                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 18a0472n.06

                                           No. 17-6291


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

 JOHN MCGLONE;             JEREMY      PETERS,
                                    as )
                                                                                     FILED
                                                                               Sep 19, 2018
 individuals,                          )
                                       )                                   DEBORAH S. HUNT, Clerk
      Plaintiffs-Appellants,           )
                                       )
 v.                                    )                         ON APPEAL FROM THE
                                       )                         UNITED STATES DISTRICT
 METROPOLITAN           GOVERNMENT OF )                          COURT FOR THE MIDDLE
 NASHVILLE AND DAVIDSON COUNTY, )                                DISTRICT OF TENNESSEE
 TENNESSEE,                            )
                                       )
      Defendant-Appellee.              )


BEFORE:        BATCHELDER, MOORE, and LARSEN, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. John McGlone and Jeremy Peters were

ordered to leave a public sidewalk, or else face arrest, for preaching against homosexuality outside

of an LGBTQ pride festival in downtown Nashville. Nashville enforced this restriction against

the preachers because of the anti-homosexuality content of their speech. Because Nashville’s

action does not survive strict scrutiny, it violated McGlone and Peters’ free speech rights protected

by the First Amendment. The district court erred in finding otherwise. We REVERSE.

                                                 I.

Factual Background

       The central facts of this litigation are not in dispute. The Nashville Pride Festival (“Pride

Festival”) was held on June 26 and 27, 2015, at Public Square Park in downtown Nashville. The

stated purpose of the Pride Festival was “to celebrate the culture and community of the LGBTQ
No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


people in Nashville in a safe space.” The Pride Festival applied for and received a special events

permit. As part of its application for the permit, the Pride Festival submitted a security action plan,

which was completed by Comprehensive Security (“Comprehensive”), a private security

company, and approved by the Metropolitan Nashville Police Department (“MNPD”). The Pride

Festival provided a community-notification letter, as required by the application process, which

identified MNPD Lieutenant David Corman as the contact person for any question related to

security.

       The Pride Festival was a ticketed event with ingress and egress areas around the perimeter

of Public Square Park. The ticketed area was marked off with fencing and barricades that

controlled access, but the permitted area extended beyond the fence lines and included the area

central to this dispute—the sidewalk plaza near the fountains in front of Public Square Park.

       McGlone and Peters believe homosexuality is sinful, and they regularly preach at public

events using bullhorns and amplification equipment. Prior to the 2015 Pride Festival, Peters

emailed Lt. Corman, informing him of the preachers’ intent to spread their message outside of the

Pride Festival on Public Square Park’s sidewalks. Lt. Corman emailed back: “The organizers

secured a sidewalk lane and road closure surrounding the event site, and it would appear that you

need to conduct your activities on the other side of the road.” Testimony from Comprehensive’s

owner indicates that Lt. Corman’s email was forwarded to Comprehensive’s security officers,

putting them on notice that the preachers were to remain on the opposite side of the street.

       On June 27, 2015, McGlone and Peters, along with a number of supporters who are not

involved in this litigation, went to the sidewalks of Public Square Park to preach. The sidewalk

area was open to the public; no one had to pay to be there. A few minutes after McGlone and




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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


Peters began preaching, they were confronted by Josh Crowe, an off-duty police officer, employed

by Comprehensive as security for the festival.

           Crowe, following instructions provided by MNPD, told McGlone and Peters that they were

not allowed to be in the sidewalk area and that they would be arrested if they remained. Their

presence did not block people from queuing in line for the Pride Festival or force people to step

into traffic. Only the preachers and those affiliated with them were told to leave. Together with

their retinue, McGlone and Peters retreated to the sidewalk across the street from Public Square

Park, and from that area preached for the next four to five hours. They claim that their message,

communicated from across the street, was interfered with by “deflection” and the noise of passing

traffic.

