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The Coalition to March on the RNC and Stop the War v. The City of St. Paul, Minnesota: US District Court : 1ST AMENDMENT - no preliminary injunction regarding protest march route

1
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
The Coalition to March on the RNC and
Stop the War,
Plaintiff,
v. Civil No. 08-835 (JNE/JJG)
ORDER
The City of St. Paul, Minnesota; Mayor Chris
Coleman; St. Paul Police Chief John M.
Harrington; and Assistant St. Paul Police Chief
Matthew D. Bostrom,
Defendants.
Robert Hennessey, Esq., Lindquist & Vennum PLLP; Todd Noteboom, Esq., and Timothy
Griffin, Esq., Leonard, Street and Deinard P.A.; Teresa Nelson, Esq., ACLU of Minnesota; and
Bruce Nestor, Esq., De Leon & Nestor, appeared for Plaintiff The Coalition to March on the
RNC and Stop the War.
John Kelly, Esq., James Jerskey, Esq., and Cheri Sisk, Esq., Assistant City Attorneys, Office of
the City Attorney, appeared for Defendants The City of St. Paul, Minnesota; Mayor Chris
Coleman; St. Paul Police Chief John M. Harrington; and Assistant St. Paul Police Chief Matthew
D. Bostrom.
On September 1, 2008, the Republican National Convention (RNC) begins in St. Paul,
Minnesotas capital. That day, a march organized by The Coalition to March on the RNC and
Stop the War (Coalition) will take place. As its name suggests, the Coalition is an association of
groups and individuals interested in parading within sight and sound of the Xcel Energy Center,
the site of the RNC, and expressing their opposition to the war in Iraq. On May 14, 2008, the
City of St. Paul (City) issued an alternate permit to the Coalition; the permit differs from the one
2
sought by the Coalition with regard to the parades route, start time, and end time.1 The
Coalition maintains that the permit is constitutionally infirm and now moves for a preliminary
injunction ordering the City, Mayor Chris Coleman, St. Paul Police Chief John Harrington, and
Assistant St. Paul Police Chief Matthew Bostrom (collectively, Defendants) to grant the
Coalitions amended permit application. For the reasons set forth below, the Court denies the
Coalitions motion.
I. BACKGROUND
On September 1, 2008, the opening day of the RNC, the Coalition will conduct a rally at
the State Capitol and also a parade that starts and ends at the Capitol and that comes within sight
and sound of the Xcel Energy Center. The Coalition has secured a permit for use of the
Capitols South Stairs and Upper and Lower Malls (the large, pie-shaped park area in front of the
Capitol) from 8:00 a.m. to 8:00 p.m. In its initial application, dated November 1, 2007, the
Coalition applied for a permit to march every other month from January to September 20082 on a
route that encircles the Xcel Energy Center: from the Capitol on John Ireland Boulevard to
Kellogg Boulevard; left on Kellogg to Washington Street; left on Washington to 5th Street; left
on 5th to 7th Street; left on 7th to Kellogg; right on Kellogg to John Ireland; and right on John
Ireland to the Capitol. The Coalition requested a start time of 11:00 a.m. and a finish time of
7:00 p.m. It also estimated the number of participants to be from three people to 100,000 people.
By letter dated November 21, 2007, Assistant Chief Bostrom responded to the Coalitions
permit application. With regard to the Coalitions application for a permit on September 1,
1 Under section 366A.09(a) of the City Code, [t]he chief of police, in denying an
application for a parade . . . permit, may authorize the conduct of the parade . . . at a date, time,
location, or route different from that named by the applicant.
2 No claim arising out of the Coalitions marches from January to July is before the Court.
3
Assistant Chief Bostrom noted the need for the City and the police department to engage in
extensive planning. He anticipated most of the approximately 45,000 visitors to the RNC to
travel to the Xcel Energy Center and its immediate surroundings via motorized vehicle or on
foot. As it happens, a significant portion of the Citys commercial, medical, and cultural
districts, as well as some of the Citys most heavily traveled streets and points of freeway ingress
and egress, are in the area surrounding the Xcel Energy Center. Accordingly, Assistant Chief
Bostrom asserted a compelling need for the City and the police department to engage in
extensive planning to facilitate safe and orderly movement of vehicular and pedestrian traffic
during the RNC. In addition, Assistant Chief Bostrom noted that the RNC had been designated a
National Special Security Event, triggering a requirement that the United States Secret Service
take special precautions and safety measures to secure the RNCs site and immediate
surroundings.3 He asserted the need for the police department to confer with federal, state, and
local law enforcement agencies to carry out its responsibilities for securing the area outside of
the Xcel Energy Center. In short, Assistant Chief Bostrom asserted a compelling need for the
City and the police department to engage in extensive planning to assure the safety of all who
work in, live in, or visit the City during the RNC. As the Citys and the police departments
planning had not yet progressed to a point where Assistant Chief Bostrom could make required
3 The streets of St. Paul were probably not designed with an event like a National Special
Security Event in mind. Fair or not, St. Paul has a bipartisan, nay, tripartisan reputation for being
difficult to navigate. (And why not? Where else can you progress along 5th Street and find
yourself at an intersection with 7th Street, which used to be 8th Street and becomes Fort Road?)
In 1999, Governor Jesse Ventura, the nominee in 1998 of the Reform Party of Minnesota which
is now known as the Independence Party of Minnesota, quipped on national television that
inebriates must have designed St. Pauls streets. St. Pauls mayor at the time, Norm Coleman,
who is a Republican and now a United States Senator, took exception but acknowledged that at
times its tough to get around. In a poem written long before the governors and the mayors
remarks, Garrison Keillor, an avowed Democrat, complimented the street system of Minneapolis
in contrast to that of St. Paul where there is no sense to it at all. Bill McAuliffe & Kevin
Duchschere, Venturas remarks . . . Not lost in St. Paul, Star Tribune, February 25, 1999, at A1.
