International Caucus of Labor Committees v. City of Montgomery

United States Court of Appeals,

Eleventh Circuit.

No. 94-6699.

The INTERNATIONAL CAUCUS OF LABOR COMMITTEES, Richard Boone,
Reverend, individually and as a member of International Caucus of
Labor Committees, Gary D. Kanitz, individually and as a member of
International Caucus of Labor Committees, Gerald E. Berg,
individually and as a member of International Caucus of Labor
Committees, Plaintiffs-Appellees,

v.

The CITY OF MONTGOMERY, The City of Montgomery Police Department,
John Wilson, in his official capacity as Chief of Police of the
City of Montgomery, Defendants-Appellants.

July 17, 1996.

Appeal from the United States District Court for the Middle
District of Alabama. (No. CV 93-H-519-N), Truman M. Hobbs, Judge.

Before ANDERSON and COX, Circuit Judges, and RONEY, Senior Circuit
Judge.

RONEY, Senior Circuit Judge:

This case involves a challenge to the constitutionality of a

city policy banning tables from city sidewalks. On two occasions,

plaintiffs, The International Caucus of Labor Committees and three

of its members, were distributing literature from a card table

placed on the sidewalk when police told them to leave or submit to

arrest. The district court found that The International Caucus is

an organization devoted to altering the contemporary political

landscape. It distributes literature and recruits new members in

several ways. One of its preferred ways is to place tables in

public areas in an effort to attract people to take its literature

from these tables. Plaintiffs wrote a letter to the City

explaining their desire to promote their views "by setting up

literature tables at public sites." The City's responsive letter
banned tables from city sidewalks. The letter stated in relevant

part:

Your actions do not violate the laws of this city unless you
impede the orderly flow of traffic in the streets and at the
street corners.

Your organization will not be allowed to set up tables or
booths on the sidewalks of this city. These tables or booths
would create a partial blockage of pedestrian traffic and
therefore will not be allowed on the sidewalks. Your
organization may set up tables or booths on private property
where you have the permission of the property owner.

The City maintains that its policy is a complete ban of any tables

on all sidewalks.

Plaintiffs sued the City of Montgomery, its police department

and police chief, seeking a declaration that the City's policy

violated plaintiffs' First Amendment right of free speech and to

enjoin the City from denying plaintiffs the right to distribute

political literature from tables placed on the sidewalks.

The district court, in a carefully constructed opinion,

entered a declaratory decree that the City's ban excessively and

unnecessarily infringes on the plaintiffs' rights guaranteed by the

First Amendment. The court initially held that the placement of

tables on city sidewalks is subject to First Amendment scrutiny and

is therefore subject to the time, place and manner test set out in

Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746,

2753-54, 105 L.Ed.2d 661 (1989). The court then held first, the

City's ban on tables is content neutral; second, it is

inappropriate to conclude on this record that the City's interests

are significant ones; third, even if the City's interests are

viewed as significant, the regulation is not narrowly tailored to

serve those interests; and fourth, since the ban fails the narrow
tailoring requirement, the court need not decide whether the ban

leaves ample alternative means of communication open. The court

denied an injunction with confidence that the defendants would

abide the declaration that the ban is unconstitutional.

We reverse on the ground that a ban against tables on

sidewalks does not implicate the First Amendment, and therefore we

do not review the correctness of the district court's time, place

and manner decision.

Preliminarily, there was some question as to whether the

issue was properly before the Court. Some consideration has been

given by the panel and in the supplemental briefing and reargument

to the fact that the policy here challenged is in the form of a

letter from the City Attorney, rather than being incorporated in a

duly adopted city ordinance. The parties agree, however, that the

policy of banning all tables from city sidewalks is the fixed

policy of the City which will be enforced by the police, the

transgression of which would lead to trouble for the plaintiffs.

