O'Connell v. Town of Burgaw, North Carolina, et al.

Filing 29

ORDER and PRELIMINARY INJUNCTION - Plaintiff has established that (1) he is likely to succeed on the merits of his claim that the Code facially violatesthe First Amendment; (2) he is likely to suffer irreparable harm absent preliminary relief; (3) th e balance of the equities tips in plaintiffs favor; and (4) a preliminary injunction is in the public interest. Defendants are enjoined from enforcing the Code. Defendants shall not impose restrictions on plaintiff's speech because of the content or viewpoint of the expression or the possible reaction to the expression. This order shall remain in place until further order of this court. Signed by Chief Judge James C. Dever III on 6/13/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DMSION
No. 7:17-CV-65-D

PATRICKO'CONNELL,
Plaintiff,

v.

)
)
)
)

)

TOWNOFBURGAW,NORTH
CAROLINA, and JIM HOCK,
Defendants.

)
)
)
)
)

ORDER and
PRELIMINARY INJUNCTION

On March 29, 2017, plaintiff filed his verified complaint seeking injunctive, declaratory, and
monetary relief for the violation of his constitutional rights. See [D.E. 1]. On April 28, 2017,
plaintiff filed four exhibits referenced in his verified complaint. See [D.E. 9]. On May 3, 2017,
plaintiff filed a motion for a preliminary injunction challenging Town of Burgaw Ordinance 201525, which is codified in Burgaw Town Code, Section 24-17 (the "Code") as violating the First
Amendment facially and as applied. See [D.E. 10].
The Code provides:
WHEREAS, the Pender County Courthouse Square is a traditional public forum,
which is open to the general public to exercise each individual's right of free speech
pursuant to the First Amendment to the United States Constitution; and
WHEREAS, at certain limited times during a calendar year, festivals are held on the
grounds of the Pender County Courthouse Square and the sidewalks and streets
located within the immediate area to the Pender County Courthouse Square; and
WHEREAS, during these festivals, the festival committee who is sponsoring the
festival shallliave received prior authorization from the Town of Burgaw and the
County of Pender to utilize the Pender County Courthouse Square and the adjacent
sidewalk and streets for the utilization of these public areas during designated times
for the purpose of having and conducting their festival activities, and

WHEREAS, in order to eliminate any conflicts as to the priority over the use of the
public areas utilized during a festival and to avoid any infringement on an
individual's right to exercise their right of free speech during a festival, the Town of
Burgaw believes that it is in the best interest of the public that an alternate public
forum be designated during a festival for a person to go to and exercise their right
of free speech.
NOW THEREFORE, BE IT ORDAINED BY THE TOWN OF BURGAW BOARD
OF COMMISSIONERS THAT:
I.

Amend the Town of Burgaw Code of Ordinances to add Section 24-30 as
follows:
Sec. 24-30.- Designation ofAlternate Public Forum to Exercise Free Speech

During any festival where the Pender County Courthouse Square is utilized for
festival activities, the western portion of the block located between West Bridgers
Street and West Wilmington Street and immediately adjacent to North Dudley Street
shall be designated as the alternate public forum for any individual who desires to
exercise their right of free speech pursuant to the First Amendment of the United
States Constitution from 7:00 a.m. on the day before the commencement of the
festival until 7:00p.m. on the day after the commencement of the festival. The
designation of this alternate public forum shall be effective only when the Pender
County Courthouse Square and the sidewalks and streets located within the
immediate area to the Pender County Courthouse Square have been authorized by the
Town of Burgaw's governing body to be utilized for festival activities pursuant to a
request by an orgmiized festival committee. Unless otherwise preempted by an
ordinance of the County ofFender, a resolution of the governing body of the County.
of Pender, federal or North Carolina law, the Pender County Courthouse Square is
acknowledged as a public forum where members ofthe public can exercise their right
to free speech.
See [D.E. 21-2]. The Code became effective at 12:01 a.m., on October 14, 2015. See id.
Plaintiff is a citizen and resident of North Carolina who seeks to speak to people about his
views regarding religious, political, and social topics. See [D.E. 1] ~~ 4, 14--15. Plaintiff seeks to
speak to people who have attended and will attend the Town ofBurgaw's Blueberry Festival, which
is held each June on the public streets and sidewalks surrounding the Pender County Courthouse
Square. See id. ~~ 24--33. As part ofhis speech, plaintiff speaks to people, distributes free literature,
and carries portable signs.

See id.

