Brown v. Arkansas, State of

Filing 71

MEMORANDUM OPINION AND ORDER granting 19 Motion for Summary Judgment filed by Loretta Turner, Arkansas Department of Finance and Administration; denying 47 Motion for Summary Judgment filed by Tom Brown; denying as moot 53 Motion for Transcript of Deposition filed by Tom Brown; denying 55 Motion for Sanctions filed by Loretta Turner, Arkansas Department of Finance and Administration. Signed by Honorable Timothy L. Brooks on April 8, 2016. (jn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

REV. TOM BROWN
v.

PLAINTIFF
Case No. 5:15-CV-05213

ARKANSAS DEPARTMENT OF
FINANCE AND ADMINISTRATION and
LORETTA TURNER, Northwest Arkansas District Manager
for the Revenue Division of the Arkansas Department
of Finance and Administration

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Now before the Court are the parties’ cross-Motions for Summary Judgment: one
filed by Defendants Arkansas Department of Finance and Administration (“DFA”) and
Loretta Turner, who is the Northwest Arkansas District Manager for the Revenue Division
of the Arkansas Department of Finance and Administration (Doc. 19), and one filed by
Plaintiff Rev. Tom Brown (Doc. 47). Once the Motions were fully briefed and ripe for
decision, the Court held a hearing on the Motions on April 7, 2016, at which time the
parties presented oral argument and responded to questions posed by the Court. The
Court then ruled from the bench that, as the parties agreed that no genuine, material
issues of fact were in dispute, and the case may be decided as a matter of law,
Defendants’ Motion for Summary Judgment (Doc. 19) should be GRANTED, and Rev.
Brown’s Motion for Summary Judgment (Doc. 47) should be DENIED. The following Order
sets forth in greater detail the reasons for the Court’s decision in favor of Defendants on

1

summary judgment. To the extent anything in this Order differs from what was announced
from the bench, this Order will control.
I. BACKGROUND
Rev. Brown filed his Complaint pro se on September 4, 2015 (Doc. 1), along with
a Motion for Temporary Restraining Order (Doc. 3) and Motion for Immediate Emergency
Hearing (Doc. 4). What prompted Rev. Brown to seek the Court’s assistance that day was
an incident that occurred the previous day, September 3, 2015, at the Fayetteville office
of the Revenue Division of the Arkansas Department of Finance and Administration,
located at 965 South Razorback Road (“Revenue Office”). According to Rev. Brown—who
is a Rastafarian minister who states he uses marijuana as part of his faith’s religious
activities1—he was present at the Revenue Office soliciting signatures for a statewide
ballot initiative called “The Arkansas Medical Cannabis Act.” Rev. Brown had been
soliciting signatures for this ballot initiative since March of 2014, doing so from a table set
up under a pear tree, in a grassy area located several feet from the front door of the
Revenue Office and at the edge of the Revenue Office parking lot. See Doc. 60-3, pp. 5-9
(Brown Dep.). Rev. Brown ordinarily stationed himself in this spot during the Revenue
Office’s normal business hours in order to talk with patrons of the Revenue Office and
persuade them to sign the ballot initiative.
At some point in the afternoon on September 3rd, Defendant Loretta Turner, the
District Manager of the Revenue Office, confronted Rev. Brown and informed him that the
DFA had recently established a no-solicitation policy at its revenue offices, and that he

1

See Doc. 44, Affidavit on Holy Anointing Oil Booklet and Exhibit of Same.
2

would have to leave.2 See Doc. 19-1 (Turner Aff.); Doc. 4-1 (Brown Aff.). Rev. Brown
refused to leave, citing his First Amendment right to solicit ballot initiative signatures, at
which point local police were called to the scene. When the police arrived, they informed
Rev. Brown that if he did not cease his solicitation of signatures and leave the premises,
he would be arrested. The officers provided him with an incident report at his request, and
only then did Rev. Brown pack up his materials and leave.
Rev. Brown believed he was entitled to an emergency hearing on the issue of
whether he could be lawfully banned from collecting signatures at the Revenue Office
because, in his view, time was of the essence in collecting signatures for the ballot
initiative. He claimed that he had been given a deadline of July 1, 2016, to submit 100,000
signatures for the ballot initiative, and the Revenue Office was a prime, “invaluable” spot
to collect the necessary signatures, as it was a place where county residents reported in
order to renew drivers’ licenses and vehicle registrations and pay fees and taxes. (Doc.
4-1, pp. 2-3).
A few days after the Motions for Temporary Restraining Order and for Emergency
Hearing were filed, the Court entered an Order (Doc. 10) denying the latter. In doing so,
the Court also found that Rev. Brown had failed to establish that he would suffer immediate
and irreparable injury unless the Court issued a restraining order ex parte, in light of the
fact that the signatures he needed to collect were, by his own admission, due ten months
later, and he was not prohibited from collecting signatures in general, at other locations.
The Court then converted Rev. Brown’s Motion for Temporary Restraining Order into a
2

At the summary judgment hearing, Rev. Brown mentioned that Ms. Turner had asked him
to leave the Revenue Office on two previous occasions, but he had refused.
3

Motion for Preliminary Injunction and ordered Defendants to respond to the Motion within
21 days of receiving service of process.
In response to the Court’s Order, Defendants collectively filed an Answer (Doc. 17),
a Response to the Motion for Preliminary Injunction (Doc. 18), and a Motion for Summary
Judgment (Doc. 19), along with a Brief in Support (Doc. 20), and Statement of Facts (Doc.
21).

