Service Employees Intern. Union v. City of Houston

• Decision Date: 31 March 2008
• Docket Number: Civil Action No. H-06-3309.
• Citation: Service Employees Intern. Union v. City of Houston, 542 F.Supp.2d 617 (S.D. Tex. 2008)
• Parties: SERVICE EMPLOYEES INTERNATIONAL UNION, et al., Plaintiffs, v. CITY OF HOUSTON, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

542 F.Supp.2d 617

SERVICE EMPLOYEES INTERNATIONAL UNION, et al., Plaintiffs, v.CITY OF HOUSTON, et al., Defendants.

Civil Action No. H-06-3309.

United States District Court, S.D. Texas, Houston Division.

March 31, 2008.

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Jonathan D. Weissglass, Katherine M. Pollock, Altshuler Berzon LLP, San Francisco, CA, Patrick M. Flynn, Attorney at Law, Houston, TX, for Plaintiffs.

Judith N. Benton, City of Houston, Houston, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

GRAY H. MILLER, District Judge.

Pending before the court are plaintiffs' motion for summary judgment and defendants' cross-motion for summary judgment.Dkts. 47 & 54.

BACKGROUND

Service Employees International Union, ("SEIU") Local 5, is a labor union based in Houston, Texas.PlaintiffsTomasa Compean and Austraberta Rodriguez work as janitors and are members of the union.In October 2006, SEIU was bargaining for a new contract that would cover approximately 5,300 janitors in Houston.On October 17, 2006 the bargaining reached an impasse.As a result, SEIU planned a strike to be accompanied by demonstration, rallies and a parade downtown and in other business areas.Pursuant to those plans, SEIU applied for sound amplification permits under § 30-8 of the City of Houston Sound Ordinance, and for parade permits under §§ 45-231 through 45-246 of the Parade Ordinance.Additionally, members of SEIU were prevented from using bullhorns during demonstrations and told they needed a sound permit.One of SEIU's sound permits and both of the parade permits were denied.

On October 19, 2006, SEIU filed its complaint against the City of Houston under 42 U.S.C. § 1983 for violations of the First Amendment.Dkt. 1.The next day SEIU filed a motion for a temporary restraining order to enjoin the City from enforcing certain aspects of the Sound OrdinanceandParade Ordinance.After a hearing on October 24, 2006, the court granted in part the motion for a temporary restraining order and enjoined the City from applying certain provisions of the ordinances against SEIU.In response to this ruling, the City amended part of its Parade Ordinance.Now before the court are the parties' cross-motions for summary judgment on stipulated facts.

STANDARD OF REVIEW

I.Motion for Summary Judgment

Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."FED. R. Crv. P. 56(c);see alsoChristopher Village, L.P. v. Retsinas,190 F.3d 310, 314(5th Cir.1999).When considering a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in favor of the non-movant.Adams v. Travelers Indem. Co. of Conn.,465 F.3d 156, 163-64(5th Cir.2006).The court must review all of the evidence in the record, but make no credibility determinations or weigh any evidence, disregard all evidence favorable to the moving party that the jury is not required to believe, and give credence to the evidence favoring the nonmoving party as well as to the evidence supporting the moving party that is uncontradicted and unimpeached.Jones v. Robinson Property Group, L.P.,427 F.3d 987, 993(5th Cir.2005).

In the instant case, the parties have filed a joint stipulation of facts.Therefore, if the stipulated facts support a conclusion of law, then summary judgment will be proper.

II.First Amendment

The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech."U.S. CONST. amend. I.As a threshold matter, the parties do not dispute that the city ordinances at issue here regulate protected speech in the traditional public forum — streets, parks, and sidewalks.Perry Educ. Ass'n v. Perry Local Educators' Ass'n,460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794(1983)("[S]treets and parks ... `have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.'")(quotingHague v. CIO,307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423(1939));New York v. Ferber,458 U.S. 747, 763, 102 S.Ct. 3348, 73 L.Ed.2d 1113(1982)(discussing categories of speech outside the protection of the First Amendment).Therefore, the questions before the court are (1) whether the ordinances are content-neutral time, place, and manner regulations, and (2) whether — even if they are content-neutral, place, and manner regulations — the ordinances are still rendered unconstitutional because they are overbroad, vague, or impermissible prior restraints on speech.

