Green v. City of Raleigh

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

DENNIS GREEN, 
Plaintiff-Appellant,
v.
CITY OF RALEIGH; JANE PERLOV,  No. 07-1351
individually and in her official
capacity as Chief of Police for the
City of Raleigh,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(5:05-cv-00102-BO)

Argued: January 29, 2008

Decided: April 16, 2008

Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Traxler and Judge Duncan joined.

COUNSEL

ARGUED: Nathan W. Kellum, ALLIANCE DEFENSE FUND,
Memphis, Tennessee, for Appellant. Dorothy K. Leapley, Deputy
City Attorney for the City of Raleigh, Raleigh, North Carolina, for
Appellees. ON BRIEF: Jonathan A. Scruggs, ALLIANCE
2 GREEN v. CITY OF RALEIGH
DEFENSE FUND, Memphis, Tennessee, for Appellant. Thomas A.
McCormick, City Attorney for the City of Raleigh, Raleigh, North
Carolina, for Appellees.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

This appeal involves challenges to the constitutionality of city ordi-
nances requiring those who wish to picket on public ways to provide
the city with prior notice of this intent and comply with certain
restrictions while picketing. The district court held that the ordinances
do not violate the First Amendment. We affirm.

I.

On August 23, 2003, Dennis Green and at least ten others met out-
side the RBC Center in Raleigh, North Carolina (the "City"). The
group distributed flyers to attendees of a Promise Keepers event, car-
ried signs, and picketed in the parking lot adjacent to the Center. After
approximately an hour, an off-duty police officer working security
requested that Green and his companions leave the area. The officer
explained that the Center and attached parking areas were private
property and that the group could be cited for trespass violations.

The group moved to a grassy right-of-way along a public street
near the Center and resumed picketing. Upon learning of its reloca-
tion, the officer contacted the police department to ask if the group
had notified the City of its intent to picket and been issued a receipt
of this notice.

When the officer learned that the group had neither notified the
City nor obtained a receipt of notice, he explained to the group that
picketing without a receipt violated the City’s ordinances and that
refusal to leave the area could result in citations and fines as well the
confiscation of signs. Green and his group left the area.

On February 10, 2005, Green filed this action, seeking injunctive
and declaratory relief, actual and/or nominal damages, and attorney’s
 GREEN v. CITY OF RALEIGH 3
fees against the City and its Chief of Police, Jane Perlov, in both her
individual and official capacities. Green alleges that certain portions
of the City ordinances violate his First Amendment rights to free
speech and peaceable assembly. Specifically, Green alleges in his
complaint, inter alia, that the City ordinances effective at the time of
his picketing in 2003 unconstitutionally required picketers to provide
the police department with notice of their intent to picket (the "notice
requirement") and to submit information regarding the name of the
organization demonstrating, the time and location of the event, and
the name of the individual designated to carry the receipt of notice
(collectively, the "disclosure requirement"). Raleigh, N.C., City Code
§§ 12-1056, 12-1057(g) (2003). Green also challenges provisions that
restricted picketers to signs of no larger than two feet (the "sign-size
requirement") and that required picketers to remain on the outermost
part of the sidewalk (the "outermost sidewalk requirement"). § 12-
1057(b), (e) (2003).

In March 2006, the City revised and liberalized the picketing ordi-
nances by eliminating the notice requirement for groups of fewer than
ten picketers (the "small-group exception"), allowing anonymous
picketing by any group (with only the name of the individual holding
the receipt of notice required), and enlarging the allowable sign size.
Raleigh, N.C., City Code §§ 12-1056(b), 12-1057(b) (2006).1
Although Green did not file an amended complaint challenging the
new ordinances, he maintained (and continues to maintain on appeal)
that the amended ordinances offended his right to free speech "in the
same manner" as the original ones, and he also challenges the small-
group exception added in the amended ordinance. The City does not
contend that Green’s failure to amend his complaint bars consider-
ation of his challenges to the amended ordinances. Accordingly, we
treat his challenges to the amended ordinances "in all respects as if
raised in the pleadings." See Fed. R. Civ. P. 15(b).

After discovery, the district court dismissed Green’s claims against
Chief Perlov, holding that the claims against her in her official capac-
ity were indistinguishable from the claims against the Raleigh Police
Department and that she was entitled to qualified immunity for the
1
We reproduce the original and revised ordinances in their entirety in
an appendix to this opinion.
4 GREEN v. CITY OF RALEIGH
claims against her in her individual capacity. Green does not appeal
these rulings. The district court then granted the City’s motions for
summary judgment on Green’s remaining claims.

On appeal, Green challenges both the original and amended ordi-
nances. He argues that provisions in the original ordinances were
unconstitutional as-applied to his conduct on August 23, 2003; he has
abandoned any facial challenge to the original ordinances by failing
to raise this claim in his opening brief. See United States v. Al-Hamdi,
356 F.3d 564, 571 n.8 (4th Cir. 2004). However, Green does raise
both facial and as-applied challenges to the amended ordinances.

