Ovadal, Ralph v. City of Madison ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4030
RALPH OVADAL,
Plaintiff-Appellant,
v.
CITY OF MADISON, WISCONSIN,
RICHARD WILLIAMS, CHRIS
PAULSON, and PATRICK GRADY,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04 C 0322 S—John C. Shabaz, Judge.
____________
ARGUED APRIL 13, 2005—DECIDED JULY 19, 2005
____________
Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. Ralph Ovadal participated in a
protest against homosexuality on a pedestrian overpass
above a busy highway in Madison, Wisconsin. When driv-
ers, angry with the message displayed, began driving er-
ratically and causing congestion on the highway, police
officers stepped in and threatened Ovadal with arrest if he
did not end the demonstration. Ovadal was ultimately
banned from any such protest on any Beltline pedestrian
overpass. The district court found that the restriction on
2 No. 04-4030
speech was justified and granted summary judgment in
favor of the defendants. We find that there exist genuine
issues of material fact, so we reverse and remand.
I. History
Ralph Ovadal is a Christian minister who wishes to share
his religious views with the public through the use of signs
and banners. At about 4:20 P.M., on Tuesday, September 2,
2003 (the day after Labor Day), Ovadal and several of his
colleagues gathered on a pedestrian overpass spanning the
Beltline highway in Madison, and displayed large
signs—held by protesters above the sides of the over-
pass—which read, “Homosexuality is sin” and “Christ can
set you free.” The lettering on the bright yellow signs and
banners was very large so that the messages would be
visible from long distances. Ovadal chose the Beltline be-
cause it is a very busy highway used by both local and out-
of-state drivers and, therefore, his audience would be larger
and more diverse than on other local roads. Also, the
fenced-in pedestrian overpasses were deemed safe locations
for these demonstrations because they are twenty feet
above the road.
While the protest was taking place, Curtis Fields, a
Madison police officer, noticed substantial congestion on the
Beltline in the area where Ovadal’s signs were displayed.
Officer Fields reported this traffic problem to dispatch and
was informed that several people had already called in
complaining about the protest and stating that they had
been forced to slam on their brakes in order to avoid
accidents. Some drivers responded to the protesters with
angry hand gestures, and one woman even came up through
her sunroof to yell at Ovadal.
Officer Fields made an effort to determine whether
Ovadal and his group had a constitutional right to conduct
their protest on the overpass. Fields asked Deputy District
No. 04-4030 3
Attorney Judy Schwaemle for advice, and she opined that
the protesters could be ordered to relocate if the officers felt
that the protest was creating unsafe driving conditions.
Fields then approached Ovadal and asked him to take his
demonstration elsewhere. He told Ovadal that the police
had received several calls “from disgruntled people. It’s
causing a disturbance.”1 A short time later, Fields conferred
with another officer and notified Ovadal that he would be
allowed to stay on the overpass. Then, after the protest had
continued for approximately 30 more minutes, at about 5:20
P.M., Fields returned and advised Ovadal that he would
have to leave the area after all. Fields told Ovadal that
there had been some reports of near accidents and that he
was under orders to have Ovadal leave the area. Fields
informed Ovadal that if he did not leave the overpass he
would be arrested for disorderly conduct because individu-
als were “disturbed” by Ovadal’s message. In order to
clarify, Ovadal asked, “So, under threat of arrest, everyone
has to leave the bridge because there have been several
anonymous complaints?” Officer Fields responded in the
affirmative, and Ovadal left the overpass.
As he was leaving, Ovadal encountered Sergeant Chris
Paulson, who had been in contact with Officer Fields.
Paulson told Ovadal that the police had received several
reports from drivers who were angered by the signs and had
been forced to slam on their brakes. Paulson denied
Ovadal’s request to display the signs so that only the slow
moving lanes could see them. Ovadal asked whether there
was any time of day when he would be permitted to display
the signs on the overpass, and Paulson informed him that
the overpass would not ever be suitable for his demonstra-
tion. Ovadal asked to speak to someone higher in the line of
1
One of Ovadal’s colleagues videotaped all of the conversations
that Ovadal had with the police officers that are relevant to this
litigation.
