IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT … · 2019-02-24 · CIVIL ACTION NO....

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

OCCUPY DEFIANCE, et al., Plaintiffs,

v. CITY OF DEFIANCE, et al., Defendants.

: : : : : : : : : : : : : :

CIVIL ACTION NO. 3:13-cv-2339 JUDGE JAMES G. CARR PLAINTIFFS’ MOTION FOR

TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION AND

MEMORANDUM IN SUPPORT OF

MOTION

Now comes Plaintiff Occupy Defiance, by and through counsel, and respectfully moves

this Court pursuant to Fed. R. Civ. P. 65 for an Order temporarily restraining Defendants the City

of Defiance, and others in their official capacities, from enforcing Sections 905.05, 1337.04 and

131.03 of the Codified Ordinances of the City of Defiance Ordinance for the reasons stated in the

Memorandum In Support of Motion (incorporated below).

This motion is supported by the memorandum (incorporated below) and the Complaint in

this matter, which is incorporated herein by reference.

/s/ Drew S. Dennis Drew S. Dennis (0089752) TRIAL ATTORNEY Jennifer Martinez Atzberger (0072114) [email protected] James L. Hardiman (0031043) [email protected] ACLU of Ohio, Foundation 4506 Chester Avenue

Case: 3:13-cv-02339-JGC Doc #: 3-1 Filed: 10/22/13 1 of 56. PageID #: 80

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Cleveland, Ohio 44103 Ph. (216) 472-2220 Fax (216) 472-2210


TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... 3 INTRODUCTION .......................................................................................................................... 6 STATEMENT OF FACTS ............................................................................................................. 7 STATEMENT OF THE ISSUES TO BE DECIDED................................................................... 13 SUMMARY OF THE ARGUMENT ........................................................................................... 14 ARGUMENT................................................................................................................................ 16

I. Plaintiffs’ Have Standing to Challenge Sections 905.05, 1337.04(a), and 131.03 and Their Challenges are Also Ripe for Review. .................................................................................. 16 A. Plaintiffs Have Standing to Challenge Sections 905.05 and 1337.04(a) Because the

Defiance Law Director Has Unconstitutionally Chilled Occupy Defiance Members’ Speech and Have Standing to Challenge 131.03 Because it Grants the City Administrator Unbridled Discretion. ............................................................................. 16

1. Plaintiffs Have Suffered an Injury-In-Fact and Have Standing to File Facial and As-

Applied Challenges to Sections 905.05 and 1337.04(a) Because the Defiance Law

Director Has Unconstitutionally Chilled Speech By the Threat of Future

Enforcement Against Plaintiffs. ................................................................................ 17 2. Plaintiffs Have Standing and May Bring a Facial Challenge to Section 131.03

Because It Is An Overbroad Ordinance That Grants the City Administrator

Unbridled Discretion to Limit Speech. ..................................................................... 22 B. Plaintiffs’ Challenges are Ripe for Review Because Sections 905.05 and 1337.04(a)

Present an Imminent Threat of Prosecution and 131.03 is Content-Based and Facially Unconstitutional............................................................................................................. 24

II. This Court Should Issue A Temporary Restraining Order Because Defendants’ Actions and Enforcement of City Law Violates Their Rights Under The First and Fourteenth Amendments. .................................................................................................................... 27

A. Plaintiffs Can Demonstrate a Strong Likelihood of Success on the Merits................... 27 1. This Court Should Declare that Neither Section 905.05 or 1337.04(a) Apply to

Plaintiffs Activity of Drawing Political Messages With Sidewalk Chalk. .................... 28 a. Sections 905.05 and 1337.04(a) Do Not Apply to Plaintiffs’ Activity of Writing in

Sidewalk Chalk Because Chalking Does Not Constitute Painting Which Defaces or Disfigures Public Property................................................................................ 29

2. Defendants’ Threats to Prosecute Plaintiffs Under 905.05 and 1337.04(a) Constitute

Content Based and Viewpoint Discrimination.............................................................. 35 3. Defendants’ Application of Sections 905.05 and 1337.04(a) Against Plaintiffs Is

Unconstitutional Because Neither Law Is Narrowly Tailored To Serve A Significant

Government Interest...................................................................................................... 42 4. Section 131.03 is Unconstitutional Because It Violates the First Amendment as An

Overbroad, Vague and an Impermissible Content Based Regulation and It Fails to

Contain the Requisite Procedural Safeguards.............................................................. 47 a. Section 131.03 is An Overbroad, Vague and an Impermissible Content Based

Regulation. ............................................................................................................ 47 b. Section 131 is Unconstitutional on Its Face Because It Fails to Contain the

Requisite Procedural Safeguards. ......................................................................... 50 B. Without a TRO/PI, Plaintiff will suffer irreparable injury because its time sensitive

speech will be censored. ................................................................................................ 52


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C. A Temporary Restraining Order and Preliminary Injunction Will Not Harm Third Parties Because Plaintiffs Can Continue to Demonstrate Peaceably Under Alternative Permit Schemes.............................................................................................................. 53

D. Issuance of a Temporary Restraining Order and Preliminary Injunction Serves the Public Interest by Preventing Violations of Plaintiffs’ Constitutional Rights and Permitting the Audience to Receive the Message.......................................................... 53

CONCLUSION............................................................................................................................. 54 CERTIFICATE OF SERVICE ..................................................................................................... 54


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TABLE OF AUTHORITIES

CASES

729, Inc. v. Kenton County Fiscal Court, 515 F.3d 485 (6th Cir. 2008) ...................................... 51 Abrams v. United States, 250 U.S. 616 (1919)............................................................................. 42 Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987) ................................................ 48 Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438 (2002) ............................................................. 29 Bays v. City of Fairborn, 668 F.3d 814 (6th Cir. 2012) ......................................................... 42, 44 Berry v. Schmitt, 688 F.3d 290 (6th Cir. 2012)................................................................ 17, 18, 24 Big Dipper Entm't, L.L.C. v. City of Warren, 641 F.3d 715 (6th Cir. 2011) ............................... 51 BJS No. 2, Inc. v. City of Troy, Ohio, 87 F.Supp.2d 800 (S.D.Ohio 1999)................................ 54 Boos v. Barry, 485 U.S. 312 (1988) ....................................................................................... 36, 41 Briggs v. Ohio Elections Comm’n, 61 F.3d 487 (6th Cir. 1995).................................................. 25 Broadcasting Sys. v. FCC, 512 U.S. 622 (1994) .......................................................................... 37 Brown v. Entm’t Merchants Ass’n, 131 S.Ct. 2729 (2011).............................................. 17, 39, 40 Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010) ....................................................................... 50 Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427 (6th Cir. 2004)

................................................................................................................................................... 52 City of Ladue v. Gilleo, 512 U.S. 43 (1994)................................................................................. 50 City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) ......................... 22, 48, 49 City of Littleton v. ZJ Gifts D-4, LLC, 541 US 774 (2004) ................................................... 51, 52 Coast Candidates PAC v. Ohio Elections Com’n, No. 12-4158, 2013 WL 4829216 (6th Cir. Sept.

11, 2013) ................................................................................................................................... 18 Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998)................................................... 53 Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985).......................... 42, 43 Davis v. Mich. Dep't of Treasury, 489 U.S. 803 (1989)............................................................... 32 Doran v. Salem Inn, Inc. 422 U.S. 922 (1975) ............................................................................. 27 E. Brooks Books, Inc. v. Shelby Cnty., Tenn., 588 F.3d 360 (6th Cir. 2009) .............................. 52 Elrod v. Burns, 427 U.S. 347 (1976) ............................................................................................ 52 Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005)............................................ 29 Freedman v. Maryland, 380 U.S. 51 (1965) ........................................................................... 22, 51 FTC v. Standard Oil of Cal., 449 U.S. 232 (1980) ....................................................................... 25 G & V Lounge, Inc. v. Michigan Liquor Control Comm'n, 23 F.3d 1071 (6th Cir. 1994) ... 22, 52,

53 Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979) ................................................................ 54 Grace Cmty. Church v. Lenox Twp., 544 F.3d 609 (6th Cir. 2008)............................................. 24 Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939)................................................................ 43 Hill v. Colorado, 530 U.S. 703 (2000).......................................................................................... 43 INS v. Nat'l Ctr. for Immigrants' Rights, Inc., 502 U.S. 183 (1991) ............................................ 32 Jackson v. Williams, 10-CV-14985, 2012 WL 3597187 (E.D. Mich. Aug. 20, 2012),

reconsideration denied, 10-CV-14985, 2013 WL 150032 (E.D. Mich. Jan. 14, 2013) ...... 30, 31 Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Michigan Gaming Control Bd.,

172 F.3d 397 (6th Cir. 1999) .................................................................................................... 36 Laird v. Tatum, 408 U.S. 1 (1972)................................................................................................ 21 Leary v. Daeschner, 228 F.3d 729 (6th Cir. 2000) ................................................................. 27, 53 Lederman v. Giuliani, No. 98 CIV 2024, 2001 WL 902591 (S.D.N.Y2001)............................... 46


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Lederman v. Rosado, 70 F. App'x 39 (2nd Cir. 2003).................................................................. 46 Lovell v. Griffin, 303 U.S. 444 (1938) ......................................................................................... 22 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .................................................................. 16 Mackinney v. Nielsen, 69 F.3d 1002 (9th Cir. 1995) ................................................................... 31 Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir. 2011) ................................................................. 43, 46 McGlone, 681 F.3d at 731 .......................................................................................... 16, 17, 18, 21 McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)......................................................... 28 Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) ...................................................... 44 Morrison v. Bd. Of Educ. of Boyd Cnty., 521 F.3d 602 (6th Cir. 2008)...................................... 21 N. Olmsted Chamber of Commerce v. City of N. Olmsted, 86 F. Supp. 2d 755 (N.D. Ohio 2000)

................................................................................................................................................... 37 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ............................................................... 28 Norton v. Ashcroft, 298 F.3d 547 (6th Cir. 2002) .................................................................. 24, 25 Osmar v. City of Orlando, No. 6:12-cv-185-Orl-DAB, 2012 WL 1252684 (M.D. Fla. Apr. 13,

2012) ......................................................................................................................................... 43 Parks v. City of Columbus, 395 F.3d 643 (6th Cir. 2005)............................................................ 43 Parks v. Finan, 385 F.3d 694 (6th Cir. 2004) ......................................................................... 49, 50 Planned Parenthood Association v. City of Cincinnati, 822 F.2d 1390 (6th Cir.1987)................ 54 R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992) ............................................................... 36 Regan v. Time, Inc., 468 U.S. 641 (1984) .................................................................................... 48 Robinson v. Shell Oil Co., 519 U.S. 337 (1997) .......................................................................... 30 Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819 (1995) ............................. 39 Roth v. United States, 354 U.S. 476 (1984).................................................................................. 27 S.A. Restaurants, Inc. v. Deloney, 909 F. Supp. 2d 881 (E.D. Mich. 2012) ................................ 51 Saieg v. City of Dearborn, 641 F.3d 727 (2011) .................................................................... 42, 43 Shuttlesworth v. Birmingham, 394 U.S. 147 (1969) .............................................................. 22, 48 Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 502 U.S. 105

(1991)........................................................................................................................................ 48 State ex rel. Toledo Edison Co. v. Clyde, 76 Ohio St. 3d 508 (1996).......................................... 34 Steffel v. Thompson, 415 U.S. 452 (1974) ................................................................................... 17 Stromberg v. California, 283 U.S. 359 (1931).............................................................................. 28 Susan B. Anthony List v. Driehaus, Nos. 11-3894, 11-3925, 2013 WL 1942821 (6th Cir. May

13, 2013) ................................................................................................................................... 25 United States v. Cochran, 640 F. Supp. 2d 934 (N.D. Ohio 2009)................................... 29, 30, 32 United States v. Grace, 461 U.S. 171 (1983)................................................................................ 43 United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000) ........................... 28, 50 Virginia v. Black, 538 U.S. 343 (2003) .................................................................................. 42, 43 Whitney v. California, 274 U.S. 357 (1927)................................................................................. 42 Wuliger v. Mfrs. Life Ins. Co., 567 F.3d 787 (6th Cir. 2009) ...................................................... 16 XXL of Ohio, Inc. v. Broadview Hts., 341 F.Supp.2d 765 (N.D. Ohio 2004)............................. 41

STATUTES

101.07...................................................................................................................................... 24, 30 103.03............................................................................................................................................ 24 131.03..................................................................................................................................... passim 1337............................................................................................................................................... 28


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1337.01.......................................................................................................................................... 28 1337.03(f)................................................................................................................................ 29, 30 1337.04................................................................................................................................... passim 1337.99(a) ....................................................................................................................................... 8 501.07............................................................................................................................................ 34 905.05..................................................................................................................................... passim 905.99.............................................................................................................................................. 8 Ohio Admin. Code § 4101:1-2-01 .......................................................................................... 29, 30

OTHER AUTHORITIES

<http://www.conwaygreene.com/Defiance/lpext.dll?f=templates&fn=main-h.htm&2.0>...... 8, 28 <http://www.crescent-news.com/local%20news/2013/04/30/photo-chalk-art>............................. 7 Merriam-Webster.com. Merriam-Webster, 21 Oct. 2013, available at <http://www.merriam-

webster.com/dictionary/paint>.................................................................................................. 27

CONSTITUTIONAL PROVISIONS

First Amendment ................................................................................................................... passim


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MEMORANDUM

INTRODUCTION

Plaintiffs Occupy Defiance, Jacob Gallmann, Mara Watson and Joshua Lesniak are

activists, who in solidarity with others across the world, seek to use public forums to express

their political messages. One notably cheap, effective and popular method that they choose to

communicate those views is by writing in temporary, water-soluble chalk on public sidewalks in

the City of Defiance.

