742 F.3d 282
7th Cir.2014Background
- Indiana War Memorials Commission oversees Monument Circle and other downtown monuments; permit policy required permits for use of Commission properties for a “specific purpose.”
- Smith and his son protested a proposed Arms Trade Treaty at Monument Circle without a permit and were expelled.
- District court denied Smith’s preliminary injunction against enforcement of the permit policy.
- Record showed ambiguous, ill-defined permit procedures and discretionary decisionmaking by Commission staff.
- On appeal, defendants argued mootness due to a later rewritten policy; court concluded policy retained constitutional problems and appeal not moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of appeal due to policy changes | Amended policy preserves constitutional flaws | Policy change moots suit | Not moot; substantial similarities keep live dispute. |
| Likelihood of success on First Amendment merits | Permit for small groups is not narrowly tailored | Permits necessary for orderly use and accountability | Smith likely to succeed; permit for small groups fails narrow tailoring. |
| Content neutrality and discretion in permit decisions | Unguided discretion leads to discriminatory enforcement | Policy claims objective guidance; discretion is limited | Policy insufficiently content-neutral; discretion invites abuse. |
| Scope of injunction and applicability | Protects right to protest and broad facial challenges | Restricts only Monument Circle | Injunction should extend to all individuals/small groups. |
Key Cases Cited
- Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (U.S. 1983) (traditional public forum standards (time, place, manner))
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (narrow tailoring and substantial burden on speech)
- Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123 (U.S. 1992) (overbreadth and discretion concerns in permitting)
- Southworth v. Board of Regents of the Univ. of Wisconsin System, 307 F.3d 566 (7th Cir. 2002) (content-neutrality and discretion in university settings)
- Marcavage v. City of Chicago, 659 F.3d 626 (7th Cir. 2011) (group size and tailorings in public forums)
- Thomas v. Chicago Park Dist., 534 U.S. 316 (U.S. 2002) (upholding permit for gatherings of fifty or more; tailoring depends on space)
- A.C.L.U. of Illinois v. Alvarez, 679 F.3d 683 (7th Cir. 2012) (likelihood of success on merits in First Amendment context)
- Benkendorf v. Village of Hazel Crest, 804 F.2d 99 (7th Cir. 1986) (amendments eliminating challenged regulation can moot appeal)
- Green v. City of Raleigh, 523 F.3d 293 (4th Cir. 2008) (substantially similar amendments may not moot appeal)
- ADT Security Services, Inc. v. Lisle-Woodridge Fire Protection Dist., 724 F.3d 854 (7th Cir. 2013) (amendment strategy in administrative/regulatory actions)