IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA DR.

BARTOLO SPANO, CRAVEN-PAMLICO CHRISTIAN COALITION, a nonprofit organization, JERRY SCHILL, JIM BOTTCHER, PAT OCONNELL, KEN LIMMER, ARTEMIO ANEUBER, and MARY ANEUBER, Plaintiffs, vs. THE CITY OF JACKSONVILLE, SAMMY PHILLIPS, as the Mayor of Jacksonville, THE CITY COUNCIL OF JACKSONVILLE, MICHAEL G. YANIERO, in his official capacity as Jacksonville Chief of Police, and LT. SEAN MAGILL, in his official capacity as an officer of the Jacksonville Police Department, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 11-cv-00187

MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION NOW COME plaintiffs, Dr. Bartolo Spano, Craven-Pamlico Christian Coalition, Jerry Schill, Jim Bottcher, Pat OConnell, Ken Limmer, Artemio Aneuber, and Mary Aneuber, by and through their undersigned counsel, and submit this Memorandum in Support of their Motion for Temporary Restraining Order and Preliminary Injunction. INTRODUCTION Plaintiffs challenge the constitutionality of the Jacksonville Municipal Code, Article IV, Sections 23-58 et. seq. ("Parades and Public Assemblies"), as enacted and as applied. Jacksonville's scheme chills the constitutionally protected speech of anyone wishing to communicate political or religious beliefs in the City's public places. It is unconstitutional on its face because it does not exempt small groups from its reach, does not afford ample alternatives for communication, and does not contain narrow, objective, and definite standards to guide the licensing authority.
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Plaintiffs also believe the ordinance was unconstitutionally applied to them. Their small group had to secure a permit. The City issued the permit but later revoked it. Its rationale for this ad hoc revocation"concerns about public safety"appears to be a pretext. The Citys true motive seems to have been either administrative convenience restricting assembly to paved sidewalks to avoid the headache of locating public rights of way on unpaved walkwaysor to placate persons complaining about Plaintiffs speech. Either way, the City unlawfully suppressed Plaintiffs speech. STANDARD FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION This Court should grant injunctive relief to Plaintiffs because they meet all four requirements for a preliminary injunction: They are likely to succeed on the merits (Section I, infra); An infringement of free speech rights constitutes irreparable harm (Section IIA, infra); The balance of hardships tips decidedly in Plaintiffs favor because the City is not harmed at all by allowing Plaintiffs to exercise their free speech rights (Section IIB, infra); and The public interest is served by correcting infringements of constitutional rights (Section IIC, infra).

See WV Ass'n. of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir. 2009), citing Winter v. National Resources Defense Council, 555 U.S. 7, 10 (2008). The standard is the same for a temporary restraining order issued with notice to the defendants. Bieros v. Nicola, 857 F.Supp. 445, 446 (E.D. Pa. 1994). ARGUMENT I. A. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. The Burden Falls On The City To Prove The Constitutionality Of Its Ordinance And Its Actions.

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When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 816 (2000); Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 666 (2004). Ordinarily the burdens at the preliminary injunction stage track the burdens at trial. Gonzales v. O Centro Espirita, 546 U.S. 418, 429 (2006). But the burden is inverted in this constitutional challenge. This Court should grant both a temporary restraining order and preliminary injunction unless the City can show that Plaintiffs are unlikely to succeed on the merits. B. The Ordinance Is A Prior Restraint On Free Speech In A Traditional Public ForumSubject To Heightened Judicial Scrutiny. Plaintiffs desire to communicate on a public sidewalka traditional public forum that occupies "a special position in terms of First Amendment protection." Boos v. Barry, 485 U.S. 312, 318 (1988), quoting United States v. Grace, 461 U.S. 171, 180 (1983). The government's ability to restrict expressive activity in such places "is very limited." Id. at 177. Jacksonville's permit scheme is a prior restraint because it requires groups to obtain a permit before engaging in constitutionally protected speech. Cox v. City of Charleston, 416 F.3d 281, 284 (4th Cir. 2005); Shuttlesworth v. City of Birmington, 394 U.S. 147, 150-151 (1969). There is a "heavy presumption" against its constitutionality. Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). It is offensivenot only to the values protected by the First Amendment, but to the very notion of a free societythat in the context of everyday public discourse a citizen must first inform the government of her desire to speak to neighbors and then obtain a permit to do so. Watchtower Bible & Tract Soc't of NY, Inc. v. Vill. of Stratton, 536 U.S. 150, 165-66 (2002).

