Cox v. City of Charleston ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TIMOTHY COX, 
Plaintiff-Appellant,
and
CATHY RIDER,
Plaintiff,
v.
CITY OF CHARLESTON, SOUTH
CAROLINA; RUEBEN GREENBERG,
Individually and in his official
capacity as Chief of Police for the
City of Charleston; JOSEPH RILEY,
JR., Individually and in his official
capacity as Mayor of the City of
Charleston; CAPTAIN CHIN,
Individually and in his official
 No. 03-1782
capacity as an officer of the
Charleston Police Department;
OFFICER DAVIS, Individually and in
his official capacity as an officer of
the Charleston Police Department;
CITY OF TRAVELERS REST, South
Carolina; MANN BATSON,
Individually and in his official
capacity as Mayor of the City of
Travelers Rest; TIMOTHY CHRISTY,
Individually and in his official
capacity as Chief of Police for the
City of Travelers Rest,
Defendants-Appellees.

2 COX v. CITY OF CHARLESTON
TIMOTHY COX, 
Plaintiff-Appellee,
and
CATHY RIDER,
Plaintiff,
v.
CITY OF TRAVELERS REST, South
Carolina; MANN BATSON,
Individually and in his official
capacity as Mayor of the City of
Travelers Rest; TIMOTHY CHRISTY,
Individually and in his official
capacity as Chief of Police for the
City of Travelers Rest,
Defendants-Appellants,
and
 No. 03-1880
CITY OF CHARLESTON, SOUTH
CAROLINA; RUEBEN GREENBERG,
Individually and in his official
capacity as Chief of Police for the
City of Charleston; JOSEPH RILEY,
JR., Individually and in his official
capacity as Mayor of the City of
Charleston; CAPTAIN CHIN,
Individually and in his official
capacity as an officer of the
Charleston Police Department;
OFFICER DAVIS, Individually and in
his official capacity as an officer of
the Charleston Police Department,
Defendants.

COX v. CITY OF CHARLESTON 3
Appeals from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CA-01-3807-18-AJ-2)
Argued: May 25, 2005
Decided: July 26, 2005
Before WILKINS, Chief Judge, and TRAXLER and
KING, Circuit Judges.
Affirmed by published opinion. Chief Judge Wilkins wrote the opin-
ion, in which Judge Traxler and Judge King joined.
COUNSEL
ARGUED: Samuel Thurston Towell, Third Year Law Student, UNI-
VERSITY OF VIRGINIA SCHOOL OF LAW, Appellate Litigation
Clinic, Charlottesville, Virginia, for Appellant/Cross-Appellee. Robin
Lilley Jackson, STUCKEY LAW OFFICES, P.A., Charleston, South
Carolina; Charles Franklin Turner, Jr., CLARKSON, WALSH,
RHENEY & TURNER, P.A., Greenville, South Carolina, for
Appellees/Cross-Appellants. ON BRIEF: Neal L. Walters, UNIVER-
SITY OF VIRGINIA SCHOOL OF LAW, Appellate Litigation
Clinic, Charlottesville, Virginia, for Appellant/Cross-Appellee. Letitia
H. Verdin, CLARKSON, WALSH, RHENEY & TURNER, P.A.,
Greenville, South Carolina, for Appellees/Cross-Appellants City of
Travelers Rest, South Carolina, Timothy Christy, Individually and in
his official capacity as Chief of Police for the City of Travelers Rest,
and Mann Batson, Individually and in his official capacity as Mayor
of the City of Travelers Rest; James A. Stuckey, Charleston, South
Carolina, for Appellees/Cross-Appellants City of Charleston, South
Carolina, Rueben Greenberg, Individually and in his official capacity
as Chief of Police for the City of Charleston, Joseph Riley, Jr., Indi-
vidually and in his official capacity as Mayor of the City of Charles-
4 COX v. CITY OF CHARLESTON
ton, Captain Chin, Individually and in his official capacity as an
officer of the Charleston Police Department, and Officer Davis, Indi-
vidually and in his official capacity as an officer of the Charleston
Police Department.
