What’s on Their Minds: Does a City Curfew on Cleveland’s Public Square Violate the First Amendment? Cleveland v. McCardle.

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

On November 19, 2013, the Supreme Court of Ohio heard 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 unconstitutional.

Case 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 northwest quadrant of 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 appeals court found that even though the Ordinance was content-neutral, the ordinance did not advance a substantial government interest and was not narrowly-tailored.

Read the oral argument preview of the case here.

The Ordinance

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 (a) that the proposed activity and use will not unreasonably interfere with or detract from the promotion of public health, welfare and safety; (b) that the proposed activity or use is not reasonably anticipated to incite violence, crime or disorderly conduct; (c) the proposed activity will not entail unusual, extraordinary or burdensome expense or police operation by the city, or (d) that the facilities desired have not been reserved for other use at the day and hour required in the application.

At Oral Argument

The Attorney General’s office, which filed an amicus brief in the case in support of the City, shared part of the argument time with the City.

City’s argument

There is no constitutional right to have twenty-four hour access to a city park or any other city property.  The appellate decision invalidates firmly rooted time place and manner restrictions in contravention of well established First Amendment jurisprudence.  And the appeals court ignored the many significant governmental interests involved in this case. One such interest is ensuring that the park is not damaged. The Protestors could have stayed on the square past curfew had they applied for a permit to do so.  Other protestors from the Occupy movement had applied for and been granted a permit for the southwest quadrant of the square. Or the Protestors could have moved their protest to the surrounding streets and public sidewalks.

A compelling state interest is not required to uphold the constitutionality of this ordinance. Intermediate scrutiny applies. The only thing required is that the ordinance is content neutral and that there are substantial government interests that are narrowly tailored to advance those interests. The message of any particular applicant is not taken into account in determining whether or not to grant a permit, so the ordinance is clearly content neutral.

State’s Argument

The Cleveland city ordinance is constitutional. The state has a distinct interest in being able to have reasonable time, place and manner restrictions on the use of the thousands of acres of property it manages.  The essence of a time, place and manner restriction is that it is a reasonable content neutral regulation of First Amendment activity. The fact that the ordinance infringes on First Amendment activity is irrelevant as long as it meets the other three standards—does it advance a significant governmental interest, is it narrowly tailored, and does it leave ample other opportunity for communication. The U.S. Supreme Court has never insisted that a speaker be given the speaker’s chosen method of getting his or her message across.

Because this ordinance is content neutral, the ten-day advance notice requirement is reasonably calculated to serve significant interests in public health, safety, managing public property, and preserving the park—those are interests the U.S. Supreme Court has repeatedly upheld and the Supreme Court of Ohio should do the same.

Protestors’ Argument

Cleveland’s Public Square is a quintessential place for free speech.  For 150 years there have been protests and rallies at all times of day and night until 2007 when this ordinance was adopted. This ordinance is unconstitutional. It is both overbroad and underinclusive. It is not narrowly tailored, and does not further the substantial governmental interests that the city claims that it does. Nor is it content neutral  when the director can deny a permit if he thinks an activity will detract from the public health, safety and general welfare.

The fact that the protestors did not apply for a permit is immaterial. Since 1940, the U.S. Supreme Court has held that a person faced with an unconstitutional law may ignore it. It is also immaterial that the protestors could have taken their protest elsewhere.  The U.S. Supreme Court has held that a person cannot have free speech rights in appropriate places abridged on the ground that those rights may be exercised in some other place. Nor does it matter that no one is listening to the speech on the square.  An audience is not necessary to exercise one’s free speech rights.

What Was on their Minds

The Governmental Interests Involved

What is the governmental interest here? Was it just to give the city the time to clean up the place, asked Justice O’Neill? Why do people have to give up their right to protest so that the city can go in and rake leaves? Where is the compelling interest of the City of Cleveland  to demonstrate in which quadrant of the square the people may exercise their free speech rights? (rejoinder from the city’s lawyer—no compelling interest is required here.  There need only be substantial government interests that are narrowly tailored to advance those interests, and that the ordinance be content-neutral)

After all the talk about public health and safety, isn’t this just an anti-vagrant ordinance asked Justice Pfeifer?   To keep people from having to see the unpleasantness of homeless people sleeping on the public square?  It seems like a strange place to have a curfew, he commented, noting that a lot goes on there at night, with lots of people crossing the square.

Would the protestors be entitled to spontaneous speech at midnight on the public square, using a microphone, asked Justice French? Is any type of limitation a free speech violation?

Would it be problematic for the city to take ordinary crowd control into account, asked Chief Justice O’Connor? Is that a permissible governmental interest? And isn’t it appropriate for a city to regulate that space from 10pm until 5am? Is there any restriction over what occurs on the square in the daytime? Wasn’t illegal or inappropriate behavior banned at any time?

Would the Protestors concede there was a substantial governmental interest involved here, asked Justice O’Donnell? (answer: no)

Isn’t there a connection between what happens after 10pm and what happens during business hours, asked Justice French, commenting on the lack of city services available after 10pm.

Getting a Permit to Protest After Hours

If the protestors had applied for a permit, would it have been granted, asked Justice O’Neill?

