McGlone et al v. Metropolitan Government of Nashville and Davidson County, Tennessee
MEMORANDUM signed by Chief Judge Waverly D. Crenshaw, Jr on 9/28/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
JOHN MCGLONE, and JEREMY PETERS,
THE METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY,
CHIEF JUDGE CRENSHAW
This litigation arose out of events during the Nashville Pride Festival in 2015. Pending are
the fully briefed Motions for Summary Judgment filed by Defendant the Metropolitan Government
of Nashville and Davidson County, Tennessee (“Metro”) (Doc. No. 54) and by Plaintiffs John
McGlone and Jeremy Peters (Doc. No. 60). The Court heard oral argument on the cross motions
on September 27, 2017. For the reasons that follow, Metro’s Motion will be granted and Plaintiffs’
Motion will be denied.
I. Factual Background
The parties have filed separate Statements of Fact in support of their respective Motions
(Doc. Nos. 56, 62), as well as responses (Doc. Nos. 67, 69). Although their presentations differ, the
relevant facts are not in dispute and are as follows:
On June 26 to 27, 2015, the Nashville Pride Festival (“Festival”) was held at Public Square
Park, which sits directly in front of the historic Metro Courthouse in downtown Nashville. Nashville
Pride’s “message or mission” is “to celebrate the culture and community of the LGBTQ1 people in
Nashville in a safe space.” (Doc. No. 69 ¶ 1). The Festival is used to disseminate that message to
the public. (Id. ¶ 2).
Promoter Jack Davis, through his company J.D. Events and Festivals, applied for and
received a special events permit for the Festival by submitting an application to Metro and
completing a checklist. (Id. ¶ 8). Among the items on the checklist was a security action plan, which
was completed by Comprehensive Security (“Comprehensive”), a private security company, and
approved by the Metropolitan Nashville Police Department (“MNPD”). (Id.; Doc. No. 67 ¶ 27).
The placement of fencing, barricades and street closures was a part of the security action plan that
was approved. (Doc. No. 67, ¶¶ 33, 34, 37).
Also as part of the application process for the Festival permit, J.D. Events was required to
provide a community notification letter. That letter identified MNPD Lieutenant David Corman
(who was involved in the security action plan approval) as a contact person for any questions related
to security, and Rory Rowan of Metro Nashville Public Works as a contact person for questions
related to street closures. (Id. ¶¶ 32, 33).
The security officers provided by Comprehensive were either retired or active duty police
officers from other jurisdictions. (Id. ¶ 39). No Metro Police Department officers worked off duty
for Comprehensive to provide security for the Festival. (Doc. No. 69, ¶ 10). Nevertheless, all of
these officers wore uniforms that identified them as police or law enforcement officers, and they
were required to comply with MNPD’s policies and procedures. (Doc. No. 67, ¶¶ 40, 41).
The Festival was a ticketed event, with ingress and egress made through several gates around
LGBTQ is an initialism for lesbian, gay, bisexual, transgender, and queer or questioning.
the perimeter of Public Square. Fencing and barricades were placed at various locations to control
access, but the permitted area expanded beyond those points to allow queuing lines to form. This
included the sidewalk plaza area near the fountains in front of Public Square Park (Doc. No. 69 ¶¶
Plaintiffs McGlone and Peters are street preachers who believe that homosexuality is a sin.
(Doc. No. 69 ¶ 3, 4, 6). They regularly engage in activities to share their religious message with
others, and preach using bullhorns and amplification equipment to get their message across. (Doc.
No. 69, ¶ 7). They went to the Festival on June 27, 2015 to share a message that was contradictory
to the message of Nashville Pride and the Festival. (Doc. No. 67, ¶¶ 2-3).
After meeting in a parking garage adjacent to the Festival grounds, Plaintiffs took an elevator
to the plaza area, but did not attempt to enter the ticketed area. Instead, they stopped on the public
sidewalk area outside the gate. This area was permitted (that is, within the permit area) but not
inside the barricaded, gated area. The public was not banned from this sidewalk area, nor did
anyone have to pay to enter this area. (Id. ¶¶ 5, 7, 8-10).
