Tyler v. Kingston ( 2023 )

22-664-cv
Tyler v. Kingston
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2022
ARGUED: OCTOBER 27, 2022
DECIDED: JULY 18, 2023
No. 22-664-cv
RASHIDA TYLER, ANNE AMES, BEETLE BAILEY, PHILIP ERNER, RACHEL
GANS, KATRINA HOUSER, LISA ROYER, AMANDA SISENSTEIN, KIM
WHEELER,
Plaintiffs-Appellants,
v.
CITY OF KINGSTON,
Defendant-Appellee.
________
Appeal from the United States District Court for the Northern
District of New York.
________
Before: WALKER, LEE, AND ROBINSON, Circuit Judges.
________
Plaintiffs-Appellants bring a First Amendment challenge to the
City of Kingston’s prohibition against bringing signs and posters into
public meetings of the Common Council held at Kingston City Hall.
No. 22-664-cv
The City moved to dismiss, arguing that Common Council meetings
are limited public fora in which the City is permitted to reasonably
restrict speech that undermines the purpose for which the forum had
been opened. The district court granted the City’s motion, noting that
government entities are permitted to regulate the manner in which
the public participates in limited public fora. The district court
concluded that Plaintiffs had not adequately alleged that the City’s
sign prohibition was unreasonable in light of the potential disruption
or distraction that signs at Common Council meetings might pose.
We AFFIRM the judgment of the district court.
________
STEPHEN BERGSTEIN, Bergstein & Ullrich LLP, New
Paltz, NY, for Plaintiffs-Appellants.
MICHAEL T. COOK, Cook, Netter, Cloonan, Kurtz &
Murphy, P.C., Kingston, NY, for Defendant-
Appellee.
________
JOHN M. WALKER, JR., Circuit Judge:
Plaintiffs-Appellants bring a First Amendment challenge to the
City of Kingston’s prohibition against bringing signs and posters into
public meetings of the Common Council held at Kingston City Hall.
The City moved to dismiss, arguing that Common Council meetings
are limited public fora in which the City is permitted to reasonably
restrict speech that undermines the purpose for which the forum had
been opened. The district court granted the City’s motion, noting that
government entities are permitted to regulate the manner in which
the public participates in limited public fora. The district court
concluded that Plaintiffs had not adequately alleged that the City’s
sign prohibition was unreasonable in light of the potential disruption
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No. 22-664-cv
or distraction that signs at Common Council meetings might pose.
We AFFIRM the judgment of the district court.
BACKGROUND
I. Factual Background 1
Plaintiffs—Anne Ames, Beetle Bailey, Philip Erner, Rachel
Gans, Katrina Houser, Lisa Royer, Amanda Sisenstein, Rashida Tyler,
and Kim Wheeler—are nine political and community activists
affiliated with “Rise Up Kingston” and “Wednesday Walks 4 Black
Lives,” organizations “focused on police misconduct and diversity
issues.” J. App’x at 8.
On August 3, 2021, the Kingston Common Council was
scheduled to hold a public meeting at Kingston City Hall to discuss
whether the City would purchase an armored rescue vehicle. Eight
of the Plaintiffs—that is, all Plaintiffs except Philip Erner—planned to
attend the meeting to protest the proposed purchase, and they
brought signs to City Hall demonstrating their opposition to such
purchase. These signs were neither vulgar nor obscene. For example,
two of the signs read “No Tanks No Thanks!” and “Oh my God! No
Tank! Move on!!” Id. at 8, 12–13. Some of the signs were displayed
on large cardboard posters. Others were in the form of life-sized
puppets.
When these Plaintiffs entered City Hall with their signs, police
officers informed them that, under a rule adopted by the Common
Council a few days earlier, signs were prohibited in the City Hall
1The following facts are drawn from the allegations in and documents
attached to the Complaint and are taken as true for purposes of this appeal. See
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 110–11 (2d Cir. 2010).
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No. 22-664-cv
building and in Common Council meetings held within the building.
