George Saieg v. City of Dearborn ( 2011 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0147p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
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GEORGE SAIEG,
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Plaintiff-Appellant,
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No. 10-1746
v.
,
>
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CITY OF DEARBORN; RONALD HADDAD,
Defendants-Appellees. N-
Dearborn Chief of Police,
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 09-12321—Paul D. Borman, District Judge.
Argued: April 29, 2011
Decided and Filed: May 26, 2011
Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.
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COUNSEL
ARGUED: Robert Joseph Muise, THOMAS MORE LAW CENTER, Ann Arbor,
Michigan, for Appellant. Laurie M. Ellerbrake, Dearborn, Michigan, for Appellees.
ON BRIEF: Robert Joseph Muise, THOMAS MORE LAW CENTER, Ann Arbor,
Michigan, for Appellant. Laurie M. Ellerbrake, Dearborn, Michigan, for Appellees.
MOORE, J., delivered the opinion of the court, in which CLAY, J., joined.
DAUGHTREY, J. (p. 22), delivered a separate dissenting opinion.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Each summer, Plaintiff George
Saieg attends the Arab International Festival (“Festival”) in the City of Dearborn,
Michigan (“City”). At the Festival, Saieg leads a group of Christians whose goal is to
convert Muslims to Christianity. In 2009, Dearborn police instituted a leafleting
1
No. 10-1746 Saieg v. City of Dearborn, et al. Page 2
restriction for the Festival. Pursuant to the restriction, no one may leaflet from the
sidewalks that are directly adjacent to the Festival attractions, or on the sidewalks and
roads that surround the Festival’s core on each side by one to five city blocks. The
restriction permits leafleting at the Festival only from a stationary booth and not while
walking around the Festival.
Saieg sued the City of Dearborn and its Chief of Police, alleging that the
leafleting restriction violated his First Amendment right to free speech, as well as his
freedom to associate, his free exercise of religion, and his right to equal protection. The
district court denied a temporary restraining order before the 2009 Festival and granted
summary judgment to the defendants in 2010. This court granted Saieg an injunction
pending appeal for the 2010 Festival, permitting Saieg to distribute leaflets from the
outer sidewalks and roads, but not on the sidewalks that are directly adjacent to the
Festival attractions.
On the free speech claim, we REVERSE the district court’s grant of summary
judgment to the defendants and its denial of summary judgment to the plaintiffs. We
thereby invalidate the leafleting restriction within both the inner and outer perimeters of
the Festival.1 The restriction on the sidewalks that are directly adjacent to the Festival
attractions does not serve a substantial government interest. The City keeps those same
sidewalks open for public traffic and permits sidewalk vendors, whose activity is more
obstructive to sidewalk traffic flow than pedestrian leafleting is. Moreover, the
prohibition of pedestrian leafleting in the outer perimeter is not narrowly tailored to the
goal of isolating inner areas from vehicular traffic. The City can be held liable because
the Chief of Police, who instituted the leafleting restriction, created official municipal
policy. We AFFIRM the district court’s judgment for the defendants on all other
claims. We REMAND to the district court for such further proceedings as are consistent
with this opinion that may be warranted.
1
Saieg has not requested the ability to leaflet on the street that contains Festival attractions. As
a result, we do not pass judgment on whether a ban on leafleting on that street itself is constitutionally
permissible.
No. 10-1746 Saieg v. City of Dearborn, et al. Page 3
I. BACKGROUND
A. Substantive Facts
1. The Arab International Festival
The American Arab Chamber of Commerce (“AACC”) organizes the Festival,
which is free and open to the public. Each year, over 250,000 people attend the Festival,
which features carnival rides, a main stage with live entertainment, international food,
merchandise sales, a tent targeted at children, and tents in which artisans and other
vendors display products. In 2009, forty artisan vendors, twenty-five information tables,
fourteen food vendors, and seventeen sponsor booths took part in the Festival. These
attractions are all located within the “inner perimeter” of the Festival: the eight blocks
of Warren Avenue between Hartwell Street to the west and Kingsley Street to the east,
as well as one block south on Miller Road, which intersects Warren Avenue. Due to the
scale of the event, officers from the Dearborn Police Department supply extensive
security and support the Festival from a “[c]ommand post trailer.” R. 47-11 (Ex. K:
Haddad dep. at 52). The resolution authorizing the Festival “subject[s]” the Festival to
“the rules and regulations of the Police Department.” R. 47-13 (Ex. M: Council
Resolution)
Businesses located along the inner perimeter on Warren Avenue can obtain
permits to display and sell their goods on the sidewalks outside their storefronts.
Although the City itself issued the sidewalk permits prior to 2009, the City now
delegates authority to issue the permits to the AACC. Businesses and organizations not
located on Warren Avenue can purchase an information table. In fact, if businesses or
organizations wish to distribute materials, the City’s police department requires that the
distribution occur from a “fixed location,” which in practice means an information table
located in the street, not on the sidewalk. R. 47-8 (Ex. H: Mrowka dep. at 32).
“[H]andbilling along the sidewalks that are adjacent to the [F]estival” is not permitted.
