Opinion
Case No. C2-03-94
June 4, 2003
OPINION AND ORDER
This matter came on for consideration upon the complaint for injunctive and declaratory relief (Doc. #1) filed by Plaintiff on January 31, 2003, upon Plaintiff's motion for a preliminary injunction (Doc. #4) filed on March 4, 2003, upon the parties' joint stipulation of facts (Doe. #14) filed on May 28, 2003, upon the parties' briefs (Doc. #15 16) filed on May 28, 2003, and upon the evidence presented at the May 29, 2003 hearing. By order dated March 10, 2003 (Doc. #5), Judge Graham consolidated the hearing on the motion for a preliminary injunction and the hearing on the merits of Plaintiff's claim of injunctive relief. At the hearing, Plaintiff withdrew the claims for monetary damages for past conduct from any agent of the State of Ohio acting in his official capacity. Additionally, Plaintiff withdrew the equal protection claims alleged in his complaint.
I. Facts
The Court finds the following facts in this matter to be undisputed:
Plaintiff, Douglas R. Parks, is a confessing Christian who believes that he is discharging his duty to God by publicly proclaiming his religious beliefs and convictions. He travels throughout Ohio and speaks in public where he has access to a significant number of individuals. Plaintiff characteristically stands on public ways and peacefully communicates a religious message, generally utilizing three means of communicating his beliefs: open-air proclamations, written literature, and sandwich boards. On April 11 and 19, 2002, Plaintiff sought to use one or more of these communicative methods on an area of property known as the capitol grounds in Columbus, Ohio.
The capitol grounds property surrounds the Ohio State Capitol building. It consists of approximately ten acres and is bounded by High Street on the west, Third Street on the east, Broad Street on the north, and State Street on the south. Ohio Admin. Code § 128-4-01(B). The steps leading to the Ohio Statehouse and the sidewalks on the perimeter of the square are all included as capitol grounds. Id. The exterior property consists of lawn spaces, trees, paved walkways, other paved areas, park benches, and numerous expensive monuments, fountains, statues, and other artifacts of historic and artistic value. The property is open to ingress and egress by the general public so long as they are not engaging in activity that requires a permit. A governing board sometimes closes part or all of the grounds to the public for operational reasons.
This board, known as the Capitol Square Review and Advisory Board ("CSRAB"), is responsible for the grounds and oversees the promulgation of rules pertaining to the use of the capitol grounds, including Chapter 128-4 of the Ohio Administrative Code. See Ohio Rev. Code § 105.41(E)(2) (giving the CSRAB "sole authority to regulate all uses of the capitol square"). The CSRAB administers the permitting process for use of the capitol grounds. For several years, the capitol grounds have been made available on a permitted basis for speeches and public gatherings advocating various causes, both secular and religious.
Ohio Admin. Code § 128402 governs when a permit is required and contains related limitations:
(A) Capitol buildings or grounds are available for use by the public for the purpose of governmental business, public meetings for free discussion of public questions, or for activities of a broad public purpose, provided the authorized procedure has been followed and appropriate approvals have been received, if such use:
(1) Does not interfere with the primary use of the capitol buildings or grounds;
(2) Is appropriate to the physical context of the capitol buildings or grounds;
(3) Does not unduly burden the managing authority;
(4) Is not a hazard to the safety of the public or state employees; and
(5) Does not expose the state to the likelihood of expenses and/or damages which cannot be recovered.
(C) There shall be equal access for all groups in the use of capitol buildings or grounds regardless of race, religion, color, national origin, sex or handicap.
(D) Capitol buildings or grounds shall be available for use on any day of the week between the hours of seven a.m. to twelve p.m. There shall be no allowance for camping on the statehouse grounds.
(E) The board reserves the right to limit the use of capitol buildings or grounds, at any time, due to unforeseen operational circumstances. Every reasonable effort will be made to alleviate the effects of any such limitation.
. . .
(I) These rules may be waived by the board, with the approval of the board, for good cause shown. Any person wishing to obtain a wavier [sic] of these rules must contact the board, in writing, within a reasonable time in advance of the event.
Additional regulations require that an advocate must obtain a use permit from the CSRAB, whose office is located in the Statehouse. The permit forms may be obtained in person or by mail. Ohio Admin. Code § 128-4-03 sets forth the procedures for obtaining and issuing a permit:
(A) A request for use of capitol buildings or grounds shall be submitted in writing to the board no less than fifteen days and no more than one hundred eighty days prior to the event. For good cause shown, requests may be submitted within less than fifteen days before the event. The written request shall contain the following infomiation on forms provided by the board.
(1) The name of the applicant;
(2) The date, time, duration and'nature of the proposed event,
(3) The specific requested location for the event;
(4) A statement of equipment and facilities to be used;
(5) The approximate number of persons expected to attend;
(6) The name, address, and telephone number of the individual or organization primarily responsible for organizing the event and responsible for payment of fees and costs;
(7) The amount of the fee and bond requirement for the permit.
(B) The board shall, without reasonable delay, act upon the request. If the request is denied, the board shall promptly notify the applicant by certified mail of the reason for the denial and inform the applicant of the right to appeal under rule 128-4-04 of the Administrative Code.
(C) The board will collect a nominal fee of twenty dollars — to cover the administrative cost of issuing a permit. The fee may be waived for good cause shown.
(F) Regulations for use of state property — in addition to the following regulations for use, the board reserves the right to regulate any conduct or activity not appropriate or consistent with the use of the capitol buildings or grounds, or which may cause damage to state property.
(P) Should two or more requests for use of capital [sic] buildings or grounds be made for the same time, the board will schedule the use on a first come, first serve basis, unless the events reasonably allow multiple occupancy of the requested area.