Procedural History

           McGlone and Peters filed this action in federal court on April 14, 2016, alleging that the

Metropolitan Government of Nashville and Davidson County, Tennessee (“Nashville”), violated

their First Amendment rights to freedom of speech and the free exercise of religion by barring

them from the Public Square Park. After discovery, McGlone and Peters filed for summary

judgment, as did Nashville. The district court ruled in favor of Nashville. The preachers appealed.

                                                  II.

           We review a district court’s grant of summary judgment de novo. Farhat v. Jopke, 370

F.3d 580, 587 (6th Cir. 2004). “The court shall grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); Saieg v. City of Dearborn, 641 F.3d 727, 733 (6th Cir. 2011).




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                                                III.

       This appeal raises two issues. First, whether McGlone and Peters’ right to free speech,

protected by the First Amendment, was violated by their exclusion from Public Square Park.

Second, whether Nashville is properly subject to municipal liability in this case.

                                                A.

       McGlone and Peters’ First Amendment Claim. The right of free people to express

themselves without unjustified governmental restriction is enshrined in our First Amendment.

U. S. CONST. amend. I. (“Congress shall make no law . . . abridging the freedom of speech . . . .”).

Under the Supreme Court’s jurisprudence, the First Amendment’s protection of speech applies

against the states and their political subdivisions, such as Nashville. See Gitlow v. New York, 268

U.S. 652, 666 (1925); see also Lovell v. City of Griffin, 303 U.S. 444, 450 (1938).

       Three inquiries guide courts in ascertaining whether First Amendment free speech rights

have been violated: (1) whether the allegedly excluded speech is protected under the First

Amendment; (2) the nature of the forum in which the speech was to take place; and (3) whether

the government’s exclusion is justified under the requisite standard. See Cornelius v. NAACP

Legal Defense and Educ. Fund., 473 U.S. 788, 797 (1985); see also Saieg, 641 F.3d at 734-35.

The parties agree that the First Amendment protects McGlone and Peters’ speech and that the

sidewalk area in question is a traditional public forum. The question in this case is whether

Nashville’s exclusion of the preachers from Public Square Park can be justified under the

applicable level of constitutional scrutiny.

       We review restrictions of protected speech in a traditional public forum using one of two

standards. Saieg, 641 F.3d at 733-35. If the restriction is content based, then we apply strict

scrutiny, id. at 734, and the restriction survives only if it is “narrowly tailored to be the least-



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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


restrictive means available to serve a compelling government interest,” Bible Believers v. Wayne

Cty, 805 F.3d 228, 248 (6th Cir. 2015) (en banc). If instead the restriction is a content-neutral

regulation of the time, place, and manner of speech, then we evaluate it under an intermediate

scrutiny standard, asking whether the restriction is “narrowly tailored to serve a significant

government interest, and leave[s] open ample channels of communication.” Saieg, 641 F.3d at

735. McGlone and Peters say our scrutiny of Nashville’s actions should be strict, Nashville argues

that it should be intermediate.

         McGlone and Peters are right. Strict scrutiny applies because Nashville’s restriction of

McGlone and Peters’ speech was content based. “Government regulation of speech is content

based if a law applies to particular speech because of the topic discussed or the idea or message

expressed.” Reed v. Town of Gilbert, 135 S.Ct. 2218, 2227 (2015).1 On the other hand,

“[g]overnment regulations of speech are content neutral if they are ‘justified without reference to

the content or viewpoint of the regulated speech.’” Saieg, 641 F.3d at 735 (quoting Christian

Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 696

(2010)).