R. 47-3 (Ex. C: Beydoun dep. 35). Police officers are expected to warn anyone who
distributes leaflets and, if the person continues, to arrest the offender. Dearborn Chief
No. 10-1746 Saieg v. City of Dearborn, et al. Page 4
of Police Ronald Haddad, who assumed his position shortly before the 2009 Festival and
has prior experience with crowd control in other capacities, testified that a similar policy
is in place at the Michigan State Fair. The Michigan State Fair “will not allow you to
give out a paper clip unless you’re stationary and at a booth. It just makes good sense,
it’s a good practice[,] and it’s not a standard that is applied indiscriminately[;] it’s across
the board.” R. 47-11 (Ex. K: Haddad Dep. at 95). Fay Beydoun, Executive Director of
the AACC, testified that the leafleting policy exists “to make sure that the sidewalks
[a]re available, whether it’s for the people attending the [F]estival or people [who a]re
trying to get from one location to another to go to the businesses” along Warren Avenue.
R. 47-3 (Ex. C: Beydoun Dep. at 37); see also R. 47-11 (Ex. K: Haddad Dep. at 18)
(“[K]nowing that it [i]s going to be a very crowded situation, we . . . do our very best to
keep the sidewalks flowing.”).
To accommodate Festival traffic, the City barricades the roads within an “outer
perimeter” or “buffer zone” that surrounds the inner perimeter. Although the outer
perimeter does not contain attractions, it services the Festival by “restrict[ing] traffic,”
R. 47-8 (Ex. H: Mrowka Dep. at 15), and “giv[ing] [vehicular] traffic some final point
to turn away from the Warren Avenue destination,” R. 47-11 (Ex. K: Haddad Dep. at
26–27). The outer perimeter also enhances “crowd control [leading] into the [F]estival
area.” R. 47-8 (Ex. H: Mrowka Dep. at 15). Finally, the outer perimeter includes
parking for Festival attendees and vendors, as well as for displaced employees of Warren
Avenue businesses and any of those businesses’ patrons who are not attending the
Festival. R. 47-3 (Ex. C: Beydoun Dep. at 43–44). The outer perimeter stretches one
block north of Warren Avenue (Morrow Circle), one block south of Warren Avenue
(Blesser Avenue), five blocks west of Hartwell Street (Schaefer Road), and four blocks
east of Kingsley Street (Wyoming Avenue).
The restriction on leafleting applies in the outer perimeter area as well. Beydoun
explained why: “if you allowed someone to distribute literature within [the] outer area,
you might as well allow the other street vendors to set up tables and start selling things
No. 10-1746 Saieg v. City of Dearborn, et al. Page 5
in that area, too. That is the buffer between going in and going out. You [have] to
maintain a security area.” R. 47-3 (Ex. C: Beydoun Dep. at 58).
2. Saieg and the Arabic Christian Perspective
Saieg founded the Arabic Christian Perspective (“ACP”), a now-defunct
“national ministry established for the purpose of proclaiming the Holy Gospel of Jesus
Christ to Muslims. As part of its outreach efforts, ACP travel[ed] around the country
attending and distributing Christian literature at festivals and mosques.” R. 13
(Amended Compl. ¶ 9). Because the City is home to a “big Muslim community,” the
Festival provides Saieg the opportunity to evangelize “thousands of Muslims in one
place.” R. 48 (Ex. A: Saieg Dep. at 42, 44). Before each Festival, the ACP operated
an annual event called “Facing the Muslim Challenge.” In 2009, the program featured
panel discussions, workshops on “[e]ffectively witnessing to Muslims,” debates, door-to-
door outreach, and mosque tours. R. 47–2 (Ex. B: Program). The program culminated
in outreach at the Festival. At each Festival from 2004 to 2008, Saieg and 90 to 120
ACP members distributed leaflets from the public sidewalks that abut Warren Avenue.
In 2009, Saieg had planned for 90 ACP members to continue the practice of
leafleting while roaming the Festival. However, when Saieg shared these plans with a
City police sergeant, Saieg learned that the new Chief of Police, Chief Haddad, would
not permit anyone to distribute leaflets while walking around the Festival. Instead, the
City provided the ACP with a booth, waiving the standard fee. The booth was poorly
lit and located by carnival rides, which attracted mostly children. This problem was
remedied in 2010, when the ACP’s booth was lit and located “in the central area.” Saieg
v. City of Dearborn, 720 F. Supp. 2d 817, 834–35 (E.D. Mich. 2010) (describing then-
upcoming plans for the 2010 festival). Saieg also faces a more basic problem with
booth-based evangelism: “[t]he penalty of leaving Islam according to Islamic books is
death,” which makes Muslims reluctant to approach a booth that is publicly “labeled as
. . . Christian.” R. 48 (Ex. A: Saieg Dep. at 75). Saieg believes that evangelism is more
effective when he can roam the Festival and speak to Muslims more discreetly. The
ACP distributed 37,000 packets of religious materials in 2007 and 20,000 packets in
No. 10-1746 Saieg v. City of Dearborn, et al. Page 6
2008, but only 500 packets in 2009 due to the remote, fixed location. Numbers from
2010 are not in the record.
B. Procedural History
On June 16, 2009, Saieg and ACP sued the City and Chief Haddad for violating
their First Amendment rights to free speech, free association, and free exercise of
religion, in addition to violating the Equal Protection Clause. Saieg has specified that
“this is not a facial challenge” to the leafleting restriction but “an as-applied challenge.”
Appellant Br. at 38. Moreover, Saieg has “at no time . . . requested to engage in his
religious activity on Warren Avenue or Miller Road,” although he has asked to leaflet
on the sidewalks that are adjacent to those roads. Id. at 2. The plaintiffs sought
declaratory and injunctive relief, attorney fees and costs, and nominal damages. Two
days after the plaintiffs filed their complaint, the district court denied a temporary
restraining order. At the 2009 Festival, the plaintiffs distributed leaflets from the
inconveniently located booth.
