Aaron Ross v. Wayne Early , 746 F.3d 546 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2547
AARON ROSS,
Plaintiff – Appellant,
v.
WAYNE A. EARLY; MAYOR AND CITY COUNCIL OF BALTIMORE;
BALTIMORE CITY POLICE DEPARTMENT,
Defendants – Appellees,
and
RONALD FARLEY; GEORGE NILSON, In His Individual Capacity and
Official Capacities as City Solicitor for the Mayor and City
Council of Baltimore; ELENA DIPIETRO, In Her Individual and
Official Capacities as Chief Solicitor for the Mayor and
City Council of Baltimore; LINDA BARCLAY, In Her Individual
Capacity as former Chief Solicitor for the Mayor and City
and City Council of Baltimore; FREDERICK H. BEALEFELD, III,
In His Individual Capacity and His Official Capacity as
Commissioner of the Baltimore City Police Department,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:09-cv-03255-JFM)
Argued: October 29, 2013 Decided: March 5, 2014
Before KEENAN, WYNN, and THACKER, Circuit Judges.
1
Affirmed by published opinion. Judge Thacker wrote the opinion,
in which Judge Keenan joined. Judge Wynn wrote a dissenting
opinion.
ARGUED: Sean Robert Day, LAW OFFICE OF SEAN R. DAY, Greenbelt,
Maryland, for Appellant. Barron Stroud, Jr., STROUD & PRIEST,
LLC, Baltimore, Maryland; Steven John Potter, BALTIMORE CITY LAW
DEPARTMENT, Baltimore, Maryland, for Appellees. ON BRIEF:
George Nilson, Glenn T. Marrow, BALTIMORE CITY LAW DEPARTMENT,
Baltimore, Maryland, for Appellees Mayor and City Council of
Baltimore and Baltimore City Police Department.
2
THACKER, Circuit Judge:
Appellant Aaron Ross (“Appellant”) brought this action
challenging his March 12, 2008 and March 25, 2009 arrests for
refusing to obey Baltimore City Police Officer Wayne Early’s
(“Officer Early”) repeated orders to confine his leafleting to
the area designated for protest activities outside the First
Mariner Arena (the “Arena”) in Baltimore, Maryland. The
designated protest area was defined by a written policy (the
“Policy”) of the Mayor and City Council of Baltimore
(collectively, the “City”) and the Baltimore City Police
Department (“BCPD”). Appellant claims the Policy is facially
unconstitutional as an invalid time, place, and manner
restriction on First Amendment activity, and that Officer Early
violated his state and federal rights. The district court
granted summary judgment against Appellant on all claims. We
hold, as did the district court, that the Policy is facially
valid under the First Amendment as a reasonable time, place, and
manner restriction, and we find no reversible error as to
Appellant’s remaining claims. Accordingly, we affirm.
I.
A.
The Arena is a large sports and entertainment venue
located in downtown Baltimore. Due to its central location and
the thirteen Mass Transit Administration (“MTA”) bus routes that
3
discharge passengers in the area, the sidewalks and streets
adjacent to the Arena, i.e., West Baltimore Street, Hopkins
Place, West Lombard Street, and South Howard Street, regularly
experience heavy pedestrian and automotive traffic. This is
particularly so between 6:30 and 7:30 p.m. on weekdays, when
approximately 50 MTA buses make stops on the surrounding
streets.
Once a year, the City leases the Arena to Feld
Entertainment for performances of the Ringling Brothers Barnum
and Bailey Circus (the “Circus”). These performances,
ordinarily held in late March, attract large crowds. Between
seven and ten thousand patrons attend the 7:30 p.m. weekday
shows, and putative attendees begin to gather outside of the
Arena’s main entrance, located on the corner of West Baltimore
Street and Hopkins Place, at 6:00 p.m. The performances also
draw a number of animal welfare activists, such as Appellant,
who object to the Circus’s treatment of animals. During the
Circus’s run, these annual demonstrators engage in various
protest activities, including sign-holding, chanting, and
leafleting, on the sidewalks contiguous to the Arena. Prior to
4
2004, the City had no official policy restricting the
demonstrators’ access to the relevant streets. 1
On March 12, 2003, the City, on the recommendation of
Linda Barclay (“Barclay”), then Chief of the Legal Counsel
Division in the City’s Law Department, issued a permit to People
for the Ethical Treatment of Animals (“PETA”) to park a media
truck on the West Baltimore side of the Arena prior to that
night’s Circus performance. Although PETA complied with the
terms of its permit, the position of the truck seriously
obstructed the flow of traffic and caused several MTA buses to
double park. Bus passengers and circus patrons overflowed from
the sidewalk into the street, and BCPD and MTA officers were
called to the scene to sort out the stalled traffic pattern and
disperse the crowd.
Subsequent to this incident, Officer Early and at
least one other BCPD officer sought advice from Barclay as to
constitutionally permissible ways for BCPD to manage the
potential disruption to pedestrian and automotive traffic caused
by protesters during Circus performances. In response to this
request, on March 10, 2004, Barclay issued the Policy, an e-mail
1
On March 13, 2003, Peter Saar, then acting Chief Legal
Counsel for the BCPD, advised Officer Early that “the entire
sidewalk” was available for demonstrators. J.A. 166.
Citations to the “J.A.” refer to the Joint Appendix filed by the
parties in this appeal.
5
to various City and BPCD personnel, setting forth certain
limitations on the location of sidewalk demonstrators prior to
Circus performances. 2 Noting the implementation of this plan had
“worked well,” the Law Department has since reissued the Policy
by e-mail, with minor revisions, for each year of the Circus.
J.A. 197-199. As last revised in 2006, the Policy provides:
1. East Side of the Arena (Hopkins Place) – Any
protestors will be asked to move to the sidewalk
between the Arena and Hopkins Place. This will help
alleviate any congestion problems at the main
entrance. 3
2. North Side of the Arena ([West] Baltimore Street)
– Any protestors will be directed to stay within the
brick area of the sidewalk, approximately 13 feet wide
between the curb and the middle of the sidewalk. This
provides the remainder closer to the building for foot
traffic to access Baltimore Street and main entrances.
3. West Side of Arena (Howard Street) – Any
protestors will be asked to remain on the corner of
Howard and Baltimore Streets or to move to the middle
of the block south of the Howard Street entrance.
This will allow sufficient room for attendees to
access the Arena from the Howard Street entrance.
Id. The Policy further directs police officers to issue at
least two verbal warnings prior to making any arrest for failure
to obey a lawful order. See id.; see also Md. Code Ann., Crim.
2
The parties have stipulated that the e-mails “constitute[]
a policy of the Mayor and City Council of Baltimore and the
Baltimore City Police Department[.]” J.A. 156.
3
Feld Entertainment parks large trailers on the Hopkins
Place plaza during the pendency of the Circus. See J.A. 214,
240.
6
Law § 10–201(c)(3) (a person who “willfully fail[s] to obey a
reasonable and lawful order that a law enforcement officer makes
to prevent a disturbance to the public peace” is guilty of a
misdemeanor).
On March 12, 2008, and March 25, 2009, Appellant was
leafleting within the prohibited area outside the Arena’s West
Baltimore Street entrance. On each occasion, Officer Early
repeatedly warned Appellant to move to the designated area and,
when he refused, arrested him for failing to obey a lawful
order. Appellant subsequently filed suit, alleging common law
and constitutional torts against Officer Early as well as claims
pursuant to 42 U.S.C. § 1983 against the City, BCPD, and other
government officials for violating his First and Fourth
Amendment rights.
B.
The lengthy procedural history of this case is
thoroughly discussed in the district court’s two published
opinions, Ross v. Early, 758 F. Supp. 2d 313 (D. Md. 2010)
(“Ross I”) and Ross v. Early, 899 F. Supp. 2d 415 (D. Md. 2012)
(“Ross II”), and we limit ourselves to summarizing the relevant
portions of the orders currently on appeal.
