Johnson v. Minneapolis Park & Recreation Board , 729 F.3d 1094 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-2419
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Brian Johnson,
Plaintiff - Appellant,
v.
Minneapolis Park and Recreation Board,
Defendant - Appellee.
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: March 12, 2013
Filed: September 11, 2013
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Before WOLLMAN, BYE, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Brian Johnson appeals the district court’s denial of his motion for a preliminary
injunction against enforcement of a local regulation that restricts literature distribution
in a public park during the Twin Cities Pride Festival. The district court ruled that
Johnson’s claim did not have a sufficient likelihood of success on the merits to
warrant an injunction. This court, however, enjoined the regulation pending appeal,
and we now reverse and remand for further proceedings.
I.
The Minneapolis Park and Recreation Board (“the Board”) oversees Loring
Park, a 42-acre public park in downtown Minneapolis. For more than thirty years,
Loring Park has been the site of the two-day Pride Festival. The festival is hosted by
Twin Cities Pride, a nonprofit organization whose stated mission is to “[c]reate
experiences that bring the greater [gay, lesbian, bisexual, and transgender] community
together.”
During the Festival, Twin Cities Pride’s use of Loring Park is nonexclusive, and
admission to the park remains free and open to the public. The Festival includes three
categories of official participants: sponsors, who advertise in exchange for
compensating Twin Cities Pride; vendors, who sell products and solicit donations; and
exhibitors, who display and distribute information about their organizations.
Participants must apply to Twin Cities Pride to operate booths from which they
may distribute or sell their wares. The organization will sanction participants only if
they sign a “non-discrimination statement,” providing that the applicant does not
“discriminate in hiring, employment, participation or services rendered based on the
fact or perception of a person’s race, color, creed, religion, national origin, ancestry,
age, sex, sexual orientation, gender identity, domestic partner status, marital status,
disability, or Acquired Immune Deficiency Syndrome or HIV status.” Gay-Lesbian-
Bisexual-Transgender Pride/Twin Cities v. Minneapolis Park & Recreation Bd., 721
F. Supp. 2d 866, 868 (D. Minn. 2010) (“GLBT Pride I”).
Johnson is a self-described “professing Evangelical Christian,” who considers
distributing copies of the Bible “essential to his expression.” He began distributing
Bibles at the Festival in approximately 1995; in many years thereafter, he secured an
exhibitor’s booth from Twin Cities Pride. In 2009, however, Twin Cities Pride denied
Johnson’s application for a booth. Johnson signed an application and the non-
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discrimination statement, but the Festival Manager asked him three more
questions: whether his activities at the Festival would “meet the intentions” of the
non-discrimination statement; whether he believed that homosexuality or homosexual
sex acts are sins; and whether he believed that sexual intercourse between persons of
the same sex is a perversion. Johnson replied that he would “gladly hire a
homosexual at my business if he/she could do the job,” but expressed his belief that
the Bible specifies homosexual conduct as a sin. He elaborated that he tries to avoid
the subject of homosexuality when passing out Bibles at the Festival, and he does not
believe that homosexual or heterosexual temptations, in and of themselves, constitute
sin. The Festival Manager was not satisfied by this reply and declined to approve the
application. Having no booth, Johnson attempted to distribute Bibles while walking
through the park during the Festival, but Minneapolis police arrested him for
trespassing when he refused to leave. The charge was later dismissed.
In anticipation of the 2010 Festival, Johnson requested and received from the
Board assurances that he would not be forbidden to distribute literature within Loring
Park during the Festival. After learning that the Board intended to permit Johnson to
distribute Bibles, Twin Cities Pride brought an action against the Board pursuant to
42 U.S.C. § 1983, alleging that allowing Johnson to distribute literature during the
Festival would violate Twin Cities Pride’s rights under the First Amendment. See
generally GLBT Pride I, 721 F. Supp. 2d 866. The district court granted Johnson’s
motion for permissive intervention, id. at 869 n.1, and denied Twin Cities Pride’s
motion for a temporary restraining order. Id. at 876. The court ruled that “[a]s a
festival attendee in a public forum, Johnson is entitled to speak and hand out literature,
quintessential activities protected by the First Amendment, so long as he remains
undisruptive.” Id. at 875. Johnson attended the 2010 Festival and distributed Bibles
without incident.
