Amicus Curiae Brief — City of Gainesville v. Cannabis Action Network, Inc.

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No. 00-1503 |

; ) OFFICE OF THE CLERK

IN THE 4 an:

Supreme Court of the United States

THE CiITy.OF GAINESVILLE, FLORIDA,

Petitioner,

Vv.

CANNABIS ACTION NETWORK, INC. AND KEVIN APLIN,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMICI CURIAE INTERNATIONAL

MUNICIPAL LAWYERS ASSOCIATION,

THE FLORIDA LEAGUE OF CITIES, INC.,

THE GEORGIA MUNICIPAL ASSOCIATION AND

THE CITY OF ORLANDO, FLORIDA

IN SUPPORT OF PETITIONER

THE CITY OF GAINESVILLE, FLORIDA

HENRY W. UNDERHILL, JR.

General Counsel/Executive Director

INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION

1110 Vermont Avenue, N.W.

Suite 200

Washington, D.C. 20005

(202) 466-5424

Counsel of Record for the Amici Curiae

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LANI L. WILLIAMS

Associate Counsel

INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION

1110 Vermont Avenue, N.W.

Suite 200

Washington, D.C. 20005

(202) 466-5424

HARRY MORRISON, JR.

General Counsel

FLORIDA LEAGUE OF CITIES, INC.

P.O. Box 1757

Tallahassee, Florida 32303-1757

(850) 222-9684

W. SCOTT GABRIELSON

City Attorney

JODY LITCHFORD

Chief Assistant City Attorney

CITY OF ORLANDO, FLORIDA

City HALL :

Third Floor

400 South Orange Avenue

Orlando, Florida 32801-3302

(407) 246-3470

SUSAN PRUETT

General Counsel

Georgia Municipal Counsel

GEORGIA MUNICIPAL ASSOCIATION

201 Pryor Street S.W.

Atlanta, Georgia 30303

(404) 688-0472

TABLE OF CONTENTS

ARGUMENT FOR GRANTING THE WRIT OF

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I. THE CITY OF GAINESVILLE, FLORIDA’S

PETITION FOR CERTIORARI SHOULD BE

GRANTED BECAUSE THE ELEVENTH

CIRCUIT’S DECISION MISAPPLIES

FREEDMAN V. MARYLAND, AND OTHER

SUPREME COURT DECISIONS IN THE

CONTEXT OF CONTENT-NEUTRAL

TIME, PLACE, AND MANNER REGULA-

A. Tits Court’s PRECEGCIS ...:.cccccccccsescccsccccscesss 6

B. The Eleventh Circuit’s Action ..................... 8

Il. THE CITY OF GAINESVILLE, FLORIDA’S

PETITION FOR CERTIORARI SHOULD BE

GRANTED BECAUSE THE ELEVENTH

CIRCUIT’S DECISION CONFLICTS WITH

OTHER UNITED STATES COURTS OF

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RT ini ui eiasseiaddhngebinabaneadevibhaniuninicinbabesiansanes 15

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il

TABLE OF AUTHORITIES

CASES Page

Beal v. Stern, 184 F.3d 117 (2nd Cir. 1999).......... 12, 13

Hill v. Colorado, 530 U.S.703 (2000) ................... 8

Cox v. New Hampshire, 312 U.S. 569 (1941)........ 7

Freedman v. Maryland, 380 U.S. 51 (1965)......... passim

FWIPBS v. City of Dallas, 493 U.S. 239 (1990)... passim

Graff v. City of Chicago, 9 F.3d 1309 (7th Cir.

FD } nanscsnnsiasscceaiasinsinidaaaae nam aaigs 10

Jews for Jesus, Inc. v. Massachusetts Bay Trans-

portation Authority, 984 F.2d 1319 (1st Cir.