OPINION
WILKINS, Chief Judge:
The City of Travelers Rest, South Carolina (the City), has a signifi-
cant interest in ensuring that its streets and sidewalks remain safe,
orderly, and accessible. See Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753, 768 (1994). This case concerns whether a local parade
ordinance, enacted by the City to effectuate that significant interest,
is consistent with the First Amendment. The City appeals a decision
of the district court striking down two sections of the ordinance as
facially unconstitutional. Timothy Cox appeals a decision of the dis-
trict court dismissing his as-applied challenge to the ordinance and
rejecting his claim for damages. For the reasons set forth below, we
affirm.
I. Facial Challenge
Cox is a citizen of South Carolina who frequently engages in pro-
tests throughout the state. In June 2001, he and approximately 15 like-
minded individuals were standing on a public sidewalk in the City,
holding signs, praying, sharing their religious beliefs, and handing out
pamphlets that advocated alternatives to abortion. Though never
arrested, the demonstrators were informed by Travelers Rest police
officers that they were in violation of Travelers Rest Ordinance ch.
7.16 (the Ordinance), which provides that "[i]t is unlawful for any
person to organize, hold or participate in any parade, meeting, exhibi-
tion, assembly or procession of persons and/or vehicles on the streets
or sidewalks of the city, unless such activity shall have first been
authorized by a written permit." Travelers Rest, S.C., Ordinance
§ 7.16.020.1 Cox filed this action challenging the Ordinance as
1
The Ordinance is reproduced in its entirety in an appendix to this
opinion.
COX v. CITY OF CHARLESTON 5
facially unconstitutional under the First Amendment. See U.S. Const.
amend. I. The district court ruled that the Ordinance violated the First
Amendment "to the extent that [it] require[d] small gatherings,
including sole protestors, to obtain a permit before protesting in a
public forum," J.A. 483,2 and to the extent that it prohibited issuing
permits for Ordinance-identified activities that would occur between
8:00 a.m. and 1:00 p.m. on Sundays, see Ordinance § 7.16.090. We
agree with the district court that both of these sections of the Ordi-
nance violate the First Amendment.
An ordinance that requires individuals or groups to obtain a permit
before engaging in protected speech is a prior restraint on speech. See
Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969).
Although a city may be "justified in setting forth regulations and ordi-
nances requiring advance parade permits as a traditional exercise of
control by the local government," Reyes v. City of Lynchburg, 300
F.3d 449, 454 (4th Cir. 2002), "any permit scheme controlling the
time, place, and manner of speech must not be based on the content
of the message, must be narrowly tailored to serve a significant gov-
ernmental interest, and must leave open ample alternatives for com-
munication," Forsyth County v. Nationalist Movement, 505 U.S. 123,
130 (1992). To be narrowly tailored, an ordinance "need not be the
least restrictive or least intrusive means of" effectuating the relevant
interests, Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989),
but it may not "burden substantially more speech than is necessary to
further the government’s legitimate interests," id. at 799. As a prior
restraint, the Ordinance is laden with "a heavy presumption against its
constitutional validity," Bantam Books, Inc. v. Sullivan, 372 U.S. 58,
70 (1963), and the City bears the burden of proving its constitutional-
ity, see New York Times Co. v. United States, 403 U.S. 713, 714
(1971) (per curiam).
The district court ruled, and neither party questions on appeal, that
the Ordinance is not content-based and that it leaves open ample alter-
natives for communication. Thus, the only issue before us is whether
the district court correctly decided that the Ordinance is not narrowly
2
For the same reason, the district court ruled facially unconstitutional
a similar statute in Charleston, South Carolina, that Cox had also chal-
lenged. The City of Charleston is not a party to this appeal.
6 COX v. CITY OF CHARLESTON
tailored to the extent that it applies to small gatherings of individuals
and to the extent that it absolutely prohibits the Ordinance-identified
activities on Sunday mornings.
A. Lack of Small-Gathering Exception
This circuit has not yet decided whether a permit requirement that
does not contain an exception for small gatherings can nevertheless
be narrowly tailored to effectuate a city’s legitimate interest in main-
taining the safety, order, and accessibility of its streets and sidewalks.
