Don Ater v. David Armstrong and Leon E. Jones, Sr.

1224 BAR AT THE CASE V. ATER, Plaintiff-Appellant, Don standards, denial these Under zoning v. for a application plaintiffs

of sub property withstands his change for Jones, E. Leon ARMSTRONG David attack, whether process due stantive Defendants-Appellees. Sr., administra legislative was here action No. 90-5424. tive. Appeals, of heard evidence body legislative city Circuit. Sixth con- were who by citizens and statements and over- problems about cerned 8, 1990. Nov. Argued It entered the area. commercialization 17, April 1992. Decided na- summary in although findings, written 26, 1992. Denied June Rehearing Banc En left as it better ture, property was Thus, its these concerns. rational- it were facts before and the action is not zoning. Plaintiff

ly related permit on denied palmistry

practitioner has Nor prejudice.76 religious

the basis “imper- on based persecution he suffered a prop- He is animus.”77 political

missible Mc- sell out wanted who

erty owner

Donald’s. protesting asserts

Plaintiff vision in tunnel guilty of

neighbors are neigh- their

welcoming the restaurant traffic and

borhood, about but concerns ra- neighborhood are

deterioration zoning. goals of tionally related motives, not based if parochial

Even sim- class protected

animosity toward not invalidate purpose, will

ilar invidious zoning.78

local trial

Therefore, the decision of is, hereby be, AFFIRMED. 205, Colchester, Resources, 863 F.2d Brady v. Town 77. 808 (1926)). See also Pace 71 303 L.Ed. 585, 1988). DeBlaker, (2d 1034; 590 Cir. 652 F.2d 216 v. F.2d at Couf 921, denied, 1981), (5th cert. BUnit Cir. (1982); 1278, v. Rogin 462 71 L.Ed.2d Studen, 588 discussion See extensive F.2d Cir.1980), (3d 680, 689 F.2d Township, 616 Bensalem Sessions, City Midnight Ltd. v. 565. Accord 1737, 1029, denied, 450 rt. ce Cir.1991); 667, (3d 685 Philadelphia, F.2d 945 565; Studen, (1981); 588 F.2d at 223 Estates, Village Corp. v. Coniston of Hoffman (8th Peres, 108 City 534 F.2d des Burns v. Lakewood, Cir.1988); (7th 461, 467 F.2d 844 denied, Cir.), cert. Witnesses, Inc. Congregation Jehovah’s Ohio Dev., (1976); Inc. Town Steel Hill L.Ed.2d Cir.), Lakewood, (6th City 699 F.2d Cir.1972). (1st Sanbornton, 469 F.2d denied, cert. Chesapeake, 883 F.2d 76.Marks 1989). (4th Cir. David (Argued A. Friedman Briefed), American Civ. Liberties Union of Ken- tucky, Louisville, Ky., Samuel Hunt Fritschner, Hendersonville, N.C., plain- for tiff-appellant. Adams,

Stuart L. (Argued Jr. Briefed), Rich, Adams, Sisney & D’Ambro- sio, Corp. Center, Louisville, Ky., for defen- dants-appellees. MILBURN,

Before: Judge; Circuit KRUPANSKY, BROWN and Senior Circuit Judges. BROWN, Judge.

BAILEY Senior Circuit Plaintiff, (“Ater”), Don Ater appeals grant from the court’s summary district judgment Defendants, in favor of David Armstrong, County, Kentucky Jefferson Judge/Executive, Jones, Sr., and Leon E. County Ater, Jefferson Police Chief.1 Dragon Grand of the Realm of the Ken- tucky Empire, Knights Invisible of the Ku Klan, sought Klux political to distribute standing on medians or on County, Jefferson Kentucky roadways. Bobby Crouch, who was then Jefferson Chief, County permission Police denied under such'distribution Revised Armstrong capacities, and Jones were dants in official substituted their which is tanta- Crouch, Harvey Bobby respec- Sloane and who suing County mount Jefferson itself. See tively positions County held the of Jefferson Holt, 464, 471-72, Brandon Judge/Executive Police Chief at time 873, 877-78, 83 L.Ed.2d 878 complaint. Ater filed his Ater sued these defen- entirety, read in its statute is 189.570, When this and Ater (“KRS”) section Statutes chose to legislature clear that constitutionality of sued, challenging exception [i.e., to solicit only one reasons For the interpreted. statute as are restrict- Pedestrians contributions]. court’s the district follow, affirm we available; if if it is ed to the sidewalk summary for motion Defendants’ grant of If shoul- not, no then to the shoulder. issue. on judgment der, practica- far as they must remain as seems edge of the road. It ble from I prohib- statute logical therefore that the walking on the median standing or to distribute 1987, sought During Ater literature.2 standing medi- distribute on while political literature County, or on Jefferson ans statute is a held The district court median, there was no roadways. Where speech on be- restriction content-neutral warning flashing use planned to Ater solici- allows the exception, which cause the then sought permission lights. Ater not the distribu- tation Bobby Chief County Police Jefferson literature, type of on the “is based tion of 1987, 30, (“Crouch”). June On Crouch of the or view not the content activity, that KRS Ater Crouch notified It further determined speech.” con- Ater conduct. proposed hibited narrowly to serve is tailored prohibition County then Jefferson tends and that it government interest significant partici- Harvey Sloane Judge/Executive channels of ample alternative open leaves statute. interpretation pated in the conclud- court district communication. determinations, that ed, upon these based generally KRS 189.570 interpreted, As rights Ater’s not violate prohibition did standing in the persons from Amend- Fourteenth First and under the Subsec- including the medians. roadways, ments. however, exception out an 21, carves denial court’s response In district rule: to this summary judg- partial motion for of Ater’s highway stand on person shall No partial sum- ment, moved for Defendants soliciting contributions purpose granted The district mary judgment. soliciting designated such unless it denied for the same reasons this motion control device of a traffic presence voluntarily Ater dismissed Ater’s motion. emergency vehicle warning signal or selec- remaining claim of prejudice his safety vehicle defined appeals from tive enforcement now flashing, making use KRS 189.910 court. final order of the district red, yellow oscillating blue rotating or or vehicles. lights devices on such II 189.570(21). KRS succinctly may appeal The issues 1987, sued Ater During November distribu- party denies that the No framed. capaci- their official and Sloane Crouch by the speech protected literature is tion of re- injunctive ties, seeking declaratory and De- Amendments. First Fourteenth claimed 1983. He 42 U.S.C. lief under § imposes statute contend that the fendants appli- interpretation and that Defendants’ manner re- place, and a reasonable his violated of the statute cation neutral, narrowly content that is striction by the guaranteed rights and association government serve a tailored Amendments. First and Fourteenth interest, open ample alternative and leaves v. See Ward of communication. summary judg- channels partial Ater moved 791, 781, Racism, Against mo- Rock his ment, district court denied and the district 1989. The tion on November contends that (1989). response, Ater court stated: standing that, on a properly distribution median. part contention It of Ater's 2. was apply not interpreted, did prohibition is a content-based restriction Consc., Int’l Soc. Krishna necessary that is neither compel- to serve a 2559, 2564, 69 L.Ed.2d ling narrowly state interest nor drawn to (quoting Consolidated Edison Frisby Schultz, achieve that end. See Co. v. Public Comm’n, Service 474, 481, Alternatively, (1980)). inquiry central with re prohibition contends that even if the spect were néutrality content is “whether the neutral, government tailored adopted has legitimate the state’s serve interest in speech disagreement because of with the highway safety. message it conveys,” Corp. Bamon Dayton, (6th 923 F.2d Cir.1991)