(Q) These rules may be waived by the board, with the approval of the board, for good cause shown. Any person wishing to obtain a waiver of these rules must contact the board, in writing, within a reasonable time in advance of the event.
(R) The board reserves the right to amend these rules for the granting of permits when the board deems it appropriate to do so.
Neither Plaintiff nor anyone on his behalf have ever applied for or received a permit to conduct activities on the capitol grounds. Plaintiff in fact testified at the May 29, 2003 hearing that it was against his religious conscience to obtain a permit to speak on religious issues in public.
Plaintiff therefore had no permit when he positioned himself on the Ohio Statehouse grounds on April 11, 2002, standing near a plaque bearing the state motto, "With God, All Things Are Possible." See Ohio Rev. Code § 5.06 (adopting state motto). He then began to speak about his religious views. Two uniformed Ohio State Highway Patrol officers approached Plaintiff. Upon learning that Plaintiff did not have a permit, the officers asked him to leave. The officers' supervisor also spoke with Plaintiff, confirmed that he needed a permit to speak, and requested that Plaintiff leave the capitol grounds. The supervisor advised Plaintiff that he would be permitted to speak on the city sidewalks without a permit. Fearing arrest, Plaintiff left the area.
During the same time that Plaintiff attempted to preach his religious views, members of a group were engaged in a rally advocating a tax on meat. The president of the group had applied for and had been granted a permit for the rally. The CSRAB had also granted the group a waiver of the fifteen-day waiting period.
On April 19, 2002, Plaintiff again entered the capitol grounds and attempted to engage in First Amendment activities by wearing a sandwich board displaying religious content and by handing out leaflets containing religious messages. His wife accompanied him. Because he had no permit, officers again asked him to leave the premises. When Plaintiff inquired as to what would happen if he stayed on the Capitol Square premises, an Ohio State Highway Patrol officer advised him that he could be charged with criminal trespass and arrested. After confirming that he was required to have a permit with the officer's supervisor and fearing that he would be arrested, Plaintiff again left the area. Plaintiff subsequently filed the complaint that forms the basis of this cause and moved for injunctive relief. Defendants are the CSRAB chairman, its executive director, and various members of the Ohio State Highway Patrol.
II. Discussion
Plaintiff seeks a preliminary injunction and a permanent injunction. The standards for both forms of injunctive relief are similar. The Sixth Circuit has explained:
In deciding whether to grant a preliminary injunction, a district court must consider and balance four factors: (1) whether the plaintiff has established a substantial likelihood or probability of success on the merits; (2) whether there is a threat of irreparable harm to the plaintiff; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by granting injunctive relief.Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir. 2000). See, also, Spingola v. Village of Granville, 39 Fed. Appx. 978, 980 (6th Cir. 2002). To obtain a permanent injunction, a plaintiff must actually succeed on the merits in addition to satisfying the latter three prongs. See Amoco Production Co. v. Village of Gambell, AK, 480 U.S. 531, 546 n. 12 (1987). Accordingly, the Court begins with the first prong of its mandated inquiry: whether Plaintiff prevails on the merits.
Plaintiff asserts both facial and as-applied challenges to the permit scheme. His facial challenge, that the scheme is unconstitutional on its face toward all individual advocates, carries a heavier burden than does his as-applied challenge. This is because "a plaintiff who challenges a statute on its face ordinarily must show either that the law admits of no valid application or that, even if one or more valid application exists, the law's reach nevertheless is so elongated that it threatens to inhibit constitutionally protected speech." Spingola, 39 Fed. Appx. at 981 (citing Time Warner Entm't Co. v. FCC, 93 F.3d 957, 967 (D.C. Cir. 1996)). To prevail under such a standard, "a plaintiff must demonstrate a substantial risk that application of the provision will lead to the suppression of speech." Id. (citing Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998)). See, also, United Food Commercial Workers Union, Local 1099 v. Southwest Ohio Regional Transit Authority, 163 F.3d 341, 360-61 (6th Cir. 1998) (explaining that overbreadth exists when there is a realistic danger that a restriction will significantly compromise recognized First Amendment protections of parties not before the court). The Court notes that Plaintiff has standing to bring such a facial challenge, despite having never applied for a permit. See Nightclubs, Inc., 202 F.3d at 888-89. Therefore, the Court can proceed to address Plaintiff's contention that the scheme is both facially invalid and invalid as applied for the following reasons: that it is an impermissible prior restraint on speech, that it is vague, that it is overbroad, and that it violates the free exercise clause.
It is well settled that "[f]reedom of speech `is the matrix, the indispensable condition, of nearly every other form of freedom.'" Spingola, 39 Fed. Appx. at 981 (quoting Palko v. Connecticut, 302 U.S. 319, 327 (1937)). But as the Sixth Circuit has explained, "[f)ree speech must be balanced against the state's responsibility to protect other important rights." Id. Analysis of the permit scheme thus mandates considering the speech at issue, the state's interests, in the context of where those interests are asserted, and the manner in which Defendants seek to further those interests.
The parties do not dispute that Plaintiff's activities receive First Amendment protection, and they are correct. See Boos v. Barry, 485 U.S. 312, 318 (1988) (signs); United States v. Grace, 461 U.S. 171, 176-77 (1983) (leafleting); Edwards v. South Carolina, 372 U.S. 229, 233 (1963) (public proclamation). They do disagree, however, over a portion of the next two steps mandated in resolving the First Amendment issues: determining what constitutes the "relevant forum" and what effect the nature of that forum has in this case. See Bishop v. Reagan-Bush '84 Committee, 819 F.2d 289, 1987 WL 35970, at *3 (6th Cir. 1987) (unpublished table decision) (summarizing the analytic approach employed in resolving such First Amendment issues). The dispute centers on whether the capitol grounds are a traditional public forum, as Plaintiff avers, or a designated public forum, as Defendants argue; wisely, no one characterizes them as a private forum.