II.

We first consider preliminary questions as to Green’s standing and
the possible mootness of some of his challenges. We review de novo
the district court’s holdings on these questions. White Tail Park, Inc.
v. Stroube, 413 F.3d 451, 459 (4th Cir. 2005).

A.

1.

Green contends that the district court erred in holding that he
lacked standing to bring as-applied challenges to the outermost side-
walk and disclosure requirements as well as to the absence of a small-
group exception. Neither Green nor the City disputes that Green does
have standing to mount as-applied challenges to the notice and sign-
size requirements.

With respect to the outermost sidewalk requirement, we agree with
the district court that Green does lack standing to bring an as-applied
challenge. Green was never ordered to remain on the outermost side-
walk because, in fact, there was no sidewalk where Green’s group
chose to picket. After leaving the RBC Center, Green and the other
picketers moved onto the grassy right-of-way along a public road.
Police never asked Green or others to move to any section of the
right-of-way and indeed never referred to this requirement at any
point. Thus, the City never applied this requirement to Green’s con-
duct.
 GREEN v. CITY OF RALEIGH 5
We believe the district court did, however, err in holding that
Green lacked standing to bring an as-applied challenge to the disclo-
sure requirement. Although Green did not comply with the require-
ment that he reveal his identity to the City, indisputably a security
officer told Green’s group that failure to submit a notice of intent to
picket would violate the City ordinances. Green could not have
obtained a receipt entitling him to picket unless he informed the City
of "[t]he name, if any, of the organization or group sponsoring or pro-
posing to picket," "[t]he name of the person and organization giving
notice of intent to picket," and "[t]he person or persons to be in charge
of the activity and who will accompany it and carry any receipt of
notice at all times." § 12-1056(b)(1), (4), (6) (2003). Mandating
Green’s possession of a receipt of notice hence also mandated his
conformance with the ordinance’s disclosure requirement. "The Con-
stitution can hardly be thought to deny to one subjected to the
restraints of such an ordinance the right to attack its constitutionality,
because he has not yielded to its demands." Shuttlesworth v. City of
Birmingham, 394 U.S. 147, 151 (1969) (internal quotation marks
omitted). Thus, Green possesses standing to bring an as-applied chal-
lenge to the disclosure requirement.

The district court also erred when it held that Green lacked stand-
ing to challenge the original ordinances as they were applied to his
group of eleven or more persons on August 23, 2003. The district
court reasoned that because the original ordinances contained no
small-group exception, the exception could not have been applied to
Green. But Green challenges the absence of a small-group exception
in the original ordinances. That is, Green maintains that because the
original ordinances contained no exception for small groups, the ordi-
nances were unconstitutionally applied to his group on August 23,
2003. Clearly Green has standing to bring this as-applied challenge
to the original ordinances.

2.

The City argues that the district court erred in holding that Green
has standing to assert a facial challenge to the amended picketing
ordinances. According to the City, the amended ordinances cannot be
challenged for facial overbreadth unless they are "substantially over-
broad."
6 GREEN v. CITY OF RALEIGH
As the district court explained, the City’s argument confuses stand-
ing with a final determination of overbreadth on the merits. Green’s
overbreadth challenge will fail if he cannot adequately demonstrate
that a challenged provision "reaches a substantial amount of constitu-
tionally protected conduct." Vill. of Hoffman Estates v. Flipside, Hoff-
man Estates, Inc., 455 U.S. 489, 494 (1982). But "[a] plaintiff’s
standing to bring a case does not depend upon his ultimate success on
the merits underlying his case," because otherwise "‘every unsuccess-
ful plaintiff will have lacked standing in the first place.’" Covenant
Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421, 429 (4th
Cir. 2007) (quoting White Tail Park, 413 F.3d at 461).

The district court thus did not err in holding that Green possesses
standing to mount a facial challenge to the amended ordinances.

B.

Having resolved the standing issues, we address the City’s moot-
ness contention. The City maintains that the district court erred when
it held that Green’s as-applied challenges to the original ordinances
survived their amendment. Substantial amendment to a statute or ordi-
nance may moot a challenge to the original law when "there is no
practical likelihood" that the regulation will be reenacted in its origi-
nal form. See Brooks v. Vassar, 462 F.3d 341, 348 (4th Cir. 2006).
But a challenge survives if the amended ordinances are "sufficiently
similar . . . that it is permissible to say that the challenged conduct
continues." Ne. Fla. Chapter of the Associated Gen. Contractors v.
City of Jacksonville, 508 U.S. 656, 662 & n.3 (1993); see also Nutri-
tional Health Alliance v. Shalala, 144 F.3d 220, 227 n.13 (2d Cir.
1998); Rosenstiel v. Rodriguez, 101 F.3d 1544, 1548 (8th Cir. 1996).