In United States v. Johnson, 159 F.3d 892 (4th Cir. 1998), however,
we upheld a permit requirement that applied to groups of 75 or more
seeking access to, and use of, National Forest System land. See John-
son, 159 F.3d at 895-96. There, the Department of Agriculture argued
that its permit requirement was necessary for three purposes: "to (1)
protect resources and improvements on National Forest System lands,
(2) allocate space among potential or existing uses and activities, and
(3) address concerns of public health and safety." Id. at 895 (internal
quotation marks omitted). We ruled that "[t]he permit requirement
serves these three goals in a narrowly tailored manner by providing
a minimally intrusive system to notify Forest Service personnel of any
large groups that will be using the forest." Id. at 896 (emphasis
added).
Unlike the permit requirement at issue in Johnson, the Ordinance
is not limited to large groups. The City concedes that the Ordinance
applies to gatherings of only a few people and that on at least one
occasion a group of only three applied for a permit. However, the City
disputes the conclusion of the district court that the Ordinance applies
even to only one individual protester. The City argues that the Ordi-
nance can only be reasonably read to apply to expression by more
than one person, emphasizing that the Ordinance prohibits only a "pa-
rade, meeting, exhibition, assembly or procession of persons and/or
vehicles . . . ." Ordinance § 7.16.020 (emphasis added).3
3
Without deciding the issue, we find support for the district court inter-
pretation of the Ordinance as applying not only to gatherings involving
multiple persons but also to single-person activities. The plural terms
"persons" and "vehicles" are more naturally read to modify only "proces-
COX v. CITY OF CHARLESTON 7
We need not choose between these competing interpretations, for
even if we accept the City’s interpretation, we nevertheless believe
that the unflinching application of the Ordinance to groups as small
as two or three renders it constitutionally infirm. It is worth noting,
first, that the Ordinance applies to political speech, which "is at the
core of the First Amendment," Shapero v. Ky. Bar Ass’n, 486 U.S.
466, 483 (1988). The burdens placed on such treasured expression by
the Ordinance are substantial. "Both the procedural hurdle of filling
out and submitting a written application, and the temporal hurdle of
waiting for the permit to be granted may discourage potential speak-
ers." Grossman v. City of Portland, 33 F.3d 1200, 1206 (9th Cir.
1994). And, "because of the delay caused by complying with the per-
mitting procedures, immediate speech can no longer respond to
immediate issues." Id. (alteration & internal quotation marks omitted).
The City argues that the Ordinance need not contain a small-
gathering exception because "[s]afety issues remain whether the
parade or protest is large or small." Appellees/Cross-Appellant’s Joint
Answering & Opening Br. (City Br.) at 22. "Some small but particu-
larly inflammatory protests may be a greater security concern than
even much larger ones," the City argues, and "[s]mall towns with lim-
ited resources" need advance warning of even small protests to ade-
quately police the events. Id. at 22-23. But, the City fails to explain
how a small demonstration that may become inflammatory would tax
its police force any differently than, for example, a street fight
between two individuals, so as to justify requiring advance warning
of all small demonstrations. While it may be true that the permit
requirement succeeds in mitigating the potential of any of the activi-
ties listed in the Ordinance to threaten the safety, order, and accessi-
bility of city streets and sidewalks, "it does so at too high a cost,
namely, by significantly restricting a substantial quantity of speech
that does not impede [the City’s] permissible goals." Cmty. for Cre-
ative Non-Violence v. Turner, 893 F.2d 1387, 1392 (D.C. Cir. 1990).
sion" in the series of examples set forth in the Ordinance; to read the
Ordinance otherwise would lead to awkward and unreasonable results.
For example, if the plural terms "persons" and "vehicles" were read to
modify the entire series of examples—rather than modifying only
"procession"—the Ordinance would contemplate a "meeting" of "vehi-
cles," which is an unlikely if not impossible occurrence.
8 COX v. CITY OF CHARLESTON
A few simple examples illustrate the overbreadth of the Ordinance.