4 No. 04-4030
command and Paulson stated that he was in charge. Upon
further questioning about whether there was any time of
day that Ovadal could protest on the overpass, Paulson told
Ovadal that he and the Madison Police Department did
support free speech, but that “[t]he reality is on this
particular bridge, an overpass on a Beltline where the
traffic . . . can be intense, this is my decision. The answer is
no.”
Ovadal later contacted the Madison Police Department to
see if the policy prohibiting his protest could be changed.
Captain Silverwood told Ovadal that he would forward the
request for clarification of the policy to the City Attorney.
The City Attorney did not respond to Ovadal’s request.
On Saturday October 11, 2003, at about 8:30 A.M., Ovadal
and his colleagues set up another protest on a pedestrian
overpass which they believed to be outside the city limits of
Madison. Ovadal had protested on this overpass previously
without incident. However, later that morning, Madison
Police Sergeant Patrick Grady approached the protesters
and asked them to leave. Sergeant Grady told Ovadal that
his group “present[s] a traffic hazard here. You’ve got
people going 60, 70 miles an hour there and they’re looking
up and seeing you.” Grady informed Ovadal that he would
not be allowed to display signs on any pedestrian over-
passes in the Madison area.
On October 31, 2003, Ovadal wrote a letter, through
counsel, to Madison Police Chief Richard Williams explain-
ing his belief that the policy banning signs on the pedes-
trian overpasses deprived him of his constitutional rights.
Williams did not respond to Ovadal’s letter. Although
Ovadal still wishes to display his signs on the overpasses,
he has not done so because he is afraid he will be arrested.
Therefore, he brought this lawsuit under 42 U.S.C. § 1983asking for injunctive relief, declaratory relief, and damages.
No. 04-4030 5
II. Analysis
This case comes to us on a grant of summary judgment in
favor of the defendants. The case is thus subject to de novo
review, and we will review the record in the light most
favorable to Ovadal, the nonmoving party. See Grayson v.
City of Chicago, 317 F.3d 745, 749 (7th Cir. 2003). Sum-
mary judgment is properly granted when “there is no
genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(c).
Ovadal brings this suit against the City of Madison,
Richard Williams in his official capacity as police chief, and
Chris Paulson and Patrick Grady individually and in their
official capacities as police officers. In order to establish
liability against the city under 42 U.S.C. § 1983, Ovadal
must show that: “(1) he suffered a deprivation of a federal
right; (2) as a result of either an express municipal policy,
widespread custom, or deliberate act of a decision-maker
with final policy-making authority for the City; which (3)
was the proximate cause of his injury.” Ineco v. City of
Chicago, 286 F.3d 994, 998 (7th Cir. 2002). To prove that
the individual officers are liable, Ovadal must show that
“(1) he was deprived of a federal right and (2) that the
deprivation was imposed upon him by one or more persons
acting under color of state law.” Id. at 997-98.
Ovadal argues that the Wisconsin disorderly conduct stat-
ute is unconstitutional as applied to him in this instance
because it is vague and it was applied specifically to curb
speech that is protected by the First Amendment. The
statute prohibits people from engaging “in violent, abusive,
indecent, profane, boisterous, unreasonably loud or other-
wise disorderly conduct under circumstances in which the
conduct tends to cause or provoke a disturbance . . . .”
Wis. Stat. § 947.01. Although it is clear that Ovadal’s
conduct does not fall into any of the statute’s enumerated
6 No. 04-4030
categories, the defendants claim that Ovadal’s protests
constituted “otherwise disorderly conduct.” They point out
that even if typical protest activities would not fall under
the statute’s prohibitions, the surrounding circumstances
are of utmost importance when determining whether con-
duct is “disorderly.” City of Oak Creek v. King, 436 N.W.2d
285, 288 (Wis. 1989). The Wisconsin Supreme Court has
explained that in cases where convictions resulted from
“otherwise disorderly conduct,” it was because the specific
conduct was inappropriate in light of the particular cir-
cumstances involved. Id. at 289. The defendants argue that
because conducting a protest on a pedestrian overpass
distracts drivers and creates a safety hazard, it is inappro-
priate and can be punished under the disorderly conduct
statute.