A (citation omitted), or because of a desire to suppress information. The restriction briefly We first discuss the nature apply “even-handedly to all who wish of the forum at issue. There can be no to distribute and sell written materials or doubt that the streets of County, Jefferson to solicit funds.” Heffron, 452 U.S. at Kentucky, public are traditional fora. “No at restriction, S.Ct. 2564. The more particularized inquiry precise into the na over, must not “suffer from the more cov specific ture of a necessary; street is all ert forms discrimination that may result streets are held in the trust arbitrary when discretion is vested in some properly and are pub considered traditional governmental authority.” Id. 481, 108 lic Frisby, fora.” 487 U.S. at S.Ct. government’s at 2500. The ability to re The Kentucky statute, 189.570, KRS expressive strict conduct in pub traditional is content neutral on its face. Because the quite lic fora is limited. See United States statute parties all from distribut Grace, ing literature in the roadways, and because 75 L.Ed.2d 736 permits parties to solicit contributions all clear, equally however, It in the roadways precautions if the pre that government may impose scribed undertaken, subsection 21 reasonable are place, applies and manner the statute protected evenhandedly restrictions on to all conduct, those even traditional who wish to distribute fora. written mate comport Such restrictions rials or solicit example, with the stric- funds. For both tures of the Ku long the First Amendment Klux Klan and the so as NAACP are they justified distributing are barred from without reference to their literature to (content motorists, speech regardless the content of the of their neutrali- diverse view ty), points are or the narrowly tailored to informational content serve a of their significant governmental interest, (3) messages. however, organizations, Both open ample contributions, leave provided alternative could solicit for channels for that each safety requirements communication of the meets the information. Rock set Racism, Against at forth 21 of the statute. at 2753. Because Ater concedes the exist- contends, however, Ater the local ample ence of alternative channels for com- designated officials the individuals who munication, opinion the remainder of this is have been Kentucky’s allowed access to requirements concerned with the first two roadways. designation, This selective of the above standard. contends, is based on the content of the message. disagree. We The statute does

B not vest the arbitrary officials with such Ater first contests the district court’s statute, discretion. The interpreted as prohibition conclusion that applied, is content provides that parties are that, neutral. The Court has held but, hibited disseminating “ neutral, ‘may be content a restriction provided lighting safeguards of subsec- not be based either the met, content or permitted are are to solicit ” subject speech.’ matter of county contributions. officials’ inter- [the] Heffron publications. “commercial” application pretation and defect. such a suffer from does not content of on the therefore, based were not message.3 money and Ater’s The solicitation are two different of literature distribution opinion recent contends Ater also enjoys each of which speech, categories content-neutral undercuts of this court Amendment. the First protection under Kentucky’s disparate characterization at Heffron, See of literature distribution treatment recently noted: As this Dis contributions. un- purposes serves regulation that “A Cincinnati, F.2d covery Network expression is the content related Cir.1991). Discovery (6th 464, 471-72 neutral, inciden- it has an even if deemed a Cincinnati Network, concluded we messages but some ... effect on tal distri the newsrack prohibiting ordinance omitted). Regulations (Citation others.” (such publications “commercial” bution of category of particular apply to a sale), listing real estate magazines targets regulatory speech because “non-com type distribution allowing such with that associated happen to be in as con- (which had been are characterized properly publications mercial" regulations tent-neutral, long as as newspapers), to cover applied terpreted reference to without justified are that violat restriction content-based was a speech. that content incorporated as- First Amendment ed the F.2d Dayton, 923 “The ordi Corp. v. Amendment. Bamon Fourteenth Cir.1991)(citing Boos v. Bar- (6th 473 differently on nance treats newsracks 312, 320, 108 S.Ct. ry, 485 U.S. pub of the content the commercial basis of (1988)). goal 99 L.Ed.2d Network, Discovery lications distributed.” public safe- promote is to Kentucky statute at 472. applica- officials’ roadways. The ty in the that Kentucky statute contrast, the In on the not based was of the statute It is neutral. content challenges is Ater message. any content impact of noncommunicative at the aimed recently dis- Finally, the unsafe condi- (the creation the conduct prohibited solicita- that regulation cussed not roadways); Kentucky’s on tions expressive conduct. other tion but allowed sup- intent to by governmental motivated does regulation “[cjlearly, the It held that The ordinance or information. of content press ideas on basis discriminate not Kokinda, facially was Discovery Network States viewpoint.” United at issue 3115, 3124, 111 720, 110 S.Ct. particular aof U.S. suppression aimed Similarly, Ken- (1990).4 in contained that information: type of to other Service bar the Postal that, failure although contended below Ater note 3. We to the not expressive did lead conduct he the conduct forms did not bar statute that content was selectively that conclusion the statute proposed and that Kentucky's bar so- Similarly, failure to those enforced, both of expressly based. abandoned he support errone- the dissent’s appeal. not does licitation on this contentions statute, interpreted that the conclusion ous Kokinda, 497 dissent cites 4. The applied, content based. is (1990), U.S. excepts why Kentucky statute is unclear It presents a proposition that solicitation pe- prohibition of general from the solicitation than distribu- hazard greater traffic and it abso- roads. But activities its destrian lutely that, in Kokin- It fails note of literature. tion da, Kentucky ex- that hold defies reason con- Supreme Court members five suppress wished cepted because solicitation could distinction a content-neutral cluded ideas, information, viewpoints, or other- certain distribution solicitation be made on restriction impose a content-based wise Kokinda, Service Postal In literature. Klux anyone, Ku Because speech. because its on sidewalks barred may NAACP,may no one solicit Klan postal transac- customers' facilitate desire Ken- expressive conduct other undertake tucky’s Kokinda, Similar- at 3124. tions. roads, exception leaves all expressive most Kentucky statute bars ly, the can- footing. motive A equal content-based provide on Kentucky's desire conduct exception. Kokinda, logically from this inferred roadways. uncongested safe and tucky which allows solicitation but The district held, and we agree, expressive conduct, other does the Kentucky statute is intended to not discriminate on the basis of content or promote legitimate goal of safety in the Thus, viewpoint. the district court correct- roadways. By prohibiting the distribution ly concluded that imposes the roadways, the statute content-neutral restriction speech. eliminates no more activity than was con- sidered necessary. Kentucky’s legitimate

