United States Court of Appeals, Tenth Circuit
United States Court of Appeals, Tenth Circuit
United States Court of Appeals, Tenth Circuit
3d 1044
Brian M. Barnard, Utah Legal Clinic, Salt Lake City, UT, appearing for
Appellant.
Francis J. Manion, American Center for Law & Justice, New Hope, KY
(Edward L. White, III, Thomas More Law Center, Ann Arbor, MI, Jay
Alan Sekulow, American Center for Law & Justice, Washington, DC, and
Geoffrey R. Surtees, American Center for Law & Justice, New Hope, KY,
with him on the brief), appearing for Appellees.
Before TACHA, Chief Circuit Judge, EBEL, Circuit Judge, and KANE,*
District Judge.
TACHA, Chief Circuit Judge.
BACKGROUND
2
When the city did not respond to its second request, Summum filed suit in
federal district court seeking declaratory and injunctive relief, as well as
monetary damages, for Pleasant Grove's violation of Summum's free speech
rights under the U.S. Constitution and for the city's violation of the Utah
Constitution's free expression and establishment provisions. Summum contends
that the city violated its rights by excluding its monument while allowing other
permanent monuments of an expressive nature (e.g., the Ten Commandments)
to be displayed in the park.2 In an oral ruling on various motions, the District
Court denied Summum's request for a preliminary injunction requiring the city
to permit the display of Summum's monument in the park. Summum
subsequently appealed this decision, arguing that the District Court abused its
discretion in denying the injunction based on Summum's First Amendment
claim. 3
DISCUSSION
I. Preliminary Injunction Standard
5
(1) [he or she] will suffer irreparable injury unless the injunction issues; (2) the
threatened injury . . . outweighs whatever damage the proposed injunction may
cause the opposing party; (3) the injunction, if issued, would not be adverse to
the public interest; and (4) there is a substantial likelihood [of success] on the
merits.
The three types of disfavored injunctions are "(1) preliminary injunctions that
alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary
injunctions that afford the movant all the relief that it could recover at the
conclusion of a full trial on the merits." O Centro Espirita Beneficiente Uniao
Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir.2004) (en banc), aff'd and
remanded, Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546
U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006). When a preliminary
injunction falls into one of these categories, it "must be more closely
scrutinized to assure that the exigencies of the case support the granting of a
remedy that is extraordinary even in the normal course." Id. A district court
may not grant a preliminary injunction unless the moving party "make[s] a
strong showing both with regard to the likelihood of success on the merits and
with regard to the balance of harms." Id. at 976.
10
In this case, the preliminary injunction clearly falls within two categories of
disfavored injunctions: it alters the status quo and is mandatory. An injunction
alters the status quo when it changes the "last peaceable uncontested status
existing between the parties before the dispute developed." Schrier, 427 F.3d at
1260 (quotations omitted). The last uncontested status between Summum and
Pleasant Grove was one of no relationship between the two parties. Because
Summum's monument is not currently displayed in a Pleasant Grove city park,
an injunction ordering Pleasant Grove to permit the display of Summum's
monument clearly changes the status quo. In addition, by requiring the city to
make arrangements for the display of Summum's monument, an injunction
would mandate that the city act and would require the district court to supervise
the city's actions to ensure it abides by the injunction. Because an injunction
would "affirmatively require" Pleasant Grove "to act in a particular way" and
would require ongoing court supervision, it is a mandatory injunction. See id. at
1261 (quotations and alterations omitted). Because the injunction falls into two
disfavored categories, Summum must have made "a strong showing both with
regard to the likelihood of success on the merits and with regard to the balance
of harms" to prevail on its motion at the district court level. O Centro, 389 F.3d
at 976.
11
Based on the record, we cannot discern whether the District Court applied this
heightened standard. In its oral ruling, the court simply noted that it denied
Summum's motion because it failed to establish a substantial likelihood of
success on the merits. The court did not analyze the other three factors or
explicitly state that it applied a heightened standard to Summum's request. But
even if the District Court concluded that Summum could not prevail using the
lesser standard, it certainly would reach the same conclusion under the
heightened standard. Although the "failure of the district court to apply the
correct standard" to a request for a preliminary injunction "amounts to an abuse
of discretion," id. at 982 n. 5, any abuse in this case was in Summum's favor.
We therefore assume that the District Court applied the heightened standard
and review the court's legal conclusions and findings of fact for abuse of
discretion.
