JAMES O. BROWNING, District Judge.
District courts may refer dispositive motions to a magistrate judge for a recommended disposition. See Fed.R.Civ.P. 72(b)(1) ("A magistrate judge must promptly conduct the required proceedings when assigned, without the parties' consent, to hear a pretrial matter dispositive of a claim or defense...."). Rule 72(b)(2) governs objections: "Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations." Fed.R.Civ.P. 72(b)(2). Finally, when resolving objections to a Magistrate Judge's
28 U.S.C. § 636(b)(1)(C).
"`The filing of objections to a magistrate's report enables the district judge to focus attention on those issues — factual and legal — that are at the heart of the parties' dispute.'" United States v. One Parcel of Real Property, with Buildings, Appurtenances, Improvements, and Contents, 73 F.3d 1057, 1059 (10th Cir.1996) (quoting Thomas v. Arn, 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)) ("One Parcel"). As the United States Court of Appeals for the Tenth Circuit has noted, "the filing of objections advances the interests that underlie the Magistrate's Act, including judicial efficiency." One Parcel, 73 F.3d at 1059 (citing Niehaus v. Kan. Bar Ass'n, 793 F.2d 1159, 1165 (10th Cir.1986); United States v. Walters, 638 F.2d 947, 950 (6th Cir.1981)).
The Tenth Circuit has held "that a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." One Parcel, 73 F.3d at 1060. "To further advance the policies behind the Magistrate's Act, [the Tenth Circuit], like numerous other circuits, have adopted `a firm waiver rule' that `provides that the failure to make timely objections to the magistrate's findings or recommendations waives appellate review of both factual and legal questions.'" One Parcel, 73 F.3d at 1059 (citations omitted). In addition to requiring specificity in objections, the Tenth Circuit has stated that "[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived." Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.1996). See United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir.2001)("In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived."). In an unpublished opinion, the Tenth Circuit stated that "the district court correctly held that [a petitioner] had waived [an] argument by failing to raise it before the magistrate." Pevehouse v. Scibana, 229 Fed.Appx. 795, 796 (10th Cir.2007)(unpublished).
Thomas v. Arn, 474 U.S. at 151-52, 106 S.Ct. 466 (footnotes omitted).
Where a party files timely and specific objections to the magistrate judge's proposed findings and recommendation on "dispositive motions, the statute calls for a de novo determination, not a de novo hearing." United States v. Raddatz, 447 U.S. 667, 674, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). "[I]n providing for a `de novo determination' rather than de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations." United States v. Raddatz, 447 U.S. at 676, 100 S.Ct. 2406 (quoting 28 U.S.C. § 636(b))(citing Mathews v. Weber, 423 U.S. 261, 275, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976)). The Tenth Circuit requires a "district court to consider relevant evidence of record and not merely review the magistrate judge's recommendation" when conducting a de novo review of a party's timely, specific objections to the magistrate's report. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). "When objections are made to the magistrate's factual findings based on conflicting testimony or evidence ... the district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary hearing." Gee v. Estes, 829 F.2d 1005, 1008-09 (10th Cir.1987).
A district court must "clearly indicate that it is conducting a de novo determination" when a party objects to the magistrate's report "based upon conflicting evidence or testimony." Gee v. Estes, 829 F.2d at 1009. On the other hand, a district court fails to meet the requirements of 28 U.S.C. § 636(b)(1) when it indicates that it gave "considerable deference to the magistrate's order." Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). A district court need not, however, "make any specific findings; the district court must merely conduct a de novo review of the record." Garcia v. City of Albuquerque, 232 F.3d 760, 766 (10th Cir. 2000). "[T]he district court is presumed to know that de novo review is required. Consequently, a brief order expressly stating the court conducted de novo review is sufficient." Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir.1996) (citing In re Griego, 64 F.3d at 583-84). "[E]xpress references to de novo review in its order must be taken to mean it properly considered the pertinent portions of the record, absent some clear indication otherwise."
In re Griego, 64 F.3d at 584.
Notably, because "Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations," United States v. Raddatz, 447 U.S. at 676, 100 S.Ct. 2406 (emphasis omitted), a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate," 28 U.S.C. § 636(b)(1). See Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d at 724-25 (holding that the district court's adoption of the magistrate judge's "particular reasonable-hour estimates" is consistent with the de novo determination that 28 U.S.C. § 636(b)(1) and United States v. Raddatz require).
Where no party objects to the Magistrate Judge's proposed findings and recommended disposition, the Court has, as a matter of course and in the interests of justice, reviewed the Magistrate Judge's recommendations. In Pablo v. Soc. Sec. Admin., No. CIV 11-0132 JB/ACT, 2013 WL 1010401 (D.N.M. Feb. 27, 2013) (Browning, J.), the plaintiff failed to respond to the Magistrate Judge's proposed findings and recommended disposition, and thus waived his right to appeal the recommendations, but the Court nevertheless conducted a review. See 2013 WL 1010401, at *1, *4. The Court stated that it generally does not, however, "review the PF & RD de novo, because the parties have not objected thereto, but rather review[s] the recommendations to determine whether they are clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion." Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at *4. The Court, when there are no objections, does not determine independently what it would do if the issues had come before the Court first, but rather adopts the proposed findings and recommended disposition where "`the Court cannot say that the Magistrate Judge's recommendation ... is clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion.'" Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at *3 (alterations omitted) (footnote omitted)(quoting Workheiser v. City of Clovis, No. CIV 12-0485 JB/GBW, 2012 WL 6846401, at *3 (D.N.M. Dec. 28, 2012) (Browning, J.)). See Alexandre v. Astrue, No. CIV 11-0384 JB/SMV, 2013 WL 1010439, at *4 (D.N.M. Feb. 27, 2013) (Browning, J.)("The Court rather reviewed the findings and recommendations ... to determine if they are clearly erroneous, arbitrary, obviously contrary to law, or an
"[P]rior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights." Neb. Press Ass'n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." N.Y. Times v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). Prior restraints are viewed as more invidious than after the fact speech restrictions, yet it can be difficult to determine: (i) when a speech restriction is a prior restraint; and (ii) what standard of judicial review judges should apply to speech restrictions once they have determined that the restriction is a prior restraint.
In the abstract, prior restraints are contrasted against restrictions that provide for subsequent punishment. Dean Erwin Chemerinsky provides the following guidance in his hornbook:
Erwin Chemerinsky, Constitutional Law: Principles and Policies § 11.2.3.1, at 949-50 (3d ed.2006).
The best way to determine whether a given speech restriction is a prior restraint is to consider the reasons for the heightened skepticism towards prior restraints in the first place and determine whether the speech restriction in question implicates those reasons. It is not immediately obvious why prior restraints are disfavored.
Some of this animus is historical, carried over from judicial opposition to the English Crown's licensing system for publications. See 4 William Blackstone, Commentaries *151-152 ("[T]he liberty of the press is, indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published."). Other reasons remain viable today:
Thomas Emerson, The System of Freedom of Expression 506 (1970).
Perhaps the most compelling rationale for the distinction between prior restraints and subsequent punishment is the collateral bar rule. The collateral bar rule provides that when a specific individual is restrained from expression — as by an injunction or the denial of a permit, not through the enforcement of laws applicable to everyone in the general public — he must challenge the restraint directly, without first violating it. The collateral bar rule appears to be based upon the conception that, while citizens need not obey an unconstitutional law, they must respect the judiciary's decision whether that law is constitutional. In Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967), an Alabama state court enjoined a group of civil rights protestors, including Dr. Martin Luther King, Jr., from, "among other things, participating in or encouraging mass street parades or mass processions without a permit as required by a Birmingham ordinance." 388 U.S. at 309, 87 S.Ct. 1824. The protestors defied the injunction, holding a
Walker v. City of Birmingham, 388 U.S. at 318-19, 320-21, 87 S.Ct. 1824 (footnotes omitted).
The collateral bar rule cuts off citizens' ability to speak in the face of prior restraints, even if the citizen is confident and correct that the restraint is unconstitutional. Prior restraints, thus, have the effect of absolutely suppressing speech, with no opportunity for after-the-fact vindication by the speaker, at least until they are challenged and overturned. If the prior restraint is never challenged — for example, if the restrained individual lacks the resources to fight the government in court — then it acts to permanently prevent the restricted speech from entering the marketplace of ideas.
Courts have been most likely to find that a speech restriction is a prior restraint when the collateral bar rule would apply to a violation of the restriction. "In practice, most prior restraints involve either an administrative rule requiring some form of license or permit before one may engage in expression, or a judicial order directing an individual not to engage in expression, on pain of contempt." Rodney Smolla, Smolla and Nimmer on Freedom of Speech § 15:1 (2014). These two forms of prior restraint share another invidious feature, in addition to the applicability of the collateral bar rule: they are individualized decisions, in which the identity of the speaker, and often the exact content of the message, are known in advance of the creation of the prior restraint.
"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). Prior restraints must be narrowly tailored to be the least restrictive means for achieving a significant government interest. See Califano v. Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979); Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175, 183, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968) ("[Prior restraints] must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order."). In
This standard, which retains the tailoring aspect of strict scrutiny while softening the government interest prong, is a sensible one to apply to prior restraints. The concern with prior restraints is not so much with their core substantive content, but with their scope, with their preemptive nature, and with the individualized manner of their enforcement. The requirement of narrow tailoring and least restrictive means mirrors and amplifies the standard for overbreadth challenges, which are often unavailable for prior restraints because of the collateral bar rule. On the other hand, if a narrow, easily delineable category of speech clearly unprotected by the First Amendment is to be restricted, whether the restriction may be justified only on the basis of a compelling state interest or may be justified by any significant state interest, should not turn on whether the restriction operates before or after the speech occurs.
The Supreme Court has elaborated on the scrutiny courts should apply to prior restraints in a few specific contexts, notably, prior restraints in the name of national security and prior restraints to protect the fairness of criminal trials.