The amendments to the picketing ordinances here do not moot
Green’s as-applied challenges to the original ordinances. The notice,
sign-size, and disclosure requirements in the new ordinances are "suf-
ficiently similar" to the equivalent provisions in the original ordi-
nances "that it is permissible to say that the challenged conduct
continues." Associated Gen. Contractors, 508 U.S. at 662 & n.3.
Moreover, the addition of a small-group exception does not moot
Green’s as-applied challenge to the original ordinances’ application to
a group of his size. Given that Raleigh’s amended ordinances exempt
 GREEN v. CITY OF RALEIGH 7
groups of fewer than ten individuals, and Green’s group was perhaps
as small as eleven people, we believe that the underlying "case or
controversy" — namely, whether Raleigh’s original ordinances could
constitutionally be applied to groups of such size — survives the
amendment. Accordingly, the City’s mootness argument fails.

III.

We turn now to the merits of Green’s challenges. In doing so, of
course, we bear in mind that, with respect to the original ordinances,
Green has preserved no facial challenge and has no standing to chal-
lenge the outermost sidewalk provision that they contained. There-
fore, to the extent that we consider the constitutionality of the original
ordinances, we do so only in the context of Green’s as-applied chal-
lenges to their notice, disclosure, and sign-size requirements, as well
as his challenge to their application to a group the size of his.

"An ordinance that requires individuals or groups to obtain a permit
before engaging in protected speech is a prior restraint on speech."
Cox v. City of Charleston, 416 F.3d 281, 284 (4th Cir. 2005). How-
ever, as the Supreme Court has explained, even a prior restraint can
survive constitutional challenge, provided that it is a content-neutral
time, place, and manner regulation that satisfies certain constitutional
requirements. Forsyth County v. Nationalist Movement, 505 U.S. 123,
130 (1992); see also Thomas v. Chi. Park Dist., 534 U.S. 316, 322
(2002). To withstand constitutional scrutiny, such a regulation must:
(1) "be narrowly tailored to serve a significant governmental interest,"
Forsyth County, 505 U.S. at 130; (2) "leave open ample alternatives
for communication," id.; and (3) contain "narrow, objective, and defi-
nite standards to guide the licensing authority," id. at 131 (quoting
Shuttlesworth, 394 U.S. at 150-51). "To be narrowly tailored, an ordi-
nance ‘need not be the least restrictive or least intrusive means of’
effectuating the relevant interests . . . but it may not ‘burden substan-
tially more speech than is necessary to further the government’s legit-
imate interests.’" City of Charleston, 416 F.3d at 284 (quoting Ward
v. Rock Against Racism, 491 U.S. 781, 798, 799 (1989)).

A.

We begin by addressing whether the various provisions of the
Raleigh ordinances satisfy the narrow tailoring requirement.
8 GREEN v. CITY OF RALEIGH
1.

Green first attacks the notice requirement in both the original and
amended ordinances as insufficiently tailored to further significant
governmental interests. We have consistently recognized that a city
has a "legitimate interest in maintaining the safety, order, and accessi-
bility of its streets and sidewalks." City of Charleston, 416 F.3d at
284. The notice requirement clearly furthers this interest by permit-
ting the Raleigh Police Department to allocate resources and assign
officers to the site of a protest in order to protect the safety, order, and
First Amendment rights of both demonstrators and bystanders. Thus,
our inquiry is whether the notice requirement "burden[s] substantially
more speech than is necessary to further" that legitimate interest. Id.
(quoting Ward, 491 U.S. at 799).

It clearly does not. Unlike most picketing ordinances deemed
unconstitutional, see, e.g., Forsyth County, 505 U.S. at 130-33, Shut-
tlesworth, 394 U.S. at 150-51, Niemotko v. Maryland, 340 U.S. 268,
271-72 (1951), the City’s notice requirement does not extend to
municipal officials any discretion to grant, deny, or set conditions on
permission to demonstrate. Designated City officials must grant a
receipt of notice "immediately" to an individual notifying them he
intends to picket; the official lacks any discretion to deny such a
receipt. See § 12-1056(d) (2003); § 12-1056(d) (2006). Furthermore,
demonstrators may notify City officials of an intent to picket at any
time — in-person, by telephone, or by facsimile — without providing
advance notice, undertaking a lengthy application process, or paying
fees or other costs. Given these minimal impositions, we cannot hold
that the notice requirement burdens substantially more speech than
necessary to further the City’s interest in protecting law enforcement
officers, motorists, pedestrians, the picketers themselves, and those
accessing businesses near the site of a demonstration. See City of
Charleston, 416 F.3d at 284; see also Ward, 491 U.S. at 799, 801-02.

2.