On October 26, 2012, Plaintiffs peacefully and without incident chalked political and

other messages on public sidewalks throughout downtown Defiance. They chose this night and

method of expression because it was the day before the annual Halloween Parade, and many

would see their messages, while walking the parade route the next day. Their chalking was

abruptly halted by City of Defiance police officers. The officers forced the group to stop because

the content of the messages was political and children might see them. Plaintiffs, fearing

prosecution, stopped writing.

Later, a legal opinion drafted by City of Defiance Law Director David Williams

specifically stated that Plaintiffs violated two city ordinances. He asserted that those ordinances

prohibited the writing of words, names or advertisements in chalk but permitted drawing in chalk

on public sidewalks. Defendant Williams then specifically threatened Plaintiffs with prosecution,

if they engaged in that activity again.

Currently, Plaintiffs wish to engage in writing chalk messages on public sidewalks on

Thursday, October 24, 2013, before the annual Halloween parade, but they fear prosecution.

Therefore, Plaintiffs seek a temporary restraining order to ensure the protection of their right to

free expression.


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Plaintiffs are entitled to a Temporary Restraining Order for three reasons. First, Plaintiffs’

conduct does not violate city law. Second, Defendants’ actions and threats demonstrate

impermissible and content based discrimination. Third, the ordinances as applied to Plaintiffs

cannot withstand constitutional scrutiny. Finally, the licensing scheme Defendants are imposing

on Plaintiffs under city law is unconstitutionally vague, overbroad and grants unbridled

discretion to city officials to discriminate against the content of an applicant’s speech.

STATEMENT OF FACTS

On or about October 5, 2010, a group of Defiance area individuals inspired by the

national Occupy Wall Street movement formed an unincorporated organization, Occupy

Defiance (“Occupy”). (Plaintiffs’ Exhibit 1, Declaration of Jacob Gallmann, ¶¶ 1-2; Plaintiffs’

Exhibit 2, Declaration of Mara Watson, ¶¶ 1-2; Plaintiffs’ Exhibit 3, Declaration of Joshua

Lesniak, ¶¶ 1-2). Occupy is a non-partisan group that seeks to end corporate influence on

government and engage in positive activities for the community. (Plaintiffs’ Exhibit 1, ¶¶ 2-3). It

was formed to express solidarity with the Occupy Wall Street movement and to engage fellow

citizens in the importance of civic participation. Id.

The members of Occupy include Mara Watson, Josh Lesniak and Jacob Gallmann.

(Plaintiffs’ Exhibit 1, ¶ 2; Plaintiffs’ Exhibit 2, ¶ 2; Plaintiffs’ Exhibit 3, ¶ 2). These members

individually and personally share the message of Occupy and wish to promote their viewpoints

through the medium of Occupy as a group. (Exhibit 1, ¶¶ 2-4; Exhibit 2, ¶¶ 2-4; Exhibit 3, ¶¶ 2-

4). Collectively, these members chose to participate in Occupy Defiance in hopes of furthering

their likeminded individual beliefs and goals. Id.

On October 25, 2012, Mr. Gallmann spoke with Defiance Police Chief Tobias outside

Defiance High School. (Exhibit 1, ¶ 7). The conversation included a discussion of whether it was

legal for Occupy to use Defiance sidewalks to chalk messages. Id.; (Plaintiffs’ Exhibit 4,


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Transcription of Conversation Between Mr. Gallmann and Chief Tobias on October 25, 2012,

pg. 2, ¶¶ 11-12). Chief Tobias assured Mr. Gallmann that as long as no right-of-way was being

blocked it would be legal for them to chalk the sidewalks. (Exhibit 1, ¶ 7; Exhibit 4, pg. 2, ¶ 14-

15). On October 26, 2012, Plaintiffs proceeded to peacefully chalk messages that were political

in nature on downtown sidewalks. (Exhibit 1, ¶ 8; Exhibit 2, ¶ 6; Exhibit 3, ¶ 6). The activity is

referred to by Occupy as “Chalk Walk.” (Exhibit 1, ¶ 8; Exhibit 2, ¶ 6; Exhibit 3, ¶ 6). Chalk

Walk included drawing pictures and words connected to political ideas in temporary, water-

soluble chalk on public sidewalks on the route of the city’s Halloween parade. (Exhibit 1, ¶ 8;

Plaintiffs’ Exhibit 5, Transcription of Occupy Defiance at Defiance City Counsel Meeting on

April 30, 2013, pg. 2, ¶ 12-13). Occupy intentionally chose an area of downtown so people

present at the parade the next day would view their messages. (Exhibit 1, ¶¶ 8-9; Exhibit 5, pg. 2,

¶¶ 12-13). At no time did any Plaintiff injure a pedestrian or block a right-of-way. (Exhibit 1, ¶

8).

Two hours into the Chalk Walk, Officer Williamson of the Defiance Police Department,

while on a routine patrol, viewed Occupy drawing on the sidewalks with chalk. (Plaintiffs’

Exhibit 6, Police Report of Officer Williamson from October 27, 2012, ¶ 1). Upon his

observation, Officer Williamson radioed Lieutenant Martinez and asked him if “it was legal for

them to be doing this on the city sidewalks.” Id. Officer Williamson noted that all the chalk

messages he viewed were “directed at our government and was political in nature.” Id. Officer

Williamson then stated in his report that he “was told if it was political that they would have to

stop.” Id.

After receiving this information, Officer Williamson engaged Plaintiffs and stated, “. . .

they would have to stop what they were doing unless they had written permission from each of


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the business owners and someone from the City of Defiance.” Id. at ¶ 2. Officer Williamson then

asked the group members for identification. Id. at ¶ 3. When Occupy members asked if they were

being detained, Officer Williamson indicated that they were not. (Plaintiffs’ Exhibit 1, ¶ 11).

However, when Occupy members then asked whether they were free to leave, Officer

Williamson told them that they could not leave. Id.

Officer Williamson’s police report acknowledges that he had a discussion with Occupy

Defiance concerning the Chief of Police giving them permission. (Exhibit 6, ¶ 5). At the

conclusion of the incident, Officer Williamson spent a period of time viewing the chalked

messages, but did not further describe them in his report. Id. at ¶ 7.

However, Lt. Martinez spoke with Mr. Gallmann about one particular picture drawn that

depicted a marijuana leaf. (Exhibit 1, ¶ 12). Next to the picture were the words “Legalize it.” Id.

Lt. Martinez then stated that “he didn’t want his kids to see this” and expressed his belief that too

many people would see it. Id. Officer Williamson then informed the members that his report

would be forwarded for the purposes of potential charges. (Exhibit 6, ¶ 8).

Later, the members of Occupy Defiance proceeded to the police station. Once there, they

asked Officer Williamson for his badge number, which was refused to them. The group then left

the station and prepared for their march in the parade the next day. The march in the parade was

successful and without incident. Because Chief Tobias originally stated that Occupy could use

the sidewalks for their Chalk Walk, Mr. Gallmann placed phone calls to Chief Tobias.

(Plaintiffs’ Exhibit 7, Telephone Call #1 Between Mr. Gallmann and Chief Tobias on October

30, 2012, pg. 1, ¶¶ 1-2; Plaintiffs’ Exhibit 8, Telephone Call #2 Between Mr. Gallmann and

Chief Tobias on October 30, 2012, pg. 1, ¶¶ 1-2). These phone calls were also recorded. (Exhibit

7, pg. 1, ¶ 12; Exhibit 8, pg. 1, ¶ 13). Chief Tobias claimed that he misunderstood the question


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when it was asked by Mr. Gallmann. (Exhibit 7, pg. 2, ¶ 19 – pg. 3, ¶ 15). Chief Tobias then

stated that he would check with the prosecutor and get back with Mr. Gallmann with more

information. Id. at pg. 3, ¶¶ 36-37. In their second phone call, Chief Tobias informed Mr.

Gallmann that the conduct of the Chalk Walk was illegal. Id. at pg. 3, ¶¶ 22-24.

On April 30, 2013, The Crescent News published a photograph of four individuals

drawing on the sidewalk with chalk. (Plaintiffs’ Exhibit 9, Chalk Art, The Crescent-News, April

30, 2013).1 This prompted Mr. Gallmann and other members of Occupy Defiance to attend a

City of Defiance City Council meeting on April 30, 2013. (Exhibit 5, pgs. 2-4). At this meeting,

Mr. Gallmann presented the newspaper article that depicted the youths chalking and inquired

into the legality of the conduct in the photograph. Id. at pg. 2, ¶ 6 – pg. 3, ¶ 12. After some

debate, City Council requested Mr. David Williams, the City of Defiance Law Director, draft an

opinion as to the legality of chalking on the City’s sidewalks. Id. at pg. 5, ¶ 23 – pg. 6, ¶ 19.

Defendant Williams stated that he would draft such an opinion. Id. at pg. 7, ¶¶ 23-24.

Exemplifying the hostility toward Plaintiffs at the meeting, at its conclusion, City

Councilmember Mr. Pete Lundberg stated that, “personally I believe they’re all fools. And I will

go on the record for that.” Id. at pg. 7, ¶¶ 43-44.

In Defendant Williams’ legal opinion, he analyzes two sections of the city’s Codified

Ordinances and attempts to apply their prohibitions to chalking messages on public sidewalks.

(Plaintiffs’ Exhibit 10, Legal Opinion of David Williams, pgs. 4-11). Specifically, he cites

Section 905.05 and Section 1337.04(a) of the City of Defiance Codified Ordinances (“Section

905.05” and “Section 1337.04(a)” or collectively “the Sections”) as proscribing Plaintiffs’

conduct. Id. at pg. 4.

Section 905.05, states:

1 Available at <http://www.crescent-news.com/local%20news/2013/04/30/photo-chalk-art>.


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No person shall deface or disfigure any sidewalk or part thereof by painting on the sidewalk names, words or advertisements, or by pasting or placing printed bills or posters thereon. No person shall spit on any street or sidewalk or in any public place in the City.

(Plaintiffs’ Exhibit 11, Section 905.05).2 Section 1337.04(a), enacted in March of 2002, states:

No sign shall be erected on public property or within any public right of way except by governmental authorities in the discharge of a governmental function or pursuant to a license to occupy the right-of-way granted in accordance with Section 131.03.

(Plaintiffs’ Exhibit 12, Section 1337.04(a)).

Each of these ordinances carries with it a criminal penalty. They are classified as minor

misdemeanors and violators are punished with a fine up to $100.00. City of Defiance Codified

Ordinances, §§ 905.99, 1337.99(a).

Further, in analyzing whether Plaintiffs had violated Section 1337.04(a), Defendant

Williams specifically noted that Plaintiffs “are not public officials, they were not performing an

official function and they had not applied for or been granted, a license authorizing them to make

private use of the public space.” (Exhibit 10, pg. 6). Section 1337.04(a) makes an allowance for

individuals seeking to erect a sign on public property “pursuant to a license to occupy the right-

of-way granted in accordance with Section 131.03 [of the City of Defiance Codified Ordinances]

(“Section 131.03”).” (Exhibit 12). This section of the Codified Ordinances

empower[s] [the City Administrator to grant licenses permitting private occupation of air-space over any lands within or beneath streets, alleys and other municipal rights-of-way for purposes which are not inconsistent with the public use of such lands.

(Plaintiffs’ Exhibit 13, Section 131.03).

2 The City of Defiance Codified Ordinances are available at <http://www.conwaygreene.com/Defiance/lpext.dll?f=templates&fn=main-h.htm&2.0>.


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In interpreting these ordinances, Defendant Williams claimed that both Sections 905.05

and 1337.04 applied to Plaintiffs’ conduct because “[t]hey forbid the act of applying material,

whatever it may be, to the pavement to spell out “names, words or advertisements.” (Exhibit 10,

pg. 4). Defendant Williams dismissed any claim that the police had suppressed the speech of

Plaintiffs because “[t]he officers may have been uncertain about the reason for the rule, but they

got the rule right and applied it correctly.” Id. at pg. 5. Any reference the officers made to the

“political nature” of Plaintiffs’ messages, Defendant Williams merely found “mildly troubling.”

Id. at pg. 1.