The ACP was dismissed from the case after the organization dissolved. On
June 7, 2010, the district court denied Saieg’s motion for summary judgment and granted
summary judgment to the defendants. The district court held that the leafleting
restriction was a valid time, place, and manner restriction, relying heavily on Heffron v.
International Society for Krishna Consciousness, 452 U.S. 640 (1981), and the Sixth
Circuit’s application of Heffron in Spingola v. Village of Granville, 39 F. App’x 978 (6th
Cir. 2002) (unpublished opinion). The district court reasoned that Saieg retains
alternative channels of communication, even though they are not his preferred channels,
because he could “orally propagat[e] [his] religious views,” distribute materials from a
booth, and distribute materials outside of the Festival. Saieg, 720 F. Supp. 2d at 834–35.
The leafleting restriction is content neutral, said the district court, because permitting
Warren Avenue businesses to have sidewalk sales “favor[s], if anyone, those with space
along Warren Avenue no matter who they are or what their message” is. Id. at 837. The
leafleting restriction serves a substantial government interest “in ensuring the orderly
flow of pedestrian traffic through the crowded Festival.” Id. at 838. Finally, the district
No. 10-1746 Saieg v. City of Dearborn, et al. Page 7
court found that the restriction is narrowly tailored because allowing everyone to
distribute leaflets in the outer perimeter area would “effectively extend the Festival
grounds into an area that is meant to serve as a buffer zone between the Festival and the
outside world.” Id. at 840. Even though streets and sidewalks are traditionally public
fora, “[f]or three days out of the year, the streets and sidewalks of the outer perimeter . . .
are serving an entirely different role.” Id. The district court found that Saieg had
abandoned his free exercise claim, and also disposed of the freedom of association and
equal protection claims. Finally, the district court found that the City was not liable
under 42 U.S.C. § 1983 because there was no constitutional violation. The four
instances of selective enforcement that Saieg highlighted were “insufficient to show that
selective enforcement . . . was so widespread as to have the force of law,” and Saieg had
not shown that the selective enforcement stemmed from official policy. Id. at 844
(internal quotation marks omitted).
Saieg appealed to the Sixth Circuit and filed an emergency motion for expedited
review. On June 17, 2010, this court ruled that Saieg was likely to succeed on the merits
of his claim because, although Heffron and Spignola “may support the restriction of
leaflet distribution among the crowds within the core area of the Festival, they do not
appear to preclude similar activity in the ‘outer perimeter’ or ‘buffer zone’ leading up
to the core area.” Sixth Circuit 06/17/10 Order at 3. The panel therefore granted Saieg’s
motion for an injunction pending appeal, permitting Saieg “to distribute his religious
literature in the streets contained within . . . the ‘outer perimeter’ or ‘buffer zone,’” but
not “within the Festival itself.” Id. That order expired after the 2010 Festival. Id. The
16th annual Festival will be held June 17–19, 2011. Arab International Festival,
www.americanarab.com/events-a-programs/business-development.html.
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II. DISCUSSION
A. Standard of Review
When a district court denies a permanent injunction, we review the court’s legal
conclusions de novo, its factual findings for clear error, and the scope of the injunction
for abuse of discretion. Worldwide Basketball & Sport Tours, Inc. v. NCAA, 388 F.3d
955, 958 (6th Cir. 2004), cert. denied, 546 U.S. 813 (2005). “A party is entitled to a
permanent injunction if it can establish that it suffered a constitutional violation and will
suffer continuing irreparable injury for which there is no adequate remedy at law.”
Wedgewood Ltd. P’ship I v. Twp. of Liberty, 610 F.3d 340, 349 (6th Cir. 2010) (internal
quotation marks omitted), cert. denied, 131 S. Ct. 1007 (2011).
The district court granted the defendants summary judgment on the first
point—whether Saieg suffered a constitutional violation. That is a legal question, so the
standard of review coincides with the de novo standard that we apply to summary
judgments generally. Id. “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). “We review cross motions for
summary judgment under this standard as well, evaluating each motion on its own
merits.” La Quinta Corp. v. Heartland Props. LLC, 603 F.3d 327, 335 (6th Cir. 2010).
B. Free Speech
Following the Supreme Court’s guidance in Cornelius v. NAACP Legal Defense
& Educational Fund, Inc., 473 U.S. 788, 797 (1985), we analyze free speech claims in
three steps. Parks v. City of Columbus, 395 F.3d 643, 647 (6th Cir. 2005). The first step
is to determine whether the plaintiff’s conduct is protected speech. Id. Saieg’s conduct
is clearly protected. “‘[T]he hand distribution of religious tracts is an age-old form of
missionary evangelism,’ Murdock v. Pennsylvania, 319 U.S. 105, 108 (1943), and such
activity ‘has the same claim as [oral and written dissemination] to the guarantee[] of
freedom of speech . . . ,’ id. at 109.” Parks, 395 F.3d at 647.
No. 10-1746 Saieg v. City of Dearborn, et al. Page 9
The second step is to “‘identify the nature of the forum, because the extent to
which the Government may limit access depends on whether the forum is public or
nonpublic.’” Id. (quoting Cornelius, 473 U.S. at 797). Public streets and sidewalks “are
‘quintessential’ public forums for free speech,” Hill v. Colorado, 530 U.S. 703, 715
(2000); see also Frisby v. Schultz, 487 U.S. 474, 480–81 (1988), although “there have
been limited circumstances where public streets or sidewalks are not considered public
fora,” Parks, 395 F.3d at 648 (mentioning sidewalks by post offices and sidewalks in
military reservations). Restrictions on speech in traditional public fora must either be
(1) reasonable time, place, and manner regulations or (2) “narrowly drawn to accomplish
a compelling governmental interest.” United States v. Grace, 461 U.S. 171, 177 (1983).
