New Century Found v. Robertson

Decision Date10 September 2019
Docket NumberCase No. 3:18-cv-00839
Citation400 F.Supp.3d 684
Parties NEW CENTURY FOUNDATION and Samuel Jared Taylor, Plaintiffs, v. Michael ROBERTSON, in His Official Capacity as Director of Tennessee Department of Environment and Conservation, Defendant.
CourtU.S. District Court — Middle District of Tennessee

Kyle J. Bristow, Clinton Twp., MI, Van R. Irion, Law Office of Van R. Irion, Knoxville, TN, for Plaintiffs.

Dawn Marie Jordan, Jay C. Ballard, Sara Ohlman, Tennessee Attorney General's Office, Nashville, TN, for Defendant.

MEMORANDUM

ALETA A. TRAUGER, United States District Judge

Before the court are a Motion for Summary Judgment filed by plaintiffs New Century Foundation ("NCF") and Samuel Jared Taylor (Doc. No. 59) and a Motion for Summary Judgment filed by defendant Michael Robertson (Doc. No. 66). For the reasons set forth herein, each motion will be granted in part and denied in part.

I. PROCEDURAL BACKGROUND

NCF is an organization that publishes "materials about European heritage, culture, and interests." (Doc. No. 1 ¶ 3.) Its president, Samuel Jared Taylor, is a frequent speaker at public and private events about "issues concerning European heritage, culture, and interests." (Id. ¶ 1.) In September 2018, the plaintiffs filed a Verified Complaint (Doc. No. 1) seeking declaratory and preliminary and permanent injunctive relief against the defendant, Michael Robertson, in his official capacity as the director of the Tennessee State Park Operations ("Parks Division"), a division of the Tennessee Department of Environment and Conservation ("TDEC"), under 42 U.S.C. § 1983. The plaintiffs alleged that the defendant's policy of requiring the plaintiffs to pay the cost of hiring law enforcement officers to ensure public safety and of repairing damages caused by protesters, if plaintiffs elect to host a conference at a facility owned and operated by the State of Tennessee (the Montgomery Bell Inn and Conference Center, located within Montgomery Bell State Park), violates their rights under the First Amendment.

After conducting an evidentiary hearing in October 2018, the court denied the defendant's Motion to Dismiss and granted the plaintiffs' Motion for Preliminary Injunction. The defendant was preliminarily enjoined from requiring the plaintiffs, as a condition of contracting to reserve lodging and meeting rooms at the MBICC, to agree to pay "damage repair costs or ancillary fees and charges" arising from damage to MBICC or Montgomery Bell State Park facilities caused by persons not affiliated with the plaintiffs, the cost of "security to ensure public safety" arising from the presence of protesters at the Park, or "any other costs above normal operating expenses reasonably resulting from the group's use of or attendance at the state park" (see Doc. No. 1-1, at 3), to the extent such charges arise from the activities of protesters and third parties over whom the plaintiffs have no control. (See Doc. No. 29.)

The plaintiffs filed an Amended Complaint in January 2019, which added claims against Robertson in his individual capacity. The plaintiffs now assert that the defendant, in his individual capacity, acted with actual malice, is not entitled to qualified immunity, and may be personally liable both for "general and special" damages directly caused by his violation of the plaintiffs' right to free speech and for punitive damages. (See Doc. No. 39 ¶¶ 17–19.) Otherwise, the plaintiffs continue to maintain that the defendant violated the plaintiffs' constitutional right to free speech by "requiring Plaintiffs to pay an unconstitutional security fee to ensure public safety and [requiring them] to pay for damage caused by protesters if Plaintiffs elect to rent publicly available rooms at MBICC to host a conference at which attendees and speakers would discuss matters concerning European heritage, culture, and interests." (Doc. No. 39 ¶ 22.)

The plaintiffs filed their Motion for Summary Judgment and incorporated Brief in Support thereof (Doc. No. 59), on May 1, 2019, along with a document that purports to be a Statement of Undisputed Material Facts (Doc. No. 59-1). The defendant filed a timely Response (Doc. No. 64), Response to Plaintiffs' Statement of Undisputed Material Facts (Doc. No. 64-1), Statement of Undisputed Additional Material Facts (Doc. No. 64-2), and various deposition excerpts and other exhibits. The plaintiff filed a Reply and Response to the Statement of Additional Facts. (Doc. Nos. 65, 65-1.)