While it is true that the surrounding circumstances must
be considered, it is also true that the city cannot threaten
to prosecute protesters under this statute if the threats are
nothing more than a pretext for stopping unpopular, yet
protected, speech. See Zwicker v. Boll, 270 F. Supp. 131, 135
(W.D. Wis. 1967), aff’d, 391 U.S. 353 (1968). “[O]ne may not
be convicted for disorderly conduct . . . merely because he
espouses unpopular ideas or merely because others are
thereby stimulated to commit disorderly acts; on the other
hand, conduct which is in fact disorderly is not insulated
because it is perpetrated while engaged in a protest demon-
stration.” Id. Conduct is usually considered disorderly when
the acts or words are “of a nature to corrupt the public
morals or to outrage the sense of public decency . . . .” King,
436 N.W.2d at 288 (citation omitted).
A law or policy is void for vagueness if it “either forbids or
requires the doing of an act in terms so vague that people
of common intelligence must necessarily guess at its mean-
ing and differ as to its application.” Connally v. Gen. Const.
Co., 269 U.S. 385, 391 (1926). The Wisconsin Supreme
Court has considered the disorderly conduct statute in the
No. 04-4030 7
context of protests and “determined that the statute
sufficiently identified the type of behavior which the
legislature intended to be contrary to law and that the
statute was not subject to an attack for vagueness.” State v.
Zwicker, 164 N.W.2d 512, 517 (Wis. 1969). “The fact that a
statute fails to itemize with particularity every possible
kind of conduct which would violate such statute does not
make it constitutionally vague.” State v. Givens, 135 N.W.2d
780, 784 (Wis. 1965). Whether Ovadal’s peaceful protest
rises to the level of disorderly conduct because it took place
on a Beltline overpass is an open question of state law that
we need not address, but we find that the disorderly
conduct statute is not unconstitutionally vague as applied
to him.
Ovadal’s use of signs and banners to express a religious
viewpoint is at the core of the speech that the First Amend-
ment protects. See Boos v. Barry, 485 U.S. 312, 318 (1988);
Thomas v. Collins, 323 U.S. 516, 537 (1945). There is no
question that the morality of homosexuality is a contentious
issue, but unpopular speech remains protected by the First
Amendment; in fact, “[i]f there is a bedrock principle
underlying the First Amendment, it is that the government
may not prohibit the expression of an idea simply because
society finds the idea itself offensive or disagreeable.” Texas
v. Johnson, 491 U.S. 397, 414 (1989).
This is not to say, however, that Ovadal’s right to express
his views is without limit. See Cornelius v. NAACP Legal
Def. & Educ. Fund, Inc., 473 U.S. 788, 799 (1985). The
extent of limitation that is permissible is determined by the
forum in which the speech takes place. Frisby v. Schultz,
487 U.S. 474, 479 (1988). The district court found that the
pedestrian overpass was a traditional public forum because
it was a portion of a public sidewalk. See United States v.
Grace, 461 U.S. 171, 179 (1983). “Time out of mind, public
streets and sidewalks have been used for public assembly
and debate, the hallmarks of a traditional public forum.”
8 No. 04-4030
Frisby, 487 U.S. at 480 (internal quotations omitted). We
agree with the district court’s conclusion that “[a] public
sidewalk does not lose its status as a traditional public
forum when it passes over a highway overpass.” All public
sidewalks “are held in the public trust and are properly
considered traditional public fora.” Frisby, 487 U.S. at 481.
Thus, as the district court correctly determined, Ovadal’s
protest occurred in a public forum.
When speech takes place in a traditional public forum, it
receives heightened constitutional protection. The govern-
ment may restrict the time, place, and manner of the
speech, but only if the restrictions are content-neutral, nar-
rowly tailored to serve a significant government interest,
and leave open ample alternative means of communication.