The Court then issued an Initial Scheduling Order (Doc. 22) and set a case

management hearing for November 10, 2015. For his part, Rev. Brown hired an attorney
who entered his appearance in the case on October 15, 2015, and successfully moved the
Court to continue the case management hearing and grant him additional time to respond
to Defendants’ Motion for Summary Judgment. Rev. Brown’s Response in Opposition to
the Motion for Summary Judgment (Docs. 29, 30) was ultimately filed on November 16,
2015, and a separate Pretrial Memorandum (Doc. 34) was filed on December 3, 2015, the
day of the case management hearing.
Rev. Brown became dissatisfied with his counsel’s representation and made an oral
motion at the case management hearing to represent himself pro se. The Court deferred
ruling on the motion and instead conducted the hearing with counsel present. The Court
determined that Defendants’ Motion for Summary Judgment was premature in light of the
fact that the parties had not engaged in any discovery, and the Court was well persuaded
by Rev. Brown’s counsel that a short period of expedited discovery was in order before the
parties would be prepared to argue both the Motion for Summary Judgment and the Motion
for Preliminary Injunction. Accordingly, the Court set hearings on these two Motions, as
well as an expedited discovery deadline and supplementary briefing schedule.

4

The rift between Rev. Brown and his counsel was never repaired following the case
management hearing, and on December 9, 2015, Rev. Brown’s counsel withdrew from the
case at Rev. Brown’s request. See Doc. 41. Rev. Brown once again represented himself
pro se, and almost immediately filed a second Response to Defendants’ Motion for
Summary Judgment (Doc. 42), which contained an argument styled as a “Counterclaim for
Summary Judgment.”
Upon receiving Rev. Brown’s second Response, Defendants requested clarification
as to how to treat the Counterclaim for Summary Judgment, and the Court entered a textonly Order on December 21, 2015, stating that it intended to treat Rev. Brown’s second
Response to the Motion for Summary Judgment as a supplement to the original Response
his attorney filed on November 16, 2015 (Doc. 29), and Rev. Brown’s Counterclaim for
Summary Judgment as an affirmative cross-Motion for Summary Judgment.
To further confuse the procedural posture of the case, Rev. Brown filed a separate
Motion for Summary Judgment (Doc. 47) on December 22, 2015, prior to taking any
discovery in the case, and despite the fact that the Court had determined that a brief period
of discovery might be helpful to the parties in clarifying the facts on summary judgment.
Rev. Brown’s Motion for Summary Judgment indicates that he disagreed with his former
counsel as to the need for discovery in the case, as all the relevant facts necessary to
grant him summary judgment were already documented in the record and not materially
in dispute.3
3

The only caveat to this was Rev. Brown’s contention—made consistently and repeatedly
throughout this litigation—that some of the police reports Defendants appended to their
Motion for Summary Judgment concerned individuals other than Rev. Brown. It appears that
after taking some discovery, Defendants now agree with Rev. Brown that 8 of the 22 police
5

The legal claims at issue in this lawsuit, which are now before the Court on summary
judgment, include the following: (1) alleged violations of Rev. Brown’s constitutional rights,
which specifically include his First Amendment right, as applied to the State through the
Fourteenth Amendment, to freedom of speech and to petition the government;4

reports originally attached to their Motion for Summary Judgment had nothing to do with Rev.
Brown. Recognizing this error, Defendants filed an amended affidavit in support of their
Motion for Summary Judgment, along with the correct police reports, on April 5, 2016, just
days prior to the summary judgment hearing. See Doc. 68. According to Sergeant Craig
Stout’s amended affidavit, “incorrect information was inadvertently contained in the search
results” when Defendants filed their Motion for Summary Judgment. Id. It is now clear that
those initial search results captured complaints about other individuals who were collecting
signatures for ballot initiatives at the Revenue Office. Id. In particular, only 14 out of the
original 22 complaints mentioned Rev. Brown by name. Cf. Doc. 18-3 (Stout Original Aff.).
More to the point, the Court’s review of these 14 complaints confirms Rev. Brown’s assertion
that patrons of the Revenue Office never reported to the police that Rev. Brown had
committed or threatened to commit any act of violence. See Doc. 68-2. Instead, patrons’
complaints were about Rev. Brown’s verbal harassment, name-calling, yelling, arguing, and
generally annoying behavior as he attempted to persuade patrons to sign his ballot initiative.
Id. Rev. Brown admits that the task of collecting signatures can at times be “not . . .
pleasant.” See Doc. 60-3, p. 7 (Brown Dep.) (“Because you’ve got the chance to talk to
these people coming across the parking lot . . . you’re trying to get their attention . . . .
They’re not necessarily thinking about anything else and it’s not a pleasant task usually and
so they’re, you know, in a rush and don’t bother me, et cetera, et cetera. So whatever device
can be used to get their attention and bring you—bring them into your area of influence
benefits. That’s why I get so many signatures because I know how to do this.”).
4

