This matter comes before the Court on Plaintiffs' Amended Emergency Motion for a Preliminary Injunction and Request for Expedited Hearing (Doc. #10) filed on October 26, 2011. Plaintiffs, Occupy Fort Myers, Cindy Banyai, Stephanie Darst, Christopher Faulner, F. Frank Gubasta, Zachary Kuh, Hilary Mains, Matt McDowell, Michelle Meyer, Luis Ospina, Ryan Pogue, Frank Pratt, Marlene Robinson, and Justin Valo (collectively, "plaintiffs" or "Occupy Fort Myers"), seek to enjoin the defendant, the City of Fort Myers ("defendant" or "City"), its officers, employees, and agents, from enforcing certain provisions of the Fort Myers City Code of Ordinances and from issuing additional criminal penalties to plaintiffs based upon violations of these ordinances. Plaintiffs assert that the challenged city ordinances on their face violate plaintiffs' rights to free speech, assembly, and association under the First Amendment to the United States Constitution and/or their substantive due process rights under the Fourteenth Amendment to the United States Constitution. Plaintiffs filed a Verified Complaint (Doc. #1) which attached a number of affidavits, a Memorandum of Law (Doc. #5), and an exhibit (Doc. #30) in support of their request for a preliminary injunction.
The City opposes the preliminary injunction, filing a Response (Doc. #29), various affidavits in opposition (Docs. #23, 24, 25, 31), and exhibits (Docs. #27, 28). The Court heard oral argument on October 31, 2011. The City thereafter filed supplemental authority (Doc. #36) as requested by the Court during oral argument, and several additional exhibits (Docs. ##35, 37). Plaintiffs filed a Response (Doc. #38) to the additional filings. At the request of the Court, the City then filed a Response (Doc. #42) to one of the issues raised at oral argument.
According to the Complaint, Occupy Fort Myers ("Occupy Fort Myers" or "OFM") is an unincorporated association of individuals who have gathered in Fort Myers, Florida "to bring visibility to the influence of private money into the nation's political process" (Doc. # 1, ¶4) and "attempt to bring visibility to the insidious influence of money into the U.S. political process, and to inform members of the general public on political issues such as social justice and economic equality." (Doc. #1, ¶19). "A core purpose of [Occupy Fort Myers] is to bring awareness to the concerns about the U.S. political process and economic policy through symbolic, around-the-clock, peaceful protests referred to as 'occupations.'" (Doc. #1, ¶4.)
Prior to a planned rally, Occupy Fort Myers contacted the Fort Myers Police Department (FMPD) to inquire about obtaining a permit for the rally and march in downtown Fort Myers. Occupy Fort Myers was told it could rally and march on October 15, 2011, if it did not use a megaphone, march in the street, or include vulgar language on signs. (Id. at ¶21). As to the symbolic occupation of Centennial Park, the FMPD advised Occupy Fort Myers to contact the City's Recreation Division for a permit for overnight occupation. Occupy Fort Myers held a noon rally and march on October 15, 2011, and began "occupying" Centennial Park that evening without a permit. From October 15, 2011, through October 19, 2011, members of Occupy Fort Myers were allowed to "occupy" Centennial Park overnight without a permit. (Id. at ¶24.)
On October 18, 2011, the City provided Occupy Fort Myers with a "Special Events" pamphlet (Doc. #30) which included information and an application for a permit to remain in the City parks overnight. Occupy Fort Myers completed the permit application and submitted it to the City's Recreation Division on the same day. (Id. at ¶25.)
On October 19, 2011, the City informed Occupy Fort Myers that before its permit application could be reviewed it was necessary for it to obtain a $1 million liability insurance policy and bring the insurance certificate to the City. Occupy Fort Myers was informed that the City intended to enforce the ordinance which prohibits setting up tents and overnight camping in a park beyond closing hours if Occupy Fort Myers did not comply with the insurance requirement. Under that ordinance, city parks are open from 6:00 a.m. until 10:30 p.m. Although the City initially required insurance from Occupy Fort Myers by October 18, 2011, at 3:00 p.m., the City extended the time to comply until October 19, 2011. (Id. at ¶¶26-27.)
On October 19, 2011, Occupy Fort Myers informed the City that it could not comply with the insurance requirement. The City gave Occupy Fort Myers the names of three insurance companies and agreed to allow an additional day for Occupy Fort Myers to obtain insurance. (Id. at ¶27.) Later on October 19, Occupy Fort Myers informed the City that the three insurance companies would not provide an insurance policy, and that Occupy Fort Myers could not comply with the insurance requirement. (Id. at ¶28). In any event, Occupy Fort Myers asserts it has no funds to pay for insurance even if it was available. (Id. at ¶29). The City also informed Occupy Fort Myers that it would be required to obtain another permit and an insurance policy every ten days. (Id.)
Occupy Fort Myers asserts that there are no procedures to appeal the City's denial of their request for a waiver of insurance or the denial of the permit. (Id.)
