Case Information

HIGHER SOCIETY OF INDIANA, Plaintiff-Appellee, v. TIPPECANOE COUNTY, INDIANA, Defendant-Appellant.

No. 17-1089

United States Court of Appeals, Seventh Circuit.

Decided June 7, 2017

1113

Argued April 20, 2017

tion to be paid. In short, none of the physicians has submitted an expert's report. Even those experts not required to provide a written report must furnish "a summary of the facts and opinions to which the witness is expected to testify." Fed. R. Civ. P. 26(a)(2)(C)(ii). None of the physicians did that either.

"An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process." Mid-State Fertilizer Co. v. Exchange National Bank of Chicago, 877 F.2d 1333, 1339 (7th Cir. 1989). A bottom line is all we get from any of the physicians' evaluations. By contrast, Henkel provided the district court with a comprehensive evaluation of MDI prepared by the World Health Organization, incorporating risk assessments from governmental bodies in the United States, Japan, and the European Union. WHO, Diphenylmethane Diisocyanate (MDI) (Concise International Chemical Assessment Document 27) (2000). The WHO's Assessment concludes that MDI can irritate lung tissues and cause asthma-like symptoms but is not associated with other bad outcomes in animal studies (of which there have been several) or human epidemiological studies.

The WHO's Assessment is 17 years old and summarizes data from the 1990s and before. More recent work could call its conclusions into question. But none of Gregory Cripe's treating physicians mentioned any such work. One of them did cite to a 1994 publication, but the WHO found that publication not credible (Assessment at 22), and the treating physician did not respond to the WHO's views. Nor has any of the treating physicians suggested a mechanism by which MDI could cause the symptoms of which Gregory Cripe complains—sweats, chills, nausea, constant pain, headaches, weight gain, fatigue, dizziness, numbness, accelerated heart beat, stiffness in the neck, sores, anxiety, poor short-term memory, and generally feeling lousy.

You can't beat something with nothing. Henkel provided reasons to think that MDI could not have caused Gregory Cripe's symptoms. He has no contrary evidence. The district court's entry of judgment in Henkel's favor is

AFFIRMED.

Kenneth J. Falk, Attorney, Indiana Civil Liberties Union, Jan Peter Kubicki-Mensz, Attorney, ACLU of Indiana, Indianapolis, IN, for Plaintiff-Appellee.

Douglas J. Masson, Attorney, Hoffman, Luhman & Masson, Lafayette, IN, for Defendant-Appellant.

Before MANION and ROVNER, Circuit Judges, and COLEMAN, District Judge.*

MANION, Circuit Judge.

The Higher Society of Indiana, a non-profit advocating for the legalization of marijuana, wants to hold a rally on the steps of the Tippecanoe County Courthouse in Lafayette, Indiana. Under County policy, the group was required to get its event sponsored by the County Board of Commissioners before it could take place on the grounds. Since the Commissioners didn't want to sponsor Higher Society's event, the County denied the group permission. The organization successfully sought a preliminary injunction in the district court, and the County appeals. For the reasons stated below, we agree with the district court's thorough opinion that the County's policy likely violates the First Amendment. Therefore, we affirm the grant of the preliminary injunction.

I. Background

In 1999, in response to controversy over a nativity scene on the courthouse grounds, the Tippecanoe County Board of Commissioners voted to declare the grounds a "closed forum." The Board approved a policy, still in effect today, that provides:

Only displays and events sponsored and prepared by a department or office of county government will be allowed in the windows of the Tippecanoe County Office Building or on the grounds of the Tippecanoe County Courthouse. Said displays and events shall be scheduled through the Board of Commissioners of the County of Tippecanoe.

Under the policy, groups seeking to hold an event on the courthouse grounds must seek the Board's sponsorship. The County says that it seeks to sponsor only events that essentially echo the County's views.

After it enacted the closed forum policy, the Board passed a resolution that permitted the annual 'Round the Fountain Art Fair to take place on the courthouse grounds.1 Consistent with the policy, the County sponsors the fair, and County Commissioners and the maintenance department help with preparation and logistics. In recent years, the Board has also sponsored other events. One was a rally celebrating the 95th anniversary of the League of Women Voters in 2015, held just after the close of business on a weekday with about 100 people in attendance. The Fraternal Order of Police also held a sponsored event to pay respects to fallen police officers. That event took place at lunchtime on a weekday. Finally, the Board has issued a proclamation for Child Abuse Prevention and Awareness Month in 2015 and 2016, which included events held at lunchtime on a weekday each year led by the court-appointed Special Advocate and the Tippecanoe Child Abuse Prevention Council.

