Martha Burk v. Augusta-Richmond County

ANDERSON, Bеfore BARKETT and RONEY, Judges. Circuit ANDERSON, Judge: Circuit

INTRODUCTION Burk, of Martha the National Council Organizations, and the Rain- Women’s (referred Coalition to collec- bow/PUSH “Burk”) tively appeal from the district denial their motion for prelimi- court’s nary injunction challenge con- to the stitutionality Augusta-Richmond Coun- ty’s requirement public permitting for more groups demonstrations in five or The people. appeal presents ques- two (1) constitutionality tions: facial of re- quiring groups persons or more five permit publicly engaging obtain before forum; expression in a political (2) requiring whether applicants agreement “in a submit an indemnification county attorney satisfactory” form dis- grants attorney unconstitutional find permitting cretion over decisions. We unconstitutional in each re- the Ordinance spect and reverse. Augusta-Richmond

A. Ordinance the Augusta-Rich- 3-4-11 of Section (the “Ordinance”), en- mond Code anticipation protests during acted Tourna- then-forthcoming Masters Golf annually Augusta ment held Nation- Club, al states: Golf be no There shall demonstration The district court converted Burk’s motion (hereinafter protest, collectively re- for a temporary restraining order into a “event”) motion consisting preliminary injunction ferred to as five and de- (5) it, sidewalk, nied persons finding or more that Burk prove failed to street, likelihood of public right-of-way pub- or other success on the merits. Burk appeals that property Augusta lic within unless a determination and asks per- this uphold Court to her facial challenge mit for same has been issued for to the such Ordinance.1 Because this appeal presents event Sheriff Richmond Coun- pure questions of law and our ty- disposition dictates the outcome of underlying .the Augusta-Richmond County Code 3-4- claim, See, accept we e.g., the invitation. 11. The Code defines “Protest/Demon- Block, Callaway v. 763 F.2d 1287 & “Any expression stration” as of support (11th Cir.1985). n. 6 We review the dis- for, of, issue, protest any person, or politi- trict legal court’s conclusions de novo. cal or other cause or action which is mani- Tobacco, This That & the Other &Gift by fested physical presence persons, of Inc. v. Cobb County, 285 F.3d banners, or display signs, posters, of (11th Cir.2002). 3^-l(e). § Violating the like.” punishable by Ordinance is a misdemeanor DISCUSSION $1,000 days imprisonment. fine and/or A. The Constitutionality the Per- 3-4-13; §§ of 1-6-1. mitting Provision In addition to information such as the argues Burk that the permitting provi- name and applicant address of the and a sion constitutes a facial violation of the event, description planned §§ see 3— First Amendment impermissibly dis- 11(a)(1)—(2), permit applicant must fur- 4— criminating on the basis of content of nish an indemnification and hold-harmless speech in public fora2 and granting the agreement county suitable to the attorney, County Sheriff excessive discretion over 3-4-ll(a)(3). § County The may Sheriff permitting decisions. Because agree we deny application for of several rea- discrimination, with her on content we de- 11(b)(3). § sons. See 3^ — cline to reach her discretion argument as it relates to permitting requirement gen- B. History Procedural erally. Burk sued Augusta-Richmond Government,

County Consolidated the Au- requires Because it groups of gusta-Richmond Commission, County five or people more permission to obtain Mayor Augusta, and the Richmond County from the Sheriff in carry order to County (collectively, County”) Sheriff “the demonstration, out a or Augus enjoin under 42 U.S.C. 1983 to enforce- ta-Richmond Ordinance a prior is restraint Ordinance, ment of the claiming it violated speech. See United States v. Frand sen, right (11th her First Amendment speech. Cir.2000) free 1236-37 challenge 1. In addition to the facial challenge Burk a facial inappropriate under appeal, asserts on in the district court she these circumstances. challenged applied also the Ordinance as appeal her. She does not the denial of her regulates speech The Ordinance on side- preliminary injunction walks, streets, motion for with re- public rights-of-way, "any claim, spect as-applied to the which is thus property.” § other 3-4-11. No one respect deemed abandoned. With disputes to the fa- speech pub- this case involves challenge, cial argue does not lic fora. for, 3-4-11, (“A “support pro- defined or exists as expression prior restraint of, issue, any person, political to a deny can access test other government when the occurs.”). 3-4-l(e). action,” § cause or Neither in expression forum before nor at has argument uncon its brief oral presumptively are Prior restraints County disputed scrutiny. Burk’s assertion this face strict stitutional and 1237; targets “political” expression, Flag language Serv. Scientology Church of Cleanvater, 1547-48 defined.4 Nor has the F.3d however City of Cir.1993). (11th fact Nonetheless, disputed re that the Ordinance leaves speech if it other untouched. Ordinance approved qualifies straint regulates expres- manner classifies and place, and therefore regulation of the on the basis of Accord Hall regulation rather than a sion content. expression Racism, Comm’rs, Sch. F.2d 970- Against v. Rock v. Bd. content. Ward (5th 1982) (“The 2746, 2754, B Board 105 71 Cir. Unit has (1989); sоught regulate upon Abo based Coalition L.Ed.2d 661 City ‘political whether it or sec- Marijuana lition Prohibition its content: (11th Atlanta, tarian,’ ‘special F.3d Cir. material.’ interest This 2000). time, ‘time, place, regulation A or place, content-neutral is not manner’ must alter regulation open manner leave expression”);5 see also Consol. Edison Comm’n, 530, of communication and sur native channels 447 v. Pub. Serv. U.S. Co. require scrutiny,” 2326, 2330-31, vive 533, “intermediate 65 100 S.Ct. L.Ed.2d substantially (1980) more ment that it not restrict (holding regula- a content-based 319 legiti to a necessary further speech than company in- utility tion that barred bill Ward, 491 government mate interest. viewpoints or expressing “opinions serts 799, con By 109 at 2758.3 U.S. at policy” on controversial issues of trast, speech regulations content-based are not “topics did not bar that ‘con- but scrutiny,” requirement face ”). “strict public policy’ issues of troversial government use least restrictive County argues must The that we find advancing govern a compelling means of under Hill the Ordinance content-neutral Playboy States v. ment interest. United Colorado, 703, 2480, 530 120 S.Ct. v. U.S. 529 U.S. 120 S.Ct. Group, Entm’t (2000), Frisby 597 v. 147 L.Ed.2d (2000). 1878, 1886, 146L.Ed.2d 865 Schultz, 474, 108 S.Ct. 101 (1988). we disagree; do inquire we L.Ed.2d We Accordingly, first our either erodes hold- is not believe decision the Ordinance content-neutral. whether only Ward, political ing targeting Hall See 109 S.Ct. applies regulation renders content-based. speech 2754. It not. The Ordinance is each in turn.6 only protest,” demonstration or We address case “public binding precedent decisions adopted as issued place, 3. A and manner content-neutral regulation must not vest officials also Circuit by Unit B of the former Fifth after permitting de with discretion over unbridled September 1981. Birmingham, Shuttlesworth cisions. 938-39, 147, 150-51, argues is also the Ordinance 6.The L.Ed.2d applies equally it to all content-based because argument political speech. misses the That ''political'' apt 4. we use the term as an Thus completely. target- mark It asserts speech term to describe the shorthand ed based on the instant ordinance. does not discriminate Ordinance viewpoint and fails address the issue of Securities, Inc., Reynolds In Stein subject-matter discrimination. (11th Cir.1982), Circuit F.2d this Colorado, the Supreme haps In Hill v. Court thrust undesired upon handbill her.”). fact, found content-neutral a Colorado statute the statute at issue in Hill any person “within the prohibited reg- “places no clearly restrictions on—and knowingly ... approach ulated areas does not prohibit particular —either eight person, within of another with- viewpoint any subject feet or matter.” Id. at consent, 723, 120 person’s purpose out that for the S.Ct. аt 2493. to, passing display- a leaflet or handbill Augusta-Richmond The to, ing sign engaging protest, or oral Ordinance differs from the statute at issue education, counseling with such other in Hill “places because it restrictions on” person.” Id. at 120 S.Ct. at 2484. matter, subject certain political expression, County argues that if a regu- statute “justified and is not without reference to lating only engaged protest, those edu- regulated the content of speech.” Id. at cation, content-neutral, counseling case, 120 S.Ct. at 2491. In this surely regulating only then an ordinance latter characteristic is apparent from the political protests and demonstrations fit poor between the Ordinance’s means content-neutral as well. purported ends. Hill instructs that A reading close of Hill reveals that the statute that “[a] restricts certain catego analogy heavily fails. Hill relied on the speech ries of only lends itself to invidious notions that principal inquiry “[t]he de- use vice regulation] [the of content-based if termining neutrality ... content is wheth- significant there is a number of communi government er the adopted regula- has cations, raising the problem same that the tion disagreement because of solve, statute was enacted that fall out message conveys,”