Id. If a restriction is based on the content of the speech, it
is unconstitutional unless the state can prove that the
regulation is necessary to serve a compelling state interest
and that the regulation is narrowly drawn to achieve that
end. Id. So, in order to determine the appropriate level of
scrutiny, it is necessary to first decide whether the restric-
tion is based on the content of the speech. Id.The city argues that prohibiting Ovadal’s protest on any
Beltline overpass was a proper place and manner restriction
on his speech. The officers treated Ovadal respectfully, the
city insists, and ended the protest only because it created a
safety hazard, not because the officers disagreed with the
message. Ovadal, however, emphasizes that every proffered
justification for ending the protest is directly related to the
reactions of the persons viewing the signs. For example,
Officer Fields told Ovadal that he had to leave the bridge
because several drivers, “disturbed” by the messages on the
signs, had called in and complained about the protest. In
addition, Sergeant Paulson told Ovadal that the police had
received reports from drivers who were angered by the signs
and that the officers were concerned that drivers would
“slam on their brakes because they’re upset.”
No. 04-4030 9
If the city had a policy that prohibited not just Ovadal’s,
but all protests and all signs on all Beltline overpasses, this
could certainly be a legitimate place and manner restriction
because it would be clearly content-neutral. However, the
city adamantly refuses to admit that such a policy exists.
Instead, it insists that signs are prohibited only if they
impair traffic safety.2 The officers are permitted to decide on
an ad hoc basis whether to allow the protest to continue
depending on how drivers react to the signs on the pedes-
trian overpass.
“Listeners’ reaction to speech is not a content-neutral
basis for regulation.” Forsyth County v. Nationalist Move-
ment, 505 U.S. 123, 134 (1992). “Speech cannot . . . be
punished or banned, simply because it might offend” those
who hear it. Id. at 134-35. It cannot be denied that drivers
who yelled, gestured, and slammed on their brakes when
they saw Ovadal’s signs created a safety hazard on the
Beltline. However, it is the reckless drivers, not Ovadal,
who should have been dealt with by the police, perhaps in
conjunction with an appropriate time, place, and manner
restriction on Ovadal. The police must preserve order when
unpopular speech disrupts it; “[d]oes it follow that the police
may silence the rabble-rousing speaker? Not at all. The
police must permit the speech and control the crowd; there
is no heckler’s veto.” Hedges v. Wauconda Cmty. Unit Sch.
Dist. No. 118, 9 F.3d 1295, 1299 (7th Cir. 1993).
If the restriction of Ovadal’s speech was content-based,
the city must prove that prohibiting Ovadal from protesting
on pedestrian walkways above the Beltline is narrowly
tailored and necessary to serve a compelling state interest.
2
It appears that no group other than Ovadal’s has ever at-
tempted a demonstration on a Beltline overpass. Thus, we do not
know whether the police would have allowed other demonstrations
to continue.
10 No. 04-4030
Ovadal concedes that the city has an interest in protecting
public safety and promoting the free flow of traffic on public
streets. See, e.g., Madsen v. Women’s Health Ctr., 512 U.S.
753, 768 (1994). But, the city may still only regulate speech
“if the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance
of [the government’s legitimate] interest.” Members of City
Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 805
(1984).
There remain genuine issues of material fact which bear
on whether Ovadal was deprived of his First Amendment
right to free speech by an express policy or widespread
custom of the City of Madison and certain police officials.
While there is no question that Ovadal has been completely
banned from all Beltline pedestrian overpasses in the
Madison area, the issue remains as to whether the ban was
narrowly tailored and content-neutral. Did the police
impose a “heckler’s veto” and would the same absolute “ad
hoc” ban have been imposed on any display occurring on a
Beltline pedestrian overpass? Was it possible that the city
could have imposed a ban on protests occurring on certain
days of the week, during certain times of day, or depending
on traffic conditions, or was an absolute ban the only option
available to the city under the circumstances? The key
question is whether the city’s rule that no protests may take
place on overpasses when those protests cause a traffic
hazard is capable of content-neutral application, or whether
the city has imposed a content-based and impermissible
“no-Ovadal-on-overpasses” rule. Matters of material fact
such as these need to be resolved in order to determine
whether Ovadal’s First Amendment rights have been
violated; therefore, we must remand this case to the district
court.
No. 04-4030 11
III. Conclusion
For the reasons set forth above, the district court’s grant
of summary judgment in favor of the defendants is
REVERSED, and this case is REMANDED for further proceed-
ings.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-19-05