Int'l Caucus v. City of Montgomery ( 1996 )


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  •                     United States Court of Appeals,
    
                               Eleventh Circuit.
    
                                 No. 94-6699.
    
      The INTERNATIONAL CAUCUS OF LABOR COMMITTEES, Richard Boone,
    Reverend, individually and as a member of International Caucus of
    Labor Committees, Gary D. Kanitz, individually and as a member of
    International Caucus of Labor Committees, Gerald E. Berg,
    individually and as a member of International Caucus of Labor
    Committees, Plaintiffs-Appellees,
    
                                      v.
    
    The CITY OF MONTGOMERY, The City of Montgomery Police Department,
    John Wilson, in his official capacity as Chief of Police of the
    City of Montgomery, Defendants-Appellants.
    
                                July 17, 1996.
    
    Appeal from the United States District Court for the Middle
    District of Alabama. (No. CV 93-H-519-N), Truman M. Hobbs, Judge.
    
    Before ANDERSON and COX, Circuit Judges, and RONEY, Senior Circuit
    Judge.
    
           RONEY, Senior Circuit Judge:
    
           This case involves a challenge to the constitutionality of a
    
    city policy banning tables from city sidewalks.       On two occasions,
    
    plaintiffs, The International Caucus of Labor Committees and three
    
    of its members, were distributing literature from a card table
    
    placed on the sidewalk when police told them to leave or submit to
    
    arrest.   The district court found that The International Caucus is
    
    an organization devoted to altering the contemporary political
    
    landscape.     It distributes literature and recruits new members in
    
    several ways.     One of its preferred ways is to place tables in
    
    public areas in an effort to attract people to take its literature
    
    from   these   tables.    Plaintiffs   wrote   a   letter   to   the   City
    
    explaining their desire to promote their views "by setting up
    
    literature tables at public sites."     The City's responsive letter
    banned tables from city sidewalks.            The letter stated in relevant
    
    part:
    
         Your actions do not violate the laws of this city unless you
         impede the orderly flow of traffic in the streets and at the
         street corners.
    
         Your organization will not be allowed to set up tables or
         booths on the sidewalks of this city. These tables or booths
         would create a partial blockage of pedestrian traffic and
         therefore will not be allowed on the sidewalks.         Your
         organization may set up tables or booths on private property
         where you have the permission of the property owner.
    
    The City maintains that its policy is a complete ban of any tables
    
    on all sidewalks.
    
         Plaintiffs sued the City of Montgomery, its police department
    
    and police chief, seeking a declaration that the City's policy
    
    violated plaintiffs' First Amendment right of free speech and to
    
    enjoin the City from denying plaintiffs the right to distribute
    
    political literature from tables placed on the sidewalks.
    
         The   district    court,      in   a   carefully   constructed   opinion,
    
    entered a declaratory decree that the City's ban excessively and
    
    unnecessarily infringes on the plaintiffs' rights guaranteed by the
    
    First Amendment.      The court initially held that the placement of
    
    tables on city sidewalks is subject to First Amendment scrutiny and
    
    is therefore subject to the time, place and manner test set out in
    
    Ward v. Rock Against Racism, 
    491 U.S. 781
    , 791, 
    109 S. Ct. 2746
    ,
    
    2753-54, 
    105 L. Ed. 2d 661
     (1989).            The court then held   first, the
    
    City's   ban   on   tables    is    content     neutral;     second,   it   is
    
    inappropriate to conclude on this record that the City's interests
    
    are significant ones;        third, even if the City's interests are
    
    viewed as significant, the regulation is not narrowly tailored to
    
    serve those interests;       and fourth, since the ban fails the narrow
    tailoring requirement, the court need not decide whether the ban
    
    leaves ample alternative means of communication open.                  The court
    
    denied an injunction with confidence that the defendants would
    
    abide the declaration that the ban is unconstitutional.
    
           We   reverse   on    the   ground   that    a   ban   against   tables    on
    
    sidewalks does not implicate the First Amendment, and therefore we
    
    do not review the correctness of the district court's time, place
    
    and manner decision.
    
