Miller et al v. Cincinnati, City of et al

Filing 146

ORDER denied as moot 119 Motion to Vacate; granting in part and denying in part 136 Motion to Dismiss for Lack of Jurisdiction; granting 138 Motion for Summary Judgment. Signed by Judge Michael R. Barrett on 9/11/12. (ba1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Mark Miller, et al.,
Plaintiff,
v.

Case No. 1:08cv550

City of Cincinnati, et al.,

Judge Michael R. Barrett

Defendants.
OPINION & ORDER
This matter is before the Court upon Plaintiffs’ Motion to Vacate Stay of Preliminary
Injunction (Doc. 119); Defendants’ Motion to Dismiss (Doc. 136); and Plaintiffs’ Motion for
Summary Judgment (Doc. 138).
I.

BACKGROUND
The Court will only briefly address the facts of this case here. A more complete

assessment is found in this Court’s previous Orders, as well at the Sixth Circuit’s opinion.
See Miller v. Cincinnati, 622 F.3d 524, 529-531 (6th Cir. 2010), cert denied, 131 S.Ct. 2875
(2011).
In 2008, Plaintiffs Mark Miller and COAST made two formal written requests to use
the inner steps of Cincinnati’s City Hall for a press conference and rally. (Docs. 22-3, 226.)1 Both requests were denied by City officials. (Doc. 22-4, 22-7.)
In responding to the first request, Defendant Joel Koopman explained that the use
of the interior of City Hall was governed by Administrative Regulation #5. (Doc. 22-4.) At
1

The Court dismissed a third Plaintiff, WeDemandAVote.com, for lack of capacity to sue
or be sued. (Doc. 118.)

the time, Administrative Regulation #5 provided:
No private business enterprises or solicitations should be permitted in City
buildings or operated therefrom. Exceptions should be made only by specific
approval of the Department Head when it is judged to be in the public
interest, as in the case, for example, of the United Way Campaign.
No private signs or advertising materials shall be displayed on or in City
buildings unless for an approved public purpose authorized by the
Department Head.
...
In making any exceptions to the above policies, Department Heads are
urged to consider not only what is proper, but also how it appears to the
public.
(Id.) Koopman explained that the intent of Administrative Regulation #5 is that “the use of
any City facility is for conducting business related to the functions of our various
departments in serving the citizens and by City Council in the performance of their duties.”
(Id.) Koopman also explained that: “City Facility Management’s practice is that events held
inside the building require a City sponsor, either a Council Member or a department as part
of their regular business and duties.” (Id.)
In responding to the second request, Koopman explained that “[e]vents that do not
have sponsorship from a City Department, the City Manager, a Council Member or the
Mayor are welcome to use the exterior stairs since it is a public plaza. . . . If you should
acquire sponsorship from one of the above parties, please inform us so arrangements can
be made for use of the interior steps.” (Doc. 22-7.)
On August 15, 2008, Plaintiffs filed their original complaint and sought injunctive
relief. (Docs. 1, 2.) On August 19, 2008, this Court entered a Temporary Restraining
Order which enjoined Defendants from applying Administrative Regulation #5 to requests

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for use of the lobby and stairs inside City Hall. (Doc. 8) The Court ordered further that no
sponsored or unsponsored activities shall take place in the lobby and stairs inside City Hall
except for routine ingress and egress during the pendency of the Temporary Restraining
Order. (Id.)
Following the entry of this Court’s TRO, the City amended Administrative Regulation
#5. The second version provided:
City Hall is lawfully dedicated for the purpose of allowing City officials to
exercise the rights and responsibilities specified in the Charter of the City of
Cincinnati. . . .
The interior spaces of City Hall are reserved for use by the Mayor, City
Manager and his assistants, City Councilmembers, City Department
Directors, City Commissions and Boards, and City employees. The interior
of City Hall is open to the public for purposes of visiting City offices and
attending City Council and other public meetings. The interior of City Hall is
not generally available to the public for other purposes.
When the Mayor, City Manager and his assistants, City Councilmembers,
City Department Directors, City Commissions and Boards intend to use
interior spaces of City Hall for assemblages, they should notify the Facilities
Management Division of the Public Service Department. . . .
Facilities Management is responsible for insuring that the assemblage does
not create security problems, unreasonably interfere with ingress or egress
from City Hall, or otherwise unreasonably interfere with the other official uses
occurring inside City Hall.
.
(Doc. 22-8.)
As part of the proceedings on Plaintiffs’ Motion for Preliminary Injunction, the parties
entered into “Joint Stipulations of Fact.” (Docs. 28, 29, 30.) The following stipulations
applied to the first and second Administrative Regulation #5:
14.

