John McGlone v. Metro. Gov't of Nashville ( 2018 )


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  •                          NOT RECOMMENDED FOR PUBLICATION
    File Name: 18a0472n.06
    No. 17-6291
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    JOHN MCGLONE;             JEREMY      PETERS,
    as )
    FILED
    Sep 19, 2018
    individuals,                          )
    )                                   DEBORAH S. HUNT, Clerk
    Plaintiffs-Appellants,           )
    )
    v.                                    )                         ON APPEAL FROM THE
    )                         UNITED STATES DISTRICT
    METROPOLITAN           GOVERNMENT OF )                          COURT FOR THE MIDDLE
    NASHVILLE AND DAVIDSON COUNTY, )                                DISTRICT OF TENNESSEE
    TENNESSEE,                            )
    )
    Defendant-Appellee.              )
    BEFORE:        BATCHELDER, MOORE, and LARSEN, Circuit Judges.
    ALICE M. BATCHELDER, Circuit Judge. John McGlone and Jeremy Peters were
    ordered to leave a public sidewalk, or else face arrest, for preaching against homosexuality outside
    of an LGBTQ pride festival in downtown Nashville. Nashville enforced this restriction against
    the preachers because of the anti-homosexuality content of their speech. Because Nashville’s
    action does not survive strict scrutiny, it violated McGlone and Peters’ free speech rights protected
    by the First Amendment. The district court erred in finding otherwise. We REVERSE.
    I.
    Factual Background
    The central facts of this litigation are not in dispute. The Nashville Pride Festival (“Pride
    Festival”) was held on June 26 and 27, 2015, at Public Square Park in downtown Nashville. The
    stated purpose of the Pride Festival was “to celebrate the culture and community of the LGBTQ
    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    people in Nashville in a safe space.” The Pride Festival applied for and received a special events
    permit. As part of its application for the permit, the Pride Festival submitted a security action plan,
    which was completed by Comprehensive Security (“Comprehensive”), a private security
    company, and approved by the Metropolitan Nashville Police Department (“MNPD”). The Pride
    Festival provided a community-notification letter, as required by the application process, which
    identified MNPD Lieutenant David Corman as the contact person for any question related to
    security.
    The Pride Festival was a ticketed event with ingress and egress areas around the perimeter
    of Public Square Park. The ticketed area was marked off with fencing and barricades that
    controlled access, but the permitted area extended beyond the fence lines and included the area
    central to this dispute—the sidewalk plaza near the fountains in front of Public Square Park.
    McGlone and Peters believe homosexuality is sinful, and they regularly preach at public
    events using bullhorns and amplification equipment. Prior to the 2015 Pride Festival, Peters
    emailed Lt. Corman, informing him of the preachers’ intent to spread their message outside of the
    Pride Festival on Public Square Park’s sidewalks. Lt. Corman emailed back: “The organizers
    secured a sidewalk lane and road closure surrounding the event site, and it would appear that you
    need to conduct your activities on the other side of the road.” Testimony from Comprehensive’s
    owner indicates that Lt. Corman’s email was forwarded to Comprehensive’s security officers,
    putting them on notice that the preachers were to remain on the opposite side of the street.
    On June 27, 2015, McGlone and Peters, along with a number of supporters who are not
    involved in this litigation, went to the sidewalks of Public Square Park to preach. The sidewalk
    area was open to the public; no one had to pay to be there. A few minutes after McGlone and
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    Peters began preaching, they were confronted by Josh Crowe, an off-duty police officer, employed
    by Comprehensive as security for the festival.
    Crowe, following instructions provided by MNPD, told McGlone and Peters that they were
    not allowed to be in the sidewalk area and that they would be arrested if they remained. Their
    presence did not block people from queuing in line for the Pride Festival or force people to step
    into traffic. Only the preachers and those affiliated with them were told to leave. Together with
    their retinue, McGlone and Peters retreated to the sidewalk across the street from Public Square
    Park, and from that area preached for the next four to five hours. They claim that their message,
    communicated from across the street, was interfered with by “deflection” and the noise of passing
    traffic.
    Procedural History
    McGlone and Peters filed this action in federal court on April 14, 2016, alleging that the
    Metropolitan Government of Nashville and Davidson County, Tennessee (“Nashville”), violated
    their First Amendment rights to freedom of speech and the free exercise of religion by barring
    them from the Public Square Park. After discovery, McGlone and Peters filed for summary
    judgment, as did Nashville. The district court ruled in favor of Nashville. The preachers appealed.
    II.
    We review a district court’s grant of summary judgment de novo. Farhat v. Jopke, 
    370 F.3d 580
    , 587 (6th Cir. 2004). “The court shall grant summary judgment 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.” Fed. R. Civ. P. 56(a); Saieg v. City of Dearborn, 
    641 F.3d 727
    , 733 (6th Cir. 2011).
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    III.
    This appeal raises two issues. First, whether McGlone and Peters’ right to free speech,
    protected by the First Amendment, was violated by their exclusion from Public Square Park.
    Second, whether Nashville is properly subject to municipal liability in this case.
    A.
    McGlone and Peters’ First Amendment Claim. The right of free people to express
    themselves without unjustified governmental restriction is enshrined in our First Amendment.
    U. S. CONST. amend. I. (“Congress shall make no law . . . abridging the freedom of speech . . . .”).
    Under the Supreme Court’s jurisprudence, the First Amendment’s protection of speech applies
    against the states and their political subdivisions, such as Nashville. See Gitlow v. New York, 
    268 U.S. 652
    , 666 (1925); see also Lovell v. City of Griffin, 
    303 U.S. 444
    , 450 (1938).
    Three inquiries guide courts in ascertaining whether First Amendment free speech rights
    have been violated: (1) whether the allegedly excluded speech is protected under the First
    Amendment; (2) the nature of the forum in which the speech was to take place; and (3) whether
    the government’s exclusion is justified under the requisite standard. See Cornelius v. NAACP
    Legal Defense and Educ. Fund., 
    473 U.S. 788
    , 797 (1985); see also 
    Saieg, 641 F.3d at 734-35
    .
    The parties agree that the First Amendment protects McGlone and Peters’ speech and that the
    sidewalk area in question is a traditional public forum. The question in this case is whether
    Nashville’s exclusion of the preachers from Public Square Park can be justified under the
    applicable level of constitutional scrutiny.
    We review restrictions of protected speech in a traditional public forum using one of two
    standards. 
    Saieg, 641 F.3d at 733-35
    . If the restriction is content based, then we apply strict
    scrutiny, 
    id. at 734,
    and the restriction survives only if it is “narrowly tailored to be the least-
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    restrictive means available to serve a compelling government interest,” Bible Believers v. Wayne
    Cty, 
    805 F.3d 228
    , 248 (6th Cir. 2015) (en banc). If instead the restriction is a content-neutral
    regulation of the time, place, and manner of speech, then we evaluate it under an intermediate
    scrutiny standard, asking whether the restriction is “narrowly tailored to serve a significant
    government interest, and leave[s] open ample channels of communication.” 
    Saieg, 641 F.3d at 735
    . McGlone and Peters say our scrutiny of Nashville’s actions should be strict, Nashville argues
    that it should be intermediate.
    McGlone and Peters are right. Strict scrutiny applies because Nashville’s restriction of
    McGlone and Peters’ speech was content based. “Government regulation of speech is content
    based if a law applies to particular speech because of the topic discussed or the idea or message
    expressed.” Reed v. Town of Gilbert, 
    135 S. Ct. 2218
    , 2227 (2015).1 On the other hand,
    “[g]overnment regulations of speech are content neutral if they are ‘justified without reference to
    the content or viewpoint of the regulated speech.’” 
    Saieg, 641 F.3d at 735
    (quoting Christian
    Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 
    561 U.S. 661
    , 696
    (2010)).
    Nashville argues that its speech restrictions were not content based because Nashville’s
    reasons for excluding McGlone and Peters from the public sidewalk area were unrelated to the
    1 There is a distinction between content-based and viewpoint discrimination, but that distinction becomes
    salient when the speech is restricted in a non-public forum. See Perry Educ. Assn. v. Perry Local Educators’ Assn.,
    
    460 U.S. 36
    , 48-49 (1983). Viewpoint discrimination is succinctly described in Rosenberger v. Rector and Visitors
    of the University of Virginia, where the Court said:
    When the government targets not subject matter, but particular views taken by speakers on a subject,
    the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an
    egregious form of content discrimination. The government must abstain from regulating speech
    when the specific motivating ideology or the opinion or perspective of the speaker is the rationale
    for the restriction.
    