with the id. at sidе scope, the statute’s while others fall Ward, 120 (citing S.Ct. at 2491 491 U.S. at 723, (cit inside.” at Id. 120 at S.Ct. 2493 791, 2754), 109 “government S.Ct. at ing Dep’t Chicago Police Mosley, 408 regulation expressive activity is ‘content 92, 2286, U.S. 92 S.Ct. 33 L.Ed.2d 212 justified neutral’ if it is without reference (1972)). The statute Hill did not “dis to regulated speech,” the content of id. at tinguish among speech instances that are Ward, 120 at (citing S.Ct. 2491 491 similarly likely to legitimate raise the con 2754). U.S. at 109 S.Ct. at The stat- cerns responds.” to which it Id. at “justified ute at issue Hill was without contrast, 120 By S.Ct. at 2493. the Ordi reference to the content of regulated nance at issue this case distinguish does speech” it “distinguish because did not among speech instances that raise the among speech similarly instances that are same concerns. The Ordinance’s purport likely legitimate to raise the concerns to goals ed are maintaining public safety, responds.” which it Id. at 120 S.Ct. avoiding congestion, traffic keeping the at 2493. it The distinctions drew were peace, and providing advance notice to law justified by a legislative indepen- concern enforcement officials of events. See 3^4-ll(b)(3). dent of protecting persons walk- But the regu Ordinance content — (“[T]he ing into health care facilities. Id. lates expressive countless activities that do statute’s protect restriction seеks to traffic, those not safety, threaten or the who enter a facility health care from peace, and it regulate fails to countless harassment, nuisance, persistent other expressive activities that do threaten importuning, dogging, implied and the the harms. For example, the Ordinance physical threat of touching that can accom- does not apply to numerous in activities pany an approach unwelcome eight volving within more than five people e.g., a— feet of a patient by a person wishing to party, tailgating party, street a a sidewalk argue vociferously per- face-to-face and performance by a five-person musical then tent-neutral, “pro- eon even high regulations a band —that school group, or test or County’s feared demonstration” likely threaten the should be content- will restricts And the Ordinance neutral. harms. or silent sit-