Plaintiffs showed a picture of individuals drawing pictures on the sidewalk, inquiring into

whether they had violated the ordinances. (Exhibit 5, pg. 2, ¶¶ 28-32). Defendant Williams

summarily rejected this assertion. The difference being that “Occupy Defiance marked the

[side]walks with words . . . the children did not. They drew colorful pictures. Mr. Gallmann and

his associates violated the ordinance. The children did not.” (Exhibit 10, pg. 7). Defendant

Williams conclude his opinion by stating that “[r]epeat violation [sic] by persons who have been

informed of the requirements under circumstances suggesting purposeful disobedience warrants

prosecution.” Id. at pg. 10. He then states the opinion will be delivered to Occupy Defiance and

that he would wait until a reasonable period so all members could be made aware of its findings.

Id. at pg. 10-11. Defendant Williams ends the opinion by stating that “[i]f charges are filed

against Mr. Gallmann or others affiliated with Occupy Defiance . . . my office will prosecute the

offense to conclusion.” Id.

Upon receiving the opinion of law issued by the law director, the American Civil

Liberties Union of Ohio Foundation (“ACLU”) drafted a letter to Defendant Williams.

(Plaintiffs’ Exhibit 14, Letter from ACLU of Ohio to David Williams on September 16, 2013). In


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the letter, the ACLU urged Defendant Williams to reconsider his interpretation of the laws and

how they were being applied to the expressive activities of Occupy Defiance. Id. Defendant

Williams replied with a scathing letter stating that “far too much effort has been spent on this

non-issue already.” (Plaintiffs’ Exhibit 15, Letter from David Williams to ACLU of Ohio on

September 26, 2013). Also in the letter, he addresses the “unfortunate comment” made by City of

Defiance police that if Occupy Defiance’s chalkings were political, they would have to stop. Id.

He stated that “[c]ops are not constitutional lawyers” and “a training session” was held with a

memo concerning the incident. Id.

Plaintiffs intend to exercise their First Amendment rights and continue chalking political

messages on public sidewalks. (Exhibit 1, ¶ 18). In fact, it is their intent and desire to hold

another “Chalk Walk” on the evening of October 24, 2013, the night before the 2013 Halloween

Parade. Id. However, because of the direct threat of prosecution made by Law Director Williams

in his legal opinion and his broad interpretation of the application of sections 905.05, 1337.04(a)

and 131.03, Plaintiffs are afraid they will face arrest and prosecution should they choose to

engage in writing political messages on the public sidewalks with temporary, water-soluble

chalk. Id. at ¶¶ 13-18.

Defendant Williams’ threat has had a chilling effect on the speech activities of Occupy,

and they are, therefore, asking this Court to grant a temporary restraining order declaring that

sections 905.05, 1337.04(a) and 131.03 do not apply to the chalking of words on public

sidewalks, and ordering city officials not to arbitrarily enforce these sections against Plaintiffs, or

other members of the public, who engage in such activity.

STATEMENT OF THE ISSUES TO BE DECIDED

1. Whether the plain language of Sections 905.05 and 1337.04(a) of the Codified Ordinances of the City of Defiance apply to Plaintiffs’ expressive conduct of writing political messages in chalk on public sidewalks.


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2. Whether Defendants’ actions, statements, and threats of prosecution against Plaintiffs constitute content based and viewpoint discrimination based on Plaintiffs’ message.

3. Whether Defendant’s asserted interests in applying Sections 905.05 and

1337.04(a) against Plaintiffs’ expressive conduct of writing political messages in chalk on public sidewalks is narrowly tailored to serve a significant government interest.

4. Whether Section 131.03, on its face, unconstitutionally provides the City of

Defiance City Administrator with unbridled discretion to discriminate based on the content of speech and whether Section 131.03 contains the requisite procedural safeguards to ensure the protection of free speech.

SUMMARY OF THE ARGUMENT

Plaintiffs are challenging Defendants’ application of Sections 905.05 and 1337.04(a) of

the Codified Ordinances of the City of Defiance (“Section 905.05” and “Section 1337.04(a)”

respectively) to their desired activity of writing in sidewalk chalk on public sidewalks. Plaintiffs

are entitled to a temporary restraining order for three reasons. First, neither section applies to

chalking on public sidewalks. Section 905.05 prohibits “painting on the sidewalk names, words

or advertisements,” and Section 1337.04(a) is a building code standard that applies to structural

signs, which prohibits erecting signs “on public property or within any public right of way.”

However, Defendant Williams, drafted a legal opinion for the City Council of Defiance, which

contends that these ordinances proscribe “applying material [including temporary chalk] to

names, words or advertisements.” Yet, a plain reading of the statutes contradicts this irrational

application.

Second, assuming that Sections 905.05 and 1337.04(a) apply to Plaintiffs’ conduct,

Defendants’ application of the ordinances against Plaintiffs cannot withstand constitutional

scrutiny. Primarily, Defendants discriminated and continue to discriminate against Plaintiffs

based on the content of their messages. This is demonstrated in two ways. First, the police

officers who stopped Plaintiffs from engaging in protected speech did so based on the content of


15

their message. In his police report, Officer Williamson stated that he “was told that if it was

political they would have to stop.” Second, in his legal opinion to city council, Defendant

Williams stated that only those informed of the requirements of the prohibition on chalking

messages would be prosecuted. This interpretation fundamentally alters the requirements of the

law. Plainly, Plaintiffs are the ones to whom the opinion is directed, and therefore it appears that

now only Plaintiffs will be prosecuted. This demonstrates blatantly unconstitutional content-

based and viewpoint discrimination.

Defendants’ application of sections 905.05 and 1337.04(a) can not survive intermediate

scrutiny because it is not narrowly tailored to achieve a significant governmental interest.

Defendants claim they have an interest in esthetics, traffic and pedestrian safety and visual

clutter. However, proscribing sidewalk chalk written on a public sidewalk that does not block or

impede a right-of-way does not achieve these interests. Indeed, Defendants’ application of city

law renders the ordinances impermissibly underinclusive. Further, it is irrational to make a

distinction between chalked pictures and chalked words. A one inch tall and one inch long

chalked word cannot be said to have harmed city interests when a drawn chalk mural spread

across the entire distance of the city’s sidewalks would not.

Third, if 1337.04(a) does apply to Plaintiffs’ conduct, then under the law, for Plaintiffs to

write in chalk on sidewalks they would have to submit themselves and their speech to a

standardless permit scheme. Defendant Williams stated in his legal opinion to city council that

Plaintiffs violated 1337.04(a) for not having obtained a permit first. Section 1337.04(a) allows

individuals to seek a permit under Section 131.03 of the Codified Ordinances. However, 131.03

fails to provide guidelines to prevent the licensor’s discrimination based on the content of an

applicant’s speech. Absent these standards to guide the city official’s determination, Section


16

131.03 is presumptively invalid as a content based restriction on speech. Moreover, Section

131.03 does not contain the requisite procedural safeguards to protect free speech.

ARGUMENT

I. Plaintiffs’ Have Standing to Challenge Sections 905.05, 1337.04(a), and 131.03 and

Their Challenges are Also Ripe for Review.

A. Plaintiffs Have Standing to Challenge Sections 905.05 and 1337.04(a)

Because the Defiance Law Director Has Unconstitutionally Chilled Occupy

Defiance Members’ Speech and Have Standing to Challenge 131.03 Because

it Grants the City Administrator Unbridled Discretion.

Plaintiffs have constitutional standing to challenge Sections 905.05, 1337.04(a), and

131.03 because Plaintiffs have suffered a concrete and actual injury at the hands of Defendant

that can be redressed by this Court. “To establish Article III, constitutional standing, a plaintiff

must show: (1) it has suffered an injury in fact that is (a) concrete and particularized and (b)

actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the

challenged action of the defendant; and (3) it is likely as opposed to merely speculative that the

injury will be redressed by a favorable decision.” McGlone v. Bell, 681 F.3d 718, 729 (6th Cir.

2012) (quoting Wuliger v. Mfrs. Life Ins. Co., 567 F.3d 787, 793 (6th Cir. 2009)); see also Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

Under well-established precedent, Plaintiffs have standing to challenge all three Sections.

Defendants have interpreted Sections 905.05 and 1337.04(a) as prohibiting a particular form of

protected speech used by Plaintiffs and have threatened prosecution. Defendants actions have

unconstitutionally chilled Plaintiffs’ First Amendment protected speech. Moreover, under

Section 131.03, Defendants claim that in order for Plaintiffs to write political messages, they

must submit themselves to a permitting scheme that grants unbridled discretion to a city official.

Both of those injuries can be redressed by this Court by declaring that Sections 905.05,


17

1337.04(a), and 131.03 do not apply to Plaintiffs’ desired actions and by enjoining their

enforcement against Plaintiffs.

1. Plaintiffs Have Suffered an Injury-In-Fact and Have Standing to File

Facial and As-Applied Challenges to Sections 905.05 and 1337.04(a)

Because the Defiance Law Director Has Unconstitutionally Chilled

Speech By the Threat of Future Enforcement Against Plaintiffs.

When analyzing whether a plaintiff has suffered an injury-in-fact sufficient to confer

standing, “[t]he Supreme Court has long found claims to be cognizable when speech has been

chilled by the threat of future enforcement.” Berry v. Schmitt, 688 F.3d 290, 298 (6th Cir. 2012)

(citing Brown v. Entm’t Merchants Ass’n, 131 S.Ct. 2729, 2743 (2011) as a relevant example of

that fact); see also McGlone v. Bell, 681 F.3d 718, 729 (6th Cir. 2012) (stating that “[i]t is well-

settled that a chilling effect on one’s constitutional rights constitutes a present injury in fact.”).

Furthermore, the Supreme Court of the United States has held that “it is not necessary that [a

plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge a statute

that he claims deters the exercise of his constitutional rights. Steffel v. Thompson, 415 U.S. 452,

455 (1974).

A plaintiff who alleges that her or his speech has been chilled by state action will satisfy

the injury-in-fact requirement when she or he demonstrates: (1) “an intention to engage in a

course of conduct arguably affected with a constitutional interest, but proscribed by a statute”

and (2) “a credible threat of prosecution thereunder.” Berry, 688 F.3d at 296 (quoting Babbit v.

United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979); See also Greenberg v. City of

Sylvania, No. 3:12 CV 1848, 2012 WL 3779319, at *4 (N.D. Ohio Aug. 31, 2012).

The Sixth Circuit, in Berry v. Schmitt, illustrates the allegations that are needed to prove

injury-in-fact in the context of First Amendment chilled speech. In Berry, an attorney wrote a

letter criticizing the Kentucky Legislative Ethics Commission’s investigation into a Kentucky


18

Senate President. Berry, 688 F.3d at 294-95. After conducting an investigation, the Inquiry

Commission of the Kentucky Bar Association sent the attorney a warning letter stating that his

conduct violated Kentucky Rule of Professional Conduct 8.2(a) and warning the attorney not to

do it again. Id. at 295. The attorney subsequently brought facial and as-applied challenges to the

Rule 8.2(a), alleging that the warning letter kept him from engaging in further criticism of the

Commission. Id.

In analyzing whether the attorney had suffered an injury-in-fact, the Sixth Circuit applied

the two-part Babbitt v. United Farm Workers Nat’l Union test. Id. at 296. Under the first prong,

the Sixth Circuit indicated that it was clear that the attorney had a constitutional interest because

his criticizing letter constituted political speech. Id. Moreover, the Court found that “[i]t takes no

great leap of logic to deduce that” the Commission’s warning letter, coupled with the attorney’s

intent “to engage in speech similar – or substantially similar – to the speech contained in [the

attorney’s criticizing letter]” resulted in the attorney’s conduct being proscribed by statute. Id.

The Sixth Circuit then turned to the second prong, finding that even though the attorney

was not disciplined, “the warning letter implied a threat of future enforcement that elevated the

injury from subjective chill to actual injury.” Id. at 297. While the Court found that the warning

letter alone was enough, it also noted that a supplemental warning letter, written by the

Commission in response to the attorney’s lawsuit and instructing the attorney to avoid similar

statements in the future, solidified the “credible threat of enforcement.” Id. Thus, the Sixth

Circuit concluded that “[t]he injury here is not actual discipline, but rather chill caused by the

threat of discipline.” Id. at 298. See also Coast Candidates PAC v. Ohio Elections Com’n, No.

12-4158, 2013 WL 4829216, at *7 (6th Cir. Sept. 11, 2013) (citing McGlone v. Bell for the rule


19

that a plaintiff’s speech is “objectively chilled” when he or she is refused permission to speak in

a public location and then threatened with arrest if he or she did not cease speaking).

Just like the rule articulated by Steffel, Plaintiffs do not need to risk arrest and prosecution

by chalking again on Defiance public sidewalks. Instead, Plaintiffs’ very real fear of prosecution,

just like the Berry plaintiff who tried to engage in political speech, is alone sufficient to meet the

two-pronged Babbitt injury-in-fact test for plaintiffs who have had their speech chilled by state

action, as illustrated by Berry.

Similar to the Berry plaintiff who wished to criticize the Kentucky Senate President,

Plaintiffs have met the first prong of Babbitt because they intend to chalk political messages on

Defiance public sidewalks, a constitutionally protected interest, during their upcoming Chalk

Walk on October 24, 2013. (Exhibit 1, ¶ 18). Plaintiffs view chalking as an effective way to get

their political messages out to the public. Id. at ¶ 4; (Exhibit 2, ¶ 4; Exhibit 3, ¶ 4). Thus,

Plaintiffs also intend to keep chalking on Defiance public sidewalks in the future. (Exhibit 1, ¶

18).

