Petition for Writ of Certiorari — City of Fairfield v. Tucker

Supreme Court brief2005

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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, 20038, 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.

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, 20038, 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 “[uJnlike 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 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

10 .

Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 US.

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:

[ijn 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).

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.

12-13).

: 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).

Employing this approach, Judge Kennedy

concluded:

[gliven 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 a

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.

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, 5380 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, 580 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(1985).

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 US. 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, 5382 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, 586 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.

Moreover, 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]Junicipal 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:

[Jest 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 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. Jd. 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. Jd. at 486. Again, the substantive evil,

targeted residential picketing of particular persons in

their own homes, was “created by the medium of

expression itself.” Jd. 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

~ -ealeulus which makes the violation dependent on guesses

about the extent or nature of the found violation runs

afoul of this Court’s clear 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 1s 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, oecurred—and it

is “beside the point” that the Union’s rat balloon

represents merely a “transitory” violation. See Ward, 491

USS. 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.

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.

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 Dennis P. Derrick

Thomas A. Dierling Counsel of Record

Millikin & Fitton Law Firm Seven Winthrop Street

530 Wessel Drive-Suite2A Essex, MA 01929

Fairfield, OH 45014 (978) 768-6610

(513) 829-6700

Wilson G. Weisenfelder

Laura I. Hillerich

Rendigs, Fry, Kiely &

Dennis, LLP

900 Fourth & Vine Tower

Cincinnati, OH 45202

(513) 381-9200

(any footnotes trail end of each document)

No. 03-4508

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LYNN D. TUCKER, JR., et al.,

Plaintiffs-Appellees,

i ae

CITY OF FAIRFIELD, OHIO, et al.,

Defendants-Appellants.

December 9, 2004, Argued

February 11, 2005, Decided

February 11, 2005, Filed

COUNSEL: ARGUED: John UH. Clemmons,

MILLIKIN & FITTON, Fairfield, Ohio, for Appellants.

David M. Cook, LAW OFFICE OF DAVID M. COOK,

Cincinnati, Ohio, for Appellees.

ON BRIEF: John H. Clemmons, Thomas A. Dierling,

MILLIKIN & FITTON, Fairfield, Ohio, Wilson G.

Weisenfelder, Jr., Laura I. Munson, RENDIGS, FRY,

KIELY & DENNIS, Cincinnati, Ohio, for Appellants.

David M. Cook, Robert E. Rickey, Stephen A. Simon,

LAW OFFICE OF DAVID M. COOK, Cincinnati,

Ohio, for Appellees.

JUDGES: Before: KENNEDY, MARTIN, and

MOORE, Circuit Judges. MARTIN, J., delivered the

opinion of the court, in which MOORE, J., joined.

KENNEDY, J., delivered a separate dissenting

opinion.

OPINIONBY: BOYCE F. MARTIN, JR.

OPINION: BOYCE F. MARTIN, JR., Circuit Judge.

The City of Fairfield appeals the district court's grant

of a preliminary injunction prohibiting the City on First

Amendment grounds from enforcing a municipal

ordinance against Lynn Tucker, Jr. and other members

of his union in their use of a rat balloon as part of

demonstrations in a public right-of-way. For the

following reasons, we AFFIRM the judgment of the

district court.

Lynn Tucker, Jr. is the General Vice President of the

Eastern Regional Office of the International

Association of Machinists and Aerospace Workers.

Tucker and several of his fellow union members

picketed Fairfield Ford, a car dealership in- Fairfield,

Ohio, on three primary occasions in 2003 (February 26,

July 1, and July 31) for alleged unfair labor practices.

The protests all took place in the public right-of-way

between Fairfield Ford and Dixie Highway, with each

involving somewhere between twenty-five and forty

protesters and generally lasting between one and two

hours.

During these protests, Tucker and his colleagues held

signs and displayed an inflatable rat balloon measuring

approximately twelve feet high and eight feet in

diameter. The rat has long been used as a symbol of

efforts to protest unfair labor practices. The rat balloon

in the instant case can be inflated or deflated within

five to ten minutes, and is temporarily secured to the

ground with stakes to ensure that it does not tip over.

The conflict in this case arises out of the application of

the City's ordinance prohibiting structures in the public

right-of-way to the Union's use of the rat balloon.

Section 905.03(c) of the municipal code provides that "no

person, firm or corporation shall construct or place or

cause the construction or placement of any ... structure

or improvement ...on any street, alley, public right-of-

way, easement or public grounds without the written

permission of the Public Works Director." As originally

enacted, the ordinance defined "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

includes anything constructed which is not enclosed

within another structure and is placed in a stationary

location." The City later amended the definition of

"structure" on September 13, 2003, with the express

intent of covering the use of the balloon in this case. nl

The amendment defined a "structure" in relevant part

as "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."

The first demonstration using the rat balloon in front of

Fairfield Ford occurred on February 26, 2003. While

the Union notified the police that they would be using

the balloon during its protest, and Fairfield Ford called

the police to complain about the demonstration, no

arrests were made or citations issued over the. use of

the balloon. The second demonstration occurred on J uly

1 at the same location. The Union again notified the

police of its plans to protest. This time, Janette Mattala,

a zoning inspector for the City, came to the scene and

warned the protestors that they would have to remove

the balloon or be subject to arrest. Police officers, who

later arrived on the scene, also allegedly threatened the

protestors with arrest. Consequently, the protesters

deflated the balloon. The third demonstration occurred

on July 31. During this protest, Tucker and his fellow

Union members again displayed the rat balloon. At this

demonstration, however, Tucker was given a citation

for violating the city ordinance prohibiting structures in

the public right-of-way. Notably, there is no evidence in

the record indicating that the protests, including the

use of the balloon, created any obstruction or safety

hazard.

On August 27, 2008, Tucker and his Union filed a

Complaint, Motion for a Temporary Restraining Order,

and Motion for a Preliminary Injunction in the District

Court for the Southern District of Ohio, claiming that

the application of the City's ordinance to the use of the

balloon violated the First Amendment. On August 29,

the court issued a temporary restraining order, which

expired on September 15. The court then held a hearing

on the preliminary injunction on September 15, and, on

October 27, granted Tucker's motion for a preliminary

injunction, finding, among other things, that Tucker

had demonstrated a likelihood of success on his claim

that the City's efforts to prevent the Union from using

the balloon during its demonstrations violated the First

Amendment. The City timely appealed that decision to

this Court on November 7, 2003.

Il.

The only question presented in this case is-whether the

' district court erred in granting a preliminary injunction

prohibiting the City of Fairfield from restraining

Tucker and his union from using the rat balloon during

their labor protests on the public right-of-way in front

of Fairfield Ford. This Court reviews a district court's

grant of a preliminary injunction for an abuse of

discretion. Keweenaw Bay Indian Cmty. v. Michigan,

11 F.3d 1341, 1348 (6th Cir. 1993). A district court

abuses its discretion when it relies on clearly erroneous

findings of fact, improperly applies the law, or uses an

erroneous legal standard. Deja Vu of Nashville, Inc. v.

Metro. Gov't of Nashville & Davidson County, 274 F.3d

377, 400 (6th Cir. 2001).

When determining whether to grant a preliminary

injunction, a district court must consider: (1) the

plaintiff's likelihood of success on the merits; (2)

whether the plaintiff may suffer irreparable harm

absent the injunction; (8) whether granting the

injunction will cause substantial harm fo others; and (4)

the impact of an injunction upon the public interest." Id.

The district court considered these four factors and

granted Tucker's motion for a preliminary injunction.

The court found that Tucker had "a very high likelihood

of success on the merits" of his claim based on "a First

Amendment right to use portable, non-obstructive

props to disseminate information in a public right-of-

way on a temporary or limited basis." The court held

that the ordinance, as applied to the use of the rat

balloon, unconstitutionally infringed on this right. The

court also found that the remaining factors weighed in

favor of granting the injunction. According to the court,

the suppression of Tucker's protected speech

constituted irreparable harm to the Union and the use

of the balloon was not shown to harm others. Moreover,

the court found that the public interest weighed in

favor of protecting First Amendment rights.

Consequently, the court, having found all factors in

Tucker's favor, issued the preliminary injunction. For

the following reasons, we hold that the district court

did not abuse its discretion in granting the preliminary

injunction.

The First Amendment broadly provides that "Congress

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

U.S. Const. amend. I. In our view, there is no question

that the use of a rat balloon to publicize a labor protest

is constitutionally protected expression within the

parameters of the First Amendment, especially given

the symbol's close nexus to the Union's message. See,

e.g., Int'l Union of Operating Eng'rs, Local 150 v.

