Reform America v. City of Detroit, Mich. ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0133p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
REFORM AMERICA; MARK HARRINGTON, │
Plaintiffs-Appellants, │
│
│
v. >
│ No. 21-1552
│
CITY OF DETROIT, MICHIGAN; DARIN SZILAGY,
│
individually and in his official capacity as a Police
│
Commander, City of Detroit Police Department; KURT
│
WORBOYS, individually and in his official capacity as
│
a Police Captain, City of Detroit Police Department;
│
RONALD LACH, individually and in his official
│
capacity as a police officer, City of Detroit Police
│
Department,
│
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:19-cv-12728—Laurie J. Michelson, District Judge.
Argued: March 10, 2022
Decided and Filed: June 17, 2022
Before: McKEAGUE, STRANCH, and BUSH, Circuit Judges.
_________________
COUNSEL
ARGUED: Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor,
Michigan, for Appellants. Sheri L. Whyte, CITY OF DETROIT LAW DEPARTMENT, Detroit,
Michigan, for Appellees. ON BRIEF: Robert Joseph Muise, AMERICAN FREEDOM LAW
CENTER, Ann Arbor, Michigan, for Appellants. Sheri L. Whyte, CITY OF DETROIT LAW
DEPARTMENT, Detroit, Michigan, for Appellees.
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 2
_________________
OPINION
_________________
JOHN K. BUSH, Circuit Judge. Reform America, a nonprofit corporation that does
business as Created Equal, is an organization that engages in anti-abortion protests. To that end,
the group and its founder, Mark Harrington, sought to demonstrate at the Democratic Party’s
presidential-primary debates in Detroit, Michigan, in the summer of 2019. In response to security
concerns, however, the Detroit Police Department (“DPD”) imposed and enforced several
measures that impeded the group’s speech. A “restricted area” blocked access to the debate
venue’s immediate vicinity. Protestors were divided into “right-leaning” and “left-leaning”
camps and were barred from commingling. And Harrington himself was even briefly detained
after a confrontation with police.
Fed up with the speech restrictions, Harrington and his group eventually abandoned the
site for good. They also filed a federal complaint alleging violations of the First and Fourth
Amendments and the Equal Protection Clause of the Fourteenth Amendment. But the district
court granted summary judgment to defendants—the City of Detroit and three individual
officers—reasoning that no constitutional violations occurred. Likewise discerning no violations,
we affirm.
I.
On July 30 and 31, 2019, candidates for the Democratic Party’s nomination in the 2020
presidential election gathered for a pair of televised debates at the Fox Theatre in Detroit. Given
the political salience of the event, it attracted many attendees, as well as protestors of all
ideological stripes. Among the latter was Created Equal. As part of its effort to expose what it
terms “the atrocity of abortion,” the group says that it often attends public events to display
posters with graphic images of aborted fetuses, distribute anti-abortion literature, and “engag[e]
in civil discussions with those who support abortion.” And during the events in question, group
members hoped to do so in the debates’ immediate vicinity, where they believed their message
would have the greatest impact.
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 3
Yet the group would soon encounter several obstacles to its plan. After the Democratic
National Committee had selected Detroit as the debates’ location, media and law enforcement
began to collaborate on how to successfully execute the event. Together, DPD, the United States
Secret Service, the Department of Homeland Security, CNN (which would televise the debates),
and Olympia Entertainment (which owns and operates the Fox Theatre), devised a surrounding
“restricted area” to protect the candidates and ensure order. The geographic scope of that area is
depicted with red and black lines on the diagram below.1 All told, it comprised the Fox Theatre
itself, the nearby parking lot of the St. John’s Church, the two Comerica Park parking lots to the
east, and three additional blocks to the south. The restricted area thus totaled just under eight
square blocks.
1This diagram appears at multiple points in the record. See, e.g., Exhibit 3, R. 20-3; Op. & Order at 3,
R. 33. Commander Szilagy added the red lines with a pen during his deposition.
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 4
Realizing that hosting twenty leading politicians could foster potential threats, DPD’s
officers took several measures to secure the restricted area. It was swept for explosives and
closed to vehicular traffic. Though pedestrians did not have to undergo a security screening to
enter the restricted area, they could do so only if they held either media credentials or tickets for
the debate.2 Even for ticketholders permitted into the restricted area, the police prohibited
protest activities. Though protestors were free to speak and handbill almost anywhere outside
the restricted area, the only speech activities permitted within it unfolded at a “candidate support
corral” that CNN had established at one of the privately owned Comerica Park parking lots
depicted above. And when those supporters of Democratic candidates strayed from the “corral”
to demonstrate elsewhere in the restricted area, DPD officers promptly escorted them back.
Members of Created Equal discovered all this at about 6 p.m. on July 30, when they
arrived to begin their protest. They first sought to enter the restricted area from the north, near
where the above diagram shows the intersection of Fisher Freeway and Woodward Avenue
(the road that bisects the restricted area). When group members arrived at the boundary of the
restricted area, DPD Sergeant Jay Everitt asked them—as captured on Harrington’s own
bodycam footage—“You got a ticket?” Harrington responded, “No.” Everitt then informed the
group that it could not access the restricted area without presenting the proper credentials.
Harrington loudly objected that the officers had established a “police state,” but he and the group
eventually walked away.
Moving eastward, the group next tried to enter the restricted area from the eastern side of
Woodward Avenue. But it was intercepted again by DPD officers; this time, Officers Allyne and
Thomas. Officer Allyne asked the group if its members held tickets to the debate. Harrington
responded, “No. We just have the First Amendment.” When officers explained that entry into
the restricted area required tickets, Harrington again objected that “this isn’t Venezuela” or a
“police state.” He also began to argue with DPD Captain Kurt Worboys, who had been standing
near Officer Allyne. Soon after, another officer, Lieutenant Brandon Cole, began to explain that
2Though there is some uncertainty, apparently, about which credentials sufficed—i.e., debate tickets only,
or both tickets and media credentials—all agree that credentials of some kind were needed to enter the restricted
area and that it was inaccessible to the general public. See Harrington Dec. ¶21, R. 20-2; see also Szilagy Dep. at
34:19–35:9, R. 24-2.
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 5
the group was free to protest anywhere it wanted outside the restricted area or within “free
speech areas” about three blocks south, in Grand Circus Park. Harrington objected once again to
the restrictions, but the interaction broke off and the group continued to walk eastward.