         Nashville argues that its speech restrictions were not content based because Nashville’s

reasons for excluding McGlone and Peters from the public sidewalk area were unrelated to the


         1 There is a distinction between content-based and viewpoint discrimination, but that distinction becomes
salient when the speech is restricted in a non-public forum. See Perry Educ. Assn. v. Perry Local Educators’ Assn.,
460 U.S. 36, 48-49 (1983). Viewpoint discrimination is succinctly described in Rosenberger v. Rector and Visitors
of the University of Virginia, where the Court said:
         When the government targets not subject matter, but particular views taken by speakers on a subject,
         the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an
         egregious form of content discrimination. The government must abstain from regulating speech
         when the specific motivating ideology or the opinion or perspective of the speaker is the rationale
         for the restriction.
515 U.S. 819, 829 (1995) (citations omitted). The action taken against McGlone and Peters likely falls within the
“viewpoint discrimination” subcategory of content discrimination, but in this case, because all agree that Public Square
Park is a traditional public forum, the distinction between the two is a distinction without a difference. We refer in
this opinion, therefore, only to content discrimination.

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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


content of their speech.          Nashville offers three purportedly non-content-based reasons for

excluding the preachers. First, the preachers’ message of “intolerance of homosexuality interfered

with the message of the Festival.” Second, the location of the speech “created an obstruction to

ingress and egress.” Third, the fact that McGlone and Peters’ message drew crowds created a

danger to public safety.

         The inquiry into content neutrality can begin and end with the first purpose given.

Nashville argues that the preachers’ “intolerance of homosexuality” justified restricting their

speech. At oral argument before the district court, Nashville explained why it was particularly the

content of the preachers’ speech that justified their exclusion:

         Your honor, I would disagree that [the preachers] didn’t interfere in sort of the
         general sense of the term because this is a case where you have one expressive
         message versus another expressive message. And part of Pride’s expressive
         message, as their president told us in his deposition, is to promote community, love
         and acceptance of LGBT – LGBTQ people in a safe space. And the Pride Festival
         is how we express that. It’s no longer a safe space, which is part of the expressive
         message, when you have people standing there telling them they’re going to hell,
         telling them that they’re there to judge them. I mean, they can say they’re preaching
         all they want to. It’s hate speech, which is still protected under the First
         Amendment, I guess, but let’s not pretend they’re out there just handing out leaflets,
         Your Honor. It’s not a safe space, which is part of the purpose of the festival, when
         that is in the very area where you queue.

(Emphasis added.)2 Nashville’s explanation leaves no doubt that but for the anti-homosexuality

message that McGlone and Peters were advancing as they stood on the sidewalk, they would not

have been excluded.

         How, then, can Nashville argue that its restriction of the preachers’ speech was not content

based?       Nashville argues that such discrimination is protected under Sistrunk v. City of



         2 Nashville’s “guess” is correct. Speech deemed hateful and offensive is not only still protected by the First
Amendment, it is the speech most in need of First Amendment protection. Texas v. Johnson, 491 U.S. 397, 414 (1989)
(“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea itself offensive or disagreeable.”).

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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


Strongsville, 99 F.3d 194 (6th Cir. 1996), which in turn relies on the Supreme Court’s decision in

Hurly v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995). But

those cases are simply inapposite, and Nashville’s reliance on them is misplaced. The Hurley

decision struck down a public accommodations law that forced the South Boston Allied War

Veterans Council (“Council”) to include the Irish-American Gay, Lesbian and Bisexual Group of

Boston (“GLIB”) in its St. Patrick’s Day parade. The Court reasoned that to do otherwise would

essentially “require[] [the Council] to alter the expressive content of their parade.” Hurley,

515 U.S. at 572-73. The Court held that such a result cannot be countenanced under the First

Amendment because the parade organizers “ha[ve] autonomy to choose the content of [their] own

message,” id. at 573, and “when dissemination of a view contrary to one’s own is forced upon a

speaker intimately connected with the communication advanced, the speaker’s right to autonomy

over the message is compromised,” id. at 576. The Court noted the significant risk that an observer

of the parade would mistakenly attribute GLIB’s speech to the Council. Id. at 577. Hurley

acknowledges that while the First Amendment shields “a speaker who takes to the street corner to

express his views,” it cannot be made into a sword that swings at the speech of others. Id. at 579.

GLIB’s demand to have a float in the parade would have cut into the Council’s right to speak.

