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
8
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
13
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.
14