Notices to that effect were posted in the building:
ATTENTION: No signs or posters allowed inside the
building. Interruption of speakers and/or government
business will not be tolerated. Anyone who interrupts a
speaker or the proceedings of a government meeting
shall be removed.
Id. at 8, 17–18. Plaintiff Katrina Houser, who reportedly felt
“intimidated by the police,” declined to enter the meeting without her
sign. Id. at 9. The remaining seven Plaintiffs attended the meeting
without their signs.
On August 11, 2021, the ninth Plaintiff—Philip Erner—sought
to attend a Common Council meeting that was to address a proposal
to install surveillance cameras throughout the City. Erner and other
activists were not permitted to enter the building with their signs.
II. Procedural History
Plaintiffs brought this action against the City on January 3,
2022, asserting that the City’s sign prohibition violated the First
Amendment. The City moved to dismiss the Complaint pursuant to
Fed. R. Civ. P. 12(b)(6), arguing that Common Council meetings are
limited public fora in which the City is permitted to reasonably
restrict speech that falls outside the “types of speech” for which the
forum had been opened. J. App’x at 29 (quoting Hotel Emps. & Rest.
Emps. Union, Loc. 100 of New York, N.Y. & Vicinity, AFL CIO v. City of
New York Dep’t of Parks & Recreation, 311 F.3d 534, 546 (2d Cir. 2002)).
On March 16, 2022, the district court (David N. Hurd, J.)
granted the City’s motion. See Tyler v. City of Kingston, 593 F. Supp.
3d 27 (N.D.N.Y. 2022). The district court began by noting that
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No. 22-664-cv
government entities are permitted to regulate the manner or form of
speech in limited public fora, including city council meetings, as long
as such restrictions on speech are viewpoint neutral and reasonable.
See id. at 31–32.
Turning to the viewpoint neutrality inquiry, the district court
rejected Plaintiffs’ argument that the timing of the sign prohibition—
instituted days before the August 3, 2021 meeting 2—indicated that it
discriminated based on viewpoint. Id. at 32. The district court noted
that the sign prohibition applied to all signs; the sign prohibition
remained in effect after the August 3, 2021 meeting; and Plaintiffs did
not allege that the sign prohibition was selectively enforced or that
the use of signs was more important to Plaintiffs’ cause than to their
opponents. Id.
Finally, with respect to reasonableness, the district court found
that, although this issue “presents the closest call of all the parties’
arguments,” Plaintiffs had failed to plausibly allege that the sign
prohibition was unreasonable in relation to the purpose of the forum.
Id. at 33. Specifically, the district court noted that Common Council
meetings have only one purpose—that is, allowing the Common
Council to “discuss and decide local issues while giving the public
access to that process”—and excluding signs from such meetings is
“reasonably related to keeping the tenor of the meetings from
devolving into a picketing session inside City Hall.” Id. at 33–34.
This appeal followed.
2 Plaintiffs alleged that the sign ban was instituted because the Common
Council knew Plaintiffs and others would attend the August 3, 2021 meeting to
protest. However, the impetus for adopting the sign ban would speak to
viewpoint discrimination. And, as discussed infra note 3, Plaintiffs have waived
their viewpoint discrimination argument by failing to pursue it on appeal.
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No. 22-664-cv
DISCUSSION
“We review de novo the dismissal of a complaint for failure to
state a claim upon which relief can be granted.” Reich v. Lopez, 858
F.3d 55, 59 (2d Cir. 2017). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
On appeal, Plaintiffs argue that the district court erred because
(1) the City may not restrict certain forms of speech while permitting
other forms of speech on the same topic; and (2) the sign prohibition
is unreasonable because the City’s proffered interest in avoiding
disruption or distraction is speculative, and the sign prohibition is not
narrowly tailored to that interest. 3 For the reasons that follow, we
reject each of these arguments.