On December 8, 2010, the district court denied the
parties’ cross-motions for summary judgment on Appellant’s
facial challenge to the Policy. See Ross I, 758 F. Supp. 2d at
7
319-25. Specifically, the court determined the level of
scrutiny applicable to the Policy turned on a disputed question
of material fact, i.e., whether the Policy “was of general
application,” like an ordinance, or “specifically targeted to
circus and animal welfare protestors,” like an injunction. Id.
at 323. The court reasoned that, if the Policy was an
ordinance-like restriction on speech, intermediate scrutiny
would apply and the Policy would be upheld. Id. at 323-25; see
Ward v. Rock Against Racism, 491 U.S. 781, 798-99 (1989) (for
purposes of intermediate scrutiny, a time, place, and manner
restriction on speech is narrowly tailored “‘so long as the
. . . regulation promotes a substantial government interest that
would be achieved less effectively absent the regulation,’” and
it need not be “the least restrictive or least intrusive means”
of serving the government’s significant interests (citation
omitted)). If, however, the Policy was an injunction-like
restriction on speech, heightened scrutiny would apply and the
Policy would fail. Ross I, 758 F. Supp. 2d at 323-25; see
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994)
(for purposes of heightened scrutiny, a time, place, and manner
restriction in the form of an injunction is only narrowly
tailored if “the challenged provisions of the injunction burden
no more speech than necessary to serve a significant government
interest”). The ultimate resolution of this question, the court
8
ruled, was a matter for the jury. Ross I, 758 F. Supp. 2d at
323.
Thereafter, on September 25, 2012, the court granted
Officer Early’s motion for summary judgment as to the claims
against him in his individual capacity. See Ross II, 899 F.
Supp. 2d at 425-32. With respect to Appellant’s claims that
Officer Early violated his First and Fourth Amendment rights
under 42 U.S.C. § 1983, the court concluded that, irrespective
of the Policy’s constitutionality, Officer Early was entitled to
qualified immunity because he had not violated any of
Appellant’s “clearly established” constitutional rights. Id. at
428-29. As for Appellant’s state law claims for false arrest
and false imprisonment, the court concluded that Appellant had
failed to demonstrate the absence of legal justification for his
arrest and detention, a necessary predicate for sustaining such
claims. Id. at 430-31.
Faced with an imminent jury trial that would determine
the level of scrutiny applicable to the Policy, the parties
entered into a stipulation agreeing the Policy “was generally
applicable toward all expressive activity” and “was not targeted
. . . toward restricting the activities of circus and animal
welfare street protesters specifically.” J.A. 156. With the
only remaining factual dispute thus resolved, the district
court, consistent with its prior orders, determined that
9
intermediate scrutiny was the proper standard against which to
measure Appellant’s facial challenge. It thus entered judgment
in favor of the City and BCPD, upholding the Policy as a
reasonable time, place, and manner restriction on protected
speech. See id. at 58.
On appeal, Appellant accepts intermediate scrutiny as
the applicable standard of review and challenges only the
district court’s determination that, under that standard, the
Policy is facially constitutional as a reasonable time, place,
and manner restriction on speech. He further challenges the
district court’s grant of qualified immunity to Officer Early
and its dismissal of his state law claims in Ross II.
II.
We review a district court order granting summary
judgment de novo, viewing the evidence in the light most
favorable to the non-moving party. See Lansdowne on the Potomac
Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d
187, 195 (4th Cir. 2013). The City bears the burden of showing
the Policy satisfies the applicable level of scrutiny. See Bd.
of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480
(1989).
III.
We first address Appellant’s facial challenge to the
Policy as an improper time, place, and manner restriction on
10
protected speech. Applying intermediate scrutiny, we conclude
the Policy is facially valid under the First Amendment.
A.
We apply the time, place, and manner doctrine to
determine whether restrictions placed on protected speech in
public fora violate the First Amendment. See Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989); Clatterbuck v. City of
Charlottesville, 708 F.3d 549, 555 (4th Cir. 2013). Here, it is
undisputed that the Policy regulates protected speech, applies
to public sidewalks that serve as traditional public fora, and
is content-neutral in that it may be “justified without
reference to the content of the regulated speech.” Clark v.
Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).
Consequently, the Policy will be upheld if it is “‘narrowly
tailored to serve a significant governmental interest, and . . .
leave[s] open ample alternative channels for communication of
the information.’” Ward, 491 U.S. at 791 (quoting Clark, 468
U.S. at 293).
Before undertaking this analysis, however, we must
determine the appropriate scope of our narrow tailoring inquiry.
Our dissenting colleague would reject the intermediate standard
articulated in Ward in favor of the heightened requirements set
forth in Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765
(1994). We look to both Ward and Madsen to guide our inquiry.
11
Under Ward and its progeny, a content-neutral
regulation directed at the time, place, or manner of protected
speech is ordinarily subject to intermediate scrutiny. See
Ward, 491 U.S. at 791. A regulation is narrowly tailored under
this standard if it “‘promotes a substantial government interest
that would be achieved less effectively absent the regulation’”
and does not “burden substantially more speech than is necessary
to further the government’s legitimate interests.” Id. at 799(quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).
In this vein, the regulation need not be “the least restrictive
or least intrusive means” of serving the government’s
significant interests. Id. at 798-99.
Where such a regulation takes the form of a court-
issued injunction, however, the Supreme Court has determined
that the “standard time, place, and manner analysis” set forth
in Ward “is not sufficiently rigorous.” Madsen, 512 U.S. at
765. Noting that “generally applicable statute[s]” are
inexorably analyzed under Ward, the Court identified three
“obvious differences” between ordinances and court-ordered
injunctions that, in its view, compelled a heightened tailoring
standard for the latter. 512 U.S. at 764. First, “[o]rdinances
represent a legislative choice regarding the promotion of
particular societal interests,” while injunctions “are remedies
imposed for violations (or threatened violations) of a
12
legislative or judicial decree.” Id. at 764 (citation omitted).
Second, injunctions bind only the parties in a particular case,
not the public at large, and thus “carry greater risks of
censorship and discriminatory application than do general
ordinances.” Id. Third, injunctions are only warranted when
the party to be enjoined has engaged or threatened to engage in
impermissible activity, and as such, injunctions “can be
tailored by a trial judge to afford more precise relief than a
statute[.]” Id. at 765 (citation omitted). These differences,
the Court reasoned, call for a “somewhat more stringent”
application of the narrow tailoring test in the injunction
context. Id. It thus adopted a heightened scrutiny standard,
requiring that “the challenged provisions of the injunction
burden no more speech than necessary to serve a significant
government interest.” Id. (citation omitted).
In the dissent’s view, Ward and Madsen present a
binary choice that must be resolved at the forefront of any
litigation involving restrictions that are neither generally
applicable statutes nor injunctions. The reviewing court, in
other words, is charged with “conduct[ing] a fact-intensive
inquiry to determine whether the restriction is more like an
ordinance or more like an injunction” prior to selecting the
appropriate level of scrutiny. Post at 8-9. Extrapolating from
this principle, the dissent posits that the Policy more closely
13
resembles an injunction than an ordinance because it (1)
involved no legislative choice and (2) is not publicly
available. See id. at 13-14. Thus, the dissent concludes,
heightened scrutiny must apply.
The dissent’s threshold premise, although well-
reasoned, stands on uncertain legal ground. Our court has not
yet expanded Madsen’s rationale beyond the borders of court-
issued injunctions. Indeed, the Third Circuit is, to date, the
only appellate court to have explicitly done so. See McTernan
v. City of York, 564 F.3d 636, 654–55 (3d Cir. 2009) (applying
heightened scrutiny to a targeted and ad hoc “police directive,
issued by officers in the field”); see also Huminski v.
Corsones, 386 F.3d 116, 155 (2d Cir. 2004) (citing Madsen with
approval in analyzing the reasonableness of a targeted
government restriction, issued by court security personnel to a
single protester, in a nonpublic forum). In contrast, the
overwhelming majority of our sister circuits have, post-Madsen,
simply continued to analyze a wide variety of non-legislative
governmental action, neither ordinance nor injunction, under
intermediate scrutiny. See, e.g., Marcavage v. City of N.Y.,
689 F.3d 98, 101, 106 (2d Cir. 2012) (policy instituted by
police); Milestone v. City of Monroe, Wis., 665 F.3d 774, 782-84
(7th Cir. 2011) (city policy in the form of a senior center’s
code of conduct); Marcavage v. City of Chicago, 659 F.3d 626,
14
630-31 (7th Cir. 2011) (ad hoc oral police directives issued by
officers in the field); Saieg v. City of Dearborn, 641 F.3d 727,
730-31, 738-39 (6th Cir. 2011) (policy instituted by police);
Faustin v. City and Cnty. of Denver, Colo., 423 F.3d 1192, 1196-
97, 1200-01 (10th Cir. 2005) (unwritten city policy); Menotti v.