II. Preliminary Injunction Analysis
12
In its oral ruling on Summum's motion for a preliminary injunction, the District
Court indicated that Summum would not prevail on the merits if Pleasant Grove
14
15
16
17
Having identified the relevant forum, the reviewing court must also determine
whether the forum is public or nonpublic in nature. In general, the forum will
fall into one of three categories:
18
(1) a traditional public forum (e.g., parks and streets), (2) a designated public
Id. In the case before us, the District Court indicated that the applicable
analysis is whether Pleasant Grove's policy is reasonable and viewpoint neutral.
The court therefore analyzed the city's actions using the standard associated
with a nonpublic forum.
20
The city park is, however, a traditional public forum. Indeed, the Supreme
Court has characterized streets and parks as "quintessential public forums,"
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct.
948, 74 L.Ed.2d 794 (1983), because people have traditionally gathered in
these places to exchange ideas and engage in public debate:
21
22
Id. (quoting Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423
(1939)). Because the park is a public forum, the city's restrictions on speech are
subject to strict scrutiny. Id.; see also Cornelius, 473 U.S. at 800, 105 S.Ct.
3439 ("Because a principal purpose of traditional public fora is the free
exchange of ideas, speakers can be excluded from a public forum only when the
exclusion is necessary to serve a compelling state interest and the exclusion is
narrowly drawn to achieve that interest."); Int'l Soc'y for Krishna
Consciousness, Inc. v. Lee (ISKCON), 505 U.S. 672, 678, 112 S.Ct. 2701, 120
L.Ed.2d 541 (1992) (indicating that such restrictions are subject to the "highest
scrutiny").
23
Moreover, the city cannot close or otherwise limit a traditional public forum by
fiat; a traditional public forum is defined by its objective characteristics, not by
governmental intent or action. Ark. Educ. Television Comm'n v. Forbes, 523
U.S. 666, 678, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998); see also First
Unitarian Church v. Salt Lake City Corp., 308 F.3d 1114, 1124 (10th Cir.2002)
("The government cannot simply declare the First Amendment status of [a
traditional public forum] regardless of its nature and its public use."). In short,
the nature of the forum in this case is public. See Eagon v. City of Elk City, 72
F.3d 1480, 1486-87 (10th Cir.1996) (rejecting argument that park is a
nonpublic forum); see also United States v. Grace, 461 U.S. 171, 177, 103
S.Ct. 1702, 75 L.Ed.2d 736 (1983) ("`[P]ublic places' historically associated
with the free exercise of expressive activities, such as streets, sidewalks, and
parks, are considered, without more, to be `public forums.'"); Frisby v. Schultz,
487 U.S. 474, 481, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (noting that all
public streets are traditional public forums regardless of their particular
character).
24
Pleasant Grove contends that our decisions in City of Ogden and Summum v.
Callaghan, 130 F.3d 906 (10th Cir.1997), support its argument that the
monuments and other structures in the city park constitute a nonpublic forum.
But in both City of Ogden and Callaghan, the property at issue could not be
characterized by tradition or government designation as a public forum.
City of Ogden, 297 F.3d at 1002 (holding that permanent monuments on the
grounds of a municipal building were a nonpublic forum because property was
"not by tradition or designation a forum for public communication" (quotations
omitted)); Callaghan, 130 F.3d at 916-17 (holding that courthouse lawn was a
nonpublic forum). Conversely, in the present case, the property is a park, the
kind of property which has "immemorially been held in trust for the use of the
public." Hague, 307 U.S. at 515, 59 S.Ct. 954. In this way, the present case
more closely resembles the facts in Eagon. In Eagon, individuals sued Elk City
for violation of their free speech rights after the city excluded their display from
"Christmas in the Park," an annual event during which individuals and groups
were allowed to erect displays in Ackley Park. 72 F.3d at 1483. In conducting
our forum analysis, we characterized the relevant forum as "Ackley Park during
the `Christmas in the Park' event" and held that the forum was a traditional
public forum, in which "content-based restrictions on speech are valid only if
necessary to serve a compelling state interest and if narrowly drawn to achieve
that end." Id. at 1487. Similarly, the fact that Summum seeks access to a
particular means of communication (i.e., the display of a monument) is relevant
in defining the forum, but it does not determine the nature of that forum. See
Cornelius, 473 U.S. at 802, 105 S.Ct. 3439 ("Having identified the forum . . .
we must decide whether it is nonpublic or public in nature.").