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As a prior restraint, Jacksonvilles Ordinance must satisfy a heightened standard to survive judicial scrutiny as a time, place, and manner regulation: It must be "narrowly tailored to serve a significant governmental interest" (Green v. City of Raleigh, 523 F.3d 293, 300 (4th Cir. 2008), citing Forsyth, supra, 505 U.S. at 130); It must "leave open ample alternatives for communication" (id.); and

It must contain "narrow, objective, and definite standards to guide the licensing authority" (id. at 131, quoting Shuttlesworth, supra, 394 U.S. at 150-151). The Ordinance fails on all points. 1. The Absence Of A Small Group Exemption Dooms The OrdinanceIt Is Not Narrowly Tailored To The City's Interest In Public Safety.

Jacksonville's Ordinance sweeps broadly. Public assembly is defined as any...gathering of more than two (2) persons for a common purpose as a result of prior planning that...occupies any public area in a place open to the general public. Sec. 2358. Even a group of three people must obtain a permit before engaging in a planned

"public assembly" in any public area of the City. Sec. 23-59. The City admittedly has an interest in protecting public safety. The permit scheme allows the City to plan for and alleviate traffic and safety impacts arising from parades and public assemblies. But the ordinance must be narrowly tailored and not "burden substantially more speech than is necessary" to further that interest. Cox, supra, 416 F.3d at 284. The regulation must "target and eliminate no more than the exact source of the 'evil' it seeks to remedy." Frisby v. Schultz, 487 U.S. 474, 485 (1988); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 808-810 (1984). Under settled Fourth Circuit precedent, the absence of a small-group exception dooms Jacksonville's permit scheme. Green v. City of Raleigh, supra, 523 F.3d at 303304. Its "unflinching application" to groups as small as three persons "renders it
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constitutionally infirm." Cox, supra, 416 F.3d at 285. Even a small group, handing out leaflets without disturbing the flow of sidewalk traffic, falls in its clutches. Id. at 286. Cox struck down an ordinance that burdened individuals and groups of any size. Id. at 285. The court explicitly rejected the City of Travelers Rests argument that a small-group exception was unnecessary because "[s]afety issues remain whether the parade or protest is large or small. Id. Like the City of Travelers Rest, Jacksonville will be hard pressed to establish "why burdening such expression is necessary to facilitate its interest in keeping its streets and sidewalks safe, orderly, and accessible. Id. at 286. As in Cox, Jacksonville's Ordinance potentially criminalizes any small gathering of persons for expressive purposes, in any public area of the City, absent the City's prior permission. It reaches a group of three persons standing in a park or on a sidewalkwhere traffic concerns are minimal. Its scope is far broader than necessary to further the City's interests in traffic control and public safety. Cox is consistent with other circuit decisions. All agree that a small group exception is necessary for an ordinance to be narrowly tailored to the government's interest in public safety: Knowles v. City of Waco, 462 F.3d 430, 436 (5th Cir. 2006) (ordinance requiring permit for demonstration by a "handful of people" is not narrowly tailored); cf. SEIW Local 5 v. Houston, 595 F.3d 588, 603 (5th Cir. 2010) (Parade Ordinance carefully distinguished and exempted small parades) Am.-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005) (schemes requiring advance notice and permits for small groups "are nearly always overly broad and lack narrow tailoring" to serve the government's interest in safety and traffic control) Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996) (doubtful that permit requirement for a group as small as ten persons is sufficiently tied to City's interest in public safety) Grossman v. City of Portland, 33 F.3d 1200, 1207 (9th Cir. 1994) (six to eight people carrying signs in a public park does not threaten public safety)
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Berger v. City of Seattle, 569 F.3d 1029, 1039 (9th Cir. 2009) (en banc) (refusing to uphold registration requirements for individual speakers or small groups in a public forum) Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1039 (9th Cir. 2006) (only a large group justifies the "unusual step" of requiring citizens to inform the government in advance of expressive activity); Long Beach Area v. City of Long Beach, 574 F.3d 1011, 1034 (9th Cir. 2009) (same) Burk v. Augusta-Richmond Cnty., 365 F.3d 1247, 1255 (11th Cir. 2004) (regulating five peaceful protesters sitting silently on the edge of a sidewalk is not the "least restrictive means" to further the City's interest in traffic control) Boardley v. U.S. Dept. of Interior, 615 F. 3d 508, 522-523 (D.C. Cir. 2010) (government failed to show that most individuals and small groups engaged in free speech would strain park resources) Community for Creative Non-Violence v.Turner, 893 F.2d 1387, 1392 (D.C.Cir.1990) (permit requirement for groups as small as two is not narrowly tailored)