In general, then, “the government’s ability to permissibly restrict expressive conduct”
on public streets and sidewalks “is very limited.” Id.
The parties disagree about whether the streets and sidewalks within the inner and
outer perimeters were functioning as traditional public fora or limited public fora2 during
the Festival. Compare Parks, 395 F.3d at 652 (holding that “the streets remained a
traditional public forum notwithstanding the special[, non-exclusive] permit” that
allowed a private group to operate a public Arts Festival on public streets), with
Spingola, 39 F. App’x at 983 (holding that the “public streets” were “not serving in
th[eir traditional] function during the festival”); see also Heffron, 452 U.S. at 651
(explaining that the Minnesota Fair, which is “a temporary event attracting great
numbers of visitors,” presents problems of traffic flow and crowd control that make “any
comparisons to public streets . . . necessarily inexact”). This disagreement, however, is
not germane to the free speech issue in this case. If a rule is “content-neutral, [then] the
appropriate test is intermediate scrutiny,” even when the rule governs speech in a
traditional public forum. Phelps-Roper v. Strickland, 539 F.3d 356, 361–62 (6th Cir.
2008); see also Spingola, 39 F. App’x at 983 (“[R]egardless of whether we would
classify the . . . festival area as a traditional public forum or a limited public forum . . . ,
2
“The government may restrict speech in a limited public forum as long as the restrictions do ‘not
discriminate against speech on the basis of viewpoint’ and are ‘reasonable in light of the purpose served
by the forum.’” Miller v. City of Cincinnati, 622 F.3d 524, 535 (6th Cir. 2010) (quoting Good News Club
v. Milford Central Sch., 533 U.S. 98, 106–07 (2001)).
No. 10-1746 Saieg v. City of Dearborn, et al. Page 10
the Ordinance is examined under the same intermediate level of scrutiny.”). As
explained below, the leafleting restriction is content neutral.
Therefore, it is the third step that decides this case: “whether the justifications
for exclusion from the relevant forum satisfy the requisite standard.” Cornelius, 473
U.S. at 797. The requisite principle applicable to this case is that “[t]ime, place, and
manner restrictions may be enforced even in a traditional public forum so long as they
are content neutral, are narrowly tailored to serve a significant government interest, and
leave open ample alternative channels of communication.” M.A.L. ex rel. M.L. v.
Kinsland, 543 F.3d 841, 850 (6th Cir. 2008). The leafleting restriction does not satisfy
this standard.
1. Content Neutrality
The leafleting restriction is content neutral. Whether a restriction on speech is
content neutral has substantial bearing on the constitutionality of the restriction because
“the government is held to a very exacting and rarely satisfied standard when it disfavors
the discussion of particular subjects or particular viewpoints within a given subject
matter.” Hill, 530 U.S. at 735 (Souter, J., concurring) (internal citations omitted).
Government regulations of speech are content neutral if they are “justified without
reference to the content or viewpoint of the regulated speech.” Christian Legal Soc’y
Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, --- U.S. ---, 130
S. Ct. 2971, 2994 (2010) (internal alterations and quotation marks omitted); see also
Hill, 530 U.S. at 719 (“‘The principal inquiry . . . is whether the government has adopted
a regulation of speech because of disagreement with the message it conveys.’” (quoting
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989))). “The government’s purpose
is the controlling consideration.” Ward, 491 U.S. at 791. “[D]ifferential impact”
without more does not demonstrate that a regulation is content based. Christian Legal
Soc’y, 130 S. Ct. at 2994.
Requiring that all literature be distributed from a stationary location is a content-
neutral regulation. Designating “specific areas for specific things” at the Festival, R. 47-
3 (Ex. C: Beydoun dep. at 33), “is not a ‘regulation of speech.’ Rather, it is a regulation
No. 10-1746 Saieg v. City of Dearborn, et al. Page 11
of the places where some speech may occur.” Hill, 530 U.S. at 719. Supporting this
conclusion is the fact that “the State’s interests” in crowd control and public safety “are
unrelated to the content of [the regulated] speech.” Id. at 719–20. In addition, Saieg has
not produced evidence that the regulation was “adopted ‘because of disagreement with
the message [that his speech] conveys.’” Id. at 719 (quoting Ward, 491 U.S. at 791).
Saieg argues that the leafleting restriction is content based because it privileges
commercial speech over noncommercial speech. He points to the City’s practice of
letting Warren Avenue storefronts erect sidewalk tables, whereas he cannot distribute
materials from the same sidewalk. This argument misapprehends the criterion for who
can vend from the sidewalk. The criterion is location, not content or type (commercial
or noncommercial) of speech. Any entity with a storefront on Warren Avenue can set
up sidewalk table, and no one without a storefront can become a sidewalk vendor. R.
47-3 (Ex. C: Beydoun Dep. at 64–65). The defendants do not inquire into whether the
sidewalk vendor is commercial or noncommercial, and the defendants do not screen the
messages that sidewalk tables convey for content.
The AACC’s proposal for the 2009 Festival confirms that location of the
speakers, not the content of their speech, is the criterion for permitting sidewalk sales.
