Smith v. Exec. Dir. of the Ind. War Memorials Comm'n

• Citation: 742 F.3d 282
• Decision Date: 04 February 2014
• Docket Number: No. 13–1939.,13–1939.
• Parties: Eric SMITH, Plaintiff–Appellant, v. EXECUTIVE DIRECTOR OF The INDIANA WAR MEMORIALS COMMISSION, et al., Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

742 F.3d 282

Eric SMITH, Plaintiff–Appellant,

v.EXECUTIVE DIRECTOR OF The INDIANA WAR MEMORIALS COMMISSION, et al., Defendants–Appellees.

No. 13–1939.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 28, 2013.

Decided Feb. 4, 2014.

Kenneth J. Falk, Attorney, American Civil Liberties Union of Indiana, Indianapolis, IN, for Plaintiff-Appellant.

Frances Barrow, Attorney, Office of the Attorney General, Indianapolis, IN, for Defendant-Appellee.

Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

The Indiana War Memorials Commission supervises the Soldiers and Sailors Monument at Monument Circle in Indianapolis, as well as several other monuments in downtown Indianapolis. A Commission policy requires even small groups to obtain a permit before gathering on Commission properties. Plaintiff Eric Smith and his young son were expelled from Monument Circle for protesting a proposed United Nations arms treaty without a permit. Smith claims here that the Commission's permit policy violates the First Amendment. He appeals from the district court's denial of his motion for a preliminary injunction against the policy's enforcement. The defendants say little about the merits but argue that his appeal is moot because the permit policy has changed since the district court denied the motion. We conclude, however, that the new policy retains the problematic features of the old, so Smith's appeal is not moot. Because we also conclude that Smith has met the requirements for obtaining a preliminary injunction, we reverse the judgment of the district court and remand the case with instructions to enter an appropriate preliminary injunction.

I. Factual and Procedural BackgroundA. Smith's Protest

Smith feared in the summer of 2012 that the United States would sign the Arms Trade Treaty, a treaty that would require countries to monitor international sales of conventional arms and ensure that arms embargoes are enforced with the goal of preventing exported weapons from falling into the hands of terrorist groups or other abusers of human rights. See http:// www. un. org/ disarmament/ ATT/ (visited Feb. 3, 2014) for a description of the treaty and its full text. The treaty has been criticized by some nations for eroding national sovereignty and by some private organizations for undermining individual rights to keep and bear arms. The U.S. has signed the treaty but has not yet ratified it. See http:// disarmament. un. org/ treaties/ s/ unitedstates ofamerica (visited Feb. 3, 2014). Smith believes that the Arms Trade Treaty would violate the U.S. Constitution by infringing the right to bear arms. To register his disapproval and raise awareness, he decided to organize a protest at Monument Circle, home to the Soldiers and Sailors Monument. The Circle is an outdoor state-run public property at the center of downtown Indianapolis.

Hoping to attract a like-minded crowd, Smith publicized the event with a printed flier. The flier warned of the impending “atrocious act” of signing the treaty—an act described as equivalent to “taking away the 2nd Amendment”—and urged readers to join their fellow citizens in opposition at Monument Circle on a Thursday and Friday in July. The flier exhorted readers to “stop being lambs” and ended with a quotation attributed to Adolf Hitler about the virtues of disarming the citizenry.

The flier failed to attract a single person to join Smith's protest. When Thursday came, he found himself on Monument Circle accompanied only by his son. The pair set up five small signs on the ground. Within minutes, a Commission employee approached and asked Smith whether he had an event permit. He did not. The employee told him to leave the property immediately, suggesting he move to a sidewalk on municipal rather than state property. Smith responded that the First Amendment protected his right to demonstrate at Monument Circle without a permit, but the employee was unmoved. Two Indiana State Police officers then approached and threatened to arrest Smith if he and his son did not depart. The Smiths reluctantly complied.

B. District Court Proceedings

After his expulsion from Monument Circle, Smith filed this suit against the Commission's executive director and the officers who had ordered him to leave the Circle on pain of arrest. He contends that the Commission's permit policy violates the Free Speech Clause of the First Amendment, and he moved for a preliminary injunction against its enforcement.