Pursuant to both the City Facility Management’s practice under Old
Administrative Regulation #5 and New Administrative Regulation #5,
the person who sponsored the use (under Old Administration
Regulation #5) and the “use[r] [of] interior spaces of City Hall for
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assemblages” (under New Administrative Regulation #5) did not
necessarily need to attend the use and/or participate in the use in
order for it to proceed.
...
17.

Pursuant to all of (i) the City Facility Management’s practice under Old
Administrative Regulation #5, (ii) the Rules of Council and (iii) New
Administrative Regulation #5, the person who could sponsor a use
inside of City Hall (as set forth in Stipulation #3, above), the persons
authorized to reserve Council Chambers and the third floor
community room (as set forth in Stipulation # 4, above), and persons
who could “use interior spaces of City Hall for assemblages” (as set
forth in Stipulation # 14, above), were or are able to use his or her full
and independent discretion (except as provided below) in determining
whether to sponsor such use or use such space for an assemblage,
including sponsoring a use of such space for an assemblage at which
private individuals or groups could appear, speak, hold signs or
engage in other communicative activities.
The parties DO NOT agree on the following alternate
additional language. It is included for purposes of
showing their area of disagreement.
A.

B.

18.

With respect to the foregoing, the City maintains that the
exercise of such discretion was and is constrained,(i) as to Old
Administrative Regulation #5, as stated in Mr. Koopman’s letter
dated April 29, 2008, that Cincinnati City Hall (as one of may
City Facilities) was to be used “for conducting business related
to the functions of [the City’s] various departments in serving
the citizens and by City Council in the performance of their
duties” and (ii) as to New Administrative Regulation #5, is to be
used only for “allowing City officials to exercise the rights and
responsibilities specified in the Charter of the City of
Cincinnati.”
With respect to the foregoing, Plaintiffs maintain that there was
and is no constraint on the exercise of such discretion per the
language of Old Administrative Regulation #5, as well as in
actual practice.

Under the City Facility Management’s practice under Old
Administrative Regulation #5 and under New Administrative
Regulation #5, in order for private individuals to participate in a rally
and press conference inside of City Hall, such individuals would need
-4-

