Ovadal v. City of Madison, Wis.

• Decision Date: 20 November 2006
• Docket Number: No. 05-4723.,05-4723.
• Citation: 469 F.3d 625
• Parties: Ralph OVADAL, Plaintiff-Appellant, v. CITY OF MADISON, WISCONSIN, Richard Williams, Chris Paulson, and Patrick Grady, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

469 F.3d 625

Ralph OVADAL, Plaintiff-Appellant, v. CITY OF MADISON, WISCONSIN, Richard Williams, Chris Paulson, and Patrick Grady, Defendants-Appellees.

No. 05-4723.

United States Court of Appeals, Seventh Circuit.

Argued September 22, 2006.

Decided November 20, 2006.

Nathan W. Kellum (argued), Alliance Defense Fund, Memphis, TN, for Plaintiff-Appellant.

Catherine M. Rottier (argued), Boardman, Suhr, Curry & Field, Madison, WI, for Defendants-Appellees.

Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.

KANNE, Circuit Judge.

The plaintiff sued the City of Madison and various officers of the Madison Police Department (collectively "Madison") under 42 U.S.C. § 1983 alleging that his constitutional rights of free speech and freedom of religion were infringed. The district court granted summary judgment to Madison in a Memorandum and Order dated November 8, 2004. We remanded so that the district court could develop some aspects of the factual record. Ovadal v. City of Madison, 416 F.3d 531 (7th Cir.2005). After a bench trial, the district court entered judgment in favor of the defendants. Ovadal v. City of Madison, 2005 WL 3434402 (W.D.Wis. Dec.13, 2005). The plaintiff appeals. We affirm.

I. HISTORY

Mr. Ovadal began this, his most recent foray into the federal courts, after events that occurred in Madison in the Fall of 2003. On September 3 and October 11 of that year he organized two small demonstrations to express his opposition to homosexuality. His chosen fora for these demonstrations were overpasses where city sidewalks crossed the Madison Beltline freeway.¹ On both occasions the demonstrations had a noticeable effect on traffic below. On both occasions the Madison police arrived and forced Ovadal to move from the overpasses on the grounds that his activities were causing a traffic hazard for the motorists below him. Ovadal brought suit seeking damages as well as declaratory and injunctive relief.

As we previously held in this case, Ovadal's demonstrations are well within the core of the types of speech and acts that are protected by the First Amendment and his chosen location is a traditional public forum. Ovadal, 416 F.3d at 536. Madison can make time, place, or manner restrictions on such speech only if they are content-neutral, narrowly-tailored to serve a significant government interest, and leave open ample alternative means of communication. Id. Alternatively, Madison can make content-based restrictions on such speech only if necessary to accomplish a compelling interest and narrowly tailored to that end. Id. The primary issue of contention between the parties on remand and on this appeal has been whether Madison's actions were content-neutral.

Ovadal argues that a policy that restricts speech based on its effect on traffic is not content-neutral. Arguing backwards, he reasons that traffic congestion and motorist complaints are a function of motorists' reactions to his message, and that motorists will react to create a traffic hazard when confronted with a message that they do not accept. This, in Ovadal's view, gives the motorists a "heckler's veto" over his protected speech. See, e.g., Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992).

Madison, however, contends that the decisions to remove Ovadal from the overpasses were not, even indirectly, driven by the content of his speech. The defendants contend that the police responded to a traffic hazard that was caused not by the content of Ovadal's signs but by the fact that he was creating a "spectacle" over heavy high-speed traffic. Madison argues that regardless of whether the first person who looked up at the band of protesters and tapped their brakes agreed with Ovadal's message or abhorred it, that person set off a chain reaction: traffic became increasingly more dangerous and many drivers were left angry.

The district court conducted a bench trial to resolve this factual dispute and entered judgment in favor of Madison. The court specifically entered findings of fact that the traffic congestion was not caused by (or a derivative of) the content of Ovadal's speech, but rather was caused by the presence of the band of protesters and motorists' reactions to their presence. Ovadal, 2005 WL 3434402, at *1-2 (W.D.Wis. Dec.13, 2005). The court entered conclusions of law that Madison's actions were content-neutral, were necessary to serve the compelling government interest of motorist safety, and left ample alternatives to Ovadal. Id. at *2-3.