I. Restrictions on the Form or Manner of Speech in a Limited
Public Forum
We analyze speech restrictions on publicly owned property
according to a forum-based approach. Under this approach, “[f]ora
for expression are classified into four categories, which fall along a
spectrum extending from those deserving the greatest constitutional
protection to those deserving the least constitutional protection:
(1) the traditional public forum; (2) the designated public forum; (3)
the limited public forum; and (4) the non-public forum.” R.O. ex rel.
Ochshorn v. Ithaca City Sch. Dist., 645 F.3d 533, 539 (2d Cir. 2011); see
3Plaintiffs do not challenge the district court’s determination regarding their
failure to adequately allege viewpoint discrimination. Accordingly, any argument
premised on Plaintiffs’ allegations of viewpoint discrimination has been waived.
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No. 22-664-cv
also Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797,
799–800 (1985).
Here, there is no dispute that the Common Council meetings at
issue are limited public fora. See Hotel Emps., 311 F.3d at 552 (“[A]
limited public forum is created when the government opens a non-
public forum for public expression, but limits expressive activity to
certain kinds of speakers or the discussion of particular subjects.”).
“[I]n a limited public forum, [the] government is free to impose
a blanket exclusion on certain types of speech, but once it allows
expressive activities of a certain genre, it may not selectively deny
access for other activities of that genre.” Id. at 545–46 (quoting Travis
v. Owego-Apalachin Sch. Dist., 927 F.2d 688, 692 (2d Cir. 1991)). For
“expressive uses not falling within the limited category for which the
forum has been opened, restrictions need only be viewpoint neutral
and reasonable.” Id. at 546. “[S]trict scrutiny is accorded only to
restrictions on speech that falls within the designated category for
which the forum has been opened.” Id. at 545. Otherwise, such
restrictions are “subject to only minimal constitutional scrutiny.”
Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207, 212 (2d
Cir. 1997) (internal quotation marks omitted).
The district court observed that, in a limited public forum,
“[t]he Second Circuit . . . only requir[es] that the public be permitted
to speak on the same issue that the limited public forum is meant to
address[, but that] the government is still permitted to regulate how
that speech is delivered.” Tyler, 593 F. Supp. 3d at 31. Plaintiffs argue
that the district court erred because this Court has “not expressly
drawn [a] distinction” between regulating the subject matter of
speech and regulating the manner in which such speech is delivered.
Plaintiffs’ Br. at 12. According to Plaintiffs, because the Common
Council allocated time for public comment—verbal and written—
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No. 22-664-cv
during the August 3, 2021 meeting, 4 the Common Council was also
required to permit Plaintiffs to engage in “silent[]” public comment
on matters on the agenda through the use of signs. Id. at 13. We
disagree.
The distinction that the district court drew between the topic of
the speech and the form or manner in which such speech is delivered
is consistent with our precedents. In Hotel Employees, we upheld
restrictions on rallies and leafletting at the Lincoln Center Plaza,
finding that such restrictions were reasonable “in light of the Plaza’s
particular and limited function” “as an area singularly dedicated” to
entertainment and artistic performances, rather than political or
labor-related demonstrations. See Hotel Emps., 311 F.3d at 555–56.
Plaintiffs attempt to distinguish Hotel Employees by arguing that
the political rallies and leafletting there were “entirely unlike the
activities for which . . . Lincoln Center was created,” while the signs
at issue here address matters directly on the Common Council’s
agenda. Plaintiffs’ Br. at 12. But Plaintiffs miss the point. Even if the
signs relate to matters on the Common Council’s agenda, they may
still undermine the purpose for which the forum was created. See
Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 342 (2d Cir. 2010)
(per curiam) (“In a limited public forum, strict scrutiny does not apply
to expressive activities outside the general purpose for which the
government opened the forum.”). And the form or manner in which
the public participates at Common Council meetings may certainly
4 The Complaint does not address whether attendees of the August 3, 2021
Common Council meeting were able to offer verbal or written comments at the
meeting. But the parties apparently agree that we may take judicial notice of this
fact from the Common Council’s public agenda, which is available on the City’s
website (https://kingston-ny.gov/Agendas). See Fed. R. Evid. 201(b)(2) & (d). It is
also apparently undisputed that the Common Council did not entertain public
comment during the August 11, 2021 meeting.