In a footnote to its 2010 ruling, however, the district court responded to Twin
Cities Pride’s request for “guidance” and suggested that “a compromise may be
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available.” Id. at 875 n.2. The court theorized that “Twin Cities Pride could designate
‘free speech zones’ on the Pride Festival grounds in which anyone who wishes to
distribute literature or display signage may do so.” Id. The suggestion continued:
[Park Board] police could enforce that area as a content-neutral
restriction—assuming that those free speech zones provide attendees
with ample alternative channels of expression, and assuming that oral
communication would be permitted throughout the public forum.
Attendees would thus have the opportunity to reach the minds of willing
listeners, and Twin Cities Pride would have the opportunity to disclaim
the content of such expression.
Id. (internal quotation and citations omitted).
Litigation resumed after the 2010 Festival. Twin Cities Pride amended its
complaint to remove all references to Johnson. The amended pleading continued to
assert that display of signs and distribution of literature by third parties within the
Festival would violate the organization’s First Amendment rights. Rather than focus
on Johnson specifically, however, the amended complaint sought an order providing
for “free speech zones,” as suggested by the district court, and prohibiting the
distribution of literature and the display of signage not authorized by Twin Cities
Pride, except in booths and “free speech zones.” Am. Compl. at 9, Gay-Lesbian-
Bisexual-Transgender Pride/Twin Cities v. Minneapolis Park & Recreation Bd., Civ.
No. 10-2579, 2011 WL 1300381 (D. Minn. April 4, 2011) (“GLBT Pride II”). In light
of these amendments, the court revoked Johnson’s intervenor status, finding “no
indication of collusion between Twin Cities Pride and [the Board],” and determining
that “[the Board] can adequately represent Johnson’s remaining interest.” GLBT
Pride II, 2011 WL 1300381, at *4. But the Board and Twin Cities Pride soon
thereafter reached a settlement agreement that prevents Johnson from personally
distributing literature within the Festival.
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The settlement agreement provided that “because of the size of the Pride
Festival and security concerns,” the only venues for distributing materials in Loring
Park during the Festival would be (1) Festival booths, which must be approved by
Twin Cities Pride, (2) “Board-sponsored booth[s]” within Loring Park but outside the
confines of the Festival, and (3) a “material drop area” within the Festival, where any
person may leave noncommercial literature unattended. Consistent with the
agreement, the Board later adopted a resolution that prohibits an attendee like Johnson
from personally distributing literature in Loring Park during the Festival except from
a booth.
The 2011 Festival proceeded according to the settlement and corresponding
Board resolution. On a map of the 2011 Festival grounds, produced and distributed
by Twin Cities Pride, the area designated for Board-sponsored booths contained an
image of the word “Pride” in a red circle with a red line through it. Johnson dubs this
a “No Pride Zone”; Twin Cities Pride says it used the image to indicate that the area
was not part of the Festival; the Board responds that it had nothing to do with the
design of the map and did not approve the inclusion of the symbol. Twin Cities Pride
also placed a sign next to the material drop area stating that the area was for
“individuals and groups that do not support the message of Twin Cities Pride”; the
Board removed the sign during the Festival. In 2011, Johnson declined to seek a
Board-sponsored booth and placed no literature in the drop area.
Johnson then brought this action, seeking relief that included a preliminary
injunction against enforcement of the regulation on literature distribution. The case
was assigned to a different judge than was the previous litigation. The court denied
Johnson’s motion, concluding that he had not shown a sufficient likelihood of success,
because the regulation constitutes a content-neutral time, place, and manner restriction
that is narrowly tailored to serve the Board’s significant interest in crowd control. A
panel of this court (Loken, Bye, and Gruender, JJ.) granted an injunction pending
appeal in 2012, and this panel renewed that injunction in 2013.
