Opinion
No. 1:03-cv-01516-JDT-TAB.
May 14, 2004
ENTRY ON REQUEST FOR PRELIMINARY INJUNCTION
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This matter is before the court on Plaintiffs' Request for Preliminary Injunction. The Plaintiffs are the World Wide Street Preachers' Fellowship ("SPF") and five individual members of the fellowship. Defendants are the Mayor of the City of Indianapolis and three of its police officers. Plaintiffs travel to various large events across the country to engage in evangelical preaching, leafleting and displaying signs or banners. In 2003, four of the five individual plaintiffs were arrested by the Indianapolis Police while preaching on Monument Circle during the 500 Festival Parade, a large annual event in downtown Indianapolis. The Plaintiffs assert that those arrests, as well as threats of arrest for other speech related activities, were in violation of their constitutional rights. These claims are the subject of their § 1983 suit for damages. They also petition the court to enter a preliminary injunction prohibiting the City of Indianapolis from barring them from passing out literature, displaying signs (or banners) or preaching with the aid of a megaphone from stationary positions along the sidewalks or pedestrian travelways within the designated parade site for this year's parade, scheduled for May 29, 2004.
For ease of reference, unless the court mentions a specific defendant by name, we will refer generally to the defendants as "the City".
The vast majority of relevant facts have been submitted by stipulation of the parties. The parties also submitted evidence via affidavit, video tape and still photographs as well. On April 26, 2004 the court held a hearing on Plaintiffs' Request for Preliminary Injunction, at which time the parties presented oral arguments and responded to questions posed by the court. The court also viewed the internet website at www.500festival.com which is maintained by 500 Festival Associates, Inc. ("500 Festival"), the organizer of the parade, to obtain additional background information on plans for this year's parade. The 500 Festival is not a party to this litigation and has not appeared for any purpose connected with the litigation.
Members or friends of SPF videotaped much of the conversation held between Plaintiff Ron McRae and Defendant Michael O'Conner prior to the preachers entry into the 2003 special event area. The video also captures many of the events which occurred later inside the designated area, including a portion of the preaching and the arrest of the four individual plaintiffs.
I. FINDINGS OF FACT
1. The 500 Festival is a private, Indiana, not-for-profit corporation, governed by a Board of Directors, with headquarters located in Indianapolis, Indiana.
2. The 500 Festival was created in 1957 to organize civic events and programs celebrating the Indianapolis 500 Mile Race.
3. Since 1957, the 500 Festival has organized and sponsored the 500 Festival Parade, which takes place in downtown Indianapolis. Each year, the 500 Festival Parade attracts over 250,000 curb-side spectators along a two-mile route. The parade generally consists of more than ninety entries, including celebrities, race car drivers, floats, bands and balloons. The United States Department of Commerce has rated the 500 Festival Parade the country's second largest, surpassed only by Pasadena's Tournament of Roses Parade on New Year's Day.
4. Pursuant to Section 961-501 of the Revised Code of the Consolidated City and County — Indianapolis/Marion, Indiana ("City Code"), the 500-Mile Race Festival, organized and sponsored by the 500 Festival, has been designated a special event by the City of Indianapolis.
Other examples of Indianapolis designated special events include Circlefest, the Indiana Black Expo concert, the St. Patrick's Day Parade, the Circle City Classic Parade and the Celebration of Lights. See City Code § 961-501.
5. Pursuant to City Code § 961-502, before a special event occurs, the Office of the Controller must authorize the special event through an application process. In determining whether to authorize the special event, the Controller consults with City officials responsible for traffic control, public safety and right-of-way cleanup and maintenance. The Controller may specify reasonable conditions to the event sponsor before authorizing the special event.
6. The special event authorization process is a policy, custom or practice of the City of Indianapolis.
7. Pursuant to City Code § 961-502, special event authorizations are to be issued in writing and shall prescribe the geographic boundaries, conditions and duration of the special event.
8. Once a special event has been authorized, the event sponsor has use of the geographic region designated in the special event authorization for the duration of the special event.
9. Pursuant to City Code § 961-503, vendors may not set up or operate within fifty feet of the special event boundaries without prior written permission from the event sponsor. With the assistance and permission of the event sponsor, the Controller may issue special event licenses, permitting licensees to engage in licensed activities, such as handing out souvenirs, passing out solicitation handbills or selling food within the event boundaries.
10. The 500 Festival does not charge an admission fee for the parade and anyone may enter the special event area free of charge. However, much of the sidewalk area, adjacent to the streets over which the parade travels, is covered with bleachers and folding chairs. ( See numbered areas on map attached as Exhibit 3a to Pls.' Mem. in Supp. of Mot. for T.R.O.). The bleacher seats and folding chairs are reserved for persons who have purchased tickets or are guests of the 500 Festival. So, many who attend the parade have purchased reserved seating on the bleachers or chairs provided. Others come early to claim space along the intersections, corners and street areas where no reserved seating exists. In some areas, the bleachers take up the majority of the sidewalk leaving limited space to walk behind or in front of the bleachers.
