In the
United States Court of Appeals
For the Seventh Circuit
No. 13‐1939
ERIC SMITH,
Plaintiff‐Appellant,
v.
EXECUTIVE DIRECTOR OF THE INDIANA
WAR MEMORIALS COMMISSION, et al.,
Defendants‐Appellees.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12‐cv‐1402‐WTL‐DML— William T. Lawrence, Judge.
ARGUED OCTOBER 28, 2013 — DECIDED FEBRUARY 4, 2014
Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. The Indiana War Memorials
Commission supervises the Soldiers and Sailors Monument at
Monument Circle in Indianapolis, as well as several other
monuments in downtown Indianapolis. A Commission policy
requires even small groups to obtain a permit before gathering
on Commission properties. Plaintiff Eric Smith and his young
son were expelled from Monument Circle for protesting a
2 No. 13‐1939
proposed United Nations arms treaty without a permit. Smith
claims here that the Commission’s permit policy violates the
First Amendment. He appeals from the district court’s denial
of his motion for a preliminary injunction against the policy’s
enforcement. The defendants say little about the merits but
argue that his appeal is moot because the permit policy has
changed since the district court denied the motion. We con‐
clude, however, that the new policy retains the problematic
features of the old, so Smith’s appeal is not moot. Because we
also conclude that Smith has met the requirements for obtain‐
ing a preliminary injunction, we reverse the judgment of the
district court and remand the case with instructions to enter an
appropriate preliminary injunction.
I. Factual and Procedural Background
A. Smith’s Protest
Smith feared in the summer of 2012 that the United States
would sign the Arms Trade Treaty, a treaty that would require
countries to monitor international sales of conventional arms
and ensure that arms embargoes are enforced with the goal of
preventing exported weapons from falling into the hands of
terrorist groups or other abusers of human rights. See
http://www.un.org/disarmament/ATT/ (visited Feb. 3, 2014) for
a description of the treaty and its full text. The treaty has been
criticized by some nations for eroding national sovereignty and
by some private organizations for undermining individual
rights to keep and bear arms. The U.S. has signed the treaty but
has not yet ratified it. See http://disarmament.un.org/treaties/s/
unitedstatesofamerica (visited Feb. 3, 2014). Smith believes that
the Arms Trade Treaty would violate the U.S. Constitution by
No. 13‐1939 3
infringing the right to bear arms. To register his disapproval
and raise awareness, he decided to organize a protest at
Monument Circle, home to the Soldiers and Sailors Monument.
The Circle is an outdoor state‐run public property at the center
of downtown Indianapolis.
Hoping to attract a like‐minded crowd, Smith publicized
the event with a printed flier. The flier warned of the impend‐
ing “atrocious act” of signing the treaty—an act described as
equivalent to “taking away the 2nd Amendment”—and urged
readers to join their fellow citizens in opposition at Monument
Circle on a Thursday and Friday in July. The flier exhorted
readers to “stop being lambs” and ended with a quotation
attributed to Adolf Hitler about the virtues of disarming the
citizenry.
The flier failed to attract a single person to join Smith’s
protest. When Thursday came, he found himself on Monument
Circle accompanied only by his son. The pair set up five small
signs on the ground. Within minutes, a Commission employee
approached and asked Smith whether he had an event permit.
He did not. The employee told him to leave the property
immediately, suggesting he move to a sidewalk on municipal
rather than state property. Smith responded that the First
Amendment protected his right to demonstrate at Monument
Circle without a permit, but the employee was unmoved. Two
Indiana State Police officers then approached and threatened
to arrest Smith if he and his son did not depart. The Smiths
reluctantly complied.
4 No. 13‐1939
B. District Court Proceedings
After his expulsion from Monument Circle, Smith filed this
suit against the Commission’s executive director and the
officers who had ordered him to leave the Circle on pain of
arrest. He contends that the Commission’s permit policy
violates the Free Speech Clause of the First Amendment, and
he moved for a preliminary injunction against its enforcement.
At a hearing on Smith’s motion and in an earlier deposition,
Christina Gaither, the Commission’s director of administration,
testified about the then‐unwritten permit policy. She explained
that, to ensure orderly use of the premises, the policy required
individuals or groups to obtain a permit if they wished to use
a Commission property for a “specific purpose.” Permit
applications are reviewed by Commission employees, includ‐
ing Gaither. Pressing her on what she meant by “specific
purpose,” Smith’s lawyer asked about some hypothetical
situations, a line of questioning that exposed the policy’s ill‐
defined contours. Gaither conceded that groups as large as
twenty‐five could gather together for lunch on the Circle
without a permit. She was uncertain whether a group of
twenty‐five lunchgoers would be allowed to eat without a
permit if they were wearing political t‐shirts during the meal.