            Preliminarily, there was some question as to whether the
    
    issue was properly before the Court.              Some consideration has been
    
    given by the panel and in the supplemental briefing and reargument
    
    to the fact that the policy here challenged is in the form of a
    
    letter from the City Attorney, rather than being incorporated in a
    
    duly adopted city ordinance.         The parties agree, however, that the
    
    policy of banning all tables from city sidewalks is the fixed
    
    policy of the City which will be enforced by the police, the
    
    transgression of which would lead to trouble for the plaintiffs.
    
    The parties are entitled to a decision on the constitutionality of
    
    such   a    policy.        This   Court    has    previously    considered      the
    
    constitutionality of an "unwritten" scheme for regulating newsracks
    
    in interstate areas.         Sentinel Communications Co. v. Watts,              
    936 F.2d 1189
     (11th Cir.1991).
    
           The cases clearly hold that the distribution of literature is
    
    a type of speech protected by the First Amendment.                United States
    
    v. Grace, 
    461 U.S. 171
    , 
    103 S. Ct. 1702
    , 
    75 L. Ed. 2d 736
     (1983);
    
    Schneider v. State, 
    308 U.S. 147
    , 162, 
    60 S. Ct. 146
    , 151, 
    84 L. Ed. 155
     (1939);      Lovell v. Griffin, 
    303 U.S. 444
    , 
    58 S. Ct. 666
    , 
    82 L. Ed. 949
     (1938).      The Supreme Court has repeatedly held that
    
    public streets and sidewalks are traditional public fora.          Frisby
    
    v. Schultz, 
    487 U.S. 474
    , 480, 
    108 S. Ct. 2495
    , 2500, 
    101 L. Ed. 2d 420
     (1988);    Boos v. Barry, 
    485 U.S. 312
    , 318, 
    108 S. Ct. 1157
    ,
    
    1162, 
    99 L. Ed. 2d 333
     (1988);     Perry Education Assn. v. Perry Local
    
    Educators' Assn., 
    460 U.S. 37
    , 44, 
    103 S. Ct. 948
    , 954, 
    74 L. Ed. 2d 794
     (1983).
    
          There is little authority, however, to guide a decision as to
    
    whether the use of a portable table on a public sidewalk is
    
    constitutionally protected by the First Amendment.           The Supreme
    
    Court apparently has never addressed that issue.         Only the Seventh
    
    Circuit has directly held that the erection of a table is not
    
    constitutionally protected free speech.           "Subsection E (of the
    
    Regulation) prohibits the erection of a table, chair or other
    
    structure in areas other than leased space....              Because this
    
    section does not facially restrict the exercise of guaranteed
    
    rights, we do not find it is constitutionally impermissible."
    
    International Society for Krishna Consciousness v. Rochford, 
    585 F.2d 263
    , 270 (7th Cir.1978).          In a case involving an almost
    
    identical regulation where "the plaintiffs alleged only that they
    
    have been prohibited from setting up tables," the same court
    
    declined to "overrule Rochford on this point."             International
    
    Caucus of Labor Comms. v. City of Chicago, 
    816 F.2d 337
    , 339 (7th
    
    Cir.1987).    This authority is somewhat tainted by the failure of
    
    the   plaintiff   in   Krishna   to   challenge   that   section   of   the
    
    regulation.   But after later approval, that is clearly the law in
    
    the Seventh Circuit.
          No   other   circuits   appear     to   have    dealt   with    the   point.
    
    Several district courts have struggled with the issue, as did the
    
    district court in this case.      Two cases in the Southern District of
    
    Florida go opposite ways.       In International Caucus of Labor Comms.
    
    v.    Metropolitan    Dade    County,     Fla.,      
    724 F. Supp. 917
    ,     920
    
    (S.D.Fla.1989), Judge Zloch followed the Seventh Circuit cases in
    
    holding "that the use of tables is not expressive conduct protected
    
    by the First Amendment."       He contrasted this with the use of signs
    
    which were held to be classified as expressive conduct protected by
    
    the First Amendment.       In a later case which did not refer to that
    
    decision,    Judge   King,     torn     between      the   decision    involving
    
    newsstands in Graff v. Chicago, 
    9 F.3d 1309
    , 1314 (7th Cir.1993)
    