Created Equal then ventured into the parking lot of the St. John’s Church, enclosed in the
above diagram with red lines. Once there, group members briefly displayed their signs by
leaning them against the parking lot’s fence so that they faced Woodward Avenue. Seeing this,
however, Captain Worboys and Officer Cole told the group that the church parking lot was
private property and that Created Equal was not permitted to be there. Yet rather than leave,
Harrington objected that several media personnel were freely operating within the lot. He also
argued that he could not be made to leave until the property owner had personally instructed him
to. Captain Worboys responded that the “owner” (technically, an Olympia affiliate leasing the lot
to host the media personnel present) had already informed officers that it did not want Created
Equal on the premises.
Having noticed the unfolding altercation, DPD Commander Darin Szilagy stepped in.
Commander Szilagy was then serving as DPD’s “tactical lead,” charged with maintaining the
integrity of the restricted area and coordinating the response to potential emergencies. Szilagy
likewise informed Harrington that someone from Olympia had requested that the group leave.
Szilagy also explained that DPD was not biased against Created Equal’s speech but simply
wanted to maintain event security by enforcing the restricted area. After Harrington again
objected that officers were permitting the media (but not Created Equal) to remain in the lot,
Captain Worboys explained that CNN was allowed to be there because it had paid to do so.
Still, however, Harrington refused to leave the church parking lot and continued to argue
with officers. Commander Szilagy responded that he did not “have time” for the discussion and
ordered the surrounding officers to arrest Harrington. Officers held Harrington’s hands behind
his back and began to place him in flex cuffs. Yet Harrington relented and agreed to leave.
Officers released him and escorted the group to the lot’s exit—a large gap in the surrounding
fence.
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 6
Created Equal next traveled about three blocks south to Grand Circus Park—the location
of the “free speech areas.” Upon their arrival, group members established a protest site in the
park’s western portion, labeled “Free Speech Area 2” (“FSA 2”) on the above diagram. The
group suffered no interference with its protest activities while it remained in FSA 2. Eventually
though, group members decided that “Free Speech Area 1” (“FSA 1”) to the east was the better
protest site, as it had a clearer sightline to the Fox Theatre. Yet when they tried to move
eastward across Woodward Avenue, Officer Ronald Lach and other members of DPD told them
that they could either turn back to FSA 2 or be arrested. To reduce the potential for violence,
DPD officers required that protestors for putatively “right-leaning” causes remain in FSA 2,
while protestors for putatively “left-leaning” causes had to remain in FSA 1. A group member
objected that officers were discriminating against Created Equal’s speech because it “ha[d] a
right to be over there.” But the officers explained that, in fact, they were keeping the respective
groups divided to maintain peace and safety. The group member again objected that the division
was unconstitutional. Officer Lach responded “let it be unconstitutional then” and reiterated his
“legal order” to turn back. After Harrington himself briefly argued with the officers, Created
Equal returned to FSA 2.
As the evening wore on, Commander Szilagy, by then near Grand Circus Park, sensed
that protesters in FSAs 1 and 2 were becoming increasingly agitated. One suggested to Szilagy
that it might help defuse the tension if the groups were allowed to march in front of the Fox
Theatre to express their messages. Once all the candidates and debate attendees were inside the
theater—thus permitting Szilagy to redirect DPD manpower to monitoring the march—he
agreed. First, the “left-leaning” groups from FSA 1 marched northward up Woodward Avenue,
through the nominal restricted area. After the “left-leaning” groups were finished, the “right-
leaning” groups marched as well. Defendants estimate that each side took about fifteen minutes,
while Created Equal says it was only about five and that, in any event, the march was inadequate
to properly express its message. The first day’s events otherwise concluded without further
issue.
Undeterred, Created Equal showed up to protest on the second day of the debates as well.
Yet rather than heed officers’ previous instruction to remain in FSA 2, Created Equal headed
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 7
straight for FSA 1 on the theory that it was the more desirable of the FSAs. The group resided in
FSA 1 for about forty minutes, apparently unnoticed, until one of its members began to use a
bullhorn. Officers then approached Created Equal and told its members that they could either
move back to FSA 2 or be arrested. Rather than face arrest, the group returned to FSA 2. It now
objects that bullhorns and even a rock concert were permitted in FSA 1 the day before,
supporting an inference, in its view, that officers were discriminating against the group’s
message. Fed up at last with these perceived slights, Created Equal left the debates “for good.”
But the group was not yet finished contesting the restrictions. A few months later,
Harrington and Created Equal filed the present lawsuit under 42 U.S.C. § 1983. Their complaint
alleges violations of the First and Fourth Amendments and the Equal Protection Clause of the
Fourteenth—we describe each specific allegation more fully below—and it names as defendants
officers Szilagy, Worboys, and Lach, along with the City of Detroit. See Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 694–95 (1978) (explaining that once a constitutional violation by an
individual officer is established, the municipality itself may be held liable if its “official policy”
was “the moving force of the constitutional violation”). As for the remedy, Created Equal seeks
nominal damages for defendants’ alleged past violations of its members’ rights, a declaratory
judgment that their rights were violated, and an injunction against future violations.
After discovery, plaintiffs and defendants cross-moved for summary judgment. The
district court adjudicated both motions in a combined opinion and order, denying Created
Equal’s motion and granting defendants’. Reasoning that at no point were plaintiffs’ rights
violated, it declined to reach defendants’ alternative arguments about qualified immunity and
Monell. Plaintiffs appealed the next day.
II.
Because the district court’s grant of summary judgment to the defendants “put an end to
[the] trial-level proceedings,” it constitutes a “final decision[ ]” over which 28 U.S.C. § 1291gives us jurisdiction. Trayling v. St. Joseph Cnty. Emps. Chapter of Local #2995, 751 F.3d 425,
426 (6th Cir. 2014). And we review that order de novo, undertaking the same inquiry as did the
district court. See Jordan v. Howard, 987 F.3d 537, 542 (6th Cir. 2021). Thus, drawing all
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 8
reasonable inferences against the movant, we ask whether he has shown “that there is no genuine
dispute as to any material fact” and that he “is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A dispute is “genuine” only if a reasonable jury could decide it either way,
and it is “material” only if its resolution could affect the case’s outcome. Henson v. Nat’l
Aeronautics & Space Admin., 14 F.3d 1143, 1148 (6th Cir. 1994); Tenn. Dep’t of Mental Health
& Mental Retardation v. Paul B., 88 F.3d 1466, 1472 (6th Cir. 1996). Last, we note that we
apply these same standards even though the appeal arises on cross-motions for summary
judgment. See Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991) (citation
omitted); accord B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 592 (6th Cir. 2001).