The United States Supreme Court has described the first type of forum, traditional public forums, as "places which by long tradition or by government fiat have been devoted to assembly and debate." Perry Educ. Ass'n v. Peny Local Educators'Ass'n, 460 U.S. 37, 45 (1983) (citations omitted). That Court has explained that "[i]n these quintessential public forums, the government may not prohibit all communicative activity. . . . [But] [t]he state may . . . enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Id. See, also, Spingola, 39 Fed. Appx. at 982. The second forum type, termed a designated or limited public forum, "consists of public property which the state has opened for use by the public as a place for expressive activity." Perry Educ. Ass "n, 460 U.S. at 46. See, also, Spingola, 39 Fed. Appx. at 982 (citing Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 679 (1998)). Although not required to create or retain indefinitely such a forum, for as long as a government does so, "it is bound by the same standards as apply in a traditional public forum. Reasonable time, place and manner regulations are permissible. . . ." Perry Educ. Ass'n, 460 U.S. at 45-46. See, also, Spingola, 39 Fed. Appx. at 982. Thus, for purposes of this case — as the parties recognize — their argument is over a distinction without a relevant practical difference, because the same level of scrutiny applies. See Perry Educ. Ass'n, 460 U.S. at 45; Spingola, 39 Fed. Appx. at 982. The Court therefore does not need to resolve the forum dispute here, other than to conclude that the capitol grounds is at least a designated, or limited, public forum entailing an intermediate scrutiny inquiry.
This Court must now decide whether the proffered justifications for the restrictions on using the forum satisfy the requisite intermediate scrutiny standard. Defendants assert a number of claimed interests to justify the permit scheme. They offer the preservation of the historical site, maintaining order and safety, ensuring that adequate support services are available, and maintaining the primary use of Ohio's Statehouse to carry out the business of state government as justifications (Doc. #15, at 19-20). These are all legitimate and important interests. Plaintiff, however, argues that these asserted interests do not justify what constitutes, among other things, an impermissible prior restraint on speech.
The Sixth Circuit has stated that "`prior restraint' exists when speech is conditioned upon the prior approval of public officials." Nightclubs, Inc., 202 F.3d at 889 (citing Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975)). Such restraints are presumptively invalid because they often involve a risk of censorship by granting government officials unbridled discretion and a risk of indefinitely suppressing permissible speech by failing to provide for prompt issuance of a license or permit. Id. (citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225-27 (1990) (plurality opinion)). Therefore, prior restraints on speech, in the words of the United States Supreme Court, "are the most serious and the least tolerable infringement on First Ameudment rights." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1975).
This is not to say, however, that prior restraints are per se impermissible. Rather, as noted, a governmental entity may generally impose regulations governing the time, place, or manner of speech. Ward v. Rock Against Racism, 491 U.S. 781, 802-03 (1989). But these regulations nonetheless remain subject to constitutional interests, which means in the First Amendment context that anytime, place, or manner restriction in this forum must (1) be contentneutral, (2) be narrowly tailored to serve a significant government interest, and (3) leave open ample alternative channels of expression. Id. at 789-90; Spingola, 39 Fed. Appx. at 982. A failure to satisfy even one prong of this inquiry invalidates the requirement under scrutiny.
The parties agree that the permit scheme is content-neutral, and this Court accepts that characterization both as beyond dispute and as satisfying the first prong of its inquiry. Less compatible, however, are the parties' views on whether the permit scheme satisfies the remaining two prongs of the qourt's mandated time, place, and manner inquiry. The Court thus proceeds to address whether the scheme is narrowly tailored to serve a significant government interest — and concludes that it is not.
Narrow tailoring does not mean that a time, place, or manner regulation must be the least restrictive or least intrusive means of achieving the government interest involved. Rather, this prong is satisfied so long as the regulation does not "burden substantially more speech than is necessary to further the government's legitimate interests." Ward, 491 U.S. at 799. Applying the foregoing analytic framework to the permit scheme under consideration, the Court finds that the scheme suffers from the following deficiencies:
(1) Time limit on decision-making process. Certainly, a government may impose a permit requirement on those seeking to hold a march, parade, or rally in order to regulate competing uses of public forums. Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992) (citing Cox v. New Hampshire, 312 U.S. 569, 574-76 (1941)). Defendants in fact assert this purpose as a justification for the permit scheme. But as the United States Supreme Court has held, "[s]uch a scheme . . . must meet certain constitutional requirements. It may not delegate overly broad licensing discretion to a government official." Id. (citing Freedman v. Maryland, 380 U.S. 51, 56 (1965)). See, also, Thomas v. Chicago Park Dist., 534 U.S. 316, 323 (2002).
Because the scheme contains no substantive time limit on the decision-making process, the scheme delegates overly broad discretion to an administrative officer. See Nightclubs, Inc., 202 F.3d at 889 ("A form of unbridled discretion is the failure to place brief, specific time limits on the decision-making process.") (citing Freedman, 380 U.S. at 57; East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 224, reh'g denied (6th Cir.), cert denied, 516 U.S. 909 (1995)). The consequent possibility of delay means that every application of the scheme creates an impermissible risk of suppression of ideas. Id. (quoting FW/PBS, Inc., 493 U.S. at 223-24 (plurality opinion)). This inherent flaw renders the scheme constitutionally infirm.
Ohio Admin. Code § 128-4-03(B) provides that "[t]he board shall, without reasonable delay, act upon the request [for a permit]. If the request is denied, the board shall promptly notify the applicant by certified mail of the reason for the denial and inform the applicant of the right to appeal under rule 1284.04 of the Administrative Code." The vague permit scheme fails to define what constitutes "reasonable delay" and otherwise imposes no concrete period of time in which the CSRAB must decide whether to issue a permit.