NIE) .a<:ssssnnsinsinssinnicehbadieeaieadaainaainaaimanaliaaaaanaaas 13

MacDonald vy. City of Chicago, 243 F.3d 1021,

(7 CP. TERE) ns xcsssectncasinnceeidaniaaiaaicaanaaiiiada cieiadid en 10, 11

Thomas v. Chicago Park District, 227 F.3d

921 (7th Cir. 2000), petition for cert. filed,

69 U.S.L.W. 3530 (U.S. February 1, 2001)

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OTHER

Black’s Law Dictionary (6th Edition 1990)........... 8

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Brief of Amici Curiae

International Municipal Lawyers Association,

the Florida League of Cities, Inc.,

the Georgia Municipal Association and

the City of Orlando, Florida

in Support of Petitioner

the City of Gainesville, Florida

Amici curiae International Municipal Lawyers

Association, the Florida League of Cities, Inc., the Georgia

Municipal Association and the City of Orlando, Florida, file

this brief in Support of Petitioner the City of Gainesville,

Florida and have a compelling interest in the legal issues

presented by this case.'

INTEREST OF AMICUS CURIAE

The International Municipal Lawyers Association

(“IMLA”) is a nonprofit, nonpartisan professional

organization consisting of more than 1,400 members. The

membership is comprised of local government entities,

including cities and counties, and subdivisions thereof, as

represented by their chief legal officers; state municipal

leagues; and individual attorneys who represent

municipalities, counties, and other local government entities.

IMLA has provided services and educational programs to

local governments and their attorneys since 1935. IMLA is

' Pursuant to this Court’s Rule 37.2(a), letters of consent from both

parties to the filing of this brief have been filed with the Clerk. Pursuant

to this Court’s Rule 37.6, amici represent that this brief was not authored

in whole or in part by counsel for any party, and that no person or entity

other than amici, their members, or their counsel made a monetary

contribution to the preparation or submission of this brief.

2

the oldest and largest association of attorneys representing

United States municipalities, counties, and special districts.

Since its establishment, IMLA has advocated for the

rights and privileges of local governments, and the attorneys

who represent them, through its Legal Advocacy Program.

Specifically, the Legal Advocacy Program of IMLA serves

the membership by advocating the nationwide interests,

positions, and views of local governments on legal issues.

IMLA has appeared as an amicus curiae on behalf of its

members before the United States Supreme Court, in the

United States Courts of Appeals, and in state supreme and

appellate courts.

IMLA’s specific interest in this case stems from the

impact that the Court of Appeals’ ruling will have on local

governments throughout the Eleventh Circuit, as well as

potentially throughout the United States. IMLA, as an

organization promoting legal issues on behalf of local

governments, therefore, files this brief on behalf of its

members nationwide.

The Florida League of Cities (“FLC’’) is a voluntary

organization whose membership consists of municipalities

and other units of local government rendering municipal

services in the State of Florida. Its membership presently

numbers some 400 municipalities and three charter counties.

Under its Charter, the FLC’s purpose is to work for the

general improvement of municipal government and its

efficient administration; and to represent its members before

the various legislative, executive, and judicial branches of

government on issues pertaining to the welfare of its

members.

3

The Georgia Municipal Association (“GMA”) is a

nonprofit corporation created for the purpose of improving

municipal government. Its membership is comprised of

Georgia cities and towns which, by action of their governing

bodies, elect to become members. GMA membership

consists of 482 municipal corporations in which more than 99

percent of state’s municipal citizens reside. The

Association’s purposes include “promotion of the general

welfare of municipalities and urban areas of this State.” GMA

periodically files amicus briefs in cases such as the one at bar,

which are of statewide interest and will have a substantial

impact on the municipalities and the cities which GMA

serves.

The City of Orlando is a municipality within the State

of Florida and will be one of the cities which will need to

comply with the Eleventh Circuit’s decision if it remains

unchanged.

SUMMARY OF THE ARGUMENT

The amici are interested in this case for its far-

reaching implications in reference to permitting ordinances

for activities such as parades, street closures, and the use of

local government parks and other property. The requirement

that local governments seek affirmative court approval for

permit denials is extremely onerous and contrary to Supreme

Court precedent, as well as contrary to the decision of other

appellate courts. The theoretical effect in the Eleventh

Circuit is that local governments immediately will have to

spend significant personnel and other resources to obtain

court permission each and every time a permit application is

not approved exactly “as is.”” The practical effect is that,

4

many local governments, because of the significant required

expenditure of resources under this decision, will rarely deny

a permit application or grant the application with

modifications. Rather, these governments will simply grant

permit applications as requeste<a tor fear of lengthy court

battles, much to the detriment of their communities at large.

