St. Michael's Media, Inc. v. Mayor and City Council of Baltimore

Decision Date12 October 2021
Docket NumberCivil Action No. ELH-21-2337
Parties ST. MICHAEL'S MEDIA, INC., Plaintiff v. The MAYOR AND CITY COUNCIL OF BALTIMORE, et al., Defendants.
CourtU.S. District Court — District of Maryland

David S. Wachen, Wachen LLC, Potomac, MD, Marc J. Randazza, Pro Hac Vice, Randazza Legal Group PLLC, Las Vegas, NV, for Plaintiff.

Renita Lynne Collins, Hanna Marie C. Sheehan, Baltimore City Solicitor's Office, Baltimore, MD, for Defendants.


Ellen L. Hollander, United States District Judge

The right to speak freely and to promote diversity of ideas ... is ... one of the chief distinctions that sets us apart from totalitarian regimes ... [A] function of free speech under our system of government is to invite dispute.... Speech is often provocative and challenging ... [F]reedom of speech, though not absolute, is nevertheless protected against censorship ....

Terminiello v. City of Chicago , 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949) (citations omitted).

* * *

In this First Amendment case, the Court must determine whether to enjoin the Mayor and City Council of Baltimore (the "City")1 from banning a prayer rally and conference at a City-owned concert venue, based on alleged public safety concerns arising from the provocative and controversial nature of some of the speakers.

On September 13, 2021, plaintiff St. Michael's Media, Inc. ("St. Michael's") filed suit against the City; Baltimore Mayor Brandon M. Scott; and Baltimore City Solicitor James L. Shea, Esquire (collectively, the "City Defendants"). ECF 1. Soon after, St. Michael's filed a "First Amended Verified Complaint" ("Amended Complaint"). ECF 14. Plaintiff claims that the City Defendants have violated its rights under the First Amendment to the Constitution by denying plaintiff the right to hold a prayer rally and conference on November 16, 2021, at the MECU Pavilion (the "Pavilion"), situated in downtown Baltimore on Pier VI, in an area known as the "Inner Harbor." ECF 14, ¶ 7. The City owns the Pavilion, but it is managed by SMG, a private company that operates under the name "Royal Farms Arena." Id.

St. Michael's, a non-profit organization, "is a vocal critic of the mainstream Catholic Church," including the United States Conference of Catholic Bishops ("USCCB"). ECF 1, ¶ 66; see ECF 14, ¶ 75; ECF 1, ¶ 3. Plaintiff seeks to hold the prayer rally and conference to criticize the Church, particularly with respect to child sexual abuse committed by members of the clergy, and it wants to do so on a date that coincides with the USCCB's Fall General Assembly. ECF 1, ¶¶ 8-10, 42. The USCCB plans to meet from November 15 – 18, 2021 at the Waterfront Marriott Hotel ("Hotel"), a private facility located near Pier VI. Id. ¶¶ 8, 9.

On or about August 5, 2021, weeks after plaintiff had paid a $3,000 deposit to SMG for use of the Pavilion, SMG, on instruction of the City, notified St. Michael's that plaintiff could not rent the Pavilion. Id. ¶¶ 13, 14. The City cited safety concerns linked to some of the people who were identified as speakers at the event. Id. ¶¶ 15-19.

St. Michael's sent a demand letter to defendants on August 27, 2021, giving defendants until September 3, 2021, to permit the rally to proceed. ECF 1, ¶ 23. Defendants did not respond. Id. ¶ 34. This suit followed.

Along with the suit, St. Michael's moved for a temporary restraining order ("TRO") and a preliminary injunction. ECF 2 at 13. St. Michael's asked the Court to compel SMG to "fulfill its contractual obligations with St. Michael's" and to enjoin the defendants from "interfering with St. Michael's preparing for and conducting" its rally on November 16, 2021. Id. at 13-14. St. Michael's also submitted a declaration from its founder and CEO, Michael Voris, describing a telephone conversation with Shea on August 6, 2021 (ECF 8-1), and a declaration from Christine Niles, a senior producer and investigative reporter at St. Michael's, describing emails she obtained from the City pursuant to a request under the Maryland Public Information Act. ECF 8-2.2

St. Michael's subsequently filed its Amended Complaint (ECF 14), adding SMG as a defendant, and adding a new claim, directed only at SMG. Plaintiff also appended several exhibits. See ECF 14-1, ECF 14-2, ECF 14-3. The Amended Complaint contains five "Claim[s] for Relief," the first four of which are lodged against the City Defendants, pursuant to 42 U.S.C. § 1983. I shall refer to each claim as a count.

Count I alleges that the City Defendants violated plaintiff's First Amendment right to free speech. ECF 14, ¶¶ 48-61. Count II alleges that the City Defendants violated plaintiff's "Right of Free Exercise of Religion," as guaranteed by the First Amendment. Id. ¶¶ 62-72. In Count III, plaintiff claims that the City Defendants violated the Establishment Clause of the First Amendment. Id. ¶¶ 73-83. And, Count IV asserts that the City Defendants violated plaintiff's right of assembly, as protected by the First Amendment. Id. ¶¶ 84-98. Count V is lodged against SMG, and seeks specific performance of the alleged contract between plaintiff and SMG. Id. ¶¶ 99-113.