Rev. Brown also purports to bring a free exercise claim under the First Amendment, but
fails to provide the Court with any facts that would support such a claim. In particular, his
pleadings indicate that he believes Defendants’ ban on solicitation negatively impacts his
ability to tell others about his Rastafarian religion—something he claims he often does when
trying to convince people to sign the ballot initiative on medical marijuana usage. The Court
finds that the solicitation ban does not, in fact, prevent Rev. Brown from talking with patrons
at the Revenue Office—or anywhere else, for that matter—about his religious faith. In
addition, Rev. Brown asserts that if he and others succeed in the ballot initiative effort, this
in turn may lead to Arkansans voting in favor of legalizing marijuana for medical purposes,
which in turn may lead to the legalization of marijuana in general, so Rev. Brown could freely
use it in his religious ceremonies without fear of being in violation of the law in doing so. This
“what if” chain of events is far too speculative to result in a conclusion that prohibiting Rev.
Brown from collecting signatures for the ballot initiative at the Revenue Office will result in
a significant burden on his ability to freely exercise his religion. The Free Exercise Clause
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(2) alleged violations of the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §
2000bb et seq.; (3) alleged violations of the Arkansas Religious Freedom Restoration Act
(“ARFRA”), Ark. Code Ann. § 16-123-402 et seq.; and (4) alleged violations of the Voting
Rights Act of 1965, 42 U.S.C. § 1973c. Importantly, for purposes of evaluating these claims
in light of Defendants’ sovereign immunity as state actors, Rev. Brown only requests
prospective injunctive relief, not money damages. Below the Court will analyze each of
Rev. Brown’s claims in turn, following a brief discussion of the legal standards the Court
must consider when ruling on cross-motions for summary judgment.
II. LEGAL ANALYSIS
A party moving for summary judgment must establish both the absence of a genuine
dispute of material fact and its entitlement to judgment as a matter of law. See Fed. R. Civ.
P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986);
Nat’l Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir.
1999). The same standard applies where, as here, the parties have filed cross-motions
for summary judgment. When there exists no genuine issue as to any material fact,
“summary judgment is a useful tool whereby needless trials may be avoided, and it should
not be withheld in an appropriate case.” United States v. Porter, 581 F.2d 698, 703 (8th
Cir. 1978). Each motion should be reviewed in its own right, however, with each side

to the First Amendment provides that “Congress shall make no law . . . prohibiting the free
exercise [of religion].” U.S. Const. Amend. I. With respect to this clause, “[t]he crucial word
in the constitutional text is ‘prohibit.’ For the Free Exercise Clause is written in terms of what
the government cannot do to the individual, not in terms of what the individual can exact from
the government.” Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 451 (1988)
(internal quotation marks and citation omitted). For these reasons, the Court will not analyze
Rev. Brown’s First Amendment claim as a free exercise claim.
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“entitled to the benefit of all inferences favorable to them which might reasonably be drawn
from the record.” Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983);
see also Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13 (8th Cir. 1998). In order for
there to be a genuine issue of material fact, the non-moving party must produce evidence
“such that a reasonable jury could return a verdict for the nonmoving party.” Allison v.
Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
III. DISCUSSION
A. First Amendment Violations and the Nature of the Forum at Issue
The crux of Rev. Brown’s Complaint is that the DFA and Ms. Turner in her official
capacity violated his First Amendment rights when they banned him from canvassing for
signatures outside the Revenue Office, a place where he had solicited signatures for The
Arkansas Medical Cannabis Act since March of 2014.

After receiving numerous

complaints from Revenue Office patrons about Rev. Brown and other individuals who were
soliciting signatures for different ballot initiatives, the DFA implemented a so-called
statewide ban on all solicitation activities. Although deemed “statewide” in name, the ban
was not intended to apply to every revenue office in Arkansas, but rather would be
implemented only at revenue offices located on private property, rather than offices located
in city- or county-owned building or courthouses, or offices adjoining public sidewalks or
town squares.
The new policy was not limited to soliciting signatures for ballot initiatives. It also
banned the solicitation of alms for the poor or for charity organizations, requests for