The parties are entitled to a decision on the constitutionality of

such a policy. This Court has previously considered the

constitutionality of an "unwritten" scheme for regulating newsracks

in interstate areas. Sentinel Communications Co. v. Watts, 936

F.2d 1189 (11th Cir.1991).

The cases clearly hold that the distribution of literature is

a type of speech protected by the First Amendment. United States

v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983);

Schneider v. State, 308 U.S. 147, 162, 60 S.Ct. 146, 151, 84 L.Ed.

155 (1939); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82
L.Ed. 949 (1938). The Supreme Court has repeatedly held that

public streets and sidewalks are traditional public fora. Frisby

v. Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 2500, 101 L.Ed.2d

420 (1988); Boos v. Barry, 485 U.S. 312, 318, 108 S.Ct. 1157,

1162, 99 L.Ed.2d 333 (1988); Perry Education Assn. v. Perry Local

Educators' Assn., 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d

794 (1983).

There is little authority, however, to guide a decision as to

whether the use of a portable table on a public sidewalk is

constitutionally protected by the First Amendment. The Supreme

Court apparently has never addressed that issue. Only the Seventh

Circuit has directly held that the erection of a table is not

constitutionally protected free speech. "Subsection E (of the

Regulation) prohibits the erection of a table, chair or other

structure in areas other than leased space.... Because this

section does not facially restrict the exercise of guaranteed

rights, we do not find it is constitutionally impermissible."

International Society for Krishna Consciousness v. Rochford, 585

F.2d 263, 270 (7th Cir.1978). In a case involving an almost

identical regulation where "the plaintiffs alleged only that they

have been prohibited from setting up tables," the same court

declined to "overrule Rochford on this point." International

Caucus of Labor Comms. v. City of Chicago, 816 F.2d 337, 339 (7th

Cir.1987). This authority is somewhat tainted by the failure of

the plaintiff in Krishna to challenge that section of the

regulation. But after later approval, that is clearly the law in

the Seventh Circuit.
 No other circuits appear to have dealt with the point.

Several district courts have struggled with the issue, as did the

district court in this case. Two cases in the Southern District of

Florida go opposite ways. In International Caucus of Labor Comms.

v. Metropolitan Dade County, Fla., 724 F.Supp. 917, 920

(S.D.Fla.1989), Judge Zloch followed the Seventh Circuit cases in

holding "that the use of tables is not expressive conduct protected

by the First Amendment." He contrasted this with the use of signs

which were held to be classified as expressive conduct protected by

the First Amendment. In a later case which did not refer to that

decision, Judge King, torn between the decision involving

newsstands in Graff v. Chicago, 9 F.3d 1309, 1314 (7th Cir.1993)

("no person has a constitutional right to erect or maintain a

structure on the public way."), cert. denied, --- U.S. ----, 114

S.Ct. 1837, 128 L.Ed.2d 464 (1994), and the newsracks decision by

this Court in Sentinel Communications Co. v. Watts, 936 F.2d 1189,

1196 (11th Cir.1991) ("there is "no doubt' that the right to

distribute and circulate newspapers through the use of newsracks is

protected by the first amendment."), decided that portable tables

for selling T-shirts carrying protected speech message "more

closely resemble the newsracks in the Sentinel case" and fell

within the constitutional protection of expressive conduct. One

World One Family Now v. City of Key West, 852 F.Supp. 1005 (S.D.Fla

1994).

In Nevada, the district court followed Judge King's decision

in holding that a portable table "facilitates" the freedom to

distribute literature, distinguishing chairs, umbrellas, and boxes
which are not entitled to First Amendment protection. One World

One Family Now Inc. v. State of Nev., 860 F.Supp. 1457, 1463

(D.Nev.1994).