Cross-motions, in other words, do not mean that the parties have agreed to a stipulated record
and that one of the motions must be granted. Taft Broad. Co., 929 F.2d at 248; B.F. Goodrich
Co., 245 F.3d at 592. Rather, we evaluate the respective motions on their own merits, keeping in
mind that a trial may be appropriate still. Schickel v. Dilger, 925 F.3d 858, 869 (6th Cir. 2019);
Taft Broad. Co., 929 F.2d at 248 (citation omitted).
III.
We first address the remedies that Created Equal seeks and its Article III standing to seek
them. As we noted above, the group wants nominal damages, a declaratory judgment, and an
injunction against future enforcement of the City’s speech restrictions. So it must show standing
to seek each of those respective remedies. See, e.g., DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 352 (2006). But the group made only two-thirds of that requisite showing. Created Equal
no doubt may seek nominal damages to redress the asserted past violations of its constitutional
rights. See Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801–02 (2021). And it can also seek a
declaratory judgment that its rights were so violated, since the nominal-damages request supplies
an independent jurisdictional basis to support a declaratory judgment. See Mich. Corr. Org. v.
Mich. Dep’t of Corr., 774 F.3d 895, 902 (6th Cir. 2014).
The problem is the request for injunctive relief. As the Supreme Court has made clear,
plaintiffs seeking the forward-looking remedy of an injunction must establish a likelihood that
defendants will continue to violate their rights in the future. See City of Los Angeles v. Lyons,
461 U.S. 95, 105–06 (1983). Yet here, Created Equal has done nothing of the sort. Its complaint
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 9
presented only three conclusory allegations about how Detroit may once again host some future
political event, Created Equal may attend it, and thus the group may once again suffer a speech
restriction. Even if those allegations were true, however, they would amount to mere someday-
intentions. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992). Moreover, we are at the
summary-judgment stage, so plaintiffs “can no longer rest” on allegations alone; we instead must
look to “specific facts” supported by evidence. See id. at 561 (citation omitted). In terms of
Created Equal’s evidence of its plans, Harrington’s declaration says nothing about a future
political event in Detroit that Created Equal seeks to attend. Nor could counsel for Created
Equal salvage the injunctive-relief request at oral argument. As he frankly acknowledged, the
group has “nothing specific” on any particular future event that it might attend in Detroit. See
Recording of Oral Arg. at 2:44–3:06; see also id. at 2:21–2:26. So while plaintiffs’ quest for
retrospective relief suffices to keep this a live case or controversy, no jurisdiction exists under
Article III to support an injunction.
IV.
We turn now to the various alleged constitutional violations plaintiffs seek to remedy.
Harrington and Created Equal, best as we can tell, assert that defendants violated the
Constitution at six discrete points—by imposing the restricted area that blocked access to
traditional public fora, by ordering Created Equal to leave the St. John’s Church’s parking lot, by
detaining Harrington when he refused to leave it, by creating and enforcing the division between
FSAs 1 and 2, by permitting the brief march (with groups separated by viewpoint) through the
restricted area, and by ejecting Created Equal from FSA 1 after a group member began to use a
bullhorn. In Created Equal’s view, defendants’ behavior at each step violated either the Speech
Clause of the First Amendment or the Equal Protection Clause of the Fourteenth, while
Harrington’s seizure in the church parking lot is additionally said to be a violation of the Fourth
Amendment. We address each of those various theories below.
1. Defendants’ Creation and Enforcement of the Restricted Area
Created Equal first alleges that defendants transgressed the Speech and Equal Protection
Clauses by preventing it from entering the “restricted area” around the Fox Theatre. The group
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 10
claims that this was a content- and viewpoint-based restriction applied against it because of its
anti-abortion message and thus that officers’ enforcement of the restricted area warrants strict
scrutiny. Strict scrutiny would indeed be the appropriate standard if Created Equal had presented
evidence that (1) officers’ denial of entry was content based, or (2) officers used a facially
content-neutral criterion against the group for the true purpose of suppressing its message. See
Reed v. Town of Gilbert, 576 U.S. 155, 165–67 (2015).
Yet Created Equal has failed to show that strict scrutiny should apply because it has
shown no genuine issue over whether defendants excluded the group from the restricted area
based on the content of its speech. Both sides agree that the sole requirement for entry into the
restricted area was possession of a ticket for the Democratic debate. See Szilagy Dep. at 18:21–
23, R. 24-2; Harrington Dec. ¶21, R. 20-2. And they also agree that nobody from Created Equal
held tickets to the event. Harrington himself confirmed as much in plaintiffs’ own bodycam
footage, which captured both his admission to officers on scene that the group had no tickets and
the officers’ consequent refusal to admit the group into the restricted area. See Szilagy Dep. at
33:23–34:2, R. 24-2. Indeed, as counsel for Created Equal conceded at oral argument, the group
never even tried to secure the relevant tickets. Recording of Oral Arg. at 7:03–7:09.
There is also no genuine dispute that the group’s lack of tickets was the true basis for
officers’ denial of its entry into the restricted area. In other words, there is no evidence that
officers somehow used the group’s lack of tickets as an ostensibly content-neutral pretext to deny
its members entry when the real reason for the denial was the content of the group’s message.
Cf. Reed, 576 U.S. at 167 (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Each
time the group sought to enter the restricted area, officers explained that entry required tickets—
not that entry was forbidden given the content of the group’s speech. See, e.g., Video 1 at 0:45;
Szilagy Dep. at 33:23–34:2, R. 24-2. Moreover, officers excluded all members of the public
from the restricted area if they lacked the relevant credentials. See Szilagy Dep. at 127:10–
129:15, R. 24-2. They thus turned away all uncredentialed protestors—from both “right-
leaning” and “left-leaning” groups—no matter the content of their messages. Id. So there is no
genuine dispute that defendants’ enforcement of the “restricted area” was ideologically
evenhanded.
