Nationalist Movement v. City of Cumming

United States Court of Appeals,

Eleventh Circuit.

No. 95-8870.

The NATIONALIST MOVEMENT, a Mississippi non-profit corporation
incorporated in Georgia, Plaintiff-Appellant,

v.

The CITY OF CUMMING, GEORGIA, Defendant-Appellee,

Forsyth County, Georgia, Forsyth County Board of Education,
Defendants.

Aug. 28, 1996.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 2:89-cv-06-WCO), William C. O'Kelley),
Judge.

Before KRAVITCH and BIRCH, Circuit Judges, and SCHWARZER*, Senior
District Judge.

KRAVITCH, Circuit Judge:

The issue in this case is whether the City of Cumming's

ordinance banning parades on Saturday mornings is a reasonable

time, place, and manner restriction on speech. The Nationalist

Movement brought suit under the First Amendment after the City

invoked the ordinance to deny permission for the Movement to hold

a Saturday morning parade. A prior panel of this court determined

that the ordinance was content-neutral but remanded the case to the

district court for further evidentiary proceedings. The court held

that remand was necessary because the City had not been given an

opportunity to show "that its ordinance furthers significant

municipal interests, that it is narrowly tailored to achieve those

interests and that those wishing to engage in expressive activity

*
Honorable William W. Schwarzer, Senior U.S. District Judge
for the Northern District of California, sitting by designation.
in Cumming have ample alternative means of doing so." Nationalist

Movement v. City of Cumming, 913 F.2d 885, 888 (11th Cir.1990),

vacated, 921 F.2d 1125 (11th Cir.1990), original opinion

reinstated, 934 F.2d 1482 (11th Cir.1991), aff'd on different

issue, 505 U.S. 123, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992).

Upon remand, the parties agreed to submit all evidence in the

form of affidavits. The district court reviewed the affidavits and

concluded that the ordinance was a reasonable time, place, and

manner restriction on speech and thus did not violate the First

Amendment. We agree.

I.

The Nationalist Movement sought to conduct a parade and rally

in Cumming, Georgia. The purpose of the parade was to protest the

federal holiday commemorating Dr. Martin Luther King, Jr. In

furtherance of this plan, the Movement applied for permits with

three distinct entities: the City of Cumming, Forsyth County, and

the Forsyth County Board of Education. Although the Nationalist

Movement originally brought suit against all three public bodies,

only its case against the City of Cumming is before us on appeal.1

The Movement filed a permit request with the City

administrator for a parade to begin at the high school grounds and

to proceed down Tribble Gap Road to the courthouse. The parade was

scheduled to commence at 1:00 p.m. on Saturday, January 21, 1989.

1
The Movement's claim against the County was resolved by the
Supreme Court in Forsyth County v. The Nationalist Movement, 505
U.S. 123, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) (holding that
the County's permit fee violated the First Amendment). This
court previously ruled against the Movement in favor of the Board
of Education. Nationalist Movement, 913 F.2d at 892.
The City Commission granted the permit but limited the parade

participants to one-lane of Tribble Gap Road. The Movement

subsequently sought to change the time of its event in Cumming to

Saturday morning to accommodate an afternoon rally it intended to

hold in Atlanta. According to the Movement, it planned to inform

parade participants in Cumming of the Atlanta rally and urge them

to travel to Atlanta as part of a caravan.

The City denied the request for a change in the parade time

pursuant to the City Parade and Assembly Ordinance. The Ordinance
provided, in relevant part:

[N]o private organization or group of private persons may use
the roads immediately adjacent to and those roads which lead
directly to the Forsyth County Courthouse grounds for private
purposes of holding a parade, assembly, demonstration, or
other similar activity on any non-holiday weekday prior to
8:00 am or after 5:00 pm or any Saturday, Sunday, or public
holidays prior to 1:00 pm or after 5:00 pm.

City Amended Parade and Assembly Ordinance, § 6(g).2 The ordinance

contains a lengthy preamble explaining the City's findings and

purposes in enacting these restrictions, including preserving

public safety, ensuring the orderly flow of traffic, restricting

2
The ordinance quoted here is dated October 1, 1987.
According to the parties, the Ordinance was subsequently amended
in 1989. The 1989 ordinance is not included in the record on
appeal to this court. Moreover, appellant specifically
represented to the court that "[t]he amendment did not appear to
materially change anything pertinent to the matter at hand...."
Appellant's br. at 2. Accordingly, we rely on the 1987
ordinance.