five-person political discussion County The by failing errs edge though such in on the sidewalk’s even picket appreciate difference between unlikely are to threaten Coun- events ing delivery is a method of —which words, In there harms.7 other ty’s feared involving speech regard conduct without of commu- easily significant “a number are message аny particular subject or mat nications, that raising problem the same County’s of “Pro ter —and definition solve, fall statute was enacted tesVDemonstration,” tar expressly which others scope, the statute’s while outside subject gets expression all ‍‌​​​‌​‌‌‌‌‌‌​‌​‌​​‌‌​‌​‌​​​‌‌​​​‌‌‌​‌​‌​‌​​​​‌‌​‍on a certain Hill, 723, 530 U.S. at fall inside.” 3-4-l(e). matter, political speech. See Therefore, the Ordinance is at 2493. S.Ct. course, people engaging picketing Of purported justified by its content-inde- not always intend to nearly message send a pendent goals, regulat- and the has However, along some kind with acts. their 723-24, content. at ed on based marching, standing, the acts themselves — at 2493.8 sign, holding example not —do the mark with The also misses content, any particular' expressive involve Schultz, 108 S.Ct. Frisby v. U.S. may regulat conduct and the therefore be Frisby, 101 L.Ed.2d 420. burdening view any particular ed without approved prohibition Supreme Court subject point or matter.9 A content-neu in front of individual residences. picketing regulation tral conduct like those at issue accepted as con- The Court the ordinance Frisby “places and Hill no restrictions exempt when construed not tent-neutral clearly does prohibit on—and —either 481-82, picketing. labor U.S. subject mat particular viewpoint at 2501. discussed,” Hill, may be ter thаt no at County argues Frisby made regulations they have about such possibility the ordi- said mention of do with nothing to the content of may have been content-based be- nance imposed rather are because of is a but picketing, it restricted which cause conduct, regulated id. at protest, not nature of see political of but did method (Souter, J., 737, ar- at 2500-01 con expressive conduct. It S.Ct. restrict other O’Connor, J., by Ginsburg, regulations joined are gues “picketing” that if of curring, evidence, we County's poor targeting the conclude that it focus on relevant cannot 7. The nullify distinction highlighted can the clear and obvious harm it has identified is among subject matters the Ordi- separate permitting require- a contained in existence of "significant gatherings involving more than and the number of commu- for all nance ment 1,000 3-4-l(b); raising problem §§ ... people. See 3-4-3. The nications same seriously scope, others political outside the statute's while cannot believe that fall inside," Hill, 723, involving people expression as as five is U.S. at few fall circumstances, traffic, disrupt peace, such we cannot con- likely to disturb the 2493. In regu- safety, require there a not to public advance is clear intent threaten and clude officials, speech. publiс of public that other late the content notice to but only gatherings harms when threaten such picketing is from conduct such 1,000 9.Thus distinct they participants. involve more than flag-burning clearly intended to is message. United express express particularized See an of intent 8. While disavowal Eichman, 310, 315, 110 speech, 496 U.S. regulate the content as contained States (1990). 3-4-11(d), may L.Ed.2d into account as taken J.) (“The J., Breyer, and correct rule ... Supreme ordinance the Court addressed in captured the formulation that a restric- District, Thomas v. Chicago Park 534 U.S. only tion is if it imposed content-based 122 S.Ct. 151 L.Ed.2d 783 because of the content case, In that the Supreme Court found not because of offensive behavior identified rejected ordinance content-neutral and delivery.... with its The facts over- challenge under Freedman v. Maryland, whelmingly validity demonstrate the 13 L.Ed.2d 649 statute at issue in Hill as a [the ] content- (1965) (requiring procedural safeguards in regulation imposed solely regu- neutral contexts). regulatory content-based How- late speakers may the manner which ever, the ordinance at issue in Thomas conduct themselves within 100 feet of the required for all assemblies (em- facility.”) entrance of a health care of more than 50 people, regardless pur- added) (citation omitted).10 Thus, phasis pose. readily The Court found that regulation content-neutral conduct applies content-neutral, ordinance was explaining all, equally just and not to those with a that “the ... ordinance is not even direct- particular subject message or matter such, ed to communicative activity as but (“In- mind. Id. at 120 S.Ct. at 2493 activity rather to all conducted in a drawing stead of distinctions based on the park. picnicker The no soccer-player, subject ... speaker matter that the less political than the parade activist or address, applies equally wish to the statute marshal, salesmen, apply must a permit if the rights to used car animal 50- activ- n ists, fundraisers, environmentalists, person limit tois be exceeded.” missionaries.”). The same cannot added). be said at 122 S.Ct. at 779 (emphasis Augusta-Richmond County Ordi- contrast, By Augusta-Richmond Coun- it applies particular nance because to a ty Ordinance is directed to communi- subject expression, matter of polities, rath- activity, cative rather than to all activity, conduct, er than to particular pick- such as applicability and its solely turns on the eting.11 subject matter of speaker what a might Finally, say. it is useful to regulates contrast the Au- Ordinance only pоliti- gusta-Richmond County Ordinance and an speakers, cal leaving soccer-players, side- Scalia, Thomas, joined by 10. Justice Justice front of individual residences. Like the ordi- Hill, dissenting point here, made this same when nance at issue it would have been a distinguished picketing he as a restriction on regulation expression content-based on its particular expression.” "a manner of Id. at face regulation rather than a content-neutral point 120 S.Ct. at 2505. This conduct; was also justi- and it would not have been Brennan, joined by made Justice Justice fied without reference to content because of Marshall, dissenting Frisby. See 487 U.S. poor fit purported between its means and 491-92, (“The at 108 S.Ct. at 2506 ordinance goals. absolutely prohibits picketing before us 'be- And the instant case would be more like ..., fore or about' residence in the town Frisby regulated only if the Ordinance dis- thereby restricting speech a manner of in a plays signs, posters, of or banners rather than Consequently, traditional forum. political expression all groups of five or states, correctly the Court the ordinance is more, (e) ("[a]ny see expression sup- 3-4-1 of subject place to the well-settled and for, of, port issue, any person, polit- test.”). manner ical or other cause or action which is mani- Thus, 11. Frisby apposite physical presence would be more fested persons”) if prohibiting added), instead picketing (emphasis only in front of particular and loca- residences, individual the ordinance at issue tions space, § rather than in all 3-4- prohibited political there expression all reasons, tailgating groups readily un- For these we and conclude performers, walk County carry has failed to its touched. proving, Playboy, burden of see is a Because the Ordinance 120 S.Ct. at that this content- speech, restraint on prior content-based sufficiently based Ordinance is tailored to it to ascertain strictly must scrutinize we scrutiny. survive strict We hold that it is employs it the least restrictive whether unconstitutional. compelling government means to meet Playboy, 529 U.S. interest. See Constitutionality B. The the Indem- survive such 120 S.Ct. at 1886.12 Few laws Provision nification scrutiny, excep and this Ordinance is no Augusta-Richmond Ordinance also goals its County promote tion. The could requires permit applicants indemnify to numerous less restrictive means. through County damages for arising from could, target only offensive example, It for planned protest or demonstration: delivery behavior or the manner applicant provide [T]he shall an indem- regаrd viewpoint to or sub speech without agreement nification and hold harmless ject regula it could tailor its matter. Or Augusta, Georgia favor of and its closely fit instanc expressive tion more to officials, elected Augusta-Richmond likely the harms es or conduct to threaten Commission, the Sheriff of Rich- it fears. Or it could enact ordinance officers, County, mond their agents Thomas, applies like that at issue in which employees satisfactory in a form expressive reference to generally, without attorney Augusta, Georgia. for content, larger groups.13 Fi 3-4-ll(a)(3). argues pro- Burk that this nally, regulating it is clear that as few as county (e.g. silently sitting grants attorney vision excessive peaceful protestors five sidewalk) discretion, edge imports in on the is not the content-based criteria accomplishing permitting process, least means of into the and is over- restrictive traffic County’s legitimate speech. agree flow and broad and chills We grants therefore peace-keeping concerns.14 excessive discretion and (8th Cir.1996) (10 people); 12. A content-based restraint must also or more Portland, satisfy procedural requirements City of Freed- Grossman v. (9th 1994) (6 Maryland, people); man v. Cir. to 8 Commu However, Turner, nity 13 L.Ed.2d 649. Burk does not Creative Non-Violence v. for (D.C.Cir.1990) (2 challenge Ordinance on Freedman F.2d or more Charleston, grounds. City people); Cox (D.S.C.2003) ("small F.Supp.2d gatherings protestors”). or sole 13. Because we hold that the Ordinance is scrutiny, content-based and fails strict we argument applications need not address Burk’s that be- 14.It from the received clear persons applies groups cause it as small as five and the number of persons, desiring the Ordinance would fail even the to demonstrate in a location sur- stringent tailoring requirement rounding con- less the entrance the Masters Tourna- regulations government County's legitimate tent-neutral that the ment that the interest is “substantially veiy not burden more than is substantial. Because we find that the tailored, necessary legiti- government's narrowly we need further the Ordinance is not Ward, 799, County’s mate interests.” 491 U.S. at 109 not determine whether the interests However, suggested compelling. S.Ct. at 2758. We as do note that several courts are text, permitting County's protect- have content-neutral the the interests can be invalidated requirements application appropriately because their ed an drafted ordinance or violating groups insufficiently small the First Amend- rendered them tai- otherwise without Brownell, 1511, Douglas lored. See 88 F.3d ment. 1256 flexibility with challenges to ment has been administered Burk’s other to reach

