Griffin v. BryantGriffin v. Bryant
MEMORANDUM OPINION AND ORDER ADOPTING IN PART MAGISTRATE JUDGE’S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on: (i) the Ruidoso Defendants’ Partial Objection to Magistrate Judge’s Proposed Findings and Recommended Disposition, filed February 26, 2014 (Doc. 28)(“Defen-dants’ Objections”); and (ii) the Plaintiffs Response to Proposed Findings and Recommended Disposition, filed February 26, 2014 (Doc. 29)(“Griffin’s Objections”). The Honorable Gregory B. Wormuth, United States Magistrate Judge for the District of New Mexico, submitted his Proposed Findings and Recommended Disposition, filed February 12, 2014 (Doc. 27)(“PFRD”). Judge Wormuth concluded that the Defendants are entitled to summary judgment as to Counts 1, 2, and 4 of Plaintiff William N. Griffin’s complaint; that, as to Count 3, the Defendants are entitled to summary judgment as to Section 1 of the operative Village Resolution; but that Griffin is entitled to declaratory judgment as to the “negative mention” provision of Section 5. See Complaint for Violation of Civil Rights, Damages, and for Declaratory and Injunctive Relief ¶¶ 73-85, at 15-16, filed August 27, 2013 (Doc. l)(“Complaint”); id. ¶¶ 86-91, at 17; id. ¶¶ 101-102, at 19; id. ¶¶ 92-100, at 18-19; id. ¶¶ 98-100, at 18-19. Griffin and the Defendants both filed Objections to the PFRD. Having reviewed the PFRD and the Objections, the Court will adopt the PFRD in part and reject it in part, and grant in part and deny in part the Defendants’ motion for summary judgment. See The Ruidoso Defendants’ Motion for Summary Judgment on Plaintiffs Complaint for Violation of Civil Rights, Damages, and for Declaratory and Injunctive Relief and Memorandum of Law in Support Thereof, filed October 14, 2013 (Doc. 16)(“MSJ”). The Court will grant Griffin’s request for declaratory relief in Claim 3 and injunctive relief in Claim 4 as they relate to Section 5 of the Resolution, and will dismiss all other claims in the Complaint.
LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND RECOMMENDATIONS
District courts may refer dispositive motions to a magistrate judge for a recommended disposition. See
A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.
“ ‘The filing of objections to a magistrate’s report enables the district judge to focus attention on those issues — factual and legal — that are at the heart of the parties’ dispute.’ ” United States v. One Parcel of Real Property, with Buildings, Appurtenances, Improvements, and Contents,
The Tenth Circuit has held “that a party’s objections to the magistrate judge’s report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or-for appellate review.” One Parcel,
It does not appear that Congress intended to require district court review of a magistrate’s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings. The House and Senate Reports accompanying the 1976 amendments do not expressly consider what sort of review the district court should perform when no party objects to the magistrate’s report. See S.Rep. No. 94-625, pp. 9-10 (1976)(“Senate Report”); H.R.Rep. No. 94-1609, p. 11 (1976), U.S.Code Cong. & Admin. News 1976, p. 6162 (“House Report”). There is nothing in those Reports, however, that demonstrates an intent to require the district court to give any more consideration to the magistrate’s report than the court considers appropriate. Moreover, the Subcommittee that drafted and held hearings on the 1976 amendments had before it the guidelines of the Administrative Office of the United States Courts concerning the efficient use of magistrates. Those guidelines recommended to the district courts that “[w]here a magistrate makes a finding or ruling on a motion or an issue, his determination should become that of the district court, unless specific objection is filed within a reasonable time.” See Jurisdiction of United States Magistrates, Hearings on S. 1283 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 24 (1975)(emphasis added)(“Senate Hearings”). The Committee also heard Judge Metzner of the Southern District of New York, the chairman of a Judicial Conference Committee on the administration of the magistrate system, testify that he personally followed that practice. See Senate Hearings at 11 (“If any objections come in, ... I review [the record] and decide it. If no objections come in, I merely sign the magistrate’s order.”). The Judicial Conference of the United States, which supported the de novo standard of review eventually incorporated in§ 636(b)(1)(C) , opined that in most instances no party would object to the magistrate’s recommendation, and the litigation would terminate with the judge’s adoption of the magistrate’s report. See Senate Hearings at 35, 37. Congress apparently assumed, therefore, that any party who was dissatisfied for any reason with the magistrate’s report would file objections, and those objections would trigger district court review. There is no indication that Congress, in enacting§ 636(b)(1)(C) , intended to require a district judge to review a magistrate’s report to which no objections are filed. It did not preclude treating the failure to object as a procedural default, waiving the right to further consideration of any sort. We thus find nothing in the statute or the legislative history that convinces us that Congress intended to forbid a rule such as the one adopted by the Sixth Circuit.
Thomas v. Arn,
Where a party files timely and specific objections to the magistrate judge’s proposed findings and recommendation on “dispositive motions, the statute calls for a de novo determination, not a de novo hearing.” United States v. Raddatz,
A district court must “clearly indicate that it is conducting a de novo determination” when a party objects to the magistrate’s report “based upon conflicting evidence or testimony.” Gee v. Estes,
It is common practice among district judges in this circuit to make such a statement and adopt the magistrate judges’ recommended dispositions when they find that magistrate judges have dealt with the issues fully and accurately and that they could add little of value to that analysis. We cannot interpret the district court’s statement as establishing that it failed to perform the required de novo review.
In re Griego,
Notably, because “Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings and recommendations,” United States v. Raddatz, 447 U.S. at 676,
Where no party objects to the Magistrate Judge’s proposed findings and recommended disposition, the Court has, as a matter of course and in the interests of justice, reviewed the Magistrate Judge’s recommendations. In Pablo v. Soc. Sec. Admin., No. CIV 11-0132 JB/ACT,
LAW REGARDING PRIOR RESTRAINTS ON SPEECH
“[P]rior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights.” Neb. Press Ass’n v. Stuart,
1. Prior Restraint Defined.
In the abstract, prior restraints are contrasted against restrictions that provide for subsequent punishment. Dean Erwin Chemerinsky provides the following guidance in his hornbook:
It is too broad to say that a prior restraint is a government action that prevents speech from occurring. All laws outlawing speech would constitute prior restraints by this definition. Nor is the traditional distinction between censorship before speech and after the fact punishments sufficient. All punishment for speech — whether under prior restraints or other laws-occurs after the expression takes place. All government actions regulating speech-whether prior restraints or not — exist before the speech occurs.
The clearest definition of prior restraint is as an administrative system or a judicial order that prevents speech from occurring....
Erwin Chemerinsky, Constitutional Law: Principles and Policies § 11.2.3.1, at 949-50 (3d ed.2006).
The best way to determine whether a given speech, restriction is a prior restraint is to consider the reasons for-the heightened skepticism towards prior restraints in the first place and determine whether the speech restriction in question implicates those reasons. It is not immediately obvious why prior restraints are disfavored.
Some of this animus is historical, carried over from judicial opposition to .the English Crown’s licensing system for publications. See 4 William Blackstone, Commentaries *151-152 (“[T]he liberty of the press is, indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published.”). Other reasons remain viable today:
A system of prior restraint is in many ways more inhibiting than a system of subsequent punishment: It is likely to bring under government scrutiny a far wider range of expression; it shuts off communication before it takes place; suppression by a stroke of the pen is more likely to be applied than suppression through a criminal process; the procedures do not require attention to the safeguards of the criminal process; the system allows less opportunity for public appraisal and criticism; the dynamics of the system drive toward excesses, as the history of all censorship shows.
Thomas Emerson, The System of Freedom of Expression 506 (1970).
Perhaps the most compelling rationale for the distinction between prior restraints and subsequent punishment is the collateral bar rule. The collateral bar rule provides that when a specific individual is restrained from expression — as by an injunction or the denial of a permit, not through the enforcement of laws applicable to everyone in the general public — he must challenge the restraint directly, without first violating it. The collateral bar rule appears to be based upon the conception that, while citizens need not obey an unconstitutional law, they must respect the judiciary’s decision whether that law is constitutional. In Walker v. City of Birmingham,
This case would arise in quite a different constitutional posture if the petitioners, before disobeying the injunction, had challenged it in the Alabama courts, and had been met with delay or frustration of their constitutional claims. But there is no showing that such would have been the fate of a timely motion to modify or dissolve the injunction. There was an interim of two days between the issuance of the injunction and the Good Friday march. The petitioners give absolutely no explanation of why they did not make some application to the state court during that period. The injunction had issued ex parte; if the court had been presented with the petitioners’ contentions, it might well have dissolved or at least modified its order in some respects. If it had not done so, Alabama procedure would have provided for an expedited process of appellate review. It cannot be presumed that the Alabama courts would have ignored the petitioners’ constitutional claims....
The rule of law that Alabama followed in this case reflects a belief that in the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion. This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners’ impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.
Walker v. City of Birmingham,
The collateral bar rule cuts off citizens’ ability to speak in the face of prior restraints, even if the citizen is confident and correct that the restraint is unconstitutional. Prior restraints, thus, have the effect of absolutely suppressing speech, with no opportunity for after-the-fact vindication by the speaker, at least until they are challenged and overturned. If the prior restraint is never challenged — for example, if the restrained individual lacks the resources to fight the government in court— then it acts to permanently prevent the restricted speech from entering the marketplace of ideas.
Courts have been most likely to find that a speech restriction is a prior restraint when the collateral bar rule would apply to a violation of the restriction. “In practice, most prior restraints involve either an administrative rule requiring some form of license or permit before one may engage in expression, or a judicial order directing an individual not to engage in expression, on pain of contempt.” Rodney Smolla, Smolla and Nimmer on Freedom of Speech § 15:1 (2014). These two forms of prior restraint share another invidious feature, in addition to the applicability of the collateral bar rule: they are individualized decisions, in which the identity of the speaker, and often the exact content of the message, are known in advance of the creation of the prior restraint.
2. The Standard of Judicial Review Applicable to Prior Restraints.
“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan,
This standard, which retains the tailoring aspect of strict scrutiny while softening the government interest prong, is a sensible one to apply to prior restraints. The concern with prior restraints is not so much with their core-substantive content, but with their scope, with their preemptive nature, and with the individualized manner of their enforcement. The requirement of narrow tailoring and least restrictive means mirrors and amplifies the standard for overbreadth challenges, which are often unavailable for prior restraints because of the collateral bar rule. ■ On the other hand, if a narrow, easily delineable category of speech clearly unprotected by the First Amendment is to be restricted, whether the restriction may be justified only on the basis of a compelling state interest or may be justified by any significant state interest, should not turn on whether the restriction operates before or after the speech occurs.