Village of Orland Park, 139 F. Supp. 2d 950, 958 (N.D

Ill. 2001) ("We easily conclude that a large inflatable rat

is protected, symbolic speech.").

The central claim asserted by the City on appeal is that

there is no constitutional right to maintain a structure

in a public right-of-way. As this Court has pointed out

before, however, "whether there is such a right depends

upon the property and the government's regulation of

that property." Chabad of S. Ohio & Congregation

Lubavitch v. City of Cincinnati, 363 F.3d 427, 434 (6th

Cir. 2004).

Courts have generally refused to protect on First

Amendment grounds the placement of objects on public

property where the objects are permanent or otherwise

not easily moved. For instance, in Graff v. City of

Chicago, 9 F.3d 13809, 1314 (7th Cir, 1993) (en banc), the

court considered whether a news vendor had a First

Amendment right to maintain a newsstand on public

property. The court rejected the claim, holding that "no

person has a constitutional right to erect or maintain a

structure on the public way." Jd. As the Graff court

pointed out, however, newsstands are "large,

permanent-type structures" that "are not easily moved."

Id. at 1315. In distinguishing newsstands from

newsracks, which have received more favorable First

Amendment protection, see City of Lakewood v. Plain

Dealer Publ'g Co., 486 U.S. 750, 772, 100 L. Ed. 2d 771,

108 S. Ct, 2138 (1988) (holding unconstitutional an

ordinance giving the mayor discretion to grant or deny

applications for permits to place newsracks on public

property), the court expressly noted that "newsstands

compared to newsracks are much larger, more

permanent structures that occupy a significant portion

of limited sidewalk space." Graff, 9 F.3d at 1315.

A similar result was reached in Lubavitch Chabad

House, Ine. v. City of Chicago, 917 F.2d 341, 346-48 (7th —

Cir. 1990), where the court rejected a constitutional

challenge to the City's refusal to allow a menorah to be

erected in a public area of O'Hare Airport during

Christmas time. The court noted the difficulty that

would be involved in allowing all individuals to erect

"free-standing" structures on public grounds, and

expressly found no constitutional right to do so. Id. at

347.

Unlike the more permanent structures analyzed in

Graff and_Lubavitch, the balloon in the instant case is

temporary and easily movable. The Union only uses the

balloon during its protests, which last just one to two

hours, and the balloon has not been shown to cause any

danger that could justify a restriction of the balloon's

use. As the district court pointed out, at least one

federal court has adopted a similar approach in

analyzing whether the use of "structures" on public

property is constitutionally protected speech: See One

World One Family Now, Inc. v. Nevada, 860 F. Supp.

1457, 1462-63 (D. Nev. 1994) (holding that group's

portable tables .were afforded First Amendment

protection because of their limited use in facilitating the

sale of expressive t-shirts, while chairs, umbrellas, and

boxes were not protected because they were not

sufficiently related to the expressive message and

constituted "permanent-type" structures). Thus, given

the existing case law on this subject, we hold that the

district court did not abuse its discretion in finding that

the use of the portable rat balloon on the public right-

of-way is deserving of First Amendment protection.

Having held that the district court did not abuse its

discretion in finding that the use of the balloon on the

public right-of-way is constitutionally protected

expression, the issue next becomes whether the City

may nevertheless prohibit Tucker and his Union from

using the balloon during its protests. "The Supreme

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.'" United Food & Commer.

Workers Local 1099 v. City of Sidney, 364 F.3d 738, 746

(6th Cir. 2004) (quoting Cornelius v. NAACP Legal

- Def. & Educ. Fund, Inc., 473 U.S. 788, 800, 87 L. Ed. 2d

567, 105 S. Ct. 3439 (1985)). Three types of fora are

generally recognized: the traditional public forum, the

designated public forum, and the nonpublic forum. Id. A

traditional public forum is a place "which by long

tradition or by government fiat has been devoted to

assembly and debate." Perry Educ. Ass'n v. Perry

Local Educators' Ass'n, 460 U.S. 37, 46, 74 L. Ed. 2d

794, 103 S. Ct. 948 (1983). In our view, the district court

did not abuse its discretion in finding that the forum in

this case -- a public right-of-way -- is a traditional public

forum, given the fact that both streets and sidewalks

are generally considered traditional public fora. See,

e.g., Frisby v. Schultz, 487 U.S. 474, 480, 101 L. Ed. 2d

420, 108 S. Ct. 2495 (1988) (noting its decisions holding

that streets and sidewalks are traditional public fora);

Rappa v, New Castle County, 18 F.3d 1043, 1070-71 (3d

Cir. 1994) (holding that public rights-of-way are

properly considered traditional public fora).

"In traditional public fora, ‘the rights of the state to

limit expressive activity are sharply circumscribed':

the government may enforce .. . content-neutral time, -

place, and manner regulations only if they are 'narrowly

tailored to serve a significant government interest, and

leave open ample alternative channels’ of

communication.'" Kincaid v. Gibson, 236 F.3d 342, 348

(6th Cir. 2001) (quoting Perry, 460 U.S. at 45). The

district court found that the ordinance here was not a

content-based restriction on speech, and that finding

apparently is not challenged before us. Thus, for the

purposes of this appeal, we assume that this finding

was correct. n2 Therefore, the ordinance is

constitutional as applied if it is narrowly tailored to

10a

serve a significant government interest, leaving open

other alternative channels of communication.

In this context, "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

"purden substantially more speech than is necessary to

further the government's legitimate interests." Ward v.

Rock Against Racism, 491 U.S. 781, 799, 105 L. Ed. 2d

661, 109 S. Ct. 2746 (1989) (quotation marks and

citations omitted). Importantly, however, the

regulation "need not be the least-restrictive or least-

intrusive means" of serving the government's interests.

Id. We agree with the district court's finding that the

ordinance does not appear to be narrowly tailored as

applied to the Union's use of the balloon. In 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 effectively 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. See, e.g., Cleveland Area Bd. of Realtors v.

City of Euclid, 88 F.3d 382, 388 (6th Cir. 1996) (holding

unconstitutional ordinances regulating the placement of

_ signs in residential neighborhoods because they

burdened "substantially more speech than necessary,"

lla

despite eity's "significant government interest" in

aesthetics). Thus, the district court did not abuse its

discretion in finding that the Union has demonstrated a

likelihood of success on the merits.

B. it

The district court also found that the remaining factors

weighed in favor of granting the injunction. The City

does not appear to challenge these holdings on appeal.

We note, however, that the district court's decision on

each issue was proper. First, the application of the

City's ordinance prohibiting the Union's use of the

balloon, and the consequential adverse effect on Union

organizational - efforts, are sufficient to constitute

irreparable harm. See, e.g., Elrod v. Burns, 427 U.S.

347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) ("The

loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable

injury."). Second, the use of the balloon in the right-of-

way has not been shown to create any obstruction or

other safety hazard, suggesting that granting the

injunction will not cause substantial harm to others.

Finally, the public interest factor in this case clearly

weighs in favor of protecting the First Amendment

rights of the Union's members. See, e.g., Chabad, 363

F.3d at 436 (noting that "the public interest is served by

preventing the violation of constitutional rights").

Accordingly, the district court did not abuse its

discretion in Kolding that the relevant factors support

the issuance of the preliminary injunction in this case.

III.

For the stated reasons, we hold that the district court

12a

did not abuse its discretion in granting Tucker's motion

for a preliminary injunction, and we therefore

AFFIRM the decision of the district court.

Footnotes

nl The Fairfield City Council's express intent to cover

"objects such as the inflatable rat involved in the

Tucker litigation" is illustrated by the amendment's

preamble, which clearly states that the Council's

purpose in enacting the amendment was "to amend its

codified ordinances to further clarify that objects such

as the inflatable rat are prohibited from the public

right-of-way whether placed there on a temporary or

permanent basis."

n2 We note that it appears that the amended ordinance,

with its express purpose of prohibiting the use of the

rat balloon, may not be content-neutral. We reserve

judgment on this question, however, until the district

court fully considers the issue on the merits.

DISSENT BY: KENNEDY

DISSENT: Circuit Judge, dissenting. Unlike the

majority, I would find that the Union is unlikely to

succeed on the merits. Therefore, I believe that the

district court abused its discretion when it improperly

applied the law. Deja Vu of Nashville, Inc., V. Metro.

Gov't of Nashville & Davidson County, 274 377

400 (6th Cir, 2001). Additionally, I do not believe that

the other factors (irreparable harm, harm to others, and

the public's interest), many, if not all, of which rest on

the perceived violation of the Union's’ First

Amendment rights, weigh so heavily in favor of the

13a

plaintiffs that those factors support the grant of a

preliminary injunction. Therefore, I respectfully

dissent.