    ("no person has a constitutional right to erect or maintain a
    
    structure on the public way."), cert. denied, --- U.S. ----, 
    114 S. Ct. 1837
    , 
    128 L. Ed. 2d 464
     (1994), and the newsracks decision by
    
    this Court in Sentinel Communications Co. v. Watts, 
    936 F.2d 1189
    ,
    
    1196 (11th Cir.1991) ("there is "no doubt' that the right to
    
    distribute and circulate newspapers through the use of newsracks is
    
    protected by the first amendment."), decided that portable tables
    
    for   selling   T-shirts     carrying    protected     speech   message       "more
    
    closely resemble the newsracks in the                Sentinel case" and fell
    
    within the constitutional protection of expressive conduct.                     One
    
    World One Family Now v. City of Key West, 
    852 F. Supp. 1005
     (S.D.Fla
    
    1994).
    
          In Nevada, the district court followed Judge King's decision
    
    in holding that a portable table "facilitates" the freedom to
    
    distribute literature, distinguishing chairs, umbrellas, and boxes
    which are not entitled to First Amendment protection.                        One World
    
    One Family Now Inc. v. State of Nev.,                    
    860 F. Supp. 1457
    , 1463
    
    (D.Nev.1994).
    
          The district court in this case focused on the multitude of
    
    newsrack cases to conclude that the table facilitates distribution
    
    of information.        International Caucus of Labor Comms. v. City of
    
    Montgomery, 
    856 F. Supp. 1552
     (M.D.Ala.1994).                      It cast off Judge
    
    Zloch's     decision       and   the   Seventh       Circuit      decision       as     not
    
    reconcilable with longstanding First Amendment principles.                              The
    
    court thus held that the use of tables on a public sidewalk to
    
    distribute        literature     warrants     consideration        under    the       First
    
    Amendment.         After    finding    that   the     complete     ban     was   content
    
    neutral, the district court put the burden on the City to identify
    
    the interest of the City being served by the ban and to show that
    
    the   ban    was    narrowly     tailored      to    meet   that       interest.         No
    
    consideration was given to any concern like that expressed by the
    
    judge who dissented from the dismissal of the complaint in the
    
    Seventh Circuit's           International     Caucus      case,    a    concern       which
    
    reflected a reasonableness standard as being appropriate:                         "Given
    
    the hundreds or thousands of organizations or individuals who might
    
    want to set up a table at O'Hare, a prohibition against this kind
    
    of action seems not at all unreasonable."                 International Caucus of
    
    Labor Comms. v. City of Chicago, 
    816 F.2d 337
    , 341 (7th Cir.1987).
    
          In    any    event,    with   the   lack      of   compelling      authority      or
    
    reasoning to the contrary, we follow the lead of the Seventh
    
    Circuit and hold that the prohibition against placing any table on
    
    a public sidewalk, for whatever purpose, does not implicate the
    First Amendment.   The policy of the City implementing the ban need
    
    not be subjected to the various requirements demanded when an
    
    action infringes upon First Amendment speech.
    
         First, in our judgment, the use of the newsrack cases as
    
    precedent for consideration of what other items or structures may
    
    be placed upon a public sidewalk is misguided.    Newsracks are sui
    
    generis. They are best explained by Justice Holmes' remark that "a
    
    page of history is worth a volume of logic."   New York Trust Co. v.
    
    Eisner, 
    256 U.S. 345
    , 349, 
    41 S. Ct. 506
    , 507, 
    65 L. Ed. 963
     (1921).
    
    Since the replacement of newsboys, who had free reign to peddle
    
    newspapers in public places, the courts and public authorities have
    
    spent decades working out the law concerning the placement of
    
    newsracks in public places.   Because of the long tradition of sale
    
    of newspapers upon public streets which underlies all of that law,
    
    it is a mistake to import wholesale reasoning of those cases into
    
    the consideration of the regulation of other devices which might
    
    occupy public sidewalks.
    
         Second, without the newsrack cases, there is virtually no
    
    authority which would prevent a City from deciding what can be
    
    placed upon a public sidewalk and what cannot.        It is public
    
    property.   The City authorities are in charge of that public
    
    property.
    
