Albert Cleveland v. City of Coca Beach, Florida , 221 F. App'x 875 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
___________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-16514 MARCH 23, 2007
___________ THOMAS K. KAHN
CLERK
D.C. Docket No. 02-01294-CV-ORL-22KRS
ALBERT CLEVELAND,
Plaintiff-Appellant,
versus
CITY OF COCOA BEACH, FLORIDA,
JANICE SCOTT,
GARY E. ECKSTINE,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Florida
(March 23, 2007)
Before TJOFLAT and HILL, Circuit Judges, and GRANADE,* Chief District
Judge.
GRANADE, Chief District Judge:
__________________________________________
*Honorable Callie V. S. Granade, Chief United States District Judge for the Southern District of
Alabama, sitting by designation.
I. INTRODUCTION
This action arises out of the events occurring at a city commission meeting
for the City of Cocoa Beach, Florida, on October 17, 2002. Plaintiff, Albert
Cleveland, alleges that his First Amendment rights were violated when the former
mayor Janice Scott told Cleveland he could not wear a T-shirt at the meeting that
contained a political message regarding the ongoing mayoral race. Cleveland also
claimed that the City and the city’s attorney, Gary E. Eckstine, adopted or
acquiesced in then Mayor Scott’s actions.
Cleveland filed a 42 U.S.C. §1983 action against the City of Cocoa Beach
and against Janice Scott and Gary E. Eckstine, in their individual capacities. The
district court granted summary judgment in favor of all defendants, finding no
constitutional violation and finding that Scott and Eckstine were entitled to
qualified immunity. Cleveland appeals that ruling.
II. FACTS
At the time of the meeting, Mayor Janice Scott was running for reelection.
It was Scott’s responsibility, as mayor, to be chairperson of the meeting. At the
meeting, which was broadcast on television, one of Scott’s supporters, Lisa
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Shepline1, took the podium wearing a pro-Scott campaign button. Scott informed
her that she was not allowed to be on television with her political message and she
thereupon reversed the pin so that the message was hidden. Later in the meeting,
plaintiff Albert Cleveland, a former city commissioner, took a seat in the audience
wearing a T-shirt bearing the words “VOTE SKIP BEELER MAYOR For Seat 1
For Everyone” on the front and “I SUPPORT SKIP BEELER for MAYOR
COCOA BEACH” on the back. Mayor Scott told plaintiff that he could not wear
the shirt and he needed to turn it inside out. Plaintiff demanded to know under
what law he was required to do so. When the mayor asked the city attorney, Gary
E. Eckstine, to articulate the rule, Eckstine responded that the City Commission
has an inherent power to set its own procedural rules and regulate its meetings,
including restricting demonstrations or printed material, as long as those
restrictions are content neutral. He gave the opinion that the rule prohibiting
wearing political speech was content neutral and was a restriction that the
Commission could legally adopt. The City’s Sergeant of Arms approached
plaintiff and he left the meeting room. After turning his shirt inside out, plaintiff
returned to the meeting. During the public comment portion of the meeting,
plaintiff spoke at the podium. He made pointed remarks about the apparent “dress
1
Her last name is spelled several different ways in the record of this case.
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code” and said he would be back the next day to pick up a copy of the code.
Plaintiff also stated that he hoped that in two weeks Scott would have more time to
go to ball games, implying that he hoped she would not win the election.
There is no evidence that any prior city meeting had been disrupted because
of the wearing of political speech, nor that the City have any written policy
regarding the wearing of such political speech. According to Scott, she believed
the City had a policy prohibiting campaigning in City Hall or on municipal
property. The City later allowed political campaign messages to be displayed on
participants clothing and, in fact, allowed Cleveland to wear the T-shirt in
question at the next City meeting.
III. STANDARD OF REVIEW
Our review of a summary judgment decision is de novo and the legal
standard we apply is the same that bound the district court. Williams v. Morgan,
--- F.3d ----, 2007 WL 465567 (11th Cir. Feb 14, 2007), citing Cruz v. Publix
Super Markets, Inc., 428 F. 3d 1379, 1382 (11th Cir. 2005).