A. Likelihood of success on the merits

1. The rat is a structure.

As a preliminary matter, there are several points on

which the district court, the majority, and I agree.

First, we agree that the rat constitutes speech.

Furthermore, we agree that the rat constitutes speech

that deserves First Amendment protection. Implicitly

at least, we all agree that the City's ordinance applies

to the rat (making the rat a structure under either the

first or the revised definition). The district court

attempts to avoid this conclusion by holding that "It is

not appropriate to simply label the rat a structure and

then ban it from the right-of-way without examining

the nature of the alleged structure." Apx. 46. The

majority opinion does not explicitly address whether

the rat is a structure, but, by applying a time, place, and

manner analysis, it too implicitly agrees that the

inflatable rat is a structure under either version of the

ordinance's definition.

Although I may seem to be quibbling over details, I am

not. Courts must avoid raising constitutional issues

where alternative and narrower grounds exist. Bejjani,

v. L.N.S., 271 F.3d 670, 687 (6th Cir. 2001). If the rat is

not a structure as the ordinance defines it (or defined

it), then the district court erred in ruling on a First

Amendment basis where none was present. Instead, it

should have held that the rat was not a structure and

ordered the City to cease attempting to apply the

l4a

ordinance to the rat. Because the district court rules on

First Amendment grounds and because the majority

reviews that analysis, the majority seems to agree (at

least implicitly) that the inflatable rat falls under the

ordinances’ definitions of structure.

In my view, the rat is a structure under either version

of the ordinance. Even under the earlier ordinance, the

City defined a structure, in part, as: ". . . anything

constructed which is not enclosed within another

structure and is placed in a stationary location."

Although the first part of the definition includes a

requirement that the structure be permanent, this

second part does not. Dictionary.com defines

constructed as: "To form by assembling or combining

parts; build." ( available at

http://dictionary.reference.com/search?q=constructed).

The Random House College Dictionary Revised

Edition defines. construct as "to form by putting

together parts; build; devise." 1980.

By using a generator to inflate the rat on a tarp, the rat

is assembled or formed by putting together parts. By

tethering it to the ground, the rat is further formed by

combining parts. Given these definitions, the inflatable

rat meets the ordinance's requirement that it be

constructed. In addition, the rat satisfies the "placed in

a stationary location" requirement given that the rat

and its generator are placed in a stationary location

when they are staked down, albeit, for one to two

hours, or for however long the Union decides to leave

them there. Therefore, the rat meets all of the

requirements under this portion of the first ordinance's

definition of structure. nl No one disputes that the rat

meets the City's revised definition of structure.

15a

Because the rat is a structure, and because both

versions of the ordinance ban all structures in right-of-

ways, we must address the constitutional question of

whether the City can use its ordinance to ban the rat

despite the fact that the rat is speech. 3

2. The ordinance is a permissible time, place, and

manner restriction.

We also agree on most points of the First Amendment

analysis. I agree with the district court and the

majority that the right-of-way is a traditional public

forum; that the area where the rat was erected was

akin to a sidewalk; and that time, place, and, manner

analysis is the appropriate framework for reviewing the

ordinance as applied.

When performing a time, place, and manner analysis,

courts must evaluate the ordinance against several

standards. First, courts must determine whether the

ordinance is content neutral. No one disputes that the

City's ordinance is content neutral. It is important to

keep in mind that the ordinance applies city-wide to all

rights-of-way whether there are sidewalks and a tree

lawn, or just a grassy area as we have here.

Next under time, place, and manner analysis, we

evaluate whether the City has a significant interest as

well as whether the ordinance is narrowly tailored to

meet that interest. All agree that the City has a

significant interest. The majority identifies the City's

significant interests as keeping the right-of-way clear

(presumably to further public safety and permit

pedestrian passage) and preserving the aesthetics of

the community. I agree that those interests are

16a

significant. See Ward, et al., v. Rock against Racism,

491 U.S. 781, 796, 105 L. Ed. 2d 661, 109 S. Ct. 2746

(1989) (noting that protecting citizens from excessive

noise is a significant government interest); City of

Lakewood v. Plain Dealer Publishi 0., 4 75

781-82, 100 L. Ed. 2d 771, 108 S. Ct. 2138 (1988)

(identifying public safety as a significant interest);

k v. Community for Creative Non-Violence, etal.

468 U.S. 288, 296, 82 L. Ed. 2d 221, 104 S. Ct. 3065

(1984) (identifying keeping our nation's parks in an

attractive condition as a significant interest); Heffron

etal. v. International Society for Krishna

onsciousness, 452 69 L. Ed, 2d 298, 101

S. Ct. 2559 (1981) (upholding the state's interest of

maintaining the orderly movement of crowds at a fair).

The majority and I part company, however, in our view

of whether the ordinance is narrowly tailored to serve

the identified significant government interests. The

majority believes that the ordinance is not narrowly

tailored. In so holding the majority reasons:

[The interests] are simply not achieved any less

- effectively 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. Thus, the district court did not

abuse its discretion in finding that the Union has

demonstrated a likelihood of success on the merits.

17a

Maj. Op. (internal citation omitted). I believe that the

majority departs from Supreme Court precedent, which

admonishes lower courts that a regulation is narrowly

tailored so long as it " . . . promotes a substantial

government interest that would be achieved less

effectively absent the regulation." United States v.

Albertini, 472 U.S. 675, 689, 86 L. Ed. 2d 536, 105 S. Ct.

2897 (1985). In Frisby v. Schultz, 487 474, 485, 101

L. Ed. 2d 420, 108 S. Ct. 495 (1988) the Court indicated

that a complete ban "can be narrowly tailored but only

if each activity within the proscription's scope is an

appropriately targeted evil." In Ward, the Court

clarified its earlier jurisprudence- by confirming that:

"So long as the means chosen are not substantially

broader than necessary to achieve the government's

interest, however, the regulation will not be invalid

simply because a court concludes that the government's

interest could be adequately served by some less-

speech-restrictive alternative." Ward, 491 U.S. at 800.

Thus, the Court has indicated that, in this context, the

narrowly tailored test is a far more lenient test than a

least restrictive means test. Jd. Indeed, some amount of

over inclusiveness is permissible provided that the evil

targeted by the statute is permissible. See id. (The

Court indicates that "the . . . regulation may [not]

burden substantially more speech than is necessary"

indicating that some _ overinclusiveness may be

permissible).

In finding that the ordinance is not narrowly tailored,

the district court held that it was important to

investigate the nature of the structure. Apx. 46. The

majority seems to agree with that analysis. I believe

that investigating the nature of the structure, beyond

what little investigation is required to determine

18a

whether an object is a structure, is an incorrect mode of

analysis that has the effect of saddling the City with an

impossible legislative task, or requiring courts to reach

necessarily arbitrary results. Why does a structure

whose nature only requires it to be present for a limited

time not undermine the City's objective of keeping the

right-of-way clear when a more permanent structure

does so? The district court indicates that if the Union

wished to leave the inflatable rat in the right-of-way

constantly, it would reach a different result. Apx. 46.

What exactly constitutes "an extended period of time"

that would require resolving this dispute in the City's

favor? Jd. Four’ hours? Ten? Twenty-four?

Alternatively, what public employee is to be given the

discretion to determine that amount of time, and how is

that discretion to be limited so that time, place, and

manner neutrality is maintained?

While I do not want to belabor the line-drawing

problems, I raise them simply because I do not believe

that the district court's position is a tenable way to

evaluate the level of protection the structure deserves.

- Instead, I believe that we must look to the significant

interest and then determine whether the ordinance

narrowly targets the identified evil. Ward, 491 U.S. at

799-800.

In evaluating whether the ordinance is narrowly

tailored to serve the significant interest, it is, in my

view, also important to evaluate whether the ordinance

serves a significant interest, and whether it is narrowly

tailored, independently of the value courts accord the

speech. The majority believes that: "By applying the

ordinance to prohibit the temporary use of the balloon

in this case, it therefore appears that the City has

19a

applied its ordinance in a manner that is ‘substantially

broader than necessary’ to achieve its interests." Maj.

Op. (emphasis mine). Although this is an as-applied

analysis, the majority's rule on narrow tailoring quickly

becomes an easy way for courts to second guess

legislatures. Courts would be able to carve out

exceptions to the enforcement of ordinances if the court

deems the speech at issue vital enough simply by

balancing the identified interest against the value of the

speech. In essence, judges would be able to substitute

their own judgments as to the value of different kinds

of speech in an as-applied challenge and balance that

speech with their view of the value of the government

interest at stake. My guess is that, subjected to such a

balance, few ordinances would survive unscathed. Nor

can the City leave to the discretion of some city

employee that decision without running afoul of the

Court's decision in Plain Dealer, 486 U.S. at 763-4 ("We

have often and uniformly held that such statutes or

policies impose censorship on the public or the press,

and hence are unconstitutional, because without

standards governing the exercise of discretion, a

government official may decide who may speak and

who may not based upon the content of the speech or

viewpoint of the speaker.").

