400 F.Supp.3d 684
M.D. Tenn.2019Background
- New Century Foundation (NCF) and its president Jared Taylor annually reserve the Montgomery Bell Inn & Conference Center (ICC), a revenue-generating Tennessee state-park facility, and have in prior years drawn protesters.
- In 2018 TDEC implemented a revised standard group contract requiring a refundable security deposit (10% of expected balance) to cover: damage-repair costs, "security to ensure public safety" (extra staffing), and other above-normal operating expenses; contract used for all revenue-generating park facilities.
- TDEC/Director Michael Robertson and staff consider the expected public response (including protests) and the group’s viewpoint in assessing staffing and potential fees; controversial groups have been charged significant post-event staffing invoices.
- Plaintiffs sued under 42 U.S.C. § 1983 claiming the security and damage-repair clauses (1) permit a heckler’s veto/viewpoint discrimination and (2) are unconstitutionally vague, chilling speech; they sought declaratory and injunctive relief and added individual-capacity claims against Robertson.
- The court (after prior preliminary injunction) treated the ICC as a nonpublic forum and on summary judgment found the security clause permits a viewpoint-based heckler’s veto and is unconstitutional; the damage-repair clause is unconstitutionally vague; Robertson is entitled to qualified immunity in his individual capacity; court granted injunctive and declaratory relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the contract's "security to ensure public safety" fee permits a heckler's veto / is viewpoint-based | Security fee lets TDEC assess costs by examining message and expected hostile reaction; that conditions access on anticipated listener reaction and chills speech | Fee is viewpoint neutral, applied to all groups to recover legitimate security costs for maintaining self-sustaining facilities; ICC is a nonpublic forum; defendant did not intend to charge for policing protesters | Court: Fee constitutes a heckler's veto and is not viewpoint neutral; unconstitutional as applied / facially insofar as it permits charging based on expected hostile reaction |
| Whether the damage-repair clause (liability for "damage-repair costs . . . including park restoration following the group’s use") is constitutional | Clause is broad/vague enough to permit charging groups for damages caused by third-party protesters, chilling speech | Clause pertains only to damages caused by the contracting group; defendant disavows charging for damages caused by protesters | Court: Clause is unconstitutionally vague and likely to chill speech; needs clearer drafting |
| Type of forum and applicable standard (public/limited/nonpublic) | Plaintiffs argued ICC is a generally open forum (designated or traditional) requiring strict scrutiny for content-based restrictions | Defendant argued ICC is a nonpublic forum for which restrictions need only be reasonable and viewpoint neutral | Court: ICC is a nonpublic forum; but even in a nonpublic or limited public forum, viewpoint discrimination is forbidden; analysis proceeded accordingly |
| Qualified immunity for Robertson in individual capacity | Plaintiffs: Robertson acted with malice and should be personally liable; rights were clearly established | Robertson: Even if a violation, the law was not clearly established in these particular facts; he is entitled to immunity | Court: Qualified immunity applies to Robertson individually—no clearly established precedent making his specific contractual drafting and implementation obviously unlawful |
Key Cases Cited
- Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (permits variable permit fees based on expected hostile reaction are a prior restraint and unconstitutional)
- Bible Believers v. Wayne County, Mich., 805 F.3d 228 (6th Cir. 2015) (heckler's veto occurs when government silences speakers to appease hostile crowds; such acts are odious viewpoint discrimination)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (forum classification framework and reasonableness/viewpoint-neutrality test for nonpublic fora)
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (distinguishes traditional, designated, and nonpublic fora and applicable levels of scrutiny)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (viewpoint discrimination is presumptively unconstitutional)
- Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (qualified immunity requires that the unlawfulness be "clearly established")
- Harlow v. Fitzgerald, 457 U.S. 800 (1982) (qualified immunity doctrine shielding officials unless they violate clearly established rights)
- Pearson v. Callahan, 555 U.S. 223 (2009) (qualified immunity analysis flexible on sequence of constitutional-violation and clearly-established inquiries)