City of Seattle, 409 F.3d 1113, 1124-25, 1131-37 (9th Cir. 2005)
(executive order issued during civil emergency); Hobbs v. County
of Westchester, 397 F.3d 133, 148-50 (2d Cir. 2005) (county
policy in the form of an executive order); Potts v. City of
Lafayette, Ind., 121 F.3d 1106, 1109, 1111-12 (7th Cir. 1997)
(“operations order” drafted by police captain); Int’l Caucus of
Labor Comms. v. City of Montgomery, 111 F.3d 1548, 1150, 1151-52
(11th Cir. 1997) (city policy “in the form of a letter from the
City Attorney”).
The dissent distinguishes these cases on the grounds
that they involve “legislative delegation[s] of policymaking
authority,” “one-of-a-kind security situation[s],” or “obvious
actual notice of the speech restriction.” Post at 14-15. The
import of these purported distinctions is less than clear.
Regardless of how these cases are categorized, they demonstrate
that Madsen has rarely come into play outside of the injunction
context, even in the limited universe of non-legislative
actions. Indeed, to the extent these distinctions are even
relevant, we observe that the instant case falls squarely within
15
the dissent’s “obvious and actual notice” category –- in
addition to the fact that the Policy has been publicly enforced
since 2004, the videos of Appellant’s arrests demonstrate that
the police officers repeatedly advised the protestors (1) where
they were permitted to demonstrate; (2) that the City had a
“law” proscribing expressive activities to certain defined
areas; and (3) that they should call the Law Department if they
wanted more information. Cf. Faustin, 423 F.3d at 1195 (police
officers asked protestor to leave and/or remove her banner
pursuant to unwritten city policy); Int’l Caucus of Labor
Comms., 111 F.3d at 1549 (police officers repeatedly ordered a
group to cease distributing literature from tables, the group
wrote a letter to the city, and the city replied by detailing
its unwritten policy banning such tables); Potts, 121 F.3d at
1997 (policy banning “weapons” posted on signs at rally entry
point).
In any event, we need not definitely resolve this
issue for the purposes of this appeal. Critically, the parties
have stipulated that the Policy is “generally applicable” and
not “targeted . . . toward restricting the activities of circus
and animal welfare street protestors specifically.” J.A. 156.
As set forth in detail by the district court, the injunction-
specific concerns warranting heightened scrutiny identified in
Madsen are largely inapposite in the context of generally
16
applicable municipal policies. See, e.g., Madsen, 512 U.S. at
764 (“‘[T]here is no more effective practical guaranty against
arbitrary and unreasonable government than to require that the
principles of law which officials would impose upon a minority
must be imposed generally.’” (quoting Ry. Express Agency, Inc.
v. New York, 336 U.S. 106, 112–13 (1949))). Consequently, even
if we were to accept the dissent’s initial premise, we would
nonetheless conclude the Policy is not subject to heightened
scrutiny.
Although we share the dissent’s concerns with respect
to the Policy’s non-legislative origins, we do not find these
concerns to be dispositive. The Policy may not represent “a
legislative choice,” Madsen, 512 U.S. at 764, but this fact,
standing alone, does not create an injunction-like restriction
on speech. See, e.g., ante at 14-15. Similarly, the remainder
of the dissent’s concerns –- the procedures surrounding the
Policy’s promulgation and distribution, its allegedly “secret”
nature –- are more like bygone due process and vagueness
challenges than reasons to apply heightened scrutiny. We should
not rush to declare a new rule of constitutional law simply
17
because we would have preferred that Appellant plead a different
case. 4
In short, the parties have stipulated to a set of
facts warranting the application of intermediate scrutiny, and
it is under that rubric we proceed. We must thus determine
whether, under the principles set forth in Ward, the Policy is
“‘narrowly tailored to serve a significant governmental
interest, and . . . leave[s] open ample alternative channels for
communication of the information.’” 491 U.S. at 791 (quoting
Clark, 468 U.S. at 293).
1.
We begin by addressing whether the Policy is
“‘narrowly tailored to serve a significant governmental
interest[.]’” Ward, 491 U.S. at 791 (quoting Clark, 468 U.S. at
293). A regulation is narrowly tailored if it (a) “‘promotes a
substantial government interest that would be achieved less
effectively absent the regulation,’” and (b) does not “burden
substantially more speech than is necessary to further the
4
For similar reasons, the dissent’s concern that our ruling
will provide municipal governments with the incentive to
“develop and enforce speech-restrictive ‘Policies’ without
having to provide even a whisper of advance notice” is overblown
–- the promulgation of such policies would be subject to the
same due process and vagueness challenges that Appellant could
have, but did not, raise here. Post at 16.
18
government’s legitimate interests.” Id. at 799 (citation
omitted). We consider each of these elements in turn.
a.
In order to meet its burden under the first prong of
the narrow tailoring requirement, the City must demonstrate that
the Policy “‘promotes a substantial government interest that
would be achieved less effectively absent the regulation.’”
Ward, 491 U.S. at 799 (citation omitted). The City’s express
purpose in creating the Policy was to reasonably accommodate
both circus protesters and circus attendees while ensuring
protesters “(a) do not block pedestrian movement; (b) do not
block entrances, exits or handicapped ramps; and (c) do not
otherwise create a public safety hazard.” J.A. 167.
Our jurisprudence makes clear that a city’s interest
“‘in maintaining the safety, order, and accessibility of its
streets and sidewalks’” is sufficient to justify a time, place,
and manner regulation. Green v. City Of Raleigh, 523 F.3d 293,
301 (4th Cir. 2008) (quoting Cox v. City of Charleston, 416 F.3d
281, 284 (4th Cir. 2005)). Indeed, as described by the Supreme
Court, “municipal authorities, as trustees for the public, have
the duty to keep their communities’ streets open and available
for the movement of people and property, the primary purpose to
which the streets are dedicated.” Schneider v. State of N.J.,
308 U.S. 147, 160 (1939). On this strength of authority, we
19
have little trouble concluding the City’s asserted interest in
maintaining the flow of pedestrian traffic and ensuring public
safety qualifies as “substantial.”
This conclusion does not end our inquiry, however, as
it is not enough for the City to identify an interest that is
significant in the abstract. See Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 664 (1994) (“That the Government’s asserted
interests are important in the abstract does not mean, however,
that the [challenged law] will in fact advance those
interests.”). 5 Rather, the City must demonstrate the Policy
“materially advances an important or substantial interest by
redressing past harms or preventing future ones.” Satellite
Broad. & Commc’ns Ass’n v. FCC, 275 F.3d 337, 356 (4th Cir.
2001). Although we do not require the government to present a
panoply of empirical evidence in order to satisfy this standard,
cf. United States v. Carter, 669 F.3d 411, 418 (4th Cir. 2012)
(“[T]he Constitution does not mandate a specific method by which
the government must satisfy its burden under heightened judicial
scrutiny.”), it must nonetheless make some evidentiary showing
5
Although Turner involved expressive conduct evaluated
under the test set forth in United States v. O’Brien, 391 U.S.
367, 377 (1968), we have recognized “the O'Brien test is
‘little, if any, different from the standard applied to time,
place, or manner restrictions.’” American Legion Post 7 of
Durham, N.C. v. City of Durham, 239 F.3d 601, 609 n.9 (4th Cir.
2001) (quoting Clark, 468 U.S. at 298).
20
that the recited harms are “‘real, not merely conjectural,’” and
that the Policy “‘alleviate[s] these harms in a direct and
material way.’” Satellite Broad., 275 F.3d at 356 (quoting
Turner, 512 U.S. at 664); see also Marcavage, 689 F.3d at 105
(where the government interest involves reducing a risk to
public safety, it must show “the risk . . . is substantial and
real instead of merely symbolic” (internal quotation marks and
citation omitted)).
With these principles in mind, we are satisfied the
City has adequately demonstrated that the presence of protestors
on the relevant sidewalks presents a plausible threat to the
orderly flow of pedestrian traffic and, concomitantly, public
safety. In reaching this conclusion, we emphasize that the City
is “entitled to advance its interests by arguments based on
appeals to common sense and logic,” Multimedia Publ’g Co. of S.
Carolina, Inc. v. Greenville-Spartanburg Airport, 991 F.2d 154,
160 (4th Cir. 1993), particularly where, as here, the burden on
speech is relatively small. See Bl(a)ck Tea Soc’y v. City Of
Boston, 378 F.3d 8, 14 (1st Cir. 2004) (“[H]eavier burdens on
speech must, in general, be justified by more cogent evidentiary
predicates.”).