After preaching for a matter of minutes, Plaintiffs were approached by Josh Crowe who was
employed by Comprehensive. (Id. ¶ 6). Crowe told Plaintiffs that they were not allowed to be in
the public area outside the gate and told them to leave the sidewalk area or they would be arrested.
(Id. ¶ 10).
Crowe did not direct anyone other than the Plaintiffs to leave, even though others were
standing around in the same vicinity. Those expressing a viewpoint favorable to the festival were
allowed to stay on the sidewalk area in front of the event. (Id. ¶¶ 11, 12).
Faced with the threat of arrest, Plaintiff eventually retreated to the sidewalk corner of Third
Avenue and Union Street. (Id. ¶ 13).2 Enroute to the sidewalk of Third and Union Street, they
stopped at a triangular area and marks the turning lane for motorists turning right from Union onto
Third. It has no benches or gazebos, and no plaques or displays related to Nashville’s history.
(Doc. No. 69, ¶ 27).
At this point it is useful to display the map from the Festival that illustrates the venue:
At the hearing, the parties agreed that Plaintiffs first began preaching on permitted area in front
of the tent and slightly to the left of the “Bike Check” area, which is in the middle and on the right hand
side of the map. They then moved across Union Street and began preaching from the corner of Union
Street and Second Avenue. This second location is not depicted on the map, but is roughly parallel with
the “Bike Check,” and across Union Street. From there, they moved to the median on Third Avenue and
Union, which is the triangular shaped area in the lower, right hand corner of the map. Finally, they
moved to the sidewalk corner of Union Street and Third Avenue, which is below the median and across
(Doc. No. 54-5, Festival Map).
Returning to the narrative, upon moving to the median, Plaintiffs were again approached by
Crowe who told them they could not preach there either and that they would be arrested if they
remained. (Doc. No. 69, ¶ 14).3 No one from Metro or the MNPD spoke to Plaintiffs about moving
either from the plaza, or the median. (Id. ¶ 13). With regard to Crowe’s handling of the situation
and the instructions that were provided by the MNPD, Loyd Poteete, the owner of Comprehensive,
Q. What sort of instructions do you offer?
A. We ask the police department for their guidance on how they want to handle it.
They tell us what’s permitted, people cannot be in the streets blocking traffic. They
can only stop traffic to help people back and forth across, but no one can stay in the
street. And if they can’t go in the event, they can’t go in the event, but that's it. And
then we make sure nobody gets hurt.
Q. Uh-huh. What if they can't go into the event or they're not choosing to go into the
event? Is that a situation where they have to be –
A. They have to go out of the street. And if the street is permitted and blocked off,
they can't be in the street; they have to go to the far side.
Q. And those are instructions that you would receive on how to handle that situation
from the Metro Police Department?
A. Yes, sir.
(Doc. No. 67, ¶¶ 15, 45).
Plaintiffs moved from the median to outside the fenced area on the sidewalk of Third Avenue
and Union Street and resumed preaching. They preached at that location for the next four to five
hours. (Doc. No. 69, ¶ 23).
While Plaintiffs preached at the location across the street from the
Festival, crowds would
“gather and leave and gather and leave.” (Id. ¶ 24). Many of those that gathered around Plaintiffs
were antagonistic to the message being preached, and Plaintiffs were aware that physical violence
Comprehensive security officers had the power to detain, but not arrest. If they believed an arrest
was warranted, they were required to contact an MNPD officer, and it was up to that department to determine
whether an arrest should be made. (Id. ¶¶ 42-43).
was always a possibility. (Id. ¶¶ 16, 17).
Plaintiffs have attended the Festival in the past, but have never applied for a special events
permit. (Id. ¶ 19). Prior to the 2015 Festival, however, Peters sent an e-mail to Lt. Corman
informing him that he intended to preach outside–but on the same side of the street–as the Festival.
(Doc. No. 67, ¶ 47). Corman responded: “The organizers secured a sidewalk lane and road closure
surrounding the event side, and it would appear that you need to conduct your activities on the other
side of the road.” (Id. ¶ 48). This email exchange was forwarded to Poteete who, in turn, relayed
it to his security officers and notified them that, according to the MNPD, Plaintiffs were to remain
on the opposite side of the street from the Festival. (Id. ¶ 49).