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 11
Because officers’ sole criterion for admission to or exclusion from the restricted area—
whether an individual had a ticket—was content neutral, defendants’ incidental burden on
plaintiffs’ speech merits only intermediate scrutiny. See Ward, 491 U.S. at 791. The governing
case, therefore, is the Supreme Court’s decision in Ward v. Rock Against Racism. Id. at 781.
Under that precedent, a content-neutral time, place, or manner restriction can survive
intermediate scrutiny if defendants make three showings. First, the restricted area must have
served a “significant governmental interest.” Id. at 791 (citing Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 293 (1984)). Second, it must have been “narrowly tailored” to that
purpose, meaning that the restriction survives so long as the governmental interest “would [have
been] achieved less effectively” in its absence. Id. at 791, 799 (citing Clark, 468 U.S. at 293;
United States v. Albertini, 472 U.S. 675, 689 (1985)). Last, it must have left open “ample
alternative channels for communication of the information.” Id. at 791 (citing Clark, 468 U.S. at
293). Defendants have met their burden as to each requirement.
First, defendants’ asserted interest in establishing the restricted area was the maintenance
of safety and security at the event. See Szilagy Dep. at 14:21–15:4, R. 24-2. Public safety and
security against potential violence are no doubt significant governmental interests; indeed, this
circuit has held that they are compelling state interests that can survive even strict scrutiny. See
Grider v. Abramson, 180 F.3d 739, 749 (6th Cir. 1999) (recognizing that speech restrictions
served the “compelling governmental interest in public safety and order”). Perhaps in light of
that fact, Created Equal does not dispute that safety and security are significant (and, in fact,
compelling) interests—at least in principle. It argues instead that defendants’ nominal safety-
and-security rationale was really a pretext to facilitate speech restrictions, given that defendants
were aware of no “specific, security-based justification” for imposing the restricted area.
Appellants’ Br. at 17 (emphasis added); see also id. at 34. In other words, says Created Equal,
because nobody called in advance to specifically threaten the event, DPD had no right to impose
a restricted area around the Fox Theatre.
We disagree. Created Equal’s argument fails to recognize that in today’s age, virtually
any large, high-profile event—particularly one with a collection of leading political figures—
carries with it the risk for violence, whether or not law enforcement has some specific tip that the
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 12
event may be in danger from some specific individual. To hold that law enforcement could not
establish a restricted area around such an event without a known, specific threat would make it
essentially impossible to guard against terroristic violence, which is effective precisely because it
is unpredictable. So it is not a legitimate inference that because DPD knew of no specific threat,
no specific threat existed.
Moreover, Created Equal’s attempt to draw such an inference distorts the present record.
For instance, it notes several times that an FBI report on the debates remarked that “[a]s of 9 July
2019”—three weeks before the event—“we have no information to indicate a specific, credible
threat to or associated with the 2019 Democratic Presidential Primary Debate.” See, e.g.,
Appellants’ Br. at 17–18 (quoting Exhibit 2 at 60, R. 20-3). Yet the next line of that report
explains that the FBI “remain[ed] concerned about the potential for criminal activity in close
proximity to the event.” Exhibit 2 at 60, R. 20-3. And that same report details multiple other
potential security threats the debates faced. See, e.g., id. (“We remain concerned about the
sustained interest by international terrorists in targeting mass gatherings.”). Likewise, several of
the Democratic presidential candidates had received death threats in the months and weeks
before the debates. See, e.g., Article, R. 24-8 (death threat against Senator Cory Booker); USAO
Press Release, R. 24-9 (death threat against Senator Bernie Sanders); Article, R. 24-10 (death
threats against Senators Bernie Sanders and Kamala Harris). Commander Szilagy testified that
he was aware of these “assorted threats” against the candidates, as well as of the “ongoing threat
of terrorist activity,” both of which were reasons for DPD’s security measures. Szilagy Dep. at
87:8–12, R. 24-2. Ultimately, therefore, Created Equal has failed to establish a genuine dispute
that defendants’ asserted security rationale was somehow pretextual or non-existent.3
Second, defendants must show that the restricted area was “narrowly tailored” to
achieving the event’s safety and security. Ward, 491 U.S. at 791. Created Equal’s argument
here is much like before—it claims that the restricted area served no true security purpose
3Counsel for Created Equal conceded under questioning at oral argument that imposition of the restricted
area was appropriate given these security concerns. Recording of Oral Arg. at 25:14–25:30. He shifted his
objection merely to the size of the restricted area, contending that it was a few blocks too large and thus not
narrowly tailored to the asserted security rationale. Id. at 25:30–27:45. But as we explain above, the restricted
area’s scope easily satisfies the tailoring standard set out in Ward.
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 13
because the sole criterion for admission was presentation of a ticket, rather than having to pass
through security-screening measures like a metal detector. See, e.g., Appellants’ Br. at 32.
True, in some contexts a regulation’s under-inclusiveness may suggest that the state has only
minimal interests in its enforcement. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 544–46 (1993). But here, in the context of intermediate scrutiny as
applied to a content-neutral time, place, or manner restriction, we simply ask whether the state
would have achieved its asserted interest “less effectively absent the regulation.” Ward,
491 U.S. at 799.
Defendants have easily shown that the restricted area satisfies that standard. Without it,
officers would have had no control over which or how many individuals were present in the
immediate vicinity of the Fox Theatre. The restricted area ensured that only credentialed
individuals were within the Fox Theatre’s immediate vicinity, producing a smaller and more
manageable crowd for law enforcement to superintend. Because defendants would have
achieved that interest less effectively absent the restricted area, it satisfies the narrow-tailoring
requirement.
Last, defendants must show that the restricted area left open “ample alternative channels
of communication” for Created Equal to spread its message. Ward, 491 U.S. at 802. As this
circuit has interpreted that test, the relevant question is “whether the proffered alternatives allow
the speaker to reach its intended audience.” Contributor v. City of Brentwood, 726 F.3d 861, 865
(6th Cir. 2013). Created Equal explains that its intended audience comprised the Democratic
presidential candidates and members of the public who disagree with the group’s message. As
for the candidates themselves, however, Created Equal fails to explain why the First Amendment
grants it an unrestricted right of access to high-profile political figures, particularly considering
the aforementioned security concerns. Indeed, our sister circuits have rejected similar claims.
