Knowles v. City of Waco Texas

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 24, 2006

_______________________ Charles R. Fulbruge III
Clerk
No. 05-50598
_______________________

CAROLYN KNOWLES, ET AL.,

Plaintiffs,

CAROLYN KNOWLES; JOE RODRIGUEZ, JR.,

Plaintiffs-Appellants,

versus

CITY OF WACO, TEXAS,

Defendant-Appellee.

On Appeal from the United States District Court
for the Western District of Texas
No. 1:04-CV-430

Before JONES, Chief Judge, and WIENER and PRADO, Circuit Judges.

EDITH H. JONES, Chief Judge:

Appellants Carolyn Knowles and Joe Rodriguez, Jr. filed

suit in district court challenging the facial constitutionality of

two city ordinances that threaten their ability to protest

peacefully near an abortion clinic in Waco, Texas. The district

court dismissed their claims. Because the challenged ordinances

are unconstitutional time, place, and manner regulations, we

REVERSE the judgment of the district court and remand for entry of

appropriate relief against the City.
 I. BACKGROUND

Appellants pray, display anti-abortion signs, distribute

literature, and counsel clinic clients on the public sidewalk

outside an abortion clinic in Waco, Texas. Rodriguez has been

demonstrating outside the clinic for over ten years.

The clinic is located in a “school zone,” an area subject

to two ordinances challenged in this action: § 25-133(c) of Waco’s

Code of Ordinances (“School Zone ordinance”); and § 25-266 of

Waco’s Code of Ordinances (“Parade ordinance”). Waco characterizes

both ordinances as traffic regulations.1 The challenged School

Zone ordinance provides:

Sec. 25-133. School zones and crossing speed limits;
street activity and parades restricted.

* * *

(c) Street activity and parades are prohibited within
school zones . . . during the hours that school zones and
crossing speed limits are in effect or when warning
lights are flashing. Street activity shall mean a dance,
party, demonstration, or any other type of public
assemblage, where persons are collected together in one
place, and the collection of persons is reasonably
anticipated to obstruct the normal flow of traffic upon
a public street, sidewalk, or other public right of way.
Parade shall mean a procession of pedestrians, vehicles
and animals or any combination thereof along or upon a
street or sidewalk, park or other public place, which
does not comply with normal and usual traffic regulations
or controls. The term parade shall also include a race
or competition of any kind, which is reasonably
anticipated to obstruct the normal flow of traffic upon
a public street, sidewalk, or other public right of way.

The Parade ordinance provides:

1
See WACO, TEX., CODE OF ORDINANCES chap. 25 (“Traffic and Vehicles”).

2
 Sec. 25-266. Permit required; exceptions.

(a) No person shall engage in, participate in, aid,
form, or start any parade or other street activity
without first applying for and obtaining from the city a
permit for that parade or street activity.

(b) The requirement to obtain a permit shall not apply
to the following:

(1) Funeral processions, which shall be regulated
by section 25- 279.

(2) Students going to and from school classes or
participating in educational or recreational
activities under the immediate direction and
supervision of the proper school authorities.

(3) A governmental agency acting within the scope
of its functions.

(4) Processions or demonstrations at a fixed
location which is not a street or sidewalk.

Because the School Zone ordinance prohibits “parades” and

“street activity” in school zones only when school zone speed

limits are in effect or warning lights are flashing, such

activities are permitted there at other times subject, however, to

the Parade ordinance’s pre-activity permit requirement. Appellants

have engaged and plan to engage in both “street activity” and

“parades,” as defined by the ordinances. Their activity does not

fall within any of the exceptions to the parade permit requirement,

nor are they protected by the extratextual “wingspan” exception,

the City’s interpretation that excludes from the School Zone

ordinance people gathered together in school zones who remain at

least one arm’s length apart from each other.

3
 The City passed the School Zone and Parade ordinances in

response to a series of demonstrations that allegedly caused

traffic problems and compromised the safety of school children.

The recitals in and preamble to Ordinance No. 2004-0541, parts of

which were eventually codified as the School Zone and Parade

ordinances, reflect these traffic and safety concerns:

WHEREAS, the health, safety and welfare of persons who
use the public rights of way is of paramount importance
in the regulation of the public rights of way; and

WHEREAS, those persons who engage in street activity in
certain rights of way pose a serious risk and danger to
themselves and users of the public rights of way, as well
as impede the orderly flow of traffic; and

WHEREAS, those persons who engage in street activity in
certain public rights of way located in school zones
adjacent to schools during the hours buses and parents
are dropping off or picking up children pose a serious
risk and danger to the children arriving or leaving
schools, as well as impede the orderly flow of traffic;
and

