Netherland v. City of Zachary, La., Civil Action No. 07-409-JJB.
| Decision Date | 27 May 2009 |
| Docket Number | Civil Action No. 07-409-JJB. |
| Citation | 626 F.Supp.2d 603 |
| Parties | John T. NETHERLAND v. CITY OF ZACHARY, LOUISIANA. |
| Court | U.S. District Court — Middle District of Louisiana |
This matter is before the Court on a Motion for Summary Judgment, or in the Alternative, for As-Applied Claims, Motion for Consolidation of Hearing with Trial on the Merits, filed by Plaintiff, John T. Netherland, against Defendant, City of Zachary, Louisiana (Doc. 43). Defendant has filed an opposition to this motion (Doc. 47). There is no need for oral argument. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
On June 27, 2008, Plaintiff filed the instant motion asking this Court to find that Zachary Code Ordinance 59-93.2(a)(2) ("Ordinance") was unconstitutional on its face and as applied to Plaintiff. This Court deferred ruling on Plaintiffs motion until the Fifth Circuit ("Panel") ruled on the appeal of this Court's November 30, 2007, 527 F.Supp.2d 507, preliminary injunction order ("Order"). The Panel has now ruled on the appeal, vacating the Order. The Panel, however, did note that "for reasons relating both to the proper functioning of courts and their efficiency, the lawfulness of the particular application of the law should ordinarily be decided before considering a facial challenge."1 Additionally, the Panel stated that "in a case such as this one where the district court has already made extensive findings of fact, it may be appropriate [for the Court] to first consider the application of the Ordinance to Mr. Netherland before engaging in the `more difficult' problem of determining if the statute is unconstitutional on its face."2 In other words, the Panel suggested that before the Court confronts the question of whether the Ordinance is unconstitutional on its face, it should first see if this case can be resolved by addressing the as-applied challenge. The Court addresses the as-applied challenge here.
Mr. Netherland argues that Zachary Code Ordinance 59-93.2(a)(2) violated his First Amendment rights as applied to his speech and his free exercise of religion. The Court agrees.
In ascertaining the constitutional validity of a restriction on speech, the Court must (1) first assess whether the speech deserves protection, (2) then determine the type of forum involved, and (3) finally decide whether the proffered justification for the state's restriction satisfies the appropriate standard.4
There is no question that Mr. Netherland's speech in Zachary, near Sidelines, expressed a religious message. Religious speech is fully protected by the First Amendment.5 The United States Supreme Court in Pinette stated that, "government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince."6
Sidelines' employees and management maintain that Mr. Netherland stood on Sidelines' property in the parking lot area while he yelled loudly at Sidelines' customers as they approached and/or left the building. Mr. Netherland maintains that he stood on a public easement—property belonging to the City of Zachary, but used as a separator an easement between the private parking lot of Sidelines and the side of a nearby road. Police Officers Ivey and Hughes who arrived at Sidelines to observe Mr. Netherland never saw him on Sidelines' property, and this Court finds that while Mr. Netherland may have briefly strayed onto the Sidelines parking lot,7 he expressed his religious message from a public easement.
A public easement, including the one on which Mr. Netherland expressed his religious message, is a quintessential traditional public forum. It is fundamental to the guarantees of the First Amendment that "public streets and sidewalks have been used for public assembly and debate" and are "the hallmarks of a traditional public forum."8
It is well settled that the government has a limited ability to permissibly restrict expressive activity in a public forum.9 The Supreme Court has set forth two separate tests to determine whether a governmental restriction on speech violates the First Amendment: strict scrutiny and intermediate scrutiny. In order to decide which test to apply to the government's conduct, the court must consider whether the restriction was content-based, or content-neutral. If the court determines that the Defendants' restriction was based on the content of Mr. Netherland's speech, strict scrutiny applies. If, however, the court determines that the Defendant's restriction was not based on the content of Mr. Netherland's speech, but was content-neutral, the intermediate scrutiny test applies.
Strict scrutiny, as applied to the content-based restrictions of speech, requires the government to show that the restriction at issue is narrowly tailored to promote a compelling governmental interest.10 If there is a less restrictive alternative available, the governmental restriction cannot survive strict scrutiny.11 Alternatively, intermediate scrutiny requires the government to demonstrate that the restriction on speech is narrowly tailored to serve a significant government interest and leaves open alternative channels of communication.12 So long as the restriction promotes a substantial government interest that would be achieved less effectively without the restriction, it is sufficiently narrowly tailored to satisfy intermediate scrutiny.13
A. The City's Application of the Ordinance was Content-Based
Regardless of the constitutionality of the Ordinance on its face, the City's application of the Ordinance to Mr. Netherland's speech in the traditional public forum was and remains content-based, thus it is subject to strict scrutiny. According to testimony, the Defendant's witnesses admitted that they complained about Mr. Netherland and enforced the Ordinance against him because of the content of his speech. Indeed, Lt. Eubanks admitted as much, under oath, in the following exchange:
Q: And if he were to go out there tonight and engage in the same type of conduct, you would feel that you would arrest him?
In fact, the hearing record is replete with testimony indicating that Mr. Netherland was targeted because of such content.15
There is no question that the threat of arrest endured by Mr. Netherland was chiefly prompted by his message.16 Even if Mr. Netherland's views are unpopular, disquieting, annoying, or offensive, a compelling government interest is not achieved by threatening him with arrest. Likewise, even if the City had a compelling interest, its actions were not narrowly tailored. If the City wanted Mr. Netherland to stop name calling any patrons of Sidelines, then a narrowly tailored response would have been for Lt. Eubanks to tell Mr. Netherland to stop calling people names. Instead, the City prohibited him from speaking his religious message on the public easement altogether.
There was no adequate justification for the City's actions when its officers sought to silence Mr. Netherland's religious pronouncements. Speech cannot be restricted simply because it causes serious offense to others.17 Thus, even if Mr. Netherland's speech was highly offensive to some people, it is protected in a traditional public forum. The government "may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable."18
The City's application of the Ordinance to Mr. Netherland's speech fails strict scrutiny, as the City had no compelling interest in silencing Mr. Netherland's religious speech, and removing Mr. Netherland from the forum and silencing him completely was not a narrowly tailored response to any interest it had.
Defendant also argues that a paramount content-neutral justification for the officers' actions were general safety concerns based upon Mr. Netherlands extremely close proximity to passing motorists while he yelled at the drivers near a busy intersection. According to the Defendant, the general traffic conditions were hazardous enough to require Mr. Netherland to refrain from standing on the narrow edge of the roadway.
Defendant contends that the Seventh Circuit entertained a similar question in Ovadal v. City of Madison.19 The Ovadal plaintiff demonstrated against homosexuality by holding up sings on pedestrian overpasses.20 Police officers responded to complaints by drivers that the signs were causing traffic problems by telling the plaintiff that he could no longer display his signs on pedestrian overpasses. The Seventh Circuit determined that concerns about traffic and pedestrian safety can present a content-neutral criteria for restricting speech. However, Ovadal differs from the instant case. Ovadal involved a person holding signs over an overpass, not a person speaking on a grassy open easement near a bar. Unlike in Ovadal, where the plaintiff held signs that could distract a motorist who might take her eyes off the road, here, Mr. Netherland held no signs that could have potentially caused a distraction. Additionally, he stood on the unpaved shoulder's edge because Lt. Eubanks forced him to move there.21
Mr. Netherland's fundamental right to the free exercise of religion was also unduly burdened with the application of the Ordinance in the instant matter. As applied by the City to...
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