Petition for Writ of Certiorari — City of Cincinnati v. Miller

/ agi (apreme Court, U.S.

= ) FILED

101094 FEB 22 2011

OFFICE OF THE CLEFIK

Jun the Supreme Court of the United States

CITY OF CINCINNATI,

MILTON R. DOHONEY, JR., AND JOEL KOOPMAN,

Petitioners,

V.

MARK MILLER, COALITION OPPOSED

TO ADDITIONAL SPENDING & TAXES,

AND WEDEMANDAVOTE.COM,

Respondents.

On Petition for Writ of Certtorari to the United

States Court of Appeals for the Sixth Ctrcutt

PETITION FOR WRIT OF CERTIORARI

JOHN P. Cure

CITY SOLICITOR

PAauLA Boccs MUETHING

ASSISTANT CITY SOLICITOR

Counsel of Record

RICHARD GANULIN

ASSISTANT CITY SOLICITOR

Room 214, City HALL

801 PLUM STREET

CINCINNATI, OH10 45202

(513) 352-455]

(513) 352-1515 FAX

paula. bogys-mucthing @cincinnati-oh. gov

February 22,2011 Counsel for Petitioners

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

i

QUESTIONS PRESENTED

The government of the City of Cincinnati is

centered in City Hall. City Hall is a workplace for the

City’s elected officials, appointed executives, and their

staff. The City’s chief executive has _ issued

Administrative Regulation No. 5, which governs the

use of the interior spaces of City Hall including for

assemblages, such as meetings or press conferences.

This regulation permits City officials to arrange for

any appropriate use of the interior spaces of City Hall

for assemblages including those with non-

governmental entities with whom the City official has

been collaborating. The interior spaces of City Hall

are not available for use by private parties.

The Sixth Circuit’s decision in this case opens the

workplace of City Hall to impermissible intrusion by

third parties. Third parties have always had access to

the exterior steps of City Hall and the areas around

the building. But access to the interior of City Hall -

those spaces used by elected officials and the City’s

public employees to conduct the work of government —

has been limited to City officials and those entities

with whom a City official is collaborating. The City’s

regulation of the use of the interior spaces of City Hall

allows City officials to use their workplace

appropriately while allowing ample alternative

channels for the public to engage in expressive

conduct. Throwing open the doors of City Hall to the

general public will chill the speech of the City’s

officials.

The Sixth Circuit’s decision raises the following

questions:

,

1

. The use of the interior spaces of the City Hall

workplace, a nonpublic forum, is limited to City

officials and their third party collaborators and

only for those uses that are consistent with the

officials’ rights and responsibilities under the City’s

Charter. Is this limitation reasonably related to the

purpose of the City Hall workplace?

When City officials collaborate with third parties

and that collaboration leads to an arranged

assemblage in the City Hall workplace, a nonpublic

forum, is the communicative message expressed at

the assemblage government speech?

The administrative regulation governing the use of

the interior spaces of City Hall limits proper uses

to those that are within the rights and

responsibilities specified in the City’s Charter to

the respective City official. Does this

administrative regulation provide an objective line

in the law from which a person of ordinary

intelligence could identify the applicable standard?

ill

PARTIES TO THE PROCEEDING

Petitioners (defendants and appellants below):

CITY OF CINCINNATI; MILTON DOHONEY, JR.;

AND JOEL KOOPMAN

represented by Paula Boggs Muething and

Richard Ganulin, Assistant City Solicitors,

Room 214, City Hall, 801 Plum Street,

Cincinnati, Ohio 45202; (513) 352-4551

Respondents (plaintiffs and appellees below):

MARK MILLER; COALITION OPPOSED TO

ADDITIONAL SPENDING & TAXES; AND

WEDEMANDAVOTE.COM

represented by Christopher Finney, Finney

Stagnaro Saba & Patterson Co. LPA, 2623 Erie

Avenue, Cincinnati Ohio 45208 and Curt C.

Hartman, The Law Firm of Curt C. Hartman,

3749 Fox Point Court, Amelia, Ohio 45102

1V

TABLE OF CONTENTS

QUESTIONS PRESENTED ................... i

PARTIES TO THE PROCEEDING ............ ill

TABLE OF CONTENTS 20.5 6 csi ae eee sees s iv

TABLE OF AUTHORITIES See eae ee ee vi

CITATIONS FOR OPINIONS BELOW ......... 1

BASIS FOR JURISDICTION IN THIS COURT .. 1

CONSTITUTIONAL AND STATUTORY

PROVISIONG AT ISSUE ..... 0c. c.ese 1

STATEMENT OF THE CASE ................ 3

Proce THisGOry ooo. oa ne ee he nes 8

REASONS FOR GRANTING CERTIORARI .... 10

The Sixth Circuit’s determination that the City’s

Administrative Regulation No. 5 ts not

reasonably related to the purpose of the forum is

inconsistent with the analyses of the First and

Fourth Circuits in Del Galloand ACLU ..... 11

The speech analyzed in this case, by government

officials and their third party collaborators, is

government speech that ts not subject to First

Amendment scrutiny ... oo ee ee see 19

Administrative Regulation No. 5, governing the

use of the interior spaces of the City Hall

——

V

workplace, provides an objective line in the law

from which a person of ordinary intelligence

could identify the applicable standard ...... 24

Ce is an ea ee eS eee eee 27

APPENDIX

Appendix A: Opinion and Judgment,

Appendix B:

Appendix C:

Appendix D:

United States Court of Appeals

for the Sixth Circuit

(September 24, 2010) ......... la

Opinion and Order,

United States District Court,

Southern District of Ohio,

Western Division

(November 19, 2008) ........ sla

Order re rehearing,

United States Court of Appeals

for the Sixth Circuit

(November 24, 2010) ........ 68a

Joint Stipulations of Fact,

United States District Court,

Southern District of Ohio,

Western Division

(October 21, 2008) .......... 70a

vl

TABLE OF AUTHORITIES

Cases

ACLU v. Mote,

423 F.3d 488 (4th Cir. 2005) ..... 12, 138,14, 18

Arkansas Educ. Television Comm’n v. Forbes,

116 S. Ct. GSS (I9SS) ..........2.- 11, 17, 18

Bd. of Regents v. Southworth,

fee 8, 210 (A000) .... wees. LN MA 23

Cornelius v. NAACP Legal Defense and Educ.

Fund, Inc., et al.,

106 t. CE. SES9 CIGES) .. ww cece an 16

Del Gallo v. Parent,

507 F.a0 66 (let Cir. Z009) .......... , 38

Grayned v. City of Rockford,

Be GD. UA. BEORCEOTS) (oe we ene 24, 25

Griffin, et al. v. Sec’y of Veterans Affairs,

228 F.3d 1309 (Fed. Cir. 2002) ............ 25

Johanns v. Livestock Mktg. Ass'n,

OLE |.) re 20

Keller v. State Bar of Cal.,

re i aie 20

Mark Miller, et al. v. City of Cincinnati, et al.,

622 F.3d 524 (6th Cir. 2010) ........... passim

V1l

Metromedia v. Greenville-Spartanburg Airport

Dist.,

991 F.2d 154 (4th Cir. 1993) ........... 14,15

Nat'l Endowment for the Arts v. Finley,

REG te, GH. SOO LIOOO) 6 wc een eve 18, 24, 26

Pleasant Grove City, Utah v. Summum,

ize S. Ct. 1125 (2008) ....... LS, 20, 21, 22, 23

UFCW Local 1099 v. SORTA,

163 F.3d 341 (6th Cir. 1998) ...... .. 20,26

Ward v. Rock Against Racism,

ROG Be. Ch. SIGS CLOG) 5. cake ees cues 24

Constitution

Rye Se ON, oe ews kiana ees ... Dassim

Lite A NL Woe cree ee eelae oes 2

Ue. GONBT, GINO. ASV. SE gcc te te cwen 2

Statutes

nen, Oe. ek sae ea eh cle ey eee ee ]

Regulation

City of Cincinnati,

Administrative Regulation No.5 ....... passim

1

CITATIONS FOR OPINIONS BELOW

The decision of the Sixth Circuit Court of Appeals

is reported as Miller et al., v. City et al., 622 F.3d 524

(6th Cir. 2010). App. A. The order of the Court of

Appeals denying the defendants’ petition for rehearing

en banc was not reported. App. C. The District Court’s

order granting plaintiffs’ motion for preliminary

injunction is reported as Miller et al., v. City et al., 709

F. Supp. 2d 605 (S.D. Ohio 2008). App. B.

BASIS FOR JURISDICTION IN THIS COURT

The Court of Appeals filed its original decision on

September 24, 2010. The Court of Appeals denied the

petitioners’ request for a rehearing on banc on

November 24, 2010. 28 U.S.C. 1254 confers

jurisdiction on this Court to review on a writ of

certiorari the opinion of the Court of Appeals.

CONSTITUTIONAL AND STATUTORY

PROVISIONS AT ISSUE

UNITED STATES CONSTITUTION AMENDMENT

I:

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

Government for a redress of grievances.

2

UNITED STATES CONSTITUTION AMENDMENT

V:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty,

or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.

UNITED STATES CONSTITUTION AMENDMENT

XIV (Section One):

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. 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 laws.

3

STATEMENT OF THE CASE

Like thousands of local governments, the

government of the City of Cincinnati centrally houses

its senior legislative, executive, and administrative

officials in a building, in this case City Hall. City of

Cincinnati officials maintain their offices and staffs in

City Hall and they use areas within City Hall to help

fulfill their public duties. Although it is explicitly

expressed in the City’s administrative regulation

challenged in this case, but not mentioned in the Sixth

Circuit’s decision, private parties may without limit

assemble and conduct their own private rallies and

other events on the exterior front steps of City Hall!

thereby communicating a powerful and symbolic

message that their concerns relate directly to the City

of Cincinnati. The plaintiffs in this case have

repeatedly done just that.