Plaintiffs’ preference was to preach from the permitted plaza or median because they would
be heard by more people. The location at Second Avenue and Union, across the street from the
plaza, they believe, interfered with their message because of “deflection” and the noise of passing
vehicular traffic. (Id. ¶¶ 17, 18).
At some point after Plaintiffs had moved from the median, MNPD Sergeant Bryan Petty
arrived and spoke to them at the request of Officer Crowe. Sgt. Petty told Plaintiffs that, as long as
they stayed on the sidewalk of Third Avenue and Union Street across from the Festival they were
fine, but would face arrest if they crossed the street. (Id. ¶ 19, 20).
Sgt. Petty testified in his deposition that, while he personally disagreed with the directive he
gave Plaintiffs, he was instructed by his supervisors that the permitted area, while normally public
property, became private property by virtue of the permit. He also testified that outside the
barricaded area, “there was enough room for people to get around without” stepping into traffic. (Id.
¶¶ 21, 22).
Apart from the Festival, Plaintiffs visit Nashville frequently and generally have had positive
interactions with the MNPD and Lt. Corman. (Doc. No. 69, ¶ 25). They have never been cited for
violating Metro’s special events ordinance or any other Metro ordinance. (Id. ¶ 20). On multiple
occasions, MNPD officers have instructed bystanders who were angry over Plaintiffs’ message that
Plaintiffs have a First Amendment right to express their views. (Id. ¶ 26).
II. Standard of Review
The standards governing summary judgment have been restated on countless occasions and
are well known. It suffices to note: (1) summary judgment is only appropriate where there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of law, Fed.
R. Civ. P. 56(a); (2) the facts and inferences must be construed in favor of the nonmoving party, Van
Gorder v. Grand Trunk W. R.R., Inc., 509 F.3d 265, 268 (6th Cir. 2007); (3) the Court does not
weigh the evidence, or judge the credibility of witnesses when ruling on the motion, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); and (4) the mere existence of a scintilla of evidence
in support of the nonmoving party’s position is insufficient to survive summary judgment, Rodgers
v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). Furthermore, “[t]he standard of review for
cross-motions for summary judgment does not differ from the standard applied when a motion is
filed by only one party to the litigation.” Ferro Corp. v. Cookson Group, PLC, 585 F.3d 946, 949
(6th Cir. 2009).
The First Amendment prohibits the government from “abridging the freedom of speech.”
U.S. Const. Amend. 1. “To determine the constitutionality of a government restriction on speech
on publicly-owned property, [a court must] consider three questions: (1) whether the speech is
protected under the First Amendment; (2) what type of forum is at issue and, therefore, what
constitutional standard applies; (3) whether the restriction on speech in question satisfies the
constitutional standard for the forum.” Miller v. City of Cincinnati, 622 F.3d 524, 533 (6th Cir.
2010) (citing S.H.A.R.K. v. Metro Parks Serving Summit County, 499 F.3d 553, 559 (6th Cir.
Although the First Amendment “offers sweeping protection that allows all manner of speech
to enter the marketplace of ideas,” Bible Believers v. Wayne Cty., 805 F.3d 228, 243 (6th Cir.
2015), “[s]imply because the government may own a piece of property . . . does not mean that
property is open to all types of expressive activity at all times.” Miller v. City of Cincinnati, 622
F.3d 524, 533 (6th Cir. 2010). This is because “‘[t]he State, no less than a private owner of property,
has power to preserve the property under its control for the use which it is lawfully dedicated.’”
Id.•(quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)). Even
so, “the government does not have a free hand to regulate private speech on government property.”
Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469-70 (2009). Rather, a “forum analysis”
is used “to determine when a governmental entity, in regulating property in its charge, may place
limitations on speech.” Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll. of
the Law v. Martinez, 561 U.S. 661, 679 (2010).
The Supreme Court has identified three types of fora: the traditional public forum, the
designated public forum, and the nonpublic forum. Cornelius v. NAACP Legal Def. & Educ. Fund,
Inc., 473 U.S. 788, 800 (1985). “Traditional fora are those that have long been devoted to assembly
and debate ‘by . . . tradition or by government fiat,’ Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 45, 103 S. Ct. 948, 74 L. Ed.2d 794 (1983), such as sidewalks and public parks.”
