RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0312p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
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MARK MILLER; COALITION OPPOSED TO
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ADDITIONAL SPENDING & TAXES; and
WEDEMANDAVOTE.COM, -
Plaintiffs-Appellees, -
No. 08-4679
,
>
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-
v.
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CITY OF CINCINNATI; MILTON R. DOHONEY;
and JOEL KOOPMAN, -
Defendants-Appellants. -
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N
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 08-00550—Michael R. Barrett, District Judge.
Argued: November 17, 2009
Decided and Filed: September 24, 2010
Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.
_________________
COUNSEL
ARGUED: Paula Boggs Muething, CITY OF CINCINNATI, OFFICE OF THE
SOLICITOR, Cincinnati, Ohio, for Appellants. Christopher P. Finney, FINNEY
STAGNARO SABA & PATTERSON CO., LPA, Cincinnati, Ohio, for Appellees.
ON BRIEF: Paula Boggs Muething, CITY OF CINCINNATI, OFFICE OF THE
SOLICITOR, Cincinnati, Ohio, for Appellants. Christopher P. Finney, FINNEY
STAGNARO SABA & PATTERSON CO., LPA, Cincinnati, Ohio, Curt C. Hartman,
THE LAW FIRM OF CURT C. HARTMAN, Amelia, Ohio, for Appellees. Dale D.
Cook, WILES, BOYLE, BURKHOLDER & BRINGARDNER CO. L.P.A., Columbus,
Ohio, for Amicus Curiae.
1
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 2
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. In this section 1983 action,
the plaintiffs, two political advocacy groups and an individual member of one of the
groups, claim that defendant City of Cincinnati’s regulation governing access to the
interior spaces of city hall violates the First and Fourteenth Amendments of the United
States Constitution. After ruling in the plaintiffs’ favor on a jurisdictional challenge by
the defendants, the district court granted the plaintiffs’ motion for a preliminary
injunction. The district court concluded that the plaintiffs had established a substantial
likelihood of success on the merits of four independent claims: that the challenged
regulation (1) unconstitutionally prevented the plaintiffs from accessing city hall for
protected-speech activities; (2) unconstitutionally restricted the plaintiffs’ right of
expressive association by forcing them to collaborate with a government official to gain
access to city hall; (3) allowed discriminatory suppression of speech in violation of the
Equal Protection Clause; and (4) was void for vagueness under the Due Process Clause.
The defendants now appeal.
For the reasons that follow, we conclude that the district court correctly found
it had jurisdiction to rule on the plaintiffs’ motion for a preliminary injunction. The
district court was also correct in holding that the plaintiffs have established a substantial
likelihood of success on two of their four claims on which they based their motion: that
the City’s regulation violates the plaintiffs’ right to free speech and that it is
unconstitutionally vague. We therefore affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The principal plaintiff, Coalition Opposed to Additional Spending & Taxes
(COAST), is an Ohio political action committee that takes positions on a variety of non-
partisan issues, including – in this case – opposition to the Cincinnati City Council’s
authority to implement an automated photo-monitoring program to enforce traffic
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 3
regulations. Plaintiff Mark Miller is an individual member of COAST, and COAST, in
turn, participates in WeDemandAVote.Com, a political coalition advocating
“participatory democracy.” The defendants include the City of Cincinnati, city manager
Milton Dohoney, and the city facilities manager, Joel Koopman.
COAST twice tried and twice failed to gain access to the interior stairs and the
lobby of Cincinnati’s city hall to hold a press conference and rally advocating its views.
The City denied COAST’s first request under the then-controlling version of
Administrative Regulation #5, which provided in relevant part:
This administrative regulation is designed to restate and clarify
longstanding City policies regarding the use of public buildings . . . .
No private business enterprises or solicitations should be permitted in
City buildings or operated therefrom. Exceptions should be made only by
specific approval of the Department Head when it is judged to be in the
public interest, as in the case, for example, of the United Way Campaign.
No private signs or advertising materials should be displayed on or in
City buildings unless for an approved public purpose authorized by the
Department Head.
...
In making any exceptions to the above policies, Department Heads are
urged to consider not only what is proper, but also how it appears to the
public.
In the letter denying COAST’s request, defendant Koopman noted that “the use of any
City facility is for conducting business related to the functions of our various
departments in serving the citizens and by City Council in the performance of their
duties.” Koopman further explained:
City Facility Management’s practice is that events held inside the
building require a City sponsor, either a Council Member or a department
as part of their regular business and duties. Private groups, unaffiliated
with any department or Council Member, are allowed to use the outside
stairs as long as our egress is not blocked.