The Court recognizes that Ohio Admin. Code § 128-4-02(C) provides that "[t]here shall be equal access for all groups in the use of capitol buildings or grounds regardless of race, religion, color, national origin, sex or handicap." A further guide to the CSRAB's decision-making can be found in Ohio Admin. Code § 1284.03(P), which provides that "[s]hould two or more requests for use of capital [sic] buildings or grounds be made for the same time, the board will schedule the use on a first come, first serve basis, unless the events reasonably allow multiple occupancy of the requested area" On its face, then, it would appear that the scheme operates under principles of equal access and fair prioritizing that would possibly constrain the CSRAB's ability to hinder advocacy through unjust delay.
But three points counter such an interpretation. First, Ohio Admin. Code § 128-4-03(B) requires the CSRAB to act on a permit application "without reasonable delay." The scheme therefore directs the CSRAB to act either immediately, with no delay, or with an unreasonable delay. The mere possibility of the latter, however constitutionally irrational and presumptively unintended, is certainly enough to place First Amendment principles in jeopardy. The permit scheme was set forth under Ohio law, which has long recognized that it is the law as it is actually worded and not as it was presumably envisioned that controls. Cf Slingluff v. Weaver, (1902), 66 Ohio St. 621, 64 N.E. 574, paragraph two of the syllabus (1902) ("The question is not what did the general assembly intend to enact, but what is the meaning of that which it did enact."). See, also, Holiday Inns, Inc. v. Limbach, 48 Ohio St.3d 34, 548 N.E.2d 929, 932 (1990).
Second, claimed guarantees of equal access and first come, first served access do not necessarily equate to such guarantees in the time in which access is granted, which may result in the suppression of ideas. A delay in granting a permit, including all permits targeting the same day or time period, can prevent speech as much as an outright denial can. See New England Regional Council of Carpenters v. Kinton, 284 F.3d 9, 25 n. 8 (1st Cir. 2002) (noting that a permit scheme that ensures automatic issuance negates the concern "that officials could effectively deny permits by dragging their feet") (citing FW/PBS, 493 U.S. at 223-24); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1361-62 (11th Cir. 1999) ("Licensing ordinances must also require prompt decisions. An ordinance that permits public officials to effectively deny an application by sitting on it indefinitely is also invalid.").
Third, neither the purported guarantee of access nor priority is inviolate. Unlike the permit scheme at issue in Spingola, 39 Fed. Appx. at 985, the scheme in this case provides the means by which a decision-maker can waive all provisions — including the equal-access and first come, first served provisions-upon a finding of undefined "good cause." Ohio Admin. Code § 128-4-02(I) and 03(Q). The waiver provisions in Ohio Admin. Code § 128-4-02(I) and 03(Q), however, do not limit who can seek such a waiver to the person or group applying for a permit. Rather, the use of "[a]ny person" as opposed to "the applicant" means that the scheme potentially affords any individual the means by which to have a rule of equal access or priority waived in regard to another party. An advocate who is not the first in line for a particular day or time period may, for example, seek to have the CSRAB waive the first-come, first-served priority rule in regard to the party who is first in line. The end result is that the guidelines are illusory, because the permit scheme gives the CSRAB discretion to waive them at any time, without meaningfully directing or curtailing that discretion.
To bootstrap a presumptive timeline for decision-making from such ambiguous standards would also ignore a specific mandate imposed by precedent. The Sixth Circuit has characterized the requisite safeguard of a "specified, brief period" for decision-making in the licensing or permit context as "essential" for First Amendment compliance. Nightclubs, Inc., 202 F.3d at 890 (citing East Brooks Books, Inc., 48 F.3d at 224). The general guideline that the CSRAB shall act "without reasonable delay" is neither specific nor necessarily brief. Instead, it points to a guiding principle that includes potentially unreasonable delay. Nor can this Court derive any form of a limiting construction from the CSRAB executive director's assurance that the "CSRAB does not `grant' permits, but rather an application for a permit is assumed granted unless denied or modified for operational reasons" (Doc. #14, Exhibit B, Keller Affidavit, at ¶ 19). Cf Edinburg Restaurant, Inc. v. Edinburg Tp., 203 F. Supp.2d 865, 872 (N.D. Ohio 2001) ("Where an ordinance does not contain an express time limit, the CQUrt cannot rely on the individuals jesponsible for enforcing the ordinance to do so in a manner that cures it of constitutional infirmities.") This statement characterizes the CSRAB's involvement as essentially ministerial, but it is not a view that is contained in the scheme language. In any event, the statement fails to speak to the time period in which the "presumptively" granted permit application is actually acted upon.
Although directed toward achieving a permissible goal, the permit scheme impermissibly fails to contain a mandated safeguard on the procedures enacted in pursuit of that goal. This alone is sufficient to invalidate the scheme.
(2) Permit fee. The permit scheme similarly fails to set forth sufficient standards curtailing the exercise of absolute discretion in charging the permit fee. Ohio Admin. Code § 1284-03(C) provides that "[t]he Board will collect a nominal fee of twenty dollars to cover the administrative cost of issuing a permit. The fee may be waived for good cause shown." Ohio Admin. Code § 128-4-03(Q) contains a more general though equally applicable waiver clause: "These rules may be waived by the board, with the approval of the board, for good cause shown. Any person wishing to obtain a waiver of these rules must contact the board, in writing, within a reasonable time in advance of the event." Because neither provision defines "good cause," sufficient reason for obtaining a waiver of the permit fee lies within the undirected judgment of the CSRAB. The CSRAB may, at its election, waive the fee upon request for one applicant but not for another, thereby risking turning a purported administrative fee into a content-based tax on speech.