Additionally, courts outside the Eleventh Circuit, at

_ both the state and federal trial and appellate levels, are now

forced to choose between the reasoning of the Eleventh

Circuit and the reasoning of the First, Second, and Seventh

Circuits when interpreting Supreme Court precedent while

reviewing local government permitting schemes.

Specifically, the Seventh Circuit has refused to analyze

similar permitting schemes as prior restraints, while the

Second and Seventh Circuits have applied limited prior

restraints analysis.

Because of the important nature of this case, its

departure from Supreme Court precedent, and the split in the

circuits which has developed, amici urge that this Court grant

the petition for certioran.

ARGUMENT FOR GRANTING

THE WRIT OF CERTIORARI

The amici file this brief in support of the City of

Gainesville, Florida’s petition for certiorari. The amici

submit the Eleventh Circuit decided an important-question of

federal law in a way that conflicts with the decisions of this

Court. The amici further submit the Eleventh Circuit entered

a decision in conflict with the decisions of other United States

Courts of Appeals on the same question of federal law. These

5

factors make this case one of exceptional importance and

appropriate for review by this Court.

I. THE CITY OF GAINESVILLE, FLORIDA’S

PETITION FOR CERTIORARI SHOULD BE

GRANTED BECAUSE THE ELEVENTH

CIRCUIT’S DECISION MISAPPLIES

FREEDMAN v. MARYLAND, AND OTHER.

SUPREME COURT DECISIONS, IN THE

CONTEXT OF CONTENT-NEUTRAL TIME,

PLACE, AND MANNER REGULATIONS.

The Eleventh Circuit’s decision holds that a content-

neutral permitting scheme which requires a permit to close a

street for a demonstration must be reviewed under Freedman

v. Maryland, 380 U.S. 51 (1965), and is unconstitutional

unless the scheme complies with three procedural safeguards.

The three safeguards required by Freedman are: 1) that upon

the denial of the permit, the permitting authority must bear

the burden of initiating judicial proceedings, as well as the

burden of proof; 2) that any restraint prior to judicial

determination can be only for a specified period of time

during which the status quo is maintained; and 3) that there

must be an assurance of a prompt judicial review. The

Eleventh € ircuit noted the Respondents conceded the

Gainesvi'le ordinance complies with the seccnd safeguard.

Pet. App. 24. The Court of Appeals implied that in non-

business licensing schemes, prompt access to judicial review

(the third requirement) required more than simple access to

judicial review, though it declined to address the question

directly. Pet. App. 26. Instead, the Court of Appeals found

the Gainesville Street Closing Ordinance unconstitutional

because, upon denial of a permit, it fails to place the burden

6

of seeking judicial review (the first requirement) on the City

of Gainesville.? Amici respectfully submit this holding, as

applied to content-neutral regulations, is based on a

misapplication of Freedman, and goes far beyond the

protection the Freedman court sought to establish. Further,

the Court of Appeals holding is contrary to the precedents of

this Court in reviewing content-neutral permitting schemes.

For this reason, this Court should grant the petition for

certiorari.

__ A.‘ This Court’s Precedents

In Freedman, this Court examined a Maryland motion

picture censorship statute that required a theater submit films

to a State Board of Censors and obtain a license before

showing the film. The State Board conceded the film at issue

did not violate statutory obscenity standards, and conceded

further the film would have been granted a license had it been

submitted for review. Nonetheless, the State Board

contended the appellant was properly convicted for failing to

submit the film to the State Board.

Interestingly, by requiring that the City seek judicial

review, the Court of Appeals essentially answered the

question it ostensibly reserved. If the City bears the burden

of going to court, then logically, the requirement of “prompt

judicial review” is not limited to mere access; rather, it

requires a prompt judicial determination. To determine

otherwise renders the affirmative requirement of seeking

review meaningless, for surely a city would not be able to sit

back and “twiddle its thumbs” awaiting a decision at some

unknown time.