While protecting speech is undoubtedly among the

most important things the judiciary does, the Supreme

Court's jurisprudence on time, place, and manner

restrictions does not subject those restrictions to such

rigorous or arbitrary scrutiny. 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 for the

20a

purpose of this portion of time, place, and manner

analysis. Thus, 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.

Given that the interest here is keeping the right-of-way

clear, an outright ban of 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 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 unnecessarily overinclusive. I

believe that the ordinance in this case meets that

standard and is, therefore, narrowly tailored to serve

the significant interest. n2

Because I believe that the ordinance is narrowly

tailored to serve a significant interest, I must also

address the final portion of time, place, and manner

analysis, which requires that the ordinance in question

"leave open ample _ alternative channels’ of

communication .. . ". Ward, 491 U.S. at 802. Ample

alternative channels of communication are readily

available here.

Z2la

The City's complaint, at least the one identified in the

briefs and at oral argument, is not that the rat is

present at all in the right-of-way, instead, the City

objects to it being staked down and kept in place. The

Union indicates that the rat could be moved around

instead of staking it down. Apx. 159-61. In addition,

presumably, so long as the rat was placed on a cart ora

wagon and provided that the cart or the wagon was

moved about during the demonstration, the City would

not object to its presence as the ordinance would not

apply. Even if I am incorrect and the inflatable rat itself

could not be used, the Union could still make signs with .

pictures of rats on them, pass out smaller rat balloons

to passers-by, or use many other methods to

communicate its message. Ample alternative channels

of communication are available here. Therefore,

because I believe that the ordinance as-applied to the

rat passes the time, place, and manner tests, i believe

that the Union is unlikely to succeed on the merits of its

case.

B. Other factors

Given that I do not believe that the Union is likely to

succeed on the merits, I do not believe that it would

suffer irreparable harm if the injunction is not granted.

Furthermore, given that the Union has ample

alternative channels of communication available to it, I

believe that any harm it would suffer would be minimal.

Therefore, this factor, at best, does not weigh in favor

of either party, and it may weigh in favor of not

granting the injunction. Finally, although the majority

believes that "the public interest factor in this case

clearly weighs in favor of protecting the First

Amendment rights of the Union's members[.]" (citation

22a

omitted) (emphasis mine), I believe that this interest

must be balanced with the public interest in local

governments being able to legislate and enforce laws

that those governments deem necessary. Therefore, I

do not believe that this factor is clearly in favor of

either party even if the constitutional issues do tilt the

balance one way. Finally, while granting the injunction

will likely not harm others, that factor alone cannot

save the district court's grant of a _ preliminary

injunction, even on abuse of discretion review.

C. Conclusion

Because I believe that the City's ordinance is a

permissible time, place, and manner restriction, that

that fact means that the Union is unlikely to succeed on

the merits of its case, and because I do not believe that

the other factors point clearly in one direction, I believe

that it was an abuse of discretion for the district court

to grant the preliminary injunction. I would reverse the

district court's grant of a preliminary injunction and

remand for further proceedings.

Footnotes

nl The revised ordinance defines structure as "... 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." By including "any object, whether permanent

or temporary,” the ordinance alleviates the district

court's concern that the earlier ordinance might have

only applied to permanent structures. As I discuss

23a

later, I do not believe that one can look to the nature of

a structure in determining whether the city can

constitutionally ban it through a time, place, and

manner restriction.

n2 The above analysis also applies to the aesthetic

significant interest of the city. The city's aesthetic goals

are diminished the moment a structure is constructed in

the right-of-way.

24a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

LYNN D. TUCKER, JR.., et al.,

Plaintiffs,

CITY OF FAIRFIELD, OHIO, et al.,

Defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW,

AND ORDER

On August 27, 2003, Plaintiffs filed this lawsuit

pursuant to 42 U.S.C. § 1983 to, inter alia, enjoin the

City of Fairfield from enforcing City Ordinance 905.03

against them. As applied to Plaintiffs by the City of

Fairfield, § 905.03(c) precludes Plaintiffs from using a

large, inflatable rat balloon in the public right-of-way as

they picket Fairfield Ford for unfair labor practices.

Section 905.03 forbids the placement of structures in

the right-of-way and, as interpreted by the City,

Plaintiffs' rat balloon is a structure within the meaning

of the ordinance. Contemporaneously, Plaintiffs filed

motions for a temporary restraining order (Doc. No. 2)

and a preliminary injunction (Doc. No. 3).

On August 29, 2003, after notice to Defendants and a

hearing, the Court granted Plaintiffs' motion for a

temporary’ restraining order and _ established

September 15, 2003 as the date for a hearing on a

preliminary and permanent injunction. See Doc. No. 7.

In the interim between the entry of the temporary

25a

restraining order and the date of the hearing, the City

amended 905.03 to make it explicit that the rat balloon

fell within the meaning of the term "structure."

Therefore, the parties agreed that the hearing should

proceed only on the issue of whether a preliminary

injunction should be entered. See Hearing Transcript

(Doc. No. 13), at 2-3, 5, 10.

The Court, having considered the pleadings filed by the

parties, the evidence presented at the hearing, and the

preand post-hearing briefs of counsel,’ hereby enters

the following Findings of Fact, Conclusions of Law, and

Order. To the extent that the foregoing findings of fact

should more properly be considered conclusions of law,

and vice versa, they are hereby adopted as such.

I. Findings of Fact

1. The Plaintiffs in this case are Lynn D. Tucker, Jr. and

the International Association of Machinists and

Aerospace Workers, District Lodge 34 ("the Union").

Complaint Secs. 5, 6.

Tucker is the General Vice President of the Union's

Eastern Regional Office. Id. Par. 5. The Union is a labor

organization as defined by § 2(5) of the National Labor

Relations Act. Id. 91 6. One of Tucker's job

responsibilities is to organize non-union shops. Tr. at 15.

2. The Defendants in this case are the City of Fairfield,

a municipal corporation organized under the laws of the

state of Chio, Lt. Kevin Haddix of the Fairfield Police

Department, and Janette Mattala, the zoning inspector

for the City of Fairfield. Complaint Pars. 7-9. Plaintiffs

sue Haddix and Mattala in their individual capacities.

26a

3. In April 2003, the Union was certified as the

collective bargaining representative for the automotive

technicians who work at Fairfield Ford. Complaint 91

11; Tr. at 16-18. Fairfield Ford is located on State Route

4, also known as Dixie Highway, in the city of Fairfield.

Id. at 18. Fairfield Ford, however, has refused to

negotiate with the Union and, in fact, has been found by

“the National Labor Relations Board to have committed

an unfair labor practice by refusing to negotiate. Id. at

16; Plaint. Hearing Ex. 2.

4. In order to protest and draw attention to Fairfield

Ford's unfair labor practices, local union members and

Plaintiff Tucker picketed Fairfield Ford on February

26, 2003, July 1, 2003, and July 31, 2003 . Tr. at 17, 26,

34. There were anywhere from twenty-five to forty

protestors at each demonstration. Id. at 18, 26, 36. The

protests all took place in the public right-of-way

between Dixie Highway and Fairfield Ford. Id, at 18.

The demonstrations typically lasted only one hour with

two hours being the maximum duration of any one

demonstration. Id. at 21, 41. The demonstrations have

always been conducted in a peaceful and, except for the

alleged violation of the city ordinance, lawful manner.

Id. at 37

5. In addition to using picket signs, the protestors also

employed a large inflatable rat at these demonstrations.

Tr. at 25. The rat has long been used in the labor

movement as a symbol of protest against unfair labor

practices. Complaint 14; Id. at 19, 85. In this case, the

rat in question is approximately twelve feet high when

inflated and approximately eight feet square at its base.

Tr. at 19. It is inflated by means of a portable

27a

generator. Id. at 21. It takes only about five minutes to

inflate the rat and approximately the same amount of

time to deflate it. Id. at 20-21. The rat is easily picke |

up and moved around. Id. at 21. The rat, however,

usually remains stationary and the demonstrators

usually secure the rat with tethers and stakes so that it

does not tip over. Tr. at 2122. The demonstrators

always pack up the rat and take it with them when they

leave. I., at 21, 54.

