Higher Society of Indiana v. Tippecanoe County, Indiana
2017 U.S. App. LEXIS 10126
| 7th Cir. | 2017Background
- Tippecanoe County adopted a policy designating the courthouse grounds a "closed forum" and permitting only events "sponsored and prepared by a department or office of county government," scheduled through the Board of Commissioners.
- The County sponsors some events (e.g., an annual Art Fair, League of Women Voters anniversary, police memorial, child abuse awareness events) and assists with logistics for those it sponsors.
- Several private groups have nevertheless used the courthouse grounds for rallies and vigils without sponsorship; Higher Society (a pro-legalization nonprofit) held a rally after a County official mistakenly told them they were authorized, then was denied sponsorship for a subsequent event.
- Higher Society sued and obtained a preliminary injunction from the district court preventing enforcement of the County's sponsorship requirement; the County appealed.
- The County conceded its policy is not viewpoint neutral; its primary defense was that events on the grounds constitute government speech and thus are outside First Amendment constraints.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether courthouse grounds events are government speech | Higher Society: events are private speech protected by the First Amendment | County: sponsored events are government speech, so viewpoint-based selection is allowed | Held: Events are private speech, not government speech — County lacks editorial control/history to transform them into government speech |
| Forum status and viewpoint restriction | Higher Society: policy restricts private speech and is viewpoint discriminatory | County: characterized grounds as closed forum and relied on sponsorship scheme | Held: County conceded policy is not viewpoint neutral, so it likely violates the First Amendment under forum analysis |
| Applicability of Summum/Walker factors (tradition, attribution, control) | Higher Society: factors point against government speech for rallies/art events | County: sponsored events are analogous to monuments/license plates (government messages) | Held: All three factors (no tradition of government speech via private events, reasonable observers would not attribute rallies to government, County lacks editorial control) favor private speech |
| Preliminary injunction standard | Higher Society: likely success on merits; irreparable harm; public interest favors injunction | County: appealed denial of sponsorship; urged deference to forum policy | Held: Because of likely First Amendment success, district court did not abuse discretion in granting preliminary injunction |
Key Cases Cited
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (standard for preliminary injunction and irreparable harm analysis)
- Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (permanent monuments on public property normally constitute government speech)
- Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015) (license plate designs are government speech where state maintains control and public attributes message to government)
- American Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012) (First Amendment preliminary-injunction principles; likelihood of success often determinative)
- Joelner v. Village of Washington Park, 378 F.3d 613 (7th Cir. 2004) (forum-analysis principles in free-speech preliminary-injunction context)
- Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013) (First Amendment likelihood-of-success focus in preliminary-injunction review)
- Anderson v. Milwaukee County, 433 F.3d 975 (7th Cir. 2006) (nonpublic-forum standard and reasonableness/viewpoint-neutrality distinctions)