Further, like the Berry plaintiff who was informed that his criticism was proscribed by

Kentucky Rule of Professional Conduct 8.2(a), Plaintiffs were informed, after chalking political

messages in front of the Defiance County Courthouse on October 26, 2012, that their chalking

violated Sections 905.05 and 1337.04(a). (Exhibit 1, ¶ 16; Exhibit 2, ¶ 13; Exhibit 3, ¶ 13).

Plaintiffs were first warned by Defiance police officers to cease chalking political messages on

October 26, 2012. (Exhibit 1, ¶ 10). Defiance officers specifically told Plaintiffs that they would

need permission and permits before they could chalk again. Id. The Occupy Defiance Plaintiffs

want and intend to chalk political messages on Defiance public sidewalks as part of a Chalk


20

Walk that they have planned for October 24, 2013. (Exhibit 1, ¶ 18). Plaintiffs also want and

intend to chalk political messages on Defiance public sidewalks at other future events. Id.

However, Plaintiffs are aware of and have read a letter to the Legal Director of the ACLU

of Ohio and a legal opinion, each of which were written by the City of Defiance Law Director

David Williams. (Exhibit 1, ¶¶ 16, 18; Exhibit 2, ¶¶ 13, 15; Exhibit 3, ¶¶ 13, 15). In his legal

opinion, sent to City Counsel President Holtsberry, Defendant Williams opined that “[b]oth

[Sections 905.05 and 1337.04(a)] prohibit the painting of names, words or advertisements on

public sidewalks regardless of the permanence of the materials used to mark the walls.” (Exhibit

10, pg. 10). Defendant Williams then asserted that Plaintiffs had, in fact, violated both Sections

905.05 and 1337.04(a) when they chalked on October 26, 2012. Id. Thus, Plaintiffs intend to

exercise their First Amendment rights by chalking on October 24, 2013. However, Defendants

have proscribed those rights by incorrectly applying Sections 905.05 and 1337.04(a) to

Plaintiffs’ activities.

Plaintiffs have also met the second prong of Babbitt. Just like Berry plaintiff who

received two threatening letters that constituted an injury-in-fact, Plaintiffs have received two

notifications, Defendant Williams’ letter and legal opinion, which each make it abundantly clear

that any further chalking on Defiance public sidewalks will result in prosecution under Sections

905.05 and 1337.04(a). (Exhibit 15; Exhibit 10, pgs. 10-11).

In his letter, sent on September 26, 2013, Defendant Williams menacingly stated that

“Occupy Defiance’s periodic insistence that undue attention be called to one supervisor’s

uncertain and promptly corrected misunderstanding of the First Amendment is wearing thin.”

(Exhibit 15). Defendant Williams concluded that letter by declaring that Plaintiffs “may not


21

appropriate the pavement as its blackboard . . .” Id. Moreover, Defendant Williams finished his

legal opinion by threatening that:

[r]epeat violation by persons who have been informed of the requirements under circumstances suggesting purposeful disobedience warrants prosecution. If charges are filed against [Plaintiffs] following the delivery of this Opinion and passage of a reasonable time for [Plaintiffs] to disseminate the information to the general membership, my office will prosecute the offense to conclusion.

(Exhibit 10, pgs. 10-11).

It is true that a subjective chilling of speech, without more, will not satisfy the injury-in-

fact requirement. Morrison v. Bd. Of Educ. of Boyd Cnty., 521 F.3d 602, 608 (6th Cir. 2008)

(citing Laird v. Tatum, 408 U.S. 1, 13 (1972). However, as McGlone noted, the record in

Morrison was “’silent’ as to a threat of punishment.” McGlone, 681 F.3d at 731. As long as a

plaintiff has been specifically threatened with enforcement under the statute he or she wishes to

challenge as unconstitutional, that plaintiff will have “suffered an injury in fact that is concrete

and particular.” Id. Plaintiffs, having been threatened by Defendant Williams with prosecution

under Sections 905.05 and 1337.04(a), have moved well beyond the subjective chilling that

occurred in Morrison.

Thus, Plaintiffs have suffered a concrete and actual injury-in-fact because their speech

has been objectively chilled by the threat of prosecution under Sections 905.05 and 1337.04(a).

This injury is directly traceable to the Defendants’ threat of prosecution, as articulated by Legal

Director David Williams’ letter and legal opinion. Finally, a declaratory judgment and an

injunction from this Court can redress Plaintiffs’ grievance by declaring the Sections do not

apply and enjoining the City from enforcing the unconstitutional requirements of Sections

905.05 and 1337.04(a).


22

2. Plaintiffs Have Standing and May Bring a Facial Challenge to Section

131.03 Because It Is An Overbroad Ordinance That Grants the City

Administrator Unbridled Discretion to Limit Speech.

Plaintiffs have incurred an injury-in-fact because Section 131.03 is an overbroad law that

vests the Defiance City Administrator with unbridled discretion to limit speech. In G & V

Lounge, Inc. v. Michigan Liquor Control Comm'n, 23 F.3d 1071 (6th Cir. 1994), the Sixth

Circuit took up a case concerning an overbroad law granting the government unbridled discretion

to revoke a license for topless dancing. The Court found the law was a prior restraint and

“constitute[d] a concrete and particularized injury in fact.” Id. at 1075. Further, the Court went

on to note that “it is well established that ‘when a licensing statute allegedly vests unbridled

discretion in a government official over whether to permit or deny expressive activity, one who

is subject to the law may challenge it facially without the necessity of first applying for, and

being denied, a license.’” Id. (citing City of Lakewood v. Plain Dealer Publishing Co., 486 U.S.

750, 755 (1988)); see Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 351 (6th Cir. 2007).

The Sixth Circuit, in Prime Media, Inc., 485 U.S. at 351, noted several U.S. Supreme

Court cases which firmly establish the proposition that a plaintiff may challenge an overbroad

licensing ordinance, like Section 131.03, without first applying for it. The Court, in Lovell v.

Griffin, 303 U.S. 444, 452–53 (1938), held that when a licensing scheme grants unbridled

discretion to the government it “is void on its face, [and] it was not necessary for appellant to

seek a permit under it.” In Freedman v. Maryland, 380 U.S. 51, 56 (1965), the Court in striking a

film licensing scheme as an unconstitutional prior restraint held that, “in the area of freedom of

expression it is well established that one has standing to challenge a statute on the ground that it

delegates overly broad licensing discretion to an administrative office, whether or not his

conduct could be proscribed by a properly drawn statute, and whether or not he applied for a

license.” Then in Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969) the Court noted that,


23

“The Constitution can hardly be thought to deny to one subjected to the restraints of [a licensing

law] the right to attack its constitutionality, because he has not yielded to its demands.”

Like those cases, Plaintiffs may challenge Section 131.03 because it is a licensing scheme

that grants unbridled discretion to a government official. A licensing scheme will fail

constitutional scrutiny if it does not provide “narrow, objective, and definite standards.” Forsyth

Cnty. v. Nationalist Movement, 505 U.S. 123, 131 (1992). Section 131.03 fails to provide

sufficient guidelines for when the City Administrator may grant a license to erect a sign under

Section 1337.04(a). Section 131.03(a) simply states that “[t]he City Administrator is hereby

empowered to grant licenses permitting private occupation of [municipal rights-of-way] . . . for

purposes which are not inconsistent with the public use of such lands.” Also, Section 131.03 is

silent as to how the City Administrator would resolve conflicts between license applicants, such

as two applicants wanting the same space at the same time. Thus, Section 131.03 fails to

articulate any standard whatsoever for how the City Administrator will approve license requests.

Finally, Section 131.03 grants the City Administrator unbridled authority to determine

the location and quantity of space that applicants will receive in exchange for “[a] processing fee

of twenty-five dollars,” without “narrow, objective, and definite standards.” Forsyth Cnty., 505

U.S. at 131 (1992). In Forsyth County, the Supreme Court of the United States encountered a

similar situation. There, a Georgia statute permitted a government official to set a fee for permits

based on the number of police officers the official expected to be necessary to keep the peace

and the content of the speech conveyed. Id. at 127, 134. The Court found that these grants of

unbridled discretion to an official violated the First Amendment. Id. at 133-36.

As in Forsyth County, Section 131.03 gives the City Administrator complete discretion to

determine what each applicant receives in exchange for her or his $25 processing fee. Because of


24

the lack of any standards, the City Administrator could very well decide to give one applicant 30

city blocks of space for $25 while giving another applicant one city block for the same $25 fee.

Ultimately, there are no explicit limitations that would prevent the City Administrator from

“encouraging some views and discouraging others through the arbitrary application of fees.”

Forsyth Cnty, 505 U.S. at 133. Therefore, Section 131.03 confers unbridled discretion upon the

City and the City Administrator and allows them to discriminate based on the content of speech.

Plaintiffs meet the rigors of constitutional standing under Article III because Section

131.03 is overbroad and vague. It acts as a prior restraint, vests unbridled discretion in the City

Administrator, and chills Plaintiffs’ speech. Therefore, Plaintiffs have suffered an injury-in-fact.

This injury is directly traceable to the City of Defiance’s enactment and enforcement of Section

131.03. Finally, an injunction from this Court can redress Plaintiffs’ grievance by enjoining the

City from enforcing the unconstitutional requirements of Section 131.03.

B. Plaintiffs’ Challenges are Ripe for Review Because Sections 905.05 and

1337.04(a) Present an Imminent Threat of Prosecution and 131.03 is

Content-Based and Facially Unconstitutional.

“Three factors guide the ripeness inquiry: ‘(1) the likelihood that the harm alleged by the

plaintiffs will ever come to pass; (2) whether the factual record is sufficiently developed to

produce a fair adjudication of the merits of the parties’ respective claims; and (3) the hardship to

the parties if judicial relief is denied at this stage in the proceedings.’” Berry v. Schmitt, 688 F.3d

290, 298 (6th Cir. 2012) (quoting Grace Cmty. Church v. Lenox Twp., 544 F.3d 609, 615 (6th

Cir. 2008)).

With a First Amendment pre-enforcement challenge, the likelihood of the harm factor is

evaluated by “focusing on ‘how imminent the threat of prosecution is and whether the plaintiff

has sufficiently alleged an intention to refuse to comply with the statute.’” Berry, 688 F.3d at 298

(quoting Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir. 2002)). When examining whether a


25

threat of prosecution exists that is sufficiently imminent, the Sixth Circuit looks for “a ‘definitive

statement of position’” by a governmental authority “that establishes an imminent enforcement

threat.” Susan B. Anthony List v. Driehaus, Nos. 11-3894, 11-3925, 2013 WL 1942821, at *5

(6th Cir. May 13, 2013) (quoting FTC v. Standard Oil of Cal., 449 U.S. 232, 241 (1980)). The

Sixth Circuit also considers whether a prior statutory violation will be considered “in future

investigations involving the [plaintiff].” Susan B. Anthony List, 2013 WL 1942821, at *5 (citing

Briggs v. Ohio Elections Comm’n, 61 F.3d 487, 492-93 (6th Cir. 1995).

In analyzing the development of the factual record factor, the Sixth Circuit has looked to

whether the statute at issue has been applied to the plaintiff’s speech, whether a governmental

authority has determined that the plaintiff’s speech has violated the statute, and whether a

prosecutor has “taken any action” in the matter. Susan B. Anthony List, 2013 WL 1942821, at *7.

For factor concerning hardship produced by denial of judicial review, the Sixth Circuit has

primarily focused on whether a plaintiff is “deterred from engaging in the very conduct that it

claims is encumbered.” Susan B. Anthony List, WL 1942821, at *8 (citing Norton, 298 F.3d at

555).

In Berry v. Schmitt, the Sixth Circuit found that the attorney’s intent to engage in speech

that he had previously been warned violated a statute, along with a reasonable fear of

punishment, satisfied the likelihood of harm factor. Berry, 688 F.3d at 298. Further, the Sixth

Circuit concluded that because the issue was “a legal one,” the facts described in the above

illustration were sufficient. Id. Finally, the Court ruled that since the attorney was faced with a

“speak now and risk punishment or forever hold his peace” proposition and there was “little

benefit” to the governmental authority in waiting to adjudicate the matter, the hardship factor

was also met. Id.


26

Like Berry, Plaintiffs have met the likelihood of the harm factor because they intend to

again engage in chalking on Defiance public sidewalks during their October 24, 2013 Chalk

Walk, and in other future events. (Exhibit 1, ¶ 18). Plaintiffs were previously warned by

Defendant Williams that they “may not appropriate the pavement as it’s [sic] blackboard . . .”

and that “[b]oth [Sections 905.05 and 1337.04(a)] prohibit the painting of names, words or

advertisements on public sidewalks regardless of the permanency of the materials used to mark

the walks.” (Exhibit 10, pgs. 5, 10; Exhibit 1, ¶ 16; Exhibit 2, ¶ 13; Exhibit 3, ¶ 13). Finally,

Defendant Williams made it clear that Plaintiffs already violated both Sections through their

previous chalking and that any repeat violations would warrant prosecution. (Exhibit 10, pgs. 10-

11).