7

The appellant argued the statutory scheme constituted

an invalid prior restraint because it presented the danger of

“unduly suppressing” protected expression; that is, the

scheme effectively censored protected speech. The

Freedman court concurred, holding statutory censorship

schemes, such as those presented by the Maryland statute,

must satisfy the three requirements outlined above.

However, the Gainesville ordinance, like other local

government street closure ordinances throughout the United

States, should not be reviewed as a prior restraint. Some

sixty years ago, in a very similar case, this Court reviewed an

ordinance requiring a permit to demonstrate on a public street

or sidewalk and upheld the ordinance as a valid time, place,

and manner regulation. In Cox v. New Hampshire, 312 U.S.

569, 574 (1941), this Court stated

[t]he authority of a municipality to impose

restrictions in order to assure the safety and

convenience of the people in the use of public

highways has never been regarded as inconsistent

with civil liberties but rather as one of the means of

safeguarding the good order upon which they

ultimately depend. The control of travel on the

street of cities is the most familiar illustration of this

recognition of social need.

This Court upheld the Cox ordinance without reference to

“prior restraint” analysis. As in Cox, ordinances like the one

at issue here should not be viewed under the framework of

Freedman, where a censor is engaged in censorship of

expressive material. Rather, they should be viewed and

8

~ analyzed as content-neutral time, place, and manner

regulations.

More recently, in Hill v. Colorado, 530 U.S.703

(2000), this Court upheld an statute that constituted an

outright prohibition on speech near health care facilities.

This Court did not review the ordinance in terms of prior

restraint analysis and did not require that the government

affirmatively go to court before being able to restrict the

speech at issue. Surely an ordinance which seeks only to

reasonably regulate city streets should not be treated more

harshly than an actual ban on speech.

_B. The Eleventh Circuit’s Action

The Court of Appeals, however, likened the

Gainesville ordinance to the censorship scheme in Freedman.

It thus concluded its review of the ordinance must start with

the original Freedman decision. Amici respectfully disagree

and assert that, even without this Court’s precedents

mentioned above, the Gainesville ordinance cannot be

considered a censdrship scheme.

Black’s Law Dictionary defines “censor” as “[o]ne

who examines publications, films, and the like for

objectionable content.” Black’s Law Dictionary 224 (6th

Edition 1990). “Censorship” is defined as “[rJeview of

publications, movies, plays, and the like for the purpose of

prohibiting the publication, distribution, or production of

material deemed objectionable as obscene, indecent, or

immoral.” Black’s Law Dictionary 224 (6th Edition 1990).

The City’s ordinance, rather than censoring activities,

provides that a street closing permit will be granted,

9

regardless of the content of the expression contemplated by

the activity, provided that the activity will not, among other

things, unreasonably interfere with vehicular or pedestrian

traffic flow, will not cause an imminent danger or health

hazard to any person, or will not damage public or private

property. These factors for denying a permit do not mention,

much less focus on, the content of the speech for which the

street closure is sought. Because the ordinance is content

neutral, it cannot be considered a censorship scheme.

Even under a prior restraint analysis, this Court has

not required all three Freedman factors to be met in the

context of content-neutral schemes. In FW/PBS v. City of

Dallas, 493 U.S. 239 (1990), a case involving the licensing

of a sexually oriented business, five members of this Court

agreed that it was unnecessary for the permitting authority to

bear the burden of initiating judicial proceedings when the

permitting scheme is content neutral. (See Opinion of

O’Connor, J. joined by Stevens & Kennedy, J.J., “In

Freedman, the censor was engaged in direct censorship of

particular expressive material. Under our First Amendment

jurisprudence, such regulation of speech is presumptively

invalid and, therefore, the censor in Freedman was required

to carry the burden of going forward to court if the speech

was to be suppressed .. . .” FW/PBS, 493 U.S. at 229

(emphasis added). See also, dissenting opinion of White, J.

joined by Rehnquist, C.J., “I would offer that Freedman is

inapplicable to the Dallas scheme.” FW/PBS, 493 U.S. at

244.) Similarly, this content-neutral permitting scheme, if it

is to be evaluated under prior restraint analysis, should not be

required to meet all three procedural safeguards set forth in

Freedman.

