Miller v. City of Excelsior, Minnesota et al

Filing 40

OPINION AND ORDER: Plaintiff David Miller's Motion for Preliminary Injunction is 11 is GRANTED in part and DENIED in part. See Order for specifics and deadlines. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Judge Eric C. Tostrud on 8/2/2022. (RMM)

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

David Miller,

File No. 22-cv-762 (ECT/JFD)
Plaintiff,

v.

OPINION AND ORDER

City of Excelsior, Minnesota; Brian Tholen,
in his official capacity as Police Chief for
South Lake Minnetonka Police Department;
and Officer John Doe, in his individual
capacity acting as a police officer for South
Lake Minnetonka Police Department,
Defendants.
David Markese and Frederick H. Nelson, American Liberties Institute, Orlando, FL;
Samuel W. Diehl, CrossCastle PLLC, Minneapolis, MN; and Nathan W. Kellum, Center
for Religious Expression, Memphis, TN, for Plaintiff David Miller.
Katherine M. Swenson, Monte A. Mills, and Emily Muirhead McAdam, Greene Espel
PLLP, Minneapolis, MN, for Defendants City of Excelsior, Brian Tholen, and Officer John
Doe.
Plaintiff David Miller wants to share his religious views with a voice amplifying
device on public sidewalks in the downtown business district of Excelsior, Minnesota. In
this lawsuit, he makes facial and as-applied challenges under 42 U.S.C. § 1983 to City of
Excelsior ordinances restricting the use of amplified sound.

The amplified sound

restrictions are most limiting in Excelsior’s downtown business districts. There, Excelsior
generally prohibits amplified sound that is “plainly audible” at the property line of the
property from which the sound emanates. On the narrow public sidewalks where Miller

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wishes to preach, this effectively eliminates amplified sound altogether.

Outside

Excelsior’s business districts, amplified sound is allowed most of the day, but must not be
audible 30 feet or more from its source. Those wishing to exceed the amplified sound
limits may do so only by obtaining a special event permit. Excelsior’s special-eventpermitting scheme imposes a non-waivable $150 per-day application fee, plus other
requirements that may be waived or varied by the City Council, including a 30-day notice
requirement. Miller argues that these ordinances violate the rights to free speech, free
exercise of religion, and due process under the First and Fourteenth Amendments of the
U.S. Constitution.
Miller has moved to preliminarily enjoin enforcement of the challenged ordinances
insofar as they prohibit amplified sound in the business districts and require speakers to
obtain a special event permit. The motion will be granted in part. On its face, the
challenged amplified sound ordinance is probably not narrowly tailored to achieving
Excelsior’s interests, so Defendants will be preliminarily enjoined from enforcing it.
Additionally, two aspects of Excelsior’s special-event-permit scheme—its 30-day notice
requirement and its $150 per-day fee—are probably unconstitutional as applied to Miller.
Thus, Defendants will be enjoined from enforcing those provisions against him.
I
A
Plaintiff David Miller is a Minnesota resident and “evangelical Christian who
frequently expresses his faith and beliefs to others in public due to religious conviction.”
Compl. ¶¶ 11, 22 [ECF No. 1]. Defendant City of Excelsior is a municipal government
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and city in Hennepin County, Minnesota. Id. ¶ 12. Defendant Brian Tholen is the Police
Chief of the South Lake Minnetonka Police Department (“SLMPD”), which polices the
City “under a cooperative policing arrangement.” Id. ¶ 13. The parties now agree
Defendant Officer John Doe is SLMPD Sergeant Jim Williams. Id. ¶ 14; Williams Decl.
[ECF No. 30]; ECF No. 37.
Miller seeks opportunities to share his religious beliefs “in public places, and
primarily, he wants to preach in open, public ways to spread awareness of his views on
religious, political, and social topics.”

Id. ¶ 23.

Miller “does not participate in

demonstrations” or “seek to draw a crowd with his expressive activity.” Id. ¶ 25–26. He
does not solicit money or membership to join any organization and “does not block
passageways or hinder pedestrian access.” Id. ¶¶ 27, 29. Miller “frequently uses a voice
amplifier set at a reasonable volume” when sharing his beliefs in public places, which
enables him to speak in a conversational, non-threatening tone while being heard over
background noise. Id. ¶¶ 31–32. Miller would like to engage in these activities in
Excelsior’s B-1 and B-2 zoning districts, which encompass the City’s downtown business
corridor, “because he can reach a meaningful number of people in these areas.” Id.
¶¶ 33–39; see ECF No. 14-2 (zoning map). The “ambient noise” in Miller’s desired
locations, he alleges, “makes it impossible for Miller to be heard in a conversational tone
by his intended audience without amplification.” Compl. ¶ 56.
B
The City has enacted various ordinances regulating noise, codified at Part I, Chapter
16,

Article

III.

See

Code

of

Ordinances,
3

City

of

Excelsior

(2022),

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available at https://library.municode.com/mn/excelsior/codes/code of ordinances?nodeI
d=13367 (last visited August 1, 2022). The stated purpose of these ordinances is to
“protect[] the comfort, repose, health, peace, safety, or welfare of city residents and the
quiet enjoyment of property within the city, by imposing reasonable restrictions on the
hours during which significant sources of noise may be used or operated.” Code § 16-101.
The ordinances place time and volume restrictions on certain noises and proscribe others
except during permitted “special events.” Id. §§ 16-102, 16-105. The level of restriction
on amplified sound varies in part with the City’s zoning districts, which are depicted in the
following map:

ECF No. 14-2 (depicting the “B-1” and “B-2” zoning districts in solid red).

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The ordinances limit amplified sound in the B-1 and B-2 zoning districts, except
with a special-event permit, as follows:
Radios, amplified sound, B-1 and B-2 zoning districts. The use
or operation of any radio, musical instrument, sound
amplification system, or other machine or device for the
amplification or reproduction of sound at such a volume so as
to be plainly audible[1] by any person at the property line of its
source shall be prohibited.
Id. § 16-105(b)(3). Outside the B-1 and B-2 zoning districts, the unpermitted use of radio
and amplified sound is prohibited at volumes “plainly audible . . . at a distance of five feet
or more from its source between the hours of 9:30 p.m. and 7:30 a.m. and at a distance of
30 feet or more from its source between the hours of 7:30 a.m. and 9:30 p.m.” Id.
§ 16-105(b)(2). A violation of these restrictions is punishable as a misdemeanor, meaning
a violator may be sentenced up to 90 days, fined up to $1,000, or both. Id. §§ 16-106(d),
1-13 (borrowing definition of “misdemeanor” from Minn. Stat. § 609.02).
Persons who, like Miller, seek to use a voice amplifier may apply for and obtain a
special-event permit, and the City Code contains ordinances setting forth the requirements
to apply for and obtain a permit, codified at Part I, Chapter 10, Article XIV. These
ordinances are designed “to balance the community’s interest in serving as a regional
destination with its limited capacity for supporting [special] events and its residents’ and
businesses’ legitimate interest in limiting the number of days each year when special events
occupy The Commons and Downtown.” Id. § 10-511. A special event is defined as:

1

Audible means “capable of being heard; loud enough to be heard; actually heard.”
Id. § 16-105(a).