    515 U.S. 819
    , 829 (1995) (citations omitted). The action taken against McGlone and Peters likely falls within the
    “viewpoint discrimination” subcategory of content discrimination, but in this case, because all agree that Public Square
    Park is a traditional public forum, the distinction between the two is a distinction without a difference. We refer in
    this opinion, therefore, only to content discrimination.
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    content of their speech.          Nashville offers three purportedly non-content-based reasons for
    excluding the preachers. First, the preachers’ message of “intolerance of homosexuality interfered
    with the message of the Festival.” Second, the location of the speech “created an obstruction to
    ingress and egress.” Third, the fact that McGlone and Peters’ message drew crowds created a
    danger to public safety.
    The inquiry into content neutrality can begin and end with the first purpose given.
    Nashville argues that the preachers’ “intolerance of homosexuality” justified restricting their
    speech. At oral argument before the district court, Nashville explained why it was particularly the
    content of the preachers’ speech that justified their exclusion:
    Your honor, I would disagree that [the preachers] didn’t interfere in sort of the
    general sense of the term because this is a case where you have one expressive
    message versus another expressive message. And part of Pride’s expressive
    message, as their president told us in his deposition, is to promote community, love
    and acceptance of LGBT – LGBTQ people in a safe space. And the Pride Festival
    is how we express that. It’s no longer a safe space, which is part of the expressive
    message, when you have people standing there telling them they’re going to hell,
    telling them that they’re there to judge them. I mean, they can say they’re preaching
    all they want to. It’s hate speech, which is still protected under the First
    Amendment, I guess, but let’s not pretend they’re out there just handing out leaflets,
    Your Honor. It’s not a safe space, which is part of the purpose of the festival, when
    that is in the very area where you queue.
    (Emphasis added.)2 Nashville’s explanation leaves no doubt that but for the anti-homosexuality
    message that McGlone and Peters were advancing as they stood on the sidewalk, they would not
    have been excluded.
    How, then, can Nashville argue that its restriction of the preachers’ speech was not content
    based?       Nashville argues that such discrimination is protected under Sistrunk v. City of
    2 Nashville’s “guess” is correct. Speech deemed hateful and offensive is not only still protected by the First
    Amendment, it is the speech most in need of First Amendment protection. Texas v. Johnson, 
    491 U.S. 397
    , 414 (1989)
    (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the
    expression of an idea simply because society finds the idea itself offensive or disagreeable.”).
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    Strongsville, 
    99 F.3d 194
    (6th Cir. 1996), which in turn relies on the Supreme Court’s decision in
    Hurly v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 
    515 U.S. 557
    (1995). But
    those cases are simply inapposite, and Nashville’s reliance on them is misplaced. The Hurley
    decision struck down a public accommodations law that forced the South Boston Allied War
    Veterans Council (“Council”) to include the Irish-American Gay, Lesbian and Bisexual Group of
    Boston (“GLIB”) in its St. Patrick’s Day parade. The Court reasoned that to do otherwise would
    essentially “require[] [the Council] to alter the expressive content of their parade.” 
    Hurley, 515 U.S. at 572-73
    . The Court held that such a result cannot be countenanced under the First
    Amendment because the parade organizers “ha[ve] autonomy to choose the content of [their] own
    message,” 
    id. at 573,
    and “when dissemination of a view contrary to one’s own is forced upon a
    speaker intimately connected with the communication advanced, the speaker’s right to autonomy
    over the message is compromised,” 
    id. at 576.
    The Court noted the significant risk that an observer
    of the parade would mistakenly attribute GLIB’s speech to the Council. 
    Id. at 577.
    Hurley
    acknowledges that while the First Amendment shields “a speaker who takes to the street corner to
    express his views,” it cannot be made into a sword that swings at the speech of others. 
    Id. at 579.
    GLIB’s demand to have a float in the parade would have cut into the Council’s right to speak.
    The same principle was at work in our decision in Sistrunk, where a high school student
    wearing a pro-Clinton pin sought to participate in a Bush-Quayle ‘92 campaign 
    rally. 99 F.3d at 196
    . We held that a requirement that participants in the rally not express pro-Clinton ‘92 messages
    was justified because, per Hurley, the high school student did not have a First Amendment right
    to participate in the speech of the permit holder: “To require that the organizers include buttons
    and signs for Bill Clinton in the demonstration would alter the message the organizers sent to the
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    media and other observers, even if the holders of signs and wearers of buttons did not otherwise
    interfere with the pro-Bush rally.” 
    Id. at 199.
    Sistrunk does not support Nashville’s position for two reasons. The distinction between
    demanding to participate in another’s speech and demanding merely to speak is a meaningful one,
    and the record here shows that McGlone and Peters sought only to do the latter. We see no risk
    that those attending the festival, or even ambling past Public Square Park, would have mistaken
    McGlone and Peters’ preaching for the speech of the Pride Festival. Nor did the preachers “alter
    the message the [Pride Festival] sent to the media and other observers.” 
    Id. Unlike, for
    example,
    a MAGA-hatted man claiming a First Amendment right to stand behind Hillary Clinton at a
    campaign rally, McGlone and Peters did not insist on entering the Pride Festival, let alone
    participating in the Pride Festival’s speech. They stood outside and expressed a contrary message.
    In doing so they were not attempting to participate in the Pride Festival’s speech.
    Second, Sistrunk concerned a permit that specifically granted the Bush-Quayle ’92
    Committee exclusive use of the grounds for their members and their invitees. That is not this case.
    While the area was permitted, the permit did not restrict access to the sidewalk to a special class
    of people; indeed, Nashville acknowledges that “the public was not banned from this sidewalk
    area.” See, e.g., Parks v. Finan, 
    385 F.3d 694
    , 698 (6th Cir. 2004).
    The district court did not cite Sistrunk or Hurley in finding in favor of Nashville. Instead,
    the district court concluded that Nashville’s exclusion of McGlone and Peters was a content-
    neutral regulation of the time, place, and manner of their speech. In arriving at this conclusion,
    the district court found it significant that:
    Lt. Corman simply stated that Plaintiff would need to preach from across the street because
    ‘the organizers secured a sidewalk lane and road closure.’ He did not say that Plaintiffs
    needed to 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
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    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.
    (Citations and alterations omitted.) But the superficially content-neutral justification provided by
    Lt. Corman and Crowe does not end our inquiry into whether there was content-based
    discrimination. In Parks v. City of Columbus, for instance, a similar purported justification did not
    survive a constitutional challenge: “When Officer Farr commanded Parks to move behind the
    barricaded area, he told Parks that the event sponsor did not want him there. The City offered no
    explanation as to why the sponsor wanted him removed.” 
    395 F.3d 643
    , 654 (6th Cir. 2005).
    MNPD’s saying “the organizers secured a sidewalk lane and road closure” when the preachers
    alone were threatened with arrest for remaining on Public Square Park’s sidewalk is as
    unpersuasive here as it was in Parks.3
    3  The district court also cited Startzell v. City of Philadelphia, 
    533 F.3d 183
    (3d Cir. 2008) to support its
    holding, but its reliance on Startzell is misplaced. Startzell explicitly disclaims the precise position that Nashville
    would have this court adopt: “It has been Philly Pride’s position that because it had a city permit to conduct OutFest,
    it had a correlative right to exclude from the OutFest those who hold contrary, indeed antagonistic, viewpoints . . .
    [a]s we make clear hereafter, that is not the holding of this opinion.” 
    Id. at 193-94.
    The Startzell court went on to
    hold that the police in that case were justified in enforcing OutFest’s permit by excluding protestors because, crucially,
    the protestors “used bullhorns and microphones in an attempt to drown out the platform speakers . . . directly addressed
    an OutFest attendee in a confrontational manner, and blocked access to the vendor booths.” 
    Id. at 199.
    Here, counsel
    for Nashville conceded at oral argument that “there was actually, interference not as in the sense of the Startzell case
    where somebody disrupted the acts on stage.” Startzell’s facts simply do not apply in this case.
    Recognizing that Startzell’s facts do not line up in salient respects with this case, the district court relied instead on an
    out-of-circuit non-precedent, Marcavage v. City of Philadelphia, 481 F. App’x 742 (3d Cir. 2012), which appears to
    contradict Third Circuit precedent in Starzell, as well as the precedent of this court.
    Marcavage held that a permitted gay-pride festival has a right to exclude those who hold contrary and antagonistic
    viewpoints even absent a significant showing that the protestors were disrupting the festival’s speech or blocking
    access for festival participants in some way. The Marcavage court attempted to reconcile this holding with Startzell
    with the following:
    While the disruption [the plaintiff] 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, and during
    the Equality Forum one of his associates had a physical encounter with an event participant.
    Marcavage, 481 F. App’x at 748.
    Attracting agitated crowds is not a constitutionally valid reason for suppressing protected speech. Bible 
    Believers, 805 F.3d at 252-53
    (“When a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile
    crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless
    behavior of the rioting individuals.”) (citing Watson v. City of Memphis, 
    373 U.S. 526
    , 535-36 (1963)). Whether the
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    Nashville’s purportedly content-neutral reasons for excluding McGlone and Peters also fail
    to persuade, and for similar reasons. Nashville conceded that McGlone and Peters did not deter or
    interfere with the Pride Festival’s ability to communicate within the gated area of the festival.
    Indeed, at oral argument in this appeal, Nashville’s counsel made a striking concession—that in
    counsel’s view, Nashville could have properly excluded McGlone and Peters from the permitted
    area merely for silently wearing anti-homosexuality t-shirts.
    Nashville’s position is not a surprise given the position it articulated at oral argument in
    the court below:
    The Court: What proof’s in the record that anybody who was supportive of Pride’s
    message was deterred at all by the plaintiffs’ speech?
    [Counsel for Nashville]: I don’t think that there is any [proof] in the record that
    they were deterred, and I don’t think that that is the standard. I think –
    The Court: Is there any proof that Pride’s expressive speech was in any way
    hindered because of what the plaintiffs were saying?
    [Counsel for Nashville]: The particular words, no. I think the expressive –
    The Court: All right.
    [Counsel for Nashville]: I think the video itself shows that the expressive message
    that homosexuals should have a safe place – I think that the video is evidence that
    that was hindered.
    (Emphasis added.) As this colloquy shows, the preachers did not “in any way hinder[]” the Pride
    Festival’s message except by disturbing a desired “safe space” by being physically present within
    the permitted area—though outside the ticketed area—and vocally disagreeing with the Pride
    Festival’s message.
    second piece of evidence—the “physical encounter” an associate had with an event participant—is sufficient to justify
    the restriction in Marcavage is a question the panel here need not decide; there is no allegation that McGlone or Peters
    physically confronted anyone.
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    In Parks, the plaintiff, and only the plaintiff, was excluded from a permitted event because
    he peacefully engaged in speech that the event organizers 
    disliked. 395 F.3d at 654
    . The Parks
    court found that exclusion content based. 
    Id. As in
    Parks, “the only difference between [the
    preachers] and the other patrons was . . . communicat[ion of] a religious message.” See 
    id. at 653-
    54. Removal in such circumstances is “difficult to conceive” of as anything other than removal
    based on “the content of [the preachers’] speech.”4 
    Id. at 654.
    As the record makes clear—indeed, as Nashville made explicit in the district court—
    Nashville’s exclusion of McGlone and Peters was a content-based restriction of speech in a
    traditional public forum. Strict scrutiny, then, is the proper standard for our review. Bible
    