The interior of City Hall is expressly reserved for

use by City officials for matters related to fulfilling

their professional public obligations. The challenged

administrative regulation expressly provides that the

interior of City Hall ts not generally available for

private use by members of the public. Not

surprisingly, indeed as expected, City officials

exercising their own discretion sometimes collaborate

with private parties for purposes of fulfilling the

official’s public obligations. It troubles the plaintiffs,

and apparently the Sixth Circuit, that City officials

have discretion to decide how and when to collaborate

with private parties for an array of public purposes

including the welfare of the City’s own employees.

Zeroing in on the discretion necessarily allowed

City officials, the Sixth Circuit misapprehended and

4

misapplied important First Amendment principles

related to guarding against the risk of government

censorship of private speech intended for expression in

either public fora or private property. However, this

Court has never applied those particular First

Amendment principles to a nonpublic forum. Nor has

this Court even suggested that it would do so. The

Sixth Circuit’s limited analysis is doctrinally

inconsistent with the logic and precedent previously

communicated by this Court. The Miller decision

subjects all governmental entities within the Sixth

Circuit to the imposition of private use of nonpublic

fora even though the governments do not intend to

make their workplaces generally available for private

use

The City and the Plaintiffs (or “COAST”) negotiated

Joint Stipulations of Fact “to develop a factual record

for [the district court) prior to the Preliminary

Injunction hearing... .”' On September 9, 2008, the

City Manager adopted the current Administrative

Regulation No. 5 to regulate use of the interior spaces

of City Hall.* The City Manager is the chief executive

and administrative officer of the City of Cincinnati and

is responsible for the day-to-day operations of the City

of Cincinnati.”

Joint Stipulations of Fact, App. D

* App. D, 71a at para. 1

* App. D, 96a at para. 63

Administrative Regulation N ) Provi

Interior of City Hall

City Hall is lawfully dedicated for the purposs

of allowing City officials to exercise the right:

and responsibilities specified in the Charter of

the City of Cincinnati City Hall has one

primary entrance on Plum Street for ingres

and egress and a second entrance in_ the

courtyard that is wheelchair accessible. The

entrances to City Hall are staffed by armed

ecurity guard City Hall is open from 8:00

a.m 0:30 p.m

he interior spaces of City Hall are reserved f

use by the Mayor, City Manayer and fi

assistants, City Councilmembers, City

Department Directors, City Commissions and

Boards, and City employees. The interior of

City Hall is open to the public for purposes of

visiting City offices and attending City Counci!

and other public meetings. ‘The interior of City

Hall is not generally available to the public fo:

other purpose:

When the Mayor, City Manager and

assistants, City Councilmembers, City

Department Directors, and City Commission

and Boards intend to use interior spaces of City

llall for assemblages, they should notify the

Facilities Management Division of the Public

services Department. That notice should be

provided as far in advance of the intended uss

as reasonably practicable

Facilities Management is_ responsible for

insuring that the assemblage does not create

security problems, unreasonably interfere with

ingress or egress from City Hall, or otherwise

unreasonably interfere with other official uses

occurring inside City Hall.

City Hall Grounds

City Hall grounds includes the _ property

surrounding the City Hall building up to and

bounded by the public sidewalks on Plum Street

to the east, Central Avenue to the west, Ninth

Street to the north, and Fighth Street to the

soutn

The public and City officials may use City Hall

grounds for lawful assemblages. For purposes

of protecting the security of people and property

in City Hall, and avoiding undue interference

with the official business occurring inside City

Hall, any person or entity desiring to use City

Hall grounds for a lawful assemblage should

submit notice, in writing, to the Facilities

Management Division of the Public Services

Department at least ten days pmnior to the

proposed assemblage. The notice should include

the following information about the assemblage

identification of sponsor; date and_ time;

duration and type of event; area of City Hall

grounds; approximate number of persons

expected to attend; amplification equipment

City Hall grounds may not be used for

commercial events conducted for private profit

Adjacent Public Sidewalks

The public sidewalks adjacent to City Hall

grounds are open to the public for all lawful

purposes.

The City Manager subsequently clarified that

Administrative Regulation No. 5 prohibits use of the

interior lobby and interior front steps of City Hall for

assemblages because they “may interfere with normal

business occurring within my office and other nearby

offices, blockage of ingress and egress into and out of

City Hall and from the first floor to the second floor,

and the presence of armed security in the lobby.”

Notwithstanding the City’s express reservation in

Administrative Regulation No. 5 of the use of the

interior of City Hall for its government officials,

COAST desires to use the interior of City Hall “for

communicative activities without the necessity of

associating with a City-connected sponsor or user or

otherwise ‘politically or administratively collaborating’

with someone authorized by the City to arrange for

such use for communicative activities.”

There is no evidence in the stipulated record that

private individuals have ever been permitted

independent access to hold assemblages in the interior

of City Hall. From February 3, 1997, to the date the

Stipulations of Fact were filed on October 21, 2008,

City officials had arranged or requested space in City

* App. D, 71a at para. 1, Exhibit C

> App. D, 99a at para. 75

8

Hall for some uses for which various private

individuals and organizations also participated.”

