No. 05-____

In the

Supreme Court of the United States.

____________________

City of Fairfield, Ohio; Lieutenant Kevin Haddix; and Janette Matala, Zoning Inspector,

Petitioners,

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Lynn D. Tucker, Jr., as General Vice President of the International Association of Machinists and Aerospace Workers, and International Association of Machinists and Aerospace Workers, District Lodge No. 34,

Respondents.
_____________________

On Petition for Writ of Certiorari to the United States
Court of Appeals for the Sixth Circuit.

_____________________

PETITION FOR WRIT OF CERTIORARI
_____________________

 

John H. Clemmons

Thomas A. Dierling

Millikin & Fitton Law Firm

530 Wessel Drive–Suite 2A

Fairfield, OH 45014

(513)829-6700

Wilson G. Weisenfelder

Laura I. Hillerich

Rendigs, Fry, Kiely & Dennis, LLP

900 Fourth & Vine Tower

Cincinnati, OH 45202

(513)381-9200

Dennis P. Derrick

Seven Winthrop Street

Essex, MA 01929

(978)768-6610

Counsel of Record

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Questions Presented.

1. Where an ordinance prohibiting “structures” in public right-of-ways is content-neutral and promotes substantial government interests which are achieved less effectively absent the regulation, can the court of appeals nevertheless find that it is not narrowly tailored under Ward v. Rock Against Racism , 491 U.S. 781(1989) because the expressive conduct it prohibits is in the public right-of-way for only a short period of time and “can be easily removed?”

2. Has the court of appeals made more rigorous than constitutionally required Ward's time, place or manner analysis for determining whether a content-neutral ordinance is narrowly tailored when it decided for itself that the Union's expressive activity in the public right-of-way did not present “any adverse effects” for motorists or pedestrians, did not diminish the aesthetics of this public forum, was merely “temporary” and could be “easily removed?”

3. Does Ward's narrow tailoring analysis allow a reviewing court to excuse the Union's violation of a content-neutral ordinance furthering substantial government interests because that court could imagine circumstances under which the Union's expressive conduct in the public right-of-way might not derogate from the legitimate government concerns which caused the City to enact the ordinance in the first place?

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Table of Contents

 

Questions Presented For Review ..................................................................................................... i

Table of Contents ........................................................................................................................... ii

Table of Authorities ........................................................................................................................ iii

Citations of Opinions and Orders .................................................................................................... 1

Basis for Jurisdiction in this Court .................................................................................................... 1

Constitutional and Statutory Provisions Involved .............................................................................. 1

Statement of the Case .....................................................................................................................

Argument Supporting Allowance of the Writ ...................................................................................

The Decision Below Dramatically Misapplies This Court's Time, Place Or Manner Analysis For Determining Whether The City's Ordinance Is Narrowly Tailored To Promote Substantial Government Interests.......................................................................................

Conclusion.....................................................................................................................................

Appendix................................................................................................................................... post

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Table of Authorities


1.

Citations of Opinions and Orders.

The published opinion of the Court of Appeals for the Sixth Circuit in Lynn D. Tucker, Jr. et al. v. City of Fairfield, Ohio et al. , 398 F.3d 457(C.A. No. 03-4508), decided and filed February 11, 2005, affirming the District Court's order granting the Respondents a preliminary injunction, is set forth in the Appendix hereto(App. 1-23).

The unpublished Memorandum and Order of the United States District Court for the Southern District of Ohio, Western Division, in Lynn D. Tucker, Jr. et al. v. City of Fairfield, Ohio et al. (Civil Action No. C-1-03-607), dated October 27, 2003, granting the Respondents' motion for a preliminary injunction, is set forth in the Appendix hereto(App. 24-38).

The unpublished order of the Court of Appeals for the Sixth Circuit in Lynn D. Tucker, Jr. et al. v. City of Fairfield, Ohio et al. , C.A. No. 03-4508, filed April 28, 2005, denying the Petitioners' timely filed petition for rehearing en banc , is set forth in the Appendix hereto(App. 39).

The full text of the City's Ordinance No. 155-03, amending Section 905.03(c) of the Fairfield City Code, dated September 13, 2003, is set forth in the Appendix hereto(App . 40-45).


Basis for Jurisdiction in this Court.

The decision of the United States Court of Appeals for the Sixth Circuit affirming the District Court's granting of the Respondents' motion for a preliminary injunction was entered on February 11, 2005; and its order denying the Petitioners' timely filed petition for rehearing en banc was filed on April 28, 2005(App.1;39).

This petition for writ of certiorari is filed within ninety (90) days of the date of the court of appeals' denial of the Petitioners' timely filed petition for rehearing en banc . 28 U.S.C. Section 2101(c). Revised Supreme Court Rule 13.3.