Seven days after the bench trial, Madison Ordinance 05-00193 took effect, and amended the compiled Madison City Ordinances to prohibit any person to "display, place, erect, post, maintain, install, affix, or carry any street graphic, including a hand-carried sign" on highway overpasses such as those at issue in this lawsuit. Madison City Ord. § 31.04(6)(m). The ordinance bans any such display, provided that it is visible from the highway. Id. The ban is limited to freeways and expressways, or controlled access highways with a speed limit greater than forty miles per hour. Id.

On appeal, Ovadal seeks to have "Madison's traffic hazard policy" declared unconstitutional and enjoined from enforcement, and seeks damages for the two occasions that he was forced off the bridges. He alleges that there is either an unwritten policy that is directed at him—a "no-Ovadals-on-overpasses rule"—or alternatively that there is a policy that leaves the existence of a traffic hazard to the judgment of a police officer. This policy, he argues, gives too much discretion to the police, is incapable of content-neutral application, is not narrowly tailored, and does not serve a compelling state interest.

II. ANALYSIS

A. Declaratory and Injunctive Relief

The Constitution gives the federal courts jurisdiction over "cases" and "controversies." U.S. Const. Art. III § 2, cl. 1. When circumstances change during litigation such that there is no longer any case or controversy, the case is moot. Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). If a defendant voluntarily ceases the behavior that is complained of, the case can be rendered moot "if subsequent events [make] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting United States v. Concentrated Phosphate Exp. Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)).

At its heart, Ovadal's request for declaratory and injunctive relief relies on the claim that Madison had an unwritten policy that impermissibly burdened his First Amendment rights by prohibiting protests when, in the opinion of a police officer, the protests were causing a traffic hazard. He bases this belief on the fact that on the two occasions when he was forced to leave the pedestrian overpasses, the officers told him that he was being forced to move because he was causing a traffic hazard. His constitutional complaint is that this unwritten policy leaves far too much to the discretion of the police officer. He notes that what might seem to be a traffic hazard to one officer might not be for another. He also argues that by restricting speech on the basis of the observable effect on motorists, the motorists might be given a heckler's veto.

As we previously noted, "[i]f [Madison] had a policy that prohibited not just Ovadal's, but all protests and all signs on all Beltline overpasses" the restriction would be "clearly content-neutral." Ovadal, 416 F.3d at 536. By passing § 31.04(6)(m), the city appears to have taken our previous decision to heart. The ordinance itself is not before the court: the only significance of the ordinance is the effect that it has on any alleged unwritten policy. If the ordinance now replaces the behavior that is the subject of the complaint, making the alleged unconstitutional behavior effectively impossible, the request for forward-looking relief is moot. To put a finer edge on it: the only way that the request for declaratory or injunctive relief would not be rendered moot by the ordinance would be if Ovadal could point to some subset of expressive behavior that is currently allowed by the ordinance but would be banned by the alleged traffic hazard policy.

The parties agreed at oral argument that the behavior that started this lawsuit—carrying signs over the Beltline freeway—is now strictly banned regardless of the time of day, the effect on the motorists below, or the noticeable effects on traffic safety. At oral argument, Ovadal claimed that the ordinance does not ban non-sign protests, nor does it ban motorist-distracting signs from bridges over other, slower speed, roads in Madison. Ovadal posits that these two activities, which are not prohibited by the ordinance but would be subject to the alleged traffic hazard policy, show that the case or controversy is still alive. But those types of activities are not before the court in this appeal. There has been no showing that Madison has ever prevented or would prevent Ovadal from marching without signs over any sidewalk or bridge in Madison. Likewise, there is no evidence that Ovadal has ever been asked to move when demonstrating from a bridge over a slow-speed roadway. Such restrictions, if they existed, would raise significant constitutional questions. But we are now three years into this litigation and the evidence, the district court's decision, and the briefs and arguments made here on appeal have not been directed at those questions or those types of behavior. If there are such instances, they are issues for a different lawsuit. It would be an advisory opinion in its worst...