On May 28, 2014, the Supreme Court of Ohio handed down a merit decision in Cleveland v. McCardle, 2014-Ohio-2140. In a 6-1 decision written by Justice Lanzinger, the Court upheld the constitutionality of a Cleveland city ordinance which established a curfew on the Cleveland Public Square. Justice Pfeifer dissented.  The case was argued November 19, 2013.

Case Background

Cleveland Codified Ordinance 559.541 prohibits any person from remaining in the Cleveland Public Square between the hours of 10:00 p.m. and 5:00 a.m. without a permit issued by the Cleveland Department of Parks, Recreation, and Properties.

At around 10:00 p.m. on October 21, 2011, a group of protestors who were part of the Occupy Cleveland group–a spin-off of the Occupy Wall Street Movement in New York City—were engaged in a protest demonstration on Cleveland’s Public Square in downtown Cleveland.  Protestors were told by police they needed to leave because of the curfew. Several people, including the appellees in this case, Erin McCardle and Leatrice Tolls (the protestors) remained.  Both were arrested and charged with criminal trespass and a curfew violation. McCardle was also charged with resisting arrest.

Procedural Posture

The protestors moved to dismiss the charges on the grounds that the city curfew was unconstitutional under the First and Fourteenth Amendments to the U.S. Constitution. The Municipal Court judge denied the motions to dismiss.  Both protestors pled no contest to the curfew violations.  The remaining charges were dismissed.

The protestors appealed to the Eighth District Court of Appeals which consolidated the cases and reversed the lower court decision. The appeals court held that although the ordinance was content neutral, it did not advance a substantial government interest and was not narrowly-tailored. The appeals court found the ordinance void on its face. Read the oral argument preview of the case here and the analysis here.

The Ordinance

Cleveland Cod. Ord. § 559.5541 prohibits individuals from remaining in the Public Square between 10:00 p.m. and 5:00 a.m. unless a permit is obtained from the Director of Parks, Recreation and Properties. The licensing official will issue a permit if the official finds (a) that the proposed activity and use will not unreasonably interfere with or detract from the promotion of public health, welfare and safety; (b) that the proposed activity or use is not reasonably anticipated to incite violence, crime or disorderly conduct; (c) the proposed activity will not entail unusual, extraordinary or burdensome expense or police operation by the city, or (d) that the facilities desired have not been reserved for other use at the day and hour required in the application.

Executive Summary of the Decision

In upholding the constitutionality of the Cleveland Ordinance, the court ploughs no new ground here at all.  It applied well settled law from the First Amendment jurisprudence of time, place and manner restrictions on speech. Using intermediate scrutiny, the court found the ordinance to be content neutral, narrowly tailored to advance a significant government interest, and allowed alternative channels of speech.

Legal Analysis

Level of Scrutiny

If a regulation limits speech based on its content, it would be subject to strict scrutiny, and only upheld if narrowly tailored to meet a compelling government interest.  But if the regulation is content neutral, meaning it does not regulate speech based on the content of what is said, it is subject to intermediate scrutiny. Since the curfew established in the Cleveland Ordinance applies to everyone, regardless of their message, it is content neutral and subject only to intermediate scrutiny.

Intermediate scrutiny has three requirements: a regulation must be narrowly tailored, it must serve a significant government interest, and it must leave open ample alternative avenues of communication. The court examines each in turn, finding all are met.

Significant Government Interest

The appeals court found that the city had failed to establish a significant government interest. The protestors argued that the city’s stated interests were not furthered by the ordinance, and that the city failed to present evidence of its interest. The high court disagreed with all of this.

The city’s interests here are public health and safety, conservation of public property, and preservation of public resources.  The court found each of these to be significant, appropriate, and properly justified.

Narrowly Tailored

The high court rejected the finding by the appeals court that the ordinance was not sufficiently narrow, and that the “permit’s requirement serves as an unreasonable ban and has the purpose of eliminating peaceful speech.” The court also disagreed with the protestors that the city’s interests were not furthered by the ordinance.

Two factors were key to the court’s finding that this ordinance was narrowly tailored. First, the curfew is only for the hours of 10:00 p.m. until 5:00 a.m. Protestors can protest to their hearts’ content the rest of the day. And if they want to keep on protesting on the square all night long, they actually can, if they get the requisite permit.

The court concluded that the city’s interests in safeguarding public health and safety, and preserving the square, would be achieved less effectively without the ordinance.

Alternative Avenues of Communication

To pass muster, a challenged restriction on speech must leave open a reasonable opportunity for the speaker to communicate the speaker’s message.  This was a no-brainer for the court, because during the time of the curfew on the square, the protestors were free to continue protesting on the public sidewalk surrounding the public square, which is unrestricted.

Conclusion

Thumbs up to the Cleveland Ordinance.

Dissent

Justice Pfeifer would find that the Cleveland Ordinance was not narrowly tailored to further a significant government interest.

“[T]he ordinance would not prohibit 1,000 Ohioans, or foreigners for that matter, from marching from one side of the public square to the other, over and over, all night, as long as they do not remain in Public Square. How can an ordinance that prohibits one person from remaining in Public Square be considered narrowly tailored to serve a significant government interest when the same ordinance allows 1,000 people or 100 people or one person to walk back and forth through the park all night? It defies logic,” Pfeifer wrote.  He believes that the curfew impermissibly restricts freedom of speech.

More interesting than this part of Pfeifer’s dissent was the beginning portion of his dissent, where he chides the parties for failing to bring a state constitutional challenge, commenting that the case might have come out differently if the protestors had brought a challenge under Article I Section 11 of the Ohio Constitution.  Pfeifer has long been the champion of greater protections under the state constitution under the new judicial federalism.  You can read more about that here.

Case Syllabus

An ordinance establishing a curfew in a public park is constitutional under the First and Fourteenth Amendments to the United States Constitution if it is content neutral, is narrowly tailored to advance a significant government interest, and allows alternative channels of speech.

Concluding Observations

Despite a colorful and very passionate argument by the lawyer for the protestors, both student contributor Cam Downer and I called this one as a sure win for the city, with the court likely to uphold the ordinance as a reasonable time, place, and manner restriction. As I wrote after argument, time, place and manner jurisprudence is well settled, and I thought the Cleveland Ordinance would be found to be in line with existing precedent.

While at oral argument, much was made of the ten-day advance notice requirement to get a permit to stay on the square after hours, that proved to be a red herring, and was not even discussed in the opinion.

I also predicted that Justice Pfeifer would dissent, and thought, incorrectly, that Justice O’Neill might join him.  I was not surprised that Pfeifer took the parties to task for failing to make a state constitutional challenge to the ordinance—that is a favorite subject of his.  Pfeifer got into a long and occasionally testy exchange with the assistant solicitor general on whether the state constitution provided greater protection in this area than the federal constitution did. In fairness, he was picking on the wrong side—it was up to the protestors to bring this challenge, and they didn’t. The assistant SG suggested as much.

Justice Lanzinger dealt with this issue with a footnote in the majority opinion, noting that no one relied on the state constitutional provision here.  Too bad.  That could have made for some interesting law.