Benham v. CITY OF CHARLOTTE, NC
2011 U.S. App. LEXIS 2890
| 4th Cir. | 2011Background
- Plaintiffs sought to hold a Roe v. Wade memorial event in Independence Square Plaza, Charlotte, asserting challenges to public assembly and picketing ordinances under the First and Fourteenth Amendments.
- Public Assembly Ordinance governs festivals and demonstrations, requiring permits for festivals and allowing demonstrations only under the Picketing Ordinance if no traffic disruption is anticipated.
- Picketing Ordinance permits by-right picketing without a permit, but by-right is barred in spaces reserved for permitted events, creating a potential interaction that could affect expressive activity.
- Plaintiffs applied December 14, 2006 for a public assembly permit; permit official refused to process as the event was deemed a demonstration under the Picketing Ordinance, not a festival.
- Appeals official upheld the decision; plaintiffs held the event without a permit, and no arrests occurred, though noise warnings issued.
- District court granted summary judgment for the City; plaintiffs appealed, raising standing and vagueness overbreadth challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do plaintiffs have standing to sue? | Benham claimed ongoing chilling and future injury to expressive rights. | Plaintiffs failed to show concrete, actual injury; events held as planned under by-right picketing; no injury shown. | Plaintiffs lack standing; district court vacated and remanded for dismissal for lack of jurisdiction. |
| Is the Public Assembly Ordinance unconstitutionally vague or overbroad on its face? | Overbreadth/vagueness due to vague terms 'festival' and 'demonstration'. | Ordinance applies to conduct; Roe memorial squarely within 'demonstration' and not vague. | Not unconstitutionally vague; conduct falls within hard core of statute; challenge fails. |
| Did displacement risk from permit system constitute a cognizable injury? | Displacement by later permit holders could chill planning and reduce audience. | No evidentiary support; no past displacement; speculative injury not established. | No cognizable injury; standing lacking due to absence of evidence of displacement burden. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (three-element standing test: injury, causation, redressability)
- Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) (standing developed with factual development; liberal pleading standards)
- Stephens v. County of Albemarle, 524 F.3d 485 (2008) (standing requires factual support; speculation insufficient)
- Va. Society for Human Life, Inc. v. FEC, 263 F.3d 379 (2001) (injury can include planning/placement burdens and self-censorship)
- Smith v. Frye, 488 F.3d 263 (2007) (chilling effects must be objectively reasonable)
- Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474 (2005) (self-censorship and chilling effects; standard for standing)
- Broadrick v. Oklahoma, 413 U.S. 601 (1973) (core principle that hard edges of statutes govern conduct)
- Parker v. Levy, 417 U.S. 733 (1974) (vagueness considerations limited when conduct clearly falls within statute)
- White Tail Park, Inc. v. Stroube, 413 F.3d 451 (2005) (standing and injury-in-fact in public-assembly contexts)
- Kerns v. United States, 585 F.3d 187 (2009) (jurisdictional discovery procedures and standing)