The district court in this case focused on the multitude of

newsrack cases to conclude that the table facilitates distribution

of information. International Caucus of Labor Comms. v. City of

Montgomery, 856 F.Supp. 1552 (M.D.Ala.1994). It cast off Judge

Zloch's decision and the Seventh Circuit decision as not

reconcilable with longstanding First Amendment principles. The

court thus held that the use of tables on a public sidewalk to

distribute literature warrants consideration under the First

Amendment. After finding that the complete ban was content

neutral, the district court put the burden on the City to identify

the interest of the City being served by the ban and to show that

the ban was narrowly tailored to meet that interest. No

consideration was given to any concern like that expressed by the

judge who dissented from the dismissal of the complaint in the

Seventh Circuit's International Caucus case, a concern which

reflected a reasonableness standard as being appropriate: "Given

the hundreds or thousands of organizations or individuals who might

want to set up a table at O'Hare, a prohibition against this kind

of action seems not at all unreasonable." International Caucus of

Labor Comms. v. City of Chicago, 816 F.2d 337, 341 (7th Cir.1987).

In any event, with the lack of compelling authority or

reasoning to the contrary, we follow the lead of the Seventh

Circuit and hold that the prohibition against placing any table on

a public sidewalk, for whatever purpose, does not implicate the
First Amendment. The policy of the City implementing the ban need

not be subjected to the various requirements demanded when an

action infringes upon First Amendment speech.

First, in our judgment, the use of the newsrack cases as

precedent for consideration of what other items or structures may

be placed upon a public sidewalk is misguided. Newsracks are sui

generis. They are best explained by Justice Holmes' remark that "a

page of history is worth a volume of logic." New York Trust Co. v.

Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921).

Since the replacement of newsboys, who had free reign to peddle

newspapers in public places, the courts and public authorities have

spent decades working out the law concerning the placement of

newsracks in public places. Because of the long tradition of sale

of newspapers upon public streets which underlies all of that law,

it is a mistake to import wholesale reasoning of those cases into

the consideration of the regulation of other devices which might

occupy public sidewalks.

Second, without the newsrack cases, there is virtually no

authority which would prevent a City from deciding what can be

placed upon a public sidewalk and what cannot. It is public

property. The City authorities are in charge of that public

property.

Third, as long as the regulations do not discriminate in an

unconstitutional way, remain content neutral, and do not deprive

any members of the public of the use of the property for its

intended purpose, the City should not have to carry the burden to

defend those regulations in federal court. Thus, in a case of this
kind, the burden is on the plaintiff to show why any portion of

public property should be burdened for private use. Aside from its

First Amendment argument, the plaintiff here has not demonstrated

any fact which would indicate that it could carry that burden.

Fourth, if the erection of a card table could ever be endowed

with some modest First Amendment protection, such protection should

only be afforded upon the plaintiffs' showing that use of the card

table is necessary to the exercise of free speech rights. This is

a threshold showing that must be made before considering whether

the regulation involved is content neutral, serves a significant

governmental interest, and is narrowly tailored enough to pass

constitutional muster. The record in this case demonstrates

nothing more than that use of a card table would be convenient, not

that it is so necessary that without it the plaintiff's message

would not be heard.

It should be recognized that a recurring problem with street

regulation is that it allows the police to make ad hoc

determinations about obstruction, interference with traffic, and

nuisance factors so the City would run the risk that the regulation

would be unevenly and discriminatorily applied. Precisely because

of these considerations the authorities here settled on a complete

ban, easy to read, easy to understand, and applicable to all. The

policy under consideration here fully satisfies those concerns.

The district court erred in declaring the policy

unconstitutional.
REVERSED.

ANDERSON, Circuit Judge, dissenting:
 The majority today holds that the use of a table to facilitate

speech enjoys no First Amendment protection at all unless such use

is "necessary to the exercise of First Amendment rights." Majority

at 2655. Because I believe that this is not the standard that has

evolved through Supreme Court First Amendment jurisprudence, I

dissent.