Thus, the City of Defiance, through Defendant Williams, has issued a ‘definitive

statement of position’ that threatens to enforce both Sections when Plaintiffs chalk on October

24, 2013, and in other future events. The City also communicated that it would consider

Plaintiffs’ previous statutory violations with any future investigations involving Plaintiffs. If

Plaintiffs are not granted relief by this Court, they will be faced with criminal charges under

Sections 905.05 and 1337.04(a) when they chalk on Defiance public sidewalks on October 24,

2013, and in the future.

Furthermore, Plaintiffs have met the development of the record and hardship if judicial

review is denied factors. The record is sufficiently developed because Defendant Williams, as

indicated above, has applied Sections 905.05 and 1337.04(a) to Plaintiffs’ chalking messages and

explicitly stated that Plaintiffs’ chalking violated both Sections. (Exhibit 10, pgs. 4-11; Exhibit

15). Moreover, Defendant Williams, being the Defiance Law Director, is a prosecutor who has

taken action against Plaintiffs with regard to their chalking. (Exhibit 10, pgs. 10-11). Finally, like


27

the attorney in Berry, Plaintiffs will suffer hardship if judicial review is denied because they will

be unable to go through with their previously-planned Chalk Walk event on October 24, 2013,

(Exhibit 1, ¶ 18), and other chalking events they plan to hold in the future Id. If Plaintiffs are

denied judicial review, they will be faced with a “speak now and risk punishment or forever hold

[their] peace” proposition. On the other hand, the City of Defiance will not be negatively

impacted by the adjudication of this matter now, rather than later.

Finally, because Plaintiffs are challenging Section 131.03 as a content-based, facially

unconstitutional ordinance that grants the City Administrator unbridled discretion to grant

licenses how she or he sees fit, that challenge is also ripe for adjudication.

II. This Court Should Issue A Temporary Restraining Order Because Defendants’

Actions and Enforcement of City Law Violates Their Rights Under The First and

Fourteenth Amendments.

A court may issue a temporary restraining order and enjoin the actions of a party after

considering four factors: 1) whether the movant has a strong likelihood of success on the merits;

2) whether the movant would otherwise suffer irreparable injury; 3) whether issuance of a

preliminary injunction would cause substantial harm to others; and 4) whether the public interest

would be served by issuance of a preliminary injunction. Leary v. Daeschner, 228 F.3d 729, 736

(6th Cir. 2000).

A. Plaintiffs Can Demonstrate a Strong Likelihood of Success on the Merits.

The First Amendment to the United States Constitution protects all forms of expression

against governmental interference and restraint. Doran v. Salem Inn, Inc. 422 U.S. 922, 932

(1975). The broadest protection is afforded to political expression in order “to assure [the

unfettered interchange of ideas for the bringing about of political and social changes desired by

the people.” Roth v. United States, 354 U.S. 476, 484 (1984). As the Supreme Court has

repeatedly observed, advocacy of a politically controversial viewpoint is the essence of First


28

Amendment expression. See e.g. Citizens United, 558 U.S. at 329 (2010) (noting that political

speech is “central to the meaning and purpose of the First Amendment”); McIntyre v. Ohio

Elections Comm’n, 514 U.S. 334, 347 (1995) (Given the fundamental nature of the right to

unrestrained political dialogue, laws burdening core political speech are weighed with “exacting

scrutiny” and may be upheld only if narrowly tailored to serve a compelling state interest).

In fact, “‘ [t]he maintenance of the opportunity for free political discussion to the end that

government may be responsive to the will of the people and that changes may be obtained by

lawful means, an opportunity essential to the security of the Republic, is a fundamental principle

of our constitutional system.’” New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964) (citing

Stromberg v. California, 283 U.S. 359, 369 (1931))

Moreover, at the outset, Plaintiff notes that unlike most legal disputes, in First

Amendment cases, Defendants carry the burden of proof and persuasion. United States v.

Playboy Entertainment Group, Inc., 529 U.S. 803, 816 (2000) (“When the government restricts

speech, the government bears the burden of proving the constitutionality of its actions.”).

1. This Court Should Declare that Neither Section 905.05 or 1337.04(a)

Apply to Plaintiffs Activity of Drawing Political Messages With Sidewalk

Chalk.

Defendants have warped two city ordinances to apply to Plaintiffs’ conduct. Defendants

claim that Sections 905.05 and 1337.04(a) proscribe writing messages in chalk on public

sidewalks. In his legal opinion to City Council, Defendant Williams opined that “[b]oth §905.05

and §1337.04(a) of the Codified Ordinance [sic] prohibit the painting or [sic] names, words or

advertisements on public sidewalks regardless of the permanence of the materials used to mark

the walks.” However, a closer look reveals that neither of these ordinances prohibits chalking

messages on sidewalks.


29

When determining the meaning of a statute, courts look to its plain meaning. United

States v. Cochran, 640 F. Supp. 2d 934, 937 (N.D. Ohio 2009). To further guide one’s analysis

of the City’s laws, Section 103.03 lays out the method by which one should construe the

Codified Ordinances. Specifically, “[w]ords and phrases shall be read in context and construed

according to the rules of grammar and common usage.” If an ordinance is ambiguous, Section

101.07 permits a court to then inquire into:

(1) The object sought to be attained; (2) The circumstances under which the ordinance was enacted; (3) The legislative history; (4) The common law or former legislative provisions, including laws upon the same or similar subjects; (5) The consequences of a particular construction; and (6) The administrative construction of the ordinance.

Whether one is attributing the plain meaning of the words or investigating the legislative

intent, neither Section 905.05 nor 1337.04 applies to writing political messages in temporary,

water-soluble chalk on public sidewalks.

a. Sections 905.05 and 1337.04(a) Do Not Apply to Plaintiffs’ Activity of Writing in Sidewalk Chalk Because Chalking Does Not Constitute Painting Which Defaces or Disfigures Public Property.

By the plain language of the text, chalking messages on public sidewalks is not

prohibited under Sections 905.05 and 1337.04(a). When interpreting a statute, one must first look

to its text, as it is “‘the authoritative statement’” on its meaning. Cochran, 640 F. Supp. 2d at 937

(N.D. Ohio 2009) (quoting Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568

(2005)). Indeed, ‘“the first step [of statutory interpretation is] to determine whether the language

at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.’”

Cochran, 640 F. Supp. 2d 934, 937 (N.D. Ohio 2009) (quoting Barnhart v. Sigmon Coal Co.,

Inc., 534 U.S. 438, 450 (2002)). “Whether the language of a statute is plain or ambiguous is

determined ‘by reference to the language itself, the specific context in which that language is


30

used, and the broader context of the statute as a whole.’” Id. (quoting Robinson v. Shell Oil Co.,

519 U.S. 337, 341 (1997)).

The plain language of Section 905.05 fails to encompass the act of chalking on sidewalks.

In its entirety, it states:

No person shall deface or disfigure any sidewalk or part thereof by painting on the sidewalk names, words or advertisements, or by pasting or placing printed bills or posters thereon. No person shall spit on any street or sidewalk or in any public place in the City.

Similarly, Section 1337.04(a) does not mention chalking. In relevant part, Section

1337.04(a) states that “[n]o sign shall be erected on public property or within any public right of

way.” Defendant Williams claims that chalking on a sidewalk is akin to erecting a sign. (Exhibit

10, pg. 4). He then refers to Section 1337.03(f) of the Codified Ordinances which defines “erect”

as “the acts of attaching, affixing, hanging, suspending, painting and placement . . . .” Id.

Defendant Williams concludes that by using “painting” in both ordinances, each section

“forbid[s] the act of applying material, whatever it may be, to the pavement to spell out ‘names’,

‘words’ or ‘advertisements.’” Id. However, a plain reading of the ordinances contradicts this

interpretation entirely.

i. Section 905.05 Does Not Apply to Chalking On the

Sidewalk.

Focusing first on Section 905.05, plainly its text fails to prohibit chalking on sidewalks.

Instead, the ordinance only prohibits the “painting” of “names, words or advertisements” which

“deface” or “disfigure” sidewalks. A relevant case on point from a United States District Court

within the Sixth Circuit is Jackson v. Williams, 10-CV-14985, 2012 WL 3597187 (E.D. Mich.

Aug. 20, 2012), reconsideration denied, 10-CV-14985, 2013 WL 150032 (E.D. Mich. Jan. 14,

2013). There, the Court found a question of fact existed as to whether the defendant, a peace

officer, had falsely arrested and unreasonably searched and seized the plaintiff. Id. The defendant


31

believed she had the authority to arrest the plaintiff for disorderly conduct after the plaintiff

refused to stop writing in chalk on a public street curb. Id. at *5. The disorderly conduct statute

only applied to those persons who “knowingly destroy[], damage[] or deface[] or remove[] any

public property . . . .” Id.

After noting that the defendant’s arguments were “unconvincing,” the Court stated that

“it stretches the bounds of credulity to believe that a reasonable police officer could view writing

on a street curb with chalk as an arrestable offense.” Id. at *6. The court further found that “chalk

writing is not permanent and easily washes away with water, and is normally completely erased

after a simple rainstorm. It therefore does not constitute destroying, damaging, or defacing public

property . . . .” Id. (emphasis added).

In its opinion, the Jackson Court noted a Ninth Circuit Court of Appeals case in which an

officer was not entitled to qualified immunity after arresting someone for chalking, because “no

reasonable person could think that writing with chalk would damage a sidewalk.” Id. (quoting

Mackinney v. Nielsen, 69 F.3d 1002, 1005 (9th Cir. 1995)). Similar to both Jackson and

Mackinney, no reasonable person, let alone a police officer, would believe that writing in chalk

falls under the prohibitions of Section 905.05. It specifically proscribes “painting,” a common

definition of which is “to cover (something) with paint [or] to put paint on (something)”3 As the

Jackson Court found, chalking is not permanent, and normally, unlike paint, chalk “easily

washes away with water.” Jackson, 2012 WL 3597187, at *6. Chalk no more defaces or

disfigures sidewalks than mud or a spilled glass of soda.

In fact, Defendant Williams’ assertion that painting simply means “the act of applying

material” and that disfigure and deface means to “spoil the appearance of,” even temporarily,

3 Merriam-Webster, "Paint," Merriam-Webster.com, http://www.merriam-webster.com/dictionary/paint (last visited Oct. 21, 2013).


32

(Exhibit 10, pgs. 4, 6), produces irrational and unjust results. By his logic, a person who, after a

rainy day, spells her name out in mud on city sidewalk has committed a criminal offence. No

reasonable person would believe the person committed any offense. The mud will wash away

and no harm will have come to the sidewalk. The same applies to Plaintiffs’ chalking. Therefore,

Section 905.05 does not prohibit chalking messages on sidewalks.

ii. Section 1337.04(a) Does Not Apply to Writing Messages on

Public Sidewalks Because Those Messages Do Not

Constitute Signs.

Section 1337.04(a), a building and housing code regulation, does not even relate to

chalking sidewalks and does not prohibit it. Moreover, chalk messages do not meet the definition

of “sign” and are therefore not covered by 1337.04(a). To fully understand what a statute

regulates, one must first determine its plain meaning by its text. U.S. v. Cochran, 640 F.Supp.2d

934, 937 (N.D. Ohio 2009). The text of 1337.04(a) specifically states that “no sign shall be

erected on public property or within any public right of way . . . .” (emphasis added).

To better interpret the statute, “[i]t is a fundamental canon of statutory construction that

the words of a statute must be read in their context and with a view to their place in the overall

statutory scheme.” United States v. Cochran, 640 F. Supp. 2d 934, 938 (N.D. Ohio 2009)

(quoting Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809 (1989)).

Here, Section 1337.04(a) is located in the Building and Housing Code area of the

Codified Ordinances.4 Section 1337.01 lays out the purpose and objectives of the chapter which

“is to promote public health, safety and welfare by establishing reasonable regulations governing

the size, character, location and structural integrity of signs and other advertising structures.”

(emphasis added). Moreover, “the title of a statute or section can aid in resolving an ambiguity in

the legislation's text.” INS v. Nat'l Ctr. for Immigrants' Rights, Inc., 502 U.S. 183, 189 (1991).

4 See <http://www.conwaygreene.com/Defiance/lpext.dll?f=templates&fn=main-h.htm&2.0>.


33

The label for this statute is “Construction Standards for Signs and Advertising Structures” and

the name of the title is “Prohibitions.” (§§ 1337, 1337.04). Moreover, Sections 1337.04(b)-(d)

demonstrate that this area of the Codified Ordinances only applies to constructed and built items

rather than intangible chalked messages.5

By its placement within the Codified Ordinances and by the very nature of its words in

context, this ordinance covers construction-related activities involving the erecting of tangible,

physical and constructed signs. This is in complete contrast to Plaintiffs’ activity of simply

writing messages in chalk on sidewalks. Their messages are not constructed and have no need for

“structural integrity.” Therefore, Plaintiffs’ messages are not prohibited, let alone covered, by

1337.04(a).