8

contributions for political causes, all campaigning activities by those seeking elected office,
and all poll-taking and survey work. See Doc. 60-1 (McHughes Aff.). In banning these
activities, the DFA reasoned that doing so reasonably furthered the interests of the State
in promoting or improving the daily operation, maintenance, safety, and efficiency of the
revenue offices, and the ban would only apply only to those revenue offices that were
situated in non-public forums.
As discussed in greater detail below, the parties agree as to the location and
ownership of the forum where Rev. Brown was collecting signatures. They also agree that
Rev. Brown, along with other individuals canvassing on behalf of different causes, collected
signatures for ballot initiatives at this location for a number of years without facing any
particular restriction on their activities. Determining who is in the right in this dispute comes
down to applying the undisputed facts about the nature of the forum to the relevant law
surrounding acceptable limitations on otherwise constitutionally protected speech. After
all, “[e]ven protected speech is not equally permissible in all places and at all times.”
Cornelius v. NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 799 (1985). “Nothing
in the Constitution requires the Government freely to grant access to all who wish to
exercise their right to free speech on every type of Government property without regard to
the nature of the property or to the disruption that might be caused by the speaker's
activities.” Id. at 799-800.
Evaluating the constitutionality of the statewide ban on solicitation activity at
Arkansas’ revenue offices requires a three-step process. First, the Court must make a
threshold determination as to whether the speech at issue in this case is of the kind and
quality that is ordinarily granted protection pursuant to the First Amendment of the United
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States Constitution. Cornelius, 473 U.S. at 797. Second, the Court must make a legal
determination about the nature of the forum in question and the extent to which the
government may limit access to that forum. Id. Third, the Court must examine whether
justifications for excluding speech from the relevant forum satisfy the requisite standard
and are otherwise reasonable. Id.
Before taking up the three-part test, the Court notes that the First Amendment claim
will only be addressed as to Defendant Turner, as the DFA is immune from suit with
respect to this claim. According to Pennhurst State School & Hospital v. Halderman, 465
U.S. 89, 100 (1984), “in the absence of consent, a suit in which the State or one of its
agencies or departments is named as the defendant is proscribed by the Eleventh
Amendment.” This means that the DFA, which has not consented to be sued, is subject
to sovereign immunity. Ms. Turner, however, does not enjoy the same immunity, since the
Court in Ex parte Young, 209 U.S. 123 (1908), determined that a private party may seek
injunctive relief in federal court against a state official, even if the State is otherwise
protected by sovereign immunity. See Green v. Mansour, 474 U.S. 64, 68 (1986).
1. Was Rev. Brown’s Speech Deserving of First Amendment Protection?
In their Motion for Summary Judgment, Defendants argue that Rev. Brown’s
behavior toward patrons of the Revenue Office was “increasingly erratic and hostile,” and
that he became “aggressive and harassing” when patrons declined to sign his petition.
(Doc. 20, p. 6). As evidence of this, Defendants submitted police reports documenting
patron complaints (Doc. 68-2),5 as well as several affidavits (Docs. 19-1, 19-2, 19-3). The
5

As previously discussed, the affidavit of Sgt. Stout and supporting police reports that were
originally attached to Defendants’ Motion for Summary Judgment (Doc. 19-3) were
10

Court finds that after reviewing the police reports and affidavits, Rev. Brown’s speech and
behavior were constitutionally protected as a matter of law and did not rise to the level of
fighting words or obscenity.
The Supreme Court in Meyer v. Grant,, unequivocally stated that “the solicitation of
signatures for a petition involves protected speech . . . .” 486 U.S. 414, 422 n.5 (1988).
The reasons why are simple to comprehend:
The circulation of an initiative petition of necessity involves both the
expression of a desire for political change and a discussion of the merits of
the proposed change. Although a petition circulator may not have to
persuade potential signatories that a particular proposal should prevail to
capture their signatures, he or she will at least have to persuade them that
the matter is one deserving of the public scrutiny and debate that would
attend its consideration by the whole electorate. This will in almost every
case involve an explanation of the nature of the proposal and why its
advocates support it. Thus, the circulation of a petition involves the type of
interactive communication concerning political change that is appropriately
described as “core political speech.”
Id. at 421-22.
Although protecting this sort of speech is the general rule, there are certain
circumstances when speech may be stripped of its protection, for example when speech
qualifies as obscenity, defamation, or fighting words. R.A.V. v. City of St. Paul, Minn., 505
U.S. 377, 384-86 (1992). According to the Supreme Court in Virginia v. Black, ”fighting
words—‘those personally abusive epithets which, when addressed to the ordinary citizen,
are, as a matter of common knowledge , inherently likely to provoke violent reaction’—are
generally proscribable under the First Amendment.” 538 U.S. 343, 359 (2003) (quoting

essentially rescinded, and Sgt. Stout filed an amended affidavit and supporting police reports
(Doc. 68-2), which are relied upon by the Court in surveying the body of police records
applicable to complaints about Rev. Brown’s conduct at the Revenue Office.
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Cohen v. California, 403 U.S. 15, 20 (1971)). Mere expressions of hostility will not rise to
the level of fighting words, though, as a “true threat” of violence is one that “encompass[es]
those statements where the speaker means to communicate a serious expression of an
intent to commit an act of unlawful violence to a particular individual or group of
individuals.” Id.
The discussion in Defendants’ Motion for Summary Judgment regarding whether
Rev. Brown’s speech and conduct merit constitutional protection is tellingly brief. See
(Doc. 20, p. 6). Defendants are likely aware that courts are reluctant to classify speech
as fighting words unless that speech is “likely to cause a breach of the peace,” as opposed
to being merely offensive to the listener. Chaplinsky v. State of New Hampshire, 315 U.S.
568, 573 (1942). More recently, the Eighth Circuit has held that highly provocative and
perhaps morally offensive words, which otherwise “fall short of refined social or political
commentary,” are nonetheless entitled to First Amendment protection when they bear
some slight relationship to the exposition of ideas so as to “highlight . . . matters of public
import.” Phelps-Roper v. Koster, 713 F.3d 942, 948 (8th Cir. 2013) (signs displayed by
members of Westboro Baptist Church at funerals of soldiers, including “God Hates Fags,”
“Divorce Plus Remarriage Equals Adultery,” “God Hates Adultery,” “God Hates the USA,”
“Thank God for Dead Soldiers,” “Priests Rape Boys,” “Fags Doom Nations,” and “9-11: Gift
From God,” found not to constitute fighting words).
As for the specific words and actions Rev. Brown used when soliciting at the
Revenue Office, the 14 police reports about him provide little to no narrative detail
concerning his actual speech and are instead quite conclusory, consisting mostly of terse
descriptions or labels. Even on summary judgment, Defendants have made no meaningful
12