C in safety would support prohi- argues Ater also that the statute bition of activities on its not narrowly to serve tailored roadways, even the funds, solicitation of governmental Although interest. he con which it has chosen to except from the Kentucky’s cedes legitimate interest in the prohibition. reason, For this agree we orderly safe and of traffic flow on its road the district court’s conclusion that the stat- ways, argues the statute “is so ute’s failure prohibit solicitation of funds broad sweep in its as to infringe upon in the roadways does not render it uncon- speech unrelated to the purpose.” identified stitutional. Against See Rock Racism, argues He also “the Discovery Net U.S. at 2758; 109 S.Ct. at Erznoznik work analysis court’s of the ‘reasonable fit’ v. City Jacksonville, between Cincinnati’s asserted ends and its 95 S.Ct. 2268, chosen means analogous ... to Ater’s (problems of underinclusiveness are rarely argument....” problems of magnitude, constitutional un- In Discovery Network, they less signify we Rock impermissible cited discrimi- Against Racism, natory motive). Although might we ques- for the proposition tion the of excepting wisdom that a place, and manner restriction from general prohibition, questions our of speech must be tailored. Dis- relate to degree and method that Ken- Network, covery 946 F.2d at 473 n. 14. tucky has chosen promotion of its Rock Against Racism supports the conclu- legitimate in interest safe and uncongested sion that the Kentucky challenged statute roads. by Ater, arguably is underinclusive because it allows funds, the solicitation of dissent contends that the un requirement: meets this derinclusiveness of the statute seri raises long So as the means chosen are ous not doubts about its objective true substantially broader than necessary impossible renders it to determine whether government’s achieve the interest, how- targets the statute no than the source ever, regulation will not invalid of the evil it seeks remedy. The Su simply because a court concludes that preme Court has shown great reluctance to government’s interest could be ade- make First specula Amendment-related served quately by some less-speech-re- tions on the hidden legislative motives of strictive alternative. “The validity of O’Brien, bodies. See United States [time, place, regulations does manner] 367, 383-84, 1673, 1682-83, not judge’s turn on a agreement with the Although this statute responsible decisionmaker concerning the presents an remedy, it clear underinclusive most appropriate method for promoting ly serves the state’s avoiding interest in significant government interests” congestion fostering road safe degree to which those interests should be ty. It cannot be Kentucky doubted that promoted. power pedestrian has the to limit activities Racism, Rock Against upon believe, its roadways. U.S. at We cannot (emphasis added) (alteration S.Ct. at 2758 hold, dissent apparently would have us original) in (quoting v. Al Kentucky prohibited that nearly all forms bertini, roads, activity upon ex (1985)). 86 solicitation, cepting only because wished from pedestrians of motorists clearly reason Its expression. to censor interacting activi- to their inherent hazards’ safety.5 roadways of using the jointly ties while justification, that Kentucky. Absent D (21) as section challenge to constitutional correctly found also The district amendment infringement of first channels alternative ample there are that public in a expression rights to fo- free communication, a determination prevail.1 rum dispute. Ater does lesser burden Recognizing constitutionality of a support state Ill as com- neutral is statute is not statute that the hold we proof Because im- burden greater pared to Ater’s restriction the consti- an unconstitutional to sustain state posed court’s district AFFIRM content-based speech, we tutionality of a prove in favor judgment burdened summary is nevertheless grant state regulat- content neutral a defendants. that even expres- free rights of amendment ing first Judge, KRUPANSKY, anchored must be Senior Circuit forum sion protect intention the state’s dissenting. proof instant In the interest. state significant endorsing the single justification interest case, (21) of validity of subsection constitutional pedestrians of motorists tection (KRS) section Statute Revised joint arising from their hazards amend- of first and its using Ken- activities interrelated ain expression free rights ment roadways. tucky’s of its fragile thread hangs on the (21) and its of subsection The paradox signifi- promoting purpose articulated signifi- promote justification case, protec- asserted interest, this cant appellate addresses dissent that the govern- context legitimate require a would dissent 5. The so- review. exception justifies the ment pe- proscription of general from licitation appeal, in an this joined as issue Although not legitimate activity roads. The on the forum, destrian plaintiff which to of the character gener- only justify the need interest government of inter- an area appears present seeks access activity; long as so protected of prohibition al envi- difficult inquiry. It is esting academic neutral, not it need are content its distinctions highways, high-speed today’s interstate sion expression. The of some justify the allowance heavily traveled four, three, Ianed or more the avoid- in government’s interest roadways, streets municipal county and supports adequately congestion of traffic ance traffic, all moving vehicular congested with activities pedestrian prohibition of the statute’s language broad within are embraced which prohibition is Kentucky’s Unless roads. 189.570, public streets section of KRS legislature’s based, mo- we examine for in trust immemorially been held "have conduct the forms prohibiting for tive mind, and, out public time of the use excepting for prohibit, motive chooses assembly, communi- purposes for used been prohibition. of conduct forms from other discussing citizens, and thoughts cating between forum to Pragmatically, the questions.” public in majority are panel parties and the 1. The appro- more access would plaintiff seeks which controver- here in that the accord sy, non-public forum as a priately be characterized Kentucky, is one i.e., active than, which to, more hazardous similar fiat by long government or "by tradition Kokinda, 497 in is described debate,” assembly and been devoted ha[s] U.S. Perry Educators’ Local Ass’n Perry Education forum, the standard non-public (1990). aAs Ass’n, with the compliance regulatory determining public streets (1983), and as to one of be reduced would First Amendment in immemorially held been roadways "have (21) of KRS Section reasonableness. and, out time use of the trust for satisfy standard obviously fail to would assembly, purposes mind, used have been activity, the most hazardous permits since it citizens, and thoughts communicating contributions, monetary CIO, Hague questions." discussing public visual, oral, or less hazardous of the exclusion L.Ed. 1423 advocacy. agreed written Accordingly, it is within by posed interest reflected hazard by cant the various methods em- intent to ployed implement solicitation, state’s obvious condone a conve- cou- pled nient but more hazardous in the panel with the majority’s refusal pedestrian seeking form of solicitations in- address the inconsistency of subsection monetary stant contributions from motor- and for the reasons fully discussed herein, momentarily stopped heavily ists trav- I respectfully dissent. eled intersections controlled mechanical panel As the majority stated, has already signals to the exclusion of less haz- plaintiff, Ater, Don appealed has oral, visual, ardous traditional forms of or grant summary judgment in favor of seeking written solicitations future mone- defendants, Armstrong David and Leon contributions, tary enrollment and/or mem- Jones, Sr., E. County Jefferson exeeu- bership special organizations, in interest tive/judge and Jefferson County police political, religions, endorsements of or oth- chief, (Jefferson respectively County).3 expressions special er advocacy interest sought declaratory and injunctive re- from those same motorists under identical lief in challenging this action validity circumstances. 189.570, a subsection of KRS section a traf- absurdity posed by this unanswera- fic regulates statute that pedestrians in ignores logic ble dilemma that and com- their limited Kentucky’s use of highways, panel roadways, monsense has been avoided and streets and which majority’s disposition. activity except the solicita- monetary tion of contributions while em- solicitation, form, Because a in whatever ploying “a traffic control warning device or oral, visual, written, itbe or is defined as signal emergency or an vehicle as defined merely approach request plea; an with a (fire engines, KRS section 189.910 police action; petition a move to to entreat or cars, etc.) making rotating, use of the incentive; importune; urge an en- flashing, red, blue, or oscillating yellow by pleading; deavor to obtain or an induce- lights vehicles,” on such devices or KRS ment,2 existing judicial prece- and because 189.570(21), high- including dent current ways, roadways, Kentucky.4 and streets in nouncements make no distinction between personal seeking solicitations mon- specifically, plaintiff instant More has chal- etary lenged contributions and other traditional the constitutionality of subsection oral, visual, enactment, forms of or written solicita- which bars the distri- seeking monetary tions expres- contribu- bution literature and all other future tions, membership enrollment and/or speech except sions of the solicitation of special organizations, endorsement Kentucky’s contributions on political, religious, or expressions roadways other when conducted with a “traffic special advocacy public within a warning signal control device or or an except type posed distinctions of the emergency public safety vehicle or vehicle by the making factual circumstances of the instant as defined in KRS 189.910 use of action, red, namely degree safety flashing, rotating, oscillating of the the or applications 2. See Webster's Third New International Dictio- First Amendment of the statute nary 2169 by Kentucky have not been addressed Su preme Kentucky Court. The courts of partial summary 3. After Ater had moved for interpreted this statute within the limited con judgment, which was denied on November pedestrian’s duty text of a to exercise due care County partial Jefferson moved for sum- See, using public roadways. e.g., Sey while mary judgment, 22, granted February which was on Co., mour v. State Farm Mutual Insurance joined 1990 because it the same issues as Quinker, (Ky.1974); S.W.2d 572 Ellis v. joined by only those remaining Ater in his motion. The . Therefore, (Ky.Ct.App.1984). S.W.2d ac in Ater’s claim of selective issue was accepted statutory cordance with standards of of the which was dismissed enforcement with construction, this court is confined to the words parties' prejudice pursuant consent. deriving purpose statute in the intent and 41(a). Fed.R.Civ.P. its enactment. accompa- 4. KRS section has not been 189.570 addition, by legislative history. nied Plaintiff, a forum. activity in sive devices or or such blue, lights yellow or charged and four- first accordingly, has (21) provides: vehicles.” Subsection infringements of free- constitutional teenth highway for on a stand person shall No expression. dom of contributions soliciting purpose by designated soliciting is legislative scope such of the unless thrust and The or control device traffic of a presence imposed upon limitation emergency vehicle roadways is signal or an warning upon the state’s movement defined as safety by vehicle the statute accurately reflected or flashing, making of the entirety.5 use in its it is considered KRS when red, blue, yellow or oscillating rotating or dispositive dispute the parties do not or vehicles. devices on such lights Ater, a controversy. facts of instant 1987). 189.570(21) (Banks-Baldwin KRS § Dragon of the Realm Grand Klux Knights of the Ku Empire, that sub- Ater Invisible complaint, asserted In the Bobby Klan, sought permission restriction (21) a content-based section Crouch, police of Jeffer- compel- the chief of a then necessary to serve is neither Ku Kentucky, to County, distribute narrowly drawn nor son ling state interest standing in the while con- Klan end; if it were Klux that even achieve County. He Jefferson narrowly tailored neutral, tent motor- the literature to high- to distribute posed legitimate interest serve state’s flashing, designated using the argued ists safety. He way red, blue, yellow oscillating rotating, having appearance (21), although emergen- warning lights generally used effec- neutrality,” enforcement “content safety prescribed as vehicles leg- cy or it into “content-based” tively converted In a letter dated June 189.570. by KRS discrimina- “impermissible an islation with proposed his advised expres- Couch censor calculated tory motive” shoulder, practi- only as far as walk on a shall Pedestrians 5. 189.570 roadway. edge of the cable from obey (1) instruction of shall Pedestrians (14) nor a shoul- neither a sidewalk Where specifically any control devices official available, walking any pedestrian on or them, directed der is otherwise applicable unless practi- designat- officially along highway near as shall walk as other a by police officer or a and, roadway, edge persons. of the to an outside ed cable subject (2) to traffic only be two-way roadway, shall shall walk Pedestrians a if on signals provided in as pedestrian control roadway. the left side 189.338. KRS 189.231 provided and. (15) Except in this otherwise be (3) places, pedestrians shall At other all roadway upon shall any pedestrian chapter, subject to privileges and shall accorded the way yield right of vehicles chapter. stated in this the restrictions roadway. yield the (8) operator shall of a vehicle roadway for (19) person shall stand No any pedestrian on a sidewalk. way right soliciting purpose a ride. suddenly leave a (9) pedestrian shall No roadway (20) person on a shall stand No run walk or place curb or other employment soliciting purpose of as to is so close path of vehicle into any occupant vehicle. business from immediate hazard. constitute highway person shall stand on No roadway pedestrian shall cross No soliciting un- purpose of diagonally authorized unless intersection pres- designated by soliciting is such less devices; and, when au- control official traffic warning device or control ence of diagonally, pedestrians shall cross thorized to public safe- emergency or signal vehicle or an traf- the official only in accordance cross making KRS ty 189.910 vehicle as defined crossing pertaining to such devices fic control red, oscillating flashing, rotating, or use of the movements. blue, ve- lights or yellow devices such or move, whenever (11) shall Pedestrians hicles. right crosswalks. upon half practicable, proxim- (22) or in person stand on shall No provided and its (12) sidewalk is aWhere purpose of highway for the ity or to a street any unlawful it shall be practicable, use is any guarding watching soliciting or adja- along walk pedestrian to parked on parked or about to vehicle while roadway. cent highway. available, a street any is not a sidewalk Where 1987). (Banks-Baldwin highway §KRS along upon a walking pedestrian 189.570, prohibited activity distributing under KRS their motorists, literature to “regulates roadway the use of the regardless of their diverse viewpoints or pedestrians generally prohibits by the the informational content of their mes- being from in the middle of sages. organizations, however, Both any reason.” In a letter the road for dated could solicit for provided June Couch stated that the stat- safety that each meets the requirements ute enforced “without would be favor to set forth subsection 21 of the statute. any person.” group or page denying partial In Ater’s motion for sum- conclusory, superficial This reasoning is mary judgment, the district court conclud- ignores misconceived and the underlying mentioned, although explicitly ed that not urged by plaintiff. substantive issue by