Gaither also said that if a group gathers without a permit, it is
offered an application to obtain a permit on the spot, and that
no permit application had ever been denied. She could not
explain, though, why this option was not offered to Smith
during his July 2012 protest. Other areas of uncertainty in her
testimony related to how the Commission calculates the proper
fee for a permit and under what circumstances the applicant
must also purchase insurance. Although a fee schedule exists,
No. 13‐1939 5
Gaither testified, departures from the schedule are not uncom‐
mon. (Examples of past permits supported her on this point.)
She also testified that the insurance requirement would apply
even to small groups if the members did not already know
each other. People who know each other, she said, are not
likely to sue each other or the Commission.
To obtain a preliminary injunction, Smith needed to
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the “balance of equities” tips in his favor (i.e.,
denying an injunction poses a greater risk to Smith than
granting an injunction poses to the Commission), and that
issuing an injunction is in the public interest. United States v.
NCR Corp., 688 F.3d 833, 837 (7th Cir. 2012). Because unconsti‐
tutional restrictions on speech are generally understood not to
be in the public interest and to inflict irreparable harm that
exceeds any harm an injunction would cause, see ACLU of
Illinois v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012), Smith’s main
obstacle to obtaining a preliminary injunction was demonstrat‐
ing a likelihood of success on the merits.
In his motion and supporting brief in the district court,
Smith explained why his First Amendment challenge to the
Commission’s permit policy would likely succeed. Monument
Circle—where he had attempted to protest and hoped to
protest in the future, both alone and in small groups—is
indisputably a “traditional public forum.” The government can
restrict the time, place, and manner of expression in a tradi‐
tional public forum, but only if the restrictions (1) are content‐
neutral, (2) are narrowly tailored to serve a significant govern‐
ment interest, and (3) leave open ample alternative channels of
6 No. 13‐1939
communication. Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 45 (1983).
Smith recognized that the restriction on speech in a public
forum need not be the narrowest possible, but he argued that
requiring a permit for small groups of demonstrators is not
narrowly tailored to serve a significant government interest
when, for example, larger groups of people having lunch at
Monument Circle do not need a permit. He also explained that
the permit requirement is not content‐neutral because the
policy allows “unbridled discretion” to the decision makers,
inviting discrimination. See Southworth v. Board of Regents of the
University of Wisconsin System, 307 F.3d 566, 578–79 (7th Cir.
2002). Finally, Smith argued for good measure that the permit
requirement is overbroad, a doctrine of First Amendment law
that permits facial challenges when a regulation of speech is so
broad that it prohibits a substantial amount of protected
speech. See Forsyth County v. Nationalist Movement, 505 U.S.
123, 129–30 (1992). (An overbreadth challenge can be brought
even when the plaintiff’s expressive act legitimately could be
restricted by a narrower regulation. Id. at 129.) The defendants
defended the policy in the district court as necessary to
maintain order and to hold people accountable for any damage
to Commission property during an event.
The district court denied Smith’s motion on the ground that
he had not demonstrated a reasonable likelihood of success on
the merits. The court recognized that Monument Circle is a
traditional public forum and that aspects of the permit policy
appear to be constitutionally problematic. But the court stated
repeatedly and rather opaquely that Smith had “failed to
sufficiently articulate his challenge” to that policy.
No. 13‐1939 7
II. Analysis
A. Mootness
On appeal the defendants do not attempt to defend the
district court’s order denying Smith’s motion for a preliminary
injunction. They argue instead that Smith’s appeal is moot
because the Commission has changed its permit policy since
the district court ruled. When the district court ruled, the
Commission’s permit policy was unwritten and required a
permit if someone wanted to use a space for a “specific
purpose.” The new policy can now be found (by those who
know they should look) on the permit application itself, titled
the “Indiana War Memorial Commission Facility Use Applica‐
tion and Agreement.” The new application, which can be
downloaded from the bottom of the “Events & Facility Rent‐
als” webpage, http://www.in.gov/iwm/2343.htm (visited
Feb. 3, 2014), begins:
Submission of the Facility Use Agreement is
STRONGLY suggested for all events & gatherings.
Generally, small gatherings of less than 15 people
are permitted informal use of the outdoor spaces
without submission of the FUA.
The application goes on to explain that even groups of fewer
than fifteen people must obtain a permit under a number of
circumstances, including if the event is advertised, the public
is invited, and/or the event lasts longer than five hours. Id. It is
unclear whether these and the other listed triggers of the
permit requirement (e.g., using glitter at an event) are exhaus‐
tive. We also do not know whether Smith’s prior use of
Monument Circle might have qualified as “informal.” As will
8 No. 13‐1939
be seen, those questions might be relevant to the ultimate
outcome of this case but need not concern us at this stage.