Next, Green asserts that both the original and amended picketing
ordinances are not narrowly tailored because by requiring would-be
demonstrators to divulge their identities, the ordinances eliminate
demonstrators’ right to speak anonymously in public. See § 12-
 GREEN v. CITY OF RALEIGH 9
1056(b)(1), (4), (6) (2003); § 12-1056(b)(1), (4), (6) (2006). Cer-
tainly, forced public revelation can discourage proponents of contro-
versial viewpoints from speaking by exposing them to harassment or
retaliation for the content of their speech. Buckley v. Am. Constitu-
tional Law Found., Inc., 525 U.S. 182, 197-201 (1999). Speech can
also be chilled when an individual whose speech relies on anonymity
is forced to reveal his identity as a pre-condition to expression. See
Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of Stratton,
536 U.S. 150, 166-67 (2002); see also Buckley, 525 U.S. at 199.

However, the City ordinances mandate an extremely limited form
of self-identification that occurs only when submitting the notice of
intent to picket and not at the moment of actual speech. The original
ordinances required picketers to identify the sponsoring group (if
any), the person giving notice to the City, and the name of the person
carrying the receipt of notice. The amended ordinances require disclo-
sure of even less information — just the name of the person who will
carry the receipt of notice. § 12-1056(b)(1), (4), (6) (2003); § 12-
1056(b)(1), (4), (6) (2006).

These provisions are undoubtedly narrowly tailored to serve signif-
icant governmental interests. The amended disclosure requirement
provides the City with a straightforward way to verify compliance
with the notice requirement, which we have already held to be nar-
rowly tailored. Without the name of the individual bearing the receipt,
it might be difficult for a single police officer to confirm that a receipt
has been issued; indeed, for larger groups, it might prove practically
impossible to establish that no one present possesses the required
receipt, in effect, rendering the notice requirement a nullity. More-
over, the additional disclosure requirements in the original ordinances
satisfy similar practical exigencies in issuing and verifying the notice
requirement. Knowing who has submitted notice could clearly aid the
City in issuing the receipt, especially by mail or over the telephone;
likewise, knowing the name of the organization permits police to
approach the correct group when searching for the person bearing the
receipt. The limited disclosure required here also furthers the City’s
significant interest in assuring financial accountability for damages
caused by users of public property. See Chi. Park Dist., 534 U.S. at
322.
10 GREEN v. CITY OF RALEIGH
Notably, both the original and amended ordinances significantly
differ from the types of disclosure provisions invalidated by the
Supreme Court. See Buckley, 525 U.S. at 198-99; Village of Stratton,
536 U.S. at 154-55, 164-69. Unlike those provisions, Raleigh’s ordi-
nances require neither "face-to-face" identification at the moment of
public speech nor the identification of each individual engaged in
speech. Furthermore, rather than simply furthering a general interest
in crime and fraud prevention as those provisions did, the Raleigh
ordinances are closely tied to the pragmatic necessities of regulating
demonstrations on public thoroughfares.

The disclosure requirements at issue here impose a very modest
burden on the prospective picketers’ asserted right to remain anony-
mous and are narrowly tailored to serve Raleigh’s significant govern-
mental interests.

3.

Green also contends that the outermost sidewalk provision in the
amended ordinance is not narrowly tailored. § 12-1057(d) (2006). But
Chief Perlov testified, without contradiction, that the City instituted
the outermost sidewalk requirement to prevent picketers from "block-
[ing] the entrance to a building or people’s egress into or out of the
building." The Supreme Court has upheld a similar statute that pro-
hibited picketing "in such a manner as to obstruct or unreasonably
interfere with free ingress or egress to and from any public premises."
Cameron v. Johnson, 390 U.S. 611, 612 n.1, 617 (1968). Such a pro-
vision imposes no burden on speech. As the Johnson Court explained,
such a provision "does not abridge constitutional liberty," since
obstructing pedestrian access to city or state facilities "bears no neces-
sary relationship to the freedom to . . . distribute information or opin-
ion." Id. at 617 (internal quotation marks omitted); see also Cox v.
Louisiana, 379 U.S. 536, 554-55 (1965).

4.

Green further claims that the sign-size restrictions in the original
and amended ordinances are insufficiently tailored to further a signifi-
cant governmental interest. The original sign-size provision limited
demonstrators to two-foot signs; the amended provision expands the
 GREEN v. CITY OF RALEIGH 11
permissible size to three feet. § 12-1057(b) (2003); § 12-1057(b)
(2006).