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 4
Koopman encouraged COAST to seek out a city department or city council member
willing to sponsor a press conference and rally inside city hall or, in the alternative, to
hold the event on the exterior steps.
In fact, various private groups had held events inside city hall through
sponsorship by a department official or city council member under the regulation. Most
notably, the backers of a tax levy for Cincinnati’s public school system, which is
governed by an independent school board and not the city council, held a rally on the
indoor stairs of city hall that featured city council members and representatives of
private community groups as speakers. The Coalition for Community Values, a private
group, arranged through the office of a city council member to use a conference room
in city hall for a press conference calling on a local newspaper to stop accepting adult-
entertainment advertisements. No city council member was present at that press
conference; however, two aides to city council members did attend, although they did
not speak.
In addition, the plaintiffs submitted as exhibits calendars that reflected use of the
lobby and first floor staircase for charitable campaigns such as the United Way and for
art and holiday displays. Conference rooms were booked for various non-profit events
and fund-raisers, meetings of the American Society for Public Administrators, the Soccer
Committee, Keep Cincinnati Beautiful (a city contractor), and the Earned Income Tax
Credit Partnership/Make Work Pay, lectures relating to heart health, and the “Who
Killed Our Kids?” campaign. City council chambers were used for such purposes as
youth mock-trial activities and recognition ceremonies, Truman Scholarship interviews,
concerts, a United Way event, a government-day program put on by the local chamber
of commerce, and sessions of Leadership Cincinnati.
After COAST filed the instant action, the City revised Administrative Regulation
#5 to provide in relevant part:
City Hall is lawfully dedicated for the purpose of allowing City officials
to exercise the rights and responsibilities specified in the Charter of the
City of Cincinnati.
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 5
...
The interior spaces of City Hall are reserved for use by the Mayor, the
City Manager and his assistants, City Councilmembers, City Department
Directors, City Commissions and Boards, and City employees. The
interior of City Hall is open to the public for purposes of visiting City
officers and attending City Council and other public meetings. The
interior of City hall is not generally available to the public for other
purposes.
When the Mayor, City Manager and his assistants, City Councilmembers,
City Department Directors, and City Commissions and Boards intend to
use interior spaces of City Hall for assemblages, they should notify the
Facilities Management Division of the Public Services Department . . . .
Facilities Management is responsible for insuring that the assemblage
does not create security problems, unreasonably interfere with ingress or
egress from City Hall, or otherwise unreasonably interfere with the other
official uses occurring inside City Hall.
Under the revised regulation, the term “assemblages” apparently includes rallies and
press conferences. City manager Dohoney instructed Koopman not to schedule any
assemblages in the interior front lobby or interior stairs.
In the district court the parties stipulated that the revised regulation shares several
similarities to the policy and practice under former Administrative Regulation #5. Under
both, private groups seeking to hold rallies or press conferences inside city hall must
“politically or administratively collaborate with the Mayor, a member of the Cincinnati
City Council, the City Manager and his assistants, a City Department Director, or a City
Board or Commission.” The authorized official who “sponsor[s] the use” of city hall by
a private group, however, does “not necessarily need to attend the use and/or participate
in the use in order for it to proceed.” City officials have “full and independent
discretion” as to whether they will collaborate with an outside group. Private advocates
on one side of a public issue might secure sponsorship for a rally inside city hall, while
advocates of the opposing viewpoint on the same issue might be denied access.
When the plaintiffs filed suit, they sought a preliminary injunction preventing the
City from regulating access to city hall on the basis of the content or viewpoint of a
proposed activity or from continuing to use an ad hoc, discretionary method of granting
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 6
access to the building. The plaintiffs also asked the district court to order the City to
allow the plaintiffs to hold a rally inside city hall. The district court granted the
plaintiffs’ motion for a preliminary injunction, but the district court’s order does not
specify whether its effect is to close city hall to outside groups regardless of sponsorship
or to grant the plaintiffs access. In any event, the district court granted the City’s motion
to stay the preliminary injunction pending the instant appeal.
II. DISCUSSION
On appeal, the defendants raise two issues. They first challenge the district
court’s subject matter jurisdiction, arguing that the plaintiffs lack standing because they
suffered no actionable injury and that their claims are both unripe for review and moot.
The defendants also contend that the district court erred in finding that the plaintiffs’
claims are substantially likely to succeed on the merits.
A. Subject Matter Jurisdiction
“The issue of standing, and whether a federal court has the power to adjudicate
a suit, is ‘the threshold question in every federal case.’” Planned Parenthood Ass’n v.