Helms v. Zubaty, 495 F.3d 252, 255 (6th Cir. 2007). “The government can also designate a forum
‘for use by the public at large for assembly and speech, for use by certain speakers, or for the
discussion of certain subjects,’ Cornelius, 473 U.S. at 802, 105 S. Ct. 3439, such as open school
board meetings or university spaces made available for uses typical of public fora.” Id. at 255-56.
“[B]y contrast, a nonpublic forum is a publicly-owned property that is not by tradition or
governmental designation ‘a forum for public communication,’” and includes, “for example . . . the
reception area of a judge’s office[.]” Miller, 622 F.3d at 535 (citing Helms, 495 F.3d at 256-57).
The nature of the forum also dictates the permissible level of restriction. “Restrictions on
speech in a traditional public forum receive strict scrutiny; the government may exclude a speaker
from a such forum ‘only when the exclusion is necessary to serve a compelling state interest and the
exclusion is narrowly drawn to achieve that interest.’” Id. at 534 (quoting Cornelius, 473 U.S. at
800). “Government restrictions on speech in a designated public forum are subject to the same
strict scrutiny as restrictions in a traditional public forum.” Pleasant Grove, 555 U.S. at 469-70.
Finally, “a nonpublic forum by definition is not dedicated to general debate or the free exchange of
ideas,” and, therefore, “[t]he First Amendment does not forbid a viewpoint-neutral exclusion of
speakers who would disrupt a nonpublic forum and hinder its effectiveness for its intended purpose.”
Cornelius, 473 U.S. at 811.
Against this backdrop, the answers to the first two questions regarding the constitutionality
of Metro’s restriction on Plaintiffs’ speech at the Festival are easily answered. Regardless of one’s
views on the issues about which Plaintiffs’ preached, Supreme Court “precedent establishes that
private religious speech, far from being a First Amendment orphan, is as fully protected under the
Free Speech Clause as secular private expression.” Capitol Square Review & Advisory Bd. v.
Pinette, 515 U.S. 753, 761 (1995) (collecting cases). “Indeed, in Anglo-American history, at least,
government suppression of speech has so commonly been directed precisely at religious speech that
a free-speech clause without religion would be Hamlet without the prince.” Id. Further, Plaintiffs’
attempted to vocalize their beliefs on a public sidewalk in a public park, which are “quintessentially
public fora.” Logsdon v. Hains, 492 F.3d 334, 345 (6th Cir. 2007) (citing Perry Educ. Ass’n, 460
U.S. at 45).
More difficult is the answer to the question of whether requiring Plaintiffs to move off the
permitted plaza area and to an adjacent public sidewalk outside the permitted area was
constitutional.4 The Court finds that it was.
“Restrictions on speech in traditional public fora must either be (1) reasonable time, place,
and manner regulations or (2) ‘narrowly drawn to accomplish a compelling governmental interest.’”
Saieg v. City of Dearborn, 641 F.3d 727, 734 (6th Cir. 2011) (quoting United States v. Grace, 461
U.S. 171, 177 (1983)). “In general, then, ‘the government's ability to permissibly restrict expressive
conduct on public streets and sidewalks ‘is very limited.’” Id.; see Capital Square, 515 U.S. at 761
(stating that in a public forum a state “may impose reasonable, content-neutral time, place, and
manner restrictions . . . but it may regulate expressive content only if such a restriction is necessary,
The Court notes that Plaintiffs eventually moved to a median, but this was not a traditional public
forum. In fact, Peters conceded in his deposition that the median was part of a crosswalk, (Doc. No. 68-2,
Peters Dep. at 45), and the parties agree that there were no benches, plaques or displays on the median. Cf.
Satawa v. Macomb Cty. Rd. Comm’n, 689 F.3d 506, (6th Cir. 2012) (finding that county road median was
traditional public forum where it was landscaped, contained park benches and historical displays, was used
by citizens “for a variety of expressive purposes,” and that “in other words, ha[d] features that invited the
public to spend time there.”).
and narrowly drawn, to serve a compelling state interest.”).
In this case, Metro posits Plaintiffs position as being that “their First Amendment rights were
violated because they did not get to stand where they wanted to stand to preach during Pride Festival
and were instead moved outside of the permitted area and across the street from the Festival.” (Doc.