According to the defendants, Smith’s appeal from the
denial of a preliminary injunction is moot because the new
written policy would not require him to obtain a permit for the
small‐group protests he plans to organize. Smith counters that
his appeal is not moot because the revised policy retains the
unconstitutional components of the old policy. (The defendants
concede that Smith’s case is not moot in the district court
because he is still pursuing damages claims against individual
defendants for violating his First Amendment rights by
expelling him from Monument Circle in July 2012.)
When a challenged policy is repealed or amended mid‐
lawsuit—a “recurring problem when injunctive relief is
sought”—the case is not moot if a substantially similar policy
has been instituted or is likely to be instituted. ADT Security
Services, Inc. v. Lisle‐Woodridge Fire Protection Dist., 724 F.3d 854,
864 (7th Cir. 2013) (concluding that a local government’s
amendment of challenged ordinance did not resolve the
dispute between the government and regulated businesses).
Challenges based on the First Amendment are no exception.
An appeal like this one will be deemed moot if the challenged
policy restricting speech is removed before the court of appeals
can evaluate it, but if the policy change does not actually
correct the asserted constitutional problem, the appeal is not
moot and should go forward. Compare Benkendorf v. Village of
Hazel Crest, 804 F.2d 99, 101 (7th Cir. 1986) (amendment
exempting plaintiff’s activities from ordinance rendered appeal
moot), with Green v. City of Raleigh, 523 F.3d 293, 299–300 (4th
Cir. 2008) (appeal not moot because amended policy was
No. 13‐1939 9
substantially similar to old); see also Lamar Advertising of Penn,
LLC v. Town of Orchard Park, 356 F.3d 365, 378 (2d Cir. 2004)
(explaining that a “plaintiff’s claims will not be found moot
where the defendant’s amendments are merely superficial or
the law, after amendment, suffers from similar infirmities as it
did at the outset”). The question ultimately calls for a judgment
about whether the changes are so substantial as to make it
unwise for the appellate court to consider the new policy.
For three reasons, we agree with Smith that this appeal is
not moot. First, although the amended policy has an exception
for groups smaller than fifteen, it also contains so many
exceptions to that exception that it still requires permits for
many smaller events, including events like Smith’s July 2012
protest of the arms treaty and others he is likely to organize in
the future. For example, the ban on demonstrating without a
permit after advertising or inviting the public would have
applied to his arms treaty protest and would continue to apply
to Smith. He has invited the public and hopes to do so again,
even though he might never attract more than a few people.
The five‐hour time limit also has the potential to interfere with
Smith’s planned demonstrations. Second, the amended policy
applies to any demonstration made up of fifteen people or
more. Smith’s position is that even a group of fifteen or at least
a few more is small enough that it must be allowed to gather
in Monument Circle for First Amendment expressive purposes
without a permit. Finally, Smith’s appeal is not moot because
the broad discretion exercised by the Commission staff who
review permit applications and decide whether to charge a fee
or require insurance seems to have remained intact under the
amended policy.
10 No. 13‐1939
These circumstances distinguish Smith’s case from
Benkendorf, where the new policy completely removed the
restriction on speech that the plaintiff had challenged, a ban on
certain realtor advertisements. 804 F.2d at 100–01. Smith’s
situation is much closer to Green v. City of Raleigh, where the
plaintiff challenged a permit requirement for picketers. While
Green’s appeal was pending, the permit policy was amended
to exempt groups of fewer than ten and to decrease the amount
of information the permit applicant had to supply. 523 F.3d at
298. The new policy, the Fourth Circuit concluded, was similar
enough to the old that “‘it is permissible to say that the
challenged conduct continues.’” Id. at 300, quoting Northeastern
Fla. Chapter of Associated Gen. Contractors v. City of Jacksonville,
508 U.S. 656, 662 n.3 (1993).
B. The Merits
Since Smith’s appeal is not moot, we move to the merits of
his motion for a preliminary injunction. As we indicated above,
the only real question in this case, as is often true in the First
Amendment context, is whether Smith has shown a reasonable
likelihood of succeeding at trial. See ACLU of Illinois v. Alvarez,
679 F.3d 583, 589 (7th Cir. 2012), among many similar cases.
Monument Circle, all agree, is a traditional public forum
like a park or sidewalk. In these places where free speech has
long been allowed, regulations that restrict speech do not
comport with the First Amendment unless they are (1) content‐
neutral, (2) narrowly tailored to serve a significant government
interest, and (3) leave open ample alternative channels of
communication. Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 45 (1983). We conclude that Smith has
No. 13‐1939 11
indeed shown, with fully developed and amply supported
arguments, a reasonable likelihood of success on the merits of
his claim.