See, e.g., Bl(a)ck Tea Soc’y v. City of Boston, 378 F.3d 8, 14 (1st Cir. 2004) (“[A]lthough the
opportunity to interact directly with the body of delegates by, say, moving among them and
distributing literature, would doubtless have facilitated the demonstrators’ ability to reach their
intended audience, there is no constitutional requirement that demonstrators be granted that sort
of particularized access.”); Marcavage v. City of New York, 689 F.3d 98, 107 (2d Cir. 2012)
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 14
(“The First Amendment does not guarantee protestors access to every or even the best channels
or locations for their expression.” (cleaned up)). So while Created Equal might have wished for
all twenty candidates as an audience, it provides no persuasive account of why the Constitution
entitled it to this perfect scenario—especially when none of the protest groups those nights
enjoyed such “particularized access.” Bl(a)ck Tea Soc’y, 378 F.3d at 14.
As for Created Equal’s ability to converse with members of the public, the restricted area
left in place copious alternative channels. Created Equal could have engaged in its protest
virtually anywhere outside the restricted area, at least apart from FSA 1 itself. And the group in
fact did engage in protest for much of the first day within FSA 2. See, e.g., Video 3 at 0:00–0:30
(depicting the group’s prominent location along Woodward Avenue). In similar circumstances,
this circuit has held that such a “restricted area” leaves open ample alternative channels and
thereby satisfies intermediate scrutiny. See Grider, 180 F.3d at 751 (“[T]he plaintiffs
nevertheless had ample alternat[iv]e channels of public communication to proclaim their
philosophical, political, or other agendas within the immediate geographical area of the two
scheduled rally sites by carrying signs or banners, broadcasting on a street corner located outside
but adjacent to the restricted area . . . and/or by arranging their own rally at a site outside the
restricted area, all of which available options undercut the plaintiffs’ argument that their speech
had been unlawfully restricted.”). Thus, because the restricted area satisfies intermediate
scrutiny, we affirm the district court’s grant of summary judgment to defendants on this
particular First Amendment claim.
And we do likewise on the equal-protection claim. As this circuit has explained, a valid
equal-protection claim requires showing “that the government treated the plaintiff ‘disparately as
compared to similarly situated persons and that such disparate treatment either burdens a
fundamental right, targets a suspect class, or has no rational basis.’” Ctr. for Bio-Ethical Reform,
Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (citation omitted). Created Equal argues
that the restricted area burdened its fundamental rights (to free speech) and that the group was
treated disparately because other individuals within the restricted area were allowed to engage in
political speech, while Created Equal was denied access altogether. Appellants’ Br. at 39.
Created Equal is correct that certain individuals were permitted to engage in political speech
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 15
within the restricted area; again, the supporters of Democratic presidential candidates were
allowed to gather within a CNN-sponsored “candidate support corral.”4 But this disparity was
not an equal-protection violation, given that Created Equal was not “similarly situated” to those
speakers within the candidate support corral.
To be “similarly situated” for purposes of an equal-protection claim, the plaintiff and the
comparator must be alike “in all relevant respects.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
Yet here, Created Equal and the speakers within the candidate support corral diverged in a
dispositive way: the latter all had tickets to the Democratic debates, while Created Equal
concededly lacked them. That facially neutral criterion explains the distinction, and Created
Equal presented no evidence that defendants purposefully employed it to produce the resulting
disparate impact on speech. See Washington v. Davis, 426 U.S. 229, 245–46 (1976) (holding
that disparate impact without evidence of discriminatory intent does not violate the Equal
Protection Clause); see also Pers. Adm’r v. Feeney, 442 U.S. 256, 279 (1979) (“‘Discriminatory
purpose,’ however, implies more than intent as volition or intent as awareness of consequences.
It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least
in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”
(footnote and citation omitted)); Horner v. Ky. High Sch. Athletic Ass’n, 43 F.3d 265, 276 (6th
Cir. 1994) (“The Equal Protection Clause forbids only intentional discrimination.”). Because
Created Equal was not similarly situated to those in the corral given its lack of tickets, and
because there is no evidence this criterion was purposefully deployed to stifle the group’s
speech, its equal-protection claim must fail.
4Relevant to both equal protection and the First Amendment, the Comerica Park parking lot is itself private
property, given that it is owned by the Ilitch family via Olympia Entertainment. See Appellees’ Br. at 5–6. CNN’s
private choice to place a “candidate support corral” in a private parking lot was its prerogative as a private
corporation, and because its behavior did not constitute state action, it had no First or Fourteenth Amendment
obligation to establish a corresponding “candidate denigration corral.” See, e.g., Edmonson v. Leesville Concrete
Co., 500 U.S. 614, 619–20 (1991) (explaining that Fourteenth Amendment protections attach only if the relevant
conduct constitutes state action) (citations omitted).
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 16
2. Defendants’ Order that Created Equal Leave the St. John’s Church’s
Parking Lot
Created Equal next asserts that defendants violated the group’s rights under the Speech
and Equal Protection Clauses by ordering it to leave the St. John’s Church’s parking lot. We will
examine the former claim first. There is no genuine dispute that the church parking lot is private
property. But that fact is problematic for Created Equal’s First Amendment claim, because the
First Amendment confers no general right for uninvited members of the public to speak on
private property contrary to the proprietor’s wishes. See Lloyd Corp. v. Tanner, 407 U.S. 551,
568 (1972) (“[T]his Court has never held that a trespasser or an uninvited guest may exercise
general rights of free speech on property privately owned and used nondiscriminatorily for
private purposes only.”). Created Equal has also put forth no evidence that the church’s parking
lot has somehow historically functioned as a traditional public forum, see Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985), or otherwise stands in the shoes of the
state, see Marsh v. Alabama, 326 U.S. 501, 507–09 (1946), such that it would be subject to the
First Amendment. Accord Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930
(2019) (“[W]hen a private entity provides a forum for speech, the private entity is not ordinarily
constrained by the First Amendment because the private entity is not a state actor.”). To the
contrary, defendants have shown that the parking lot was not a public forum—it was leased out
for profit to CNN and an Olympia affiliate. As a matter of their contract and property rights,
therefore, they were entitled to ask Created Equal to leave, and Created Equal had no “First
Amendment easement” that would have permitted it to remain.
