PAUL D. BORMAN, J.
This case is brought under the First and Fourteenth Amendments to the United States Constitution. Plaintiff George Saieg is the founder and former director of Arab Christian Perspective ("ACP"), a national ministry established for the purpose of proclaiming the Gospel of Jesus Christ to Muslims.
These cross-motions mark a continuation of the case filed last year by Plaintiff and his then-organization, ACP, seeking to enjoin Defendants from enforcing the anti-leafleting ban against Plaintiff's, who wanted to carry out their Christian missionary activities at the Festival, which was held on June 19-21, 2009.
The present action was filed on June 16, 2009. The next day, on June 17, 2009—which was two days before the start of the 2009 Festival—Plaintiff filed an "Emergency Motion for Temporary Restraining Order" after learning that Defendants would not allow ACP members to distribute their religious literature on the public sidewalks within the inner and outer perimeters of the Festival.
The next day, on June 18, 2009—the day before the start of the 2009 Festival— Presiding U.S. District Judge Nancy G. Edmunds held an evidentiary hearing on Plaintiff's emergency motion and denied injunctive relief.
Def. Ex. P., p. 36. Judge Edmunds also held that the United States Supreme Court's decision in Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981), and the Sixth Circuit's decision in Spingola v. Village of Granville, 39 Fed.Appx. 978 (6th Cir.2002) (unpublished), both cases upon which Defendants heavily rely, control here, precluding the relief sought by Plaintiff.
Plaintiff filed an Amended Complaint on July 7, 2009. The Amended Complaint contains four counts. The first count alleges a violation of Plaintiff's First Amendment right to freedom of speech. The second count alleges a violation of Plaintiff's First Amendment right to association. The third count alleges a violation of Plaintiff's First Amendment right to freely exercise his religion. Finally, the fourth count alleges a violation of Plaintiff's Fourteenth Amendment right to equal protection. Although not the subject of an independent count in the Amended Complaint, Plaintiff also alleges municipal liability under 42 U.S.C. § 1983.
Plaintiff, a Christian pastor with "a deeply-held religious conviction to evangelize non-Christians" and convert them to the Christian faith, is the founder and former director of ACP, a national ministry established for the purpose of proclaiming the Gospel of Jesus Christ to Muslims.
Saieg Aff. ¶ 4. Plaintiff's religious materials, which are distributed free of charge to willing recipients, "do not contain solicitations" or "commercial speech"—only "religious messages." Id. ¶ 5.
The Festival is organized and operated by the American Arab Chamber of Commerce ("AACC"), a private organization. Beydoun Dep. at 14. The purpose of the Festival is to "bring as many Metro Detroiters to the East Dearborn area," "promote the Warren Avenue Business District," and "build bridges from the Warren Avenue community to the Greater Metro Detroit area." Def. Ex. E, p. 3. Festival events include a carnival, main stage with live performers, children's tent, vendor and artisan tents, sidewalk sales, and multi-cultural food and entertainment. Id. at p. 1; Def. Ex. D (flyer and program).
Fay Beydoun is the current Executive Director of the AACC, a position that she has held since 2009. Beydoun Dep. at 11-12. As Executive Director of the AACC, Beydoun was the chief organizer of the 2009 Festival; she will also organize this year's Festival. Plaintiff has not sued the AACC.
The Festival is held in an area that envelops public streets and sidewalks in Dearborn. See Def. Ex. F(map). Thus, street closures by the City are necessary to facilitate the Festival. See Def. Ex. E (memo from the AACC to the Dearborn City Council listing street closure requests); Def. Ex. M (Dearborn City Council resolution approving the closure of streets); Def. Ex. I (memo regarding placement of barricades on roads).
"Core" Festival activities—including the main stage, the carnival, the children's tent, and the vendor and artesian tents— take place within what the parties call the "inner perimeter," which is defined by the following boundaries: western and eastern boundaries at Hartwell Street and Kingsley Street, respectively; northern and southern boundaries at the front of the businesses located on Warren Avenue, encompassing the sidewalks on Warren Avenue. To the extent that core Festival
"Ancillary" activities take place in what the parties call the "outer perimeter," which is defined by the following boundaries: western and eastern boundaries at Schaefer Road and Wyoming Avenue, respectively; northern and southern boundaries at Morrow Circle and Blesser Avenue, respectively. Defendants concede in their brief that "the outer perimeter [does] not include activities such as carnival rides or vendor booths," but rather "provid[es] a safe, controllable buffer between the bulk of the Festival activities and the outside world." Def. Br. at 4-5.
Beydoun Dep. at 43-44.
A map of the inner perimeter is attached as Exhibit D to Defendants' motion. The main stage is located on the western edge of the inner perimeter; the carnival is located on the eastern edge of the inner perimeter. A series of tents line the space in between—from west to east along Warren Avenue: food booths, sponsor booths, children's tent, and artisan tent containing forty booths. See Def. Ex. D. In total, the 2009 Festival featured fourteen food vending areas, seventeen sponsor areas, forty artisan booths, and twenty-five information tables, for a total of ninety-six booths or tables throughout the inner perimeter. See id. Beydoun anticipates that the inner perimeter will be expanded at the upcoming 2010 Festival to accommodate additional sponsors and vendors. Beydoun Dep. at 54-55.
The Festival attracts hundreds of thousands of people. Def. Ex. G (Dearborn Press & Guide article). More than 250,000 were expected to attend the 2009 Festival. Id.