The United States Supreme Court has explained why such a scheme runs afoul of the Constitution:
A government regulation that allows arbitrary application is "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." Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981). To curtail that risk, "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license" must contain "narrow, objective, and definite standards to guide the licensing authority." [ Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969); see also Niemotko v. Maryland, 340 U.S. 268, 271 (1951).] The reasoning is simple: If the permit scheme "involves appraisal of facts, the exercise of judgment, and the formation of an opinion," Cantwell v. Connecticut, 310 U.S. 296, 305 (1940), by the licensing authority, "the danger of censorship and of abridgement of our precious First Amendment freedoms is too great" to be permitted, Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975).Forsyth County, 505 U.S. at 130-31 (secondary reporters omitted).
Here, nothing in the evidence before the Court suggests nefarious manipulation of the permit scheme resulting in the assessment of even a nominal permit fee against various individuals seeking to speak on select topics. In fact, an affidavit by the CSRAB's executive director provides that it has never granted a request for waiver of the fee and that non-payment of the fee has never prevented an event (Doc. #14, Exhibit B, Keller Affidavit, at ¶ 15). This uncontested representation would seem to indicate equal assessment of the permit fee. At the same time, the Court recognizes that the executive director cannot speak to instances where speakers, knowing that the CSRAB has never granted a waiver and lacking the funds for the fee, might have been chilled from applying for a waiver and holding their free-speech events.
The CSRAB's unchallenged non-discriminatory behavior cannot excuse the manifest defect in the permit scheme. See Forsyth County, 505 U.S. at 133 n. 10 (explaining that evidence of the application of legitimate, content-neutral criteria in assessing permit fees is irrelevant in a facial challenge, because "[f]acial attacks on the discretion granted a decisionmaker are not dependent on the facts surrounding any particular permit decision"). Although the CSRAB's executive director stated that it would review waiver requests in the future on a content — and viewpoint — neutral basis (Doc. #14, Exhibit B, Keller Affidavit, at ¶ 15), a promise of good behavior is insufficient. See Nightclubs, Inc., 202 F.3d at 889 n. 5 (regarding a government's promise to apply a regulation in a constitutional manner as insufficient evidence of a limiting construction) and 890 n. 6. Defendants have failed to present sufficient evidence persuading this Court that such a uniformly applied mandate exists.
The inherent risk resulting from a scheme that provides only a nebulous "good cause" standard for guiding the CSRAB is that the scheme does not truly constrain that entity from engaging in content-discriminatory fee assessment at any time. Cf id. Such a possibility, even if not an apparent probability, nonetheless disregards mandated constitutional protections. The sanctity of the First Amendment need not — in fact, cannot — be subject to the potentially variable good intentions and subjective judgment of government workers when reasonable, objective safeguards would suffice. See Forsyth County, 505 U.S. at 133. Thus, the mere possibility of censorship through uncontrolled discretion is enough to raise concerns. Id. The absence of any narrowly drawn, reasonable, and definite standards guiding the CSRAB in the assessment of the permit fee render this aspect of the permit scheme unconstitutional.
It must be noted that another ground for invalidating the fee requirement exists. Plaintiff also avers that the CSRAB has failed to present a correlation between the permit fee and the costs' associated with the permit scheme. He is correct. Ohio Admin. Code § 128-4-03(C) states that the fee is "to cover the administrative cost of issuing a permit." Defendants presented no evidence supporting this assertion. Further, to the extent that the Court might be able to construe Defendants' evidence as generally implying that the fee is an outgrowth of the need for capital to maintain the historic grounds in question (Doc. #14, Exhibit B, Keller Affidavit, at ¶ 10), the Court concludes that neither the scheme itself nor Defendants' evidence establishes any concrete relationship between the twenty-dollar fee and administrative or other costs.
The Sixth Circuit has discussed fee requirements for permits:
The government may not tax the exercise of a constitutionally protected right. See Northeast Ohio Coalition for the Homeless v. City of Cleveland, 105 F.3d 1107, 1109 (6th Cir. 1997). Nevertheless, "an ordinance requiring a person to pay a license of permit fee before he can engage in a constitutionally protected activity does not violate the Constitution so long as the purpose of charging the fee is limited to defraying expenses incurred in furtherance of a legitimate state activity." Id. at 1109-10. Such a fee is not excessive, even if it is more than nominal, so long as it is "reasonably related to the expenses incident to the administration of the ordinance." Id. at 1110.Deja Vu of Nashville, Inc., 274 F.3d at 395. The Court notes that demonstrating this relationship does not present a high evidentiaiy hurdle; in Deja Vu of Nashville, Inc., for example, the Sixth Circuit held that, given related tangential costs, even a one hundred dollar permit fee was permissible when the evidence indicated that the direct cost of processing the application was only forty-three dollars. Id. Here, however, Defendants' failure to present any substantive evidence in this regard prevents this Court from finding that there is a reasonable relationship between the permit fee and the administration of the permit scheme. The unsupported fee therefore must constitute a potentially severable defect in the permit scheme-but given the additional defects of the scheme discussed herein, the Court need not and does not consider severing this aspect of the scheme.