City of Cincinnati, 822 F.2d 1390, 1394 (6th Cir. 1987) (quoting Warth v. Seldin, 422
U.S. 490, 498 (1975)). We review jurisdictional challenges based on standing, ripeness,
and mootness de novo. See Monroe Retail, Inc. v. RBS Citizens, N.A., 589 F.3d 274, 278
(6th Cir. 2009) (standing); In re Cassim, 594 F.3d 432, 437 (6th Cir. 2010) (ripeness);
Demis v. Sniezek, 558 F.3d 508, 512 (6th Cir. 2009) (mootness).
1. Standing
As to standing, the City argues that because the plaintiffs did not seek out and
fail to secure sponsorship from an authorized official, they have not suffered the
requisite injury in fact. The district court concluded that the plaintiffs suffered an injury
when the City denied their request for access and told them to find a sponsor. We agree.
A plaintiff has constitutional standing if he: (1) shows a concrete and actual or
imminent injury in fact; (2) demonstrates that the defendant’s conduct caused the injury;
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 7
and (3) shows that it is likely, as opposed to merely speculative, that a favorable decision
will redress the injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
Additionally, courts have recognized three prudential limitations on standing, requiring
that “plaintiff be a proper proponent, and the action a proper vehicle, to vindicate the
rights asserted.” Lac Vieux Desert Band of Lake Superior Chippewa Indians v.
Michigan Gaming Control Bd., 172 F.3d 397, 403 (6th Cir. 1999) (quoting Pestrak v.
Ohio Elections Comm’n, 926 F.2d 573, 576 (6th Cir. 1991)); see also Coyne v. American
Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999) (prudential standing requirements
summarized).
When the City instructed the plaintiffs to secure a sponsor, the City placed the
plaintiffs’ request at the mercy of the unfettered discretion of those officials authorized
to grant access. But, as the district court observed, the Supreme Court has held that
“when a licensing statute allegedly vests unbridled discretion in a government official
over whether to permit or deny expressive activity, one who is subject to the law may
challenge it facially without the necessity of first applying for, and being denied, a
license.” City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 755-56 (1988).
Because unfettered governmental discretion over the licensing of free expression
“constitutes a prior restraint and may result in censorship,” a plaintiff may bring facial
challenges to statutes granting such discretion “even if the discretion and power are
never actually abused.” Id. at 757.
In our view, both the original and revised versions of Administrative Regulation
#5 afford authorized officials precisely this kind of unfettered discretion in deciding
whether to sponsor an event in the interior of city hall. The defendants attempt to
distinguish City of Lakewood, arguing that it involved a discretionary speech restriction
on a public sidewalk rather than inside a government building. This distinction is
irrelevant, however, because in City of Lakewood the Court held that an arbitrary prior
restraint on protected speech provides standing regardless of the forum. Hence, when
a plaintiff’s protected-speech activities are subject to restriction at the government’s
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 8
unfettered discretion, the plaintiff has suffered an injury in fact. We thus conclude that
in this case the plaintiffs have standing to sue.
2. Ripeness
Next, the City argues that the plaintiffs’ claim is not ripe because the plaintiffs
have not sought collaboration with any individual authorized officials. We disagree.
The ripeness doctrine prevents courts from “entangling themselves in abstract
disagreements” through premature adjudication. Grace Community Church v. Lenox
Twp., 544 F.3d 609, 615 (6th Cir. 2008). Courts consider three factors to evaluate
ripeness: “(1) the likelihood that the harm alleged by the plaintiffs will ever come to
pass; (2) whether the factual record is sufficiently developed to produce a fair
adjudication of the merits of the parties’ respective claims; and (3) the hardship to the
parties if judicial relief is denied at this stage in the proceedings.” Id. (quoting Warshak
v. United States, 490 F.3d 455, 467 (6th Cir. 2007)).
Because the plaintiffs’ claims are directed at the sponsorship requirement itself
and do not allege that officials, in practice, exercise their discretion to grant sponsorship
in a discriminatory manner, their claims are ripe. COAST has been twice denied access
to city hall for noncompliance with the sponsorship requirement and has therefore been
harmed. Moreover, the factual record is sufficiently developed because the parties have
stipulated to the fact that both versions of Administrative Regulation #5 require political
or administrative collaboration with an authorized official and that the authorized
officials have full and independent discretion to sponsor private groups and individuals,
giving them access to the interior of city hall. Obviously, refusing consideration until
the plaintiffs have actually sought collaboration with each and every possible
collaborator in city hall would cause undue and unnecessary hardship. We therefore
conclude that the challenge to the sponsorship requirement is ripe for review.