10

Because of the Eleventh Circuit’s misapplication of

this Court’s precedents, amici respectfully request that the

petition for certiorari be granted.

II. THE CITY OF GAINESVILLE, FLORIDA’S

PETITION FOR CERTIORARI SHOULD BE

GRANTED BECAUSE THE ELEVENTH

CIRCUIT’S DECISION CONFLICTS WITH

OTHER UNITED STATES COURTS OF

APPEALS’ DECISIONS

The Eleventh Circuit’s holding also is inconsistent

with the holdings of other courts of appeals. Even if the

Eleventh Circuit had not relied on a misapplication of

Supreme Court precedent, its divergence from the reasoning

of other courts of appeals warrants the granting of certiorari

in this case.

Most recently, the Seventh Circuit, in MacDonald v.

City of Chicago, 243 F.3d 1021 (7th Cir. 2001), upheld a city

parade ordinance, concluding it was a valid time, place and

manner regulation. The case notes the existence of an

apparent conflict between Cox and FW/PBS, and suggests the

difference in analysis lies in the unfettered discretion allowed

governmental officials under FW/PBS. MacDon. 243 F.3d

at 1029-30 (citing Graff v. City of Chicago, 9 F.5d 1309,

1334-5 (7th Cir. 1993)). As in MacDonald, such discretion is

missing in this case. The Seventh Circuit also noted Justice

O’Connor’s comment regarding Freedman that there the

censor was engaged in direct censorship. MacDonald 243

F.3d at 1036. As in MacDonald, that is not the case here, or

with the myriad of other local ordinances governing street

closures. The court also noted the third factor in Freedman is

11

unworkable in the context of street closures. MacDonald 243

F.3d at 1036. Assume a city receives a request to close a

street, but determines it should not grant this request because

of the burden on the city infrastructure (clogged streets

during rush hour, perhaps). Because the city would be forced

to go to court in order to deny the street closure permit, it

could be faced with new requests while it tried to resolve the

first permit request. Uncertainty with respect to the first

permit would prevent it from adequately addressing

subsequent permits, requiring even further litigation. The

cycle would then perpetuate itself ad nauseam.

In another Seventh Circuit case, decided less than a

year ago, Judge Posner, joined by Judges Coffey and

Easterbrook, also held permitting regulations which are

required for demonstrations in city parks need not comply

with Freedman. Thomas v. Chicago Park District, 227 F.3d

921 (7th Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3530

(U.S. February 1, 2001) (No. 00-1249). In fact, the panel

held such permitting schemes are not prior restraints at all.

In Thomas, the plaintiffs claimed because the

regulations required permission to hold a rally in a public

forum, the regulations imposed a “prior restraint” on the

exercise of free speech. The court held that plaintiffs’

characterization was “not helpful.” Thomas, 227 F.3d at 923.

The court noted the “historical referent of ‘prior restraints’ is

censorship . . . which the administration of a park system

does not much resemble.” Thomas, 227 F.3d at 923-24,

citing 4 William Blackstone, Commentaries on the Laws of

England 151-153 (1769). The regulation challenged in

Thomas, as here, did not authorize the permitting authority

12

to pass any judgment on the content of the speech or

expression.

The plaintiffs in Thomas, as here, also argued that

each time the park district denied a permit, it was required to

seek judicial review. The court found this to be a misreading

of Freedman, “which holds only that the government may not

regulate the content of speech without judicial authorization

and so does not extend to time, place, and manner licensing

systems.” Thomas, 227 F.3d at 926 (emphasis added).

Similarly, the Gainesville ordinance, like the ordinances of

local governments throughout the United States, does not

regulate the content of speech. Rather, this ordinance and its

other local government counterparts are legitimate time,

place, and manner regulations.