The jurisdiction of this Court is invoked pursuant to the provisions of 28 U.S.C. Section 1254(1).

Constitutional, Statutory and Rule Provisions Implicated by This Petition.


United States Constitution, Amendment I:

Congress shall make no law...abridging the freedom of speech.

2.

United States Constitution, Amendment XIV, Section 1:

...No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law....

28 U.S.C. Section 1331:

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

28 U.S.C. Section 1343(a)(4):

(a) The district courts shall have original jurisdiction of any civil
action authorized by law to be commenced by any person:
...

(3) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.

Civil Rights Act–42 U.S.C. Section 1983:

Every person who under color of any statute, ordinance, regula­tion, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

3.

Statement of the Case.

The Respondent Lynn D. Tucker, Jr. (“Tucker”) is the General Vice President of the International Association of Machinists and Aerospace Workers, Eastern Regional Office; and the Respondent International Association of Machinists and Aerospace Workers, Lodge No. 34 (“the Union”) is a duly organized labor group located in Cincinnati, Ohio(App. 25).

On three separate days, February 26, 2003, July 1, 2003, and July 31, 2003, Tucker and several of the Union's members picketed within the public right-of-way adjacent to Fairfield Ford, a car dealership located at 5221 Dixie Highway within the municipal limits of the Petitioner City of Fairfield, Ohio(“the City”)(App. 2;25-26). There were 25 to 40 protesters at each demonstration which all took place in the public right-of-way between Dixie Highway and Fairfield Ford. Each of these demonstrations lasted between one and two hours.

While protesting Fairfield Ford's alleged unfair labor practice of refusing to negotiate with the Union, on each occasion the Union members carried picket signs and deployed in the public right-of-way an inflatable rat balloon measuring approximately twelve (12) feet high and eight (8) feet wide. The rat balloon was placed on a tarp, inflated using a generator and internal fan and then secured to the ground with tent stakes or tethers so that it would not tip over. The rat balloon remained in a stationary location, staked in the right-of-way, during the course of each of the Union's demonstrations in front of Fairfield Ford.

Once the demonstration concluded, Union members turn off the generator, disconnect the fan, deflate the balloon, pull the tethers out of the ground and then remove the rat balloon from the public right-of-way. Each procedure for deploying and later removing the rat balloon in the public right-of-way takes between five to ten minutes.

At the time of these Union demonstrations in front of Fairfield Ford, the City had in force its Ordinance 905.03 of the Fairfield City Code which governs the use of public streets, alleys and grounds. Subsection (c) of this Ordinance provided:

No person, firm, or corporation shall construct or place or cause the construction or placement of any hrubbery, trees, parking facilities or any other structure or improvement, other than approved street trees and mailboxes, on any street, alley, public right or [sic] way, easement or public grounds without the written permission of the [City's] Public Works Director.

(App. 27)(emphasis supplied). As originally enacted, Ordinance 905.03 defined a “structure” as

anything constructed, the use of which requires permanent location on the ground or attachment to something having permanent location on the ground, and also in­

4.

cludes anything constructed which is not enclosed within another structure and is placed in a stationary location.

(App. 27).

The Union notified the City's Police Department about its demonstration on February 26, 2003, and its intention to use the rat balloon. Although the City's police officers arrived at the demonstration after Fairfield Ford complained about the activity in front of its business, they made no arrests and issued no citations because of the Union's use of the rat balloon.

Prior to its second demonstration at Fairfield Ford on July 1, 2003, the Union once again notified the City's Police Department of this event. During the demonstration which again included the deployment of the rat balloon in the public right-of-way between Dixie Highway and Fairfield Ford, the City's zoning inspector (the Petitioner Janette Matala) arrived at the scene and informed the Union protestors that they would have to remove the rat balloon from its location. Thereafter, the City's police officers arrived and warned the demonstrators that they would be arrested if they did not take down the rat balloon. The Union members thereafter deflated the rat balloon.

The third demonstration by the Union at Fairfield Ford took place on July 31, 2003. During this demonstration, Tucker and the Union again deployed the rat balloon in the public right-of-way between Dixie Highway and Fairfield Ford. The City's police officers arrived at the scene and after Tucker refused to remove the rat balloon immediately, they issued him a citation with summons for violating Section 905.03 of the Fairfield City Code. The citation charged Tucker with having engaged in unlawful “construction on Streets/Alleys/Right of Way...Easements, or Public Grounds.”