The equal-protection claim likewise falls short. It is true, of course, that CNN was
permitted to remain in the parking lot while Created Equal was ordered to leave. But that
disparity itself does not violate the Equal Protection Clause. Again, for purposes of equal-
protection analysis, the plaintiff and the comparator must be “similarly situated,” Ctr. for Bio-
Ethical Reform, Inc., 648 F.3d at 379, meaning that they must be alike “in all relevant respects.”
Nordlinger, 505 U.S. at 10. Unlike Created Equal, however, CNN had paid to use the parking
lot. So, under the terms of that agreement, CNN was not trespassing. Created Equal likely was.
See infra 17–18. Because CNN and Created Equal were not similarly situated, officers’ ordering
the group to leave did not represent unconstitutionally disparate enforcement of the trespass
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 17
laws. Created Equal has also identified no other trespassers in the parking lot that police
arbitrarily permitted to remain.5 So we reject this second equal-protection claim as well.
3. Defendants’ Placing Harrington in Handcuffs After His Initial Refusal to
Leave the Church Parking Lot
Harrington individually claims that defendants violated his Fourth Amendment right
against unreasonable seizures and his equal-protection rights when officers briefly placed him in
flexcuffs after he refused to leave the church parking lot. Yet the Fourth Amendment claim must
fail because, at the moment officers began to place Harrington in cuffs, they reasonably believed
he was committing criminal trespass under Michigan law and thus reasonably believed they had
probable cause to arrest him. See District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018)
(“A warrantless arrest is reasonable if the officer has probable cause to believe that the suspect
committed a crime in the officer’s presence.” (citation omitted)).
Michigan’s trespass law proscribes two relevant activities: (1) remaining without lawful
authority on another’s property after being told to leave by the owner, occupant, or an agent of
the owner or occupant, or (2) entering or remaining without lawful authority on
“fenced” property. See MCL 750.552(1)(b)–(c). The latter, “fenced” version of the crime
clarifies that if the property is so fenced, “[a] request to leave the premises is not a necessary
element for a violation of this subdivision.” Id. 750.552(c). Thus, defendants say, Harrington
likely was trespassing either because he chose to remain in the parking lot after being asked to
leave by the occupants’ agent (DPD acting on behalf of CNN) or he was trespassing because the
parking lot had a fence. Harrington counters that police may not serve as “agents” of the owner
or occupant for trespass purposes—there being no formal principal-agent relationship between
them—and so DPD could not have given him adequate notice to leave. He also says that a
5The only way Created Equal tries to illustrate a disparity in this regard concerns an individual outside the
candidate support corral who was holding a “Delaney for President” sign. But this individual was not in the
St. John’s Church’s parking lot; he was outside it on a sidewalk in the restricted area. So he is not a direct
comparator in this regard. There is also no genuine dispute that officers ordered the individual back to the candidate
support corral and did not allow him to freely protest within the restricted area. See Harrington Dec. ¶30, R. 20-2.
Commander Szilagy explained that officers later confronted the Delaney supporter about whether he had credentials
and ordered him back to the corral. See Szilagy Dep. at 83:6–84:12, R. 24-2. Created Equal has not disputed
Szilagy’s representation that officers indeed confronted the man rather than allowing him to speak or protest
unmolested.
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 18
property is not “fenced” under the statute unless it is fully enclosed by the fence, which the
church parking lot was not.
We agree with defendants that Harrington was likely committing at least the first version
of the trespass crime, given that he refused officers’ repeated requests on behalf of the lessee to
leave. True, no Michigan cases have clarified whether officers, as a technical matter of state law,
may serve as “agents” of the owner or occupant for purposes of admonishing a trespasser. But
out-of-state decisions construing similar statutes have endorsed that view. See State v. Horn, 377
N.W.2d 176, 182 (Wis. Ct. App. 1985), aff’d, 407 N.W.2d 854 (Wis. 1987) (“[A] police officer
may serve as an agent of an owner or occupant to give notice of a trespass.”); People v.
Thompson, 372 N.E.2d 117, 121 (Ill. Ct. App. 1978); People v. Wetherbe, 462 N.E.2d 1, 4–5 (Ill.
Ct. App. 1984). And, more importantly for Harrington’s Fourth Amendment claim, the question
is not whether he was technically guilty of a Michigan-law trespass. The Fourth Amendment
does not prohibit seizures that happen to have some technical legal defect under state law; it
prohibits only those seizures that are unreasonable. See Virginia v. Moore, 553 U.S. 164, 173
(2008) (explaining that a violation of state arrest law is not automatically a violation of the
Fourth Amendment). So the real question is simply whether officers’ belief that Harrington was
committing trespass was reasonable under the circumstances, even if it happens to one day be
proven technically mistaken. See Heien v. North Carolina, 574 U.S. 54, 60–62 (2014)
(explaining that searches or seizures based on reasonable mistakes of either law or fact are not
necessarily unconstitutional).
In our view, the officers’ belief that Harrington was trespassing was at least reasonable.
No Michigan precedents say officers may not admonish trespassers on behalf of the owner, and
the case that officers may so admonish them is intuitive and straightforward: permitting an
officer to confront a trespasser on behalf of an owner rather than forcing the owner to do it
herself is conducive to safety and order. Thus, because officers at least reasonably believed that
Harrington was committing trespass, they reasonably believed they had probable cause for the
seizure. That reasonable belief satisfies the Fourth Amendment, so we affirm the district court’s
grant of summary judgment to defendants on the unreasonable-seizure claim.
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 19
For similar reasons, Harrington’s equal-protection claim concerning the seizure fails as
well. Harrington put forth no evidence that officers declined to detain other “similarly situated”
individuals—other apparent trespassers—in the church parking lot. Ctr. for Bio-Ethical Reform,
Inc., 648 F.3d at 379. He only objects that officers did not likewise handcuff the media
employees present there. But because they were invitees of the church under their lease rather
than apparent trespassers like Harrington, they and Harrington are dissimilar in the “relevant
respect[ ]” that while they had permission to be there, Harrington did not. Nordlinger,