On October 20, 2011, Occupy Fort Myers continued to negotiate with the City for a permit, but the City would neither issue a permit nor identify any procedure for requesting either waiver or appeal. (Id. at ¶30.) Accordingly, on the evening of October 20, 2011, at approximately 10:45 p.m., the FMPD began issuing citations to individuals for violating City ordinances. According to the Complaint, eleven of the twelve individual plaintiffs have received at least one $135 citation between October 20 and 22, 2011, for their involvement in "symbolic First Amendment-protected speech." (Id. at ¶¶5-16.)*fn1 The twelfth individual plaintiff, while not cited, participates and assists in OFM activities, and feels that his and others' speech rights have been hindered and chilled by the alleged unconstitutional ordinances. (Id. at ¶17.)
Plaintiffs filed a four-count Complaint (Doc. #1) pursuant to 42 U.S.C. § 1983. Count One asserts that Ordinances §§ 2-271 through 2-273 (the "Special Events Advisory Board Ordinance") and Ordinance § 58-156 (the "Park Regulations Ordinance") are unconstitutional on their face as "viewpoint discrimination" in violation of the First Amendment. Count Two asserts that the Special Events Advisory Board Ordinance, Ordinance § 86-153 (the "Parades and Processions Ordinance"), and the Park Regulation Ordinance are unconstitutionally overbroad on their face. Count Three asserts that the Park Regulation Ordinance is impermissibly vague and unconstitutional on its face. Count Four alleges that the Park Regulation Ordinance and the Parades and Processions Ordinance on their face violate plaintiffs' Fourteenth Amendment liberty interests to lounge on public benches and places "according to their inclination" and to "meet" with others in "open air" places within the City limits. Plaintiffs correctly assert the Court has jurisdiction pursuant to 28 U.S.C §§ 1331 and 1343(a), and incorrectly allege jurisdiction pursuant to 28 U.S.C. § 2201 and §2202.*fn2
A federal court has inherent authority to issue an injunction to remedy a violation of constitutional rights. Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004). "The purpose of the preliminary injunction is to preserve the positions of the parties as best we can until a trial on the merits may be held." Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011).
"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v.NRDC, 555 U.S. 7, 20 (2008). The Eleventh Circuit has described the four "well known" prerequisites for such a preliminary injunction as follows:
A district court may grant injunctive relief only if the moving party shows that: (1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.
Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc). The burden of persuasion for each of the four requirements is upon the party seeking the preliminary injunction. Siegel, 234 F.3d at 1176. These same standards apply in cases involving the First Amendment. E.g., Citizens for Police Accountability Political Comm. v. Browning, 572 F.3d 1213, 1217 (11th Cir. 2009); Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1253 n.3 (11th Cir. 2005). "[A] preliminary injunction in advance of trial is an extraordinary remedy." Bloedorn, 631 F.3d at 1229.
The overarching issue is whether plaintiffs have satisfied all four prerequisites to obtain a preliminary injunction as to any of the challenged ordinances. The Court discusses each requirement in turn.
A. Substantial Likelihood of Success on the Merits
The bulk of the arguments and issues focus on this prong of the requirements for a preliminary injunction. If an ordinance does not violate the First Amendment, plaintiffs cannot show a likelihood of success on the merits as to that ordinance. Gold Coast Publ'g, Inc. v. Corrigan, 421 F.3d 1336, 1343 (11th Cir. 1994). If plaintiffs are unable to show a substantial likelihood of success on the merits, the Court need not consider the other requirements for a preliminary injunction. Bloedorn, 631 F.3d at 1229.
(1) First Amendment Applies to Municipal Governments:
To start at the beginning, the First Amendment to the U.S. Constitution provides in pertinent part that "Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble and to petition the Government for a redress of grievances." U.S. Const. amend. I. The Supreme Court has long held that the First Amendment applies to the States through the Fourteenth Amendment. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 792 n. 2 (1984), citing Lovell v. Griffin, 303 U.S. 444, 450 (1938) ("Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action" (citing cases)). Likewise, "municipal ordinances adopted under state authority constitute state action and are within the prohibition of the [First] [A]mendment". Lovell, 303 U.S. at 450. No party disputes that the First Amendment applies to the City of Fort Myers ordinances.
(2) First Amendment Framework:
It is well settled that the First Amendment protection of speech and assembly is not absolute. Thus, while the First Amendment applies to the City's conduct, a city government "need not permit all forms of speech on property that it owns and controls." International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). A three step process is useful when assessing whether government restrictions are valid under the First Amendment: "[F]irst, determining whether the First Amendment protects the speech at issue, [second,] identifying the nature of the forum, and [third,] assessing whether the . . . justifications for restricting [ ] speech 'satisfy the requisite standard.'" Mahoney v. Doe, 642 F.3d 1112, 1116 (D.C. Cir. 2011), quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985).