The undisputed evidence reveals that the sidewalks
surrounding the Arena suffer from severe congestion during
performances of the Circus and that, at least once -- in the
21
year preceding the issuance of the Policy -- the presence of
protestors caused a significant safety hazard. Inasmuch as the
Policy carves out a passageway dedicated to pedestrian movement,
it materially reduces the risks the City intends to prevent.
The Policy thus promotes the City’s significant interest in a
manner “‘that would be achieved less effectively absent the
regulation.’” Ward, 491 U.S. at 799 (citation omitted). 6
b.
Next, we must ask whether the Policy “burden[s]
substantially more speech than is necessary to further the
government’s legitimate interests.” Ward, 491 U.S. at 799. To
satisfy this standard, the City need not regulate using “the
least restrictive or least intrusive means” available to achieve
its goals. Id. at 798. Put differently, “[s]o long as the
means chosen are not substantially broader than necessary to
6
Appellant devotes much of his brief to the argument that
the City’s interest is illusory because “there is nothing in the
record to suggest that they were remedying an actual threat
leafletting [sic] poses to a significant government interest.”
Appellant’s Br. 28 (emphasis supplied). Appellant misapprehends
the applicable standard. The interest served by the Policy must
be judged “on the relation it bears to the overall problem the
government seeks to correct, not on the extent to which it
furthers the government’s interests in an individual case.”
Ward, 491 U.S. at 801 (emphasis supplied); see also Albertini,
472 U.S. at 688 (“The First Amendment does not bar application
of a neutral regulation that incidentally burdens speech merely
because a party contends that allowing an exception in the
particular case will not threaten important government
interests.”).
22
achieve the government’s interest . . . the regulation will not
be invalid simply because a court concludes that the
government’s interest could be adequately served by some less-
speech-restrictive alternative.” Id. at 800.
The Policy restricts the protestors to three
designated areas adjacent to the Arena, i.e., the outer half of
West Baltimore Street’s 29-foot sidewalk, a designated portion
of Howard Street’s 15-foot sidewalk, and the sidewalk directly
across from the Hopkins Place plaza. The Policy is limited in
both scope and duration, setting aside dedicated channels for
pedestrian traffic on the relevant streets in order to promote
the safety, order, and accessibility of its sidewalks during the
pendency of a heavily attended event. On its face, the Policy
does no more than “target[] and eliminate[] . . . the exact
source of the ‘evil’ it seeks to remedy.” Frisby v. Schultz,
487 U.S. 474, 485 (1988) (citation omitted).
Appellant nonetheless contends the Policy is not
narrowly tailored because a number of “obvious” and “feasible”
alternatives exist that would permit more speech. Appellant’s
Br. 36; see City of Cincinnati v. Discovery Network, Inc., 507
U.S. 410, 418 n.13 (1993) (“numerous and obvious less-burdensome
alternatives” are “a relevant consideration in determining
whether the ‘fit’ between ends and means is reasonable”). He
presents a lengthy list of proposed alternatives, ranging from
23
“leaving things be” to implementing a system of “pro-rated”
leafleting slots for individual protestors. Appellant’s Br. 36.
Many of Appellant’s suggestions are vague and would require
significant effort in implementation and enforcement –- the
“obviousness” and “feasibility” of such alternatives is subject
to debate. In any event, even if such alternatives are
plausible, they do not alter our conclusion that the Policy does
not burden substantially more speech than necessary. See Ward,
491 U.S. at 797 (“[R]estrictions on the time, place, or manner
of protected speech are not invalid simply because there is some
imaginable alternative that might be less burdensome on speech.”
(internal quotation marks and citation omitted)).
Appellant also posits the theory that the Policy is
required to have a “small group exception” exempting a small
number of persons, presumably leafleters, from its purview.
Appellant’s Rep. Br. 9. In support of this bold assertion, he
relies on Cox, in which we held the lack of a small group
exception rendered unconstitutional a city’s policy requiring a
permit for any gathering on public streets or sidewalks. 416
F.3d at 285-86. Inasmuch as Cox involved an exceedingly broad
prior restraint, burdened by a “heavy presumption against its
constitutional validity,” Bantam Books, Inc. v. Sullivan, 372
U.S. 58, 70 (1963), it has limited applicability to this case.
Indeed, in striking down the permit requirement as facially
24
unconstitutional for lack of a “small group” exception, Cox went
on to identify a number of less restrictive means to achieve the
city’s objective -- including “ordinances that ‘regulate only
the volume, location, or duration of [protected] expression,’
rather than subjecting all speech to a permit requirement.” 416
F.3d at 286 (citation omitted). Faced with such clearly
distinguishable authority, we can find no basis for importing
the “small group” exception into the standard time, place, and
manner context.
For all these reasons, we conclude the Policy’s
limited proscription on the locale of expressive activities is
narrowly tailored to address threats to sidewalk congestion and
public safety.
c.
We close our narrow tailoring discussion by addressing
a concern raised by the dissent. In its view, we have neglected
to address an essential element of the narrow tailoring inquiry,
i.e., “whether the restriction operates ‘in such a manner that a
substantial portion of the burden on speech does not serve to
advance [the government’s] goals.’” Post at 17 (alteration in
original) (quoting Ward, 491 U.S. at 799). Measuring the Policy
against this test, the dissent contends, reveals it to be
fatally underinclusive because the “secret nature of the
restrictions” undermines the City’s goals. Id. at 19.
25
The dissent derives its test for underinclusiveness
from the following passage in Ward:
To be sure, th[e] [narrow tailoring] standard does not
mean that a time, place, or manner regulation may
burden substantially more speech than is necessary to
further the government’s legitimate interests.
Government may not regulate expression in such a
manner that a substantial portion of the burden on
speech does not serve to advance its goals. So long as
the means chosen are not substantially broader than
necessary to achieve the government’s interest,
however, the regulation will not be invalid simply
because a court concludes that the government’s
interest could be adequately served by some less-
speech-restrictive alternative.
Ward, 491 U.S. at 799–800 (emphasis supplied) (internal
citations and footnote omitted); see also post at 17. 7 The
emphasized passage bears no obvious relationship to the concept
of underinclusiveness. More to the point, we are aware of no
authority, and the dissent has cited none, that supports its
particular iteration of the narrow tailoring test. See post at
17.
We recognize, in any event, that the limited scope of
a regulation on speech, i.e., underinclusiveness, can serve to
7
Notably, the dissent agrees with our conclusion that the
Policy does not “burden substantially more speech than is
necessary to further the government’s legitimate interests.”
Post at 18. It is difficult to reconcile how a regulation can
“burden [no] more speech than necessary” to further its goals
while simultaneously “regulat[ing] expression in such a manner
that a substantial portion of the burden on speech does not
serve to advance its goals.” Id.26
“‘undermine[] the likelihood of a genuine [governmental]
interest[.]’” F.C.C. v. League of Women Voters of California,
468 U.S. 364, 396 (1984) (second alteration in original)
(citation omitted). The dissent, however, has identified no
such infirmity here. The crux of its theory is simply that the
“secret” nature of the policy renders it constitutionally
infirm. This is, in essence, a challenge to the Policy on
vagueness grounds -– a challenge Appellant has not made. We
will not, as the dissent urges, shoehorn a wholly undeveloped
and unargued vagueness claim into this case under the guise of
narrow tailoring. 8
2.
The final prong of the time, place, and manner test
asks whether the Policy “‘leave[s] open ample alternative
channels for communication of the information.’” Ward, 491 U.S.
8The fact that a few confused or disgruntled protestors
actually caused some amount of pedestrian congestion by
questioning the origin of the Policy does not, in any case,
render the City’s rationale “a challenge to the credulous.”
Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002);
see, e.g., Nat’l Ass'n of Mfrs. v. Taylor, 582 F.3d 1, 17 (D.C.
Cir. 2009) (“‘Because the primary purpose of underinclusiveness
analysis is simply to ensure that the proffered state interest
actually underlies the law, a rule is struck for under
inclusiveness only if it cannot fairly be said to advance any
genuinely substantial governmental interest, because it provides
only ineffective or remote support for the asserted goals, or
limited incremental support.’” (emphasis in original) (quoting
Blount v. SEC, 61 F.3d 938, 946 (D.C. Cir. 1995))).