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No. 22-664-cv
undermine the purpose for which the forum was created—e.g., to
facilitate meaningful discourse on matters of the legislative agenda.
See Make The Rd. by Walking, Inc. v. Turner, 378 F.3d 133, 143 (2d Cir.
2004) (“Restrictions on speech not within the type of expression allowed
in a limited public forum must only be reasonable and viewpoint
neutral.” (emphasis added)); see also The Good News Club v. Milford
Cent. Sch., 202 F.3d 502, 510 (2d Cir. 2000) (“[F]or those who seek to
speak on a topic or in a manner not contemplated by the public entity
in opening the limited public forum[,] there is no fundamental right
of freedom of speech.” (emphasis added) (internal quotation marks
omitted)), rev’d on other grounds Good News Club v. Milford Cent. Sch.,
533 U.S. 98 (2001).
Suppose the Common Council adopted rules permitting
meeting attendees to contribute only by way of written remarks or
requiring meeting attendees to limit their verbal remarks to a fixed
amount of time. Such restrictions would limit the form or manner of
speech, but plainly they would be upheld as reasonable in a limited
public forum, and they would not be subject to strict scrutiny. See
Cipolla-Dennis v. Cnty. of Tompkins, No. 21-712, 2022 WL 1237960, at *2
(2d Cir. Apr. 27, 2022) (finding no First Amendment violation where
county legislature required meeting attendee to sign in before
attendee was permitted to offer comments at public meeting).
Indeed, the application of strict scrutiny in such circumstances would
undermine the legal principles governing limited public fora—that
such fora are subject to reduced judicial scrutiny—and would appear
to apply a higher level of scrutiny than that imposed on time, place,
or manner restrictions in public fora. Cf. Int'l Action Ctr. v. City of New
York, 587 F.3d 521, 527 (2d Cir. 2009) (explaining that content-neutral
time, place, or manner restrictions in public fora need only satisfy
“intermediate scrutiny,” which requires that the restrictions “serve a
significant government interest, be narrowly tailored to serve that
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No. 22-664-cv
interest, and leave open ample alternative channels of
communication” (internal quotation marks omitted)); see also, e.g.,
Galena v. Leone, 638 F.3d 186, 199 (3d Cir. 2011) (“The government . . .
may restrict the time, place and manner of speech [in a limited public
forum], as long as those restrictions are reasonable and serve the
purpose for which the government created the limited public
forum.”); Jones v. Heyman, 888 F.2d 1328, 1331 (11th Cir. 1989)
(explaining that the government may regulate the time, place, or
manner of speech in limited public fora “with less exacting scrutiny
by the courts”).
Accordingly, we hold that in limited public fora such as city
council meetings, government entities are permitted to restrict the
form or manner of speech offered by members of the public, even if
such speech addresses the topic or agenda of that forum. Such
restrictions on the form of speech are not subject to strict scrutiny;
courts need only assess whether the restrictions are reasonable and
viewpoint neutral.
With this in mind, we turn next to Plaintiffs’ contention that the
City’s prohibition is unreasonable.