to politically or administratively collaborate with the Mayor, a member
of the Cincinnati City Council, the City Manager and his assistants, a
City Department Director, or a City Board or Commission. The City’s
policy allows full and independent discretion to each of the
aforementioned individuals in determining whether or not to politically
or administratively collaborate with private individuals. Because of the
requirement for political or administrative collaboration with City
officials, it was and remains possible that private advocates of one
position, e.g., the “Yes” position, on a ballot issue, could participate
in a rally or press conference inside City Hall, and advocates of the
opposite viewpoint, e.g., the “No” position on the same ballot issue,
could not participate in a similar rally or press conference inside City
Hall unless those advocating such opposite viewpoint could also
politically or administratively collaborate with one of the
aforementioned individuals.
(Doc. 28, at 8-9.)
This Court granted Plaintiffs’ Motion for Preliminary Injunction (Doc. 43), but stayed
the injunction pending the appeal of that Order (Doc. 54). In granting injunctive relief, this
Court found that the inner front lobby and first floor staircase on the Plum Street side of
City Hall, various conference rooms, and the basement lunchroom in City Hall are limited
or designated public fora. This Court concluded that Plaintiffs had established a likelihood
of success on their facial First Amendment challenge because the sponsorship
requirement was not reasonably related to the purpose of the forum. The Court also found
that Plaintiffs had established a likelihood of success on their constitutional right of
association claim and equal protection claim. Finally, the Court found that Plaintiffs had
established a likelihood of success on their claim that Administrative Regulation #5 was
void for vagueness.
At the same time, this Court also denied Defendants’ Motion to Dismiss, which
argued that Plaintiffs’ claims should be dismissed because (1) Plaintiffs lacked standing;
(2) Plaintiffs’ claims were not ripe; and (3) Plaintiffs’ claims were moot because
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Administrative Regulation #5 had been amended. First, the Court found that Plaintiffs did
have standing to bring their claims even though they had never sought a City sponsor for
their press conference and rally. The Court noted that Plaintiffs were bringing a facial
challenge, and the Supreme Court had held that “when 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, 755-756 (1988).
Next, this Court found that Plaintiffs’ claims were ripe because they had shown that
it was likely that the alleged injury would occur because City officials had denied the
previous two requests to use the interior of City Hall.
Finally, this Court found that the amendment of Administrative Regulation #5 had
no effect because the parties stipulated that the second Administrative Regulation #5 also
required independent individuals and groups to find a sponsor to hold an event inside City
Hall. In addition, the Court noted that nominal damages for past wrongs were an available
remedy.
Defendants appealed this Court’s rulings. On appeal, the Sixth Circuit found that
Plaintiffs did have standing to sue, the challenge to the sponsorship requirement was ripe
for review, and Plaintiffs’ claims were not moot to the extent that they were seeking
nominal damages. The Sixth Circuit also affirmed this Court’s conclusion that Plaintiffs
showed a likelihood of success on the merits on their facial First Amendment challenge to

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the sponsorship requirement and the void-for-vagueness claim.2

The Sixth Circuit

remanded the case for further proceedings.
Following remand, the parties withdrew the Joint Stipulations of Fact (Doc 74), and
engaged in discovery. On June 25, 2012, the City amended Administrative Regulation #5
a third time. This version is currently in place and reads:
The interior of City Hall includes non-common spaces and common areas.
The non-common interior spaces of City Hall, including office spaces and
meeting rooms, are reserved for use by the Mayor, City Manager and
Assistant City Managers, Councilmembers, and City department directors
(together, “City Officials”) for activities related to their on-going duties and
responsibilities as public officials or public employees or for other
government purposes associated with the City’s role as an employer
(“Government Purpose”).
When City Officials intend to use a meeting room consistent with a
Government Purpose, they shall request the use of such meeting from the
Facilities Management Division of the Public Services Department, unless
the request is for the use of the council chambers of council committee
rooms in which case the request shall be directed to the clerk of council. The
request should be provided as far in advance of the intended use as
reasonably practicable an shall state the Government Purpose. The City
Official must be present and in control of the meeting room at all times. . . .
The interior common areas of City Hall, including the hallways and stairways,
are open to the public for purposes of visiting City Officials and attending
public meetings.
Because of the disruption created by crowds and noise, the interior of City
Hall is not a public forum and shall not be used by members of the public to
hold rallies, press conferences, or other public events. No City Official may
use their access to the interior of City Hall to sponsor or otherwise allow
members of the public to hold rallies, press conferences, or other public
events.
(Doc. 136-1.)

Defendants seek to dismiss Plaintiffs’ claims based on this third

2

The Sixth Circuit found that this Court erred in concluding that Plaintiffs had shown a
likelihood of success on the merits on their First Amendment expressive association claim and
their equal protection claim.
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Administrative Regulation #5, arguing that Plaintiffs’ claims for declaratory and injunctive
relief are moot. Defendants also argue that Plaintiffs do not have standing to bring their
claim for nominal damages because they are unable to identify an “injury in fact.”
Plaintiffs maintain that despite the changes made in the third Administrative
Regulation #5, they have standing to bring their claims, and their claims are not moot
because the previous versions of Administrative Regulation #5 were unconstitutional. In
their motion, Plaintiffs argue that they are entitled to summary judgment on their claims.
Plaintiffs seek an award of nominal damages in a specific amount determined by the Court;
and an order directing the City of Cincinnati to allow the Plaintiffs to hold a rally or press
conference in the interior of City Hall.
II.