WHEREAS, the City Council wishes to impose reasonable
time and place regulations to safely and effectively
control the public rights of way but also provide
adequate opportunities for street activities in areas and
at times when the risk of danger to children and other
users of the public rights of way is lessened.2

In March 2004, Waco cited approximately twenty of

Appellants’ co-demonstrators for violating a former, broader

version of the School Zone ordinance.3 Fearing that they would be

2
WACO, TEX., CODE OF ORDINANCES No. 2004-0541. Waco incorporated these
recitals into the Street Activity and Parade ordinances. See id.
3
Under the former School Zone ordinance, “street activity” meant “a
dance, party demonstration, or any other type of assemblage, which is held in or
makes use of a street or sidewalk.” The previous version lacked the qualifier
that to be covered, activity must be “reasonably anticipated to obstruct the

4
cited next, Appellants filed this lawsuit in June 2004, seeking

relief against the challenged ordinances based on the First

Amendment. In September 2004, Waco amended the ordinances to their

present form; it then moved for summary judgment, arguing that the

amendments mooted Appellants’ claims. Appellants proceeded to

challenge the facial constitutionality of the new versions of the

School Zone and Parade ordinances.4 After taking into account the

Appellants’ amended claims and Waco’s response, the district court

denied Appellants’ summary judgment motion and dismissed all

claims. Appellants’ appeal is before us.

II. DISCUSSION

Whether the district court erred in denying Appellants’

motion for summary judgment and dismissing their claims raises

issues that we review de novo, applying the same legal standards as

the district court. Mayo v. Hartford Life Ins. Co., 354 F.3d 400,

403 (5th Cir. 2004). Appellants maintain that the School Zone and

Parade ordinances are unconstitutional time, place, and manner

regulations, are substantially overbroad, and are vague. Because

we hold that both ordinances are invalid time, place, and manner

normal flow of traffic upon a public street, sidewalk, or other public right of
way.” WACO, TEX., CODE OF ORDINANCES § 25-133(c) (repealed). Similarly, the former
ordinance’s definition of “parade” did not limit coverage to parades that do “not
comply with normal and usual traffic regulations or controls.” Id.
4
In their amended complaint, Appellants also challenged the facial
constitutionality of § 25-267 of Waco’s Code. That claim is not before the panel
in this appeal.

5
regulations, we find it unnecessary to reach Appellants’ over-

breadth and vagueness arguments.

Appellants wish to continue their peaceful protests

against abortion while reaching out to clinic employees and

clients. The optimum time to protest coincides with school hours,

precisely when the School Zone ordinance’s potential ban is in

effect. “Public streets a[re] the archetype of a traditional

public forum” and from “time out of mind . . . have been used for

public assembly and debate.” Frisby v. Schultz, 487 U.S. 474, 480,

108 S. Ct. 2495, 2500 (1988) (quotation marks and citations

omitted). Thus, the rights of the government to limit First

Amendment activity in a public forum are “sharply circumscribed.”

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45,

103 S. Ct. 948, 954 (1983). But

even in a public forum the government may impose
reasonable restrictions on the time, place, or manner of
protected speech, provided the restrictions “are
justified without reference to the content of the
regulated speech, that they are narrowly tailored to
serve a significant governmental interest, and that they
leave open ample alternative channels for communication
of the information.”

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

2753 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468

U.S. 288, 293, 104 S. Ct. 3065, 3069 (1984)).

The district court determined, and Appellants do not

seriously dispute, that the ordinances are content-neutral. At

issue, therefore, are Appellants’ contentions that neither

6
ordinance is narrowly tailored and that they fail to leave open

ample alternative channels for communication. The broad outline of

the standards for these contentions is well settled. A regulation

“is narrowly tailored if it targets and eliminates no more than the

exact source of the ‘evil’ it seeks to remedy.” See Frisby,

487 U.S. at 485, 108 S. Ct. at 2503. If “a substantial portion of

the burden on speech does not serve to advance” the ordinance’s

stated goals, then the ordinance is not narrowly tailored. See

Ward, 491 U.S. at 799, 109 S. Ct. at 2758. Nevertheless, the

regulation “need not be the least restrictive or least intrusive

means of furthering the government’s interest.” Id. at 798, 109

S. Ct. at 2757. As to alternative avenues of communication,

“[w]hile the First Amendment does not guarantee the right to employ

every conceivable method of communication at all times and in all

places, a restriction on expressive activity may be invalid if the

remaining modes of communication are inadequate.” Members of City

Council v. Taxpayers for Vincent, 466 U.S. 789, 812, 104 S. Ct.

2118, 2132 (1984). Against this background, we assess each

ordinance.