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an event or happening organized by any person, firm,
organization, or corporation which will generate or invite
considerable public or private participation and/or spectators,
for a particular and limited purpose and time, including, but not
limited to: athletic events, home tour events, boat shows,
bicycle rides, carnivals, circuses, concerts, dances, fairs,
farmer’s markets, festivals, flea markets, parades, parties,
reunions, runs, walks, and vehicle shows. For purposes of this
article, special events do not include events held exclusively
on private property or city-sponsored events conducted
pursuant to a contract between the city and the event organizer.
Id. § 10-512. The City categorizes special events, based on anticipated attendance, into
Level 1 (50-199 people), Level 2 (200-1,999 people), and Level 3 (2,000 or more people),
and prescribes for each the minimum number of days before an event that an application
must be submitted. Id. § 10-544(a). Because Level 1 events “do not impose a substantial
burden on quality of life or city resources,” the City does not cap the number or frequency
of those events, as it does with Level 2 and Level 3 events. Id. § 10-546. The City views
Miller’s plan to use amplified sound—and apparently any similar case of an individual
doing so—as a “special event,” meaning that a permit is mandatory even though the event
is not expected to draw 50 attendees. See Edwards Decl. ¶¶ 8–9 [ECF No. 32]; see Code
§ 10-541(a)(3) (exempting “[s]pecial events attracting attendance of less than 50 people
provided such events to [sic] not include amplified sound”); ECF No. 32-1 at 2
(“Regardless of guest count, any event with amplified sound . . . requires an event
permit[.]”) (emphasis in original).
The Code directs the City Council to adopt by resolution a “special event policy”
that implements its requirements, “including the types of special event permits . . . to be
issued and conditions therefor and forms for applying for permits.” Id. § 10-547(a). The
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City, which last updated its special-event-permitting process in October 2021, offers a
different application for Level 1, Level 2, and Level 3 events. Edwards Decl. ¶¶ 6–7. One
seeking to hold a special event must submit the appropriate application to the City’s Special
Events Coordinator, who reviews it to ensure compliance with the Code and other
application requirements. Code § 10-544; Edwards Decl. ¶¶ 4, 10. The Code sets forth the
only bases on which a permit application may be denied. Code § 10-546(d); Edwards Decl.
¶ 11.
An applicant may apply for a variance from many of the Code’s special-event
application requirements. Edwards Decl. ¶¶ 16–17; see Code § 10-547(c). The City
Council must consider a variance application within 30 days of receiving it. Id. To grant
a variance, the City Council must find “that application of the ordinance would impose an
undue hardship upon the applicant and granting a variance would not be contrary to the
[chapter’s] purpose.” Id.; see Edwards Decl. ¶¶ 16–19. The City’s $150 special-event
application fee may not be waived or varied. Code § 10-542(a); Edwards Decl ¶ 14.
C
On April 25, 2020, Miller was “peacefully sharing his religious message” on a
public sidewalk near the intersection of 2nd Street and Water Street, in the City’s B-1 and
B-2 zoning districts. Compl. ¶¶ 51–52. The SLMPD was dispatched after receiving three
complaints that Miller was “expressing his religious beliefs to passersby via megaphone
and handing out pamphlets.” Williams Decl. ¶¶ 3–4; see also ECF No. 30-1 (police
incident and supplemental reports). Sergeant Williams responded. He parked his vehicle
and observed Miller and a companion from “a few shops away on the opposite side of the
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intersection.” Williams Decl. ¶¶ 5–6. Williams could hear Miller, who wore “a headset
with a microphone attached to [a] megaphone,” but could not make out what Miller was
saying. Id. ¶ 6. After fifteen or twenty minutes, Miller collected his things and walked
with his companion to a car in a nearby parking lot. Id. Williams followed and parked his
vehicle nearby. After consulting the City Code, Williams drove closer to Miller and his
companion and parked his car about ten feet away from them. Williams explained that,
although free to share their views, the use of a megaphone violated the Code’s amplified
sound restrictions. Id. ¶¶ 8–13; see also ECF No. 30-1. Williams left, and neither Miller
nor his companion was cited for violating the Code. Id.; Compl. ¶¶ 53–54.
After his interaction with Sergeant Williams, Miller wanted to return to the City’s
B-1 and B-2 zoning districts to express his views using amplified sound. Owing to
restrictions on outdoor activities during the COVID-19 pandemic, Miller postponed his
efforts to return until March 2021. Compl. ¶ 58. Miller emailed the SLMPD in March and
April asking whether his use of a particular voice amplification device—the “VoiceBooster
MR2300 (Aker) 20watt Voice Amplifier”—would violate the City Code and, if so, what
penalty a violation would carry. ECF No. 32-1 at 17; Compl. ¶¶ 59–60. The SLMPD
responded on April 13 by citing the applicable Code sections and explaining that Miller
would need a permit to use amplification heard at 30 feet during the day or, if on a sidewalk
in the B-1 and B-2 zoning districts, that “the [maximum allowed] audible distance would
be [to] the property line of where it originates. So if it’s a sidewalk, that’s not too much
distance.” ECF No. 32-1 at 15–16; Compl. ¶ 61. Miller understood from the email that

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“[s]ince he wanted to stand on a public sidewalk, . . . the property line was only a few feet
away, effectively eliminating his use of amplification.” Compl. ¶ 62.
On April 15, Miller emailed two SLMPD officers and several city officials. Id. ¶ 63.
In the email, Miller asked for confirmation that using the amplification device to preach in
the B-1 and B-2 zoning districts would violate the City Code and for information about the
special-event-permitting process. ECF No. 32-1 at 14. At first, City Planner Emily Becker
responded (incorrectly) that the Code contained “no [] exception” for Miller to use the
device in the B-1 and B-2 districts. ECF No. 32-1 at 12–13; Edwards Decl. ¶ 23; Compl.
¶¶ 66–68. Miller forwarded his email exchange with Becker to Special Events Coordinator
Amy Edwards, asking whether Becker had offered a “correct assessment.” ECF No. 32-1
at 11–12. Edwards explained that Becker was mistaken and outlined the special-eventpermitting process. ECF No. 32-1 at 11. Edwards wrote that, if the sidewalk remained
open to passersby, Miller’s event would be Level 1 with a per-day fee of $150. Id. She
attached a copy of the Special Event Permit Application then in effect. Edwards Decl.
¶ 22; see ECF No. 14-5. Edwards also clarified that “if there were to be no amplified
sound, no permit would be required.” ECF No. 32-1 at 11. Miller did not respond to the
email; he would not contact Edwards again until 2022. Edwards Decl. ¶ 24.
In May 2021, Miller’s counsel wrote to Mayor Todd Carlson and SLMPD Chief
Brian Tholen demanding “written assurance that the City w[ould] refrain from barring
Miller’s amplified speech on public sidewalks that can be heard on bordering property
line[s].” ECF No. 14-7 at 3–4; Compl. ¶¶ 69–70. Three days later, the City Attorney
responded by letter, defending the City’s view that enforcement would not violate Miller’s
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constitutional rights. See ECF No. 14-8. The City Attorney elaborated that, to use sound
amplification in the B-1 and B-2 zoning districts, Miller must apply for a permit 30 days
in advance and pay a $150 fee, but that he could seek a variance. Id. at 2; Compl. ¶¶ 73–74.
On January 21, 2022, Miller emailed Edwards, requesting a variance on the $150
fee and the 30-day notice requirement. In the email, Miller explained that the fee, imposed
on a per-day basis, was too costly and that the unpredictability of inclement weather made
the 30-day notice requirement untenable. ECF No. 14-9 at 5; Edwards Decl. ¶¶ 25–26;
Compl. ¶¶ 77–78. One week later, Edwards responded that she was “working with the City
Managers to have [Miller’s] variance request added to the February 22nd City Council
Agenda.” ECF No. 14-9 at 4; Compl. ¶ 79. On February 14, Edwards emailed Miller
seeking confirmation that he would like the variance request added to the February 22
agenda. Edwards wrote that, if he did, the meeting would be held via Zoom and that, after
she outlined her “memo,” Miller could address the City Council with his request. ECF No.
14-9 at 4. Miller chose not to attend the meeting and to “rest on his paperwork.” Id. at
2–4; Compl. ¶¶ 80–84.
On February 18, Edwards emailed Miller that the City Attorney would be
“internally” granting his request “to waive the 30-day [notice] requirement,” but that, “per
the City’s Special Event Ordinance, Section 10-542 [], special event fees are not subject to
variance.” ECF No. 14-9 at 2; Compl. ¶ 85. Miller did not respond to this email, and he
has not submitted a special-event-permit application to the City. Edwards Decl. ¶¶ 31–32.