6. The City of Fairfield has enacted Ordinance 905.03,

which governs the use of public streets, alleys, and

grounds. Subsection (c) of § 905.03, as originally

enacted, provides:

No person, firm, or corporation shall construct or place

or cause the construction or placement of any

shrubbery, 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 Public Works Director.

- As originally enacted, the ordinance defined "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 includes anything constructed which is not

enclosed within another structure and is placed in a

stationary location.

The amended ordinance, which was enacted with

Plaintiffs' rat balloon in mind, defines "structure" as:

28a

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 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 vehicle objects attached

to or placed upon motor vehicles which motor vehicles

are themselves placed in a stationary location are

included.

Def. Hearing Ex. A.

7. The Union generally notifies the police department

when they are about to conduct a demonstration and

specifically notifies the police that they will be using the

rat. Tr. at 60. The Union notified the Fairfield Police

Department about its February 26, 2003

demonstration, including that they intended to use the

rat. Although Fairfield Ford subsequently called the

police to complaint about the demonstration, and the

police in fact arrived at the demonstration, no arrests

were made or citations issued over the use of the rat.

Id. at 60-61. Public response to this demonstration was

generally favorable. Id. at 61.

8. The Union planned a second demonstration in front

of Fairfield Ford on July 1, 2003. The Union again

notified the police about their plans to picket Fairfield

Ford. Tr. at 26. Although they were not initially

notified by the police department that use of the rat in

the right-of-way was a violation of the City ordinance,

Defendant Mattala arrived at the demonstration and

informed the protestors that they would have to

29a

remove the rat or else be arrested. Id. at 27-28.

Subsequently, approximately four or five police

cruisers arrived on the scene. Id. at 29. Police officers at

the scene repeatedly warned the demonstrators that

they would be arrested if they did not take down the

rat. Id. at 30. Plaintiffs deflated the rat as a result of the

threats of arrest. Id.

9. Essentially the same sequence of events occurred at

the July 31, 2003 demonstration except that Plaintiff

Tucker actually received a citation for violation of the

ordinance. See Tr. at 34-36, 39.

10. The demonstrations, including the times when the

rat was in use, never blocked or obstructed traffic along

Dixie Highway or the entrance into Fairfield Ford, nor

were the demonstrators themselves ever disorderly or

unruly. Tr. at 23, 28-29, 37, 38, 40-41, 43, 44, 158, 180,

181-82, 184.

11. The actions of the City of Fairfield in threatening

the demonstrators with arrest and issuing a citation to

Plaintiff Tucker have adversely affected the Union's

efforts to organize other shops. Tr. at 46-48, 72-74. |

II. Conclusions of Law

A. Preliminary Injunction Standard of Review

In determining whether to grant injunctive relief, the

trial court must balance and weigh the following

factors: the plaintiff's likelihood of success on the

merits, the existence of irreparable harm to the plaintiff

in the absence of an injunction, whether others will be

harmed if an injunction is issued, and the public's

30a

interest in issuing an injunction. McPherson v.

Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453,

459 (6th Cir. 1997). These factors are not prerequisites

to issuing an injunction but factors to be balanced. See

Unsecured Creditors' Comm. of DeLorean Motor Co. v.

-DeLorean, 755 F.2d 1228, 1229 (6th Cir. 1985). The

court, however, should not issue a_ preliminary

injunction where there is no likelihood of success on the

merits. Michigan State AFL-CIO v. Miller, 103 F.3d

1240, 1249 (6th Cir. 1997) .

B. Analysis

1. Likelihood of Success on the Merits

Although the Court has set forth relatively detailed

findings of fact, the facts of this case are basically

undisputed. The main issue presented in this case is

really one of law and that question is whether the City

of Fairfield may prevent the Union from using the

inflatable rat during its demonstrations on the public

right-of-way without violating Plaintiffs’ First

Amendment rights. As a preliminary matter, the Court:

notes again that the use of the rat itself is speech

protected by both the First Amendment and federal

labor law. International Union of Op. Eng. Local 150 v.

Village of Orland Park, 139 F. Supp.2d 950, 958 (N.D.IIl.

2001); see also National Ass' n of Letter Carriers v.

Austin, 418 U.S. 264, 283 (1974). Second, although

the City clearly amended the ordinance to bring the

inflatable rat within the scope of its coverage, the Court

still views the ordinance as a content-neutral time,

place, and manner restriction. It seems pretty clear to

the Court that the City is not trying to suppress the

message, but only regulate the manner in which the

3la

message is conveyed. Therefore, the Court does not

find that the ordinance is a content-based restriction on

speech. A content-neutral restriction will be upheld if it

is narrowly tailored to meet an important governmental

interest and leaves open ample other means of

communication. Spignola v. Village of Granville, 34 Fed.

Appx. 978, 983-84 (6th Cir. 2002).

The City's argument, and indeed its mantra, in favor of

upholding the constitutionality of the ordinance as

applied to Plaintiffs is that "Plaintiffs have no First

Amendment right to erect structures in the right-of-

way." If Plaintiffs simply wanted to blow up the rat and

leave it in front of Fairfield Ford for an extended

period of time, the Court would agree with the City and

this case would be resolved easily in its favor. Plaintiffs,

however, have used the rat in a very narrow and

limited way. Their demonstrations have been of very

limited duration, two hours at the most, and they have

always packed up the rat and taken it with them at the

conclusion of each demonstration. Nor are Plaintiffs

claiming at this time that they should be able to leave

the rat up for as long as they wish. In fact, Plaintiffs do

not evidence any present desire to use the rat for

extended time periods. See Tr. at 233. Therefore, the

cases cited by the City in support of its argument in

favor of constitutionality are distinguishable on their

facts from the instant case. Furthermore, because the

cases are distinguishable, it is immaterial whether the

inflatable rat is a "structure" within the meaning of the

ordinance under either the original or amended

ordinance. Assuming that the rat is a "structure" within

the meaning of the ordinance does not change the

Court's analysis. It is not appropriate to simply label

the rat a structure and then ban it from the right-of-

32a

way without examining the nature of the alleged

structure.

Graff v. City of Chicago, 9 F.3d 1309 (7th Cir. 1998),

indeed involved the erection of a structure on a public

right-ofway and the Court did state that the plaintiff

had no right to erect a structure on public property. See

id. In Graff, however, the structure in question was a

newsstand which had been located on city property for

seventy years. See id. at 1311. The newsstand itself was

constructed of wood and there is a suggestion in the

opinion that a bulldozer would be required to demolish

it. See id. at 13813. The Court further commented that

"Newsstands are large, permanent-type structures.

They are constructed, and once in place they are not

easily moved." Id. at 1815. Furthermore, in

distinguishing its case from other cases which

permitted newsrac.:s to be located on public sidewalks,

the Court noted that newsstands occupy significant

more sidewalk space than newsracks. Id. The Court

further commented that "Size matters, and a newsstand

is more closely related to a building than it is to a

newsrack." Id. at 1315 n.4.

In contrast to the seventy-year period in which the

newsstand in Graff stood on public property, Plaintiffs

in this case only want to use the rat for at most a couple

of hours. Moreover, when their two-hour demonstration

is over, they take the rat with them. And, although the

rat is of fairly sizeable dimensions, unlike the

newsstand in Graff, it is easily portable by only a few

people and can quicky be moved out of the way if need

be.

In addition, the rat itself appears to take up no more

30a

space and causes no more obstruction than the

demonstrators themselves, whom the City concedes

have a First Amendment right to protest in the right-

of-way. See Plaint. Ex. 8. i

Lubavitch Chabad House, Ine. v. City of Chicago, 917

F.2d 341 (7th Cir. 1990), is distinguishable from this

case for many of the same reasons. In Lubavitch, the

plaintiff wanted to erect a free-standing menorah in a

public area of O'Hare Airport during the Christmas

season. The Court upheld the city's refusal to allow the

menorah to be erected, stating that the plaintiff did not

have "any private constitutional right to erect a

structure on public property." Id. at 347. Although the

Court in Lubavitch did not describe the menorah in

question in any detail, given that it was "free-standing"

and that plaintiff wanted to put it up during the

Christmas season, it seems reasonable to infer that the

plaintiff intended to leave the menorah in place,

unattended, twenty-four hours a day throughout the

holiday season. In contrast, as noted earlier, in this

case, Plaintiifs have used and intend to the use the rat

for only a few hours at a time, and then take it with

them at the end of the demonstration. Therefore, the

Court finds that Lubavitch is not applicable here either.