~~

28-29, 31. Plaintiff also "records public events for

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commentary and distribution." Id. ~ 30. Plaintiff plans to speak during the Blueberry Festival on
June 17 and 18, 2017, but is concerned he will be arrested, incarcerated, and fined for violating the
Code. See id. ~~ 33-35.
On May 31, 2017, defendants responded in opposition to plaintiffs motion for a preliminary
injunction. See [D.E. 21]; see also [D.E. 22, 24]. On Tuesday, June 13, 2017, the court held a
hearing and considered the arguments of plaintiff and defendants concerning plaintiffs motion for
a preliminary injunction.
Having considered the entire record and governing law, the court hereby enters the following
fmdings of facts and conclusions of law for purposes of this order and preliminary injunction:
1. The court adopts the factual allegations in paragraphs 1-21, 23-34, 36-46, 54-64, 73-74,
102, 104-05 of plaintiffs verified complaint as its own findings of fact. See [D.E. 1]

~~

1-21,

23-34,36-46,54-64,73-74,102,104-05.
2. The court has considered plaintiffs request for a preliminary injunction under the
governing standard. See, e.g., Winterv. Nat. Res. Def. Council. Inc., 555 U.S. 7, 20 (2008); Centro
Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013) (en bane); Real Truth About
Obama. Inc. v. FEC, 575 F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089
(2010), reissued in relevant pml, 607 F.3d 355, 356 (4th Cir. 2010) (per curiam). Plaintiff has
established that (1) he is likely to succeed on the merits of his claim that the Code facially violates
the First Amendment; (2) he is likely to suffer irreparable harm absent preliminary relief; (3) the
balance of the equities tips in plaintiffs favor; and (4) a preliminary injunction is in the public
interest.

See,~'

Bays v. City of Fairborn, 668 F.3d 814, 820--25 (6th Cir. 2012).

3. Plaintiff wishes to engage in protected speech. See,

~'

Capitol Square Review &

Advisory Bd. v. Pinette, 515 U.S. 753, 760--61 (1995); City of Ladue v. Gilleo, 512 U.S. 43, 48
3

(1994); United States v. Koldnd~ 497 U.S. 720,732-36 (1990) (plurality opinion); Boos v. Barzy,
485 U.S. 312, 318 (1988); Edwards v. South Carolin~ 372 U.S. 229, 233-37 (1963); Murdock v.
Pennsylvani~

319 U.S. 105, 108-10 (1943). The Pender County Courthouse Square and its

surrounding public streets and sidewalks are traditional public fora.

See,~' Ark. Educ. Television

Comm'n v. Forbes, 523 U.S. 666, 677 (1998) ("Traditional public fora are defined by the objective
characteristics ofthe property, such as whether, by long tradition or by government fiat, the property
has been devoted to assembly and debate." (quotations omitted)); Frisby v.

Schu1~

487 U.S. 474,

481 (1988); Perzy Educ. Ass'n v. Perzy Local Educators' Ass'n, 460 U.S. 37, 45 (1983); Hague v.
Comm. for Indus. Org., 307 U.S. 496, 515 (1939). Plaintiff wishes to engage in protected speech
in traditional public fora, and the Code does not qualify as a constitutional time, place, and manner
restriction.

See,~' United States v. Grace, 461

U.S. 171, 177-84 (1983); cf. Heffron v. Int'l Soc'y

for Krishna Consciousness. Inc., 452 U.S. 640, 647-55 (1981).
4. To qualify as a constitutional time, place, and manner restriction, the Code must be
narrowly tailored to serve a significant governmental interest. See, e.g., Grace, 461 U.S. at 177. The
court assumes without deciding that the Town has a significant governmental interest in ensuring
smooth pedestrian traffic flow, public safety, and relieving congestion and overcrowding during
festivals, including the Blueberry Festival. See, e.g., Heffron, 452 U.S. 649-50. However, the Code
is not narrowly tailored to further those interests. To be narrowly tailored, a restriction on speech
must not "burden substantially more speech than is necessary to further the government's legitimate
interests." Ward v. Rock Against Racism, 491 U.S. 781,799 (1989). Althougharegu1ation "may
satisfy the tailoring requirement even though it is not the least restrictive or least intrusive means of
serving the [state's] goal," Hill v. Colorado, 530 U.S. 703,726 (2000), the requirement must not be
"substantially broader than necessary." Ward, 491 U.S. at 800.
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5. The Code is substantially broader than necessary. On its face, the Code purports to
redefine the grounds of the Pender County Courthouse Square and the sidewalks and streets located
within the immediate area of the Pender County Courthouse Square as exempt from the First
Amendment from 7:00 a.m. on the day before the commencement of the festival until 7:00 p.m. on
the day after the commencement of the festival by virtue of the Code's creation of an "alternate
public forum" on the western portion of the block located between West Bridgers Street and West
Wilmington Street and immediately adjacent to North Dudley Street See [D.E. 21-2]. The Town,
however, cannot "by its own ipse dixit destroy the 'public forum' status of the streets and parks
which have historically been public forums." U.S. Postal Serv. v. Council of Greenburgh Civic
Ass'ns., 453 U.S. 114, 133 (1981); see Forbes, 523 U.S. at 678; Grace, 461 U.S. at 175. Likewise,
on its face, the Code improperly prohibits plaintiff from mingling with other people located on the
grounds of the Pender County Courthouse Square and sidewalks and streets located within the
immediate area of the Pender County Courthouse Square to discuss politics, religion, sports, or
anything else. Cf. Hef:fro!!, 452 U.S. at 643-44 (upholding a state fair rule requiring all persons,
groups, or firms who desire to sell, exhibit, or distribute materials during the fair to do so from fixed
locations on the fairgrounds, but not preventing people from ''walking about the fairgrounds and
co~unicating the organization's views with fair patrons in face-to-face discussions" or displaying
/