the distribution literature was banned meaningful distinction which key is According the statute. to the district the resolution controversy of the instant court, 'pedestrian except ap- activity, all prohibits not “the par- whether statute all conducted solicitations of mone- propriately distributing ties from literature in the road- contributions, presented tary potential haz- ways” “permits and/or all to solicit parties safety pedestrians ards to the of both and monetary contributions in the if roadway Kentucky roadways motorists on and were parties precautions required take the accordingly prohibited: 189.570(21)/’ by Rather, KRS the distinc- statute, entirety, When this is read in its tion parameters to be resolved within the legislature clear that the chose to which is anchored in insur- only exception. one Pedestrians ing significant governmental interest in are restricted to the sidewalk if it is protecting the activities and movement of available; not, if If then to the shoulder. pedestrians and motorists from the inher- shoulder, they no must remain as far as ently hazardous environment of Ken- practicable edge from the of the road. It tucky’s roadways, difference, active is the logical therefore seems statute any, if forms of the solicitation prohibits standing walking upon pursued each, dangers and the inherent to median to distribute literature. i.e., between the and movements of addition, pedestrians court, by distributing the district and now the who solicit liter- pedestrians panel majority, orally has ature and those who decided that the statute soli- monetary cit was content neutral contributions while imple- distinction menting monetary lighting precautions imposed between solicitation of contribu- 189.570(21) solicitation, inherently KRS within the tions and other forms of either visual, oral, written, case, Kentucky’s hazardous environment in this ac- stated, literature, roadways. Simply tive does the distribution was based on the distributing type activity, written solicitation litera- the content or view of compared speech. ture as to word of mouth solicita- tion of instant contributions with- justify constitutionality To of subsec- roadways present in Kentucky’s active 189.570, panel majori- of KRS greater differ safety or lesser hazard that affirming court, ty, the lower reasons materially legis- so as to warrant selective pe- lative treatment or enforcement when [bjecause parties all interacting activity destrian-motorist distributing literature in the road- hazards inherent to each is the ways, permits parties and because it justification first suppressing sole to solicit contributions in the if rights expression. amendment to free precautions prescribed by undertaken, applies Although panel majority 21 are the statute has avoided distinction, evenhandedly addressing dispositive to all those who wish to this the Supreme written materials or and circuits which distribute solicit Court those example, uniformly funds. For both the Ku Klux have considered the issue have by balancing Klan the NAACP from con- and are barred resolved it the relative 1234 distributing litera- activity than is ed ac by each posed safety hazards