Consider three friends who are walking along the sidewalk in down-
town Travelers Rest. They come upon a newspaper stand displaying
a headline that outrages them. So moved by the headline, they walk
to the end of the street and hold up handmade signs protesting the
headline. Even if their expression does nothing to disturb the peace,
block the sidewalk, or interfere with traffic, the Ordinance renders it
criminal. See Grossman, 33 F.3d at 1206 ("Spontaneous expression,
which is often the most effective kind of expression, is prohibited by
the [O]rdinance."). Only had they first visited the city administrator
(assuming his office was open at the time), filed the appropriate per-
mit application, and obtained a permit would the threesome have been
permitted under the Ordinance to engage in the protest. Similarly, the
Ordinance criminalizes a small meeting of individuals who gather on
the sidewalk in Travelers Rest to hand out religious tracts without
first obtaining a permit, even if their expression does nothing to dis-
turb or disrupt the flow of sidewalk traffic. Indeed, any group of indi-
viduals who gather together on the sidewalks for a "meeting" or
"assembly"—no matter how innocuous—is in violation of the Ordi-
nance unless the group first obtains a permit from the city administra-
tor. Because the City has not established why burdening such
expression is necessary to facilitate its interest in keeping its streets
and sidewalks safe, orderly, and accessible, we hold that the Ordi-
nance "burden[s] substantially more speech than is necessary to fur-
ther the government’s legitimate interests," Ward, 491 U.S. at 799,
and therefore facially violates the First Amendment. Accord Gross-
man, 33 F.3d at 1205-08 (permit requirement not narrowly tailored
when it applied to groups as small as "six to eight"); Turner, 893 F.2d
at 1392 (permit requirement not narrowly tailored when it applied to
groups as small as two); see also Douglas v. Brownell, 88 F.3d 1511,
1524 (8th Cir. 1996) (expressing doubt that permit requirement was
narrowly tailored when it applied to groups as small as ten).
Although we affirm the decision of the district court that the Ordi-
nance is facially unconstitutional to the extent that it applies to small
groups, we decline Cox’s invitation to announce a numerical floor
below which a permit requirement cannot apply. The relevant legisla-
tive body (the city council here) is the proper forum for balancing the
multitude of factors to be considered in determining how to keep the
streets and sidewalks of a city safe, orderly, and accessible in a man-
COX v. CITY OF CHARLESTON 9
ner consistent with the First Amendment. We emphasize, however,
that cities have a number of tools at their disposal to meet that goal.
Rather than enforcing a prior restraint on protected expression, cities
can enforce ordinances prohibiting and punishing conduct that dis-
turbs the peace, blocks the sidewalks, or impedes the flow of traffic.
See, e.g., Cox v. New Hampshire, 312 U.S. 569, 574 (1941) ("One
would not be justified in ignoring the familiar red traffic light because
he thought it his religious duty to disobey the municipal command or
sought by that means to direct public attention to an announcement
of his opinions."); see also Cox v. Louisiana, 379 U.S. 559, 574
(1965) ("Nothing we have said here . . . is to be interpreted as sanc-
tioning riotous conduct in any form or demonstrations, however
peaceful their conduct or commendable their motives, which conflict
with properly drawn statutes and ordinances designed to . . . regulate
traffic . . . ."). Cities can also pass ordinances that "regulate only the
volume, location, or duration of [protected] expression," rather than
subjecting all speech to a permit requirement. Turner, 893 F.2d at
1393. And, if the legislative body determines that a permit require-
ment is absolutely necessary to effectuate the relevant goals, it should
tailor that requirement to ensure that it does not burden small gather-
ings posing no threat to the safety, order, and accessibility of streets
and sidewalks. Or, it could require a permit "only when [c]ity services
are required because the event interferes with normal vehicular or
pedestrian traffic," thereby "link[ing] the permit requirement to its
practical justification." Grossman, 33 F.3d at 1207 (internal quotation
marks omitted). At bottom, the legislative body can enact a permit
requirement that burdens expression only to the extent necessary to
effectuate the city’s significant interests, and no more so.