         Third, as long as the regulations do not discriminate in an
    
    unconstitutional way, remain content neutral, and do not deprive
    
    any members of the public of the use of the property for its
    
    intended purpose, the City should not have to carry the burden to
    
    defend those regulations in federal court.   Thus, in a case of this
    kind, the burden is on the plaintiff to show why any portion of
    
    public property should be burdened for private use. Aside from its
    
    First Amendment argument, the plaintiff here has not demonstrated
    
    any fact which would indicate that it could carry that burden.
    
         Fourth, if the erection of a card table could ever be endowed
    
    with some modest First Amendment protection, such protection should
    
    only be afforded upon the plaintiffs' showing that use of the card
    
    table is necessary to the exercise of free speech rights.             This is
    
    a threshold showing that must be made before considering whether
    
    the regulation involved is content neutral, serves a significant
    
    governmental interest, and is narrowly tailored enough to pass
    
    constitutional muster.         The record in this case demonstrates
    
    nothing more than that use of a card table would be convenient, not
    
    that it is so necessary that without it the plaintiff's message
    
    would not be heard.
    
         It should be recognized that a recurring problem with street
    
    regulation    is   that   it   allows     the    police   to   make   ad   hoc
    
    determinations about obstruction, interference with traffic, and
    
    nuisance factors so the City would run the risk that the regulation
    
    would be unevenly and discriminatorily applied.           Precisely because
    
    of these considerations the authorities here settled on a complete
    
    ban, easy to read, easy to understand, and applicable to all.              The
    
    policy under consideration here fully satisfies those concerns.
    
         The     district     court   erred     in    declaring     the    policy
    
    unconstitutional.
         REVERSED.
    
         ANDERSON, Circuit Judge, dissenting:
         The majority today holds that the use of a table to facilitate
    
    speech enjoys no First Amendment protection at all unless such use
    
    is "necessary to the exercise of First Amendment rights." Majority
    
    at 2655.    Because I believe that this is not the standard that has
    
    evolved through Supreme Court First Amendment jurisprudence, I
    
    dissent.
    
         The Supreme Court has not expressly set forth a test for
    
    determining the degree to which conduct must be linked to protected
    
    speech to be entitled to some level of constitutional protection.1
    
    The closest the Court has come to articulating such a test is found
    
    in City of Lakewood v. Plain Dealer Pub. Co., 
    486 U.S. 750
    , 
    108 S. Ct. 2138
    , 
    100 L. Ed. 2d 771
     (1988).         The city in      Plain Dealer
    
    passed an ordinance prohibiting the private placement of any
    
    structure on public property, and it used that ordinance to deny
    
    the publisher of a local newspaper permission to place newsracks on
    
    sidewalks.    Id. at 753, 108 S.Ct. at 2141-42.      The Court indicated
    
    that regulation or restriction of conduct implicates the First
    
    Amendment    when   the   "conduct   [is]    commonly     associated   with
    
    expression."    Id. at 759, 108 S.Ct. at 2145.
    
         The majority would limit to their facts the             Plain Dealer
    
    opinion and similar cases involving newsracks, based on a perceived
    
    historical distinction between newsracks and other devices that
    
    facilitate speech. However, the Supreme Court has never drawn such
    
         1
          See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-7, at 827
    (2d ed. 1988) ("The trouble with the distinction between speech
    and conduct is that it has less determinate content than is
    sometimes supposed. All communication except perhaps that of the
    extrasensory variety involves conduct ... Expression and conduct,
    message and medium, are thus inextricably tied together in all
    communicative behavior....")
    a distinction.           To the contrary, the Court has held that the First
    
    Amendment is implicated in regulations banning newsracks containing
    
    commercial publications,              see   City   of   Cincinnati   v.    Discovery
    
    Network, Inc., 
    507 U.S. 410
    , 
    113 S. Ct. 1505
    , 
    123 L. Ed. 2d 99
     (1993),
    
    governing the amplification of music, see Ward v. Rock Against
    
    Racism, 
    491 U.S. 781
    , 
    109 S. Ct. 2746
    , 
    105 L. Ed. 2d 661
     (1989),
    
    restricting the use of sound trucks, see Kovacs v. Cooper, 
    336 U.S. 77
    , 
    69 S. Ct. 448
    , 
    93 L. Ed. 513
     (1949), and prohibiting the use of
    
    loudspeakers, see Saia v. New York, 
    334 U.S. 558
    , 
    68 S. Ct. 1148
    , 
    92 L. Ed. 1574
     (1948).
    