ANALYSIS
A.

Standards of Review
1.

Motion to Dismiss

A motion to dismiss for lack of standing is properly analyzed under Federal Rule
12(b)(1) because a plaintiff’s lack of standing is said to deprive a court of jurisdiction.
Susan B. Anthony List v. Driehaus, 805 F. Supp. 2d 412, 419 (S.D. Ohio 2011) (citing
Ward v. Alt. Health Delivery Sys., 261 F.3d 624, 626 (6th Cir. 2001)). A motion to dismiss
based on mootness also questions a court’s jurisdiction because “‘[a] federal court has no
authority to render a decision upon moot questions or to declare rules of law that cannot
affect the matter at issue.’” United States v. City of Detroit, 401 F.3d 448, 450 (6th
Cir.2005) (quoting Cleveland Branch, N.A.A. C.P. v. City of Parma, 263 F.3d 513, 530 (6th
Cir.2001)); see also League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 473 (6th

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Cir. 2008) (explaining that mootness implicates Article III's “case or controversy”
requirement and is a jurisdictional requirement).
A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) can either attack the
claim of jurisdiction on its face, in which case all allegations of the plaintiff must be
considered as true, or it can attack the factual basis for jurisdiction, in which case the trial
court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction
exists. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir.2004).
2.

Summary Judgment Standard

Federal Rule of Civil Procedure 56(a), as amended on December 1, 2010, provides
that summary judgment is proper “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” The moving
party has the burden of showing an absence of evidence to support the non-moving party’s
case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met
its burden of production, the non-moving party cannot rest on his pleadings, but must
present significant probative evidence in support of his complaint to defeat the motion for
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The
mere existence of a scintilla of evidence to support the non-moving party’s position will be
insufficient; the evidence must be sufficient for a jury to reasonably find in favor of the nonmoving party. Id. at 252.
B.

Standing

Defendants argue that Plaintiffs do not have standing because until they filed their
Motion to Vacate Stay of Preliminary Injunction on July 10, 2012, Plaintiffs had not made

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another request to hold a press conference or rally inside City Hall.3
However, on appeal, the Sixth Circuit found that Plaintiffs had standing to sue even
though they had never sought to secure a sponsor for their event. The Sixth Circuit
explained:
When the City instructed the plaintiffs to secure a sponsor, the City placed
the plaintiffs' request at the mercy of the unfettered discretion of those
officials authorized to grant access. But, as the district court observed, the
Supreme Court has held that “when 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, 108 S.Ct.
2138, 100 L.Ed.2d 771 (1988). Because unfettered governmental discretion
over the licensing of free expression “constitutes a prior restraint and may
result in censorship,” a plaintiff may bring facial challenges to statutes
granting such discretion “even if the discretion and power are never actually
abused.” Id. at 757, 108 S.Ct. 2138.
In our view, both the original and revised versions of Administrative
Regulation # 5 afford authorized officials precisely this kind of unfettered
discretion in deciding whether to sponsor an event in the interior of city hall.
. . . when a plaintiff's protected-speech activities are subject to restriction at
the government's unfettered discretion, the plaintiff has suffered an injury in
fact. We thus conclude that in this case the plaintiffs have standing to sue.
622 F.3d at 532. There is nothing in the record which would change this conclusion.
Therefore, the Court finds that Plaintiffs have standing to bring their claims to the extent
that they are bringing facial challenges.4

3

Plaintiffs respond to this argument, in part, by citing to this Court’s ruling on the issue of
associational standing for WeDemandAVote.com and COAST. (See Doc. 118.) The Court
does not read Defendants’ arguments with regards to standing as making any reference to
associational standing.
4

Plaintiffs have made references in their arguments to claims based on the application
of Administrative Regulation #5 to them. The Court has never interpreted Plaintiffs’ claims as
being “as applied” claims because Plaintiffs never sought out and failed to secure a
sponsorship.
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C.

