Artistic Expression, Content Regulation / Censorship
Indibility Creative Pvt Ltd v. Govt of West Bengal
Closed Expands Expression
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The United States District Court in the Northern District of Illinois granted a preliminary injunction against the City of Chicago’s prohibition on religious evangelism and circulation of petitions in a City Park. A group of Christian Evangelists and a separate group of citizens who circulated petitions in public places were repeatedly prevented from conducting their activities in the Park, and they then approached the Court. The Court ruled that the Park was a public forum and that the rules which prohibited free speech and petitions in the Park violated the right to free speech under the First Amendment to the US Constitution.
In December 2018, four members of the outreach ministry Chicago Evangelism Team, Matt Swart, Jeremy Chong, Gabriel Emerson, and Caeden Hood, went to evangelize in Chicago’s Millennium Park (the Park). The ministry regularly engaged in open air evangelizing and dissemination of religious literature on Fridays. The Park, a popular public park in the city of Chicago (the City), is free and open to the public containing multiple green spaces and recreation areas, and is described as a “public park” on its website. The City considers the Park as a unique space with multiple subspaces to showcase world-class art, music, architecture, and landscape design. The Park was built by the Millennium Park Foundation, which raised money to build the various components of the Park before donating it back to the City. However, the Foundation is still intimately connected with the running of the Park and still has the right to “voice any objections to the City’s Department of Cultural Affairs and Special Events (DCASE) regarding the City’s curation of arts and programming in the Park” [p. 3]. The City, however, is under no obligation to act on those objections.
In December 2018, the members of the Chicago Evangelism Team began by disseminating literature when they were approached by Park Security officials and told to stop as they were prohibited from distributing information within the Park. When Hood then switched to verbal evangelizing, security personnel again told the group to stop. Later when Chong joined the group and began evangelizing himself, two Park Supervisors told the group that a Chicago Ordinance “prohibited solicitation on the sidewalk” in the area near the Park [p. 6]. Over the next weeks, members of the Chicago Evangelism Team continued to attempt to evangelize in the Park but each time were told by Park Security that they were prohibited from doing so: the group was told by a Park employee that “they could not discuss religion in the Park” [p. 6].
On April 5, 2019, when Chong was once again attempting to evangelize in the Park he was given newly-enacted Rules by the Park’s Public Recreational Operations Manager. The Rules had come into force on April 2, 2019, and the most recent version of the Rules state, under P(1), that “[c]onduct that objectively interferes with visitors’ ability to enjoy the Park’s artistic displays, including, but not limited to, substantially impairing pedestrian traffic, disrupting views of the art, or conduct that endangers public health or safety, may damage Park property, or is prohibited by applicable federal, state, and local laws, is prohibited in the Park”. P(3) identifies the separate areas of the Park and states that “[t]he making of speeches and the passing out of written communications shall be restricted to [two areas of the Park] and Millennium Park Monument and the sidewalks in and around the Park, though closed sidewalks, whether for an event or another reason, shall not be available for this purpose”. The Park’s security officials “bear the responsibility to initially determine whether someone violates the Park rules” but do not receive any training on how to assess whether a Park-goer’s speech does interfere with other Park-goers’ enjoyment of the Park [p. 9].
On May 16, 2019, Swart, Chong, Emerson and Hood wrote to the City, noting that they believed that the new Rules infringed their rights to freedom of speech under the First Amendment to the Constitution. On September 18, 2019, they filed their complaint in the District Court, Northern District of Illinois, Eastern Division and applied for a preliminary injunction. On October 8, they moved for a temporary restraining order on the same claim.
On October 10, 2019, Elizabeth Norden, Tyler Brumfield, Doris Davenport and William Morgan were admitted as intervenors in this case. They circulate referendum petitions and had also been prevented from doing so in the Park, and Norden had “experienced multiple episodes of harassment by Park security, staff, and officials, including times when they prevented her from circulating petitions” [p. 5]. Norden, Brunfield, Davenport and Morgan argued that the Rules unconstitutionally infringed their rights to freedom of speech and petition and of referendum under Illinois state law.
The First Amendment states: “Congress shall make no law restricting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances”.
District Judge John Robert Blakey delivered the judgment for the Court. The central issue before the Court was whether Swart, Chong, Emerson, Hood, Norden, Brumfield, Davenport and Morgan (together, the petitioners) had met the standard for a preliminary injunction. The Court had to determine whether the petitioners were likely to succeed in demonstrating in the main hearing that their First Amendment rights had been infringed.
The City argued that the Park was not a public forum and so it was allowed to restrict the freedom of speech exercised within the Park. It submitted that the Park “falls outside the run-of-the-mill public park category, because it has been ‘designed and maintained’ as a ‘space of refuge’ from the surrounding urban areas and contains ‘curated art galleries and natural plantings’” [p. 14-15]. The City also submitted that by curating art and programming it “exercises permissible government speech making its restrictions immune to First Amendment attack because the rules further such government speech” [p. 29]. This government speech doctrine recognizes that the government may also engage in speech and that the First Amendment does not regulate government speech as it does private speech” [p. 29].