27
at 791 (quoting Clark, 468 U.S. at 293). In order to satisfy
this standard, the available alternatives need not “be the
speaker’s first or best choice” or “provide[] the same audience
or impact for the speech.” Gresham v. Peterson, 225 F.3d 899,
906 (7th Cir. 2000) (citations omitted). Rather, the relevant
inquiry is simply whether the challenged regulation “provides
avenues for ‘the more general dissemination of a message.’”
Green, 523 F.3d at 305 (quoting Frisby, 487 U.S. at 482-84).
The Policy directs protestors to stand in designated
areas located mere feet from their intended audience, within
full view and earshot of both passersby and circus attendees,
and imposes no restriction on the channels of expression
employed therein. We readily conclude this narrow degree of
geographical separation does not hinder the protestors’ ability
to disseminate their message. See, e.g., Cmty. for Creative
Non-Violence v. Turner, 893 F.2d 1387, 1393 (D.C. Cir. 1990)
(“In considering whether a regulation leaves open ample
alternative channels of communication, the [Supreme] Court has
generally upheld regulations which merely limit expressive
activity to a specific part of the regulated area or to a
limited time frame.”); cf. Hill v. Colorado, 530 U.S. 703, 729
(2000) (“Signs, pictures, and voice itself can cross an 8–foot
gap with ease.”).
28
Although Appellant does not dispute the protestors’
ability to reach their intended audience from the designated
areas via “hold[ing] sign[s],” “chant[ing],” or engaging in
“other form[s] of communication,” Appellant’s Br. 37, he
contends the Policy fails for lack of adequate alternatives
because it does not provide “ample” opportunities to distribute
leaflets. 9 Our inquiry, however, does not rise or fall on the
efficacy of a single medium of expression. The First Amendment
affords no special protection to a speaker’s “favored or most
cost-effective mode of communication,” Johnson v. City & County
of Philadelphia, 665 F.3d 486, 494 (3d Cir. 2011) (citation and
internal quotation marks omitted), and leafleting is not an
inalienable right exempted from all forms of government
regulation. See McCullen v. Coakley, 571 F.3d 167, 180 (1st
Cir. 2009) (“[H]andbilling is not specially protected.”); Horina
v. City of Granite City, 538 F.3d 624, 631 (7th Cir. 2008)
(“[T]he right to handbill is not absolute and federal courts
have determined that governments may enact reasonable
restrictions on handbilling that are also consistent with the
9
To the extent Appellant argues the Policy is tantamount to
a full-scale ban on leafleting, he mischaracterizes the record.
Indeed, his own experts demonstrate that the Policy renders
leafleting less effective, not foreclosed. See J.A. 283-84.
29
First Amendment.” (internal citation omitted)). Appellant’s
arguments to the contrary are thus unavailing.
In short, given the limited nature of the prohibition
in this case, we have no doubt the designated area affords ample
opportunity for protestors to communicate effectively with their
intended audience, whether by leafleting, holding signs, giving
speeches, or engaging in other expressive activities.
B.
Therefore, because the Policy’s limitation on speech
is content neutral, narrowly tailored to achieve a substantial
government interest, and allows ample alternative channels of
communication, it is a permissible time, place, and manner
restriction on speech. Accordingly, the district court
correctly granted summary judgment as to Appellant’s First
Amendment claims against the City and BCPD.
IV.
Having determined the Policy comports with the First
Amendment, we need only briefly address the remaining issues on
appeal. Appellant argues the district court erred in (a)
granting Officer Early summary judgment on Appellant’s First and
Fourth Amendment claims on the basis of qualified immunity; and
(b) granting Officer Early summary judgment on Appellant’s state
law claims. Finding no error, we affirm.
30
A.
We first decide whether the district court properly
granted qualified immunity to Officer Early on Appellant’s First
and Fourth Amendment claims. The qualified immunity defense
“‘protects government officials from civil damages in a § 1983
action insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’” Bland v. Roberts, 730
F.3d 368, 391 (4th Cir. 2013) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 250 (4th Cir. 1999)). Consequently,
“[i]n determining whether a defendant is entitled to qualified
immunity, [we] must decide (1) whether the defendant has
violated a constitutional right of the plaintiff and (2) whether
that right was clearly established at the time of the alleged
misconduct.” Id. (citing Walker v. Prince George’s Cnty., 575
F.3d 426, 429 (4th Cir. 2009)). Appellant’s First and Fourth
amendment claims fail on the first prong of this inquiry.
1.
We begin by considering whether Officer Early violated
Appellant’s First Amendment rights. On this front, Appellant
contends that Officer Early is liable for viewpoint
discrimination in violation of the First Amendment because he
enforced the Policy only against Circus protesters. The record,
however, is devoid of any evidence from which a reasonable juror
31
could find that Officer Early arrested Appellant with a content-
or viewpoint-based discriminatory purpose. See Pahls v. Thomas,
718 F.3d 1210, 1230 (10th Cir. 2013) (“The Supreme Court has
made clear that, for a discrimination claim rooted in the First
Amendment, a plaintiff must show that a government official
‘acted with discriminatory purpose,’” i.e., that he acted
“because of, not merely in spite of, the action’s adverse
effects upon an identifiable group.” (quoting Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009))). Rather, as the district court
found, “[t]here is nothing to suggest that Officer Early . . .
purposely targeted [Appellant] because he was protesting the
Circus.” See Ross II, 899 F. Supp. 2d 415, 429 n.16 (D. Md.
2012). Thus, the district court properly granted Officer Early
qualified immunity on this claim.
2.
Appellant’s Fourth Amendment claim, premised on his
purportedly unlawful arrests, is similarly infirm. The
circumstances of the arrests are straightforward: Officer Early
repeatedly ordered Appellant to move the location of his
leafleting activity in conformance with the Policy, and
Appellant repeatedly refused. Ultimately, after issuing
multiple warnings, Officer Early arrested Appellant –- twice --
for the misdemeanor crime of “willfully failing to obey a
reasonable and lawful order that a law enforcement officer makes
32
to prevent a disturbance to the public peace.” Md. Code Ann.,
Crim. Law § 10–201(c)(3). The district court, relying on these
undisputed facts, concluded that Officer Early had probable
cause to effectuate the challenged arrests “sufficient to
vitiate any claim of [42 U.S.C.] § 1983 liability.” Ross II,
899 F. Supp. 2d at 429. We agree.
A police officer may arrest an individual without a
warrant if he “has probable cause to believe that an individual
has committed even a very minor criminal offence in his
presence[.]” Atwater v. Lago Vista, 532 U.S. 318, 354 (2001).
Probable cause exists when the facts and circumstances known to
the officer are sufficient to warrant an objectively reasonable
person in believing “‘that the suspect has committed, is
committing, or is about to commit an offense.’” Pritchett v.
Alford, 973 F.2d 307, 314 (4th Cir. 1992) (quoting Michigan v.
DeFillippo, 443 U.S. 31, 37 (1979)). “‘Whether probable cause
exists in a particular situation . . . always turns on two
factors in combination: the suspect’s conduct as shown to the
officer, and the contours of the offense thought to be committed
by that conduct.’” Rogers v. Pendleton, 249 F.3d 279, 290 (4th
Cir. 2001) (quoting Pritchett, 973 F.2d at 314).
Turning first to the “contours” of the offense in
question, we observe that Md. Code Ann., Crim. Law § 10–
201(c)(3) applies to offenders who “willfully fail to obey a
33
reasonable and lawful order of a law enforcement officer, made
to prevent a disturbance of the public peace.” Att’y Grievance
Comm’n of Maryland v. Mahone, 76 A.3d 1198, 1210 (Md. 2013).
Under this subsection, the “‘failure to obey a policeman’s
command to move on when not to do so may endanger the public
peace, amounts to disorderly conduct’” in violation of Maryland
law. Id. (citation omitted). This crime “is predicated on the
law enforcement officer issuing a reasonable and lawful order,”
Polk v. State, 835 A.2d 575, 580 n.3 (Md. 2003) (internal
quotation marks omitted), and as such, the command “cannot be
purely arbitrary and . . . not calculated in any way to promote
the public order.” Mahone, 76 A.3d at 1211 (internal quotation
marks and citation omitted).