Following the completion of briefing on the plaintiffs' motion, the defendant filed his own Motion for Summary Judgment (Doc. No. 66), Memorandum in Support thereof (Doc. No. 68), Concise Statement of Undisputed Material Facts (Doc. No. 67), and more evidentiary materials. The plaintiff filed an "Answer" to the defendant's motion and incorporated Brief (Doc. No. 70), and a Response to the Statement of Facts (Doc. No. 70-1). The defendant filed a Reply as well as a Reply to the plaintiffs' Response to his Statement of Facts. (Doc. Nos. 71, 72.)

II. STANDARD OF REVIEW

Rule 56 requires the court to grant a motion for summary judgment if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party has the initial burden of informing the court of the basis for its motion and identifying portions of the record that demonstrate the absence of a genuine dispute over material facts. Rodgers v. Banks , 344 F.3d 587, 595 (6th Cir. 2003). The moving party may satisfy this burden by presenting affirmative evidence that negates an element of the non-moving party's claim or by demonstrating an absence of evidence to support the non-moving party's case. Id. Accordingly, to win summary judgment as to its own claims, a moving plaintiff must demonstrate that no genuine issue of material fact exists as to any of the essential elements of its claims.

Once the moving party makes its initial showing, the burden shifts to the non-moving party to provide evidence beyond the pleadings, "set[ting] forth specific facts showing that there is a genuine issue for trial." Moldowan v. City of Warren , 578 F.3d 351, 374 (6th Cir. 2009) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "In evaluating the evidence, the court must draw all inferences in the light most favorable to the non-moving party." Moldowan , 578 F.3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

At this stage, " ‘the judge's function is not ... to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.’ " Id. (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). But "[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient," and the party's proof must be more than "merely colorable." Anderson , 477 U.S. 242, at 252, 106 S.Ct. 2505, 91 L.Ed.2d 202. An issue of fact is "genuine" only if a reasonable jury could find for the non-moving party. Moldowan , 578 F.3d at 374 (citing Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ).

"The standard of review for cross-motions for summary judgment does not differ from the standard applied when a motion is filed by only one party to the litigation." Ferro Corp. v. Cookson Group, PLC , 585 F.3d 946, 949 (6th Cir. 2009). "[S]ummary judgment in favor of either party is not proper if disputes remain as to material facts. Rather, the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Taft Broad. Co. v. United States , 929 F.2d 240, 248 (6th Cir. 1991) (citations omitted).

III. STATEMENT OF FACTS

The facts set forth herein are drawn from the defendant's Statement of Undisputed Material Facts (Doc. No. 67), the plaintiff's Response thereto (Doc. No. 70), defendant's Reply to the Response (Doc. No. 72), the First Amended Verified Complaint (Doc. No. 39) and Answer (Doc. No. 53), and various exhibits provided by both parties.1 The material facts are undisputed—the parties dispute how the law should be applied to those facts.

Michael Robertson is the Director of TDEC's Parks Division. In that position, he is directly responsible for the overall budget for fifty-six Tennessee state parks and all of the staff who carry on the day-to-day operations of the parks.

Montgomery Bell State Park ("Montgomery Bell" or the "Park") is one of Tennessee's resort parks. The Park has an Inn and Conference Center (collectively, "ICC"), which are consolidated in one building. Under state law, resort facilities such as the ICC are required to be revenue-generating and self-sustaining. Tenn. Code Ann. § 11-3-305.

Every year since 2012, NCF has held an annual conference or meeting at the ICC, at which attendees and speakers "discuss matters concerning European heritage, culture, and interests." (Doc. No. 39 ¶ 8; Doc. No. 53 ¶ 8.) Every year for the preceding five years, the plaintiffs have reserved, not only the conference and meeting rooms at the Conference Center portion of the ICC, but also all of the sleeping rooms available at the Inn portion of the ICC. They make reservations well in advance of the date of their conference with the specific intent of securing the entire facility.

In the past, people who disagree with the content and viewpoint of the NCF conferences have gathered to protest during the NCF conferences. (Doc. No. 39 ¶ 10; Doc. No. 53 ¶ 10.) In recent years, TDEC has provided security for conference attendees, sometimes in coordination with other state agencies, and has also provided a zone within the park for protesters to gather, with a "neutral buffer zone between the [event venue] and the crowds/protesters" in which only law...

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