However, several groups ended up making use of the courthouse grounds without the County's permission. First, a group known as Eyes on Lafayette was too late to get authorization for its planned candlelight vigil against bullying. Despite being told that it would have to hold the event on the sidewalk, the group made use of the courthouse steps and more than 50 people attended. Second, about 60 people attended a rally in support of Planned Parenthood that spilled over onto the grounds during the day on a Monday in 2015. There was also a daytime march in support of Syrian refugees during a workday in 2015 that attracted about 70 people and made some use of the grounds. And finally, a June 2016 rally of the Greater Lafayette Moms in favor of Gun Sense spilled over onto the courthouse steps despite not being sponsored.

Because of a misunderstanding involving a County official, Higher Society also held an event on the steps during this time. Someone apparently was under the mistaken belief that Higher Society's event had been sponsored, and so told the group it could hold its rally. At the event, speakers used a podium located on the balcony above the courthouse door and addressed a crowd of around 40 people. Higher Society also hung banners from the balcony and used an amplifier until a Commissioner asked the group to stop.

After its first rally, Higher Society sought permission from the Board to hold a second event on the courthouse steps. The Board declined to sponsor the event, citing the closed forum policy and indicating that no Commissioners were interested in referring the matter to the full Board. Higher Society then sought a preliminary injunction in the Northern District of Indiana, which Chief Judge Simon issued on December 19, 2016. Higher Society of Ind., Inc. v. Tippecanoe Cty., 223 F.Supp.3d 764 (N.D. Ind. 2016). The County timely appealed.

II. Discussion

A. Preliminary Injunction Standard

To be entitled to preliminary relief, Higher Society "must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in [its] favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). However, this is a free speech case, and "in First Amendment cases, 'the likelihood of success on the merits will often be the determinative factor.'" Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012) (quoting Joelner v. Vill. of Washington Park, 378 F.3d 613, 620 (7th Cir. 2004)). That is because even short deprivations of First Amendment rights constitute irreparable harm, and "the balance of harms normally favors granting preliminary injunctive relief because the public interest is not harmed by preliminarily enjoining the enforcement of a statute that is probably unconstitutional." Id. at 589-90. So "the analysis begins and ends with the likelihood of success on the merits of the [First Amendment] claim." Korte v. Sebelius, 735 F.3d 654, 666 (7th Cir. 2013).

B. Likelihood of Success

There are two ways that Tippecanoe County could plausibly defend the use of its policy to bar Higher Society's event from the courthouse grounds. First, it could argue that the courthouse grounds are a nonpublic forum and its speech regulations are "viewpoint-neutral and reasonable." See Anderson v. Milwaukee Cty., 433 F.3d 975, 979 (7th Cir. 2006). If not that, the County could assert that its sponsored events are government speech to which the First Amendment is inapplicable. See Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009).

The County has conceded—in the district court, in its brief, and at oral argument—that its policy is not viewpoint-neutral. This concession means that its policy would be unconstitutional even under the most restrictive forum analysis. Therefore, as the County acknowledged at oral argument, the only way it can win this case is if the events it sponsors on the courthouse grounds are government speech.

"The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech." Id. at 467. Governments may speak for themselves and are not required simultaneously to express an opposing viewpoint. Id.; Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 2246 (2015). Yet it may be difficult in many cases to draw the line between government speech and private speech. In Summum and Walker, the Supreme Court has carefully explained the proper analysis in such cases. A brief discussion of those cases will be instructive.

In Summum, the Court considered whether a permanent monument donated by a private party to be placed in a public park constituted government speech. A religious organization sought to erect a stone monument to be included in a display alongside several others, including the Ten Commandments and a September 11 memorial. Summum, 555 U.S. at 465. When the city council rejected the request, the organization sued, arguing that the city park was a traditional public forum and the denial of the monument thus violated the First Amendment. The Supreme Court disagreed, holding that "[p]ermanent monuments displayed on public property typically represent government speech." Id. at 470.

The Court based its conclusion primarily on three observations. First, it noted that government entities "have long used monuments to speak to the public." Id. Second, monuments "commonly play an important role in defining the identity that a city projects to its own residents and to the outside world." Id. at 472. Third, governments exercise control over the messages presented by the monuments. Id. at 471-72. In general, accepted monuments are "meant to convey and have the effect of conveying a government message, and they thus constitute government speech." Id. at 472.