tributing _ noted this ture.”) Blackmun and Justice unanimous are The decisions tivity. concurring in opinion his by the Court’s in distinction concisely summarized are Kokinda, 497 v. dissenting part States in to United and part Heffron: in decision 3115, 571 720, 110 S.Ct. U.S. not literature does “The distribution 1990, June in recently decided (1990), recipient stop in order require the existing prec- its then reaffirmed it wherein speaker message the receive the to it when stated: pronouncements edential instead, recipi- the convey; to wishes impedes contributions] [of Solicitation message at a the to read is ent free Heffron, See traffic. flow of the normal time_ and the collec- later [S]ales 2566-2567. at at 452 require only funds not tion of solicited who by those action requires Solicitation engender also stop, but fairgoer to solicited the individual respond: would they confusion ... additional contribute or decide whether must for exchanging articles involve acts reading involve (which might itself dropping fumbling for and money, pitch), hearing his or literature solicitor’s etc.” making money, change, so, to do reach then, having decided and Kokinda, (quoting at 3123-24 money, a for write wallet, it search a for Society International for card. Heffron check, a credit produce Consciousness, Inc., Krishna receipt); see (credit card Record, 5 Exh. 69 665, 101 S.Ct. Belsky, 799 F.2d also part and J., concurring in (Blackmun, funds is an 1986) (“Soliciting (CA11 1485 omitted)).6 (citation dissenting part) in complicat- and intrusive inherently more 6. The - legal public forum substance Kokinda Rather, where pressive expressive ment examined such as review. involved.” of a forum’s constitutionality ness, S.Ct. instant afford vehicular motor nature ways Initially, Kokinda Heffron instant S.Ct. S.Ct. at 3118-22. significance of the reasonable at 2565. The place and be assessed if the interaction activity. The Inc., precedent enunciated panel had vehicular and function as in the neutral Kokinda case, activity by United States did not free, activity is government's of this v. Int'l case, to activity only not been Heffron, 452 U.S. (1981), directs that special attributes majority i.e., traditionally open to uninterrupted and activity to restrict access for streets, traffic. Defendants casé manner resulted from dissent. Soc. traditionally open public Kentucky's within purpose L.Ed.2d access to a [statute] government's inherently reasonableness. dedicated did not seek light confronting totally by denying action parks, Kokinda, governmental characteristics postal sidewalks Krishna non-public fora is the characteristic particular misconceives is relevant is roadways, regulation since dangerous. The "[cjonsideration at non-public roadways, (1990), a denial S.Ct. pedestrian and held to stricter to those First regulation of forum in safe access, 650-51, 101 Conscious assert expressive Kokinda, appellate regulate Amend- and flow speech. of ex- road as in aof fora fora etc., forms of it seeks nates to insure motorists interacting vehicular defendants’ books, should ute dating intrusiveness less tributing Second, As residents of out of someone's given asking for spond comprehend, decide ty). mentarily or for more intrusive their counter One need not daily on the location items. long experience, on the fact is intrusive forms solicitation pamphlet in order no more newspaper regulation is and intrusive at 2567 goal only be treated experience, to a solicitation. ^[******] solicitation Heffron, supra, 452 traffic. with a from Kokinda remedy: protecting activities exchanged statement money disrupts than the exact free, (upholding ponder tailored person metropolitan areas know by "stopping subscriptions, and concluded differently longer periods as hand, addressed sales and confrontation inherently of solicitation normal premised on hazards form of is sound intimidating and act the contents mechanically giving and expression: Solicitors using stringent solicitations literature” and targets that solicitation inherent source U.S., from out information. one must pedestrians and solicitation passage [passersby] mo- only if in order to those etc.) that contribu- safe comparative most such as dis- than an can achieve restrictions of a alternative and to take money is or other Service’s flow (selling intimi- person leaflet listen, activi- elimi- other their stat- evil en- re- is Phoenix, ACORN v. Similarly, after the departed, solicitor has the driv- (9th Cir.1986), any 798 F.2d the cir- er must change returned, secure re- place a cuit court “the wallet or purse, discussed substantial risk of close a and then proper return attention disruption” may traffic control that the full re- sponsibilities of a presented by motor vehicle opposed solicitation as to oth- driver. personal direct solicitation expression. er forms of It noted the testi- from driv- ers distracts them from their mony expert primary of an witness trial duty to potential watch the traffic and po- “solicitation from motorists creates road, hazards in the observe all traffic safety tential hazard because the conse- signals warnings, control prepare quent poses distraction of the drivers to move through the intersection. significant risk to motorist and safety. are ACORN, 798 F.2d at 1269. prone Distracted drivers more ACORN, to automobile accidents....” See United States Labor Party Oremus, Thus, 798 F.2d at 1270. solicitation and its (7th Cir.1980) 619 F.2d (recogniz- attendant distraction of motorist attention ing dangers physical “evident injury and traffic, only impede orderly flow of disruption .that are present when but raise serious traffic and individuals stand in the busy center of ACORN, concerns. 798 F.2d at 1269. The trying streets engage drivers and solicit distinguished solicitation from motor- them”) contributions (quotations omit- posed ists and the hazards from the ted). permit, (21) To does, as subsection dangers upon attendant other forms of ex- the most hazardous form of expres- free pression directed towards motorists: sion to the exclusion of all other less haz- ideas, advocacy Unlike oral or even ardous expression forms of free under literature, the distribution of successful identical circumstances for the ostensible requires the individual to re- significant state protecting pe- interest of spond by searching currency destrians and motorists from the hazards along passing it to the Kentucky’s solicitor. Even inherent roadways active test, inherently disruptive more than the other neutral the Court considered whether the permits, activities it and on the Ser- disruptive solicitation of contributions was empirically vice’s based conclusion that a postal business. It concluded that solicitation case-by-case approach regulation of solici- inherently disruptive of contributions was tation is unworkable. postal business and that the Postal Service’s Kokinda, 110 S.Ct. at 3123-24. was, prohibition of solicitation of contributions Third, true, states, majority as the accordingly, regulation expressive a valid ac- Supreme five members of the Court Kokinda tivity. any The Court avoided comment on the concluded that a content-neutral distinction could be made between solicitation of contribu- validity regulation constitutional of a visual, deny would the lesser- intrusive forms of However, tions and distribution of literature. oral, including or written solicitation the distri- majority explain fails to the limited Kokinda, butions of literature. See 110 S.Ct. at Supreme context within which the Court ad- identify dressed the distinction was to solicita- addition, upon In this dissent relies Kokinda monetary tions of intrusive of all forms of alternate contributions as the most uniformly accepted to illustrate the conclusion visual, oral or solicitations, that the solicitation of including written the distribution Kokinda, disruptive one of most hazardous and first of literature. 110 S.Ct. at 3124. may Lastly, contrary majority’s conclusory amendment activities that be conducted on statement, and, rely upon accordingly, this dissent does not Ko- resolves that it kinda to conclude that subsection of KRS purported support is not tailored to 189.570 should be evaluated under a content legitimate safety. highway state interest in Sub- Rather, upon based standard. relies dissent section of KRS not meet the 189.570 does necessity illustrate Kokinda to the constitutional permits neutral test because determining degree of intrusiveness hazardous safer placed upon expressive activities the various activities. As evident from the above discus- sion, specifically forms of solicitation when a identi- analysis requires a content neutral fied form of solicitation is the state constitutionally the statute is conclusion that prohibit activity. interest relied such analysis, infirm. The content based discussed Kokinda, Court evaluated dissent, entirely different later in this rests on postal regulation that barred solicitation of con- analytic pinnings. tributions rather than distribution of literature. To determine if the met the content 1236 Cir.1989). ap- 494, (5th “The 497 to 876 F.2d calculated is paradox an obvious initially tied to scrutiny is an im- level of implement propriate opportunity afford distinguishes ac- expressive censor the statue whether motive