The Supreme Court has elaborated on the scrutiny courts should apply to prior restraints in a few specific contexts, notably, prior restraints in the name of national security and prior restraints to protect the fairness of criminal trials.
a. The Troopship Exception: Restraints on News Publications Justified by National Security.
The national security context appears to be the setting in which prior restraints may be most often found constitutional, but the Supreme Court has emphasized that the courts are not to be deferential to the government merely because national security is raised as a justification. See New York Times v. United States,
This exception was first analyzed in New York Times v. United States. See
I adhere to the view that the Government’s case against the Washington Post should have been dismissed and that the injunction against the New York Times should have been vacated without oral argument when the cases were first presented to this Court. I believe that every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment. Furthermore, after oral argument, I agree completely that we must affirm the judgment of. the Court of Appeals for the District of Columbia Circuit and reverse the judgment of the Court of Appeals for the Second Circuit for the reasons stated by my Brothers DOUGLAS and BRENNAN. In my view it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment.
Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.
• The Honorable William J. Brennan, Associate Justice of the Supreme Court, was only slightly more amenable to prior restraints, setting forth a standard of scrutiny so strict that it might more aptly be characterized as an exception to a blanket rule against them: “[O]nly governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order.”
b. Gag Orders: Prior Restraints to Protect Fair Trials for Criminal Defendants.
The Supreme Court has outlined a three-prong test for evaluating gag orders — injunctions issued to prevent the press from publishing information relating to an ongoing or forthcoming trial — that results in their almost never being found constitutional. See Neb. Press Ass’n v. Stuart,
LAW REGARDING FIRST-AMENDMENT OVERBREADTH CHALLENGES
An overbreadth challenge is a facial challenge to a speech-restricting statute on First Amendment grounds, and, if successful, it results in the invalidation of the entire statute. To succeed, the challenged statute must regulate substantially more expression than the First Amendment allows to be regulated. See Schad v. Borough of Mt. Ephraim,
1. The Substantive Aspect: Inverting the Usual Rule for Facial Challenges.
Outside of the First-Amendment context, for a party to succeed in facially challenging a statute, “the challenger must establish that no set of circumstances exists under which the Act would be valid.”
An example of a successful overbreadth challenge occurred in Schad v. Borough of Mt. Ephraim,
“[T]he overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma,
As to where the line is between insubstantial overbreadth and substantial over-breadth, the Supreme Court has stated:
The concept of substantial over-breadth is not readily reduced to an exact definition. It is clear, however, that the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge. On the contrary, the requirement of substantial overbreadth stems from the underlying justification for the overbreadth exception itself — the interest in preventing an invalid statute from inhibiting the speech of third parties who are not before the Court.
“The requirement of substantial over-breadth is directly derived from the purpose and nature of the doctrine. While a sweeping statute, or one incapable of limitation, has the potential to repeatedly chill the exercise of expressive activity by many individuals, the extent of deterrence of protected speech can be expected to decrease with the declining reach of the regulation.” New York v. Ferber,458 U.S. 747 , 772,102 S.Ct. 3348 ,73 L.Ed.2d 1113 (1982). In short, there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on over-breadth grounds.
Members of the City Council of L.A. v. Taxpayers for Vincent,
When assessing whether an over-broad statute is likely to chill third parties from engaging in protected expression, courts should assess not only whether the number of unconstitutional potential applications of the statute is significant relative to the overall number of applications, but the level of interpretive discretion given to those in charge of its enforcement, and the likelihood of capricious enforcement. In
As the Court observed over a century ago, “[i]t would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.” United States v. Reese, 92 U.S. (2 Otto) 214, 221,23 L.Ed. 563 (1876).
The ordinance’s plain language is admittedly violated scores of times daily, yet only some individuals — those chosen by the police in their unguided discretion-are arrested. Far from providing the “breathing space” that “First Amendment freedoms need ... to survive,” NAACP v. Button,371 U.S. 415 , 433,83 S.Ct. 328 ,9 L.Ed.2d 405 (1963), the ordinance is susceptible of regular application to protected expression.
City of Houston, Tex. v. Hill,
Last, some commentators have suggested that, when considering whether a statute’s overbreadth is substantial, courts should take into account the importance of the protected speech being restricted or chilled. See Richard Fallon, Jr., Making Sense of Overbreadth, 100 Yale L.J. 853, 894 (1991). Under this view, a statute that chills a swath of political speech should be more readily facially invalidated than one that chills sexual, frivolous, or even artistic speech — the latter statute being more amenable to as-applied challenges. Although the Supreme Court has not endorsed this view explicitly, it has held that “the overbreadth doctrine does not apply to commercial speech.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
2. The Standing Aspect: The Near Abolition of Prudential Standing Factors.
A non-First Amendment, non-over-breadth facial challenge is always more difficult to mount than an as-applied challenge to the same statute. See United States v. Salerno,
Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied wili not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court. A closely related principle is that constitutional rights are personal and may not be asserted, vicariously. These principles rest on more than the fussiness of judges. They reflect the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws. Constitutional judgments, as Mr. Chief Justice Marshall recognized, are justified only out of the necessity of adjudicating rights in particular cases between the litigants brought before the Court.
Broadrick v. Oklahoma,
The relative difficulty of mounting facial and as-applied challenges is almost, but not entirely, reversed in the context of a First Amendment overbreadth challenge. Although a successful as-applied challenge does not guarantee a victorious facial challenge — the court could find the statute’s overbreadth insubstantial — it is not necessary to have a viable as-applied challenge to succeed on a facial challenge. “[W]here the claim is that a statute is overly broad in violation of the First Amendment, ... [there is] no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.” Sec’y of State of Md. v. Joseph H. Munson Co., Inc.,
The relaxation of. the usual standing rules in the overbreadth context goes further than simply allowing an individual to whom the law is constitutionally applied to sue on the basis of unconstitu
[T]he Secretary’s most serious argument against allowing Munson to challenge the statute is that there is no showing that a charity cannot bring its own lawsuit. Although such an argument might defeat a party’s standing outside the First Amendment context, this Court has not found the argument dispositive in determining whether standing exists to challenge a statute that allegedly chills free speech. To the contrary, where the claim is that a statute is overly broad in violation of the First Amendment, the Court has allowed a party to assert the rights of another without regard to the ability of the other to assert his own claims and “ ‘with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ ” Broadrick v. Oklahoma,413 U.S. at 612 ,93 S.Ct. 2908 (quoting Dombrowski v. Pfister,380 U.S. 479 , 486,85 S.Ct. 1116 ,14 L.Ed.2d 22 (1965)).
The fact that, because Munson is not a charity, there might not be a possibility that the challenged statute could restrict Munson’s own First Amendment rights does not alter the analysis. Facial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society — to prevent the statute from chilling the First Amendment rights of other parties not before the court. Munson’s ability to serve that function has nothing to do with whether or not its own First Amendment rights are at stake. The crucial issues are whether Munson satisfies the requirement of “injury-in-fact,” and whether it can be expected satisfactorily to frame the issues in the case. If so, there is no reason that Munson need also be a charity. If not, Munson could not bring this challenge even if it were a charity.
The Secretary concedes that the Art. Ill case-or-controversy requirement has been met and the Secretary has come forward with no reason why Munson is an inadequate advocate to assert the charities’ rights. The activity sought to be protected is at the heart of the business relationship between Munson and its clients, and Munson’s interests in challenging the statute are completely consistent with the First Amendment interests of the charities it represents. We see no prudential reason not to allow it to challenge the statute
Sec’y of State of Md. v. Joseph H. Munson Co., Inc.,
LAW REGARDING FIRST AMENDMENT STANDARDS ON GOVERNMENT PROPERTY
The Supreme Court “has adopted a forum analysis as a means of determining when the Government’s interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes.” United States v. Kokinda,
Regulation of speech activity on governmental property that has been traditionally open to the public for expressive activity, such as’ public streets and parks, is examined under strict scrutiny. Regulation of speech on property that the Government has expressly dedicated to speech activity is also examined under strict scrutiny. But regulation of speech activity where the Government has not dedicated its property to First Amendment activity is examined only for reasonableness.
United States v. Kokinda
1. The Tripartite Framework.
In analyzing the constitutionality of restrictions on speech that occurs on public property, the Supreme Court has “identified three types of forums: the traditional public forum, the public forum created by government designation, and the nonpublic forum.” Cornelius v. NAACP Legal Defense & Educ. Fund, Inc.,
a. Traditional Public Forums.
“Traditional public fora are defined by the objective characteristics of the property, such as whether, ‘by long tradition or by government fiat,’ the property has been ‘devoted to assembly and debate.’ ” Ark. Educ. Television Comm’n v. Forbes,
b. Designated Public Forums.
“Designated public fora ... are created by purposeful governmental action.” Ark. Educ. Television Comm’n v. Forbes,
c. Nonpublic (or Limited Public) Forums.
“Other government properties are either nonpublic fora or not fora at all.” Ark. Educ. Television Comm’n v. Forbes,
With respect to activities on government property, the Constitution does not require “the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.”
Ramos v. Carbajal,
The Supreme Court determined in International Society for Krishna Consciousness, Inc. v. Lee that airport terminals are nonpublic forums, and the government could thus -impose reasonable, viewpoint-neutral, speech restrictions. See
The Supreme Court further noted that airport terminals, the primary purpose of which is to “provide services attractive to the marketplace,” are not forums which have a principal purpose of promoting the “ ‘free exchange of ideas.’ ”
Regarding speech restrictions in a nonpublic forum, the Supreme Court emphasized in International Society for Krishna Consciousness, Inc. v. Lee that the “restriction need only be reasonable; it need not be the most reasonable or the only reasonable limitation.”
In sum, the Supreme Court in International Society for Krishna Consciousness, Inc. v. Lee stated that the “inconveniences to passengers and the burden on the [airport] officials flowing from solicitation activity may seem small, but viewed against the fact that pedestrian congestion is one of the greatest problems facing the three terminals, ... the. [airport] could reasonably worry that even such incremental effects would prove quite disruptive.”
2. Reasonable Time, Place, or Manner Restrictions.
Regardless of the forum involved, the government may impose time, place, or manner restrictions on speech that takes place on government property, provided that the restrictions are: (i) reasonable; (ii) content-neutral, both as to subject matter and viewpoint; (iii) aimed at serving a “significant governmental interest”; (iv) narrowly tailored to effectuate that interest; and (v) crafted in a way that “leaves open ample alternative channels of communication.”