(3) Lack of objective and precise standards related to regulation of activity. As discussed above, the delegation of overly broad licensing discretion to a government official is impermissible in the First Amendment context. See Forsyth County, 505 U.S. at 130 (citing Freedman, 380 U.S. 51); Thomas, 534 U.S. at 323. This scheme again runs afoul of this rule as a result of Ohio Admin. Code § 128-4-03(F), which provides: "Regulations for use of state property — in addition to the following regulations for use, the board reserves the right to regulate any conduct or activity not appropriate or consistent with the use of the capitol buildings or grounds, or which may cause damage to state property." By giving the CSRAB the unfettered discretion to determine what constitutes conduct or activity that is not "appropriate" or "consistent," the vague scheme fails to contain the requisite safeguards of precise and objective criteria that guard against possible suppression of speech. See United Food Commercial Workers Union, Local 1099, 163 F.3d at 359 ("[A] statute or ordinance offends the First Amendment when it grants a public official `unbridled discretion' such that the official's decision to limit speech is not constrained by objective criteria, but may rest on `ambiguous and subjective reasons.'" (quoting Desert Outdoor Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814, 818 (9th Cir. 1996), cert. denied, 522 U.S. 912, (1997))). See, also, Lady J. Lingerie, Inc., 176 F.3d at 1361 ("An ordinance that gives public officials the power to decide whether to permit expressive activity must contain precise and objective criteria on which they must make their decisions; an ordinance that gives too much discretion to public officials is invalid."). Further, the scheme's purported guarantee of equal access does not remedy this defect; that general directive is subject to the "appropriate" and "consistent" qualifier — and, as discussed above, the equal-access provision is subject to waiver by the scheme's nebulous "good cause" provision. Here again, the scheme's lack of specificity renders its objectivity illusory.
(4) Watchiower considerations. Relying in part on Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150 (2002), Plaintiff contends that the CSRAB's permit scheme fails to pass First Amendment scrutiny for three reasons: the scheme requires a permit applicant to provide his or her name on the application, the scheme imposes an objective burden on citizens holding particular religious views, and the scheme effectively bans a significant amount of spontaneous speech. At issue in Watchtower was a village ordinance that precluded individuals from undertaking door-to-door advocacy without first obtaining a permit. Id. at 154-55. The United States Supreme Court held the ordinance unconstitutional because it was not tailored to its purported interests and because of the "breadth and unprecedented nature" of the regulation. Id. at 168. This Court shall therefore address each of Plaintiff's "breadth and nature" contentions in turn.
First, the Court notes that the Watchtower Court zealously guarded the right of a speaker to remain anonymous. That Court explained that a requirement that a speaker identify him or herself in a permit available for public inspection "necessarily results in a surrender of that anonymity." Id. at 166. Like the Jehovah's Witnesses attacking a door-to-door permit requirement in Watchtower, Plaintiff asserts a facial challenge in part on overbreadth grounds; this permits judicial consideration of the impact of such an identification requirement on individuals who are deterred from speaking by loss of anonymity. Id. at 167 n. 14.
The permit scheme sub judice provides that "[tlhe written request [for a permit] shall contain the following information on forms provided by the board . . . The name of the applicant." Ohio Admin. Code § 1284.03(A)(1). To demonstrate that this name disclosure requirement does not in fact require the disclosure of the applicant's name, Defendants offer the following representation from the CSRAB's executive director: "Although the permit application requires an applicant's name, there is no requirement that the applicant show identification or use his or her real name, as long as no fraudulent purpose is accomplished or intended." (Doc. #14, Exhibit B, Keller Affidavit, at ¶ 17). The permit application itself does not disclose this purported caveat but simply provides a place for a "representative" of the advocate(s) to fill in his or her name (Doc. #14, Exhibit D).
The Court finds Defendants' assertion dubious but notes that similar provisions in other licensing schemes have been construed to permit application via a signing attorney or other representative. See, e.g., New England Regional Council of Carpenters, 284 F.3d at 29-29. This possibility is undercut here, however, by another provision on the same form requiring the "Name of group," which in the case of a lone advocate would be that advocate's name. Thus even application made by counsel would ultimately disclose the advocate's identity. Further, because at least one or two additional forms attached as exhibits to the joint stipulations explicitly call for the applicant's name and not the name of a representative (Doc. #14, Exhibits E and F), there is a limited invasion of anonymity over which the asserted interests cannot, based on this record, prevail.
Second, the Court recognizes the United States Supreme Court's conclusion that "requiring a permit as a prior condition on the exercise of the right to speak imposes an objective burden on some speech of citizens holding rqligious or patriotic views." Id. at 167. That Court explained that "there are a significant number of persons whose religious scruples will prevent them from applying for (a permit]." Id. Crediting Plaintiff's testimony that applying for a permit would be against his "religious conscience," the Court finds that he is indeed just such a person as contemplated in Watchtower. Although the Watchtower majority's reliance on "religious objections to applying for a permit" analysis failed to garner unammous support from all justices joining the judgment, it nonetheless is a majority holding constituting binding precedent. See id. at 171 (Scalia, J., concurring in the judgment) (Scalia, J., and Thomas, J., declined to join an arguably uniquely novel free speech approach that they thought would convert an invalid free-exercise claim . . . into a valid free-speech claim"). As such, the Court is bound to conclude that the scheme at issue today carries the same considerable burden on religious speakers.
Third, the Court agrees that the administrative scheme not only hinders but potentially prevents a significant amount of spontaneous speech from entering the marketp]ace of ideas. The Watchtower ordinance made obtaining a permit a precondition to door-to-door advocacy. Id. at 154-55. The United States Supreme Court found this requirement problematic because a person who had made a spontaneous decision to engage in leafieting or public oratory could not do so without first obtaining express governmental permission. Id. at 167.
The same concern is extant here. Ohio Admin. Code § 1284.03(A) provides that "[a] request for use of capitol . . . grounds shall be submitted in writing to the CSRAB no less than fifteen days and no more than one hundred eighty days prior to the event. For good cause shown, request may be submitted less than fifteen days before the event." This advance-notice provision also falls under the more general "good cause" exception clause contained in Ohio Admin. Code § 128-4-03(Q) and is subject to the broad reservation-of-amendment-power provision contained in Ohio Admin. Code § 128-4-03(R). What is potentially constitutionally offensive about requiring advance notice is that some speakers will desire to engage in public speech on a given topic at the moment the speech becomes ripe. In other words, as the United States Supreme Court has recognized, matters of public discussion are often time sensitive; the import and impact of speech related to an issue or concern can quickly dissipate. Cf Shuttlesworth, 394 at 163 ("timing is of the essence in politics. . . . when an event occurs, it is often necessary to have one's voice heard promptly, if it is to be considered at all").