The only reason the City did not approve COAST’s

requested unilateral use of the interior of City Hall on

two occasions under the prior regulation was because

COAST “lacked a_ political or administrative

collaboration with one of the designated City officials

authorized to arrange for such use.”’ On those

occasions, COAST unilaterally conducted its

rally/press conference on the exterior front steps

leading into City Hall.* The parties’ Joint Stipulation

of Facts includes photographs of COAST’s rallies in

front of City Hall.”

Procedural History

On August 15, 2008, COAST filed a complaint

against the City of Cincinnati and, in their official

capacities only,'? City Manager Milton Dohoney, and

Joel Koopman, Facilities Manager for the City of

Cincinnati Division of Facilities Management

(collectively, “the City”). The complaint alleged,

among other things, that COAST had a constitutional

right to unilaterally use the interior of City Hall for its

own purposes and that the City’s regulation of the use

App. D, 73a at para

App. D, 88a at para. 32

App. D, 89a at para. 33

App. D, 89a at para. 33, Exhibit Z

App D, 96a at para. 66

9

of the interior of City Hall was unconstitutional.

COAST contemporaneously filed a motion for

temporary restraining order and_ preliminary

injunction. COAST clearly stated its objective: “{T}he

holding of a press conference and rally in the forum of

the steps inside of City Hall would, at both the

commencement and conclusion of the petition drive, be

akin to the storming of the Bastille—the victory of the

people over both tyranny and the arbitrary abuse of

power by government officials.””

On August 19, 2008, the district court denied, in

part, and granted, in part, COAST’s motion for

injunctive relief. On September 5, 2008, COAST filed

an amended complaint. The City Manager adopted

current Administrative Regulation No.5 on September

9, 2008.

On November 19, 2008, the district court issued its

order granting COAST’s motion for preliminary

injunction and denying the City’s motion to dismiss.

The district court broadly enjoined the City: “[TJhe

Court enjoins Defendants from applying

Administrative Regulation No. 5 to requests for use of

the interior of City Hall.”

On December 3, 2008, the City timely filed its

notice of appeal to the Sixth Circuit Court of Appeals.

On November 17, 2009, the Sixth Circuit heard oral

arguments in the case. On September 24, 2010, the

Sixth Circuit held that the district court correctly held

“that the plaintiffs have established a substantial

‘' COAST’s Motion for Temporary Restraining Order and

Preliminary Injunction, p. 9 (emphasis in original).

10

likelihood of success on two of their four claims on

which they based their motion: that the City’s

regulation violates the plaintiffs mght to free speech

and that it is unconstitutionally vague. We therefore

affirm.”’” On November 24, 2010, the Sixth Circuit

denied the City’s Petition for Rehearing En Banc.

This Petition followed.

REASONS FOR GRANTING CERTIORARI

This case raises the question of whether or not it is

consistent with the free speech protections afforded by

the First Amendment for a municipality to permit its

own City officials to use their workplace for

communicative activities, sometimes in collaboration

with third parties, and exclude all non-collaborating

third parties from the same space. The Sixth Circu i

erred in finding that the collaboration between City of

Cincinnati officials and third parties converted the

interior of City Hall into a designated or limited public

forum. The interior of City Hall is a non-public forum

and City officials using the space for communicative

activities, when collaborating with third parties and

otherwise, are engaged in protected government

speech not subject to First Amendment restrictions.

'? Miller, et al. v. City of Cincinnati, et al., 622 F.3d 524 (6th Cir.

2010). App. A, 3a.

1]

The Sixth Circuit’s determination that the City’s

Administrative Regulation No. 5 is _ not

reasonably related to the purpose of the forum is

inconsistent with the analyses of the First and

Fourth Circuits in Del Gallo and ACLU.

In Arkansas Educational Television Commission v.

Forbes,'* this Court stated:

The Cornelius distinction between general and

selective access furthers First Amendment

interests. By recognizing the distinction, we

encourage the government to open its property

to some expressive activity tn cases where, if

faced with an all-or-nothing choice, it might not

open the property at all.

In contrast, the Sixth Circuit invites the City to

eliminate collaborative expressive conduct in the City

Hall workplace:

Of course, the City could altogether close the

interior spaces of city hall to expressive

activities by private groups if it chose to do so.

The Sixth Circuit’s suggestion that City officials

face an all-or-nothing choice is doctrinally inconsistent

with longstanding Supreme Court precedent. This

Court has consistently encouraged government to open

its property to some expressive speech without

5118S. Ct 1633, 1642 (1998).

' Miller et al., v. City et al., 622 F.3d 524. 535 n. 2 (6th Cir. 2010).

App. A, 18a.

12

requiring that the government open its property to all

expressive speech. Under the City’s Administrative

Regulation No. 5, City officials have the freedom to

communicate messages from their City Hall workplace

that have been developed in collaboration with third

parties. The Sixth Circuit’s decision in this case brings

that process to an end.