The Tenth Circuit has held that significant government interests “include public safety, accommodating competing uses ..., controlling the level and times of noise, and similar interests.” First Unitarian Church of Salt Lake City v. Salt Lake City Corp.,
[A] regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied “so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” United States v. Albertini,472 U.S. 675 , 689,105 S.Ct. 2897 ,86 L.Ed.2d 536 (1985). To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government’s legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. See Frisby v. Schultz,487 U.S. 474 , 485,108 S.Ct. 2495 ,101 L.Ed.2d 420 (1988) (“A complete ban can be narrowly tailored but only if each activity within the proscription’s scope is an appropriately targeted evil.”). So long as the means chosen are not substantially broader than necessary to achieve the government’s interest, however, the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative. “The validity of [time, place, or manner] regulations does not turn on a judge’s agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests” or the degree to which those interests should be promoted. United States v. Albertini,472 U.S. at 689 ,105 S.Ct. 2897 .
Ward v. Rock Against Racism,
LAW REGARDING VOID-FOR-VAGUENESS DOCTRINE
“Facial invalidation is, manifestly, strong medicine that has been employed by the Court sparingly and only as a last resort.” Nat’l Endowment for the Arts v. Finley,
“A federal court evaluating a vagueness challenge to a state law must read the statute as it is interpreted by the state’s highest court.” United States v. Gaudreau,
A strong presumption of constitutionality underlies each legislative enactment, and we will not void a statute where a constitutional construction is reasonably supported by the statutory language. In construing a regulation or statute, “this Court has a duty to affirm the legislation’s validity and constitutionality if reasonably possible.” Old Abe Co. v. N.M. Mining Comm’n, 1995—NMCA-134, ¶ 43,121 N.M. 83 ,908 P.2d 776 , 789-90. A statute is only unconstitutional “if it is so vague that persons of common intelligence must guess at its meaning and would differ in its application.” City of Albuquerque v. Sanchez,1992-NMCA-038 , ¶ 21,113 N.M. 721 ,832 P.2d 412 , 418. However, “absolute or mathematical certainty is not required in the framing of a statute.” State ex rel. Bliss v. Dority, 1950-NMSC-066 , ¶ 35,55 N.M. 12 ,225 P.2d 1007 , 1017.
Bishop v. Evangelical Good Samaritan Soc’y,
In determining whether a federal statute is unconstitutionally vague, the Supreme Court has also noted that a strong presumption of validity attaches to Congress’ enactments and has consistently construed a challenged statute narrowly rather than condemn it as unconstitutionally vague. See Skilling v. United States,
[T]here is no doubt that Congress intended § 1346 to reach at least bribes and kickbacks. Reading the statute to proscribe a wider range of offensive conduct, we acknowledge, would raise the due process concerns underlying the vagueness doctrine. To preserve the statute without transgressing constitutional limitations, we now hold that § 1346 criminalizes only the bribe-and-kickback core of the pre-McNally [v. United States,483 U.S. 350 ,107 S.Ct. 2875 ,97 L.Ed.2d 292 (1987), a case that rejected lower courts’ expansion of § 1346 to criminalize a broad and nebulous umbrella of conduct] case law.
Justice SCALIA charges that our construction of § 1346 is “not interpretation but invention.” Skilling v. United States,561 U.S. at 422 ,130 S.Ct. 2896 (Scalia, J., dissenting, joined by Thomas & Kennedy, JJ.). Stating that he “know[s] of no precedent for ... ‘paring down’ ” the pre-McNally case law to its core, he contends that the Court today “wield[s] a power we long ago abjured: the power to define new federal crimes.” As noted, cases “paring down” federal statutes to avoid constitutional shoals are legion. These cases recognize that the Court does not legislate, but instead respects the legislature, by preserving a statute through a limiting interpretation. See United States v. Lanier,520 U.S. 259 , 267-268, n. 6,117 S.Ct. 1219 ,137 L.Ed.2d 432 (1997) (This Court does not “create á common law crime” by adopting a “narrow[ing] constru[ction].” (internal quotation marks omitted)). Given that the Courts of Appeals uniformly recognized bribery and kickback schemes as honest-services fraud before McNally, and that these schemes composed the lion’s share of honest-services cases, limiting § 1346 to these heartland applications is surely “fairly possible.”Boos v. Barry, 485 U.S. 812 , 331,108 S.Ct. 1157 ,99 L.Ed.2d 333 (1988). Cf. Clark v. Martinez,543 U.S. 371 , 380,125 S.Ct. 716 ,160 L.Ed.2d 734 (2005) (Scalia, J.) (when adopting a limiting construction, “[t]he lowest common denominator, as it were, must govern”). So construed, the statute is not unconstitutionally vague. Only by taking a wrecking ball to a statute that can be salvaged through a reasonable narrowing interpretation would we act out of step with precedent.
Skilling v. United States,
In Grayned v. City of Rockford,
Assuming that the Court may “perhaps to some degree” consider the FCC’s interpretation of the statute in evaluating whether the statute is vague, Grayned v. City of Rockford,408 U.S. 104 , 110,92 S.Ct. 2294 ,33 L.Ed.2d 222 (1972), as Plaintiff urges the Court to do, arguable inconsistencies in a statute’s application in a handful of cases do not condemn a statute. If such limited inconsistencies rendered statutes unconstitutionally vague, the majority of statutes would probably not survive a vagueness challenge. Rather, “uncertainty at a statute’s margins will not warrant facial invalidation if it is clear what the statute proscribes ‘in the vast majority of its intended applications.’” California Teachers Ass’n [v. State Bd. of Educ.], 271 F.3d [1141] at 1151 [ (9th Cir.2001) ] (quoting Hill v. Colorado,530 U.S. 703 , 733,120 S.Ct. 2480 ,147 L.Ed.2d 597 (2000)(rejecting vagueness challenge)(internal quotation marks omitted)). As in Grayned, the words of the statute here are marked by “flexibility and reasonable breadth, rather than meticulous specificity,” and “it is clear what the ordinance as a whole prohibits.”408 U.S. at 110 ,92 S.Ct. 2294 (quoting Esteban v. Central Missouri State College,415 F.2d 1077 , 1088 (8th Cir.1969)).
Minority TV. Project Inc. v. FCC,
Numerous statutes have withstood facial vagueness challenges even though they contained arguably ambiguous language. See, e.g., Hill v. Colorado,
The void-for-vagueness doctrine operates in much reduced force outside of its core area of application, criminal law. “To find a civil statute void for vagueness, the statute must be ‘so vague and indefinite as really to be no rule or standard at all.’ ” Seniors Civil Liberties Ass’n, Inc. v. Kemp,
The void-for-vagueness doctrine applies in civil cases as well as criminal ones. See, e.g., Gentile v. State Bar of Nev.,501 U.S. 1030 , 1048-51 [111 S.Ct. 2720 ,115 L.Ed.2d 888 ] (1991)(holding that attorney disciplinary rule was unconstitutionally vague as applied); Arnett v. Kennedy,416 U.S. 134 , 159-64 [94 S.Ct. 1633 ,40 L.Ed.2d 15 ] (1974)(plurality)(holding employment protection standard not impermissibly vague in regulating speech of federal employees); [416 U.S.] at 164 [94 S.Ct. 1633 ] (Powell, J., concurring in part and concurring in result in part)(agreeing with plurality on this issue); Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers,413 U.S. 548 , 576-79 [93 S.Ct. 2880 ,37 L.Ed.2d 796 ] (1973) (considering void-for-vagueness challenge to restriction on government employee speech, though concluding that rule was not impermissi-bly vague); Keyishian v. Bd. of Regents,385 U.S. 589 , 603-04 [87 S.Ct. 675 ,17 L.Ed.2d 629 ] (1967) (holding that restriction on government employee speech was unconstitutionally vague).
“To find a civil statute void for vagueness, the statute must be so vague and indefinite as really to be no rule or standard at all.” Boutilier v. INS,387 U.S. 118 , 123,87 S.Ct. 1563 ,18 L.Ed.2d 661 (1967). Plaintiffs try to overcome this civil-statute standard by arguing that the Act imposes quasi-criminal penalties. But “even if construed as a penal statute, a non-criminal statute is not unconstitutionally vague ‘if persons of reasonable intelligence can derive a core meaning from the statute.’ ” Cotton States Mutual Ins. Co. v. Anderson, 749 F.2d 663 , 669 n. 9 (11th Cir.1984).
Smith v. Campbell, No. CIV 03-0973 ID/WO,
ANALYSIS
The Court has carefully reviewed: (i) all pleadings and attached documents, consisting of the Complaint, the Ruidoso Defendants’ Answer to Complaint for Violation of Civil Rights, Damages and for Declaratory and Injunctive Relief, filed October 10, 2013 (Doc. 14), and Defendant Daniel A. Bryant’s Answer to Complaint for Violation of Civil Rights, Damages and for Declaratory and Injunctive Relief, filed October 10, 2013 (Doc. 15); (ii) all briefing submitted to Judge Wormuth on the motion, consisting of the MSJ, Griffin’s Response to the Motion for Summary Judgment, filed October 28, 2013 (Doc. 17), and the Ruidoso Defendants’ Reply in Support of Motion for Summary Judgment, filed November 11, 2013 (Doc. 19); (iii) the PFRD; and (iv) both parties’ Objections to the PFRD. Griffin’s Complaint asserts the following claims: violation of his First Amendment rights when the Governing Body
I. THE COURT OVERRULES THE DEFENDANTS’ SOLE OBJECTION, WHICH RELATES TO JUDGE WORMUTH’S RECOMMENDATION FOR DECLARATORY RELIEF REGARDING THE “NO NEGATIVE MENTION” PROVISION IN THE GOVERNING BODY RESOLUTIONS.
The Defendants’ sole objection to Judge Wormuth’s PFRD is to contest the proposed finding that Section 5Ff,
The Court will grant Griffin’s request for a declaratory judgment that Section 5Ff is unconstitutional, see Complaint ¶¶ 98-100, at 18-19, and his request for injunctive relief “[prohibiting the Village of Ruidoso from enforcing the public ban against negative mention of Village personnel, staff or the governing body,” Complaint ¶ 102b, at 19. The Court agrees with Judge Wormuth’s result and, generally, with his reasoning, see PFRD at 22-27, but will analyze the issue separately to clarify several points. Judge Wormuth states that “[t]he ‘negative mention’ provision of Section 5Ff may be an unconstitutional prior restraint on speech.” PFRD at 22 (emphasis omitted). He declines to decide what type of First Amendment- forum the public input portion of the meeting is, see PFRD at 13-15, 24 n. 11, forgoing this step of the analysis “because [he] find[s] that the restriction at issue here is content-based, [and thus] the type of forum is irrelevant.” PFRD at 24 n. 11. Judge Wormuth comes to the conclusion that Section 5Ff is content-based without much analysis, stating only: “[I]t is precisely because the content of the speech is ‘negative’ with regards to the Village personnel, staff, or the Governing Body that it is regulated.” PFRD at 24 (emphasis in original) (citations omitted). Once he finds that the restriction is content-based, Judge Wormuth applies strict scrutiny, finding that-unlike the City of Topeka’s rule that “[a]ny person making personal, rude, or slanderous remarks ... while addressing the Council shall be requested to leave the meeting and may be at once barred ...
