City of Maryville, Tennessee v. Wallace Scott Langford

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 17, 2012 Session

CITY OF MARYVILLE, TENNESSEE v. WALLACE SCOTT LANGFORD

Appeal from the Circuit Court for Blount County
No. L16773 David R. Duggan, Judge

No. E2011-01326-COA-R3-CV-FILED-JUNE 19, 2012

This appeal arises from a dispute over the constitutionality of City of Maryville (“Maryville”)
ordinance 16-110 (“the Ordinance”). The Ordinance requires the issuance of a permit for
certain public meetings and parades in Maryville. Wallace Scott Langford (“Langford”) and
two associates engaged in street preaching at a Maryville intersection. Langford declined to
apply for a permit and was cited for violating the Ordinance. After a default judgment was
rendered against him in municipal court, Langford appealed to the Circuit Court for Blount
County (“the Trial Court”). Langford challenged the constitutionality of the Ordinance on
grounds that it is overly broad and vague. Following a hearing, the Trial Court entered an
order upholding the constitutionality of the Ordinance. Langford appeals. We hold that the
Ordinance is unconstitutional on its face as it is vague, overly broad, and affords too much
discretion to the officials charged with issuing permits. We reverse the judgment of the Trial
Court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P . F RANKS,
P.J., and C HARLES D . S USANO, J R., J., joined.

William L. Gribble, II, Maryville, Tennessee, for the appellant, Wallace Scott Langford.

Matthew C. Haralson and Melanie E. Davis, Maryville, Tennessee, for the appellee, the City
of Maryville.
 OPINION

Background

The facts of this case are not in dispute. In November 2008, Langford was
cited for violating the Ordinance. Langford declined to defend himself in municipal court
and so the municipal court entered a default judgment against him. Langford sought
declaratory judgment in the Trial Court, arguing that the Ordinance was unconstitutional as
it allegedly is overly broad and impermissibly vague.

Both parties on appeal rely on the Trial Court’s findings of fact1 , which state:

The subject Maryville ordinance is found at Maryville Municipal Code
Title 16, §16-110, which provides as follows:

16-110. Parades regulated. It shall be unlawful for any
club, organization, or similar group to hold any meeting, parade,
demonstration, or exhibition on the public streets without some
responsible representative first securing a permit from the chief
of police, or his designee. Application for a permit shall be
made not less than one (1) week prior to the time planned for
such parade or assembly, giving the time of day the same [is] to
begin, the probable number of participants, the purpose for
which the parade or assembly is to be held, and the place or
route of the parade or assembly. No permit shall be issued by
the recorder unless such activity will not unreasonably interfere
with traffic and unless such representative[] shall agree to see to
the immediate cleaning up of all litter which shall be left on the
streets as a result of the activity. Furthermore, it shall be
unlawful for any person obtaining such [a] permit to fail to carry
out his agreement to immediately clean up the resulting litter.

On November 22, 2008, a citation was issued to Defendant for violation
of that ordinance when Defendant, along with three other individuals, were
found to be engaging in street-preaching at the intersection of Highway 321
and Broadway in Maryville. Defendant, and the others, were engaged in that
activity and had not obtained a permit for the activity. Defendant was present
that day for the purpose of proselytizing and preaching. Defendant was

1
The record does not contain either a transcript or statement of the evidence.

-2-
accompanied by his minor daughter, who was not preaching; his adult step-
son, who was preaching; and his step-son’s adult friend, who was preaching.
Defendant, and his three companions, lived in Dover, Tennessee at the time.
Defendant and his adult step-son are members of the Street Preachers
Fellowship.

The three persons who were engaged in street preaching, including
Defendant, were preaching at the intersection of Highway 321 and Broadway
in Maryville as that intersection is shown in Ex. 1. Defendant was standing on
the corner of the property where the Maryville Municipal Building is located,
as indicated by the letter “L” on Ex. 1, but the other two adults were standing
in the median as indicated by the two “X” marks as shown on Ex. 1. The
video of the incident, before the Court as Ex. 2, reveals that the three adult
street preachers, including Defendant, were screaming and shouting at passing
motorists, and that they were also screaming and shouting at the police officers
after they arrived on the scene. The video also establishes that they were
holding signs, and that, at times, the two adults other than Defendant were
passing back and forth through the crosswalk to and from the median.