4
findings under the City Code, he stated that he could neither grant nor deny the Coalitions
application as it related to the parade on September 1.
Over the next few months, the parties discussed the Coalitions permit application.
Eventually, on February 29, 2008, the police department issued guidelines regarding the issuance
of permits to conduct parades near the Xcel Energy Center and the surrounding area on
September 1. The guidelines stated that the Citys and the police departments planning had not
yet progressed to a point to allow issuance of such permits and that permits would issue at the
earliest opportunity that such planning activities allow and no later than May 31.
The day after the guidelines issuance, the police department issued a conditional
alternative permit to the Coalition. The conditional alternative permit authorized the Coalition
to conduct a parade on September 1 but did not specify the parades start time, end time, or
route.
On March 6, 2008, the Coalition attempted to appeal the conditional alternative permit,
and the City Council declined to consider the appeal as premature. The City explained that the
City Code provides for an appeal to the City Council from the denial of a permit application, that
the conditional alternative permit issued at the insistent and repeated requests of the Coalition,
and that the conditional alternative permit was not intended to serve as a permit under the Code
but rather a good faith statement of intent on the part of the Saint Paul Police Department . . . in
recognition and accommodation of the Coalitions planning demands.
Also in early March, the Coalition amended its application with regard to its parade on
September 1. The Coalition sought a step off time of 2:00 p.m. and an unknown finish time.
It estimated the number of participants to be from 30,000 to 50,000 people. The route sought did
not change.
5
Later in March, the Coalition brought this action and moved for a preliminary injunction.
The motion was scheduled to be heard on May 16, 2008. Two days before the motion hearing,
the police department issued the permit to the Coalition. On May 16, pursuant to the parties
stipulation, the Court declared the guidelines regarding issuance of parade permits for September
1 null and void, ordered Defendants to remove the guidelines from the Citys website, and
cancelled the motion hearing.
As noted above, the permit differs from the one sought by the Coalition with regard to the
parades route, start time, and end time.4 In general terms, the permit authorizes the following
parade route: from the Capitol on Cedar Street to 7th Street; right on 7th to Old 6th Street; right
on Old Sixth to 5th Street; left on 5th to 7th; left on 7th to Cedar; and left on Cedar to the
Capitol. The permits route reaches as close as 84 feet to one of the two main entrances to the
Xcel Energy Center for credentialed attendees. It also passes two of the three media work
spaces. Forty feet separate the permits route from one of the media work spaces; sixty feet
separate the route from the other media work space. As to timing, the permit sets the parades
start time at noon and end time at 4:00 p.m. The permit also requires the parade to be clear of
5th Street by 2:00 p.m.
A few days after the permits issuance, the Coalition appealed the denial of its application
to the City Council. The City Council, after a public hearing, denied the appeal. A few weeks
later, the Coalition amended its complaint and moved again for a preliminary injunction that
requires Defendants to grant its November 1 application, as amended. In its reply memorandum,
the Coalition maintained its argument for the route for which it had applied, but offered, in the
4 Solely to illustrate the route for which the Coalition applied and the permits route, the
Court reproduces on the next page a map from the Coalitions Memorandum of Law in Support
of Second Motion for Preliminary Injunction.
6
alternative, a route that combines the route for which it applied and the route in the permit. The
Coalitions combination route diverges from the one for which it applied at the intersection of
Kellogg and Washington. Instead of turning left on Washington, the Coalitions combination
route continues on Kellogg to St. Peter Street, where it turns left on St. Peter and continues to 7th
7
Street. There, the combination route turns left on 7th and follows the permits route in the
opposite direction to the Capitol.
On July 8, 2008, the undersigned toured the various routes and the interior of the Xcel
Energy Center with the Coalitions and Defendants counsel and representatives. The next day,
the Court heard argument on the Coalitions motion.
II. DISCUSSION
The Coalition asserts claims under 42 U.S.C. 1983 (2000) for alleged violations of its
rights under the First Amendment and Fourteenth Amendment. Although it raises both claims in
support of its motion, the Coalition argues primarily in terms of the First Amendment. Its
arguments related to procedural due process essentially restate those asserted in connection with
the First Amendment. Accordingly, the Court analyzes the Coalitions motion under the First
Amendment. See Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1258 n.5
(10th Cir. 2004).
To determine whether to grant a motion for a preliminary injunction, a court considers:
(1) the movants likelihood of success on the merits; (2) the threat of irreparable harm absent the
injunction; (3) the balance between this harm and the harm experienced by other parties if the
injunction issues; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d
109, 113 (8th Cir. 1981) (en banc). Under the circumstances of this case, the first factor places
the burden on the Coalition to demonstrate that it is likely to prevail on the merits. See Planned
Parenthood Minn., N.D., S.D. v. Rounds, No. 05-3093, 2008 WL 2550722, at *6-7 & n.6 (8th
Cir. June 27, 2008) (en banc); United for Peace & Justice v. City of New York, 323 F.3d 175, 178
(2d Cir. 2003) (per curiam); Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995) (per curiam).
8
The prohibition against abridging the freedom of speech in the First Amendment
applies not only to verbal expression, but also to symbolic or expressive conduct that is
sufficiently imbued with elements of communication. Robb v. Hungerbeeler, 370 F.3d 735,
744 (8th Cir. 2004) (quoting Spence v. Washington, 418 U.S. 405, 409 (1974)). As public
dramas of social relations, parades are generally expressive and fall well within the protections
of the First Amendment. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515
U.S. 557, 568-69 (1995). Since all speech inherently involves choices of what to say and what
to leave unsaid, one important manifestation of the principle of free speech is that one who
chooses to speak may also decide what not to say. Id. at 573 (quoting Pac. Gas & Elec. Co. v.