The parties correctly stipulated that there is no admission charge. The remainder of the information for this finding came from the website maintained by the 500 Festival and the court's awareness of prior parades. For the last twenty years that the undersigned has been employed in the United States Courthouse the route of the parade has passed by at least two sides of the building. These facts are added to the parties' stipulation as background because they cannot be disputed and are not dispositive of any of the issues in the case.
11. Although there are no specific exits or entrances for parade spectators, the geographical area "closed" to traffic for the parade is designated by bike racks, fencing and cones at various points along the parade route.
12. Certain areas within the event boundaries, such as the designated national television area, the production area, the celebrity "VIP" area and the reviewing stand, are restricted to parade spectators. These areas are marked and barricaded by bike racks, fencing or other barricades.
13. For large events which are likely to attract more than 1,000 people, the special event sponsor must submit a security plan to the Controller's Office. Security for the 500 Festival Parade is generally provided by 500 Festival officials and volunteers, private security companies, the Indianapolis Police Department, the Marion County Sheriff's Department, the Indiana State Police and the Indiana National Guard.
14. As a general matter, the Indianapolis Police Department and its officers act under color of state law in providing security.
15. Special event sponsors are also responsible for clean-up at the event site. For large events attracting more than 1,000 people, the special event sponsor must submit a clean-up plan. If additional clean-up by the City of Indianapolis' Department of Public Works is necessary, the event sponsor is billed for this service. The 500 Festival generally hires the Department of Public Works to clean up at the conclusion of the parade.
17. On December 12, 2002, the 500 Festival applied for and obtained authorization to hold the 500 Festival Parade on May 24, 2003.
18. Plaintiffs were permitted to attend the parade on May 24, 2003, and be within the designated event area, but were forbidden by Defendants from displaying banners, using megaphones and handing out literature along the parade route.
19. On May 24, 2003, there were individuals or groups other than Plaintiffs handing out literature, coupons or handbills along the parade route and places of business which were located along the parade route were allowed to remain open for business.
21. While Officer C.J. White was speaking to one of the individual plaintiffs, Kevin Deegan, a woman approached them and handed them literature about the identical size of the literature being passed out by the Plaintiffs. When Mr. Deegan accepted one of the leaflets, he inquired of Officer White as to why she could pass out her literature, but the SPF's literature was being prohibited. Officer White responded that her literature was okay but Mr. Deegan's was not.
22. Defendants did prohibit a group other than the Street Preachers from passing out items and holding signs within the event boundaries on May 24, 2003.
23. Plaintiffs attempted to pass out literature, but complied with Defendants' directive to cease dosing so, as they had complied with Defendants' directives that they not display their banners or use megaphones in the "closed" areas.
24. Plaintiffs were preaching in a very boisterous manner and crowd members yelled profanities at the Plaintiffs during various times, but none of the Defendant officers ordered the crowd to stop or threatened any crowd members with arrest.
25. The Indianapolis Police arrested Plaintiffs Ron McRae, Daniel Gowan, Stephen McRae and Bruce Perrault during the 2003 Parade after officers asked several times that they move on from where they were preaching on the sidewalk at One Monument Circle. The individuals were charged with Obstructing Traffic, Indianapolis Code of Ordinances § 441-312, and Disorderly Conduct, IC § 35-45-1-3.
26. Plaintiffs Ron McRae, Daniel Gowan, Stephen McRae and Bruce Perrault were held in the Marion County jail for twelve hours before being released.
27. The charges filed against Plaintiffs Ron McRae, Daniel Gowan, Stephen McRae and Bruce Perrault were dropped.
28. The 500 Festival has applied for and has been authorized to hold the Flagstar Bank 500 Festival Parade on Saturday, May 29, 2004. Set up is from 8:00 a.m. to 10:00 a.m. on Friday, May 28, 2004. The parade begins at 12:00 noon and ends at 2:00 p.m. on Saturday, May 29, 2004.
29. The application for authorization describes the parade as follows:
This time honored tradition enters its 47th year in 2004. The Flagstar Bank 500 Festival Parade is the nation's largest motor racing parade drawing over 250,000 spectators annually. THIS IS A SPECIAL DESIGNATED EVENT: VENDORS MAY NOT SET UP WITHIN 50 FEET OF THESE EVENT BOUNDARIES WITHOUT PRIOR WRITTEN PERMISSION FROM THE EVENT ORGANIZER: 12th St., Pennsylvania Ave, Washington St., Meridian St.
(Emphasis in the Original).
30. The application for authorization provides that the following areas will be closed from 7:00 a.m. on May 29, 2004, to 2:00 p.m. on May 29, 2004:
Meridian St. from 16th St. to Washington St. Pennsylvania from 16th St. to Washington St. All E-W cross streets from 15th St. South to Market: (Illinois to Delaware on the E-W Streets).
