Williamson v. City of Foley, Alabama et al
ORDER granting 7 Motion for Preliminary Injunction. Defendants are enjoined, until such time as the Court enters a ruling on the merits of this action, from applying the Ordinance to impose a permit requirement on the plaintiff or those with him as a condition of their religious expression on the City's public sidewalks. Signed by Chief Judge William H. Steele on 11/18/2015. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
) CIVIL ACTION 15-0430-WS-B
CITY OF FOLEY, ALABAMA, et al.,
This matter is before the Court on the plaintiff’s motion for preliminary
injunction. (Doc. 7). The parties have filed briefs and evidentiary materials in
support of their respective positions, (Docs. 7-8, 20-21, 23), and the motion is ripe
for resolution. After careful consideration, the Court concludes the motion is due
to be granted.
According to the verified complaint, (Doc. 1), the plaintiff is a Baptist
pastor in Baldwin County who periodically leads members of his congregation in
evangelistic street ministry. Since 2006, he and parishioners have engaged in such
activity inside the corporate limits of the defendant City of Foley (“the City”),
specifically at the intersection of Highways 59 and 98. The group’s members
spread out on the public sidewalks at the four corners of the intersection and, for a
period of one hour, preach and witness both orally and with signs. Until 2014, this
occurred repeatedly and without incident.
In March 2014, the City adopted an ordinance (“the Ordinance”), which
requires that persons wishing to engage in speech on public property obtain a
permit prior to doing so. The failure to comply with the Ordinance is punishable
by fine and imprisonment. Defendant David Wilson, in his capacity as Chief of
Police, is charged by the Ordinance with ruling on applications for issuance of a
The City has twice applied the Ordinance to the plaintiff. On the first
occasion, the group disbanded rather than face arrest. On the second occasion, in
August 2014, the plaintiff was issued a citation for violating the Ordinance.
Defendant Otis Miller is a police lieutenant who was involved in both incidents.
The plaintiff would like to continue his street preaching as before. But for
his fear of arrest and criminal citation, he would return to the City and engage in
these expressive activities.
The complaint alleges that the Ordinance violates the plaintiff’s First
Amendment rights of free speech as well as the Due Process Clause. The plaintiff
asks the Court to declare the Ordinance unconstitutional on its face and as applied
to his desired speech and to award nominal damages, attorney’s fees, costs and
expenses. (Doc. 1 at 22-23). By motion, the plaintiff asks the Court to enjoin the
City, the individual defendants and certain others “from applying [the Ordinance]
to impose a permit requirement on [the plaintiff’s] small group religious
expression on public sidewalks in [the City].” (Doc. 7 at 1).
“A preliminary injunction is an extraordinary and drastic remedy not to be
granted unless the movant clearly establishes the burden of persuasion as to the
four requisites.” American Civil Liberties Union of Florida, Inc. v. Miami-Dade
County School Board, 557 F.3d 1177, 1198 (11th Cir. 2009) (internal quotes
omitted). “A district court may grant [preliminary] injunctive relief only if the
moving party shows that: (1) it has a substantial likelihood of success on the
merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the
threatened injury to the movant outweighs whatever damage the proposed
injunction may cause the opposing party; and (4) if issued, the injunction would
not be adverse to the public interest.” Id. (internal quotes omitted). “Failure to
show any of the four factors is fatal, and the most common failure is not showing a
substantial likelihood of success on the merits.” Id. The parties focus on the
likelihood vel non of the plaintiff’s success.
Neither side has requested a hearing. “An evidentiary hearing is required
for entry of a preliminary injunction only where facts are bitterly contested and
credibility determinations must be made to decide whether injunctive relief should
issue.” Cumulus Media, Inc. v. Clear Channel Communications, Inc., 304 F.3d
1167, 1178 (11th Cir. 2002) (internal quotes omitted). That circumstance being
absent here, and the parties not desirous of a hearing, none will be held.
The defendants agree with the plaintiff that his religious speech is protected
by the First Amendment and that the public sidewalks on which he engages in this
activity are a traditional public forum from which speech may not be completely
excluded. (Doc. 21 at 9). The plaintiff identifies a multitude of respects in which,
he says, the Ordinance impermissibly restricts his ability to engage in protected
speech in such a forum. Because one of his asserted grounds plainly supports the
requested injunctive relief, the Court confines its analysis to that ground. The
parties should not assume from the Court’s silence that it has any particular
opinion regarding the strength vel non of any of the grounds for injunctive relief
not addressed herein.
“A prior restraint on expression exists when the government can deny
access to a forum for expression before the expression occurs.” United States v.
Frandsen, 212 F.3d 1231, 1236-37 (11th Cir. 2002). “Because the [official] can
deny the use of the [forum] for expression by denying a permit, [the regulation] is
a prior restraint on expression.” Id. at 1237; accord Forsyth County v. Nationalist
Movement, 505 U.S. 123, 130 (1992) (“The Forsyth County ordinance requiring a
permit and a fee before authorizing public speaking … in the archetype of a
traditional public forum … is a prior restraint on speech ….”) (internal quotes
omitted). “[T]here is a heavy presumption against the validity of a prior restraint
….” Id. (internal quotes omitted).