Pub. Utils. Commn of Cal., 475 U.S. 1, 11, 16 (1986)). Consistent with these principles, the
Coalition obtained a permit that allows the Coalition to communicate its message, to the
exclusion of all others, by marching through the streets of downtown St. Paul. Although the
permit assures that the Coalitions parade will pass within sight and sound of the convention site,
the Coalition objects to both the permits route and timing requirements.
In places which by long tradition or by government fiat have been devoted to assembly
and debate, the rights of the state to limit expressive activity are sharply circumscribed. Perry
Educ. Assn. v. Perry Local Educators Assn., 460 U.S. 37, 45 (1983). In quintessential public
forums, such as streets which have immemorially 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, the government cannot prohibit all
communicative activity. Id. (quoting Hague v. CIO, 307 U.S. 496, 515 (1939)). Nevertheless,
the government may enforce regulations of the time, place, and manner of expression which are
content-neutral, are narrowly tailored to serve a significant government interest, and leave open
9
ample alternative channels of communication. Id.; see Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989); Phelps-Roper v. Nixon, 509 F.3d 480, 486 (8th Cir. 2007); Bowman v. White,
444 F.3d 967, 975 (8th Cir. 2006). Thus, the First Amendment does not guarantee the right to
communicate ones views at all times and places or in any manner that may be desired. Heffron
v. Intl Socy for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981). Indeed, the Supreme
Court has emphatically reject[ed] the notion . . . that the First and Fourteenth Amendments
afford the same kind of freedom to those who would communicate ideas by conduct such as
patrolling, marching, and picketing on streets and highways, as these amendments afford to those
who communicate ideas by pure speech. Cox v. Louisiana, 379 U.S. 536, 555 (1965).
Before considering whether the permit issued to the Coalition runs afoul of the
constitutional restrictions placed on time-place-manner regulation of protected speech, the Court
notes that the Democratic and Republican parties quadrennial conventions have proven to be
fertile ground in the recent past for legal challenges based on the First Amendment. See Bl(a)ck
Tea Socy v. City of Boston, 378 F.3d 8 (1st Cir. 2004) (2004 Democratic National Convention);
Poor Peoples Econ. Human Rights Campaign v. City of St. Paul, Civ. No. 08-2427 (D. Minn.
filed June 17, 2008) (2008 Republican National Convention); ACLU of Colo. v. City of Denver,
Civ. No. 08-910 (D. Colo. filed May 1, 2008) (2008 Democratic National Convention); Natl
Council of Arab Ams. v. City of New York, 331 F. Supp. 2d 258 (S.D.N.Y. 2004) (2004
Republican National Convention); Coal. to Protest the Democratic Natl Convention v. City of
Boston, 327 F. Supp. 2d 61 (D. Mass. 2004), affd sub nom. Bl(a)ck Tea Socy v. City of Boston,
378 F.3d 8 (1st Cir. 2004); Stauber v. City of New York, Civ. No. 03-9162, 2004 WL 1593870
(S.D.N.Y. July 19, 2004) (2004 Republican National Convention); Serv. Employee Intl Union v.
10
City of Los Angeles, 114 F. Supp. 2d 966 (C.D. Cal. 2000) (2000 Democratic National
Convention).
Compared to the access afforded marchers to the sites of the recent national conventions
of the Democratic and Republican parties, the Coalition appears to have unprecedented access to
the convention site. For instance, before the 2004 Democratic National Convention, political
activists moved for a preliminary injunction to permit them to conduct parades on the public
street that abuts that conventions site on each day of the convention. Coal. to Protest the
Democratic Natl Convention, 327 F. Supp. 2d at 64. Denying the motion, the district court
declined to alter the permitted route, which allowed parades on a street, characterized as
attenuated from the conventions site, one long block away from the street on which the
activists wanted to march. Id. at 72-73. With regard to the other Republican and Democratic
national conventions in 2000 and 2004, the Court is not aware of any march that passed within
sight and sound of the conventions sites. Instead, the marches terminated at rally sites that were
much farther from the conventions sites than the mere 84 feet that separate the closest point of
the permits route from one of the entrances to the Xcel Energy Center. Cf. United for Peace &
Justice, 323 F.3d at 177 (agreeing with district courts conclusion that citys decision to ban a
march but permit a stationary rally was narrowly tailored to address assessed risks of march).
Nevertheless, the greater access afforded to the Coalition relative to marchers at other
recent political conventions is not dispositive of the issues presented here. Time-place-manner
restrictions that may be constitutionally permissible at one site and event may be held
constitutionally infirm at another site and event.5 Cf. Hill v. Colorado, 530 U.S. 703, 728 (2000)
5 Conversely, that speech occurs under a content-neutral regulation at a certain time or in a
particular place or manner does not mean that it is constitutionally mandated. See Hill v.
Colorado, 530 U.S. 703, 726 (2000) (As we have emphasized on more than one occasion, when
11
(noting necessity of accounting for the place to which regulations are applied in determining
whether they are narrowly tailored); Fla. State Conference of the NAACP v. Browning, 522 F.3d
1153, 1161 (11th Cir. 2008) (stating that judicial review of time-place-manner restrictions is
highly context-sensitive). Security measures that were usedand upheldfor one large
gathering do not thereby become the baseline for all future large gatherings. Were it otherwise, a
sort of security creep would come, by increments, to overwhelm the First Amendment.
Bearing in mind the necessity of a fact-specific inquiry as well as the substantial body of case
law that has developed with regard to the questions at hand, the Court turns to the parties
arguments regarding whether Defendants violated the First Amendment by issuing the permit
instead of granting the Coalitions application.