31. The application for authorization provides that the following areas will be closed from 10:00 a.m. on May 29, 2004, to 2:00 p.m. on May 29, 2004:
Washington St. from Illinois to Delaware.
32. The Exhibits submitted as part of the stipulations accurately depict the parade route and downtown Indianapolis and its landmarks. The parade is scheduled to begin at North Street and move south on Pennsylvania Street to Washington Street, turn west on Washington, then turn north on Meridian Street, passing around the east side of Monument Circle, and continuing north on Meridian Street to approximately 11th Street, where it ends.
33. University Park, which is bordered by Meridian Street, New York Street, Vermont Street and Pennsylvania Street, is owned by the State of Indiana.
34. The parade's special event authorization states that the Department of Public Works will provide clean-up services at the conclusion of the parade.
35. By authorizing the parade as a special event, the City has granted the 500 Festival use over the geographic location set forth in the event authorization, for the purpose of holding the 2004 Flagstar Bank 500 Festival Parade. The City has been informed by the 500 Festival that it intends to prohibit persons or groups from passing out handbills, holding signs or banners, preaching or protesting in a stationary location or using megaphones within the event boundaries, without prior authorization from the 500 Festival. Accordingly, the City intends to enforce the fifty feet vendor boundaries described in paragraph 9 above to prohibit Plaintiffs or any other persons or groups from leafletting, holding banners or signs, preaching or protesting in a stationary location or using megaphones among the crowds assembled within the event boundaries. Plaintiffs may freely enter the sidewalks along the parade route as other members of the public may do, to preach to the assembled crowds or engage willing people in conversation, but the City intends to prohibit them from handing out literature, displaying banners or signs, standing in one spot to preach or using megaphones within the event boundaries. The vendor boundary extends fifty feet from the edge of any point along the areas described in paragraphs 31 and 32.
36. The City will allow Plaintiffs to leaflet, preach and hold banners in any area of the City and on any City sidewalks other than those along the streets described in paragraphs 30 and 31 above before, during or after the parade, subject to the applicable legal authority.
37. On Saturday May 29, 2004, businesses located along the parade route are permitted to open.
38. It is the intention of the Plaintiffs' to attend the parade and to leaflet, carry signs and banners and preach with the aid of megaphones within the special event boundaries. Plaintiffs have not made application with the 500 Festival or the City Controller for approval of a special event license to engage in any of the activities they seek to pursue within the special event boundaries, nor have they sought permission from the 500 Festival to participate in the parade.
39. The Plaintiffs do not challenge the legality of the permitting scheme which allows the 500 Festival to obtain the authorization for use of the special event area and to conduct the parade. Plaintiffs base their claims on 42 U.S.C. § 1983 and seek a preliminary injunction challenging the City's intent to stop them from leafletting, carrying signs, use of megaphones and stationary preaching within the special event area.
II. PRELIMINARY INJUNCTION STANDARD
In assessing whether a preliminary injunction is warranted, a court must consider whether the parties seeking the injunction have demonstrated that: 1) they have a reasonable likelihood of success on the merits; 2) no adequate remedy at law exists; 3) they will suffer irreparable harm if it is denied; 4) the irreparable harm that will be suffered without injunctive relief is greater than the harm the opposing party will suffer if the preliminary injunction is granted; and 5) the preliminary injunction will not harm the public interest. Linnemeir v. Board of Trustees of Purdue University, 260 F.3d 757 (7th Cir. 2001). A preliminary injunction is a drastic remedy and should not be granted unless the movants clearly carry their burden of persuasion. Boucher v. School Bd. of School Dist. of Greenfield, 134 F.3d 821, 823 (7th Cir. 1998).
In First Amendment cases, the first element tends to be particularly decisive because the second and third elements are essentially assumed in favor of the party seeking to exercise their freedoms. Money damages are insufficient and, accordingly, silencing the free speech of someone seeking to address a particular audience is irreparable harm. National People's Action v. Village of Wilmette, 914 F.2d 1008, 1013 (7th Cir. 1990). The focus in these cases becomes the sliding scale approach. The more likely it is that the plaintiff will prevail on the merits, the less the balance of harms needs to favor the plaintiff. Ty, Inc. v. Jones Group Inc., 237 F.3d 891, 895-96 (7th Cir. 2001). This method is not mathematical or precise in any nature, but allows a court to exercise its discretion and good judgment in weighing and balancing the competing interests in molding appropriate relief. Id.
III. ANALYSIS
Plaintiffs desire to leaflet, preach from stationary positions with amplified megaphones and hold signs and/or banners on the sidewalks of the above described streets before, during and after the parade in furtherance of their sincerely held religious beliefs. The City indicates that unless SPF and its members obtain advance approval from the event sponsor and are issued a vendor's license, which would allow them to leaflet and/or carry signs or banners within the special event boundaries, the police will not allow them to do these things. With respect to preaching, it is the City's position that the preachers may deliver their message while on the move, but may not stand in one place and preach and may not use megaphones to amplify their speech. While plaintiff's claim that their intended actions are protected by the First Amendment, the City counters that the special event sponsor's First Amendment rights and the government's public safety interest take precedence in a situation where its content neutral permitting scheme has authorized the 500 Festival to hold this special event.
