223 F. Supp. 3d 764
N.D. Ind.2016Background
- Tippecanoe County requires all displays/events on courthouse grounds to be "sponsored and prepared by a department or office of county government" and scheduled through the Board of Commissioners (1999 policy designating the grounds a closed/nonpublic forum).
- The courthouse grounds are publicly accessible and have regularly hosted private rallies, protests, and events both with and without County sponsorship (e.g., Round the Fountain Art Fair, League of Women Voters, Fraternal Order of Police, Planned Parenthood, candlelight vigil).
- The Higher Society held a marijuana-legalization rally in May 2016; after that event it requested County sponsorship for a second rally but was denied. The County conceded at argument that it denied sponsorship because it disagreed with the group’s message.
- Higher Society sued and moved for a preliminary injunction, arguing the denial was viewpoint discrimination in violation of the First Amendment.
- The County defended by asserting either (a) the courthouse grounds are a nonpublic forum and its denial was viewpoint neutral (but conceded otherwise at argument), or (b) speech at the courthouse steps is government speech and therefore not subject to viewpoint-protection.
- The court held the County’s government‑speech argument failed because rallies on the steps lack the historical, perceived, and supervisory characteristics of government speech; it granted the preliminary injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of sponsorship for a rally is unconstitutional viewpoint discrimination | Higher Society: Denial is viewpoint discrimination in a nonpublic forum and violates the First Amendment | County: Courthouse steps are government speech (so viewpoint-based selections are allowed) or, alternatively, a nonpublic forum where restrictions may be viewpoint neutral | Court: Likely for Higher Society — speech on the steps is not government speech; County conceded denial was viewpoint discriminatory, so injunction warranted |
| Whether courthouse steps constitute government speech under Summum/Walker factors | Higher Society: Steps are used by private speakers; observers would not view rallies as County endorsement; County exercises little content control | County: Sponsorship mechanism makes messages effectively government speech allowing viewpoint-based selection | Court: Factors point away from government speech (no historical gov’t use to convey its own messages; observers would not perceive County endorsement; County lacks control over message) |
| Whether Higher Society is entitled to preliminary injunction | Higher Society: Irreparable First Amendment harm, no adequate remedy at law, likely success on merits | County: Public order concerns and forum designation justify denial | Court: Higher Society demonstrated likelihood of success and irreparable harm; balance of harms and public interest favor injunction |
| Scope of relief — whether County may enforce its policy to bar Higher Society | Higher Society: County may not enforce policy to prevent rallies based on viewpoint | County: Policy valid for regulating use of closed forum or as government speech | Court: Enjoined County from enforcing the policy to prevent Higher Society rallies on courthouse steps |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (preliminary injunction standards) (establishing Winter test for injunctions)
- Pleasant Grove City v. Summum, 555 U.S. 460 (government speech doctrine) (distinguishing permanent government-endorsed displays from transient speech)
- Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (government speech doctrine) (identifying factors for when private speech is government speech)
- MacDonald v. Chicago Park Dist., 132 F.3d 355 (7th Cir. 1997) (First Amendment injury and public forum principles)
- Christian Legal Soc’y v. Walker, 453 F.3d 853 (7th Cir. 2006) (loss of First Amendment freedoms constitutes irreparable harm)
- Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) (preliminary injunction standard as applied in Seventh Circuit)