The AACC describes “sidewalk sales . . . by merchants on Warren Ave[nue]” as a
component of the Festival, alongside the “main stage, children’s tent, vendor tents,
artisan’s tents,” “carnival,” and “[f]ood and entertainment.” R. 47-5 (Ex. E: Request
from AACC at 1). Moreover, the 2009 proposal names “promot[ing] the Warren
Avenue Business District” as one of two objectives for the Festival. R. 47-5 (Ex. E:
Request from AACC at 3). As a way of promoting the Warren Avenue Business
District, the sidewalk tables offer a “quid pro quo for stores negatively impacted by the
Festival. In exchange for subjecting them to Festival crowds in front of their stores and
closed-off streets that block regular customers’ ingress and egress, the existing
merchants are permitted to set up tables out front to sell their wares.” 720 F. Supp. 2d
at 837.
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In sum, the leafleting restriction does not use location as a guise for the content
of speech. Neither the leafleting restriction nor the interest that the defendants seek to
promote are related to the content of the restricted speech. The restriction, then, is
content neutral.
2. Substantial Governmental Interest
The leafleting restriction does not further a substantial governmental interest.
Time, place, and manner regulations must “‘promote[] a substantial government interest
that would be achieved less effectively absent the regulation.’” Ward, 491 U.S. at 799
(quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). “‘The validity of time,
place, or manner regulations does not turn on a judge’s agreement with the responsible
decisionmaker concerning the most appropriate method for promoting significant
government interests’ or the degree to which those interests should be promoted.” Id.
at 800 (quoting Albertini, 472 U.S. at 689) (internal alteration marks removed).
The defendants have named several interests that they find significant: relieving
“pedestrian overcrowding,” enhancing “traffic flow,” minimizing “threats to public
safety,” and limiting “disorderliness at the Festival.” Appellee Br. at 37. In appropriate
contexts, each of these governmental interests can be substantial. In fact, the interests
that the defendants have identified closely parallel the interests that the Supreme Court
validated in Heffron. In Heffron, Minnesota imposed leafleting restrictions at the state
fair because the state was concerned with “maintain[ing] the orderly movement of the
crowd given the large number of exhibitors and persons attending the Fair.” 452 U.S.
at 649–50. The Supreme Court held that “the State’s interest in confining distribution,
selling, and fund solicitation activities to fixed locations is sufficient to satisfy the
requirement that a place or manner restriction must serve a substantial state interest.”
Id. at 654; see also Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 768 (1994)
(recognizing the state’s “strong interest in ensuring the public safety and order” and “in
promoting the free flow of traffic on public streets and sidewalks”).
The defendants must do more, however, than “assert[] interests [that] are
important in the abstract.” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 664 (1994).
No. 10-1746 Saieg v. City of Dearborn, et al. Page 13
In the context of the Festival’s inner perimeter, the interests that the defendants have
named are merely “conjectural,” as opposed to “real.” Id. Two activities that Festival
organizers permit on sidewalks abutting Warren Avenue erode the significance of the
government’s interest in restricting leafleting on those same sidewalks. These activities
are legally relevant because “[e]xemptions from an otherwise legitimate regulation of
a medium of speech . . . may diminish the credibility of the . . . rationale for restricting
speech in the first place.” City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994).
First, Festival organizers keep sidewalks that are adjacent to Warren Avenue
open for public traffic. In Heffron, attendees paid an admission fee to enter the
fairgrounds, 452 U.S. at 658 (Brennan, J., dissenting), which means that the fairgrounds
were closed to members of the public who were not attending the fair. In fact, the
Supreme Court expressly distinguished the fairgrounds in Heffron from a public street.
452 U.S. at 651. In contrast, Festival organizers have intentionally maintained the public
character of the sidewalks that are adjacent to the Festival attractions, keeping those
sidewalks open for traffic that is unrelated to the Festival. R. 47-3 (Ex. C: Beydoun
Dep. at 37) (“We wanted to make sure that the sidewalks [a]re available, whether it’s for
the people attending the [F]estival or people [who a]re trying to get from one location
to another to go to the businesses.”). The sidewalks may well host more traffic during
the Festival than they do on other days of the year. Nevertheless, the defendants have
chosen to keep the sidewalks open for public use, showing that the interests in crowd
control and public safety are not so pressing that they justify restricting normal activity
that occurs on streets and sidewalks. Therefore, because Festival organizers permit
public traffic on the sidewalks next to Warren Avenue, the interest in curtailing First
Amendment expression on those sidewalks is not substantial.3
Second and more importantly, Festival organizers permit sidewalk vendors on
the sidewalks that are adjacent to Warren Avenue, belying the significance of their
interest in clear sidewalks and crowd control. The sidewalk vendors have no analog in
3
The district court rejected this argument because Spingola applied Heffron to a two-block fair
on public streets. However, Spingola was an unpublished opinion that did not analyze the issue. To the
extent that Spingola’s holding runs counter to our analysis, we do not find Spingola persuasive.