           Had the Court adopted the majority's requirement that such
    
    devices be "necessary" to the speech itself, it would not have
    
    conducted the "time, place and manner" inquiry that it did in each
    
    of the cases cited above.              It would simply have held that sound
    
    trucks, amplifiers and commercial newsracks are not "necessary" to
    
    the expression they broadcast (for surely the same expression could
    
    have       been   made    without   them),    and    thus   are   entitled      to   no
    
    constitutional protection whatsoever. This, however, the Court did
    
    not    do.2        Instead,     the    Court,      consistent     with    its   prior
    
           2
          It does not stretch the analogy to say that newsracks,
    loudspeakers and tables similarly enlarge the potential audience
    for a speaker's message. Just as a loudspeaker increases the
    number of people who can hear a spoken message, so too newsracks
    spread throughout a city increase the number of people who can
    receive a printed message. In the same way, a table on which
    literature is placed and to which posters are attached, as here,
    increases the potential audience for the message when compared
    with the number of people that could be reached by speaking with
    each individually. These devices all enhance the delivery of
    protected speech, and though they are not entitled to the same
    protections as the speech itself, they are entitled to the
    protections afforded by the "time, place and manner" test. As
    the Supreme Court noted in Metromedia, Inc., v. City of San
    Diego, 
    453 U.S. 490
    , 502, 
    101 S. Ct. 2882
    , 2889-90, 
    69 L. Ed. 2d 800
    jurisprudence, endeavored to balance the individual right of free
    
    expression with the "authority to give consideration, without
    
    unfair discrimination, to time, place and manner in relation to
    
    other proper uses of the streets."          Cox v. New Hampshire, 
    312 U.S. 569
    , 576, 
    61 S. Ct. 762
    , 766, 
    85 L. Ed. 1049
     (1941);             see also Plain
    
    Dealer, 486 U.S. at 763, 108 S.Ct. at 2147 ("Presumably in the case
    
    of an ordinance that completely prohibits a particular manner of
    
    expression ... the Court would apply the well-settled time, place
    
    and manner test.").
    
         In my view, the proper threshold question is whether tables,
    
    when used to display expressive media such as books and posters,
    
    are commonly associated with a protected form of expression.                A
    
    summary review of cases from Federal courts around the country
    
    reveals   that    tables   are   frequently   used   by   those   seeking   to
    
    disseminate      ideas   and   distribute   literature    on   sidewalks,   in
    
    airports, and in areas where people gather.               See, e.g., United
    
    States v. Kokinda, 
    497 U.S. 720
    , 
    110 S. Ct. 3115
    , 
    111 L. Ed. 2d 571
    
    (1990) (table set up on sidewalk by group soliciting contributions
    
    and distributing literature); PruneYard Shopping Center v. Robins,
    
    
    
    (1981):
    
               Billboards, then, like other media of communication,
               combine communicative and noncommunicative aspects. As
               with other media, the government has legitimate
               interests in controlling the noncommunicative aspects
               of the medium ... but the First and Fourteenth
               Amendments foreclose a similar interest in controlling
               the communicative aspects. Because regulation of the
               noncommunicative aspects of a medium often impinges to
               some degree on the communicative aspects, it has been
               necessary for the courts to reconcile the government's
               regulatory interest with the individual's right to
               expression.
    
    447 U.S. 74
    , 
    100 S. Ct. 2035
    , 
    64 L. Ed. 2d 741
     (1980) (table set up on
    
    plaza of shopping mall by students seeking to solicit signatures
    
    for petitions);         Hedges v. Wauconda Comm. Unit School Dist. No.
    