A. Content neutral
Although the Coalition acknowledges that the City Code is facially content neutral
insofar as it applies to permits for parades, races, and public assemblies, the Coalition contends
that Defendants did not apply the Code in a content-neutral manner in denying the Coalitions
application and issuing the permit instead. [G]overnment regulation of expressive activity is
content neutral if it is justified without reference to the content of regulated speech. Hill, 530
U.S. at 720; see Ward, 491 U.S. at 791. In Ward, the Supreme Court elaborated:
The principal inquiry in determining content neutrality, in speech cases
generally and in time, place, or manner cases in particular, is whether the
government has adopted a regulation of speech because of disagreement with the
message it conveys. The governments purpose is the controlling consideration.
A regulation that serves purposes unrelated to the content of expression is deemed
a content-neutral regulation does not entirely foreclose any means of communication, it may
satisfy the tailoring requirement even though it is not the least restrictive or least intrusive means
of serving the statutory goal.); United States v. Albertini, 472 U.S. 675, 689 (1985) (The
validity of [time, place, or manner] regulations does not turn on a judges agreement with the
responsible decisionmaker concerning the most appropriate method for promoting significant
government interests.).
12
neutral, even if it has an incidental effect on some speakers or messages but not
others. Government regulation of expressive activity is content neutral so long as
it is justified without reference to the content of the regulated speech.
491 U.S. at 791 (citations omitted) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S.
288, 293 (1984) (emphasis added)).
The Coalition first argues that Defendants delay in acting on its application belies
Defendants assertion that their decision was content neutral. The Coalition maintains that its
permit should have issued long ago such that the convention would have to have been planned
around its parade. The Court does not find the Coalitions argument persuasive. In connection
with protests at the 2002 Winter Olympics in Salt Lake City, the Tenth Circuit rejected an
argument similar to the one made here by the Coalition:
It may be convenient for applicants to have nearly a year to orchestrate their
protests and demonstrations, but they have no constitutional right to demand that
city officials make decisions affecting countless other people so long before
interrelated decisions have been made. It was reasonable for the City to work out
arrangements for the location and timing of Olympic venues, along with attendant
security and public health and safety concerns, and then to turn its attention to
applications for demonstration permits. The City acted on [an advocacy
organizations] permit roughly two and a half months before the Olympics began.
We consider that more than adequate, under the circumstances, to satisfy the
demands of the First Amendment.
Utah Animal Rights Coal., 371 F.3d at 1261. Regardless of what time limits may be contained in
a local ordinance, there is no constitutional requirement of a fixed deadline by which the
government must act under a content-neutral permit scheme. See Covenant Media of S.C., LLC
v. City of N. Charleston, 493 F.3d 421, 435 (4th Cir. 2007), cert. denied, 128 S. Ct. 914 (2008);
S. Or. Barter Fair v. Jackson County, 372 F.3d 1128, 1137-38 (9th Cir. 2004); Utah Animal
Rights Coal., 371 F.3d at 1260; Granite State Outdoor Adver., Inc. v. City of St. Petersburg, 348
F.3d 1278, 1282-83 (11th Cir. 2003). There is no evidence that Defendants disfavored or sought
13
to stifle the Coalitions message by acting on its application approximately 3.5 months before its
planned march.
The Coalition also argues that Defendants did not act in a content-neutral manner because
they failed to provide specific reasons for their denial of its application. Again, the Court
disagrees. In a letter dated May 14, 2008, from the City to the Coalition, Defendants explained
the reasons that the route in the permit differed from the one requested:
Section 366A.08 [of the City Code] requires that the [police department] explain
to you why certain portions of the route and the start time cannot be granted
exactly as requested in the Coalitions permit application. For the reasons set
forth below, this decision is narrowly-tailored to promote the [police
departments] significant interest in ensuring public safety and order, and the safe
and orderly movement of pedestrian and vehicular traffic in the area particularly
as it relates to Kellogg Boulevard, and certain portions of 5th and 7th Streets.
A few of the many compelling reasons considered by the [police
department] in reaching this decision, was the need to: (1) minimize the effect the
possible detonation of explosive devices can have on the Xcel Energy Center; (2)
reflect the geography of the area surrounding the Xcel Energy Center and the
amount of space necessary to secure the site, including the space necessary to
conduct effective and orderly magnetometer searches of each credentialed
attendee and vehicle, to evacuate the facility in case of emergency and to ensure
access by emergency vehicles; and (3) enable the safe and orderly, multipletimes-
per-day movement of approximately 45,000 credentialed persons on as
many as 300 delegate busses and hundreds of automobiles. Consequently, after
considering the best information presently known to it, the [police department]
finds pursuant to Section 366A.06 [of the City Code], that a parade conducted on
certain portions of the exact route and at the exact start time named in the permit
application:
1. Will substantially interrupt the safe and orderly movement of other
pedestrian or vehicular traffic contiguous to its route or location; and
2. Will require the diversion of so great a number of city police
officers to properly police the line of movement and the areas contiguous
thereto that the deployment of police services for the proposed parade
would have an immediate an[d] adverse effect upon the welfare and safety
of persons and property; and
3. Will, by the concentration of vehicle and persons at public
assembly points of the parade, unduly interfere with proper fire and police
protection of, or ambulance service to, areas contiguous to such parade.
14
Since it submitted its application, the Coalition received repeated assurances from
Defendants that it would receive a permit to march on September 1 within sight and sound of the
Xcel Energy Center. There is no evidence that Defendants denial of the Coalitions application
and issuance of the permit were anything but content neutral.
B. Narrowly tailored to serve significant government interest
The Coalition next asserts that Defendants denial of its application was not narrowly
tailored to serve a significant government interest. A narrowly tailored time, place, or manner
regulation of speech need not be the least restrictive means available to serve the governments
interest:
[W]e reaffirm today that a regulation of the time, place, or manner of protected
speech must be narrowly tailored to serve the governments legitimate, contentneutral
interests but that it need not be the least restrictive or least intrusive means
of doing so. Rather, the requirement of narrow tailoring is satisfied so long as
the . . . regulation promotes a substantial government interest that would be
achieved less effectively absent the regulation. To be sure, this standard does
not mean that a time, place, or manner regulation may burden substantially more
speech than is necessary to further the governments legitimate interests.