The Court will approach the analysis somewhat differently. First, the Court concludes that Section 5Ff is not void for vagueness under the Due Process Clause. The Court agrees with Judge Wormuth that the void-for-vagueness doctrine does not apply in full force to an ordinance such as this one, where the only penalty for noncompliance is the loss of speaking rights at a meeting. Second, the Court concludes that Griffin has standing to challenge Section 5Ffs constitutionality. Even though Griffin was neither restrained from nor punished for violating Section 5Ff, he has standing under First Amendment overbreadth principles, because the Court concludes that he suffered an injury in fact under the meaning of the Case or Controversy Clause, and prudential standing is presumed satisfied in. First Amendment challenges. Third, beginning the substantive First Amendment analysis, the Court concludes that Section 5Ff is not a prior restraint, but rather a rule that provides for subsequent punishment. That Griffin may have been chilled from engaging in constitutionally protected speech by the threat of being cut off does not change the analysis. Last, the Court determines that even though Section 5Ff is not a prior restraint, it violates the First Amendment. The Governing Body meetings are limited public forums, and, as such, any speech restrictions need only be reasonable and viewpoint-neutral, but not necessarily content-neutral. The Court concludes, however, that Section. 5Ff is viewpoint-based, because its prohibition against “negative mention ... of any Village personnel, staff or the Governing Body,” permits praise and neutral feedback, but not criticism, of both government employees and, worse, the Governing Body itself. The Court further concludes that strict scrutiny, not substantial over-breadth, is the relevant substantive standard to apply to viewpoint-based speech restrictions and that Section 5Ff fails strict scrutiny. Because the Court has no basis in law or in fact for construing Section 5Ff narrowly to save its constitutionality, it will strike it down the rule as unconstitutional.
A. THE VOID-FOR-VAGUENESS DOCTRINE DOES NOT APPLY TO SECTION 5Ff, BECAUSE SECTION 5Ff IS NOT A CRIMINAL PROVISION AND IT PROVIDES AN INTELLIGIBLE STANDARD OF CONDUCT.
The Court agrees with Judge Wormuth’s void-for-vagueness analysis. The void-for-vagueness doctrine is primarily a criminal doctrine. See Skilling v. United States,
Non-penal statutes are often vague and are not struck down as void for vagueness. For example, many statutes — as well as ordinary negligence law — hold people to the standard of a “reasonable person,” which is at least as vague as the criminal ordinances the Supreme Court struck down in Coates v. Cincinnati,
Is Wisconsin’s law vague? Of course it is. No statute so compact as § 100.31(2) resolves a fraction of the problems that attend any attempt to regulate price differences. Weighty treatises on the Robinson-Patman Act attest to the many subtle issues that arise. One open issue in particular excites AHPC and its supporting amicus: over what time? Does § 100.31(2) ban different prices only in contemporaneous sales, or may sales months apart be matched? Plaintiffs’ complaint seeks redress for price differences in sales separated by six months. If § 100.31(2) has such scope, AHPC observes, then it is unlawful for a firm to increase or reduce its prices, period. Nothing in § 100.31(2) helps a court fix the temporal scope of the bar or resolve the other questions sure to arise.
Is Wisconsin’s law unconstitutionally vague? Of course it is not. It is no worse than the Robinson-Patman Act itself, which resolves few of the manyquestions (including temporal scope) so vital to implementation. If § 100.31(2) is unconstitutionally vague, then the entire common law is unconstitutional because courts revise this non-text as they go along, and all laws calling for “reasonable” behavior in one or another fashion are forbidden. Yet for centuries courts have thought it sufficient that specificity may be created through the process of construction. Clarity via interpretation is enough even when the law affects political speech, see Civil Service Comm’n v. Letter Carriers, 413 U.S. 548 , 575-80,93 S.Ct. 2880 ,37 L.Ed.2d 796 (1973)(upholding the Hatch Act), or defines crimes, ■ see Parker v. Levy,417 U.S. 733 , 752-57,94 S.Ct. 2547 ,41 L.Ed.2d 439 (1974)(upholding a provision of the Uniform Code of Military Justice punishing “conduct unbecoming an officer and a gentleman”). Section 100.31(2) sets an intelligible benchmark (no price discrimination) and leaves the details to be worked out. Section 100.31(2) is no less precise than the Sherman Act, another law providing for treble damages in private actions and criminal punishment in public ones. Long ago the Court deemed the Sherman Act sufficient, and it has never questioned that conclusion. If the Sherman and Robinson-Patman Acts comport with the due process clause, so does § 100.31(2). AHPC observes that the thousands of cases interpreting these rules provide information missing for § 100.31(2), but to every law there comes a first interpretation. The Sherman Act was not unconstitutional in 1890, becoming enforceable only in 1913. It. has been constitutional all along because it provides a starting place, and courts resolve disputes as they arise.
K-S Pharmacies, Inc. v. Am. Home Prods. Corp.,
The Court concludes that Section 5Ff clears the extremely low bar that the void-for-vagueness doctrine sets for non-penal statutes. It is not “so vague and indefinite as really to be no rule or standard at all.” Boutilier v. INS,
B. GRIFFIN HAS ARTICLE III STANDING AND STANDING UNDER THE OVERBREADTH DOCTRINE TO CHALLENGE SECTION 5.
Griffin has standing to challenge Section 5Ffs “negative mention” rule,
Even though the usual prudential standing considerations are presumed satisfied in an overbreadth challenge, Griffin must still establish Article III standing for his case to be justiciable in federal court. Article III standing requires injury in fact, causation, and redressability. See Lujan v. Defenders of Wildlife,
C. SECTION 5FfS “NEGATIVE MENTION” RULE IS NOT A PRIOR RESTRAINT ON SPEECH.
Section 5Ff is not a prior restraint on speech, but rather a rule that provides for subsequent punishment. That Griffin may have been chilled from engaging in constitutionally protected speech by the threat of the punishment — which, here, is only that he would have been directed to quit speaking — and was never subjected to subsequent punishment does not change that conclusion. When the government intervention comes only after the restricted speech has already been spoken, the restriction is not a prior restraint. Had the Governing Body refused to allow Griffin to speak on the basis of their suspicion that he would violate Section 5Ff, see Village of Ruidoso Resolution 2012-16 at 5, filed October 14, 2013 (Doc. 16-5)(provid-ing, in Section 5Fi, that presenters will be directed to discontinue speaking after violating the rules of Section 5F), then perhaps the analysis would be different, but, because the Governing Body applies the sanction that Section 5Fi contemplates, see Village of Ruidoso Resolution 2012-16 at 5 (“If any of the above guidelines are violat
“In practice, most prior restraints involve either an administrative rule requiring some form of license or permit before one may engage in expression, or a judicial order directing an individual not to engage in expression, on pain of contempt.” Smolla, supra § 15:1. Section 5Ff is obviously neither of these. Moreover, the reason that prior restraint doctrine is generally confined to these two categories is because of the application of the collateral bar rule, and because the speaker’s identity and message can be known in advance of the creation of the restraint. The collateral bar rule has no application here; Griffin was not convicted of contempt of court, nor is he facing criminal or civil sanctions for refusal to honor a denial of a license. It is also not the case that the Governing Body created the prior restraint with Griffin’s specific identity or message in mind, in the way that an injunction is crafted or a license is denied only after consideration of an individual’s identity and message. Section 5Ff existed before Griffin began seeking the opportunity to comment at Governing Body meetings and was not an ad hoc creation in response to Griffin’s desire to speak.
Although the Tenth Circuit has not addressed this question, see Shero v. City of Grove, Okla.,
[pjlaintiff is wrong because the policy, which merely prohibits certain speech by persons already admitted to and making use of a public forum, is not a true or classic prior restraint, because it does not give a .public official the power to deny use of the forum in advance of the actual expression. Westbrook v. Teton Cnty. Sch. Dist. No. 1,918 F.Supp. 1475 , 1481-1482 (D.Wyo.1996) (Westbrook, J.). Instead, the policy is a species of censorship, ie., a “present government interference with or suppression of expression” accomplished through a “ ‘regulatory, proscriptive or compulsory1 exercise of governmental power.” Keene v. Meese,619 F.Supp. 1111 , 1118 (E.D.Cal.1985) (quoting Laird v. Tatum,408 U.S. 1 , 11,92 S.Ct. 2318 ,33 L.Ed.2d 154 (1972)).
Baca v. Moreno Valley Unified Sch. Dist.,
For the foregoing reasons, the Court concludes that Section 5Ff is not a prior
D. SECTION 5Ff IS FACIALLY INVALID ON FIRST AMENDMENT GROUNDS, BECAUSE IT IMPOSES A VIEWPOINT-BASED SPEECH RESTRICTION ON A LIMITED PUBLIC FORUM, AND THE RESTRICTION DOES NOT PASS STRICT SCRUTINY.
The Court concludes that Section 5Ff violates the First Amendment and is facially invalid. The proper standard to apply to Section 5Ff is neither Broadrick v. Oklahoma’s substantial overbreadth requirement nor United States v. Salerno’s requirement that “no set of circumstances exist under which the Act would be valid.” Rather, the proper analysis for assessing Section 5Ffs constitutionality is First Amendment forum analysis. First, the Court determines that the public input portion of the Governing Body meetings constitutes a limited public forum, and, thus, “[a]ny government restriction on speech ... must only be reasonable in light of the purpose served by the forum and be viewpoint neutral.” Shero v. City of Grove, Okla.,
1. The Governing Body Meetings, Including the Public Comment Periods, Constitute a Limited Public Forum, and, Therefore, Speech Restrictions Need Only Be Reasonable and Viewpoint-Neutral.
The Court concludes that Governing Body meetings — and the public input portions in particular — constitute a limited public forum for First-Amendment purposes. The Tenth Circuit has held that “it is not entirely clear whether a city council meeting should be treated as a ‘designated public forum’ or a ‘limited public forum,’ ” Shero v. City of Grove, Okla:,
The appropriate standard of Free Speech Clause analysis depends on the classification of the forum. [A] ... forum may constitute: (1) a traditional public forum (e.g., parks and streets), (2) a designated public forum (i.e., the government voluntarily transforms a nonpublic forum into a traditional public forum, thereby bestowing all the free speech rights associated with the traditional public forum, albeit on a potentially temporary basis, onto that now ‘designated public forum’), or (3) a nonpublic forum (i.e., the government retains the right to curtail speech so long as those curtailments are viewpoint neutral and reasonable for the maintenance of the forum’s particular official uses). See Cornelius v. NAACP Legal Defense & Educ. Fund, Inc.,473 U.S. at 800 ,105 S.Ct. 3439 ; Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,460 U.S. at 45-46 ,103 S.Ct. 948 . In classifying a particular forum as either a designated public forum or nonpublic forum, we begin with consideration of the intent of therelevant governmental entity. See Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. at 803 ,105 S.Ct. 3439 (“We will not find that a public forum has been created in the face of clear evidence of contrary intent, ... nor will we infer that the government intended to create a public forum when the nature of the property is inconsistent with expressive activity.”)