25
By applying the standard associated with a nonpublic forum, the District Court
committed an error of law. In a nonpublic forum, content-based restrictions on
speech are permissible as long as they do not discriminate on the basis of the
speaker's viewpoint and are reasonable. Perry Educ. Ass'n, 460 U.S. at 49, 103
S.Ct. 948; see also Cornelius, 473 U.S. at 806, 105 S.Ct. 3439 ("Control over
access to a nonpublic forum can be based on subject matter and speaker identity
so long as the distinctions drawn are reasonable in light of the purpose served
by the forum and are viewpoint neutral."). But in a public forum, content-based
restrictions are presumptively invalid. R.A.V. v. City of St. Paul, 505 U.S. 377,
382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); see also Police Dep't of Chicago
v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) ("Selective
exclusions from a public forum may not be based on content alone, and may
not be justified by reference to content alone."). In order for a content-based
restriction to survive strict scrutiny, the government must "show that its
regulation is necessary to serve a compelling state interest and that it is
narrowly drawn to achieve that end." Perry Educ. Ass'n, 460 U.S. at 45, 103
S.Ct. 948. As we explain below, Pleasant Grove has failed to justify its
restriction on speech under this standard.4
26
27
Pleasant Grove concedes that its restriction on speech in the park is content
based.5 By requiring that monuments meet the city's historical relevance
criteria, the city excludes monuments on the basis of subject matter and the
speaker's identity.6 Because the city's restrictions are content based, they may
not be analyzed under the less exacting intermediate scrutiny applied to
content-neutral restrictions regulating the time, place, or manner of expression
in public forums. Id.
28
Because Pleasant Grove argued below that the relevant forum is nonpublic in
nature, it did not assert a compelling interest that would justify excluding
Summum's monument. The only interest Pleasant Grove asserted is an interest
in promoting its history. The city's failure to offer any reason why this interest
is compelling is sufficient for Summum to meet its burden in demonstrating a
substantial likelihood of success on the merits. See Pac. Frontier, 414 F.3d at
1235 (affirming district court's conclusion that city failed to meet its burden in
justifying its regulation at preliminary injunction stage); see also S.O.C., Inc. v.
County of Clark, 152 F.3d 1136, 1146 (9th Cir.1998) (finding that plaintiff had
established substantial likelihood of success on the merits when county did not
offer any reason why its interests were compelling).7
30
But even if we assume that Pleasant Grove's stated interest is compelling, the
city has also failed to establish that the content-based exclusion of Summum's
monument is "necessary, and narrowly drawn," to serve the city's interest in
promoting its history. See Capitol Square Review and Advisory Bd. v. Pinette,
515 U.S. 753, 761, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995). As the Supreme
Court has explained, defining a governmental interest this narrowly (i.e., the
promotion of the city's history in this particular park) turns the effect of the
regulation into the governmental interest. See Simon & Schuster, Inc. v.
Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 120, 112 S.Ct. 501,
116 L.Ed.2d 476 (1991) (explaining that "this sort of circular defense can
sidestep judicial review of almost any statute, because it makes all statutes look
narrowly tailored").
31
in a public forum, but "must alter the objective physical character or uses of the
property, and bear the attendant costs, to change the property's forum status").
32
In addition to the city's stated interest in promoting its history, the 2004 city
resolution governing monuments in the park contains aesthetic and safety
justifications for the speech restriction.8 Cities have substantial interests in the
aesthetic appearance of their property. Metromedia, Inc. v. City of San Diego,
453 U.S. 490, 507-08, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). To further these
interests, Pleasant Grove may pass a reasonable content-neutral resolution
regulating the time, manner, or place of speech in the park. For example, it
could ban all permanent displays of an expressive nature by private individuals.
Pinette, 515 U.S. at 761, 115 S.Ct. 2440 (noting a "ban on all unattended
displays" as a possible content-neutral restriction in a traditional public forum);
see also Ward v. Rock Against Racism, 491 U.S. 781, 792, 796, 109 S.Ct. 2746,
105 L.Ed.2d 661 (holding that city's regulation of sound levels in park was a
content-neutral and narrowly tailored means of serving city's interest in the
peaceful character of park and privacy of residential area).
