International Caucus of Labor Committees v. City of Montgomery

PER CURIAM:

The opinion originally issued in this case is withdrawn. International Caucus of Labor Comms. v. City of Montgomery, 87 F.3d 1275 (11th Cir.1996). The following opinion is issued as the opinion of the Court on this appeal.

This case involves a challenge to the constitutionality of a city policy banning tables from city sidewalks. On two occasions, plaintiffs, The International Caucus of Labor Committees and three of its members, were distributing literature from a card table placed on the sidewalk when police told them to leave or submit to arrest. The district court found that The International Caucus is an organization devoted to altering the contemporary political landscape. It distributes literature and recruits new members in several ways. One of its preferred ways is to place tables in public areas in an effort to attract people to take its literature from these tables. Plaintiffs wrote a letter to the City explaining their desire to promote their views “by setting up literature tables at public sites.” The City’s responsive letter banned tables from city sidewalks. The letter stated in relevant part:

Your actions do not violate the laws of this city unless you impede the orderly flow of traffic in the streets and at the street comers.

Your organization will not be allowed to set up tables or booths on the sidewalks of this city. These tables or booths would create a partial blockage of pedestrian traffic and therefore will not be allowed on the sidewalks. Your organization may set up tables or booths on private property where you have the permission of the property owner.

The City maintains that its policy is a complete ban of any tables on all sidewalks.

Plaintiffs sued the City of Montgomery, its police department and police chief, seeking a declaration that the City’s policy violated plaintiffs’ First Amendment right of free speech and to enjoin the City from denying plaintiffs the right to distribute political literature from tables placed on the sidewalks.

The district court, in a carefully constructed opinion, entered a declaratory decree that the City’s ban excessively and unnecessarily infringes on the plaintiffs’ rights guaranteed by the First Amendment. International Caucus of Labor Comms. v. City of Montgomery, 856 F.Supp. 1552 (M.D.Ala.1994). The court initially held that the placement of tables on city sidewalks is subject to First Amendment scrutiny, and that the ban is content neutral so that it is subject to the time, place and manner test set out in Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753-54, 105 L.Ed.2d 661 (1989). The court then held first, it is inappropriate to conclude on this record that the City’s interests are significant ones; second, even if the City’s interests are viewed as significant, the regulation is not narrowly tailored to serve those interests; and third, since the ban fails the narrow tailoring requirement, the court need not decide whether the ban leaves ample alternative means of communication open. The court denied an injunction with confidence that the defendants would abide the declaration that the ban is unconstitutional.

We reverse on the ground that a ban against tables on sidewalks, contrary to the decision of the district court, satisfies the time, place and manner test required when the actions of a city implicate the First Amendment.

Preliminarily, there was some question as to whether the issue was properly before the court. Some consideration has been given by the panel and in the supplemental briefing and reargument to the fact that the policy here challenged is in the form of a letter from the City Attorney, rather than being incorporated in a duly adopted city ordinance. The parties agree, however, that the policy of banning all tables from city sidewalks is the fixed policy of the City which will be enforced by the police, the transgression of which would lead to trouble for the plaintiffs. The parties are entitled to a decision on the constitutionality of such a policy. This Court previously has considered the constitutionality of an “unwritten” scheme for regulating newsracks in interstate areas. Sentinel Communications Co. v. Watts, 936 F.2d 1189 (11th Cir.1991).

When the government seeks regulation that restricts content neutral expressive activity in a public forum, the First Amendment requires that the regulation satisfy the time, place, and manner test. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983).

A sidewalk, although specifically constructed for pedestrian traffic, also constitutes a public forum. Frisby v. Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420 (1988) (“ ‘[T]ime out of mind’ public streets and sidewalks have been used for public assembly and debate, the hallmarks of a traditional public forum.”). The Supreme Court has repeatedly held that public streets and sidewalks are traditional public fora. Boos v. Barry, 485 U.S. 312, 318, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988); Perry Education Ass’n., 460 U.S. at 44, 103 S.Ct. at 954.

Pamphleteering and the distribution of literature constitute expressive activity protected by the First Amendment. Talley v. State of California, 362 U.S. 60, 63-64, 80 S.Ct. 536, 538, 4 L.Ed.2d 559 (1960). The cases clearly hold that the distribution of literature is a'type of speech protected by the First Amendment. United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983); Schneider v. State, 308 U.S. 147, 162, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938).

In the present ease, therefore, the City of Montgomery is regulating expressive activity in a public forum. Consequently, the district court correctly held that the regulation must pass the time, place, and manner test. The district court erred, however, in its application of the time, place, and manner test.

In reviewing the district court’s application of this test, we utilize a de novo standard of review concerning issues of law and the district court’s application of the law to the facts. Simmons v. Conger, 86 F.3d 1080, 1084 (11th Cir.1996).

The City may impose reasonable restrictions on the time, place, and maimer of protected speech in a public forum as long as the restrictions (1) are content neutral, (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels for communication of the information. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753-54, 105 L.Ed.2d 661 (1989).