Government may not regulate expression in such a manner that a substantial
portion of the burden on speech does not serve to advance its goals. So long as
the means chosen are not substantially broader than necessary to achieve the
governments interest, however, the regulation will not be invalid simply because
a court concludes that the governments interest could be adequately served by
some less-speech-restrictive alternative. The validity of [time, place, or manner]
regulations does not turn on a judges agreement with the responsible
decisionmaker concerning the most appropriate method for promoting significant
government interests or the degree to which those interests should be promoted.
Ward, 491 U.S. at 798-800 (footnotes and citations omitted) (quoting United States v. Albertini,
472 U.S. 675, 689 (1985)); see Hill, 530 U.S. at 726 (As we have emphasized on more than one
occasion, when a content-neutral regulation does not entirely foreclose any means of
communication, it may satisfy the tailoring requirement even though it is not the least restrictive
or least intrusive means of serving the statutory goal.); Phelps-Roper, 509 F.3d at 487 (For a
statute to be narrowly tailored, it must not burden substantially more speech than necessary to
15
further the states legitimate interests.); Bowman, 444 F.3d at 980 (A regulation is narrowly
tailored when it furthers a significant government interest that would be achieved less effectively
without the regulation. The statute does not, however, need to be the least restrictive means of
regulation possible. (citation omitted)).
The Court begins by noting that the place subject to Defendants regulation is the site of
the quadrennial convention of one of the nations major political parties. See Hill, 530 U.S. at
728. Likely attendees include the President, the Vice President, members of the Cabinet, the
partys nominees for the offices of President and Vice President, members of Congress,
governors, and other government officials. Tens of thousands of people will attend the
convention. The concentration of high-ranking government officials and a substantial number of
people presents daunting security challenges. Threats to the convention that the Secret Service
must consider include terrorist attacks, lone gunmen, fire, chemical or biological attacks,
detonation of explosive devices, and suicide bombers. In addition, many groups have endorsed a
call to shut down the RNC by blockading the convention site, immobilizing delegates
transportation, and blocking bridges that connect St. Paul and Minneapolis. Defendants plainly
have a substantial interest in securing the area immediately surrounding the convention site.
Notwithstanding this substantial government interest, the Coalition seeks to encircle the
arena, marching on every route that directly abuts the convention site. Defendants denial of the
Coalitions application directly served the substantial government interest in securing the
convention site. See Cox, 379 U.S. at 554-55 (Governmental authorities have the duty and
responsibility to keep their streets open and available for movement. A group of demonstrators
could not insist upon the right to cordon off a street, or entrance to a public or private building,
and allow no one to pass who did not agree to listen to their exhortations.); Citizens for Peace in
16
Space v. City of Colo. Springs, 477 F.3d 1212, 1223 (10th Cir. 2007) (Here, the security zone
directly advanced the Citys interest in keeping explosives away from the NATO conference
because it limited access near the [conference site] to identified and screened individuals who
were less likely to pose any threat to the delegates.); Kuba v. 1-A Agric. Assn, 387 F.3d 850,
858 n.9 (9th Cir. 2004) (acknowledging governments significant interests in controlling traffic
flow at a performance venue and in protecting government officials); Bl(a)ck Tea Socy, 378
F.3d at 12 ([T]here can be no doubting the substantial government interest in the maintenance
of security at political conventions.); Weinberg v. City of Chicago, 310 F.3d 1029, 1038 (7th
Cir. 2002) (There is no doubt the City has a legitimate interest in protecting its citizens and
ensuring that its streets and sidewalks are safe for everyone. Its interest in maintaining the flow
of pedestrian traffic is intertwined with the concern for public safety. (citation omitted)); Natl
Council of Arab Ams., 331 F. Supp. 2d at 272 ([T]his Court cannot blind itself to the daunting
security concerns facing [New York City] during the [2004] Republican National Convention.);
Coal. to Protest the Democratic Natl Convention, 327 F. Supp. 2d at 77 ([I]t may be
anticipated, at this and similar national security events, that some significant portion of the
demonstrators, among those who want the closest proximity to delegates or participants, consider
assault, even battery, part of the arsenal of expression. And as a consequence, those responsible
for event safety must plan for violence.); Serv. Employee Intl Union, 114 F. Supp. 2d at 971
(acknowledging that a narrowly tailored no activity zone is constitutionally permissible in order
to ensure that delegates can enter and exit the [site of the 2000 Democratic National Convention]
safely). By preventing encirclement of the convention site, the denial of the Coalitions
application minimizes the potential for a blockade.6 It preserves a secured zone around the
6 Although Defendants do not ascribe to the Coalition the motives of those groups that seek
17
convention site that mitigates the threat posed by a variety of weapons, that provides a secure
space in case an evacuation of the arena is necessary, that provides for the delegates safe and
orderly arrival at and entrance into the arena, and that allows emergency vehicles to access the
arena.7
To preserve the Coalitions desire to parade on John Ireland and Kellogg, the Court
considered the feasibility of a combination of the route for which the Coalition applied and the
permits route. The portion of John Ireland for which the Coalition applied is a grand avenue,
framed by two of the capitals most majestic buildings: the Capitol, designed by Cass Gilbert,
and the Cathedral of St. Paul. At Kellogg, the route for which the Coalition applied turns left
and, with St. Pauls skyline in view, descends to the very front of the Xcel Energy Center.