IV. ANALYSIS
Cleveland maintains that the restriction placed on his speech was not
viewpoint-neutral, was unreasonable and not narrowly tailored to the purpose of
the limited public forum, and that the restriction constituted the City’s policy,
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thereby exposing it to liability under 42 U.S.C. § 1983. He also claims that Scott
and Eckstine are not entitled to qualified immunity because every reasonable and
competent mayor and municipal attorney would know that the restriction violated
his constitutional right to free speech. According to Cleveland, punitive damages
are appropriate because there is evidence of evil motive and reckless abridgement
of Cleveland’s federally protected rights.
We first decide whether the facts demonstrate a constitutional violation.
“The freedom of expression protected by the First Amendment is not inviolate; the
Supreme Court has established that the First Amendment does not guarantee
persons the right to communicate their views ‘at all times or in any manner that
may be desired.’” Rowe v. City of Cocoa, Fla., 358 F.3d 800, 802 (11th Cir. 2004)
(citing Jones v. Heyman, 888 F.2d 1328, 1331 (11th Cir. 1989)). City commission
meetings may be restricted “to specified subject matter.” Id. (quoting Jones, 888
F.2d at 1332).
Stated differently, city commission meetings are “limited” public
fora–i.e., “a forum for certain groups of speakers or for the discussion
of certain subjects.” Crowder v. Housing Auth. of City of Atlanta,
990 F.2d 586, 591 (11th Cir. 1993) (citing Perry Educ. Ass’n. v. Perry
Local Educators’ Ass’n, 460 U.S. 37, 46 n. 7, 103 S.Ct. 948, 74
LED.2d 794 (1983). As such, “the government may restrict access to
limited public fora by content-neutral conditions for the time, place,
and manner of access, all of which must be narrowly tailored to serve
a significant government interest.” Id. (citing Perry, 460 U.S. at 45-
46, 103 S.Ct.948).
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Rowe, 358 F.3d at 802-03. “[E]ven in a public forum the government may impose
reasonable restrictions on the time, place, or manner of protected speech, provided
the restrictions 'are justified without reference to the content of the regulated
speech, ... they are narrowly tailored to serve a significant governmental interest,
and ... they leave open ample alternative channels for communication of the
information.’” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746,
2753, 105 L.Ed.2d 661 (1989). “When the [government] establishes a limited
public forum, the [government] is not required to and does not allow persons to
engage in every type of speech.” Good News Club v. Milford Central School, 533
U.S. 98, 106, 121 S.Ct. 2093, 2100, 150 L.Ed.2d 151 (2001). “[W]hile a public
entity may not censor speech about an authorized topic based on the point of view
expressed by the speaker, it has broad discretion to preserve the property under its
control for the use to which it is lawfully dedicated.” Good News Club v. Milford
Central School, 533 U.S. 98, 130-131, 121 S.Ct. 2093, 2113 (2001) (citations and
internal quotations omitted) (STEVENS, J., dissenting). However, [t]he
restriction must not discriminate against speech on the basis of viewpoint, ... and
the restriction must be ‘reasonable in light of the purpose served by the forum,’”
Id. at 106-07 (citing Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S.
819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) and Cornelius v. NAACP Legal
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Defense & Ed. Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 87 L.Ed.2d 567(1985)). "In addition to time, place, and manner regulations, the [government]
may reserve the forum for its intended purposes, communicative or otherwise, as
long as the regulation on speech is reasonable and not an effort to suppress
expression merely because public officials oppose the speaker's view.” Perry
Educ. Ass’n v. Perry Local Educators' Ass’n, 460 U.S. 37, 46, 103 S.Ct. 948, 955,
74 L.Ed.2d 794 (1983).
The district court correctly found that the city council meeting constituted a
limited public forum where subjects of discussion were limited to those relevant to
city business. As such the level of scrutiny of the restriction of speech is less than
if speech is restricted in a fully public forum. At a limited public forum, content
discrimination is permissible if it is reasonable, given the limited forum’s purpose;
viewpoint discrimination is not. The prohibition against the display of campaign
messages in this case was content-based, but viewpoint-neutral.2 Mayor Scott
prohibited only speech in which the subject matter pertained to the local political
campaign. However, she restricted the promotional campaign materials
evenhandedly, without regard to the particular candidate that was being endorsed.