Cox compels a finding that Jacksonville's Ordinance is facially unconstitutional. The Citys interest in preserving the safety on public ways does not justify the broad reach of the Ordinance to the planned gathering of any three or more persons in any public location in the City. If a permit scheme is necessary, the City "should tailor that requirement to ensure that it does not burden small gatherings posing no threat to the safety, order, and accessibility of streets and sidewalks." Cox, supra, 416 F.3d at 287. 2. The Ordinance Lacks "Ample Alternatives" For Communication That Do Not Require A Permit.

Jacksonville's comprehensive permit scheme encompasses all public spaces in the City, foreclosing the ample alternatives for communication that must be left free from regulation in order for a time, place, and manner ordinance to pass constitutional muster. Green v. City of Raleigh, supra, 523 F.3d at 300, citing Forsyth, supra, 505 U.S. at 130. Alternative channels ensure that a speaker is not totally precluded from disseminating its
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message by other non-regulated means of expression. Although the government may reasonably regulate the use of streets and parks in the interests of all its citizens, "[f]ree expression must not, in the guise of regulation, be abridged or denied." Grayned v. City of Rockford, 408 U.S. 104, 117 (1972), quoting Hague v. CIO, 307 U.S. 496, 516 (1939). "Ample alternatives" must be free from the regulatory bite of a permit requirement and must exist "within the forum in question." Heffron v. Intl Socy for Krishna Consciousness, Inc., 452 U.S. 640, 655 (1981). [O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place. Reno v. ACLU, 521 U.S. 844, 880 (1997) (quoting Schneider v. State, 308 U.S. 147, 163 (1939)). Jacksonville police officers ignored this principle when they moved Dr. Spano's group to a position where they could not be seen or heard by their intended audienceoutside the "forum in question." See also Boardley, supra, 615 F.3d at 524 (right to distribute pamphlets or engage in demonstrations on other property near the national parks failed to leave ample alternatives open); Community For Creative NonViolence v. Turner, supra, 893 F.2d at 1393 (no intra-forum alternatives available where permit scheme extended to all organized free speech activities anywhere in the WMATA forum and did not merely regulate volume, location, or duration). Similarly, Jacksonville's Ordinance provides no intra-forum alternatives free from its permit regime. It reaches all groups of three or more in all public places in the City. All non-permitted planned expressioneven by such small groupsis prohibited and criminalized. Even when an application is rejected and an alternative permit is proposed (Sec. 23-66), the alternative is not free of government regulation. A group of three or more may not engage in planned speech without a permit anywhere in the City, but must subject itself to the Ordinances prior restraint: completing an application,

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waiting for approval, then negotiating an alternative if the City denies the application. Failure to comply is punishable by jail or fine. (Sec. 23-73. "Penalties.") Coverage this extensive forecloses anylet alone amplealternatives for communication. The Ordinance falls far shortin fact, it virtually ensures that a speaker cannot communicate free of government regulation. Other cases bolster the conclusion that such a broad ordinance cannot stand. Courts have upheld ordinances that leave ample alternatives open: Frisby v. Schultz, supra, 487 U.S. at 482-83 (ordinance construed to ban focused picketing of a residence left open ample alternatives free of regulation marching through the neighborhood, proselytizing door-to-door, distributing literature); Green v. City of Raleigh, supra, 523 F.3d at 304-306 (ordinance exempted small groups and regulated only sidewalks and other public ways, leaving parks open for unregulated communication).