The next case relied on by the City is City Council of

Los Angeles v. Taxpayers for Vincent, 466 U.S. 789

(1984). Taxpayers for Vincent involved a restriction on

the posting of handbills in public places and on public

objects, such as utility poles. In upholding the ban on

the posting of handbills, the Court noted that cities

"have a weighty, essentially esthetic interest in

proscribing intrusive and unpleasant formats for

expression." Id. at 806. Furthermore, the handbills

34a

were a "visual assault on the citizens of Los Angeles"

because of "accumulation of signs on public property."

Id. at 807. In distinguishing its case from Schneider v.

State, 308 U.S. 147 (1939), which involved distribution

of leaflets to passers by, the Court noted that in

Schneider "the conduct continued only while the

speakers or distributors remained on the scene." Id. at

808. In its case, the Court noted, "appellees posted

dozens of temporary signs throughout an area where

they would remain unattended until removed." Id.

Thus, our case is like Schneider and is distinguishable

from Taxpayers for Vincent because Plaintiffs' use of

the rat continues only while they are on the scene and

they because do not leave the rat in place unattended

for any extended period of time.

On the other hand, at least one other district court case

is similar to the case at hand. In One World One Family

Now, Inc. v. State of Nevada, 860 F. Supp. 1457 (D.Nev.

1994), Nevada's Department of Transportation enacted

a regulation which forbid the placement of

"encroachments" on public highways. Plaintiffs wished

to set up tables, chairs, umbrellas, boxes and signs on a

public sidewalk in Las Vegas in order to distribute

religious and political messages. The Department. of

Transportation took the view that setting up the tables

and other paraphernalia on a public sidewalk was an

encroachment on a public highway. See id. at 1460-61.

The Court found that banning the tables from the

sidewalk violated plaintiffs’ First Amendment rights

because the tables facilitated the dissemination of

plaintiffs’ message and were relatively small and

portable rather than permanent. Id. In contrast, the

Court upheld the restriction on setting up chairs and

umbrellas because those items only facilitated the

35a

comfort of the plaintiffs. In addition, the Court noted

that use of chairs and umbrellas came close to

establishing a permanent-type structure, similar to the

newsstand in Graff. Id. at 1463.

What all of these cases tend to show, particularly in the

way that the Taxpayers for Vincent Court

distinguished Schneider, is that there is a First

Amendment right to use portable, non-obstructive

props to disseminate information in a public right-of-

way on a temporary or limited basis. In other words, as

long as the prop in question does not obstruct the right

of way (or can be easily removed from the right-of-way)

and causes no lingering adverse effects at the

conclusion of the demonstration, the prop cannot be

banned from the right-of-way. In this case, the

inflatable rat meets all of these criteria because it is not

obstructive, can be moved easily, and is deflated and

removed from the scene at the conclusion of each

demonstration. Therefore, the City's ordinance, as

applied to Plaintiffs' use of the inflatable rat, is

unconstitutional.

Moreover, the ordinance, as applied to Plaintiff's use of

the rat, is not narrowly tailored because the ban

furthers no governmental interest. Ward v. Rock

Against Racism, 491 U.S. 781, 782-88 (1989) ("The

requirement of narrow tailoring is satisfied so long as

the regulation promotes a substantial governmental

interest that would be achieved less effectively absent

the regulation, and the means chosen are not

substantially broader than necessary to achieve that

interest."). The City's fatal admission where the narrow

tailoring requirement is concerned is that Plaintiffs

may lift and carry the rat around in the right-of-way,

36a

but that they violate the ordinance as soon as they set it

down in the right-of-way. That being the case, no

governmental interest is furthered by application of the

ordinance to Plaintiffs. The rat sitting on the ground

causes no more obstruction, and is probably less

obstructive, than it would when held up in the air.

Furthermore, because the rat is easily moved, setting it

on the ground is not likely to cause any obstruction to

foot traffic. Placing the rat on the ground is no more an

esthetic nuisance than picking it up and carrying it

around in the right-of-way. Indeed, because Plaintiffs

use the rat for only a few hours at a time and take it

with them when they are done for the day, the chances

of the rat creating any lingering adverse consequences

to esthetics or property values are almost nil. In fact, as

applied to Plaintiffs, the City's distinguishing between

placing the rat on the ground and carrying it around is

plainly arbitrary.

Accordingly, for the reasons stated, Plaintiffs have a

very high likelihood of success on the merits.

2. Irreparable Harm

The irreparable harm factor again favors Plaintiffs

heavily. Suppression of protected speech, even for

minimal periods of time, constitutes irreparable harm.

Connection Dist. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.

1998). Furthermore, Plaintiffs have demonstrated that

the City's enforcement of the ordinance against them

has adversely affected their efforts to organize other

car dealerships.

3. Harm to Others

37a

Use of the rat in the right-of-way has not been shown to

create an obstruction or other safety hazard. Therefore,

this factor falls on Plaintiffs’ side of the ledger.

4. The Public's Interest

As noted before, the public interest is in favor of

protecting First Amendment rights. United Food &

Comm. Workers Union, Local 1099 v. Southwest Ohio

Reg. Trans. Auth., 163 F.3d 341, 363 (6th Cir. 1998).

Thus, this factor weighs in Plaintiffs' favor as well.

Conclusion

In conclusion, the factors for determining whether to

grant injunctive relief are all in Plaintiffs’ favor. They

have established a high likelihood of success on the

merits and they have established the existence of

irreparable harm in the absence of injunctive relief.

Harm to others is unlikely to result and the public

interest is in favor of granting injunctive relief.

Accordingly, Plaintiffs’ motion for a _ preliminary

injunction is well-taken and is GRANTED. The same

terms and conditions impose( by the Court in granting

Plaintiffs motion for a temporary restraining order

remain in full force and effect.

IT ISSO ORDERED

Date October 27, 2003

Sandra S. Beckwith United States District Judge

38a

Footnote

1The parties’ post-hearing briefs also address claims for

denial of equal protection and selective enforcement

raised in Plaintiffs' amended complaint, which was filed

after the hearing. Because the purpose of hearing was

to determine whether to grant injunctive relief on use

of the rat in the right-of-way, the Court declines to

address those claims at this time: Instead, the Court

will reserve the equal protection and _ selective

enforcement issues for disposition at the permanent

injunction stage.

39a

No. 03-4508

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LYNN D. TUCKER, JR.., et al.,

Plaintiffs-Appellees,

Vv.

CITY OF FAIRFIELD, OHIO, et al.,

Defendants-Appellants.

April 28, 2005, Filed

Order

The court having received a petition for rehearing en

banc, and the petition having been circulated not only

to the original panel members but also to all other

active judges of this court, and less than a majority of

the judges having favored the suggestion, the petition

for rehearing has been referred to the origiiial panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original

submission and decision of the case. Accordingly, the

petition is denied. Judge Kennedy would grant

rehearing for the reasons stated in her dissent.

40a

ORDINANCE NO. 155-03

ORDEINANCE TO AMEND SECTION 905.03 OF

CHAPTER 905, STREETS, UTILITIES AND

PUBLIC SERVICES CODE, OF ORDINANCE NO.

166-84, THE CODIFIED ORDINANCE OF

FAIRFIELD, OHIIO, RELATIVE TO PLACEMENT

OF STRUCTURES IN THE PUBLIC RIGHT-OF-

WAY AND DECLARING AN EMERGENCY.

WHEREAS, the City of Fairfield, Ohio has recently

been named in litigation styled as Lynn D. Tucker, Jr.,

et al., Plaintiffs v. City of Fairfield, Ohio et al.

States District Court, Southern District of Ohio,

Western Division, in which the Court has issued a

Temporary Restraining order against the City, and

WHEREAS, the Court in this Temporary Restraining

Order Determined that the definition of “structure” in

Fairfield Codified Ordinances did not include objects —

such as the inflatable rat involved in the Tucker

litigation, and

WHEREAS, this Council believes that objects such as

the inflatable rat involved in the Tucker litigation are

and should be included in the definition of “structure”

so as to be prohibited from placement in the public

right-of-way for the protection of substantial

governmental interests hereinafter discussed, and

WHEREAS, this Council wishes to amend its codified

ordinances to further clarify that objects such as the

inflatable rat are prohibited from the public right-of-

way whether placed there on a temporary or

Ala

permanent basis, and

WHEREAS, the City of Fairfield, Ohio has a

substantial governmental 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

WHEREAS, the City of Fairfield, Ohio also has a

substantial governmental interest in promoting the

aesthetic appeal of and preventing visual blight in its

public rights-of-way, and

WEHREAS, neither the First Amendment nor any

other constitutional provision create a right of private

individuals to erect structures, including freestanding

structures, in the public rights-of-way, and

WHEREAS, it has been determined that the City of

Fairfield, Ohio may legally and constitutionally 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. 2" 341

(7* Cir. 1990), and

WHEREAS, this Council believes that without

regulation of the erection or placement of private

structures in the public rights-of-way, such structures

will be erected or placed at the will of private

individuals and that the substantial governmental

interests identified above will be impaired to the

42a

detriment of the City of Fairfield, its inhabitants and

the motoring public in general, and

WHEREAS, for the purpose of promoting the

substantial governmental interests identified above,

there is no significant difference between a structure or

object which is attached to the ground or which is

simply placed in a stationary location in the public

right-of-way and the City of Fairfield may legally and

constitutionally regulate the use of its public rights-of-

way in either instance,

NO, THEREFORE, BE IT ORDAINED by the

Council of the City of Fairfield, Ohio, that:

Section 1. Section 905.03 of Chapter 905 of Ordinance

No. 166-84, The Codified Ordinances of Fairfield, Ohio

is hereby amended to read as follows:

905.08 STREETS, ALLEYS AND PUBLIC

GROUNDS.

