The decision is Saieg v. City of Dearborn, just handed down today; for more on the lawsuit, see here, and for the earlier decision granting an injunction pending appeal, see here. The opinion was by Judge Moore, joined by Judge Clay; Judge Daughtrey dissented, for reasons given in the district court opinion. Here’s the key legal analysis from the majority opinion:
The leafleting restriction does not further a substantial governmental interest. Time, place, and manner regulations must “‘promote a substantial government interest that would be achieved less effectively absent the regulation.’” “‘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.”
The defendants have named several interests that they find significant: relieving “pedestrian overcrowding,” enhancing “traffic flow,” minimizing “threats to public safety,” and limiting “disorderliness at the Festival.” In appropriate contexts, each of these governmental interests can be substantial. In fact, the interests that the defendants have identified closely parallel the interests that the Supreme Court validated in Heffron v. ISKCON. In Heffron, Minnesota imposed leafleting restrictions at the state fair because the state was concerned with “maintain[ing] the orderly movement of the crowd given the large number of exhibitors and persons attending the Fair.” The Supreme Court held that “the State’s interest in confining distribution, selling, and fund solicitation activities to fixed locations is sufficient to satisfy the requirement that a place or manner restriction must serve a substantial state interest.”
The defendants must do more, however, than “assert interests [that] are important in the abstract.” In the context of the Festival’s inner perimeter, the interests that the defendants have named are merely “conjectural,” as opposed to “real.” Two activities that Festival organizers permit on sidewalks abutting Warren Avenue erode the significance of the government’s interest in restricting leafleting on those same sidewalks. These activities are legally relevant because “[e]xemptions from an otherwise legitimate regulation of a medium of speech . . . may diminish the credibility of the . . . rationale for restricting speech in the first place.”
First, Festival organizers keep sidewalks that are adjacent to Warren Avenue open for public traffic. In Heffron, attendees paid an admission fee to enter the fairgrounds, which means that the fairgrounds were closed to members of the public who were not attending the fair. In fact, the Supreme Court expressly distinguished the fairgrounds in Heffron from a public street. In contrast, Festival organizers have intentionally maintained the public character of the sidewalks that are adjacent to the Festival attractions, keeping those sidewalks open for traffic that is unrelated to the Festival. The sidewalks may well host more traffic during the Festival than they do on other days of the year. Nevertheless, the defendants have chosen to keep the sidewalks open for public use, showing that the interests in crowd control and public safety are not so pressing that they justify restricting normal activity that occurs on streets and sidewalks. Therefore, because Festival organizers permit public traffic on the sidewalks next to Warren Avenue, the interest in curtailing First Amendment expression on those sidewalks is not substantial.
Second and more importantly, Festival organizers permit sidewalk vendors on the sidewalks that are adjacent to Warren Avenue, belying the significance of their interest in clear sidewalks and crowd control. The sidewalk vendors have no analog in the facts of Heffron, where the fair “confin[ed] individual exhibitors to fixed locations, with the public moving to and among the booths or other attractions, using streets and open spaces provided for that purpose.” Leafleting is less obtrusive than sidewalk tables are because “‘[t]he distribution of literature does not require that the recipient stop in order to receive the message the speaker wishes to convey; instead the recipient is free to read the message at a later time.’” The defendants admitted at oral argument that leafleters have never posed any problems of public safety or breach of the peace at the Festival that could make leafleters more obtrusive than sidewalk vendors. By permitting the more obstructive sidewalk tables in the same place where Saieg wishes to leaflet by foot, the defendants have undercut the credibility of the asserted government interests.
The defendants respond than an interest can be substantial even if the state does not promote it in every conceivable way. A restriction on speech can satisfy the time, place, and manner test if the restriction “promotes a substantial government interest that would be achieved less effectively absent the regulation.” Ward v. Rock Against Racism (emphasis added). This statement of the law is drawn from the requirement of narrow tailoring. Immediately after the quoted language, Ward clarifies that, “[t]o be sure, this standard [for narrow tailoring] 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.” By analogy, even when a regulation promotes a government interest that would be achieved less effectively absent the regulation, the government’s interest may still be insubstantial if the regulation burdens substantially less speech than is necessary to further the government’s interest. In this case, the nature and scale of the activities that the defendants permit on the sidewalks adjacent to Warren Avenue show that the government’s asserted interests are not substantial in the context of those sidewalks.