However, David Williams asserts that 1337.04(a) does prohibit written chalk messages

on sidewalks. (Exhibit 10, pg. 6). He claims that the definition of “Erect” is sufficient to warrant

such a reading of the law. Id. at pg. 4. “Erect,” under the City of Defiance Codified Ordinances,

is defined as:

to construct, assemble, install, alter or relocate a sign and includes the acts of attaching, affixing, hanging, suspending, painting and placement of signs, but does not include repair or replacement of changeable copy, repainting, cleaning or other maintenance that does not involve the repair or replacement of foundation elements, structural members or electrical components.

5 Sections 1337.04(b)-(d) state that “(b) No Ground Sign shall be erected within 10 feet of any public right-of-way

or within 150 feet of any other Ground Sign located adjacent to the same side of the same public right-of-way;(c) No sign shall be erected in any place that interferes with the ventilation system of a building or impedes access to any fire hydrant or standpipe, fire extinguisher or fire alarm or to any door, window, fire escape or other means of egress from a building; (d) No sign exhibiting animated graphic illustrations, flashing or rotating lights or mirrors, banners, pennants, ribbons, streamers, spinners or similar devices that move or change appearance shall be erected in any place that is visible from a public right-of-way or from publicly or privately owned lands customarily open to vehicular traffic. This paragraph does not prohibit the erection of public service devices that display the date, time, temperature or news information in a manner that does not imitate or distract attention from traffic control devices(e) No illuminated sign shall be erected in any place that results in objectionable brightness or glare in any residential premises or on any public right of way (f) No billboard shall be erected. (g) Abandon Signs, Obscene Signs, Portable Signs, Roof Signs and Vehicular Signs are hereby declared to be a public nuisance and are prohibited.”


34

(§ 1337.03(f)).

Yet, before determining whether an individual has erected a sign, one must first establish

the definition of “sign.” And if chalk messages on a public sidewalk do not constitute a sign,

then surely one cannot be cited under Section 1337.04(a) for having erected a sign.

In looking to the plain meaning of the ordinances to find a definition of sign, one would

first look to Section 1337.03. This area contains the definitions for the chapter on Construction

Standards for Signs and Advertising Structures, where 1337.04(a) is located. Id. at § 1337.03. In

place of a definition, the ordinance informs that the term “sign” shall be accorded the meaning

attributed to it by the Ohio Building Code. Id. Unfortunately, a thorough search of the Ohio

Building Code at this time will not provide one with a definition of “sign.” (Ohio Admin. Code §

4101:1-2-01).

Without a precise definition in either the ordinances or the Ohio Building Code and with

numerous interpretations, the meaning of sign is ambiguous. “When a statute is susceptible of

more than one interpretation, courts seek to interpret the statutory provision in a manner that

most readily furthers the legislative purpose as reflected in the wording used in the legislation.”

State ex rel. Toledo Edison Co. v. Clyde, 76 Ohio St. 3d 508, 513 (1996).

Thankfully, the Codified Ordinances provide guidance on how to settle the matter of an

ambiguous term. Section 101.07 states that where a term is ambiguous, a court should look to:

(1) The object sought to be attained; (2) The circumstances under which the ordinance was enacted; (3) The legislative history; (4) The common law or former legislative provisions, including laws upon the same or similar subjects; (5) The consequences of a particular construction; and (6) The administrative construction of the ordinance.

(§ 101.07).


35

Perhaps the most reasonable method to obtain a definition of “sign” that accords with the

intent and purpose of the ordinance and Section 101.07 is to look at how the term was defined in

the Ohio Building Code in 2002, the time of the ordinance’s passage. (§ 1337.03 (“Ord. 6283.

Passed 3-26-02”)).

At the time the City Council appropriated the definition of Ohio Building Code, “sign”

was defined as:

Any fabricated panel or outdoor display structure, including its structure consisting of any letter, figure, character, mark, plane, point, marquee, sign, design, poster, pictorial, picture, stripe, line, trademark, reading matter, or illuminated device, which is constructed, placed, attached, erected, fastened, or manufactured in any manner so that the same is used for the attraction of the public to any place, subject, person, firm, corporation, public performance, article, machine, or merchandise, which is displayed outdoors for recognized advertising purposes . . . .

(Ohio Admin. Code § 4101:1-2-01).

Written messages in chalk on the sidewalk do not fit this definition. Further, 1337.04(a)

is wholly inapplicable to Plaintiffs’ activities. Simply put, the technical verbiage in 1337.04

belies the true nature of the ordinance as a regulation on construction, not chalking or speech.

Therefore, it does not prohibit the activity of writing chalk messages on sidewalks.

2. Defendants’ Threats to Prosecute Plaintiffs Under 905.05 and

1337.04(a) Constitute Content Based and Viewpoint Discrimination.

Defendants’ actions against Plaintiffs constitute content based discrimination for two

reasons. First, on the night of October 26, 2012, Defiance police officers suppressed Plaintiffs’

speech based on the content of their messages. Second, in his legal opinion, Defendant Williams

twisted city law in such a way that prohibitions on chalking virtually only apply to Plaintiffs,

indicating inconsistent enforcement.

“The First Amendment generally prevents government from proscribing speech . . . or

even expressive conduct . . . because of disapproval of the ideas expressed.” R.A.V. v. City of St.


36

Paul, Minn., 505 U.S. 377, 382 (1992) (internal citations omitted). Further, “when speech is

regulated because of its content, that regulation will be subject to strict scrutiny review.” Lac

Vieux Desert Band of Lake Superior Chippewa Indians v. Michigan Gaming Control Bd., 172

F.3d 397, 409 (6th Cir. 1999). Content-based restrictions on protected noncommercial speech

receive strict scrutiny, i.e., the government must “show that the ‘regulation is necessary to serve

a compelling state interest and that it is narrowly drawn to achieve that end.’ ” Boos v. Barry,

485 U.S. 312, 321–22 (1988). However, content-based regulations are presumptively invalid.

R.A.V., 505 U.S. at 382. Here, Defendants are discriminatorily applying Sections 905.05 and

1337.04 against Plaintiffs due to their message. And because Defendants cannot show that their

discrimination is necessary to achieve a compelling interest, their actions violate Plaintiffs’ rights

to free expression.

The events that occurred on October 26, 2012 demonstrate the content based

discrimination Plaintiffs face at the hands of Defendants. On October 25, 2012, Jacob Gallmann

asked Chief Tobias whether individuals were permitted to write on public sidewalks in chalk.

(Exhibit 1, ¶ 4; Exhibit 4, pg. 2, ¶¶ 11-15). The next night, October 26, 2012, members of the

group Occupy Defiance, Jacob Gallmann, Mara Watson, and Josh Lesniak participated in an

event they referred to as a “Chalk Walk.” (Exhibit 1, ¶ 8; Exhibit 2, ¶ 6; Exhibit 3, ¶ 6). At this

event, each Plaintiff wrote political and other positive messages in temporary, water-soluble

chalk on the public sidewalks of the City of Defiance. Id. Later that night, police cars arrived and

officers approached Plaintiffs and demanded that Plaintiffs stop writing. (Exhibit 6; Exhibit 1, ¶

10). One of the police officers told the Plaintiffs that they had to stop writing on the sidewalks,

that they needed permits, and that the property was private. (Exhibit 1, ¶ 10; Exhibit 2, ¶ 8,

Exhibit 3, ¶ 8). One officer told Jacob Gallmann he was not free to leave. (Exhibit 1, ¶ 11).


37

Another City of Defiance officer, Lt. Martinez, walked all of the Plaintiffs toward a

chalked image of a pot leaf and told Plaintiffs he had a problem with the message. (Exhibit 1, ¶

12; Exhibit 2, ¶ 9; Exhibit 3, ¶ 9). Lt. Martinez said he did not want his children to see the

message and think it was okay. Id. Lt. Martinez told Plaintiffs that he was for Plaintiffs ability to

express themselves but not for the particular messages. Id. After detaining and informing

Plaintiffs of their displeasure with their messages, the police left. (Exhibit 1, ¶¶ 12-13; Exhibit 2,

¶¶ 9-10; Exhibit 3, ¶¶ 9-10). Plaintiffs felt their rights were violated and speech suppressed.

(Exhibit 1, ¶ 13; Exhibit 2, ¶ 10; Exhibit 3, ¶ 10). However, fearing criminal charges, Plaintiffs

stopped chalking. (Exhibit 1, ¶¶ 13, 18-19; Exhibit 2, ¶¶ 10, 15-16; Exhibit 3, ¶¶ 10, 15-16).

Plaintiffs later obtained a police report written by Officer Williamson detailing the events

of October 26, 2012. (Exhibit 1, ¶ 14; Exhibit 2, ¶ 11; Exhibit 3, ¶ 11; Exhibit 6). In a blatant

example of content-based discrimination, Officer Williamson reported that “[e]verything that

[he] could see and read was all directed towards our government and was political in nature. I

was told that if it was political that they would have to stop.” (Exhibit 6).

Officer Williamson’s report and Lt. Martinez’s comments are gravely disturbing and

illustrate the blatant content-based discrimination faced by Plaintiffs. By his very own words,

Officer Williamson enforced the law by suppressing disfavored political speech. His actions are

the very nature of content based discrimination because it appears that his actions “distinguish

favored speech from disfavored speech on the basis of the ideas or views expressed are content

based.” N. Olmsted Chamber of Commerce v. City of N. Olmsted, 86 F. Supp. 2d 755, 763 (N.D.

Ohio 2000) (quoting Broadcasting Sys. v. FCC, 512 U.S. 622, 643 (1994).

Moreover, Defendant Williams’ legal opinion is merely a pretext to conceal Defendants’

further attempts to suppress Plaintiffs’ political expression. The entire opinion consists of legal


38

contortions that attempt to encompass Plaintiffs activities. It is very telling that this enforcement

did not begin until Plaintiffs began chalking, (Exhibit 1, ¶ 8-10), and that just the night before,

Chief of Police Tobias had stated chalking on sidewalks was legal, (Exhibit 4), (though he later

alleges that he believed he was answering a question relating to the use of signs) (Exhibit 7, pg.

2, ¶ 12 – pg. 3, ¶ 15).

In what can only be seen as a desire to shut Plaintiffs out of an entire forum altogether,

Defendant Williams used his legal opinion to change the city’s law. (Exhibit 10, pgs. 10-11). In

doing so, he altered the level of culpability required to find someone liable for violating Sections

905.05 and 1337.04(a). Id. However, those changes appear virtually to apply only to Plaintiffs.

Id.

Section 501.07 of the Codified Ordinances states:

When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.

(§ 501.07).

Because neither Section 905.05 nor 1337.04 contain a required degree of culpability,

(Exhibit 11; Exhibit 12), one could argue that either strict liability or recklessness should be

applied. No matter which level of culpability is attributed to these sections, David Williams

changed the very elements of these Sections. In his legal opinion, Defendant Williams states:

Repeat violation by persons who have been informed of the requirements under circumstances suggesting purposeful disobedience warrants prosecution. If charges are filed against Mr. Gallmann or others affiliated with Occupy Defiance following delivery of this Opinion and passage of a reasonable time for the organization’s leaders to disseminate the information to the general membership, my office will prosecute the offense to conclusion.


39

(Exhibit 10, pgs. 10-11). From his own statement, Defendant Williams admits that he has changed the law. He

adds the element that one must have knowledge of the law by stating that “persons who have

been informed of the requirements under circumstances suggesting purposeful disobedience

warrants prosecution.” Id. at pg. 10. However, Defendant Williams knew precisely who would

be “informed of the requirements” of the law because he would ensure “delivery of this Opinion

[to Occupy Defiance] and passage of a reasonable time for the organization’s leaders to

disseminate the information to the general membership, [after which his] . . . office will

prosecute the offense to conclusion.” Id. at pg. 11.

A demonstration of the content-based nature of Defendant Williams’ actions is

warranted. If Occupy Defiance and local members of the VFW were each to chalk separate

messages on the sidewalk, only Occupy Defiance members would be cited. The VFW without

knowing of the chalking prohibition, according to the legal opinion, could not be prosecuted.

Unlike Occupy Defiance, the legal opinion would not have been delivered to them “for the

organization’s leaders to disseminate the information to the general membership.”

In this way, Defendant Williams’ statements and actions demonstrate “an egregious form

of content discrimination,” viewpoint discrimination. Rosenberger v. Rector & Visitors of Univ.

of Virginia, 515 U.S. 819, 829 (1995). Viewpoint discrimination exists when the specific

motivating ideology or the opinion or perspective of the speaker is the rationale for the

restriction.” Id. In a recent case, the Supreme Court of the United States reviewed a California

law that would prohibit violent video games to be sold to minors without parental consent.

Brown v. Entm't Merchants Ass'n, 131 S. Ct. 2729, 2733, (2011). The State claimed an interest in

protecting children from the harmful effects of video game violence. Id. at 2739. In striking the


40

law as a content based restriction, the Court found it “wildly underinclusive” regulation judging

the law “against its asserted justification.” Id. at 2740. “Underinclusiveness raises serious doubts

about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a

particular speaker or viewpoint.” Id.