signs); Price v. City ofFayetteville, No. 5:13-CV-150-FL, 2013 WL 1751391, at *2-9 (E.D.N.C.
Apr. 23, 2013) (unpublished) (upholding a rule confining distribution of all flyers, pamphlets,
coupons, or any other printed material during a downtown three-day festival to designated areas).
The Code also improperly prohibits plaintiff from handbilling, carrying a sign, or conveying a
message on his shirt or his hat. The Code's total ban on such speech is not necessary and is
substantially broader than necessary to achieve the Town's purported interests in adopting the Code.
5

See,~,McCullenv.

Coakley, 134 S. Ct.2518,2535-41 (2014); Ward,491 U.S. at800; Grace,461

U.S. at 172-82; Reynolds v. Middleton, 779 F.3d 222, 230-32 (4th Cir. 2015); Bays, 668 F.3d
824-25; cf. Ross v. Early, 746 F.3d 546, 555--60 (4th Cir. 2014) (affirming summary judgment for
city concerning its policy regulating location of demonstrators upon the city's showing that the
demonstrators blocked pedestrian movement, blocked entrances, exits, and handicapped ramps to
city arena, and created a public safety hazard and that the city's policy alleviated these demonstrated
harms in a direct and material way). Thus, plaintiff has demonstrated that he is likely to succeed on
the merits of his claim that the Code facially violates the First Amendment.
6. At oral argument, defendants attempted to disclaim the Code's extraordinary breadth.
The court, however, ''will not rewrite a state law to conform it to constitutional requirements."
Virginia v. Am. Booksellers Ass'n. Inc., 484 U.S. 383, 397 (1988). Likewise, the court has grave
concerns about how standardless the Code is concerning enforcement. See,

~.

Kolender v.

Lawson, 461 U.S. 352,358--61 (1983); Coates v. City of Cincinnati, 402 U.S. 611,614-16 (1971);
Niemotko v. Mazyland, 340 U.S. 268,271-73 (1951); Child Evangelism Fellowship ofMd.. Inc. v.
Montgomezy Cty. Pub. Sch., 457 F.3d 376,387-90 (4th Cir. 2006).
7. Plaintiffdemonstrated that he is likely to suffer irreparable harm absent preliminary relief.
"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976).
'8. Because plaintiff has shown a substantial likelihood that the Code facially violates the
First Amendment, enjoining the Code will not harm the Town or anyone else. See, ~' Tinker v.
Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508-10 (1969). Thus, the balance of equities
favors plaintiff. Moreover, a preliminary injunction is in the public interest. See, ~. Elrod, 427
U.S. at 373.

6

9. Defendants are enjoined from enforcing the Code.
10. This order does not prohibit defendants from enforcing otherwise applicable and
constitutional federal, state, or local laws.

See,~'

Cox. v. Louisi~ 379 U.S. 559, 574 (1965);

Cox v. New Hampshire, 312 U.S. 569,574 (1941); Cox v. City of Charleston, 416 F.3d 281,286
(4th Cir. 2005).
11. Defendants shall not impose restrictions on plaintiffs speech because of the content or
viewpoint ofthe expression or the possible reaction to the expression.

See,~' Thomas v.

Chi. Park

Dist., 534 U.S. 316, 323724 (2002); Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971);
Tinker, 393 U.S. at 508-10.
12. This order shall remain in place until further order of this court.
13. No bond is required.
SO ORDERED. This 13 day of June 2017.

J
· SC.DEVERill
Chief United States District Judge

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