The national security context appears to be the setting in which prior restraints may be most often found constitutional, but the Supreme Court has emphasized that the courts are not to be deferential to the government merely because national security is raised as a justification. See New York Times v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam). The Supreme Court first countenanced the idea of a troopship exception in Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). That case involved a court order enjoining the publication of libelous material, but the Supreme Court, after striking down the injunction as unconstitutional, outlined the potential exception: "No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the
This exception was first analyzed in New York Times v. United States. See 403 U.S. at 714, 91 S.Ct. 2140. In that case, the Supreme Court refused the United States of America's request for an injunction enjoining the New York Times and the Washington Post from publishing a classified government study entitled History of U.S. Decision-Making Process on Viet Nam Policy, a.k.a. the Pentagon Papers. See 403 U.S. at 714, 91 S.Ct. 2140. The United States had argued that publication of the document would jeopardize the ongoing war efforts. See Brief for the United States, 1971 WL 167581, at *13-20. Although the per curiam opinion was short and fact-specific, several Justices wrote separately to outline their views on the appropriate standard for prior restraints. The Honorable Hugo L. Black and the Honorable William O. Douglas, Associate Justices of the Supreme Court, concurred, strongly implying that no prior restraint on news publication would ever be acceptable:
403 U.S. at 714-15, 91 S.Ct. 2140 (Black, J., concurring, joined by Douglas, J.). Justice Douglas wrote separately to add: "It should be noted at the outset that the First Amendment provides that `Congress shall make no law ... abridging the freedom of speech, or of the press.' That leaves, in my view, no room for governmental restraint on the press." 403 U.S. at 720, 91 S.Ct. 2140 (Douglas, J., concurring)(quoting U.S. Const. amend. I).
The Honorable William J. Brennan, Associate Justice of the Supreme Court, was only slightly more amenable to prior restraints, setting forth a standard of scrutiny so strict that it might more aptly be characterized as an exception to a blanket rule against them: "[O]nly governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order." 403 U.S. at 726-27, 91 S.Ct. 2140 (Brennan, J., concurring). The Honorable Potter Stewart, the Honorable Byron R. White, and the Honorable
The Supreme Court has outlined a three-prong test for evaluating gag orders — injunctions issued to prevent the press from publishing information relating to an ongoing or forthcoming trial — that results in their almost never being found constitutional. See Neb. Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). A gag order may only be entered for the benefit of the defendant, not the prosecution, and the defendant must show that: (i) without a prior restraint, publicity would "impair the defendant's right to a fair trial" by irrevocably tainting the jury pool, 427 U.S. at 562-63, 96 S.Ct. 2791; (ii) "measures short of an order restraining all publication [will not] insure[] the defendant a fair trial," 427 U.S. at 563, 96 S.Ct. 2791; and (iii) it is likely that an injunction will effectively secure a fair trial for the defendant, see 427 U.S. at 565, 96 S.Ct. 2791. Although this test does not initially appear all that rigorous, Dean Chemerinsky writes that it is tantamount to an absolute ban on gag orders. See Chemerinsky, supra, § 11.2.3.3, at 962. Attempts to satisfy the first prong are undermined by a number of high-publicity prosecutions that resulted in acquittals, including the O.J. Simpson case, the McMartin Preschool case,
An overbreadth challenge is a facial challenge to a speech-restricting statute on First Amendment grounds, and, if successful, it results in the invalidation of the entire statute. To succeed, the challenged statute must regulate substantially more expression than the First Amendment allows to be regulated. See Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). The party challenging the statute need not have been engaged in constitutionally protected expression to have standing to challenge the law; even if the law is constitutional as applied to the challenging party, if the law is found to be overbroad, it is invalid in its entirety. See Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 634, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) ("Given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court." (citations omitted)). There are, thus, two aspects of an overbreadth challenge that set it apart from other facial challenges: the substantive aspect and the standing aspect.
Outside of the First-Amendment context, for a party to succeed in facially challenging a statute, "the challenger must establish that no set of circumstances exists under which the Act would be valid."
An example of a successful overbreadth challenge occurred in Schad v. Borough of Mt. Ephraim, 452 U.S. at 61, 101 S.Ct. 2176. In that case, a club that featured nude dancing challenged a city ordinance that purported to ban all live entertainment in commercial zones.
"[T]he overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615-16, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). In Broadrick v. Oklahoma, the Supreme Court upheld a state law, patterned on the federal Hatch Act of 1939, 5 U.S.C. §§ 7321-7326, that barred government employees from engaging in partisan political activities. See
As to where the line is between insubstantial overbreadth and substantial overbreadth, the Supreme Court has stated:
Members of the City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800-01, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (footnote omitted) (citations omitted).
When assessing whether an overbroad statute is likely to chill third parties from engaging in protected expression, courts should assess not only whether the number of unconstitutional potential applications of the statute is significant relative to the overall number of applications, but the level of interpretive discretion given to those in charge of its enforcement, and the likelihood of capricious enforcement. In
City of Houston, Tex. v. Hill, 482 U.S. at 465-67, 107 S.Ct. 2502 (citations to the record omitted). The Court presumes that, assuming the same level of overbreadth, the threat of criminal sanctions produces a stronger chilling effect than that of civil monetary sanctions, directions to cease and desist, or exposure to civil liability.
Last, some commentators have suggested that, when considering whether a statute's overbreadth is substantial, courts should take into account the importance of the protected speech being restricted or chilled. See Richard Fallon, Jr., Making Sense of Overbreadth, 100 Yale L.J. 853, 894 (1991). Under this view, a statute that chills a swath of political speech should be more readily facially invalidated than one that chills sexual, frivolous, or even artistic speech — the latter statute being more amenable to as-applied challenges. Although the Supreme Court has not endorsed this view explicitly, it has held that "the overbreadth doctrine does not apply to commercial speech." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).
A non-First Amendment, non-overbreadth facial challenge is always more difficult to mount than an as-applied challenge to the same statute. See United States v. Salerno, 481 U.S. at 745, 107 S.Ct. 2095. An as-applied challenge requires only that the law is unconstitutional as applied to the challenger's case; a facial challenge requires this showing as well,
Broadrick v. Oklahoma, 413 U.S. at 610, 93 S.Ct. 2908 (citations omitted).
The relative difficulty of mounting facial and as-applied challenges is almost, but not entirely, reversed in the context of a First Amendment overbreadth challenge. Although a successful as-applied challenge does not guarantee a victorious facial challenge — the court could find the statute's overbreadth insubstantial — it is not necessary to have a viable as-applied challenge to succeed on a facial challenge. "[W]here the claim is that a statute is overly broad in violation of the First Amendment, ... [there is] no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity." Sec'y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 957, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). Even if the challenger engaged in constitutionally unprotected, validly penalized speech, if he can establish that the statute penalizes a substantial swath of protected speech, then he will prevail in getting the statute invalidated not only as it relates to the constitutionally protected speech of others, but to his own unprotected speech, as well. For example, if a statute criminalized "demeaning, threatening, or inflammatory words," a challenger arrested for using "fighting words" in a bar — unprotected speech which may be validly criminalized under Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) — could challenge the law on behalf of third parties who might risk arrest for constitutionally protected demeaning or inflammatory words. See Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (invalidating a Georgia law making it a crime for "[a]ny person [to], without provocation, use ... opprobrious words or abusive language, tending to cause a breach of the peace").
The relaxation of the usual standing rules in the overbreadth context goes further than simply allowing an individual to whom the law is constitutionally applied to sue on the basis of unconstitutional
Sec'y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. at 957-58, 104 S.Ct. 2839 (citations omitted).
The Supreme Court "has adopted a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes." United States v. Kokinda, 497 U.S. 720, 726, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990).
United States v. Kokinda 497 U.S. at 726-27, 110 S.Ct. 3115 (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. at 45-46, 103 S.Ct. 948) (internal citations omitted).
In analyzing the constitutionality of restrictions on speech that occurs on public property, the Supreme Court has "identified three types of forums: the traditional public forum, the public forum created by government designation, and the nonpublic forum." Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). The Supreme Court has determined that this tripartite framework is necessary, because "[t]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government." Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. at 803, 105 S.Ct. 3439. The Supreme Court has explained that "the State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. at 46, 103 S.Ct. 948 (quoting U.S. Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 129-30, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981)).
"Traditional public fora are defined by the objective characteristics of the property, such as whether, `by long tradition or by government fiat,' the property has been `devoted to assembly and debate.'" Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 677, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998) (quoting Perry Educ. Ass'n v. Perry Local Educators'
"Designated public fora ... are created by purposeful governmental action." Ark. Educ. Television Comm'n v. Forbes, 523 U.S. at 677, 118 S.Ct. 1633. "The government does not create a [designated] public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for public discourse." Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. at 802, 105 S.Ct. 3439. Accord Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992) (stating that a designated public forum is "property that the State has opened for expressive activity by part or all of the public"). The Supreme Court looks to the "policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum." Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. at 802, 105 S.Ct. 3439. "If the government excludes a speaker who falls within the class to which a designated public forum is made generally available, its action is subject to strict scrutiny." Ark. Educ. Television Comm'n v. Forbes, 523 U.S. at 677, 118 S.Ct. 1633.
"Other government properties are either nonpublic fora or not fora at all." Ark. Educ. Television Comm'n v. Forbes, 523 U.S. at 677, 118 S.Ct. 1633 (citing Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. at 678-79, 112 S.Ct. 2701). Nonpublic forums are sometimes referred to as limited public forums. Governmental restrictions on access to a nonpublic forum are valid so long as "the restrictions are reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. at 800, 105 S.Ct. 3439.
Ramos v. Carbajal, 508 F.Supp.2d 905, 913 (D.N.M.2007) (Browning, J.) (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. at 799-800, 105 S.Ct. 3439).