St. Michael's also filed an amended preliminary injunction motion. ECF 15 (the "Motion"). The Motion is supported by three exhibits (ECF 16), which are identical to the exhibits submitted with the Amended Complaint (ECF 14-1; ECF 14-2; ECF 14-3). And, the Motion seeks the same relief that was set forth previously in regard to the original motion.

Defendants oppose the Motion (ECF 25), supported by a memorandum (ECF 25-1) (collectively, the "Opposition") and five exhibits. ECF 25-2 to ECF 25-6. SMG joined the Opposition. ECF 26.3

St. Michael's replied. ECF 31 (the "Reply"). With the Reply, plaintiff submitted nine exhibits. ECF 31-1 to ECF 31-9. Thereafter, the Court requested additional briefing from defendants with respect to particular issues presented in the Reply. ECF 34. In response, defendants filed a surreply. ECF 37.

On September 29, 2021, one day before the scheduled Motion hearing (ECF 10), St. Michael's filed 17 witness declaration, as well as the curriculum vitae of a proffered expert witness, James P. Derrane, Ph.D. See ECF 41; ECF 41-1 to ECF 41-18. That night, shortly before 9:00 p.m., plaintiff filed Dr. Derrane's expert report, providing his safety risk assessment with regard to the proposed rally. ECF 42.4

The Court held an evidentiary Motion hearing on September 30, 2021, and October 1, 2021, at which six witnesses testified for plaintiff: James Grein; Father Paul John Kalchik; Milo Yiannopoulos; Christine Niles; Michael Voris; and Dr. Derrane. ECF 43; ECF 44.5 The parties also agreed to admit into evidence all exhibits previously submitted with their filings.

For the reasons that follow, I shall grant the Motion in part and deny it in part.6

I. Factual Background7
A. The Parties and the Pavilion

St. Michael's is a Michigan-based nonprofit organization that "publishes news stories about societal issues" and "current events of interest to Catholics," with "a particular focus on the Catholic Church." ECF 14, ¶¶ 3, 8. It has a subsidiary organization, "Church Militant," which is a 501(c)(4) organization. ECF 3 (Disclosure Statement). Defendants sometimes refer to the plaintiff by the name "Church Militant." See, e.g. , ECF 25-1 at 1; ECF 25-3 (Decl. of Michael G. Huber, Scott's Chief of Staff), ¶ 3 n.2.

Plaintiff notes that it "sometimes dissents from Catholic Church hierarchy, and is vocal about this dissent." ECF 14, ¶ 3. Moreover, it "often criticizes the current leadership" of the Catholic Church for what it perceives as "corruption in the Church," including the Church's protection of priests and others implicated in the sexual abuse of minors. Id. ¶ 8. In addition, St. Michael's "is a vocal critic of what it perceives as politicization of the Catholic Church by the USCCB." Id. ¶ 75. In particular, it "disagrees with, and criticizes, a number of the USCCB's positions on religious doctrine and morality, as well as the Catholic Church's covering up of the sexual abuse committed by priests." Id. The testimony of several witnesses for plaintiff, including Voris, Niles, and Grein, a victim of sexual child abuse committed by a high-ranking member of the clergy, made clear the passionate beliefs held by many of those affiliated with St. Michael's. See, also, e.g. , ECF 41-6 (Decl. of Niles), ¶¶ 3-9 (describing herself as a devout Catholic, but disdainful of the Church's treatment of sex abuse victims and "whistleblowers").

The Mayor and City Council of Baltimore is a municipal corporation. ECF 14, ¶ 4; see Balt. City Charter, Art. I, § 1. Scott is the Mayor of Baltimore. ECF 14, ¶ 6. Shea is the City Solicitor for Baltimore. Id. ¶ 5. As City Solicitor, Shea is the City's chief legal advisor and the head of its Department of Law. ECF 25-4 (Decl. of Shea), ¶ 4; Balt. City Charter, Art. VII, §§ 22-26.8 Both Shea and Scott have been sued in their official and individual capacities. ECF 14, ¶¶ 5, 6.

The Pavilion, owned by the City, opened in 1981 as the Pier Six Pavilion. ECF 25-2, ¶ 2 (Decl. of Frank Remesch, Royal Farms Arena General Manager); ECF 31-4 (Ticketmaster MECU Pavilion Venue Guide) at 2-3.9 It is a tent-like structure that functions primarily as a summer concert and entertainment venue. ECF 25-2, ¶ 3; ECF 31-1, Royal Farms Arena website; ECF 31-4. Located at 731 Eastern Avenue, the Pavilion is situated "in the heart of downtown Baltimore." ECF 25-3 (Huber Decl.), ¶ 3; see also ECF 14, ¶ 7, ECF 25-2, ¶ 3; ECF 25-6; ECF 37-1 (Remesch Supplemental Decl.), ¶ 3. As mentioned, the area where it is located is sometimes referred to as the Inner Harbor. ECF 25-3, ¶ 4; ECF 14, ¶ 7.

Promotional literature describes the Pavilion as a Baltimore "landmark," ECF 21-4 at 2, and a facility that is "instantly identifiable" given its "white big-top tent." ECF 31-4 at 2. The Pavilion has a total capacity for 4,600 persons, "split between covered seating and an open-air lawn."...

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