The officers explained the need for a permit and the process for
obtaining a permit, and it was determined that Defendant, and the others, did
not have a permit. The officers gave Defendant, and the others, the
opportunity to leave peacefully. Defendant and the others did not leave.
Defendant insisted that he did not need a permit, and that the [C]onstitution is
his permit. Ultimately the officer informed Defendant, and the others, that a
citation would be issued for failure to obtain the permit, and that if they did not
leave after the issuance of the citation, they would be arrested for disorderly
conduct. The intersection in question is a busy intersection, including on the
day and at the time of the incident. The citation was issued at 4:05 p.m. on
November 22, 2008. It is undisputed that no permit was issued for the group
to engage in street preaching.

Maryville Police captain David Graves testified that the ordinance
requires the application for a permit if any group or club is engaged in any type
of demonstration. Graves further testified that part of his job duties includes
consideration of the applications for such permits, and the issuance of those
permits. He stated that he does not delegate that duty but rather handles it
personally, and that the only time anyone else deals with the issuance of
permits is when he is out of town, and he said that has only happened two or
three times in recent years. Defendant did not make application for or obtain

-3-
a permit. The application for such permits, as well as the issuance of those
permits, pursuant to the ordinance does not involve any cost. The permits are
free. Graves testified that the City’s most important concern in requiring
permits is to assure the safety of individuals involved in the assembly and any
persons around such persons. Graves testified that his only concern, in
deciding whether or not to issue a permit, is whether it involves a major
intersection where there is a history of a large number of automobile crashes.
Graves testified that the particular intersection at issue–Highway 321 and
Broadway–is a major intersection in the city and is the site of the second
largest number of crashes in the city. There have been numerous lawsuits over
automobile crashes at the intersection, including lawsuits pertaining to the
City’s responsibility for properly maintaining the intersection. Graves testified
that the intersection is a dangerous intersection.

Graves testified that he has no discretion to deny a permit based on the
subject matter content of the meeting, parade, demonstration, or exhibition.
He further testified that he had never denied a permit based on subject matter
content. While no policy or standard operating procedure was offered into
evidence, Graves testified that there are standards which restrict his discretion
existing by order of the chief of police and contained in Maryville Police
Department policy and standard operating procedures. Graves further testified
that if there are safety concerns with respect to a particular application, he does
not just deny the issuance of the permit, but rather works with the club,
organization or group to find another, safer location. He testified that if no
agreement could be reached, he would deny issuance of the permit, but that
such has never happened.

Graves testified that had Defendant, and the others in his group, sought
a permit for street preaching at this particular busy, dangerous intersection, he
would have required the group to move to another site away from the
intersection, but that the demonstration would have been allowed in a highly
visible area along either Broadway or Highway 321. He testified that any
decisions which he would have made in issuing the permit would have been
based solely upon issues pertaining to the safety of the persons, vehicles or
pedestrians involved in the activity.

Graves testified that he had issued a permit for street preaching in the
previous week, though not for that particular intersection. Graves testified that
he treats everyone the same in terms of safeguards and protection. Graves
testified, for example, that the Right to Life group is always allowed to engage

-4-
 in a Chain of Life demonstration on Highway 321, but they are required to stay
out of any intersection and are located in an area on the highway between
intersections. In 2010, 60 permits were issued. In 2009, 130 permits were
issued. In 2008, 110 permits were issued.

In the past three years, only three permits have been denied. One of
those denials was for a one-day event on East Broadway where music was to
be played in front of a business establishment. No dangerous intersection was
involved. While the permit was not issued because it was sought the day
before the event, the applicant was told that he could engage in the activity,
and if there were no complaints he would be allowed to continue. The second
denial was for an event involving off-road vehicles on city property in the Big
Springs Industrial Park. The application was denied due to a history of
vandalism, littering, and injury and resultant litigation involving the use of all-
terrain vehicles in that area. The third denial was for a demonstration that was
to take place in front of the courthouse. The applicant had threatened an acting
judge and was denied the permit. She was asked to move her activity to
another location, and she was provided with several locations where she could
engage in her demonstration. Graves testified that no permit would be
required for one person, but that the Maryville Police Department would want
to know of the activity for safety issues. He testified that a permit would be
required for any club, organization or similar group consisting of two or more
persons.