No. 55 at 10). With this premise, Metro characterizes the question before this Court as being
“straightforward: must Plaintiffs’ First Amendment rights be allowed to trump those of Nashville
Pride, an organization with it own expressive message, when Nashville Pride sought to share and
communicate that message at Pride Festival, an event for which it had obtained a permit[?]” (Doc.
No. 70 at 1). Insisting that the Third Circuit in Startzell v. City of Philadelphia, 533 F.3d 183 (3rd
Cir. 2008) “answered this very inquiry,” Metro submits that “the answer to th[e] question is a
resounding no[.]” Id.
For their part, Plaintiffs insist that “the viewpoint of [their] message is the core issue in this
case,” and that Metro’s argument is “disingenuous” and “belittles Plaintiffs’ legal position” because
“the facts here are that Plaintiffs ‘wanted to stand’ in a traditional public forum, where all citizens
are constitutionally permitted to stand and express protected speech.” (Doc. No. 71 at 3) (emphasis
in original). They submit that Metro’s command moving them across the street was not contentneutral, did not serve a significant government interest, nor was it narrowly tailored. Plaintiffs argue
that Saieg “is remarkably similar to the instant case,” and rely as well on the Sixth Circuit’s opinions
in Bible Believers and Parks v. City of Columbus, 395 F.3d 643 (6th Cir. 2005), among others.
Although the cases cited by Plaintiffs collectively lend support to their position, those cases
are distinguishable in salient aspects. For example, they rely on Saieg for the proposition that
requiring them “to move across the street from the entrance of the Festival . . . does not serve a
significant government interest.” (Doc. No. 68 at 4). However, in Saieg “a group of Christians
whose goal is to convert Muslims to Christianity,” 641 F.3d at 729, challenged restrictions at the
Arab International Festival in Dearborn, Michigan that permitted leafleting only from a stationary
booth and otherwise banned leafleting, both at the Festival and on surrounding sidewalks and roads.
While the Sixth Circuit found that the restrictions did not further a significant public interest even
though the city argued that the regulation help to insure crowd control, “Saieg involved restrictions
on streets and sidewalks covering a number of city blocks that remained open to every-day
pedestrian traffic during [the] festival,” and “‘[c]onsideration of a forum’s special attributes is
relevant to the constitutionality of a regulation.’” Bays v. City of Fairborn, 668 F.3d 814, 823 (6th
Cir. 2012) (quoting Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 648
(1981); see Johnson v. Minneapolis Park & Recreation Bd., 729 F.3d 1094, 1100 (8th Cir. 2013)
(observing “that city’s interest in curtailing expression on sidewalks was ‘not substantial,’ where
sidewalks remained open to the public during a festival, and were not restricted to attendees paying
an admission fee ”); Ascherl v. City of Issaquah, 2011 WL 4404145, at *4 (W.D. Wash. Sept. 21,
2011) (citing Saieg for the proposition that “the government's interest in crowd control and safety
is undermined when it leaves adjacent sidewalks open for typical non-Festival pedestrian traffic and
sidewalk vendors that create just as much, if not more, congestion as compared to literature
distribution”). Critically, Saieg dealt only with restrictions on leafleting and did not address the First
Amendment Rights of permit holders vis-a-vis those who might seek to offer a competitive message
to that of the permit-holder’s expressive message.
Bible Believers, too, involved the Dearborn Arab Festival, albeit in the context of the
“‘heckler’s veto,’” which “occurs when police silence a speaker to appease the crowd and stave off
a potentially violent altercation.” 805 F.3d at 234 (footnote omitted). The “case call[ed] on [the
Sixth Circuit] to confirm the boundaries of free speech protections in relation to angry, hostile, or
violent crowds that seek to silence a speaker with whom the crowd disagrees,” where “a group of
self-described Christian evangelists preach[ed] hate and denigration to a crowd of Muslims, some
of whom responded with threats of violence,” and “[t]he police thereafter removed the evangelists
to restore the peace.” Id. Here, of course, the Court is not dealing with a true “heckler’s veto,”
because Plaintiffs were allowed to preach the message they desired for 4-5 hours. On this score, it
is significant that Bible Believers did not address whether proselytizers have a right to stand in a
particular permitted place to preach. Indeed, the plaintiffs in that case “were directed to a protected
area on the Festival grounds referred to as a ‘free speech zone’” on one day (but not the next), id.