505 U.S. at 10.
4. Defendants’ Division of “Right-” and “Left-Leaning” Groups into FSAs 1
and 2 in Grand Circus Park
Created Equal’s next contention is that defendants violated the group’s First Amendment
and equal-protection rights by creating and enforcing the division between FSAs 1 and 2,
particularly because FSA 2 supposedly lacked a direct sightline to the Fox Theatre and was thus
the inferior location. We note at the outset a dispute about how FSAs 1 and 2 were originally
divided. Harrington asserts that it was by DPD’s intentional design, while Commander Szilagy
says the groups split voluntarily. Compare Szilagy Dep. at 26:11–28:2, R. 24–2, with
Harrington Dec. ¶¶41–42, R. 20-2; Appellants’ Br. at 36. Taking the view most favorable to
Created Equal, we will assume the division arose by DPD’s design. (There is no dispute, by
contrast, that DPD at least maintained the ultimate division.) There is also some disagreement
about whether FSA 2 was technically inferior to FSA 1. Created Equal claims that because
FSA 2 lacked a direct sightline to the theater, media outlets like CNN did not feature the
group’s anti-abortion message in their programming. We will assume that FSA 2 lacked such a
sightline.6 So Created Equal’s claim presents three issues: the level of First Amendment
scrutiny that should apply, whether the division can withstand that level of scrutiny, and,
assuming the division disparately affected the group, whether the disparity was intentional, such
that it could represent an equal-protection violation.
As to the level of First Amendment scrutiny, the district court apparently believed that
intermediate scrutiny was appropriate because the division between FSAs 1 and 2 was
6Neither dispute is material because neither affects the case’s outcome. See Paul B., 88 F.3d at 1472.
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 20
supposedly “content-neutral.” Order at 21, R. 33. It explained that “police officers examined
the content of each protest group’s speech . . . to determine which side of the park they should
stand on to best maintain safety and order.” Id. And, citing a line from Ward, it then reasoned
that the division was not content based—even though the content of protestors’ messages
determined to which FSA they were allocated—because it “serve[d] purposes unrelated to the
content of the expression.” Id. (citing Ward, 491 U.S. at 791). Thus, in the district court’s
view, because the division served the purpose of public safety, the division was content neutral,
subject to, and satisfied intermediate scrutiny. Id. at 21–24.
The district court erred, however, when it concluded that because the division could be
justified by some reason other than content, it was content neutral. The leading case on this
point is Reed v. Town of Gilbert, which reversed the Ninth Circuit for having employed the
same reasoning as did the district court. See Reed, 576 U.S. at 162–63. As the Supreme Court
there explained, courts ask whether the restriction serves a purpose “unrelated to the content” of
the expression only if the regulation is content neutral on its face. Id. at 165. When the
regulation is facially content based, by contrast, whether it may also have some “content-neutral
justification” is not relevant to determining the tier of scrutiny. Id. at 165–66. Instead, content-
based regulations automatically receive strict scrutiny, at which point the government must
show both a compelling state interest and that its regulation is the least-restrictive manner in
which that interest could have been achieved. Id. at 163–64; Bible Believers v. Wayne County,
805 F.3d 228, 248 (6th Cir. 2015) (en banc) (“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.”).
Here, the division of “left-leaning” and “right-leaning” groups into FSAs 1 and 2 was
plainly content based. Indeed, it was viewpoint based. Officers had no way to determine
whether they perceived groups as “left-leaning” or “right-leaning” until they examined and
evaluated the content of the speakers’ messages. For instance, based on Created Equal’s signs,
they decided that the group’s message was “right-leaning,” and thus that the group should not
be allowed to traverse Woodward Avenue into FSA 1. So the division must withstand strict
scrutiny. See City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1471
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 21
(2022) (explaining that a regulation is facially content based when it targets speech for its
“communicative content”); see also Bible Believers, 805 F.3d at 248 (“Both content- and
viewpoint-based discrimination are subject to strict scrutiny.” (citing McCullen v. Coakley,
573 U.S. 464, 478 (2014))).
Yet the district court’s error does not alter the result. For the division of the groups also
withstands even strict scrutiny. Defendants’ asserted compelling interest was, again, public
safety. See Szilagy Dep. at 95:7–13, R. 24-2. Permitting the groups to commingle could have
produced an outbreak of violence, as had occurred at many similar rallies throughout the United
States in the years and months leading up to the Democratic debates. (Indeed, several groups
associated with such violence, like the Proud Boys and By Any Means Necessary, were present
that day at Grand Circus Park. See Szilagy Dep. at 95:7–13, R. 24-2.) As this circuit has
recognized, “any resultant imposition” on First Amendment rights from the “physical
segregation” of such groups “[i]s trivial when juxtaposed against the compelling state interest in
separating [ ] two mutually antagonist[ic] and potentially hostile congregations.” Grider,
180 F.3d at 750. So defendants’ asserted interest in “preserving community peace and safety”
satisfies the first element of the strict-scrutiny analysis. Id. at 751.
And as this circuit has also recognized, “physical segregation” of potentially hostile
groups can be the least-restrictive method of securing the state’s interest in the prevention of
potential violence. See id. at 750–51. Keeping the peace without physical segregation would
have required a massive infusion of officers into Grand Circus Park. But there is no genuine
dispute that such an infusion was impossible, given that officers were simultaneously busy
maintaining event security at the Fox Theatre and elsewhere throughout the restricted area. See
Szilagy Dep. at 133:13–134:2; 114:23–115:5, R. 24-2. Moreover, law enforcement declined to
adopt harsher “peacekeeping techniques which might have been even more effective but
concurrently more obstructive of robust public debate and intrusive upon individual rights, such
as scheduling the rallies on different days or in different geographic areas, or physically
searching every rally attendee.” Grider, 180 F.3d at 749–50. Mere enforcement of the physical
division, therefore, was the least-restrictive means of preventing violence. And so while the
division was both content and viewpoint based, it satisfies strict scrutiny.
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 22
Created Equal’s additional grievance about the alleged lack of a direct sightline to the
Fox Theatre similarly presents neither a First Amendment nor an equal-protection violation. To
be sure, defendants could not have intentionally put Created Equal into some inferior venue
because of a disagreement with the content of its speech. Reed, 576 U.S. at 166. But when the
burden is, as here, merely incidental, the First Amendment does not require that protestors and
counter-protestors receive perfectly analogous pieces of real estate. See, e.g., Mastrovincenzo v.
City of New York, 435 F.3d 78, 101 (2d Cir. 2006) (explaining that a perfect-analogue
requirement would be practically impossible to implement).
Instead, the group’s real theory of harm appears to be that because of the sightline issue,
CNN did not cover Created Equal’s anti-abortion message. See Harrington Dec. ¶44, R. 20-2.