The Supreme Court determined in International Society for Krishna Consciousness, Inc. v. Lee that airport terminals are nonpublic forums, and the government could thus impose reasonable, viewpoint-neutral, speech restrictions. See 505 U.S. at 679-83, 112 S.Ct. 2701. In reaching this decision, the Supreme Court found that the "tradition of airport activity does not demonstrate that airports have historically been made available for speech activity." 505 U.S. at 680-81, 112 S.Ct. 2701. The Supreme Court noted that, "given the lateness with which the modern air terminal has made its appearance, it hardly qualifies for the description of having `immemorially... time out of mind' been held in the public trust and used for purposes of expressive activity." 505 U.S. at 680, 112 S.Ct. 2701 (quoting Hague Comm. for Indus. Org., 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939)). The Supreme Court stated that, given the "rather short history of air transport," various religious and non-profit organizations had come to use commercial airport terminals only in recent years as a "forum for the distribution of literature, solicitation of funds, the proselytizing of new members, and other similar activity," the conduct at issue in the case. Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. at 680, 112 S.Ct. 2701. The Supreme Court also noted that airport terminals are unlike other "transportation nodes," which the plaintiffs asserted are forums in which free speech is historically protected, because airport terminals are public locations, which include security checkpoints, and because the Federal Aviation Administration "not infrequently" restricts public access to airport terminals. 505 U.S. at 681, 112 S.Ct. 2701.
The Supreme Court further noted that airport terminals, the primary purpose of which is to "provide services attractive to the marketplace," are not forums which have a principal purpose of promoting the "`free exchange of ideas.'" 505 U.S. at 682, 112 S.Ct. 2701 (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. at 800, 105 S.Ct. 3439). The Supreme Court noted that the purpose of airport terminals is "passenger air travel, not the promotion of expression," with an emphasis on efficient air travel. Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. at 681, 112 S.Ct. 2701. On this basis, the Supreme Court found that "neither by tradition nor purpose can the terminals be described as satisfying the standards we have previously set out for identifying a public forum." 505 U.S. at 681, 112 S.Ct. 2701.
Regarding speech restrictions in a nonpublic forum, the Supreme Court emphasized in International Society for Krishna Consciousness, Inc. v. Lee that the "restriction need only be reasonable; it need not be the most reasonable or the only reasonable limitation." 505 U.S. at 683, 112 S.Ct. 2701 (emphasis in original) (citation omitted). Before the Supreme Court was an airport's prohibition on solicitation within the terminal. The Supreme Court found that the prohibition was reasonable,
In sum, the Supreme Court in International Society for Krishna Consciousness, Inc. v. Lee stated that the "inconveniences to passengers and the burden on the [airport] officials flowing from solicitation activity may seem small, but viewed against the fact that pedestrian congestion is one of the greatest problems facing the three terminals, ... the [airport] could reasonably worry that even such incremental effects would prove quite disruptive." 505 U.S. at 685, 112 S.Ct. 2701. The Supreme Court also noted that, if every group of solicitors were allowed inside the terminal, as the airport would be required to permit so as to remain viewpoint neutral, the concern regarding congestion and crowd control would only be accentuated. The Supreme Court thus concluded that the airport's ban on all solicitation within the terminal was a reasonable and viewpoint-neutral speech restriction. See 505 U.S. at 685, 112 S.Ct. 2701.
Regardless of the forum involved, the government may impose time, place, or manner restrictions on speech that takes place on government property, provided that the restrictions are: (i) reasonable; (ii) content-neutral, both as to subject matter and viewpoint; (iii) aimed at serving a "significant governmental interest"; (iv) narrowly tailored to effectuate that interest; and (v) crafted in a way that "leaves open ample alternative channels of communication."
The Tenth Circuit has held that significant government interests "include public safety, accommodating competing uses..., controlling the level and times of noise, and similar interests." First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1132 (10th Cir. 2002). Once the interest is identified, the government must show that the restriction is narrowly tailored to serve that interest. The requirement of narrow tailoring does not, however, mean that the government must adopt the least restrictive alternative for achieving its asserted interest. See Ward v. Rock Against Racism, 491 U.S. at 789-99, 109 S.Ct. 2746. It merely means that the speech restriction must not go so far that a less extensive restriction would effectuate the interest just as well:
Ward v. Rock Against Racism, 491 U.S. at 798-800, 109 S.Ct. 2746 (citations omitted). That case upheld a municipal guideline requiring all musical acts performing at a
"Facial invalidation is, manifestly, strong medicine that has been employed by the Court sparingly and only as a last resort." Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (internal quotation marks omitted). "Vagueness doctrine is an outgrowth not of the First Amendment, but of the Due Process Clause of the Fifth Amendment." United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). "A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement." Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (citing Chicago v. Morales, 527 U.S. 41, 56-57, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)). See United States v. Williams, 553 U.S. at 304, 128 S.Ct. 1830 (describing a vague statute as failing "to provide a person of ordinary intelligence fair notice of what is prohibited, or [as being] so standardless that it authorizes or encourages seriously discriminatory enforcement."); Mini Spas, Inc. v. South Salt Lake City Corp., 810 F.2d 939, 942 (10th Cir.1987) ("A statute violates due process if it is so vague that a person of common intelligence cannot discern what conduct is prohibited, required, or tolerated."). "What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is." United States v. Williams, 553 U.S. at 306, 128 S.Ct. 1830. The Supreme Court has noted that "perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity." United States v. Williams, 553 U.S. at 304, 128 S.Ct. 1830 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)).
"A federal court evaluating a vagueness challenge to a state law must read the statute as it is interpreted by the state's highest court." United States v. Gaudreau, 860 F.2d 357, 361 (10th Cir. 1988) (citation omitted). In evaluating the constitutional validity of state statutes, the Supreme Court has stated that "every possible presumption is to be indulged in favor of the validity of a statute." Mugler v. Kansas, 123 U.S. 623, 661, 8 S.Ct. 273, 31 L.Ed. 205 (1887). The Supreme Court of New Mexico, in discussing the presumption of constitutional validity that attaches to acts of the New Mexico legislature, has stated:
Bishop v. Evangelical Good Samaritan Soc'y, 2009-NMSC-036, ¶ 20, 146 N.M. 473, 212 P.3d 361, 366-67 (citations omitted). In some cases, however, the Supreme Court of the United States has noted that it could not remedy a constitutionally imprecise state statute. See Hynes v. Mayor & Council of Oradell, 425 U.S. 610, 622, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976) ("Even assuming that a more explicit limiting interpretation of the ordinance could remedy the flaws we have pointed out — a matter on which we intimate no view — we are without power to remedy the defects by giving the ordinance constitutionally precise content.").
In determining whether a federal statute is unconstitutionally vague, the Supreme Court has also noted that a strong presumption of validity attaches to Congress' enactments and has consistently construed a challenged statute narrowly rather than condemn it as unconstitutionally vague. See Skilling v. United States, 561 U.S. 358, 405, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) ("It has long been our practice, however, before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction."); United States v. Nat'l Dairy Prods. Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963) (stressing, in response to a vagueness challenge, "[t]he strong presumptive validity that attaches to an Act of Congress"). In Skilling v. United States, the Supreme Court looked to Congress' intent in passing the honest-services doctrine, and limited the construction of the honest-services doctrine to reach bribes and kickbacks, as Congress intended, stating:
Skilling v. United States, 130 S.Ct. at 2931 & n. 43 (emphasis in original)(footnotes omitted) (citations omitted).
In Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), the Supreme Court stated that, when assessing whether a statute is vague, it looks to "the words of the ordinance itself, to the interpretations the court below has given to analogous statutes, and, perhaps to some degree, to the interpretation of the statute given by those charged with enforcing it." 408 U.S. at 110, 92 S.Ct. 2294 (internal quotation marks omitted). For example, in Minority TV. Project Inc. v. FCC, No. C-06-02699 EDL, 2007 WL 4570293 (N.D.Cal. Dec. 21, 2007), the Honorable Elizabeth D. Laporte, United States District Judge for the Northern District of California, found it premature to dismiss a facial challenge of void for vagueness until the plaintiffs introduced evidence of the Federal Communication Commission's enforcement decisions applying the statute in question — a prohibition against certain paid promotional advertisements. See 2007 WL 4570293, at *12. When the plaintiffs submitted evidence of the FCC's enforcement, Judge Laporte found the statute was not unconstitutionally vague, explaining:
Minority TV. Project Inc. v. FCC, 649 F.Supp.2d 1025, 1047 (N.D.Cal.2009). The Supreme Court in Grayned v. City of Rockford noted: "Condemned to the use of words, we can never expect mathematical certainty from our language." 408 U.S. at 110, 92 S.Ct. 2294. The Supreme Court rejected a facial vagueness challenge to an ordinance that implicated First Amendment rights, and prohibited certain demonstrations "adjacent" to schools that "disturb[] or tend[] to disturb the peace or good order of such school session or class thereof," finding that it was "clear what the ordinance as a whole prohibits," even though the statute at issue did not specify
Numerous statutes have withstood facial vagueness challenges even though they contained arguably ambiguous language. See, e.g., Hill v. Colorado, 530 U.S. at 732, 120 S.Ct. 2480 (rejecting vagueness challenge to ordinance making it a crime to "approach" another person, without that person's "consent," to engage in "oral protest, education, or counseling" within specified distance of health-care facility); Boos v. Barry, 485 U.S. 312, 332, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (rejecting vagueness challenge to ordinance interpreted as regulating conduct near foreign embassies "when the police reasonably believe that a threat to the security or peace of the embassy is present"); Cameron v. Johnson, 390 U.S. 611, 616, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968) (rejecting vagueness challenge to ordinance prohibiting protests that "unreasonably interfere" with access to public buildings); Kovacs v. Cooper, 336 U.S. 77, 79, 69 S.Ct. 448, 93 L.Ed. 513 (1949) (rejecting vagueness challenge to sound ordinance forbidding "loud and raucous" sound amplification); Am. Ass'n of People with Disabilities v. Herrera, 580 F.Supp.2d 1195, 1241 (D.N.M.2008) (Browning, J.)(upholding New Mexico's regulation of third-party voter-registration drives against a void-for-vagueness challenge), reconsidered and upheld by 2010 WL 3834049, at *8-14 (2010).