In the wake of these events, Tucker and the Union brought this civil action on August 27, 2003, in the District Court for the Southern District of Ohio against the City, its zoning inspector Matala, and Lieutenant Kevin Haddix of the City's Police Department, seeking a temporary restraining order, a preliminary injunction and damages as the result the City's enforcement of Section 905.03 against them. Positing jurisdiction on 42 U.S.C. Section 1983, they claimed that the rat balloon was not a “structure” within the meaning of the Ordinance and that City had violated their First Amendment rights as well as their civil rights in applying the Ordinance against them.

Tucker and the Union requested the entry of a temporary restraining order and then a preliminary injunction which prevented the City and its employees from further interfering with its deployment of the rat balloon at their demonstrations; a judgment declaring that the display of the rat balloon in the public right-of-way between Dixie Highway and Fairfield Ford is protected speech under the First Amendment and Section 7 of the National Labor Relations Act, 29 U.S.C. Section 157; and an award of damages for the violation of their civil rights together with attorney's fees.

5.

On August 29, 2003, the District Court, Beckwith, J., issued a temporary restraining order consistent with the request of Tucker and the Union, one which expired on September 15, 2003, the day of its hearing on their request for a preliminary injunction. On September 13, 2003, two days before the hearing in the District Court on the preliminary injunction, the City Council of Fairfield met in special session and revised Ordinance 905.03 of the City Code by amending its definition of “structure” as used in the Ordinance to mean

any object, whether permanent or temporary, including, but not limited to, non-public signs, that is constructed, erected or placed in a stationary location on the ground or is attached to or placed upon an object constructed, erected or placed in a stationary location on the ground. This definition does not include motor vehicles. However, non-motor vehicles objects attached to or placed upon motor vehicles are themselves placed in a stationary location are included.

(App. 39-45).

The City Council's preamble to this enactment determined that the City has a substantial government interest in promoting public safety in the use of public rights-of-way by ensuring the smooth and safe flow of pedestrian and street traffic and in furthering the aesthetic appeal of and preventing visual blight in its public rights-of-way(App. 41). It also made specific reference to this litigation between Tucker, the Union and the City, and the right of a municipality to “restrict the placement of objects, including, but not limited to, non-public signs, in the public rights-of-way under the holding of the United States Supreme Court in the case of Members of the City Council of the City of Los Angeles et al. v. Taxpayers for Vincent et al. , 466 U.S. 789(1984) and as stated in the case of Lubavitch Chabad House, Inc. v. City of Chicago , 917 F.2d 341(7th Cir. 1990)”(App. 40-41).

The hearing on the preliminary injunction went forward on September 15, 2003. On October 27, 2003, the District Judge granted the motion for a preliminary injunction in a written decision which found, among other things, that Tucker and the Union had demonstrated a likelihood of success on their claim that the City's actions preventing their deployment of the rat balloon in the public right-of-way between Dixie Highway and Fairfield Ford violated their First Amendment rights(App. 24-38).

Upon the City' appeal, the Court of Appeals for the Sixth Circuit in a majority opinion affirmed Judge Beckwith's ruling granting the preliminary injunction(App. 1-23). It first concluded that the District Judge did not abuse her discretion in finding that the Union's use of the “portable” rat balloon on the public right-of-way is deserving of First Amendment protection. The majority reasoned that “[u]nlike the more permanent structures analyzed in Graff [ v. City Chicago , 9 F.3d 1309(7th Cir. 1993)( en banc )(newsstands)] and Lubavitch, [ supra (menorah)], the balloon in the instant case is temporary and easily movable”(App. 7-8). Moreover, the Union uses the balloon only

6.

during its protests, which last just one to two hours; and “the balloon has not been shown to cause any danger that could justify restriction of the balloon's use”(App. 8). As it earlier found, “there is no evidence on this record indicating that the protests, including the use of the balloon, created any obstruction or safety hazard”(App. 4).

Having concluded that the Union's use of the rat balloon in a public right-of-way is constitutionally protected expression, the majority turned to the question of whether the City may nevertheless prohibit Tucker and the Union from deploying it in the public right-of-way during their protests(App. 8-11). Because the area where the rat balloon was displayed implicated streets and sidewalks, traditional public fora, the City could enforce content-neutral time, place or manner regulations only if they were “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” (App. 9-10 quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n , 460 U.S. 37, 45(1983)).

Since Ordinance 905.03(c) of the City Code was not a content-based restriction on speech, the majority analyzed the question under this Court's decision in Ward v. Rock Against Racism , 491 U.S. 781, 799(1989), which cautions that the requirement of narrow tailoring is satisfied “so long as the...regulation promotes a substantial government interest that would be achieved less effectively absent the regulation” and does not “burden substantially more speech than is necessary to further the government's legitimate interest”(App. 9-11). Employing this analysis, the majority ruled that the Ordinance was not narrowly tailored as applied to the Union's use of the rat balloon(App. 10).