Mootness

“While standing restricts a party's capacity to bring a lawsuit at the time the
complaint is filed, mootness restricts a party's capacity to bring a lawsuit throughout the
course of the litigation.” Midwest Media Prop., L.L.C. v. Symmes Twp., Ohio, 503 F.3d
456, 460 (6th Cir. 2007) (citing United States Parole Comm'n v. Geraghty, 445 U.S. 388,
396-97 (1980)). The passage of a new law or an amendment to the original law may moot
the case. Id. (citing Hall v. Beals, 396 U.S. 45, 48 (1969)).
Defendants argue that Plaintiffs’ claims for declaratory and injunctive relief are moot
because the third Administrative Regulation #5 no longer requires a sponsor. The Court
agrees.

While Plaintiffs’ claims for nominal damages remain, Plaintiffs’ claim for

declaratory or injunctive relief have been rendered moot by the changes made in the third
Administrative Regulation #5. Not only is the sponsorship requirement removed, but it
specifically prohibits any press conference or rally inside City Hall:
Because of the disruption created by crowds and noise, the interior of City
Hall is not a public forum and shall not be used by members of the public to
hold rallies, press conferences, or other public events. No City Official may
use their access to the interior of City Hall to sponsor or otherwise allow
members of the public to hold rallies, press conferences, or other public
events.
(Doc. 136-1.)
However, Plaintiffs argue that their claims are not moot because there is no
guarantee that the City Manager will not revert back to the earlier versions of Administrative
Regulation #5 once this litigation has ended.
“A defendant's voluntary cessation of allegedly unlawful conduct ordinarily does not
suffice to moot a case.” Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528
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U.S. 167, 174 (2000). However, where there is no evidence in the record that a city has
announced any intention of, or made any threat to, reenact an ordinance, injunctive and
declaratory relief are mooted. Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 981
(6th Cir. 2012) (citing Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637 (6th Cir.1997) and
Brandywine, Inc. v. City of Richmond, Kentucky, 359 F.3d 830 (6th Cir. 2004)). Moreover,
the Sixth Circuit has noted that the “cessation of the allegedly illegal conduct by
government officials has been treated with more solicitude by the courts than similar action
by private parties” and that “such self-correction provides a secure foundation for a
dismissal based on mootness so long as it appears genuine.” Id. (quoting Mosley v.
Hairston, 920 F.2d 409, 415 (6th Cir. 1990)).
Here, the City has not announced any intention of, or made any threat to, reinstate
the sponsorship requirement.

Not only has the City eliminated the sponsorship

requirement from Administrative Regulation #5, but it has closed the interior of City Hall to
all rallies, press conferences, or other public events.5 Therefore, the Court concludes that
Plaintiffs’ claims for declaratory or injunctive relief have been rendered moot.6 Accordingly,

5

The Court notes that even though the second Administrative Regulation #5 did not
carve out any areas of the interior of City Hall, after the second Administrative Regulation #5
was put into place, the City Manager closed the interior lobby and stairs of City Hall to any
assemblages. (Doc. 28, Ex. C.) Therefore, during the pendency of this case, Defendants have
been moving, albeit slowly, in the direction of removing the sponsorship requirement.
6

In doing so, the Court distinguishes this case from the decision in University of
Cincinnati Chapter of Young Americans for Liberty v. Williams, 1:12-CV-155, 2012 WL 2160969
(S.D. Ohio June 12, 2012)(Black, J.). There, the defendants argued that the plaintiffs’ First
Amendment claim was moot because the university modified the challenged policies after the
lawsuit was filed. Id. at *2, n.1. The defendants relied on an affidavit from the university
president stating that the old policies would not be reenacted. Id. This Court found that the
plaintiffs’ claims were not moot, noting that “[t]he new policies may impose shorter notice
requirements, but they still harm Plaintiffs in the same fundamental way by imposing a notice
requirement for all student speech on campus.” Id. Therefore, this Court stated that it “need
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Plaintiffs’ Motion to Vacate Stay of Preliminary Injunction is DENIED as MOOT.
However, as the Sixth Circuit has explained, “if the plaintiff's complaint includes a
claim for damages, that claim ‘preserves the plaintiff['s] backward-looking right to challenge
the original law and to preserve a live case or controversy over that dispute.’” Ohio Citizen
Action v. City of Englewood, 671 F.3d 564, 581 (6th Cir. 2012) (quoting Midwest Media
Prop., LLC v. Symmes Twp., 503 F.3d 456, 461 (6th Cir. 2007)); see also Blau v. Fort
Thomas Pub. Sch. Dist., 401 F.3d 381, 387 (6th Cir. 2005) (explaining that “the existence
of a damages claim ensures that this dispute is a live one and one over which Article III
gives us continuing authority.”) (citing Utah Animal Rights Coalition v. Salt Lake City Corp.
371 F.3d 1248, 1257 (10th Cir. 2004) (injunctive relief could no longer redress the injury
and the “capable of repetition, yet evading review” doctrine did not apply, but plaintiff’s
nominal damages claim saved action from mootness)).7 Accordingly, this Court has