Green incorrectly asserts that the City has failed to demonstrate
that the restrictions promote governmental interests in traffic and
police safety. In fact, the record contains uncontroverted evidence
regarding the traffic and safety interests supporting these restrictions,
including the testimony of Chief Perlov and Bruce Friedman, a traffic
engineer with thirty-three years experience. Mr. Friedman explained
that sign-size limitations further safety objectives by reducing possi-
ble obstruction "of official traffic control devices (such as roadside
signs and pedestal-mounted vehicular or pedestrian signal indications)
that are necessary to regulate, warn, or guide road users within the
public right-of-way." See also Foti v. City of Menlo Park, 146 F.3d
629, 641 (9th Cir. 1998) (upholding a three-foot sign restriction, hold-
ing that it was narrowly tailored to serve the city’s legitimate govern-
mental interest in traffic safety); but see Edwards v. City of Coeur
d’Alene, 262 F.3d 856, 864 (9th Cir. 2001) (invalidating an ordinance
that prohibited protestors from carrying signs affixed to any type of
support, holding that the restriction was not narrowly tailored to the
city’s legitimate interest in safety when the city offered no empirical
evidence supporting ordinance).2 We find these justifications persua-
sive and conclude that the sign-size requirements do not substantially
burden speech. See Ward, 491 U.S. at 799.

5.

Finally, Green challenges the small-group exception, asserting that
it too is not narrowly tailored to further the City’s significant interests.
See §§ 12-1056(b), 12-1057(f) (2006).
2
Nor are we convinced by Green’s argument that the City’s revision
of the sign-size limitation to allow for slightly larger signs evinces a con-
cession by the City that the original regulation violated the Constitution.
Rather, we agree with the City that it must be given a "‘reasonable
opportunity to experiment with solutions,’" and the mere fact of experi-
mentation alone does not render the amended ordinances constitutionally
suspect. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425,
439 (2002) (quoting City of Renton v. Playtime Theatres, Inc., 475 U.S.
41, 52 (1986)).
12 GREEN v. CITY OF RALEIGH
In City of Charleston, we noted the need for a small-group excep-
tion in an ordinance regulating "assemblies, parades, processions and
exhibitions." 416 F.3d at 284-87, 288. We held that the lack of any
such exception in a city ordinance rendered that ordinance facially
unconstitutional because the city failed to establish the necessity for
burdening expression by small groups of demonstrators. Our sister
circuits have similarly held that picketing and demonstration regula-
tions must include exceptions for small groups in order to be narrowly
tailored. See American-Arab Anti-Discrimination Comm. v. City of
Dearborn, 418 F.3d 600, 608 (6th Cir. 2005); Grossman v. City of
Portland, 33 F.3d 1200, 1207-08 (9th Cir. 1994); Cmty. for Creative
Non-Violence v. Turner, 893 F.2d 1387, 1392 (D.C. Cir. 1990); see
also Santa Monica Food Not Bombs v. City of Santa Monica, 450
F.3d 1022, 1039-1043 (9th Cir. 2006).

Because the above cases concerned ordinances without any small-
group exception, they provide little guidance on the question raised
here — how many persons must a municipality exempt from the gen-
eral picketing regulations to satisfy the narrow tailoring requirement.
Indeed, in City of Charleston we declined "to announce a numerical
floor below which a permit requirement cannot apply," finding that
"[t]he relevant legislative body . . . is the proper forum for balancing
the multitude of factors to be considered in determining how to keep
the streets and sidewalks of a city safe, orderly, and accessible in a
manner consistent with the First Amendment." 416 F.3d at 286. With
these principles in mind, we consider the ordinances at issue here.

i.

With respect to the amended ordinances, the "relevant legislative
body," the City, has determined that an exception for fewer than ten
persons suffices and has proffered numerous governmental interests
in support of this determination. The City has explained that, as the
state capitol, Raleigh has historically been the site of public demon-
strations despite being a comparatively small city. Often these demon-
strations involve opposing groups that insist on simultaneously
appearing on the same sidewalks in order to offer competing view-
points to the public. The City must ensure that even during such dem-
onstrations each set of protestors can exercise its First Amendment
rights without impinging on the rights of others and that potentially
 GREEN v. CITY OF RALEIGH 13
heated speech by rival groups does not go beyond mere words. Dur-
ing simultaneous uses of limited public space, the City must also
ensure that protesters do not spill into the city streets and impede traf-
fic or render it impossible for pedestrians to use the sidewalks or to
enter or exit buildings. In order for the City to meet these objectives,
a small-group exception must anticipate such overlapping uses of
public space in a relatively confined area, thereby supporting a more
modest numerical exception than might otherwise be the case. See
Chi. Park Dist., 534 U.S. at 322 (noting the legitimate governmental
interest in ordinances designed "to coordinate multiple uses of limited
space").

Moreover, as the City has emphasized, its ordinances regulate only
sidewalks and other public ways, rather than parks or more capacious
public fora designed to accommodate larger groups. See City of Santa
Monica, 450 F.3d at 1042 (noting the distinct governmental interests
implicated in "streets and sidewalks," in contrast to "public open
spaces" like parks). Sidewalks and rights-of-ways are not only typi-
cally smaller and more narrow than parks, but groups of picketers also
more easily disrupt the everyday use of sidewalks by pedestrians —
for instance, forcing foot traffic into the streets if the sidewalk is
blocked — while even moderately-sized groups in a park are unlikely
to disrupt the activities of others.