It concluded:


[i]n our view, the asserted government interests of
keeping the public right-of-way clear and preserving
the aesthetics of the community, while generally
considered substantial, are simply not achieved any
less successfully absent the application of the ordinance
in this case. There is no objective evidence in the
record before us suggesting that the temporary
placement of the balloon in the public right-of-way
has any adverse effects, such as obstruction of
pedestrian or automobile traffic
. By applying the
ordinance to prohibit the temporary use of the
balloon in this case, it therefore appears that the
City has applied its ordinance in a manner that
is “substantially broader than necessary to achieve
its interests.”

(App. 10)(emphasis supplied). The majority accordingly agreed with the District Judge that Tucker and the Union had demonstrated a likelihood of success on the merits of their complaint, warranting the entry of a preliminary injunction(App. 11-12).

7.

Circuit Judge Kennedy dissented from this ruling(App. 12-23). She would have found that Tucker and the Union were unlikely to succeed on the merits; that the District Judge improperly applied the law; and that none of the considerations for the entry of a preliminary injunction (e.g., irreparable harm, harm to others and to the public's interest) justified this equitable relief(App. 12­13).

Judge Kennedy agreed with the majority that the rat balloon is speech and is a “structure” under either version of the City's ordinances(App. 13-15). She also agreed that the right-of-way where the rat balloon was erected is “akin to a sidewalk;” and that this Court's time, place or manner analysis is the appropriate framework for reviewing the ordinance as applied to the rat balloon(App. 15). In applying this analysis, she found like the majority that the City's ordinance is content-neutral and that the City has a substantial government interest in keeping its right-of-ways clear to further public safety, permit pedestrian passage and preserve the aesthetics of the community (App. 15-16).

However, Judge Kennedy disagreed with the majority's view that the ordinance was not narrowly tailored to serve these substantial government interests(App. 16-20). Relying upon this Court's decision in Ward that a regulation is narrowly tailored, even if it could be accomplished by some less-speech-restrictive alternative, as long as it promotes a substantial government interest which would be achieved less effectively absent the regulation, she reasoned that this “narrowly tailored” test is a far more lenient one than a least restrictive means test and that some amount of “over inclusiveness is permissible provided that the evil targeted by the statute is permissible”(App. 17).

According to the dissent, this test requires that the court first look to the government's significant interests and then determine whether the ordinance narrowly targets the identified evil, regardless of the speech it affects (App.18;19-20). Instead of doing so, the majority (and the District Judge) investigated first the nature of the structure, the fact that the rat balloon was deployed in the right-of-way for just one or two hours, was not “permanent,” and had not (yet) caused any danger or safety hazard(App. 4;8;10). Judge Kennedy thought this assessment was “an incorrect mode of analysis” because the narrow tailoring test is not a balancing test dependent upon the value of the speech affected by the ordinance but rather a straightforward inquiry, regardless of the value which a court may assign the speech, of whether the ordinance serves a significant government interest and whether it is narrowly tailored to address that interest(App. 17-18).

To make every government regulation of speech subject to such a balancing test, the dissent contended, would make the narrow tailoring portion of the time, place or manner analysis much more rigorous than it is and arbitrary in its application, giving judges the right to second guess legislatures by balancing the identified interest against the value of the speech(App. 18-19). “So long as, in general, the City has a significant government interest, and so long as the ordinance is narrowly tailored to serve that interest, as is the case here, it should not matter what type of speech is affected by the ordinance....We should evaluate an ordinance's narrow tailoring only in relation to the identified significant government interest and not in relation to the speech it affects”(App. 19-20).

8.

Employing this approach, Judge Kennedy concluded:

[g]iven that the interest here is keeping the right-of-way clear, an outright ban on structures is a reasonably narrow means of serving that interest. The right-of-way is blocked by a structure regardless of whether that structure is present for one hour or for one year. Part of the public safety rationale that forms the basis for keeping the right-of-way clear likely involves allowing emergency vehicles free access to it in the event of a problem. If a structure is present in the right-of-way for any period of time, that significant interest is diminished . While it is true that a structure present for two hours diminishes the interest less than would a structure present for a much longer time, all that the City needs to show in order to prove narrow tailoring is that the evil targeted is remedied by the ordinance in a manner that is not over inclusive. I believe the ordinance in this case meets that standard and is, therefore, narrowly tailored to serve the significant interest.

(App. 20)(emphasis supplied). She also found that the City's significant interest in preserving the aesthetics of the community was diminished “the moment a structure is constructed in the right-of-way”(App. 23).