(citations omitted and paragraph structure reformatted)

The Trial Court rendered its conclusions of law in its November 2011 2 order.
The Trial Court, in upholding the Ordinance as constitutional, held, inter alia: 1) the
Ordinance was not unconstitutionally vague; 2) the Ordinance did not vest too much
discretion in the hands of its issuer; 3) the Ordinance was narrowly tailored; and, 4) the one-
week notice requirement in the Ordinance did not render the Ordinance overly broad.
Regarding vagueness, the Trial Court stated, in part:

In the present case, the ordinance is not unconstitutionally vague. This

2
The Trial Court originally entered an order in this case in May 2011. Maryville filed a motion to
stay in this Court, arguing that the May 2011 order did not constitute a final, appealable order. We granted
Maryville’s motion and stayed the appeal so that the parties could obtain a final order. The Trial Court
entered a final order in November 2011. This November 2011 order, which is the Trial Court’s final order
in this case, subsequently was transmitted to this Court in keeping with our Order.

-5-
 Court will not strain to read ambiguity into the terms of this ordinance when
those terms are commonly understood. Webster’s New World Dictionary
defines “club” as “a group of people associated for a common purpose”;
“organization” as “any organized group, as a club”; “group” as “a number of
persons or things gathered or classified together”; “meeting” as “a coming
together” or “a gathering of people”; “parade” as “any organized procession
or march, as for display” or “to march or walk through, as for display”;
“demonstration” as a showing of “feelings or views publicly by meetings,
etc.”; and “exhibition” as a “public showing...”

In dealing with the issue of vagueness, the Sixth Circuit, in City of
Dearborn, held that a statute, or in this case an ordinance, must provide fair
notice of the standard of conduct for which the citizen is to be held
accountable. The ordinance at issue in this case provides that type of notice.
The citizen is clearly advised that if he wishes to engage in, for example, a
demonstration on the public streets, then the permit shall be sought and the
relevant information provided in the application.

Regarding narrow tailoring, the Trial Court held, in part:

The parties have stipulated in this proceeding, and it is not at issue, that the
subject ordinance is content-neutral. The only proof before this Court is that
the ordinance is applied without discrimination, and that Defendant would
have been issued a permit had he simply applied, though likely upon
conditions or changes in time, place and manner as to avoid disturbance of the
use of the streets. No doubt the City of Maryville would have required
Defendant, and the others, to move away from the dangerous intersection, but
nevertheless to a highly visible place along the sidewalk either along
Broadway or along Highway 321.

This finding is more than supported by the evidentiary record. Capt.
Graves testified to each of the following points: (1) The City of Maryville has
never denied a permit based on subject matter content; (2) he has no discretion
to deny a permit based on subject matter content; (3) if a permit is sought and
the city has street safety concerns, they work to find another location, and there
has never been an instance of failing to find a suitable location that allows the
applicant free rein to express his or its First Amendment rights; (4) that in just
the previous week before the hearing, such a permit had been issued to a street
preacher, and likewise the City always grants a permit to the Right to Life
group for its Chain of Life demonstration along Highway 321, with the only

-6-
restriction being that they are required to be on a sidewalk away from an
intersection.

Indeed, in this case this Court cannot conclude even that there are no
criteria governing the granting of permits. While there may be no criteria
stated on the face of the ordinance, Capt. Graves testified, and the proof is
unrebutted, that the policies and procedures to which he testified exist by order
of the chief of police and are continued in policy and standard operating
procedures. While those policies and standard operating procedures were not
offered into evidence, Capt. Graves testified to those procedures, the Court
finds him to be a highly credible witness, and no proof was offered by
Defendant at the hearing other than his stipulated testimony which does not,
in any way, put at issue the witness’s credible testimony that there are policies
and procedures that govern the issuance, in a fair and non-discriminatory
manner, of the required permits.