2
City Attorney Eckstine’s opinion to the contrary which he stated at the council meeting
was incorrect.
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She banned not only a message in support of her opponent, but also a message in
support of her own re-election. Although Cleveland contends that the prohibition
was enforced more harshly or with greater enthusiasm against him, the record
demonstrates that any difference in the degree of enforcement was not due to the
viewpoint of the message he was displaying. On noticing that a supporter was
wearing a Scott promotional pin at the council meeting, Scott informed the
supporter that the pin could not be displayed. Likewise, Cleveland was asked to
remove his promotional message when the fact that he was displaying such a
message came to Scott’s attention. The difference in the way Cleveland was
treated was the result of Cleveland’s indignant and argumentative reaction to
Scott’ request. In contrast, the Scott-supporter was apologetic and promptly
complied with Scott’s instruction. Any other distinction appears to be due to the
fact that Scott’s comments were not written statements thoughtfully drafted in
advance, but rather were her off-the-cuff attempts to enforce a general rule which
she believed existed.
It was reasonable for the City to establish a campaign-free zone for the
purposes of limiting political influence on its employees and conducting orderly
and efficient meetings. As stated in Rowe: “[t]here is a significant governmental
interest in conducting orderly, efficient meetings of public bodies.” Rowe, 358
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F.3d at 803 (citing Jones, 888 F.2d at 1332). The forum was not open for the
purpose of campaigning. “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.” Id.Cleveland argues that the rule was overly broad because it banned
expression by those in the audience who would not be seen on the television
broadcast. However, in order to limit political influence on the city’s employees
and maintain orderly and efficient meetings, the City has the right maintain the
decorum of the entire assembly, not just of those at the podium or in front of the
television camera.
Cleveland also asserts that it was unreasonable to disallow the slogan on his
T-shirt, while allowing oral comments such as he made during the public comment
portion of the meeting. According to Cleveland, his T-shirt slogan was consistent
with the purpose of the meeting because he later was allowed to speak orally on the
subject during the public comment portion of the meeting. Cleveland even argues
that Scott herself engaged in political speech in support of her re-election by
wearing red, the color scheme used in her campaign advertisements. Cleveland’s
position infers that Scott should have stopped him from speaking at the podium,
and that because he was allowed to speak on the subject, the forum lost its limited
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nature. However, it was not apparent that Cleveland was going to comment on the
mayoral election until his comments were made. And, in fact, the comments made
at the podium were not straightforward statements about the mayoral election, but
were rather jabs at the City’s so-called “dress code.” The only comment that could
be characterized as having to do with the election itself was plaintiff’s oblique
statement about the mayor perhaps having more time to attend ball games after the
date of the election. The City Commission meetings serve the purpose of
conducting the city business and are not for the purpose of providing a venue to
express political election views. The fact that Cleveland made such statements
does not change the nature of the forum. In addition, the fact that speech was not
restricted to the extent constitutionally permissible does not make the lesser
restriction unreasonable. The prohibition of the display of campaign materials
during the meeting was reasonable given the limited forum in which it was applied
and because it was narrowly tailored to serve a legitimate government interest. As
such, we uphold the district court’s finding of no constitutional violation.
Accordingly, because Plaintiff’s claim does not establish a constitutional
violation, there is no need to reach the other bases3 on which the district court
3
The district court also found that the actions by Scott and Eckstine at the council meeting
did not represent a policy or custom of the City and therefore did not create liability under §
1983; that the individual defendants were entitled to qualified immunity; and that there was no
basis for punitive damages.
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granted summary judgment in favor of the defendants.
IV. CONCLUSION
In light of the foregoing analysis, we affirm the district court’s order granting
summary judgment in favor of all defendants.
AFFIRMED.
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