The dissent finally determined that there were readily available alternative channels for communication here(App. 20-21). Instead of being tethered to a stationary position in the public right-of-way, the rat balloon could have been “moved around,” on a cart or otherwise; the Union could have made signs with pictures of the rat; it could have passed out smaller rat balloons to passers-by; or used many other methods to communicate its message(App.21).

Finding an abuse of discretion by the lower court in granting the preliminary injunction, Judge Kennedy would have reversed its ruling and remanded the matter for further proceedings (App. 21-22).

On April 28, 2005, the Court of Appeals for the Sixth Circuit denied the City's timely filed petition for rehearing en banc (App. 39).

The City has now brought to this Court its petition seeking a writ of certiorari to the United States Court of Appeals for the Sixth Circuit.

9.

Argument Supporting Allowance of the Writ.

The Decision Below Dramatically Misapplies This Court's Time, Place Or Manner Analysis For Determining Whether The City's Ordinance Is Narrowly Tailored To Promote Substantial Government Interests.

Tucker and the Union brought their complaint claiming that Ordinance 905.03(c) of the City Code, as applied to their use of the large rat balloon in the public right-of-way, violated their First Amendment rights(App. 4;24). An as-applied challenge to the Ordinance contends that the law is unconstitutional as applied to their particular speech activity, even though the law may be capable of valid application to others. Members of City Council v. Taxpayers for Vincent , 466 U.S. 789, 803 & n. 22(1984). While an as-applied challenge depends on the concrete facts of this particular case and, if successful, does not render the law invalid as to third parties not before the Court, if the City's Ordinance cannot be validly applied to the Union's conduct here, it cannot be validly applied to the same or similar conduct in the City's public rights-of-way undertaken by third parties in the future. Id . at 802-803.

Under principles repeatedly enunciated by this Court for assessing the City's right to regulate the Union's activity here, the first inquiry is whether the Union's expressive conduct is deserving of First Amendment protection. There is no doubt that the Union's peaceful picketing, protesting and demonstrating in a public place incident to a private labor dispute with Fairfield Ford is within the ambit of First Amendment protection. Hill v. Colorado , 530 U.S. 703, 722 & n.30(2000). United States v. Grace, 461 U.S. 171, 176-177(1983). Carey v. Brown , 447 U.S. 455, 460-462(1980). Edwards v. South Carolina , 372 U.S. 229, 235(1963). Thornhill v. Alabama , 310 U.S. 88, 101-103(1940).

However, this Court has made clear that even though picketing and demonstration on public property is First Amendment activity, it may nonetheless be regulated by the government and is subject to the same content-based and content-neutral tests that apply to other forms of expressive activity. Hill v. Colorado, supra , 530 U.S. at 722 n. 30. Cameron v. Johnson , 390 U.S. 611, 612 n.1; 617(1968). United States v. Grace , 461 U.S. at 181;183-184. Cox v. Louisiana , 379 U.S. 559, 563(1965). This flows from the principle that no person or group wishing to propagandize their views has a constitutional right to do so whenever, however and wherever it pleases. United States v. Grace , 461 U.S. at 177-178 quoting Adderley v. Florida , 385 U.S. 39, 47-48 (1966). “Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities.” Cornelius v. NAACP Legal Defense & Ed. Fund , 473 U.S. 788, 799-800(191985).

10.

Recognizing that the City, “no less than a private owner of property, has power to preserve the property under its control for the use for which it is lawfully dedicated,” United States v. Grace , 461 U.S. at 178 quoting Adderley v. Florida , 385 U.S. at 47, this Court has adopted a forum analysis as a means of determining when the government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes.

The public streets and right-of-ways of the City where the Union activity occurred and where the rat balloon was inflated and then tethered to the ground are the “archetype[s] of...traditional public for[a].” Frisby v. Schultz , 487 U.S. 474, 480-481(1988). Boos v. Barry , 485 U.S. 312, 318(1988). Hague v. CIO , 307 U.S. 496, 515(1939). In these public fora, the government may not prohibit all communicative activity. United States v. Grace , 461 U.S. at 177. Perry Ed. Assn. v. Perry Local Educators' Assn. , 460 U.S. 37, 45(1983). The appropriate level of scrutiny given the City's regulation of speech in these fora hinges on whether the Ordinance distinguishes between prohibited and permitted speech on the basis of its content. Frisby v. Schultz , 487 U.S. at 481.