decline argues It that permissiveness. and provision. variety county attorney approved has facially content-neutral Even appli- agreements, indemnification and no regulation manner and place, cation has ever been for failure to denied with unbridled dis public officials not vest agreement. County ‍‌​​​‌​‌‌‌‌‌‌​‌​‌​​‌‌​‌​‌​​​‌‌​​​‌‌‌​‌​‌​‌​​​​‌‌​‍an The also include See decisions. permitting over cretion prac- this as a “well-established frames Birmingham, 394 U.S. Shuttlesworth see, tice,” v. Plain e.g., City Lakewood 935, 938-39, 150-51, 22 147, 89 S.Ct. Co., Publishing 486 U.S. Dealer (1969); County v. Forsyth L.Ed.2d 2151, 100 L.Ed.2d 771 108 S.Ct. Movement, 130 Nationalist (1988) (“The requires doctrine 2395, 2401-02, -31, L.Ed.2d 112 S.Ct. city discretion] limits official claims [on per discretion over Excessive explicit by implicit are in its law be made constitutionally suspect mitting decisions judicial incorporation, binding textual opportunity for un it creates because construction, or administrative well-estab- censorship signals a lack of detectable practice.”), apparently asserting lished id.; Lady Linger J. tailoring.' narrow See and flexi- practice permissiveness that a Jacksonville, ie, City Inc. v. bility attorney’s restrains somehow (11th Cir.1999); Miami Herald discretion. Hallandale, 734 F.2d City Pub. Co. v. cannot conclude on this record that We Cir.1984). (11th Therefore, time, 666, 675 has demonstrаted a “well-es- con regulations manner must place, and id., subjects practice,” tablished drawn, and defi “narrowly reasonable tain (cid:127)county attorney’s “narrowly discretion to Thomas, standards,” 534 U.S. at nite drawn, standards,” reasonable and definite guide at “to the official’s Thomas, at at 781. 534 U.S. S.Ct. subject to effective and render decision my affidavit asserts that “to The Sheriffs review,” at 122 S.Ct. at judicial id. recollection, knowledge and the Sheriffs permit applica- denied a Office has never readily conclude that the in We any tion for reason related to the failure to Augusta- in the provision demnification give an indemnification and hold harmless provide fails to ade Richmond Ordinance agreement particular or the form of said requires It an indemnifi quate standards. provided by ap- was an agreement, which satisfactory “in a form agreement cation fact, any I plicant. appli- cannot recall § attorney Augusta, Georgia,” for 3-4- 3-4-11 cation for under 11(a)(3), guidance regarding no gives predecessor being amended or its denied “satisfactory.” considered what should be Even we completely reason.” if Thus, is standardless and requirement arguendo that a well-established assume rejection of indemnifi acceptancе leaves indemnity practice requiring of not “to the whim' of the agreements cation statutory clear mandate nullify could Thomas, at administrator.” provide shall an indem- applicant “the County, (citing Forsyth at 781 nification,” 3-4-ll(a)(3), know that we 2403). 133, 112 ordinance virtually no his- the instant has only in the virtually tory, having has conceded as been enacted require- applications.15 month before the instant by arguing much submission, any required 3-4- application erly that an can be execute 15. We also know fully complete prop- denied for failure Moreover, appli- that also know CONCLUSION we period given this were also a during cants permitting requirement Section 3-4-11’s agree- “sample” form of indemnification is unconstitutional a prior content-based ment, prac- belies a well-established which restraint that narrowly is not tailored to Supreme The tice of non-enforcement. scrutiny. survive strict The indemnifica- permitting in Lakewood struck Court provision tion is unconstitutional because it in facially ordinance as unconstitutional grants county attorney excessive dis- challenge. pre-enforcement similar cretion over permitting decisions. The at 2151 n. 11. U.S. at n. judgment of the district court is therefore Forsyth County, also 129- See reversed, and the case is remanded for (striking 2400-03 ordi- proceedings further not inconsistent with facially unconstitutional because nance as opinion. this overly respect broad discretion with REVERSED REMANDED. expenses fee to cover associated with permit, noting footnote 10 that BARKETT, Judge, concurring: Circuit challenge it was irrelevant to the facial opinion I concur with the I because charged that the fee the instant situa- agree' holding with the Court’s content-neutral, that tion was (“ 3-4-11”) question Ordinance in is con- very threat inherent in its exis- “pervasive I my tent-based. write to add view danger ... constitutes the to free- tence discussion.”). that the fail pass Ordinance would con- dom of stitutional if it muster even were not con- Finally, County cites the district tent-based. permit fees in the case approval court’s ultimately became Thomas the Su requiring An ordinance “before That preme inapposite. Court. case is authorizing public speaking, parades, or at issue there contained a provision assemblies” in a traditional forum precise type fee schedule tied to the “heavy presumption against” bears a it as attendees, expected event and number Forsyth County, restraint. Ga. v. provision triggered and an indemnification Movement, Nationalist people еxpected the number of at the (1992) L.Ed.2d 101 “little, any, if event. It left officials discre (internal omitted). citations To survive type tion to make the of content-based scrutiny, “may it: constitutional dele- plaintiff] that [the determinations and the gate overly licensing broad discretion to a Forsyth are [Supreme] Court concerned official”; government “must not be based Chicago about.” Park See MacDonald message”; on the content of the “must be Dist., *5, 1999 1999 WL 203288 U.S. Dist. narrowly significant tailored to serve a (N.D.Ill.1999). Thus, 5692 *17-18 LEXIS interest”; and “must governmental leave wholly it was unlike the indemnification open ample alternatives for communica- provision at issue here. Judge tion.” addition analysis, content-based I Anderson’s be- pro-

Because we find the indemnification 3-4-11 fails independently lieve grant vision unconstitutional its of ex- county prerequisites each of these other to consti- attorney, cessive discretion to the tutionality my as well. I focus comments argu- we decline to reach Burk’s other challenging delegation on the over-broad provision. ments Ordinance’s 11(b)(3)(a), agreement. which includes the indemnifica- tion