In order to be constitutionally acceptable, a permit requirement “may not
delegate overly broad licensing discretion to a government official.” Forsyth
County, 505 U.S. at 130. “Further, any permit scheme controlling the time, place,
and manner of speech must not be based on the content of the message, must be
narrowly tailored to serve a significant governmental interest, and must leave open
ample alternatives for communication.” Id.
“Where the licensing official enjoys unduly broad discretion in determining
whether to grant or deny a permit, there is a risk that he will favor or disfavor
speech based on its content.” Thomas v. Chicago Park District, 534 U.S. 316, 323
(2002). Such a possibility is “inherently inconsistent with a valid time, place, and
manner regulation.” Forsyth County, 505 U.S. at 130 (internal quotes omitted).
The Ordinance introduces exactly this risk – not merely by failing to establish a
standard that rules out the consideration of content, but by establishing a standard
that affirmatively authorizes the chief of police to consider the content of the
proposed speech and to deny a permit based on the conclusions he draws
regarding that content.
The police chief shall issue a parade/demonstration permit
when, from a consideration of the application and from such other
information as may otherwise be obtained, he or she finds that …
[t]he conduct of the parade/demonstration is not reasonably likely
to … provoke disorderly conduct.
(Doc. 7-4, § 11-99(6)).
This provision appears clearly to mean that, while the chief of police must
issue a permit if he finds (inter alia) no reasonable likelihood of resultant
disorderly conduct, he is free to deny a permit if he finds such a likelihood, and he
may find such a likelihood based on the response of others to the proposed speech.
The defendants say “the plain English focuses on the conduct of the
demonstration,” (Doc. 21 at 15), but they do not explain the significance of this
lonely sentence. Certainly the Ordinance identifies the conduct of the
demonstration as that which may trigger disorderly conduct, but it plainly does not
limit the persons whose disorderly conduct may be considered to those
participating in the demonstration. On the contrary, the Ordinance speaks in terms
of demonstrations that “provoke” disorderly conduct, and the common usage of
that term envisions someone or something provoking a reaction in another, not in
himself or itself.1
“Speech cannot be … banned, simply because it might offend a hostile
mob.” Forsyth County, 505 U.S. at 134-35. But that is precisely what the
Ordinance approves – denial of a permit due to its potential for causing third
parties to become unruly. Such a regime does not merely imbue the official with
excessive discretion (though that would be enough to invalidate the regulation), it
also renders the regulation itself content-based. “Listeners’ reaction to speech is
not a content-neutral basis for regulation,” id. at 134, and “[r]egulations which
permit the Government to discriminate on the basis of the content of the message
cannot be tolerated under the First Amendment.” Id. at 135 (internal quotes
Thus, in Forsyth County, the Court held unconstitutional an ordinance “that
permits a government administrator to vary the fee for assembling or parading to
A respected dictionary offers several examples of provocation, all of which
involve being provoked by another person or circumstance: “taunts that provoked their
rivals”; “a remark that provoked me to reconsider”; “a miscue that provoked laughter”;
“news that provoked an uproar”; and “provoke a fight.” American Heritage Dictionary
1419 (5th ed. 2011).
To the uncertain extent the defendants mean to suggest that “conduct” is to be
distinguished from “speech,” the Ordinance will not bear such a construction. The
Ordinance repeatedly speaks of a parade or demonstration as being “conducted.” (Doc.
7-4, §§ 11-98(2)b, -98(2)d, -99 (final paragraph), -107, -108, -109(1)). Indeed, the
Ordinance describes all First Amendment activity – be it “march, … protest,
demonstration, rally, picketing [or] assembly” – as “conduct.” (Id., § 11-95). The
“conduct of” a parade or demonstration under the Ordinance thus plainly encompasses
the speech employed by the participants.
reflect the estimated cost of maintaining public order.” 505 U.S. at 124, 137.
Such a provision improperly “ties the amount of the fee to the content of the
speech and lacks adequate procedural safeguards.” Id. Estimating the cost of
maintaining public order necessarily requires an examination of the content of the
message being conveyed and the response of others to that speech, such that “[t]he
fee assessed will depend on the administrator’s measure of the amount of hostility
likely to be created by the speech based on its content.” Id. at 134. This is
precisely the situation presented in this action, save only that the speaker here risks
being completely denied of the right to speak while the speaker in Forsyth County
risked “only” paying more dearly for the privilege.
The defendants trumpet Bethel v. City of Montgomery, 2010 WL 996397
(M.D. Ala. 2010), as a case that upheld a “virtually identical” set of standards for
issuance of a permit. (Doc. 21 at 14). And so it did, but without any discussion of
the legal test addressed above. 2010 WL 996397 at *12. Much more instructive is
Beckerman v. City of Tupelo, 664 F.2d 502 (5th Cir. 1981), in which the Court
addressed the constitutionality of an ordinance that “authorize[d] the Chief of
Police to deny a permit if he finds that the conduct of the parade will probably
cause injury to persons or property or provoke disorderly conduct or create a
disturbance.” Id. at 507.
