Winnifred Bell v. City of Winter Park, Florida

Case: 13-11499 Date Filed: 03/20/2014 Page: 1 of 13
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11499
________________________
D.C. Docket No. 6:12-cv-01560-RBD-GJK
WINNIFRED BELL,
et. al,
Plaintiffs - Appellants,
versus
CITY OF WINTER PARK, FLORIDA,
et. al,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 20, 2014)
Before TJOFLAT, FAY and ALARCÓN, ∗ Circuit Judges.
TJOFLAT, Circuit Judge:
∗
Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
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Winnifred Bell, Allura Lightfoot, and Deanna Waller (collectively, the
“Plaintiffs”) challenge the City of Winter Park’s Ordinance No. 2886-12, which
generally prohibits targeted picketing within 50 feet of a residential dwelling, as an
unconstitutional infringement on their First Amendment right to freedom of
speech. The City moved to dismiss the Plaintiffs’ complaint under Federal Rule of
Civil Procedure 12(b)(6). The District Court, after considering the parties’
memoranda in support of and against the City’s motion, granted the motion and
dismissed the case. The Plaintiffs now appeal.1 For the reasons outlined below,
we affirm in part and reverse in part.
I.
The City of Winter Park adopted Ordinance No. 2886-12 on September 24,
2012, 2 after finding that “there has occurred in the City of Winter Park a
documented series of protest or picketing activity specifically targeted against an
individual residing in a single family home . . . [and] this individual has feared for
her safety as a result of this picketing activity,” and that “there have been reported
1
Because we are reviewing the District Court’s grant of the City’s motion to dismiss for
failure to state a claim upon which relief can be granted, we exercise de novo review. See
Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007).
2
In their verified complaint, the Plaintiffs attached a copy of an emergency ordinance the
City passed prior to Ordinance No. 2886-12. The emergency ordinance was temporary and
would expire 60 days after its passage unless the City adopted a permanent ordinance.
Ordinance No. 2886-12 is that permanent ordinance and it is virtually identical in all relevant
respects to the emergency ordinance. We therefore refer to the permanent ordinance, which was
submitted as Doc. 16, despite the fact that it was not attached to the Plaintiffs’ complaint.
2
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instances during the last several years in which the domestic tranquility has been
disturbed in residential areas by organized picketing and protest in residential areas
directed against specific targeted residents living in those areas.” Record, Doc. 16,
at 8. The Ordinance contained seven sections, two of which are relevant in this
case. Section 2 created a new § 62-79 of the Municipal Code of the City of Winter
Park, which states:
It shall be unlawful for any person or persons to picket, protest or
conduct any picketing or protesting activity within a buffer area of 50
feet from the property line of any dwelling unit in the City of Winter
Park. It shall also be unlawful for any person or persons to picket,
protest or conduct any picketing or protesting activity in any park,
public street, public right-of-way, or on a sidewalk, where such
activity impedes or interferes with the rights of others to travel on or
in such areas in a safe manner, consistent with the traditional
pedestrian, bicycle or motor vehicle use of such areas.
Record, Doc. 16, at 12. 3 Section 3 of the Ordinance amended § 62-77 of the
Municipal Code to add a new provision, which reads:
3
The Ordinance defines “picket,” “picketing,” or “protest” to mean
any assembly of one or more persons, who, through conduct, speech or other form
of expression, criticize, protest or complain about any matter in which a particular
person, group of persons or type of person is specifically targeted for protest,
complaint or criticism, and where such assembly stands, loiters, congregates or
mills before or about a dwelling unit in which a person who is a target or subject
of such protest resides or is perceived to reside.
One or more persons may be considered picketing or protesting within the
meaning of this Section even if the message being communicated is intended to
be heard or seen by persons in addition to the resident or residents inside a
dwelling unit.