permissible on the ba- speech forum. public permitted and tivity prohibited in a at 2500. 108 S.Ct. Frisby, sis of content.” disposi court’s of the district The error upheld will be restrictions Content-based majority panel by the adopted tion as compelling necessary to serve a if only legal by a review reflected fully narrowly tailored interest and in state the issues here addressing precedent at 2500 108 S.Ct. Frisby, end. Perry Edu serve controversy, beginning 45, at at 103 S.Ct. 460 U.S. (citing Perry, Local Educators’ Perry v. Ass’n cation 948, 955, 37, 45, may reason- 955). government 103 S.Ct. enforce Ass’n, The 460 U.S. Su (1983), in which the regulation of 794 content neutral able among three distinguished preme long Court as it is speech so and manner of place, historical been which have types of forums serve a “narrowly tailored to platforms available, degree, to some ly interest, open am- and government leave[s] social, religious, po freely proselytizing for of communica- ple channels alternative advocacy: the traditional litical, and other 45, S.Ct. at at 103 Perry, 460 U.S. tion.” by desig forum; created forum public 955. A tradi forum. nation; non-public and Kentucky has dispute that does not long “by which forum is public one tional safety or highway legitimate been fiat by government ha[s] tradition ensuring debate.”, legitimate interest in has a that it Perry, assembly and devoted free, uninterrupted safety highway 955. Public 45, at at 460 U.S. at 2499- Frisby, 108 S.Ct. flow. See recognized as tradi long been streets 45, 103 S.Ct. at 2501; at Perry, 460 “have immemo U.S. public forums tional recognized use of the has held in trust rially 955. been mind, have been or and, out and the ensuring highway time assembly, communi purposes of for justifies used reasonable derly flow of traffic citizens, and dis cating thoughts between regulation of free time, place, and manner CIO, Hague v. cussing public questions.” Hamp New v. expression. Cox dom 954, 963, 83 496, 515, 59 S.Ct. shire, U.S. 312 Frisby v. (1939). also 1423 L.Ed. reason (1941). “Narrow L.Ed. 1049 85 2495, 474, 108 2499- Schultz, U.S. 487 rights exercise regulation of the able (1988); 460 Perry, 420 2501, L.Ed.2d 101 safe open and keep streets designed to There 45, 955. can 103 S.Ct. at . by the First prohibited is not for travel engage Ater seeks no doubt Party States Labor Amendment.” speech in a forum.7 free protected Cir.1980) (7th 683, Oremus, 619 F.2d v. free ability to restrict government’s omitted). (citations severely limited. in a ini- plaintiff’s Accordingly, the thrust within which an area represent Public fora challenges K.R.S. argument tial speech, peti- for exhibitions intolerance it is not minimum, and assembly tion, is at in- legitimate serve the state’s tailored justification burden government’s safety, namely, the highway terest Grace, v. highest. United is at inter- pedestrians tection motorists 1707, 171, 177, 103 S.Ct. environment acting within hazardous Community (1983); Clark roadways. intersecting heavily-traveled Non-Violence, 468 U.S. Creative 2503; Jersey Citi- New Frisby, 108 S.Ct. at L.Ed.2d 293, 104 S.Ct. Twp., 797 F.2d v. Edison zen Action Society Krishna (1984); International Cir.1986). (3rd 1256-57 Rouge, Baton Consciousness Daily Herald See also challenge standing to Ater has Cir.1988). (9th Munro, Unit- 838 F.2d particular conduct." Co. v. [his] it "covers since Grace, ed States action, The instant predeces- unlike its literature is the ideas, communication of time, in does not views, sors seek to or consider and advocacy of causes. the constitutional validity decide of facsimi- prevailing legal Pursuant precedent, time, place, and legislation le manner (21) would, without question, adopted by other govern- state or local satisfy existing Supreme Court mandates designed regulate ments freedom of ex- time, place, regulation and manner if it denying pression by access to a traditional uniformly prohibited pedestrian all access public purpose ensuring forum for the Kentucky, includ- governmental highway interest of ing those who seek immediate Rather, orderly and traffic flow. subsec- contributions moving stationary or KRS seeks to selective- using or, vehicles roadways, those in the ly deny access to the forum of Ken- alternative, if uniformly it accommodated tucky’s roadways by appending to an other- seeking all express political citizens or constitutionally wise valid an- special interest causes written solicita- advancing in significant govern- chored tion of future contributions and other keep mental interest to roadways open its indistinguishable expressive activity includ- travel, and malignant exception safe for ing, to, oral, visual, but not limited and against that on its face militates even-hand- written advocacy in the petitioning form of application against ed and discriminates by the distribution of literature. indistinguishable other forms of direct com- action, In the instant the state does not including, to, munication but not limited dispute that oral and written dissemination orally propagated political special inter- political, religious, special or other inter- views; advocacy est in placard, visual ban- advocacy protected est are by the First ners, etc.; and distribution of literature or Amendment. v. International Heffron petitioning expression other means of Society Consciousness, Inc., Krishna conforming safety lighting with the re- 640, 647, 2559, 2568, 452 U.S. quirements of the enactment. (1981). See Schneider v. plaintiff is a member of a State, 147, 160, 146, 150, advocacy organization encourages (1939); 84 L.Ed. 155 Lovell v. of Grif- members to canvass and distribute litera- fin, 303 U.S. momentarily ture to motorists stopped by (1938). L.Ed. 949 Nor does it claim that signals at the intersection of Ken- protection, this is lost because the written tucky’s roadways. presum- The literature sought materials to be distributed solicit ably petitions, promotes communicates and given contributions or are sold rather than ideas, organization’s views, and activi- away, gifts or because are contrast, ties. a face-to-face oral solici- in propagating solicited the course of greater tation of opportuni- funds affords a political, religious, special or other interest. ty exchange of ideas and views than Heffron, 452 U.S. at 101 S.Ct. at 2563. generally available the distribution of Moreover, existing legal precedent dis- literature, and the contributor a re- oral, visual, closes no distinction between sponse request to a for funds demonstrates or written communication'that come within general expression sup- immediate protection the orbit of First Amendment port Although for the solicitor’s views. including oral, visual, and solici- written distribution of literature does not entail funds, gifts, tation of other forms direct discourse between the solicitor and donor, propagation contributions for the of a the distributed neverthe- cause, stated, may Simply whatever be. less disseminates the views and ideas oral, recognized Court has by generally urging the distributor the re- visual, communication, case, cipient, motorist, and written includ- pas- oral, visual, sengers, information, ing and/or written solicitation to seek additional Thus, membership contributions, gifts etc. of funds or within the context of the case, effectively indistinguish- or common nexus denominator between instant proselytizing solicitation of funds and the distribution of means of the members able See, e.g., First Amendment. First equal Heffron entitled selected of a Krishna Con Society International protections. considerations Amendment 640, 647, 101 S.Ct. sciousness, has con- exception, when Without (1981); Lovell protected visual, oral, and written sidered 450-51, Griffin, environment hazardous expression within a previously As 668-69, L.Ed. 949 man- place, that necessitate con stated, and distribution are motor and/or ner proselytizing, of equal stitutionally means activity, it has bal- and movement vehicular so has considered and the assigned to to be safety hazard anced of more hazardous funds the licitation of activity with- and movement pedestrian Kokinda, See two. against environment hazardous in the 3123-25, 111 720, 110 S.Ct. 497 U.S. contributing safety factor lesser greater or by per (1990) (“confrontation seeks to ¡promulgation legislative disrupts money passage for asking son manner place, and through insure person encounter with an than [more] freedoms Amendment of First Inter information”); giving out Heffron expressions. of Society Krishna Conscious national for the com- has considered Every court that Inc., 640, 653, 101 ness, in- disruptions and safety hazards parative (solicitation (1981) of 69 L.Ed.2d monetary con- of to the solicitation herent oral ad disruptive than contributions litera- of the distribution and/or tributions selling re and vocacy solicitation mirrors environment an ture within momentarily “stopping quire [individuals] has, exception, without case the instant money given is periods as longer or for as- Supreme Court’s evaluations echoed also Inter literature”). See exchanged for to the face-to- safety risks greater signing Conscious Society Krishna national for of immediate face solicitation Rouge, ness, Baton F.2d Inc. v. of to the distribution than (ordinance prohibiting so Cir.1989) (5th literature. roadway aimed licitation in ability effort defendants’ Absent of solicitation because nature” “disruptive prosely- access disparate ideas, account in of communication the “[d]irect solicita- the face-to-face tizing accorded to to oc of cluding distribution compared to as restricted”); funds immediate vehicles, tion of cupants includ- proselytizing, Phoenix, forms of other City oral or 798 F.2d ACORN v. literature, an within ing Cir.1986) (“The personal distribution direct (9th identical under them environment identical distracts from drivers subsection implicit that the traf precautions; duty to watch primary their provide road, designed in the ob KRS 189.570 potential hazards fic and ad- censoring expressive warn signals control a contrivance all serve in through the and constitutes vocacy in a to move ings, and prepare infringement tersection.”). unconstitutional individu- similarly situated plaintiff’s, distinguish be- refusing to Aside from expressive