According to the Fifth Circuit, “[t]his provision [specifically, the “provoke
disorderly conduct” language] fails as an impermissible prior restraint upon free
speech because it is not narrowly drawn to relate to health, safety, and welfare
interests, but instead it sanctions the denial of a permit on the basis of the so-called
‘hecklers’ veto.’” 664 F.2d at 509. “A state may not keep law and order by
depriving citizens of their rights,” and the defendant “may not deny a parade
permit simply because of the fear of adverse reaction to the marchers by others.”
Id. at 510. In short, “[t]he provision … clearly trenches upon First Amendment
rights.” Id. Beckerman appears perfectly consonant with the Supreme Court’s
subsequent opinion in Forsyth County, and the defendants offer no reason the
Court should or even could depart from thoughtful persuasive authority2 finding
unconstitutional the identical provision at issue here.
Nor can the Court ignore Hague v. Committee for Industrial Organization,
307 U.S. 496 (1939), in which the Supreme Court considered an ordinance that
required a permit for any parade or public assembly and that authorized the
director of public safety to deny a permit only “for the purpose of preventing riots,
disturbances or disorderly assemblage.” Id. at 502 n.1. This provision rendered
the ordinance “void upon its face,” because it “can thus … be made the instrument
of arbitrary suppression of free expression of views on national affairs[,] for the
prohibition of all speaking will undoubtedly ‘prevent’ such eventualities.” Id. at
The defendants insist that, regardless of what the Ordinance provides, “the
Police Chief has stated his focus is on the demonstration, not the response.” (Doc.
21 at 15). Assuming without deciding that such a statement would be relevant (or,
as the defendants suggest, controlling),3 Chief Wilson has made no such statement.
The affidavit on which the defendants rely does not address this provision but only
a separate provision (with very different language) regarding the setting of a fee
for issuance of the permit. (Doc. 20-4 at 4).
Without specifically addressing the provision authorizing the chief of
police to deny a permit based on a likelihood the event will provoke disorderly
conduct, the defendants argue generally that the plaintiff lacks standing because he
“has failed to show the required injury in fact as to each provision it [sic]
challenges.” (Doc. 21 at 8). The very case on which they rely stands for the
Because Beckerman was released shortly after the circuit split, it is not binding
authority in the Eleventh Circuit but only persuasive. Stein v. Reynolds Securities, Inc.,
667 F.2d 33, 34 (11th Cir. 1981).
See generally Forsyth County, 505 U.S. at 131 (“In evaluating respondent’s
facial challenge, we must consider the county’s authoritative constructions of the
ordinance, including its own implementation and interpretation of it.”).
proposition that a plaintiff has standing to challenge a provision of a permit
ordinance investing an official with unbridled discretion if he is subject to the
provision or soon will be. CAMP Legal Defense Fund, Inc. v. City of Atlanta, 451
F.3d 1257, 1274 (11th Cir. 2006). Because the chief of police is required by the
Ordinance to consider the reaction of third parties to the speaker’s proposed
speech, the plaintiff’s “future applications would be subject to these procedural
regulations,” conferring standing to challenge that provision. Id.
In short, the plaintiff has shown a substantial likelihood of success on the
merits. As for the second element for injunctive relief, “it is well established that
the loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” KH Outdoor, LLC v. City of
Trussville, 458 F.3d 1261, 1271-72 (11th Cir. 2006) (internal quotes omitted). As
for the third, “the city has no legitimate interest in enforcing an unconstitutional
ordinance,” id. at 1272, so the threatened injury to the plaintiff outweighs any
damage to the defendants. As for the fourth requirement, “[t]he public has no
interest in enforcing an unconstitutional ordinance.” Id. The defendants do not
seriously question these propositions. (Doc. 21 at 25-26).
For the reasons set forth above, the plaintiff’s motion for preliminary
injunction is granted. The defendants, their agents, servants, employees,
attorneys, and all persons and entities in active concert or participation with them,
directly or indirectly, are hereby enjoined, until such time as the Court enters a
ruling on the merits of this action, from applying the Ordinance to impose a permit
requirement on the plaintiff or those with him as a condition of their religious
expression on the City’s public sidewalks.4
Rule 65(c) provides for the giving of security upon the issuance of a preliminary
injunction. However, “it is well-established that the amount of security required by the
rule is a matter within the discretion of the trial court …[, and] the court may elect to
DONE and ORDERED this 18th day of November, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
require no security at all.” BellSouth Telecommunications, Inc. v. MCIMetro Access
Transmission Services, LLC, 425 F.3d 964, 971 (11th Cir. 2005) (internal quotes omitted).
The defendants, despite full opportunity to do, did not request imposition of a security
requirement, and the Court will not intercede on their behalf. Accordingly, no security
will be required.
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