But in other cases, courts have not hesitated to strike down broad-reaching ordinances that foreclose alternative channels for expression: Boardley v. U.S. Dept. of Interior, supra, 615 F. 3d 508 (permit requirement imposed on all expression in national park free expression zones is unconstitutional); Community For Creative Non-Violence v. Turner, supra, 893 F.2d 1387 (permit requirement for all free speech activity near Washington subway and metro stations is unconstitutional); Amnesty Intl v. Battle, 559 F.3d 1170, 1183 (11th Cir. 2009) (permit restricted plaintiffs to an area away from desired audience and failed to provide ample alternativesthus preventing communication of their message); Burk v. Augusta-Richmond County, supra, 365 F.3d at 1259 (Barkett, J., concurring) (ordinance was overly broad because it required a permit in virtually all public places and applied to small groups posing no threat to legitimate government interests).

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Jacksonville's broad sweeping Ordinanceextending to all groups of more than two persons, in all public spacesshuts off alternate means of communication and compels a finding that it is unconstitutional. 3. The Ordinance Lacks Narrow, Objective and Definite Standards to Guide City Officials.

Jacksonville's Ordinance is "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license"and it is unconstitutional because it does not contain "narrow, objective, and definite standards" to guide City officials. Shuttlesworth, supra, 394 U.S. at 15051. A prior restraint lacking such standards: "intimidates parties into censoring their own speech" (Child Evangelism Fellowship of Md., Inc. v. Montgomery County Pub. Schs., 457 F.3d 376, 386 (4th Cir. 2006), quoting Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 757 (1988)); "renders it difficult to differentiate between a legitimate denial of access and an 'illegitimate abuse of censorial power'" (Child Evangelism, supra, 457 F.3d at 386, citing Lakewood, supra, 486 U.S. at 758); "has the potential for becoming a means of suppressing a particular point of view" (Forsyth, 505 U.S. at 130, quoting Heffron, supra, 452 U.S. at 649; see also Hague v. CIO, supra, 307 U.S. at 516); facilitates "post hoc rationalizations" and "the use of shifting or illegitimate criteria" by licensing officials (Lakewood, supra, 486 U.S. at 758); and allows officials to "arbitrarily impose de factor burdens on public speech" Green v. City of Raleigh, supra, 523 F.3d at 306.

These are intolerable risks to basic First Amendment liberties. Even in a nonpublic or limited public forum, where the government has greater leeway, officials must have sufficient criteria to prevent viewpoint discrimination. Child Evangelism Fellowship, supra, 457 F.3d at 387. Clear standards are all the more urgent in a traditional public forumlike the streets and sidewalks of Jacksonvillewhere officials must be "strictly limited in their ability to regulate private speech." Pleasant Grove City v. Summum, 129
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S. Ct. 1125, 1132 (2009); see also Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800 (1985). Definite standards protect against the "post hoc rationalizations "shifting or illegitimate criteria" (Lakewood, supra, 486 U.S. at 758) used by the City. Officials initially cited their unwritten policy restricting assemblies to paved sidewalks, then raised illegitimate concerns about public safetyillegitimate because simple measures would have eliminated any real concerns. 1. The Police Chief interprets the Ordinance to give him authority to reject a requested location if an alternative site is relatively safer. City Manager Woodruff confirmed the Chief's interpretation at the City Council Hearing. See Spano Decl., Exhibit 6, p. 5-6. In evaluating a facial challenge, this Court should consider the City's "authoritative constructions of the ordinance, including its own implementation and interpretation of it." Forsyth, supra, 505 U.S. at 131; see also Ward v. Rock Against Racism, 491 U.S. 781, 795-796 (1989); Lakewood, supra, 486 U.S. at 770 n. 11. The City's interpretation clashes with the actual language of the Ordinance, which requires issuance of a permit if the proposed assembly is not reasonably likely to cause injury to persons or property. Sec. 23-63(a)(4). Relative safety is a legitimate factor only if the requested site is reasonably likely to cause injury. The City's interpretationasserting authority to shuttle a group from its requested location to a "safer" placedrives the conclusion that "narrow, objective and definite" standards are lacking. Moreover, such broad discretion allows the City to suppress speech by moving speakers to a location where they cannot reach their intended audience. And that is exactly what happened when officers moved Spano's group around the corner to the back