The Court has pondered a way for the parade to proceed from some portion of that route
over to the area of 5th, Old 6th, and 7th Streets, then to 7th and Cedar, and then back to the
Capitol. If it were possible, the parades route would approximate a diamond, avoiding the turnaround
that the Coalition finds logistically objectionable.8 The arena lies, though, near
to shut down the RNC by blockading the convention site, the Coalition acknowledged at the
motion hearing that the number of participants in its march prevents it from guaranteeing that
participants will not engage in peaceful resistance by, for example, sitting in the middle of the
street.
7 Although the combined route proffered in the Coalitions reply memorandum does not
directly encircle the convention site, it marches along an entire side of the arena and occupies
routes necessary for the secured transportation system, in effect encircling an area that includes
not only the Xcel Energy Center but private businesses as well.
8 A traffic engineer retained by the Coalition submitted an affidavit in which he identified
the intersection of 7th and Cedarnot the triangular turn-aroundas the critical location for
pedestrian flow capacity. As more fully described in footnote 9, infra, the parties appear to
have resolved this potential bottleneck by agreeing to a slight alteration of the permits route.
The Court notes that the Coalition retained the permits triangular turn-around, which it
characterized as a dead-end[] in its memorandum of law, in its combination route and that the
permits triangular turn-around maximizes the Coalitions time within sight and sound of the
18
Interstates 94 and 35E, and this location compresses the available space and contributes to the
practical impediments to a parade route that would connect a John Ireland-based route with a
Cedar-based route. Some discussion of the impediments follows.
Before arriving at the arena, Kellogg passes over Interstate 35E and leaves but two
routes that directly connect to the permits route. One directly abuts the arenas glass front; it
cannot be used due to the security concerns detailed above. The other leads to the intersection of
Smith Avenue, 5th Street, Main Street, and Old 6th Street, where, to the northwest, 5th serves as
an extension of the on- and off-ramps of Interstate 94. (To the southeast of 7th, 5th is a one-way
eastbound street; to the northwest of 7th, 5th contains lanes flowing northwest that primarily
serve as on-ramps to Interstate 94 and lanes flowing southeast that essentially serve as extensions
of the off-ramp; Old 6th is a one-way street that also essentially serves as an on-ramp to
Interstate 94.) Accordingly, a route that combines the route for which the Coalition applied and
the permits route without passing directly by the arena severely restricts, if it does not entirely
eliminate, access for delegates, emergency vehicles, and the general public from, or to, both
interstates in the area of the arena. To come within sight and sound of the convention site, the
Coalition cannot use the route for which it applied without substantially compromising
significant government interests. Even if such a route were physically possible, the Court is
obligated to consider the impact on public resources, traffic flow, and security. See Million
Youth March, Inc. v. Safir, 155 F.3d 124, 126 (2d Cir. 1998) ([W]hen a federal district court
crafts an injunction to vindicate a plaintiffs protected rights, it cannot simply order whatever a
City is physically capable of doing, without regard to considerations of public health, safety,
convenience, and cost.); Natl Council of Arab Ams., 331 F. Supp. 2d at 272 ([E]ven if this
Xcel Energy Center. Defendants did not direct the Coalition to return to the Capitol on a route
that leads away from the arena on, for example, Main Street.
19
Court were to require Defendants to issue the permit, Plaintiffs would not be entitled to hold the
demonstration exactly as sought, since this Court cannot blind itself to the daunting security
concerns facing this City during the Republican National Convention.).
Turning to the parades timing, the Court notes that the Coalitions requests have varied
significantly. In its initial application, it sought a permit to march from 11:00 a.m. to 7:00 p.m.
In its amended application, it sought a permit to march starting at 2:00 p.m. and ending at an
unknown time. Based on the number of participants estimated in the Coalitions application,
30,000 to 50,000 marchers, Defendants issued the permit, which requires the Coalitions march
to begin at noon, clear 5th Street by 2:00 p.m. and end at the Capitol by 4:00 p.m. At its appeal
before the City Council, it requested four hours to conduct its parade. In support of its motion,
the Coalition asserted that the time permitted for its march is insufficient as it expects from
50,000 to 100,000 participants, and, at the motion hearing, the Coalition represented that it
needed five hours to complete its march. In response, Defendants stated their willingness to
slightly alter the route of the march to eliminate a potential bottleneck identified by the Coalition
at Cedar and 7th.9 Defendants also expressed their willingness to permit the Coalitions march to
begin at 11:00 a.m., clear 5th by 3:00 p.m., and end at the Capitol by 4:00 p.m.
According to Defendants, the Coalition needs to clear 5th Street by 2:00 p.m. (or 3:00
p.m.) so that emergency vehicles have unimpeded access to Interstate 94 while the convention is
in session. As already noted, the portion of 5th on which the Coalition marches under the permit
connects to on- and off-ramps to Interstate 94. The Coalition maintains that this restriction is not
narrowly tailored because some lanes of 5th will be open no matter when the Coalition marches
9 Instead of proceeding from the Capitol to 7th entirely on Cedar, the march would proceed
from the Capitol on Cedar to 10th Street, turn right, proceed on 10th to Wabasha Street, turn left,
proceed on Wabasha to 7th, turn right, and follow the remainder of the permits route. At the
motion hearing, the parties appeared to agree to this alteration.
20
and Defendants committed to allow the march to proceed even if there is a session in the
morning or early afternoon. The Court disagrees.
Defendants are not tasked with planning the convention; they do not know what hours the
convention will be in session. Rather, they are responsible for providing security around the
Xcel Energy Center. That Defendants are willing to accommodate the Coalitions parade on 5th
if there is a morning or early afternoon session of the convention does not eliminate the
substantial government interest in access to and from one of the two interstates in the area for
emergency vehicles. See Kuba, 387 F.3d at 858 n.9; Coal. to Protest the Democratic Natl
Convention, 327 F. Supp. 2d at 70-71. Nor does Defendants apparent ability to accommodate
the Coalitions march on part of 5th Street during a morning or early afternoon session of the
convention dictate that Defendants must do the same in the evening when, according to press
reports mentioned by the parties at the motion hearing, the President will appear at the
convention. See Ward, 491 U.S. at 798-800; Cox, 379 U.S. at 554; Browning, 522 F.3d at 1161;
Nationalist Movement v. City of Cumming, 92 F.3d 1135, 1139-40 (11th Cir. 1996).