1258 great danger too of a that the presented and its utter lack of licensing discretion “covertly to dis- ordinance would be used tailoring. narrow against protected expression). criminate” the Sheriff with the vests Ordinance dissent, “in whole or I deny permit Unlike the believe Thom- power to 775, if the deter- 122 any Chicago, for reason as v. part Sheriff (2002) ap- plan submitted to inapposite mines that the 151 L.Ed.2d 783 is this safety concerns to public out plicant will raise case. The ordinance Thomas sets drawn, in the event or to the “narrowly participating those thirteen reasonable added).1 I believe (emphasis ...” for the denial of a use- public definite standards” grant of unbri- permit large-groups people this is an unconstitutional for of over 50 See, e.g., Shuttlesworth v. busy Chicago parks. discretion. Id. at 122 dled 147, 150-51, contrast, City Birmingham, 3-4- S.Ct. 775. Ordinance (1969) (“a law 22 L.Ed.2d 162 deny permit 89 S.Ct. 11 the Sheriff to to allows exercise of First Amend- subjecting groups regulated the size of those l/10th Thomas, of a to the restraint in virtually public places, ment freedoms all for narrow, license, objective, and def- “any without that in his own mind raises reason” au- guide licensing to safety inite standards concerns. Unlike the Thom- public unconstitutional”); Lady thority, ordinance, J. Lin- requires finding which Jacksonville, 176 F.3d gerie, City Inc. v. activity present the intended use or “would (1999) (“virtually any amount of ... danger an unreasonable to health or merely beyond the ministerial added), discretion n. 1 safety,” (emphаsis id. suspect”). Ordinance 3-4-11 allows the Sheriff believes, deny merely a permit because he superficially Although the Ordinance not, reasonably or that the activi- whether limits the determination Sheriffs ty might public safety “raise concerns to considerations, criteria the safety participating those in the event or to the vague, undefined Sheriff consider is Thus, public.” impermissibly besides subjective. permits It completely power deny granting Sheriff “any deny a for reason” permit Sheriff to opinion,” based on his “mere permit if is satisfied that will the Sheriff Hague, 307 U.S. “It can public safety “raise” concerns. impermissibly grants Ordinance the Sher- ... the instrument of arbi- thus be made authority iff the to enforce a “heckler’s trary suppression expression of free e.g., Forsyth County veto.” See v. Nation- Industrial Hague views.” v. Committee of Movement, 123, 134-35, alist 496, 516, 59 S.Ct. Organization, 307 U.S. (1992); see (1939) L.Ed.2d 101 (striking down 83 L.Ed. 1423 Knights also Church American Ku the Director of “enable[d] statute (CAKKKK) Gary, Klux Klan on his mere Safety permit to refuse a (7th Cir.2003) (It 676, 680-81 is well-estab- ‘ri- prevent refusal will opinion that such permit parade lished “that a or other ots, disorderly disturbances or assem- Inc., cannot ”); assembly having political overtones blage’ Lady Lingerie, see also J. (1999) applicant’s a be denied because the audience (noting 176 F.3d at even safety provision” ground will riot. To allow denial on such a “seemingly-innocuous fire vicinity permits the diate of such event” and if it "would 1. The Ordinance also Sheriff proposed plan refuse a if the "would lead to an unreasonable disturbance of the (motor unduly congest restrict traffic proposed peace and/or the area at the time of the pedestrian) vehicle or event”. roads, right ways or sidewalks in the imme- ” a in protecting public safety to authorize ‘heckler's veto.’ interest and would be omitted)). (internal traffic, citations free flow of this Ordinance utterly fails to achieve the “appropriate balance Furthermore, might that the rationales speech gov between affected and the official limit justify granting government a ernmental interests the ordinance issuing permits large- in for ed discretion purports to serve.” Watchtower Bible and park simply in a do not groups public York, Society Tract New Inc. Village (or in of granting to the same this extend Stratton, 122 more) in to of deciding case discretion issue a 2080, 153 L.Ed.2d 205 The scope in permit people to five all areas. of the ordinance is sweeping requiring Posner, author of Judge As the Sev — only of group people five or more affirmed enth Circuit’s decision was “[a]ny expression who wish to exhibit of Thomas, in has by Supreme Court for, of, support or any person, distinguishing in recently made clear issue, political or other cause or action” on Thomas, of for demon parks use “[t]he sidewalk, street, “any public right way of complexities ... not in strations involves public property” gov other first obtain in volved street rallies.” CAKKKK approval engaging ernment before in pro He also noted that Gary, 334 F.3d added). speech (emphasis tected The Or parks being in over Thomas the “were overly dinance is broad at least two by applications.” thousands of whelmed First, crucial it respects. applies to small Thus, grant of some limited dis groups legiti intimate that do not create a by cretion that case was fueled need County’s mate threat to the interests. See large a expeditiously process to volume Second, Majority Opinion n.13. applications purpose for the of coordinat it requires permit virtually all ing types of activities in a limited various Hill, 728, 120 places. See 530 U.S. at space. amount of That is not the case (“[W]e must, course, take account here. place regulations apply to which the Furthermore, contrary to the dissent’s determining whether these restrictions judicial suggestion, after-the-fact review speech necessary.”); burden more than see remedy not grant does this over-broad Francois, also Davis v. Lakewood, City discretion. See (5th Cir.l968)(striking down ordinance in (“[e]ven U.S. at 108 S.Ct. 2138 if part it picketing because “restricts both judicial relatively speedy, review were streets; all sidewalks extends to for such review cannot substitute concrete city though kinds facilities in the each guide standards the decision-maker’s considerations”). may present different Cantwell, discretion.”); 310 U.S. at (“[T]he availability judicial of a S.Ct. 900 The substantial interest the has remedy system for abuses in the of licens- safety in protecting public ensuring ing system previous still leaves one simply the free flow of traffic are which, restraint in the field of free by the permit advanced breadth this A press, we have held inadmissible. requirement, applies every group which statute authorizing previous upon restraint sidewalk, in a people standing park, of five the exercise of the guaranteed freedom public places, or countless other who wish judicial decision trial is as after obnoxious candidate, support political a local to the as one for providing Constitution ordinance, perhaps even a sоldier com- action.”). like restraint administrative “It ing home from war. is offensive—not protected by the First narrowly

The Ordinance also is not tai- the values Amendment, very lored. to the notion of a While has substantial but every- requires I also note that the Ordinance in the context of society free —that that, upon appeal a citizen must first of the denial of an discourse day public application permit part, of her desire to in whole or government inform neighbors instigate legal proceed- and then obtain must speak to her Sheriff Bible, jurisdiction, so.” in a court of ings competent to do Watchtower 165-66, at 122 S.Ct. 2080. “Conse- “Augusta U.S. shall have the burden of end, the attaining permissible a quently, demonstrating validity the of the denial of way in a [County] power has exercised its by the permit applied applicant.” the as for infringes protected 3-4-ll(c). free- unduly differently, § Stated the Sher- Davis, 736. dom.” application of an for iffs denial review,” upon which has been “enforceable RONEY, Judge, dissenting: Circuit by Supreme one factor considered the I affirm challenges. I dissent. would in similar constitutional respectfully Court Dist., set forth Chicago the court for the reasons Thomas v. Park district See preliminary the in- denying in its Order S.Ct. 151 L.Ed.2d U.S. not junction. Because that Order was Appendix I it herе as I. published, attach This modeled after the Ordinance was is content- As to whether the Ordinance unanimously upheld by ordinance was neutral, court’s state- I note the district Supreme Chicago Court Thomas v. however, “Plaintiffs, not do as- ment Park District. 534 [‘Any ex- protest sert that the ordinance Here, challenged Ordinance for, of, any pression support of or quotes nearly the Thomas ordinance ver- issue, person, political or other cause or batim for six of the eleven factors for the by physical action which is manifested permit appli- of the official’s consideration presence persons, display or the Compare cation. 534 U.S. at 318 n. banners, signs, posters, like’] and the dis- DistCode, 775, quoting Chicago Park viewpoint of the upon the criminates based C.5.e(l 11) VII, § Augusta- ch. ‍‌​​​‌​‌‌‌‌‌‌​‌​‌​​‌‌​‌​‌​​​‌‌​​​‌‌‌​‌​‌​‌​​​​‌‌​‍to with subject matter of the speaker or the 3-4-ll(b)(3)(a § Richmond Code Denying Preliminary In- speech.” Order i). encompasses to It a also seventh

junction, (corresponding at 10 text of Au- by requiring application factor an Thomas 3^-l(e) § gusta-Richmond County Code agreement fee and indemnification added). provision different the Ordinance. I special purpose call attention to the Compare 534 U.S. at 318 n. C.5.e(2) 3-4-ll(a)(3). intent, legislative by § § and the listing Ordinance with interpreted, by quoting fact,

which challenged it should be Ordinance here § Augusta-Richmond Code 3-4- relating adds two other tailored factors 11(d): an “unreasonable disturbance” of peace “unduly and an restriction” of traffic