Unlike the Sixth Circuit, the First and Fofirth

Circuits paid heed to the cautionary words expressed

in Arkansas Educational Television. In Del Gallo v.

Parent,” the First Circuit considered whether a postal

service regulation that prohibited campaigning for

election to public office on its sidewalks but permitted

other forms of expressive activity violated the First

Amendment. The Del Gallo court concluded that the

post office sidewalk was a nonpublic forum. Engaging

in an extensive analysis of the reasonableness of the

limitation on access, the court held:“The reasonable-

ness standard for a viewpoint-neutral restriction in a

non-public forum ‘is not a particularly high hurdle[,|”

and further cautioned that the reasonableness of the

regulation should not be judged solely by reference to

the plaintiffs particular activity, but also considered

in light of the effect on all such affected premises, in

that case, post offices across the country.

In ACLU v. Mote,’® the Court considered a

University of Maryland policy governing the use of the

campus by non-students. The policy provided two

areas in which non-students could engage in speech

'? 557 F.3d 58 (1st Cir. 2009).

'® 423 F.3d 438 (4th Cir. 2005).

13

activities, subject to satisfaction of the registration

requirements. The remaining areas of the campus

were closed to non-students for purposes of engaging

in speech activities unless the non-student was able to

obtain the sponsorship of a student or student

organization. With such a sponsorship, the non-

student was afforded the same access to campus

facilities as the sponsor.

In ACLU, the plaintiff was a Lyndon Larouche

supporter and sought access to the two areas on

campus designated for non-student speech activities.

Plaintiff was not able to reserve use of the space

because all areas had been previously reserved by

others. Nevertheless, plaintiff attempted to distribute

leaflets without abiding by the registration

requirements and without obtaining a sponsor. He

was subsequently cited by campus police.

Upon review of the policy, the Fourth Circuit

determined that the campus was a limited public

forum and that the policy was an external standard.

The Fourth Circuit further determined that the policy

was viewpoint neutral and then considered whether

the policy was reasonable in light of the purpose of the

forum. The court stated:

The purpose of the University is clearly to

provide a venue for its students to obtain an

education, not to provide a venue for expression

of public views that are not requested or

sponsored by any member of the campus

community. While it is obviously true that there

could be similarities in the content of speech by

an outsider and a member of the campus

14

community, that does not require them both to

be treated the same.”

In support of his position, the Plaintiff cited

Metromedia v. Greenville-Spartanburg Airport Dist.,*°

which involved a total ban on the placement of

newspaper racks. The Court distinguished

Metromedia, stating: “This case does not involve a

total ban of speech by the general public, it merely

involves a time, place, and manner restriction.””” In

finding the limitation both viewpoint neutral and

reasonable in light of the purpose of the forum, the

sourt held:

The University policy does not deny

unsponsored outsiders access to its campus, but

instead merely requires them to reserve a spot

which they may do as much as five days in

advance, and then speak or distribute leaflets in

that part. We especially note the places for

speaking or handbilling are the most visited on

the campus, a distinct advantage to the speaker

or handbiller. If outsiders desire to leaflet or

give a speech in another area of campus, they

must simply find a sponsor, and they can

perform these activities anywhere on the

campus. We have previously recognized that

universities have limited resources, which they

have an interest in reserviny for members of the

university community. If the University opened

Id. at 444.

‘991 F.2d 154 (4th Cir. 1993)

19 ACLU, 423 F.3d at 445.

15

its entire campus to all members of the

unaccompanied public, it would have to utilize

a greater amount of those resources by, for

instance, dispersing the limited staff

throughout the campus to supervise the events.

We are of opinion that this simple requirement

of a sponsor is reasonable.”°

In contrast, the Sixth Circuit, after determining

that the City Hall workplace is “at most” a limited

public forum (and conceding that limited public fora

and nonpublic fora require the same analysis for First

Amendment purposes) and identifying that the

“stated” purpose of the City Hall forum is “to allow

City officials to exercise their rights and

responsibilities under the city Charter,”*’ summarily

concluded that Administrative Regulation No. 5 is

unreasonable. After finding the regulation viewpoint

neutral, the court failed to identify and apply any

objective criteria by which to determine whether or not

the regulation was reasonably related to the purpose

of the forum. Ignoring the extensive framework for

reasonableness analysis established by Cornelius, the

Sixth Circuit summarily and erroneously concluded

that the regulation was not reasonably related to the

purpose of the forum.

Cornelius holds: “|T|]he reasonableness of the

government’s restriction of access to a nonpublic forum

must be assessed in the light of the purpose of the

20 : . 1\

Id. (citations omitted)

“' Miller, 622 F.3d at 536. App. A, 18a

16

forum and all the surrounding circumstances.” This

Court further opined that the restriction on access

need only be reasonable and not “the most reasonable

or the only reasonable limitation.””’ Thus, in order to

properly analyze whether the City’s restriction is

reasonably related to the purpose of the forum, the

Sixth Circuit was required to identify the purpose of

the forum and assess the nexus between that purpose

and “all the surrounding circumstances.”