A ‘limited public forum’ is a subset of the nonpublic-forum classification. See, e.g., Summum v. Callaghan,130 F.3d 906 , 914 (10th Cir.1997)(“In more recent cases, ... the [Supreme] Court has used the term ‘limited public forum’ to describe a type of nonpublie forum....”). A limited public forum arises where “the government allows selective access to some speakers or some types of speech in a nonpublic forum, but does not open the property sufficiently to become a. designated public forum.” Summum v. Callaghan,130 F.3d at 916 .
Summum v. City of Ogden,
Neither the Governing Body meeting as a whole nor the public comment portion constitutes an “intentional opening [of] a nontraditional public forum,” Cornelius v. NAACP Legal Defense & Educ. Fund, Inc.,
The Governing Body has transformed what would otherwise be a non-forum into some level of speech forum through its Resolutions, which provide, among other things, for a public input period. The provisions in the Resolutions do not, however, intentionally “bestow[] all the free speech rights associated with the traditional public forum, albeit on a potentially temporary basis.” Summum v. City of Ogden,
Although a number of courts have followed the Tenth Circuit’s lead in refraining from categorizing city council meetings one way or the other, the Court’s conclusion comports with every United States Court of Appeals that has decided the issue: the Fourth, Fifth, Ninth, and Eleventh Circuits. See Fairchild v. Liberty Independent Sch. Dist.,
2. Section 5Ff Is Not Viewpoint-Neutral.
On its face, Section 5Ff s restriction that “no negative mention will be made of any Village personnel, staff or the Governing Body” is viewpoint-based, because it allows praise or neutral comment, but not criticism or disapproval, about government employees or the Governing Body. In a limited public forum, the government may impose: (i) content-based restrictions relating to subject matter; and (ii) reasonable time, place, and manner restrictions. Although Section 5Ff has elements of the latter, it eschews a limitation that could cure its constitutional infirmity: narrowing the phrase “negative mention[s]” to an equivalent phrase that would include only personal attacks and breaches of decorum,
a. Section 5Ff Is a Viewpoint-Based, Not Merely a Subject-Based, Speech Restriction.
In Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist.,
Here, little supports the contention that the restriction is subject-based rather than viewpoint-based. It is not clear what the subject matter being limited would be. Depending upon how the statute is construed, the proscription against “negative mention[s]” applies to a range of disparate topics, from eminent domain decisions (which citizens may praise but hot criticize) to allegations of police misconduct or official corruption (which citizens may deny but not support). Allegations of any kind — of incompetence, corruption, laziness, dereliction, or personal immorality— would seem to fall within the proscribed language of Section 5Ff even under its narrowest interpretation.
b. Section 5Ff Cannot Be Justified as a “Reasonable Manner” Restriction.
The Village argues that Section 5Ff constitutes a “time, place, or manner” restriction, which must be reasonable, content-neutral, and narrowly tailored to effectuate a significant government interest, and must “leave open ample alternative channels of communication.” Ward v. Rock Against Racism,
Councilman Fitzmaurice clearly wants Norse expelled because the “Nazi salute” is “against the dignity of this body and the decorum of this body” and not because of any disruption. But, unlike der Führer, government officials in America occasionally must tolerate offensive or irritating speech. See Cohen v. California,403 U.S. 15 ,91 S.Ct. 1780 ,29 L.Ed.2d 284 (1971); Duran v. City of Douglas, Ariz.,904 F.2d 1372 , 1378 (9th Cir.1990).
The Supreme Court long ago explained that “in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Tinker v. Des Moines Ind. Cmty. Sch. Dish,393 U.S. 503 , 508,89 S.Ct. 733 ,21 L.Ed.2d 731 (1969). Even in a limited public forum like a city council meeting, the First Amendment tightly constrains the government’s power; speakers may be removed only if they are actually disruptive.
We’ve said so twice. In White v. City of Norwalk,900 F.2d 1421 (9th Cir. 1990), we explained that speech must “disrupt!,] disturb!] or otherwise impede! ] the orderly conduct of the Council meeting” before the speaker could be removed.900 F.2d at 1426 . And in Kindt v. Santa Monica Rent Control Bd.,67 F.3d 266 (9th Cir.1995), we upheld a spectator’s ejection from a public meeting only because he was “disrupting the proceedings by yelling and trying to speak when it was not time for” discussion.67 F.3d at 271 . Had he been given a chance, Norse could no doubt have presented lots more evidence that he never disrupted the Santa Cruz council meeting, but what would have been the point? The video speaks for itself: Norse raises his hand in a brief, silent protest of the mayor’s treatment of another speaker. The mayor ignores Norse’s fleeting gesture until Councilman Fitzmaurice throws a hissy fit.
“Listeners’ reaction to speech is not a content-neutral basis for regulation.... Speech cannot be ... punished or banned! ] simply because it might offend a hostile” member of the Santa Cruz City Council. Forsyth Cnty., Ga. v. Nationalist Movement,505 U.S. 123 , 134-35, 112 S.Ct. 2395 ,120 L.Ed.2d 101 (1992). The council members should have known that the government may never suppress viewpoints it doesn’t like. See Rosenberger v. Rector & Visitors of the Univ. of Va.,515 U.S. 819 , 829,115 S.Ct. 2510 ,132 L.Ed.2d 700 (1995). Though defendants point to Norse’s reaction to Councilman Fitzmaurice as the “disruption” that warranted carting him off to jail, Norse’s calm assertion of his constitutional rights was not the least bit disruptive. The First Amendment would be meaningless if Councilman Fitzmaurice’s petty pique justified Norse’s arrest and removal.
Norse v. City of Santa Cruz,
Restrictions preventing individuals from harassing government officials at meetings have, however, occasionally been categorized as reasonable manner restrictions. In Lowery v. Jefferson Cnty. Bd. of Educ.,
The plaintiffs’ second challenge — that impermissible viewpoint discrimination motivated the decision to bar the plaintiffs from speaking — is also unavailing. No doubt, some evidence (if credited) suggests that disagreement with the plaintiffs’ viewpoint, not repetitiveness, prompted the denial of the second request. ...
Although the school board may exclude some types of “harassing” speech — if it has the potential to disrupt the meeting, or threatens illegal acts (as opposed to the filing of a non-frivolous lawsuit) — the board may not exclude speech merely because it criticizes school officials. See Police Dep’t of Chicago v. Mosley,408 U.S. 92 , 96,92 S.Ct. 2286 ,33 L.Ed.2d 212 (1972). Save for rare circumstances — say, speech promoting drug use at a high school event, see Morse v. Frederick,551 U.S. 393 , 403,127 S.Ct. 2618 ,168 L.Ed.2d 290 (2007)—the First Amendment forbids government officials from regulating speech based on their reaction to its point of view, see Police Dep’t of Chicago v. Mosley,408 U.S. at 96 ,92 S.Ct. 2286 .
In this instance, however, the jury had ample bases for concluding that any potential viewpoint-based motives of the board did not affect the outcome.
Lowery v. Jefferson Cnty. Bd. of Educ.,
It is clear that the Council’s prohibition on personal attacks is not based on the Council’s disagreement with any particular message, is unrelated to any particular viewpoint being expressed, and serves purposes unrelated to the particular content of the speech. The Council’s rule prohibits personal attacks on anyone, not just City employees or other City officials. Cf. Leventhal v.Vista Unified School Dist., 973 F.Supp. at 957 (district bylaw prohibiting criticism of District employees is a content-based regulation); Baca v. Moreno Valley Unified School Dist.,936 F.Supp. at 730 (district policy prohibiting “charges or complaints” against District employees is content-based prohibition). The Council’s rule focuses on the inherently disruptive nature of a personal attack in a Council meeting and not on the expressive content of the personal attack.
Scroggins v. City of Topeka, Kan.,
On the other hand, two district court cases out of California have concluded that a very similar restriction to Section 5Ff were facially invalid viewpoint-based speech restrictions. In Baca v. Moreno Valley Unified Sch. Dist.,
District’s policy clearly contains content-based prohibitions on speech, despite defendants’ assertions to the contrary. It forbids, at the risk of expulsion from the forum, speech which contains any “charges or complaints against any employee of the District, regardless of whether or not the employee is identified by name or by any reference which tends to identify the employee.” It is difficult to imagine a more content-based prohibition on speech than this policy, which allows expression of two points of view (laudatory and neutral) while prohibiting a different point of view (negatively critical) on a particular subject matter (District employees’ conduct or performance). In fact, policies which attempt to suppress or burden only critical speech are regularly held to be content-based. See, e.g., Westbrook v. Teton Cnty. Sch. Dist. No. 1,918 F.Supp. 1475 , 1494 (D.Wyo.l996)(holding that a school district’s policy, which limited and restricted teachers’ speech criticizing other staff members, administrators or school board members by restricting the audience to which such criticisms could . be directed, was content-based because it distinguished between favored and disfavored speech on the basis of the views expressed); Rubin v. City of Santa Monica,823 F.Supp. 709 , 713 (C.D.Cal.l993)(holding that an ordinance granting greater First Amendment rights to “speakers who support ‘the human services objectives of the City’” was impermissibly content-based).
Baca v. Moreno Valley Unified Sch. Dist.,
A year later, another California district judge struck down a school board bylaw providing that “[cjomplaints against an individual employee will not be heard at open Board meetings unless the- individual employee consents.” Leventhal v. Vista Unified Sch. Dist.,
The Bylaw effectuates a classic form of viewpoint discrimination. As the Baca court noted, the regulation “allows expression of two points of view (laudatory and neutral) while prohibiting a different point of view (negatively critical) on a particular subject matter (District employees’ conduct or performance).” Baca v. Moreno Valley Unified Sch. Dist.,936 F.Supp. at 730 . This system engenders discussion artificially geared toward praising (and maintaining) the status quo, thereby foreclosing meaningful public dialogue and, ultimately, dynamic political change.
The Bylaw fosters yet another form of viewpoint discrimination, unfairly permitting one-sided debate at Board meetings. As previously discussed, Superintendent Gyves and Board member Vervynck criticized several nonemployee speakers. Yet members of the community at large cannot respond to these charges, even to discuss the same subject matter or issue, if Board President Hubbard determines that their comments relate to a “personnel issue.” In other words, the Bylaw permits the expression of one viewpoint (“complaints” or “charges” against members of the public) but not another (“complaints” or “charges” against District employees).