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D
Miller filed this lawsuit in March 2022. In a three-count Complaint, Miller asserts
facial and as-applied challenges to various sections of the City Code under 42 U.S.C.
§ 1983. Miller alleges that the City’s amplified sound restrictions, by effectively banning
amplified sound in the B-1 and B-2 zoning districts, combined with the City’s permitting
scheme, violate the First and Fourteenth Amendment rights to free speech, free exercise of
religion, and due process. Compl. ¶¶ 148–179. Miller also asserts that the special-eventpermit scheme imposes an unlawful prior restraint and is unconstitutionally vague.
Miller now moves for a preliminary injunction. ECF No. 11. He seeks to enjoin
enforcement of “the Amplified Sound Code, § 16-105 and the Special Events Code
§ 10-511, et. seq. so as to prohibit amplified sound or require an individual speaker to
obtain a permit in advance and pay a one hundred fifty-dollar ($150) fee to use amplified
sound on public sidewalks and ways in the B-1 and B-2 zoning districts of downtown
Excelsior.” Id. at 1. Miller seeks injunctive relief based on his free speech and due process
claims.2
III
A preliminary injunction is an “extraordinary remedy.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “In deciding whether to issue a

2

Miller does not raise his free exercise claim or legal arguments unique to it in his
motion papers. Mem. in Opp’n at 16–17 n.12 [ECF No. 29]. At oral argument, Miller
confirmed that his free exercise claim is coextensive with his free speech claim.
Accordingly, only the merits of Miller’s free speech and due process claims are discussed
here.
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preliminary injunction, the district court considers four factors: ‘(1) the threat of irreparable
harm to the movant; (2) the state of the balance between this harm and the injury that
granting the injunction will inflict on other parties litigant; (3) the probability that [the]
movant will succeed on the merits; and (4) the public interest.’” Sleep No. Corp. v. Young,
33 F.4th 1012, 1016 (8th Cir. 2022) (quoting Dataphase Sys., Inc. v. C L Sys., Inc., 640
F.2d 109, 113 (8th Cir. 1981) (en banc)). The core question is whether the equities “so
favor[] the movant that justice requires the court to intervene to preserve the status quo
until the merits are determined.” Dataphase, 640 F.2d at 113 (footnote omitted). “The
burden of establishing the four factors lies with the party seeking injunctive relief.” CPI
Card Grp., Inc. v. Dwyer, 294 F. Supp. 3d 791, 807 (D. Minn. 2018) (citing Watkins Inc.
v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003)).
A
“While no single factor is determinative, the probability of success factor is the most
significant.” Home Instead, Inc. v. Florance, 721 F.3d 494, 497 (8th Cir. 2013) (citations
and internal quotation marks omitted); Sleep No. Corp., 33 F.4th at 1016. Ordinarily, a
movant need not show a greater than fifty percent likelihood of success. Dwyer, 294 F.
Supp. 3d at 807. Because Miller seeks to enjoin an ordinance, however, he must show it
is more likely than not he will prevail, a standard “reserved for injunctions against the
enforcement of statutes and regulations, which are ‘entitled to a higher degree of deference
and should not be enjoined lightly.’” Sleep No. Corp., 33 F.4th at 1016 (citation omitted).
“[T]he absence of a likelihood of success on the merits strongly suggests that preliminary

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injunctive relief should be denied[.]” CDI Energy Servs. v. W. River Pumps, Inc., 567 F.3d
398, 402 (8th Cir. 2009).
When interpreting a state statute or local ordinance, federal courts apply the state’s
rules of statutory construction. Behlmann v. Century Sur. Co., 794 F.3d 960, 963 (8th Cir.
2015). Two Minnesota canons of statutory construction seem particularly implicated here.
First, the Minnesota legislature has stated a preference for “severance of an
unconstitutional provision from an otherwise valid statutory framework.” Advantage
Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 800 (8th Cir. 2006) (citing Minn. Stat.
§ 645.20). Statutes are presumed severable unless the legislature has “specifically stated
otherwise.” Matter of Welfare of A.J.B., 929 N.W.2d 840, 848 (Minn. 2019). Severing
unconstitutional provisions is permissible unless (1) “the valid provisions are so essentially
and inseparably connected with, and so dependent upon, the void provisions that the
Legislature would not have enacted the valid provisions without the voided language” or
(2) “the remaining valid provisions, standing alone, are incomplete and are incapable of
being executed in accordance with the legislative intent.” Id. (citation omitted). Here, the
City has declared its intent that the Code be severable. Code § 1-12. Section 16-105(b)(3)
of the City Code, which regulates amplified sound in the B-1 and B-2 zoning districts, is
severable from the various sections of the special-event ordinance that Miller is
challenging. Second, Minnesota courts employ the canon of constitutional avoidance.
Courts applying Minnesota law are to “construe statutes to avoid meanings that violate
constitutional principles, [but] remain bound by legislative words and intent and cannot
rewrite the statute to make it constitutional.” Matter of Welfare of A.J.B., 929 N.W.2d at
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848. In other words, the canon of constitutional avoidance may be applied only when the
Minnesota law’s language is ambiguous. State v. Irby, 848 N.W.2d 515, 521–22 (Minn.
2014).
1
Start with Miller’s challenge to Section 16-105(b)(3), which is best understood as a
facial challenge.3 The parties’ shared reading of Section 16-105(b)(3) is that unpermitted,
amplified sound is prohibited in the B-1 and B-2 zoning districts at levels plainly audible
at “the property line of where it originates”—including when the sound originates on public
property. Mem. in Opp’n at 9; see Mem. in Supp. at 14–15 [ECF No. 15]. The parties also
seem to agree that Section 16-105(b)(3) prohibits unpermitted amplified sound in those
districts altogether or, at the very least, that it does so on the public sidewalks where Miller
wishes to speak. Mem. in Supp. at 15–16 (“[T]he City effectively bars amplified speech
on the sidewalk since the volume of any speech would necessarily go beyond the property
line of the sidewalk.”); Mem. in Opp’n at 16, 22, 23–24 (describing Miller’s available
alternatives repeatedly as using sound amplification “with a permit in the B-1 and B-2
zoning districts” or in other districts subject to other requirements); Williams Decl. ¶ 10;