If the Ordinance contains a content-based exclusion, the City must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Perry Ed. Assn. v. Perry Local Educators' Assn. , supra . Carey v. Brown , 447 U.S. at 461. On the other hand, if the Ordinance is content-neutral, it is subject to a less stringent, “intermediate level” of scrutiny and it may regulate speech if it contains reasonable time, place or manner restrictions, is narrowly tailored to serve a significant government interest, and leaves open ample alternative channels of communication. Bartnicki v. Vopper, 532 U.S. 514, 545(2001). Frisby, 487 U.S. at 482. United States v. Grace, 461 U.S. at 177. Perry , 460 U.S. at 45. See Watchtower Bible & Tract Soc. of N.Y., Inc. v. Village of Stratton , 536 U.S. 150, 175(2002)(Rehnquist, C.J., dissenting).

To be content-neutral, the Ordinance must regulate speech for government purposes unrelated to the content of the ideas or views expressed. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 643(1994). Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 763(1994). Members of City Council v. Taxpayers for Vincent , 466 U.S. 789, 803 & n. 22(1984). Heffron v. International Soc. for Krishna Consciousness, Inc. , 452 U.S. 640, 649(1981). The government's purpose is the controlling consideration. Clark v. Community for Creative Non-Violence , 468 U.S. 288, 293(1984). Heffron , 452 U.S. at 648. Thus a regulation that serves government purposes unrelated to the content of the expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. Ward v. Rock Against Racism , 491 U.S. 781, 791-792(1989).

Measured by this standard, Ordinance 905.03(c) of the City Code is content-neutral. It prohibits the presence of any “structure” in a public right-of-way other than approved street trees and mailboxes. There is “not even a hint of bias or censorship” towards expressive conduct in the City's enactment of the Ordinance; and there is no claim that the Ordinance was designed to suppress certain ideas that the City finds distasteful. Members of City Council v. Taxpayers for Vincent , 466

U.S. at 805. The text of the Ordinance itself is silent concerning any speaker's point of view and the District Judge found that this was a content-neutral time, place and manner restriction(App. 30-31). See id. ; Clark v. Community for Creative Non-Violence , 468 U.S. at 295.

11.

Morever, the purposes asserted by the City for its enactment and enforcement of Ordinance 905.03(c) go to the very heart of its duties as a trustee of the public welfare. Promoting the safe passage of emergency and other vehicles, unhindered access for pedestrian traffic and aesthetics all have been recognized by this Court as legitimate government purposes justifying the regulation of speech in public fora. See, e.g. , Madsen v. Women's Health Center, Inc., 512 U.S. at 768(the government has a strong interest in ensuring public safety and order “in promoting the free flow of traffic on public streets and sidewalks...”); Members of City Council v. Taxpayers for Vincent , supra (aesthetics); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507 (1981) (aesthetics); Schneider v. State , 308 U.S. 147, 160(1939)(“[M]unicipal authorities, as trustees for the public, have the duty to keep their communities' streets open and available for the movement of people and property, the primary purpose to which streets are dedicated.”).

Given that the Union was engaging in First Amendment activity when it inflated and then staked the large rat balloon to the ground in a public right-of-way; that the Union was then subject to the content-neutral provisions of Ordinance 905.03(c) of the City Code; and that in enforcing this Ordinance against Tucker and the Union, the City was furthering the significant government purposes of promoting the safe passage of emergency and other vehicles, unhindered access for pedestrian traffic and aesthetics, it remained to be considered whether this content-neutral time, place or manner restriction was narrowly tailored to serve a significant government interest and whether it leaves open ample alternative channels of communication.

In Ward v. Rock Against Racism , supra, this Court, building upon its prior decisions which had employed the narrow tailoring analysis, clarified and reaffirmed the approach which should be taken. Specifically, the Ward Court, speaking through Justice Kennedy, wrote:

[l]est any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate content-neutral interests but that it need not be the least restrictive means of doing so. Rather, the requirement of narrow tailoring is satisfied “so long as the...regulation promotes a substantial government interest that would be achieved less effectively absent the regulation .”... To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals....So long as the means chosen are not substantially broader than necessary to achieve the government's interest, however, the regulation will

12.

not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative. “The validity of [time, place or manner] regulations does not turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method of promoting significant government interests” or the degree to which those interests should be promoted.

491 U.S. at 798-800 quoting United States v. Albertini , 472 U.S. 675, 689(1985) and Clark v. Community for Creative Non-Violence , 468 U.S. at 297;299(emphasis supplied) (footnotes omitted).