A. School Zone Ordinance

An ordinance infringing the right to demonstrate

peacefully on public sidewalks must serve and narrowly promote

significant government interests. Waco’s asserted interests in

protecting school children and citizens on public roads are

7
generically significant. Appellants nevertheless challenge whether

these interests are actually subserved by the School Zone ordinance

because, they aver, Texas law already makes it unlawful to obstruct

or disrupt school activities. See TEX. EDUC. CODE §§ 37.123, 37.124.

Redundancy would seem to argue more in favor of than against the

City’s sincere commitment, but in any event, the state and city

provisions are not clearly redundant. Appellants’ quarrel on this

point fails.

To evaluate whether the School Zone ordinance is narrowly

tailored, “we must consider the city’s authoritative constructions

of the ordinance, including its own implementation and

interpretation of it.” See Forsyth County v. Nationalist Movement,

505 U.S. 123, 131, 112 S. Ct. 2395, 2402 (1992). Waco has

authoritatively interpreted the School Zone ordinance to embody a

“wingspan” exception for people gathered together or walking who

are at least an arm’s length apart from each other. While no doubt

intended to soften the impact of the School Zone ordinance, the

wingspan exception actually complicates the analysis.

The School Zone ordinance assertedly protects children by

prohibiting activities that could “distract” drivers during the

times that school zones are active. The wingspan exception,

however, permits otherwise “distracting” street activity if the

people so engaged in a school zone stand at arm’s length. Clearly,

“street activity” conducted one arm’s length apart may present

precisely the same risk to drivers and children as “street

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activity” by closer-packed participants. The wingspan exception

allows a thousand soldiers to march down the sidewalk if they keep

the requisite distance from each other, while the ordinance would

criminalize the actions of a few people holding up signs while

standing next to each other. Given its capricious impact, the

wingspan exception does not further narrow tailoring.

Apart from the wingspan exception, the School Zone

ordinance is not narrowly tailored because the ordinance “sweeps

far more broadly than is necessary to further the city’s legitimate

concern” of enhancing the safety and welfare of schoolchildren and

others using Waco’s public rights of way. See Ward, 491 U.S. at

801, 109 S. Ct. at 2759. The ordinance prohibits “street activity”

and “parades” within school zones during designated times. WACO,

TEX., CODE OF ORDINANCES § 25-133. “Street activity” includes “public

assemblage.” Id. Although “public assemblage” is undefined in the

ordinance, the record and the text of the ordinance indicate that

it may encompass just two individuals standing or sitting in one

place.5 Typically, two people standing or sitting in one place do

not “distract” passing motorists.

As for “street activity,” the only determinant of a

violation is whether, during the prescribed times, “the collection

of persons is reasonably anticipated to obstruct the normal flow of

5
At oral argument, the City never denied the contention that a public
assemblage by only two people could be encompassed by the ordinance. Rather,
Waco seemed to concede that it is not the number of people that matter, but
whether they were reasonably anticipated to obstruct the sidewalk or street.

9
traffic upon a public street, sidewalk, or other public right of

way.” Id. Although the modifier “reasonable” is within the bounds

of the law, its coupling with the “anticipation” of “obstructing

the normal flow of traffic on a street or sidewalk” adds

troublesome layers of uncertainty to determining the scope of the

ordinance. There is no doubt the ordinance could criminalize these

Appellants’ benign expressive behavior, but the larger problem is

that no one can be certain what conduct it covers. A “reasonable”

“anticipation” of “obstruction” can be formulated without noise,

without physical obstruction of streets or sidewalks or passersby,

and without disorderly conduct. In short, the law may be violated

by the core constitutional acts of peaceful expressive activity or

peaceable assembly alone.

Additionally, the definition of a parade in this

ordinance is open-ended, consisting of “a procession of

pedestrians, vehicles, and animals or any combination thereof along

or upon a street or sidewalk, park or other public place, which

does not comply with normal and usual traffic regulations or

controls.” WACO, TEX., CODE OF ORDINANCES § 25-133. Again, as few as

two people can be swept within its ambit. The City Attorney even

conceded that a covered “parade” may consist of a man walking two

dogs. That a parade is not covered if it follows “normal and usual

traffic regulations and controls” is unhelpful to people who will

be using sidewalks. And even if some “traffic” regulations pertain

to sidewalks, what are the “normal” and “usual” regulations? Does

10
this qualifier refer only to “regulations” or also to “normal”

sidewalk conditions, such that a group of, say, five people could

be considered “abnormal”? The School Zone ordinance potentially

criminalizes such a broad range of expressive and legitimate

conduct that it is hardly tailored at all, much less narrowly

tailored to prevent distraction of motorists when school zone rules

are in effect.

