Oral Argument Preview: Does a City Curfew on Cleveland’s Public Square violate the United States Constitution? Cleveland v. McCardle.

On May 28, 2014, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On November 19, 2013, the Supreme Court of Ohio will hear oral argument in the case of City of Cleveland v. Erin McCardle and Leatrice Tolls, 13-0096. At issue in this case is whether the Cleveland Ordinance which establishes a 10:00 p.m. curfew in the Public Square is constitutional under the First and Fourteenth Amendments.

Background

As part of the Occupy Cleveland movement, the Appellees, Erin McCardle and Leatrice Tolls, (the Protestors) protested in Cleveland’s Public Square on October 21, 2011. At 10:00 p.m., police warned the remaining protestors that they were in violation of Cleveland Codified Ordinance § 599.541 (the Ordinance) and would be issued a citation if they did not leave the park. After 10:30 p.m., the Protestors remained in the Public Square and refused to comply with officers’ requests. As a result, the Protestors were physically removed from the square and arrested.

After the arrest, the Protestors were charged with violating C.C.O. 599.541, criminal trespassing and resisting arrest. They filed a motion to dismiss, challenging the constitutionality of the Ordinance. The trial judge in McCardle’s case held that the Ordinance was a content-neutral time, place and manner restriction that did not violate the First Amendment. Subsequently, both Protestors pled no-contest to the C.C.O. 599.541 violations and both were given small fines.

The Protestors appealed to the Eighth District Court of Appeals which consolidated the cases and reversed the trial court decision holding that the Ordinance was unconstitutional on its face and as applied. Specifically, the court found that, even though the Ordinance was content-neutral, the ordinance did not advance a substantial government interest and was not narrowly-tailored.

Key Precedent

Cleveland Cod. Ord. § 559.5541 (prohibits individuals from remaining in the Public Square between 10:00 p.m. and 5:00 a.m. unless a permit is obtained from the Director of Parks, Recreation and Properties. The licensing official will issue a permit if the official finds (1) that the proposed activity and use will not unreasonably interfere with or detract from the promotion of public health, welfare and safety; (2) that the proposed activity or use is not reasonably anticipated to incite violence, crime or disorderly conduct; and the proposed activity will not entail unusual, extraordinary or burdensome expense or police operation by the city)

Thomas v. Chicago Park. Dist., 534 U.S. 316 (2002) (the government can impose content-neutral time, place and manner restrictions on speech only if the regulations are narrowly-tailored to advance a significant government interest, and leave open ample, alternative avenues of communication)

Snyder v. Phelps, 131 S. Ct. 1207 (2011) (the father of a soldier sued the Westboro Baptist church for damages after picketing his son’s funeral. The Court held that the speech of the church was protected and the award for civil damages amounted to a content-based restriction on the exercise of free speech)

First Amendment to the United States Constitution (Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances)

Cleveland’s Argument

Cleveland argues that the Ordinance is a constitutional content-neutral time, place and manner restriction that passes the required intermediate scrutiny.

First, Cleveland argues that the Ordinance promotes substantial and significant government interests. Specifically, the Ordinance serves to: manage the little space that is available within the Public Square; adequately control crowds, vehicle, and pedestrian traffic; ensure that the interior of the quadrants are preserved and maintained; protect the parks from overuse and unsanitary conditions; prevent dangerous, unlawful or impermissible uses; and assure financial accountability for any damage that may be caused.

Second, Cleveland argues that the Eighth District, in determining the ordinance did not serve a substantial governmental interest, ignored authoritative precedents that uphold the city’s interests and misapplied the holding in Snyder v. Phelps. Specifically, Cleveland argues that Snyder dealt with a content-based restriction on the exercise of free speech. In contrast, the Ordinance is a content-neutral time, place and manner restriction.

Third, Cleveland argues that the Ordinance is narrowly-tailored to advance significant government interests.  First, the Eighth District failed to conduct a proper narrowly-tailored analysis since it dismissed the interests of the Ordinance. Second, the Ordinance is narrowly-tailored since it allows unfettered and complete unrestricted access during the day and has minimal restrictions during the seven hour curfew. Furthermore, the Eighth District violated precedent when it determined that the Ordinance was not narrowly-tailored because it could have imposed a “less-restrictive” alternative.