The Court confirmed that all petitioners had standing. The Court rejected the City’s arguments that the petitioners had to demonstrate that actual attempts at exercising their First Amendment rights had been stymied under the Park’s rules and, with reference to Bell v. Keating 697 F.3d 445, 453 (7th Cir. 2012), held that “chilled speech undoubtedly constitutes an injury supporting standing” [p. 11]. The Court noted that evangelizing, handing out religious literature and passing out petitions all constituted conduct that was protected by the First Amendment and which had been hampered by the Rules.
The Court stressed that although protection is given to freedom of speech, it is not absolute. With reference to Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985) the Court added that there is a three-step process to assess free speech claims: 1) determine if the claimant’s conduct constitutes protected speech; 2) identify the nature of the forum; and 3) determine if the means and justification for exclusion from the forum satisfy the requisite standard [p. 13].
The City did not dispute that the petitioners’ activity constituted protected speech, and the Court referred to Capitol Square Review & Advisory Bd. v. Pinette 515 U.S. 753, 760 (1995), which confirmed that the First Amendment protects religious speech, and Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 388 (2011), in respect of the freedom to petition, in noting that “such speech lies at the very heart of the First Amendment” [p. 13].
In assessing the second step of the test, the Court explained that “the extent to which the government can control access depends upon the classification of the relevant forum” [p. 13]. With reference to Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45–46 (1983), the Court noted that historically the Supreme Court has recognized three forums: the traditional public forum; the designated public forum; and the non-public forum. In 2001, in Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106–07 (2001), the Supreme Court extended this list to include the limited public forum [p. 13]. The question in the present case was whether the Park constituted a traditional public forum or, as the City argued, a non-public forum.
The Court rejected the City’s reliance on Oberwetter v. Hilliard, 639 F.3d 545, 552 (D.C. Cir. 2011), Hotel Emps. & Rest. Emps. Union, Local 100 of New York, N.Y. & Vicinity, AFL CIO v. City of New York Dep’t of Parks & Recreation, 311 F.3d 534, 552 (2d Cir. 2002) and Chicago Acorn v. Metropolitan Pier Exposition Authority, 150 F.3d 695, 702 (7th Cir. 1998). Those cases had held, respectively, that the Jefferson Memorial in the national park constitutes a non-public forum as it serves as “places of public commemoration, not freewheeling forums for open expression” [p. 15], that the plaza surrounding Lincoln Center does not constitute a traditional public forum as it serves as a forecourt to a non-public forum, and that the internal sidewalks within Chicago’s Navy Pier do not constitute a traditional public forum as they led only to pier facilities and were not “through routes” [p. 15]. The Court distinguished the present case from those relied on by the City, and noted that “the Park stands in stark contrast to the forums at issue in those cases” [p. 16]. The Court observed that the Park is not a national memorial, does not constitute a forecourt to a non-public forum and “exists as an open space and thoroughfare,” unlike Navy Pier’s internal sidewalks [p. 16]. The Court stressed that the Park “sits right in the heart of the City” [p. 16] and rejected the City’s argument that its curated design meant the Park was not a public forum. The Court noted that such a characterization would lead to absurd consequences, meaning any park with a statute could lose its First Amendment protections.
Accordingly, the Court held that – for the purposes of the requests for a preliminary injunction – the petitioners “have shown a likelihood of success on the merits in establishing that the Park constitutes a traditional public forum” [p. 17].
The first aspect for the Court to consider in determining the third step – whether the means and justification for exclusion from the forum satisfy the requisite standard – was to identify whether the restriction imposed by the Park’s Rules was content-neutral or content-based. The distinction matters as the type of scrutiny the Court applies differs: if a restriction is content-based the Court applies strict scrutiny; if a restriction is content-neutral it applies only intermediate scrutiny.
With reference to Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2239 (2015) and Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), the Court noted that a restriction is content-based if it “applies to particular speech because of the topic discussed or the idea or message expressed” [p. 18]. In addition, a restriction which may appear to be content-neutral on its face will still be content-based if it cannot be “justified without reference to the content of the regulated speech,” or was “adopted by the government because of disagreement with the message [the speech] conveys” [p. 18].
The Court examined P(3) of the City’s Rules and held that, even though it appeared to be content-neutral as it makes no distinction on the basis of the identity of the speaker or the message he conveys, it is content-based. This is because evidence and testimony before the Court showed that the City bases its decision to prohibit specific speech in the Park on the identity of the speaker and his intention. The Court held that “the City’s approach to P(3) … is constitutionally flawed” [p. 19], and concluded that “despite P(3)’s facial-neutrality, the City enforces P(3)’s vague provisions in a discriminatory manner based upon the intent of the speaker and content of the speech… [which] violates the First Amendment” [p. 20].