No. 10-1746 Saieg v. City of Dearborn, et al. Page 14
the facts of Heffron, where the fair “confin[ed] individual exhibitors to fixed locations,
with the public moving to and among the booths or other attractions, using streets and
open spaces provided for that purpose.” 452 U.S. at 650. Leafleting is less obtrusive
than sidewalk tables are because “‘[t]he distribution of literature does not require that
the recipient stop in order to receive the message the speaker wishes to convey; instead
the recipient is free to read the message at a later time.’” Int’l Soc’y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 690 (1992) (O’Connor, J., concurring)
(quoting United States v. Kokinda, 497 U.S. 720, 734 (1990)). The defendants admitted
at oral argument that leafleters have never posed any problems of public safety or breach
of the peace at the Festival that could make leafleters more obtrusive than sidewalk
vendors. By permitting the more obstructive sidewalk tables in the same place where
Saieg wishes to leaflet by foot, the defendants have undercut the credibility of the
asserted government interests.4
The defendants respond that an interest can be substantial even if the state does
not promote it in every conceivable way. A restriction on speech can satisfy the time,
place, and manner test if the restriction “promotes a substantial government interest that
would be achieved less effectively absent the regulation.” Ward, 491 U.S. at 799
(internal quotation marks omitted; emphasis added). This statement of the law is drawn
from the requirement of narrow tailoring. Immediately after the quoted language, Ward
clarifies that, “[t]o be sure, this standard [for narrow tailoring] does not mean that a time,
place, or manner regulation may burden substantially more speech than is necessary to
further the government’s legitimate interests.” Id. (emphasis added). By analogy, even
when a regulation promotes a government interest that would be achieved less
effectively absent the regulation, the government’s interest may still be insubstantial if
the regulation burdens substantially less speech than is necessary to further the
4
The district court’s response to Saieg’s argument is not persuasive. According to the district
court, the Sixth Circuit rejected an argument similar to Saieg’s in Spingola. In Spingola, the plaintiff
“argue[d] that the regulation does not relieve the crowding and pedestrian flow obstructions that take place
during the festival regardless.” 39 F. App’x at 984. Saieg’s argument goes further than saying that the
regulation is not a panacea for crowd control. Saieg claims that the defendants permit one activity that
seriously harms the government’s supposed interest at the same time that they ban another activity that
only mildly harms that same supposed interest.
No. 10-1746 Saieg v. City of Dearborn, et al. Page 15
government’s interest. See City of Ladue, 512 U.S. at 51 (“[T]he notion that a regulation
of speech may be impermissibly underinclusive is firmly grounded in basic First
Amendment principles.”); Rubin v. Coors Brewing Co., 514 U.S. 476, 489 (1995)
(holding that a policy violates the First Amendment because “exemptions and
inconsistencies bring into question the purpose” of the policy, even though “the
Government’s interest . . . remains a valid goal”); Florida Star v. B.J.F., 491 U.S. 524,
540 (1989) (holding that “the facial underinclusiveness” of the state’s restriction on
speech “raises serious doubts about whether Florida is, in fact, serving . . . the significant
interests [that it has] invoke[d] in support” of the policy). In this case, the nature and
scale of the activities that the defendants permit on the sidewalks adjacent to Warren
Avenue show that the government’s asserted interests are not substantial in the context
of those sidewalks.
With regard to the outer perimeter, the roads and sidewalks are open for
pedestrians in the same way as the sidewalks that are adjacent to Warren Avenue.
Concerns about crowd control seem to be exclusively conjectural. However, Saieg
focuses his argument about the outer perimeter on the question of narrow tailoring. We
follow his lead and address the outer perimeter below.
3. Narrow Tailoring
The leafleting restriction within the outer perimeter is not narrowly tailored to
further the government’s objectives. To be narrowly tailored, a regulation must not
“burden substantially more speech than is necessary to further the government’s
legitimate interests.” Ward, 491 U.S. at 799. Put differently, the regulation must not be
“substantially broader than necessary.” Id. at 800. “[W]hen a content-neutral regulation
does not entirely foreclose any means of communication, it may satisfy the tailoring
requirement even though it is not the least restrictive or least intrusive means of serving
the [state’s] goal.” Hill, 530 U.S. at 726.
The parties disagree about whether the sidewalks adjacent to the Festival and the
streets and sidewalks within the outer perimeter area are “part of” the Festival.
Consequently, the parties also disagree about whether Saieg seeks to participate in the
No. 10-1746 Saieg v. City of Dearborn, et al. Page 16
Festival or to leaflet near the Festival, a distinction that informs their arguments about
narrow tailoring. This debate is a red herring. The narrow-tailoring requirement focuses
on the nexus between the regulation and the government’s interest. Grace, 461 U.S. at
181. The government’s interests need not be coterminous with “the Festival” as a
monolithic area, and the government may have different interests in different areas of the
Festival or near the Festival. As a result, whether these locations are classified as part
of “the Festival” does not determine whether the leafleting restriction is narrowly
tailored to accomplish the government’s interests.
Saieg has not requested to leaflet on Warren Avenue. Moreover, Saieg has not
disputed that the restriction on leafleting within the inner perimeter—the sidewalks
adjacent to Warren Avenue—is narrowly tailored. Saieg, 720 F. Supp. 2d at 839
(“Plaintiff does not mount a ‘narrow tailoring’ challenge with respect to the enforcement
of the handbilling ban in the inner perimeter.”). As explained above, we agree with
Saieg that the inner-perimeter restriction on leafleting does not further a substantial
government interest, making the question of narrow tailoring irrelevant.