The Supreme Court has not expressly set forth a test for

determining the degree to which conduct must be linked to protected

speech to be entitled to some level of constitutional protection.1

The closest the Court has come to articulating such a test is found

in City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 108

S.Ct. 2138, 100 L.Ed.2d 771 (1988). The city in Plain Dealer

passed an ordinance prohibiting the private placement of any

structure on public property, and it used that ordinance to deny

the publisher of a local newspaper permission to place newsracks on

sidewalks. Id. at 753, 108 S.Ct. at 2141-42. The Court indicated

that regulation or restriction of conduct implicates the First

Amendment when the "conduct [is] commonly associated with

expression." Id. at 759, 108 S.Ct. at 2145.

The majority would limit to their facts the Plain Dealer

opinion and similar cases involving newsracks, based on a perceived

historical distinction between newsracks and other devices that

facilitate speech. However, the Supreme Court has never drawn such

1
See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-7, at 827
(2d ed. 1988) ("The trouble with the distinction between speech
and conduct is that it has less determinate content than is
sometimes supposed. All communication except perhaps that of the
extrasensory variety involves conduct ... Expression and conduct,
message and medium, are thus inextricably tied together in all
communicative behavior....")
a distinction. To the contrary, the Court has held that the First

Amendment is implicated in regulations banning newsracks containing

commercial publications, see City of Cincinnati v. Discovery

Network, Inc., 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993),

governing the amplification of music, see Ward v. Rock Against

Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989),

restricting the use of sound trucks, see Kovacs v. Cooper, 336 U.S.

77, 69 S.Ct. 448, 93 L.Ed. 513 (1949), and prohibiting the use of

loudspeakers, see Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92

L.Ed. 1574 (1948).

Had the Court adopted the majority's requirement that such

devices be "necessary" to the speech itself, it would not have

conducted the "time, place and manner" inquiry that it did in each

of the cases cited above. It would simply have held that sound

trucks, amplifiers and commercial newsracks are not "necessary" to

the expression they broadcast (for surely the same expression could

have been made without them), and thus are entitled to no

constitutional protection whatsoever. This, however, the Court did

not do.2 Instead, the Court, consistent with its prior

2
It does not stretch the analogy to say that newsracks,
loudspeakers and tables similarly enlarge the potential audience
for a speaker's message. Just as a loudspeaker increases the
number of people who can hear a spoken message, so too newsracks
spread throughout a city increase the number of people who can
receive a printed message. In the same way, a table on which
literature is placed and to which posters are attached, as here,
increases the potential audience for the message when compared
with the number of people that could be reached by speaking with
each individually. These devices all enhance the delivery of
protected speech, and though they are not entitled to the same
protections as the speech itself, they are entitled to the
protections afforded by the "time, place and manner" test. As
the Supreme Court noted in Metromedia, Inc., v. City of San
Diego, 453 U.S. 490, 502, 101 S.Ct. 2882, 2889-90, 69 L.Ed.2d 800
jurisprudence, endeavored to balance the individual right of free

expression with the "authority to give consideration, without

unfair discrimination, to time, place and manner in relation to

other proper uses of the streets." Cox v. New Hampshire, 312 U.S.

569, 576, 61 S.Ct. 762, 766, 85 L.Ed. 1049 (1941); see also Plain

Dealer, 486 U.S. at 763, 108 S.Ct. at 2147 ("Presumably in the case

of an ordinance that completely prohibits a particular manner of

expression ... the Court would apply the well-settled time, place

and manner test.").

In my view, the proper threshold question is whether tables,

when used to display expressive media such as books and posters,

are commonly associated with a protected form of expression. A

summary review of cases from Federal courts around the country

reveals that tables are frequently used by those seeking to

disseminate ideas and distribute literature on sidewalks, in

airports, and in areas where people gather. See, e.g., United

States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571

(1990) (table set up on sidewalk by group soliciting contributions

and distributing literature); PruneYard Shopping Center v. Robins,

(1981):

Billboards, then, like other media of communication,
combine communicative and noncommunicative aspects. As
with other media, the government has legitimate
interests in controlling the noncommunicative aspects
of the medium ... but the First and Fourteenth
Amendments foreclose a similar interest in controlling
the communicative aspects. Because regulation of the
noncommunicative aspects of a medium often impinges to
some degree on the communicative aspects, it has been
necessary for the courts to reconcile the government's
regulatory interest with the individual's right to
expression.
447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (table set up on

plaza of shopping mall by students seeking to solicit signatures

for petitions); Hedges v. Wauconda Comm. Unit School Dist. No.