The Court also observed that P(1), like P(3), appears content-neutral but there are no objective standards within the Rules or enforcement policies and it is enforced with reference to the identity of the speaker and the content of the speech. Accordingly the Court held that both P(1) and p(3) were content-based restrictions, and therefore had to undergo strict scrutiny. This means that the Court has to determine if the restriction is both “necessary to serve a compelling state interest” and “narrowly drawn to achieve that end” [p. 17]. This is in comparison to the intermediate scrutiny applied by a court to content-neutral restrictions in which the court merely determines whether the restriction “imposes reasonable and content-neutral restrictions as to time, place and manner, provided these restrictions remain ‘narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication’” [p. 17].
Content-based restrictions are presumptively invalid, and so the City was required to demonstrate that the restriction in the Rules was necessary to serve a “compelling state interest” and “narrowly drawn” to achieve that end [p. 17 and 22]. The Court noted that the City had not set out precisely what it believed those interests would be, and had only explained that “opening areas of the Park up to First Amendment activities would transform the Park from a ‘primarily peaceful architectural artistic expression space’ into a space ‘where the art and the architecture are not the primary focus’” [p. 22]. The Court referred to Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984) and City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994) and noted that the Supreme Court had recognized that while artistic interests may be significant they are not compelling. It also referred to federal appellate court decisions, such as Willson v. City of Bel-Nor, Mo., 924 F.3d 995, 1001 (8th Cir. 2019) and Cent. Radio Co. Inc. v. City of Norfolk, Va., 811 F.3d 625, 633 (4th Cir. 2016) which explicitly rejected classifying aesthetics as a compelling interest. The Court also mentioned that Cohen v. California, 403 U.S. 15, 21 (1971)) and Berger v. City of Seattle, 569 F.3d 1029, 1056 (9th Cir. 2009) rejected arguments that it was a compelling interest to protect visitors from artistic disruptions.
The Court held that the City, by relying on anecdote and supposition, failed to show that the restrictions remained necessary to serve the asserted interest. This is because there was no evidence that the petitioners’ activities actually interfered with visitors’ enjoyment of the Park’s artistic displays. Added to this, almost no one lodged complaints about their inability to enjoy the art in the Park. The Court concluded that “without any specific evidence of an actual problem in need of solving, the City fails to show a compelling state interest to justify its significant restrictions” [p. 25].
In determining whether the restrictions were sufficiently narrowly tailored, the Court held that less restrictive alternatives exist to accomplish the City’s goal of protecting other visitors’ enjoyment of Park art and programming. This was because – on the City’s own admission – the Rules prohibited making speeches and distributing written communications even in parts of the Park where there was no art.
Accordingly, the Court concluded that the petitioners “demonstrate a likelihood of success on the merits of their free speech claims” [p. 26].
The Court noted that even if it were to consider the restrictions content-neutral “the City fails to satisfy even the less exacting – but still demanding – intermediate scrutiny framework” [p. 26]. This is because there is no nexus between the City’s broad restrictions and the asserted interests and there is no evidence to suggest the City has narrowly tailored the restriction to those interests. The Court also noted that the City gave no justification for why speech was allowed in two parts of the Park but nowhere else.
The Court also held that the petitioners were likely to succeed on their free speech claim on the grounds that the Rules were vague. It referred to United States v. Davis, 139 S. Ct. 2319, 2342 (2019) and United States v. Burrows, 905 F.3d 1061, 1063 (7th Cir. 2018) in noting that “[a]n ordinance is unconstitutionally vague if it “fails to give ordinary people fair notice of the conduct it punishes,” or if it is “so standardless that it invites arbitrary enforcement” [p. 27]. The Rules do not provide “fair notice of what conduct they prohibit, leaving only the City – or an individual security officer employed by the City – to decide whether speech should be banned” [p. 28]. In addition, testimony before Court demonstrated that the prohibition is often based on a subjective assessment of the speech to determine the intent of the speaker, and the Court noted that the “City enjoys unfettered discretion in determining what speech falls under that restriction and offers little guidance to an ordinary person of what exactly the rules prohibit” [p. 28].
The Court rejected the City’s reliance on the government speech doctrine, describing the City’s reading of the doctrine as “flawed” [p. 29]. It explained that this doctrine applies when “the government itself speaks” or “if the government appropriates public funds to transmit a message through private speakers” [p. 29]. The Court held that neither of these situations applied in the present case and referred to Pleasant Grove City, Utah v. Summan 555 U.S. 460, 469–70 (2009) in noting that “the government speech doctrine does not apply when the government is merely ‘providing a forum for private speech’” [p. 30].
The Court therefore granted Swart, Chong, Emerson and Hood, and Norden, Brumfield, Davenport and Morgan the preliminary injunction and declared that as a temporary restraining order was “functionally akin” to a preliminary injunction that application for a temporary restraining order was moot [p. 31]. The Court set down a status hearing for March 4, 2020.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In recognizing that Millennium Park in Chicago was a traditional public forum and that the City could therefore not restrict free speech within the Park simply because of its purpose as a space to showcase art, the Court ensured that First Amendment rights could not be abrogated simply by placing an artwork in a public forum. The Court also stressed the importance of looking at the substance rather than the form of a restriction to First Amendment rights, and ensuring that restrictions that are based on the content of the speech being restricted must be subject to strict judicial scrutiny.
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