A. Content-Neutral Time, Place, and Manner Regulations

The Supreme Court has long recognized the conflict between expressive activity in the public forum and the government's very real need to facilitate and protect the activities for which the public spaces are otherwise intended.SeeHeffron v. Internat'l Soc. for Krishna Consciousness, Inc.,452 U.S. 640, 647, 101 S.Ct. 2559, 69 L.Ed.2d 298(1981).Therefore, the government may, in some instances, restrict access to the public forum through carefully crafted time, place, and manner regulations.Burson v. Freeman,504 U.S. 191, 198, 112 S.Ct. 1846, 119 L.Ed.2d 5(1992)(citingPerry,460 U.S. at 45, 103 S.Ct. 948)."[R]easonable time, place, or manner restrictions ... are valid provided that they 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."Clark v. Cmty. for Creative Non-Violence,468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221(1984).

In reviewing the constitutionality of a restriction, the court must first determine whether it is content-based or content-neutral."The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys."Ward v. Rock Against Racism,491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661(1989)(citingClark,468 U.S. at 295, 104 S.Ct. 3065).When assessing the neutrality of a regulation, the government's purpose in enacting the regulation is paramount.Id.If the regulation excludes expression based on content, then it is not considered a time, place and manner regulation, and is subject to "exacting scrutiny."¹Burson,504 U.S. at 198, 112 S.Ct. 1846(citingPerry,460 U.S. at 45, 103 S.Ct. 948).However, if the government justifies the regulation without reference to the content of the speech "it is deemed neutral, even if it has an incidental effect on some speakers or messages but not others."Id.

Second, the court looks to the government's interest in promulgating the regulation, and the fit between the interest and the regulation.While the significance of the government's interests in regulating tranquility, privacy, and repose, and public order and safety in its streets is well established, the burden of establishing that interest lies with the government.SeeThomas v. Chicago Park Dist.,534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783(2002)(park ordinance);Knowles v. City of Waco,462 F.3d 430(5th Cir.2006)(parade ordinance);Reeves v. McConn,631 F.2d 377(5th Cir.1980)(sound amplification ordinance).The regulation must be narrowly tailored to serve the government's interest, but "it need not be the least restrictive or least intrusive means of doing so."Ward,491 U.S. at 798-99, 109 S.Ct. 2746"Rather, the requirement of narrow tailoring is satisfied `so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'"Id.(quotingUnited States v. Albertini,472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536(1985)).

Last, the court should undertake the fact-specific determination of whether there are ample alternative avenues left open for the restricted communication."[T]he First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired."Heffron,452 U.S. at 647, 101 S.Ct. 2559.Therefore, "alternative channels of expression ... need not `be perfect substitutes for those channels denied to plaintiffs.'"Vincenty v. Bloomberg,476 F.3d 74, 88(2d Cir.2007)(quotingMastrovincenzo v. City of New York,435 F.3d 78, 101(2d Cir.2006)).Those alternatives need only "leave open sufficient alternative avenues of communication to minimize the `effect on the quantity or content of th[e] expression.'"Id.(quotingWard491 U.S. at 802, 109 S.Ct. 2746).

Regulations that meet these criteria are considered reasonable time, place and manner regulations.However, even a regulation which initially passes muster under this inquiry may be constitutionally infirm based on the doctrines of overbreadth, vagueness, and prior restraint.

B. Overbreadth, Vagueness, and Prior Restraint

The doctrines of overbreadth, vagueness, and prior restraint can be "strong medicine."Broadrick v. Oklahoma,413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830(1973).They all review the means by which the government regulates speech, rather than the ends of the alleged injury, if any, to the party.See generally,KATHLEEN M. SULLIVAN & GERALDGUNTHER, FIRST AMENDMENT LAW 346-83 (2d ed.2003)."An overbroad law sweeps in too much speech, a vague law is unclear about what speech it sweeps in, and a prior restraint is premature even if publication might be subsequently...