II. The Reasonableness of the City’s Sign Prohibition
In a limited public forum, the reasonableness analysis turns on
the particular purpose and characteristics of the forum and the extent
to which the restrictions on speech are “reasonably related” to
maintaining the environment the government intended to create in
that forum. See Hotel Emps., 311 F.3d at 554 (internal quotation marks
omitted). “[T]o survive First Amendment scrutiny[,] the restriction
need not be the most reasonable or the only reasonable limitation
imaginable,” Byrne v. Rutledge, 623 F.3d 46, 59 (2d Cir. 2010) (internal
quotation marks omitted), but simply “consistent with the
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No. 22-664-cv
government’s legitimate interest in preserving the property for the
use to which it is lawfully dedicated,” Hotel Emps., 311 F.3d at 554
(internal quotation and alteration marks omitted). Significantly, the
existence of “alternative channels” of communication is a relevant
factor in assessing the reasonableness of a restriction on speech in a
limited public forum. Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n,
460 U.S. 37, 53 (1983).
We agree with the district court’s conclusion that Plaintiffs
have not plausibly alleged that the City’s sign prohibition was
unreasonable in relation to the City’s interest in the forum—namely,
“keeping the tenor of [Common Council] meetings from devolving
into a picketing session inside City Hall.” Tyler, 593 F. Supp. 3d at 33;
see id. at 34 (“[I]t is not unreasonable for Kingston to want to keep its
meeting reserved for spoken comment from the public on relevant
issues while excluding signs or other demonstrable items that might
distract from that intended environment of an efficient discourse.”).
Plaintiffs argue that the district court erred because the City’s
stated interest is “speculative,” and a complete ban on signs is not the
least restrictive means of furthering such interest. Plaintiffs’ Br. at 22.
We find these arguments unpersuasive.
In support of their argument that the City’s stated interest is
“speculative,” Plaintiffs note that the Complaint does not allege that
they intended to use the signs “for violent and disruptive purposes,
and there is no evidence that anyone had previously done this.” Id.
at 23. But while it is true that “prior experience can provide grounds
for restrictions on speech,” the reasonableness of a restriction may
also be determined “with reference to the disruption or distraction
that would result if all groups like the group at issue sought access.”
Make The Rd. by Walking, 378 F.3d at 148–49.
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No. 22-664-cv
Plaintiffs also contend that the City’s purported interest
“raise[s] a factual issue that the parties have yet to develop in
discovery, [and which] cannot be resolved on a Rule 12 motion.”
Plaintiffs’ Br. at 22. But, as Plaintiffs acknowledge, courts can take
notice of government interests that “ring[] of common-sense.” Hotel
Emps., 311 F.3d at 554. And many courts have recognized that
preventing disruptive activity is a legitimate and common-sense
government interest that can justify restrictions on speech in limited
public fora. See id. (“[A]lthough the defendants did not make a
specific showing below with regard to the nature and extent of the
disruption that rallies and picketing would cause, the fact that
permitting such activities on any variety of topics would interfere
with the City’s mission in establishing this specialized space rings of
common-sense.” (internal quotation and alteration marks omitted));
Make The Rd. by Walking, 378 F.3d at 148 (“The most common reason
[for excluding expression in a nonpublic forum] is that the excluded
expression is distracting or disruptive.”).
Here, we conclude that Plaintiffs have not adequately alleged
that the sign prohibition was unreasonable in relation to the City’s
common-sense interest in running efficient and orderly meetings.
Plaintiffs do not allege that they were disabled from voicing their
views at the August 3, 2021 Common Council meeting, nor do they
allege that they could not use their signs as part of protest activities
on “the public sidewalks surrounding” City Hall. See Hotel Emps., 311
F.3d at 556 (concluding that leafletting restriction was not
unreasonable, “especially . . . where neighboring [parks], and the
public sidewalks surrounding Lincoln Center, provide ample
alternative venues for groups . . . who wish to voice their views”).
Indeed, photographs of Plaintiffs’ signs (depicted in Exhibit 1 to the
Complaint) indicate that Plaintiffs were able to prominently display
their signs in the public walkways surrounding City Hall; Plaintiffs’
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No. 22-664-cv
signs were thus not hidden from council members or attendees of the
Common Council meeting, who could easily view the signs as they
entered City Hall.
The Complaint contains only two allegations that could be
construed as supporting Plaintiffs’ claim that the sign prohibition was
unreasonable. First, Plaintiffs point out that their signs were “neither
obscene, vulgar [n]or disruptive,” and, second, they assert that the
sign ban was “overbroad” because it was not limited to prohibiting
signs that disrupted the meetings. J. App’x 8. However, the signs
referenced in Exhibit 1 to the Complaint do appear to have the
potential for disrupting the orderliness of the proceedings. They
include life-sized puppets as well as large (2+ foot-wide) cardboard
posters, which—particularly when wielded by many individuals at
once—could have been visually disruptive and interfered with the
decorum of the meetings. While Plaintiffs claim that signs generally
are “less disruptive or intrusive than public comments,” Plaintiffs’ Br.
at 13, this self-serving assertion disregards how different forms of
communication can facilitate or undermine the purpose of a forum.