On its face, Administrative Regulation No. 5 is

reasonably related to the purpose of the City Hall

forum. City Hall is a workplace. Administrative

Regulation No. 5 governs the use of the interior of the

City Hall workplace by designated City officials and

only for those purposes that are consistent with their

rights and responsibilities, as established by the City’s

Charter. This requirement establishes an objective

line in the law. The Sixth Circuit’s determination that

the requirement “as drafted, bears little relationship

to any official duties under the City Charter” is

mnconsistent with the plain language of the regulation

itself.

Because Administrative Regulation No. 5, on its

face, is clearly reasonably related to the purpose of the

forum, the Sixth Circuit’s contrary determination must

derive from facts in the record. This case was

presented to the district court on a stipulated record.”

* Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., et al.,

105 S. Ct. 3439, 3453 (1985) (emphasis added).

3 Td. at 3452.

* App. D.

L/

The Joint Stipulations set forth over a hundred

paragraphs and subparagraphs relating to the

apphcation and interpretation of both versions of

Administrative Regulation No. 5. The Joint

Stipulations contain no statements that support a

finding that City officials open spaces to private

parties for events they do not assist in organizing.

Indeed, quite the opposite; the Joint Stipulations”

expressly state that third parties may participate in

assemblages in the interior spaces of City Hall only

after they have collaborated with the individual

organizing the assemblage at issue.

The collaboration at issue in this case does not

convert the City Hall workplace into a forum that is

available for use by third parties for their private

purposes. In each instance where private parties have

participated in an expressive activity organized by a

government official, the private parties have engaged

the political process and collaborated with the

individual government official organizing the activity.

Those who are unsuccessful at collaborating with

government officials (or who choose not to collaborate)

are not permitted unfettered use of City

Hall. Arkansas Educational Television” upheld the

exclusion of a third party candidate from a televised

debate on the basis that the candidate had generated

no appreciable public support. COAST was unwilling

to obtain the requisite support to participate in

expressive activity in City Hall. Arkansas held that

this is a legitimate and sufficient criteria by which to

App DD. 85a at para. 18, 86a at para. 22, 99a at para

1185. Ct. 1633 (1998)

18

limit access to a nonpublic or limited public forum

Within the category of proper uses, a City official has

discretion on whether or not to collaborate with a

private party. In both National Endowment for the

Arts vu. Finley*’ and in Arkansas Educational

Television, this Court upheld the government’s

preference between speakers so long as_ the

distinctions were drawn on reasonable and viewpoint

neutral bases.

Cincinnati City Hall is a nonpublic forum. There is

no permitting system, and third parties do not have

access to use the interior spaces for their own

purposes. Any discretion afforded City officials under

Administrative Regulation No. 5 is discretion to

determine which messages to adopt as their own

speech and does not regulate access to a forum for

private parties to communicate their own private

speech. The regulation very clearly limits the

discretion of City officials’ use of the spaces within City

Hall to uses within their rights and responsibilities

under the City Charter. Accordingly, City officials’ use

of the spaces within City Hall for communicative

activities are subject to this restriction, which

represents an objective line in the law defining the

proper use of the space. I'urther Appellees have any

number of other fora in which to communicate their

message to the world, including on the outside steps of

City Hall where they can and often do hold rallies and

press conferences. As in both Del Gallo and ACLU, the

regulation of the interior spaces of City Hall |

viewpoint neutral, reasonable in light of the purpose of

the forum and provides ample alternative channels for

118S. Ct. 2168 (1998)

19

expressive conduct. Administrative Regulation No. 5

is consistent with First Amendment forum analysis

principles.

The speech analyzed in this case, by government

officials and their third party collaborators, is

government speech that is not subject to First

Amendment scrutiny.

The Sixth Circuit decision presents a conflict with

this Court’s Seummum* decision. First and foremost,

City Hall is a workplace housing the City’s legislative

body, the Council, the offices of the City’s Mayor and

the City Manager, the chief executive of the City, and

the City’s administrative and departmental! directors

and staff. The duties of each city official varies widely

and the nature of their collaboration with third parties

is very much dictated by their duties under the City’s

Charter. The City’s elected officials may collaborate

with third parties in order to garner support for a

piece of legislation or a call to action in the community,

the City’s administration may collaborate with third

parties in order to attract businesses or conventions to

the City, and all City officials have an interest in

collaborating with third parties in order to keep

abreast of the important issues affecting the citizenry

Where such collaboration leads to an expressive event,

such as a press conference, City officials appropriately

use their City Hall workplace for such events. ‘This 1s

government speech and the Sixth Circuit erroneously

subjected this speech to First Amendment scrutiny

” Pleasant Grove City, Utah v. Summum, 129 S.Ct. 1125 (2009)

20

As this Court held in Summum, a government

entity “is entitled to say what it wishes;” “to select the

views that it wants to express;” and it “is the very

business of government to favor and disfavor points of

view.”” “Indeed, it is not easy to imagine how

government could function if it lacked this freedom.””°

And this Court further cautioned: “If every citizen

were to have a right to insist that no one paid by

public funds express a view with which he disagreed,

debate over issues of great concern to the public would

be limited to those in the private sector, and the

process of government as we know it radically

transformed.”*

This Court notably reiterated in Summum that: “A

government entity may exercise this same freedom to

express its views when it receives assistance from

private sources for the purpose of delivering a

government-controlled message.”*” And: “[W]here the

government controls the message, ‘it is not precluded

from relying on the government-speech doctrine

merely because it solicits assistance from

nongovernmental sources.””**

* Id. at 1131 (citations omitted).