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 9
3. Mootness
Finally, the City argues that the plaintiffs’ claims are moot because, following
the enactment of revised Administrative Regulation #5, the city manager requested that
authorized officials not schedule assemblages in the interior front lobby and stairs of city
hall. Nevertheless, the plaintiffs’ claims remain viable to the extent that they seek
nominal damages as a remedy for past wrongs. See Murray v. Bd. of Trustees, Univ. of
Louisville, 659 F.2d 77, 79 (6th Cir. 1981). In addition, the City does not dispute the
fact that COAST’s claim remains viable because other interior areas of city hall are
accessible for sponsored events under the revised version of Administrative Regulation
#5.
Accordingly, we conclude that the district court properly exercised subject matter
jurisdiction over the plaintiffs’ action.
B. Likelihood of Success on the Merits
Under well-developed authority, federal district courts balance the following
factors in addressing motions for a preliminary injunction: “(1) the likelihood that the
movant will succeed on the merits; (2) whether the movant will suffer irreparable harm
without the injunction; (3) the probability that granting the injunction will cause
substantial harm to others; and (4) whether the public interest will be advanced by
issuing the injunction.” Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009) (reviewing
a preliminary injunction granted on First Amendment grounds). In this case, the
defendants challenge the district court’s ruling that there is a substantial likelihood that
the plaintiffs will succeed on their free speech, expressive association, equal protection,
and void-for-vagueness claims. On appeal, we review the grant of a preliminary
injunction for abuse of discretion. See id. A district court abuses its discretion in this
regard when it “relies upon clearly erroneous findings of fact, improperly applies the
governing law, or uses an erroneous legal standard.” Id.
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 10
1. First Amendment Free Speech Claim
The First Amendment prohibits the government from “abridging the freedom of
speech.” U.S. Const. Amend. I. Simply because the government may own a piece of
property, however, does not mean that property is open to all types of expressive activity
at all times. “[T]he State, no less than a private owner of property, has power to preserve
the property under its control for the use which it is lawfully dedicated.” Perry Educ.
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983). To determine the
constitutionality of a government restriction on speech on publicly-owned property, we
consider three questions: (1) whether the speech is protected under the First Amendment;
(2) what type of forum is at issue and, therefore, what constitutional standard applies;
(3) whether the restriction on speech in question satisfies the constitutional standard for
the forum. See S.H.A.R.K. v. Metro Parks Serving Summit County, 499 F.3d 553, 559
(6th Cir. 2007).
a. Forum Analysis
There is no question that the plaintiffs’ proposed press conference and rally are
expressive activities protected under the First Amendment. The more challenging
question is what kind of forum City Hall’s interior constitutes. The Supreme Court has
recognized three types of public fora: the traditional public forum, the designated public
forum, and the limited public forum. See Pleasant Grove v. Summum, 129 S. Ct. 1125,
1132 (2009). A nonpublic forum, in contrast, is a government-owned property that is
not by tradition or governmental designation “a forum for public communication.”
Helms v. Zubaty, 495 F.3d 252, 256 (6th Cir. 2007). The type of forum determines the
applicable constitutional standard for restrictions on expressive activities. See Summum,
129 S. Ct. at 1132.
i. Traditional Forum
Traditional public fora include sidewalks, parks, and other areas that by
“tradition or by government fiat” are open to public assembly and debate. Helms, 495
F.3d at 255 (quoting Perry, 460 U.S. at 45). Restrictions on speech in a traditional
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 11
public forum receive strict scrutiny; the government may exclude a speaker from a such
a forum “only when the exclusion is necessary to serve a compelling state interest and
the exclusion is narrowly drawn to achieve that interest.” Cornelius v. NAACP Legal
Defense & Educ. Fund, Inc., 473 U.S. 788, 800 (1985).
If a publicly-owned property is not a traditional public forum, heightened First
Amendment scrutiny is not automatic. See id., 473 U.S. at 800-801. A government may,
however, transform a publicly-owned property into a public forum by making it “a place
or channel of communication for use by the public at large for assembly and speech, for
use by certain speakers, or for the discussion of certain subjects.” Id. at 802. A
government “does not create a public forum by inaction or by permitting limited
discourse, but only by intentionally opening a nontraditional forum for public
discourse.” Id. Governmental intent is the “touchstone” of a court’s analysis in
determining whether it has created a public forum. Kincaid v. Gibson, 236 F.3d 342,
348-349 (6th Cir. 2001) (en banc). To determine governmental intent, courts “look to
the government’s policy and practice with respect to the forum as well as to the nature
of the property at issue and its ‘compatibility with expressive activity.’” Id. at 349
(quoting Cornelius, 473 U.S. at 802).
ii. Designated Forum
The government creates a designated public forum when it opens a piece of
public property to the public at large, treating as if it were a traditional public forum.