Prior to each of the disputed arrests, Officer Early
verbally ordered Appellant to move his leafleting activity to
the designated area. This order was directed at enforcing the
Policy, which was, in turn, directed at maintaining the safety,
order, and accessibility of the streets and sidewalks. Inasmuch
as Appellant refused to heed these repeated requests, Officer
Early had probable cause to effectuate both arrests. See
Atwater, 532 U.S. at 354. Officer Early thus did not violate
34
Appellant’s Fourth Amendment rights, and the district court
correctly found him entitled to qualified immunity. 10
B.
With respect to Appellant’s state law claims, the
district court determined his claims of false arrest and false
imprisonment could not be sustained because each requires a
showing that Appellant was deprived of his liberty without legal
justification. See Ross II, 899 F. Supp. 2d at 430 n.16. We
agree with the district court’s legal premise, see Okwa v.
Harper, 757 A.2d 118, 190 (Md. 2000) (“For a successful cause of
action based on false arrest or false imprisonment, the
plaintiff must establish that ‘the defendant deprived him or her
of his or her liberty without consent and without legal
justification.’” (citation omitted)), and its finding that
Appellant failed to make the requisite showing. We conclude,
therefore, that the district court properly granted summary
judgment in favor of Officer Early.
10
Appellant asserts a largely identical claim for
unreasonable seizure under Article 26 of Maryland’s Declaration
of Rights. Inasmuch as Article 26 protects the same rights as
those protected under the Fourth Amendment, see Melgar ex rel.
Melgar v. Greene, 593 F.3d 348, 360 (4th Cir. 2010), this claim,
too, fails upon a finding of probable cause.
35
V.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
36
WYNN, Circuit Judge, dissenting:
Appellant Aaron Ross was arrested in 2008 and again in 2009
after he refused to obey Officer Wayne Early’s orders to stop
leafleting in the middle of the sidewalk adjacent to Baltimore’s
First Mariner Arena, which was hosting the circus. On both
occasions, Ross had sought to exercise his First Amendment right
to protest the circus’s treatment of animals by handing out
leaflets to passersby, and on both occasions, Ross was
conducting himself in a peaceful and unobtrusive manner. The
sole basis for Early’s order was that Ross was violating what
the majority opinion refers to as Baltimore’s “Policy”
pertaining to where circus protestors could stand.
But that “Policy” constituted nothing more than an e-mail—
copied, pasted, and resent with minor modifications year after
year—from Baltimore’s city attorney to about a dozen members of
the police department and city staff. It is undisputed that the
staff attorney’s e-mail that formed the only basis of what the
majority characterizes as “Policy” was neither adopted by the
Baltimore City Council nor disseminated to the public in any
systematic manner. And there is little dispute, if any, that
the only people who knew about the existence of the e-mail were
the unelected city employees who developed and sought to enforce
its restrictions.
37
Simply put, the staff attorney’s e-mail does not constitute
Baltimore’s “Policy.” Additionally, the secret nature of
Baltimore’s restrictions on First Amendment rights warrants the
application of heightened scrutiny because of the potential for
abuse and selective enforcement associated with the lack of
notice and democratic accountability. But even if we were to
allow the parties to agree that our review should be under a
lower standard of scrutiny, Baltimore’s restrictions fail the
narrow-tailoring analysis.
It is axiomatic that our most basic notions of due process
are jeopardized when speech restrictions are developed secretly
in the back offices of city hall rather than publicly in the
council chambers. It seems plausible to me that today’s
decision will encourage local governments to avoid the time-
consuming and politically costly exercise of adopting speech-
restrictive ordinances in favor of developing speech-restrictive
“Policies” at the staff level. Accordingly, I must respectfully
dissent from the differing view of my fine colleagues in the
majority. 1
1
The majority and the district court concluded that
Baltimore’s “Policy” is content neutral and leaves open ample
alternative channels of communication. Because I take issue
only with (1) the level of scrutiny applied to the restrictions,
and (2) the narrow-tailoring analysis that the district court
and the majority conducted, I do not discuss either content
(Continued)
38
I.
Most of the salient facts in this case are covered in the
majority opinion and the district court’s two published
opinions, Ross v. Early, 758 F. Supp. 2d 313 (D. Md. 2010)
(“Ross I”) and Ross v. Early, 899 F. Supp. 2d 415 (D. Md. 2012)
(“Ross II”). A few critical points, however, warrant special
emphasis.
First, Ross was arrested in 2008 and 2009 for failing to
obey Early’s orders, which were “aimed at enforcing the City’s
Protocol.” Ross II, 899 F. Supp. 2d at 427. The district court
explicitly stated that “[t]he record simply does not support”
that Ross was threatening the public safety and that “Ross was
in no way blocking or impeding the free flow of patrons
attempting to enter or exit the building.” Id. Moreover, when
Early was asked during his deposition whether he “ultimately
arrested Mr. Ross for violating a law and not for violating an
e-mail[,]” Early answered, “No, it was both.” J.A. 324. Thus,
Early’s decisions to order Ross to move and to place Ross under
arrest were clearly based on Ross’s failure to conform to the
neutrality or alternative channels of communication in this
dissent.
39
restrictions in the e-mail and not on Ross’s interference with
pedestrian flow or public safety.
Second, the district court found that the significant
government interests that the restrictions were designed to
serve were the preservation of “freedom of movement on public
streets and sidewalks[,]” Ross I, 758 F. Supp. 2d at 322, as
well as “pedestrian safety,” Ross II, 899 F. Supp. 2d at 425.
Third, when Ross was arrested in 2008 and 2009, the
restrictions were in their fifth and sixth years of enforcement.
Nonetheless, the restrictions had not been formally adopted, and
there is no evidence that the City took measures to inform the
public about them. Additionally, the district court noted in
both of its opinions that the police officers’ orders were
somewhat vague and left the protestors confused. See Ross II,
899 F. Supp. 2d at 427–28 (“Further, at one point Ross is simply
told ‘red brick,’ a reference to the bricked outer portion of
the sidewalk, the Protocol’s designated area for
demonstrations.”); Ross I, 758 F. Supp. 2d at 325 (“On the video
showing [Ross’s] arrest, demonstrators are seen repeatedly
expressing confusion about the source of the restrictions and
the interaction with their First Amendment rights. The police
could not dispel this confusion because they were unable to
direct demonstrators to a specific regulation or ordinance and
could only instruct them to call the Law Department.”).
40
Finally, in Ross II, the district court granted summary
judgment to Early and the municipal defendants on all of Ross’s
claims, with the exception of Ross’s Section 1983 claims against
the City and the Baltimore City Police Department, which alleged
that the speech restrictions were unconstitutional. Ross II,
899 F. Supp. 2d at 421, 432–33. The district court determined
that the resolution of these claims turned on a disputed factual
question, namely whether the restrictions were generally
applicable or “targeted toward animal welfare demonstrators
specifically[.]” Id. at 422. The district court held that if
the restrictions were generally applicable, they would be
constitutional by virtue of the more lenient standard of review
that applies to ordinances and statutes. Id. at 421–22
(explaining that under intermediate scrutiny, “a time, place,
and manner restriction on speech is narrowly tailored ‘so long
as the . . . regulation promotes a substantial government
interest that would be achieved less effectively absent the
regulation.’” (quoting Ward v. Rock Against Racism, 491 U.S.
781, 799 (1989))). The district court went on to explain that
if, on the other hand, the restrictions were targeted toward the
circus protestors, then they would be “more analogous to an
injunction than a statute of general application, and failing to
be sufficiently tailored under heightened scrutiny, would be
41
struck down as unconstitutional.” Id. The parties then
stipulated that the restrictions were generally applicable.
II.
The First Amendment prohibits the government from
“abridging the freedom of speech . . . or the right of the
people peaceably to assemble[.]” U.S. Const. amend. I; see also
Gitlow v. New York, 268 U.S. 652, 666 (1925) (incorporating the
freedom of speech against the states) and DeJonge v. Oregon, 299
U.S. 353, 364–65 (1937) (incorporating the freedom of assembly
against the states). “Leafletting and commenting on matters of
public concern are classic forms of speech that lie at the heart
of the First Amendment, and speech in public areas is at its
most protected on public sidewalks, a prototypical example of a
traditional public forum.” Schenck v. Pro-Choice Network of W.
N.Y., 519 U.S. 357, 377 (1997).