rights of al’s, Amendment First soliciting immediate the activities tween activity. the distribution monetary contributions applying basing purposes majority, Thus, even of literature panel incorrectly statute, majority validity panel facial on the its decision stat- that the unnecessarily determines interprets incorrectly applied because neutral as language so statutory ute was reify the target, regulatory and distribution the asserted concepts of solicitation road- on the and motorists tangible pedestrians ac- of resemblance bear scant “ associated to be way, ‘happen[s] designed the First Amendment tivities ” i.e., the distribution type speech,’ litera- distribution protect. Both the the solicitation opposed to recog- literature as are of funds the solicitation ture and (quoting Bamon page 1228 funds. See protected activities expressive nized Corp. City Dayton, 923 F.2d 473 more hazardous than activity included Cir.1991)). (6th Flowing from this an- within prohibition the statute’s not to raise alytical imprecision panel majority’s is the this doubt. B.J.F., See The Star v. Florida statute,, erroneous conclusion that al- (statute prohibited S.Ct. at 2612 publi- though underinclusive, obviously passes cation of identity rape victim in “instru- constitutional muster because communication”; ment of mass did not prohibited could have publication by hibit means, other such as roadways. page (citing on its mouth). word of Racism, Against v. Rock Ward Finally, the nature of the activity exclud- 781, 800, 2746, 2758, prohibitions ed from the of KRS 189.570 (1989); Erznoznik v. Jackson- strengthens this doubt: as mentioned earli- ville, er, solicitation of monetary contributions (1975)).8 45 L.Ed.2d 125 has traditionally been considered a more applying Within the context of the con- hazardous First activity Amendment than tent neutral test to determine the constitu- distribution of literature. Under the con- tionality regulating expressive of a statuté analysis, tent neutral a sufficiently un- forum, activity in a type the and will, certain statutory aim by necessity, degree of the statute’s underinclusiveness any defeat conclusion that the statute is aim, statutory bears the asserted not narrowly tailored since the court cannot time, place, the actual and manner limita- determine whether “targets the statute and imposed by tions the statute. In a' statute eliminates no more than the exact source of- purports regulating to be aimed at the ‘evil’ it seeks remedy.” Frisby v. pedestrian and motorist on the road- Schultz, 2495, 2502, 487 U.S. 108 S.Ct. ways, the exclusion of one First Amend- (1988); 101 L.Ed.2d 420 City Council of prohibitions, i.e., ment from its so- Angeles Taxpayers Vincent, Los v. 466 licitation of contributions with 789, 808-10, 2118, 2130-32, U.S. 104 S.Ct. inclusion, warning lights, and the within its (1984). 80 L.Ed.2d 772 Subsection of prohibitions, of all other First Amendment obviously KRS 189.570 target does not activities, “raises serious doubts about exact source of the evil it remedy: seeks to is, fact, serving whether [the state] protecting pedestrians and motorists from this interests which the hazards inherent to Kentucky’s active appellee support invokes in of affirmance.” roadways. B.J.F., The Florida v. 491 Star U.S. 2603, 2612, panel majority 109 S.Ct. The 105 L.Ed.2d 443 concedes that (1989). underinclusive, The activity pursuant page excluded statute is see prohibitions from the of fumbles on the that the conclusion sub- case, because, KRS 189.570in interpreted by as section is unconstitutional in the panel view, majority, is too similar to majority’s constitutionality and is deter- noting by principle 8. It simply aspect "pre- bears that the cases cited sive one of the panel majority support sumption statutory validity,” do not its conclusion which has “less thorough analysis and do not substitute for a subject force when a classification turns on the Erznoznik, the statute’s underinclusiveness. expression.” matter of 215, 422 U.S. at principle may that a statute be underin- Supreme Court’s cited discussion in Ward comport clusive and still with the Constitution Against entirely inapposite v. Rock Racism is derives from the rational relation standard of the issue under review in this case because the protection analysis. equal Williamson v. Lee Supreme dismissing argument Oklahoma, 483, 489, Court was Optical time, 461, 465, place, regulation (1955). that a and manner only 99 L.Ed. 563 In the case achieving be the least intrusive means of by panel majority cited that involved a First governmental v. Rock challenge asserted interest. Ward Amendment underinclusiveness, to a statute based on its Racism, 794-800, Against S.Ct. Court struck 2746, 2756-58, (1989). being 105 L.Ed.2d 661 Wheth- down as the statute underinclusive in its regulation place, er a and manner is im- of the content of drive-in movie Jacksonville, entirely permissibly films. 205, 214-15, underinclusive is an differ- v. Erznoznik inquiry employs ent the means it 45 L.Ed.2d from whether Court, According to the the underinclu- are the least restrictive. action was in the instant of KRS mo- of “hidden examination by an mined in- Kentucky legisla- regulate the or “wishes” tives” (21) by the chief of subsection terpretation The underinclusive page 1229. ture. ferreting by out the a content-based judged require police must be inquiry does intent of the hidden motives standard.9 subjective rather, inquiry evaluates legislature; expres regulate designed to A statute stat- underinclusiveness” “the facial subject particular such as activity, sive B.J.F., 109 S.Ct. Star Florida ute. The speak classification or a certain matter added). (emphasis at 2612 content based er, to be is considered challenges the consti- this case Because exacting standard. to an subject interpreted the statute tutionality of 720, 110 Kokinda, majority need panel police, chief (1990); 3124-25, 111 L.Ed.2d realm of forayed into the not have New York v. Edison Co. Consolidated “mo- legislature’s aim statute’s Commission, 447 U.S. Public Service essentially indistin- Mindful of tives.” 537, 100 S.Ct. hazards similarities guishable Vincent, 454 U.S. (1980); Widmar safety inherent and motorist 269, 273-74, 70 L.Ed.2d 267-70, 102 S.Ct. the solici- both prompted distractions Munro, (1981); Co. v. Daily Herald the distribution tation Cir.1988). (9th Accord 380, 385 F.2d roadways of Ken- upon the compel must address a ingly, the statute of subsection interpretation tucky, the narrowly be ling interest and state police of by the chief (21) KRS 189.570 of Perry end. Edu to achieve that drawn Kentucky applied County, of Jefferson Local Perry Educators’ Ass’n v. cation result- request and Ater’s Ater’s denying 45, at 955 Ass’n, infringe- First Amendment charges of ant omitted). City Renton (citations See of by the resolved have been ments should 41, Inc., 46- Theatres, 475 U.S. Playtime a content based by applying majority panel (1986) 925, 928, L.Ed.2d 29 47, 106 S.Ct. Contrary to the statute. evaluation of purpose for the (“regulations enacted conclusion, application the majority’s panel of its con basis speech on the restraining more from “suffer statute does of this First violate the presumptively tent discrimination,” page see forms of covert Amendment”). inter- police has of 1227, the chief may be on A distinction based (21) in a manner preted subsection ad- to circumstances in narrow permitted authority discretionary him with the vested See, interest. compelling state vance Uni- types speech. of particular to exclude Heights, 418 U.S. v. Shaker e.g., Lehman dictates of application form (1974) 2714, 41 L.Ed.2d 770 298, 94 S.Ct. similarly situ- Ater or of treatment uniform accept not have to system (city transit did dis- roadway access ated individuals advertising). political Schenck partisan indi- accorded Cf. literature as tribute 247, 47, States, 249 U.S. v. United in those soliciting contributions viduals Although the “author- (1919). L.Ed. circum- roadways under identical identical regulations impose municipality ity Thus, ultimate result stances. conve- safety and (21) assure the in order to interpretation of subsection statutory analysis sup- based nonmotive content. This this panel majority insists Again, the example, the un- legislature’s by For ported commonsense. Kentucky analysis focuses on brought case had vol- conduct this who excepting popular speaker other forms “motive page lights n. 5 and rotating required prohibition,” See from use unteered to logically literature, distributing motive cannot "content-based that a when the section solicitation],” exception [for this expect, inferred attor- might and as the rejected. oneAs inquiry is re- No motive-based page 1232. See argu- during oral plaintiff ney ment, admitted quired. other, speakers dis- popular Rather, exception, in combi- of this roadways, on effect tributed the chief it hands with discretion nation police’s knowl- the chief presumably without determining application of this police in edge permission. basis of exception, is to restrict people nience the use of U.S. at 102 S.Ct. at 278. On highways” well-recognized is a presented, record as he has justify failed to governmental interest, Cox v. State New this exclusionary application under applica- Hampshire, 312 U.S. ble constitutional Thus, standards. subsec- (1941), 85 L.Ed. 1049 there is no com- (21) 189.750, K.R.S. section pelling justifies ap- state those similarly situated plication (21) Ater, of subsection deny from distributing literature on the road- situated, similarly those right to distrib- ways utilizing when appropriate warn- ute his literature if lighting done within the ing lights, violates the First Amendment requirements of subsection the stat- and is unconstitutional. Accordingly, ute. imposed distinction For above, the reasons respect- stated I Chief Police Crouch was not fully dissent and judgment of the dis- drawn to purposes further the of the stat- trict granting court summary judgment ute. Jefferson County should be reversed and Local law enforcement officials cannot the case remanded to the district selectively designate the who individuals further proceedings not inconsistent with forum, shall have access to the proposed dissent. this instance the roadways, but must apply uniformly, “focusing