Under Ward's narrow tailoring inquiry, given that the City has a substantial interest in keeping its right-of-ways clear for public safety, pedestrian traffic and aesthetic purposes, Ordinance 905.03(c) of the City Code prohibiting “structures” in public right-of-ways is sufficiently tailored where it is shown that without this regulation those substantial government interests will be achieved less effectively. Even if not a perfect fit, this nexus between the City's regulation and the effect it has on accomplishing the City's legitimate substantial interests gives the ordinance the tailoring it needs to survive a challenge when it impinges incidentally on protected speech.

By requiring that the Ordinance be targeted to accomplish important values the City is obligated to protect, Ward's narrow tailoring test emphasizes that an ordinance will not be invalidated “simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive analysis.” In this sense, the Ward test focuses first on the substantial government interests involved and then asks whether the regulation furthers those interests. If it does, and if it does not substantially burden more speech than necessary, it is narrowly tailored and this portion of the Court's time, place or manner analysis will uphold the Ordinance's constitutional validity even if it incidentally impinges on expressive activity.

As this Court has held, even a complete ban on expressive activity can be narrowly tailored but only if each activity within the proscription's scope is an appropriately targeted evil. Frisby v. Schultz , 487 U.S. at 485. In Members of City Council v. Taxpayers for Vincent , 466 U.S. at 809-810, this Court upheld an ordinance which banned all signs on public property because the interest supporting the regulation, an aesthetic concern for avoiding visual clutter and blight, rendered each sign an evil. Id. The complete prohibition of signs was justified because the “substantive evil— visual blight—[was] not merely the possible byproduct of the activity, but [was] created by the medium of expression itself .” Id. at 810(emphasis supplied).

Similarly, in Frisby v. Schultz , 487 U.S. at 485-487, this Court found narrowly tailored an ordinance's complete ban of focused picketing at particular homes in residential areas because it did not prohibit public picketing but rather the kind of offensive private picketing targeted at particular individuals in their homes; and the government had a legitimate interest, i.e., providing residential privacy for its citizens, which justified the ban. Id . at 486. Again, the substantive evil, targeted

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residential picketing of particular persons in their own homes, was “created by the medium of expression itself.” Id . at 487 quoting Members of City Council v. Taxpayers for Vincent , 466 U.S. at 810.

The same is true here. The substantive evil targeted by the Ordinance's complete ban of “structures” in public right-of-ways —obstructed public ways, impassable sidewalks or cluttered grassy areas—is not merely a possible by-product of the Union's activity of inflating and staking the large rat balloon in the public right-of-way during its demonstrations, but rather is created by the Union's medium of expression itself . The application of the Ordinance in this case responds precisely to the substantive problem which legitimately concerns the City. As in Ward, Taxpayers for Vincent and Frisby, the Ordinance here curtails no more speech than is necessary to accomplish its purposes and is narrowly tailored under Ward's rationale. Contrast Schneider v. State , 308 U.S. at 162-163(anti-littering statute held invalid because it could have addressed the substantive evil of littering without prohibiting expressive activity of handbilling and right to communicate directly with a willing listener).

Instead of employing this analysis under Ward , Taxpayers for Vincent and Frisby to find that the Ordinance was narrowly tailored and therefore enforceable, the District Court excused the Union's rat balloon from the Ordinance's proscription because although staked and tethered in a public right-of-way, it was not obstructive, was only there for a limited period of time, could be removed “easily” from the right-of-way and was “portable”(App. 31;35). A majority of the court of appeals concurred with this analysis finding that “there is no objective evidence in the record before us suggesting that the temporary placement of the balloon in the public right-of-way has any adverse effects, such as obstruction of pedestrian or automobile traffic”(App. 4;10).

Nothing in Ward or any other decision of this Court justifies this extended narrow tailoring analysis. Once the determination is made that the regulation furthers substantial government interests, as here, and that it does not substantially burden more speech than necessary, as here, it is a narrowly tailored regulation and this narrowly tailored portion of the Court's time, place or manner analysis has been satisfied even if it incidentally impinges on expressive activity . To extend the calculus by rationalizing that the Union's expressive conduct in the public right-of-way is benign, time-limited and non-obstructive is to require the City to perform the impossible task of tailoring its regulations to prohibit structures in public right-of-ways only where these structures would immediately or most certainly interfere with the function of roadways, sidewalks and grassy areas.

The lower courts' extended analyses defy common sense. How can the court of appeals—or any court---know that the Union's rat balloon, once anchored in the public right-of-way in violation of the Ordinance, will not obstruct the City's roadways, sidewalks or grassy area and never present a hazard? How can it reason that even if temporary, it will not while anchored in the public right-of-way intimidate pedestrians, distract or impede passing motorists and emergency vehicles or diminish the aesthetics of the public area? To even engage in such a calculus which makes the violation dependent on guesses about the extent or nature of the found violation runs afoul of this Court's clear

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statement in Ward that a regulation “need not be the least restrictive or least-intrusive means” of serving the City's legitimate public interests. There simply is no room in Ward's analysis for making these distinctions, ones which the City, as trustee of the common weal, could not afford to make when it enacted this ordinance.