The issues raised in this litigation are both important and, in certain respects, novel. It is important to keep in mind what this dispute involves and what it does not. Plaintiffs describe this portion of the litigation, that is, their request for a preliminary injunction, as an "as applied" challenge to the use of the disorderly conduct statute and the obstructing traffic ordinance to keep them from engaging in protected conduct. Plaintiffs claim not to be challenging the event permitting process or facially challenging any of the laws or ordinances involved here. In essence, the Plaintiffs are announcing that they intend to conduct certain activities in conjunction with the May 2004 parade and, based on their May 2003 experience and certain announced intentions of the City with respect to those intended activities, they contend that they are entitled to an injunction to prevent the City from carrying out its intentions. Consequently, the court is being asked to anticipate future events, and in some respects, this ruling will be addressing matters which will unfold as the events occur.
The mention of the traffic obstruction ordinance requires a slight side discussion. The May 2003 arrests discussed above were based, in part, on allegations of violations of Indianapolis, Ind. Code § 441-312. Examination of that particular ordinance section suggests that it is of dubious applicability to the intended activities of the Plaintiffs because it appears to apply only to drivers or operators of vehicles. Other sections of the Code of Ordinances, though, seemingly would be more apt, such as § 411-102 (a portion of which prohibits willfully standing, congregating or assembling on Indianapolis sidewalks so as to cause annoyance, obstruction or hindrance to passersby or the public) or perhaps § 407-103 (a portion of which prohibits the obstruction of the normal passage of pedestrian traffic upon any public way.) When questioned at oral argument about the 2003 use of the traffic obstruction ordinance, counsel for the City implied that it is the City's intent to enforce ordinances which prohibit the blockage of sidewalk traffic by persons rather than vehicles in connection with the 2004 parade, but did not specify the particular section of the Code of Ordinances that might be applicable. In ruling on the preliminary injunction request, the court will presume that the City intends to enforce ordinances that are suitable to the conduct which occurs rather than clearly inapplicable ones. The Plaintiffs do not seek to prohibit the City from dealing with blockages or disturbances along the parade route, but contend that their intended activities will not constitute such interferences. The preliminary injunction is not requested because the arresting officers may have cited an inapplicable ordinance in May 2003, but rather, because the Plaintiffs contend that the activities they intend to conduct at the parade on May 29, 2004, are not subject to governmental regulation at all.
The matters presented by the injunction request are not entirely hypothetical, but they must be addressed in a way which provides a fair amount of leeway for both the Plaintiffs and the Defendants to react to the events as they transpire on the day of the parade. In addition, neither side has elected to join the 500 Festival as a party. The absence of the 500 Festival is noteworthy because the parade permitting process results in the City's relinquishment of much — but not all — of the control over the parade route and environs to the Festival. In some regards the parties have hamstrung the court in any effort to reach a more complete resolution of the practical issues involved by presenting this case in its present posture. This case does not fit neatly in the framework of any of the precedents cited by the parties, but rather, it requires a blending of several aspects of First Amendment law. Even so, the issues raised are no less important to all involved.
In examining free speech issues, federal courts have generally tried to categorize various aspects of reoccurring or important factual circumstances. One of the first questions to be examined is whether the geographic area at issue is privately owned or government owned and, if owned by the government, whether it is a traditional public forum, designated public forum or non-forum. See, DeBoer v. Village of Oak Park, 267 F.3d 558, 565-66 (7th Cir. 2001); Rodney A. Smolla, 1 Smolla and Nimmer on Freedom of Speech, § 8.2 (West, 2003). The question is paramount because the nature of the forum involved has traditionally dictated the standard the courts apply to any restraint of speech. Here, the fora at issue are the streets and sidewalks of downtown Indianapolis. Defendants would add the distinction that they are the streets and sidewalks of Indianapolis which have, by unchallenged legal process, been turned over for use to the 500 Festival for a limited time.
While Plaintiffs also assert that their freedom of religion is at issue, it seems clear that the religious expression or practices at issue, including preaching and/or testifying as defined in the affidavit of Plaintiff, Ron McRae, as well as the religious communication or proselytizing efforts contained in leaflets, signs and banners, are inseparable from and equally protected by the freedom of speech. Therefore, though both freedoms may actually be at issue, the court chooses, generally, to refer to this dispute as involving free speech issues.