The restriction on leafleting within the outer perimeter is substantially broader
than necessary to further the government’s interests, assuming that those interests are
substantial. In reaching the opposite conclusion, the district court and the defendants
correctly analyze the issue from the perspective of permitting everyone to leaflet, not
only Saieg. See Heffron, 452 U.S. at 653 (“Obviously, there would be a much larger
threat to the State’s interest in crowd control if all other religious, nonreligious, and
noncommercial organizations could likewise move freely about the fairgrounds
distributing and selling literature and soliciting funds at will.”). The district court,
however, used that perspective to magnify an unsubstantiated fear. “[M]ere speculation
about danger” is not an adequate basis on which to justify a restriction of speech. Bay
Area Peace Navy v. United States, 914 F.2d 1224, 1228 (9th Cir. 1990); see also Turner
Broad. Sys., Inc., 512 U.S. at 664 (requiring that the government “demonstrate that the
recited harms are real, not merely conjectural, and that the regulation will in fact
alleviate these harms in a direct and material way”). Although the government has an
No. 10-1746 Saieg v. City of Dearborn, et al. Page 17
interest in crowd control, the defendants “must do more than simply posit the existence
of the disease sought to be cured.” Turner Broad. Sys., Inc., 512 U.S. at 664 (internal
quotation marks omitted); see also Klein v. City of San Clemente, 584 F.3d 1196, 1202
(9th Cir. 2009) (“[M]erely invoking interests is insufficient. The government must also
show that the proposed communicative activity endangers those interests.” (internal
alteration marks and quotation marks omitted)), cert. denied, 130 S. Ct. 1706 (2010).
The district court neglected these principles by concluding that throngs of people “would
all flock to the outer perimeter to promote their respective interests and messages,”
thereby “extend[ing] the Festival grounds into an area that is meant to serve as a buffer
zone between the Festival and the outside world.” Saieg, 720 F. Supp. 2d at 840. The
weakness in the district court’s argument is that the primary justification for the outer
perimeter is to curb vehicular traffic and provide parking, not to cabin pedestrian crowds.
Despite the district court’s speculation, the record does not mention any existing problem
of pedestrian traffic in the outer perimeter area. Saieg leaflets by foot. While his
leafleting might attract pedestrian listeners who would congregate on the sidewalks, it
is hard to imagine that leafleters, who would be competing with more interesting
attractions on Warren Avenue, could draw crowds so large that the Festival would
balloon outward. Attracting merely a few listeners on a sidewalk would not implicate
a substantial governmental interest in crowd control.
Beydoun’s testimony mirrors the hyperbole of the district court: “if you allowed
someone to distribute literature within [the] outer area, you might as well allow the other
street vendors to set up tables and start selling things in that area, too. That is the buffer
between going in and going out. You [have] got to maintain a security area.” R. 47-3
(Ex. C: Beydoun Dep. at 58). Beydoun’s worry is exaggerated. Although “[t]he
justification for the [challenged rule] should not be measured by the disorder that would
result from granting an exemption solely to” the challenging party, Heffron, 452 U.S. at
652, permitting 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.
Instead, by invalidating the leafleting restriction, we hold only that the defendants must
No. 10-1746 Saieg v. City of Dearborn, et al. Page 18
permit speech—including, but not limited to, archetypical First Amendment activity such
as distributing leaflets, books, or DVDs.
The restriction on pedestrian leafleting is substantially broader than necessary
to further the interest in vehicular traffic control and parking. In other words, the
restriction is not narrowly tailored because there is “an insufficient nexus” between the
government’s asserted interest and the leafleting restriction. Grace, 461 U.S. at 181.
4. Ample Alternative Channels of Communication
We do not decide whether the restriction on leafleting leaves Saieg with ample
alternative methods of communicating to his target audience. Any time, place, and
manner restriction must leave open ample alternative channels by which speakers can
communicate their messages, although speakers are “not entitled to [their] best means
of communication.” Phelps-Roper, 539 F.3d at 372. “An alternative is not ample if the
speaker is not permitted to reach the intended audience.” Bay Area Peace Navy, 914
F.2d at 1229 (internal quotation marks omitted). The requirements for a time, place, and
manner restriction are conjunctive. See, e.g., Watchtower Bible & Tract Soc’y of New
York, Inc. v. Village of Stratton, 536 U.S. 150, 168–69 (2002) (invalidating an ordinance
that served a substantial government interest because it was not narrowly
tailored—without discussing whether ample alternative channels of communication
existed). Thus, the leafleting restriction is unconstitutional even if it leaves open ample
alternative channels of communication.
5. Summary
Even though the leafleting restriction is content neutral and might provide ample
alternative means of communication, the policy is not a reasonable time, place, and
manner restriction. Within the inner perimeter, the restriction does not serve a
substantial governmental interest, as evidenced by the defendants’ willingness to permit
sidewalk vendors and ordinary pedestrian traffic on the same sidewalks where they
prohibited Saieg from leafleting. Within the outer perimeter area, the restriction is not
No. 10-1746 Saieg v. City of Dearborn, et al. Page 19
narrowly tailored because the government’s interest in vehicular traffic control is
attenuated from concern about pedestrian crowds that pedestrian leafleting might draw.5
Saieg has requested, in the event that this court rules in his favor, “that the
decision be crafted to prevent Defendants from circumventing it by playing a game of
shifting ‘perimeters.’” Reply Br. at 1 n.1. Our holding is not predicated on the
boundaries of the Festival or a distinction between the inner and outer perimeters. Saieg
and other members of the public may leaflet from any street or sidewalk that remains
open for typical, non-Festival pedestrian traffic, even if the street or sidewalk is
simultaneously used for Festival traffic. We note that, should the City’s conjectural
harms come to pass, the City can move to modify the injunction. Deja Vu of Nashville,
Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., 466 F.3d 391, 395 (6th Cir. 2006),
cert. denied, 549 U.S. 1339 (2007).
In addition to declarative and injunctive relief, Saieg is entitled to nominal
damages for the violation of his constitutional rights. See Carey v. Piphus, 435 U.S. 247,
266 (1978).