” id.

*! Id., quoting Keller v. State Bar of Cal., 496 U.S. 1, 12-13 (1990).

* Id.

8 Id., quoting Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 562

(2005).

21

But this Court went further than _ simply

reaffirming Johanns.** Summum extensively analyzes

the different messages or meanings that can be

conveyed by a single monument such that, even where

the government controls each and every word on the

monument, the government’s message may not be

readily apparent to every observer. Nevertheless, the

monument falls within the scope of government

speech. If speech where the message is imprecise and

open for interpretation may be characterized as

government speech, certainly speech where the

government’s message is clear but the government

hasn’t controlled each and every word of the message

must also be government speech. Thus, where the

government collaborates with a third party to accept a

monument and display it to the public, the government

controls the content of the text of the monument but

need not necessarily control the message in order for

the monument to be considered “government speech”

within the meaning of Summum. Where the

government collaborates with third parties to express

support for or against a legislative enactment or call to

action and the government controls the overarching

message, even where the government does not control

every word expressed by a third party in support of the

message delivered from the interior of City Hall, the

expression is still government speech.

The Sixth Circuit misapprehended the stipulations

made by the parties and their applicability to

Summum. The Sixth Circuit contends, “Historically,

governments have exercised strong ‘editorial control

over donated monuments,’ while private individuals

4 Td. at 1135.

22

can apparently access the interior of Cincinnati's city

hall for assemblages on the whim of any authorized

official.”* The Sixth Circuit’s use of the word “whim”

distorts the discretion that City officials necessarily

exercise in determining with which third parties each

will collaborate. The discretion to determine which

message to convey is an essential component of

governing. But the Sixth Circuit’s fundamental

misapprehension is in its limited reading of Summum.

The predominant concepts in Summum are identical

to those in this case. Government officials are entitled

to choose what they express, how they express it, and

with whom they choose to collaborate. Summum

explicitly provides government officials with these

rights and the Sixth Circuit failed to analyze

Administrative Regulation No. 5 in this context.

The issue of government speech inside City Hall is

material to the determination of the lawfulness of the

City’s limitations on public access to City Hall spaces.

Private parties like COAST cannot _ bootstrap

themselves into City Hall and create parity with duly

elected and appointed government officials. COAST’s

case is predicated upon the supposition that when

public officials expressively collaborate with private

parties on matters of public interest, that expression

is private speech rather than government speech.

COAST’s theory ignores the relationship between

government officials and private entities and the role

private parties may play in formulating a government

message.

*® Miller, 622 F.3d at 537. App A, 21a.

23

This Court stated very plainly in Summum that

“(tlhe Free Speech Clause restricts government

regulation of private speech; it does not regulate

government speech.” While COAST emphasizes the

participation of third parties in two isolated uses of

City Hall under old Administrative Regulation No. 5,

this Court has been clear that private contribution

does not transform government speech into private

speech. When City officials express preferences in

determining whether to collaborate with one group

over another, they are ultimately accountable to the

citizens of the City who may choose to vote them out of

office. “When the government speaks, for instance to

promote its own policies or to advance a particular

idea, it is, in the end, accountable to the electorate and

the political process for its advocacy.””’

City of Cincinnati officials may use the inside of

City Hall for expressive activities without the federal

judiciary imposing a “fairness doctrine.” The district

court and the Sixth Circuit erred by applying a First

Amendment standard of review to Administrative

Regulation No. 5. This Court should reaffirm that a

government entity “is entitled to say what it wishes;”

“to select the views that it wants to express;” and it “is

the very business of government to favor and disfavor

points of view.”*

6 Id. at 1131

7 Bd. of Regents v. Southworth, 529 U.S. 217, 235 (2000).

38 Summum, 129 S.Ct. at 1131 (emphasis added).

24

Administrative Regulation No. 5, governing the

use of the interior spaces of the City Hall

workplace, provides an objective line in the law

from which a person of ordinary intelligence

could identify the applicable standard.