Leventhal v. Vista Unified Sch. Dist.,
The Honorable Thomas S. Zilly, United States District Judge for the Western District of Washington, struck down a speech restriction much like Section 5Ff. See Aldrich v. Knab,
The Court concludes that Section 5Ff cannot be justified as a reasonable manner restriction. Restrictions on the manner of speaking on government property must be: (i) reasonable; (ii) content-neutral, both as to subject matter and viewpoint; (iii) aimed at serving a “significant governmental interest”; (iv) narrowly tailored to effectuate that interest; and (v) crafted to “leave open ample alternative channels of communication.”
The Court can imagine three potential government interests that the Village could assert to justify Section 5Ff: (i) preventing disruption of the Governing Body meetings; (ii) maintaining decorum and an atmosphere of respect in the meetings; and (in) preventing criticism and potentially damaging job-related embarrassment to government employees and the Governing Body. The first interest is constitutionally permissible. The third is not. The second might not be — Judge Kozinski seems to think that it is unacceptable — but
The primary problem with the argument that Section 5Ff constitutes a reasonable manner restriction, however, has nothing to do with narrow tailoring or significant government interests. Section 5Ff is content-based, and, thus, it fails the threshold test to even be analyzed as a reasonable manner restriction. See Smolla, supra, § 8:38 (“Genuine time, place, or manner regulations are by definition content-neutral.” (emphasis in original)). To the extent that reasonable manner restrictions have been recognized outside of their core scope, of operation — regulating the mechanical facets of speech, such as decibel limits on speakers and generally applicable fire safety codes
Because Section 5Ff does not meet the requirements to be considered a reasonable time; place, or manner restriction, the' Court will analyze it under the usual framework for speech restrictions in a limited public forum, which is that' it must be viewpoint-neutral and reasonable. Section 5Ff is viewpoint-based in two ways. First, it shields government employees from negative mention, but not private citizens— iñcluding the other citizens present at the Governing Body meeting. The Court concludes that the First Amendment does not countenance a speech restriction that shields the government, but not private citizens, from criticism, especially when the interest that the speech restriction serves — maintaining decorum and preventing disruption in government meetings— could be stymied equally well by speech directed towards either. Limiting Section 5Ff s applicability to government employees also leads to the same viewpoint-imbalance that existed in Leventhal v. Vista Unified Sch. Dist.,
The second and more serious way in which Section 5Ff is viewpoint-based is, again, that it allows praise but not criticism of the Governing Body and its employees. Section 5Ff goes beyond the prohibition against personal or slanderous attacks upheld in Scroggins v. City of Topeka, Kan.,
3. Section 5Ff Fails Strict Scrutiny.
The available precedent on viewpoint-based speech restrictions is so hostile that the Court cannot determine if such laws are ever allowed. See, e.g., Norse v. City of Santa Cruz,
Regardless, Section 5Ff would not pass strict scrutiny, even if strict scrutiny is available as an escape valve. Strict scrutiny places the burden on the government to identify a compelling interest — which it has not done — and show that the restriction is the least restrictive alternative for achieving that interest — which the Court has already established is not the case. See Korematsu v. United States,
4. The “Substantial Overbreadth” Requirement Does Not Apply to this Challenge, and the Court May Not Save Section SFf by Construing It Narrowly.
Although the Court concludes that Griffin’s facial challenge to Section 5Ff can in some ways be considered an overbreadth challenge — namely, the doctrine gives him standing to challenge the restriction and designates that challenge a facial one — the requirement that “the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep,” does not apply once, as here, it is displaced by another constitutional test. Broadrick v. Oklahoma,
a. Broadrick v. Oklahoma’s “Substantial Overbreadth” Requirement Need Not Be Met to Facially Invalidate Section 5Ff.
In Doe v. City of Albuquerque,
where a statute fails the relevant constitutional test (such as strict scrutiny, the Ward test [outlining the standard to apply to time, place, and manner restrictions on speech in a public forum], or reasonableness review), it can no longer be constitutionally applied to anyone— and thus there is “no set of circumstances” in which the statute would be valid. The relevant constitutional test, however, remains the proper inquiry.
Doe v. City of Albuquerque,
b. The Court Cannot Construe Section 5Ff Narrowly to Avoid Constitutional Infirmity.
Judge Ebel also declined to construe the ordinance narrowly to save its constitutionality by, e.g., interpreting it to apply only to sex offenders who could afford transportation to another library, writing that
[t]he City is correct that “[a]s a general matter, we give all statutes a presumption of constitutionality and we must apply the same presumption to ... ordinances.” Gillmor v. Thomas,490 F.3d 791 , 798 (10th Cir.2007). However, this presumption does not apply when the challenged statute infringes upon First Amendment rights. ACORN v. Municipality of Golden,744 F.2d at 746 (“[T]hough duly enacted laws are ordinarily presumed constitutional, when a law infringes on the exercise of First Amendment rights, its proponent bears the burden of establishing its constitutionality.”). In his complaint, Doe alleged that the City’s ban infringed on his right to receive information under the First Amendment by denying him access to the City’s public libraries. As discussed above, the Supreme Court has repeatedly recognized that the First Amendment includes a right to receive information. Therefore, the district court correctly concluded that by alleging that the ban infringed this right, Doe set forth a plausible claim for relief.
As part of its argument regarding the presumption of constitutionality, the City also asserts that the district court failed to observe the “canon of constitutional avoidance,” which the City argues “requires a court to avoid striking a law on constitutional grounds when the law is capable of an interpretation that does not trammel upon fundamental rights.” However, “the canon of constitutional avoidance does not apply if a statute is not genuinely susceptible to two constructions.” Gonzales v. Carhart,550 U.S. 124 , 154,127 S.Ct. 1610 ,167 L.Ed.2d 480 (2007) (internal quotation marks omitted). The City has not pointed to any alternate construction of the ban that would no longer implicate the First Amendment right to receive information. Indeed, as the City itself concedes, the City’s ban is unambiguous — it prohibits “a precisely defined group of individuals listed on sex offender registries” from accessing the City’s public libraries. Accordingly, the canon of constitutional avoidance does not apply to Doe’s challenge.
Doe v. City of Albuquerque,
The canon of constitutional avoidance is not a negation of, or an end-run around, overbreadth doctrine. If a court, interpreting a statute — from its text (and any other legitimate tools of statutory interpretation) and without preemptive narrowing in anticipation of First Amendment problems to come — finds genuine ambiguity in a statute such that more than one viable interpretation is possible, then, of
In United States v. Stevens, the Supreme Court struck down a federal statute purporting to criminalize possession of depictions of “illegal acts of animal cruelty,” where the statute defined animal cruelty as “a living animal [being] intentionally maimed, mutilated, tortured, wounded, or killed.”
The Honorable John G. Roberts, Chief Justice of the United States, wrote for an 8 to 1 Supreme Court that “[t]he first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.”
Chief Justice Roberts addressed the government’s next contention, that the Supreme Court should interpret the statute to include only “extreme” cruelty because that was how the United States intended to enforce it:
Not to worry, the Government says: The Executive Branch construes § 48 to reach only “extreme” cruelty, and it “neither has brought nor will bring a prosecution for anything less.” The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.
This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint. When this legislation was enacted, the Executive Branch announced that it would interpret § 48 as covering only depictions “of wanton cruelty to animals designed to appeal to a prurient interest in sex.” See Statement by President William J. Clinton upon Signing H.R. 1887, 34 Weekly Comp. Pres. Doc. 2557 (Dec. 9, 1999). No one suggests that the videos in this case fit that description. The Government’s assurance that it will apply § 48 far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading.
Nor can we rely upon the canon of construction that “ambiguous statutory language [should] be construed to avoid serious constitutional doubts.” FCC v. Fox Television Stations, Inc.,556 U.S. 502 ,129 S.Ct. 1800 , 1811,173 L.Ed.2d 738 (2009). “[T]his Court may impose a limiting construction on a statute only if it is ‘readily susceptible’ to such a construction.” Reno v. ACLU,521 U.S. 844 , 884,117 S.Ct. 2329 ,138 L.Ed.2d 874 (1997). We “ ‘will not rewrite a ... law to conform it to constitutional requirements,’ ”521 U.S. at 884-885 ,117 S.Ct. 2329 , for doing so would constitute a “serious invasion of the legislative domain,” United States v. Treasury Errvps.,513 U.S. 454 , 479, n. 26,115 S.Ct. 1003 ,130 L.Ed.2d 964 ’ (1995), and sharply diminish Congress’s “incentive to draft a narrowly tailored law in the first place,” Osborne v. Ohio,495 U.S. 103 , 121,110 S.Ct. 1691 ,109 L.Ed.2d 98 (1990). To read § 48 as the Government desires requires rewriting, not just reinterpretation.
United States v. Stevens,
Chief Justice Robert’s opinion appears to lay out a two-step process for applying constitutional avoidance: (i) ascertain a finite number of text-based interpretations, each of which would be defensible without resort to constitutional avoidance — there may be only one proper interpretation;
Some applications of a “no negative mention” rule would pass constitutional muster, for example: (i) prohibiting personal attacks that are irrelevant to the general topic at hand, e.g., allegations of adultery against an elected official; (ii) prohibiting criticism of non-government employees on matters not of public concern, e.g., derision of a neighbor’s occupational or sexual lifestyle choices; (iii) prohibiting the use of profanity against anyone or everyone; (iv) prohibiting the use of fighting words; and (v) prohibiting the disclosure of identifying, locating, or otherwise private information by those unhappy with the performance of, e.g., elected officials or police officers. Section 5Ff, however — fairly construed using the ordinary meanings of its terms — also has myriad unconstitutional applications, including: (i) prohibiting negative feedback about a proposed government program; (ii) prohibiting disagreement — even strongly voiced disagreement — with past government decisions; (iii) prohibiting the attendance of protestors at the meetings, while allowing the attendance of those who intend to speak in support of the people or event being protested; (iv) prohibiting job-related criticism — even harsh criticism — of government employees or elected officials; and (v) prohibiting accounts of police brutality, government employee rudeness, or public corruption. The Court concludes that the unconstitutional applications of Section 5Ff are substantial when judged in relation to its plainly legitimate sweep, and Section 5Ff is, thus, unconstitutionally over-broad.
II. GRIFFIN’S OBJECTIONS FAIL TO POINT TO ANY ERROR BY JUDGE WORMUTH, EXCEPT FOR THE DENIAL OF INJUNCTIVE RELIEF RELATING TO SECTION 5Ff.