    Believers, 805 F.3d at 248
    .
    Applying Strict Scrutiny
    “No state action that limits protected speech will survive strict scrutiny unless the
    restriction is narrowly tailored to be the least-restrictive means available to serve a compelling
    government interest.” 
    Id. It is
    Nashville’s burden to meet that test. 
    Reed, 135 S. Ct. at 2231
    .
    Nashville excluded McGlone and Peters from a traditional public forum for expressing a
    message opposed to homosexuality and Nashville provides no compelling reason for doing so.
    Indeed, Nashville does not even argue that its restriction of McGlone and Peters’ speech could
    4  The dissent argues that McGlone and Peters’ use of bullhorns was sufficiently disruptive to the Pride
    Festival’s permitted activities that Nashville could exclude McGlone and Peters from Public Square Park without
    engaging in a content-based restriction. Dissenting Opinion, at 11-12.
    The record simply does not support the conclusion that the preachers’ use of amplification equipment meaningfully
    interfered with the Pride Festival’s permitted activities—a point seemingly acknowledged by both parties to this
    litigation as well as the district court. At a minimum, Nashville did not meet its burden of showing that no genuine
    dispute exists as to whether the preachers’ conduct interfered with the Pride Festival’s permitted activities.
    The only way to conclude otherwise on this record is to agree with the approach Nashville advocates: that the mere
    presence of individuals communicating a message, whether silently or not, contrary to the message of the Pride
    Festival constitutes interference with the Pride Festival’s expressive message. The dissent appears to concur in our
    rejection of that position, but instead finds what we cannot—that there is no genuine dispute as to whether McGlone
    and Peters’ use of bullhorns interfered with the Pride Festival’s permitted activities.
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    survive strict scrutiny review. We therefore end our inquiry here. See 
    Parks, 395 F.3d at 654
    (“[B]ecause the City has not offered an interest, let alone a compelling one, to explain why it
    prohibited Parks from exercising his First Amendment rights in a traditional public forum . . . we
    need not reach the second prong of our strict scrutiny analysis.”). The restriction of McGlone and
    Peters’ speech violated the First Amendment.
    B.
    Nashville’s municipal liability. The district court’s opinion contained a footnote holding
    that “[t]o complete the record and for purposes of any appeal,” it rejected Nashville’s argument
    that it was not subject to municipal liability. Nashville argues that this was error.
    Local governmental units can be held liable only when “action pursuant to official
    municipal policy of some nature causes a constitutional tort.” Monell v. Dept. of Soc. Servs.,
    