    118, 
    9 F.3d 1295
     (7th Cir.1993) (upholding school policy requiring
    
    that students distribute religious literature from table); Paulsen
    
    v. Gotbaum,       
    982 F.2d 825
     (2nd Cir.1992) (upholding city rule
    
    restricting    distribution        of   literature    to   stationary    tables);
    
    Northeast Women's Center, Inc., v. McMonagle, 
    939 F.2d 57
     (3rd
    
    Cir.1991) (information table set up by protesters at abortion
    
    clinic);     Birdwell v. Hazelwood School District, 
    491 F.2d 490
     (8th
    
    Cir.1974) (information table set up by military recruiter in hall
    
    of high school);        One World One Family Now, Inc., v. Nevada, 
    860 F. Supp. 1457
     (D.Nev.1994) (tables set up on public sidewalks by
    
    group selling message-bearing t-shirts);              One World One Family Now
    
    v. City of Key West, 
    852 F. Supp. 1005
     (S.D.Fla.1994) (same); Texas
    
    Review Society v. Cunningham,             
    659 F. Supp. 1239
     (W.D.Tex.1987)
    
    (tables    used    by   university      student    organizations    distributing
    
    literature);        International Society for Krishna Consciousness,
    
    Inc., v. Rochford, 
    425 F. Supp. 734
     (N.D.Ill.1977) (dispute over
    
    regulations       governing    use   of   tables    by   groups   soliciting    in
    
    airport);    LeClair v. O'Neil, 
    307 F. Supp. 621
     (D.Mass.1969) (table
    
    set up in waiting room at welfare office by welfare advocacy
    
    organization).
    
          In fact, the plaintiffs in this case commonly use tables to
    
    display and distribute their literature.             See International Caucus
    
    of   Labor   Committees       v.   City   of   Chicago,    
    816 F.2d 337
       (7th
    
    Cir.1987);     International Caucus of Labor Committee v. Maryland
    Dept.     of         Transportation,     
    745 F. Supp. 323
          (D.Md.1990);
    
    International Caucus of Labor Committees v. Dade County, Florida,
    
    
    724 F. Supp. 917
     (S.D.Fla.1989).                The evidence presented in this
    
    case demonstrates that the plaintiffs used a table in a manner
    
    commonly associated with expression. The district court noted that
    
    "[t]he tables upon which plaintiffs routinely display several
    
    stacks    of    assorted     books,    pamphlets,      and    newspapers    enhance
    
    plaintiffs' ability to disseminate literature...."                    On both of the
    
    occasions during which the plaintiffs were forced to remove their
    
    table,    the    district     court    found    that   they    were    distributing
    
    literature from the table, and that books and literature were
    
    stacked on it.3
    
         Applying the "commonly associated with protected speech" test
    
    suggested       by    the   Supreme    Court,    I   would    conclude    that   the
    
    plaintiffs' use of tables to facilitate their speech enjoys some
    
    level of First Amendment protection, and that the time, place and
    
    manner analysis should be applied.              This conclusion finds support
    
    in the above cited Supreme Court cases involving the analogous
    
    contexts of newsracks, sound amplification devices, and sound
    
    trucks.     My conclusion also finds strong support in a recent en
    
    banc opinion of the Seventh Circuit.                 The plaintiffs' tables in
    
    this case are very similar to the newsstands at issue in Graff v.
    
    City of Chicago, 
    9 F.3d 1309
     (7th Cir.1993) (en banc).                    One issue
    
         3
          The district court noted that at no time did the
    plaintiffs' table obstruct the sidewalk or in any way impede the
    flow of pedestrian traffic. In fact, the court found that,
    "[f]rom the evidence it appeared that the objection [of
    pedestrians] was to persons attending the display tables and
    approaching pedestrians in an effort to interest them in
    available literature."
    addressed by the en banc court was whether or not a city's
    
    regulation of the erection of a newsstand on public property
    
    implicates the First Amendment. A plurality of five judges thought
    
    that the erection and maintenance of a newsstand on public property
    
    did not enjoy First Amendment protection at all.        See id. at 1314-
    
    17.   However, seven judges disagreed.       See id. at 1327-28 (Flaum,
    
    J., with whom Cudahy, J., joins, concurring) (writing separately to
    
    "emphasize my belief that the erection and maintenance of newspaper
    
    stands qualifies" as "conduct commonly associated with expression
    
    ... [and thus] implicates the First Amendment's protection of
    
    expression.");     id. at 1333-34 (Ripple, J., with whom Cudahy, J.,
    
    and   Rovner,    J.,   join,   concurring)   (finding   "untenable"   the
    
    plurality's position that the placement of a newsstand does not
    
    implicate expressive activity); id. at 1335-36 (Cummings, J., with
    
    whom Bauer, J., and Fairchild, J., join, dissenting) (concluding
    
    that the contention "that Chicago's newsstand ordinance does not
    
    implicate the First Amendment at all because it merely regulates
    
    conduct ... is insupportable."). Thus, a majority of the judges of
    
    the Seventh Circuit concluded that First Amendment concerns were
    
    implicated by the newsstand regulations, and that the time, place
    
    and manner analysis should be employed.
    