The Ordinance defines “dwelling unit,” in relevant part, as
3
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A person regularly residing in a ‘dwelling unit’, as that term is defined
in Section 62-79, may post a ‘no loitering’ sign on the property of
such residence in which the person regularly resides, and an officer of
the City may enforce this section against any person remaining in a
public area, including a park, sidewalk, street, public right-of-way,
after the sign is posted, who loiters, stands, sits, or lies before or about
the dwelling unit on which property the ‘no loitering’ sign is posted,
or remains on public property within a buffer area as defined in
Section 62-79, of fifty (50) feet from the property line of such
residence.
Record, Doc. 16, at 13. The City adopted the Ordinance by a 4–1 vote, with the
four City Commissioners voting in favor and the Mayor of the City voting against.
The Ordinance became effective immediately.
On October 16, 2012, the Plaintiffs filed a verified complaint, alleging that
§§ 62-77 and 62-69 unconstitutionally abridge their freedom of speech. 4 The
Plaintiffs sought a temporary restraining order, a preliminary injunction, and a
permanent injunction restraining the City from enforcing the challenged provisions
of the Municipal Code; a declaration that the challenged portions of the Municipal
a building or portion thereof that is designed for residential occupancy, and shall
include single family homes, zero lot line residences, townhomes or connected
homes, and duplexes, and other single and multi-family dwelling units located in
[particular zoning districts]. Where a single family residence is grandfathered in
another zoning district and is still used for single family residential purposes it
shall be included in this definition. Excluded from this definition are apartment
buildings and condominiums located in a commercial zoning district
Record, Doc. 16, at 11–12.
4
The Plaintiffs also raised a Free Exercise claim under the First Amendment and an
Equal Protection claim under the Fourteenth Amendment. Those claims were also dismissed,
but the Plaintiffs do not challenge their dismissal on appeal.
4
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Code constitute an impermissible restraint of their speech rights; damages; and
attorney’s fees. The District Court converted the Plaintiffs’ application for a
temporary restraining order to one seeking a preliminary injunction and took the
matter under advisement.
The City filed a motion to dismiss the verified complaint and a
memorandum of law in support of its motion on November 14, 2012. The City
argued that the Ordinance is facially constitutional because it is a permissible
content-neutral regulation of speech. On March 7, 2013, the District Court granted
the City’s motion to dismiss, finding that the Ordinance is content-neutral, serves a
significant government interest, and is narrowly tailored to achieving those ends.
This appeal followed.
II.
The First Amendment provides, “Congress shall make no law . . . abridging
the freedom of speech.” U.S. Const. amend. I. 5 Despite the seemingly clear
imperative of the text of the First Amendment, the Supreme Court has held that a
content-neutral restriction of speech 6 is constitutional if it “serves a significant
5
The First Amendment is made applicable against the states through the Fourteenth
Amendment’s due process clause. Schneider v. State, 308 U.S. 147, 160, 60 S. Ct. 146, 150, 84
L. Ed. 155 (1939); see also Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903, 84 L.
Ed. 1213 (1940).
6
Our principal inquiry in determining whether a restriction on speech is content-neutral
is “whether the government has adopted a regulation of speech because of disagreement with the
message it conveys. The government’s purpose is the controlling consideration.” Ward v. Rock
5
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government interest,” is “is narrowly tailored” to achieving those ends, and leaves
ample alternative avenues for speech. Frisby v. Schultz, 487 U.S. 474, 484–85,
108 S. Ct. 2495, 2502–03, 101 L. Ed. 2d 420 (1988).7
In Frisby, the Supreme Court upheld a municipal ordinance that prohibited
“focused picketing taking place solely in front of a particular residence.” Id. at
483, 108 S. Ct. at 2502. The Court recognized that the government has a
significant interest in “protecting the well-being, tranquility, and privacy of the
home,” id. at 484, 108 S. Ct. at 2502 (quoting Carey v. Brown, 447 U.S. 455, 471,
100 S. Ct. 2286, 2296, 65 L. Ed. 2d 263 (1980)), and in protecting the unwilling
listener, id. (“Although in many locations, we expect individuals simply to avoid
speech they do not want to hear, the home is different.” (citations omitted)). The
ordinance at issue was deemed narrowly tailored because “[t]he type of picketers
banned by the . . . ordinance generally do not seek to disseminate a message to the
general public, but to intrude upon the targeted resident, and to do so in an
especially offensive way.” Id. at 486, 108 S. Ct. at 2503. Finally, the ordinance
left open ample alternative channels for speech because protestors remained free to
Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2754, 105 L. Ed. 2d 661 (1989) (citation
omitted).