on the dealing abuses and evenhandedly” presence pedestrians on the appropriate with the warning

lights regardless of the content of the ex-

pressive activity. Dep’t Police Chicago Mosley, re 33 L.Ed.2d 212 WARRANT DATED DECEMBER Brown, Carey 455, 470-71, 1990 AND RECORDS SEIZED 2295-96, S.Ct. HUBBARD, DETROIT, FROM 3273 (1980); Stone, Restrictions Speech Be- MICHIGAN ON DECEMBER 1990. cause its Content: The Peculiar Case Avery SHAPIRO; Fenkell; Irving City Subject-Matter Restrictions, 46 U.Chi. of L.Rev. 81 Company; Capri Leasing Foods Service As noted “ Company, Petitioners-Appellants, Court, Equal ‘under Protection Clause, not to mention the First Amend- itself,’ ment regulation even-a traffic can- America, UNITED STATES of not discriminate on the basis of content Respondent-Appellee. unless are clear there reasons dis- No. 91-1453. tinctions.” Erznoznik City Jackson- ville, Appeals, United States (1975)(quoting 45 L.Ed.2d 125 Dep’t Police Sixth Circuit. City Chicago v. Mosley, U.S. at Argued 20, 1992. Feb. 2290). government at “may grant the use of a forum to April Decided 1992. people whose views it finds acceptable, but Rehearing July Denied deny wishing use to those to express less favored or more controversial views.” Po- lice Dep’t Chicago Mosley, S.Ct. at 2290. County police

The Jefferson chiefs ex-

clusionary application of subsection vi-

olated “the fundamental principle that a

state should be con- Vincent,

tent neutral.” Widmar v.

Case Details

Case Name: Don Ater v. David Armstrong and Leon E. Jones, Sr.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 26, 1992

Citation: 961 F.2d 1224

Docket Number: 90-5424

Court Abbreviation: 6th Cir.