3

To distinguish between facial and as-applied challenges, the “‘important’ inquiry is
whether ‘the claim and the relief that would follow . . . reach beyond the particular
circumstances of the[] plaintiff[].” Iowa Right To Life Comm., Inc. v. Tooker, 717 F.3d
576, 588 (8th Cir. 2013) (quoting Doe v. Reed, 561 U.S. 186, 194 (2010)). Here, the
parties’ submissions focus almost entirely on Section 16-105(b)(3)’s text and not on
Miller’s circumstances. Miller’s challenge is “‘facial’ in that it is not limited to [Miller]’s
particular case, but challenges application of the law more broadly.” Vt. Right to Life
Comm., Inc. v. Sorrell, 758 F.3d 118, 127 (2d Cir. 2014) (quoting Tooker, 717 F.3d at 588)
(collecting cases applying facial standard when as-applied challenge indistinguishable
from facial challenge).
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ECF No. 14-8 at 3 (“Excelsior requires a special event permit for any use of amplified
sound in the Downtown Business District.”).
“A facial challenge to a legislative Act is, of course, the most difficult challenge to
mount successfully.” Phelps-Roper v. Ricketts, 867 F.3d 883, 891 (8th Cir. 2017) (quoting
United States v. Salerno, 481 U.S. 739, 745 (1987)). To prevail, a plaintiff must “establish
that no set of circumstances exists under which [the challenged law] would be valid, or that
the statute lacks any plainly legitimate sweep.” Id. at 891–92.
The first step in judging the facial constitutionality of a law regulating speech in a
public forum is to determine whether it is content-based or content neutral. Id. at 892. A
law is “content neutral so long as it is justified without reference to the content of the
regulated speech.” Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
There’s no question that Section 16-105(b)(3) is content neutral. E.g., Rock Against
Racism, 491 U.S. at 792.
To withstand First Amendment scrutiny, a content-neutral law must be narrowly
tailored to serve a significant governmental interest and allow for ample alternative
channels of communication. Id. at 791, 796, 802. There are significant governmental
interests in this case. “[I]t can no longer be doubted that government ‘ha[s] a substantial
interest in protecting its citizens from unwelcome noise.’” Id. at 796 (quoting City Council
of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 806 (1984)). Here, the stated
purpose of the City’s noise ordinance scheme is “to protect the comfort, repose, health,
peace, safety, or welfare of [] residents, and the quiet enjoyment of property within the
city.” Code § 16-101. Because the City has a significant interest in regulating noise, the
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salient issues are whether Section 16-105(b)(3) is narrowly tailored to serve the City’s
interests and leaves open ample alternative channels of communication.
A regulation is not narrowly tailored if it “burden[s] substantially more speech than
is necessary to further the government’s legitimate interests.” McCullen v. Coakley, 573
U.S. 464, 486 (2014) (citation omitted). A time, place, and manner regulation “need not
be the least restrictive or least intrusive means of serving the government’s interests.” Id.
(cleaned up). “So long as the means chosen are not substantially broader than necessary
to achieve the government’s interest, . . . the regulation will not be invalid simply because
a court concludes that the government’s interest could be adequately served by some lessspeech-restrictive alternative.” Rock Against Racism, 491 U.S. at 800. Thus, “[t]he
government’s choice among the means to accomplish its end is entitled to deference.”
Josephine Havlak Photographer, Inc. v. Vill. of Twin Oaks, 864 F.3d 905, 915–16 (8th Cir.
2017) (quoting Ass’n of Cmty. Orgs. for Reform Now v. St. Louis Cnty., 930 F.2d 591, 595
(8th Cir. 1991)). Still, “the government must demonstrate that alternative measures that
burden substantially less speech would fail to achieve the government’s interests, not
simply that the chosen route is easier.” McCullen, 573 U.S. at 495.
Each party relies on a different U.S. Supreme Court decision assessing the
constitutionality of amplified-sound restrictions. Neither case matches this one on all
fours, but each informs the narrow-tailoring analysis here. Miller relies on Saia v. New
York, 334 U.S. 558 (1948). In Saia, a city ordinance proscribed the use of loudspeakers or
amplifiers without first obtaining a permit from the police chief. The Court found the
ordinance facially unconstitutional for essentially two reasons: (1) it set “no standards []
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for the exercise of [the chief’s] discretion”; and (2) the ordinance was “not narrowly drawn
to regulate the hours or places of use of loud-speakers, or the volume of sound (the
decibels) to which they must be adjusted.” Id. at 559–60. In the Court’s view, the lack of
objective criteria shaping the chief’s discretion risked viewpoint censorship, and “[a]ny
abuses which loud-speakers create can be controlled by narrowly drawn statutes.” Id. at
561–62. Notwithstanding its occasionally broad reasoning, “Saia [] does not stand for the
proposition that all regulation of sound amplification use in public is unconstitutional, or
even for the proposition that such regulation must be limited to decibel restrictions rather
than time and place restrictions.” Marcavage v. City of N.Y., 918 F. Supp. 2d 266, 272
(S.D.N.Y. 2013).
Defendants rely on Kovacs v. Cooper, 336 U.S. 77 (1949). There, the Court
considered an ordinance that “contain[ed] nothing comparable” to the one struck down in
Saia. Id. at 82–83. The ordinance proscribed “loud and raucous noises” in a city’s public
ways. Id. at 83–85. The Court held it “a permissible exercise of legislative discretion to
bar sound trucks with broadcasts of public interest, amplified to a loud and raucous volume,
from the public ways of municipalities,” reasoning that the “rights of free speech [could
not] compel a municipality to allow such mechanical voice amplification on any of its
streets.” Id. at 87. It explained:
It is an extravagant extension of due process to say that because
of [free speech] a city cannot forbid talking on the streets
through a loud speaker in a loud and raucous tone. Surely such
an ordinance does not violate our people’s ‘concept of ordered
liberty’ so as to require federal intervention to protect a citizen
from the action of his own local government. Opportunity to
gain the public’s ears by objectionably amplified sound on the
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streets is no more assured by the right of free speech than is the
unlimited opportunity to address gatherings on the streets. The
preferred position of freedom of speech in a society that
cherishes liberty for all does not require legislators to be
insensible to claims by citizens to comfort and convenience.
To enforce freedom of speech in disregard of the rights of
others would be harsh and arbitrary in itself. That more people
may be more easily and cheaply reached by sound trucks,
perhaps borrowed without cost from some zealous supporter,
is not enough to call forth constitutional protection for what
those charged with public welfare reasonably think is a
nuisance when easy means of publicity are open. Section 4 of
the ordinance bars sound trucks from broadcasting in a loud
and raucous manner on the streets. There is no restriction upon
the communication of ideas or discussion of issues by the
human voice, by newspapers, by pamphlets, by dodgers. We
think that the need for reasonable protection in the homes or
business houses from the distracting noises of vehicles
equipped with such sound amplifying devices justifies the
ordinance.
Id. at 87–89 (cleaned up).
Together, Saia and Kovacs leave gray area, but teach at least that an outright
amplified-sound ban is facially invalid, while cities retain leeway to regulate amplified
sound in a manner that is narrowly tailored to preventing the disturbance of others’ use and
enjoyment of public and private property within its boundaries. This case is not Saia. It’s
not Kovacs, either. Here, in contrast to Saia, the challenged ordinances don’t (by their
express terms) impose a blanket ban on amplified sound, subject only to a city official’s
unfettered discretion.

The City uses distance-based volume limitations to regulate

amplified noise and offers an objective permit scheme (more on that later). Unlike Kovacs,
however, the City’s regulation of amplified sound is not limited to what is “loud and
raucous.” As Miller points out, the restrictions in the B-1 and B-2 zoning districts, by

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eliminating amplified sound audible from the source’s property line, effectively eliminate
unpermitted sound amplification in public ways in those districts.
By prohibiting all unpermitted amplified sound that can be heard at the property line
from where the sound emanates in the B-1 and B-2 zoning districts, it is more likely than
not that Section 16-105(b)(3) burdens substantially more speech than necessary to further
the City’s interests. The critical issue is that the restriction effectively eliminates amplified
sound in the public ways of those districts. In doing so, the ordinance becomes untethered
to the City’s legitimate interests in protecting the use and enjoyment of those public areas.
The ordinance is not limited to certain parts of the day; it’s in effect at all hours. Most
problematically, the ordinance’s reach is not limited to loud, raucous, or disturbing sound;
or even sound at a volume likely to be raucous, disturbing, or to interfere with others’ use
and enjoyment of the B-1 and B-2 zoning districts. It forbids amplified sound of just about
any audible volume. For example, a person walking on a sidewalk who uses a cell phone’s
speaker feature almost certainly would violate Section 16-105(b)(3) as written. There is
no realistic doubt that the voice of the person with whom the cell phone user is speaking
would carry beyond the “property line of where it originates”—i.e., the sidewalk’s edge.
It is noteworthy that, based on common experience, public ways like those in the B-1 and
B-2 zoning districts are not a place reserved for quiet pursuits. Yet Section 16-105(b)(3)
“prohibits amplification that creates no more noise than a person speaking slightly louder
than normal.” U.S. Lab. Party v. Pomerleau, 557 F.2d 410, 413 (4th Cir. 1977). The City’s
legitimate interests in noise regulation do not extend to an all-hours prohibition on