7
This is not the same test that applies to content-based restrictions on speech. See
CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1280 (11th Cir. 2006) (“If the
regulation is content-based, it is subject to strict scrutiny; if the regulation is content-neutral, it is
subject to intermediate scrutiny.”).
6
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march through residential areas, to go door-to-door proselytizing their views, and
to distribute literature. Id. at 484, 108 S. Ct. at 2502. Because the ordinance
withstood intermediate scrutiny, the Supreme Court held the ordinance was not
facially unconstitutional. Id. at 488, 108 S. Ct. at 2504.
Section 62-79 is nearly on all fours with Frisby, and we thus hold that the it
is similarly facially constitutional. Section 62-79 does not regulate speech on the
basis of the content or viewpoint of the speech. Rather, it regulates the time, place,
and manner in which Plaintiffs can speak. The City did not adopt § 62-79 because
of any disagreement with any speech’s message. It adopted the Ordinance with a
stated purpose of safeguarding “the harmony, peace and tranquility of persons
residing in residential dwelling units” by ensuring that “they feel free in their own
homes, and safe from protests and picketing activity that targets them or that is
directed at them.” Record, Doc. 16, at 12.
Although the Ordinance defines “picketing” to mean criticism, protest, or
complaint, those words describe picketing generally. See, e.g., Black’s Law
Dictionary 1264 (9th ed. 2009) (defining “picketing” as “[t]he demonstration by
one or more persons outside a business or organization to protest the entity’s
activities or policies”); Webster’s New World Dictionary 1021 (3d College ed.
1988) (defining “picket” as “a person, as a member of a labor union on strike,
stationed outside a factory, store, or public building, often carrying a sign, to
7
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demonstrate opposition to certain views or practices”). In other words, the
common use of the term picket denotes criticism; one does not usually picket in
favor of or in support of something. Section 62-79 is content neutral.
Having determined that § 62-79 is content-neutral, we consider whether it
withstands intermediate scrutiny. We readily conclude that it does. Section 62-79
serves the same governmental interests the Supreme Court approved of in Frisby.
Moreover, § 62-79 is narrowly tailored to achieve those ends. Like the ordinance
in Frisby, “[t]he type of picketers banned by the [Winter Park] ordinance generally
do not seek to disseminate a message to the general public, but to intrude upon the
targeted resident, and to do so in an especially offensive way.” See Frisby, 487
U.S. at 486, 108 S. Ct. at 2503. And, as the Supreme Court noted, “even if some
such picketers have a broader communicative purpose, their activity nonetheless
inherently and offensively intrudes on residential privacy.” Id. Finally, § 62-79
leaves open alternative channels of speech. Like the protestors in Frisby, the
Plaintiffs remain free to march, to proselytize, and to distribute literature within 50
feet of the dwelling unit. They can even picket. If their picketing does not target a
particular person, group of persons, or type of person who resides in the dwelling
unit, they can continue to engage in general picketing within the buffer area.
Moreover, so long as the Plaintiffs remain 51 feet away from a dwelling unit, they
8
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remain at liberty to engage in targeted picketing. 8 Section 62-79 goes further than
the one in Frisby, as the Winter Park City Manager is required, on application, to
make City-owned land reasonably near or abutting a residential area available for
protest or picketing. The District Court’s dismissal of Plaintiffs’ challenge to § 62-
79 was proper.