       The same principle was at work in our decision in Sistrunk, where a high school student

wearing a pro-Clinton pin sought to participate in a Bush-Quayle ‘92 campaign rally. 99 F.3d at

196. We held that a requirement that participants in the rally not express pro-Clinton ‘92 messages

was justified because, per Hurley, the high school student did not have a First Amendment right

to participate in the speech of the permit holder: “To require that the organizers include buttons

and signs for Bill Clinton in the demonstration would alter the message the organizers sent to the




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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


media and other observers, even if the holders of signs and wearers of buttons did not otherwise

interfere with the pro-Bush rally.” Id. at 199.

        Sistrunk does not support Nashville’s position for two reasons. The distinction between

demanding to participate in another’s speech and demanding merely to speak is a meaningful one,

and the record here shows that McGlone and Peters sought only to do the latter. We see no risk

that those attending the festival, or even ambling past Public Square Park, would have mistaken

McGlone and Peters’ preaching for the speech of the Pride Festival. Nor did the preachers “alter

the message the [Pride Festival] sent to the media and other observers.” Id. Unlike, for example,

a MAGA-hatted man claiming a First Amendment right to stand behind Hillary Clinton at a

campaign rally, McGlone and Peters did not insist on entering the Pride Festival, let alone

participating in the Pride Festival’s speech. They stood outside and expressed a contrary message.

In doing so they were not attempting to participate in the Pride Festival’s speech.

        Second, Sistrunk concerned a permit that specifically granted the Bush-Quayle ’92

Committee exclusive use of the grounds for their members and their invitees. That is not this case.

While the area was permitted, the permit did not restrict access to the sidewalk to a special class

of people; indeed, Nashville acknowledges that “the public was not banned from this sidewalk

area.” See, e.g., Parks v. Finan, 385 F.3d 694, 698 (6th Cir. 2004).

        The district court did not cite Sistrunk or Hurley in finding in favor of Nashville. Instead,

the district court concluded that Nashville’s exclusion of McGlone and Peters was a content-

neutral regulation of the time, place, and manner of their speech. In arriving at this conclusion,

the district court found it significant that:

        Lt. Corman simply stated that Plaintiff would need to preach from across the street because
        ‘the organizers secured a sidewalk lane and road closure.’ He did not say that Plaintiffs
        needed to be across the street because they had a different viewpoint from the event
        organizers. Additionally, when Crowe first told Plaintiffs to move, he said it was because

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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


         the area was permitted. As for others not being asked to move, it is undisputed that this
         was an area for lines to form, and for people to meet others who were either going into or
         leaving the Festival.

(Citations and alterations omitted.) But the superficially content-neutral justification provided by

Lt. Corman and Crowe does not end our inquiry into whether there was content-based

discrimination. In Parks v. City of Columbus, for instance, a similar purported justification did not

survive a constitutional challenge: “When Officer Farr commanded Parks to move behind the

barricaded area, he told Parks that the event sponsor did not want him there. The City offered no

explanation as to why the sponsor wanted him removed.” 395 F.3d 643, 654 (6th Cir. 2005).

MNPD’s saying “the organizers secured a sidewalk lane and road closure” when the preachers

alone were threatened with arrest for remaining on Public Square Park’s sidewalk is as