In this appeal, for the first time, appellant argues
that the ordinance is unconstitutional because it exempts
the annual Fourth of July parade. This provision is not
part of the 1987 ordinance. We assume that the exemption
was enacted by the later amendment. Because appellant did
not raise this issue before this court in its prior appeal
and because it has specifically disclaimed any reliance on
the 1989 amendment, we decline to address this argument.
interference with the administration of justice at the courthouse,

and protecting the rights of citizens residing in close proximity

to the courthouse.3

After this court remanded the case, the City provided evidence

in support of its ordinance. The city manager, a business manager,

a drugstore owner, a banker, and a physician signed affidavits

attesting that the Saturday morning ban was beneficial to residents

who conduct business in the courthouse square on Saturday mornings.

These affiants uniformly observed more traffic on Saturday mornings

than Saturday afternoons.

The City Manager, Gerald Blackburn, stated that the following

businesses are located directly on the square: a drug store,

doctors' offices, a retail outlet, an antique shop, a furniture

store, a barber shop, a beauty salon, real estate agents' offices,

and two banks. He further noted that all of these businesses, as

well as several stores within a few blocks of the square, are open

on Saturday mornings. Moreover, Blackburn stated that he

personally has received several complaints from proprietors of

these businesses concerning the disruption in traffic when parades

or rallies are held on Saturday mornings. He noted that traffic in

Cumming is particularly heavy on Saturday mornings because local

residents are coming downtown to conduct business while others are

passing through Cumming on their way to Atlanta or the North

Georgia Mountains.

Jimmy Goodson, owner of a drugstore on the courthouse square,

3
The preamble is set forth in this court's earlier opinion,
Nationalist Movement, 913 F.2d at 889 n. 3.
and Dr. Shannon Mize, whose office is located on the square,

submitted affidavits stating that they were personally aware of

many patients who were only able to schedule doctors' appointments

or fill prescriptions during Saturday mornings. Both of these

affiants were personally aware of the traffic disruption that

occurs when parades and rallies are scheduled for Saturday

mornings.

In response, the Movement submitted an affidavit from Daniel

Carver, a resident of Oakwood, Georgia, who has attended events in

Cumming on Saturday mornings. This affiant described Cumming as

lacking any urban congestion and stated that there is no difference

between the traffic on Saturday mornings and Saturday afternoons.

The district court relied heavily on the City's affidavits in

holding that the ordinance was constitutional.

II.

The only issue before this court is whether the City's ban on

Saturday morning parades is a reasonable time, place and manner

restriction on speech.4 Although the Nationalist Movement seeks to

introduce other issues, it is precluded from doing so for two

reasons. First, in its prior appeal to this court, the Movement

argued only that the ordinance was a blanket prohibition on speech

rather than a reasonable time, place and manner restriction and

that the City had not proven its interest in controlling traffic.

The Movement did not raise the issues of overbreadth, vagueness and

4
This court originally remanded to allow the City to present
evidence with respect to two issues: the Saturday morning ban
and the restriction to one lane of Tribble Gap Road. The
Movement voluntarily dismissed the second issue. Appellant's br.
at 2 n. 2.
equal protection that it seeks to introduce here; thus, the

Movement waived these claims by failing to raise them in the prior

appeal.

Second, the Movement's attorney agreed to narrow the issue to

the Saturday morning ban during a pre-trial conference with the
5
district court as reflected by a pre-trial order of the court.

Parties are bound by such representations in order to allow the

court to efficiently manage its docket. See United States v. First

Nat'l Bank of Circle, 652 F.2d 882, 886 (9th Cir.1981) ("Unless

pretrial orders are honored and enforced, the objectives of the

pretrial conference to simplify issues and avoid unnecessary proof

... will be jeopardized if not entirely nullified."). Accordingly,

we turn to the single issue before us.

It is undisputed that the streets of the City of Cumming

leading to the courthouse are quintessential public forums.

Therefore, the City's right to limit expressive activity on these

streets is "sharply circumscribed." Perry Education Assoc. v.

Perry Local Educators' Assoc., 460 U.S. 37, 45, 103 S.Ct. 948, 954-

55, 74 L.Ed.2d 794 (1983). The City, however, may enforce

reasonable restrictions on the time, place, and manner of the

speech if they are "content neutral, are narrowly tailored to

achieve a significant government interest, and leave open ample

5
The pretrial order stated that "[P]laintiff and defendant
also agree that the remaining issue between the parties is the
constitutionality of the Cumming ordinance, as set forth in the
remand from the Eleventh Circuit." R. 3-74 at 1. As previously
noted, this court remanded for the limited purpose of allowing
the City to submit evidence on whether its ordinance was narrowly
tailored to achieve a significant government interest and whether
ample alternative means of communication existed. Nationalist
Movement, 913 F.2d at 889-90.
alternative channels of communication." Id.