Had they gotten a permit, could they have stayed all night, asked Chief Justice O’Connor? (answer: yes) They knew about the curfew, but decided to violate it? (yes, said the city’s lawyer. A person is allowed to ignore an unconstitutional ordinance said the protestors’ lawyer). Later the Chief asked, if there were two violently opposing groups for the permit, would the city be within its rights to deny the permit to both groups? Or to one group, given the potential for violence to person or property?

Is this just a curfew violation case, asked Justice O’Donnell? Does the city regularly issue permits for the use of this northwest quadrant? (answer:yes) Under this ordinance, if another group had been given a permit that night, could the protestors then have been moved off the square? Isn’t asking for a permit a reasonable time place and manner restriction? He commented to counsel for the Protestors that his argument would have been stronger if the Protestors had applied for and had been denied a permit, but they had never asked—they just went ahead and “trespassed on the property.” Were the Protestors attacking the discretion of the permit officer?

Justice Pfeifer asked the Protestors’ counsel if he was saying it didn’t matter that the Protestors never applied for a permit (answer-that is exactly what he was saying, raising the case of Rev. Shuttlesworth being denied a parade permit in Alabama, insisting that this case was similar.  Chief Justice O’Connor then got into a lengthy back-and-forth with him about the differences between the Shuttlesworth case and this one.

Alternative Places to Protest

Could the Protestors have just taken to the sidewalk, asked Justice Pfeifer? If they had decided to take the protest to the front of the Federal Reserve Building, or a bank, would the police have allowed that?

Had the Protestors just moved to the sidewalk, there would not have been a problem, commented Chief Justice O’Connor.

Making the Evening News

Wouldn’t a 10pm curfew knock the message off the 11:00 p.m. evening news, asked Justice Pfeifer? Justice O’Donnell later asked the same thing.

Was anyone actually listening to the Protestors, asked Chief Justice O’Connor? Was there a big group of bystanders?

Is the Ordinance Content Neutral?

Is the ordinance in any way content-based, asked Justice Lanzinger?

How can there be a prior restraint on speech if the ordinance is content neutral, asked Chief Justice O’Connor?

Was the language in subsection (b) a content based restriction, asked Justice O’Donnell?

Overbreadth; Narrow Tailoring; Spontaneous Speech

Could the same issues be addressed by making the statute much narrower?  Is a ten-day advance notice requirement for a permit really necessary, asked Justice French?

Do the ten days not matter because the ordinance is content neutral, asked Justice Lanzinger?

People hear things on the news that make them want to go to show their unity, commented Justice Pfeifer, adding that ten days didn’t seem like it would accommodate those needs at all.

The State Constitution

Justice Pfeifer, who is the justice most interested in the new judicial federalism got into a testy exchange with the deputy solicitor general on the question of whether Article I, Section 11 of the Ohio Constitution (the Free Speech provision) provides greater protection in this area than the federal constitution does.  The Deputy said this issue was not in play because no one had asked for it, but went on to say that if the Court were to consider it sua sponte, this was not the case to do it. Justice Pfeifer commented sarcastically that it would be terrible if the Court were to look to the state constitution, commenting that Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit had stood in that very chamber, giving a speech admonishing lawyers for their failure to rely more on the possibility of greater protections under the state constitution, and for a general failure to address the Ohio Constitution first.  (I happen to be a big fan of the new judicial federalism, and heard and blogged on that speech by Judge Sutton). The Deputy again said this issue was never raised. In fairness, Justice Pfeifer should have asked the Protestors’ lawyer why he hadn’t made a state constitutional challenge to the ordinance.

How it Looks from the Bleachers

To Professor Bettman

Whew! I’m calling this one for the City.  I think the Court is going to uphold the ordinance as a reasonable time, place, and manner restriction, although I think Justices Pfeifer and O’Neill are going to dissent. I suspect Justice Pfeifer may have some colorful things to say about the public square and the “real” purposes behind this ordinance.

The main thing I can say about this long argument is that it surely was spirited, particularly on the part of the Protestors’ lawyer.  He was impassioned, at times to a fault.  He had his U.S. Supreme Court precedent well in hand.  At times, during the argument, Chief Justice O’Connor sounded like she was really going at it with him. At other times, she looked bemused by him, especially when he started comparing this situation with Rev. Shuttlesworth’s arrest during a civil rights walk in Birmingham, Alabama for failure to get a parade permit.

But from what my constitutional law colleagues tell me, the area of law regarding reasonable time, place, and manner restrictions is fairly well settled at this point, and the Cleveland ordinance appears to be in line with these decisions.

To Student Contributor Cameron Downer

Looks like a win for the City of Cleveland. From the beginning of the argument, it was clear that Justice O’Neill and Justice Pfeifer were skeptical about the true purpose of the ordinance; Justice Pfeifer deduced the real purpose was to combat the unpleasantness of vagrancy. Justice French showed some concern with the 10 day waiting period for a permit but her later questions showed that she thought the ordinance is a reasonable time place and manner restriction. Similarly, Chief Justice O’Connor clearly did not buy the Protesters’ argument that the licensing official was allowed too much discretion on issuing the permits and seemed to lean toward finding the ordinance constitutional.  Justice O’Donnell expressed that he thought the Protestor’s arguments was not very strong since they did not apply for a permit but instead decided to “trespass.”

Overall, I think the Court will rule that the ordinance is a reasonable time place and manner restriction.


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