118, 9 F.3d 1295 (7th Cir.1993) (upholding school policy requiring

that students distribute religious literature from table); Paulsen

v. Gotbaum, 982 F.2d 825 (2nd Cir.1992) (upholding city rule

restricting distribution of literature to stationary tables);

Northeast Women's Center, Inc., v. McMonagle, 939 F.2d 57 (3rd

Cir.1991) (information table set up by protesters at abortion

clinic); Birdwell v. Hazelwood School District, 491 F.2d 490 (8th

Cir.1974) (information table set up by military recruiter in hall

of high school); One World One Family Now, Inc., v. Nevada, 860

F.Supp. 1457 (D.Nev.1994) (tables set up on public sidewalks by

group selling message-bearing t-shirts); One World One Family Now

v. City of Key West, 852 F.Supp. 1005 (S.D.Fla.1994) (same); Texas

Review Society v. Cunningham, 659 F.Supp. 1239 (W.D.Tex.1987)

(tables used by university student organizations distributing

literature); International Society for Krishna Consciousness,

Inc., v. Rochford, 425 F.Supp. 734 (N.D.Ill.1977) (dispute over

regulations governing use of tables by groups soliciting in

airport); LeClair v. O'Neil, 307 F.Supp. 621 (D.Mass.1969) (table

set up in waiting room at welfare office by welfare advocacy

organization).

In fact, the plaintiffs in this case commonly use tables to

display and distribute their literature. See International Caucus

of Labor Committees v. City of Chicago, 816 F.2d 337 (7th

Cir.1987); International Caucus of Labor Committee v. Maryland
Dept. of Transportation, 745 F.Supp. 323 (D.Md.1990);

International Caucus of Labor Committees v. Dade County, Florida,

724 F.Supp. 917 (S.D.Fla.1989). The evidence presented in this

case demonstrates that the plaintiffs used a table in a manner

commonly associated with expression. The district court noted that

"[t]he tables upon which plaintiffs routinely display several

stacks of assorted books, pamphlets, and newspapers enhance

plaintiffs' ability to disseminate literature...." On both of the

occasions during which the plaintiffs were forced to remove their

table, the district court found that they were distributing

literature from the table, and that books and literature were

stacked on it.3

Applying the "commonly associated with protected speech" test

suggested by the Supreme Court, I would conclude that the

plaintiffs' use of tables to facilitate their speech enjoys some

level of First Amendment protection, and that the time, place and

manner analysis should be applied. This conclusion finds support

in the above cited Supreme Court cases involving the analogous

contexts of newsracks, sound amplification devices, and sound

trucks. My conclusion also finds strong support in a recent en

banc opinion of the Seventh Circuit. The plaintiffs' tables in

this case are very similar to the newsstands at issue in Graff v.

City of Chicago, 9 F.3d 1309 (7th Cir.1993) (en banc). One issue

3
The district court noted that at no time did the
plaintiffs' table obstruct the sidewalk or in any way impede the
flow of pedestrian traffic. In fact, the court found that,
"[f]rom the evidence it appeared that the objection [of
pedestrians] was to persons attending the display tables and
approaching pedestrians in an effort to interest them in
available literature."
addressed by the en banc court was whether or not a city's