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amplified sound in the public ways of a downtown business district, particularly in areas
that tolerate normal human activity far exceeding that prohibition.
Nor is Section 16-105(b)(3) narrowly tailored by the modestly less-restrictive
regulation of amplified sound outside the B-1 and B-2 zoning districts, where amplified
sound may not be “plainly audible . . . at a distance of five feet or more from its source”
from 9:30 p.m. to 7:30 a.m. or at “30 feet or more from its source” between 7:30 a.m. and
9:30 p.m., Code § 16-105(b)(2)—distances themselves observed by courts to be “so
limiting” as to “constitute[] a complete ban on the use of amplified sound.” Lilly v. City of
Salida, 192 F. Supp. 2d 1191, 1194 (D. Colo. 2002) (25-foot limitation on audibility of
sound measured from property line); see also Hassay v. Mayor, 955 F. Supp. 2d 505,
520–27 (D. Md. 2013) (30-foot audibility restriction “tantamount to a complete ban”);
Deegan v. City of Ithaca, 444 F.3d 135, 143 (2d Cir. 2006) (reasoning that ban on “any
noise that can be heard 25 feet away” would bar speech at decibel lever lower than that
“generated by the foot steps of a person in high heeled boots, conversation among several
people, the opening and closing of a door, the sounds of a small child playing on the
playground, or the ring of a cell phone”).
Many courts have invalidated as overbroad amplified sound ordinances that, like
Section 16-105(b)(3), prohibited amplified sound outright in public areas or that, to varying
degrees, curtailed sound to levels below what’s regularly tolerated in the subject forum.4

4

See Cuviello v. City of Vallejo, 944 F.3d 816, 828–31 (9th Cir. 2019) (finding
facially invalid law requiring permit “for any use of a sound-amplifying device at any
volume by any person at any location—without any specifications or limitations that may
tailor the permit requirement to situations involving the most serious risk to public peace
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And there are less restrictive means to regulate amplified sound that would not less
effectively achieve the City’s interests. See, e.g., Kovacs, 336 U.S. at 79 (approving
prohibitions on “loud” and “raucous” amplified sound because those terms “have through
daily use acquired a content that conveys to any interested person a sufficiently accurate
concept of what is forbidden”); Costello v. City of Burlington, 632 F.3d 41, 44–46 (2d Cir.
2011) (upholding law making it unlawful “for any person to make or cause to be made any
loud or unreasonable noise” and that defines as unreasonable noise that “disturbs, injures

or traffic safety”); Hassay, 955 F. Supp. 2d at 520–27 (preliminarily enjoining prohibition
on amplified sound audible at 30 feet at city boardwalk that was “tantamount to complete
ban”); Deegan, 444 F.3d at 143–44 (noise ordinance applied to prohibit “any noise that can
be heard 25 feet away” in public park not narrowly tailored); Dowd v. City of Los Angeles,
No. CV 09-06731 DDP (SSx), 2010 WL 11591900, at *6–8 (C.D. Cal. Oct. 21, 2010)
(enjoining total ban on amplified sound on boardwalk except in limited number of spaces
as not narrowly tailored); Lilly, 192 F. Supp. 2d at 1194 (declaring facially invalid “25 feet
limitation on the audibility of sound measured from the property line” without a permit,
which was “so limiting that it constitute[d] a complete ban on the use of amplified sound
for any form of speech”); Lionhart v. Foster, 100 F. Supp. 2d 383, 386–88 (E.D. La. 1999)
(holding that law “regulat[ing] the production of sound in excess of 55 decibels within 10
feet of hospitals or churches during posted services” was “unreasonably overbroad in the
context of normal activities on public streets and in public parks,” and noting
uncontroverted evidence that “55 decibels includes the sound of the human voice in normal
conversation, as well as automobile traffic”); United States v. Doe, 968 F.2d 86, 90–91
(D.C. Cir. 1992) (reversing criminal conviction because ordinance restricting use of sound
devices at 60-decibal volume measured at 50 feet in national park was not narrowly
tailored); Reeves v. McConn, 631 F.2d 377, 383–85 (5th Cir. 1980) (invalidating as
overbroad ordinance provisions prohibiting sound amplification in downtown district
except for 6 hours on Sunday; citywide except for nine hours per day; within 100 yards of
hospital, school, church, or courthouse; and within 50 yards of any residence or hotel);
Pomerleau, 557 F.2d at 413 (preliminarily enjoining amplified sound ordinance that, as
applied, proscribed amplification creating “no more noise than a person speaking slightly
louder than normal”); Maldonado v. Monterey Cnty., 330 F. Supp. 1282, 1285–86 (N.D.
Cal. 1971) (preliminarily enjoining ordinance that “effectively bar[red] any [amplified]
sound louder than the normal human voice” at all hours on public highways and
throughfares).

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or endangers the peace or health of another” or that “endangers the health, safety or welfare
of the community”); Reeves, 631 F.2d at 385–86 (upholding prohibition on amplified
sound that is “unreasonably loud, raucous, jarring, disturbing, or a nuisance to persons
within the area of audibility”); Harman v. City of Santa Cruz, 261 F. Supp. 3d 1031, 1044
(N.D. Cal. 2017) (concluding prohibition on noise that is “‘unreasonably disturbing’ to a
person of ‘ordinary sensitivities’ establishes identifiable criteria that can be measured and
assessed pursuant to an objective standard”).
In sum, it’s more likely than not that Section 16-105(b)(3) is not narrowly tailored
to serve the City’s interests. The likelihood of success factor therefore weighs in Miller’s
favor on his facial challenge to Section 16-105(b)(3).5
2
Although Section 16-105(b)(3) is likely unconstitutional on its face, its invalidation
would not resolve Miller’s challenges to the special-event ordinances. Under the City’s
special-event-permit scheme, any “special event” involving amplified sound requires a
permit, no matter how many attendees. Code § 10-541(b)(3). The City views Miller’s
efforts to stand on the sidewalk and preach using a voice amplifier as a special event. See
Edwards Decl. ¶¶ 8–9; ECF No. 32-1 at 2.

5

In view of the determination that Section 16-105(b)(3) is unlikely to withstand
intermediate scrutiny because it is not narrowly tailored, there is no need to consider
whether it leaves open ample alternative channels of communication. McCullen, 573 U.S.
at 496 n.9; see also, e.g., Johnson v. Minneapolis Park & Rec. Bd., 729 F.3d 1094, 1101–02
(8th Cir. 2013).
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To begin, the parties disagree whether the City’s special-event-permit scheme
constitutes a prior restraint on speech. Miller insists that the ordinance is a prior restraint,
so there is a “heavy presumption” against its validity. Mem. in Supp. at 13–14. The City
responds that the special-event-permit scheme is not a prior restraint, because it does not
“grant City officials the authority to forbid speech.” Mem. in Opp’n at 32. The answer is
that the City’s permit scheme is a form of prior restraint, but because it is content neutral,
the legal framework doesn’t change much. A permit or licensing scheme that controls the
time, place, and manner of speech must “not delegate overly broad licensing discretion to
a government official,” “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.” Forsythe Cnty., Ga. v. Nationalist Movement, 505 U.S.
123, 130 (1992) (citations omitted); see United States v. Kistner, 68 F.3d 218, 221 n.7 (8th
Cir. 1995) (“While any permit requirement gives ‘public officials the power to deny use of
a forum in advance of actual expression,’ reasonable time, place, or manner restrictions are
a recognized exception to the general prohibition against prior restraints.”) (citation
omitted).
Miller is best understood to advance facial and as-applied challenges to the
special-event ordinances.