The Festival is organized by the AACC, not by the City. However, as Defendants acknowledge in their brief,
Def. Br. at 5. Moreover,
Id. See also Beydoun Dep. at 21 (testifying that "[t]he City provides a lot of support for the festival and ... they're the key people that would help ... facilitat[e] the festival and so forth, so [City officials] were invited to the [AACC] meetings"); id. at 40 (testifying that City police officers are physically present at the Festival to "ensure that sidewalks and traffic ... [are] ... maintained"); id. at 77 (testifying that the AACC "coordinated with the police" in attempting to control handbilling). Dearborn's Chief of Police, Ronald Haddad, and its Mayor, both participated in the 2009 Festival opening ceremony. Beydoun Dep. at 75.
The City granted permission to the AACC to conduct the 2009 Festival "subject to all applicable ordinances and the rules and regulations of the Police Department." Def. Ex. M (Dearborn City Council Resolution 5-330-09). Via the same resolution, the City Council also (1) authorized the road closures sought by the AACC, (2) authorized the use of certain City-owned lots for off-site Festival parking, and (3) authorized assistance from the Dearborn Police, Fire, Public Works, Building & Safety and Recreational Departments to "insure a safe[], healthy, fun and successful event." Id.
As noted above, the Festival grounds include the sidewalk area along Warren Avenue. Any existing business along Warren Avenue that wanted to set up a sidewalk sale on the sidewalk in front of their store was required to submit an application to the AACC and obtain an AACC-issued permit/certificate.
Non-Warren Avenue businesses, such as food vendors, artists, and private organizations such as ACP, were also allowed to participate in the 2009 Festival. Such businesses and organizations were required to submit a timely application to the AACC and pay a fee. As explained by Beydoun:
Beydoun Dep. at 33.
The fee schedule applicable to non-Warren Avenue businesses/organizations wishing to participate in the Festival is attached as the last two pages to Defendants' Exhibit O. An organization wishing to distribute religious materials at the Festival would have to purchase an information table. Beydoun Dep. at 50. An information table costs $150 plus a $100 refundable deposit. Id. A sign costs an extra $55, if needed by the business/organization. Id.
Plaintiff has never sought an information table through the AACC: "I never asked for a booth and I don't want a booth." Saieg Dep. at 105. Plaintiff wants to freely roam the public sidewalks, handing out religious literature, for the purpose of evangelizing Muslims; he does not want to distribute his materials from a fixed location. In 2009, the AACC provided Plaintiff with a booth, free of charge. This year, counsel for Defendants stated at the hearing on May 21, 2010, that the AACC would provide Plaintiff with a booth, free of charge, in the artisan tent, which is closer to the middle of the Festival than was last year's booth location next to the children's carnival. Also, unlike last year's fixed location, this booth is equipped with lighting to facilitate nighttime activity.
The Festival rules, which are promulgated by the AACC, prohibit "solicitation ... outside designated vendor areas." Def. Ex. O, p. 3, ¶ 2. The rules also prohibit "political solicitation." Id. at p. 2. Beydoun conceded in her deposition that ACP's activity, because it is not commercial in nature, would not fall under the definition of "solicitation." Beydoun Dep. at 53-54. ACP's activity also would clearly not constitute "political solicitation." Thus, there does not appear to be any written rule, promulgated by the AACC, preventing the distribution of religious materials at the Festival. Nonetheless, Beydoun testified that "handbilling along the sidewalks adjacent to the festival" is not allowed. Beydoun Dep. at 35-36. As stated by Beydoun, "[i]f you want to distribute, there is a specific place for you to distribute, which is at an information table." Id. at 51-52. Beydoun testified that the AACC was concerned about keeping the sidewalks clear for the benefit of both Festival-goers and non-Festival-goers alike: "[w]e wanted to make sure that the sidewalks were available ... for the people attending the festival [and] [for the] people that were trying to get from one location to another to go to the businesses." Beydoun Dep. at 37. See also id. at 62 ("[t]he concerns were that we wanted to make sure that there was a clear path for people, for pedestrians to be able to walk and to get from one place to another"). Beydoun further testified that
Id. at 54.
Beydoun testified that, during the 2009 Festival, she was aware that "city police officers were prohibiting individuals from distributing literature in [the] outer [perimeter]." Beydoun Dep. at 55. She expects
Id. at 58.
Dearborn Police Chief Ronald Haddad also testified that his officers patrolled the sidewalks during the 2009 Festival to ensure that they remain clear and open. Haddad Dep. at 17-18. He further testified that handbilling on the sidewalks during the Festival "was not going to be permitted" because
Id. at 18.
With regard to handbilling at the upcoming 2010 Festival, Haddad testified as follows:
Id. at 95.
Because Dearborn contains one of the largest Muslim populations in the United States, Plaintiff deems it "an important location for [his] Christian outreach efforts." Saieg Aff. ¶ 8. Accordingly, Plaintiff has visited Dearborn during the Festival every year since 2004. Id. ¶ 9. The Festival has grown in size every year. The ability of Plaintiff and his associates to freely roam the Festival grounds distributing their religious literature became circumscribed beginning at the 2009 Festival. Plaintiff describes his experience at Festivals prior to 2009 as follows:
Saieg Aff. ¶ 9. See also Saieg Dep. at 80 (explaining that at Festivals prior to 2009, Plaintiff and his associates conducted their outreach only on public sidewalks).
However, at the 2009 Festival, ACP members were not permitted to freely distribute their religious materials on the public sidewalks along Warren Avenue, as they had done in previous years. See Saieg Aff. ¶¶ 12-13; Saieg Dep. at 70-71.