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II.
To resolve a motion for a preliminary injunction, the district court must
consider (1) the threat of irreparable harm to the movant, (2) the balance between that
harm and the injury that granting the injunction would inflict on other interested
parties, (3) the probability that the movant will succeed on the merits, and (4) whether
the injunction is in the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d
109, 113 (8th Cir. 1981) (en banc). In a challenge to a federal statute, state statute, or
other “government action based on presumptively reasoned democratic processes,”
the movant must show that he is “likely to prevail on the merits.” Planned
Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 731-33 & n.4 (8th Cir. 2008)
(en banc). We review Johnson’s constitutional claims de novo, United States v.
Petrovic, 701 F.3d 849, 854 (8th Cir. 2012), and “we are obliged to make a fresh
examination of crucial facts.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of
Boston, 515 U.S. 557, 567 (1995).
The parties agree that Johnson’s distribution of Bibles is protected speech, see
Murdock v. Pennsylvania, 319 U.S. 105, 108-09 (1943), that Loring Park is a
traditional public forum, see, e.g., Christian Legal Soc. Chapter of the Univ. of Cal.,
Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 2984 n.11 (2010), and that it
remains so during the Festival. Cf. Heffron v. Int’l Soc. for Krishna Consciousness,
Inc., 452 U.S. 640, 655 (1981) (considering ban on distribution of literature outside
booths in a “limited public forum,” where attendees paid for admission to state
fairgrounds). The parties disagree about whether the restriction is content-based—that
is, whether the challenged regulation treats speakers differently based on the content
of their messages. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293
(1984). The Board contends that the rule is content-neutral, because it limits “all
distribution of literature in Loring Park during the Pride Festival except from a Pride
sponsored booth or a Board sponsored booth,” regardless of content. See Saieg v. City
of Dearborn, 641 F.3d 727, 735 (6th Cir. 2011). Johnson counters that because the
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Board knows that Twin Cities Pride exercises its right to condition Festival booths on
agreement with its message, the Board’s regulation “effectively carves out a content-
based exception to its no-literature-distribution-within-the-festival policy.” In other
words, the Board’s regulation means that only persons with viewpoints approved by
Twin Cities Pride may distribute literature within the Festival. Cf. Heffron, 452 U.S.
at 649 (“The method of allocating space is a straightforward first-come, first-served
system. The Rule [prohibiting solicitation and distribution of literature] is not open
to the kind of arbitrary application that this Court has condemned as inherently
inconsistent with a valid time, place, and manner regulation because such discretion
has the potential for becoming a means of suppressing a particular point of view.”).
Assuming the Board’s regulation should be treated as content-neutral, we
conclude that Johnson has demonstrated a likelihood of success on the merits. To
justify a content-neutral restriction on the time, place, and manner of protected speech
in a public forum, the Board must show that the restriction is “narrowly tailored to
serve a significant governmental interest, and . . . leave[s] open ample alternative
channels for communication of the information.” Clark, 468 U.S. at 293. This narrow
tailoring requirement means not only that the regulation must “promote[] a substantial
government interest that would be achieved less effectively absent the regulation,”
Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989) (internal quotation omitted),
but also that “the factual situation demonstrates a real need for the government to act
to protect its interests.” Ass’n of Cmty. Orgs. for Reform Now v. St. Louis Cnty., 930
F.2d 591, 595 (8th Cir. 1991). In other words, it is not enough for the Board to recite
an interest that is significant in the abstract; there must be a genuine nexus between
the regulation and the interest it seeks to serve. See United States v. Grace, 461 U.S.
171, 182-83 (1983); see also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664
(1994) (plurality opinion).