(d) specific It intent of Intent. requested permitted in the area. 3- See this ordi- passing the Commission (b)(3)(f), (g). remaining 4—11 four place regulate nance to grounds quoted Thomas ordinance not not and manner of such events and way in some in the embodied Ordinance regulate message specific content or challenged double-booking here relate any speech any applicant hereun- by an public park for event the sale Only public safety der. and other con- goods park, simply in a factors that are cerns shall be as stated herein consid- relevant here. See 534 U.S. at 318 n. ered the Sheriff the decision to C.5.e(6), (7), (8), deny permit (listing issue or hereunder. S.Ct. 775 (10)). facial an challenge that must be considered ordinance. The The factors unde- “vague, are far from plaintiff ap- the Sheriff does not here make “as subjective,” is ar- completely fined and plied” challenge to the Ordinance. cut from the same firmly and are gued, I would therefore affirm the district unanimously Thomas

pattern upheld denial of the plaintiffs’ request court’s ordinance. preliminary injunctive relief. challenged ordinance example, For finding required

in Thomas I APPENDIX “ activity present ‘would intended use BOWEN, Judge. Chief District danger to the health or an unreasonable enjoin Plaintiffs move to the enforce- or other users of safety applicant, § ment of of Augusta-Rich- 3-4-11 the at n. park...534 the (Doc. 3.) County mond Code. No. For the C.5.e(9)) § (quoting (emphasis S.Ct. 775 below, reasons stated Plaintiffs’ motion is 3-4-ll(b)(3)(e) supplied). of the Section DENIED. Augusta-Richmond Ordinance states that proposed plan appli-

the submitted the I. The Ordinance by the if the may cant be denied Sheriff present an unreasonable applicant “would February Augusta- On the danger safety appli- to the health or the (“the Richmond Commission Com- cant, participating others the event or mission”) whereby enacted an ordinance public large,” at other members of the protest consisting or demonstration of five govern- In order for (emphasis supplied). persons any or more cannot be held on adequate police to provide mental bodies 'sidewalk, street, public right-of-way, or control, protection, traffic and further pub- public property permit. other without safety partici- lic considerations “others Augusta-Richmond County § See Code 3- pating the event or other members ordinance”). (“the According 4-11 to the large,” the at it is essential ordinance, sought the Commission have notice governmental bodies advance regulate place, the and manner of and infor- protests and demonstrations 4—11(d). § gatherings. these Id. 3— location, size, concerning mation and man- say It fair to the ordinance was is protests effectively ner of such that it can potential of the passed anticipation arrangements. In proper logistical make protests during forthcoming the Masters my judgment, plaintiffs the have satis- Tournament, at annually held the Golf factorily distinguished application the Augusta (“Augusta National Golf Club forth from their principles the therein set National”). say It is also fair to the ordi- application to the Ordinance here. nance was modeled after and draws heavi- people minimum As to the number ly upon Chicago the model of the Park requires permit approved by as such passed District ordinance which constitu- Thomas, legislative the of local decisions Chicago Park tional muster Thomas a threshold bodies to what constitutes District, require a intended to permit number to L.Ed.2d 783 protect safety community’s of a citi- the seeking Persоns to hold rejected. arbitrarily zens should not be apply must to the Sheriff of demonstration community Each different as to the con- Richmond for a least streets, sidewalks, figuration days the commencement of twenty prior to parks, traffic flow and other relevant con- application in a event. must contain apparent siderations which are not the 8) 1) peace; planned the the the name and would disturb following information: 9) 2) law; activities would break the an estimate of applicant; address of 3) 'applicant previously has violated this ordi- the date participants; number 4) event; predecessor nance or its ordinance. Id. proposed and duration of 5) (b)(3)(a) (j). § Failure to render a event; 3—d—11 any proposed location of the — application ap- on the waives the decision to disseminate the mes- equipment used 3-4-ll(b)(2). requirement. §Id. 6) proval “provisions that will insure sage; par- safety” applicant and other days An five to file an applicant has 3-4-ll(a)(l)-(2). § Id. addi- ticipants. appeal partial of a or total denial. Id. 3- applicant an filing application, tion to 4-ll(c). appeal After the is filed with the and hold- provide an indemnification must Sheriff, notify city attorney he must agreеment favor of Defen- harmless judicial who seek review of the denial shall 4—11(a)(3). That form of dants. Id. 3— An days. applicant within seven Id. approved by city agreement must be judicial after seek review time attorney. Id. denial. a decision on

The Sheriff must render granted, if an application Even days of its application within seven authority deputies Sheriff or his have the 4—11(b)(2). § filing. Id. The ordinance 3— pro- under the ordinance to terminate the may the con- lists several factors Sheriff time if test or demonstration “traf- making a determination on sider when fic, weather, present or other conditions” 4—11(b)(1). Such permit request. Id. 3— danger” an “imminent undue to the and to, include, but are not limited the factors or applicant, participants, members the time, proposed loca- event’s scheduled its 3-4-ll(e). public. Id.

tion, congestion the possible traffic Legal II. Standard may

caused the event. Sheriff may “other matters as be also consider Initially, Plaintiffs moved this Court to safety appli- to the the important assure temporary restraining under issue order ....” Id.. cant and others 65(b). Federal Rule of Civil Procedure (Doc. 3.) However,- No. because Defen- grants the Sheriff the The ordinance provided dants were notice of the motion authority deny applicatiоn the whole present hearing, and were at the Plaintiffs’ reasons. The part or in for several Sheriff motion will be treated as a motion for if many deny the raises preliminary injunction. See Four Seasons 4—11(b)(3). safety §Id. concerns. 3— Consorcio, Resorts, Hotels And v. B.V. over-arching In addition to this consider- (11th Cir.2003) (“The 1205, 1210 n. 3 F.3d ation, contains other the ordinance factors may hearing district court convert a for a 1) justify a denial: an in- that could also temporary restraining hearing order into a 2) application the complete application; injunction preliminary long for a as as the 3) appli- the misrepresentations; contains party hearing.”) adverse had notice of the 4) contract; legally incompetent cant is damaged pub- applicant previously has may grant A a preliminary district court paid lic not for the dam- property injunction only has upon showing the movant’s 5) 1) age; planned poses event unrea- it a substantial likelihood of has merits; 2) safety danger sonable to the health on the movant will success injunc- applicant, participants, irreparable injury or members suffer unless the 6) 3) issued; public; unduly injury re- is the threatened the event would tion 7) traffic; outweighs injury' congest possible strict or the event the movant opposing Hampshire, cause the New injunction that the 4) issued, injunction if 85 L.Ed. 1049 party; Against interest. not disserve would I legal backdrop, this ‍‌​​​‌​‌‌‌‌‌‌​‌​‌​​‌‌​‌​‌​​​‌‌​​​‌‌‌​‌​‌​‌​​​​‌‌​‍will consider the (11th 1163, 1176 Siegel Lepore, protest ordinance.