unpersuasive here as it was in Parks.3



         3  The district court also cited Startzell v. City of Philadelphia, 533 F.3d 183 (3d Cir. 2008) to support its
holding, but its reliance on Startzell is misplaced. Startzell explicitly disclaims the precise position that Nashville
would have this court adopt: “It has been Philly Pride’s position that because it had a city permit to conduct OutFest,
it had a correlative right to exclude from the OutFest those who hold contrary, indeed antagonistic, viewpoints . . .
[a]s we make clear hereafter, that is not the holding of this opinion.” Id. at 193-94. The Startzell court went on to
hold that the police in that case were justified in enforcing OutFest’s permit by excluding protestors because, crucially,
the protestors “used bullhorns and microphones in an attempt to drown out the platform speakers . . . directly addressed
an OutFest attendee in a confrontational manner, and blocked access to the vendor booths.” Id. at 199. Here, counsel
for Nashville conceded at oral argument that “there was actually, interference not as in the sense of the Startzell case
where somebody disrupted the acts on stage.” Startzell’s facts simply do not apply in this case.
Recognizing that Startzell’s facts do not line up in salient respects with this case, the district court relied instead on an
out-of-circuit non-precedent, Marcavage v. City of Philadelphia, 481 F. App’x 742 (3d Cir. 2012), which appears to
contradict Third Circuit precedent in Starzell, as well as the precedent of this court.
Marcavage held that a permitted gay-pride festival has a right to exclude those who hold contrary and antagonistic
viewpoints even absent a significant showing that the protestors were disrupting the festival’s speech or blocking
access for festival participants in some way. The Marcavage court attempted to reconcile this holding with Startzell
with the following:
         While the disruption [the plaintiff] caused in Startzell may have been greater than here, this is merely
         a difference of degree. At each event in question Marcavage attracted agitated crowds, and during
         the Equality Forum one of his associates had a physical encounter with an event participant.
Marcavage, 481 F. App’x at 748.
Attracting agitated crowds is not a constitutionally valid reason for suppressing protected speech. Bible Believers,
805 F.3d at 252-53 (“When a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile
crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless
behavior of the rioting individuals.”) (citing Watson v. City of Memphis, 373 U.S. 526, 535-36 (1963)). Whether the

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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


         Nashville’s purportedly content-neutral reasons for excluding McGlone and Peters also fail

to persuade, and for similar reasons. Nashville conceded that McGlone and Peters did not deter or

interfere with the Pride Festival’s ability to communicate within the gated area of the festival.

Indeed, at oral argument in this appeal, Nashville’s counsel made a striking concession—that in

counsel’s view, Nashville could have properly excluded McGlone and Peters from the permitted

area merely for silently wearing anti-homosexuality t-shirts.

         Nashville’s position is not a surprise given the position it articulated at oral argument in

the court below:

         The Court: What proof’s in the record that anybody who was supportive of Pride’s
         message was deterred at all by the plaintiffs’ speech?

         [Counsel for Nashville]: I don’t think that there is any [proof] in the record that
         they were deterred, and I don’t think that that is the standard. I think –

         The Court: Is there any proof that Pride’s expressive speech was in any way
         hindered because of what the plaintiffs were saying?

         [Counsel for Nashville]: The particular words, no. I think the expressive –

         The Court: All right.

         [Counsel for Nashville]: I think the video itself shows that the expressive message
         that homosexuals should have a safe place – I think that the video is evidence that
         that was hindered.
(Emphasis added.) As this colloquy shows, the preachers did not “in any way hinder[]” the Pride

Festival’s message except by disturbing a desired “safe space” by being physically present within

the permitted area—though outside the ticketed area—and vocally disagreeing with the Pride

Festival’s message.




second piece of evidence—the “physical encounter” an associate had with an event participant—is sufficient to justify
the restriction in Marcavage is a question the panel here need not decide; there is no allegation that McGlone or Peters
physically confronted anyone.

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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


        In Parks, the plaintiff, and only the plaintiff, was excluded from a permitted event because

he peacefully engaged in speech that the event organizers disliked. 395 F.3d at 654. The Parks

court found that exclusion content based. Id. As in Parks, “the only difference between [the

preachers] and the other patrons was . . . communicat[ion of] a religious message.” See id. at 653-

54. Removal in such circumstances is “difficult to conceive” of as anything other than removal

based on “the content of [the preachers’] speech.”4 Id. at 654.

        As the record makes clear—indeed, as Nashville made explicit in the district court—

Nashville’s exclusion of McGlone and Peters was a content-based restriction of speech in a

traditional public forum. Strict scrutiny, then, is the proper standard for our review. Bible

Believers, 805 F.3d at 248.