Furthermore, any remaining reservations we might retain as to the
size of the Raleigh small-group exception are allayed by the broader
statutory context of the exception. As noted above, the City ordi-
nances do not contain the additional restrictions present in most other
municipal regulations of public demonstrations. For example, in
Douglas v. Brownell, the Eighth Circuit noted in dicta that since the
challenged ordinance required five days’ advance notice and invested
broad discretion with the Chief of Police, limiting the small-group
exception to fewer than ten persons "compound[ed]" the court’s con-
cerns with other unconstitutional restrictions in the ordinance. 88 F.3d
1511, 1523-24 (8th Cir. 1996). In contrast, Raleigh ordinances do not
contain unconstitutional restrictions that are "compound[ed]" by the
small group exception. Cf. City of Charleston, 416 F.3d at 284-87,
288-90 (invalidating ordinance that contained no small group excep-
tion and required seventy-two hours advance notice and permitted
city officials discretion to deny the application); City of Dearborn,
14 GREEN v. CITY OF RALEIGH
418 F.3d at 603, 608 (invalidating ordinance that contained no small
group exception and required thirty days’ advance notice and permit-
ted City Council discretion to deny the application); Grossman, 33
F.3d at 1204-08 (invalidating ordinance that contained no small group
exception and required seven days’ advance notice and permitted
officials discretion to deny application).

Given the City’s well-considered justification for the size of the
small group exception and the relatively slight burden imposed by
Raleigh’s ordinances as a whole, we believe the small-group excep-
tion complies with the narrow tailoring requirement.

ii.

Green also asserts that the failure of the original City ordinances
to contain a small-group exception rendered them unconstitutional as
applied to his group on August 23, 2003. Given our holding that
Raleigh can constitutionally apply the amended picketing ordinances
to groups of ten or more, however, we must similarly conclude that
the City could constitutionally apply the original ordinances to
Green’s eleven to thirteen member group. Although the City has mod-
ified the original ordinances in a variety of ways, the most significant
factors for purposes of this analysis are identical in the original and
amended ordinances. The important governmental interests support-
ing the ordinances as well as the most critical aspects of the ordi-
nances — the lack of any advance notice and the absence of any
discretionary official authority — remain the same in the original and
amended versions of the ordinances. Thus, the original ordinances
were constitutionally applied to Green’s group on August 23, 2003.3

3
Although we hold that the original City ordinances were constitution-
ally applied to Green’s group of eleven to thirteen people on August 23,
2003, we recognize that the original ordinances would almost certainly
be deemed unconstitutional on their face for lack of any exception for
small groups. However, as noted above, Green has abandoned this facial
challenge by failing to assert it in his opening brief.
 GREEN v. CITY OF RALEIGH 15
B.

We turn to Green’s claims that the ordinances do not leave open
ample alternatives for communication. See Forsyth County, 505 U.S.
at 130. An ordinance will not fail for lack of adequate alternatives as
long as it provides avenues for "the more general dissemination of a
message." Frisby v. Schultz, 487 U.S. 474, 482-84 (1988) (upholding
ban on picketing "directed at a single residence" where alternatives
included "[g]eneral marching through residential neighborhoods, . . .
walking a route in front of an entire block of houses," going door-to-
door, distributing literature through the mails, or contacting residents
by telephone).

Raleigh’s ordinances certainly allow suitable alternative channels
of communication. They do not require individuals or groups of fewer
than ten to comply with either the notice or disclosure requirements.
Members of such groups may engage in completely spontaneous and
anonymous communication, including direct speech and leafletting.
Furthermore, the outermost sidewalk, sign-size, and notice require-
ments impose only modest restrictions on larger groups, still permit-
ting them to disseminate their message. Green contends that the sign-
size requirement precludes his ability to communicate effectively with
certain automobile passengers. But such a difficulty does not in any
serious way prevent "the more general dissemination" of Green’s
message. Frisby, 487 U.S. at 483. Although a given size restriction
might be so extreme as to prohibit effective public speech, the
Raleigh ordinances do not present such a situation.

C.

Finally, Green contends that the picketing ordinances do not con-
tain "narrow, objective, and definite standards to guide the licensing
authority." See Forsyth County, 505 U.S. at 131 (quoting Shuttles-
worth, 394 U.S. at 150-51).

Of course, picketing regulations do not withstand constitutional
scrutiny if they invest licensing officials with "virtually unbridled and
absolute power" to deny permission to demonstrate publically, see
Shuttlesworth, 394 U.S. at 150-51, or otherwise arbitrarily impose de
facto burdens on public speech. But, as we have emphasized above,
16 GREEN v. CITY OF RALEIGH
Raleigh’s ordinances do not do this. Rather, they set forth clear
requirements regulating picketing and extend to City officials no dis-
cretion to prohibit picketing that complies with these requirements.