not speculate whether the Defendants will return to the allegedly wrongful conduct because
they already have in the form of the new policy.” Id. This rationale may have been applicable in
this case after the second Administrative Regulation #5 was put into place, but because the
third Administrative Regulation #5 eliminates the sponsorship requirement altogether, in this
case presents a different set of facts.
7

Defendants, citing Morrison v. Bd of Educ. Of Boyd County, 521 F.3d 602 (6th Cir.
2008), argue that Plaintiffs are not entitled to nominal damages. However, the issue in
Morrison was whether the plaintiff had standing to bring his claims. Id. at 608. The Sixth
Circuit explained “absent proof of a concrete harm, where a First Amendment plaintiff only
alleges inhibition of speech, the federal courts routinely hold that no standing exists.” Id. at 609
(citations omitted). The court then explained: “While we may have allowed a nominal-damages
claim to go forward in an otherwise-moot case, see Lynch v. Leis, 382 F.3d 642, 646 n.2 (6th
Cir. 2004); Murray v. Bd. of Trs., Univ. Of Louisville, 659 F.2d 77, 79 (6th Cir. 1981), we are not
required to relax the basic standing requirement that the relief sought must redress an actual
injury.” Id. at 611. In contrast, in this case, the Sixth Circuit concluded that Plaintiffs have
established standing. See Miller, 622 F.3d at 532 (“when a plaintiff’s protected-speech
activities are subject to restriction at the government’s unfettered discretion, the plaintiff has
suffered an injury in fact.”). Therefore, even though Plaintiffs’ case is otherwise moot, Plaintiffs’
nominal-damages claim may go forward.
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subject matter jurisdiction over Plaintiffs’ claims for nominal damages.
Based on the foregoing, Defendants’ Motion to Dismiss is GRANTED as to Plaintiffs’
claims for declaratory and injunctive relief; and DENIED as to Plaintiffs’ claim for nominal
damages.
D.

Free Speech

The Court now turns to the merits of Plaintiffs’ free speech claim under the First
Amendment.
The Court finds that other than the adoption of the third Administrative Regulation
#5, there has been little change in the legal or factual landscape of this case since the
Sixth Circuit issued its opinion. Defendants do not challenge the Sixth Circuit’s finding that
Plaintiffs’ proposed press conference and rally were expressive activities protected under
the First Amendment. Id. at 533-34 (“There is no question that the plaintiffs’ proposed
press conference and rally are expressive activities protected under the First
Amendment.”). Defendants also do not challenge the Sixth Circuit’s conclusion that
“Administrative Regulation #5 has created, at most, a limited public forum. . .” Id. at 535.
Instead, Defendants contend that events held by elected City officials inside City Hall are
expressions of their protected government speech.
On appeal, the Sixth Circuit addressed this argument and rejected it. The Sixth
Circuit analyzed this case under the Supreme Court’s decision in Pleasant Grove City,
Utah v. Summum, 555 U.S. 460 (2009)8 as follows:
Under the Court’s reasoning in Summum, the activities that take place in
Cincinnati’s city hall are not “government speech.” Although government