Dearborn Police Sergeant Jeffrey Mrowka testified that the fixed location limitation applied equally to everyone wishing to distribute literature at the 2009 Festival:
Mrowka Dep. at 32-33.
Plaintiff states that ACP members were unable to reach their intended audience from the eastern location. According to Plaintiff, their tent/booth was not equipped with electricity and "[p]eople appeared unwilling to approach [their] location at night." Id. ¶ 36. Additionally, because the eastern location was near the carnival, "the vast majority of people who came to this location were children." Id. ¶ 37. As stated by Plaintiff, "[t]he ability to evangelize adult Muslims is made more difficult if Muslim children receive materials from Christians because the adult Muslims get angry if this happens." Id. See also Saieg Dep. at 74 (explaining that adult "Muslims
Plaintiff also complains that his 2009 tent/booth was far from the main stage area, which was on the western edge of the inner perimeter: "[t]he majority of the people attending the Festival congregated around the stage to listen to the free concert. From our location, we were unable to reach these people with our materials." Id. ¶ 38. As noted above, this year's tent/booth location is closer to the main stage area, and not next to the children's rides, and provides electricity to facilitate nighttime activity.
Plaintiff states that it is essential to his mission that he and his associates be permitted to freely roam the sidewalks of the Festival handing out their religious materials:
Id. ¶¶ 39-40. See also Saieg Dep. at 75-76.
When permitted to freely roam the sidewalks at Festivals prior to 2009, ACP members distributed approximately 37,000 and 20,000 packets of religious materials at the 2007 and 2008 Festivals, respectively. Id. ¶ 41. At the 2009 Festival, by contrast, ACP members were only able to distribute approximately 500 packets of religious materials from their fixed location. Id.; Saieg Dep. at 101-102. Thus, the speech restriction placed on ACP members at the 2009 Festival "severely limited [their] ability to distribute [their] religious materials" and consequently, ACP had to seek storage space for the leftover materials. Saieg Aff. ¶ 42; Pl. Ex. 1L (photograph of storage space). See also Saieg Dep. at 92 (explaining that "a lot less" people approached
ACP members wish to
Id. ¶ 45. See also Saieg Dep. at 66.
Pursuant to Fed.R.Civ.P. 56(b), a party against whom a claim is asserted may "at any time, move with or without supporting affidavits, for a summary judgment in the party's favor as to all or any part thereof." Summary judgment is appropriate where the moving party demonstrates that there is no genuine issue of material fact as to the existence of an essential element of the nonmoving party's case on which the nonmoving party would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Of course, [the moving party] always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548.
A fact is "material" for purposes of a motion for summary judgment where proof of that fact "would have [the] effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties." Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984) (quoting Black's Law Dictionary 881 (6th ed. 1979)) (citations omitted). A dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Conversely, where a reasonable jury could not find for the nonmoving party, there is no genuine issue of material fact for trial. Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir. 1993). In making this evaluation, the court must examine the evidence and draw all reasonable inferences in favor of the non-moving party. Bender v. Southland Corp., 749 F.2d 1205, 1210-1211 (6th Cir. 1984).
If this burden is met by the moving party, the non-moving party's failure to make a showing that is "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," will mandate the entry of summary judgment. Celotex, 477 U.S. at 322-323, 106 S.Ct. 2548. The non-moving party may not rest upon the mere allegations or denials of his pleadings, but the response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts which demonstrate that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The rule requires the non-moving party to introduce "evidence of evidentiary quality" demonstrating the existence of a material fact. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 145 (6th Cir.1997).
Defendants argue, as Judge Edmunds found in her ruling on June 18, 2009, that the City's ban on handbilling in both the inner and outer perimeters of the Festival constitutes a valid time, place, and manner restriction under Heffron and Spingola. Additionally, Defendants argue that the
Plaintiff, on the other hand, contends that (1) this case is distinguishable from Heffron and Spingola, (2) Defendants may not, consistent with the First Amendment, ban handbilling on public streets and sidewalks, and (3) the ban is not a valid time, place, and manner restriction because it is impermissibly content-based and does not satisfy intermediate scrutiny. Additionally, Plaintiff argues that dismissal of this case for failure to join a party is unwarranted.
The Court first addresses Defendants' joinder argument. The Court then addresses whether the handbilling ban in the inner and outer perimeters is a valid time, place, and manner restriction under the First Amendment.
Defendants urge the Court to dismiss this case under Fed.R.Civ.P. 12(b)(7) because Plaintiff failed to name the AACC as a party defendant. According to Defendants, the AACC is a necessary party defendant because "even if ... Plaintiff is successful against ... Defendants, it would not change the rules of the Festival that require Plaintiff to ... limit materials distribution to a fixed location." Def. Br. at 14. For this reason, Defendants contend that "complete relief" could not be granted to Plaintiff unless the AACC is a party.
Defendants' argument is unpersuasive because it ignores two crucial facts. First, even if he wanted to, Plaintiff probably could not sue the AACC, a private organization, for First Amendment violations. See Hudgens v. Nat'l Labor Relations Bd., 424 U.S. 507, 513, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976) ("[i]t is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state"). But see also Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000) ("a private entity can be held to constitutional standards when its actions so approximate state action that they may be fairly attributed to the state").