Yet Created Equal has failed to explain why it did not simply protest in one of the other areas
outside FSA 1 that had a direct sightline to the event. And it presented no evidence that CNN
afforded such coverage to the “left-leaning” groups protesting in FSA 1. So Created Equal has
not shown that the supposed lack of a direct sightline was the but-for or proximate cause of the
alleged injury of CNN’s non-coverage. See Marvaso v. Sanchez, 971 F.3d 599, 606 (6th Cir.
2020) (“Like a tort plaintiff, a § 1983 plaintiff must establish both causation in fact and
proximate causation.” (citations omitted)). The reality, of course, is that CNN was busy
covering the Democratic debates—not protestors outside them. Its independent choice not to
cover Created Equal’s protest does not mean that said choice was somehow dictated by the City
of Detroit. See Appellees’ Br. at 28–30. As defendants point out, “[t]he fact that CNN
apparently chose not to give Plaintiffs the prominent coverage they desired does not mean that
the City’s actions foreclosed this possibility.” Id. at 29–30.
And the group has similar problems with its equal-protection theory. Again, it presented
no evidence that defendants somehow intentionally gave the “left-leaning” groups the only
direct sightline for the purpose of stifling plaintiffs’ speech. Created Equal at best has shown
disparate impact. But disparate impact alone does not suffice to state an equal-protection
violation. See Davis, 426 U.S. at 246; Feeney, 442 U.S. at 279; Horner, 43 F.3d at 276.
Because Created Equal presented no evidence that officers intentionally put the group in FSA 2
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 23
to deprive it of a direct sightline, its equal-protection claim about the alleged disparity between
FSAs 1 and 2 must fail.
5. The Brief March Through Woodward Avenue After the Debate Had
Begun
At points, Created Equal seems to allege that defendants violated the First Amendment7
during the brief march up Woodward Avenue after the debate had begun. See, e.g., Appellants’
Br. at 15–16. To the extent Created Equal asserts such a claim, it must fail. True, officers
maintained the division between FSAs 1 and 2 during the march—a content- and viewpoint-
based division. But as we explained above, the division satisfies strict scrutiny and thus does not
constitute a First Amendment violation. See supra 20–21.
Created Equal’s ultimate point in discussing the march seems less to illustrate some
independent constitutional violation and more so to argue that permitting a march through the
restricted area without subjecting the marchers to a security screening undermined the restricted
area’s nominal security justification. But again, the record belies that claim. Commander
Szilagy explained that officers permitted the march (1) to defuse brewing tensions between
FSAs 1 and 2, and (2) only after all the debate participants and spectators were inside the Fox
Theatre, which allowed DPD to redirect its law-enforcement presence to monitoring the
marchers within the restricted area. See Szilagy Dep. at 133:13–134:2, 114:23–115:5 R. 24-2.
Created Equal presented no evidence to contest those points. So there is no genuine dispute that
the rationales for the march aligned with the rationales for the restricted area—the maintenance
of public safety.
6. The Bullhorn Incident and Created Equal’s Ejection from FSA 1
Created Equal last asserts that defendants violated the Speech or Equal Protection
Clauses by ordering the group to leave FSA 1 on the second day of the protests after one of its
members began to use a bullhorn, despite bullhorns’ use (and even a rock concert) having
7By contrast, Created Equal made no apparent attempt in its opening brief to argue that either the division
of the marchers into “left-leaning” and “right-leaning” groups or the order in which the groups marched constituted
an equal-protection violation. We thus decline to analyze such a claim. See Island Creek Coal Co. v. Wilkerson,
910 F.3d 254, 256 (6th Cir. 2018).
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 24
occurred in FSA 1 the day before. Framed as a First Amendment challenge, this claim is
somewhat odd. There is no First Amendment right to amplified sound per se, see Kovacs v.
Cooper, 336 U.S. 77, 87–88 (1949), so strict scrutiny would be relevant only if the state’s
regulation of amplified sound were a proxy regulation against speech, on the theory that the
nominal regulation of sound levels was actually a covert method of content regulation. Ward,
491 U.S. at 794. Created Equal’s real point thus seems to be that defendants selectively
enforced an ersatz bullhorn restriction because, in fact, they did not want the group’s message in
FSA 1.
Yet we need not make all these inferential leaps to conclude that strict scrutiny applies.
Defendants admitted that they were overtly drawing a content- and viewpoint-based distinction
by separating “right-” and “left-leaning” protestors into the respective FSAs. See supra 19. The
bullhorn incident was simply a specific application of that division. As we have already
explained, however, splitting the groups as the officers did readily satisfies strict scrutiny.
Nor did the bullhorn incident offend the Equal Protection Clause. Again, Created Equal
must show that it was treated “disparately as compared to similarly situated persons and that
such disparate treatment either burdens a fundamental right, targets a suspect class, or has no
rational basis.” Ctr. for Bio-Ethical Reform, Inc., 648 F.3d at 379 (citation omitted). Two
problems with that showing arise. Even if Created Equal and the “left-leaning” groups in
FSA 1 were similarly situated, and even assuming Created Equal’s speech rights were
burdened, the destination would simply be a strict-scrutiny analysis. See Mich. State A. Philip
Randolph Inst. v. Johnson, 833 F.3d 656, 662 (6th Cir. 2016). And separation of the groups
satisfied strict scrutiny because it helped defuse potential violence. See supra 20–21. Even
more fundamentally, though, Created Equal and the various “left-leaning” groups were not
“similarly situated” as to their bullhorn use in FSA 1. They might have been similarly situated
if officers were merely enforcing a noise ordinance, in which case only the volume of each
group’s speech, rather than its content, would matter. But officers were not enforcing a noise
ordinance; they were enforcing a policy of separating speakers by the content of their speech to
prevent potential violence. And Created Equal’s speech might have caused a confrontation in
FSA 1 in a way that “left-leaning” speech would not have. Thus, Created Equal and the “left-
No. 21-1552 Reform America, et al. v. City of Detroit, Mich., et al. Page 25
leaning” groups with bullhorns on Day 1 (or, for that matter, the performers at the rock concert)
were not similarly situated for purposes of equal protection.
V.
Because no constitutional violation occurred here, we reach neither the individual
defendants’ alternative arguments about qualified immunity nor the City of Detroit’s concerning
Monell. And for the same reason, we affirm.