For example, verbal or written comments may improve civil
discourse by requiring individuals to articulate and defend their
positions on the legislative record, while the use of signs may reduce
discussion to one-line slogans.
Plaintiffs insist that their signs should be analogized to
“clothing, buttons, or hats with political messages,” which can be
viewed during the duration of the meetings without disruption. Id.
at 27–28. Plaintiffs also cite Norse v. City of Santa Cruz, 629 F.3d 966(9th Cir. 2010) for the proposition that the sign prohibition unlawfully
“silenced Plaintiffs who would have otherwise displayed their signs
and posters for the duration of the meeting, even following the public
comments.” Plaintiffs’ Br. at 31. But we easily discern a difference
between such small, personal items as clothing, buttons, and hats and
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No. 22-664-cv
signs and posters (which tend to be larger and more distracting). See
Bd. Of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 576 (1987)
(noting that the wearing of symbolic clothing is “nondisruptive
speech”); see also Cohen v. California, 403 U.S. 15 (1971). Plaintiffs are
also mistaken in their assertion that they have a right to offer silent
public comment throughout Common Council meetings. Norse v.
City of Santa Cruz—in which the plaintiff challenged his ejection from
a city council meeting for giving a Nazi salute after the public
comment period had closed—does not support Plaintiffs’ argument
on this point. See Norse, 629 F.3d at 970. That case concerned
viewpoint discrimination, see id. at 976, which is not at issue here; the
case does not stand for the principle that members of the public have
a right to offer comment in any form they desire throughout public
meetings.
The argument that the sign prohibition is unreasonable because
it is not the least restrictive means of furthering the City’s interest is
likewise meritless. In a limited public forum, a reasonable restriction
“need not be the most reasonable or the only reasonable limitation.”
Make The Rd. by Walking, 378 F.3d at 147 (internal quotation marks
omitted). Here, although the Common Council could have instituted
more narrow restrictions on signs—such as confining sign-holders to
designated areas of the room, limiting the types and sizes of signs that
could be brought, or removing disruptive sign holders—the First
Amendment, under the reduced level of scrutiny applicable in a
limited public forum, does not require the Common Council to have
done so. 5
5 Many district courts have upheld similar sign prohibitions at public meetings.
See Madsen v. City of Lincoln, 574 F. Supp. 3d 683, 697–98 (D. Neb. 2021) (prohibition
on “posting signs” in city council chamber was intended to “expedite [the]
business” of the city council); Hunt v. City of Los Angeles, No. CV 12-7261 (DSF),
2012 WL 12548355, at *7–9 (C.D. Cal. Dec. 6, 2012) (prohibition on displaying
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No. 22-664-cv
In sum, the Complaint itself and common sense offer a
satisfactory rationale for the City’s sign prohibition, which
undermines Plaintiffs’ assertions of unreasonableness. To be sure,
there may be cases where restrictions on the form or manner of
speech—including the use of signs—in a limited public forum would
be unreasonable, but Plaintiffs have not pled such facts here.
CONCLUSION
We have considered Plaintiffs’ remaining arguments and find
them to be without merit. For the foregoing reasons, we AFFIRM the
judgment of the district court.
“signs, placards, and banners” at public board meetings was “enacted to protect
the Board’s legitimate interest in running efficient and orderly meetings”); We the
People, Inc., of the U.S. v. Nuclear Regulatory Commission, 746 F. Supp. 213, 216–19
(D.D.C. 1990) (Nuclear Regulatory Commission’s sign prohibition at public
meetings was reasonable in light of the meetings’ purpose, but Commission’s
selective enforcement of the prohibition indicated that the prohibition was
viewpoint-based).
15