Second, and more importantly, the City—and not the AACC—is the proper party defendant in this case because it is the City's police officers who will be enforcing an "across the board" ban on all handbilling (except for handbilling occurring from assigned booths). As mentioned above in Section 11(E), there is no written AACC-promulgated rule prohibiting religious handbilling. The AACC-promulgated rules prohibit only "solicitation" (which, according to Beydoun, is meant to cover distribution of handbills of a commercial nature) and "political solicitation." Plaintiff's religious literature does not qualify under either of these two banned categories. However, notwithstanding the lack of a written AACC-promulgated rule banning all handbilling, Dearborn Police Chief Haddad testified that he and his officers will be enforcing an "across the board" ban on all handbilling at the Festival (except handbilling from a assigned booths). Haddad Dep. at 18, 70, 76, 95. Haddad also testified that an individual handing out materials at the Festival in violation of the ban would be subject to possible arrest. Id. at 72. Plaintiff seeks an order preventing the City from enforcing, via threat of arrest, what he contends to be an unconstitutional speech restriction. See Saieg Aff. ¶ 44 ("[m]y fellow Christians and I .... intend to, visit the City during the 2010 Festival to distribute our religious materials.... However, because we are subject to arrest by City police officers for engaging in this ... speech activity in the City, we are deterred from doing so"). Because Plaintiff seeks to enjoin Dearborn police officers from enforcing what is alleged to be an unconstitutional speech restriction,
The First Amendment—which applies to the states through the Fourteenth Amendment, see Murdock v. Commonwealth of Pa., 319 U.S. 105, 108, 63 S.Ct. 870, 87 L.Ed. 1292 (1943)—declares, in relevant part: "Congress shall make no law ... abridging the freedom of speech." U.S. Const. amend. I. As stated by the Sixth Circuit,
Spingola, 39 Fed.Appx. at 982 (citations omitted). "[T]he First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired." Heffron, 452 U.S. at 647, 101 S.Ct. 2559.
Spingola, 39 Fed.Appx. at 982 (citation omitted) (emphasis in original). Thus, time, place, and manner restrictions are valid so long as they (1) are content-neutral, (2) are narrowly tailored, (3) serve a significant governmental interest, and (4) leave open ample alternative channels for communication.
First of all, this Court reiterates that Plaintiff and his fellow missionaries will be able to mingle throughout the Festival and talk to people. Additionally, while circulating freely, they will be able to wear pins containing a message. The sole issue of contention is leafleting.
Heffron and Spingola both provide examples of speech restrictions that were upheld as valid time, place, and manner restrictions. In Heffron, the Supreme Court upheld a regulation on speech at the Minnesota State Fair, which was held on a 125-acre tract of state-owned land, that prohibited the distribution of literature or the soliciting of funds except at a rented booth. 452 U.S. at 643, 656, 101 S.Ct. 2559. The Court held that the regulation was content-neutral because it "applie[d] evenhandedly to all who wish to distribute and sell written materials or to solicit funds" regardless of the speaker, viewpoint, or subject matter. Id. at 648-649, 101 S.Ct. 2559. The Court also accepted the State's argument that the regulation was justified by a substantial state interest: protecting the "safety and convenience" of the fair-goers and ensuring the orderly flow of pedestrian traffic through the crowded fairgrounds. Id. at 650, 101 S.Ct. 2559. Relatedly, the Supreme Court held that "consideration of a forum's special attributes is relevant to the constitutionality
Id. at 651, 101 S.Ct. 2559. Finally, the Court held that the regulation left open ample alternative means for the communication of information because (1) the rule did not prevent members of the religious sect who brought the case, the Krishna, from practicing their religion outside the fairgrounds and (2) the rule did not prevent Krishna members from mingling with the crowd, orally propagating their views, or arranging for a booth to distribute and sell their religious literature. Id. at 654-655, 101 S.Ct. 2559.
In Spingola, the Sixth Circuit upheld an ordinance requiring anyone engaged in public speaking during a town assemblage to speak from a designated "public speaking area." 39 Fed.Appx. at 979. The assemblage at issue was a street fair, drawing thousands of people over a twoblock area comprised of public streets. Id. at 978. There was no dispute in Spingola that the ordinance was content-neutral. Id. at 983. Relying heavily on Heffron, the court found that the fair area, "though comprised of public streets, [was] not serving in that function during the festival." Id. at 983. The court also held, citing Heffron, that the ordinance served the important governmental purposes of increasing public safety during the festival, ensuring smoother traffic flow, and balancing free speech with the rights of persons attending the festival to be free from hindrance. Id. at 984. Moreover, alternative channels for speech existed because the ordinance called for a designated speaking area and the plaintiff, a "confrontational evangelist," could stand outside the festival grounds if he chose. Id. at 984-985.
In the instant case, the Court concludes that the site at issue is in reality a fairgrounds.
The crucial question in this case is whether the "across the board" ban on mobile handbilling in the inner and outer perimeters of the Festival, which was enforced at the 2009 Festival and will again be enforced at the upcoming 2010 Festival, see Haddad Dep. at 18, 70, 72, 76, 95, qualifies as a valid time, place, and manner restriction.
Defendants disagree with Plaintiff on each point. According to Defendants, they may regulate handbilling on public streets and sidewalks and the restriction at issue here—the "across the board" ban on handbilling in the inner and outer perimeters— constitutes a valid time, place, and manner restriction.
Before addressing Plaintiff's arguments, the Court first notes that the speech at issue in this case is undisputably protected by the First Amendment. See Murdock, 319 U.S. at 110, 63 S.Ct. 870 ("spreading one's religious beliefs or preaching the Gospel through distribution of religious literature and through personal visitations is an age-old type of evangelism with as high a claim to constitutional protection as the more orthodox types [of religious practices]").