See Parks v. Finan, 385 F.3d 694, 695-696, 699 (6th Cir. 2004) (grounds of state capitol,
opened by state government for public expressive activities on a permit system, are
either a traditional public forum or designated public forum); Church of the Rock v. City
of Albuquerque, 84 F.3d 1273, 1278 (10th Cir. 1996) (city-owned senior center is a
designated public forum because, although “not a traditional location of public debate
or assembly,” the city opened it “to the public for discussive purposes” by permitting
“lectures and classes on a broad range of subjects by both members and non-members”).
As the Supreme Court held in Summum, “Government restrictions on speech in a
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 12
designated public forum are subject to the same strict scrutiny as restrictions in a
traditional public forum.” 129 S. Ct. at 1132 (citing Cornelius, 473 U.S. at 802).
iii. Limited Forum
A government entity may “create a forum that is limited to use by certain groups
or dedicated solely to the discussion of certain subjects.” Summum, 129 S. Ct. at 1132.
In Good News Club v. Milford Central Sch., 533 U.S. 98, 102-03, 106-07 (2001), the
Supreme Court held that a public school created a limited public forum when it opened
its building after hours for public meetings, subject to the permission of the
administration. The government may restrict speech in a limited public forum as long
as the restrictions do “not discriminate against speech on the basis of viewpoint” and are
“reasonable in light of the purpose served by the forum.” Id. at 106-07; see also
Summum, 129 S. Ct. at 1132.1
iv. Nonpublic Forum
By contrast, a nonpublic forum is a publicly-owned property that is not by
tradition or governmental designation “a forum for public communication.” Helms, 495
F.3d at 256. The government may limit access to a nonpublic forum “based on subject
matter and speaker identity so long as the distinctions drawn are reasonable in light of
the purpose served by the forum and are viewpoint neutral.” Id. (quoting Cornelius, 473
U.S. at 806). In Helms, for example, we concluded that the reception area of a judge’s
office was a nonpublic forum despite the judge’s “open-door policy” designed to
accommodate individual members of the public to visit his office to speak with him. Id.
at 256-57. The “small reception area” was only eight feet from an office suite the judge
1
In Summum, the Supreme Court clarified that the designated public form and the limited public
forum are distinct forum types and that restrictions on speech in a limited public forum receive lesser
scrutiny than those in a designated public forum. 129 S. Ct. at 1132. This ruling resolves the confusion
over terminology and scrutiny levels noted by this court and others after the Supreme Court first articulated
the concept of a “limited public forum” in Good News Club. See Gilles v. Garland, 281 F. App’x 501, 513
(6th Cir. 2008) (J. Moore, concurring); United Food & Commercial Workers Local 1099 v. City of Sidney,
364 F.3d 738, 750 (6th Cir. 2004) (noting confusion about terminology and proper scrutiny levels but
declining to “delve deeply into the nuances of designated versus limited public forums” because it was
unnecessary to the holding); Citizens for Community Values, Inc. v. Upper Arlington Public Library Bd.
of Trs., 2008 WL 3843579, at *5 n.3 (S.D. Ohio 2008) (noting confusion in the Sixth Circuit and elsewhere
about terminology and proper scrutiny levels).
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 13
shared with several other county officials. Id. at 257. We held that the judge did not
intend “to create a public ‘forum for expressive activity’” open to “prolonged sit-ins”
simply by making himself accessible to individuals seeking to discuss public matters
with him. Id.
In this case, by opening the interior spaces of Cincinnati’s city hall to private
groups under the aegis of Administrative Regulation #5, the City has not created a
traditional public forum because the regulation does not make City Hall’s interior space
as open to public discourse as a sidewalk or park. Nor does the regulation allow the City
to treat that space as a designated public forum. Instead, Administrative Regulation #5
has created, at most, a limited public forum like that described in Good News.
Moreover, even if we were persuaded by the City’s argument that the regulation, as
revised, creates only a nonpublic forum,2 the result would be the same, because
government limitations on speech in both a limited public forum and a nonpublic forum
receive the same level of scrutiny. In both instances, any restrictions must be
“reasonable and viewpoint neutral.” Summum, 129 S. Ct. at 1132; see also Helms, 495
F.3d at 256.