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of the Clinic, where persons entering and leaving the facility could not see or hear them. Spano Decl., 9-10. 2. The Ordinance lacks standards to evaluate whether a proposed assembly is "reasonably likely to cause injury." Hazard assessment requires consideration of available control measures to reduce or contain the perceived hazard. Instead of squelching protected expression, the City could "enforce ordinances prohibiting and punishing conduct that disturbs the peace, blocks the sidewalks, or impedes the flow of traffic." Cox, supra, 416 F. at 286; see also Cox v. New Hampshire, 312 U.S. 569, 574 (1941) (protestor would not be justified in ignoring a red traffic light to announce his message); Cox v. Louisiana, 379 U.S. 559, 574 (1965) (free speech does not sanction riotous conduct that conflicts with properly drafted statutes regulating traffic safety). Besides enforcing other relevant laws, the City could employ simple, inexpensive solutionsportable signs, cones, or barriers at or near the curve to alert drivers to be cautious in rounding the curve on Memorial Drive. Jacksonville's Ordinance does not mandate consideration of other measures that would alleviate legitimate concerns about safety and trafficeither through existing laws or reasonable prophylactic measures. Without mandatory consideration of prophylactic measures and controls, the Citys safety analysis will almost certainly be flawed. The omission leaves excess discretion in the hands of City officialsdiscretion too easily exploited to stifle protected speech. 3. The City's interpretation of the Ordinance allows the Police Chief to effect an unwritten policy restricting permits to paved sidewalks. None of the twelve criteria in Section 23-63 authorizes such a policyon the contrary, "Sidewalk" is expressly defined to include any walkway open to the public, "whether or not it is paved." Sec. 23-58

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("Definitions.") But the Police Chief apparently believed that administrative convenience justified his unwritten policyit is easier to establish public rights of way on a paved sidewalk. At the City Council Hearing, the Police Chief reasoned that "weve always looked for a sidewalk, because it gives a clear area where they can stand, [and] there is no concern with the property owner." Spano Decl., Exhibit 6, p. 2. But the unwritten policy is unconstitutional: It bans speechfor no constitutionally valid reasonon unpaved sidewalks. Sidewalkspaved or notare a traditional public forum ... held in trust for the public ... for the purposes of assembling, communicating thoughts between citizens, and discussing public questions. Hague, supra, 307 U.S. at 515; see also Schneider v. State, 308 U.S. 147, 162 (1939) (government may not ban leafleting to minimize its burden in keeping the streets clean). The Police Chief's broad interpretation condemns the Ordinance. At a bare minimum, the Ordinance should provide that its twelve criteria for issuance of a permit (Sec. 23-63(a)) are exclusive. 4. The Ordinance compounds several factors that render it fatally flawed. Several features of Jacksonville's permit scheme coalesce to defeat its constitutionality. As the Fourth Circuit explained, fatal combinations compound the impact of an unconstitutional permit scheme: Douglas v. Brownell, supra, 88 F.3d at 1523-24 (5-day advance notice plus broad discretion plus limiting the small-group exemption to fewer than ten persons) Cox, supra, 416 F.3d at 284-287 (72-hour advance notice plus absence of smallgroup exemption plus discretion to deny an application) City of Dearborn, supra, 418 F.3d at 603, 608 (30-day advance notice plus absence of small-group exemption plus discretion to deny an application)

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Grossman, supra, 33 F.3d at 1204-08 (7-day advance notice plus absence of small-group exemption plus discretion to deny an application)