Plaintiff first argues that because the Festival grounds are comprised of public streets and sidewalks, Defendants may not, consistent with the First Amendment, ban handbilling on public streets and sidewalks. In so arguing, Plaintiff emphasizes in his brief that public streets are traditional public fora and are thus "held in public trust," Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), as "proper places for the dissemination of information and opinion." Schneider v. State of N.J., Town of Irvington, 308 U.S. 147, 151, 60 S.Ct. 146, 84 L.Ed. 155 (1939). While this is a component of the relevant First Amendment analysis, Plaintiff does not acknowledge that the Festival grounds here are analogous to those in Spingola inasmuch as both festival grounds are comprised of public streets that, in the words of the Spingola court, are "not serving in that function during the festival." See 39 Fed.Appx. at 983. As such, Plaintiff's reliance on cases such as Jamison v. State of Tex., 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (1943), Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943), and Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938)—all of which involve the enforcement of speech restrictions on streets and sidewalks that are serving in their ordinary function as open streets and sidewalks—is misplaced. This is because "[t]he flow of the crowd and demands of safety are more pressing in the context of [a][f]air" and "[a]s such, any comparisons
Additionally, Plaintiff also fails to acknowledge that speech—even if taking place in a traditional public forum—is subject to valid time, place, and manner restrictions. See Spingola, 39 Fed.Appx. at 983 ("regardless of whether we would classify the ... festival area as a traditional public forum or a limited public forum ..., the Ordinance is examined under the same intermediate level of scrutiny"). Therefore, the argument that Defendants may not regulate speech on public streets and sidewalks is unpersuasive.
Plaintiff's main argument is that the handbilling ban in the inner and outer perimeters of the Festival does not constitute a valid time, place, and manner restriction. Specifically, Plaintiff contends that the handbilling ban (1) does not leave open ample alternative channels for communication, (2) is content-based, (3) does not serve a significant governmental interest, (4) is not narrowly tailored. The Court addresses each of these requirements, in turn, below. Ultimately, the Court concludes that the ban on handbilling in the inner and outer perimeters qualifies as a valid time, place, and manner restriction.
Plaintiff argues that
Pl. Br. at 18-19. Heffron and Spingola preclude Plaintiff's argument. The speech restriction at issue in Heffron prohibited the distribution of literature or the soliciting of funds at the Minnesota State Fair except at a rented booth. The Supreme Court found that the restriction left open ample alternative means for the communication of information because (1) the regulation did not prevent Krishna members from practicing their religion outside the fairgrounds and (2) the regulation did not prevent Krishna members from mingling with the crowd, orally propagating their views, or arranging for a booth to distribute and sell their religious literature. See 452 U.S. at 654-655, 101 S.Ct. 2559.
Similarly, in Spingola, the Sixth Circuit held that alternative channels for speech existed because the ordinance, which required anyone engaged in public speaking during a town assemblage to speak from a designated "public speaking area," called for a designated speaking area and the plaintiff, a "confrontational evangelist," could stand outside the festival grounds if he chose. See 39 Fed.Appx. at 985-985.
So too, the instant case. There is no allegation that Plaintiff missionaries were in anyway prohibited or discouraged from distributing their religious literature outside the Festival boundaries. Nor does Plaintiff allege that then-ACP members were prevented from mingling with the Festival crowd and orally propagating their religious views; Plaintiff and his associates were only prevented from distributing literature outside of their designated booth. Finally, then-ACP members could—and did at the 2009 Festival—utilize a booth to distribute their religious literature.
Plaintiff and his fellow missionaries have never been denied access to the Festival forum, nor have they been denied the opportunity to interact with their intended audience, Festival-goers. Thus, the case upon which Plaintiff relies—Bay Area Peace Navy v. United States, 914 F.2d 1224, 1229-1230 (9th Cir.1990), where the speech restriction in question prevented the plaintiff from reaching its intended audience with its message—is inapposite. In short, the very same alternative avenues of communication are available to Plaintiff in this case as were available to the respective plaintiffs in both Heffron and Spingola. These alternative avenues were deemed constitutionally adequate by the Supreme Court and the Sixth Circuit in Heffron and Spingola, respectively; they are constitutionally adequate here, as well.
The Court acknowledges Plaintiff's complaint that "[p]eople appeared unwilling to approach [the booth] location at night" because their tent was not equipped with electricity, see Saieg Aff. ¶ 36, and the tent was not ideally located because it was near the children's area. Id. ¶ 38. This year, the tent is equipped with electricity, and the location is not in the children's area, but instead in the central area.
The Constitution does not guarantee a person "her best means of communication." Phelps-Roper v. Strickland, 539 F.3d 356, 372 (6th Cir.2008) (citing Heffron, 452 U.S. at 647, 101 S.Ct. 2559 ("the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired")). See also Prime Media, Inc. v. City of Franklin, Tenn., 181 Fed. Appx. 536, 541 (6th Cir.2006) (unpublished) ("alternative channels of communication need not be available at every location, or at the most desirable location, within a city"). Plaintiff and his fellow missionaries will not be denied access to the Festival forum, nor denied the opportunity to interact with their intended audience. Under these circumstances, notwithstanding Plaintiff's complaints, alternative channels for communication of their message remained sufficiently open. See Heffron, 452 U.S. at 654-655, 101 S.Ct. 2559; Spingola, 39 Fed.Appx. at 985-985.