On this record, Defendants denial of the Coalitions application and issuance of the
permit constitute a narrowly tailored restriction that serves significant government interests.
C. Ample alternatives
Finally, the Coalition contends that the permit as issued does not leave open ample
alternatives for communication of the Coalitions message. The ample alternative channels
analysis cannot be conducted in an objective vacuum, but instead it must give practical
recognition to the facts giving rise to the restriction on speech. Citizens for Peace in Space,
477 F.3d at 1226.
21
Here, despite massive security and logistical concerns inherent to the convention, the
permits route brings the Coalition within sight and sound of the convention site. The permits
route covers approximately 1,000 feet on Old 6th, 5th, and 7th between 5th and 6th. A
substantial portion of that part of the route is in plain sight of the glass-walled front of the Xcel
Energy Center. Even if security measures obscure the view of some portion of that part of the
parade route from the convention site at street level, most, if not all, of the 1,000 feet is visible
from the upper concourses of the arena. In addition to substantial visibility to the convention
site, the permit provides unprecedented proximity to the convention site. At its closest point, the
permits route passes within approximately 84 feet of one of the primary entrances to the arena.
Moreover, the permits route passes by two of the three primary media work spaces
established for the convention. In Bl(a)ck Tea Society, the First Circuit recognized that the
media may afford ample alternatives to firsthand expression at high-profile events:
At a high-profile event, such as the [2004 Democratic National] Convention,
messages expressed beyond the first-hand sight and sound of the delegates
nonetheless have a propensity to reach the delegates through television, radio, the
press, the internet, and other outlets. On this record, then, we cannot say that the
district court erred in concluding that viable alternative means existed to enable
protesters to communicate their messages to the delegates.
378 F.3d at 14; cf. Citizens for Peace in Space, 477 F.3d at 1226. Approximately 15,000
members of the media are expected to come to St. Paul to cover the 2008 RNC, and the
Coalitions parade will pass within 40 and 60 feet, respectively, of two of the three primary
spaces established for local, national, and international media outlets.
In addition to the Coalitions ability to communicate its message through its parade and
the media, the Coalition may use a public viewing area that Defendants will establish. At the
motion hearing, Defendants described the area as encompassing approximately four acres. A
substantial portion of the area will be within sight and sound of the convention site. The public
22
viewing area is also adjacent to two of the three spaces set up for local, national, and
international media. The public viewing area will be open from 7:00 a.m. to 11:00 p.m. on each
day of the convention. The City expects to place a stage with audio equipment in the public
viewing area and to make the stage available for one-hour periods on a lottery basis. Throughout
the convention, the Coalition is free to seek access to the public viewing area and the stage to
communicate its message.
The Court notes that the public viewing area described by Defendants appears to compare
favorably to those employed during recent political conventions. For example, at the 2004
Democratic National Convention in Boston, a designated protest zone occupied approximately
27,000 square feet, largely under unused rail tracks. Coal. to Protest the Democratic Natl
Convention, 327 F. Supp. 2d at 67. Two rows of concrete barriers, on which chain-link fence
stood, surrounded the zone. Id. To prevent liquids and objects from being thrown at delegates, a
tightly-woven mesh fabric that limited visibility covered the outer fence, and a looser mesh
netting hung above. Id. Razor wire, not unique to the zone, ran along the rail tracks. Id.
Despite characterizing the designated protest zone as an offense to the spirit of the First
Amendment and a grim, mean, and oppressive space that gave the impression of an
internment camp, the district court declined to alter the zone as there was no injunctive relief
available, given the constraints present at that location and the police departments safety
concerns, that could vindicate the plaintiffs First Amendment rights without causing significant
harm to the public interest. Id. at 67, 74-76. Given the constraints under which the district court
labored, the court of appeals affirmed. Bl(a)ck Tea Socy, 378 F.3d at 15.
At the 2000 Democratic National Convention, security planners established a small
protest zone 260 yards from the entrance to the convention site. Serv. Employee Intl Union, 114
23
F. Supp. 2d at 968. Granting the plaintiffs motion for a preliminary injunction, the district court
enjoined the defendants from enforcing the security zone and ordered them to reconfigure the
zone. Id. at 975. Less than two weeks later, the district court ordered pursuant to the parties
stipulation that the protest zone occupy approximately 72,000 square feet of a lot across the
street from the convention site, though the lot appears to have been substantially farther from the
convention site than the public viewing area proposed by Defendants here.10
Finally, the Coalition is not limited to the area immediately surrounding the Xcel Energy
Center to communicate its message. Subject to time-place-manner regulations, the Coalition is
free to use public spaces throughout the Twin Cities to communicate its message. See Bl(a)ck
Tea Socy, 378 F.3d at 14 (The district court perspicaciously noted that many other
opportunities for demonstrations existed in the vicinity of the Fleet Center and throughout
Boston.) Indeed, the Coalition will conduct an all-day rally in one of the most prominent public
spaces in the state, the South Stairs and the Upper and Lower Malls of the State Capitol, on the
conventions opening day. The Coalitions all-day rally, less than two miles from the convention
site, will undoubtedly be the subject of extensive media coverage.