    436 U.S. 658
    , 691 (1978). The district court found that requirement satisfied on the grounds that
    “[n]ot 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 [Nashville]. . . .”
    We agree with the district court. As this Court held in Bible Believers, “with respect to a
    single decision, municipal liability is appropriate ‘where the decisionmaker possesses final
    authority to establish policy with respect to the action 
    ordered.’” 805 F.3d at 260
    (citation
    omitted). In that case, Wayne County was held liable because its counsel drafted a letter to the
    Bible Believers preemptively sanctioning the decision of the police to remove the Bible Believers
    from the public forum. 
    Id. The question
    here is whether Lt. Corman, like the Wayne County counsel, possessed “final
    authority” with respect to the decision to bar the preachers from Public Square Park. 
    Id. As noted
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    by the district court, Lt. Corman communicated to the preachers in advance of the Pride Festival
    that the event permit granted by Nashville meant that the preachers were excluded from Public
    Square Park. Lt. Corman was not a random police official—he had “overseen special events within
    [Nashville] on behalf of MNPD” “[s]ince 2010.” Lt. Corman was listed as the contact person for
    any questions related to the security action plan in the Pride Festival’s required community
    notification letter. It was Lt. Corman’s email that directed Comprehensive’s security officers to
    exclude McGlone and Peters from Public Square Park. Tellingly, Nashville does not contest the
    district court’s findings regarding Lt. Corman.
    Even if Nashville had done so, Bible Believers compels us to accept the district court’s
    conclusion. We see no principled reason to distinguish Lt. Corman’s actions in this case from
    those of the Wayne County counsel. If anything, this case presents an easier call as Lt. Corman
    had more direct authority with respect to the action ordered than did the Wayne County counsel
    whose duties were admittedly advisory. 
    Id. Nashville argues
    that McGlone and Peters cannot establish municipal liability because
    Nashville has no formally promulgated “policy to ask someone to leave a public forum that is
    being used as part of a permitted event based solely upon any speech or religious view that he or
    she is expressing.” Further, according to Nashville, for municipal liability “there must be a pattern
    of unconstitutional conduct that is persistent and widespread in order to establish a policy or
    custom” while McGlone and Peters only allege “isolated incidents of unconstitutional conduct
    with regard to one special event.”
    Even if these underlying facts are true, they would not preclude municipal liability under
    this court’s precedent. We found municipal liability in Bible Believers without finding a formally
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    promulgated policy or a persistent pattern of unconstitutional conduct. 
    Id. The district
    court
    correctly rejected Nashville’s attempt to avoid municipal liability.
    IV.
    The district court’s judgment granting Nashville summary judgment is REVERSED and
    REMANDED for proceedings consistent with this opinion.
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    KAREN NELSON MOORE, Circuit Judge, dissenting. The First Amendment reflects
    “a profound national commitment to the principle that debate on public issues should be
    uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 
    376 U.S. 254
    , 270 (1964).
    But governing precedent also reflects a “recognizable privacy interest in avoiding unwanted
    communication,” Hill v. Colorado, 
    530 U.S. 703
    , 716 (2000), and it recognizes the corresponding
    legitimacy of appropriately motivated and tailored “restrictions on the time, place, or manner of
    protected speech,” Ward v. Rock Against Racism, 
    491 U.S. 781
    , 797 (1989). Because I believe
    that it was a reasonable time, place, and manner restriction for Defendant-Appellee Metropolitan
    Government of Nashville and Davidson County (“Metro”) to require Plaintiffs-Appellants John
    McGlone and Jeremy Peters (“the Preachers”) to cross a downtown street if they wished to
    continue shouting disruptive messages through bullhorns during a permit-authorized event in a
    public park, I respectfully dissent.
    I. BACKGROUND
    Because the majority has already explained the background of this case, I supplement its
    discussion of the facts only briefly here. In recent years, private organizers have held in downtown
    Nashville an event called “Nashville Pride” (“the Festival”) as a means of celebrating Nashville’s
    LGBTQ community. McGlone and Peters are evangelical Christian street preachers whose beliefs
    conflict with that message and who express their contrary views using bullhorns. This case
    concerns where the Preachers could stand while doing so during the 2015 Festival: on the sidewalk
    immediately abutting the park where the Festival was being held (“the plaza sidewalk”), or just
    across the street.
    The Preachers’ appearance at the Festival did not come as a surprise. A few days before
    the Festival, Peters emailed Lt. David Corman of the Metro Police Department (“MNPD”), who
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    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    had been listed as the point of contact for the Festival’s security, about Peters’s hope to preach on
    a sidewalk immediately outside one of the Festival’s gates. Copying Loyd Poteete, the owner of
    the private company providing security for the Festival (“Comprehensive”), Lt. Corman stated in
    reply that “[t]he event organizers have secured a sidewalk, lane and road closure surrounding the
    event site” and that Peters and his group would “need to conduct [their] activities on the other side
    of the road.” R. 60-9 (Emails) (Page ID #515). Lt. Corman later explained that he did so because
    he had “experience in having observed and dealt with Plaintiffs and/or members of their ministry
    on numerous prior occasions in which they used amplification equipment that could interfere with
    other sounds in the area and attracted crowds that often got confrontational with them.” R. 58
    (Corman Decl. at 3) (Page ID #407). Lt. Corman therefore “believed that Plaintiffs needed to
    conduct their activities across the street from the permitted area to allow Pride to express its
    message and to avoid potential disruption of the event and potential altercations with Festival
    patrons.” 
    Id. Lt. Corman
    further explained that “MNPD does allow expulsion from an event when
    an individual or group is interfering with the permit holder’s expressive message, impeding ingress
    and egress of public thoroughfares, and creating a disturbance that threatens public safety,” but
    that it “does not allow permit holders unfettered discretion to exclude citizens from public areas
    even if those public areas are permitted.” 
    Id. at 2–3
    (Page ID #406–07).
    On the day of the Festival, the Preachers nevertheless began expressing their message using
    bullhorns on the north side of the Union Street sidewalk—that is, on the plaza sidewalk just outside
    the gates of the Festival. See R. 54-5 (Festival Map) (Page ID #305); R. 62 (Pls.’ Statement of
    Facts at 2) (Page ID #535). Although this area was covered by the Festival’s permit, it was open
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    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    to the public, and anyone could walk through.1 R. 60-3 (Richard Dep. at 53) (Page ID #467).
    Festivalgoers and other passersby began to engage with the Preachers. After a few minutes, a
    Comprehensive staff member named Joseph Crowe, who was also an off-duty police officer for
    another jurisdiction (and clad in a police uniform), told the Preachers “to please step across the
    street because this is private property.” If they did not, he explained, they would be arrested.
    Video at 7:50–8:10.
    The Preachers moved across Union Street. While the Preachers were on the south side of
    Union Street, MNPD Sgt. Brian Petty, working on-duty, approached them and explained that the
    plaza sidewalk from which they had just come “was like private property” and, after some
    prodding, stated that he would allow Comprehensive to arrest the Preachers if they began
    demonstrating on the Festival side of the street. Video at 18:05–18:17, 18:38–18:52. When the
    Preachers challenged this understanding of their rights to demonstrate on the plaza sidewalk, Sgt.
    Petty said that he “had to follow [his] lawful orders,” 
    id. at 22:11–22:14,
    and that he would
    continue to enforce his understanding of where they were allowed to be “until [he was] told
    something different from Metro,” 
    id. at 22:46–22:52.
    The Preachers eventually located to a third location, on the northwest corner of Third
    Avenue (which seems to have been closed off) and Union Street. The Preachers continued to
    express their message via bullhorns from this position for at least an hour and a half. 
    Id. at 34:30–
    1:55:40. They engaged with at least a couple dozen Festival attendees or supporters at any given
    time while demonstrating in that location.
    1  The Festival itself, on the other hand, was ticketed. The Preachers did not buy tickets or seek to enter the
    Festival itself. See, e.g., R. 60-9 (Emails) (Page ID #515).
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    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    II. DISCUSSION
    A. First Amendment Framework
    Courts addressing First Amendment claims begin by asking three questions: (1) whether
    the communication at issue “is speech protected by the First Amendment”; (2) what “the nature of
    the forum” is; and (3) “whether the justifications for exclusion from the relevant forum satisfy the
    requisite standard.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 
    473 U.S. 788
    , 797 (1985).
    Here, Metro concedes (1) that the Preachers’ speech was protected and (2) that the plaza sidewalk
    qualified as a public forum. This case hinges on the third question: whether, under “the requisite
    standard,” Metro impermissibly trammeled the Preachers’ free speech rights by excluding them
    from that particular public forum. See 
    id. Identifying the
    right standard hinges in large part, in turn, on whether the restriction was
    content based. “In a traditional public forum” like this one, “the government may impose
    reasonable time, place, and manner restrictions on private speech, but restrictions based on content
    must satisfy strict scrutiny, and those based on viewpoint are prohibited.” Minnesota Voters All.
    v. Mansky, 
    138 S. Ct. 1876
    , 1885 (2018). Thus, if the restriction was content based, then it may
    be upheld only if Metro can prove that it was “necessary to serve a compelling state interest and
    that it [was] narrowly drawn to achieve that end.” Perry Educ. Ass’n v. Perry Local Educators’
    Ass’n, 
    460 U.S. 37
    , 45 (1983). On the other hand, if the restriction was not content based, then it
    can qualify as a permissible time, place, and manner restriction so long as it was also “narrowly
    tailored to serve a significant government interest, and [left] open ample alternative channels of
    communication.”2 
    Id. I thus
    begin by addressing content neutrality.
    2 It is therefore analytically equivalent either (a) to consider content neutrality as a threshold question for
    whether to apply the time-place-manner test, or (b) to treat content neutrality as the first of four conjunctive factors in
    the time-place-manner test. See, e.g., 
    Perry, 460 U.S. at 45
    .
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    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    B. Content Neutrality
    “Nothing 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. Correlatively, governments are not required to be blind to content
    in taking such considerations into account. Rather, “[t]he principal inquiry in determining content
    neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether
    the government has adopted a regulation of speech because of disagreement with the message it
    conveys.” 
    Ward, 491 U.S. at 791
    (emphasis added). “The government’s purpose is the controlling
    consideration. A regulation that serves purposes unrelated to the content of expression is deemed
    neutral, even if it has an incidental effect on some speakers or messages but not others.”3 Id.; see
    also Reed v. Town of Gilbert, 
    135 S. Ct. 2218
    , 2227 (2015) (“Our precedents have also recognized
    a . . . category of laws that, though facially content neutral, will be considered content-based
    regulations of speech: laws that cannot be ‘justified without reference to the content of the
    3  While the Supreme Court has also observed that “[i]t is a familiar principle of constitutional law that [it]
    will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive,” United
    States v. O’Brien, 
    391 U.S. 367
    , 383 (1968) (emphasis added), the Court has also been clear, more recently, that the
    government’s motive can be decisive at least in non-legislative contexts. See Heffernan v. City of Paterson, 136 S.
    Ct. 1412, 1418 (2016) (“[T]he government’s reason for demoting Heffernan is what counts here. When an employer
    demotes an employee out of a desire to prevent the employee from engaging in political activity that the First
    Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and
    42 U.S.C. § 1983—even if, as here, the employer makes a factual mistake about the employee’s behavior.”). And
    non-neutral motives can certainly prompt heightened scrutiny. See, e.g., Church of the Lukumi Babalu Aye, Inc. v.
    City of Hialeah, 
    508 U.S. 520
    , 533 (1993) (“[I]f the object of a law is to infringe upon or restrict practices because of
    their religious motivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest and is
    narrowly tailored to advance that interest.” (citation omitted)). See generally Richard H. Fallon, Jr., Constitutionally
    Forbidden Legislative Intent, 130 HARV. L. REV. 523, 526 & n.15, 554–57 (2016).
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    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    regulated speech,’ or that were adopted by the government ‘because of disagreement with the
    message [the speech] conveys.’” (alteration in original) (quoting 
    Ward, 491 U.S. at 791
    )).4
    In light of these principles, for example, a municipality can allowably restrict the location
    of adult theaters not because of “the content of the films shown . . . but rather [because of] the
    secondary effects of such theaters on the surrounding community.” City of Renton v. Playtime
    Theatres, Inc., 
    475 U.S. 41
    , 47 (1986). That does not mean that the municipality is insensitive to
    the content of the regulated speech, but rather that its regulation is “justified without reference to
    the content of the regulated speech.” See 
    id. at 48
    (quoting Va. Pharm. Bd. v. Va. Citizens
    Consumer Council, Inc., 
    425 U.S. 748
    , 771 (1976)). The government may, in other words,
    permissibly regulate the location of certain types of speech in a way that is correlated with their
    content, so long as it is “treat[ing] [types of speech] differently [only] because they have markedly
    different effects upon their surroundings.” 
    Id. at 49
    (quoting Young v. American Mini Theatres,
    Inc., 
    427 U.S. 50
    , 82 n.6 (1976) (Powell, J., concurring)).
    Some other examples help to further flesh out this permissible form of content-correlated
    but content-neutral regulation. A state actor can grant exclusive use of public land for a political
    rally. See Sistrunk v. City of Strongsville, 
    99 F.3d 194
    , 196–200 (6th Cir. 1996). It can, in at least
    some situations, regulate “the location of targeted picketing . . . under provisions that the
    [Supreme] Court has determined to be content neutral.” Snyder v. Phelps, 
    562 U.S. 443
    , 457
    (2011) (citing Frisby v. Schultz, 
    487 U.S. 474
    , 477 (1988) (upholding ban on picketing in front of
    a specific home); and Madsen v. Women’s Health Center, Inc., 
    512 U.S. 753
    , 757, 768 (1994)
    (upholding “36-foot buffer zone on a public street” outside of abortion clinic)). And it can, our
    4  This exception is inapplicable “when a law is content based on its face.” 
    Reed, 135 S. Ct. at 2228
    . But that
    is not the case here.
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    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    cases suggest, “cordon off” protestors seeking to deliver a message contrary to a public festival,
    or even “disperse [an] entire crowd” that has gathered to counterprotest.5 See Bible Believers v.
    Wayne Cty., 
    805 F.3d 228
    , 253 (6th Cir. 2015) (en banc); see also Collin v. Smith, 
    578 F.2d 1197
    ,
    1201–02 & n.8 (7th Cir.) (discussing, in dicta, various limitations that could permissibly have been
    imposed on Nazi demonstrators in Skokie), cert. denied, 
    439 U.S. 916
    (1978). In each of these
    examples, speech is regulated in a way that correlates with content—but that correlation is not
    caused by a governmental desire to help or hinder any particular type of speech or message.
    Metro argues in its briefing that its restriction of the Preachers’ speech here fell under this
    umbrella. See Appellant’s Br. at 13–17. Based on the record, that argument is compelling. There
    is no evidence in the record to suggest, for example, that Metro required the Preachers to preach
    across the street because it disagreed with or wished to disfavor their message. Rather every
    indication suggests that Metro did so in order to protect the right of a permit-holder—any permit-
    holder—to hold a permit-authorized event without being subject to an unreasonable amount of
    interference or disruption.6 See R. 58 (Corman Decl. at 3) (Page ID #407); R. 60-9 (Emails) (Page
    ID #515). In other words, the restriction applied to these Preachers with their message, but it also
    5 The counterprotesters too, in such a situation, would be regulated in a way that is correlated with the content
    of their speech. But the regulation again would not be motivated by any agreement or disagreement with the
    counterprotesters’ message, but rather because of the public disorder, looming violence, or threat of a heckler’s veto
    stemming from the counterprotesters’ expression of their own message.
    6  While there is nothing in the record to tell us how deeply the disruption reached into the Festival, the video
    makes clear that the Preachers had at least begun to interfere in an ongoing way with people entering and exiting the
    Festival by the time Officer Crowe told them to move across the street. See Video at 3:50–6:15. It also seems all but
    certain from the video that the Preachers’ bullhorns were loud enough that they were heard within the Festival as well.
    See, e.g., 
    id. The Preachers
    argue that the district court “conceded” that they did not “drown[] out the message of the
    Festival,” Reply Br. at 15, but the page to which they cite, R. 83 (Summary J. Hr’g Tr. at 45) (Page ID #799), merely
    shows the district court challenging Metro’s argument during a hearing. Given that the district court’s written opinion
    does not reaffirm that sentiment from argument at the hearing—and, if anything, undercuts it, see R. 76 (Dist. Ct. Op.
    & Order at 19–20) (Page ID #714–15)—I do not construe the district court to have made any factual findings
    qualifying for deference on this score. (I also shudder to think what it would mean for appellate courts if every phrase
    a judge used to probe a litigant’s legal theory during oral argument qualified as a factual finding.) And, in any event,
    just because someone has not drowned another out does not mean that they have not unduly interfered.
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    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    would have applied to people showing up with bullhorns to protest the Iraq War, or to glorify the
    Iraq War, or to say anything else loud and disruptive for an ongoing period of time.7 That makes
    the restriction “[a] regulation that serves purposes unrelated to the content of expression . . . , even
    if it has an incidental effect on some speakers or messages but not others.” 
    Ward, 491 U.S. at 791
    .
    And therefore, because Metro’s restriction was motivated by a desire to prevent serious
    interference with a permit-holder’s authorized event rather than disagreement with the regulated
    party’s message, the restriction qualifies as content neutral.
    The Preachers have sought to avoid this conclusion by pointing to three of this court’s
    precedents. None, however, is sufficiently analogous. In Bible Believers, for example, our court,
    sitting en banc, determined that local police had enforced a “heckler’s veto” against speakers who
    had sought to express an anti-Islamic message at the Arab International Festival in Dearborn,
    
