: No. 89-8417,89-8417
• Citation: 913 F.2d 885
• Parties: 62 Ed. Law Rep. 869, 33 Fed. R. Evid. Serv. 668 The NATIONALIST MOVEMENT, a Mississippi non-profit corporation incorporated in Georgia, Plaintiff-Appellant, v. The CITY OF CUMMING, FORSYTH COUNTY, GEORGIA, Forsyth County Board of Education, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 885

913 F.2d 885

62 Ed. Law Rep. 869, 33 Fed. R. Evid. Serv. 668

The NATIONALIST MOVEMENT, a Mississippi non-profit corporation incorporated in Georgia, Plaintiff-Appellant, v. The CITY OF CUMMING, FORSYTH COUNTY, GEORGIA, Forsyth County Board of Education, Defendants-Appellees.

No. 89-8417.

United States Court of Appeals Eleventh Circuit.

Oct. 2, 1990.

Richard Barrett, Jackson, Miss., for plaintiff-appellant.

Gordon S. Smith, King & Spalding, S. Samuel Griffin, Atlanta, Ga., for City of Cumming.

Robert S. Stubbs, III, McVay & Stubbs, Canton, Ga., for Forsyth County, Georgia.

Sam S. Harben, Jr., Harben & Hartley Law Firm, Gainesville, Ga., for Forsyth County Bd. of Educ.

Appeal from the United States District Court for the Northern District of Georgia.

Before FAY and COX, Circuit Judges, and GODBOLD, Senior Circuit Judge.

GODBOLD, Senior Circuit Judge:

This case arose out of the efforts of a group called The Nationalist Movement to conduct a parade and rally in Cumming, Forsyth County, Georgia, in January 1989. The Movement had held a parade and rally in Cumming in January 1988 to express its opposition to the federal holiday commemorating the birthday of Dr. Martin Luther King, Jr. It wished to hold a similar parade and rally on January 21, 1989, the date of the King holiday, in order to again express its opposition.

To carry out its plan the Movement applied for permits from three distinct public bodies: the City of Cumming, Forsyth County, and the Forsyth County Board of Education. During months of negotiations the details of the proposed event changed from time to time, and several amendments, suggestions, and alternatives were considered, but the major thrust of the plan ran this way: the Movement proposed that participants assemble on the grounds of the Forsyth County High School in Cumming, march along a public street to the county courthouse square, and there conduct a rally and speeches for one and a half to two hours. When the rally ended participants were to march back along the same route to the high school and disperse.

Initially the events were planned for Saturday afternoon, January 21. The Movement applied to the Superintendent of Education for permission to assemble on the high school grounds. It applied to the City Administrator for a permit to parade along a designated street, going to and coming from the courthouse square, and it applied to the County Administrator for a permit to conduct a rally on the courthouse steps.

The Movement was not successful in securing permits on terms and conditions agreeable to it. After an initial denial (until the Movement could show that it had an assembly point for the rally off the right of way of the street), the City Commission granted a parade permit for a parade to commence at 1:00 p.m. on Saturday, January 21, from the high school, to proceed to the courthouse, and to return. The City refused to close all traffic on the street during the parade and limited the Movement to the use of only one lane of the two-lane street.

After receiving this authorization, the Movement decided to change the time of its event in Cumming. It scheduled a rally in Atlanta for the afternoon of January 21 and received authorization from the City of Atlanta to conduct it. The Movement then sought to shift events in Cumming to Saturday morning, beginning at 9:00 a.m., planning to inform participants there of the Atlanta events and to urge them to attend. The City declined to change the authorized parade time because of the following provision of the City Parade and Assembly Ordinance.

[N]o private organization or group of private persons may use the roads immediately adjacent to and those roads which lead directly to the Forsyth County Courthouse grounds for private purposes of holding a parade, assembly, demonstration, or other similar activity on any non-holiday weekday prior to 8:00 a.m. or after 5:00 p.m. or on any Saturday, Sunday, or public holiday prior to 1:00 p.m. or after 5:00 p.m.

City Amended Parade and Assembly Ordinance, Sec. 6(g) (emphasis added). ¹

On December 30, 1988, the County approved the Movement's application for a rally on the courthouse steps and grounds lasting from about 8:00 a.m. to 11:00 a.m. on January 21, subject to the payment of a $100 application fee. A few days later, the Board of Education gave its consent for the participants to assemble on January 21 at the high school, conditioned first upon the Movement's obtaining permission from the City and County to conduct its parade and assembly and, second, on the requirement that the premises not be damaged or littered.