Because we hold that the School Zone ordinance is not

narrowly tailored, and thus unconstitutional, it is unnecessary to

determine whether the ordinance leaves open ample alternative

channels for the Appellants to communicate their message. See

Ward, 491 U.S. at 791, 109 S. Ct. at 2753.

B. Parade Ordinance

The Parade ordinance defines “parade” and “street

activity” in the same, overbroad way as does the School Zone

ordinance.6 Accordingly, the ordinance may be interpreted to

require a prior permit for the activity of as few as two people.7

Other circuits have held, and we concur, that ordinances requiring

6
WACO, TEX., CODE OF ORDINANCES § 25-133(c) (defining “parade” for the
School Zone ordinance); § 25-265 (defining “parade” for the Parade Ordinance, but
with slight differences not relevant here); § 25-133(c) (defining “street
activity” for the School Zone ordinance); § 25-265 (defining “street activity”
for the Parade Ordinance).
7
The City cites McDonald v. City of Chicago, 243 F.3d 1021 (7th Cir.
2001), as upholding a similar ordinance, but we fail to see McDonald’s relevance.
The parade there sought to move through busy downtown streets, while sidewalk
protesters are the Appellants here. The appellate issues in McDonald centered
on procedural safeguards for a parade license, not, as here, on the definition
of a “parade” and its reach into minimal-sized gatherings.

11
a permit for demonstrations by a handful of people are not narrowly

tailored to serve a significant government interest. See Douglas

v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996) (ten persons);

Grossman v. City of Portland, 33 F.3d 1200, 1202-06 (9th Cir. 1994)

(six persons); Cmty. for Creative Non-Violence v. Turner, 893 F.2d

1387, 1392 (D.C. Cir. 1990) (ordinance requiring two or more people

speaking or proselytizing together in any above-ground areas of the

Metro to obtain a permit was not narrowly tailored because many

such small-numbered groups “would not interfere meaningfully” with

the government’s asserted interests).

The Parade ordinance is also unconstitutional under this

court’s decision in Beckerman v. City of Tupelo, 664 F.2d 502 (5th

Cir. 1981). Despite the Parade ordinance’s general permit

requirement for “parades” or “street activity” on Waco’s public

ways, the Ordinance exempts funeral processions; “[s]tudents going

to and from classes or participating in educational or recreational

activities under the immediate direction and supervision of the

proper school authorities”; “a governmental agency acting within

the scope of its functions”; “[s]idewalk processions which observe

and comply with traffic regulations and traffic-control devices,

utilizing that portion of a sidewalk farthest from the street”; and

“[p]rocessions or demonstrations at a fixed location which is not

a street or sidewalk.” WACO, TEX., CODE OF ORDINANCES § 25-266. Under

Beckerman, it is the exceptions that condemn this ordinance.

12
 Beckerman struck down Tupelo’s parade permit ordinance

because it contained two exceptions nearly identical to those in

the Waco ordinance. See Beckerman, 664 F.2d at 513, 517 (noting

exceptions for “students participating in educational activities

provided that they are under the immediate direction and

supervision of school authorities,” and a “governmental agency

acting within the scope of its functions.”). Examining these

exceptions under the First Amendment and the Equal Protection

Clause, the court reasoned that, “[b]ecause the City is so willing

to disregard the traffic problems” that could be caused by school

children and government agencies engaging in “parade[s],

procession[s] or other public demonstration[s],” it could not

“accept the contention that traffic control is a substantial

interest” that justified Tupelo’s parade permitting scheme. Id. at

513. Waco, however, attempts to distinguish Beckerman. According

to Waco, the Tupelo ordinance exempted student and government

marchers; the Parade ordinance, on the other hand, exempts all

students “going to and from classes or participating in educational

or recreational activities,” and all government agencies acting

within the scope of their official functions.

The City misreads Beckerman. First, although the

Beckerman court described the exceptions to Tupelo’s parade permit

scheme as applying to student and government “marchers,” the actual

language of the exceptions to Tupelo’s ordinance is almost

identical to the exceptions to the Parade ordinance. See

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Beckerman, 664 F.2d at 517. Second, as noted supra, Tupelo’s

justification for the parade permitting scheme at issue in

Beckerman and Waco’s justification for the Parade ordinance are the

same — traffic and pedestrian safety. Accordingly, Waco’s claims

that the exceptions to the Parade ordinance are consistent with the

ordinance’s goal of promoting traffic safety are not justified in

distinction from Beckerman.

III. CONCLUSION

For the reasons stated above, we hold that the School

Zone and Parade ordinances are unconstitutional time, place, and

manner regulations. The court erred in denying Appellants’ motion

for summary judgment. We REVERSE and REMAND for entry of

appropriate relief in favor of Appellants.

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