The Sixth Circuit declared the application of

Administrative Regulation No. 5 to the City Hall

nonpublic forum void for vagueness by relying upon an

inapposite designated public forum decision. The Sixth

Circuit further erroneously attributed subjectivity to

the plainly objective standard, stating:

The parties stipulate that the revised version of

Administrative Regulation #5, as did the

original, gives complete discretion to council

members and department heads to select whom

they will sponsor. The only direction provided

is that the purpose of the interior of city hall is

to allow City officials to ‘exercise the rights and

responsibilities specified in the Charter of the

City of Cincinnati.’ Without further specificity,

this directive offers no meaningful guidance.*”

The Sixth Circuit misapprehended and misapplied

the void for vagueness standard set forth in Grayned,*°

Finley and Ward.*' Contrary to the court’s assertion,

Administrative Regulation No. 5 provides clear,

meaningful and sufficient guidance to City officials

°° Miller, 622 F.3d at 540. App. A, 27a.

“*° Grayned, 92 S. Ct. 2294.

‘' Ward v. Rock Against Racism, 109 S. Ct. 2746 (1989).

20

and the public to discern an appropriate use of the

interior spaces of City Hall.

The Sixth Circuit erroneously relied upon the

inapposite designated public forum case, UFCW Local

1099 v. SORTA., in support of its unprecedented facial

application of the void for vagueness principle to a

nonpublic forum.** SORTA itself relied upon Grayned,

a traditional public forum case. Quoting SORTA, the

Sixth Circuit expressed that the void for vagueness

principle guards against the “danger of censorship.”

That is true for traditional public fora and designated

public fora. The void for vagueness principle, however,

is doctrinally inapplicable to a nonpublic forum like

City Hall. There is no case law to the contrary.

A law governing the conduct of the general public

may be void for vagueness if the law fails to give fair

warning of what is prohibited, if it fails to provide

explicit standards for the persons responsible for

enforcement and thus creates a risk of discriminatory

enforcement, and if its lack of clarity chills lawful

behavior.** Administrative Regulation No. 5 regulates

only the conduct of City of Cincinnati officials and not

* The Federal Circuit Court of Appeals has expressed skepticism

that First Amendment facial challenges are applicable to a

nonpublic forum. Griffin, et al. v. Sec’y of Veterans Affairs, 288

F.3d 1309, 1321-24 (Fed. Cir. 2002) (“All of the modern cases in

which the Supreme Court has set forth the unbridled discretion

doctrine have involved public fora, and no Supreme Court case has

suggested that the doctrine is applicable outside the setting of a

public forum .”).

*8 Grayned, 92 S. Ct. at 2294.

—eEEeEeEEEEEEE—EE—EEEEE=E==

26

the general public (unlike the policies in SORTA“ and

Finley).

In SORTA, moreover, the plaintiff facially

challenged SORTA’s prohibition of “controversial”

advertisements if the advertisements adversely

affected SORTA’s image or ridership. SORTA also

preferred advertisements that were “aesthetically

pleasing.” In determining that SORTA’s policy

controlling private access to its designated public

forum was impermissibly vague, the court found that

the policy did not require a demonstrable causality

between an advertisement’s “controversial” nature and

an adverse impact on SORTA’s interests. The Court

also determined that SORTA’s “aesthetically pleasing”

requirement similarly invited arbitrary or

discriminatory enforcement because it was not

susceptible to objective definition.

There are no similar ambiguities in the City’s

Administrative Regulation No. 5, a_ regulation

controlling City officials’ use of a nonpublic forum.

The regulation provides objective, meaningful

guidance to City officials and to the public regarding

the limitation on City officials’ use of their City Hall

workplace. There are no terms within the regulation

that are subjective or require a decisionmaker to

speculate as to its meaning. The Sixth Circuit

summarily concluded that Administrative Regulation

No. 5 “offers no meaningful guidance.” However, an

“163 F.3d 341 (6th Cir. 1998).

* 118 S. Cs. at 2168 (1998).

© 163 F.3d at 359-360.

Eee FF

27

official’s “rights and responsibilities specified in the

Charter” provides an explicit standard, draws a line

between public and private use of City Hall by many

types of City officials with different duties, and does

not chill lawful behavior.

Further the Sixth Circuit’s decision is conceptually

inconsistent. The determination that Administrative

Regulation No. 5 is both facially viewpoint neutral and

void for vagueness is flawed with respect to First

Amendment analysis. The void for vagueness

determination can only mean that the regulation on its

face is so subjective that it could be viewpoint

discriminatory. The Sixth Circuit erroneously

concluded that the City’s regulation of the interior

spaces of the City Hall workplace was void for

vagueness.

CONCLUSION

Based on the foregoing, the petitioners submit that

the reported decision of the Sixth Circuit Court of

Appeals is in conflict with the decisions of other

Circuit Courts and involves an important federal

question that should be settled by this Court.

Accordingly, petitioners request that this Court grant

the petition for writ of certiorari.

28

Respectfully submitted,

Paula Boggs Muething

Assistant City Solicitor

Counsel of Record

Richard Ganulin

Assistant City Solicitor

Room 214, City Hall

801 Plum Street

Cincinnati, Ohio 45202

(513) 352-4551

(513) 352-1515 FAX

paula.boggs-muething@cincinnati-oh.gov

Counsel for Petitioners