***

Recognizing that the Sixth Circuit has held that the application of a
permit process to a small group requires that special care be applied to such an
ordinance in determining it is narrowly tailored to serve a significant
government interest, the Court does not find the subject ordinance, however,
to be so broadly written as to extend to any two persons walking together along
a public street on their way to a church service or for any other purpose.
Rather, the present ordinance applies only to meetings, parades,
demonstrations or exhibitions on the public streets. Furthermore, the wording
of the ordinance, especially when taken in light of the evidence pertaining to
how this ordinance is applied, establishes that the issuance of a permit is
virtually certain provided that there will be no unreasonable interference with
traffic, and that any litter is picked up, and furthermore that even if there is a
potential interference with traffic or other concern pertaining to the safety of
the public streets and sidewalks, a safe and highly visible location will be
found for the meeting, parade, demonstration or exhibition to take place.

Indeed, the Court finds that the only language in the subject ordinance
that raises an issue as to the narrow tailoring of this ordinance is the
requirement that the permit be applied for one (1) week prior to the event.
While Defendant has made a passing reference to this requirement, Defendant
has not chosen to attack the ordinance on this basis. Nevertheless, the Court
wishes to address this matter and finds that while it would perhaps be better for

-7-
 the City of Maryville to require a lesser time for the application to be made, the
Court cannot find that the one-week requirement renders the ordinance overly
broad. There is a large body of case law, including the City of Dearborn case,
that has stricken 28- and 30-day notice provisions, or application provisions,
in such ordinances. There is dictum in many of these cases pointing out that
most such ordinances require less than a week, and even that the average for
such application provisions is a three-day advance application period. This
Court cannot find, however, that a one-week provision, in and of itself, renders
this ordinance overly broad and unconstitutional.

Accordingly, it is ORDERED, ADJUDGED AND DECREED that City
of Maryville Ordinance 16-110 is a valid time, place and manner restriction
and, accordingly, constitutional. The Court finds that Defendant violated § 16-
110 of the Maryville Municipal Code. Accordingly, this matter shall be
remanded to the Maryville Municipal Court for further proceedings in
accordance with this Order.

Langford appeals.

Discussion

We restate the issues on appeal as follows: 1) whether the Trial Court erred in
failing to hold that the Ordinance is not narrowly tailored; and, 2) whether the Trial Court
erred in failing to hold that the Ordinance is impermissibly vague.

Initially, we observe that this case involves a facial challenge to the Ordinance.
Facial challenges carry a steep burden. The United States Supreme Court has stated that
success in a facial attack requires a showing that the law in question is invalid under all
circumstances. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697
(1987). In certain First Amendment matters, the United States Supreme Court has
recognized another type of facial attack whereby the law is invalid on overbreadth grounds
if the overbreadth is “substantial” as compared to its “plainly legitimate sweep.” Broadrick
v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Application of the
overbreadth doctrine has been described as “strong medicine.” Id. at 613, 93 S.Ct. 2908.

This appeal tasks us with evaluating the constitutionality of a parade ordinance,
thus implicating freedom of expression.3 “[A] regulation of the time, place, or manner of

3
Langford initially argued in terms of both the United States and Tennessee Constitutions. On
(continued...)

-8-
protected speech must be narrowly tailored to serve the government's legitimate,
content-neutral interests but that it need not be the least restrictive or least intrusive means
of doing so.” Ward v. Rock Against Racism, 491 U.S. 781, 798, 109 S.Ct. 2746, 105 L.Ed.2d
661 (1989). In keeping with this standard, “[g]overnment may not regulate expression in
such a manner that a substantial portion of the burden on speech does not serve to advance
its goals.” Id. at 799, 109 S.Ct. 2746. Nevertheless, it has been recognized that “[t]he
authority of a municipality to impose regulations . . . to assure the safety and convenience of
the people in the use of public highways has never been regarded as inconsistent with civil
liberties but rather as one of the means of safeguarding the good order upon which they
ultimately depend.” Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 85 L.Ed. 1049
(1941).

The United States Supreme Court has stated:

[O]ur decisions have also made clear that picketing and parading may
nonetheless constitute methods of expression, entitled to First Amendment
protection. Cox v. Louisiana, supra; Edwards v. South Carolina, 372 U.S.
229, 83 S.Ct. 680, 9 L.Ed.2d 697; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct.
736, 84 L.Ed. 1093. ‘Whenever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public and, time out of
mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions. Such use of the streets and
public places has, from ancient times, been a part of the privileges, immunities,
rights, and liberties of citizens. The privilege of a citizen of the United States
to use the streets and parks for communication of views on national questions
may be regulated in the interest of all; it is not absolute, but relative, and must
be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not, in the guise of
regulation, be abridged or denied.’ Hague v. C.I.O., 307 U.S. 496, 515-516,
59 S.Ct. 954, 964, 83 L.Ed. 1423 (opinion of Mr. Justice Roberts, joined by
Mr. Justice Black).

Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 152, 89 S.Ct. 935, 22 L.Ed.2d 162
(1969).

“[E]ven content-neutral time, place, and manner restrictions can be applied in
such a manner as to stifle free expression.” Thomas v. Chicago Park Dist., 534 U.S. 316,

3
(...continued)
appeal, Langford has based his arguments on federal constitutional law.

-9-
323, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002). Therefore, the United States Supreme Court
has required that “a time, place, and manner regulation contain adequate standards to guide
the official's decision and render it subject to effective judicial review.” Id. “[A]ny permit
scheme controlling the time, place, and manner of speech must not be based on the content
of the message, must be narrowly tailored to serve a significant governmental interest, and
must leave open ample alternatives for communication.” Forsyth County, Ga. v. Nationalist
Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). Both parties agree
that the Ordinance at issue is content-neutral.

We first address whether the Trial Court erred in failing to hold that the
Ordinance was not narrowly tailored. As argued by Langford, there are two overarching
tailoring flaws in the Ordinance: 1) the lack of a small group exception; and, 2) excessive
discretion afforded to the issuer of the permit. The case of American-Arab Anti-
Discrimination Committee v. City of Dearborn, 418 F.3d 600 (6th Cir. 2005) is addressed by
both parties, and an analysis of its reasoning was a central feature of the Trial Court’s
conclusions of law in the instant case. The United States District Court for Michigan,
Western District, has concisely summarized City of Dearborn with regard to its holding on
narrow tailoring issues:

As the Sixth Circuit has held, “[p]ermit schemes and advance notice
requirements that potentially apply to small groups are nearly always overly
broad and lack narrow tailoring.” American-Arab Anti-Discrimination Comm.
v. City of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005) (citing Burk v.
Augusta-Richmond Cty., 365 F.3d 1247, 1259 (11th Cir. 2004) (Barkett, C.J.,
concurring) (striking down an ordinance as not narrowly tailored because it
applied to “small intimate groups”); Grossman v. City of Portland, 33 F.3d
1200, 1206-07 (9th Cir. 1994) (striking permitting ordinance where it was
applied to a group of six or eight people carrying signs in a public park). The
Sixth Circuit struck as not narrowly tailored and as overbroad an ordinance
requiring a permit for any “organized group having a common purpose or goal,
proceeding along a public street or other public right-of-way in the City of
Dearborn.” American-Arab Anti-Discrimination Comm., 418 F.3d at 608. The
court concluded that such an ordinance was “hopelessly overbroad” because
it “would include almost any imaginable procession on Dearborn's streets or
sidewalks ....“ Id.

***

In addition, in American-Arab Anti-Discrimination Comm., the Sixth
Circuit squarely held that a 30-day notice period for issuance of a permit is not,

-10-
 on its face, narrowly tailored. American-Arab Anti-Discrimination Comm.,
418 F.3d at 607. As the court recognized, the notice period restricts the
public's use of traditional public fora that “have immemorially been considered
a rightful place for public discourse.” Id. at 605 (citing Hague v. CIO, 307
U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) (“Wherever the title of
streets and parks may rest, they have immemorially been held in trust for the
use of the public ....”)). “Because notice provisions have the tendency to stifle
our most paradigmatic examples of First Amendment activity, courts must take
special care when reviewing the government's justification for its
infringement.” Id. As a consequence, a court must consider whether a notice
provision is unnecessarily protracted, thereby stifling substantially more
speech than necessary. Id.

World Wide Street Preachers’ Fellowship v. City of Grand Rapids, 2007 WL 1462130, at *5
(W.D. Mich. May 16, 2007).