In all, Miller asserts that various aspects of the City’s

special-event-permit scheme violate the First Amendment: the non-waivable $150
application fee, the liability insurance requirement, the 30-day notice requirement, the
requirement that he provide certain information with his permit application, and the
discretion afforded to City officials in granting or denying the permit. Because Miller
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challenges discrete requirements within the City’s special-event-permit scheme, it is
appropriate to “consider each challenged [] requirement in isolation and, if necessary, apply
the ‘normal rule that partial, rather than facial, invalidation is the required course.’”
Tooker, 717 F.3d at 588 (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504
(1985)).
Start with Miller’s facial challenge to the special-event ordinance, which is
essentially twofold.

First, Miller seems to argue that the mere requirement that a

special-event holder obtain a permit is facially invalid. For Miller’s part, this aspect of his
facial challenge to the special-event ordinance relies on the assumption that a permit is
required for any amplified sound—or at least amplified sound that exceeds the City’s
restrictions. See Reply Mem. at 10–11 (“[T]he constitutional issue is that the permitting
scheme, in connection with the noise ordinance, effectively bans all amplification without
a permit.”). Once severed from Section 16-105(b)(3), however, the City Code does not
require a permit for every use of amplified sound in the areas where Miller wishes to speak;
instead, it exacts a content-neutral permit requirement for special events—defined as
events on public property that “will generate or invite considerable public or private
participation and/or spectators, for a particular and limited purpose and time,” Code
§ 10-512—that involve amplified sound. The City has a substantial interest in permitting
such events due to the time and resources needed to accommodate large crowds in a public
forum and the need to balance competing uses within that forum. E.g., Bowman v. White,
444 F.3d 967, 981 (8th Cir. 2006). Severed from the City’s amplified sound restrictions,

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Section 10-512 can be construed in a manner that is narrowly tailored to the City’s
substantial interests.
Second, on both First Amendment and Due Process grounds, Miller argues the
special-event-permit scheme vests city officials with unbridled discretion in deciding to
grant or deny permits, in placing conditions on permits, and in granting or denying
variances to permit requirements. “[W]hen a licensing statute allegedly vests unbridled
discretion in a government official over whether to permit or deny expressive activity, one
who is subject to the law may challenge it facially without the necessity of first applying
for, and being denied, a license.” City of Lakewood v. Plain Dealer Pub. Co., 486 U.S.
750, 755–56 (1988). “[A] city may enact licensing procedures for conduct commonly
associated with expression, so long as the city ‘establish[es] neutral criteria to [e]nsure that
the licensing decision is not based on the content or viewpoint of the speech being
considered.’” Josephine Havlak Photographer, 864 F.3d at 918–19 (citations omitted)
(alteration in original). A license or permit ordinance “must contain narrow, objective, and
definite standards to guide the licensing authority.” Id. at 919 (cleaned up) (approving
ordinance requiring consideration of “the nature of the activity, potential conflicts with
other scheduled events, the number of participants, and other factors relevant to resource
allocation”). Absent some evidence of discrimination or unfair application, the City’s
“interpretation and implementation” of its permitting criteria are “highly relevant” to
evaluating a facial challenge. Rock Against Racism, 491 U.S. at 796.
Here, the Code articulates sufficiently objective and definite grounds on which a
permit may be denied.

Grounds for denial include the applicant’s failure to meet
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application requirements, the applicant’s previous failure to comply with the special-event
ordinances and permit conditions, the applicant’s demonstrated inability or unwillingness
to conduct a special event in accordance with the ordinance requirements, hardship that
would result from accommodating the event due to events already scheduled on the
applicant’s desired date, the failure to obtain required permits from local agencies, and the
determination that an event would cause a safety risk to attendees, result in “significant
property damage,” or place undue burden on public safety resources.

See Code

§ 10-546(d).
Between his submissions and oral argument, Miller lodged three related arguments
to support his assertion that the permit scheme is “devoid of objective standards,” but they
are not persuasive. First, Miller argued at the hearing that the special-event ordinance is
rendered unconstitutionally vague because the denial criteria are described as grounds on
which the City “may” deny a permit, rather than grounds on which it “must” deny a permit.
See Code § 10-546(d). Second, he argues that the Code prescribes “applicable conditions”
that a special-event holder must follow. The applicable conditions are described to
“include, but not be limited to,” those enumerated: the number of attendees, the time
allotted for the event, the time allotted for amplified sound, and the event’s “physical
boundaries.” See Code § 10-543. For this reason, says Miller, the Code “offers no
restraint, no direction, for what conditions Officials may saddle a speaker under a Special
Events permit.” Mem. in Supp. at 22. And third, Miller says that the Code’s variance
provision lacks objective standards. Id. at 23. Miller’s arguments insist on a “degree of
rigidity” not required of an ordinance that sets forth objective and definite criteria. See
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Thomas v. Chicago Park Dist., 534 U.S. 316, 323–25 (2002) (ordinance stating that permit
“may” be denied for prescribed reasons did not vest officials with unbridled discretion);
MacDonald v. City of Chicago, 243 F.3d 1021, 1026–29 (7th Cir. 2001) (rejecting
challenge to permit scheme with similar criteria). Here, the special-event ordinance
provides city officials some flexibility in assessing permit applications, but no more than
is reasonably necessary to balancing its interests through neutral criteria and conditions
tethered to those interests. This conclusion is bolstered here: on one hand, there is evidence
the City has construed and applied its permitting scheme narrowly—the Code sets forth
“the only reasons a permit application would be denied,” Edwards Decl. ¶ 11—and on the
other, the “record contains no evidence that the regulations have been administered in an
unfair or discriminatory fashion.” New England Reg’l Council of Carpenters v. Kinton,
284 F.3d 9, 26 (1st Cir. 2002). On its face, the City Code likewise cabins officials’
discretion to grant variances in a permissible manner. To grant a variance, the City Council
must conclude that “that application of the ordinance would impose an undue hardship
upon the applicant and [that] granting a variance would not be contrary to the purpose of
this chapter.” Code § 10-547(c). There is nothing suspect about this provision from a First
Amendment standpoint. It does not encourage content or viewpoint discrimination, but
affords city officials some discretion to issues permits in limited circumstances that “would
do no harm to the policies furthered by the application requirements.”6 Thomas, 534 U.S.