Cir.2000). injunction is an preliminary “A granted not to be extraordinary remedy Challenge A. Facial clearly the movant establishes unless ordinance, Plaintiffs contend that the as to persuasion’ ‘burden each face, an invalid its content-based I find prerequisites.” Id. Because four restraint, opposed to a content-neutral Plaintiffs have not established sub- merits, place, and manner restriction. More likelihood of success on the stantial my Plaintiffs unnecessary findings specifically, to announce assert the ordi- as to- whether- Plaintiffs applies and conclusions nance is content based because it prerequisites. last three satisfied the protests and demonstrations. Ad- ditionally, Plaintiffs maintain that Analysis III. overly has broad discretion to Sheriff provides that The First Amendment grant deny permits. Lastly, Plaintiffs ... abridging make no law “Congress shall provision contend that the indemnification ....” n Const, the freedom of U'.S. city places unfettered discretion at- I. The Fourteenth Amendment amend. torney overly pro- and is broad because the same limitations on state and imposes damаge could liable for testers caused governments. Jaffree, local Wallace pro- individuals associated with the 38, 49, 105 86 L.Ed.2d 29 test. Defendants counter that the ordi- (1985) (Fourteenth “imposed Amendment imper- neutral and is not nance is content limitations on the the same substantive missibly broad. legislate that the First power States’ Because Plaintiffs contend that the ordi always imposed had on the Amendment delegates overly nance broad discretion to Congress’ McKinley see also v. power”); Sheriff, properly Plaintiffs can assert a (11th 1146, 1147 n. 1 Kaplan, 262 F.3d challenge facial to the See ordinance. .2001). Cir Fla., City Augustine, St. 272 Horton v. of Plaintiffs assert that the First Amend- (11th Cir.2001) (facial 1318, 1331 chal F.3d protects right protest ment their in the every applica lenge appropriate is “where choosing. of their Defen- specific area impermissible sup tion creates an risk of protecting dants have an interest ideas, of such as an ordinance pression ensuring safety of protest participants, delegates overly broad discretion to orderly of bystanders, maintaining flow -”); City the decisionmaker Lake of traffic, pedestrian pre- and vehicular and Co., Publ’g v. Plain Dealer 486 U.S. wood venting disruptive confrontations. Be- 2138, 750, 755-56, 108 S.Ct. 100 L.Ed.2d of of the event and peculiarities cause (1988) (“When licensing a statute al 771 planned protests, the interests of the legedly gov unbridled discretion in a vests parties are irreconcilable in this case. ernment official over whether to or Further, liberties, it is noted that “civil deny activity, one is sub expressive who Constitution, guaranteed by imply may challenge facially it ject to the law organized society existence of an maintain- for, necessity applying of first without the ing public liberty order without which it- ” license.”). denied, being .... a self would be lost Cox v. State and 1264 FW/PBS, Dallas, City Inc. v. is a Prior Restraint 1. The Ordinance 225, 596, 215, 110 107 L.Ed.2d 603 S.Ct. that the Commis- The ordinance states J.) (1990) (O’Connor, (plurality opinion). time, sought regulate sion n Although prior presump a restraint protests manner of and demon-

place, and invalid, time, tively can place, presumption and manner Typical strations. overcome if the ordinance contains certain speech specif- restrict based on regulations locations, day, safeguards. type safeguards neces proposed ic times of the sary prior dis- to. restraint de equipment used to validate the methods pends upon Nationalist whether the ordinance limits message. See seminate Ga., Cumming, speech 92 based on its content. See Thomas City Movement Cir.1996) (ordinance Dist., (11th Chicago Park 122 U.S. F.3d (2002) (contеnt- Saturday mornings); S.Ct. 151 L.Ed.2d 783 parades banned Fla., Augustine, prior 272 neutral restraints do not have to City Horton v. St. (11th Cir.2001) (ordinance safeguards contain the set forth procedural F.3d Maryland, from oc- in Freedman v. prohibited performances street (1965)). particular area on 13 L.Ed.2d 649 Accord curring in four-block Enters., street); ingly, necessary Inc. v. Gov’t it is to determine whether Wise Unified Ga., -by County, imposed 217 F.3d the restraint the ordi Athens-Clarke Cir.2000) (11th (ordinance pro- nance is content based or content neutral. nude-dancing of alcohol at es- hibited sale 2. The Ordinance is Content Neutral tablishment). typical Unlike restriction, place, principal inquiry determining manner “The speech neutrality gov to cer- content ... ordinance does not restrict whether the locations, day, specific regulation adopted tain times of the ernment has equipment disagreement dictate the methods or because of with the message. message conveys.” v. Rock may be used disseminate Ward Racism, Instead, suggests Against the ordinance factors-, among consider those 105 L.Ed.2d 661 There Sheriff others, grant or deciding whether to are two forms of content-based discrimina when 2) 1) discrimination; viewpoint tion: deny permit. subject-matter discrimination. See Rosen time, Merely considering proposed berger v. Rector and Visitors Univ. of protest of a or demon- place, and manner Va., 819, 2510, 2516, 515 115 U.S. S.Ct. 132 stration, not convert this ordinance does (1995) (“The government L.Ed.2d 700 and manner re- place, into a valid speech from regulating must abstain when Instead, striction. the ordinance undoubt- specific motivating or ideology edly prior constitutes a restraint on ex- speaker or opinion perspective is the pression approve because the Sheriff must restriction”); Dep’t rationale Police of, of, message the fact if not the 92, City Chicago Mosley, protest or demonstration before it occurs. (1972) (un 2286, 92 33 L.Ed.2d 212 S.Ct. Frandsen, 212 States v. F.3d See United constitutional picketing restriction allowed (11th Cir.2000) (“A prior 1236-37 subject labor-management dispute, on expression on exists when the restraint picketing subjects but on other was not deny access to a forum government can permitted). occurs”) such, expression As before the strong presumption against a its Plaintiffs assert the ordinance re- there is 1237; constitutionality. speech see also stricts on its content Id. based because

