775 F.3d 969
8th Cir.2014Background
- The Traditionalist American Knights of the Ku Klux Klan and its Imperial Wizard Frank Ancona sought to distribute leaflets in Desloge, Missouri; Klan members sometimes wore regalia and approached vehicle occupants at intersections.
- Desloge enacted an ordinance (Aug. 12, 2013 §220.205) criminalizing standing in or entering a roadway to distribute anything to vehicle occupants, with limited exceptions (distribution from adjacent sidewalk to stopped vehicles; sidewalks, parks, and parking lots are allowed).
- The Klan had previously obtained a permanent injunction against an earlier (1999) Desloge solicitation ordinance; the Klan challenged the April 2013 and August 2013 traffic ordinances and sought a preliminary injunction against enforcement.
- The city presented testimony and a traffic consultant report identifying roadway hazards (curves, misaligned intersections, unpaved sidewalks, obstructed stop signs) and concluding that distribution in roadways creates safety risks and driver distraction.
- The district court granted a preliminary injunction, finding the August 2013 ordinance not narrowly tailored under the First Amendment; the Eighth Circuit majority reversed, holding the ordinance content-neutral and narrowly tailored to safety interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §220.205 is content-neutral | Klan concedes facial content neutrality but argues the ordinance is not narrowly tailored to safety and burdens more speech than necessary | City argues ordinance is a content-neutral time/place/manner restriction narrowly tailored to pedestrian and traffic safety and leaves open ample alternatives | Court: ordinance is content-neutral; intermediate scrutiny applies and ordinance is narrowly tailored to safety interests (reversed district court) |
| Whether city showed a "real need" to act (evidentiary threshold) | Klan: city failed to demonstrate specific, non-speculative dangers or that narrower measures would fail | City: consultant and administrator testimony and roadway evidence show real safety risks from in-roadway distribution | Held: record shows identified safety concerns and a real need to act; city met threshold |
| Overbreadth / whether ordinance burdens substantially more speech than necessary | Klan: ordinance is overbroad; city could have regulated specific intersections, times, or omitted parking lanes/medians | City: regulation addresses general safety risk whenever persons step into roadways; alternative channels exist; government need not adopt least restrictive means | Held: not impermissibly overbroad; regulation is not substantially broader than necessary |
| Underinclusiveness / viewpoint discrimination concern | Klan: ordinance underinclusive because it permits other distracting behaviors (texting, skateboarding, pedestrians where no sidewalk) raising doubt about genuine safety motive | City: no evidence of viewpoint or message-based discrimination; government may address problems piecemeal | Held: not impermissibly underinclusive; no indication of discriminatory motive |
Key Cases Cited
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (content-neutral time, place, manner: must be narrowly tailored to serve significant government interest and leave open ample alternative channels)
- McCullen v. Coakley, 573 U.S. 464 (2014) (regulation invalidated for burdening substantially more speech than necessary; emphasized narrow tailoring analysis)
- St. Louis County v. Ass'n of Comm. Orgs. for Reform Now, 930 F.2d 591 (8th Cir. 1991) (government must show a real need; deference to choices among means)
- Ater v. Armstrong, 961 F.2d 1224 (6th Cir. 1992) (upholding ban on distribution/solicitation in roadways as narrowly tailored to safety)
- Hill v. Colorado, 530 U.S. 703 (2000) (validity of a regulation judged by its general effect, not isolated enforcement instances)
- Lee v. Int'l Soc. for Krishna Consciousness, 505 U.S. 672 (1992) (distinguishing solicitation and distribution contexts in confined public spaces)
- Frisby v. Schultz, 487 U.S. 474 (1988) (public streets are traditional public forums)
- Johnson v. Minneapolis Park & Rec. Bd., 729 F.3d 1094 (8th Cir. 2013) (underinclusiveness and suspicion of viewpoint discrimination)
- Schneider v. Town of Irvington, 308 U.S. 147 (1939) (struck broad bans on leaflet distribution on sidewalks and streets)
- Jamison v. Texas, 318 U.S. 413 (1943) (invalidated overly broad bans on distribution in public streets)
- Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (government may address problems piecemeal; strict scrutiny reserved for truly fundamental rights)
- Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109 (8th Cir. 1981) (standard for preliminary injunction factors)