6

The conclusion that the special-event ordinance does not vest city officials with
unbridled discretion applies equally to Miller’s due process claim, which depends on the
same arguments. See Mem. in Supp. at 23–25.
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at 325 (“The prophylaxis achieved by insisting upon a rigid, no-waiver application of the
ordinance requirements would be far outweighed, we think, by the accompanying senseless
prohibition of speech (and of other activity in the park) by organizations that fail to meet
the technical requirements of the ordinance but for one reason or another pose no risk of
the evils that those requirements are designed to avoid.”).
Miller mounts one other facial attack to the discretion vested on city officials. This
challenge is to language found not in the Code, but in the Level 1 event application
materials, stating that a “code enforcement officer who determines that noise from your
event is offensive to others may require you to lower or discontinue the noise.” ECF No.
32-1. In Miller’s view, the application language warning against noise that is “offensive”
to others renders the special-event ordinance unconstitutionally vague by placing
interpretation “in the sole discretion of law enforcement officers.” Reply Mem. at 15–16.
Miller is right that vesting law enforcement authority to prohibit “offensive” speech is
impermissible. Hill v. Colorado, 530 U.S. 703, 716 (2000). Yet the challenged language
is not found in a law and does not shape city officials’ discretion to grant or deny a permit.
More importantly, Miller has not shown a likelihood of enforcement of this language
against him. He has not shown evidence that Defendants consider his speech “offensive”
or threatened to stop him from sharing its content. In fact, the record suggests otherwise.
The evidence shows, for instance, that when bystanders complained to the SLMPD about
the “views and manner” of Miller’s speech, Sergeant Williams defended Miller’s speech
as “protected under the First Amendment,” warned Miller of the need to obtain a permit to
use amplified sound, and explained that Miller was free to share his message without a
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voice amplifying device. ECF No. 30-1 at 2–3. Other city officials echoed this sentiment
with Miller in email exchanges. ECF No. 32-1 at 11 (“Please note, if there were to be no
amplified sound, no permit would be required.”).
Next consider Miller’s as-applied challenge. “An as-applied challenge consists of
a challenge to the statute’s application only as-applied to the party before the court. If an
as-applied challenge is successful, the statute may not be applied to the challenger, but is
otherwise enforceable.” Republican Party of Minn., Third Cong. Dist. v. Klobuchar, 381
F.3d 785, 790 (8th Cir. 2004) (internal citations omitted). “To establish Article III
causation in an as-applied challenge, ‘a plaintiff must show that its injury is “fairly
traceable” to a challenged statutory provision,’” meaning “a plaintiff does not have
standing to challenge a policy that was not applied to it.” Young Am.’s Found. v. Kaler,
14 F.4th 879, 888 (8th Cir. 2021) (citations omitted). Thus, “[a] plaintiff generally cannot
prevail on an as-applied challenge without showing that the law has in fact been (or is
sufficiently likely to be) unconstitutionally applied to [him].” McCullen, 573 U.S. at 485
n.4 (emphasis in original); see, e.g., Advantage Media, 456 F.3d at 799–801.
Start with the requirement that a special-event holder obtain liability insurance.7
Miller has not applied for a special-event permit, Edwards Decl. ¶ 32, and he has not

7

Code Section 10-545 states in relevant part:
The applicant shall secure and maintain in full force and effect
throughout the duration of the permit, commercial general
liability insurance written on an occurrence basis with limits of
not less than $1,000,000 per occurrence and $2,000,000
general aggregate to include bodily injury and property
damage covering potential liability arising from the event. A
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established a likelihood that the City will require him to obtain liability insurance if he
does. The City has offered evidence confirming the insurance requirement is subject to
“waiver or variance” under Code Section 10-547(c). See Edwards Decl. ¶ 18. The City
also has submitted evidence that it does not require Level 1 event-holders to obtain
insurance. Id. The Level 1 event application does not solicit insurance information or
reference liability insurance, and therefore seems to confirm as much. See ECF No. 32-1
at 2–9. Because Miller has not shown a likelihood that the Code’s liability insurance
requirement will be applied to him, he’s not shown a likelihood of success on this aspect
of his motion.
Miller next challenges the City’s 30-day notice requirement for Level 1 special
event applications. “[C]ritically, advance notification requirements eliminate spontaneous
speech.” Berger v. City of Seattle, 569 F.3d 1029, 1038 (9th Cir. 2009) (en banc) (quotation
omitted). “A municipality needs some time to decide whether to grant [a] permit and if so
whether to impose conditions on the grant. But the length of the required period of advance
notice is critical to its reasonableness; and given that the time required to consider an
application will generally be shorter the smaller the planned demonstration . . . , a very long
period of advance notice with no exception for spontaneous demonstrations unreasonably
limits free speech.” Church of Am. Knights of Ku Klux Klan v. City of Gary, 334 F.3d 676,
682 (7th Cir. 2003) (citations omitted). “Advance notice requirements that have been

certificate of insurance or similar proof of coverage shall be
submitted prior to the event and shall name the city of
Excelsior as an additional insured. 
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upheld by courts have most generally been of less than a week.” Sullivan v. City of
Augusta, 511 F.3d 16, 38–39 (1st Cir. 2007) (collecting cases). Even shorter notice
requirements have failed intermediate scrutiny. See Douglas v. Brownell, 88 F.3d 1511,
1523–24 (8th Cir. 1996) (holding that 5-day notice requirement for parade permit
application was not narrowly tailored and expressing concern over application to groups of
ten or more persons). In one instance, the Eighth Circuit upheld a two-week notice period,
although on facts distinguishable from this case. In Josephine Havlak Photographer, a
commercial photographer challenged permit notice requirements imposed on those
wishing to engage in commercial activity in a neighborhood park. 864 F.3d at 909–10.
The park board required a two-day notice for smaller events and a 14-day notice for events
of at least ten people. Id. at 917. The Court held these notice periods were narrowly
tailored given that commercial photography shoots are “rarely spontaneous,” there was
evidence of “high demand” and “congestion” in the park’s limited facilities, and because
the 14-day period was reserved for larger events. Id. at 917.
Against this precedent, Miller has shown a sufficient likelihood that the City’s 30day notice requirement, as applied, is not narrowly tailored. Miller is a single speaker, and
a 30 day-notice period places a substantial burden on his right to speak spontaneously in
his desired public forum. And 30 days is an excessively lengthy period for the City to
determine whether it can accommodate a small-scale event like Miller’s. There is no
evidence, for example, that Miller’s speech draws a large crowd or creates some drain on
public resources. The overbreadth of the 30-day notice requirement is not saved by the
Code’s variance provision, and Miller’s case shows why. The Code requires the City
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Council to answer a variance request within 30 days of receiving it. See Code § 10-547(c).
Miller received a variance of the notice requirement to just two days’ notice, but he waited
eighteen days for his variance request to be answered. See ECF No. 14-9. Even with the
prospect of a variance, Miller still shoulders the burden of persuading the City that he is
entitled to a variance, the uncertainty of his request being granted, and the possibility of
not hearing back for weeks. Accord Sullivan, 511 F.3d at 39–40 (finding “good cause”
exception did not cure overbreadth of 30-day application period).
Miller also mounts an as-applied challenge to the City’s $150 application fee for
special events, which is nonwaivable and applied by the City on a per-day basis. Edwards
Decl. ¶¶ 14–15; ECF No. 14–6 at 1. In Miller’s view, this fee is not narrowly tailored to
serve the City’s interests. Mem. in Supp. at 17–18. The City attests that the special event
fee generally “cover[s] the costs of City staff time spent working with applicants for
special-event permits and the costs of processing the special-event permit applications, as
well as the costs incurred by the City’s public works department for special-event location
preparation and clean up and the remediation of the normal wear and tear caused by special
events.” Edwards Decl. ¶ 15.
“The Supreme Court has held that a government cannot profit from imposing
licensing or permit fees on the exercise of a First Amendment right.” Sullivan, 511 F.3d
at 38 (citing Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 113 (1943)).
“Only fees that cover the administrative expenses of the permit or license are permissible.”
Id. (citing Cox v. State of New Hampshire, 312 U.S. 569, 577 (1941)). Thus, “[t]he cost of
obtaining a permit must align with the cost borne by the government in hosting the
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permittee’s expressive activity.” iMatter Utah v. Njord, 774 F.3d 1258, 1268 (10th Cir.
2014). “[A] circus or other large parade can be assessed a larger fee than a small parade,
because the former would cause a larger expense to the government than the latter.” The
Nationalist Movement v. City of York, 481 F.3d 178, 184 (3d Cir. 2007) (collecting cases).
But a city may not “charge the applicant for the expense to the city of reigning in the
hecklers.” Church of Am. Knights of Ku Klux Klan, 334 F.3d at 680–81; accord Cent. Fla.
Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515, 1524 (11th Cir. 1985).
On this record, it’s more likely than not that a $150 per-day fee is not narrowly
tailored to the City’s administrative expenses in hosting Miller’s First Amendment activity.
As Miller describes it, he intends to stand on the public sidewalk and share his views using
an amplification device. He does not intend to march in the streets, to impede pedestrians
or traffic, to hold demonstrations, or to draw a crowd. See Compl. ¶¶ 25–28. Of the
expenses the City claims the application fee aims to defray generally, many seem
inapplicable or of marginal relevance when applied to Miller’s activity, such as the costs
of “location preparation,” clean up, and “remediation of [] normal wear and tear.” Edwards
Decl. ¶ 15. And this seems particularly true given that the fee is applied in full for each
day that Miller wants to speak. It’s reasonable to think that the City’s application
processing costs are reduced when applied to a multi-day speaker. See Marcavage, 918 F.
Supp. 2d at 269, 274 (upholding fee of $45 dollar for single-day amplified sound permit,
reduced to an additional $5 for each additional day up to maximum four days). To be clear,
it’s possible that the City’s $150 permit fee can be constitutionally applied. This seems
unlikely in Miller’s case, however, and the City has not offered evidence to the contrary.
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Miller also argues that the City’s permitting scheme is not narrowly tailored as
applied because its application process “forces him to divulge his identity.” Mem. in Supp.
at 20–21. Not so. It is true that an applicant must provide the name, mailing address,
phone number, and email address of their “primary contact person and event coordinator.”
Code § 10-544(b)(1); see ECF No. 32-1 at 6. But the collection of this basic contact
information furthers the City’s interests in administering its permitting process, which in
turn furthers its substantial interests in preventing excessive and competing noise, limiting
congestion, and ensuring public safety.