(a) Obstructing Vision. No person,

firm or corporation shall place or cause to be placed any

snow, earth, debris, or any other materials in such a

manner or in such proximity to a street, alley or public

grounds so as to obstruct the vision of persons entering,

exiting or traveling over such streets, alleys or public

grounds. This section shall not apply to employees or

agents of the City or any other public agency who are

plowing or removing snow, earth, debris or any other

materials within the public streets, alleys or grounds.

(1) No person, firm or corporation shall place

or cause to be placed any earth, mud, snow, debris or

any other material or object upon any street, alley or

48a

public grounds. Any person, firm or corporation who

causes or permits the littering of any street, alley or

public grounds with earth, mud, snow, debris or any

other material or object shall immediately clean and/or

remove the same. If the person, firm or corporation

fails or is unable to remove the earth, mud, snow, debris

or other material or object immediately after being

notified to do so, then the cleaning service shall be

rendered by the street division at the current hourly

rates of its equipment and personnel.

(2) The street division shall render the bill for

the services to the person, firm or corporation in

violation of subsection (b)(1) hereof and shall also send a

duplicate bill to the Finance Director.

Way, Easements and Public Grounds. No person, firm

or corporation shall construct or place or cause the

construction or placement of any structure on any

street, alley, public right-of-way, easement or public

grounds except the following:

(1) Driveway aprons connected to public

streets approved by the Director of Public Works or

designee in accordance with applicable ordinance

requirements as to size, location and construction.

(2) Approved street trees and plantings in

accordance with applicable ordinances.

(3) Mailboxes approved by the Director of

Public Works or designee as to size, location and

construction.

(4) Public and quasi-public utility facilities and

other public and quasi-public uses approved by the

Public Works Director or designee as to size, location

and construction.

(5): Public signs, streets, roads, bridges, traffic

control and drainage facilities and related

44a

appurtenances approved by the Public Works Director

or designee as to size, location and construction.

Newsracks, if, and only to the extent required,

under the constitutions of the United States or State of

Ohio, provided that such newsracks are maintained in |

good order and repair, are not located in the paved

street or roadway, curb or shoulder of the street or

road, do not obstruct the safe passage or sight distance

of motorists or pedestrians in the public right-of-way,

do not block sidewalks or other pedestrian ways such

that a pedestrian cannot traverse along the sidewalk or

way without leaving the paved surface and do not

interfere with public and quasi-public utility facilities.

(d) Permit for Material on Street. No person,

firm or corporation shall place or cause to be placed

upon any street, alley, sidewalk or public grounds in the

City any rubbish, stone, brick, lumber or other

material. However, persons, firms or corporations

engaged in the repair or construction of any building in

the City may temporarily occupy certain portions of a

street or sidewalk upon first obtaining written

permission for that purpose from the Public Works

Director. The Public Works Director is authorized and

empowered to limit in the permit the amount of space .

in any street or sidewalk that may be used for such

purpose, and any person, firm or corporation violating

the terms of the permit shall by subject to the penalty

provided in this chapter. The person, firm or

corporation obtaining written permission for the

temporary occupation of a street or sidewalk shall leave

the street and/or sidewalk cleaned and in the same or

better state of repair as existed prior to the temporary

occupation. Failure to leave the street and/or sidewalk

cleaned shall constitute a_violation of subsection (b)

hereof.

45a

(e) As used in this section, the term

“structure” means 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

vehicle objects attached to or placed upon motor

vehicles which motor vehicles are themselves placed in

a stationary location are included.

(Ord. 155-03. Passed 9-13-03.)

Section 2. This ordinance is hereby declared to be an

emergency measure necessary for the urgent benefit

and protection of the City and its inhabitants for the

reason that the above amendment is necessary

immediately in order to protect and promote and

substantial governmental interests identified herein;

wherefore this ordinance shall take effect immediately

upon its passage.

Dated: September 13, 2003

Supreme Court, US

(2 FILED ——

AUS 3 1 2095

No. 05-0153

THE CLERK

IN THE

Supreme Court of the United States

CITY OF FAIRFIELD, Ohio; KEVIN HADDIX, in his

Individual Capacity; JANETTE MATALA, In her individual

capacity City of Fairfield Zoning Inspector; JOHN DOES(S)

2-5, in their individual capacities, PETITIONERS

LYNN D. TUCKER, JR., General Vice President,

International Association of Machinists and Aerospace

Workers; INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AEROSPACE WORKERS, DISTRICT LODGE 34

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CiRCUIT

JOINT BRIEF OF AMICI CURIAE THE CITY

OF ATHENS, OHIO, AND THE OHIO MUNICIPAL

LEAGUE IN SUPPORT OF PETITIONER

Garry E. Hunter - Barry M. Byron

Director of Law Counsel of Record

City of Athens, Ohio - John E. Gotherman

Law Administration Bldg., Interstate Sq. Building I

Suite 301 Suite 240

8 East Washington Street 4230 State Route 306

Athens, Ohio 45701 Willoughby, Ohio 44094

(740) 592-3332 (440) 951-2303

Attorney for Amicus Curiae Attorneys for Amicus

The City of Athens, Ohio Curiae The Ohio Municipal

League

CURRY & TAYLOR @ WASH O.C. @ (202) 223-3160 ¢ USSCINFO.COM

MOTION BY THE OHIO MUNICIPAL LEAGUE

FOR LEAVE TO FILE A BRIEF AS AN AMICUS

CURIAE. -

Now comes the Ohio Municipal League,!

(sometimes, “the League”) by and through counsel, and

hereby moves this court for leave to participate as an

amicus curiae, supporting the petition of the City of

Fairfield, et al., for a writ of certiorari. The League is

tendering a brief jointly with the City of Athens, Ohio,

which is permitted to file an amicus curiae brief as a

matter of right, pursuant to Section 4 of Rule 37 of the

Rules of the Supreme Court of the United States.

Pursuant to Section 2 of Rule 37 of the Rules of the

Supreme Court of the United States, if a prospective

amicus does not receive the written consent of all

parties, the amicus must petition the court for leave to

file the brief, indicate which party has withheld consent

and advise the court of the nature of the movant’s

interest. ;

The petitioner, the City of Fairfield, was willing to

grant consent, but when the consent of the counsel for

respondent in this case, i.e. David M. Cook, was sought

by John H. Clemmons, the Law Director for the City of

Fairfield, consent was denied.

As the brief of the City of Athens may be filed as a

matter of right, the Ohio Municipal League should be

permitted to join in that brief in order to express the

1 No person, other than amici and their counsel, participated in

the writing of this brief or made any financial contribution to the

brief.

combined interests of its members and, thereby,

eliminate the need for multiple municipalities to either

join with the City of Athens or file their own briefs.

TABLE OF CONTENTS

TE PRRSLARy CIO AAPG BBD NO cicacdinidssedsnoienpasciecissdsontiasobabeinenansgaetbabe ili

A Paka OE PT EOE RA coeicercsensnsesiestctssseeivisaesbsessckadecsened iv

INTERESTS OF AMICI CURIAB 0... ccsccsecscssssessscscsers 1

INTRODUCTION: SUMMARY OF ARGUMENT............... 2

SERGE. OF BACT esc csccsssssesnssvcostnasvsincenossnns slateiiesibies 4

PRIMARIES sishscsnssecdueniciccasiinsin eatecoarin is cciealiaceescasnmeenct 4

PRRs AW PN sais ss cacip csidnsescnnctanspsaoosingahcocnitesipveliamsaanoupesuinellds 7

TABLE OF AUTHORITIES

CASES

TUCKER V. F AIRFIELD, 398 F.2D 457, WT GGE ie seeeee 5

WARD V. ROCK AGAINST RACISM, 491 U.S. 781, 801........... 5,7

INTERESTS OF AMICI CURIAE

The City of Athens is a statutory city, organized in

the State of Ohio with its structure and operations

founded upon the Ohio Revised Code. The city is a duly

established, existing Ohio municipal corporation which

exercises home rule authority pursuant to Article XVIII,

Section 3 of the Ohio Constitution. Section 3 provides

that municipalities shall have authority to exercise all

powers of local self-government and to adopt and enforce

within their limits such local police, sanitary and other

similar regulations, as are not in conflict with general

laws.