The void-for-vagueness doctrine operates in much reduced force outside of its core area of application, criminal law. "To find a civil statute void for vagueness, the statute must be `so vague and indefinite as really to be no rule or standard at all.'" Seniors Civil Liberties Ass'n, Inc. v. Kemp, 965 F.2d 1030, 1036 (11th Cir. 1992)(per curiam)(quoting Boutilier v. INS, 387 U.S. 118, 123, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967)). The Honorable Ira DeMent, United States District Judge for the Middle District of Alabama, wrote:
Smith v. Campbell, No. CIV 03-0973 ID/WO, 2006 WL 2597837, at *2-3 (M.D.Ala. Sept. 11, 2006) (DeMent, J.) (citing Seniors Civil Liberties Ass'n, Inc. v. Kemp, 965 F.2d at 1036).
The Court has carefully reviewed: (i) all pleadings and attached documents, consisting of the Complaint, the Ruidoso Defendants' Answer to Complaint for Violation of Civil Rights, Damages and for Declaratory and Injunctive Relief, filed October 10, 2013 (Doc. 14), and Defendant Daniel A. Bryant's Answer to Complaint for Violation of Civil Rights, Damages and for Declaratory and Injunctive Relief, filed October 10, 2013 (Doc. 15); (ii) all briefing submitted to Judge Wormuth on the motion, consisting of the MSJ, Griffin's Response to the Motion for Summary Judgment, filed October 28, 2013 (Doc. 17), and the Ruidoso Defendants' Reply in Support of Motion for Summary Judgment, filed November 11, 2013 (Doc. 19); (iii) the PFRD; and (iv) both parties' Objections to the PFRD. Griffin's Complaint asserts the following claims: violation of his First Amendment rights when the Governing Body
The Defendants' sole objection to Judge Wormuth's PFRD is to contest the proposed finding that Section 5Ff,
The Court will grant Griffin's request for a declaratory judgment that Section 5Ff is unconstitutional, see Complaint ¶¶ 98-100, at 18-19, and his request for injunctive relief "[p]rohibiting the Village of Ruidoso from enforcing the public ban against negative mention of Village personnel, staff or the governing body," Complaint ¶ 102b, at 19. The Court agrees with Judge Wormuth's result and, generally, with his reasoning, see PFRD at 22-27, but will analyze the issue separately to clarify several points. Judge Wormuth states that "[t]he `negative mention' provision of Section 5Ff may be an unconstitutional prior restraint on speech." PFRD at 22 (emphasis omitted). He declines to decide what type of First Amendment forum the public input portion of the meeting is, see PFRD at 13-15, 24 n. 11, forgoing this step of the analysis "because [he] find[s] that the restriction at issue here is content-based, [and thus] the type of forum is irrelevant." PFRD at 24 n. 11. Judge Wormuth comes to the conclusion that Section 5Ff is content-based without much analysis, stating only: "[I]t is precisely because the content of the speech is `negative' with regards to the Village personnel, staff, or the Governing Body that it is regulated." PFRD at 24 (emphasis in original) (citations omitted). Once he finds that the restriction is content-based, Judge Wormuth applies strict scrutiny, finding that-unlike the City of Topeka's rule that "[a]ny person making personal, rude, or slanderous remarks ... while addressing the Council shall be requested to leave the meeting and may be at once barred ...
The Court will approach the analysis somewhat differently. First, the Court concludes that Section 5Ff is not void for vagueness under the Due Process Clause. The Court agrees with Judge Wormuth that the void-for-vagueness doctrine does not apply in full force to an ordinance such as this one, where the only penalty for noncompliance is the loss of speaking rights at a meeting. Second, the Court concludes that Griffin has standing to challenge Section 5Ff's constitutionality. Even though Griffin was neither restrained from nor punished for violating Section 5Ff, he has standing under First Amendment overbreadth principles, because the Court concludes that he suffered an injury in fact under the meaning of the Case or Controversy Clause, and prudential standing is presumed satisfied in First Amendment challenges. Third, beginning the substantive First Amendment analysis, the Court concludes that Section 5Ff is not a prior restraint, but rather a rule that provides for subsequent punishment. That Griffin may have been chilled from engaging in constitutionally protected speech by the threat of being cut off does not change the analysis. Last, the Court determines that even though Section 5Ff is not a prior restraint, it violates the First Amendment. The Governing Body meetings are limited public forums, and, as such, any speech restrictions need only be reasonable and viewpoint-neutral, but not necessarily content-neutral. The Court concludes, however, that Section 5Ff is viewpoint-based, because its prohibition against "negative mention ... of any Village personnel, staff or the Governing Body," permits praise and neutral feedback, but not criticism, of both government employees and, worse, the Governing Body itself. The Court further concludes that strict scrutiny, not substantial overbreadth, is the relevant substantive standard to apply to viewpoint-based speech restrictions and that Section 5Ff fails strict scrutiny. Because the Court has no basis in law or in fact for construing Section 5Ff narrowly to save its constitutionality, it will strike it down the rule as unconstitutional.
The Court agrees with Judge Wormuth's void-for-vagueness analysis. The void-for-vagueness doctrine is primarily a criminal doctrine. See Skilling v. United States, 561 U.S. at 402-03, 130 S.Ct. 2896 ("To satisfy due process, `a penal statute [must] define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory
Non-penal statutes are often vague and are not struck down as void for vagueness. For example, many statutes — as well as ordinary negligence law — hold people to the standard of a "reasonable person," which is at least as vague as the criminal ordinances the Supreme Court struck down in Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), which criminalized "three or more persons... assembl[ing] ... on any of the sidewalks... and there conduct themselves in a manner annoying to persons passing by," 402 U.S. at 611, 91 S.Ct. 1686, and in Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), which criminalized breaching the peace — defined as "to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet," 379 U.S. at 551, 85 S.Ct. 453. Negligence law would, thus, fail the void-for-vagueness analysis that applies to criminal statutes,
K-S Pharmacies, Inc. v. Am. Home Prods. Corp., 962 F.2d at 732 (7th Cir.1992)(emphasis in original) (citations omitted).
The Court concludes that Section 5Ff clears the extremely low bar that the void-for-vagueness doctrine sets for non-penal statutes. It is not "so vague and indefinite as really to be no rule or standard at all." Boutilier v. INS, 387 U.S. at 123, 87 S.Ct. 1563. There are certainly some hypothetical examples in which a reasonable person would not be able to determine whether his or her speech fell inside or outside of Section 5Ff's ambit, e.g., a reference to a Governing Body member being "always dead wrong about everything," but there are even more examples in which Section 5Ff's applicability or non-applicability would be clear, e.g., an announcement informing attendees of an upcoming civic event would fall clearly outside Section 5Ff's scope, and a profanity laced tirade about a government employee's obesity or perceived intelligence would fall clearly inside its scope. That clear examples can be found on both sides of the line illustrates that, while that line may be blurred at its edges, a line exists. Section 5Ff provides an intelligible benchmark regarding how to conduct oneself when speaking during the public input portion of the Governing Body meetings. There is no reason to apply more rigorous standards than those to Section 5Ff: it sets forth no criminal or monetary penalties; being sanctioned under the rule leaves no permanent "record" or lasting stigma; and the penalty that is meted out for its infraction is not even removal from the meeting, but being directed to cease talking. The Court concludes that Section 5Ff is not void for vagueness.
Griffin has standing to challenge Section 5Ff's "negative mention" rule,
Even though the usual prudential standing considerations are presumed satisfied in an overbreadth challenge, Griffin must still establish Article III standing for his case to be justiciable in federal court. Article III standing requires injury in fact, causation, and redressability. See Lujan v. Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130. The Court concludes that Griffin clears the relatively low bar that the Case or Controversy Clause sets. An injury in fact is "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." 504 U.S. at 560, 112 S.Ct. 2130. The Court concludes that Griffin's injury was actual, because the speech he wanted to express at the Governing Body meetings — which heavily implicated criticism of the Governing Body and its prior decisions and decision-making — was restricted, even though he was not punished for it. This question would be closer if Griffin had filed this suit without ever attending a Governing Body meeting — relying on the argument that Section 5Ff chilled him from attending, in that it was not worthwhile for him to attend and speak if he had to abide by it — but, even then, he likely would come to the Court with an "imminent" injury in fact if he could establish that he intended to speak at the meetings but for Section 5Ff. Once the Court concludes that Griffin sustained an injury in fact, the rest of the Article III standing analysis is straightforward. When Griffin's injury in fact is styled as "the deprivation of his right to make negative mention of the government employees or the Governing Body," it is apparent that Section 5Ff is the fairly traceable cause of this injury. Last, the injury is redressable, because Section 5Ff has not been repealed and the case is thus not moot, and the invalidation of Section 5Ff will protect Griffin from recurring injury. Griffin has standing to challenge Section 5Ff.
Section 5Ff is not a prior restraint on speech, but rather a rule that provides for subsequent punishment. That Griffin may have been chilled from engaging in constitutionally protected speech by the threat of the punishment — which, here, is only that he would have been directed to quit speaking — and was never subjected to subsequent punishment does not change that conclusion. When the government intervention comes only after the restricted speech has already been spoken, the restriction is not a prior restraint. Had the Governing Body refused to allow Griffin to speak on the basis of their suspicion that he would violate Section 5Ff, see Village of Ruidoso Resolution 2012-16 at 5, filed October 14, 2013 (Doc. 16-5)(providing, in Section 5Fi, that presenters will be directed to discontinue speaking after violating the rules of Section 5F), then perhaps the analysis would be different, but, because the Governing Body applies the sanction that Section 5Fi contemplates, see Village of Ruidoso Resolution 2012-16 at 5 ("If any of the above guidelines are violated,
"In practice, most prior restraints involve either an administrative rule requiring some form of license or permit before one may engage in expression, or a judicial order directing an individual not to engage in expression, on pain of contempt." Smolla, supra § 15:1. Section 5Ff is obviously neither of these. Moreover, the reason that prior restraint doctrine is generally confined to these two categories is because of the application of the collateral bar rule, and because the speaker's identity and message can be known in advance of the creation of the restraint. The collateral bar rule has no application here; Griffin was not convicted of contempt of court, nor is he facing criminal or civil sanctions for refusal to honor a denial of a license. It is also not the case that the Governing Body created the prior restraint with Griffin's specific identity or message in mind, in the way that an injunction is crafted or a license is denied only after consideration of an individual's identity and message. Section 5Ff existed before Griffin began seeking the opportunity to comment at Governing Body meetings and was not an ad hoc creation in response to Griffin's desire to speak.