But our constitutional speech rights are not unlimited
because 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. 640, 647 (1981). Thus, “even in a
public forum the government may impose reasonable restrictions
on the time, place, or manner of protected speech, provided the
42
restrictions ‘are justified without reference to the content of
the regulated speech, that they are narrowly tailored to serve a
significant governmental interest, and that they leave open
ample alternative channels for communication of the
information.’” Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989) (quoting Clark v. Community for Creative Non-Violence,
468 U.S. 288, 293 (1984)).
I agree with the majority opinion that Baltimore’s “Policy”
is content neutral and leaves open ample alternative channels of
communication. Content-neutral speech restrictions are subject
to one of two standards of scrutiny: heightened or intermediate.
See Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 764–65
(1994). As discussed below, the main difference between the two
standards is the rigor of the narrow-tailoring analysis. Before
reaching the narrow-tailoring analysis, however, a court must
first select the appropriate standard of scrutiny.
A.
Under the first step of the analysis—selecting the
appropriate standard of scrutiny—we are guided by two major
Supreme Court decisions: Ward, 491 U.S. at 781, and Madsen, 512
U.S. at 753. 2 When we review “a content-neutral, generally
2
The majority notes that Ross “accepts intermediate
scrutiny as the applicable standard of review and challenges
only the district court’s determination that, under that
(Continued)
43
applicable statute, instead of an injunctive order, its
constitutionality [is] assessed under the standard set forth in
Ward[.]” Madsen 512 U.S. at 764. Injunctive orders, by
contrast, “require a somewhat more stringent application of
general First Amendment principles . . . .” Id. at 765. Thus,
in general, to determine whether the appropriate standard in a
standard, the Policy is facially constitutional as a reasonable
time, place, and manner restriction on speech.” Ante at 10.
But the district court’s conclusions of law pertaining to the
First Amendment claim at issue here are reviewable by this
Court, regardless of whether Ross “accepts” those conclusions or
not. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99
(1991) (“When an issue or claim is properly before the court,
the court is not limited to the particular legal theories
advanced by the parties, but rather retains the independent
power to identify and apply the proper construction of governing
law.”).
Additionally, although the majority states that “the
parties have stipulated to a set of facts warranting the
application of intermediate scrutiny,” ante at 18, the parties’
stipulations simply cannot convert the e-mails sent by an
unelected city lawyer into an ordinance. Because there is
neither an ordinance nor an injunction, this case does not fit
neatly into either the Ward or the Madsen analysis. It,
therefore, remains our duty to ensure that the appropriate level
of scrutiny is applied. See Marbury v. Madison, 5 U.S. 137, 177
(1803) (“It is emphatically the province and duty of the
judicial department to say what the law is.”). Moreover, even
if the parties attempted to stipulate to the standard of review,
it should go without saying that “[w]e are not bound to accept,
as controlling, stipulations as to questions of law.” Sanford’s
Estate v. Comm’r Internal Revenue, 308 U.S. 39, 51 (1939). See
also Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289–90
(1917) (“If the stipulation is to be treated as an agreement
concerning the legal effect of admitted facts, it is obviously
inoperative; since the court cannot be controlled by agreement
of counsel on a subsidiary question of law.”).
44
case is heightened or intermediate scrutiny, courts must
consider whether the restriction is an injunction or an
ordinance. But as this case illustrates, not every speech
restriction fits neatly into one category or the other. And
when that happens, courts must conduct a fact-intensive inquiry
to determine whether the restriction is more like an ordinance
or more like an injunction.
Madsen’s interpretation of Ward provides a description of
the “obvious differences . . . between an injunction and a
generally applicable ordinance.” Madsen, 512 U.S. at 764.
First, and perhaps most importantly, “[o]rdinances represent a
legislative choice regarding the promotion of particular
societal interests.” Injunctions, “by contrast, are remedies
imposed for violations (or threatened violations) of a
legislative or judicial decree.” Id. Second, injunctions
“carry greater risks of censorship and discriminatory
application than do general ordinances.” Id. “‘[T]here is no
more effective practical guaranty against arbitrary and
unreasonable government than to require that the principles of
law which officials would impose upon a minority must be imposed
generally.” Id. (quoting Ry. Express Agency, Inc. v. New York,
336 U.S. 106, 112–13 (1949)). Third, injunctions “can be
tailored by a trial judge to afford more precise relief than a
45
statute where a violation of the law has already occurred.” Id.
at 765.
If our analysis of the restriction reveals that it is more
like an ordinance, then we would apply the intermediate
standard. But if our analysis reveals that the restriction is
more like an injunction, then we would undertake a “somewhat
more stringent application of general First Amendment
principles[.]” Id. To put it simply, although speech-
restrictive ordinances and injunctions all must be narrowly
tailored, the fit between the speech restriction and the
government’s goals must be closer with an injunction than with
an ordinance. The next section contains a more detailed
description of the differences between Ward’s intermediate-
scrutiny standard and Madsen’s heightened-scrutiny standard.
B.
In Ward, a case involving sound-amplification guidelines
that applied to all users of a bandshell in Central Park, the
Court held that a “regulation of the time, place, or manner of
protected speech must be narrowly tailored to serve the
government’s legitimate, content-neutral interests but that it
need not be the least restrictive or least intrusive means of
doing so.” Ward, 491 U.S. at 798. The Court went on to explain
that the narrow-tailoring requirement is satisfied “‘so long as
the . . . regulation promotes a substantial government interest
46
that would be achieved less effectively absent the regulation.”
Id. at 799 (quoting United States v. Albertini, 472 U.S. 675,
689 (1985)). But the Supreme Court did not stop there. It
continued: “To be sure, this standard does not mean that a time,
place, or manner regulation may burden substantially more speech
than is necessary to further the government’s legitimate
interests. Government may not regulate expression in such a
manner that a substantial portion of the burden on speech does
not serve to advance its goals.” Id. at 799.
In Madsen, a case in which abortion protestors were
enjoined from standing within certain “buffer zones” on public
and private property, the Court explained that the “standard
time, place, and manner analysis is not sufficiently rigorous.”
Madsen, 512 U.S. at 765. It held that the inquiry for an
injunction is whether it burdens “no more speech than necessary
to serve a significant government interest.” Id. In other
words, injunctions may not burden more speech than necessary to
serve a significant government interest, whereas ordinances may
not burden substantially more speech than necessary to serve a
significant government interest. The difference between the
Ward and Madsen standards is that Ward tolerates a degree of
overinclusiveness whereas Madsen demands that a restriction
burden no more speech than required.
47
Madsen did not, however, change the narrow-tailoring
analysis that courts must conduct for ordinances. Even under
the less rigorous intermediate scrutiny, “[g]overnment may not
regulate expression in such a manner that a substantial portion
of the burden on speech does not serve to advance its goals.”
Ward, 491 U.S. at 799. Put differently, an underinclusive
speech restriction also violates the First Amendment, and in
this respect, intermediate scrutiny and heightened scrutiny are
the same. Thus, if a regulation burdens speech in such a way
that it fails to advance the government’s goals, the regulation
violates the First Amendment because it is not narrowly tailored
under either the Madsen standard for injunctions or the Ward
standard for ordinances.
In sum, a properly conducted narrow-tailoring analysis
examines both whether the restriction is over- or
underinclusive. The test for overinclusiveness is more
stringent for an injunction than it is for an ordinance, but the
test for underinclusiveness is identical for both types of
speech restrictions. I turn now to an analysis of the facts of
the case to explain why I would apply heightened scrutiny and
why, even under intermediate scrutiny, Baltimore’s restrictions
would fail a properly conducted narrow-tailoring analysis.
48
III.
A.
Baltimore’s restrictions were imposed neither via an
injunction nor via an ordinance. However, it is clear to me
that the City’s unadopted and secret speech restrictions more
resemble an injunction than an ordinance.
In deciding to apply the less-stringent intermediate
standard, both the district court and the majority found the
generally applicable nature of the restrictions to be
dispositive. This was error because general applicability is
only one characteristic of ordinances. And nothing suggests
that it is somehow a dispositive one. As the Supreme Court
noted in Madsen, and as the majority opinion recognizes here,
ordinances “represent a legislative choice” and carry fewer
“risks of censorship and discriminatory application” than do
injunctions. Madsen, 512 U.S. at 764; ante at 12-13.