at 236, yet did not argue that this zone that was designated by the city somehow violated their First
Parks is closer to this case because it involved the issuance of a “block party
permit” for the Columbus Arts Festival and an order that plaintiff move outside the barricaded area,
but is different and, in some respects, more like Saieg because it involved an attempt by plaintiff to
distribute leaflets while wearing a sign bearing a religious message. More specifically, the plaintiff
in Parks was peacefully passing out leaflets in a venue where it was “unclear that the [organizer] was
actually expressing a particular message[.]” 395 F.3d at 651 . Even though the Sixth Circuit found
that the permitted streets in Columbus remained a traditional public forum, it expressly noted that
the case before it did not “involve circumstances where the speaker attempted to interfere with the
expressive message conveyed by the permit-holder.” Id. at 649.
Startzell, on the other hand, involved such circumstances. Being out-of-circuit, it is not
controlling authority, but it is instructive because it was tethered to controlling Supreme Court
precedent, and was decided on facts analogous to those here.
In Startzell, a gay pride festival (named OutFest) was held on city property in the form of
a “‘National Coming Out Day’ on behalf of the lesbian, gay, bisexual, and transgendered
community” in Philadelphia. 533 F.3d at 188. There, like here, evangelists “entered the area
assigned to [the festival] with large signs [and] bullhorns . . . seeking to proclaim their message that
homosexuality is a sin.” Id.5 There, like here, the festival organizers had “obtained a permit from
the City of Philadelphia to close off the streets in which OutFest took place,” although, unlike here,
“[a]ll the events were free and open to the public.” Id. And there, like here, after protesters were
directed by police “to move to a less disruptive location,” id., they filed suit, challenging that
directive on First Amendment ground.
On appeal from the grant of summary judgment in favor of the city, the Third Circuit began
its substantive discussion by setting forth what it was not holding, to wit, merely because a permit
was issued by the city, the event organizers did not have “a correlative right to exclude from the
OutFest those who hold contrary, indeed antagonistic, viewpoints.” Id. at 192. In support of that
ruling, the Third Circuit quoted Parks for the proposition that “[t]he city cannot claim that one’s
constitutionally protected rights disappear [where] a private party is hosting an event that remained
free and open to the public.” Id. at 198 (quoting Parks, 395 F.3d at 652). The court then went on
to note that, “like the Arts Festival in Parks, Outfest took place in the streets and sidewalks of
Philadelphia, an undisputed quintessential public forum” and that “[t]he issuance of a permit to use
The protestors were lead by Michael Marcavage of Repent America. In addition to signs and
bullhorns, the protestors used microphones and musical instruments. Id.
a public forum does not transform its status as a public forum.” Id.
It was at this point that the Third Circuit turned to address the question that was specifically
unaddressed in Parks – the circumstance where a speaker attempts to interfere with the expressive
message of the permit-holder. The Startzell court wrote:
As the Supreme Court has stated, “[t]he principles of the First Amendment are not
to be treated as a promise that everyone with opinions or beliefs to express may
gather around him at any public place and at any time a group for discussion or
instruction.” Poulos v. New Hampshire, 345 U.S. 395, 405, 73 S. Ct. 760, 97 L. Ed.
1105 (1953). Indeed, “[n]othing in the Constitution requires the Government freely
to grant access to all who wish to exercise their right to free speech on every type of
Government property without regard to the nature of the property or to the disruption
that might be caused by the speaker's activities.” Cornelius, 473 U.S. at 799-800, 105
S. Ct. 3439. Therefore, although the ability of the state to limit expressive activity
in a traditional public forum is “sharply circumscribed,”• Perry, 460 U.S. at 45, 103
S. Ct. 948, the state remains free to take action to maintain public order. It follows
that although Appellants cannot be excluded from the streets and sidewalks of
Philadelphia where OutFest took place, they are not free to proceed as they like
through the permit area.