Although the Tenth Circuit has not addressed this question, see Shero v. City of Grove, Okla., 510 F.3d 1196, 1202 (10th Cir.2007) (Kelly, J.)(upholding a three-minute speaking time restriction as a reasonable time, place, or manner restriction, and not addressing the contention that the restriction constituted a prior restraint), other courts that have analyzed speech restrictions on public comment in government meetings have reached the same conclusion, see Lowery v. Jefferson Cnty. Bd. of Educ., 586 F.3d at 434; Leventhal v. Vista Unified Sch. Dist., 973 F.Supp. 951, 961-62 (S.D.Cal.1997) (Moskowitz, J.); Baca v. Moreno Valley Unified Sch. Dist., 936 F.Supp. 719, 727 (C.D.Cal.1996) (Timlin, J.). The Honorable Robert J. Timlin, United States District Judge for the Central District of California, addressed this issue most directly, striking down a prohibition on "charges or complaints against any employee of the District" during the open sessions of District meetings. Baca v. Moreno Valley Unified Sch. Dist., 936 F.Supp. at 725. The plaintiff argued that the restriction was a prior restraint. See 936 F.Supp. at 727. Judge Timlin, although striking down the restriction as viewpoint-based, see 936 F.Supp. at 730, wrote that the
Baca v. Moreno Valley Unified Sch. Dist., 936 F.Supp. at 727.
For the foregoing reasons, the Court concludes that Section 5Ff is not a prior
The Court concludes that Section 5Ff violates the First Amendment and is facially invalid. The proper standard to apply to Section 5Ff is neither Broadrick v. Oklahoma's substantial overbreadth requirement nor United States v. Salerno's requirement that "no set of circumstances exist under which the Act would be valid." Rather, the proper analysis for assessing Section 5Ff's constitutionality is First Amendment forum analysis. First, the Court determines that the public input portion of the Governing Body meetings constitutes a limited public forum, and, thus, "[a]ny government restriction on speech ... must only be reasonable in light of the purpose served by the forum and be viewpoint neutral." Shero v. City of Grove, Okla., 510 F.3d at 1202. Second, the Court concludes that Section 5Ff is not viewpoint — neutral, because it disallows speech promoting one viewpoint — criticism of the government and its employees — while allowing others. Third, the Court concludes that — although a viewpoint-based restriction might be constitutional if it passes strict scrutiny — Section 5Ff fails strict scrutiny, and is thus unconstitutional. Last, the Court will explain in detail why: (i) forum analysis, not substantial overbreadth, supplies the applicable standard of judicial scrutiny; and (ii) the Court cannot construe Section 5Ff narrowly to avoid its constitutional infirmities.
The Court concludes that Governing Body meetings — and the public input portions in particular — constitute a limited public forum for First-Amendment purposes. The Tenth Circuit has held that "it is not entirely clear whether a city council meeting should be treated as a `designated public forum' or a `limited public forum,'" Shero v. City of Grove, Okla., 510 F.3d at 1202, but, applying the factors in Summun v. City of Ogden, 297 F.3d 995, 1002 (10th Cir.2002), the Court concludes that Governing Body meetings are limited public forums.
Summum v. City of Ogden, 297 F.3d 995, 1002 & n. 4 (10th Cir.2002).
Neither the Governing Body meeting as a whole nor the public comment portion constitutes an "intentional opening [of] a nontraditional public forum," Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. at 802, 105 S.Ct. 3439, that "voluntarily transforms" it "into a traditional public forum," Summum v. City of Ogden, 297 F.3d at 1002. The core pursuit of Governing Body meetings is to make decisions and conduct business on behalf of the municipality. To assist itself in this core pursuit, the Governing Body has chosen to open its meetings to limited public comment so that it can be informed of its constituents' opinions, and, with this information, be better situated to make decisions that are more democratic, and, sometimes, more competent. That having been said, to serve their purpose, Governing Body meetings do not strictly require public input or participation by anyone outside of the Governing Body itself. Although New Mexico state law requires the Governing Body to open its meetings to the public, neither state law nor the Constitution requires it to let the public speak. N.M. Stat. Ann. § 10-15-1.
The Governing Body has transformed what would otherwise be a non-forum into some level of speech forum through its Resolutions, which provide, among other things, for a public input period. The provisions in the Resolutions do not, however, intentionally "bestow[] all the free speech rights associated with the traditional public forum, albeit on a potentially temporary basis." Summum v. City of Ogden, 297 F.3d at 1002. The meeting as a whole cannot be a designated forum; designated forums are open to all speech and are subject-neutral, meaning that the government cannot restrict the topics on which individuals speak. The entire structure of the Governing Body meetings restricts subject matter, partitioning different topics — "consent regular items," "planning and zoning," "operation business," "council policies," and "appointments," Village of Ruidoso Resolution 2012-16 at 3 — into different segments of the meeting without allowance for overlap. It would be hard for a city council to conduct its business without a similar structure. Even if the public input portion is analyzed on its own, the Court cannot reasonably conclude that the Governing Body has intentionally elevated it to the level of a traditional public forum.
Although a number of courts have followed the Tenth Circuit's lead in refraining from categorizing city council meetings one way or the other, the Court's conclusion comports with every United States Court of Appeals that has decided the issue: the Fourth, Fifth, Ninth, and Eleventh Circuits. See Fairchild v. Liberty Independent Sch. Dist., 597 F.3d 747, 759 (5th Cir.2010) ("The Board meeting here — and the comment session in particular — is a limited public forum `for the limited time and topic of the meeting.'" (footnote omitted)); Steinberg v. Chesterfield Cnty. Planning Comm'n, 527 F.3d 377, 385 (4th Cir.2008) ("In this case the parties agree that the Commission's public meeting was a `limited public forum,' and we concur in that assessment."); Rowe v. City of Cocoa, Fla., 358 F.3d 800, 803 (11th Cir.2004) ("As a limited public forum, a city council meeting is not open for endless public commentary speech but instead is simply a limited platform to discuss the topic at hand."); White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir.1990) ("[S]uch meetings, once opened, have been regarded as public forums, albeit limited ones." (citations omitted)). See also Terri Day & Erin Bradford, Civility in Government Meetings: Balancing First Amendment, Reputational Interests, and Efficiency, 10 First Amend. L.Rev. 57, 77-78 (2011)(footnotes omitted)("The First, Second, Third, Fifth, Sixth, Eighth, and Tenth Circuit Courts of
On its face, Section 5Ff's restriction that "no negative mention will be made of any Village personnel, staff or the Governing Body" is viewpoint-based, because it allows praise or neutral comment, but not criticism or disapproval, about government employees or the Governing Body. In a limited public forum, the government may impose: (i) content-based restrictions relating to subject matter; and (ii) reasonable time, place, and manner restrictions. Although Section 5Ff has elements of the latter, it eschews a limitation that could cure its constitutional infirmity: narrowing the phrase "negative mention[s]" to an equivalent phrase that would include only personal attacks and breaches of decorum.
In Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993), the Supreme Court struck down a public school district's policy regarding after-school use of its facilities. See 508 U.S. at 392-93, 113 S.Ct. 2141. The district allowed any local resident or group to use school property for "social, civic, or recreational uses," but explicitly disallowed use "for religious purposes." 508 U.S. at 387, 113 S.Ct. 2141. Although at first blush this restriction appears to be a subject-based, not viewpoint-based, distinction, the district had denied a Christian group permission to show a series of films presenting a Christian approach to parenting. See 508 U.S. at 392-93, 113 S.Ct. 2141. The Supreme Court held that "[t]he film series involved ... no doubt dealt with a subject otherwise permissible under [the policy], and its exhibition was denied solely because the series dealt with the subject from a religious standpoint." 508 U.S. at 394, 113 S.Ct. 2141.
Here, little supports the contention that the restriction is subject-based rather than viewpoint-based. It is not clear what the subject matter being limited would be. Depending upon how the statute is construed, the proscription against "negative mention[s]" applies to a range of disparate topics, from eminent domain decisions (which citizens may praise but not criticize) to allegations of police misconduct or official corruption (which citizens may deny but not support). Allegations of any kind — of incompetence, corruption, laziness, dereliction, or personal immorality — would seem to fall within the proscribed language of Section 5Ff even under its narrowest interpretation.
The Village argues that Section 5Ff constitutes a "time, place, or manner" restriction, which must be reasonable, content-neutral, and narrowly tailored to effectuate a significant government interest, and must "leave open ample alternative channels of communication." Ward v. Rock Against Racism, 491 U.S. 781, 797, 802, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Such restrictions "do not regulate what is said, but merely such matters as when, where, and how loud." Smolla, supra, § 8:36 (emphasis in original). The Tenth Circuit has said that "legitimate objectives
Norse v. City of Santa Cruz, 629 F.3d at 979 (Kozinski, C.J., concurring, joined by Reinhardt, J.).
Restrictions preventing individuals from harassing government officials at meetings have, however, occasionally been categorized as reasonable manner restrictions. In Lowery v. Jefferson Cnty. Bd. of Educ., 586 F.3d at 433, the Honorable Jeffrey S. Sutton, United States Circuit Judge for the Sixth Circuit, held that a policy that gave the presiding officer at school board meetings "the authority to terminate the remarks of any individual who does not adhere to the above rules or chooses to be abusive to an individual board member or the Board as a whole" was a valid reasonable manner restriction. 586 F.3d at 433, 434. Even there, however, Judge Sutton noted:
Lowery v. Jefferson Cnty. Bd. of Educ., 586 F.3d at 434-35. In Scroggins v. City of Topeka, Kan., 2 F.Supp.2d at 1371 (Crow, J.), a district judge upheld as a reasonable manner restriction a provision that speakers at a city council meeting may not "mak[e] personal, rude or slanderous remarks, or ... become[] boisterous, while addressing the Council." 2 F.Supp.2d at 1372. Again, even there, the district court added the following caveat when addressing the issue of viewpoint neutrality:
Scroggins v. City of Topeka, Kan., 2 F.Supp.2d at 1371.