1265 pro- ruling the statute that a brief evaluation applies only it to demonstrations Plaintiffs, however, do not assert tests. speech constitutionally problematic. is not рrotest ordinance discriminates Colorado, (“We 120 Hill S.Ct. at 2492 speaker or upon viewpoint of the based held, suggested, have never or that it is Instead, subject speech. matter of the improper to look at the content of an oral contend that the restriction on Plaintiffs or written statement in order to determine speech forms of constitutes content certain whether a rule of to a applies law course of discrimination because the Sheriff has conduct.”). Accordingly, duty the Sheriffs speaker to message consider the cursory a pro- make examination of the ap- ordinance even determine whether the message testers’ does not render the ordi- plies speech. to the nance content based. reasons, For two the Plaintiffs’ reason- First, ing impersuasive. the ordinance 3. Unbridled Discretion a against particular discriminate does not Restricting speech precluding discus subject speech limit to certain viewpoint or Instead, outright viewpoints sion on certain or sub prohibits protests it all matters. prior approv- without and demonstrations ject matters is not the method Colorado, al. See Hill v. U.S. government a can which discriminate 2492 n. L.Ed.2d 597 S.Ct. against on its content. Such based (2000) (citing several decisions where government discrimination can occur if the general picketing on upheld Court ban making the on official determinations demonstrations); Horton v. see also grant deny permits whether to or is af Fla., 272 F.3d 1318 Augustine, St. City of Forsyth forded unfettered discretion. (11th Cir.2000) on street (complete ban Movement, County, v. The Nationalist Ga. performances did not discriminate based viewpoint opinion perform- or of street (1992). Accordingly, if an L.Ed.2d 101 er). restraint ordinance that constitutes addition, ordinance mere- licensing on a bestows broad discretion ly requires perform the Sheriff to curso- grant official to whether to determine ry message protester evaluation of the deny a the ordinance must then permit, Colorado, convey. In Hill v. seeks adequate guide contain standards to Supreme considered the constitu- Court Thomas, 122 official’s decision. See tionality making of a statute Colorado person another with- approach unlawful to must nar guidelines at 780-81. Such purpose out that “for the person’s consent row, objective, and definite. See Shuttles education, ... engaging protest, oral Birmingham, 394 150- worth v. such other counseling person.” with (1969); L.Ed.2d petitioners argued In that case Campaign Nuclear Freeze v. Central Fla. that the Colorado statute was content (11th Cir.1985). Walsh, 1515, 1525 774 F.2d the of the based because content Plaintiffs that several of the con- assert to determine whether had to be examined siderations contained the ordinance are counseling, or protest, it constituted oral narrow, objective, or sufficiently not defi- Unpersuaded education. Id. at 2485. the discretion.1 upheld the nite to constrain Sheriffs argument, Court petitioners’ safety” applicant, participants, specifically, point of the and 1. More Plaintiffs to four the First, allegedly vague, indefinite standards. alleged defect is the on-lookers. Another (b)(1) factors that the Sheriff subsection lists over-arching safety factor found in sub- pro- “may” a catch-all consider and contains (b)(3). Additionally, Plaintiffs contend section allowing to "such vision the Sheriff consider (b)(3) specific factors in that the enumerated important other matters as be to assure However, every agree- contained indemnification and hold-harmless nearly standard ment favor of Defendants a form upon ordinance which the protest in the satisfactory city attorney. Augus- the a permit a denial of has Sheriff can base 4—11(a)(3). ta-Riehmond Code 3— objec sufficiently specific and been ruled agree- that sample Plaintiffs contend the Court. See Thomas Supreme tive the narrowly handed to applicants ment is Dist., 316, 122 534 U.S. Chicago Park broadly requires ap- tailored an because L.Ed.2d 783 In indemnify against all plicant Defendants Thomas, upheld the Supreme Court regardless losses of who causes the dam- protest factors contained following age. Alternatively, Plaintiffs contend the 1) application at issue: was ordinance provision grants unfettered discretion to 2) (b)(3)(a); application incomplete, city attorney. Defendants counter misrepre material falsehoods or contains practice the ordinance does not in 3) sentations, (b)(3)(b); applicant indemnifica- require submission an contract or to sue legally incompetent to agreement sample tion as broad as the 4) (b)(3)(c); applicant has be sued Additionally, agreement. the Sheriff has damage caused to pay failed to provided testimony corroborated that he fines, outstanding property or has permit has never denied a due to the fail- 5) (b)(3)(d); an unreason poses the event applicant provide an indemni- ure safety appli to health or danger (Doc. 11.) able agreement. fication No. It is cant, public, and members of participants, eight appli- uncontroverted that five of the cants, (b)(3)(e). Plaintiffs, including either failed to id. at S.Ct. 775. See an agreement submit indemnification remaining standards As for the (Defen- sample agreement. modified the sufficiently con- contend do not Plaintiffs 1-12, 2April Hearing.) dants’ Exs. discretion, it strain the Sheriffs would evaluating challenge, a facial in- to find those considerations imprudent “county’s Court must consider the authori- “[Pjerfect juncture. clari- at this sufficient ordinance, tative constructions of the in- ty precise guidance have never been cluding implementation its own inter- required regulations even of restrict pretation Forsyth County, of it.” Ward, expressive activity.” See 131, 112 S.Ct. 2395. Because it is clear Instead, it is more permit that the Sheriff has never denied a pattern of unlaw- reasonable to deal with due to the form or the of an absence ful or favoritism if it content discrimination agreement, indemnification I cannot con- Thomas, 122 occurs. S.Ct. at 781. See provision facially strue the to be invalid. upon degree This Court declines to insist Moreover, unwilling simply Court rigidity protest in the ordinance found presume, contrary, without evidence to the legal arrangements.” “few ,city attorney approve would disapprove agree- of an indemnifiсation Provision A Indemnification message any pro- ment because of the provi- ordinance contains a test or demonstration. See NLRB Bibb (5th Co., Cir.1951)2 calling applicant Mfg. sion for an to execute approved are flawed because a denial of could that had been for the same reasons 1) upon: possibility be based that the vague. Plaintiffs contend are present event would an "unreasonable dan- 2) ger"; possibility the that the event Circuit, 2. The Eleventh in the en banc deci- would disturbance lead to an "unreasonable Prichard, City sion Bonner v. 661 F.2d 3-4-11(e) peace.” Lastly, § the of the allows (11th Cir.1981), adopted prece- 1209 as any protest or demonstration Sheriff to halt

1267 officers, government compelling ic that a has a public such (“Duly appointed providing safety interest for the department of a its police of the members discharge citizens. Fla. Nuclear presumed to Central Freeze municipality, are Walsh, Campaign v. according to the F.2d impartially their duties Cir.1985) (11th (concurring opinion); law, presumption must be over- Gri and this (6th Abramson, convincing evidence to der by come clear and Cir.1999) States, safety Dudley (citing public and order as contrary”); the United (N.D.Ga.1970) interests). compelling The more difficult F.Supp. (“[T]herе ‍‌​​​‌​‌‌‌‌‌‌​‌​‌​​‌‌​‌​‌​​​‌‌​​​‌‌‌​‌​‌​‌​​​​‌‌​‍strong presumption question of the is whether the ordinance is nar rowly of acts done in the drawn. legality correctness and and until discharge of official duties unless narrowly An ordinance is tailored to contrary appear.”) the is made if ... goals regulation achieve its “the promotes a Finally, language government it is noted that substantial inter- effectively est that would less by Supreme Court its be achieved employed regulation.” v. Rock provision of the indemnification absent Ward mention Racism, 781, 799-800, Against was Chicago Park District ordinance (1989) argument would 109 S.Ct. 105 L.Ed.2d 661 not so strict as Plaintiffs’ (internal omitted) (cita- quotation unanimous marks require. The Court observed omitted). Furthermore, long as objects Chicago “[s]o of the Park tion that one of the substantially are not financial account- the means chosen ordinance was “assure necessary gov- than to achieve the ability damage by caused the event.” broader interest, Thomas, regulation ernment’s ... will (emphasis at 780 add- ed). simply if because a court con- Accordingly, even the Sheriff had be invalid government’s cludes that the interest could liberally construed the indemnifica- not so adequately less-speech- served some applicants, protest provision tion pass constitutional restrictive alternative.” might ordinance still winnowing process of this S.Ct. 2746. muster consideration of the mat- Court’s further ensuring Defendants’ interest

ter. on-lookers is safety protesters of the Ab- protest furthered ordinance. Scrutiny 5. Strict ordinance, interest would be sent the this subject Generally, prior restraints are effectively protest less because a achieved Moreover, scrutiny. ordinances strict oc- spontaneously or demonstration could speech occurring on which seek to restrict without law en- cur on road fo- quintessential public streets —a to take having opportunity forcement subject scrutiny. to strict Ac- rum —are or direct traffic. crowd control measures analyze will whether cordingly, this Court does not allow Additionally, the ordinance sufficiently nar- ordinance government’s achieving for means of rowly compelling gov- tailored to achieve than substantially that are broader goals ernment interest. necessary. ordinance, face, on its demonstrates IV. Conclusion safety pro- for the providing I exigencies Because of the will primary and on-lookers was the

testers parts. in two enter the Court’s decision of the Commission. It is axiomat- concern ren- dered to October dent decisions of the former Fifth Circuit IT IS ORDERED Upon foregoing, enjoin 3-4-11

that Plaintiffs’ motion County Code is Augusta-Richmond challenge. facial An as to their

DENIED as-applied respect to the chal-

Order with will follow.

lenge to the ordinance PARKER, Plaintiff,

Vicki Reynolds, E. Intervenor-

Thomas

Plaintiff-Appellant, INTERNATIONAL, INC.,

WENDY’S

Wen-Alabama, Wen-Alabama,

Inc., Defendants-Appellees.

No. 02-16185. Appeals,

United Court of States

Eleventh Circuit.

April

Case Details

Case Name: Martha Burk v. Augusta-Richmond County

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Apr 15, 2004

Citation: 365 F.3d 1247

Docket Number: 03-11756

Court Abbreviation: 11th Cir.