Langford argues that the Ordinance is overly broad because it lacks an
exception for small groups. We agree. The Ordinance requires a responsible representative
of “any club, organization, or similar group” to obtain a permit from the chief of police or
his designee before holding any “meeting, parade, demonstration, or exhibition on the public
streets.” The Trial Court held that this list made it sufficiently clear that the Ordinance could
not be applied to two people walking along a street to, for example, a church service.
However, we believe that the language of the Ordinance is, in fact, broad enough to
encompass such scenarios. There is no explicit small group exception in the text of the
Ordinance, and the terms of the Ordinance may fairly be read to include a sweeping amount
of human behavior for which no permit need be sought. “Permit schemes and advance notice
requirements that potentially apply to small groups are nearly always overly broad and lack
narrow tailoring.” City of Dearborn, 418 F.3d at 608 (emphasis added). The Ordinance
potentially applies to small groups, such as the group of three here, and we see nothing in the
Ordinance that effectively serves to nullify this defect.

Maryville argues on this point that since the penalty for violating the
Ordinance, a fine not to exceed $504 , is relatively slight, then the Ordinance is not an undue
restriction on speech. Conversely, Maryville suggests that more serious criminal penalties
would render the outcome different.

4
Maryville represents that the maximum penalty for violating the Ordinance is $50.00 plus court
costs. However, Maryville does not cite to the record in support of this assertion. Nevertheless, we will rely
on Maryville’s representation.

-11-
 However, having reviewed the authorities on this matter, we are not aware of
any controlling law or precedent that establishes this distinction.5 Barring any authority
directing us otherwise, we are unwilling to hold that the government may curtail one’s
freedom of expression with a relatively small penalty but not a harsh penalty. Either the
restriction is valid or it is not. In any event, a $50 fine could well be significant to many
people wishing to engage in constitutionally protected activities. Adoption of Maryville’s
position would mean that those individuals who can afford to pay the penalty will be able to
exercise their constitutionally protected rights but those individuals to whom the penalty is
significant will have their free exercise of their constitutionally protected rights curtailed.
There is no economic sliding scale for the right to engage in constitutionally protected
activities. The richest and the poorest among us, as well as all those individuals in-between,
all have the same rights under our Constitution. We hold that, as the Ordinance could apply
to virtually any pair or group of people engaged in a common activity, the Ordinance is
overly broad.

Langford also argues that the Ordinance vests excessive discretion in the issuer
of the permit. We agree. The Ordinance provides: “No permit shall be issued by the
recorder unless such activity will not unreasonably interfere with traffic and unless such
representative shall agree to see to the immediate cleaning up of all litter which shall be left
on the streets as a result of the activity.” We fail to see how this properly guides the issuer
to decide when to issue a permit. The Ordinance merely lists two conditions in which a
permit may not be issued. The Ordinance fails to direct when one is to issue a permit.

Langford points to an opinion of the United States District Court for
Tennessee, Middle District, which stated with respect to discretion:

The Charitable Solicitations Ordinance may also be unconstitutional as
much for what it does not say as for what it does say. Even if the provisions
that the Court has described as likely granting an overly broad discretion of
authority were excised, the ordinance must still “contain adequate standards
to guide the official's decision and render it subject to effective judicial
review.” Thomas, 534 U.S. at 323, 122 S.Ct. at 780. The Charitable
Solicitations Ordinance, however, neither requires the Board to issue a permit
if certain prerequisites are met, nor does it mandate denial of a permit if certain

5
Maryville invokes the case of Bowman v. White, 444 F.3d 967 (C. A. 8, 2006), in which the United
States Court of Appeals, Eight Circuit, upheld a University of Arkansas permit requirement applied to a
single individual. Maryville notes the regulation contained no possibility of arrest or imprisonment.
However, in addition to not being controlling, we find Bowman inapposite. That case concerned a University
setting; the instant appeal is about streets, traditionally among the most public and accessible of fora.

-12-
 circumstances are present. The ordinance merely lists five factors (one of
them being the aforementioned “character” and “integrity” factor) for the
Board to “consider.” How the Board weighs the factors appears to be entirely
within the Board's discretion. In addition, the Board appears free to consider
unlisted factors, and what those factors are in any given case appear to be,
again, entirely up to the Board. For all of these reasons, the Court finds that
Plaintiff is likely to succeed in its argument that the Charitable Solicitations
Ordinance vests overly broad discretion in the Board.

Feed the Children, Inc. v. Metropolitan Government of Nashville and Davidson, 330 F.
Supp.2d 935, 946 (M. D. Tenn. 2002) (footnote omitted). The Ordinance simply is not
sufficiently clear as to when a permit is to be issued.