City streets and sidewalks have been, from time immemorial, places devoted to assembly and debate and therefore are traditional public fora. Hague v. CIO, 307 U.S. 496, 515 (1939). In such places, government "may enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). The city argues that because its permitting policy is content neutral (and not the subject of any legal challenge in this case) it is presumed to be a reasonable time place and manner restriction. Further, it argues that allowing the permitee, the 500 Festival in this case, to determine who can display signs, leaflet or participate, however tangentially, in the event in any manner is consistent with the protections afforded by courts to those exercising there own First Amendment rights within a temporarily exclusive designated area. The city relies on Hurley v. Irish-American Gay, Lesbian Bisexual Group of Boston, 515 U.S. 557 (1995) and interpreting cases Sistrunk v. City of Strongville, 99 F.3d 194 (6th Cir. 1996), cert. denied, 520 U.S. 251 (1997) and Diener v. Reed, 232 F. Supp. 2d 362 (M.D. Pa. 2002), judgment aff'd, 77 Fed. Appx. 601 (3rd. Cir. 2003) as precedent for finding that the 500 Festival can restrict, and the city police may enforce the restriction of signs, banners and leafletting within the designated special event area. The prohibition against "stationary preaching" appears to be both a dictate of the 500 Festival and a crowd and pedestrian traffic control measure employed by the City.
In Hurley the Supreme Court found that a parade permit holder could not be forced to include as a part of the parade a group imparting a message that the permit holder did not wish its parade to impart. Hurley, 515 U.S. at 573. The application of the Massachusetts public accommodation law to allow a particular group to join a parade, despite the objection of the parade holder, violated the parade holders First Amendment rights. Id. The notion of protecting the temporary exclusivity of a permit holder's freedom of expression in a public forum has been extended to allow a ban of opposition party buttons and the conduct of protest activities at an election campaign rally sponsored by a single party in a fenced area of public commons ( Sistrunk v. City of Strongville, 99 F.3d 194 (6th Cir. 1996); Schwitzgebel v. City of Strongville, 898 F. Supp. 1208 (E.D. Ohio 1995), aff'd, 97 F.3d 1452 (6th Cir. 1996), cert. denied, 522 U.S. 827 (1997)); to allow a refusal of booth space to a labor union seeking to engage in promotional efforts at a community festival sponsored by a not for profit corporation and occurring on an area of a city's streets and sidewalks ( United Auto Workers v. Gaston Festivals, 43 F.3d 902 (4th Cir. 1995); to exclude street preachers from events staged by a private permit holder on various public grounds, based on the street preachers' expressing a verbal message contrary to the views being expressed by the permit holder ( Diener v. Reed, 232 F. Supp. 2d 362 (M.D. Pa. 2002), judgment aff'd, 77 Fed. Appx. 601 (3rd. Cir. 2003)); and, to exclude a lone demonstrator holding a sign from stationing himself next to a particular state's Christmas tree in a federally permitted annual holiday Peace Pageant where each state and the federal government erect Christmas trees on the Ellipse in our nation's capital ( Sanders v. United States, 518 F. Supp. 728 (D.C. 1981), aff'd without op., 679 F.2d 262 (D.C. Cir. 1982).
There are competing principles which have a bearing on whether the Plaintiffs are likely to prevail on the merits of their claims. The Plaintiffs possess a First Amendment right to communicate their message to persons assembled in a public forum. Yet, their rights are not superior to the First Amendment rights of the 500 Festival, as a permit-holder, to effectively convey the message of the parade. Nor can the rights of the parade spectators to view and hear the attractions of the parade be ignored. Effecting that mix are at least two additional distinct factors.
First, the designated special event area includes streets and sidewalks that are adjacent to businesses open for business as usual during the parade. Not all of the thousands of people on the sidewalks along the parade route are there for the sole purpose of viewing the parade. This differentiates the 500 Festival parade from the factual scenarios, as in Sistrunk, where the permitted area is, indeed, exclusive. Contrary to Defendant O'Conner's statement in the video tape of the pre-parade confrontation between the police and the Plaintiffs in 2003, the streets and sidewalks are not turned over to the 500 Festival "lock, stock and barrel." Some degree of ordinary activity was and will be present within the special event area, leading this court to the conclusion that a total ban of free expression unapproved by the permit holder would be excessive. The City recognizes this, and perhaps the 500 Festival does, too. A substantial range of preaching by the Plaintiffs at the 2003 parade went unpunished, and the City's stated intent (with the apparent approval of the 500 Festival) is to allow the Plaintiffs to continue preaching at the 2004 parade, so long as the preachers do not become stationary. The court considers these concessions to be an indication that neither the City or the 500 Festival seek to silence all expression other than the message of the parade participants. However, the facts that the sidewalks adjacent to the parade route are available to non-parade pedestrian traffic and that businesses along the route are not made to shut down during the parade should not provide the Plaintiffs or anyone else with a free pass to trump the 500 Festival's ability to attract the attention of those who will gather to watch the parade.
Second, because of the extremely large volume of pedestrians in a condensed area, the City has more than the usual legitimate and substantial interest in assuring the safe and efficient flow of pedestrian traffic. Blocking the free movement of the crowd passing to and from their seats or wherever they might be stationed, regardless of whether the blockage is connected to efforts at free expression, need not be tolerated.