8

The opinion in Summum was released while this case was on appeal.
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speech may involve private individuals, the connection between the events
that take place inside city hall under Administrative Regulation #5 and any
official government views is simply too attenuated. As we have noted,
sponsoring city officials need not be involved directly in the activities that
take place in city hall. Moreover, no one can reasonably interpret a private
group’s rally or press conference as reflecting the government’s views
simply because it occurs on public property. Historically, governments
have exercised strong “editorial control over donated monuments,”
Summum, 129 S.Ct. at 1133, while private individuals can apparently
access the interior of Cincinnati’s city hall for assemblages on the whim of
any authorized official.
622 F.3d at 537. Defendants have not added anything to the record which would alter the
Sixth Circuit’s analysis on this issue, and therefore this Court adopts the Sixth Circuit’s
conclusion “that the doctrine of government speech does not prevent applying First
Amendment scrutiny in this case.” Id. Therefore, Plaintiffs are entitled to summary
judgment on their free speech claim under the First Amendment.
E.

Void-for-vagueness

Defendants argue that Plaintiffs are not entitled to summary judgment on their voidfor-vagueness claim because the parties have withdrawn the stipulation that City officials
had complete discretion to select whom they will sponsor.9 In its place, Defendants point
to the testimony of the City Manager who stated that he would use the law department to
assist in the determination of whether a particular proposal to use the interior of City Hall
pertained to “city business.” However, the Court finds that passing the responsibility of
9

The Sixth Circuit explained:

The parties stipulate that the revised version of Administrative Regulation #5, as did the
original, gives complete discretion to council members and department heads to select
whom they will sponsor. The only direction provided is that the purpose of the interior of
city hall is to allow City officials “to exercise the rights and responsibilities specified in
the Charter of the City of Cincinnati.”
Miller, 622 F.3d at 540
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making the determination to another city department does not cure Administrative
Regulation #5 of its constitutional infirmities. As the Sixth Circuit explained in this case: “A
statute that fails to constrain ‘an official’s decision to limit speech’ with ‘objective criteria’
is unconstitutionally vague.” 622 F.3d at 539 (citing United Food & Commercial Workers
Union Local 1099 v. Southwest Ohio Regional Transit. Auth., 163 F.3d 341, 358-59 (6th Cir.
1998)). What remains missing is the “objective criteria” and terms “clearly defined such that
a person of ordinary intelligence can readily identify the applicable standard for inclusion
and exclusion.” Id. For example, former councilmember John Cranley explained that his
understanding as to the use of the interior of City Hall was that:
it could only be used for the public interests and that there was some protocol
that you had to go through. I had people that work for me in my office, so if
I wanted to use City Hall for some purpose that was in the interest of the
public, I would have them figure out what the forms were, how to reserve the
space, whatever.
(Doc. 124, John Cranley Depo. at 6.) Milton Dohoney, the City Manager explained that
under the second Administrative Regulation #5:
. . . a council person has their understanding of what their job is, what they’re
supposed to be doing. So whether or not a particular issue is relevant to the
city or to them, it depends on what you’re talking about. But, in general, if
they believe that the issue is something that is germane to their job and they
want to have a meeting about it, they have to follow a process like anyone
else for the use of the space.
Q:

Meaning to get it on the schedule?

A:

Yes.

(Doc. 101, Milton Dohoney, Jr. Depo. at 56.) While the testimony of City officials explains
their subjective belief as to what the terms in Administrative Regulation #5 meant, there is
nothing in the record which shows that City officials had any meaningful guidance

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concerning the use of the interior of City Hall. Therefore, Plaintiffs are entitled to summary
judgment on their void-for-vagueness claim.
III.

CONCLUSION
Based on the foregoing, it is hereby ORDERED that:
1.

Plaintiffs’ Motion to Vacate Stay of Preliminary Injunction (Doc. 119) is
DENIED as MOOT:

2.

Defendants’ Motion to Dismiss (Doc. 136) is GRANTED IN PART and
DENIED IN PART;

3.

Plaintiffs’ Motion for Summary Judgment (Doc. 138) is GRANTED; and

4.

Plaintiffs are each awarded nominal damages in the amount of one dollar
($1.00); and

5.

This matter shall be CLOSED and TERMINATED from the active docket of
this Court.

IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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