"[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Dep't of City of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). Thus,
Turner Broad. Sys., Inc. v. Fed. Commc'n Comm'n, 512 U.S. 622, 641, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). For this reason, content-based regulations are subject to "the most exacting scrutiny," id. at 642, 114 S.Ct. 2445, and are "presumptively invalid." R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992).
Plaintiff argues that the ban on handbilling is content-based and therefore subject to strict scrutiny. Plaintiff believes that the ban favors commercial speech in violation of the First Amendment because it permits local businesses along Warren Avenue,
Defendants, on the other hand, argue that the ban on handbilling is content-neutral:
Resp. Br. at 21.
Defendants' position is persuasive. One of the stated purposes of the Festival is to "promote the Warren Avenue Business District." Def. Ex. E, p. 3. Thus, the AACC affords anyone who occupies existing store space along Warren Avenue, subject to logistical concerns, the opportunity to utilize the sidewalk in front of their store during the Festival.
To the extent that Defendants enforce the AACC's rule permitting occupants of space along Warren Avenue to set up on the sidewalk outside their storefronts at the exclusion of those who do not occupy space along Warren Avenue, the restriction is not content-based because no expression is being restricted based on "its message, its ideas, its subject matter, or its content." See Mosley, 408 U.S. at 95, 92 S.Ct. 2286. Rather, Defendants, by enforcing the AACC's rule, are favoring, if anyone, those with space along Warren Avenue no matter who they are or what their message. In reality, this is a quid pro quo for stores negatively impacted by the Festival. In exchange for subjecting them to Festival crowds in front of their stores and closed-off streets that block regular customers' ingress and egress, the existing merchants are permitted to set up tables out front to sell their wares. Thus, if ACP had an existing office located in the inner perimeter along Warren Avenue, there is nothing in the record to suggest that it could not set up a table outside its office like everyone else occupying space along Warren Avenue. In other words, there is nothing to suggest that the criterion to set up a sidewalk sale along Warren Avenue has anything to do with the message of the occupant, or the subject matter of the occupant's speech (i.e., commercial versus non-commercial); rather, the criterion is that the occupant simply occupy space in the inner perimeter along Warren Avenue. See Beydoun Dep. at 65 (testifying that the sidewalk vendors along Warren Avenue are Warren Avenue businesses). Because Defendants are not enforcing a restriction on expression that favors commercial speech over non-commercial speech, the cases cited by Plaintiff, discussed above, are not controlling.
In Heffron, the Supreme Court held that the government's interest in ensuring the orderly flow of pedestrian traffic through a crowded fairgrounds constitutes a substantial governmental interest. See 452 U.S. at 650, 101 S.Ct. 2559. The Sixth Circuit, in Spingola, held the same. See 39 Fed. Appx. at 984. Indeed, Judge Edmunds also held the same in the instant case, in denying Plaintiff's request for a temporary restraining order last year.
Defendants argue that the holdings in Heffron and Spingola apply with equal force here because the goals underlying the handbilling ban are the same as those proffered by the governments in both Heffron and Spingola. Plaintiff, on the other hand, argues that the holdings are inapplicable here for two reasons. First, Plaintiff points out that the fairgrounds in Heffron were not located on public streets and sidewalks as are the Festival grounds here. Thus, as Plaintiff notes, "the fair [in Heffron] occurred at a closed, fixed location
This argument is foreclosed by Spingola. The fair at issue in Spingola took place over a two-block area comprised of public streets in the Village of Granville. See 39 Fed.Appx. at 978. Thus, in upholding the public speaking ban at issue in Spingola as a valid time, place, and manner restriction, the Sixth Circuit applied the Heffron holding to a venue, like the one here, that was comprised of public streets and was open to pedestrian traffic unrelated to the fair.
Plaintiff's second argument as to why Heffron does not apply here is also unpersuasive. Plaintiff argues that the presence of some Festival activities on the sidewalk along Warren Avenue frustrates the government's stated goal of ensuring the orderly flow of pedestrian traffic through the crowded Festival. As stated by Plaintiff, "it makes little sense to permit businesses to set up fixed locations that plainly block the public sidewalks and then prohibit individuals from distributing noncommercial, religious literature in the same forum." Pl. Br. at 17. However, a similar argument was made by the plaintiff, and rejected by the Sixth Circuit, in Spingola:
39 Fed.Appx. at 984. Accordingly, Plaintiff's second argument, like his first one, is foreclosed by Spingola.
Based on the Supreme Court's holding in Heffron and the Sixth Circuit's holding in Spingola, Defendants' proffered justifications for the handbilling ban—maintaining crowd control, relieving pedestrian congestion, and ensuring an orderly Festival—constitute substantial governmental interests.
As stated by the Sixth Circuit,
Richland Bookmart, Inc. v. Knox County, Tenn., 555 F.3d 512, 528 (6th Cir.2009) (citations omitted). For example, in United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983), a case upon which Plaintiff heavily relies, the Supreme
Plaintiff argues that the City's goals of maintaining crowd control, relieving pedestrian congestion, and ensuring an orderly Festival are not furthered by prohibiting handbilling in the outer perimeter. This is because the outer perimeter is not crowded with wall-to-wall people as is the inner perimeter, which serves as the actual Festival grounds. As stated by Plaintiff,
Pl. Br. at 17 (footnote omitted). Via this argument, then, Plaintiff is challenging the handbilling ban in the outer perimeter only, asserting that the ban is not narrowly tailored to alleviate the City's crowd control concerns since those concerns are not implicated in the uncrowded outer perimeter. Plaintiff does not mount a "narrow tailoring" challenge with respect to the enforcement of the handbilling ban in the inner perimeter. For the reasons that follow, the Court rejects Plaintiff's argument and finds that the ban on handbilling in the outer perimeter is narrowly tailored to serve the City's legitimate and substantial interest in ensuring an orderly Festival.