Because the requirement of sponsorship or collaboration in this case is facially
viewpoint neutral, the remaining issue is whether the requirement is reasonably related
to the purpose of the forum. The stated purpose of the forum is to allow city officials to
2
The City argues that under the Supreme Court’s ruling in Ysursa v. Pocatello Educational
Association, 129 S. Ct. 1093, 1098 (2009), government restrictions on speech in nonpublic fora receive
only rational basis review and need not be viewpoint-neutral. We reject this argument because the Court’s
reasoning in Ysursa is entirely unrelated to forum analysis. In that case, the Court upheld Idaho’s decision
to ban local government employers from allowing union payroll deductions for political purposes against
a First Amendment challenge. See id. at 1097-98. The Court observed that the state is “not required to
assist others in funding the expression of particular ideas, including political ones,” and noted that a state’s
decision not to do so by permitting payroll deductions “is not an abridgement of the union’s speech” but,
rather, the state’s refusal to be enlisted in support of the union’s speech activities. Id. at 1098. Because
a government’s “decision not to subsidize the exercise of a fundamental right does not infringe the right,”
the court applied rational basis review to plaintiff’s claim. Id.
The Court’s opinion in Ysursa, however, has no bearing on the scrutiny level applicable to
Administrative Regulation #5, because the Ysursa Court did not engage in forum analysis in order to
resolve the First Amendment dispute in that case. Hence, we reject the City’s attempt to characterize
COAST’s request to access city hall for its rally as a request that the City subsidize its political speech by
providing space. Of course, the City could altogether close the interior spaces of city hall to expressive
activities by private groups if it chose to do so. The City, however, maintains a policy permitting private
groups to engage in speech activities in City Hall with the discretionary sponsorship of authorized officials.
As long as this policy exists, forum analysis applies.
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 14
exercise their rights and responsibilities under the City Charter. But, Administrative
Regulation #5 permits authorized officials to open spaces in city hall to private parties
for events that they do not attend or assist in organizing. As a result, the sponsorship or
collaboration requirement, as drafted, bears little relationship to any official duties under
the City Charter. We therefore hold that the district court did not abuse its discretion in
concluding that plaintiffs have shown a likelihood of success on the merits of their facial
First Amendment challenge to the sponsorship requirement under the public forum
doctrine.
b. Governmental Speech
On appeal, the City raises for the first time an argument that events inside city
hall are exempt from First Amendment scrutiny altogether because they represent
“government speech.” This claim arises from the Supreme Court’s recent decision in
Pleasant Grove v. Summum, a 2009 opinion that was released after the district court
issued the preliminary injunction and the City filed its notice of appeal. See 129 S. Ct.
1125, 1132 (2009). We conclude that this argument fails on its merits.
In Summum, a public park erected a donated Ten Commandments monument but
rejected a monument representing another religious organization’s tenets. Id. at 1129-
30. The court found no constitutional violation, holding that the First Amendment “does
not regulate government speech,” and that a government entity is entitled to “select the
views that it wants to express.” Id. at 1131. In so holding, however, the court affirmed
that “[w]hile government speech is not restricted by the Free Speech Clause, the
government does not have a free hand to regulate private speech on government
property.” Id. at 1132. In concluding that the Ten Commandments monument was
government speech rather than private speech on government land, the court noted that
“[g]overnments have long used monuments to speak to the public” and that the public
reasonably interprets “privately financed and donated monuments that the government
accepts and displays to the public on government land” as conveying the government’s
views. Id. at 1133. See also ACLU v. Bredesen, 441 F.3d 370, 375 (6th Cir. 2006)
(holding that a “Choose Life” license plate is government speech for First Amendment
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 15
purposes because “the government determines [the] overarching message and retains the
power to approve every word disseminated”) (citing Johanns v. Lifestock Mktg. Ass’n,
544 U.S. 550, 560-61 (2005)).
Under the Court’s reasoning in Summum, the activities that take place in
Cincinnati’s city hall are not “government speech.” Although government speech may
involve private individuals, the connection between the events that take place inside city
hall under Administrative Regulation #5 and any official government views is simply
too attenuated. As we have noted, sponsoring city officials need not be involved directly
in the activities that take place in city hall. Moreover, no one can reasonably interpret
a private group’s rally or press conference as reflecting the government’s views simply
because it occurs on public property. Historically, governments have exercised strong
“editorial control over donated monuments,” Summum, 129 S. Ct. at 1133, while private
individuals can apparently access the interior of Cincinnati’s city hall for assemblages
on the whim of any authorized official.
Thus, we conclude that the doctrine of government speech does not prevent
applying First Amendment scrutiny in this case.