To begin, the Commission’s permit policy seems not to be
narrowly tailored to serve a significant government interest. A
regulation “need not be the least restrictive or least intrusive
means” of furthering the government’s interest (in this case the
orderly use of its property), but at the same time the govern‐
ment “may not regulate expression in such a manner that a
substantial portion of the burden on speech does not serve to
advance its goals.” Ward v. Rock Against Racism, 491 U.S. 781,
798–99 (1989). Requirements that small groups obtain a permit
to gather in a traditional public forum frequently fail the
narrow‐tailoring requirement. See Marcavage v. City of Chicago,
659 F.3d 626, 635 & n.9 (7th Cir. 2011) (collecting cases); cf.
Thomas v. Chicago Park Dist., 534 U.S. 316 (2002) (upholding
permit requirement for gatherings of fifty people or more in
public forums in Chicago). Whether a numerical limit on
gathering without a permit is constitutional depends on the
specifics of the space at issue because different spaces can
accommodate groups of different sizes without interfering
with orderly, fair use of the space. Marcavage, 659 F.3d at 635.
The district court may eventually have to decide just how large
a group the Commission must allow on its various properties
without requiring a permit, but at this stage, considering the
size and layout of the space and the fact that groups of twenty‐
five may gather without a permit at Monument Circle to eat
lunch, at least, Smith seems likely to succeed in showing that
the fourteen‐person limit on demonstrations without a permit
is not narrowly tailored.
12 No. 13‐1939
Another aspect of the permit policy that likely is not
narrowly tailored is its provision that, if a gathering has been
advertised or the public has been invited, a permit is required
even if the group ultimately is made up of fewer than fifteen
people. While a group without a permit could be expelled from
the Circle if it grew too large—just as a group with a permit
might be expelled if its numbers grow beyond what the permit
approved—to disallow a protest attended by fewer than fifteen
people simply because the public was invited and no permit
was obtained likely goes too far in restricting speech. Similarly,
the five‐hour time limit on being at a Commission property
without a permit may be too restrictive, particularly as it
appears to apply to lone individuals as well as to small groups.
Smith also is likely to succeed in showing that the permit
policy fails the requirement of content neutrality. To qualify as
content‐neutral, a permit policy cannot invest “unbridled
discretion” in the person who decides whether a permit will
issue because excessive discretion can lead to discriminatory
enforcement. Thomas, 534 U.S. at 323; Forsyth County v. Nation‐
alist Movement, 505 U.S. 123, 130–33 (1992); Southworth v. Board
of Regents of the University of Wisconsin System, 307 F.3d 566,
578–79 (7th Cir. 2002). The Commission represents that it has
never denied a permit application, suggesting that its decision
makers are not exercising discretion at all. That is not a
satisfactory response in this case. Although the Commission
may not have denied a permit application (which may actually
tend more to indicate that the permit requirement is an
unnecessary restraint on speech), the evidence thus far
indicates that Commission employees use unguided discretion
to choose whether a group that did not obtain a permit ahead
No. 13‐1939 13
of time will be allowed to obtain one on the spot. Smith was
given no such option, though Gaither testified that the option
is routinely offered. And whether a fee is imposed at all,
whether a fee should be large or small, and whether insurance
should be required all seem to be discretionary decisions
without reasonable policy guidance. Under the Supreme
Court’s cases dealing with similar permitting requirements,
such a system invites abuse and is not content‐neutral.
Because Smith has made the necessary showing to obtain
a preliminary injunction, the decision of the district court must
be reversed. We leave it to the court on remand to determine
the proper scope of the injunction, including whether it should
extend beyond Monument Circle to other properties the
Commission administers. As we have explained, the number
of people who must be allowed to gather without a permit may
depend on the specifics of the space in question. We decide
here only that Smith appears likely to prove at trial that fifteen
is too small a number to trigger a permit requirement for
Monument Circle and that he has met the other requirements
for preliminary injunctive relief. In its order denying Smith’s
motion, the district court expressed uncertainty over whether
Smith was seeking an injunction that would protect only his
right to protest or was seeking an injunction based on a facial
challenge that would bind the Commission with respect to
everyone. Because Smith has a reasonable likelihood of
showing that the policy is unconstitutional both as it was
applied to him and as it applies to individuals and small
groups generally, the preliminary injunction should prohibit
its enforcement against any individual or small group.
14 No. 13‐1939
The decision of the district court denying a preliminary
injunction is REVERSED and the case is REMANDED with
instructions to enter an appropriate preliminary injunction
consistent with this opinion.