    Michigan. 805 F.3d at 255
    . But that was after police failed to curtail crowd violence against the
    speakers and then escorted the speakers out of the festival—“permanently cutting off [their]
    speech,” 
    id., in the
    absence of a meaningful attempt to allow them to express themselves. See 
    id. 7 I
    hasten to emphasize the conjunctive nature of these factors. I do not understand the First Amendment,
    for example, to mean that if a municipality seeks to exclude one disruptive party, for example, it must therefore—at
    peril of strict scrutiny—exclude all people who speak loudly, even if supportively or for merely an instant. By way
    of illustration, imagine that an organization has secured a permit to hold a public memorial service for a fallen soldier
    in a public park. The service includes, as many do, a series of prayers. One citizen standing on the sidewalk just
    outside the park chooses to yell “Amen” at the top of his lungs at the end of each prayer for the duration of the service,
    while a second, temporarily moved by an unrelated frustration, makes a momentary exclamation at one point. A third
    citizen on the same sidewalk, meanwhile, chooses to yell a stream of invective regarding soldiers and religion at the
    top of his lungs for the duration of the service, causing a small crowd to form and making it harder for others
    (especially at the periphery) to hear the service. Cf. 
    Snyder, 562 U.S. at 448
    –49. I do not believe that there is any
    content discrimination if the police allow the first two citizens to remain while requiring the third citizen to move
    across the street. Certainly, the police would be treating the third speaker differently from the other two, and the
    treatment would vary with the content. But only the third speaker’s statements are loud, disruptive, and ongoing, and
    there is no indication that other loud and ongoing statements that would also be disruptive would be treated any
    differently. It is similarly true that the City of Renton treated movie theaters that chose to show children’s cartoons
    differently from movie theaters that chose to show adult films. See 
    Renton, 475 U.S. at 44
    . But only one of those two
    types of theaters generated the secondary effects that the City was worried about, and there was no indication that
    other theaters that generated the same secondary effects would have been treated any differently. See 
    id. at 47–49.
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    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    at 241, 253–55. Indeed, what the police did in this case in Nashville sounds a lot like what our en
    banc court suggested should have been done in Bible Believers. See 
    id. at 253
    (noting that police
    could have “cordon[ed] off the speakers,” among other possibilities); 
    id. at 254
    (“But in this case,
    there were a number of easily identifiable measures that could have been taken short of removing
    the speaker: e.g., . . . erecting a barricade for free speech, as was requested; . . . or allowing the
    Bible Believers to speak from the already constructed barricade to which they were eventually
    secluded prior to being ejected from the Festival.”). Just as our en banc court suggested that those
    options were permissible, content-neutral options in Bible Believers (even though they too would
    have been correlated with the speakers’ content), requiring the Preachers to cross the street before
    continuing to shout from their bullhorns appears content neutral in light of the record here too.
    The Preachers have also sought to rely on Parks v. City of Columbus, 
    395 F.3d 643
    (6th
    Cir. 2005), and Saieg v. City of Dearborn, 
    641 F.3d 727
    (6th Cir. 2011), but those analogies
    likewise fail to fit this case. Saieg, a case involving a leafleting prohibition (also, like Bible
    Believers, at Dearborn’s Arab International 
    Festival), 641 F.3d at 729
    , especially fails to fit on
    content neutrality, because we found in Saieg that the leafleting restriction at issue was content
    neutral, 
    id. at 735.
    In Parks, by contrast, we did find that a city’s exclusion of the plaintiff from a
    public arts festival was content based, but we did so in the context of a “peaceful” 
    leafleter, 395 F.3d at 653
    , who was excluded despite the fact that the arts festival that had no discernible
    “collective message” (and certainly not one that Parks was interfering with), 
    id. at 651,
    and where
    “[t]he City offered no explanation as to why the sponsor wanted him removed,” 
    id. at 654.
    Indeed,
    as Metro points out, Appellee’s Br. at 26, we specifically distinguished the issue presented by
    Parks from a case in which “the speaker attempted to interfere with the expressive message
    conveyed by the permit-holder.”        
    Id. at 649.
         In short, Parks did not involve the same
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    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    considerations—loud and ongoing pronouncements from a bullhorn that threaten to disrupt or
    interfere with permit-authorized activities—that could have permissibly motivated Metro here.
    See 
    id. at 653–54;
    see also Startzell v. City of Phila., 
    533 F.3d 183
    , 199 (3d Cir. 2008)
    (distinguishing a case much like this one from the situation in Parks).
    What these cases make clear, instead, is that a permit-holder cannot use the law to exclude
    somewhat more modest forms of purported interference—for example, “peaceful” leafleters—
    from public fora. See, e.g., 
    Parks, 395 F.3d at 653
    . But there is no indication in the record that
    Metro sought to restrict those kinds of less disruptive speakers. See R. 58 (Corman Decl. at 2–3)
    (Page ID #406–07) (explaining that “MNPD does not allow permit holders unfettered discretion
    to exclude citizens from public areas even if those public areas are permitted,” but that it “does
    allow expulsion from an event when an individual or group is interfering with the permit holder’s
    expressive message, impeding ingress and egress of public thoroughfares, and creating a
    disturbance that threatens public safety” (emphasis added)). Had the Preachers here simply sought
    to carry signs, wear tee shirts, or pass out leaflets on the plaza sidewalk, this would be a very
    different case. But that is not the expression at issue, and the Preachers have not introduced any
    evidence to contradict the record evidence suggesting that Metro would have allowed them to
    demonstrate in such less disruptive manners. Here, instead, the Preachers brought bullhorns—
    and, by extension, disruption and interference—directly to the entrance and exit gates. Metro
    could permissibly require the Preachers to cross the street without qualifying as having imposed a
    content-based restriction.
    ***
    If the record and the parties’ written submissions were all that our court had to go on, I
    would conclude easily that the foregoing establishes that Metro’s restrictions were content neutral
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    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    for purposes of summary judgment. But the governing standard, of course, is that we must allow
    summary judgment only “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.” 
    Saieg, 641 F.3d at 733
    (quoting
    FED. R. CIV. P. 56(a)).           Statements made by Metro’s appellate counsel at oral argument,
    meanwhile, conceivably undercut what the record itself otherwise indicates.
    This problem arose when our panel began asking Metro’s appellate counsel about various
    hypotheticals to try to understand Metro’s theory of the case. The following exchange occurred8
    Court:              Could the Preachers have stood on the sidewalk and handed out
    leaflets there?
    Appellee:           I believe, your honor, that is a closer case. I believe if those leaflets
    said similar to—
    Court:              Similar to their message.
    Appellee:           If it weren’t specifically an undermining, competing message of the
    Festival.
    Court:              So wait a minute, are you saying . . . if I’m an Episcopalian minister,
    and I want to stand there, and I want to say, “God loves all people,
    we believe in gay marriage, come to my church and get married”—
    that person would be allowed to stay and preach his vision of the
    Gospel and a preacher who comes in and says, “Homosexuality is a
    sin,” they’re not allowed? That’s the State’s position?
    Appellee:           Our position is that if there’s a discordant message . . . to the
    underlying expressive message, then yes, those people can be
    limited in exactly where they stand. I want to be clear—
    Court:              But you would allow the Episcopalian minister in my hypothetical
    to stand right there, . . . have a bullhorn [and say], “Come to our
    church, get married, we’ll perform your wedding tomorrow,” but not
    the people with a message contrary to that—a different vision of
    Christianity? Because I’m thinking that’s not just content
    discriminatory, but viewpoint discriminatory, and that seems tough
    ...
    Appellee:           And I would say, your honor, that, again, it’s the context of the
    permit. And in that situation, if there were bullhorns and if people
    8   I have transcribed this exchange in full given its relevance to the central question of content neutrality.
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    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    were gathering around and people couldn’t get in and there were
    ingress and egress being blocked, and I would submit that—
    Court:        But couldn’t there be ingress and egress being blocked by my
    Episcopalian minister who’s saying, “Come, free weddings
    tomorrow, we’re going to waive our fees, come sign up, we’re
    scheduling people,” and everybody’s coming, they’re like “Great, I
    want to marry my partner”—that person can stay and block all they
    want, but—
    Appellee:     And I don’t think I articulated myself very well. No, that person
    cannot stay and block all they want. If someone is there with leaflets
    that say “Love Jesus,” I think they should be allowed to stay there.
    I think once you’re talking about bullhorns and gathering of people
    and people not being able to line up—and I would submit that in the
    video in this case, while the district judge did say that it seemed like
    people could get around, I mean they could get around, but there
    was a big crowd and you had to do some maneuvering to get around
    ...
    Court:        So the key really to your position is the use of the bullhorns and
    causing a crowd to form and that that would apply no matter what
    the message of the bullhorns would be?
    Appellee:     I think that is the first prong of our message. And then the second
    prong is that this case, the case of Sistrunk, is really the most on-
    point case in the Sixth Circuit, even though it was a political-rally
    case, that says a group that gets a permit has a right to exclusive
    control of an area to express their message. And this certainly was
    a discordant view to that message and undermined the entire
    expressive message of the festival, which was that this traditionally
    marginalized group of society could come and celebrate being who
    they are.
    Court:        Is it the bullhorns that are the problem? So if I stood out there, and
    I said, “Sign up for my low-interest-rate credit card and I’ll give you
    a free tee shirt,” and everybody’s like great, I want the free tee shirt
    and the credit card, and I’ve got my bullhorn, and it’s loud, and I’m
    attracting a crowd, and maybe you can’t hear back in the Festival—
    although there’s no indication here that this message was blocking
    out speakers inside. Can I stand there and advertise my credit card?
    “Come, everybody is welcome, I welcome all people to apply for
    my credit card, and I’ll give you a tee shirt”?
    Appellee:     I don’t think once you start attracting a crowd and making an issue
    with ingress and egress to the Festival, you would be allowed to
    stand there. That’s a different case than here, there are noise
    ordinances—which is not at issue in this case—but things like that
    that could come into play.
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    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    Court:          So it’s not the bullhorn . . . it’s the crowd that’s the problem? It’s
    not the bullhorn. If I stood out there with my bullhorn and said, “It’s
    raining today, it’s raining today, it’s raining today,” and the sun is
    shining, everybody would just ignore me and think I was a crazy
    person and walk by. So it’s not the bullhorn—it’s the crowd
    forming? And that goes to time place and manner? I just am trying
    to get a handle on it.
    Appellee:       It’s three things. First, it’s that Nashville Pride had a permit for
    exclusive use of this area to promote their message. And under
    Sistrunk, they could exclude discordant speakers. It’s also, on the
    realities of this case—if you just sort of want to get away from the
    academic law, because First Amendment cases have to be fact
    specific in a lot of instances—you also not only have a message that
    undercuts Pride’s expressive message, you have it through
    amplification equipment. And you have it through incendiary
    language that is broadcast very loudly in a group that is quite
    frankly, if you watch the video, I submit designed to draw an
    incendiary crowd. You have it happening at an area that has been
    set up, part of the permitted festival, to allow people to not have to
    line up in the street, and if you watch the video, minute five, I mean
    the people that engage with the Appellees [sic] are people who are
    in line to go to this Festival, so I would submit that they were at least
    distracted from their expressive purpose by the Appellees [sic] in
    this case. At the end of the day . . .
    Court:          So distraction is enough?
    Appellee:       No, your honor, certainly not. But this notion that people were just
    standing around doing nothing and that there’s no indication that
    they were actually people participating or wanting to participate in
    the Festival I think is belied by the video.
    Oral Arg. at 20:19–26:17.
    There are several problems with Metro’s arguments here. For one, they noticeably
    overstate the applicability of a case like Sistrunk to the situation here. In Sistrunk, we ruled that a
    municipality could grant a permit to a political campaign (there, the Bush-Quayle ‘92 campaign)
    “seeking to make exclusive use of” an otherwise traditional public forum “for expressive activity
    during a limited period of 
    time,” 99 F.3d at 198
    , and that the campaign could in turn exclude an
    individual seeking to communicate a contrary message (tacitly, by wearing a pro-Clinton button),
    see 
    id. at 199.
    But even assuming that Sistrunk is still good law—an issue not implicated directly
    -27-
    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    by this case—there is no debating that Sistrunk merely allowed the exclusion of a plaintiff who
    attempted to communicate a contrary message within a temporarily nonpublic forum. See 
    id. at 198–99.
    Indeed, we made clear in Sistrunk that “[t]he plaintiff could have stood with her button
    on the sidewalk leading up to the rally to express her support for Clinton,” 
    id. at 199—a
    statement
    that, though dicta, should eliminate any question that the Preachers here could not have been
    removed from the still-public forum of the plaza sidewalks simply for wearing buttons or tee shirts,
    or carrying placards, or handing out leaflets espousing their contrary message. The true question
    here, distinct from that of Sistrunk, is whether the Preachers were permissibly forced to cross the
    street for communicating their message with bullhorns—and all the additional disruption and
    interference that bullhorns entail.
    Second, and more centrally, Metro’s argument potentially raises a question about Metro’s
    true purpose. As noted above, when it comes to content neutrality, “[t]he government’s purpose
    is the controlling consideration.” 
    Ward, 491 U.S. at 791
    . And while inquiring into a given
    government actor (or institution’s) purpose may be thorny in some cases, the Supreme Court has
    been clear that “scrutinizing purpose does make practical sense . . . where an understanding of
    official objective emerges from readily discoverable fact, without any judicial psychoanalysis of a
    drafter’s heart of hearts.” McCreary Cty. v. Am. Civil Liberties Union of Ky., 
    545 U.S. 844
    , 862
    (2005). Here, appellate counsel seemed to suggest at one point that Metro would limit any speaker
    with a “discordant message,” but not others engaged in similar non-“discordant” speech. See Oral
    Arg. at 20:35–21:25. If accurate and cognizable, that statement would at least create a genuine
    issue of material fact that Metro is in fact regulating speech based on the content of that speech,
    rather than based on other effects that are independent of (but correlated with) the content of that
    speech.
    -28-
    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    Ultimately, however, I do not believe that these statements render summary judgment
    inappropriate. For one, it is not clear to me that Metro’s statements were in fact intended to be a
    concession to such a legally indefensible position. As Judge Batchelder has argued in a different
    case, it is questionable at best to interpret as an explicit concession the statements made when an
    “obviously harried attorney attempts to explain his position.” Haus v. Bechtel Jacobs Co., LLC,
    