2. First Amendment Expressive Association Claim
The district court held that the plaintiffs have shown likely success on their claim
that the sponsorship requirement violates the First Amendment right of expressive
association. Applying strict scrutiny, the district court reasoned that in requiring
collaboration with city officials, “Administrative Regulation #5 forces groups, such as
COAST, to accept members it does not desire” and concluded that “there are means
significantly less restrictive of associational freedoms by which Defendants could
control the use of the interior of City Hall.” The City argues that the district court erred
because that Administrative Regulation #5 does nothing to interfere with COAST’s
membership. We agree.
The First Amendment extends beyond the right to speak to encompass the “right
of expressive association,” i.e., the “right to associate for the purpose of speaking.”
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 16
Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 68 (2006).
The right protects “a group’s membership decisions” and also protects against laws that
make “group membership less attractive” without “directly interfer[ing] with an
organization’s composition,” such as requiring groups to disclose their membership lists
or imposing penalties “based on membership in a disfavored group.” Id. at 69 (citing
Brown v. Socialist Workers ‘74 Campaign Comm. (Ohio), 459 U.S. 87, 101-02 (1982);
Healy v. James, 408 U.S. 169, 180-84 (1972)). “The forced inclusion of an unwanted
person in a group infringes the group’s freedom of expressive association if the presence
of that person affects in a significant way the group’s ability to advocate public or
private viewpoints.” Boy Scouts of America v. Dale, 530 U.S. 640, 648 (2000).
In analyzing an expressive association claim, courts use a three-step process.
The first determination is whether a group is entitled to protection. See id. at 655. A
group need not associate “for the ‘purpose’ of disseminating a certain message” to be
protected; it is enough that a group “engage[s] in expressive activity that could be
impaired.” Id. Political advocacy groups like COAST are the paradigmatic expressive
associations entitled to protection. Second, courts ask whether the government action
in question “significantly burden[s]” the group’s expression, affording deference “to an
association’s view of what would impair its expression.” Id. at 653. Lastly, the
government’s interest in any restriction must be weighed against plaintiff’s right of
expressive association. See id. at 656.
A government action does not interfere with the right of expressive association
unless it directly or indirectly interferes with group membership. In Forum for
Academic & Institutional Rights, the Supreme Court held that requiring law schools to
allow military recruiters on campus as a condition of receiving federal funds did not
significantly burden associational rights because “[r]ecruiters are, by definition,
outsiders who come onto campus for the limited purpose of trying to hire students.” 547
U.S. at 69. The statute at issue, therefore, did not “force a law school ‘to accept
members it does not desire.’” Id. The right of expressive association does not shield
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 17
groups from mere “interaction” with non-members, and a group cannot invoke it simply
by claiming interaction “would impair its message.” Id. (quoting Dale, 530 U.S. at 653).
In this case, the plaintiffs’ expressive association claim fails because nothing in
Administrative Regulation #5 affects the internal membership decisions of groups
seeking to use city hall for expressive activities. Officials who “sponsor” or
“collaborate” with groups to use the interior spaces do not become members of the group
– they are outsiders with whom groups must interact only for the limited purpose of
accessing the city hall space. Indeed, Administrative Regulation #5 requires so little
interaction that the sponsoring official apparently need not help organize or even attend
a sponsored event. Administrative Regulation #5, therefore, does not “significantly
burden” COAST’s constitutional right of association, and the district court erred in
concluding that the plaintiffs’ expressive association claim is substantially likely to
succeed.
3. Equal Protection Claim
The district court also concluded that the plaintiffs had shown likely success on
their equal protection claim. Applying strict scrutiny, the district court held that
Administrative Regulation #5 was not narrowly tailored to effect a compelling
government interest. On appeal, the defendants argue that the district court erred in
applying strict scrutiny and that plaintiffs have no cognizable equal protection claim.
We agree.
The Equal Protection Clause “protects against invidious discrimination among
similarly situated individuals or implicating fundamental rights.” Scarbrough v. Morgan
City Bd. of Ed., 470 F.3d 250, 260 (6th Cir. 2006). “The threshold element of an equal
protection claim is disparate treatment; once disparate treatment is shown, the equal
protection analysis to be applied is determined by the classification used by government
decision-makers.” Id. Strict scrutiny is appropriate only if a classification “infringes on
a class of people’s fundamental rights [or] targets a member of a suspect class.” Id.
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 18
Neither the plaintiffs nor the district court provide more than cursory analysis of
why plaintiffs’ equal protection claim should receive strict scrutiny. The classification
at issue is, presumably, those groups who collaborate with authorized officials to access
city hall and those who do not. But because such “collaborators” and “non-
collaborators” are not suspect classifications, strict scrutiny is appropriate only if the
classification infringes on fundamental rights.