33
Here, however, the city has furthered its objectives by passing a content-based
resolution, which excludes all speech that does not meet its historical relevance
criteria; the resolution is therefore subject to strict scrutiny. We need not decide
whether the city's interests in aesthetics and safety are compelling because the
resolution is not narrowly tailored to achieve its stated interests. The city has
not offered any reason why monuments with its preferred historical content will
preserve park space and reduce safety hazards more effectively than
monuments containing other content. See Solantic, LLC v. City of Neptune
Beach, 410 F.3d 1250, 1267 (11th Cir.2005) (holding city's sign code
unconstitutional because not narrowly tailored to serve "the general purposes of
aesthetics and traffic safety"); see also City of Ladue v. Gilleo, 512 U.S. 43, 52,
114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) (noting that, by allowing content-based
exemptions, the government "may diminish the credibility of [its] rationale for
restricting speech in the first place"). Rather, the distinction between
monuments with particular historical content and monuments lacking this
content "bears no relationship whatsoever" to the resolution's stated interests in
aesthetics and safety. City of Cincinnati v. Discovery Network, Inc., 507 U.S.
410, 424, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993) (finding that ban on
commercial newsracks lacked reasonable fit with city's interests in aesthetics
and safety); see also Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S.
781, 792, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (holding state's "generalized
interest" was "insufficiently related" to its chosen means). The city may not
burden speech that does not present the danger the regulation seeks to address:
"Where at all possible, government must curtail speech only to the degree
necessary to meet the particular problem at hand, and must avoid infringing on
speech that does not pose the danger that has prompted regulation." Fed.
Election Comm'n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 265, 107 S.Ct.
616, 93 L.Ed.2d 539 (1986). Summum's monument is similar in size, material,
and appearance to the Ten Commandments monument already displayed in the
park. The city's exclusion of the monument based on its content cannot be
justified by an interest in aesthetics or safety.9
34
Because Pleasant Grove has not demonstrated that application of its historical
relevance criteria is more likely than not to be justified by its stated interests,
we conclude that Summum has established a substantial likelihood of success
on the merits and proceed to a determination of whether Summum has satisfied
its burden under the remaining three factors necessary for a preliminary
injunction.
B. Irreparable Injury
35
36
36
37
CONCLUSION
38
We hold that Summum has met its burden under all four factors necessary for a
preliminary injunction and has made the strong showing required under the
heightened standard for disfavored injunctions. We therefore REVERSE the
District Court's order denying Summum's motion and REMAND with
instructions to grant the preliminary injunction in Summum's favor. In addition,
the District Court may conduct further proceedings consistent with this opinion.
We DENY as moot Summum's motion to expedite this appeal.
Notes:
*
Honorable John L. Kane, Jr., Senior District Judge for the District of Colorado,
sitting by designation
Although Summum claims it did not receive this letter, the organization's
president acknowledged that he had read the notice of the city's denial in the
newspaper. (Applt. App. at 59)
We note that the Supreme Court has chosen not to apply forum principles in
certain contexts, recognizing that the government in particular roles has
discretion to make content-based judgments in selecting what private speech to
make available to the publicSee United States v. Am. Library Ass'n, Inc., 539
U.S. 194, 205, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003) (plurality opinion)
(recognizing that public library staffs have broad discretion to consider content
in making collection decisions); Ark. Educ. Television Comm'n v. Forbes, 523
U.S. 666, 673, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998) ("Public and private
broadcasters alike are not only permitted, but indeed required, to exercise
substantial editorial discretion in the selection and presentation of their
programming."); Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 585,
118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (holding that the NEA may make
content-based judgments in awarding grants as such judgments "are a
consequence of the nature of arts funding"). The city in the case before us is
not, however, acting in its capacity as librarian, television broadcaster, or arts
patron. Because the Supreme Court has not extended the reasoning of these
cases to the context we consider today, we conclude that the case is best
resolved through the application of established forum principles.
city argues that our decision supports its use of historical relevance criteria to
limit speech in this context. In City of Ogden, however, we simply noted that
we were not deciding that a city "may never maintain a nonpublic forum to
which access is controlled based upon 'historical relevance' to the given
community." 297 F.3d at 1006 (emphasis added). In other words, we left open
the question whether a city could limit access to a nonpublic forum based on
historical relevance. More important, we did not express any opinion about the
use of historical relevance criteria to justify content-based discrimination in a
public forum. A content-based restriction permissible in a nonpublic forum will
not necessarily survive the strict scrutiny applied to a restriction in a public
forum.
8
approving monuments that promote the city's pioneer history. In the "absence
of express standards," such as a written policy, city officials are more likely to
use post hoc rationalizations to justify their decisions; this kind of "unbridled
discretion" can result in content or viewpoint discrimination. Callaghan, 130
F.3d at 920 (quotations omitted).