attempt to flesh out the factual allegations in these reports so as to support an argument
that Rev. Brown’s speech is not of the constitutionally-protected variety. The reports, even
when read expansively, amount to complaints of “annoyance” due to Rev. Brown
“harassing people” and being “offensive” and “really pushy,” as well as “not taking no for
an answer.” (Doc. 68-2).
As for the three affidavits attached to Defendants’ Motion for Summary Judgment,
two of them were submitted by employees of the Revenue Office and describe with some
level of detail a number of incidents involving Rev. Brown. The affidavit of Ms. Turner
(Doc. 19-1) states that: (1) Revenue Office customers complained that Rev. Brown was
“disorderly and harassing” when requesting signatures for his petition, and in April of 2014,
a Revenue Office staff member “documented an incident where Rev. Brown allegedly told
a woman ‘he hoped she got cancer’”; (2) 44 customers complained about Rev. Brown
between May 19, 2015, and August 3, 2015; (3), and Rev. Brown made it difficult to
perform maintenance at the Revenue Office because he refused to move his table so
landscapers could mow the lawn. Unfortunately, the log of 44 complaints attached to Ms.
Turner’s affidavit provides no detail as to the nature of the complaints and only lists the
name of each patron and the date of each complaint.
The Court disagrees that the words and actions of Rev. Brown that are mentioned
in Ms. Turner’s affidavit are such that they would be classified as fighting words not
entitled to constitutional protection. In any event, any dispute of fact as to these complaints
must be resolved in Rev. Brown’s favor, as he is the non-movant with respect to
Defendants’ Motion.

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Moving on to the affidavit of Revenue Office employee Walter Anger (Doc. 19-2),
he avers that he “personally received complaints that Rev. Brown has behaved in a
harassing and aggressive manner toward customers who declined to sign his petition,”
including one complaint that Rev. Brown “shouted at a sixteen-year-old girl who would not
sign his petition.”
Aside from being hearsay, the Court finds that words and behavior described in Mr.
Anger’s affidavit provide insufficient detail for the Court to conclude they were “personally
abusive” or “inherently likely to provoke violent reaction.” Cohen, 403 U.S. at 20. Mr.
Anger’s affidavit does not describe fighting words or violent behavior, and for this reason,
any dispute of fact as to nature of these words or actions must be resolved in Rev. Brown’s
favor.
Finally, Defendants have submitted the affidavit of Melissa Fults (Doc. 19-4), who
is the Campaign Director and member of the Board for Arkansans for Compassionate
Care, the organization that is sponsoring the medical marijuana ballot initiative for which
Rev. Brown is soliciting signatures. Ms. Fults attests that she received “several complaints
that Rev. Brown became aggressive and harassing when Revenue Office customers
declined to sign his petition,” and as a result, her organization requested that Rev. Brown
stop canvassing on behalf of the ballot initiative.

No further detail on the alleged

aggressive and harassing speech by Rev. Brown is provided by Ms. Fults, and for the
same reasons explained above, any material dispute of fact must be decided in Rev.
Brown’s favor. Furthermore, regardless of whether Ms. Fults’ organization endorses Rev.
Brown’s collection efforts or not, this issue is not before the Court to decide, and the

14

content and restrictions placed on his speech by the State—and Ms. Turner in
particular—is the only issue of constitutional import.
One last point on the issue of the nature of Rev. Brown’s speech must also be
acknowledged. There is no doubt that Rev. Brown feels passionately about the highly
controversial topic of legalizing marijuana use, and he is convinced that unless he
persuades other Arkansans to sign the ballot initiative so that the matter may be put to a
public vote, he will never achieve his ultimate personal goal, which is to be permitted to use
marijuana in his Rastafarian religious ceremonies.6 The nature of Rev. Brown’s speech
when he shares his political views with others and encourages them to sign this ballot
initiative is what the First Amendment is intended to protect—even if the speech is perhaps
overly strident when uttered.
For purposes of deciding summary judgment, then, the Court finds that insufficient
detail has been provided by Defendants regarding why Mr. Brown’s speech at the Revenue
Office is not deserving of the constitutional protection ordinarily afforded to those who
solicit signatures for a petition. Rev. Brown contests that his speech was aggressive,
violent, or harassing. For the reasons explained above, the Court decides the first part of
the three-part test in Rev. Brown’s favor.
2. Was the Revenue Office a Public, Designated-Public, or Non-Public Forum?
The second part of the three-part test asks whether Rev. Brown’s speech was
delivered in a traditional public forum, a non-traditional forum that was designated by the
government as public, or a non-public forum. When questioned about whether the State
6

The Court does not question the sincerity or depths of Rev. Brown’s beliefs, which are wellknown to this Court.
15

could ever lawfully limit constitutionally protected speech, depending on where the speech
was delivered, Rev. Brown stated: “If the Court admits that the speech is protected, the
location where the speech occurs is irrelevant.” This, however, is not the law.
The Supreme Court in Cornelius v. NAACP Legal Defense and Educational Fund,
Inc. explained that the government, like a private owner of property, “has power to preserve
the property under its control for the use to which it is lawfully dedicated . . . .” 473 U.S.
at 800 (quotation and citation omitted). That power is not unfettered, of course, and “the
Court has adopted a forum analysis as a means of determining when the Government's
interest in limiting the use of its property to its intended purpose outweighs the interest of
those wishing to use the property for other purposes.” Id. The place where speech occurs,
therefore, is not “irrelevant,” as Rev. Brown maintains, but critical to the analysis, as the
extent to which the government can exert control over the right to free speech “depends
on the nature of the relevant forum.” Id.
First, it is clear that, due to the location and ownership of the space where Rev.
Brown performed his solicitation activities, it was not a traditional public forum. Such are
found on city streets, public sidewalks, and in public parks, as these places have been
associated historically with expressive activity. See United States v. Grace, 461 U.S. 171,
177 (1983). A traditional public forum is defined by the objective characteristics of the
property, such as whether, “by long tradition or by government fiat,” the property has been
“devoted to assembly and debate.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460
U.S. 37, 45 (1983).