    491 F.3d 557
    , 571 (6th Cir. 2007) (Batchelder, J., dissenting). On my read of the transcribed
    language above, counsel at several junctures attempted to clarify what seem to have simply been
    unartfully worded answers to questions concerning a notoriously thorny area of legal doctrine. See
    Oral Arg. at 21:24–21:27 (“I want to be clear . . .”); 
    id. at 22:06–22:12
    (“And in that situation, if
    there were bullhorns and if people were gathering around and people couldn’t get in and there were
    ingress and egress being blocked . . .”); 
    id. at 22:36–22:49
    (“And I don’t think I articulated myself
    very well. No, that person cannot stay and block all they want. If someone is there with leaflets
    that say ‘Love Jesus,’ I think they should be allowed to stay there. I think once you’re talking
    about bullhorns and gathering of people and people not being able to line up . . .”); 
    id. at 24:22–
    24:29 (“I don’t think once you start attracting a crowd and making an issue with ingress and egress
    to the Festival, you would be allowed to stand there.”); 
    id. 26:06–26:08 (“No,
    your honor, certainly
    [distraction is] not [enough].”). In short, I do not believe this is a situation in which counsel has
    in fact “succinctly and unequivocally admitted” what it might sound like counsel admitted. See
    
    Haus, 491 F.3d at 571
    (Batchelder, J., dissenting). I think it is much more likely that counsel
    simply misspoke.
    Moreover, as Judge Batchelder has also explained:
    [T]he very most that the majority can offer is that [Metro’s] appellate counsel was
    equivocal on the matter. But, this is not evidence. In fact, there is no evidence in
    the record—admissible or otherwise—to support this contention; there is no Rule
    -29-
    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    36 admission, no interrogatory answer, no stipulation, no deposition testimony, no
    trial testimony . . . nothing . . . .
    
    Id. at 572.
    This observation accords with the approach that both we and other circuits have taken.
    See Esch v. Cty. of Kent, 699 F. App’x 509, 514 n.2 (6th Cir. 2017) (“And of course,
    representations made during oral argument are not part of the record, and are generally not
    sufficient to support a motion for summary judgment.” (citing EOTT Energy Operating Ltd. P’ship
    v. Winterthur Swiss Ins. Co., 
    257 F.3d 992
    , 999 (9th Cir. 2001); McDonald’s Corp. v. Robertson,
    
    147 F.3d 1301
    , 1308 n.4 (11th Cir. 1998); CHARLES A. WRIGHT & ARTHUR R. MILLER ET AL.,
    FEDERAL PRACTICE & PROCEDURE § 2723 n.2 (4th ed. Supp. 2017))). “Accordingly,” particularly
    in light of the ambiguity of counsel’s statements during rapid-fire questioning, in my view we
    ought “not consider [Metro’s] oral argument statements in adjudicating this appeal.” See Esch,
    699 F. App’x at 514 n.2. I therefore continue to believe that the restriction at issue here was content
    neutral and thus proceed to the rest of the time, place, and manner test.
    C. Significance of the Government Interest
    “A valid time, place, and manner regulation must also ‘serve a significant governmental
    interest.’” Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 
    452 U.S. 640
    , 649 (1981)
    (quoting Va. Pharm. 
    Bd., 425 U.S. at 771
    ). “[C]onsideration of a forum’s special attributes is
    relevant to the constitutionality of a regulation since the significance of the governmental interest
    must be assessed in light of the characteristic nature and function of the particular forum involved.”
    
    Id. at 650–51;
    see also Hill v. Colorado, 
    530 U.S. 703
    , 716 (2000) (“The recognizable privacy
    interest in avoiding unwanted communication varies widely in different settings.”). In Heffron,
    for example, the Supreme Court distinguished the Minnesota fairgrounds from a normal public
    street, noting that “[t]he flow of the crowd and demands of safety are more pressing in the context
    of the Fair,” 
    id. at 651,
    and concluding that the state accordingly had a substantial-enough interest
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    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    “in confining distribution, selling, and fund solicitation activities to fixed locations,” 
    id. at 654.
    The Court noted that the interest was especially significant in light of the fact that not only the
    plaintiffs but also “all other organizations . . . would be entitled to distribute, sell, or solicit if the
    booth rule [could] not be enforced with respect to [the plaintiffs],” and that the resulting flood of
    solicitors could well overrun the fair and prevent the state from “managing the flow of the crowd.”
    