While continuing to negotiate with the City about the timing of the event, the Movement discussed with a lawyer for the Board of Education an alternative authorization to use the high school parking lot for its rally and speeches in the event the parade and the rally at the courthouse were "interfered with." It is uncertain whether this request was ever presented to the Board or was merely discussed with its counsel, but, in any event, approval to conduct a rally and speeches on school grounds was not given.

On January 19 the Movement filed suit in the district court for the Northern District of Georgia seeking a temporary restraining order, temporary and permanent injunction, compensatory and punitive damages, and attorney fees. On this same day the district court conducted a hearing on the request for a TRO. On January 23 it entered a written order denying the request. Two days later, January 25, the court entered a final judgment dismissing the case on the merits.

I. The City

The Movement contends that the section of the City's parade ordinance that bans parades and assemblies on Saturday mornings on streets adjacent to, or leading to, the county courthouse, violates the First Amendment on its face and as applied. Indisputably the proposed parade involves First Amendment activity. Also beyond dispute is the fact that this ordinance regulates such activity within a traditional public forum, indeed, "the archetype of a traditional public forum," public streets. Frisby v. Schultz, 487 U.S. 474, 480-81, 108 S.Ct. 2495, 2499-2500, 101 L.Ed.2d 420 (1988). See 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); Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939) (Roberts, J., joined by Hughes, C.J., and Black, J.). Our method of determining the constitutionality of the ordinance depends initially on whether it regulates expressive activity on the basis of content. If the restriction is based on the content of the expression, then the ordinance must be "necessary to serve a compelling state interest and ... narrowly drawn to achieve that end." Perry, 460 U.S. at 45, 103 S.Ct. at 954. If the ordinance is content-neutral, then it must be "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Id.

The district court determined that Sec. 6(g) of the parade ordinance was content-neutral. Although this section was enacted in the wake of previous demonstrations by the plaintiff and its affiliated organizations in Cumming, the ordinance on its face clearly does not discriminate among paraders on the content of their proposed expressive activities. The Movement nonetheless contends that the City's refusal to allow it to hold its activities in the morning was motivated by disagreement with the Movement's message. This contention is refuted by the simple fact that the City granted the Movement's earlier request to conduct a parade in the afternoon. The district court's determination is correct.

Thus the City's burden is to establish that its ordinance furthers significant municipal interests, that its restrictions are narrowly tailored to achieve those interests, and that those wishing to engage in expressive activity in Cumming have ample alternative means of doing so. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n. 5, 104 S.Ct. 3065, 3069 n. 5, 82 L.Ed.2d 221 (1984) (once plaintiff demonstrates that First Amendment applies, the government bears burden of justifying impingements on protected activity); id., at 309, 104 S.Ct. at 3077 (Marshall, J., joined by Brennan, J., dissenting) ("The First Amendment requires the Government to justify every instance of abridgement.") (emphasis in original). Unfortunately, because of the manner in which the hearing on the TRO request developed, the City did not have an opportunity to offer evidence to sustain this burden. After the plaintiff rested, a dialogue followed between court and counsel for all parties. Before permitting the City to present evidence, the court stated from the bench that the City "for some reason" had made a determination that Saturday morning parades were undesirable, that this ban was applied evenhandedly, and that the Movement had alternative means of conducting a parade since Saturday afternoon was available. The court then dismissed the suit against the City. Rec. III, p. 127. The County and the Board of Education then put on evidence, but the City did not in light of the court's oral ruling. ²

We cannot affirm the judgment in favor of the City on the basis of the record before us. Although the City identified some of the governmental interests to be served by the ordinance in its preamble, which we set out in the margin, the record contains no evidence showing how those interests were advanced by a Saturday morning ban on parades and rallies. ³ The City must demonstrate the logical and practical relationship between the restriction and these interests, so that the court may determine whether the restriction is substantially broader than is necessary to achieve those ends. See Ward v. Rock Against Racism, --- U.S. ----, 109 S.Ct. 2746, 2757-58, 105 L.Ed.2d 661 (1989); Community for Creative Non-Violence v. Turner, 893 F.2d...