Higher Society of Indiana, Inc. v. Tippecanoe County

Citations: 223 F. Supp. 3d 764; 2016 U.S. Dist. LEXIS 175475; 2016 WL 7367791Docket: Cause No. 4:16-cv-43

Court: District Court, N.D. Indiana; December 18, 2016; Federal District Court

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The Higher Society of Indiana seeks to conduct a rally advocating for marijuana legalization at the Tippecanoe County Courthouse, a location significant for related prosecutions. However, the County's policy mandates that events on the courthouse grounds must be sponsored by a government department and scheduled through the Board of Commissioners. The County denied the Higher Society's request for sponsorship, leading to a lawsuit and a motion for a preliminary injunction, claiming viewpoint discrimination in violation of the First Amendment. During the hearing, the County acknowledged that its refusal was based on disagreement with the group's message, asserting that courthouse activities constitute "government speech" lacking constitutional protection, thereby allowing selective message endorsement. The judge found this interpretation of "government speech" overly broad and granted the motion for a preliminary injunction. Background details reveal that the courthouse occupies a city block in Lafayette, Indiana, with various public entrances and landscaped grounds. A 1999 policy change by the Tippecanoe County Board aimed to limit disruptive private activities on government property, designating the courthouse grounds as a "nonpublic forum" where restrictions on speech are permissible as long as viewpoint discrimination is avoided.

The revised policy governing displays and events on Tippecanoe County government property permits only those sponsored by county departments. Events must be scheduled through the Board of Commissioners and require a commissioner’s support for sponsorship. The County claims this policy aims to limit courthouse use to groups reflecting the sponsoring agency's views, yet it does not assess the content of the messages conveyed during these events, nor does it exert control over event messaging post-approval.

Since the policy change, the County has allowed private events on courthouse grounds, such as the annual Round the Fountain Art Fair, which is supported logistically by county officials. Notable County-sponsored events include a rally by the League of Women Voters for its 95th anniversary and a rally by the Fraternal Order of Police; both lacked specific messaging agreements with the County.

Additionally, some private groups have conducted events without County authorization. For instance, a candlelight vigil against bullying was held on the courthouse steps after being informed it could take place without formal approval. Attendance at such events has been reported to exceed 50 participants. Other groups have opted to hold events without prior permission, only bringing them to the County's attention afterward.

On September 28, 2015, Planned Parenthood organized a rally attended by about 60 people outside the visitors’ entrance on Columbia Street. A similar event occurred later that year, where approximately 70 individuals marched in support of Syrian refugees against Governor Pence's refugee resettlement ban. The Higher Society is seeking to hold a second rally on the Tippecanoe County Courthouse grounds, having previously held one on May 11, 2016, which drew around 40 attendees. Although a County employee had initially indicated the first rally was approved, the event faced interruptions when a commissioner ordered the amplification to cease. The County subsequently denied the Higher Society's request for a second rally without amplification, citing a lack of recommendation from the Commissioners and a 1999 ruling that designated the courthouse grounds as a “closed forum.” This refusal led to the current legal dispute, as the Higher Society seeks a preliminary injunction. The County contends that speech on the courthouse steps constitutes government speech and can be regulated without viewpoint discrimination. However, the County conceded that its denial was not viewpoint neutral, raising constitutional concerns if the grounds are deemed a nonpublic forum. The Higher Society must demonstrate a likelihood of success on the merits, irreparable harm if the injunction is denied, and the inadequacy of legal remedies to secure a preliminary injunction, which is supported by the presumption of irreparable injury from the loss of First Amendment rights.

The legal analysis in the excerpt focuses on the First Amendment implications of viewpoint discrimination by the County regarding the Higher Society's request for a second rally on the Tippecanoe County Courthouse steps. The County acknowledges its discrimination against the Higher Society's viewpoint, which constitutes a violation of First Amendment rights, negating the need for a traditional forum analysis. The discussion references the precedent set in *Summum*, where the U.S. Supreme Court determined that monuments in public parks are considered government speech, which can be regulated based on content. Similarly, in *Walker*, the Court ruled that Texas license plates were government speech and not a public forum, establishing specific criteria to distinguish government speech from private speech. These criteria include a historical pattern of government use of the forum for its messages, public interpretation of the speech as government-sponsored, and the government's control over the conveyed message. The excerpt concludes that, based on these factors, the events on the courthouse steps do not qualify as government speech since the County failed to provide evidence of a historical use of the steps for government messaging.

Prior to 1999, the courthouse stairs were utilized for expressive activities by various groups, a practice that has continued regardless of formal County approval. Observers of protests or rallies at the Tippecanoe Courthouse are unlikely to view these events as government-endorsed messages, as the presence of private groups has a long history and is not a standard governmental expression. The First Amendment protects the rights of individuals to protest on public property, independent of government approval or sentiment. 

The distinction between temporary speech (like protests) and permanent speech (like monuments) is emphasized; while observers may reasonably conclude that the government supports a monument's message due to its permanence, the same cannot be said for transient protests. Additionally, Tippecanoe County exerts minimal control over the messages conveyed on courthouse property, as evidenced by a lack of requirements regarding event content in sponsorship agreements. For instance, the County has sponsored events without reviewing or approving the specific messages communicated, allowing for the possibility that the speech may contradict the County's views. Thus, activities by private groups do not constitute government speech, as the County does not actively control or endorse the messages delivered at these events.

The sponsorship agreement between the County and various groups, including the Fraternal Order of the Police (FOP), did not grant the County the authority to review or approve the messaging for sponsored events. For instance, the FOP's 2015 memorial service on courthouse steps did not address the potential for political messaging, such as the "Blue lives matter" stance. The County has exerted even less control over events not formally sponsored; examples include an anti-bullying vigil and gatherings by Planned Parenthood and protestors against Governor Pence's policies, which occurred on courthouse property without prior permission. Although the County claims these uses were incidental and unauthorized, media reports indicate significant use of courthouse grounds during these events. The County failed to vet messages for partisanship, contrasting with established government speech cases where authorities exercised strict control over content. Consequently, the open nature of the courthouse grounds to certain groups indicates that the County cannot restrict speech based on content. The Higher Society has demonstrated a strong likelihood of success on the merits and is entitled to a preliminary injunction.

The analysis of the preliminary injunction involves balancing the potential harms to both parties and assessing the public interest. The court utilizes a sliding scale approach, indicating that a higher likelihood of the plaintiff's success reduces the need for a significant imbalance in harms. The Higher Society demonstrates a strong likelihood of success, alleviating the necessity to show that the balance of harms is heavily in its favor. The court finds that the harm to the Higher Society, stemming from the loss of First Amendment rights, constitutes irreparable injury. In contrast, the only potential harm to the opposing party is the preservation of order at the courthouse, which is deemed unlikely given the Higher Society's previous non-disruptive rallies and the county's ability to regulate events. Legal precedents affirm that reasonable time, place, and manner restrictions are constitutional if they are viewpoint neutral and allow for alternative communication methods. Additionally, protecting First Amendment rights is recognized as serving the public interest. Consequently, the court grants the motion for a preliminary injunction, prohibiting Tippecanoe County from enforcing its policy against the Higher Society's future rallies at the courthouse.