The Board contends that restricting literature distribution to booths during the
Festival is narrowly tailored to serve its significant interest in maintaining the orderly
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flow of people, providing access for security and emergency vehicles, and facilitating
the activities of the participants of the Festival. The Board points to an affidavit
presented by the Executive Director of Twin Cities Pride, which describes an incident
at the 2010 Festival when “a group of animal rights activists” distributed “graphic”
literature depicting animal cruelty from outside a booth.
As evidence that congestion exists at the Festival more broadly, the Board cites
past aggregate attendance statistics for the entire Pride Celebration (of which the
Festival is only one event), and Twin Cities Pride’s predicted attendance figures for
the 2012 Festival. The Board relies on the Executive Director’s assertions that “there
were nine ambulance calls on one day of the 2011 Pride Festival,” and that paths must
be clear to allow for “the staging and delivery of supplies to food and beverage or
other vendors.” The Board thus reasons that the restriction on literature distribution
serves the legitimate interest in crowd control, because literature distribution from
outside of booths increases congestion and congestion impedes emergency, security,
and delivery vehicles.
In the abstract, controlling crowds can constitute a significant governmental
interest that bears directly on public safety. See Heffron, 452 U.S. at 650-51. We
disagree with the district court, however, that the Board made a satisfactory showing
that the literature distribution regulation is narrowly tailored to serve that interest in
this instance.
The Board presented little evidence that forbidding literature distribution
furthers a significant governmental interest at the Festival. The Board’s reliance on
the assertion by Twin Cities Pride’s Executive Director that literature distribution
causes congestion is insufficient. Her only specific evidence on the topic was that
distribution of “graphic” literature related to animal cruelty in 2010 led to “complaints
from participants because of the traffic congestion caused by these non-participants
handing out literature from outside of a booth and because the participants themselves
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were required to remain in their booths when handing out literature or materials.”
This affidavit suggests that above all the Festival participants were unhappy that their
own literature distribution was confined to booths. It makes little sense for
participants to have complained simultaneously that (1) literature distribution outside
of booths caused problematic congestion, and (2) they too should have been permitted
to distribute literature from outside their booths, thereby creating more problematic
congestion. The Executive Director’s averment is at best ambiguous, and the Board
offered no other evidence to show a real need to prohibit literature distribution on
account of congestion. Cf. Saieg, 641 F.3d at 737 (concluding that city’s interest in
curtailing expression on sidewalks was “not substantial,” where sidewalks remained
open to the public during a festival, and were not restricted to attendees paying an
admission fee as in Heffron).
The regulation is also underinclusive. Where a regulation restricts a medium
of speech in the name of a particular interest but leaves unfettered other modes of
expression that implicate the same interest, the regulation’s underinclusiveness may
“diminish the credibility of the government’s rationale for restricting speech in the
first place.” City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994). In other words,
“[u]nderinclusiveness raises serious doubts about whether the government is in fact
pursuing the interest it invokes, rather than disfavoring a particular speaker or
viewpoint.” Brown v. Entm’t Merch. Ass’n, 131 S. Ct. 2729, 2740 (2011).
Johnson produced evidence that the Board permitted at least one street
performer on the pathways in Loring Park during the 2011 Festival. The district court
accepted that performers are permitted in the park during the Festival, but concluded
nonetheless that the literature distribution regulation is “not so underinclusive as to
be unconstitutional,” because performers are less likely to cause congestion than
literature distributors. We think it obvious, however, that a street performer’s very
purpose is to draw a crowd. Buskers like mimes, musicians, and living statues aim to
attract an audience, and passersby must stop to listen or observe. With literature
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distribution, by contrast, a recipient “need not ponder the contents of a leaflet or
pamphlet in order mechanically to take it out of someone’s hand.” United States v.
Kokinda, 497 U.S. 720, 734 (1990) (plurality opinion). “‘The distribution of literature
does not require that the recipient stop in order to receive the message the speaker
wishes to convey; instead, the recipient is free to read the message at a later time.’”