Even in a traditional public forum, the government may impose content-neutral time,
place, or manner restrictions provided that the restrictions “are justified without
reference to the content of the regulated speech, that they are narrowly tailored to
serve a significant governmental interest, and that they leave open ample alternative
channels for communication of the information.” Ward v. Rock Against Racism,
491 U.S. 781, 791, 109 S. Ct. 2746, 105 L. Ed.2d 661 (1989) (citation and internal
quotations omitted). Thus, the City had the authority to regulate Appellants' First
Amendment activities where necessary.
533 F.3d at196-97 (footnote omitted) (emphasis added).
The court in Startzell next went on to discuss whether the restriction was content neutral,
which is a primary bone of contention in this case as well.6 After discussing various Supreme Court
At oral argument, Plaintiffs’ counsel repeatedly claimed that the directive to move was content
based, relying upon Lt. Corman’s pre-festival email, and the fact that others were not asked to move from
the Bike Check area where Plaintiffs’ first began preaching. However, and as noted previously, Lt.
Corman simply stated that Plaintiff would need to preach from across the street because “[t]he organizers
secured a sidewalk lane and road closure[.]” (Doc. No. 67 ¶ 45). He did not say that Plaintiffs needed to
cases dealing with content neutrality, the Third Circuit stated that “[p]ermits allow the government
to arrange a public forum ‘so that individuals and groups can be heard in an orderly and appropriate
manner,’” that “‘enforcement of a permit system inevitably requires taking cognizance of content,”’
and that “[t]he principle of content neutrality does not divest police officers of the ability to enforce
valid permits and to ensure that permitted speech is allowed to take place.” Id. at 198 (quoting
Kroll v. U.S. Capitol Police, 847 F.2d 899, 903 (D.C. Cir.1988) (emphasis in original)). In relation
to the particular facts before it, which “was different in kind and degree from that in Parks, where
a demonstrator was removed from a nonexclusive Arts Festival which had a permit,” the Third
Circuit went on to write:
The right of free speech does not encompass the right to cause disruption, and that
is particularly true when those claiming protection of the First Amendment cause
actual disruption of an event covered by a permit. The City has an interest in
ensuring that a permit-holder can use the permit for the purpose for which it was
obtained. This interest necessarily includes the right of police officers to prevent
counter-protestors from disrupting or interfering with the message of the
permit-holder. Thus, when protestors move from distributing literature and wearing
signs to disruption of the permitted activities, the existence of a permit tilts the
balance in favor of the permit-holders. . . .
As we noted earlier . . . Appellants did not simply carry their signs or distribute
leaflets but used loud bullhorns to express their message near the stage area, directly
addressed an OutFest attendee in a confrontational manner, and blocked access to the
vendor booths. Because Appellants were interfering with the permitted event’s
message, something the other OutFest attendees were not doing . . . the police
officers were justified in directing Appellants' movement away from the stage and
be across the street because they had a different viewpoint from the event organizers. Additionally, when
Crowe first told Plaintiffs to move, he said it was because the area was permitted. As for others not being
asked to move, it is undisputed that this was an area for lines to form, and for people to meet others who
were either going into or leaving the Festival. Regardless, and contrary to Plaintiffs’ assertion, a
restriction based upon content does not automatically become a First Amendment violation.
Id. at 197-99.
There obviously are many similarities between the facts presented here and those in Startzell,
but, just as with any two cases, there are differences. Most notably from Plaintiffs’ perspective are
the facts that the protesters in Startzell were (1) “inside the Festival,” (2) “standing twenty yards
from the main stage, where a musical program was going to begin, ‘singing loudly, playing
instruments, displaying large signs, and using microphones and bullhorns,’” and (3) “[a]fter moving
from that location . . . stood still in the middle of the street, blocking vendor booths.” (Doc. No. 68
at 9) (quoting Startzell, 533 F.3d at 190-91). The critical question is whether those factual
differences warrant a contrary outcome. The Court finds that they do not.
Coincidentally enough, those same differentiating facts were presented to the Third Circuit
in a case following Startzell, involving Marcavage and his group of protestors at gay pride and other
festivals in Philadelphia. In Marcavage v. City of Philadelphia, 481 F. App’x 742, 742-43 (3d Cir.