Green v. City of Raleigh, supra, 523 F.3d at 304-305. Jacksonville's Ordinance tracks these unconstitutional combinations: It requires a 10day advance notice (via written application) plus it lacks a small-group exemption plus it grants discretion to deny an application. In contrast, Green v. City of Raleigh illustrates the features of a constitutionally valid scheme. Although the Raleigh ordinance contained a notice requirement, it granted no discretion to city officials. Demonstrators need only notify the City of their intent to assemble"without providing advance notice, undertaking a lengthy application process, or paying fees or other costs." Green v. City of Raleigh, supra, 523 F.3d at 301. Moreover, Raleigh"historically... the site of public demonstrations" as the state capitol (id. at 304)enacted a narrowly tailored small-group exemption for groups fewer than ten persons. The Fourth Circuit underscored the smallgroup exemption mandate. Id. at 303-304. Another factor that grates against the Constitution is that Jacksonville' scheme "is the sort of system in which an individual must apply for multiple licenses over time, or periodically renew a license...." Lakewood, supra, 486 U.S. at 759. Permits for recurring assemblies are valid for ninety (90) days. Sec. 23-61(c); Spano Decl., Exhibit 1(original permit was granted for March 1 through May 15, 2011). Such "a multiple or periodic licensing requirement is sufficiently threatening to invite judicial concern." Lakewood, supra, 486 U.S. at 759. 5. The Ordinance fails to prohibit the City's police officers from roaming at will and making ad hoc decisions to move or prohibit an assembly. Dr. Spano's group was effectively silenced when officers ordered them to relocate from their permitted spot to a place where their intended audience could not see them. "[A] municipality may not
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empower its licensing officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, or parade according to their own opinions regarding the potential effect of the activity...." Shuttlesworth, supra, 349 U.S. at 153. But that is exactly what happened when Lt. Magill and another officer approached Dr. Spano and asked his group to move to an obscure location behind the Crist Clinic. Spano Decl., 9. The Ordinance is not drafted to protect against such ad hoc exercise of discretion. At the City Council Hearing, the City Attorney touted Jacksonville's Ordinance as a "best practices" ordinance issued by the Municipal Lawyers Association (circa 2003). Spano Decl., Exhibit 6, p. 7. But that does not save the Ordinancewhich lacks the constitutionally mandated standards to reign in the discretion of officials responsible for authorizing permits. The absence of language limiting City officials' discretion drives the conclusion that Jacksonville's Ordinance is facially unconstitutional. C. The Ordinance Was Unconstitutionally Applied to Plaintiffs. The vague, overly broad nature of the Ordinance opened the door for Jacksonville officials to apply it to Plaintiffs in a manner that infringed their First Amendment rights. 1. The City offered only inadequate alternative channels for Plaintiffs to communicate. The City offered Plaintiffs alternative sites after revoking their permit (Sec. 23-66), but none were within eyesight of the walk-in entrance to the abortion clinicthe very point where persons entering could see and hear Plaintiffs. The City was not sensitive to Plaintiffs' requirements (Spano Decl., 29), offering only alternatives that were not within the forum in question. Heffron, supra, 452 U.S. at 655. To be within the forum the alternative would have to allow Plaintiffs visibility near the Clinic's walk-in entrance, so their message could be communicated in an immediate,

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personal way. Waving at a vehicle farther down Memorial Drive toward Western Boulevard would lack this characteristic and thus not be within the same forum. See Boardley v. U.S. Dept. of Interior, supra, 615 F.3d at 524 (rejecting governments argument that alternatives were satisfactory because "individuals [could] distribute pamphlets or engage in permitless demonstrations on other property near the national parks). 2. Police officers made an ad hoc decision to remove Plaintiffs from their permitted location and relocate them across from the back entrance to the Clinic. The Ordinances issuing standards (Sec. 22-63) were unconstitutionally applied to Plaintiffs. The permit was initially issued on the simple condition that Plaintiffs not block the sidewalk. Spano Decl., Exhibit 1, p. 2. Plaintiffs complied. After Crist Clinic employees emerged and took pictures of Plaintiffsand presumably complained to the policetwo officers investigated, checked Plaintiffs permit, and found everything in order. Spano Decl. 8. But shortly thereafter, a second pair of officers required Plaintiffs to move to a paved sidewalkbased on their unwritten policy limiting assemblies to paved walkways. Spano Decl. 9. There was no legitimate government

interest for this forced relocation: The Citys administrative convenience pales when measured against First Amendment rights, and the Ordinance itself does not allow officials to deny or revoke a permit because of the administrative burden of locating public rights of way on unpaved sidewalks. (See Sec. 23-72, allowing revocation only "upon violation of the conditions or standards for issuance" or "public emergency.") 3. After learning that its "paved sidewalk only" policy conflicted with the Ordinance, the City shifted gears and allegedfor the first time"concerns related to public safety." When the City learned that Dr. Spano would not accept their paved