B. Prohibition on Sunday Morning Permits
The district court also ruled that the Ordinance was not narrowly
tailored to the extent that it prohibited issuing permits for activities
that would occur between 8:00 a.m. and 1:00 p.m. on Sundays. See
Ordinance § 7.16.090. "[The City] has not explained how its absolute
ban on Sunday morning parades serves its stated purposes of safety
and preserving order in the community," the court emphasized. J.A.
485.
The City argues that § 7.16.090 is narrowly tailored because "re-
quiring additional officers to be on patrol for a Sunday morning
10 COX v. CITY OF CHARLESTON
parade or protest would likely stretch an already small department."
City Br. at 25. But the City offers no explanation in its brief as to why
it failed to establish this in the district court. Only during oral argu-
ment did the City suggest that it had been unaware that Cox was chal-
lenging § 7.16.090 specifically, and therefore it did not attempt to
defend this section in the district court.
We acknowledge that the pleadings filed in the district court by
Cox—who was then proceeding pro se4—were at times difficult to
interpret. However, we believe for several reasons that it was clear
from Cox’s complaint that he was challenging the entire Ordinance,
including § 7.16.090. First, Cox’s complaint stated in the first para-
graph that he was challenging "the facial constitutionality of . . . Sec-
tions 7.16.010 through 7.16.090 of the Code of Ordinances for the
City." J.A. 13. And, in paragraphs 47, 48, 49, and 50 of his complaint,
Cox specifically alleged that § 7.16.090 is unconstitutional on its face.
Second, the entire Ordinance consists of only nine paragraphs, mak-
ing it fairly straightforward to determine and defend the provisions
Cox was challenging. Finally, both the magistrate judge to whom the
case was referred and the district court were able to determine, based
on Cox’s pleadings, that he was challenging § 7.16.090. Because the
City failed to meet its burden in the district court of demonstrating
justification for that provision, we are compelled to affirm the deci-
sion holding it unconstitutional.
II. As-Applied Challenge
Cox also claims that the Ordinance was unconstitutional as it was
applied against him during the protest in June 2001. The magistrate
judge concluded that Cox had "no standing to maintain an ‘as applied’
constitutional challenge to the instant ordinance[ ]" because he had
neither been denied a permit nor arrested for demonstrating without
one. Id. at 370. The district court affirmed this conclusion on the
ground that Cox had failed to object to it. The court explained that
Cox had repeatedly asserted in his objections to the magistrate’s
report that the only issue before the district court was his facial chal-
lenge to the Ordinance.
4
Cox has since been appointed counsel.
COX v. CITY OF CHARLESTON 11
Cox argues that his objections to the report must be liberally con-
strued because he was proceeding pro se at the time. See Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even affording Cox the
leeway he deserved as a pro se plaintiff, however, we agree with the
district court that Cox did not adequately object to the magistrate
judge’s conclusion that he lacked standing to bring an as-applied chal-
lenge to the Ordinance. Near the beginning of Cox’s objections to the
report, he emphasized that his "request for Partial Summary Judgment
is based only on the language of the [Ordinance]: not the events of
June . . . 2001." J.A. 399. Cox then focused almost the entirety of his
written objections on the magistrate judge’s rejection of his facial
challenge. While one or two sentences in Cox’s objections may be
tortuously construed to pertain to the as-applied claim, we cannot say
that the district court erred in concluding that Cox failed to object to
the magistrate’s conclusion regarding that claim. Cf. Weller v. Dep’t
of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) ("While pro se com-
plaints may represent the work of an untutored hand requiring special
judicial solicitude, a district court is not required to recognize obscure
or extravagant claims defying the most concerted efforts to unravel
them." (internal quotation marks omitted)).5
III.
For the reasons stated above, we affirm the decision of the district
court striking down two sections of the Ordinance as facially uncon-
stitutional and affirm the dismissal of Cox’s as-applied claim.
AFFIRMED
5
Because the district court dismissed Cox’s as-applied challenge, the
court also rejected Cox’s claim for damages arising out of any constitu-
tional violation that he suffered. As we affirm the decision of the district
court dismissing Cox’s as-applied claim, we also affirm its decision
rejecting Cox’s claim for damages
12 COX v. CITY OF CHARLESTON
APPENDIX
Chapter 7.16
ASSEMBLIES, PARADES,
PROCESSIONS AND EXHIBITIONS
Sections:
7.16.010 Enforcement.
7.16.020 Permit required.
7.16.030 Application for permit.
7.16.040 Contents of permit.
7.16.050 Matters considered in determining
issuance of permit.