Relying on deposition testimony of various city officials providing
slightly different understandings of the term "picketing," Green con-
tends that this term provides no definitive standard. The Supreme
Court, however, has explicitly rejected such a contention. See Hill v.
Colorado, 530 U.S. 703, 721-22 (2000) (explaining, in part, that
"[t]he regulation of . . . expressive activities," such as "picketing" or
"demonstrating," is clear and, "by definition, does not cover social,
random, or other everyday communications" and citing to Webster’s
Third New International Dictionary for the plain meaning of "demon-
strate" and "picket"). The Court has declined to use such "hypertech-
nical theories as to what the statute covers" as a basis for holding a
regulation unconstitutionally vague. Id. at 732-33. The operative
terms in the ordinances at issue here are clear and do not confer an
unconstitutional discretion on government officials.

Notably, Green fails to cite any example of arbitrary or discrimina-
tory enforcement of the ordinances or interpretation of the term "pick-
eting." Green’s mere conjecture about potentially arbitrary or
discriminatory enforcement scenarios dooms his claim. "[S]peculation
about possible vagueness in hypothetical situations not before the
Court will not support a facial attack on a statute when it is surely
valid ‘in the vast majority of its intended applications.’" Hill, 530
U.S. at 733 (quoting United States v. Raines, 362 U.S. 17, 23 (1960)).
Discriminatory enforcement decisions "must be dealt with if and
when a pattern of unlawful favoritism appears." Chi. Park Dist., 534
U.S. at 325. Therefore, should the City begin to enforce its ordinances
in a discriminatory manner, Green may challenge that enforcement.
Until this occurs, however, Green has failed to demonstrate that the
ordinances are unconstitutional.

IV.

To summarize, we conclude that Green’s challenges to Raleigh’s
picketing ordinances fail.4 Accordingly, the judgment of the district
court is
4
Green also claims that the notice requirements violate his right to
peaceable assembly. He relies heavily on Thomas v. Collins, 323 U.S.
 GREEN v. CITY OF RALEIGH 17
AFFIRMED.

516 (1945), but that case concerned a content-based statute requiring
labor union organizers to register with the state before soliciting mem-
bers. The Supreme Court has recognized that the right to assemble in
public places, including "streets, sidewalks, and parks," is "[s]ubject to
the traditional time, place, and manner restrictions." See Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 577-78 (1980). Therefore,
for the same reasons Green’s free speech challenges do not succeed,
Green’s peaceable assembly claim must also fail.
18 GREEN v. CITY OF RALEIGH
APPENDIX

Raleigh, N.C., City Code §§ 12-1055 - 12-1057 (2003)

Sec. 12-1055. Picketing Defined

The terms picket, pickets and picketing as used herein are deemed to
include "demonstrators," persons participating in vigils and any action
primarily promoting or objecting to a policy upon those portions of
the public ways not used primarily for vehicular parking and moving
traffic and not constituting a parade.

Sec. 12-1056. Picketing Permitted; Notice of Intent and Receipt
Required.

Peaceful picketing shall be permitted in the City provided the same
is done under the following conditions:

(a) No picketing shall be conducted on the public ways of this City
and no person shall participate in the same unless notice of
intent to picket has been given to the Chief of Police or his des-
ignated representative, and unless a receipt of such notice has
been issued.

(b) Notice of intent to picket shall be given in writing and shall con-
tain the following information.

(1) The name, if any, of the organization or group spon-
soring or proposing to picket;

(2) The location or locations in the City where the pickets
propose to assemble and demonstrate;

(3) The date or dates on which the picketing is to occur;

(4) The name of the person and organization giving notice
of intent to picket;

(5) Whether or not persons below the age of eighteen (18)
years are expected to participate; and
 GREEN v. CITY OF RALEIGH 19
(6) The person or persons to be in charge of the activity
and who will accompany it and carry any receipt of
notice at all times.

(c) It is unlawful for any person to engage in picketing before or
about the residence or dwelling of any individual.

(d) Upon the giving of notice of intent to picket, properly completed
as hereinabove set out, the designated officer shall immediately
issue a receipt of notice. The receipt shall contain all informa-
tion stated in the notice. Notice shall be given by the holder of
a receipt of notice to the Chief of Police or his designated repre-
sentative immediately upon the cessation of such picketing for
a period of twenty-four (24) hours or more. Before resumption
of picketing interrupted for any such period, a new notice shall
be given and a new receipt issued.

Sec. 12-1057. Standards of Conduct for Picketing Activities

(a) Picketing shall be conducted only on portions of the public ways
not used primarily for vehicular parking or moving traffic.

(b) Pickets may carry written or printed placards or signs not
exceeding twenty-four (24) inches promoting the objective for
which picketing is done provided the words used would not tend
to incite violence.