2012), an unpublished opinion, the court was faced with a First Amendment challenge that arose
when the protestors were moved “‘40 to 50 feet away’ from where they wanted to stand,” after they
“vocally condemned homosexuality” and the “event participants reacted by ‘shouting at, debating
with, trying to surround, and getting physically close to’” plaintiffs. Upholding the district court’s
grant of summary judgment to the city, the Third Circuit addressed plaintiff’s attempt to distinguish
Startzell on the ground that (1) “Startzell involved ... a group of demonstrators [who] were removed
from within a permitted event,” while “Marcavage was not even inside of the event area,” and (2)
there was no evidence that Marcavage did anything to disrupt the event, whereas in Startzell, the
demonstrators “used loud bullhorns to express their message near the stage area, directly addressed
an Outfest attendee in a confrontational manner, and blocked access to the vendor booths.” (Id. at
*4). Rejecting those arguments, the Third Circuit wrote:
Marcavage would limit Startzell’s holding to the boundary of a permitted event, so
that counter-protestors could freely disrupt an event so long as they never set foot
within it. This would completely eviscerate Startzell, as counter-protestors could
completely block the entrance to an event, or direct amplified sound from the
perimeter of the event so as to drown out event speakers. Startzell identifies as a
significant governmental interest the ability of the City to ensure “that a
permit-holder can use the permit for the purpose for which it was obtained.” . . .
This interest does not end at the physical border of the permitted event.
We also disagree that “there is no evidence in this case that Marcavage did anything
to disrupt the event.” . . . While the disruption he caused in Startzell may have been
greater than here, this is merely a difference of degree. At each event in question
Marcavage attracted agitated crowds. . . . In any event, police officers are not
required to wait for actual disorder before imposing minimal restrictions. As the
Eighth Circuit noted in ACORN v. St. Louis County, “[t]he government need not
wait for accidents to justify safety regulations.” 930 F.2d 591, 596 (8th Cir.1991).
(Id. at *4-5).
This case is much closer to Startzell and Marcavage than it is to Saieg, Parks or any of the
other Sixth Circuit cases relied upon by Plaintiffs, and the Court agrees with the rationale expressed
in the former cases given the specific facts presented here. Furthermore, “the First Amendment does
not guarantee the right to communicate one’s views at all times and places or in any manner that
may be desired,” Heffron, 452 U.S. at 647, and “restrictions on the time, place, or manner of
protected speech are not invalid ‘simply because there is some imaginable alternative that might be
less burdensome on speech.’” Ward, 491 U.S. at 797.
In this case, the facts are undisputed that Plaintiffs continued to preach with bullhorns for
some four to five hours during the Festival and their message was heard loud and clear by those
passing by. While they may have wanted to preach on permitted Festival ground instead of on the
perimeter, the Court’s “task is to strike a balance between the rights” of event organizers and
counter protestors, “while at all times remaining true to the essence of the First Amendment,”
Startzell, 533 F.3d at 188. The balance in this case tips in favor of Metro.7
On the basis of the foregoing, Metro’s Motion for Summary Judgment will be granted and
Plaintiffs’ cross-Motion will be denied.
An appropriate Order will be entered.
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
As an alternative basis for dismissal, Metro argues that it does not have an unconstitutional custom,
policy, or practice that caused a violation of Plaintiffs’ rights, but correctly concedes that “this Court need
not even reach the issue” if no constitutional violation occurred. (Doc. No. 66 at 12). See Watkins v. City
of Battle Creek, 273 F.3d 682, 685-86 (6th Cir. 2001) (“If no constitutional violation by the individual
defendants is established, the municipal defendants cannot be held liable under § 1983”); City of Los Angeles
v. Heller, 475 U.S. 796, 799 (1986) (“If a person has suffered no constitutional injury at the hands of the
individual police officer, the fact that the departmental regulations might have authorized the use of
constitutionally excessive force is quite beside the point.”). To complete the record and for purposes of any
appeal, however, the Court rejects Metro’s argument. Not only did Lt. Corman, acting on behalf of Metro,
inform Plaintiffs via email that they had to preach from across the street, Comprehensive was advised of the
email and it was distributed to security officers by Poteete. Moreover, the security plan was approved by
Metro and, while Comprehensive officers were not employed by MNPD, they wore uniforms identifying
them as police officers and Crowe “‘purport[ed] to exercise official authority,”’ Parks, 395 F.3d at 652
(citation omitted) when he told Plaintiffs to move.
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