In Walker, the Court considered these factors and concluded that the design on a license plate is government speech, even if it is submitted by a member of the public through a state program encouraging such submissions. The Court noted that, like monuments in public parks, states have traditionally used license plates to convey a government message. Walker, 135 S.Ct. at 2248. Second, it observed that "a person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed the message." Id. at 2249. And third, as in Summum, the government retained the final approval authority over the designs, making sure that it did not display messages with which it disagreed. Id.

In short, the relevant factors are: (1) whether governments have traditionally spoken to the public in the manner at issue; (2) whether observers of the speech at issue would reasonably interpret it to be that of the government; and (3) whether the government maintained editorial control over the speech. See id. at 2247. Contrary to Walker and Summum, all three factors in this case indicate that events on the courthouse grounds contain private speech, not the expression of Tippecanoe County.

First, the record does not indicate any history of the courthouse grounds being

used for government speech, nor is there any history of governments using events conducted by private groups to deliver their own messages. Second, unlike permanent monuments and state license plates, reasonable people would not attribute to the government the views expressed at protests and rallies on government property. As the district court correctly put it, "reasonable observers know that people who want to protest will find symbolic public property to do it on, and that, in many cases, the First Amendment guarantees them the right to march peacefully and make speeches there, even if the government doesn't like what they are saying." Higher Society, 223 F.Supp.3d at 770. Finally, the County maintains no editorial control of individual speakers (or individual pieces of art at the 'Round the Fountain Art Fair) at each event. Presumably, an individual speaker or artist could express her views on any topic, and the County may not share those views. Without such control, it is hard for the County to maintain that the private speakers are really the County's alter ego.3

Because the events on the courthouse grounds are private speech, Tippecanoe County's policy violates the First Amendment. While a full record probably won't change the outcome on this question, at this point we hold only that Higher Society is likely to succeed on its First Amendment claim.

C. Other Preliminary Injunction Factors

As we noted above, likelihood of success on the merits is usually the determinative factor when a preliminary injunction is sought on First Amendment grounds. That is true here. Therefore, we hold that the district court did not abuse its discretion when it issued the preliminary injunction.

III. Conclusion

We understand that the County is in a difficult position. It would like to open the courthouse grounds to some events that it believes add cultural or civic value to the community, yet it doesn't want to create a public forum for everything under the sun. It may still be possible for the County to accommodate some of its concerns (such as maintaining the Art Fair) while closing the grounds to Higher Society's rally and not violating the First Amendment, but the current policy will not suffice. Because the County's policy restricts private speech and it is not viewpoint-neutral, it violates the First Amendment. Higher Society was entitled to a preliminary injunction. We affirm the district court's well-reasoned opinion.

AFFIRMED.

MANION

Circuit Judge

Footnotes

* The Honorable Sharon Johnson Coleman, of the United States District Court for the Northern District of Illinois, sitting by designation.

1 The 'Round the Fountain Art Fair has been held in Lafayette each spring since 1973. Its website describes the fair as "an annual destination location that features up to 100 artists from around the nation, showcasing their talent and works in a variety of pieces and media." Round The Fountain Art Fair, About the Fair, http://www.roundthefountain.org/about/ (last visited May 2, 2017). It has "become known as one of the premier juried fine art fairs in the Midwest." Id. The 'Round the Fountain Art Fair committee purchases a piece of art each year "to continue the permanent collection exhibited in the halls of the Tippecanoe County Courthouse, which is a work of art in itself." Id.

2 For example, were Higher Society permitted to hold its event on the grounds, we seriously doubt that reasonable citizens of Lafayette will believe, solely based on the rally's location, that their County government has endorsed marijuana legalization.

3 Our decision in Illinois Dunesland Society v. Illinois Department of Natural Resources, 584 F.3d 719 (7th Cir. 2009), is not to the contrary. In that case, we held that a state park did not have to display pamphlets intended to criticize the park or scare people away from it. The pamphlets that a state park chooses to display are quintessential government speech. Pamphlet racks at state parks aren't traditional public fora or places where one would expect to see messages not endorsed by the park service. To that end, the park service controls the content of the brochures. Tippecanoe County does not do the same with the content of the speeches on its courthouse grounds.