Further, the court noted a park is a limited public

space in that many demands are made of it, not all of which

can be accommodated at all times for all purposes. The court

went on to note competing interests cannot be weighed in the

abstract, except in the grossest sense, and a court must pause

before striking down a permit regulation on a facial

challenge. Thomas, 227 F.3d at 924 (citations omitted).

Even if content-neutral time, place and manner

ordinances were to be reviewed as prior restraints under the

Freedman standard, only the first two safeguards are

essential. Several other courts of appeals have recognized

this. The Second Circuit in Beal v. Stern, 184 F.3d 117 (2nd

Cir. 1999), held content-neutral regulations need only comply

with two of the Freedman factors: the requirement that a

decision be made within a specified and reasonable

13

time period, and the assurance that a prompt and final

judicial review will be available.

The facts of the Beal case are strikingly similar to

those in this case. In Beal, the plaintiffs sued because they

were denied a permit to allow to hold a rally in New York’s

Washington Square Park. The district court held the permit

requirement was content neutral and not a prior restraint, but

rather, a reasonable time, place and manner restriction. The

Second Circuit, while finding the regulations to be a prior

restraint, relied on FW/PBS in holding content-neutral

regulations need not comply with Freedman’s requirement

that the permitting authority bear the burden of initiating

judicial proceedings upon the denial of a permit.

Similarly, the First Circuit held a prior restraint

system is permissible if it contains certain safeguards. Jews

for Jesus, Inc. v. Massachusetts Bay Transportation

Authority, 984 F.2d 1319 (1st Cir. 1993). Relying on

FW/PBS, the court held content-neutral regulations must only

limit the time for issuing authorizations and must allow for

prompt judicial review. Jews for Jesus, Inc., 984 F.2d at

1327.

As the above cases show, in addition to the Eleventh

Circuit’s divergent legal reasoning, the decision has

dangerous policy implications for local governments. The

decision will severely hinder local governments’ ability to

- effectively regulate their streets. Requiring local

governments to affirmatively engage in judicial proceedings

every time they deny a permit to use a public forum will

require that local governments devote significant manpower

14

and financial resources to filing actions in state or federal

courts.

While amici recognize that public streets are

quintessential public fora, amici submit local governments do

not lose all ability to regulate these fora because of their

“quintessential” nature. Public streets are also vital to the

orderly transport of people and goods, and this dual purpose

must be recognized. Local governments must be able to

control the use of streets so that both purposes can be

accommodated. In today’s society, where we are

continuously bombarded by reports of overcrowded streets

and vehicular congestion, local governments must be able to

freely plan the appropriate time to close streets for public

demonstrations.

As a result of the Eleventh Circuit’s decision, the

courts will be turned into ad hoc permitting authorities,

determining who can march when and where. Local

governments will be forced to relinquish control of their

public spaces to the whims of every person or organization

seeking to use those spaces, at any time and for any

circumstance. Under the Eleventh Circuit’s rationale, local

governments have lost all control over these fora.

15

CONCLUSION

For the foregoing reasons, amici join the City of

Gainesville in its request that the Court grant the petition for

certiorari in the above referenced case.

Respectfully submitted,

Henry W. Underhill, Jr.

General Counsel/Executive Director

International Municipal Lawyers Association

1110 Vermont Avenue, N.W.

Suite 200

Washington, D.C. 20005

(202) 466-5424

Counsel of Record

Lani L. Williams

Associate Counsel

International Municipal Lawyers Association

1110 Vermont Avenue, N.W.

Suite 200

Washington, D.C. 20005

(202) 466-5424

Harry Morrison, Jr.

General Counsel

Florida League of Cities, Inc.

P.O. Box 1757

Tallahassee, Florida 32303-1757

(850) 222-9684

16

W. Scott Gabrielson

City Attorney

Jody Litchford

Chief Assistant City Attorney

City of Orlando, Florida

City Hall, Third Floor

400 South Orange Avenue

Orlando, Florida 32801-3302

(407) 246-3470

Susan Pruett

General Counsel

Georgia Municipal Counsel

Georgia Municipal Association

201 Pryor Street S.W.

Atlanta, Georgia 30303

(404) 688-0472