On this record, the permit leaves open ample alternatives for the Coalition to
communicate its message. Indeed, at the motion hearing, the Coalition appeared to concede that
the permits route has at least some merit. The Coalition represented that many of its objections
to the permits route fall by the wayside so long as delegates enter the arena through the
entrance closest to the permits route. The Coalition continued, In other words, we have, we
10 According to Coalition to Protest the Democratic National Convention, after the
reconfiguration of the secured area and demonstration zone at the 2000 Democratic National
Convention in Los Angeles, protesters used slingshots to launch numerous projectiles over
security fences at delegates, the arena, and law enforcement officers. 327 F. Supp. 2d at 73.
Police responded with rubber bullets to disperse the crowd. Id.
24
have very few objections to the route as long as we know that the delegates actually will be
coming in as described. This last sentence refers to a description given during the site tour of
how Defendants envision delegates entering the arena. The Coalition asked that the Court make
the description part of its order to assure that a substantial number of delegates will use the
entrance closest to the permits route. The Court declines to order that private individuals arrive
at a certain time and use a specific door, but notes as a practical matter that delegates will have
little choice but to use the entrance closest to the permits route in substantial numbers as that
entrance is one of the two primary entrances into the arena.
The Coalition also claims that the permits required start time does not leave open ample
alternatives for communication. At the motion hearing, it asserted that the parades start time
needs to be moved to a later point in the day to allow first and foremost for members of the
Coalition to arrive from out of town. Major thoroughfares in the states capital will close for
several hours in the late morning and afternoon for the Coalitions parade. Those traveling from
afar will have to plan accordingly to timely arrive, and might not be at the head of the parade. A
parade that lasts several hours and starts a few hours earlier than requested affords ample
alternatives for the Coalition to communicate its message. See Nationalist Movement, 92 F.3d at
1140. Although the Court can imagine unconstitutional time limitations placed on parades, none
of the time requirements that have been discussed in connection with the Coalitions parade
appears constitutionally infirm.
Given the Coalitions focus on the Xcel Energy Centers points of ingress and egress, it
appears that the Coalition seeks a later start time to maximize the chances of directly confronting
delegates as they enter the arena for the conventions likely evening session. The Coalition,
however, has no constitutional right to physical access to the delegates. See Citizens for Peace in
25
Space, 477 F.3d at 1225 (The Citizens also argue that they were denied ample alternative
channels of communication because they were unable to interact with their intended audience;
namely the conference delegates and international media. We conclude, however, that the
Citizens were sufficiently able to communicate their message even though they had no close,
physical interaction with their intended audience.); Bl(a)ck Tea Socy, 378 F.3d at 14
([A]lthough the opportunity to interact directly with the body of delegates by, say, moving
among them and distributing literature, would doubtless have facilitated the demonstrators
ability to reach their intended audience, there is no constitutional requirement that demonstrators
be granted that sort of particularized access.); Coal. to Protest the Democratic Natl
Convention, 327 F. Supp. 2d at 71 (The presence of delegates, media, people who work in or
use the Bulfinch Triangle for non-DNC purposes, and curious onlookers, combined with the
heightened risk of problems arising from the fact that the convention itself will actually be in
progress, will essentially stress the public safety system to its limit. Adding a parade that
obstructs the Causeway Street sidewalk, even a small one, could easily overburden the system.);
Serv. Employee Intl Union, 114 F. Supp. 2d at 971 (acknowledging that a narrowly tailored no
activity zone is constitutionally permissible in order to ensure that delegates can enter and exit
the [site of the 2000 Democratic National Convention] safely).
Any delegate who is already in the arena will be able to see the paradethe front of the
Xcel Energy Center is, as already noted, entirely glass along 7th Street.11 Moreover, the
Coalition, like the appellants in Bl(a)ck Tea Society, appears to have greatly underestimate[d]
the nature of modern communications. 378 F.3d at 14. In other contexts, it has been noted that
11 Given the Coalitions requests for a route along Kellogg, it is worth noting that the Xcel
Energy Center itself (as opposed to the adjoining RiverCentre) presents, for the most part, a
windowless brick facade along Kellogg.
26
there is symbolic value in marching before a site even if no one is home. Coal. to Protest the
Democratic Natl Convention, 327 F. Supp. 2d at 72 (noting that protesters often picket the
White House when the President is out of town). Here, the Coalitions parade will take place on
the opening day of the RNC, on the very afternoon of a day when the President of the United
States might attend the convention. Accordingly, the precise time of the marchespecially the
time frames that have been discussedwill not materially affect the Coalitions ability to
communicate its message via the parade. As discussed above, there is no obligation on the part
of the St. Paul Police Department or the other defendants to maximize the opportunities for
physical confrontation with conventioneers as they enter or leave the arena.
In short, on the present record, the Court concludes that Defendants denial of the
Coalitions application and issuance of the permit were content neutral, were narrowly tailored to
serve significant government interests, and left open ample alternatives for communication of the
Coalitions message. The Coalition has not demonstrated that it is likely to succeed on the
merits of its First Amendment claim. The Court therefore denies the Coalitions motion. See
Planned Parenthood, 2008 WL 2550722, at *10 & n.11.
III. CONCLUSION
In closing, the Court commends the parties for what appears to date to have been
extraordinary efforts to communicate and reach accommodations satisfactory to both sides. The
Court hopes these efforts continue, as they serve the interest of all parties in a peaceful march by
the Coalition. To that end, the Court expects the parties to work together to ascertain with
greater precision the number of participants expected in the Coalitions parade and to modify the
permits timing requirements according to Defendants representations at the motion hearing, if
27
appropriate. Cf. United for Peace & Justice v. City of New York, 243 F. Supp. 2d 19, 27-29
(S.D.N.Y.), affd, 323 F.3d 175 (2d Cir. 2003) (per curiam).
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1. The Coalitions Second Motion for Preliminary Injunction [Docket No.
50] is DENIED.
Dated: July 16, 2008
s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge
 

 
 
 

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