In support of their pursuit of injunctive relief, Plaintiffs place a great deal of reliance on language and analysis in three district court cases discussed below. Though district court decisions hold no precedential value here, the court has reviewed each of the three cases and finds them to be reasoned efforts to address the particular circumstances and issues facing that particular court at the time. None of the cases are directly on all fours with this matter, and unlike those relied upon by the Defendants ( Sistrunk, Schwitzgebel, Diener and Gaston Festivals) and those which form the bulk of the guidance for this court's ruling, none have been reviewed at the appellate level.
More particularly, the court does not find these three district court opinions to be helpful for the following reasons:
a. South Boston Allied War Veterans Council v. City of Boston, 297 F. Supp. 2d 388 (D. MA. 2003) involves the same St. Patricks Day Parade and sponsor as Hurley. In this round of parade litigation, the sponsor sought to keep the City from allowing a peace protest group the sponsor had not approved of for parade participation from trailing behind the parade with its own demonstration. Id. at 390-91. The district court entered an injunction permanently enjoining Boston from allowing unapproved groups from marching within a mile of the end of the permitted parade. Id. at 399. However, in so doing, the court used language that Plaintiffs in this action seize upon. It stated that protest groups could gather on the sidewalks to deliver their message provided they do not disrupt the flow of traffic. Id. at 398. However, in the case at hand the sidewalks are specifically within the area over which the permit holder has substantial control, as demonstrated by the 50-foot vendor boundary and the establishment of designated bleacher and other seating sections by the Festival. Yet, total closure of the parade area is not implicated here, either, because business establishments adjacent to the sidewalks lining the parade route, including restaurants, are not precluded from operation during the parade as a result of the permit. And although vehicular and pedestrian traffic in the designated parade streets (and intersecting streets) is restricted, non-parade related pedestrian traffic on the sidewalks adjacent to the parade route is not prohibited. But the Plaintiffs are not seeking a space in the parade bleachers or a site along the route from which to articulate their message. Rather, they seek to rove along the parade route, moving at random to stay ahead of the parade entries to shout their preachings, with intermittent and unpredictable stops to focus on various groups of parade spectators as they wind their way along the parade route. So, the SPF Plaintiffs' plans don't exactly constitute a counter parade, nor do they contemplate a single preaching location. So, the South Boston case does not exactly fit the matter presently before this court.
b. Attached to Plaintiffs' supporting brief was the unpublished April 17, 1998 Memorandum Opinion and Order of District Court for the Western District of Tennessee in Lansing V. City of Memphis, No. 97-3153. In Lansing, the District Court entered an injunction prohibiting the City from interfering with a street preacher's expressive activities in a particular section of the area set aside for a special event. However, the logistics in operation at Memphis were significantly different from the situation at hand In Memphis, the leased or permitted area consisted of a closed length of street plus part of an intersecting street. At the center were the activities where the permitee was engaging in its expression and a ticket was required to enter the center of the permitted area. But, there were entrances at each end of the closed street which were several blocks in length and within the permitted area to which access could be gained without a ticket. No vehicular traffic was allowed in the areas as it was essentially a staging area where people with tickets funneled in from the street and areas not under special permit. It was in this staging area where the preacher sought to express himself in Memphis. Here, there is no ticket requirement and hence no such segregated staging area within the special event zone. Plaintiffs seek to deliver their message wherever the spectators assemble to view and hear the message of the 500 Festival.
c. On April 23, 2003, The District Court for the District of Oregon granted a preliminary injunction and just last month a partial summary judgment in favor of a street preacher who had been escorted from a special event which was generally open to the public at the request of the special event organizer. Gathright v. City of Portland, No. 03-130-HA. Though the factual circumstances in Gathright were much closer to the situation at bar, there are still factual differences of note as well as a difference in how this court and the Oregon district court interpret the guidance offered by the Sixth Circuit. The most prominent factual or procedural distinction is that in its April 23, 2003 order, the court in Gathright found that the ordinance being challenged did not "provide the type of guidance necessary to show that defendant's permitting scheme is narrowly tailored to advance the significant interest it serves." Id. at 10. Plaintiffs in the case at bar do not facially challenge any ordinance, law or the City's permitting scheme. In addition, this court believes the court in Gathright properly interpreted the Sixth Circuit's decision in Sistrunk as turning on the question of whether the organization which had the permit to hold a political rally had a right to control the message at its event, but then mistakenly differentiated the attendee who was turned away for wearing an opposing candidate's button from an attendee at a parade by saying the button wearer was attempting to participate in the event. This court disagrees with the notion of assigning participant status to the button wearer and not to those who might attend a parade or other event with the hope of competing in some form for an audiences' attention. While neither are necessarily participants, they both are something more than mere observers. The preacher and the button wearer offer messages which are different from the message the permit holder is promoting and both are hopeful that the alternative message is conveyed to the same audience the permit holder is attempting to reach.