The prior panel of this court held that the Saturday morning

ban on parades is content-neutral. We are bound by the law of the

case.6 Thus, we need only decide the three remaining issues: 1)

whether the City has advanced evidence that the ordinance furthers

a significant government interest, 2) whether the ordinance is

narrowly tailored to achieve these objectives, and 3) whether the

ordinance leaves open alternative means of expression.

The City has argued that it has a significant interest in

controlling traffic and ensuring the convenience and safety of its

citizens. The City submitted affidavits attesting to increased

traffic on Saturday mornings and the need for local citizens to

have access to doctors' offices, a drug store and other businesses.

It is well established that these are significant governmental

interests. Cox v. State of Louisiana, 379 U.S. 536, 553-55, 85

S.Ct. 453, 464, 13 L.Ed.2d 471 (1965) ("Governmental authorities

have the duty and responsibility to keep their streets open and

available for movement."); see also Metromedia, Inc. v. City of

San Diego, 453 U.S. 490, 506-09, 101 S.Ct. 2882, 2892-93, 69

L.Ed.2d 800 (1981) (holding that traffic safety is a substantial

government goal). Accordingly, the City has met the first of the

requirements for a reasonable time, place and manner restriction.

In evaluating whether the ordinance is narrowly tailored to

achieve these goals, we are mindful of the standards set forth by

6
See United States v. Robinson, 690 F.2d 869, 872 (11th
Cir.1982) ("Under the law of the case doctrine, both the district
court and the court of appeals generally are bound by findings of
fact and conclusions of law made by the court of appeals in a
prior appeal of the same case.").
the Supreme Court on this issue. In Ward v. Rock Against Racism,

491 U.S. 781, 799-800, 109 S.Ct. 2746, 2758, 105 L.Ed.2d 661

(1989), the Court stated that the requirement of narrow tailoring

is satisfied if " "the ... regulation promotes a substantial

government interest that would be achieved less effectively absent

the regulation.' " Id. (quoting United States v. Albertini, 472

U.S. 675, 689, 105 S.Ct. 2897, 2906, 86 L.Ed.2d 536 (1985)). The

Court further noted that "[s]o long as the means chosen are not

substantially broader than necessary to achieve the government's

interest, ... the regulation will not be invalid simply because a

court concludes that the government's interest could be adequately

served by some less-speech-restrictive alternative." Ward Rock,

491 U.S. at 800, 109 S.Ct. at 2758. The Court cautioned, however,

that the restriction may not burden significantly more speech than

necessary to achieve the government's goals. Id.

The City has submitted affidavits showing that the ordinance

is narrowly drawn to achieve its aims. The evidence in the record

establishes that Saturday morning is a particularly congested time

of the day in the City of Cumming because of traffic leading to
7
Atlanta and to the Georgia mountains. In addition, local

7
This case is distinguishable from Beckerman v. City of
Tupelo, 664 F.2d 502, 513 (5th Cir. Unit A 1981), which is not
binding in this circuit. The plaintiffs in Beckerman challenged
an ordinance which prohibited parades in the downtown area after
6 p.m. and provided standards for the conduct of marchers.
School groups and government agencies were excluded from the
marching standards. The court held that the time restrictions
were overbroad because the City claimed that they had a security
interest in preventing night parades, but daylight extended past
6 p.m. in Tupelo for significant portions of the year. Here, in
contrast, the City asserted an interest in traffic control and
accordingly limited parades during the time of the day with the
heaviest traffic. The Beckerman court also struck down the
residents from outside of the City use Saturday mornings to attend

doctor's appointments and to conduct business. The City has

presented sufficient evidence to establish that its desire to

control traffic and to promote safety would be achieved less

effectively in the absence of the regulation. Moreover, the ban on

parades in the morning is not substantially broader than needed to

further the City's purposes because the ordinance prohibits parades

during those hours when the City has determined that traffic is

heaviest. See Metromedia, 453 U.S. at 508-09, 101 S.Ct. at 2893

(deferring to local authorities with respect to legislative

judgements as to traffic matters).

Finally, we address whether ample alternative channels of

communication are available. The ordinance does not prohibit

leafletting, distributing pamphlets, or marching on the streets not

adjacent to, or leading directly to the courthouse grounds.

Moreover, parades and assemblies are allowed on Saturday

afternoons. The Movement has many alternative means to communicate

its message.

III.

Accordingly, we hold that the ban on Saturday morning parades

is a reasonable time, place and manner restriction and AFFIRM the

decision of the district court upholding the constitutionality of

the City of Cumming's ordinance.

exclusion of school and government groups from the regulations as
violative of equal protection. As previously noted, appellant
has waived an equal protection argument by failing to raise this
issue in its first appeal and expressly agreeing to limit the
issue in this case to the reasonableness of the Saturday morning
ban.