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sidewalk only policya rationale that conflicts with the actual language of the Ordinancethe City changed tactics. In his April 26 letter to Dr. Spano, Lt. Magill announced "concerns related to public safety" at Plaintiffs' desired Location "1." Spano Decl., Exhibit 3, Att. C. This questionable explanationthat vehicles driving around the Memorial Drive curve might stray off the road and injure someoneis belied by the City's failure to ever (1) restrict pedestrians from using the walkway at Location "1," or (2) implement any controls along the curve to alert driverswarning signs or cones when it addressed safety a year ago by reducing the speed limit on Memorial Drive, from 35 to 25 MPH. These omissions suggest that the City's "safety concerns" are contrived and if the City allows pedestrians to use Location 1 near the Memorial Drive curve, it cannot legitimately prohibit Plaintiffs' small group from doing so. The Citys failure to take even the most obvious precautions strongly implies that Lt. Magill and the Police Chief were committed to moving Plaintiffs away from Location 1perhaps because their message was not welcome thererather than to attempt to protect their safety at Location 1. Lt. Magill never mentioned safety concerns on April 6 when he moved Plaintiffs to Location 4. Spano Decl. 9. Public safety only became an issue three weeks later when the Police Chief revoked Plaintiffs permit. The City Council Hearing highlights the suspicious nature of the City's rationale: The City claimed that the curbing at Location 1 is low or rolling, while the curbs at Location 4 are high and vertical. But the curbs are rolling at both locations. . Spano Decl. 27. Location 1 is not on the arc of Memorial Drive around the Clinicit is well past the curve, directly across from the lower parking lot entrance and visible from the Clinics walk-in entrance. Spano Decl., 4 (arial photo). The City Manager alleged that trees near Location "1" create shade that would make it difficult for a driver rounding the curve to see persons standing on the low curband the driver might be speeding. Spano Decl., Exhibit 6, p.5. But the picketing occurred in broad daylightafter 7 a.m. And the Police Chief's photo
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of the "unapproved site" shows that the unpaved walkway at Location "1" is fully visible from the roadway. Spano Decl., Exhibit 6, p. 2; Exhibit 7 (Council Hearing Video). Moreover, it is the driver's inattention that creates the hazard that a car might stray off the roadnot whether the area is sunny or shady. The Citys approach resembles the suppression of speech that occurs when a speaker is punished for the actions of third parties. This so-called "heckler's veto" has been one of the most persistent and insidious threats to first amendment rights. Berger v. Battaglia, 779 F.2d 992, 1001 (4th Cir. 1985). Government's instinctive and understandable impulse to buy its peace to avoid all risks of public disorder by chilling speech assertedly or demonstrably offensive to some elements of the public is a recurring theme in first amendment litigation. Id. A heckler typically causes commotion in the audience, triggering a police intervention that leads to the suppression of speech under the guise of protecting the speaker and public peace. The governments proper response is to disarm the heckler not stifle the speaker. Here, the possibility of errant drivers does not justify the City's protection of Plaintiffs by forcibly moving them to a place where drivers cannot injure thembut their speech is diluted. Instead, the City's responsibility is to lower the risk so Plaintiffs' speech can continue in their chosen location. The Constitution prohibits the City from stifling speech to protect the speaker. 4. The Citys inability to articulate a legitimate safety or other rationale for revoking the permit implies it had a different, discriminatory motive. Defendants stubbornly persisted in refusing to allow Plaintiffs to assemble at Location 1 despite having no substantial reason to do so. The only plausible explanation is that Defendants chose to protect a complainantpresumably the Crist Clinicfrom the unwelcome impact of Plaintiffs speech. The Clinic understandably did not welcome the protesters. But to suppress speech on this basis discriminates against the Plaintiffs viewpointa

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classic constitutional violation. And an ordinance which grants the City discretion to discriminate is likewise unconstitutional. The danger of such boundless discretion ... is that the government may succeed in unconstitutionally suppressing particular protected speech by hiding the suppression from public scrutiny. Child Evangelism Fellowship, supra, 457 F.3d at 386. II. PLAINTIFFS MEET ALL OF THE REQUIREMENTS FOR INJUNCTIVE RELIEF. Plaintiffs have a strong likelihood of success on the meritsboth facially and as applied to them (Section I, supra). They also meet the other criteria for injunctive relief. Their challenge implicates an irreparable injuryloss of fundamental free speech rightswith little or no corresponding harm to the City if prevented from enforcing a policy that is almost certainly unconstitutional. And since the First Amendment is vital to American democracy, the public has a strong interest in protecting against a scheme that chills free speech. A. Plaintiffs Have Suffered And Will Continue To Suffer Irreparable InjuryDeprivation Of Their First Amendment Free Speech Rights.

