Ohio Supreme Court Upholds City Curfews in Public Parks
On May 28, 2014, the Ohio Supreme Court issued a 6-1 decision in Cleveland v. McCardle, ruling that municipalities in Ohio can establish curfews in public areas. Specifically, the Court found an ordinance establishing a curfew in a public park is not a violation of the First and Fourteenth Amendments if that ordinance is content neutral, if it is narrowly tailored to advance a significant government interest, and if it allows alternative channels of speech.
Curfew in Cleveland Parks
This case involved Cleveland Codified Ordinance 559.541, which prohibited persons from remaining in Public Square between 10:00 p.m. and 5:00 a.m. without a permit. In late 2011, a group known as “Occupy Cleveland,” which emulated the Occupy Wall Street Movement, began demonstrating in Cleveland. This group demonstrated in Public Square, and continued doing so after 10:00 p.m. in violation of curfew. After being notified of the curfew, most protesters dispersed but several remained, two of whom were then arrested and charged with criminal trespass, resisting arrest, and a curfew violation under Cleveland Codified Ordinance 559.541. The two protestors filed motions to dismiss, claiming the ordinance was an unconstitutional violation of their First Amendment rights to free speech and assembly. The Cleveland Municipal Court denied the motions to dismiss, and the defendants promptly appealed.
Court of Appeals holds the ordinance to be unconstitutional
The Eight District Court of Appeals reversed the municipal court’s judgment, finding the Cleveland ordinance to have violated the protestors’ rights to free speech and assembly under the First Amendment. The Eight District found that while the ordinance was content neutral, Cleveland’s interests were insufficient to justify its limit on speech. Further, the Court of Appeals held that the ordinance was not narrowly tailored.
Ohio Supreme Court finds public park curfews can be constitutional
The Ohio Supreme Court granted certiorari and reversed the Court of Appeals decision. The Court first noted that the First Amendment does not “guarantee the right to communicate one’s views at all times and places or in any manner that may be desired,” and thus, protected speech or expressions may be “subject to reasonable time, place, and manner restrictions.” However, such restrictions generally may not be based on the content of the speech - restrictions must be “content neutral”.
When evaluating whether an ordinance that regulates speech is content neutral, the government’s purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. However, content-neutral regulation may still be unconstitutional if it does not survive intermediate scrutiny. To survive intermediate scrutiny, a regulation must meet three requirements: the regulation must be narrowly tailored, it must serve a significant government interest, and it must leave open ample alternative avenues of communication.
Ordinance must serve a significant government interest
The protestors argued that the City failed to present evidence in support of their alleged significant government interests and that the City’s stated interests were not actually furthered by the ordinance. The Court rejected this argument and found that the City’s interests were clear. Specifically, the Court found that the City aimed to safeguard public health, to protect against violence and criminal activity, to conserve city resources, and to preserve property. The next inquiry was whether this ordinance was narrowly tailored to serve the government interest.
Ordinance must be narrowly tailored
While the Eight District Court of Appeals previously held that the ordinance was not narrowly tailored and that the permit requirement served as an unreasonable ban having the purpose of eliminating peaceful speech, the Supreme Court stated that a regulation meant to serve the government’s legitimate content-neutral interests does not need to be the least restrictive or intrusive means of doing so. As long as the regulation promotes a substantial government interest that would be less effectively achieved without the regulation, the content-neutral regulation will be considered narrowly tailored. In McCardle, the Court stated that the City’s interests would not be served without this ordinance and that the ordinance was not a complete ban on speech or expression; therefore, it was narrowly tailored.
Alternative avenues of communication
The Court went on to hold that while this regulation restricts speech and expression, it left open alternative avenues of communication. A restriction on speech or expression must only leave open “reasonable” opportunities for the speaker to communicate their message. Here, the Court found that the ordinance left open a reasonable opportunity for speech as it expressly excluded dedicated streets, public sidewalks, and bus shelters within the area from the curfew restrictions. Further, the Court noted that protestors had full access to the property for 17 hours of the day.
Ultimately, the Court held that a content-neutral ordinance creating a curfew on public property that restricts speech or expression will not be overturned so long as it is reasonably crafted to serve legitimate government interests, and in doing so, allows reasonable opportunities for speakers to communicate their message.
Frost Brown Todd filed an amicus brief on behalf of the Ohio Municipal League in support of the City of Cleveland in this case.