The Court will overrule all of Griffin’s Objections except for his request for an injunction preventing the Village from enforcing Section 5Ff, see Griffin’s Objections at 14; Complaint ¶ 102b, both for the reasons outlined by Judge Wormuth in the PFRD and because the Court concludes that the public input section of the Governing Body meetings was a limited public forum. Griffin concedes that, “if the Village did NOT create a designated public forum by allowing the public to appear on the Village agenda, then the personal aspects of his case are doomed (Plaintiffs facial attack on the ‘Public Input’ portion’s restriction of content may still be upheld as unconstitutional, however).” Griffin’s Objections at 2-3 (emphasis in original). The Court concludes that the Governing Body meetings were not designated public forums, but, because Judge Wormuth’s analysis reaches the correct result without deciding the nature of the forum, the
A. THE COURT OVERRULES GRIFFIN’S OBJECTIONS TO COUNT 1.
Judge Wormuth found that, whether the Governing Body meeting was a limited or designated public forum — which he declined to decide — Griffin suffered no infringement of his First Amendment rights when the Governing Body refused to put him on the agenda, because he was allowed to speak during the public input section of the meetings. Griffin contends that Judge Wormuth erred when he treated the “agenda” and “public input” portions of the Governing Body meeting as parts of a whole rather than separate events creating separate forums, and refused to decide what forum the “agenda” portion of the Governing Body meeting alone created. As a result of this error, he argues, Judge Wormuth then improperly considered only whether Griffin had alternative channels of communication for his speech and improperly concluded that he did, in spite of Griffin being “thrice denied” placement on the agenda.
The flaw with Griffin’s position is that, as Judge Wormuth pointed out, Griffin has failed to demonstrate that his speech was restricted. Griffin’s Objections at 13. Griffin contends that this finding is improper speculation by the Court, relying on Doe v. City of Albuquerque,
Griffin also contends that his speech was subject to improper prior restraint, because, after the Governing Body’s October 8, 2012, denial to place him on the agenda of the October 9, 2012, meeting, it failed to explicitly invite him to speak during the public input section of the same meeting, but instead advised him to file a formal complaint with the Village. Nowhere, however, in the operative Resolution did it state that a speaker had to be invited to speak during the public input section, nor
The Court agrees with Judge Wormuth that the only cognizable restriction Griffin suffered by the Governing Body not placing him on the agenda was the imposition of a five-minute time limit applicable to the public input period but not to the regular agenda.
This conclusion also resolves another objection Griffin raises about the PFRD. Griffin complains of Judge Wormuth’s failure to decide whether the relevant forum was designated public forum or a limited public forum. See Griffin’s Objections 29 at 5-7. Judge Wormuth reviewed, however, the restrictions applicable to Griffin’s speech under the more stringent strict scrutiny standard and determined that they passed constitutional muster. Thus, as in Shew v. City of Grove, Okla., Judge Wormuth “need[ed] not decide” what First Amendment forum is at issue.
Because Griffin has failed to demonstrate that Judge Wormuth erred in determining that the Defendants did not violate his First Amendment rights, the Court will adopt. Judge Wormuth’s recommendation as to Count 1 and grant that portion of the MSJ.
B. THE COURT OVERRULES GRIFFIN’S OBJECTIONS TO COUNT 3.
Griffin contends that Judge Wormuth erred in refusing to find that the portion of the operative Resolution regulating the placement of speakers on the agenda was overbroad, because Griffin needed only to demonstrate “that he was restricted on the basis of the content of his message, though no written restrictions ... exist.” Griffin’s Objections at 14. As Judge Wormuth stated, it is Griffin’s burden to show, based upon the law and facts, that substantial overbreadth exists in the impugned statutory scheme, taken as a whole. See Virginia v. Hicks,
C. THE COURT WILL GRANT GRIFFIN’S REQUEST FOR IN-JUNCTIVE RELIEF RELATING TO SECTION 5Ff.
The Court will grant Griffin’s request for injunctive relief relating to Section 5Ff. See Complaint ¶ 102b, at 19. Judge Wor-muth recommends against injunctive relief on the ground that Griffin has an adequate legal remedy. See PFRD at 28. The Court disagrees; declaratory relief is an equitable remedy. See, e.g., Copar Pumice Co., Inc. v. Morris, No. CIV 07-0079 JB/ACT,
IT IS ORDERED that the Ruidoso Defendants’ Partial Objection to Magistrate Judge’s Proposed Findings and Recommended Disposition, filed February 26, 2014 (Doc. 28), is overruled, and the Plaintiffs Response to Proposed Findings and Recommended Disposition, filed February 26, 2014 (Doc. 29), is overruled. The Court adopts in part and rejects in part the Proposed Findings and Recommended Disposition, filed February 12, 2014 (Doc. 27). The Ruidoso Defendants’ Motion for Summary Judgment on Plaintiffs Complaint for Violation of Civil Rights, Damages, and for Declaratory and Injunctive Relief and Memorandum of Law in Support Thereof, filed October 14, 2013 (Doc. 16), is granted in part and denied in part. Plaintiff William N. Griffin’s request for declaratory judgment on Count 3 with regard to Section 5Ff of the Resolution is granted. Defendant Village of Ruidoso and its agents are enjoined from enforcing Section 5Ff of the Village of Ruidoso Resolution 2012-16, filed October 14, 2013 (Doc. 16-5).
Notes
. Pevehouse v. Scibana is an unpublished opinion, but the Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A), 28 U.S.C. ("Unpublished decisions are not precedential, but may be cited for their persuasive value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, ... and we have generally determined that citation to unpublished opinions is not favored. However, if an unpublished opinion or order and judgment has persuasive value with respect to a material issue in a case and would assist the court in its disposition, we allow a citation to that decision.
United States v. Austin,
. The petitioners made their distrust of the state judiciary clear at a press conference after the injunction was issued. "At the press conference one of the petitioners stated: 'That they had respect for the Federal Courts, or Federal Injunctions, but in the past the State Courts had favored local law enforcement, and if the police couldn’t handle it, the mob would.' ” Walker v. City of Birmingham,
. The Tenth Circuit has said that significant government interests "include public safety, accommodating competing uses ..., controlling the level and times of noise, and similar interests.” First Unitarian Church of Salt Lake City v. Salt Lake City Corp.,
. Wikipedia describes the case as follows:
The McMartin preschool trial was a day care sexual abuse case of the 1980s. Members of the McMartin family, who operated a preschool in California, were charged with numerous acts of sexual abuse of children in their care. Accusations were made in 1983. Arrests and the pretrial investigation ran from 1984 to 1987, and the trial ran from 1987 to 1990. After six years of criminal trials, no convictions were obtained, and all charges were dropped in 1990. When the trial ended in 1990 it had been the longest and most expensive criminal trial in American history. The case was part of day care sex abuse hysteria, a moral panic over alleged Satanic ritual abuse in the 1980s and early 1990s. McMartin Preschool Trial, Wikipedia, http:// en.wikipedia.org/wiki/McMartin — preschool'— trial.
. The Tenth Circuit and leading commentators contend that United States v. Salerno's formulation is neither normatively desirable nor — more importantly for the Court’s purposes-descriptively accurate.
[I]n City of Chicago v. Morales, [
Salerno’s language thus is accurately understood not as setting forth a test for facial challenges, but rather as describing the result of a facial challenge in which a statute fails to satisfy the appropriate constitutional standard. In other words, where a statute fails the relevant constitutional test (such as strict scrutiny, the Ward test, or reasonableness review), it can no longer be constitutionally applied to anyone — and thus there is "no set of circumstances” in which the statute would be valid. The relevant constitutional test, however, remains the proper inquiry.
Doe v. City of Albuquerque,
. The Borough of Mt. Ephraim argued that the zoning ordinance constituted a "reasonable time, place, and manner restriction.”
. Government employees do not receive the same level of First Amendment protection from adverse employment actions, e.g., firings, that citizens do from adverse government action, e.g., penal or civil sanctions, discrimination on the basis of speech (content-based speech regulation), compelled speech, or the conditioning of a benefit. See Chemerinsky, supra, § 11.2.4.1, at 969; id. § 11.3.8.1, at 1112. Government employees are protected from adverse employment actions only on the basis of speech if: (i) the speech is “on a matter of public concern,” Connick v. Myers,
. A logical consequence of there being "no set of circumstances” wherein the law would be constitutional is that the manner in which the law was applied in the challenger’s case must also be unconstitutional.
. Standing is not the only reason that facial challenges are disfavored. Other cases speak of "[f]acial adjudication carrfying] too much promise of ‘premature interpretado[n] of statutes' on the basis of barebones records." Sa-bri v. United States,
. Establishing Article III standing requires three components: (i) an injury in fact, which is "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical,”; (ii) causation between the injury in fact and the conduct complained of, such that the injury is fairly traceable to the challenged action; and (iii) "it must be likely, as opposed to merely speculative, that the injury will- be redressed by a favorable decision.” Lujan v. Defenders of Wildlife,
. A leading commentator offers a possible justification for the virtual abandonment of standing doctrine in' the context of over-breadth challenges that also explains the concept of “taxpayer standing” for suits brought under the Establishment Clause: the grammar of Constitution's text. Nicholas Q. Ro-senkranz, The Subjects of the Constitution, 62 Stan. L.Rev. 1209, 1250-57, 1257-63 (2010). The thrust of the argument is that, while all the other provisions of the Bill of Rights are written in passive voice, the First Amendment .provides that "Congress shall make no law....”
. The conclusion that a speech restriction is a time, place, or manner restriction results in reducing the level of judicial scrutiny if the forum involved is a traditional public forum or designated public forum — where speech restrictions are normally subject to strict scrutiny. In limited public forums, however, speech restrictions — even content-based ones — are subject only to the requirements of reasonableness and viewpoint-neutrality. The question, then, is what standard applies to a time, place, or manner restriction on a limited public forum. There are two possible conclusions: (i) time, place, or manner restrictions are subject to a higher level of scrutiny than content-based restrictions, which are not required to be narrowly tailored around a significant government interest; or (ii) time, place, or manner restrictions are subject to the same standards as content-based restrictions, and thus need only be reasonable and viewpoint-neutral. The Court concludes that the first option is inconsistent with the Supreme Court’s purpose in carving out a special doctrine for time, place, or manner restrictions. Such restrictions regulate less important aspects of speech than its content, and are more likely to be justified by legitimate government interests. The Court can also conceive of no reason that time, place, or manner restrictions would be held to a lower level of scrutiny than content-based restrictions in some forums, but held to a higher level of scrutiny in others. The Court thus concludes that time, place, or manner doctrine is inapplicable — or, rather, it does no work — in the context of limited public forums, nonpublic forums, and nonfo-rums.