In the case at bar, Defendants have applied city law in such a “wildly underinclusive”

fashion that is blatantly pretextual. First, the Chief of Police says it is alright for Occupy to chalk

on the sidewalk. Then, after seeing chalked political messages on the streets, the police stop and

prohibit Plaintiffs from writing more. A legal opinion is issued stating that chalked messages are

prohibited because the city has an interest in visual esthetics, business development and safety.

Yet, drawings remain permissible. Finally, the legal opinion was then “delivered” to Occupy,

and no other group, to threaten them from engaging in the conduct again. As the Court noted that

“California ha[d] singled out the purveyors of video games for disfavored treatment- at least

when compared to booksellers, cartoonists, and movie producers- and has given no persuasive

reason why.” Id. Similarly, Defendants have provided no reason as to why they permit drawn

pictures and proscribe the written word, especially after Occupy began its chalk writing

campaign.

Therefore, Defendant Williams discriminated against Plaintiffs based on the content and

viewpoint of their message. He applied the law to prohibit words and not pictures directly after

Occupy’s Chalk Walk. He also altered the prohibition against chalking so that one must have

been informed of its requirements and then delivering this knowledge directly to only one group

that could then be prosecuted: Occupy Defiance. Thus Defendants’ enforcement against written

messages on sidewalks constitute content and viewpoint based discrimination.


41

Because Defendants’ enforcement of Sections 905.05 and 1337.04 is based on the content

and viewpoint of Plaintiffs speech, the city actions receive strict scrutiny. Boos v. Barry, 485

U.S. 312, 321–22 (1988). Content-based restrictions on protected noncommercial speech receive

strict scrutiny, i.e., the government must “show that the ‘regulation is necessary to serve a

compelling state interest and that it is narrowly drawn to achieve that end.’” Id.

The City of Defiance does not have a compelling interest in protecting sidewalks from

evanescent sidewalk chalk. A government may have a compelling interest in protecting

sidewalks from permanent disfigurement (to save tax dollars, protect the safety and convenience

of public sidewalk users, etc.). However, extremely temporary, water soluble sidewalk chalk

does not make a sidewalk unusable or hinder other people’s use of the sidewalk. It does not

cause permanent, long-term, or even short-term damage that must be tended to or repaired.

Further, Defendant Williams states that rights-of-way cluttered by private signs threaten

the safety of vehicular and pedestrian traffic by drawing attention away from traffic control

devices. (Exhibit 10, pg. 7). Ohio courts have held that promoting aesthetics and traffic safety are

not compelling enough interests to justify content-based restrictions on speech. See XXL of Ohio,

Inc. v. Broadview Hts., 341 F.Supp.2d 765, 789-90 (N.D. Ohio 2004) (finding that traffic safety,

aesthetics, and the protection of property values and neighborhood character were not

compelling governmental interests to meet the strict scrutiny standard). Moreover, it is difficult

to see how words written on a sidewalk in chalk are truly distracting to drivers or pedestrians.

Defendants cannot show a compelling enough government interest to meet strict scrutiny.

Therefore, its actions in enforcing these restrictions based on the content and viewpoint of

Plaintiffs message is wholly unconstitutional and invalid.


42

3. Defendants’ Application of Sections 905.05 and 1337.04(a) Against

Plaintiffs Is Unconstitutional Because Neither Law Is Narrowly

Tailored To Serve A Significant Government Interest.

By permitting drawings of any size, shape or color and flatly prohibiting, with threat of

criminal punishment, the writing of words, names and advertisements, Sections 905.05 and

1337.04(a) cannot survive intermediate scrutiny. The disparate treatment of two actions that

cause the same result, chalk on the sidewalk, is not narrowly tailored to a significant government

interest.

The Sixth Circuit Court of Appeals following guidance from the Supreme Court has

analyzed free speech claims using a three step process. Bays v. City of Fairborn, 668 F.3d 814,

820 (6th Cir. 2012) (citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788,

797 (1985). First, the Court must look to whether a plaintiff’s conduct is protected speech. Bays,

668 F.3d at 820 (6th Cir. 2012). Second, the Court must “identify the nature of the forum.” Id.

Third, the Court must determine “whether the justifications for exclusion from the relevant

forum satisfy the requisite standard.” Saieg v. City of Dearborn, 641 F.3d 727, 735 (2011).

Looking to the first step, Plaintiffs’ fundamental right to communicate and express their

political beliefs is threatened by Section 905.05. The First Amendment to the U.S. Constitution

deprives the state of “the power to prohibit dissemination of social, economic and political

doctrine which a vast majority of its citizens believes to be false and fraught with evil

consequence.” Virginia v. Black, 538 U.S. 343, 358 (2003) (quoting Whitney v. California, 274

U.S. 357, 374 (1927) (Brandeis, J., concurring). The hallmark of the protection of free speech is

to allow “free trade in ideas”-even ideas that the overwhelming majority of people might find

distasteful or discomforting. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J.,

dissenting). Simply because Plaintiffs choose to express those ideas by writing in chalk on public

sidewalks does not lessen the protection their speech deserves.


43

Here, Plaintiffs used the public sidewalks for the most fundamental of First Amendment

protected activity, communicating political speech. (Exhibit 1, ¶ 8; Exhibit 2, ¶ 6; Exhibit 3, ¶ 6).

Comparable to the situation at hand, a federal district court in Osmar v. City of Orlando, found

that a plaintiff’s use of chalk on public sidewalks “invoke[d] . . . [the] core principles” of the

First Amendment. Osmar v. City of Orlando, No. 6:12-cv-185-Orl-DAB, 2012 WL 1252684, at

*3 (M.D. Fla. Apr. 13, 2012). Similarly, a D.C. Circuit Court found Plaintiffs’ “creation of words

or images through chalk is an expressive act. Mahoney v. Doe, 642 F.3d 1112, 1116 (D.C. Cir.

2011). And it is well settled that “the First Amendment ‘affords protection to symbolic or

expressive conduct as well as to actual speech.’” Id. (quoting Virginia v. Black, 538 U.S. 343,

358 (2003)). As in Osmar and Mahoney, Plaintiffs’ engaged in writing political messages in

chalk on the sidewalk and that conduct constitutes First Amendment protected speech.

Moving on to the second step, the Court must “identify the nature of the forum, because

the extent to which the government may limit access depends on whether the forum is public or

nonpublic.” Parks v. City of Columbus, 395 F.3d 643, 647 (6th Cir. 2005) (citing Cornelius v.

NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788 (1985)). Here, Plaintiffs used

the public sidewalks, which are “historically associated with the free exercise of expressive

activities . . . [and] are considered, without more, to be public forums.” United States v. Grace,

461 U.S. 171, 177 (1983) (internal citations omitted). Public sidewalks are a forum that have

been “held in trust for the use of the public and, time out of mind, have been used for purposes of

assembly, communicating thoughts between citizens, and discussing public questions.” Hague v.

Comm. for Indus. Org., 307 U.S. 496, 515 (1939). Indeed, public sidewalks “are quintessential

public forums for free speech.” Saieg v. City of Dearborn, 641 F.3d 727, 734 (2011) (citing Hill

v. Colorado, 530 U.S. 703, 715 (2000)).


44

As Plaintiffs seek to engage in First Amendment protected expression in a public forum,

“the applicable principle in this case is that reasonable “[t]ime, place, and manner restrictions

may be enforced . . . so long as they are content neutral, are narrowly tailored to serve a

significant government interest, and leave open ample alternative channels of communication.”

Bays v. City of Fairborn, 668 F.3d 814, 821 (6th Cir. 2012).

The Supreme Court has held that in certain contexts, municipalities can have sufficient

enough interest to warrant content neutral time, place, and manner restrictions. See Metromedia,

Inc. v. City of San Diego, 453 U.S. 490, 507-08 (1981) (plurality) (finding that maintaining

traffic safety and appearance of city are substantial government goals); Members of City Council

of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 817 (1984) (upholding a ban on

posting of signs due to visual blight). However, here the interest proffered is simply being used

as a pretext for an ulterior motive. In his legal opinion, Defendant Williams asserts Defendants’

interests in preventing individuals from writing words names or advertisements on public

sidewalks. These interests include:

maintaining the appearance of public rights-of-way[,]. . . [preventing] rights-of-way cluttered by private signs [which] threaten the safety of vehicular and pedestrian traffic by drawing attention away from traffic control devices, . . . prohibiting inappropriate signs is essential to the success of publicly funded economic development initiatives and prevention of ‘spoil[ing] the appearance of’ public lands.

(Exhibit 10, pg. 7).

Even if these interests were significant, Sections 905.05 and 1337.04(a) cannot meet the

rigors of intermediate scrutiny because they are not narrowly drawn to achieve Defendant’s

proffered interests. In fact, Sections 905.05 and 1337.04(a) are inapposite to any tailoring

whatsoever. For distinguishing between “words, names or advertisements,” (Exhibit 11), and

drawn pictures does not achieve the stated governmental interest.


45

A simple illustration in words (which if in chalk on a sidewalk in Defiance would,

according to Defendants, be prohibited) of the complete lack of tailoring of these ordinances can

be shown in the following example. Say a young artist, taken by the beauty of Dali’s works

decides to recreate one of his famous masterpieces, The Persistence of Memory, along the public

sidewalks of downtown Defiance. She draws the landscape and then adds a long clock, melting

down several blocks worth of sidewalk, chalking in it her own flair of colorful markings.

Contrast this with a young activist, who writes in chalk on public sidewalk the solitary word

“Peace.” Under Sections 905.05 and 1337.04(a), the young artist (whose now wildly colorful

artwork spans the entire length of the city) would be lauded for her inventive rendering and

vision, yet the young activist whose solitary word allegedly “defaced and disfigured” the

sidewalk would be cited for a violation of law, prosecuted and fined. In sum, drawings are fine.

Words are not.

The distinction between words and pictures is not tailored to achieve the government

interest. In Taxpayers for Vincent, the Supreme Court of the United States noted that by banning

the posting of sings on public property for esthetic reasons, “the City did no more than eliminate

the exact source of the evil it sought to remedy.” Taxpayers for Vincent, 466 U.S. at 808. Here,

the “evil” Defendants seek to cure is similar to that in Taxpayers. Yet, instead of curing the evil,

it makes an irrational distinction between “words, names and advertisements” and drawings.

Defendant Williams said as much in his legal opinion. Defendant Williams referred to a picture

in the newspaper of several young females drawing on the sidewalk.

The first and most obvious is that the children were not engaged in the same conduct and, in fact, do not appear to have violated Codified Ordinance §905.05. The Ordinance does not forbid the use of chalk on sidewalks. If [sic] forbids defacing or disfiguring those walks by painting “names”, “words” or “advertisements” on them. Occupy Defiance marked the walks with words. As depicted in the Defiance Crescent News photograph, the children did not. They


46

drew colorful pictures. Mr. Gallmann and his associates violated the ordinance. The children did not.

(Exhibit 10, pg. 7; Exhibit 9).

Even in cases where regulations on chalking have been upheld, the law banned all

chalking. See Lederman v. Giuliani, No. 98 CIV 2024, 2001 WL 902591 *6-7 (S.D.N.Y2001)

(upholding defacement law that prohibited all markings, including chalk, made on public

property) aff’d Lederman v. Rosado, 70 F. App'x 39, 40 (2nd Cir. 2003); Mahoney v. Doe, 642

F.3d 1112, 1118 (D.C. Cir. 2011) (upholding a ban on all chalking on the sidewalk in front of the

White House).

In Mahoney, the District of Columbia of Columbia Circuit Court of Appeals upheld a ban

on all chalking on the sidewalk in front of the White House. Mahoney, 642 F.3d 1112 (D.C. Cir.

2011). There, the Court looked upheld a regulation which prohibited “disfiguring, cutting,

chipping, defacing or defiling . . . and include[ed] certain expressive conduct (i.e. writing,

marking, drawing, or painting). Id. at 1118. In fact, the Court noted that:

it is the tangible medium—chalking—that creates the very problem the Defacement Statute seeks to remedy. The same was true in Taxpayers for Vincent, where the Court noted ‘the substantive evil—visual blight—is not merely a possible by-product of [posting signs], but is created by the medium of expression itself.’

Id. (quoting Taxpayers for Vincent, 466 U.S. at 810).

Here, however, Defendants failed to tailor their regulations to achieve their interest because

anyone at anytime can draw whatever they want on sidewalks, but those same individuals cannot

write a single word, name or advertisement.


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4. Section 131.03 is Unconstitutional Because It Violates the First

Amendment as An Overbroad, Vague and an Impermissible Content

Based Regulation and It Fails to Contain the Requisite Procedural

Safeguards.

a. Section 131.03 is An Overbroad, Vague and an Impermissible Content Based Regulation.

Assuming for the sake of argument that Section 1337.04(a) applies, in order for Plaintiffs

to express messages with sidewalk chalk they would be forced to submit themselves to a content-

based licensing scheme. Defendant Williams specifically stated in his legal opinion that,

“[Plaintiffs] had not applied for or been granted, a license authorizing them to make private use

of the public space. Their conduct violated Section 1337.04(a) simply because they had no

statutory authority or governmental permission to paint anything on the pavement.” (Exhibit 10,

pg. 6). Section 1337.04(a) states, “No sign shall be erected on public property or within any

public right of way except by governmental authorities in the discharge of a governmental

function or pursuant to a license to occupy the right-of-way granted in accordance with Section

131.03.” (emphasis added).6 Therefore, an analysis of Section 131.03 becomes necessary.