(c) Pickets must, if marching, march in a single file, not abreast, and
may not march closer than fifteen (15) Feet, except in passing
one another. Pickets not marching shall remain at least fifteen
(15) feet apart.

(d) If pickets promoting different objectives, causes, actions or poli-
cies desire to use a sidewalk that is already used for picketing,
the Chief of Police or his designated agents shall allot a number
of pickets promoting each objective, to use such sidewalk, on an
equitable basis, proportionate to the number of objectives being
promoted.
20 GREEN v. CITY OF RALEIGH
(e) Pickets shall be restricted to the use of the outermost half of the
sidewalk or other public way nearest the street and shall not at
any time nor in any way obstruct, interfere with, or block: per-
sons entering or exiting from vehicles; persons crossing streets
or otherwise using the public way; the entrance or exit to any
building or access to property abutting the street or sidewalk; or
pedestrian or vehicular traffic.

(f) No person observing, engaging in, or assisting in picketing shall
bring to or allow to remain in the immediate area of picketing
any vicious animal.

(g) It shall be unlawful for anyone to picket without filing a notice
as required herein or without being issued a receipt of such
notice.

(h) The provisions of §§ 12-1055 through 12-1057 are mandatory
and not merely directory, and failure to comply with the provi-
sions of these sections is hereby declared to be unlawful and
punishable as provided by law.

Raleigh, N.C., City Code §§ 12-1055 - 12-1057 (2006)

Sec. 12-1055. Picketing Defined

The terms picket, pickets and picketing as used herein are deemed to
include "demonstrators," persons participating in vigils and any action
primarily promoting or objecting to a policy upon those portions of
the public ways not used primarily for vehicular parking and moving
traffic and not constituting a parade.

Sec. 12-1056. Picketing Permitted; Notice of Intent and Receipt
Required.

Peaceful picketing shall be permitted in the City provided the same
is done under the following conditions:

(a) No picketing shall be conducted on the public ways of this City
and no person shall participate in the same unless notice of
 GREEN v. CITY OF RALEIGH 21
intent to picket has been given to the Chief of Police or his des-
ignated representative, and unless a receipt of such notice has
been issued.

(b) A group of ten or more persons shall give notice of intent to
picket in writing and the notice given shall contain the following
information. A group of fewer than ten persons may give written
notice of intent to picket but is not required to do so.

(1) The name, if any, of the organization or group spon-
soring or proposing to picket unless the group indicates
that it intends to picket anonymously, in which case no
name is required;

(2) The location or locations in the City where the pickets
propose to assemble and demonstrate;

(3) The date or dates on which the picketing is to occur;

(4) The name of the person and organization giving notice of intent
to picket unless the person or organization indicates that it
intends to picket anonymously, in which case no name is
required;

(5) Whether or not persons below the age of eighteen (18) years are
expected to participate; and

(6) The person or persons to be in charge of the activity and who
will accompany it and carry any receipt of notice at all times.

(c) It is unlawful for any person to engage in picketing before or
about the residence or dwelling of any individual.

(d) Upon the giving of notice of intent to picket, properly completed
as hereinabove set out, the designated officer shall immediately
issue a receipt of notice. The receipt shall contain all informa-
tion stated in the notice. Notice shall be given by the holder of
a receipt of notice to the Chief of Police or his designated repre-
sentative immediately upon the cessation of such picketing for
22 GREEN v. CITY OF RALEIGH
a period of twenty-four (24) hours or more. Before resumption
of picketing interrupted for any such period, a new notice shall
be given and a new receipt issued.

Sec. 12-1057. Standards of Conduct for Picketing Activities

(a) Picketing shall be conducted only on portions of the public ways
not used primarily for vehicular parking or moving traffic.

(b) Pickets may carry written or printed placards or signs not
exceeding thirty-six (36) inches provided the words used would
not tend to incite violence.

(c) If pickets promoting different objectives, causes, actions or poli-
cies desire to use a sidewalk that is already used for picketing,
the Chief of Police or the Chief’s designated agents shall allot
a number of pickets promoting each objective, to use such side-
walk, on an equitable basis, proportionate to the number of
objectives being promoted.

(d) Pickets shall be restricted to the use of the outermost half of the
sidewalk or other public way nearest the street and shall not at
any time nor in any way obstruct, interfere with, or block: per-
sons entering or exiting from vehicles; persons crossing streets
or otherwise using the public way; the entrance or exit to any
building or access to property abutting the street or sidewalk; or
pedestrian or vehicular traffic.

(e) No person observing, engaging in, or assisting in picketing shall
bring to or allow to remain in the immediate area of picketing
any vicious animal.

(f) It shall be unlawful for a group of ten or more persons to picket
without filing a notice as required herein.

(g) The provisions of §§ 12-1055 through 12-1057 are mandatory
and not merely directory, and failure to comply with the provi-
sions of these sections is hereby declared to be unlawful and
punishable as provided by law.