. The "Governing Body” refers to the Village Council; the Resolutions use the former term, and so will the Court. See MSJ ¶ 1, at 3 (setting forth the interchangeability of the terms as an undisputed material fact). The Governing Body is composed of the Mayor of Ruidoso and six Councilors. See Village Council, Ruidoso New Mexico: Living in Nature’s Playground, http://ruidoso-nm.gov/ village-council.html.
. The Court will use "Section 5Ff” to refer to the provision-numbered Section 5Ff in Resolution 2012-16, and Section 51c and Section
. That negligence is a creature of the common law and not contained in a statute at all only solidifies this analysis. An ordinary person is more likely to be put on notice of what conduct the law proscribes and requires of them by a statute than by an amorphous body of common law.
. The traditional place of the "town hall meeting” as a locus of free and open expression and dissent in the American political tradition gives the Court some pause in concluding that the Governing Body meetings are limited public forums. New Mexico never
. This case also has overtones of government employee speech regulation, as the individuals against whom the policy was applied worked — albeit in a volunteer capacity — for the station. See
. The doctrine surrounding time, place, or manner restrictions was designed to lower judicial scrutiny of speech restrictions that regulate less important, non-content aspects of speech. In a traditional public forum or designated public forum, the government can thus avoid strict scrutiny — the standard that normally applies to these forums — by establishing, at the threshold, that the regulation merely regulates time, place, or manner.
Limited public forums and nonpublic forums, however, are already subject to reduced judicial scrutiny: speech restrictions on limited public forums, like the Governing Body meetings, need only be reasonable and viewpoint-neutral, even if they are content-based. The Court concludes that it would be counter to the purpose of the reasonable time, place, or manner doctrine — which is to reduce judicial scrutiny of speech restrictions unrelated to content — to apply a heightened standard to time, place, or manner restrictions in a limited public forum. See Consol. Edison Co. v. Pub. Serv. Comm'n,
. The Court will use a hypothetical to illustrate the difference between narrow tailoring and least restrictive alternative. Assume that a private concert venue has speakers loud enough to damage its patrons' eardrums and that the government identifies a significant government interest in preventing its citizens’ permanent hearing loss. The government presents the Court with convincing evidence that: (i) 100 decibels of noise over two hours — the length of concerts at the venue-can cause permanent hearing loss; (ii) exposure to noise between 85 and 100 decibels has a cumulative deleterious effect on hearing over long periods of time, and an individual subjected to that noise level for two hours would need to avoid loud noises over the next several days to avoid permanent hearing loss; and (iii) noise under 85 decibels has never been convincingly proven to lead to ear damage, regardless of the length of time of exposure.
If the government were limited to the least restrictive alternative, then it could only ban the venue from playing sound at or over 100 decibels. At that noise level, patrons could leave the venue without ear damage, avoid loud noises over the next few days, and avoid permanent ear damage. The government might even have to permit alternative solutions, like allowing the venue to provide earplugs to patrons at all concerts over 100 decibels. If the government were required only to promulgate a narrowly tailored restriction, however, it could regulate sound production all the way down to 85 decibels by demonstrating that the less restrictive alternatives— such as bans on sound above 86 decibels, 88 decibels, 90 decibels, etc. — achieve the significant government interest less effectively than the 85-decibel restriction. A restriction on sound above 80 decibels, however, would not be narrowly tailored, because it cannot be demonstrated to be any more effective at achieving the government interest — preventing permanent hearing loss — than an 85-deci-bel restriction.
. Judge Crow may well be normatively correct in his statement of the law, but the Court does not agree with his characterization of Supreme Court precedent. In City of Madison, Joint School District Number 8 v. Wisconsin Employment Relations Commission, the Supreme Court does not identify any significant government interest; neither that term nor any recognizable variant appears in the opinion at all. The footnote that Judge Crow pincites in support of his proposition states only that, "[pjlainly, public bodies may confine their meetings to specified subject matter and may hold nonpublic sessions to transact business.”
. If the First Amendment permits only the prevention of disruption of government meetings and not the maintaining of decorum, then Section 5Ff is even less justified in its scope. Section 5Ff exists more to, in the words of Judge Kozinski, protect “the dignity of [the Governing] [B]ody and the decorum of th[e] body,” than it does to prevent real disruption. Norse v. City of Santa Cruz,
.Fire safety codes provide a good example of a content-neutral reasonable manner restriction. A ban on flag-burning is unconstitutional, but a content-neutral ban on the burning of objects in public, which curtails an entire manner of expression, is acceptable. See R.A.V. v. City of St. Paul, Minn.,
. The Court notices a parallel between the doctrine of constitutional avoidance and the Chevron doctrine. Those Justices, such as Justice Scalia, who are most loyal to the doctrines and the most likely to apply them, are also the most likely to keep the "steps” of the doctrines separate: first, determining whether the statute is ambiguous; and, only then,
. The Defendants have made no such request in their briefing, nor have they proffered any particular interpretation of Section 5Ff beyond what can be gleaned from its text. The Court infers from the case law which the Defendants cite that they hope only to defend Section 5Ff as construed to apply only to personal, profane, or slanderous attacks, but they have made no request for a limiting construction at all. See Defendants’ Objections at 2-3.
. The Supreme Court — and Chief Justice Roberts in particular — appears, however, to be willing to adopt creative interpretations or characterizations of statutes to fit them under the federal government’s enumerated powers. In National Federation of Independent Business v. Sebelius, - U.S. -,
In Bond v. United States, - U.S. -,
In the Government’s view, the conclusion that Bond “knowingly” “use[d]” a "chemical weapon” in violation of section 229(a) is simple: The chemicals that Bond placed on Haynes’s home and car are “toxic chemi-c.al[s]” as defined by the statute, and Bond's attempt to assault Haynes was not' a "peaceful purpose.” The problem with this interpretation is that it would "dramatically intrude ... upon traditional state criminal jurisdiction,” and we avoid reading statutes to have such reach in the absence of a clear indication that they do.
Part of a fair reading of statutory text is recognizing that "Congress legislates against the backdrop” of certain unexpressed presumptions. EEOC v. Arabian American Oil Co.,499 U.S. 244 , 248,111 S.Ct. 1227 ,113 L.Ed.2d 274 (1991). As Justice Frankfurter put it in his famous essay on statutory interpretation, correctly reading a statute "demands awareness of certain presuppositions.” Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527, 537 (1947). For example, we presume that a criminal statute derived from the common law carries with it the requirement of a culpable mental state-even if no such limitation appears in the text-unless it is clear that the Legislature intended to impose strict liability. To take another example, we presume, absent a clear statement from Congress, that federal statutes do not apply outside the United States. So even though section 229, read on its face, would cover a chemical weapons crime if committed by a U.S. citizen in Australia, we would not apply the statute to such conduct absent a plain statement from Congress. The notion that some things "go without saying” applies to legislation just as it does to everyday life.
Among the background principles of construction that our cases have recognized are those grounded in the relationship between the Federal Government and the States under our Constitution. It has long been settled, for example, that we presume federal statutes do not abrogate state sovereign immunity, impose obligations on the States pursuant to section 5 of the Fourteenth Amendment, or preempt state law.
Closely related to these is the well-established principle that it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides the usual constitutional balance of federal and state powers. To quote Frankfurter again, if the Federal Government would " ‘radically readjust[ ] the balance of state and national authority, those charged with the duty of legislating [must be] reasonably explicit’ ” about it. BFP v. Resolution Trust Corp.,511 U.S. 531 , 544,114 S.Ct. 1757 ,128 L.Ed.2d 556 (1994). Or as explained by Justice [Thurgood] Marshall, when legislation "affect[s] the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.” United States v. Bass,404 U.S. 336 , 349,92 S.Ct. 515 ,30 L.Ed.2d 488 (1971).
Bond v. United States,
. The Village is free to enact a reasonable, viewpoint-neutral alternative(s) to replace Section 5Ff. The most obvious way to enact a constitutional provision would be to replace "negative mention” with a clearer, narrower term; a rule resembling the City of Topeka’s — prohibiting speakers from "mak[ing] personal, rude or slanderous remarks, or ... becoming] boisterous, while addressing the Council” — would pass constitutional muster. Scroggins v. City of Topeka, Kan.,
The Village can also impose reasonable manner restrictions. As a result of the Court's categorization of city council meetings as limited public forums, the judicial scrutiny applied to content-based restrictions is no higher than that applied to reasonable manner restrictions. The reasonable time, place, and manner restriction analysis is designed to loosen, not tighten, judicial scrutiny, and therefore the Court would apply the ordinary limited public forum standards — reasonableness and viewpoint neutrality — without the additional requirement of narrow tailoring around a significant government interest. See supra notes 12, 18. The Village, therefore, has no incentive to try to disguise content-based restrictions as reasonable manner restrictions, but it can still pass genuine time, place, or manner restrictions. Such limitations would include the procedural rules of the public input portion already in place— such as the requirement to speak in turn and the five-minute limitation — and could additionally include regulations on the volume of speech, such as: (i) a ban on raising one’s voice above a certain level; (ii) the requirement or prohibition of the use of sound amplification equipment; or (iii) the requirement that the speaker speak when recognized, as opposed to standing silent as a form of time-wasting, disrespect, or protest. Such rules would have to be codified-written clearly enough to limit excessive discretion-in advance of their enforcement, as discretionary enforcement of facially neutral rules can constitute viewpoint-discrimination. See Heffron v. Int’l Soc’y for Krishna Consciousness,
The Court will consider anti-silence restrictions further, because they raise a novel question, and because the Village has in place rules that effectively ban speakers from using their five minutes of public input to protest by standing silently. Sections 5Fd and 5Fe require that "[p]resenter[s] must state their name” and "must state in one or two sentences what the presenter will be addressing before [the] Council”; these provisions appear to prohibit total silence. Village of Rui-doso Resolution 2012-16 at 4. Because the Court concludes that the Governing Body meetings are limited public forums, time, place, and manner restrictions need be only reasonable and viewpoint-neutral. See supra notes 12, 18. The anti-silence rule is viewpoint-neutral, because — although silence can be used to express a viewpoint — it is not intrinsically related to any particular subject matter,- stance, or category of stances. The restriction is also reasonable, because one of the purposes of the public input portion of the meetings is for the Governing Body members to receive actionable information from their constituents, and silence conveys almost no information.
This question would be closer if the meetings were designated public forums, but an anti-silence restriction might still pass constitutional muster under two conditions. First, there must be a significant government interest in "conducting orderly, efficient, [and] effective ... meetings,” Scroggins v. City of Topeka, Kan.,
. In fact, for at least one of the Governing Body meetings at which Griffin wished to speak, he was granted twice the time limit otherwise applicable. See Letter from Daniel A. Bryant to William N. Griffin at 1, filed August 27, 2013 (Doc. 1-2).