Id. (quoting Heffron, 452 U.S. at 665 (Blackmun, J., concurring in part and dissenting
in part)); see United States v. Belsky, 799 F.2d 1485, 1489 (11th Cir. 1986) (“A
passerby can take a pamphlet and keep walking.”).
At oral argument before this court, the Board asserted that if performers created
a crowding problem during the Festival, then Board officials would “move them on”
to alleviate the congestion. But if this approach suffices to cure congestion created
by entertainers who seek to attract crowds, then we fail to see why a similar
exhortation would not be sufficient to alleviate any crowding caused by a stationary
distributor of literature. That the Board is satisfied with informal case-by-case action
with respect to performers but insists on a blanket ban on distribution of literature
outside booths diminishes the credibility of its asserted rationale.
We note also that Twin Cities Pride’s permit application for the 2012 Festival
said the organization would be collecting money in connection with the Festival, and
explained that “volunteers will be near entrances to request donations for MN
United—the campaign to defeat the marriage amendment.” The Board issued a permit
for the 2012 Festival, and nothing in the record or submissions of the parties indicates
that the permit was conditioned on Twin Cities Pride’s abandoning its proposed
solicitation.
Solicitation is a more disruptive form of speech than literature distribution.
“‘Solicitation requires action by those who would respond: The individual solicited
must decide whether or not to contribute (which itself might involve reading the
solicitor’s literature or hearing his pitch), and then, having decided to do so, reach for
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a wallet, search it for money, write a check, or produce a credit card.’” Int’l Soc. for
Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 683 (1992) (quoting Kokinda, 497
U.S. at 734). Solicitation thus impedes the normal flow of traffic, id. at 684, whereas
literature distribution need not, id. at 690 (O’Connor, J., concurring in part and
dissenting in part), and the Supreme Court in one instance approved a ban on
solicitation while invalidating a prohibition on distribution of literature. Id. at 685;
Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 830, 831 (1992) (per
curiam). If the Board approves of stationary solicitors raising money outside booths
and “near entrances” to the Festival, then we are hard pressed to understand how it can
justify barring Johnson from engaging in a less congestive form of expression at the
same locations.
For these reasons, we conclude that Johnson has shown on this record a
likelihood of success on his claim that the literature distribution regulation is not
narrowly tailored to serve a significant governmental interest. Johnson also satisfies
the requirement of irreparable harm, because a “loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes irreparable injury.”
Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion). The balance of equities
favors granting the injunction, and the injunction is in the public interest. See Minn.
Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 870 (8th Cir. 2012) (en
banc). We therefore reverse the district court’s denial of Johnson’s motion for a
preliminary injunction and remand for further proceedings.
BYE, Circuit Judge, dissenting.
In my view, the Board's regulation was a content-neutral time, place, and
manner restriction and was narrowly tailored to serve a significant government interest
which also provided ample alternative channels of communication. I would affirm the
judgment of the district court.
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First, I believe the Board demonstrated a significant government interest in
restricting literature distribution during the Festival to maintain the orderly flow of
people, provide access for security and emergency vehicles, and facilitate Festival
activities. The Supreme Court has recognized a state's interest in protecting the safety
and convenience of persons using a public forum. See Heffron v. Int'l Soc'y for
Krishna Consciousness, Inc., 452 U.S. 640, 650 (1981).
In Heffron, members of the Krishna religion desired to distribute literature on
the fairgrounds during the Minnesota State Fair. Id. at 642-43. A fairgrounds rule
mandated such literature be distributed only from fixed locations. Id. at 643. Like the
policy at issue in this case, "the Rule d[id] not prevent organizational representatives
from walking about the fairgrounds and communicating the organization's views with
fair patrons in face-to-face discussions," but required literature be distributed from a
booth. Id. at 643-44. With respect to the significance of the governmental interest
involved, the Court held "[b]ecause the Fair attracts large crowds, it is apparent that
the State's interest in the orderly movement and control of such an assembly of
persons is a substantial consideration. As a general matter, it is clear that a State's
interest in protecting the 'safety and convenience' of persons using a public forum is
a valid governmental objective." Id. at 650.