16

Turning to those objective characteristics, the place where Rev. Brown solicited
signatures was directly in front of the Revenue Office building, facing the parking lot, in a
grassy area under a tree, immediately adjacent to an approximately 30-foot concrete
sidewalk that permitted ingress and egress to the building through the front door. The
parties agree as to where Rev. Brown solicited signatures, as evidenced by his testimony
in his deposition and a hand-drawn map Rev. Brown prepared during the deposition, which
is a part of the summary judgment record. See Doc. 60-3 (Brown Dep.).

See, collectively, Doc. 60-2 at p. 4 and Doc. 60-3 at p. 9.
The 30-foot sidewalk leading from the parking lot to the front door is not a public sidewalk,
and the grassy area where Rev. Brown set up his table, as well as the building’s parking
17

lot—which is intended only for the use of Revenue Office patrons and is not a public
lot—are on private property leased by the State from a third party. See Doc. 60-2 (Turner
Aff.). By contrast, the public sidewalk running along Razorback Road is completely
separate from the Revenue Office property. Id. That property is to the west of Razorback
Road, connected to the main thoroughfare by a short driveway. Id.
Rev. Brown provides no proof to counter Defendants’ proof—and in fact did not
disagree when questioned directly by the Court at the summary judgment hearing—that
the place where he solicited signatures is, in fact, not located on a public sidewalk, on a
city street, in a public park, or on government-owned property. On summary judgment,
when a movant presents sworn testimony in the form of an affidavit as to particular facts,
the non-movant must meet proof with proof. Fed. R. Civ. P. 56(e). Here, the undisputed
facts as to the objective characteristics of the property in question indicate that it is not a
traditional public forum.
The next forum category is the designated public forum. This is “property which the
state has opened for use by the public as a place for expressive activity.” Perry, 460 U.S.
at 46.

Once the government “has intentionally designated a place or means of

communication as a public forum, speakers cannot be excluded without a compelling
governmental interest.” Cornelius, 473 U.S. at 800. Here, Rev. Brown maintains that the
Revenue Office transformed its otherwise non-public grounds into a designated public
forum when it permitted persons like Rev. Brown to conduct solicitation activities there.
The counter-argument to Rev. Brown’s is found in the Supreme Court case of
United States v. Kokinda, 497 U.S. 720, 730 (1990), in which the Court held that a postal

18

sidewalk was not a traditional public forum, nor had the Postal Service dedicated the
sidewalk to the public for expressive activity, regardless of the fact that “individuals or
groups [had] been permitted to leaflet, speak, and picket on postal premises.” The
Kokinda Court explained that “a practice of allowing some speech activities on postal
property do[es] not add up to the dedication of postal property to speech activities.” Id.
This is because “‘[t]he government does not create a public forum by . . . permitting limited
discourse, but only by intentionally opening a nontraditional forum for public discourse.’”
Id. (quoting Cornelius, 473 U.S. at 802). The “intention” of the government body, therefore,
in allowing discourse in a nontraditional forum is analyzed rather pragmatically.
In Kokinda, the Court determined that the Postal Service’s sidewalk—much like the
30-foot walkway leading from the parking lot to the front door of the Revenue office—was
not a public passageway “where people [could] enjoy the open air or the company of
friends and neighbors in a relaxed environment,” id. at 727 (quoting Heffron v. Int’l Soc. for
Krishna Consciousness, Inc., 452 U.S. 640, 651 (1981)), but rather “was constructed solely
to provide for the passage of individuals engaged in postal business,” id. at 727.
Moreover, the Kokinda Court found that the Postal Service had not expressly
dedicated its sidewalks to First Amendment activity, despite permitting groups to speak and
picket there. The Court explained that “postal property is expressly dedicated to only one
means of communication: the posting of public notices on designated bulletin boards,” as
evidenced by federal regulations specific to the Postal Service. Id. at 730. Similarly, in the
case at bar, the purpose of a revenue office is to conduct the business of the State by
providing its citizens with a location to adhere to licensing and vehicle registration