Lastly, Cleveland argues that the Ordinance sufficiently provides for alternative channels for communication. Specifically, the Ordinance expressly excludes “all dedicated streets, public sidewalks adjacent to dedicated streets and TRA bus shelters within this area.” In essence, the Protestors had the opportunity just to move off the grass onto the sidewalk. In addition, the Ordinance provides the opportunity to obtain permits to use the Public Square during the restricted times.

Amicus Brief in support of Cleveland

The State of Ohio filed an amicus brief in support of Cleveland. In the state’s brief, the Attorney General argues that the Ordinance is content-neutral, serves significant governmental interests, is narrowly-tailored and leaves open alternative channels of communication; therefore, the Ordinance is constitutional.

Protestors’ Argument

The Protestors contend that the Ordinance violates the First and Fourteenth Amendments on multiple grounds. First, the government has failed, as required when a law regulates expression, to meet the the burden of demonstrating the constitutionality of the Ordinance and the interest the ordinance serves. For support, the   Protestors quote from the appellate decision which states that “the city failed to present any testimony regarding a specific interest that concerned the city.”

Second, the Protestors argue that the ordinance is unconstitutional on its face and as applied because it does not further a substantial governmental interest and is not narrowly-tailored. Specifically, the Protestors take issues with each interest the government has argued the Ordinance serves because (1) the ordinance does not prevent people traveling through the Public Square but only people remaining in it, (2) the square is least used during the time of the curfew, and (3) the city does not explain how the ordinance furthers an interest in assuring financial responsibility for damage that might be caused.

Third, the Protestors argue that the Ordinance is a content-based restriction and, therefore, would have to survive strict scrutiny to pass constitutional muster. Therefore, the Ordinance is unconstitutional since the licensing official who grants or denies permits is instructed to consider the listener’s reaction to the expression in making a decision.

Lastly, the Protestors argue that the ordinance is unconstitutional because it fails to cabin the discretion of the licensing official or require a prompt decision on the issuance of a permit. Specifically, censorship may result from the discretion of the licensing official who has the power to silence messages with which he or she disagrees. Furthermore, the lack of a prompt decision suppresses spontaneous speech.

Cleveland’s Proposed Proposition of Law

It is constitutionally permissible for a municipality to enforce a content-neutral time, place and manner restriction such as Cleveland Codified Ordinance 559.541, where the ordinance is narrowly-tailored to advance a significant government interest that leaves open alternative channels of communication.

Protestors Proposed Counter-Propositions of Law

No. 1

Cleveland Cod. Ord. 559.541, which prohibits remaining on Cleveland’s Public Square, a traditional public forum, between 10 P.M. and 5 A.M. without a permit, is unconstitutional under the First and Fourteenth Amendments to the United States Constitution.

No. 2

A city, such as Cleveland, that adopts an ordinance regulating expression, bears the burden of establishing the constitutionality of its law, and the failure to present any evidence to support the validity of its law renders it unconstitutional under the First and Fourteenth Amendments.

No. 3

A content-neutral law that requires a permit to engage in expressive activity in a traditional public forum is unconstitutional, both on its face and as applied, when the law does not further a substantial governmental interest, and assuming agruendo, such an interest could be identified, is not narrowly tailored to further that interest. Cleveland Cod. Ord. 559.541 does not meet that standard.

No. 4

An ordinance, such as Cod. Ord. 559.541, that requires a licensing official to inquire into the speech of a putative demonstrator and the likely reaction of his audience in deciding whether or not a permit should issue, is a content-based restriction of speech that must satisfy strict scrutiny to pass muster under the First and Fourteenth Amendments.

No. 5

A law such as Cleveland Cod. Ord. 559.541, that imposes licensing restrictions on the use of a traditional public forum, but that fails to cabin the discretion of the licensing official or require a prompt decision, or fails to provide the opportunity for judicial review of an adverse licensing decision, is unconstitutional under the First and Fourteenth Amendments.

Student Contributor: Cameron Downer

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