"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976). Plaintiffs desire to resume their regular assembly at Location "1," across from the front entrance to the Crist Clinicbut they have been prohibited from assembling since the City revoked their permit and the City Council upheld the revocation. The City's actions have silenced Plaintiff's protected speech for many weeksan irreparable injury to them. B. The Balance Of Hardships Tips Decidedly In Plaintiff's Favor.

The City suffers no irreparable harm by issuance of a preliminary injunction which prevents it from enforcing [an ordinance] which . . . is likely to be found unconstitutional. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 261 (4th Cir.
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2003). Plaintiffs, on the other hand, have been deprived of fundamental First Amendment freedoms. The balance of hardships thus tips in their favor. C. Protection Of Free Speech Rights Serves The Public Interest.

The public has a compelling interest in preserving the First Amendments protection of informed public discoursea core foundation of American democracy. Surely, upholding constitutional rights serves the public interest. Id. at 261. The public is best served by "following binding Supreme Court precedent and protecting the core First Amendment right of political expression." Id., quoting Homans v. Albuquerque, 264 F.3d 1240, 1244 (10th Cir. 2001). III. THE ENTIRE PERMIT SCHEME SHOULD BE DECLARED UNENFORCEABLE UNTIL THE CITY COUNCIL ENACTS AN APPROPRIATE SMALL GROUP EXCEPTION. The Ordinance has a severability clause to preserve the scheme as a whole in the event a portion is struck down. Sec. 23-74. But a severability clause is not an "inexorable command." Dorchy v. Kansas, 264 U.S. 286, 290 (1924). The Ordinance's facial invalidity rests largely on its lack of a small group exceptiona defect which affects the ordinance as a whole. The entire permit scheme should be declared unenforceable until the City Council enacts an appropriate small group exception. That task is for the appropriate legislative body. Cox, supra, 416 F.3d at 286 (declining to announce a numerical floor below which a permit requirement cannot apply"). Courts typically refrain from "'rewrit[ing] state law to conform it to constitutional requirements' even as [they] strive to salvage it." Ayotte v. Planned Parenthood of New England, 546 U.S. 320, 329 (2006), quoting Virginia v. American Booksellers Ass'n., Inc., 484 U.S. 383, 397 (1988). Such judicial restraint preserves the separation of powers, a foundational principle of America's legal system. The relevant legislative bodyhere,

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the City Councilis the proper forum for balancing the multitude of factors to be considered in determining how to keep the streets and sidewalks of the City safe, orderly, and accessible in a manner consistent with the First Amendment. CONCLUSION For the reasons set forth in this Memorandum, plaintiffs respectfully request that this Court grant their Motion for Temporary Restraining Order and/or Preliminary Injunction and enter the relief sought there. Respectfully submitted, Thomas More Society By: _______________________ Peter C. Breen Executive Director & Legal Counsel 29 S. LaSalle, Ste 440 Chicago, IL 60603 Direct: (312) 782-1680 Fax: (312) 782-1887 Special Appearance as per Local Rule 83.1e Email: pbreen@thomasmoresociety.org By:_________________________ Thomas G. Olp Counsel for Thomas More Society 2111 Comprehensive Drive Aurora, IL 60505 Direct: (630) 692-2402 Fax: (630) 851-5040 Special Appearance as per Local Rule 83.1e Email: tolp@conwin.com Deborah Dewart, Esq. By: /s/ Deborah Dewart Deborah Dewart N.C. #30602 620 E. Sabiston Drive Swansboro, NC 28584-9674 Direct: (910) 326-4554 Fax: (877) 326-4585 Email: debcpalaw@earthlink.net

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