With regard to the outer perimeter, the roads and sidewalks are open for pedestrians in the same way as the sidewalks that are adjacent to Warren Avenue. Concerns about crowd control seem to be exclusively conjectural. However, Saieg focuses his argument about the outer perimeter on the question of narrow tailoring. We follow his lead ….
The leafleting restriction within the outer perimeter is not narrowly tailored to further the government’s objectives. To be narrowly tailored, a regulation must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Put differently, the regulation must not be “substantially broader than necessary.” “[W]hen a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement even though it is not the least restrictive or least intrusive means of serving the [state’s] goal.”
The parties disagree about whether the sidewalks adjacent to the Festival and the streets and sidewalks within the outer perimeter area are “part of” the Festival. Consequently, the parties also disagree about whether Saieg seeks to participate in the Festival or to leaflet near the Festival, a distinction that informs their arguments about narrow tailoring. This debate is a red herring. The narrow-tailoring requirement focuses on the nexus between the regulation and the government’s interest The government’s interests need not be coterminous with “the Festival” as a monolithic area, and the government may have different interests in different areas of the Festival or near the Festival. As a result, whether these locations are classified as part of “the Festival” does not determine whether the leafleting restriction is narrowly tailored to accomplish the government’s interests.
Saieg has not requested to leaflet on Warren Avenue. Moreover, Saieg has not disputed that the restriction on leafleting within the inner perimeter—the sidewalks adjacent to Warren Avenue—is narrowly tailored. As explained above, we agree with Saieg that the inner-perimeter restriction on leafleting does not further a substantial government interest, making the question of narrow tailoring irrelevant. The restriction on leafleting within the outer perimeter is substantially broader than necessary to further the government’s interests, assuming that those interests are substantial.
In reaching the opposite conclusion, the district court and the defendants correctly analyze the issue from the perspective of permitting everyone to leaflet, not only Saieg. See Heffron, 452 U.S. at 653 (“Obviously, there would be a much larger threat to the State’s interest in crowd control if all other religious, nonreligious, and noncommercial organizations could likewise move freely about the fairgrounds distributing and selling literature and soliciting funds at will.”). The district court, however, used that perspective to magnify an unsubstantiated fear. “[M]ere speculation about danger” is not an adequate basis on which to justify a restriction of speech. Although the government has an interest in crowd control, the defendants “must do more than simply posit the existence of the disease sought to be cured.”
The district court neglected these principles by concluding that throngs of people “would all flock to the outer perimeter to promote their respective interests and messages,” thereby “extend[ing] the Festival grounds into an area that is meant to serve as a buffer zone between the Festival and the outside world.” The weakness in the district court’s argument is that the primary justification for the outer perimeter is to curb vehicular traffic and provide parking, not to cabin pedestrian crowds. Despite the district court’s speculation, the record does not mention any existing problem of pedestrian traffic in the outer perimeter area. Saieg leaflets by foot. While his leafleting might attract pedestrian listeners who would congregate on the sidewalks, it is hard to imagine that leafleters, who would be competing with more interesting attractions on Warren Avenue, could draw crowds so large that the Festival would balloon outward. Attracting merely a few listeners on a sidewalk would not implicate a substantial governmental interest in crowd control….
Even though the leafleting restriction is content neutral and might provide ample alternative means of communication, the policy is not a reasonable time, place, and manner restriction. Within the inner perimeter, the restriction does not serve a substantial governmental interest, as evidenced by the defendants’ willingness to permit sidewalk vendors and ordinary pedestrian traffic on the same sidewalks where they prohibited Saieg from leafleting. Within the outer perimeter area, the restriction is not narrowly tailored because the government’s interest in vehicular traffic control is attenuated from concern about pedestrian crowds that pedestrian leafleting might draw….