We conclude that strict scrutiny is inapplicable in this case. The sponsorship
requirement under Administrative Regulation #5 is minimal because an official need not
be actively involved with an event to sponsor it. Under the public forum doctrine
described above, government officials may open publicly-owned spaces to “certain
groups or for the discussion of certain topics.” Good News Club, 533 U.S. at 106-07.
Granting access to one group and not another inevitably involves classification – those
invited into the forum and those who are not. The forum analysis applied above assumes
such classification but does not extend strict scrutiny to limited public fora and
nonpublic fora. The appropriate First Amendment standard in this case is viewpoint
neutrality and rational relationship to the purpose of the forum, not strict scrutiny. Id.
Thus, the district court erred in applying strict scrutiny to determine whether
plaintiffs had shown a likelihood of success on their equal protection claim.
4. Void-For-Vagueness Claim
The district court concluded that COAST has shown a substantial likelihood of
success on its claim that Administrative Regulation #5 is unconstitutionally vague. We
agree.
In pursuing a void-for-vagueness claim, a plaintiff must establish to a court’s
satisfaction that “[a regulation’s] prohibitive terms are not clearly defined such that a
person of ordinary intelligence can readily identify the applicable standard for inclusion
and exclusion.” United Food & Commercial Workers Union Local 1099 v. Southwest
Ohio Regional Transit Auth., 163 F.3d 341, 358-59 (6th Cir. 1998) (citing Grayned v.
City of Rockford, 408 U.S. 104, 108 (1972)). The void-for-vagueness doctrine not only
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 19
ensures that laws provide “fair warning” of proscribed conduct, but it also protects
citizens against the impermissible delegation of basic policy matters “for resolution on
an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory
application.” UFCW, 163 F.3d at 358-59 (citing Grayned, 408 U.S. at 108-109).
Without “clear standards guiding the discretion of public officials” with enforcement
authority, there is a risk that those officials will “administer the policy based on
impermissible factors.” UFCW, 163 F.3d at 358-59. As a result, laws or regulations
that, for example, give officials “unbridled discretion over a forum’s use” are
impermissible because of the “danger of censorship and of abridgement of our precious
First Amendment freedoms.” Id. A statute that fails to constrain “an official’s decision
to limit speech” with “objective criteria” is unconstitutionally vague. Id.
In UFCW, for example, we held that a policy governing the selection of
advertisements for city busses was unconstitutionally vague on its face. Id. at 363. The
policy prohibited “controversial” advertisements and required those selected to be
“aesthetically pleasing” without any further guidance as to the meaning of these criteria.
Id. at 359-60. We held that these terms were so vague that they gave officials “the
power to deny a proposed ad that offends the officials’ subjective beliefs and values
under the guise that the ad is aesthetically displeasing [or controversial].” Id. at 360.
Because of this “danger of arbitrary and discriminatory application,” the court in UFCW
found that the plaintiff’s due process challenge was substantially likely to succeed on the
merits. Id.
In this case, Administrative Regulation #5 provides even less guidance to
officials than the advertising policy in UFCW. The parties stipulate that the revised
version of Administrative Regulation #5, as did the original, gives complete discretion
to council members and department heads to select whom they will sponsor. The only
direction provided is that the purpose of the interior of city hall is to allow City officials
“to exercise the rights and responsibilities specified in the Charter of the City of
Cincinnati.” Without further specificity, this directive offers no meaningful guidance.
No. 08-4679 Miller, et al. v. City of Cincinnati, et al. Page 20
We conclude that the plaintiffs have established a substantial likelihood of success with
regard to the merits of their void-for-vagueness claim.
III. CONCLUSION
Because the plaintiffs have established a substantial likelihood of success on their
free speech and void-for-vagueness claims, there appears to be no issue as to the
existence of the remaining preliminary injunction factors. As we have previously noted,
“even minimal infringement upon First Amendment values constitutes irreparable injury
sufficient to justify injunctive relief.” Newsom v. Norris, 888 F.2d 371, 378 (6th Cir.
1989). When a constitutional violation is likely, moreover, the public interest militates
in favor of injunctive relief because “it is always in the public interest to prevent
violation of a party’s constitutional rights.” Connection Distributing Co. v. Reno, 154
F.3d 281, 288 (6th Cir. 1998).
We therefore conclude that the district court properly enjoined enforcement of
Administrative Regulation #5 on the basis of the plaintiffs’ free speech and void-for-
vagueness claims. On these grounds, we AFFIRM the order of the district court and
REMAND the case for further proceedings.