At a hearing on Smith's motion and in an earlier deposition, Christina Gaither, the Commission's director of administration, testified about the then-unwritten permit policy. She explained that, to ensure orderly use of the premises, the policy required individuals or groups to obtain a permit if they wished to use a Commission property for a “specific purpose.” Permit applications are reviewed by Commission employees, including Gaither. Pressing her on what she meant by “specific purpose,” Smith's lawyer asked about some hypothetical situations, a line of questioning that exposed the policy's illdefined contours. Gaither conceded that groups as large as twenty-five could gather together for lunch on the Circle without a permit. She was uncertain whether a group of twenty-five lunchgoers would be allowed to eat without a permit if they were wearing political t-shirts during the meal. Gaither also said that if a group gathers without a permit, it is offered an application to obtain a permit on the spot, and that no permit application had ever been denied. She could not explain, though, why this option was not offered to Smith during his July 2012 protest. Other areas of uncertainty in her testimony related to how the Commission calculates the proper fee for a permit and under what circumstances the applicant must also purchase insurance. Although a fee schedule exists, Gaither testified, departures from the schedule are not uncommon. (Examples of past permits supported her on this point.) She also testified that the insurance requirement would apply even to small groups if the members did not already know each other. People who know each other, she said, are not likely to sue each other or the Commission.

To obtain a preliminary injunction, Smith needed to establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the “balance of equities” tips in his favor (i.e., denying an injunction poses a greater risk to Smith than granting an injunction poses to the Commission), and that issuing an injunction is in the public interest. United States v. NCR Corp., 688 F.3d 833, 837 (7th Cir.2012). Because unconstitutional restrictions on speech are generally understood not to be in the public interest and to inflict irreparable harm that exceeds any harm an injunction would cause, see ACLU of Illinois v. Alvarez, 679 F.3d 583, 589 (7th Cir.2012), Smith's main obstacle to obtaining a preliminary injunction was demonstrating a likelihood of success on the merits.

In his motion and supporting brief in the district court, Smith explained why his First Amendment challenge to the Commission's permit policy would likely succeed. Monument Circle—where he had attempted to protest and hoped to protest in the future, both alone and in small groups—is indisputably a “traditional public forum.” The government can restrict the time, place, and manner of expression in a traditional public forum, but only if the restrictions (1) are content-neutral, (2) are narrowly tailored to serve a significant government interest, and (3) leave open ample alternative channels of communication. 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).

Smith recognized that the restriction on speech in a public forum need not be the narrowest possible, but he argued that requiring a permit for small groups of demonstrators is not narrowly tailored to serve a significant government interest when, for example, larger groups of people having lunch at Monument Circle do not need a permit. He also explained that the permit requirement is not content-neutral because the policy allows “unbridled discretion” to the decision makers, inviting discrimination. See Southworth v. Board of Regents of the University of Wisconsin System, 307 F.3d 566, 578–79 (7th Cir.2002). Finally, Smith argued for good measure that the permit requirement is overbroad, a doctrine of First Amendment law that permits facial challenges when a regulation of speech is so broad that it prohibits a substantial amount of protected speech. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 129–30, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). (An overbreadth challenge can be brought even when the plaintiff's expressive act legitimately could be restricted by a narrower regulation. Id. at 129, 112 S.Ct. 2395.) The defendants defended the policy in the district court as necessary to maintain order and to hold people accountable for any damage to Commission property during an event.

The district court denied Smith's motion on the ground that he had not demonstrated a reasonable likelihood of success on the merits. The court recognized that Monument Circle is a traditional public forum and that aspects of the permit policy appear to be constitutionally problematic. But the court stated repeatedly and rather opaquely that Smith had “failed to sufficiently articulate his challenge” to that policy.

II. AnalysisA. Mootness

On appeal the defendants do not attempt to defend the district court's order denying Smith's motion for a preliminary injunction. They argue instead that Smith's appeal is moot because the Commission has changed its permit policy since the district court ruled. When the district court ruled, the Commission's permit policy was unwritten and required a permit if someone wanted to use a space for a “specific purpose.” The new...