          The tables deployed by the plaintiffs here are similar to the
    
    newsstand in Graff, in that the tables provide a method for
    
    displaying expressive materials, and they also enable a single
    
    person to display and distribute a larger volume and a greater
    
    variety of expressive materials more effectively. Functionally, it
    
    would seem to me that the tables in the instant case serve an
    almost identical purpose as the newsstand in Graff.
    
         I note that the majority relies heavily on Seventh Circuit
    
    precedent in reaching its conclusion that tables used to facilitate
    
    speech deserve no First Amendment protection whatsoever.                    See
    
    Majority at 2653 ("Only the Seventh Circuit has directly held that
    
    the erection of a table is not constitutionally protected free
    
    speech.").    However, the majority ignores the Seventh Circuit's
    
    recent en banc Graff opinion.             Moreover, the two older Seventh
    
    Circuit panel opinions upon which the majority relies, Int. Caucus
    
    of Labor Comm. v. City of Chicago, 
    816 F.2d 337
     (7th Cir.1987) and
    
    Intern. Soc. for Krishna Consc. v. Rochford, 
    585 F.2d 263
    , 271 (7th
    
    Cir.1978),    do   not   support    the    majority's   position    that   the
    
    plaintiffs' activity enjoys no First Amendment protection.
    
         Several reasons persuade me that the majority's reading of
    
    these two cases is mistaken.         First, the relevant discussion in
    
    Rochford is ambiguous and cryptic,4 and, as the majority notes,
    
    Rochford 's precedential value is tainted because the relevant
    
    section of the regulation at issue (that dealing with tables) was
    
    not even challenged in that case.          Second, the majority's reliance
    
    upon the subsequent City of Chicago case is inappropriate, because
    
    that case expressly treated the plaintiffs' conduct, including the
    
    erection of tables, as enjoying First Amendment protection.                City
    
    of Chicago, 816 F.2d at 339 ("There has been no contention that
    
    plaintiffs'    activities     are     not     protected    by      the   First
    
         4
          The only issue on appeal in Rochford was a vagueness
    challenge, but the court volunteered a single additional sentence
    nonetheless: "Because this section does not facially restrict
    the exercise of guaranteed rights, we do not find it is
    constitutionally impermissible." Rochford, 585 F.2d at 270.
    Amendment.").5   Finally, even if there had been some implication in
    
    Rochford or City of Chicago that tables used to facilitate speech
    
    enjoy no First Amendment protection, such precedent would have been
    
    undermined by the subsequent en banc opinion in Graff, in which a
    
    majority of the judges on the Seventh Circuit concluded that
    
    newsstands on public property do enjoy First Amendment protection.
    
         I would hold that the district court was correct to apply the
    
    time, place and manner test set forth by the Supreme Court in Ward
    
    v. Rock Against Racism.         The majority declined to review the
    
    district court's conclusions with regard to this test, resting
    
    instead on the belief that no such analysis was necessary given the
    
    absence   of   constitutional    significance   to   be   found   in   the
    
    plaintiffs' table.     I have registered my disagreement with this
    
    analysis above;      but in light of my inability to persuade my
    
    brethren, I see no need to address the district court's application
    
    of the time, place and manner test.
    
    
    
    
         5
          The relevant regulation in City of Chicago prohibited the
    erection of tables or other structures in the public areas of
    O'Hare airport. It appears that the panel majority thought it
    was clear that the restrictions were "[r]easonable time, place
    and manner restrictions, based on the nature of [the] place"
    because of the city's "valid concerns about expediting the
    processing of travelers." City of Chicago, 816 F.2d at 340.