The district court properly held that the first prong of this test was satisfied: Montgomery’s ban was content neutral, both on its face and as applied.

The district court erred, however, in holding that the second prong was not met. The district court’s analysis as to this prong was wrong in two respects:

First, the district court incorrectly concluded that the City of Montgomery’s interests in enacting the table ban were not significant. The first priority of a sidewalk is for the use of pedestrians. The City’s interests, as stated in the ban itself, include “the orderly flow of traffic in the streets and at the street comers” and the prevention of “a partial blockage of pedestrian traffic” on the city sidewalks. It is well settled that “a State’s interest in protecting the ‘safety and convenience’ of persons using a public forum is a valid governmental objective.” Heffron v. International Society For Krishna Consciousness, 452 U.S. 640, 650, 101 S.Ct. 2559, 2565, 69 L.Ed.2d 298 (1981). See also Messer v. City of Douglasville, Ga., 975 F.2d 1505, 1510 (11th Cir.1992) (holding that “both traffic safety and aesthetics are substantial governmental goals”). As the Supreme Court stated, “Municipal authorities, as trustees for the public, have the duty to keep their communities’ streets open and available for the movement of people and property, the primary purpose to which the streets are dedicated.” Schneider v. State of New Jersey, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939).

To demonstrate the significance of its interest, the City is not required to present detailed evidence of pedestrian or traffic flow on or around specific sidewalks; the City is “entitled to advance its interests by arguments based on appeals to common sense and logic.” Multimedia Publishing Co. of S. Carolina, Inc. v. Greenville-Spartanburg Airport, 991 F.2d 154, 160 (4th Cir.1993). We hold that the City has adequately demonstrated the significance of its interest.

Second, the district court erred in holding that the regulation was not narrowly tailored to achieve the City’s interest. To satisfy the requirement of narrow tailoring, the City may not impose a regulation that will “burden substantially more speech than is necessary to further the government’s legitimate interests;” nor may the City impose a regulation in which “a substantial portion of the burden on speech does not serve to advance its goals.” Ward, 491 U.S. at 799, 109 S.Ct. at 2758. Although the disputed regulation must be narrowly tailored to serve legitimate interests of the City, it “need not be the least restrictive or least intrusive means of doing so.” 491 U.S. at 798, 109 S.Ct. at 2757-58.

In the present case, the City’s objective is to prevent the hindrance to pedestrian traffic and the congestion on the City’s streets and sidewalks. To achieve this objective, the City is not prohibiting all speech activities on the sidewalks. Individuals and organizations can continue to speak, distribute their literature and solicit contributions on the sidewalk. The district court erred in characterizing the city’s regulation as “a complete ban on a certain form of expressive activity.” 856 F.Supp. 1552, 1558 (M.D.Ala.1994). Instead, the City’s regulation is targeted toward preventing sidewalk obstructions: only the use of tables, and no other speech-related activity, is prohibited.

The City of Montgomery has identified an overall problem, obstructed streets and sidewalks, and has chosen a regulation which has a limited effect on individuals’ free speech rights to remedy that problem. The City need not show that every table placed on the sidewalk would create an unwanted obstruction: “the validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government’s interests in an individual case.” Ward, 491 U.S. at 801, 109 S.Ct. at 2759. Consequently, we hold that the regulation is narrowly tailored to achieve the City’s interests. 491 U.S. at 800, 109 S.Ct. at 2758. (“‘The validity of [time, place, or manner] regulations does not turn on a judge’s agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests’ or the degree to which those interests should be promoted.”).

As to the third prong of the time, place, and manner test: the regulation leaves open ample alternative channels for communication of the information. The district court did not reach this issue because it held that the City’s regulation did not satisfy the second prong. This third prong is easily met. The regulation explicitly states that individuals are free to hand out literature and solicit contributions on the sidewalks , and to set up tables on private property. Moreover, the regulation does not prohibit tables on other public properties like city parks. In short, only the erection of tables on city sidewalks is proscribed; all other methods of communication are left open. We hold that Montgomery’s regulation leaves open ample alternative channels for communication. See Frisby, 487 U.S. at 483, 108 S.Ct. at 2502. ([T]he limited nature of the prohibition [here] makes it virtually self-evident that ample alternatives remain____”).

There is little direct authority to guide a decision on the extent to which the use of portable tables on public sidewalks enjoys First Amendment protection. There are no Supreme Court cases. Only the Seventh Circuit has dealt with the issue. It directly held that the erection of a table is not constitutionally protected free speech. “Subsection E (of the Regulation) prohibits the erection of a table, chair or other structure in areas other than leased space____ Because this section does not facially restrict the exercise of guaranteed rights, we do not find it is constitutionally impermissible.” International Society for Krishna Consciousness v. Rockford, 585 F.2d 263, 270 (7th Cir.1978). In a case involving an almost identical regulation where “the plaintiffs alleged only that they have been prohibited from setting up tables,” the same court declined to “overrule Rockford on this point.” International Caucus of Labor Comms. v. City of Chicago, 816 F.2d 337, 339 (7th Cir.1987).