On the other hand, two district court cases out of California have concluded that a very similar restriction to Section 5Ff were facially invalid viewpoint-based speech restrictions. In Baca v. Moreno Valley Unified Sch. Dist., 936 F.Supp. at 725, Judge Timlin struck down a policy providing that "[n]o oral or written presentation in open session shall include charges or complaints against any employee of the District, regardless of whether or not the employee is identified by name." 936 F.Supp. at 725. Judge Timlin wrote:
Baca v. Moreno Valley Unified Sch. Dist., 936 F.Supp. at 730 (citations omitted).
A year later, another California district judge struck down a school board bylaw providing that "[c]omplaints against an individual employee will not be heard at open Board meetings unless the individual employee consents." Leventhal v. Vista Unified Sch. Dist., 973 F.Supp. at 954 (alteration in original). That court decried:
Leventhal v. Vista Unified Sch. Dist., 973 F.Supp. at 960 (citations omitted).
The Honorable Thomas S. Zilly, United States District Judge for the Western District of Washington, struck down a speech restriction much like Section 5Ff. See Aldrich v. Knab, 858 F.Supp. 1480 (W.D.Wash.1994). Although that case did not involve a city council meeting, Judge Zilly concluded that the forum involved was a nonpublic forum and was thus subject to laxer First Amendment standards than the Governing Body meetings are here.
The Court concludes that Section 5Ff cannot be justified as a reasonable manner restriction. Restrictions on the manner of speaking on government property must be: (i) reasonable; (ii) content-neutral, both as to subject matter and viewpoint; (iii) aimed at serving a "significant governmental interest"; (iv) narrowly tailored to effectuate that interest; and (v) crafted to "leave open ample alternative channels of communication."
The Court can imagine three potential government interests that the Village could assert to justify Section 5Ff: (i) preventing disruption of the Governing Body meetings; (ii) maintaining decorum and an atmosphere of respect in the meetings; and (iii) preventing criticism and potentially damaging job-related embarrassment to government employees and the Governing Body. The first interest is constitutionally permissible. The third is not. The second might not be — Judge Kozinski seems to think that it is unacceptable — but
The primary problem with the argument that Section 5Ff constitutes a reasonable manner restriction, however, has nothing to do with narrow tailoring or significant government interests. Section 5Ff is content-based, and, thus, it fails the threshold test to even be analyzed as a reasonable manner restriction. See Smolla, supra, § 8:38 ("Genuine time, place, or manner regulations are by definition content-neutral." (emphasis in original)). To the extent that reasonable manner restrictions have been recognized outside of their core scope of operation — regulating the mechanical facets of speech, such as decibel limits on speakers and generally applicable fire safety codes
Because Section 5Ff does not meet the requirements to be considered a reasonable time, place, or manner restriction, the Court will analyze it under the usual framework for speech restrictions in a limited public forum, which is that it must be viewpoint-neutral and reasonable. Section 5Ff is viewpoint-based in two ways. First, it shields government employees from negative mention, but not private citizens — including the other citizens present at the Governing Body meeting. The Court concludes that the First Amendment does not countenance a speech restriction that shields the government, but not private citizens, from criticism, especially when the interest that the speech restriction serves — maintaining decorum and preventing disruption in government meetings — could be stymied equally well by speech directed towards either. Limiting Section 5Ff's applicability to government employees also leads to the same viewpoint-imbalance that existed in Leventhal v. Vista Unified Sch. Dist., 973 F.Supp. at 960, and was referenced in Scroggins v. City of Topeka, Kan., 2 F.Supp.2d at 1371, because the rule permits the Governing Body to criticize private citizens, while prohibiting private citizens from criticizing the government. While this may be a less invidious form of viewpoint bias than the bias that speakers may air good and neutral viewpoints, but not negative ones, about the government, it may be harder to rectify with creative construction: it would defy the text of Section 5Ff for the Court to interpret it as applying to private citizens.
The second and more serious way in which Section 5Ff is viewpoint-based is, again, that it allows praise but not criticism of the Governing Body and its employees. Section 5Ff goes beyond the prohibition against personal or slanderous attacks upheld in Scroggins v. City of Topeka, Kan., 2 F.Supp.2d at 1372, and takes one side of the conversation — a conversation of public importance, in which citizens opine on their leaders' performance — off the table, while leaving the other side unimpeded. The suppression of political dissent is the core evil the First Amendment seeks to prevent, and that the viewpoint suppressed by Section 5Ff is all negative feedback to the government — rather than one side of a single, discrete issue — makes things worse, not better, for the rule. Section 5Ff is a viewpoint-based speech restriction, and, as such, it is subject to strict scrutiny, if it can be upheld at all.
The available precedent on viewpoint-based speech restrictions is so hostile that the Court cannot determine if such laws are ever allowed. See, e.g., Norse v. City of Santa Cruz, 629 F.3d at 979 (Kozinski, J., concurring)("[T]he government may never suppress viewpoints it doesn't like." (emphasis in original)(citing Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995))); Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five, 470 F.3d 1062 (4th Cir.2006) ("The
Regardless, Section 5Ff would not pass strict scrutiny, even if strict scrutiny is available as an escape valve. Strict scrutiny places the burden on the government to identify a compelling interest — which it has not done — and show that the restriction is the least restrictive alternative for achieving that interest — which the Court has already established is not the case. See Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 89 L.Ed. 194 (1944). Section 5Ff thus fails strict scrutiny.
Although the Court concludes that Griffin's facial challenge to Section 5Ff can in some ways be considered an overbreadth challenge — namely, the doctrine gives him standing to challenge the restriction and designates that challenge a facial one — the requirement that "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep," does not apply once, as here, it is displaced by another constitutional test. Broadrick v. Oklahoma, 413 U.S. at 615-16, 93 S.Ct. 2908. The viewpoint-discrimination analysis the Court has already performed replaces the "substantial overbreadth" standard, but the core substantive idea of overbreadth doctrine — that statutes over-broad on First Amendment grounds are facially invalid and not susceptible to judicial narrowing — remains.
In Doe v. City of Albuquerque, 667 F.3d at 1115 (Ebel, J.), the Tenth Circuit entertained a facial challenge to a city ordinance that banned all sex offenders from entering the public libraries. The challenger was a sex offender, but had not been arrested for violating the ordinance. See 667 F.3d at 1115-16. The city argued, and the challenger conceded, that the law had some constitutional interpretations, e.g., it was constitutional as applied to sex offenders with sufficient resources to access other libraries, and thus could not be struck down under the test outlined in United States v. Salerno, 481 U.S. at 745, 107 S.Ct. 2095 ("[T]he challenger must establish that no set of circumstances exists under which the Act would be valid."). See Doe v. City of Albuquerque, 667 F.3d at 1123. The Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, wrote for a unanimous panel that neither the United States v. Salerno standard nor the overbreadth doctrine controlled the extent of overbreadth necessary for the Tenth Circuit to strike down the law as facially invalid. See 667 F.3d at 1123-27 (stating that, in fact, the Supreme Court has never used the United States v. Salerno standard, even in United States v. Salerno itself). Rather,
Doe v. City of Albuquerque, 667 F.3d at 1127. The Tenth Circuit then applied the public forum analytical framework (in lieu of a "substantial overbreadth" analysis), concluded that public libraries are designated public forums, see 667 F.3d at 1128-29, and found that the ordinance was not sufficiently narrowly tailored, see 667 F.3d at 1133-34. In sum, the Tenth Circuit jettisoned the "substantial overbreadth" requirement applicable to First Amendment challenges when there is no more specific test, but retained the overbreadth doctrine's standing component and its posture as a facial challenge.
Judge Ebel also declined to construe the ordinance narrowly to save its constitutionality by, e.g., interpreting it to apply only to sex offenders who could afford transportation to another library, writing that
Doe v. City of Albuquerque, 667 F.3d at 1120-21 (citations to the record omitted).
The canon of constitutional avoidance is not a negation of, or an end-run around, overbreadth doctrine. If a court, interpreting a statute — from its text (and any other legitimate tools of statutory interpretation) and without preemptive narrowing in anticipation of First Amendment problems to come — finds genuine ambiguity in a statute such that more than one viable interpretation is possible, then, of
In United States v. Stevens, the Supreme Court struck down a federal statute purporting to criminalize possession of depictions of "illegal acts of animal cruelty," where the statute defined animal cruelty as "a living animal [being] intentionally maimed, mutilated, tortured, wounded, or killed." 559 U.S. at 469, 474, 130 S.Ct. 1577. The statute required that the depicted act be illegal in the state in which the depiction was sold, but the statute did not specify that the act had to be criminalized by animal cruelty statutes, specifically, and videos of ordinary hunting would thus satisfy the statute's definition in any location in which hunting is banned by ordinance. See 559 U.S. at 476, 130 S.Ct. 1577 (noting that all hunting is illegal in the District of Columbia). The United States argued, first, that under "the commonsense canon of noscitur a sociis" — that ambiguous terms can be defined more precisely by looking to neighboring words (such as in a list) — the Supreme Court should imply a cruelty requirement onto the acts. 559 U.S. at 474, 130 S.Ct. 1577. Second, the United States urged the Supreme Court to broadly interpret an exception in the statute — for videos with "serious religious, political, scientific, educational, journalistic, historical, or artistic value" — to save the constitutionality of the statute. 559 U.S. at 478, 130 S.Ct. 1577. The United States further noted that the language of the exception had been fashioned directly from the Supreme Court's own exception from "obscenity" in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (holding that material is not obscene if it has "serious literary, artistic, political, or scientific value"). See 559 U.S. at 479, 130 S.Ct. 1577.