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requirements, and also tax laws. See Doc. 19-2 (Anger Aff.). The Court therefore
concludes that revenue offices are not expressly dedicated to First Amendment activity,
despite the fact that certain activity, namely the solicitation of signatures for ballot
initiatives, was permitted to occur on revenue office property for some period of time. Cf.
Cornelius, 473 U.S. at 804 (“In cases where the principal function of the property would be
disrupted by expressive activity, the Court is particularly reluctant to hold that the
government intended to designate a public forum.”); International Soc. for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992) (“W here the government is acting
as a proprietor, managing its internal operations, rather than acting as lawmaker with the
power to regulate or license, its action will not be subjected to the heightened review to
which its actions as a lawmaker may be subject.”).
Since the Court has now determined that the Revenue Office grounds are neither
a traditional public forum nor a designated public forum, the correct categorization of the
grounds is that of a non-public forum. In a non-public forum, the government “does not
have to demonstrate that the regulation is narrowly tailored to the government interest it
seeks to achieve.” Initiative and Referendum Inst. v. U.S. Postal Serv., 741 F. Supp. 2d
27, 39 (D.D.C. 2010) (citing Lee, 505 U.S. at 683). Instead, a minimal level of scrutiny
applies, and the restriction must only be “reasonable and ‘not an effort to suppress
expression merely because public officials oppose the speaker’s view.’” Kokinda, 497 U.S.
at 730 (quoting Perry, 460 U.S. at 46). This brings the Court to the third part of the
analysis: the reasonability of the restrictions on solicitation activity at revenue offices.

20

3. Was the Restriction on Speech Both Viewpoint-Neutral and Reasonable in
Light of the Nature of the Forum?
As explained previously, “[t]he Government's decision to restrict access to a
nonpublic forum need only be reasonable; it need not be the most reasonable or the only
reasonable limitation.” Cornelius, 473 U.S. at 808. “Nor is there a requirement that the
restriction be narrowly tailored or that the Government's interest be compelling. The First
Amendment does not demand unrestricted access to a nonpublic forum merely because
use of that forum may be the most efficient means of delivering the speaker's message.”
Id. at 809.
In the instant matter, the reasonableness of the policy banning solicitation at
revenue offices must be evaluated “in the light of the purpose of the forum and all the
surrounding circumstances.” Id. As discussed, the purpose of revenue offices is to assist
the public in paying taxes, registering vehicles, and obtaining proper licensing. When
patrons arrive at the Revenue Office to conduct business, they ordinarily park and cross
the small parking lot off Razorback Road and proceed immediately down a relatively short,
straight, concrete path directly to the front door. The only other open space on the grounds
aside from the parking lot is a grassy area with a pear tree just beside the path and facing
the parking lot. As Defendants have explained in their briefing, the reason why the
solicitation ban was implemented was to promote the daily operation, management,
maintenance, safety, and efficiency of the facilities. (Doc. 60-1). These justifications are
reasonable, particularly in light of the fact that the volume of complaints that patrons made
to the Revenue Office and to police regarding solicitation activity indicates that such activity

21

is at least disruptive to the regular business of the Revenue Office, if not to the business
of other revenue offices statewide.
The policy is reasonably tailored, as well, as it will not apply to more than half the
revenue offices in the State due to the nature of the forums associated with those offices.
The solicitation ban will only be enforced at 57 of the 134 revenue offices across the State.
Marla McHughes, the Administrator of State Revenue Offices for Arkansas, explains in her
affidavit that her agency will not enforce the policy at 77 of the revenue offices “because
they are inside, or flanked by, traditional public forums and/or areas not controlled by the
Department of Finance and Administration.” (Doc. 60-1, p. 2). Specifically, 17 revenue
offices are located in county courthouses, 25 are in city- or county-owned buildings, 6 are
in town squares, and 29 are bordered by public sidewalks. Id. Defendants intend to
enforce the solicitation ban only at revenue offices that qualify as non-public forums, such
as the one in Fayetteville.
Next, the Court finds that the policy itself does not target any particular speech or
viewpoint but instead bans all solicitation activity across the board. Although Rev. Brown
argues that Defendants are actually pursuing an agenda against him personally and the
ballot initiative he sponsors, he submits no evidence to support this belief, and the belief
is flatly countered by the affidavit of Ms. Turner. See Doc. 60-2 (“I have no bias against
Arkansans for Compassionate Care or the medical marijuana ballot initiative.”). Moreover,
the evidence of record establishes that other individuals besides Rev. Brown solicited
signatures at the Revenue Office for ballot initiatives other than the medical marijuana
initiative, and patrons made complaints about those individuals, as well. The policy
banning solicitations, if prompted by these sorts of complaints, is clearly not directed to
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Rev. Brown or his political cause but is a facially neutral way for the State to limit the
disruptive behavior of all persons who have in the past solicited on private property leased
by the State.
As the ban is reasonably designed to promote the normal business activities of the
State’s revenue offices and is viewpoint-neutral, the Court finds that the ban does not
violate Rev. Brown’s constitutional rights. The ban does not prevent Rev. Brown from
canvassing in other public forums, such as on city sidewalks, in plazas, or in parks.
Similarly, Rev. Brown is still free to express to others his ideas about marijuana use, his
religious faith, and the benefits of signing the ballot initiative he supports.
For all of these reasons, the Court dismisses with prejudice Rev. Brown’s First
Amendment Claim against Ms. Turner.7
7