By stark contrast, Baltimore’s restrictions involved
absolutely no legislative choice regarding the promotion of
societal interests. Instead, they were simply made up by an
unelected city lawyer. That unelected city employee wrote the
restrictions without notice to the public and without the
opportunity for public input that is generally required for
ordinances passed pursuant to Maryland state law and pursuant to
the Charter for the City of Baltimore. See Md. Code Ann., Local
49
Gov’t § 9-105 (precluding Maryland counties from adopting acts,
ordinances, or resolutions until ten days after a public hearing
and requiring the publication of advance notice of the hearing
and a summary of the proposed enactment in a newspaper of
general circulation once each week for two successive weeks);
Charter of Baltimore City art. III, § 14 (requiring legislative
acts to “be by ordinance or resolution” and precluding
ordinances from taking effect until after three separate
readings). The fact that the public never knew—or even could
have known—about the existence of the restrictions poses risks
of censorship and discriminatory application that are even
greater than those risks with injunctions. After all, when a
court issues an injunction, it is clear who is bound and what
conduct is proscribed. Moreover, the enjoined party’s ability
to appeal provides an avenue of relief that is not available
with a secret regulation.
The majority cites several cases in which other circuits
have applied intermediate scrutiny to generally applicable, but
unadopted, restrictions on speech. Obviously, this Court is not
bound by the decisions of other circuits. But to the extent
that the cited cases are offered to guide our analysis, they are
easily distinguishable from the facts here because they involve
50
a legislative delegation of policymaking authority, 3 a one-of-a-
kind security situation, 4 or obvious actual notice of the speech
restriction. 5
Here, by contrast, Ross had no idea of the existence of the
restrictions until he deposed Early while taking discovery in
this lawsuit—a full six months after his second arrest, and a
year-and-a-half after his first arrest. Indeed, no evidence
suggests that anyone beyond the drafter and a dozen or so
recipients of the e-mail containing the restrictions—all of whom
were people responsible for enforcing the restrictions—had any
knowledge of their existence. There is also no evidence that
3
Saieg v. City of Dearborn, 641 F.3d 727, 730 (6th Cir.
2011) (involving a no-leafleting policy at the Arab
International Festival that was developed by the Dearborn police
department pursuant to a resolution passed by the City Council
that subjected the Festival to “the rules and regulations of the
Police Department”).
4
Marcavage v. City of N.Y., 689 F.3d 98, 105 (2d Cir. 2012)
(involving the City of New York’s demonstration policy that
pertained to the Republican National Convention at Madison
Square Garden, which presented “extraordinary” security
challenges in the wake of the 2001 terrorist attacks). The
demonstrators in Marcavage also had actual notice of the
restrictions.
5
Faustin v. City and County of Denver, Colo., 423 F.3d 1192(10th Cir. 2005) (involving an unwritten total ban on signs and
banners on highway overpasses); Int’l Caucus of Labor Comms. v.
City of Montgomery, 111 F.3d 1548 (11th Cir. 1997) (involving
Montgomery’s ban on the placement of information tables on city
sidewalks and landscaping strips); Potts v. City of Lafayette,
Ind., 121 F.3d 1106 (7th Cir. 1997) (involving the posted
prohibition against entering a KKK rally with any item that
could be used as a weapon).
51
the restrictions were enforced only in emergency or otherwise
unique security situations. Moreover, even if it could be
argued that there was no time to officially adopt the
restrictions initially, the City certainly had time to adopt and
publicize the restrictions at some point during the five years
between their creation and Ross’s first arrest.
Today’s ruling has troubling implications. After today,
generally applicable, albeit secret, speech restrictions are
afforded the same level of scrutiny in the Fourth Circuit as
duly adopted ordinances. The potential for abuse is great.
Local governments will be able to develop and enforce
speech-restrictive “Policies” without having to provide even a
whisper of advance notice regarding the existence or content of
the restrictions. In the event that the public becomes aware of
the secret speech restrictions, there will be no electoral
accountability for the unelected employees who developed the
restrictions. And, perhaps most troubling, judicial relief will
be more difficult to obtain for the person whose speech is
restricted via enforcement of a secret “Policy” than it would be
for a person whose speech is restricted via the enforcement of
an injunction entered against him. The irony, of course, is
that the person restricted by the injunction knows exactly what
speech or conduct is proscribed, whereas the person restricted
52
by the secret “Policy” does not—and cannot—know the same until
it is too late.
For the foregoing reasons, I would apply the more rigorous
narrow-tailoring analysis described in Madsen to Baltimore’s
unadopted, speech restrictions in this case. I turn now to an
explanation of why, even under intermediate scrutiny, I would
hold that Baltimore’s restrictions are not narrowly tailored
and, thus, fail.
B.
Though I believe that heightened scrutiny is the correct
standard to apply in this case, even under the lower
intermediate scrutiny standard applied by the majority,
Baltimore’s restrictions fail the narrow-tailoring analysis. As
I described above, a properly conducted analysis of a statute or
ordinance under intermediate scrutiny requires courts to
analyze, at a minimum, both (1) whether the restriction burdens
substantially more speech than necessary; and (2) whether the
restriction operates “in such a manner that a substantial
portion of the burden on speech does not serve to advance [the
government’s] goals.” Ward, 491 U.S. at 799. If the
restriction is overinclusive, it fails the first part of the
narrow-tailoring analysis. If the restriction is
underinclusive, it fails the second part of the narrow-tailoring
53
analysis. 6 See City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994)
(discussing underinclusiveness in the context of content
neutrality and noting that “[w]hile surprising at first glance,
the notion that a regulation of speech may be impermissibly
underinclusive is firmly grounded in basic First Amendment
principles.” (emphasis in original)).
Here, Baltimore’s goals are simple and legitimate; they are
to ensure “freedom of movement on public streets and
sidewalks[,]” Ross I, 758 F. Supp. 2d at 322, and to ensure
“pedestrian safety[,]” Ross II, 899 F. Supp. 2d at 425. The
record contains ample evidence regarding the congestion on the
sidewalks as circus-goers queue up to enter First Mariner Arena.
Additionally, the restrictions do not ban leafleting altogether.
Rather, they require leafleters to stand in specified locations,
all of which are on the same block as the Arena. Therefore, I
take no issue with the majority’s and district court’s
conclusion that under Ward, the restrictions do not burden
substantially more speech than necessary and are not
overinclusive.
However, it seems plain to me that the restrictions are
underinclusive because they “regulate expression in such a
6
The majority and the district court simply fail to
undertake this second part of the narrow-tailoring analysis.
54
manner that a substantial portion of the burden on speech does
not serve to advance [the government’s] goals.” Ward, 491 U.S.
at 799. It bears repeating both the burden imposed by the
restrictions as well as Baltimore’s goals: the burden on speech
is the prohibition against leafleting on the sidewalks adjacent
to First Mariner Arena, and the goals are to maintain pedestrian
flow and safety. The apparent mismatch between the burden on
speech and Baltimore’s goals is caused by the secret nature of
the restrictions.
The record contains still images and videos of Ross’s 2008
and 2009 arrests. It is evident that, as the district court
found, Ross posed no threat to public safety and did not impede
pedestrians while distributing leaflets. Ross II 899 F. Supp.
2d at 427. It is equally evident that the police caused
pedestrian congestion while they attempted to explain the
restrictions to the (understandably) confused protestors. The
protestors’ reluctance to stop engaging in peacefully conducted
protected speech is understandable because they had neither
actual nor constructive knowledge of the restrictions on their
First Amendment rights. Indeed, an arrest video shows one
protestor calling her lawyer to ask whether the First Amendment
protected her right to distribute leaflets on the public
sidewalk. Unfortunately for that protestor, not even the
world’s best First Amendment lawyer could have given a client
55
proper advice in this situation because the only people who knew
about Baltimore’s First Amendment restrictions were those few
recipients of the city attorney’s e-mail.
As the majority correctly notes, it is the City’s burden to
demonstrate that the speech restrictions meet the applicable
level of scrutiny. See Bd. of Trustees of State Univ. of N.Y.
v. Fox, 492 U.S. 469, 480 (1989). The City has not met that
burden here because the secret restrictions did not, in fact,
advance the legitimate goals of maintaining pedestrian flow and
safety. Accordingly, I would hold that Baltimore’s restrictions
fail even Ward’s narrow-tailoring analysis and are, therefore,
unconstitutional.
IV.
For the foregoing reasons, I would apply the heightened
standard described in Madsen and conclude that Baltimore’s
speech restrictions are unconstitutional because they burden
more speech than necessary to achieve the City’s goals. But
even under the less rigorous standard described in Ward, I would
conclude that Baltimore’s restrictions are unconstitutional
because they burden speech in a manner that does not advance the
City’s goals. Accordingly, I respectfully dissent.
56