The Honorable John G. Roberts, Chief Justice of the United States, wrote for an 8 to 1 Supreme Court that "[t]he first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers." 559 U.S. at 474, 130 S.Ct. 1577 (alteration in original)(quoting United States v. Williams, 553 U.S. at 293, 128 S.Ct. 1830)(internal quotation marks omitted). Chief Justice Roberts said that, while "wounded" and "killed" may be expansive terms, they are not ambiguous, and not susceptible to a narrowing interpretation. 559 U.S. at 474-75, 130 S.Ct. 1577 ("We agree that `wounded' and `killed' should be read according to their ordinary meaning. Nothing about that meaning requires cruelty." (citation omitted)). He noted that, while serious artistic, literary, et al., value transformed otherwise obscene material into First Amendment-protected speech, such value is not necessary to render speech protected if it would not otherwise be obscene. See 559 U.S. at 479-80, 130 S.Ct. 1577 ("Most of what we say to one another lacks `religious, political, scientific, education, journalistic, historical, or artistic value" (let alone serious value), but it is still sheltered from government regulation." (emphasis in original)). Thus, depictions of ordinary hunting that lacked
Chief Justice Roberts addressed the government's next contention, that the Supreme Court should interpret the statute to include only "extreme" cruelty because that was how the United States intended to enforce it:
United States v. Stevens, 559 U.S. at 480-81, 130 S.Ct. 1577 (citations omitted).
Chief Justice Robert's opinion appears to lay out a two-step process for applying constitutional avoidance: (i) ascertain a finite number of text-based interpretations, each of which would be defensible without resort to constitutional avoidance — there may be only one proper interpretation;
Some applications of a "no negative mention" rule would pass constitutional muster, for example: (i) prohibiting personal attacks that are irrelevant to the general topic at hand, e.g., allegations of adultery against an elected official; (ii) prohibiting criticism of non-government employees on matters not of public concern, e.g., derision of a neighbor's occupational or sexual lifestyle choices; (iii) prohibiting the use of profanity against anyone or everyone; (iv) prohibiting the use of fighting words; and (v) prohibiting the disclosure of identifying, locating, or otherwise private information by those unhappy with the performance of, e.g., elected officials or police officers. Section 5Ff, however — fairly construed using the ordinary meanings of its terms — also has myriad unconstitutional applications, including: (i) prohibiting negative feedback about a proposed government program; (ii) prohibiting disagreement — even strongly voiced disagreement — with past government decisions; (iii) prohibiting the attendance of protestors at the meetings, while allowing the attendance of those who intend to speak in support of the people or event being protested; (iv) prohibiting job-related criticism — even harsh criticism — of government employees or elected officials; and (v) prohibiting accounts of police brutality, government employee rudeness, or public corruption. The Court concludes that the unconstitutional applications of Section 5Ff are substantial when judged in relation to its plainly legitimate sweep, and Section 5Ff is, thus, unconstitutionally overbroad.
The Court will overrule all of Griffin's Objections except for his request for an injunction preventing the Village from enforcing Section 5Ff, see Griffin's Objections at 14; Complaint ¶ 102b, both for the reasons outlined by Judge Wormuth in the PFRD and because the Court concludes that the public input section of the Governing Body meetings was a limited public forum. Griffin concedes that, "if the Village did NOT create a designated public forum by allowing the public to appear on the Village agenda, then the personal aspects of his case are doomed (Plaintiff's facial attack on the `Public Input' portion's restriction of content may still be upheld
Judge Wormuth found that, whether the Governing Body meeting was a limited or designated public forum — which he declined to decide — Griffin suffered no infringement of his First Amendment rights when the Governing Body refused to put him on the agenda, because he was allowed to speak during the public input section of the meetings. Griffin contends that Judge Wormuth erred when he treated the "agenda" and "public input" portions of the Governing Body meeting as parts of a whole rather than separate events creating separate forums, and refused to decide what forum the "agenda" portion of the Governing Body meeting alone created. As a result of this error, he argues, Judge Wormuth then improperly considered only whether Griffin had alternative channels of communication for his speech and improperly concluded that he did, in spite of Griffin being "thrice denied" placement on the agenda.
The flaw with Griffin's position is that, as Judge Wormuth pointed out, Griffin has failed to demonstrate that his speech was restricted. Griffin's Objections at 13. Griffin contends that this finding is improper speculation by the Court, relying on Doe v. City of Albuquerque, 667 F.3d at 1121. Doe v. City of Albuquerque does not, however, present an analogous situation. There, in the portion of the case that Griffin cites, the Tenth Circuit was considering whether the plaintiffs had sufficiently alleged the infringement of their First Amendment rights to survive dismissal under rule 12(b)(6) of the Federal Rules of Civil Procedure. The Tenth Circuit held that the claim should survive dismissal, because the challenged ordinance was a complete ban of all sex offenders from all public libraries in Albuquerque, New Mexico. Here, in the posture of summary judgment, as Judge Wormuth correctly noted, Griffin presented no evidence of infringement on his First Amendment rights, because he was never barred from any Governing Body meeting nor prevented from speaking at one. To the extent that Griffin argues that the Defendants violated his right to free speech by requiring him to wait until the public input period, the Court does not adopt that position. As the Supreme Court has explained, "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." Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. at 647, 101 S.Ct. 2559.
Griffin also contends that his speech was subject to improper prior restraint, because, after the Governing Body's October 8, 2012, denial to place him on the agenda of the October 9, 2012, meeting, it failed to explicitly invite him to speak during the public input section of the same meeting, but instead advised him to file a formal complaint with the Village. Nowhere, however, in the operative Resolution did it state that a speaker had to be invited to speak during the public input section, nor
The Court agrees with Judge Wormuth that the only cognizable restriction Griffin suffered by the Governing Body not placing him on the agenda was the imposition of a five-minute time limit applicable to the public input period but not to the regular agenda.
This conclusion also resolves another objection Griffin raises about the PFRD. Griffin complains of Judge Wormuth's failure to decide whether the relevant forum was designated public forum or a limited public forum. See Griffin's Objections 29 at 5-7. Judge Wormuth reviewed, however, the restrictions applicable to Griffin's speech under the more stringent strict scrutiny standard and determined that they passed constitutional muster. Thus, as in Shero v. City of Grove, Okla., Judge Wormuth "need[ed] not decide" what First Amendment forum is at issue. 510 F.3d at 1203. As the Court concludes that the Governing Body meetings were limited public forums, Griffin's argument is not merely moot; the Court has done as Griffin requests and analyzed the forum, and concluded that it is a limited public forum.
Because Griffin has failed to demonstrate that Judge Wormuth erred in determining that the Defendants did not violate his First Amendment rights, the Court will adopt Judge Wormuth's recommendation as to Count 1 and grant that portion of the MSJ.
Griffin contends that Judge Wormuth erred in refusing to find that the portion of the operative Resolution regulating the placement of speakers on the agenda was overbroad, because Griffin needed only to demonstrate "that he was restricted on the basis of the content of his message, though no written restrictions ... exist." Griffin's Objections at 14. As Judge Wormuth stated, it is Griffin's burden to show, based upon the law and facts, that substantial overbreadth exists in the impugned statutory scheme, taken as a whole. See Virginia v. Hicks, 539 U.S. 113, 122, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003)("Whether these provisions are severable is of course a matter of state law, and the Virginia Supreme Court has implicitly decided that they are not.... It could not properly decree that they fall by reason of the overbreadth doctrine, however, unless the trespass policy, taken as a whole, is substantially overbroad judged in relation to its plainly legitimate sweep." (emphasis in original) (citations omitted)). Judge Wormuth correctly concluded that, read as a whole, the Resolution expressly provided all those wishing to speak with an opportunity
The Court will grant Griffin's request for injunctive relief relating to Section 5Ff. See Complaint ¶ 102b, at 19. Judge Wormuth recommends against injunctive relief on the ground that Griffin has an adequate legal remedy. See PFRD at 28. The Court disagrees; declaratory relief is an equitable remedy. See, e.g., Copar Pumice Co., Inc. v. Morris, No. CIV 07-0079 JB/ACT, 2007 WL 5685138, at *2 (D.N.M. Oct. 9, 2007) (Browning, J.) (citing Rienhardt v. Kelly, 164 F.3d 1296, 1302 (10th Cir.1999) (placing limitations on courts' ability to "grant[] equitable relief — such as injunctions of important state proceedings or declaratory judgments")). As Griffin's representation of the Iveys, his desire to attend Governing Body meetings, and his conflict with the Governing Body all appear to be ongoing, the Court concludes that Griffin may face irreparable harm — in the form of being subjected to the same injurious deprivation of speech to which he has already been subjected — if the injunction is not issued. The Court will, therefore, enjoin the Village of Ruidoso Governing Body from enforcing Section 5Ff, until it can be replaced with a constitutionally valid alternative.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir.2005). The Court finds that Pevehouse v. Scibana has persuasive value with respect to a material issue, and will assist the Court in its disposition of this Memorandum Opinion and Order.
[I]n City of Chicago v. Morales, [527 U.S. 41, 55 n. 22, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999),] a plurality of the Court asserted that "[t]o the extent that we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of this Court, including Salerno itself."
Doe v. City of Albuquerque, 667 F.3d 1111, 1125-26, 1127 (10th Cir.2012)(emphasis in original). See Richard H. Fallon, Jr., Fact and Fiction About Facial Challenges, 99 Cal. L.Rev. 915, 936-49 (2011)(examining empirical evidence and concluding that the Supreme Court regularly facially invalidates laws, and ignores the purported standard when it does); Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L.Rev. 1321, 1322-23, 1342-43 (2000); Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev 235, 239-42 (1994)("[T]he Salerno opinion cites no direct authority to support its truly draconian standard."). If this standard were taken seriously, virtually no statute would ever be invalidated. A statute criminalizing male-male sexual relations would be constitutional, because it could validly be applied to nonconsensual male-male sexual relations. See Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003)(striking down a male-male sodomy law without ever using the term "facial challenge" or reciting any recognizable standard of the same). It is not clear how this standard even could be applied to Equal Protection challenges, invidious purpose challenges, procedural rights challenges, or challenges that a law falls outside of the federal government's enumerated powers; how it can be squared with void-for-vagueness doctrine; or whether and how it affects severability analysis. See Citizens United v. FEC, 558 U.S. 310, 331, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010)("[T]he distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge.").