    Id. at 654.
    Metro appears to characterize its governmental interest here much the same way that the
    Third Circuit characterized the City of Philadelphia’s interest in Startzell:
    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.
    
    Startzell, 533 F.3d at 198
    –99; see Appellee’s Br. at 26–27 (quoting this language from Startzell);
    see also R. 58 (Corman Decl. at 3) (Page ID #407) (explaining that Lt. Corman “believed that
    Plaintiffs needed to conduct their activities across the street from the permitted area to allow Pride
    to express its message and to avoid potential disruption of the event and potential altercations with
    Festival patrons”). Understood this way, and considering the (temporary) “special attributes” and
    “characteristic nature and function of the” public land covered by the Festival’s permit, 
    Heffron, 452 U.S. at 650
    –51, the interest asserted by Metro qualifies as a sufficiently significant interest for
    two main reasons.
    First, while the permit did not divest the plaza sidewalk of its status as a public forum, see,
    e.g., 
    Parks, 395 F.3d at 648
    , it did change the nature of that public forum in the specific context of
    the time-limited event covered by the permit. It was not, for that brief window of time, “a
    continually open, often uncongested . . . place where people [could] enjoy the open air or the
    -31-
    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    company of friends and neighbors in a relaxed environment,” but part of “a temporary event
    attracting great numbers of visitors who c[a]me to the event for a short period” to align themselves
    with a particular message. See 
    Heffron, 452 U.S. at 651
    . In that context, there was an interest in
    ensuring that the temporary event was able to proceed as planned that would not apply on a normal
    street corner. And that interest is, as in Heffron, greater given the need for neutral administrability.
    After all, if the Preachers’ group of eight-to-ten evangelists, see Video at 2:09:05–2:09:22, were
    allowed to plant themselves at the entrance gate and begin preaching their message via bullhorns,
    it is not clear on what grounds other groups equally interested in disrupting the Festival (or merely
    shouting their own, unrelated disruptive messages) could have been excluded. See 
    Heffron, 452 U.S. at 654
    .
    More importantly, however, the means of speech employed by the Preachers differs sharply
    from the peaceful solicitation involved in cases like Heffron, Parks, and Saieg. Whereas those
    plaintiffs brought conversation-level voices and pieces of paper, the plaintiffs here brought
    bullhorns. That their message was offensive to listeners does not rob it of protection, “[b]ut the
    protection afforded to offensive messages does not always embrace offensive speech that is so
    intrusive that the unwilling audience cannot avoid it.” 
    Hill, 530 U.S. at 716
    . “Even in a public
    forum,” as the Supreme Court has explained, “one of the reasons we tolerate a protester’s right to
    wear a jacket expressing his opposition to government policy in vulgar language is because
    offended viewers can ‘effectively avoid further bombardment of their sensibilities simply by
    averting their eyes.’” 
    Id. (quoting Cohen
    v. California, 
    403 U.S. 15
    , 21 (1971)). Thus, whereas
    society might well have to tolerate a peaceful but offensive leafleter “when ‘strolling through
    Central Park,’ . . . the interest in preserving tranquility in ‘the Sheep Meadow’ portion of Central
    Park may at times justify official restraints on offensive musical expression” there. 
    Id. (first -32-
    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    quoting 
    Cohen, 403 U.S. at 21
    ; then quoting 
    Ward, 491 U.S. at 784
    ).9 The interest in allowing a
    permit-holder to hold its authorized event without being seriously disrupted (if not drowned out)
    is significant enough, too, to justify reasonable restraints on the location of speakers who cause
    ongoing disruption or interference.10 See 
    Startzell, 533 F.3d at 197
    (“The constitutional guarantee
    of liberty implies the existence of an organized society maintaining public order, without which
    liberty itself would be lost in the excesses of anarchy.” (quoting Cox v. Louisiana, 
    379 U.S. 536
    ,
    554 (1965))); cf. 
    Madsen, 512 U.S. at 772
    –73 (“The First Amendment does not demand that
    patients at a medical facility undertake Herculean efforts to escape the cacophony of political
    protests.”).
    This readily apparent interest in the facts of this case, see, e.g., R. 57 (Crowe Decl. at 1–2)
    (Page ID #400–01); R. 58 (Corman Decl. at 3) (Page ID #407); R. 60-9 (Emails) (Page ID #515),
    distinguishes it from a case like Saieg, on which the Preachers seek to rely, Appellants’ Br. at 29–
    30. There, we ruled that Dearborn’s leafleting restrictions on the inner perimeter of its festival did
    “not further a substantial governmental interest” not because they could 
    not, 641 F.3d at 736
    (“In
    appropriate contexts, each of these governmental interests can be substantial.”), but rather because
    9  See also 
    Hill, 530 U.S. at 716
    –17 (“The unwilling listener’s interest in avoiding unwanted communication
    has been repeatedly identified in our cases. It is an aspect of the broader ‘right to be let alone’ that one of our wisest
    Justices characterized as ‘the most comprehensive of rights and the right most valued by civilized men.’ The right to
    avoid unwelcome speech has special force in the privacy of the home and its immediate surroundings, but can also be
    protected in confrontational settings.” (citations omitted) (quoting Olmstead v. United States, 
    277 U.S. 438
    , 478 (1928)
    (Brandeis, J., dissenting))); 
    id. at 724
    (upholding buffer law prohibiting certain types of speech surrounding medical
    facilities on the grounds that “the statute’s restriction seeks to protect those who enter a health care facility from the
    harassment, the nuisance, the persistent importuning, the following, the dogging, and the implied threat of physical
    touching that can accompany an unwelcome approach within eight feet of a patient by a person wishing to argue
    vociferously face-to-face”).
    10 Much as noted above, of course, a government cannot justify restricting speech in order to prevent the
    occasional minor or ephemeral disruption. See, e.g., 
    Saieg, 641 F.3d at 738
    ; 
    Parks, 395 F.3d at 654
    . But that does
    not mean that it lacks a valid interest in mitigating major and ongoing interference. Cf. 
    Parks, 395 F.3d at 649
    (distinguishing the Parks case from “circumstances where the speaker attempted to interfere with the expressive
    message conveyed by the permit-holder”).
    -33-
    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    “the interests that the defendants ha[d] named [we]re merely ‘conjectural’ as opposed to ‘real,’”
    
    id. at 737
    (quoting Turner Broad. Sys., Inc. v. FCC, 
    512 U.S. 622
    , 664 (1994)). For one, we
    explained, “the defendants ha[d] chosen to keep the sidewalks open for public use, showing that
    the interests in crowd control and public safety [we]re not so pressing that they justif[ied]
    restricting normal activity that occurs on streets and sidewalks.” 
    Id. at 737.
    “Second and more
    importantly,” we added, the organizers had also allowed “sidewalk vendors” on the relevant
    sidewalks, further “belying the significance of their interest in clear sidewalks and crowd control.”
    
    Id. It thus
    did not wash for the defendants to claim that leafleting was a major concern, given that
    “[l]eafleting is less obtrusive than sidewalk tables are.” 
    Id. As we
    observed, “the government’s
    interest may still be insubstantial if the regulation burdens substantially less speech than is
    necessary to further the government’s interest.” 
    Id. at 738.
    No such arguments apply here. There is no indication, for example, that Metro allowed
    other loud, disruptive speakers—or, indeed, anyone or anything else that would have disrupted the
    permit-authorized event—on the sidewalk just outside the Festival gates. Rather, based on his
    “experience in having observed and dealt with Plaintiffs and/or members of their ministry on
    numerous prior occasions in which they used amplification equipment,” Corman anticipated the
    likelihood of “interfere[nce]” and “potential disruption of the event” and communicated the
    restriction accordingly. R. 58 (Corman Decl. at 3) (Page ID #407). When that danger in fact
    manifested, others reiterated the restriction. See, e.g., R. 57 (Crowe Decl. at 1–2) (Page ID #400–
    01).
    The Preachers argue, meanwhile, that the case is like Saieg because “no one who was not
    in line to buy tickets was asked to leave except McGlone and Peters and those with them,” and
    “there were sponsor tents in the permitted area as well.” Appellants’ Br. at 28–29. But that misses
    -34-
    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    the point. In contrast to Saieg, no one else on the sidewalk area at issue served to endanger the
    interest that Metro asserts—no one, for example, brought bullhorns that began to disrupt parts of
    the Festival. True, the Preachers did not necessarily disrupt entry and exit from the Festival from
    a safety perspective—there is evidence that “there was enough room for people to get around
    without dangerously stepping out in traffic.” R. 54-7 (Petty Dep. at 30) (Page ID #317). But that
    just means that one interest (in pedestrian safety) was, at least for purposes of summary judgment,
    insufficient to justify the restriction; it does not mean that Metro’s interest in preventing disruption
    was not at stake. And indeed, the record discloses no evidence that Metro ignored any comparable
    threats of disruption to the event the way that the municipality in Saieg ignored comparable threats
    to sidewalk density; it instead reveals sincere concern regarding the disruption that these
    speakers—like any speakers with their own, separate agenda11 armed with bullhorns—could cause.
    See, e.g., R. 58 (Corman Decl. at 3) (Page ID #407); R. 60-9 (Emails) (Page ID #515). In the
    context of a permit-authorized, time-limited, expressive event on public property, and in light of
    the particular dangers of disruption posed by a group of speakers with a separate agenda using
    bullhorns, I would deem Metro’s interest in requiring the Preachers to demonstrate across the street
    “sufficient to satisfy the requirement that a place or manner restriction must serve a substantial
    state interest.” See 
    Heffron, 452 U.S. at 654
    .
    11  That is, any speakers whose interests are completely independent of the Festival’s. That could mean
    speakers who are adverse to the Festival’s message, but it would also encompass speakers—like the hypothetical
    credit-card hawker that our panel raised at oral argument, see Oral Arg. at 23:42–24:22—whose messages are simply
    oblique. Just as it can be (for reasons discussed above) content neutral to treat such speakers differently than speakers
    involved in permit-authorized activity, doing so in order to allow a permit-authorized event to go forward without
    major disruption can reflect a significant government interest. See 
    Saieg, 641 F.3d at 736
    ; cf. 
    Parks, 395 F.3d at 649
    .
    And there is no indication here that Metro allowed other, unaffiliated speakers like the hypothetical credit-card hawker
    to show up and interfere with the Festival.
    -35-
    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    D. Narrow Tailoring
    That brings us to narrow tailoring. The Supreme Court has emphasized “that 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
    (quoting
    United States v. Albertini, 
    472 U.S. 675
    , 689 (1985)). In other words, “a regulation of the time,
    place, or manner of protected speech must be narrowly tailored to serve the government’s
    legitimate, content-neutral interests but . . . it need not be the least restrictive or least intrusive
    means of doing so.” 
    Id. at 798.
    “Rather, the requirement of narrow tailoring is satisfied ‘so long
    as the . . . regulation promotes a substantial government interest that would be achieved less
    effectively absent the regulation.’” 
    Id. at 799
    (quoting 
    Albertini, 472 U.S. at 689
    ).
    Here, Metro’s interest in allowing a permit-authorized event to use the permit-covered area
    without serious disruption would have been “achieved less effectively absent the regulation.” Id.
    (quoting 
    Albertini, 472 U.S. at 689
    ). While requiring the Preachers to cross the street did not
    silence the Preachers or prevent them from communicating their message to a large number of
    attendees, see Video at 34:30–1:55:40, it did shift their bullhorn-amplified communication—and
    the commotion attending it—a short ways away from where other attendees were simply trying to
    purchase tickets, enter the Festival, or engage with the Festival’s message.                        This limited
    restriction—requiring the Preachers to cross the street (which, at least where the Preachers settled,
    was closed off anyway, eliminating any noise deflection from passing cars)—qualifies as narrowly
    tailored.12
    12   To be clear, had Metro shifted the Preachers multiple blocks over, this case would likely come out
    differently, whether on this prong, on the ample alternative channels prong, or on heckler’s veto grounds. Cf. Bible
    