regulation of the erection of a newsstand on public property

implicates the First Amendment. A plurality of five judges thought

that the erection and maintenance of a newsstand on public property

did not enjoy First Amendment protection at all. See id. at 1314-

17. However, seven judges disagreed. See id. at 1327-28 (Flaum,

J., with whom Cudahy, J., joins, concurring) (writing separately to

"emphasize my belief that the erection and maintenance of newspaper

stands qualifies" as "conduct commonly associated with expression

... [and thus] implicates the First Amendment's protection of

expression."); id. at 1333-34 (Ripple, J., with whom Cudahy, J.,

and Rovner, J., join, concurring) (finding "untenable" the

plurality's position that the placement of a newsstand does not

implicate expressive activity); id. at 1335-36 (Cummings, J., with

whom Bauer, J., and Fairchild, J., join, dissenting) (concluding

that the contention "that Chicago's newsstand ordinance does not

implicate the First Amendment at all because it merely regulates

conduct ... is insupportable."). Thus, a majority of the judges of

the Seventh Circuit concluded that First Amendment concerns were

implicated by the newsstand regulations, and that the time, place

and manner analysis should be employed.

The tables deployed by the plaintiffs here are similar to the

newsstand in Graff, in that the tables provide a method for

displaying expressive materials, and they also enable a single

person to display and distribute a larger volume and a greater

variety of expressive materials more effectively. Functionally, it

would seem to me that the tables in the instant case serve an
almost identical purpose as the newsstand in Graff.

I note that the majority relies heavily on Seventh Circuit

precedent in reaching its conclusion that tables used to facilitate

speech deserve no First Amendment protection whatsoever. See

Majority at 2653 ("Only the Seventh Circuit has directly held that

the erection of a table is not constitutionally protected free

speech."). However, the majority ignores the Seventh Circuit's

recent en banc Graff opinion. Moreover, the two older Seventh

Circuit panel opinions upon which the majority relies, Int. Caucus

of Labor Comm. v. City of Chicago, 816 F.2d 337 (7th Cir.1987) and

Intern. Soc. for Krishna Consc. v. Rochford, 585 F.2d 263, 271 (7th

Cir.1978), do not support the majority's position that the

plaintiffs' activity enjoys no First Amendment protection.

Several reasons persuade me that the majority's reading of

these two cases is mistaken. First, the relevant discussion in

Rochford is ambiguous and cryptic,4 and, as the majority notes,

Rochford 's precedential value is tainted because the relevant

section of the regulation at issue (that dealing with tables) was

not even challenged in that case. Second, the majority's reliance

upon the subsequent City of Chicago case is inappropriate, because

that case expressly treated the plaintiffs' conduct, including the

erection of tables, as enjoying First Amendment protection. City

of Chicago, 816 F.2d at 339 ("There has been no contention that

plaintiffs' activities are not protected by the First

4
The only issue on appeal in Rochford was a vagueness
challenge, but the court volunteered a single additional sentence
nonetheless: "Because this section does not facially restrict
the exercise of guaranteed rights, we do not find it is
constitutionally impermissible." Rochford, 585 F.2d at 270.
Amendment.").5 Finally, even if there had been some implication in

Rochford or City of Chicago that tables used to facilitate speech

enjoy no First Amendment protection, such precedent would have been

undermined by the subsequent en banc opinion in Graff, in which a

majority of the judges on the Seventh Circuit concluded that

newsstands on public property do enjoy First Amendment protection.

I would hold that the district court was correct to apply the

time, place and manner test set forth by the Supreme Court in Ward

v. Rock Against Racism. The majority declined to review the

district court's conclusions with regard to this test, resting

instead on the belief that no such analysis was necessary given the

absence of constitutional significance to be found in the

plaintiffs' table. I have registered my disagreement with this

analysis above; but in light of my inability to persuade my

brethren, I see no need to address the district court's application

of the time, place and manner test.

5
The relevant regulation in City of Chicago prohibited the
erection of tables or other structures in the public areas of
O'Hare airport. It appears that the panel majority thought it
was clear that the restrictions were "[r]easonable time, place
and manner restrictions, based on the nature of [the] place"
because of the city's "valid concerns about expediting the
processing of travelers." City of Chicago, 816 F.2d at 340.