Higher Society of Indiana v. Tippecanoe County, Indiana , 858 F.3d 1113 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1089
HIGHER SOCIETY OF INDIANA,
Plaintiff-Appellee,
v.
TIPPECANOE COUNTY, INDIANA,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 4:16-cv-00043 — Philip P. Simon, Judge.
____________________
ARGUED APRIL 20, 2017 — DECIDED JUNE 7, 2017
____________________
Before MANION and ROVNER, Circuit Judges, and COLEMAN,
District Judge. *
MANION, Circuit Judge. The Higher Society of Indiana, a
non-profit advocating for the legalization of marijuana, wants
to hold a rally on the steps of the Tippecanoe County Court-
house in Lafayette, Indiana. Under County policy, the group
* The Honorable Sharon Johnson Coleman, of the United States Dis-
trict Court for the Northern District of Illinois, sitting by designation.
2 No. 17-1089
was required to get its event sponsored by the County Board
of Commissioners before it could take place on the grounds.
Since the Commissioners didn’t want to sponsor Higher Soci-
ety’s event, the County denied the group permission. The or-
ganization successfully sought a preliminary injunction in the
district court, and the County appeals. For the reasons stated
below, we agree with the district court’s thorough opinion
that the County’s policy likely violates the First Amendment.
Therefore, we affirm the grant of the preliminary injunction.
I. Background
In 1999, in response to controversy over a nativity scene
on the courthouse grounds, the Tippecanoe County Board of
Commissioners voted to declare the grounds a “closed fo-
rum.” The Board approved a policy, still in effect today, that
provides:
Only displays and events sponsored and prepared by
a department or office of county government will be
allowed in the windows of the Tippecanoe County Of-
fice Building or on the grounds of the Tippecanoe
County Courthouse. Said displays and events shall be
scheduled through the Board of Commissioners of the
County of Tippecanoe.
Under the policy, groups seeking to hold an event on the
courthouse grounds must seek the Board’s sponsorship. The
County says that it seeks to sponsor only events that essen-
tially echo the County’s views.
After it enacted the closed forum policy, the Board passed
a resolution that permitted the annual ‘Round the Fountain
No. 17-1089 3
Art Fair to take place on the courthouse grounds. 1 Consistent
with the policy, the County sponsors the fair, and County
Commissioners and the maintenance department help with
preparation and logistics. In recent years, the Board has also
sponsored other events. One was a rally celebrating the 95th
anniversary of the League of Women Voters in 2015, held just
after the close of business on a weekday with about 100 peo-
ple in attendance. The Fraternal Order of Police also held a
sponsored event to pay respects to fallen police officers. That
event took place at lunchtime on a weekday. Finally, the Board
has issued a proclamation for Child Abuse Prevention and
Awareness Month in 2015 and 2016, which included events
held at lunchtime on a weekday each year led by the court-
appointed Special Advocate and the Tippecanoe Child Abuse
Prevention Council.
However, several groups ended up making use of the
courthouse grounds without the County’s permission. First, a
group known as Eyes on Lafayette was too late to get author-
ization for its planned candlelight vigil against bullying. De-
spite being told that it would have to hold the event on the
sidewalk, the group made use of the courthouse steps and
1 The ‘Round the Fountain Art Fair has been held in Lafayette each
spring since 1973. Its website describes the fair as “an annual destination
location that features up to 100 artists from around the nation, showcasing
their talent and works in a variety of pieces and media.” Round The Foun-
tain Art Fair, About the Fair, http://www.roundthefountain.org/about/
(last visited May 2, 2017). It has “become known as one of the premier
juried fine art fairs in the Midwest.” Id. The ‘Round the Fountain Art Fair
committee purchases a piece of art each year “to continue the permanent
collection exhibited in the halls of the Tippecanoe County Courthouse,
which is a work of art in itself.” Id.
4 No. 17-1089
more than 50 people attended. Second, about 60 people at-
tended a rally in support of Planned Parenthood that spilled
over onto the grounds during the day on a Monday in 2015.
There was also a daytime march in support of Syrian refugees
during a workday in 2015 that attracted about 70 people and
made some use of the grounds. And finally, a June 2016 rally
of the Greater Lafayette Moms in favor of Gun Sense spilled
over onto the courthouse steps despite not being sponsored.