The Watchtower Court did not discuss how such infringement on free speech squares with permit requirements, which that Court has also recognized as permissible. See, e.g., Forsyth County, 505 U.S. 123. Perhaps no more than cursory explication was warranted in light of the majority's holding that the ordinance was also not tailored to its stated interests. In any event, this Court considers the possibility of suppressing spontaneous speech here against the asserted interests involved and the fit between the statute and those interests.
Just as the individual from the group seeking a tax on meat sought to engage in political speech while a bill she sought to affect was under consideration, so too does the Court credit Plaintiff's testimony that timing and opportunity are critical to his advocacy endeavors. Plaintiff "seeks to speak when he feels his religious beliefs compel him to do so and at a time when he can engage sufficient numbers of people around him. The delay inherent in making a permit application or even in applying for a waiver of the application procedures unnecessarily burdens free speech so as to render the scheme constitutionally infirm — at least when weighed against the government's justifications and the effect of a single speaker. See, Grossman v. City of Portland, 33 F.3d 1200, 1206 (9th Cir. 1994) ("Both the procedural hurdle of filling out and submitting a written application, and the temporal hurdle of waiting for the permit to be granted may discourage potential speakers."). When the scheme's express — although likely unintended — allowance for unreasonable delay is considered, the potential substantial burden on speech increases dramatically.
The fact that the scheme provides for waiver of the waiting period does not remedy the potential for unnecessarily obstructing free speech. Defendants assert that "[t]he only reason the waiver is granted is because the applicant's speech would be meaningless if delayed" (Doc. # 15, at 17 (citing Doc. #14, Exhibit B, at ¶ 14)). At best, the delay might be short but nonetheless tangible; a speaker could apply for a permit and waiver and be granted permission immediately, or perhaps later that same day. (The latter possibility of a short delay, although arguably reasonable, might nonetheless offend Ohio Admin. Code § 128-4-03(B)'s "without reasonable delay" mandate.) At worst — and it is the possible and not just the probable that must guide the Court's scrutiny — the CSRAB could fail to consider, much less grant, a waiver until the moment of ripeness for the speech has long passed. Nothing in the scheme itself links "good cause" for waiver with the risk of rendering speech meaningless.
Under the facts of this case, it is apparent that the CSRAB grants waivers of the waiting period. The group advocating a tax on meat in fact obtained such a waiver. But just as in the first two portions of this enumerated list, the unfettered discretion of the CSRAB is problematic. What amounts to unguided authority to decide who speaks when, carrying with it what can effectively amount to a ban on a significant measure of spontaneous speech, constitutes another First Amendment infirmity.
The Court also notes that the scheme limits availability of the grounds to the period of 7:00 a.m. to 12:00 p.m. See Ohio Admin. Code § 128-4-02(D). Although the parties have not argued whether this specific provision is an unreasonable time restriction on speech, the Court notes that such a limit could also chill time-sensitive speech. The scheme allows but five hours of permitted speech on the grounds per day and fails to permit speech during entire periods — many hours of which fall within the workday, when speakers, religious and otherwise, would seek to influence legislative proceedings underway in the building at the heart of the capitol grounds. The evidence does not make apparent why the scheme considers morning advocates less of a risk to the preservation of the historical site, the maintenance of order and safety, the ability to ensure adequate availability of support services, and the primary use of Ohio's Statehouse to carry out the business of state government than afternoon or evening speakers. Without a link between this curious infringement and the interests asserted as justification, the Court could only conclude that the elongated reach of the permit scheme, construed in light of the evidence before the Court, effectively serves to preclude substantial portions of spontaneous speech.
(5) Application of permit scheme to individual speaker. Plaintiff argues that the application of the permit scheme to individual speech is an overly burdensome infringement on First Amendment rights. In light of the evidence before the Court, this Court agrees.
As noted, Defendants assert that the preservation of the historical site, maintaining order and safety, ensuring that adequate support services are available, and maintaining the primary use of Ohio's Statehouse to carry out the business of state government justify the permit scheme (Doc. #15, at 19-20). These interests are laudable and certainly of import. But Defendants offer little in the way of supporting argument or evidence for several of these interests. They do not, for example, explain sufficiently how requiring a lone individual to obtain a permit actually targets the preservation of the grounds. Defendants' assertion that the uncontrolled use of the grounds by a single non-sanctioned advocate "could result in the tragic destruction of historic and valuable artwork, as well as expensive damage to the pavement, steps and monuments on the grounds" (Doc. #15, at 28) begs the question: How?
Under the as-applied inquiry present in this case, the Court is considering one man wearing a sandwich board. Under a facial-challenge inquiry targeting individual speakers, the Court is considering any lone advocate seeking to wear a similar board, to undertake in leafleting, or to engage in oral advocacy. Under either inquiry, Defendants have failed to present substantive evidence establishing a correlation between the substantial realized effects and those risked effects on the First Amendment and their ability — or need — to serve the proffered interests. Without such explanation, the permit scheme labels those lone individuals with something to say as dangerous, while failing to offer what distinguishes them from other lone individuals who traverse onto capitol grounds, for example, to enjoy their lunch on the Statehouse steps. The distinctions — the addition of a sign, a leaflet, or something to say — become, in the words of the Ninth Circuit, "absolutely empty in terms of the (regulation'sJ stated goals." Grossman, 33 F.3d at 1207 (holding unconstitutional ordinance requiring permit for speaker in public park). The consequent risk is then that the scheme, "[r]ather than being narrowly tailored to protect speech, as it should have been, . . . was tailored so as to preclude speech." Id. See, also, Community for Creative Non-Violence v. Turner, 893 F.2d 1387, 1392 (D.C. Cir. 1990) (holding a permit scheme unconstitutional that would reach even a lone individual wearing a political button or teeshirt bearing a political slogan because it would restrict many incidents of free expression that posed little relation to stated purposes of safety, efficient public transportation, and equitable availability of the forum for public expression); but see Jews for Jesus, Inc. v. Massachusetts Bay Transp. Auth., 984 F.2d 1319 (1st Cir. 1993) (upholding application of permit scheme to lone leafletter). A purpose or even unintended effect of precluding speech from this forum does not square with First Amendment protections.