(3) Is Conduct Within Protection of the First Amendment:
"As a threshold matter, we must ask whether the First Amendment protects the conduct at issue in the challenged ordinance . . . ." DA Mortg., Inc., 486 F.3d at 1265-66. Plaintiffs bear the burden of establishing that the First Amendment applies to their conduct. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984); United States v. Gilbert, 920 F.2d 878, 883 (11th Cir. 1991). "Whether certain activity or speech is protected by the first amendment is a question of law for the district court." Sykes v. McDowell, 786 F.2d 1098, 1103 (11th Cir. 1986).
"[I]t has been universally recognized that one of the primary purposes of the First Amendment is to 'protect the free discussion of governmental affairs' because the maintenance of a responsible democratic government depends upon it." Cooper v. Dillon, 403 F.3d 1208, 1214 (11th Cir. 2005), quoting Landmark Comm's., Inc., 435 U.S. 829, 838 (1978). As the Supreme Court recently stated:
Speech on matters of public concern is at the heart of the First Amendment's protection. The First Amendment reflects a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. That is because speech concerning public affairs is more than self-expression; it is the essence of self-government. Accordingly, speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.
Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011)(internal citations and punctuation omitted). "Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public." Snyder, 131 S. Ct. at 1215 (citations and internal punctuation omitted).
There is no dispute that much of the conduct by Occupy Fort Myers and its participants falls within the protection of the First Amendment. The City does not dispute that plaintiffs' efforts involving rallies, marches, distribution of literature, displaying signs and posters, and engaging in conversations regarding the topics which prompted the "occupation" are matters of public concern and are well within the protection of the First Amendment.
More problematic is the claim to First Amendment protection for what are essentially sleeping and camping activities. At oral argument, counsel for plaintiffs described the current conduct in Centennial Park as setting up 10-12 tents, with four or five people staying within the tents twenty-four hours a day and the remaining participants "rotating" in and out. The participants eat food brought in by others, but do not cook food at the location. No fixed numbers of people or fixed duration of the occupation have ever been specified, so this description appears to be inherently fluid. The City argues that this type of conduct, even if confined to that described currently, is outside the protection of the First Amendment.
Plaintiffs view their "occupation" as symbolic expression, and as such protected by the First Amendment. "[T]he First Amendment protects symbolic conduct as well as pure speech." Virginia v. Black, 538 U.S. 343, 360 n.2 (2003). Symbolic expression delivers a message by conduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative. Clark, 468 U.S. at 294. The Eleventh Circuit has found that sleeping out-of-doors is not a fundamental right per se, Joel v. City of Orlando, 232 F.3d 1353, 1357 (11th Cir. 2000), and the First Circuit has stated that "[t]he act of sleeping in a public place, absent expressive content, is not constitutionally-protected conduct." Whiting v. Westerly, 942 F.2d 18, 21 (1st Cir. 1991). Most courts have assumed, without deciding, that sleeping and/or camping could be expressive conduct under appropriate circumstances. Thus, in Clark, the Supreme Court assumed without deciding that overnight sleeping in a public park was expressive conduct protected by the First Amendment. 468 U.S. at 293. See also Gilbert, 920 F.2d at 883-84 (expressing "doubts" that sleeping was entitled to First Amendment protection, but assuming it was); Hershey v. Clearwater, 834 F.2d 937, 940 (11th Cir. 1987)(assuming that sleeping can be expressive conduct); Stone v. Agnos, 960 F.2d 893, 895 (9th Cir. 1992)("Although sleeping would seem to be the antithesis of speaking, we need not determine whether Stone's conduct was a form of expression.")*fn3
The Court finds that in the context of this case the tenting and sleeping in the park as described by plaintiffs' counsel is symbolic conduct which is protected by the First Amendment. The conduct of tenting and sleeping in the park 24 hours a day to simulate an "occupation" is intended to be communicative and in context is reasonably understood by the viewer to be communicative. This expressive conduct relates to matters of public concern because it can be fairly considered as relating to matters of political, social, or other concern to the community and is a subject of general interest and of value and concern to the public.*fn4
At oral argument, the City asserted that plaintiffs are engaging in commercial speech by soliciting donations of money, food, and supplies. Assuming this is factually correct, which seems likely, such conduct would also fall within the protection of the First Amendment, although subject to different standards. Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011); Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324, 1339-40 (2010).
Accordingly, the Court finds for purposes of the motion for a preliminary injunction that all the current conduct by plaintiffs at issue in this case is within the protection of the First Amendment. Having done so, "[t]he validity of restrictions on protected First Amendment expression depends upon the type of speech and the type of forum being regulated." Gold Coast Publ'ns, Inc., 42 F.3d at 1344; Thomas v. Howze, 348 F.App'x 474, 477 (11th Cir. 2009). The Court addresses these matters in reverse order.
(4) Is Centennial Park a Public Forum:
The second step is to determine the type of forum in which the speech is taking place. The Supreme Court has recognized a "forum based" approach for assessing the validity of ...