C. Freedom of Association
Saieg’s freedom-of-association claim lacks merit. The freedom to associate
protects “choices to enter into and maintain certain intimate human relationships” as well
as “associat[ion] for the purpose of engaging in those activities protected by the First
Amendment.” Roberts v. United States Jaycees, 468 U.S. 609, 617–18 (1984). Unless
they promote compelling state interests, government actions violate the freedom of
association when, for example, they “seek to impose penalties or withhold benefits from
individuals because of their membership in a disfavored group; . . . attempt to require
disclosure of the fact of membership in a group seeking anonymity; . . . [or] try to
interfere with the internal organization or affairs of the group.” Id. at 622–23 (internal
5
Although Saieg has sought to leaflet on the sidewalks adjacent to Warren Avenue and Miller
Road, he has repeatedly declined to request permission to leaflet on those streets themselves. Appellant
Br. at 2. Because Saieg has not raised the issue, we have no occasion to decide whether Saieg may leaflet
on those streets.
No. 10-1746 Saieg v. City of Dearborn, et al. Page 20
citations omitted). Even though Saieg has been deprived of one outlet for his
association’s expression, his freedom to associate has not been abridged in any way
comparable to these examples. Saieg is free to associate even at the Festival. Only
leafleting, not association, has been restricted.
D. Free Exercise of Religion
Saieg abandoned his free exercise claim before the district court. 720 F. Supp.
2d at 841. He has not contested the waiver on appeal. Therefore, his free exercise claim
is not one that we must consider. Doe v. Bredesen, 507 F.3d 998, 1007 (6th Cir. 2007),
cert. denied, 129 S. Ct. 287 (2008).
E. Equal Protection
The leafleting restriction does not violate the Equal Protection Clause. Saieg
argues that the leafleting restriction distinguishes by content between religious leaflets
and commercial sidewalk tables. He relies on Police Department of City of Chicago v.
Mosley, 408 U.S. 92, 96 (1972), which held that “[s]elective exclusions from a public
forum may not be based on content alone, and may not be justified by reference to
content alone.” Unlike the restriction in Mosley, however, the restriction in this case
does not “describe[] permissible [speech] in terms of its subject matter.” Id. at 95.
Instead, sidewalk tables are permissible according to the location of the organization that
operates them, not the subject matter of the message that the organization conveys. See
supra Section II.B.1. Therefore, the restriction does not violate the Equal Protection
Clause.
F. City’s Liability
The City may be held liable for the restriction of Saieg’s free speech rights that
the leafleting restriction caused. A municipality is liable if a constitutional injury results
from a policy or custom “made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
694–95 (1978). In this case, the City approved the Festival “subject to . . . the rules and
regulations of the Police Department.” R. 47-13 (Ex. M: Council Resolution).
No. 10-1746 Saieg v. City of Dearborn, et al. Page 21
Although the AACC also wanted to prohibit leafleting, Chief Haddad described the
leafleting policy as his department’s policy, subject only to the approval of the city
council and the mayor. R. 47-11 (Ex. K: Haddad Dep. at 95–96) (stating that “the
police department will supply the standards that must be met,” such as the “prohibition
of individuals handing out . . . materials on the public sidewalk”). The police
department’s leafleting policy, made with the authority that the City Council delegated
to it, fairly represents official City policy. Therefore, Saieg may hold the City liable for
violating his First Amendment right to free speech.
However, the City is not liable for claims of selective enforcement. Because the
argument portion of Saieg’s appellate brief does not identify or provide citations for any
instances of selective enforcement, Saieg has waived the claim. Even considering the
merits of Saieg’s claim, the district court properly found that the incidents of supposedly
selective enforcement were not “so widespread as to have the force of law,” Bd. of Cnty.
Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403–04 (1997), and are not actions
ascribable to Chief Haddad as opposed to individual officers. 720 F. Supp. 2d at 844.
III. CONCLUSION
The leafleting restriction is not a reasonable time, place, and manner restriction.
In the inner perimeter, the restriction does not serve a substantial governmental interest.
In the outer perimeter, the restriction is not narrowly tailored. The defendants therefore
violated Saieg’s First Amendment right to freedom of speech. Absent an injunction,
Saieg will continue to suffer irreparable injury for which there is no adequate remedy at
law. As a result, on the free-speech claim, we REVERSE both the district court’s grant
of summary judgment to the defendants and its denial of summary judgment to the
plaintiffs. We AFFIRM the district court’s judgment for the defendants on all other
claims. We REMAND to the district court for such further proceedings as are consistent
with this opinion that may be warranted, including the entry of such injunctive relief in
favor of Saieg as may be appropriate in advance of the Festival scheduled for June
17-19, 2011.
No. 10-1746 Saieg v. City of Dearborn, et al. Page 22
_________________
DISSENT
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge, dissenting. In contrast to the
majority here, I am persuaded that the restrictions on leafleting imposed during the Arab
International Festival did not violate the plaintiff’s First Amendment right to free speech.
Those restrictions constituted a reasonable time, place, and manner limitation in service
of a substantial government interest, and they were sufficiently narrowly tailored to
further that substantial interest, as the district court held in a thoughtful and well-
documented opinion granting summary judgment to the City of Dearborn and its Chief
of Police. While I would normally set out an analysis to support this conclusion, there
is no reason to delay issuance of the majority’s order in this expedited appeal, given that
the district court has provided a masterful explanation for judgment in the defendants’
favor. I therefore dissent for reasons set out in the district court’s opinion and order filed
on June 7, 2010.