Keeping in mind the distinctions in case law and the competing rights and interests of the parade sponsor, the preachers and those in attendance, the court will examine each of the activities which the plaintiffs seek to pursue to determine if they warrant the protection of a preliminary injunction.
A. Stationary Preaching and the Use of Megaphones
It is agreed that the Plaintiffs will not be prevented from preaching while moving about the sidewalks adjacent to the parade or in other pedestrian traffic corridors used by the crowd attending the parade. Plaintiffs also wish to be allowed to select various sidewalk locations along the parade route from which to preach while remaining stationary. They also seek an order permitting the use of megaphones. Plaintiffs claim that they only wish to preach at locations where the parade has yet to pass by or at locations after it has passed. However, the court notes that the video tape from the 2003 parade, submitted as evidence by the Plaintiffs, clearly shows that the four Plaintiffs who were arrested were preaching in a single location while the parade was passing by. In addition, the still photographs show that the preachers also engaged in preaching while standing in the streets before the parade passed by.Plaintiffs' preaching is an exercise of First Amendment rights. However, there is no right to drown out the message of others or to create a situation where the constitutional guarantee itself would be lost in the excesses of disorder. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 387 (1969); Cox v. Lousiana, 379 U.S. 536, 554 (1965). Use of a megaphone threatens to interfere with the 500 Festival's own freedom of expression and the audiences' ability to take in the entire parade experience. It also poses the possibility of being mistaken as a part of the message of the parade sponsor. The video tape offered by Plaintiffs contained audio as well. Listening to the tape, it was clear that a number of messages were being broadcast by the parade sponsor over a loudspeaker system and that some of the parade participants used amplification devices as well. Allowing additional voice amplification systems within the special event area could cause confusion as to the source of any amplified message in addition to the obvious potential for interfering with the parade sponsor's message. The Plaintiffs' negligible potential of prevailing on this aspect of their claim indicates that the court should not enjoin the City from barring megaphones from the special event area.
Nor will the court enjoin the City from applying the disorderly conduct statute or any other form of public safety law to the conduct of the preachers. It is true that a complete bar of "preaching" while standing still within the entirety of the special event area may be over broad, the evidence before the court at this point does not suggest that the arrests in 2003 were without legitimate public safety concerns or in the interest of protecting the First Amendment rights of the 500 Festival. The arrests in 2003 appear to have been made only on a sidewalk very near the parade, at a location in which congestion was a legitimate concern. Nor does it appear likely that those arrests would have been made if the Plaintiffs had been stationary preaching in some remote corner of the special event area where pedestrian traffic was not an issue. Indeed in portions of the video tape, the preachers were standing stationary at some locations and preaching without police interference. If the disorderly conduct statute were to be applied during the upcoming parade as it has been shown to have been applied in 2003, the court cannot conclude that an impending likelihood of an unconstitutional application of that statute has been shown. Under the very crowded circumstances of the parade environment, this court sees the City's requirement that the preachers engage in their boisterous verbalization while moving with the flow of pedestrian traffic as a narrowly tailored limitation serving an important government safety interest. It leaves ample alternatives for the Plaintiffs to exercise their rights.
B. Carrying Signs Banners
The Plaintiffs' desire to carry signs and banners must be balanced against the same two competing interests as their desire to preach while standing still. Do the signs and banners interfere with the permitee's right to shape its own message and be seen or heard? Or, do they pose a significant safety problem with regard to the City's ability to keep pedestrian traffic flowing freely? Though the Plaintiffs elected not to attempt to bring their signs and banners into the special event area in 2003 after being told they could not do so, the video tape submitted as evidence did show several of the signs or banners that they sought to carry in. These signs and banners were significant in size. The most prevalent appeared to be roughly three to four foot by four to five foot, made of a canvas like material and mounted on long poles so as to allow the canvas to be hoisted above the head of the person carrying the sign.
The size of the signs and the manner of overhead display pose some problems if carried about the special event area. Toting these large signs through congested sidewalks, which are already limited by the fixed seating arrangements, strikes the court as being of some concern from a safety standpoint. The size of the signs could also cause parade viewing problems if not kept a fair distance from the streets. They also could be confused as being a part of the overall message that the sponsor intends to deliver. While the video tape also caught a couple of individuals walking within the special event area with cardboard signs about the size of a legal pad expressing the handwritten desire to sell tickets to the 500 mile race, these signs were neither a safety issue nor inconsistent with the 500 Festival's expression of celebration for the race.
While a ban of signs of all sizes from the entire special event area poses the potential of being overly broad, it can certainly be said that signs the size of those the Plaintiffs sought to carry in 2003 are a legitimate safety concern. On top of that, there is a sufficient enough chance that the signs could be seen as an approved message of the 500 Festival so as to interfere with the First Amendment rights of the 500 Festival to shape their own message. The right to sculpt one's own message goes beyond deciding what to say. It encompasses what not to say as well. Hurley at 573.