The Honorable John Paul Stevens, Associate Justice of the Supreme Court, observed that, when lawyers argue before the Supreme Court, counsel for the appellant argues before counsel for the appellee, and both parties must adhere to a strict time limit. See Consol. Edison Co. v. Pub. Serv. Comm'n, 447 U.S. 530, 545, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980) (Stevens, J., concurring). Although these restrictions — and many other Supreme Court procedural rules — seem to be time, place, or manner restrictions, they do not need to be narrowly tailored around a significant government interest. See 447 U.S. at 545, 100 S.Ct. 2326; Smolla, supra, § 8:44. The courtroom's status as a nonforum supplies the relevant analytical framework — not the time, place, or manner doctrine. See Smolla, supra, § 8:44.
Limited public forums and nonpublic forums, however, are already subject to reduced judicial scrutiny: speech restrictions on limited public forums, like the Governing Body meetings, need only be reasonable and viewpoint-neutral, even if they are content-based. The Court concludes that it would be counter to the purpose of the reasonable time, place, or manner doctrine — which is to reduce judicial scrutiny of speech restrictions unrelated to content — to apply a heightened standard to time, place, or manner restrictions in a limited public forum. See Consol. Edison Co. v. Pub. Serv. Comm'n, 447 U.S. at 545, 100 S.Ct. 2326 (Stevens, J., concurring); Smolla, supra, § 8:44. The Court thus concludes that all speech restrictions on limited public forums — whether content-based or regulating time, place, or manner — are subject only to the requirements of reasonableness and viewpoint-neutrality. See supra note 12.
For the sake of thoroughness, the Court will still conduct a narrow tailoring analysis, because that would be the appropriate action if: (i) the Governing Body meetings were designated public forums — although the Court concludes they are not; and (ii) Section 5Ff met the threshold requirement — content-neutrality — to be analyzed as a time, place, or manner restriction, although the Court concludes it does not. The Court's analysis ultimately rests, however, on its conclusion that Section 5Ff is viewpoint-based, which would render it unconstitutional under any of the discussed standards.
If the government were limited to the least restrictive alternative, then it could only ban the venue from playing sound at or over 100 decibels. At that noise level, patrons could leave the venue without car damage, avoid loud noises over the next few days, and avoid permanent ear damage. The government might even have to permit alternative solutions, like allowing the venue to provide earplugs to patrons at all concerts over 100 decibels. If the government were required only to promulgate a narrowly tailored restriction, however, it could regulate sound production all the way down to 85 decibels by demonstrating that the less restrictive alternatives — such as bans on sound above 86 decibels, 88 decibels, 90 decibels, etc. — achieve the significant government interest less effectively than the 85-decibel restriction. A restriction on sound above 80 decibels, however, would not be narrowly tailored, because it cannot be demonstrated to be any more effective at achieving the government interest — preventing permanent hearing loss — than an 85-decibel restriction.
In Bond v. United States, ___ U.S. ___, 134 S.Ct. 2077, 189 L.Ed.2d 1 (U.S.2014), Chief Justice Roberts interpreted a statute criminalizing the possession of chemical weapons as not applying to "purely local crimes," such as a woman's use of mildly toxic chemicals to harass her husband's paramour. 134 S.Ct. at 2090-91. Congress passed this statute — not pursuant to the Commerce Clause, as it passes most criminal statutes — but under the Treaty Clause, pursuant to an anti-chemical weapons treaty the United States ratified in the 1990s. See U.S. Const. art. II, § 2, cl. 2 ("[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur...."); U.S. Const. art. I, § 8, cl. 3 (granting Congress power to regulate interstate commerce); Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction art. VII(1)(a), S. Treaty Doc. No. 103-21, 1974 U.N.T.S. 317, 331; 134 S.Ct. at 2086-87. The statute defined "chemical weapon," in a separate subsection, as any "toxic chemical ..., except where intended for a purpose not prohibited," and the statute's plain language covered Bond's conduct. 18 U.S.C. § 229F(1). See 134 S.Ct. at 2093-96 (Scalia, J., concurring, joined by Thomas & Alito, JJ.). Nonetheless, Chief Justice Roberts interpreted the statute to exclude purely local crimes, relying on "background principles of construction" about the reach that Congress intended the statute to have:
Bond v. United States, 134 S.Ct. at 2088-89 (footnote omitted) (citations omitted)(internal quotation marks omitted). Regardless whether Chief Justice Roberts' construction of the statute is tenable, it still seems from the quoted text that he construes the statute first — albeit using "unexpressed presumptions" that closely resemble constitutional analytic standards — and only subsequently, if necessary, analyzes its constitutionality.
The Village can also impose reasonable manner restrictions. As a result of the Court's categorization of city council meetings as limited public forums, the judicial scrutiny applied to content-based restrictions is no higher than that applied to reasonable manner restrictions. The reasonable time, place, and manner restriction analysis is designed to loosen, not tighten, judicial scrutiny, and therefore the Court would apply the ordinary limited public forum standards — reasonableness and viewpoint neutrality — without the additional requirement of narrow tailoring around a significant government interest. See supra notes 12, 18. The Village, therefore, has no incentive to try to disguise content-based restrictions as reasonable manner restrictions, but it can still pass genuine time, place, or manner restrictions. Such limitations would include the procedural rules of the public input portion already in place — such as the requirement to speak in turn and the five-minute limitation — and could additionally include regulations on the volume of speech, such as: (i) a ban on raising one's voice above a certain level; (ii) the requirement or prohibition of the use of sound amplification equipment; or (iii) the requirement that the speaker speak when recognized, as opposed to standing silent as a form of time-wasting, disrespect, or protest. Such rules would have to be codified-written clearly enough to limit excessive discretion-in advance of their enforcement, as discretionary enforcement of facially neutral rules can constitute viewpoint-discrimination. See Heffron v. Int'l Soc'y for Krishna Consciousness, 452 U.S. at 649, 101 S.Ct. 2559 ("Rule[s must] not [be] open to the kind of arbitrary application that this Court has condemned as 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." (citations omitted)). If protestors are loud, but otherwise comply with the rules, and are removed from a meeting despite the absence of a written prohibition — with clear, discretion-limiting standards — on intolerably loud speech, it raises the specter that the protestors were removed for their viewpoint, i.e., that the rule was really fashioned at the point of enforcement, in direct response to the speakers' viewpoint. The possibility of viewpoint bias in discretionary enforcement is present even in the example of silent protests: although no one can ascertain the viewpoint of a silent protestor from his or her silence alone, circumstances typically make it obvious what the speaker's viewpoint is, i.e., what the protestor is protesting. If the protestor's viewpoint could not be ascertained, there would, after all, be little point to a public protest.
The Court will consider anti-silence restrictions further, because they raise a novel question, and because the Village has in place rules that effectively ban speakers from using their five minutes of public input to protest by standing silently. Sections 5Fd and 5Fe require that "[p]resenter[s] must state their name" and "must state in one or two sentences what the presenter will be addressing before [the] Council"; these provisions appear to prohibit total silence. Village of Ruidoso Resolution 2012-16 at 4. Because the Court concludes that the Governing Body meetings are limited public forums, time, place, and manner restrictions need be only reasonable and viewpoint-neutral. See supra notes 12, 18. The anti-silence rule is viewpoint-neutral, because — although silence can be used to express a viewpoint — it is not intrinsically related to any particular subject matter, stance, or category of stances. The restriction is also reasonable, because one of the purposes of the public input portion of the meetings is for the Governing Body members to receive actionable information from their constituents, and silence conveys almost no information.
This question would be closer if the meetings were designated public forums, but an anti-silence restriction might still pass constitutional muster under two conditions. First, there must be a significant government interest in "conducting orderly, efficient, [and] effective ... meetings," Scroggins v. City of Topeka, Kan., 2 F.Supp.2d at 1372 (opining that such an interest is cognizable), and not merely in preventing the disruption of meetings, see Norse v. City of Santa Cruz, 629 F.3d at 979 (opining that only preventing the disruption of city council meetings constitutes a significant government interest). Neither the Supreme Court nor the Tenth Circuit has weighed in on this issue. See supra note 20 and accompanying text. Five minutes of silence during a meeting is inefficient, but it is not disruptive. Second, the government must demonstrate that the anti-silence restriction is narrowly tailored to achieve the interest of conducting efficient meetings — meaning that all lesser restrictions would result in less efficient meetings — but not necessarily that it is the least restrictive alternative. See supra note 19; Ward v. Rock Against Racism, 491 U.S. at 789-99, 109 S.Ct. 2746. Silence — more than almost any other identifiable category of speech-conveys almost no useable information. Viewed in light of surrounding circumstances, it often conveys the viewpoint — in broad strokes — of the speaker, as well the extent of the speaker's displeasure, resentment, contempt, or disagreement with the opposing viewpoint(s). Silence, however, provides observers with no clues as to the reasoning supporting the viewpoint, alternative proposals, the speaker's motives and stake in the debate, or how the speaker intends to react to the outcome of the debate. Even assuming that there is value in government officials being exposed to the unarticulated, unexplained, up-or-down opinions of its constituents, requiring those constituents to use that same time period verbalizing their displeasure is a comparatively better use of the time: at best, the constituent may convey useable information; and, at worst, even if the constituent merely states his or her unembellished viewpoint, verbalizing that viewpoint removes some of the potential ambiguity of silence and reduces the chances that the viewpoint will be misunderstood. In short, a meeting without drawn-out periods of awkward silence will be more efficient than one that contains them, and an anti-silence rule likely satisfies the requirements of narrow tailoring. The final requirement, that the restriction leave open ample alternative channels of communication, is met, as there are myriad other methods through which to convey a viewpoint or conduct a protest in a city council meeting other than silence — to say nothing of alternative channels that exist outside of the meeting. An anti-silence restriction on public comment sessions would, thus, be constitutional even if the session was configured in such a way as to constitute a designated public forum.
