Cleveland v. McCardle (Slip Opinion)
12 N.E.3d 1169
Ohio2014Background
- Occupy Cleveland demonstrated in the Public Square around 10:00 p.m. on Oct. 21, 2011, violating the city curfew unless granted a permit.
- Cleveland Codified Ordinance 559.541 imposes a 10:00 p.m.–5:00 a.m. curfew in Public Square and requires a city permit.
- McCardle and Tolls were arrested for curfew violations and related charges; they challenged the ordinance as unconstitutional.
- Municipal Court denied motions to dismiss; defendants pled no contest to the curfew violation; other charges were dismissed.
- Eighth District reversed, concluding the ordinance violated First Amendment rights; Cleveland appealed presenting a content-neutral, time/place/manner restriction analysis.
- This court reversed the Eighth District, affirming constitutionality of the curfew under intermediate scrutiny, and remanded with judgment reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the curfew is a content-neutral time/place/manner restriction | McCardle argued it restricts speech; not narrowly tailored | City contends it is content-neutral and neutral to speech | Yes, content-neutral and supported by intermediate scrutiny},{ |
| Significant government interests served by the ordinance | Interests asserted but not evidenced; purity of purpose questioned | Interests include public health, safety, property preservation | Interests are significant and supported by the ordinance |
| Narrow tailoring of the ordinance | Highly restrictive permit regime fails narrow tailoring | Regulation is narrowly tailored to serve substantial interests | Yes, narrowly tailored to serve significant interests |
| Whether open alternative channels of communication remain | Potential channels insufficient to preserve speech | Prohibition leaves open sidewalks and other spaces | Yes, reasonable alternative channels remain |
Key Cases Cited
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (content-neutral controls may be upheld if narrowly tailored to substantial government interests)
- United States v. O’Brien, 391 U.S. 367 (1968) (intermediate scrutiny for content-neutral restrictions—narrow tailoring and alternatives)
- Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (time/place/manner restrictions may regulate expressive conduct)
- Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (outlines requirement to leave open alternative channels of communication)
- Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (content-neutral restrictions analyzed under intermediate scrutiny)
- Hill v. Colorado, 530 U.S. 703 (2000) (government interests in public safety can justify regulations in public spaces)
- Taxpayers for Vincent, 466 U.S. 789 (1984) (public property and urban space preservation as legitimate interests)