The City of Athens has enacted Athens City Code

Section 9.12.17 which states that “No person shall

obstruct any street, alley, sidewalk or other public way in

the city, by erecting thereon any fence or building, or

permitting any fence or building to remain thereon.”

The City of Athens has also enacted Athens City

Code Section 23.03.13(W)(5) which states that “No sign

shall be placed on any curb, sidewalk, post, pole, hydrant,

bridge, wall, tree or other surface located on public

property or over or across any public street except as

expressly authorized by the Mayor.”

The Sixth Circuit Court of Appeals, in the instant

case, held that the district court did not abuse its

discretion in finding that the use of the balloon on the

public right-of-way is constitutionally protected

expression. The court found that the suppression of

Tucker's protected speech constituted irreparable harm

to the Union and that the use of the balloon was not

shown to harm others.

The consequence of this ruling will be that the City of

Athens will be unable to enforce its laws that prohibit

obstructions in the City’s rights-of-way, if the

obstructions contain either written or symbolic messages,

are present for a limited duration and are easily removed.

The City right-of-ways could become littered with

“temporary” structures if those structures convey a

message.

The Ohio Municipal League is an Ohio non-profit

corporation whose membership includes over 750 cities

and villages in the State of Ohio. Most, perhaps all, of the

League’s members prohibit (with certain exceptions) the

erection of private structures within public rights-of-way.

The erroneous decision of the Sixth Circuit, if applied on

a routine basis, severely restricts the ability of

municipalities to enforce content neutral regulations

which advance the legitimate governmental interests of

keeping the right-of-way unobstructed, thereby

promoting public safety.

Municipalities across Ohio have ordinances similar to

those of the Cities of Athens and Fairfield, which prohibit

erecting structures and signs in public rights-of-way. As

a consequence of the Sixth Circuit’s ruling, all Ohio

municipalities face a severe limit on their abilities to

regulate activity in the public rights-of-way, which will

adversely affect the safety of people using those rights-of-

way.

INTRODUCTION: SUMMARY OF ARGUMENT

Any driver whose vision has been blocked while

trying to enter a busy highway knows the reason why

people should not be allowed to erect structures in

municipal rights-of-way. Keeping this in mind, this case

is really not about the freedom of speech; it is about being

able to see what's coming at you at a high rate of speed

before you pull out in front of it.

The legislative authority of the City of Fairfield has

enacted legislation establishing a policy that the rights-of-

way of the City should not have structures located ix:

them, either on a permanent or temporary basis.! This

regulation is content neutral, it advances the public's

safety, and leaves innumerable other avenues for

expression. Pursuant to well established law, the

ordinance should be found to be constitutional as applied

to respondents.

The United States Court of Appeals for the Sixth

Circuit, on a vote of 2-1, has determined that the United

States Constitution requires the City to permit

structures to be located in the City’s rights-of-way for at

least two (2) hours, so long as the structures are used for

the purpose of First Amendment-protected

communications and so long as they may be “easily

removed.”

The amici believe the City of Fairfield has done an

excellent job explaining the legal reasons why the Sixth

Circuit decision is wrong. The amici, now, write briefly

to bring to this court's attention reasons why the Sixth

Circuit’s decision should not be permitted to remain good

2 The ordinance does permit certain exceptions for utility poles,

street trees, mailboxes, etc., which are customarily found in the right-

of-way and which do not present significant obstructions to drivers

seeking to enter the roadway.

law in the cireuit. The decision below will create

significant safety hazards which greatly outweigh the one

mode of “speech” which has been banned by the City of

Fairfield.

Certiorari is sought so that this Court may clarify

that the Constitution does not require municipal

regulations, which are content neutral, and which

reasonably and narrowly’ advance legitimate

governmental interests, have to be the least-restrictive or

least-intrusive means of advancing the legitimate

governmental interest.

STATEMENT OF FACTS

The Amici hereby adopt, and incorporate by

reference, the facts as presented by the Petitioners, the

City of Fairfield et al.

ARGUMENT

Amici concur with the legal arguments made by the

Petitioners and will not restate them here. C7.,S.Ct. Rule

37.1 (“An amicus curiae brief that brings to the attention

of the Court relevant matters not already brought to its

attention by the parties may be of considerable help to

the Court. An amicus curiae brief that does not serve

this purpose burdens the Court, and its filing is not

favored.”)

The Sixth Circuit has determined that people in

Fairfield have a constitutionally protected right to erect a

structure in a municipal right-of-way for not more than

two (2) hours. What cannot be determined from the

Court's opinion is any discernable principle which would

limit this constitutional “right” to place structures in a

right-of-way, so long as the structure is “temporary.”

Dissenting Judge Kennedy highlighted this problem

with the District Court’s (and, by implication, the

majority’s) jurisprudence:

“*** The district court indicates that ifthe Union

wished to leave the inflatable rat in the right-of-

way constantly, it would reach a different result.

Apx.46. What exactly constitutes “an extended

period of time” that would require resolving this

dispute in the City’s favor? Jd. Four hours?

Ten? Twenty four? Alternatively, what public

employee is to be given the discretion to

determine that amount of time, and how is that

discretion to be limited so that time, place, and

manner neutrality is maintained?

While I do not want to belabor the line-

drawing problem, I raise them simply because I

do not believe that the district court’s position is

a tenable way to evaluate the level of protection

the structure deserves. Instead, I believe that

we must look to the significant interest and then

determine whether the ordinance narrowly

targets the identified evil. Ward, 491 U.S. at

799-800.” Tucker v. Fairfield, 398 F.2d 457, at

467.

Is it a constitutional right for picketers to erect a

structure in a municipal right-of-way from “dawn to

dusk every day except holidays” for over five (5) years,

as has happened in Ohio?

http://hollandsentinel.com/stories/112500/bus 61.html

The Sixth Circuit has not considered the implications _

of its policy preference to allow “temporary” structures in

the right-of-way if the structures can be “easily removed.”

Structures in the right-of-way may block the view of

vehicles entering the right-of-way, either from private

property or other roads, irrespective of the temporal limit

or mobility of the structure. In a two hour period an

indefinite number of vehicles may have their views of

traffic blocked by a “temporary,” movable structure. It is

not likely that persons in vehicles involved in an accident

would be comforted by the fact that the structure which

blocked the vision of the driver(s) was only there for two

hours and could be easily removed. Is the reduction of

sight distance something which must be evaluated on a

~ case by case basis, or does a City have the right to say

“no” to structures in the right-of-way?

Beyond the physical act of blocking vision, seeing a

giant rat balloon by the road is not an everyday

occurrence (a proposition seemingly endorsed by the

Sixth Circuit’s requirement that such a structure must be

temporary, but made less likely by the possibility of a

protest occurring all day, every day for over five years).

Is it fair to assert that seeing a giant rat in the right-of-

way might have an effect upon driver attention? The

time needed to say “Look, Martha, there’s a giant rat!”

may be all the time needed to cause a violation of Ohio's

assured clear distance law, R.C. 4511.21(A), and aserious

accident.

“Temporary,” “movable” structures may also force

pedestrians to leave the portion of the right-of-way

designed for pedestrian traffic and walk on the portion of

the road designed for vehicular traffic, threatening the

safety of the pedestrians.

Municipalities ought to be allowed to prohibit

structures from being erected in their rights-of-way, even

if such a regulation eliminates one method of

communication. As petitioner aptly notes: the regulation

is content neutral, it is narrowly tailored to meet the

governmental interest and plenty of other methods of

communication are available to those who wish to be seen

and heard. The Fairfield ordinance is, therefore,

constitutional. Ward v. Rock Against Racism, 491 U.S.

781, 801 (“*** 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 interest in a given case.”)

CONCLUSION

The First Amendment cannot require municipalities

to allow every person to erect a temporary structure in

the right-of-way, even if the structure can be easily

removed. The Sixth Circuit Court of Appeals’ decision

mandates such a result. The writ of certiorari should be

granted. The Sixth Circuit has, in effect, second-guessed

a policy decision of a local government in a manner

neither required nor permitted by the Constitution. This

case is worthy of the time and attention of this Honorable

Court.

Respectfully submitted,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.