The Court's foregoing analysis is not intended to say that no permit scheme could ever be applied to a lone advocate seeking to engage the populace in a public forum. That issue is not before the Court. Rather, based on the limited record before this Court, the Court cannot conclude that Defendants have established a sufficient link between this permit scheme and its asserted justifications so as to warrant the enumerated substantial encroachments on First Amendment liberties. In sum, the scheme substantially burdens more speech than is necessary and lacks many of the safeguards required to ensure constitutional operation.
The foregoing considerations defeat Defendants' contention that the permit scheme at issue is narrowly tailored to effectuate what are laudable goals. Accordingly, the Court concludes that the permit scheme as currently embodied constitutes an impermissible prior restraint on speech. Having reached this conclusion, the Court need not and does not address Plaintiff's remaining moot arguments, such as his free exercise claim. However, a general comment regarding one of Defendants' overarching theories is necessary.
Although Defendants direct the Court to a state court decision that found the scheme constitutionally sound, the Court can find no valid limiting construction there (Doc. #14, Exhibit A, Columbus v. Hood, No. 2000 CRB 012508 (Nov. 11, 2000)). The document before the Court is an apparent copy of an interlocutory, unreported state court decision. Defendants refer to the decision as issuing from the Franklin County Common Pleas Court, but the decision indicates that it is from the Franklin County Municipal Court. Nothing indicates whether the decision was filed in state court, although the Court assumes it was. The decision, which does not purport to be a limiting construction of the scheme, is also not available to the Court on common electronic databases.
Regardless, the decision represents that the municipal court found in part that "[t]he application for a permit to use the capitol buildings or grounds asks for generic information necessary to establish the identity of the individual(s) seeking to use the property and the needs surrounding the use." Id. at 6. Defendants specifically disavow such an interpretation, as the Court discussed above in connection with the fourth defect category, and seek to pick and choose which portions of the state municipal court's opinion constitutes a binding interpretation on them. Thus, this Court can hardly regard the state court's opinion as being incorporated into the text of the CSRAB's scheme, as representing a binding administrative construction, or as reflecting a well-established and uniformly applied practice. Cf Deja Vu of Nashville, Inc. v. Metropolitan Government of Nashville and Davidson County, Tennessee, 274 F.3d 377, 402 (6th Cir. 2001); Nightclubs, Inc., 202 F.3d at 890 n. 6. Further, the fact that the municipal court — not the highest state court — reached broad generalizations without specifically addressing or discussing many of the elements this Court considers today prevents the Court from regarding the municipal court decision as a binding judicial construction that comprehensively interprets the permit scheme and the application of federal constitutional law to that scheme.
Because the scheme is unconstitutional both on its face toward individual speakers and as applied to Plaintiff, the Court now turns to whether Plaintiff is entitled to a permanent injunction. The Court concludes that Plaintiff is entitled to such relief. Plaintiff has prevailed on the merits, which satisfies the first prong of the Court's permanent injunction inquiry. This factor is most often determinative of the injunctive relief issue in First Amendment cases "because the Supreme Court has recognized that even minimal infringement upon First Amendment values constitutes irreparable injury." Deja Vu of Nashville, Inc., 274 F.3d at 400 (citing Newsom v. Norris, 888 F.2d 371, 378 (6th Cir. 1989)). Thus, there is a threat of irreparable harm should enforcement of the permit scheme continue in that Plaintiff and other lone speakers risk possible or outright preclusion of speech as a result of an unconstitutional scheme. See Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) ("With regard to the factor of irreparable injury . . . it is well-settled that `loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'" (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality))). This satisfies the second prong of the inquiry.
In regard to the third prong, "if the plaintiff shows a substantial likelihood that the challenged law is unconstitutional, no substantial harm to others can be said to inhere in its enjoinment." Deja Vu of Nashville, Inc., 274 F.3d at 400 (citing Connection Distrib. Co., 154 F.3d at 288). Plaintiff has met that burden here. Finally, this case satisfies the fourth prong because injunctive relief would serve the public interest by safeguarding First Amendment freedoms and preventing continued application of a constitutionally offensive licensing scheme. See id. ("[I]t is always in the public interest to prevent violation of a party's constitutional rights.") (citing G V Lounge, Inc. v. Michigan Liquor Control Comm'n, 23 F.3d 1071, 1079 (6th Cir. 1994)).
III. Conclusion
For the foregoing reasons, the Court finds the permit scheme set forth in Ohio Admin. Code Chapter 128-4 unconstitutional as specified herein. Plaintiffs arguments for injunctive relief are therefore well taken. The Court PERMANENTLY ENJOINS Defendants from enforcing against individual speakers the permit scheme presently set forth in Ohio Admin. Code Chapter 128-4 and enabled by Ohio Rev. Code § 105.41. In reaching this narrow holding, the Court expresses no opinion on the constitutionality of the permit scheme as it pertains to groups and does not enjoin continued application of the scheme in that regard.
Because Plaintiff has withdrawn all claims but his claims seeking a declaration of unconstitutionality and injunctive relief, Defendants' Motion to Dismiss Claims for Monetary Damages (Doc. #12) is MOOT, and this matter is resolved. The captioned cause is therefore ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Eastern Division, at Columbus. Costs taxed to Defendants.