At minimum, collecting Miller’s contact

information “is necessary so that [he] can be notified as to whether and when the
application is approved or disproved.” Marcavage, 918 F. Supp. 2d at 273. On the other
hand, requiring Miller to submit this information with his application appears to result in a
negligible burden on his ability to speak. Miller’s submission of information to the City’s
administrative officials “does not necessarily result in the disclosure of [his] name to the
people he . . . encounters on public thoroughfares.” Id. If the collection of this information
burdens Miller in some meaningful way, he has not described how. Thus, Miller has not
shown a likelihood of success on his claim that collection of his contact information with
his special-event application is not narrowly tailored to the City’s interests.
B
Irreparable harm “occurs when a party has no adequate remedy at law, typically
because its injuries cannot be fully compensated through an award of damages.” Gen.
Motors Corp. v. Harry Brown’s, LLC, 563 F.3d 312, 319 (8th Cir. 2009). “The movant
must show that irreparable injury is likely in the absence of an injunction, not merely a
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possibility of irreparable harm before a decision on the merits can be rendered.” Tumey v.
Mycroft AI, Inc., 27 F.4th 657, 665 (8th Cir. 2022) (cleaned up) (emphasis in original). “It
is well-established that ‘[t]he loss of First Amendment freedoms, for even minimal periods
of time, unquestionably constitutes irreparable injury.’” Powell v. Noble, 798 F.3d 690,
702 (8th Cir. 2015) (quoting Elrod v. Burns, 427 U.S. 347, 373 ((1976)); see also Cuviello,
944 F.3d at 831–34 (ban on unpermitted amplified sound chilled speech and caused
irreparable harm, even though it “result[ed] from a threat of enforcement rather than actual
enforcement”). Miller intends to exercise First Amendment rights using amplified sound
in the B-1 and B-2 zoning districts “at least once per month,” but his speech has been
chilled by the City’s threat of enforcement. Compl. ¶¶ 37–38; see also ECF No. 30-1.
Miller has shown a likelihood of success that the City’s actions violate the First
Amendment and a likelihood that, absent an injunction, he is likely to be deterred from
exercising his First Amendment rights. He has also shown a likelihood of success on his
claim that Section 16-105(b)(3) is facially unconstitutional. Accordingly, the irreparable
harm factor favors an injunction.
C
The final two Dataphase factors do not change things. The balance-of-harms factor
“involves assessing the harm the movant would suffer absent an injunction, as well as the
harm the other parties would experience if the injunction issued.” Prairie Field Servs.,
LLC v. Welsh, 497 F. Supp. 3d 381, 404 (D. Minn. 2020) (cleaned up). When the
government is the opponent, this factor merges with the public interest factor. Nken v.
Holder, 556 U.S. 418, 435 (2009). Typically, “the public interest favors protecting core
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First Amendment freedoms.” Iowa Right to Life Comm., Inc. v. Williams, 187 F.3d 963,
970 (8th Cir. 1999). To be sure, both Defendants and the public have a strong interest in
protecting the safe and enjoyable use of public spaces in the B-1 and B-2 zoning districts.
But the record evidence does not suggest those interests would be undermined by allowing
Miller to exercise his First Amendment freedoms unburdened by the City’s 30-day notice
requirement, $150 per-day permit fee, and prohibition on amplified noise in the B-1 and
B-2 zoning districts. Thus, the remaining factors weigh, if at all, in favor of an injunction.
IV
Because the Dataphase factors each weigh in Miller’s favor, he is entitled to
injunctive relief. A court “may issue a preliminary injunction . . . only if the movant gives
security in an amount that the court considers proper to pay the costs and damages sustained
by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c).
Courts have wide discretion to determine the appropriateness and amount of a bond. See
11A Mary K. Kane, Federal Practice and Procedure § 2954 (3d ed. Apr. 2022 Update).
Here, neither party briefed the issue of what bond amount would be appropriate. The
potential costs to the City of this injunction seem slight. The City’s discretion to approve
or deny special-event permits, to place conditions on those permits, and to manage its
public space remains mostly undisturbed. The City will retain authority to regulate
nuisance noise and public safety through Code provisions not affected by this injunction.
Factor in the constitutional rights at issue and Miller’s status as an individual, and a bond
in the amount of $150 is appropriate. See Abdullah v. Cnty. of St. Louis, 52 F. Supp. 3d
936, 948 (E.D. Mo. 2014) (requiring $100 bond from employee of nonprofit seeking to
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restrain enforcement of law restricting speech and assembly rights); Hassay, 955 F. Supp.
2d at 527 ($1 nominal bond for preliminary injunction against amplified sound ordinance).
ORDER
Based on all the files, records, and proceedings in this matter, IT IS ORDERED
that Plaintiff David Miller’s Motion for Preliminary Injunction is [ECF No. 11] is
GRANTED in part and DENIED in part as follows:
1.

Defendants and their officers, agents, employees, and assigns are

preliminarily ENJOINED from enforcing Chapter 16, Article III, Section 16-105(b)(3) of
Excelsior’s Code of Ordinances.
2.

Defendants and their officers, agents, employees, and assigns are

preliminarily ENJOINED from requiring Miller to adhere to Chapter 10, Article XIV,
Section

10-544(a)(1)

of

Excelsior’s

Code

of

Ordinances

by

submitting

a

special-event-permit application at least 30 days before engaging in the speech activity
described in his submissions.
3.

Defendants and their officers, agents, employees, and assigns are

preliminarily ENJOINED from applying Chapter 10, Article XIV, Section 10-542 of
Excelsior’s Code of Ordinances to Miller by requiring him to pay a $150 application fee to
obtain a permit for the speech activity described in his submissions.
4.

This Order does not prohibit enforcement of any other provision of

Excelsior’s Code of Ordinances.
5.

The motion is DENIED in all other respects.

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6.

Miller must post a bond of $150.00 with the Clerk of Court no later than 5:00

p.m. on Wednesday, August 10, 2022.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: August 2, 2022

s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court

38