It should be noted that the Plaintiffs' motion for a preliminary injunction is not framed as a request for a guide as to what size signs ought to be protected by the First Amendment and in what portions of the permit area would they be protected. Instead, the case is postured so that it appears that the Plaintiffs intend to bring signs as large as they brought in 2003, and intend to carry them to the same congested areas in which they preached during the parade that year. It would be fruitless for the court to attempt to draw some type of size and location parameters to distinguish what size banner is large enough to cause legitimate safety concerns or which ones stand at odds with the permitee's own rights of defining its message. Rather, the court will simply refuse Plaintiffs request that it enjoin the City from enforcing a ban on signs, insofar as that ban applies to signs of similar size and construction as those the Plaintiffs attempted to carry into the event area last year and insofar as they might be carried as close to the congested sidewalks adjacent to the parade route as the Plaintiffs preached last year. The Plaintiffs have not produced evidence that there is a reasonable likelihood that they intend to display signs that do not threaten safety, block views of the parade or amount to message muddling.
C. Leafleting
The court's hesitance to restrict the City from enforcing safety laws or the dictates of the permitee stops at this point. Courts commonly recognize leafleting, or the offering of literature to those who might willingly except the same, as one of the least intrusive methods of free expression. International Soc'y For Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (Justice O'Conner's opinion distinguishing leafletting in a public airport from direct solicitation); Chicago Acorn v. Metro. Pier and Exposition Auth., 150 F.3d 695 (7th Cir. 1998) (Appellate court's vacation and remand of preliminary injunction protecting First Amendment activities on Navy Pier in Chicago with direction that only protection of leafleting was warranted); Diener v. Reed, 232 F. Supp. 2d 362 (M.D. Pa. 2002) (held that leafleting, unlike other expressive activities, was so minimally intrusive as not to interfere with designated purposes of museum grounds).
If Plaintiffs were to walk in the street and pass out literature, the content might be confused as a part of the 500 Festival's message. If they were to line themselves across the sidewalk or other pedestrian travelway in an attempt to slow passers by in order to deliver literature, there could be unnecessary congestion and a safety issue might arise. But efforts to randomly distribute a leaflet, which can be accepted or refused, neither threaten public safety nor interfere with an individual's opportunity to take in the parade. Further, such leafleting stands much less of a chance of being confused as a part of the permitee's message. It is the type of activity that one might expect to encounter on an ordinary day of downtown sidewalk activity. The Plaintiffs have shown a reasonable likelihood of prevailing on the merits of the leafleting aspect of their claim, so a preliminary injunction will be necessary to preserve their rights to perform this activity.
IV. CONCLUSIONS OF LAW
1. Plaintiffs have established a reasonable likelihood of success on the merits of their claim of impermissible interference with their First Amendment rights to free speech in the form of leafletting within an area designated by the City of Indianapolis as a special event area for the 2004 500 Festival Parade.
2. Plaintiffs will suffer irreparable harm if they are not allowed to communicate their message within the special event area on May 29, 2004.
3. Plaintiffs have no adequate remedy at law.
4. The balance of the harms to Plaintiff if the preliminary injunction is denied against the harms to the Defendants if the preliminary injunction is granted weigh in favor of the issuance of a preliminary injunction protecting Plaintiffs' leafleting activity.
5. Because the Defendants and other law enforcement officers similarly situated, at the direction of the City, intend to prohibit Plaintiffs from leafletting within the special event area on May 29, 2004, if Plaintiffs have not acquired a special license to do so, the issuance of a preliminary injunction is necessary to prohibit the violation of Plaintiffs' First Amendment rights.
6. A preliminary injunction prohibiting the City from stopping Plaintiffs' leafletting efforts furthers the public interest in freedom of expression without unduly burdening the simultaneous expression of the 500 Festival or interfering with the ability of those gathered to hear, see or otherwise enjoy the event for which they have gathered.
7. There is no risk of monetary harm to the Defendants if the injunction is issued and therefore no bond need issue under Rule 65(c) of the Federal Rules of Civil Procedure.
8. Plaintiffs' Request For Preliminary Injunction should be denied in all other respects.
V. EPILOGUE
The situation at hand has similarities to a number of cases addressing First Amendment protection issues, while at the same time the entirety of the factual circumstances, the method of challenge and the targeted parties, as chosen by the Plaintiffs, leave this case unique. The decision of this court and resulting preliminary injunction reflect an attempt to balance the First Amendment rights of the Plaintiff against the First Amendment protections of the parade permitee and the legitimate public safety concerns of the City. Accordingly, Plaintiffs' Request For Preliminary Injunction is GRANTED only insofar as the City is ordered not to interfere with or threaten the Plaintiffs with arrest for the orderly offering of literature within the special event area so long as it is not being done on the streets where the parade is to occur and it does not unduly impede the flow of pedestrian traffic. The Request for Preliminary Injunction is DENIED in all other respects. A separate injunctive order setting forth the terms of the injunction will be entered simultaneously.