III.
Although we believe § 62-79 is facially constitutional, we harbor serious
concerns as to the constitutionality of the loitering provision of the Ordinance,
§ 62-77.9 Section 62-77 permits private citizens to post no loitering signs on their
8
In the District Court, the Plaintiffs argued that the Ordinance’s 50-foot buffer area is
constitutionally suspect. The District Court, it its order dismissing the verified complaint,
disagreed, noting:
Plaintiffs’ counsel argued at the hearing that eliminating the buffer zone would
make the ordinance more narrowly tailored and bring it in line with Frisby.
Plaintiffs also contend that the ordinance is vague for similar reasons. The Court
cannot agree. Eliminating the buffer zone would be more restrictive and more
confusing to the protesters, not less. The way the ordinance is drafted, picketers
know exactly how close they can get to the targeted residence, unlike in Frisby,
where the ban was simply on picketing “before or about” a residence. The fact
that this ordinance creates a specific, quantifiable buffer zone makes an even
stronger case for its constitutionality than the ordinance approved in Frisby.
Record, Doc. 41, at 13 n.13 (citations omitted). On appeal, the Plaintiffs write that “[b]ecause
the trial court applied a limiting interpretation that removed the buffer zone, Plaintiffs do not
raise the issue in this appeal.” Appellants’ Br. at 34. However, the District Court’s order did no
such thing. The court did not apply any sort of limiting principle, nor did it sever the buffer area
provision of the Ordinance. Nevertheless, by not raising the issue on appeal, the Plaintiffs have
abandoned any argument that the 50-foot buffer area renders the Ordinance unconstitutional.
See United States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001) (“[O]ur well established rule is
that issues and contentions not timely raised in the briefs are deemed abandoned.”).
9
On appeal, the Plaintiffs argue that the District Court did not address the
constitutionality of § 62-77 and that we therefore ought to remand the case to the District Court
9
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property to prevent others from loitering, standing, sitting, or lying before or about
the dwelling unit on which the sign is posted. Like a no trespassing ordinance,
§ 62-77 permits a private citizen to prevent others from congregating on the
property. And if that were all § 62-77 did, we likely would find no First
Amendment problem. Cf. Frisby, 487 U.S. at 485, 108 S. Ct. at 2502
(“[I]ndividuals are not required to welcome unwanted speech into their own homes
and . . . the government may protect this freedom.”).
However, § 62-77 goes beyond simply allowing a private citizen to control
the speech he allows on his property; the section permits private residents to
control the speech of others within a 50-foot buffer area of the citizen’s property.
The Ordinance makes clear that the buffer area includes “any park, public street,
public right-of-way, or sidewalk, located within an area that extends fifty (50)
linear feet in any direction measured from the property line of a dwelling unit.”
Record, Doc. 16, at 12. And § 62-77 expressly permits Winter Park police officers
for consideration of the matter. We do not agree. The City moved to dismiss the verified
complaint in its entirety, and the District Court dismissed the verified complaint in its entirety.
Although it is true that City did not advance a specific argument on the constitutionality of
§ 62-77 in its memorandum supporting its motion to dismiss, it made clear that it believed the
Ordinance, as a whole, was constitutional. We exercise de novo review of a District Court’s
granting of a motion to dismiss, Griffin Indus., Inc., 496 F.3d at 1199, therefore we are
conducting an independent review of whether the Plaintiffs’ verified complaint states a claim on
which relief can be granted. That the District Court’s order did not specifically analyze the
constitutionality of § 62-77 does not thwart our review of that Section on appeal.
10
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to enforce the loitering provision against any person “remaining in a public area,
including a park, sidewalk, street, [or] public right-of way, after the sign is posted.”
Record, Doc. 16, at 13. In other words, private citizens can decide that they dislike
the content or viewpoint of a speaker’s message and then contact the Winter Park
police to enforce § 62-77.