With respect to Rev. Brown’s argument, made in a Pretrial Memorandum (Doc. 34)
submitted by his former counsel on December 3, 2015, that the solicitation ban failed to
comply with the Arkansas Administrative Procedures Act ("APA"), the Court observes that
under the APA, each agency must "[m]ake available for public inspection all rules and all
other written statements of policy or interpretations formulated, adopted, or used by the
agency in the discharge of its functions." Ark. Code Ann. § 25-15-203(a)(3). The APA
defines the term "rule" as "an agency statement of general applicability and future effect that
implements, interprets, or prescribes law or policy, or describes the organization, procedure,
or practice of an agency and includes, but is not limited to, the amendment or repeal of a
prior rule." Ark. Code Ann. § 25-15-202(9)(A). "Rule" does not mean "[s]tatements
concerning the internal management of an agency and that do not affect the private rights
or procedures available to the public." Ark. Code Ann. § 25-15-203(9)(B)(i). Second, unless
and until a rule has been filed with the Secretary of State and made available for public
inspection, it is not valid or effective against any person, and it may not be invoked by the
state agency for any purpose. See Ark. Code Ann. § 25-15-203(b).
In interpreting what constitutes a "rule" under the APA, the Arkansas Supreme Court has
held that where an agency's action is "no more than the carrying out of legislatively
mandated administrative duties," it will not be considered an adoption of a "rule" within the
meaning of the APA. Eldridge v. Bd. of Corr., 768 S.W.2d 534, 536 (Ark. 1989); see also
Ark. Pharmacist's Ass'n, Inc. v. Ark. State & Pub. Sch. Life & Health Ins. Bd., 98 S.W.3d 27,
30 (Ark. 2003). Further, it is clear that a state agency can carry out its statutorily appointed
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B. RFRA and ARFRA Claims
In City of Boerne v. Flores, 521 U.S. 507, 532-36 (1997), the Supreme Court held
that RFRA exceeded Congress' powers under the Fourteenth Amendment and was
unconstitutional as applied to the states. For this reason alone, Rev. Brown’s RFRA claim
is dismissed as to both Defendants, one of which is a state agency, and the other is a state
employee sued in her official capacity.
Moreover, the Court finds that “[t]o state a claim under RFRA, a religious objector
must show that the government substantially burdens a sincere religious exercise or belief.”
Sharpe Holdings, Inc. v. United States Dept. of Health and Human Servs., 801 F.3d 927,
937 (8th Cir. 2015). Even if a RFRA claim could have been brought against these
Defendants, Rev. Brown failed to show that the ban on solicitations activity at state
revenue offices substantially burdens his sincere religious exercise or belief. He is still free
to practice his religion in places other than the Revenue Office, and the Court rejects the
notion that being banned from collecting signatures for a ballot initiative in certain locations
in Arkansas would somehow impinge on his sincerely held religious beliefs or his ability to
practice his religion.
This same reasoning applies to justify dismissal with prejudice of Rev. Brown’s
ARFRA claim, which is never well explained in the pleadings. There are no Arkansas
appellate cases or Attorney General Opinions interpreting the ARFRA that the Court has
been able to locate; however, assuming an ARFRA claim would be treated in much the
day-to-day tasks without every action being considered an exercise in "rule making." Ark.
Pharmacist's Ass'n, Inc., 98 S.W.3d at 31. Here, the policy does not meet the APA's
definition of a "rule" because it simply prohibits those who do not have business with the
State from soliciting on revenue office property.
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same way as a RFRA claim, it is decided as a matter of law in Defendants’ favor for the
reasons previously explained.
C. Voting Rights Act Claims
Again setting aside the issue of whether Defendants are subject to suit under the
Voting Rights Act, Rev. Brown has failed to establish any facts that would indicate that his
rights were violated under the Act. As discussed previously, the ban on solicitation in
revenue offices is reasonable, viewpoint neutral, and does not violate Rev. Brown’s
constitutional rights under the First Amendment. Neither is his right to vote, nor the right
of any other individual, being compromised by virtue of the ban on solicitations at revenue
offices. Rev. Brown explained at the hearing that his Voting Rights Act claim proceeds
from the fact that he often encounters people who do not think they should sign his ballot
initiative because they are convicted felons, and as such, are prohibited from being
registered voters. Rev. Brown takes the opportunity to educate such persons about their
rights and sometimes fills out voter registration paperwork on their behalf—right at his table
in the grassy area in front of the Revenue Office. He contends that this work of educating
felons, whom he claims are mostly racial minorities, about their right to vote will be
burdened if he is no longer able to solicit ballot initiative signatures at the Revenue Office.
This argument by Rev. Brown, though novel and potentially suggestive of some
other civil rights claim, does not support a claim for a violation of the Voting Rights Act,
which was enacted in 1965 to address racial discrimination in the voting context. Banning
solicitation activity at the Revenue Office does not impinge upon Rev. Brown’s ability to
continue to educate former felons about their voting rights or to help them fill out voter

25

registration paperwork. Despite the ban, anyone can still enter the Revenue Office and
register to vote. This claim is without merit and is dismissed with prejudice .

IV. CONCLUSION
For the reasons explained above, Defendants' Motion for Summary Judgment (Doc.
19) is GRANTED, and Rev. Brown 's Motion for Summary Judgment (Doc. 47) is DENIED.

IT IS THEREFORE ORDERED that all claims against both Defendants are
DISMISSED WITH PREJUDICE, and the Court will issue a Judgment today.
IT IS FURTHER ORDERED that Plaintiff's Motion for Transcript of Deposition (Doc.
53) is DENIED AS MOOT, and Defendants' Motion for Sanctions Under Rule 11 (Doc. 55)
is DENIED .

IT IS SO ORDERED on this

~

g-

day of April, 20

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