In my view, the Board's interest is indistinguishable from the interest identified
in Heffron. Allowing any and all participants to distribute literature outside a booth
would impede arrival and access of other Festival attendees, as well as paramedics,
security personnel, police, and the delivery of supplies to Festival vendors.
Highlighting the need for such access is the fact that there were nine ambulance calls
to the Festival on one day. The Board also noted a past incident in which the
distribution of literature outside of booths caused pedestrian congestion, security
problems, and complaints from participants.
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The majority criticizes the participants "who complained simultaneously that
(1) literature distribution outside of booths caused problematic congestion, and (2)
they too should have been permitted to distribute literature from outside their booths,
thereby creating more problematic congestion." However, instead of undercutting the
Board's position, such complaints highlight the real tension faced by the Board. If one
person is allowed to ignore sensible regulations limiting literature distribution to
designated areas, more people will have an incentive to ignore the same regulations.
Such will lead to greater congestion and a frustration of all participants' free speech
activity, especially the Festival participants who went to the trouble of obtaining and
operating a booth within the regulations. Indeed, this outcome could lead to less
speech, not more.
The majority has concluded the regulation is underinclusive because the Board
permitted at least one street performer on the pathways in 2011, though at oral
argument, counsel for the Board asserted the Board was unaware of any performers
at the Festival. The majority then speculates as to street performers being more likely
to cause congestion than literature distributors even though it is unclear whether a
street performer has ever caused congestion or other problems in previous years. On
the other hand, the Festival has encountered problems with literature distributors in
the past and has developed a sensible plan for managing those situations. It is unfair
to expect the Board to have a plan in place to address a problem which has never
materialized.
The majority also criticizes the Festival's efforts to collect donations in 2012,
reasoning such "[s]olicitation is a more disruptive form of speech than literature
distribution." However, no such evidence was presented that these solicitors caused
or would cause congestion or other similar problems. Solicitation was limited to
designated areas "near entrances," which is a sensible limitation.
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Next, in my view, the Board's regulation is narrowly tailored to serve its
significant government interest. In order to meet the narrowly tailored requirement,
a restriction on speech must not "burden substantially more speech than is necessary
to further the government's legitimate interest." Ward v. Rock Against Racism, 491
U.S. 781, 799 (1989). "[W]hen a content-neutral regulation does not entirely
foreclose any means of communication, it may satisfy the tailoring requirement even
though it is not the least restrictive or least intrusive means of serving the
[government's] goal." Hill v. Colorado, 530 U.S. 703, 726 (2000).
Here, Johnson is not prevented from distributing literature during the Festival
– he is merely restricted to doing so at designated locations. As the Supreme Court
has noted, "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, 452
U.S. at 647. Like the Heffron policy, the Board's regulation permits Johnson – and
anyone else – to walk about the park, engage in conversations with festival-goers, and
wear clothing or carry a sign displaying any message he desires. It merely limits one
type of activity (i.e., the distribution of materials) to a fixed location (i.e., literature
drop area), which was made available to any interested party and located adjacent to
the Festival area.
Finally, my belief is the Board has provided ample alternative channels of
communication. Johnson can attend the Festival, engage in conversations with other
attendees, wear expressive clothing, carry a sign conveying his message, and
distribute Bibles from both the "materials drop" booth within the park and from his
own booth outside the Festival. Johnson argues his preferred form of speech is
personally handing a Bible to someone in the Festival, but the fact that one method of
communication is preferred does not render alternatives necessarily inadequate. See
Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 812 (1984)
("To the extent that the posting of signs on public property has advantages over [other]
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forms of expression, there is no reason to believe that these same advantages cannot
be obtained through other means.").
Weighing these factors, I do not believe Johnson has demonstrated a likelihood
of success on the merits of his claim and, thus, is not entitled to injunctive relief.
For the foregoing reasons, I respectfully dissent.
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