7.16.060 Issuance.
7.16.070 Deviation from permit.
7.16.080 Display of permit.
7.16.090 Restrictions on hours.
7.16.010 Enforcement.
Nothing contained in this chapter shall prohibit the
authority of any officer to arrest a person engaged in any act
or activity granted a permit under this chapter, if the conduct
of such person violates the laws of the state, provisions of
this code or other ordinances of the city, or unreasonably
obstructs the public streets and sidewalks of the city, or
engages in acts that cause a breach of the peace. (Prior code
§ 7-4-1)
7.16.020 Permit required.
It is unlawful for any person to organize, hold or partici-
pate in any parade, meeting, exhibition, assembly or proces-
sion of persons and/or vehicles on the streets or sidewalks
of the city, unless such activity shall have first been autho-
rized by a written permit. (Prior code § 7-4-2)
COX v. CITY OF CHARLESTON 13
7.16.030 Application for permit.
Any person desiring a permit required by the provisions
of this chapter shall make application therefore to the city
administrator, not less than seventy-two hours in advance of
the time and date of the intended assembly, parade, proces-
sion or exhibition. The application shall contain the follow-
ing information:
(1) The name and address of the applicant;
(2) The name and address of the person the applicant
represents;
(3) The exact time and date of commencement and
termination of each act or activity desired;
(4) The purpose, location and route of such act or
activity, if applicable;
(5) The person, group, association or body to be
authorized under the permit to do such act or activity and
the number of persons to participate; and
(6) Such other relevant information as the city
administrator may require for the investigation of the
applicant. (Ord. O-28-92 § 2, 1992)
7.16.040 Contents of permit.
The permit shall contain all information contained in the
application and shall be signed by the city administrator. A
signed copy of the permit shall be kept with the application,
both on file in the office of the city administrator. (Prior
code § 7-4-4)
7.16.050 Matters considered in
determining issuance of
permit.
In deciding whether to issue a permit under the provisions
of this chapter, the city administrator shall consider:
(1) The number of persons to participate;
(2) The anticipated traffic conditions at the time and date
proposed for the activity;
14 COX v. CITY OF CHARLESTON
(3) The schedule of other similar activities for which
permits may have been issued;
(4) The adequacy of adult supervision for any minor
scheduled to participate;
(5) The availability of city personnel whose presence on
duty may be required by the activity and by the necessity to
protect the general public; and
(6) The adequacy of public facilities in the location
proposed for the activity to accommodate the proposed
activity and the normal public use of public facilities in the
proposed location. (Prior code § 7-4-5)
7.16.060 Issuance.
The permit required by the provisions of this chapter shall
be issued by the city administrator within forty-eight hours
of his receipt of a completed application; provided,
however, such permit may be denied or refused, if it shall
appear that the act or activity requested by such application
shall be violative of any applicable provision of this code,
state law, or other provision of law. (Ord. O-28-92 § 3,
1992)
7.16.070 Deviation from permit.
It is unlawful for any person participating in any act or
activity for which a permit has been granted under the
provisions of this chapter to deviate from or alter any of the
terms or contents of such permit. (Prior code § 7-4-7)
7.16.080 Display of permit.
Every person having a permit issued under the provisions
of this chapter shall have such permit in his possession
during the activity permitted thereby and shall display such
permit upon the request of any public safety officer. Failure
to display such permit shall be deemed a misdemeanor.
(Prior code § 7-4-8)
COX v. CITY OF CHARLESTON 15
7.16.090 Restrictions on hours.
No parade, meeting, exhibition assembly or procession of
person and/or vehicles on streets or sidewalks of the city
shall be permitted except between the hours of eight a.m.
and eight p.m., Monday through Saturday, and between the
hours of one p.m. and eight p.m. on Sunday. (Ord. O-28-92
§ 4, 1992)