The outer perimeter runs approximately five blocks to the west of the western edge of the inner perimeter, covering the following blocks: Rueter Avenue, Jonathon Street, Bingham Street, Calhoun Street, and Schaefer Highway. The outer perimeter runs approximately four blocks to the east of eastern edge of the inner perimeter, covering the following blocks: Emanon Street, Freda Street, Normile Street, and Wyoming Avenue.
The stated purpose of the outer perimeter is to "provid[e] a safe, controllable buffer between the bulk of the Festival activities and the outside world" in order
It is crucial to note that this case is not just about Plaintiff's right to exercise his First Amendment rights in the outer perimeter; it is about the right of everyone to do so. That is, if the Court struck down the ban as unconstitutional, everyone—not just Plaintiff and his associates—would be permitted to distribute literature in the outer perimeter. Organizations of all kinds, businesses, and individuals alike would all flock to the outer perimeter to promote their respective interests and messages. The consequence of this would be to effectively extend the Festival grounds into an area that is meant to serve as a buffer zone between the Festival and the outside world. This result would undermine the legitimate and substantial interest of the City to "ensure an orderly and safe transition from the open streets and the streets occupied by the Festival." It is for this reason that a ban on handbilling in the outer perimeter is narrowly tailored. A result to the contrary would severely undercut the City's substantial interest in maintaining a safe zone, clear of wall-to-wall Festival crowds, between the Festival grounds and the outside world.
It is also for this reason that the Court finds the Supreme Court's decision in Grace inapplicable here. In Grace, the ban on certain communicative activity on the public sidewalks surrounding the Supreme Court building did not sufficiently serve the government's interest in protecting the Supreme Court grounds and maintaining proper order and decorum. There was an "insufficient nexus" between the ban and the public interests undergridding it. In other words, the Grace Court effectively held that the government could accomplish its goals, which were deemed to be substantial governmental interests, without imposing the ban. The same is not true here for the reasons stated in the preceding paragraph. Without a ban on the distribution of literature in the outer perimeter—which is meant to serve as a safe zone for three days out of the year— the City could not accomplish its goal.
The Court also finds Grace distinguishable because the ban in Grace applied to communicative activity taking place on sidewalks that were serving in their traditional function as sidewalks. See Grace, 461 U.S. at 179, 103 S.Ct. 1702 ("[t]he sidewalks comprising the outer boundaries of the [Supreme] Court grounds are indistinguishable from any other sidewalks in Washington, D.C., and we can discern no reason why they should be treated any differently"). The same is not true here. For three days out of the year, the streets and sidewalks of the outer perimeter are not serving as traditional streets and sidewalks; rather, they are serving in an entirely different role. See Heffron, 452 U.S. at 651, 101 S.Ct. 2559 ("[t]he flow of the crowd and demands of safety are more pressing in the context of [a] Fair. As such, any comparisons to public streets are necessarily inexact"). For these reasons, Grace is not controlling here.
The Court analogizes the two perimeters to airport traffic; the inner perimeter is like the main runway, while the outer perimeter
For the reasons stated above, the Court finds that the handbilling ban in the inner and outer perimeters meets the requirements for a valid time, place, and manner restriction on speech. Accordingly, summary judgment will be granted in favor of Defendants on Plaintiff's First Amendment free speech claim.
Defendants argue that they are entitled to summary judgment in their favor on Plaintiff's freedom of association claim. Plaintiff does not seek summary judgment on this claim, and the claim is scarcely discussed in Plaintiff's motion papers, and not at all at oral argument.
In the Amended Complaint, Plaintiff states that "Defendants have deprived [him] of [his] right to expressive association guaranteed by the First Amendment" "[b]y reason of the [handbilling restriction]." Am. Compl. ¶ 78. In his response to Defendants' Motion for Summary Judgment, Plaintiff states that the handbilling ban forces Plaintiff "to be a participant in—and thus [a] supporter of—the Festival." Resp. at 9 (emphasis deleted).
This argument, although interesting, is unpersuasive. Plaintiff relies solely upon Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995), in support of his argument. There, the Supreme Court held that the government cannot force private citizens who organize a parade to include among the marchers a group imparting a message that the organizers do not wish to convey. Id. at 559, 115 S.Ct. 2338. Thus, the Court found that compelling the parade organizer to include the Irish-American Gay, Lesbian, and Bisexual Group in the parade "violates the fundamental rule . . . under the First Amendment, that a speaker has the autonomy to choose the content of his own message." Id. at 572, 115 S.Ct. 2338.
The present case is not like Hurley. Hurley involved a situation where the government was attempting to use its power to compel a private speaker, the parade organizer, to alter its message. Here, the government is not forcing Plaintiff to do anything; Plaintiff, by his own choice, wishes to impart his religious message upon Festival-goers. For this reason, Hurley is inapplicable. Plaintiff's freedom of association claim is unavailing.
Plaintiff does not discuss his free exercise claim in his motion papers despite the fact that the claim is discussed by Defendants. Therefore, the claim is deemed abandoned. See Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 405 (6th Cir.1992) (if the non-moving party fails to carry its burden of setting forth specific facts showing genuine issues of fact for trial, "its opportunity is waived and its case wagered").