To be sure, the loitering provision appears to be content neutral; it prohibits
loitering generally and does not target any particular form of speech or conduct.
However, § 62-77 grants virtually unfettered discretion in how it is enforced. That
is, the Ordinance allows private citizens to prohibit speech in traditional public
fora10 for any reason, including content- and viewpoint-based reasons. This strikes
us as unprecedented.11 “A grant of unrestrained discretion to an official
responsible for monitoring and regulating First Amendment activities is facially
unconstitutional,” Atlanta Journal & Constitution v. City of Atlanta Dep’t of
Aviation, 322 F.3d 1298, 1310 (11th Cir. 2003) (en banc), and we see little reason
to believe that a similar grant of unrestrained discretion to private citizens to
summon the police to prohibit First Amendment activities in public fora fares any
better. Section 62-77 permits private citizens to control the speech of other private
10
See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469, 129 S. Ct. 1125, 1132,
172 L. Ed. 2d 853 (2009) (describing public streets and parks as traditional public fora).
11
When asked at argument whether the City could cite any case in which private citizens
were permitted to silence the speech of others in a traditional public fora, counsel for the City
stated he could not.
11
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citizens by calling the police. Cf. Shelley v. Kraemer, 334 U.S. 1, 20, 68 S. Ct.
836, 845, 92 L. Ed. 1161 (1948) (invalidating private racially restrictive covenants
because the covenants were enforced by the state, which created state action
sufficient to deny the “equal protection of the laws” guaranteed by that
Amendment). 12
Moreover, § 62-77 states that “an officer of the City may enforce [the
loitering provision] against any person remaining in a public area . . . after the sign
is posted.” Record, Doc. 16, at 13 (emphasis added). No definition is provided for
the term remain, and the common definition—“to stay in the same place,”
Webster’s New World Dictionary 1134 (3d College ed. 1988)—provides a citizen
with immense discretion to use the police to enforce the loitering provision and
thus creates a risk of targeted enforcement based on the content or viewpoint of an
individual’s speech. How long must one stay in the same place to violate § 62-77?
Five minutes? One minute? Citizens are left to wonder.
A government regulation that allows arbitrary application is inherently
inconsistent with a valid time, place, and manner regulation because
such discretion has the potential for becoming a means of suppressing
a particular point of view. The lack of objective criteria in the
governmental exemption readily lends itself to harsh and
discriminatory enforcement by local prosecuting officials, against
particular groups deemed to merit their displeasure, [and] results in a
12
A person who violates § 62-77 is subject to a $60 civil penalty, a fine not to exceed
$500, or imprisonment not to exceed 60 days.
12
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continuous and pervasive restraint on all freedom of discussion that
might reasonably be regarded as within its purview.
CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1279 (11th Cir.
2006) (internal quotation marks and citations omitted).
The amount of discretion § 62-77 provides is alarming. Private citizens are
permitted to have the City regulate speech on traditional public fora for any reason.
Additionally, § 62-77 provides no standards for enforcement, leaving City officers
free to enforce the prohibition on the basis of the content or viewpoint of an
individual’s speech. We therefore hold that § 62-77 is unconstitutional.
IV.
The Ordinance’s ban on targeted picketing, § 62-79 is content-neutral,
furthers a significant government interest, is narrowly tailored, and leaves open
ample alternative channels for speech. It is, therefore, facially constitutional, and
the District Court properly dismissed the Plaintiff’s challenge as to § 62-79.13
However, § 62-77 grants private citizens unbridled discretion to invoke the City’s
power to regulate speech in public fora abutting private residences. We conclude
that the loitering provision is facially unconstitutional and invalid. The District
Court’s judgment is, accordingly,
AFFIRMED in part and REVERSED in part.
13
In light of the fact that the dismissal of the Plaintiffs’ challenge to § 62-79 was proper,
we also affirm the District Court’s denial of a preliminary injunction as to that section.
13