Because of a misunderstanding involving a County offi-
cial, Higher Society also held an event on the steps during this
time. Someone apparently was under the mistaken belief that
Higher Society’s event had been sponsored, and so told the
group it could hold its rally. At the event, speakers used a po-
dium located on the balcony above the courthouse door and
addressed a crowd of around 40 people. Higher Society also
hung banners from the balcony and used an amplifier until a
Commissioner asked the group to stop.
After its first rally, Higher Society sought permission from
the Board to hold a second event on the courthouse steps. The
Board declined to sponsor the event, citing the closed forum
policy and indicating that no Commissioners were interested
in referring the matter to the full Board. Higher Society then
sought a preliminary injunction in the Northern District of In-
diana, which Chief Judge Simon issued on December 19, 2016.
Higher Society of Ind., Inc. v. Tippecanoe Cty., 4:16-CV-00043,
2016 WL 7367791 (N.D. Ind. Dec. 19, 2016). The County timely
appealed.
No. 17-1089 5
II. Discussion
A. Preliminary Injunction Standard
To be entitled to preliminary relief, Higher Society “must
establish that [it] is likely to succeed on the merits, that [it] is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of the equities tips in [its] favor, and
that an injunction is in the public interest.” Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008). However, this is a free
speech case, and “in First Amendment cases, ‘the likelihood
of success on the merits will often be the determinative fac-
tor.’” Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 589
(7th Cir. 2012) (quoting Joelner v. Vill. of Washington Park, 378
F.3d 613, 620 (7th Cir. 2004)). That is because even short dep-
rivations of First Amendment rights constitute irreparable
harm, and “the balance of harms normally favors granting
preliminary injunctive relief because the public interest is not
harmed by preliminarily enjoining the enforcement of a stat-
ute that is probably unconstitutional.” Id. at 589–90. So “the
analysis begins and ends with the likelihood of success on the
merits of the [First Amendment] claim.” Korte v. Sebelius, 735
F.3d 654, 666 (7th Cir. 2013).
B. Likelihood of Success
There are two ways that Tippecanoe County could plausi-
bly defend the use of its policy to bar Higher Society’s event
from the courthouse grounds. First, it could argue that the
courthouse grounds are a nonpublic forum and its speech reg-
ulations are “viewpoint-neutral and reasonable.” See Ander-
son v. Milwaukee Cty., 433 F.3d 975, 979 (7th Cir. 2006). If not
that, the County could assert that its sponsored events are
6 No. 17-1089
government speech to which the First Amendment is inappli-
cable. See Pleasant Grove City v. Summum, 555 U.S. 460, 469
(2009).
The County has conceded—in the district court, in its
brief, and at oral argument—that its policy is not viewpoint-
neutral. This concession means that its policy would be un-
constitutional even under the most restrictive forum analysis.
Therefore, as the County acknowledged at oral argument, the
only way it can win this case is if the events it sponsors on the
courthouse grounds are government speech.
“The Free Speech Clause restricts government regulation
of private speech; it does not regulate government speech.”
Id. at 467. Governments may speak for themselves and are not
required simultaneously to express an opposing viewpoint.
Id.; Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.
Ct. 2239, 2246 (2015). Yet it may be difficult in many cases to
draw the line between government speech and private
speech. In Summum and Walker, the Supreme Court has care-
fully explained the proper analysis in such cases. A brief dis-
cussion of those cases will be instructive.
In Summum, the Court considered whether a permanent
monument donated by a private party to be placed in a public
park constituted government speech. A religious organization
sought to erect a stone monument to be included in a display
alongside several others, including the Ten Commandments
and a September 11 memorial. Summum, 555 U.S. at 465.
When the city council rejected the request, the organization
sued, arguing that the city park was a traditional public forum
and the denial of the monument thus violated the First
Amendment. The Supreme Court disagreed, holding that
No. 17-1089 7
“[p]ermanent monuments displayed on public property typi-
cally represent government speech.” Id. at 470.
The Court based its conclusion primarily on three obser-
vations. First, it noted that government entities “have long
used monuments to speak to the public.” Id. Second, monu-
ments “commonly play an important role in defining the
identity that a city projects to its own residents and to the out-
side world.” Id. at 472. Third, governments exercise control
over the messages presented by the monuments. Id. at 471–72.