In any event, the claim is not viable. As stated in a respected treatise,
E. Chemerinsky, Constitutional Law § 12.3.1, p. 1247 (3d ed. 2006). None of
Plaintiff's equal protection claim under the Fourteenth Amendment is not viable for the reasons stated in footnote 15, above.
Although not the subject of a separate count, Plaintiff broadly asserts municipal liability against the City. Plaintiff contends that the City is liable under § 1983 because it enforced an unconstitutional speech restriction. In addition, Plaintiff alleges throughout his Amended Complaint and motion papers that the handbilling ban at the 2009 Festival was selectively enforced by Dearborn police officers. Although the parties do not explicitly acknowledge it as such, the selective enforcement claim constitutes a municipal liability claim.
Three general rules govern a municipal liability claim. First, "a municipality cannot be held liable [under § 1983] solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In other words,
Id. at 694, 98 S.Ct. 2018. Second, "[a] local government entity violates § 1983 where its official policy or custom actually serves to deprive an individual of his or her constitutional rights." Gregory v. City of Louisville, 444 F.3d 725, 752 (6th Cir. 2006). Third, "[t]he burden of proof is on the plaintiff to set forth the unconstitutional policy and link it with both the municipality and the injuries at issue." King v. City of Eastpointe, 86 Fed.Appx. 790, 801 (6th Cir.2003) (unpublished).
The Supreme Court has explained why a plaintiff seeking to impose liability on a municipality under § 1983 must identify a municipal "policy" or "custom" that caused injury:
Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403-404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (citation omitted). Put differently,
Meyers v. City of Cincinnati, 14 F.3d 1115, 1117 (6th Cir.1994) (citations omitted) (emphasis in original).
Because the Court has found that enforcement of the handbilling ban in the inner and outer perimeters is constitutional, Plaintiff cannot establish an unconstitutional policy or custom. His municipal liability claim, therefore, is not viable.
With regard to Plaintiff's selective enforcement claim, the Third Circuit has stated that
Brown v. City of Pittsburgh, 586 F.3d 263, 294 (3d Cir.2009). There is no policy of selective enforcement at issue in this case. Thus, in order to sustain his selective enforcement claim, Plaintiff must demonstrate a municipal custom of selective enforcement or, in the words of the Third Circuit, "a pattern of enforcement activity evincing a governmental . . . custom of intentional discrimination on the basis of viewpoint or content." Brown, 586 F.3d at 294.
Plaintiff testified that he observed Dearborn police officers selectively enforcing the handbilling ban at the 2009 Festival:
Saieg Aff. ¶¶ 27-28.
Accepting Plaintiff's testimony as true and assuming that the pictures show what they are alleged to show, and taking the evidence in the light most favorable to Plaintiff, the testimony above is insufficient to establish a cognizable municipal liability claim based on selective enforcement. Plaintiff alleges the following instances of selective enforcement of the handbilling ban during the 2009 Festival: (1) Arabic Radio & Television was allowed to pass out flyers outside of its booth; (2) a "Monster" truck was allowed to pass out free drinks within the border areas to Festival-goers; (3) a Five Star Video representative was permitted to distribute flyers to Festival-goers in the street and on the sidewalks without first purchasing a booth; (4) "some individuals were distributing literature within the Festival itself on Warren Avenue and the City police did not stop them."
These four instances, even if true, do not amount to "a pattern of enforcement activity evincing a governmental . . . custom of intentional discrimination on the basis of viewpoint or content." Brown, 586 F.3d at 294. This is because these instances, alone, are insufficient to show that selective enforcement of the handbilling ban was "so widespread as to have the force of law." Brown, 520 U.S. at 403-404, 117 S.Ct. 1382.
In addition, Plaintiff has not demonstrated that "those whose edicts or acts may fairly be said to represent official policy," such as Chief Haddad, are responsible for the above-described instances of selective enforcement. See Monell, 436 U.S. at 694, 98 S.Ct. 2018. In other words, Plaintiff has not alleged that the constitutional injury, selective enforcement of the handbilling ban, was inflicted by the City itself, through its decision-makers (i.e., Haddad), as opposed to one or more of its employees or agents (i.e., individual patrol officers). See Monell, 436 U.S. at 691, 98 S.Ct. 2018 ("a municipality cannot be held liable under § 1983 on a respondeat superior theory"). For these reasons, Plaintiff's selective enforcement claim is not viable under § 1983.
Haddad mistakenly argues that he is entitled to qualified immunity. This is not an action for monetary relief; it is an action for declaratory and injunctive relief. Moreover, Haddad is sued in his official capacity only. "Qualified immunity is an affirmative defense to damage liability; it does not bar actions for declaratory or injunctive relief." Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 527 (9th Cir.1989). Moreover, "[q]ualified immunity shields [a] defendant from personal liability, but it does not shield him from . . . claims brought against him in his official capacity." Hall v. Tollett, 128 F.3d 418, 430 (6th Cir.1997). Accordingly, Haddad is not entitled to qualified immunity.
For the reasons stated, Defendants' Motion for Summary Judgment is granted. Plaintiff's Motion for Summary Judgment and Request for Injunctive Relief is denied. All other outstanding motions are denied as moot. This case is dismissed.
SO ORDERED.
Saieg Aff. ¶ 6. See also Saieg Dep. at 16.
Beydoun Dep. at 31. See also id. at 65. According to Defendants, "this change in procedures caused the sidewalks to become subsumed within the Festival boundaries." Def. Br. 7.
Def. Ex. P., pp. 18-19.
Beydoun Dep. at 64-65.