Section 131.03(a) states, “The City Administrator is hereby empowered to grant licenses

permitting private occupation of air-space over any lands within or beneath streets, alleys and

other municipal rights-of-way for purposes which are not inconsistent with the public use of such

lands.” On its face, Section 131.03 is blatantly unconstitutional because it grants the City

Administrator unbridled authority to grant or deny permits based on the content of a permit

applicant’s speech. The Supreme Court has held time and again that “regulations which permit

the government to discriminate on the basis of the content of a permit applicant’s message

cannot be tolerated under the First Amendment.” Forsyth County, Ga v. Nationalist Movement,

505 U.S. at 135 (1992) (internal quotes omitted); See Regan v. Time, Inc., 468 U.S. 641, 648–49

6 The application required for a Section 131.03 license is attached as Exhibit 16.


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(1984); Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 502

U.S. 105, 116 (1991); Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 230 (1987).

In Forsyth County, the Supreme Court of the United States struck down a parade permit

scheme after finding that it was unconstitutionally content based. Forsyth County v. Nationalist

Movement, 505 U.S. 123, 137 (1992). The Ordinance allowed a sliding fee scale which was

dependant on the anticipated security costs of an event. It stated, in relevant part, that the

administrator “shall adjust the amount to be paid in order to meet the expense incident to the

administration of the Ordinance and to the maintenance of public order . . . .” Id. at 131 n.9. The

Court found that the parade law allowed a government official to assess the content of the speech

of parade participants when making the decision. Id at 133-34.

In City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755–56 (1998), a

newspaper brought an action challenging a city ordinance granting the mayor authority to grant

or deny applications for annual permits to place news racks on public property. The city

ordinance at issue in the case provided: “The Mayor shall either deny the application [for a

permit], stating the reasons for such denial, or grant said permit subject to the following

terms....” Id. In ruling against the city, the Court held that the face of the ordinance itself

contained no explicit limits on the mayor's discretion, and that “To allow these illusory

‘constraints’ to constitute the standards necessary to bound a licensor's discretion renders the

guarantee against censorship little more than a high-sounding ideal.” Id. (also see Shuttlesworth

v. City of Birmingham, Ala., 394 U.S., at 150-151 (1969)). Both of these cases are remarkably

similar to the case at hand. The permit scheme in question, and ultimately struck down, in City of

Lakewood is very similar to the scheme listed in Section 131.03.


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More recently, in Parks v. Finan, 385 F.3d 694 (6th Cir. 2004), the Sixth Circuit held that

an ordinance which laid out the requirements for obtaining a permit to demonstrate on the

grounds of the Ohio state capitol gave the agency sufficient standards to apply. The Sixth

Circuit stated that “the standards ‘appropriate to the physical context of the capitol,’ ‘hazard to

the safety of the public,’ and ‘expose the state to the likelihood of [unrecoverable expenses],’ are

not so vague as to engender content-based favoritism.” Id. at 699. It further stated that

“[a]lthough these terms do require [a government official] to evaluate whether an activity

conflicts with one of these provisions, these terms provide [the official] sufficient guidance to

determine whether it would be appropriate to deny a permit, and allow for effective judicial

review.” Id. Parks is easily distinguishable from the instant case, because the ordinance at issue

in Parks at the very least contained some guidelines. The Court has clearly held that although the

standards of review need not be overly specific, there must be clear standards to apply in

determining whether to issue a permit. Forsyth County, 505 U.S. 123 (1992), City of Lakewood,

486 U.S. 750 (1998), Parks, 385 F.3d 694 (6th Cir. 2004). If none exists, the danger of content

based discrimination by the government is too great.

Section 131.03 is a content-based restriction on speech because it grants the City

Administrator unbridled discretion to grant, deny, or revoke permits based on the content of a

group’s speech. “A law [which] predicates expressive activity on the prior acquisition of a

permit… must contain narrow and precise standards to control the discretion of the permitting

authority.” Parks v. Finan, 385 F.3d 694, at 699 (6th Cir. 2004). Plaintiffs’ sidewalk chalking

activities are expressive, as chalk is the medium they choose to express their political messages.

Therefore, Section 131.03 requires standards by which the City Administrator can be guided in

making permit decisions.


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However, the only standard included in Section 131.03 is stated as, “The City

Administrator is hereby empowered to grant licenses permitting private occupation . . . for

purposes which are not inconsistent with the public use of such lands.” (§ 131.03(a)). The

extremely vague and open-ended language in no way can be considered to “control the discretion

of the permitting authority.” Parks, 385 F.3d. at 699. Like City of Lakewood and Forsyth, the

Ordinance gives no guidelines for the City Administrator to follow in deciding to grant or deny a

permit request. It simply gives the City Administrator unrestricted discretion, including the

ability to make a decision based on the content of the speech, when deciding whether to issue a

permit. Therefore, Section 131.03 is a content based permit regulation which does not contain

the requisite narrow and precise standards to control the discretion of the permitting authority. In

fact, it contains basically no guidelines at all for the permitting authority to follow.

As a content-based regulation of speech, strict scrutiny is the proper standard of review.

Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010). In order for the regulation to withstand strict

scrutiny, the government must show a compelling interest in limiting that type of speech, and the

regulation must be narrowly drawn to achieve that interest. United States v. Playboy

Entertainment Group, Inc., 529 U.S. 803, 813 (2000). However, “with rare exceptions, content

discrimination in regulations of the speech of private citizens on private property or in a

traditional public forum is presumptively impermissible, and this presumption is a very strong

one.” City of Ladue v. Gilleo, 512 U.S. 43, 59 (1994) (O'Connor, J., concurring).

b. Section 131 is Unconstitutional on Its Face Because It Fails to Contain the Requisite Procedural Safeguards.

Section 131.03 is unconstitutional under First Amendment Due for failing to contain the

required procedural safeguards for either granting or revoking a permit. In Freedman, the

Supreme Court of the United States found a film licensing scheme unconstitutional because it


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lacked specific procedural safeguards. Freedman, 380 U.S. 51 (1965). First, the Court found that

the prior restraint must provide for prompt review by the decision maker. Id. at 59. Second, there

must be a speedy judicial review of decisions made by the decision maker. Id. Third, when

dealing with a system of censorship the burden of instituting judicial proceedings and proving

that expression is unprotected on the licensor rather than the exhibitor. Id. at 58. However, . . . it

now appears that prompt judicial review and preservation of the status quo are the only

constitutionally indispensable procedural safeguards” Big Dipper Entm't, L.L.C. v. City of

Warren, 641 F.3d 715, 721 (6th Cir. 2011)

Section 131.03 is unconstitutional because it does not contain either of the first two

procedural safeguards. First, Section 131.03 fails to require that the City Administrator “issue the

license within a specified and reasonable time period.” In fact, there is no time period listed for

when the City Administrator must respond to an applicant’s request.

Second, because of the content based nature of the discretionary permitting scheme,

Section 131.03 must fail because it lacks the opportunity for an applicant to seek a speedy

judicial review. The Sixth Circuit has held that [i]f a licensing scheme involves the application of

subjective standards, rules requiring a speedy juridical decision may be necessary.’ ” S.A.

Restaurants, Inc. v. Deloney, 909 F. Supp. 2d 881, 896 (E.D. Mich. 2012) (citing 729, Inc. v.

Kenton County Fiscal Court, 515 F.3d 485, 495 (6th Cir. 2008); Compare City of Littleton v. ZJ

Gifts D-4, LLC, 541 US 774, 784 (2004) (“Where . . . the regulation simply conditions the

operation of an adult business on compliance with neutral and nondiscretionary criteria . . . and

does not seek to censor content, an adult business is not entitled to an unusually speedy judicial

decision of the Freedman type.”). Here, as previously indicated, the permitting scheme is


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standardless and provides for utterly subjective and content based granting of permits. Therefore,

it must allow for the opportunity of a speedy juridical decision.” Id.

Moreover, Section 131.03 fails to provide procedural safeguards for revocation of the

permit. “Logically, the same procedural guarantees required for license denials are required for

license revocations. E. Brooks Books, Inc. v. Shelby Cnty., Tenn., 588 F.3d 360, 369 (6th Cir.

2009). Indeed, Section 131.03(b) provides unbridled discretion to Defendants to revoke a license

and contains no safeguards for protected speech. It states “[a]ll licenses granted pursuant to the

authority of this section shall be revocable at will and without cause by the Municipality.

Because there is no time limit attached to the revocation or any mention of an appeals process or

judicial review, it is does not contain the required procedural safeguards.

B. Without a TRO/PI, Plaintiff will suffer irreparable injury because its time

sensitive speech will be censored.

Absent a temporary restraining order, Plaintiffs will suffer irreparable injury due to a

deprivation of their rights under the First and Fourteenth Amendments. It is well settled that

“[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury.” G & V Lounge, Inc., 23 F.3d at 1078-79 (1994) (citing Elrod v.

Burns, 427 U.S. 347, 373 (1976) (plurality)). In fact, the Sixth Circuit noted in Newsom v. Norris

that “[t]he Supreme Court has unequivocally admonished that even minimal infringement upon

First Amendment values constitutes irreparable injury sufficient to justify injunctive relief.”

Newsom v. Norris, 888 F.2d 371 (6th Cir. 1989); see Chabad of S. Ohio & Congregation

Lubavitch v. City of Cincinnati, 363 F.3d 427, 436 (6th Cir. 2004). Plaintiffs seek to engage in

another Chalk Walk this year on October 24, 2013, before the annual Halloween Parade, as they

believe it is their constitutional right. (DEC 18). Without a Temporary Restraining Order,


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Defendants will continue to enforce Sections 905.05 and 1337.04 unconstitutionally against

Plaintiffs, depriving them of their right to free expression.

C. A Temporary Restraining Order and Preliminary Injunction Will Not Harm

Third Parties Because Plaintiffs Can Continue to Demonstrate Peaceably

Under Alternative Permit Schemes.

In determining whether to issue a TRO courts also look at whether the issuance of a

preliminary injunction would cause substantial harm to others. Leary v. Daeschner, 228 F.3d

729, 736 (6th Cir. 2000). However, “if the plaintiff shows a substantial likelihood that the

challenged law is unconstitutional, no substantial harm to others can be said to inhere in its

enjoinment.” Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson Cnty.,

Tennessee, 274 F.3d 377, 400 (6th Cir. 2001) (citing Connection Distrib. Co. v. Reno, 154 F.3d

281, 288 (6th Cir. 1998).

In this case, a temporary restraining order and preliminary injunction will not harm third

parties. First, during last year’s Chalk Walk, no person was harmed by Plaintiffs’ activity.

(Exhibit 1, ¶ 8). Moreover, Plaintiffs did not block the sidewalks on which they wrote their

political messages. (Exhibit 1, ¶ 8). Because individuals may still use the right of way and

chalking sidewalks is harmless, no third party will be harmed.

D. Issuance of a Temporary Restraining Order and Preliminary Injunction

Serves the Public Interest by Preventing Violations of Plaintiffs’

Constitutional Rights and Permitting the Audience to Receive the Message.

It is in the public interest to enjoin the City’s enforcement of Sections 905.05 and

1337.04(a) because they are content-based restraints on First Amendment protected speech that

are being implemented by Defendants to unconstitutionally chill Plaintiffs’ speech. It is also in

the public interest in enjoin the City’s enforcement of Section 131.03 as it is an overbroad,

content-based, facially invalid permitting scheme. In G & V Lounge, 23 F.3d at 1079, the Sixth

Circuit found that “it is always in the public interest to prevent the violation of a party's


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constitutional rights.” See Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 383 (1979); Planned

Parenthood Association v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir.1987); BJS No. 2,

Inc. v. City of Troy, Ohio, 87 F.Supp.2d 800, 818 (S.D.Ohio 1999).

IV. CONCLUSION

WHEREFORE, this Honorable Court should grant Plaintiffs’ Motion for a Temporary

Restraining Order and Preliminary Injunction to enjoin Defendants from enforcing Sections

905.05, 1337.04 and 131.03.

Respectfully submitted, /s/ Drew S. Dennis Drew S. Dennis (0089752) TRIAL ATTORNEY (0072114) [email protected]

Jennifer Martinez Atzberger [email protected]

James L. Hardiman (0031043) [email protected] ACLU of Ohio, Foundation 4506 Chester Avenue Cleveland, Ohio 44103 Ph. (216) 472-2220 Fax (216) 472-2210

CERTIFICATE OF SERVICE

The foregoing Motion and Brief in Support was filed this 22nd day of October, 2013

through the Court’s Electronic Filing System. Parties will be served, and may obtain copies

electronically, through the operation of the Electronic Filing System.

/s/ Drew S. Dennis Drew S. Dennis TRIAL ATTORNEY


IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT … · 2019-02-24 · CIVIL ACTION NO....

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