No other circuits appear to have dealt with the point. Several district courts have struggled with the issue, as did the district court in this case. Two cases in the Southern District of Florida go opposite ways. In International Caucus of Labor Comms. v. Metropolitan Dade County, Fla., 724 F.Supp. 917, 920 (S.D.Fla.1989), Judge Zloch followed the Seventh Circuit cases in holding “that the use of tables is not expressive conduct protected by the First Amendment.” In a later case which did not refer to Judge Zloch’s decision, Judge King, torn between the decision involving newsstands in Graff v. Chicago, 9 F.3d 1309, 1314 (7th Cir.1993) (“no person has a constitutional right to erect or maintain a structure on the public way.”), cert. denied, 511 U.S. 1085, 114 S.Ct. 1837, 128 L.Ed.2d 464 (1994), and the newsracks decision by this Court in Sentinel Communications Co. v. Watts, 936 F.2d 1189, 1196 (11th Cir.1991) (“there is ‘no doubt’ that the right to distribute and circulate newspapers through the use of newsracks is protected by the first amendment.”), decided that portable tables for selling T-shirts carrying protected speech message “more closely resemble the newsracks in the Sentinel case” and fell within the constitutional protection of expressive conduct. One World One Family Now v. City of Key West, 852 F.Supp. 1005 (S.D.Fla.1994). See also One World One Family Now Inc. v. State of Nev., 860 F.Supp. 1457, 1463 (D.Nev.1994).

Because there is no Supreme Court authority to guide a decision as to tables on public sidewalks, the courts have drawn analogies with the cases involving newsracks and newsstands. Although newsracks historically and by custom differ from tables on the sidewalk and therefore might enjoy more constitutional protection, there is no Supreme Court holding that deals with the constitutional implications of a complete ban of newsracks one way or the other. At least the Supreme Court did not think so in 1988 in City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). The dissent in that case says:

The Court quite properly does not establish any constitutional right of newspaper publishers to place news racks on municipal property. The Court expressly declines to ‘pass’ on the question of the constitutionality of an outright municipal ban on news racks. Ante, at 762, n. 7 [108 S.Ct. at 2147]____ In any event, the Court’s ruling today cannot be read as any indication to the contrary: cities remain free after today’s decision to enact such bans, (emphasis added).

486 U.S. at 773, 108 S.Ct. at 2152 (White, J. dissenting). Footnote 7 of the majority opinion says: “[W]e do not pass on its [the •dissents] view that a city may constitutionally prohibit the placement of newsracks on public property.” 486 U.S. at 762, 108 S.Ct. at 2147.

A majority of the nine Justices of the Supreme Court have suggested that an outright ban on newsracks on city sidewalks would be constitutional: Chief Justice Rehnquist and Associate Justices Stevens, O’Con-nor, Kennedy, Thomas, and Ginsburg.¹

Without specific guidance from Supreme Court decisions, however, it is appropriate that this Court apply the usual time, place and manner test to each situation, as it arises. The regulation here having passed that test, the City did not act unconstitutionally in this matter. We reverse the decision of the district court.²

REVERSED.'

1 . Lakewood involved an ordinance the majority thought gave too much discretion to the Mayor, not a complete ban. Justices White, Stevens, and O'Connor in their dissent said: "our precedents suggest that an outright ban on newsracks on city sidewalks would be constitutional." 486 U.S. at 773, 108 S.Ct. at 2152.

In a dissenting opinion in City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 445, 113 S.Ct. 1505, 1525, 123 L.Ed.2d 99 (1993), Chief Justice Rehnquist, joined by Justice Thomas, said: "In my view, the city may order the removal of all newsracks from its public right-of-ways if it so chooses."

Justices Kennedy and Ginsburg and Thomas concurred in Justice Stevens' opinion in 44 Liquormart, Inc. v. State of Rhode Island, — U.S. -, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996), which contained this comment in footnote 20:

[I]n Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993), we assumed that States could prevent all news racks from being placed on public sidewalks, but nevertheless concluded that they could not ban only those news racks that contained certain commercial publications. Id., at 428, 113 S.Ct. at Í516.

Although Stevens' interpretation of Cincinnati may be questionable, nevertheless, he assumes that states could prevent all newsracks from being placed on public sidewalks.

2 . Judge Anderson would hold that the City's ban is unconstitutional as applied to grassy areas between the curb and the concrete walkway, reasoning that the ban there was not narrowly tailored to protect the same interest the City had in the sidewalks. This part of the ban should present no problem. As defined by the Code of the City of Montgomery, the "sidewalk” includes only those areas "intended for use of pedestrians,” § 25-1 (1930), whether the areas be concrete or grassy. The City has the same interest in pedestrian traffic in all parts of the sidewalk, whether concrete or grassy. Pedestrians must use the grassy area, for example, to enter and exit vehicles from the sidewalk. If it is an area that pedestrians do not use, the ban would not apply.