In general, accepted monuments are “meant to convey and
have the effect of conveying a government message, and they
thus constitute government speech.” Id. at 472.
In Walker, the Court considered these factors and con-
cluded that the design on a license plate is government
speech, even if it is submitted by a member of the public
through a state program encouraging such submissions. The
Court noted that, like monuments in public parks, states have
traditionally used license plates to convey a government mes-
sage. Walker, 135 S. Ct. at 2248. Second, it observed that “a per-
son who displays a message on a Texas license plate likely in-
tends to convey to the public that the State has endorsed the
message.” Id. at 2249. And third, as in Summum, the govern-
ment retained the final approval authority over the designs,
making sure that it did not display messages with which it
disagreed. Id.
In short, the relevant factors are: (1) whether governments
have traditionally spoken to the public in the manner at issue;
(2) whether observers of the speech at issue would reasonably
interpret it to be that of the government; and (3) whether the
government maintained editorial control over the speech. See
id. at 2247. Contrary to Walker and Summum, all three factors
8 No. 17-1089
in this case indicate that events on the courthouse grounds
contain private speech, not the expression of Tippecanoe
County.
First, the record does not indicate any history of the court-
house grounds being used for government speech, nor is
there any history of governments using events conducted by
private groups to deliver their own messages. Second, unlike
permanent monuments and state license plates, reasonable
people would not attribute to the government the views ex-
pressed at protests and rallies on government property. As the
district court correctly put it, “reasonable observers know that
people who want to protest will find symbolic public prop-
erty to do it on, and that, in many cases, the First Amendment
guarantees them the right to march peacefully and make
speeches there, even if the government doesn’t like what they
are saying.” Higher Society, 2016 WL 7367791, at *5. 2 Finally,
the County maintains no editorial control of individual speak-
ers (or individual pieces of art at the ‘Round the Fountain Art
Fair) at each event. Presumably, an individual speaker or art-
ist could express her views on any topic, and the County may
not share those views. Without such control, it is hard for the
County to maintain that the private speakers are really the
County’s alter ego. 3
2 For example, were Higher Society permitted to hold its event on the
grounds, we seriously doubt that reasonable citizens of Lafayette will be-
lieve, solely based on the rally’s location, that their County government
has endorsed marijuana legalization.
3 Our decision in Illinois Dunesland Society v. Illinois Department of Nat-
ural Resources, 584 F.3d 719 (7th Cir. 2009), is not to the contrary. In that
case, we held that a state park did not have to display pamphlets intended
to criticize the park or scare people away from it. The pamphlets that a
No. 17-1089 9
Because the events on the courthouse grounds are private
speech, Tippecanoe County’s policy violates the First Amend-
ment. While a full record probably won’t change the outcome
on this question, at this point we hold only that Higher Soci-
ety is likely to succeed on its First Amendment claim.
C. Other Preliminary Injunction Factors
As we noted above, likelihood of success on the merits is
usually the determinative factor when a preliminary injunc-
tion is sought on First Amendment grounds. That is true here.
Therefore, we hold that the district court did not abuse its dis-
cretion when it issued the preliminary injunction.
III. Conclusion
We understand that the County is in a difficult position. It
would like to open the courthouse grounds to some events
that it believes add cultural or civic value to the community,
yet it doesn’t want to create a public forum for everything un-
der the sun. It may still be possible for the County to accom-
modate some of its concerns (such as maintaining the Art
Fair) while closing the grounds to Higher Society’s rally and
not violating the First Amendment, but the current policy will
not suffice. Because the County’s policy restricts private
speech and it is not viewpoint-neutral, it violates the First
state park chooses to display are quintessential government speech. Pam-
phlet racks at state parks aren’t traditional public fora or places where one
would expect to see messages not endorsed by the park service. To that
end, the park service controls the content of the brochures. Tippecanoe
County does not do the same with the content of the speeches on its court-
house grounds.
10 No. 17-1089
Amendment. Higher Society was entitled to a preliminary in-
junction. We affirm the district court’s well-reasoned opinion.
AFFIRMED.