    Believers, 805 F.3d at 234
    , 241, 255 (finding an unconstitutional heckler’s veto where speakers were wholly
    “silence[d]” and “expel[led]” from the festival altogether, such that their speech was “permanently cut[] off”). But
    -36-
    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    Saieg, on which the Preachers rely, Appellants’ Br. at 30–33, is again inapposite. There, we ruled
    that leafletting provisions on the outer perimeter of the Arab International Festival were
    “substantially broader than necessary to further the government’s [asserted] interests” in crowd
    control. 
    Saieg, 641 F.3d at 740
    . In reaching this conclusion, we emphasized that while “the
    primary justification for the outer perimeter [restriction] [wa]s to curb vehicular traffic and provide
    parking, not to cabin pedestrian crowds,” there was no indication of “any existing problem of
    pedestrian traffic in the outer perimeter area,” nor was any danger of one posed by Saieg, who had
    hoped to “leaflet[] by foot.” 
    Id. “[T]he restriction,”
    we explained, was therefore “not narrowly
    tailored because there [wa]s ‘an insufficient nexus’ between the government’s asserted interest and
    the leafleting restriction.” 
    Id. (quoting United
    States v. Grace, 
    461 U.S. 171
    , 181 (1983)).
    As should be apparent, however, the asserted interest here is distinct from—and more
    credible than—the one asserted in Saieg, and there is a clear nexus between that interest and the
    restriction.13 Furthermore, we made clear in Saieg that allowing people like Saieg to leaflet
    peacefully did not entail blanket permission for all other conceivable activity in the same place.
    See 
    Saieg, 641 F.3d at 740
    (“[P]ermitting everyone to leaflet in the outer perimeter area does not
    require the city to permit street vending or other attractions in the area defined by the outer
    perimeter.”). In short, Metro’s imposing a roadway’s distance between the Festival and the
    the simple fact that the Preachers were forced to move from the area covered by the permit does not render Metro’s
    restriction an overly broad exclusion.
    13 The Preachers argue that the restriction here swept much further—that it was geared toward “creat[ing] a
    ‘safe space’ free of any opposition to [the Festival’s] message.” Appellants’ Br. at 33–34. But they offer no evidence
    for that proposition aside from one questionable phrase from oral arguments at summary judgment below. See 
    id. at 33
    (quoting R. 83 (Summary J. Tr. at 48–49) (Page ID #802–03)). As already discussed, however, we do not generally
    treat statements made at oral argument as evidence, see Esch, 699 F. App’x at 514 n.2, and, moreover, there is no
    evidence that Metro sought to move more passive protestors, such as leafleters, people carrying signs, or people
    wearing shirts espousing contrary messages.
    -37-
    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    Preachers’ bullhorn-amplified protest was a narrowly tailored means of serving Metro’s legitimate
    interest in allowing the permit-authorized activity to proceed without major disruption.
    E. Ample Alternative Channels of Communication
    The final prong in the time, place, and manner analysis is the availability of sufficient
    alternative channels of communication. “Any time, place, and manner restriction must leave open
    ample alternative channels by which speakers can communicate their messages.” 
    Saieg, 641 F.3d at 740
    . “An alternative is not ample if the speaker is not permitted to reach the intended audience.”
    
    Id. (quoting Bay
    Area Peace Navy v. United States, 
    914 F.2d 1224
    , 1229 (9th Cir. 1990)). On the
    other hand, “speakers are ‘not entitled to [their] best means of communication.’” 
    Id. (alteration in
    original) (quoting Phelps-Roper v. Strickland, 
    539 F.3d 356
    , 372 (6th Cir. 2008)).
    Metro can easily satisfy this prong. A brief review of the video provides the clearest
    evidence that the Preachers’ alternative location—situated on a busy corner just across a closed-
    off street from the Festival’s gates—was more than adequate to permit them to communicate their
    message to Festival attendees. See Video at 34:30–1:55:40. Indeed, the Preachers appear to have
    been able to engage at any given time with at least two dozen attendees or supporters of the
    Festival, if not more—not to mention the plenty of others who must have heard their bullhorns
    across the street or through the Festival’s chain-link fence. The Preachers resist this conclusion
    by arguing that “their message could not be heard as well from the location on the other side of
    the street,” Appellants’ Br. at 35, but that argument is squarely foreclosed by Supreme Court
    precedent as insufficient. See 
    Ward, 491 U.S. at 802
    (“That the city’s limitations on volume may
    reduce to some degree the potential audience for respondent’s speech is of no consequence, for
    there has been no showing that the remaining avenues of communication are inadequate.”). That
    the Preachers wanted a bigger channel of communication does not mean that they were denied
    -38-
    No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.
    constitutionally adequate channels of communication. 
    Saieg, 641 F.3d at 740
    . And the video
    makes clear that the channels that remained were sufficiently robust.
    III. CONCLUSION
    The First Amendment requires individuals and groups to tolerate the expression of many
    views with which they disagree, but it does not require anarchy. In this case, a municipality sought
    to regulate the position of a group of continuously disruptive speakers with bullhorns in order to
    prevent that group from interfering significantly with another group, which had secured a permit
    enabling it to use public land for its own expressive purpose. The municipality regulated the first
    group’s position in a way that did not silence them or seriously curtail their communication; it
    simply required them to cross the street. Though I share the majority’s solicitude for the First
    Amendment, I do not understand the First Amendment to prohibit such a reasonable regulation of
    time, place, and manner. I respectfully dissent.
    -39-
    

Document Info

Docket Number: 17-6291

Filed Date: 9/19/2018

Precedential Status: Non-Precedential

Modified Date: 4/17/2021

Authorities (29)

Startzell v. City of Philadelphia, Pennsylvania , 533 F.3d 183 ( 2008 )

Reed v. Town of Gilbert , 135 S. Ct. 2218 ( 2015 )

Snyder v. Phelps , 131 S. Ct. 1207 ( 2011 )

Lovell v. City of Griffin , 58 S. Ct. 666 ( 1938 )

and-walbrook-insurance-company-el-paso-insurance-company-limited-dart , 257 F.3d 992 ( 2001 )

Christian Legal Soc. Chapter of Univ. of Cal., Hastings ... , 130 S. Ct. 2971 ( 2010 )

Douglas R. Parks v. Richard H. Finan Ronald T. Keller ... , 385 F.3d 694 ( 2004 )

Saieg v. City of Dearborn , 641 F.3d 727 ( 2011 )

Monell v. New York City Dept. of Social Servs. , 98 S. Ct. 2018 ( 1978 )

Watson v. City of Memphis , 83 S. Ct. 1314 ( 1963 )

New York Times Co. v. Sullivan , 84 S. Ct. 710 ( 1964 )

Frisby v. Schultz , 108 S. Ct. 2495 ( 1988 )

Rosenberger v. Rector & Visitors of University of Virginia , 115 S. Ct. 2510 ( 1995 )

Hill v. Colorado , 120 S. Ct. 2480 ( 2000 )

Albert Smith, President of the Village of Skokie, Illinois ... , 439 U.S. 916 ( 1978 )

kenneth-farhat-v-janet-jopke-in-her-individual-and-official-capacity , 370 F.3d 580 ( 2004 )

Phelps-Roper v. Strickland , 539 F.3d 356 ( 2008 )

Gitlow v. New York , 45 S. Ct. 625 ( 1925 )

frank-collin-and-the-national-socialist-party-of-america-v-albert-smith , 578 F.2d 1197 ( 1978 )

Ward v. Rock Against Racism , 109 S. Ct. 2746 ( 1989 )

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