Maryville strongly argues that its actual practice, as evidenced by testimony of
Captain Graves, was of impartially and fairly issuing permits. While we do not have access
to the testimony of Captain Graves, the Trial Court summarized his testimony in its findings
of fact and relied on them in its conclusions of law. We also note that the Trial Court
specifically found the testimony of Captain Graves to be credible. We do not overturn the
credibility determination of the Trial Court. Rather, we hold that Captain Graves’s testimony
is not dispositive to the question of the constitutionality of the Ordinance. This case and its
appeal are based on a facial challenge to the Ordinance. Even if we accept that the
Ordinance has been fairly applied, we are inquiring into whether the Ordinance, by its very
language and directives, is unconstitutional on its face. Consider a scenario: given an
ordinance that is universally regarded as overly broad in its language, what legal conclusion
regarding its fundamental constitutionality could we draw from the fact that an official
applies it in an impartial way? An official lacking sound discretion, or, using a new set of
procedures, could utilize the Ordinance in an unconstitutional manner according to its very
text. The source of the problem is the language of the Ordinance itself, which we hold to be
overly broad.

We next address whether the Trial Court erred in failing to hold that the
Ordinance is impermissibly vague. The Sixth Circuit explained in City of Dearborn:

A statute is unconstitutionally vague if it denies fair notice of the standard of
conduct for which the citizen is to be held accountable, or if it is an
unrestricted delegation of power which leaves the definition of its terms to law
enforcement officers. Leonardson v. City of East Lansing, 896 F.2d 190, 196
(6th Cir. 1990). Government officials are not vested with undue discretion
under a licensing scheme, so long as the licensing scheme contains “narrow,
objective, and definite standards to guide the licensing authority.”

-13-
 Shuttlesworth, 394 U.S. at 151, 89 S.Ct. 935.

City of Dearborn, 418 F.3d at 608-09.

The language of the Ordinance contains the unhelpful and confusing term
“Similar group”. “Similar group” could plausibly encompass any congregation of people.
It does not require a strained interpretation of “similar group” to appreciate how intrinsically
vague this term is. Multiple people who gather for a common purpose rationally could be
deemed a “group” that is “similar” to a club. While the term “club” may evoke membership,
rules and a formal, fixed purpose, a “similar group” might contain certain parallel traits and
yet not constitute an actual organized club. This language is too open-ended and subject to
numerous reasonable interpretations.

The language of the Ordinance is not salvaged or narrowed by its inclusion of
examples. The Ordinance states: “It shall be unlawful for any club, organization, or similar
group to hold any meeting, parade, demonstration, or exhibition on the public streets without
some responsible representative first securing a permit . . .” On the contrary, the inclusion
of the terms “similar group” and “meeting,” rather than clarifying the examples listed,
dramatically enlarge the class of persons and situations potentially subject to the Ordinance.

We note that the Sixth Circuit in City of Dearborn, while holding that the
ordinance there was overly broad and not narrowly tailored, did not hold that the ordinance
was vague. However, there are important distinctions. The ordinance in City of Dearborn
defined “‘special event’ as any ‘organized group having a common purpose or goal’.” City
of Dearborn, 418 F.3d at 610. The other language in City of Dearborn alleged to be vague
was the ordinance’s direction that the Dearborn city council “‘shall’” grant the permit
provided the special event is “‘for a lawful purpose and will not in any manner act so as to
breach the peace or unnecessarily interfere with the public use of the streets, sidewalks, parks
and public areas.’” Id. We find these examples of ordinance language disparate.

We fully acknowledge Maryville’s legitimate interest in preserving order and
safety on its streets. Nothing in this Opinion diminishes the right of municipalities to protect
people on their roadways. However, the particular measure at issue in this case fails to pass
constitutional muster as it is vague, overly broad, and affords too much discretion to the
officials charged with issuing permits. We hold that the Ordinance is unconstitutional on its
face and cannot stand as written.

Conclusion

The judgment of the Trial Court is reversed, and this cause is remanded to the

-14-
Trial Court solely for collection of costs below. The costs on appeal are assessed against the
appellee, the City of Maryville.

_________________________________
D. MICHAEL SWINEY, JUDGE

-15-