None of the other considerations identified by the lower courts for excusing the Union's activity from proscription under the Ordinance is relevant under Ward . It does not matter for how long or in what manner the violation occurs; the fact remains that a violation of the Ordinance has taken place. That the rat balloon is sometimes “portable” or easily removed from the public right-of-way does disturb the fact that it is stationary and in the public right-of-way while it is placed there in violation of the Ordinance, invoking all of the legitimate government concerns which led to the Ordinance's enactment . With a narrowly tailored regulation such as this which incidentally affects speech in furtherance of legitimate government purposes, it is enough for its enforcement that a violation has, in fact, occurred—and it is “beside the point” that the Union's rat balloon represents merely a “transitory” violation. See Ward , 491 U.S. at 801.

Nor can Tucker and the Union argue that allowing an exception in this particular case will not threaten the City's important government interests. This Court has repeatedly held that the validity of a regulation which incidentally affects speech is not judged solely by the demonstration at hand; “the validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government's interests in an individual case.” Ward, supra . United States v. Albertini , 472 U.S. at 688-689(“Regulations that burden speech incidentally...must be evaluated in terms of their general effect.”). Clark v. Community for Creative Non-Violence , 468 U.S. at 296-297. Heffron v. International Soc. for Krishna Consciousness, Inc. , 452 U.S. at 652-653.

“The validity of [time, place, or manner] regulations does not turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests or the degree to which those interests should be promoted.” Ward, 491 U.S. at 800. If the Ordinance's prohibition of “structures” in public right-of-ways is invalidated when applied to those structures which are placed there only “temporarily” or to those which can be “easily removed,” there will be other individuals or groups who will demand similar rights and claim that their “temporary” use of the City's right-of-ways has already been sanctioned by the federal courts, thereby inviting “widespread disorder” on the City's streets and right-of-ways. See Clark v. Community for Creative Non-Violence , 468 U.S. at 297; Heffron v. International Soc. for Krishna Consciousness, Inc. , 452 U.S. at 653..

This result does not square with Ward's wise analysis that once it is determined that the Ordinance furthers substantial government interests and does not substantially burden more speech than is necessary, it is a narrowly tailored regulation which is constitutionally enforceable even if it incidentally impinges on expressive activity.

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Finally, addressing whether the Ordinance leaves open ample alternative channels of communication, an adequate alternative does not have to be the speaker's first choice. Heffron v. International Soc. for Krishna Consciousness, Inc. , 452 U.S. at 647. As Judge Kennedy in her dissent determined, there were readily available alternative channels for communication here(App. 20-21). Instead of being tethered to a stationary position in the public right-of-way, the rat balloon could have been “moved around,” on a cart or otherwise; the Union could have made signs with pictures of the rat; it could have passed out smaller rat balloons to passers-by; or used many other methods to communicate its message(App.21).

Having satisfied every prong of Ward's analysis, the City is entitled to enforce the content-neutral provisions of Ordinance 905.03(c) of the City Code whenever any “structure,” including the Union's rat balloon, is placed in the public right-of-way, regardless of the time which it remains there, regardless of whether it can be “easily removed,” and regardless of whether it obstructs vehicular or pedestrian traffic while it is placed in the public right-of-way. The lower courts' conclusions to the contrary misapply and undercut Ward , justifying the grant of the City's petition for a writ of certiorari to the Court of Appeals for the Sixth Circuit.

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Conclusion.

For all of the reasons identified herein, a writ of certiorari should issue to review the judgment of the United States Court of Appeals for the Sixth Circuit and, ultimately, to vacate the preliminary injunction entered below and declare that Ordinance 905.03(c) of the City Code, as presently applied by the City to the activities of Tucker and the Union, is constitutional; to remand the matter to the District Court for further proceedings; or to provide the Petitioners with such other relief as is fair and just in the circumstances.

Respectfully submitted,

John H. Clemmons

Thomas A. Dierling

Millikin & Fitton Law Firm

530 Wessel Drive–Suite 2A

Fairfield, OH 45014

(513)829-6700

Wilson G. Weisenfelder

Laura I. Hillerich

Rendigs, Fry, Kiely & Dennis, LLP

900 Fourth & Vine Tower

Cincinnati, OH 45202

(513)381-9200

Dennis P. Derrick

Seven Winthrop Street

Essex, MA 01929

(978)768-6610

Counsel of Record



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