Applying Strict Scrutiny

        “No state action that limits protected speech will survive strict scrutiny unless the

restriction is narrowly tailored to be the least-restrictive means available to serve a compelling

government interest.” Id. It is Nashville’s burden to meet that test. Reed, 135 S. Ct. at 2231.

        Nashville excluded McGlone and Peters from a traditional public forum for expressing a

message opposed to homosexuality and Nashville provides no compelling reason for doing so.

Indeed, Nashville does not even argue that its restriction of McGlone and Peters’ speech could



        4  The dissent argues that McGlone and Peters’ use of bullhorns was sufficiently disruptive to the Pride
Festival’s permitted activities that Nashville could exclude McGlone and Peters from Public Square Park without
engaging in a content-based restriction. Dissenting Opinion, at 11-12.
The record simply does not support the conclusion that the preachers’ use of amplification equipment meaningfully
interfered with the Pride Festival’s permitted activities—a point seemingly acknowledged by both parties to this
litigation as well as the district court. At a minimum, Nashville did not meet its burden of showing that no genuine
dispute exists as to whether the preachers’ conduct interfered with the Pride Festival’s permitted activities.
The only way to conclude otherwise on this record is to agree with the approach Nashville advocates: that the mere
presence of individuals communicating a message, whether silently or not, contrary to the message of the Pride
Festival constitutes interference with the Pride Festival’s expressive message. The dissent appears to concur in our
rejection of that position, but instead finds what we cannot—that there is no genuine dispute as to whether McGlone
and Peters’ use of bullhorns interfered with the Pride Festival’s permitted activities.

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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


survive strict scrutiny review. We therefore end our inquiry here. See Parks, 395 F.3d at 654

(“[B]ecause the City has not offered an interest, let alone a compelling one, to explain why it

prohibited Parks from exercising his First Amendment rights in a traditional public forum . . . we

need not reach the second prong of our strict scrutiny analysis.”). The restriction of McGlone and

Peters’ speech violated the First Amendment.

                                                 B.

       Nashville’s municipal liability. The district court’s opinion contained a footnote holding

that “[t]o complete the record and for purposes of any appeal,” it rejected Nashville’s argument

that it was not subject to municipal liability. Nashville argues that this was error.

       Local governmental units can be held liable only when “action pursuant to official

municipal policy of some nature causes a constitutional tort.” Monell v. Dept. of Soc. Servs.,

436 U.S. 658, 691 (1978). The district court found that requirement satisfied on the grounds that

“[n]ot only did Lt. Corman, acting on behalf of Metro, inform Plaintiffs via email that they had to

preach from across the street, Comprehensive was advised of the email and it was distributed to

security officers by Poteete. Moreover, the security plan was approved by [Nashville]. . . .”

       We agree with the district court. As this Court held in Bible Believers, “with respect to a

single decision, municipal liability is appropriate ‘where the decisionmaker possesses final

authority to establish policy with respect to the action ordered.’” 805 F.3d at 260 (citation

omitted). In that case, Wayne County was held liable because its counsel drafted a letter to the

Bible Believers preemptively sanctioning the decision of the police to remove the Bible Believers

from the public forum. Id.

       The question here is whether Lt. Corman, like the Wayne County counsel, possessed “final

authority” with respect to the decision to bar the preachers from Public Square Park. Id. As noted



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by the district court, Lt. Corman communicated to the preachers in advance of the Pride Festival

that the event permit granted by Nashville meant that the preachers were excluded from Public

Square Park. Lt. Corman was not a random police official—he had “overseen special events within

[Nashville] on behalf of MNPD” “[s]ince 2010.” Lt. Corman was listed as the contact person for

any questions related to the security action plan in the Pride Festival’s required community

notification letter. It was Lt. Corman’s email that directed Comprehensive’s security officers to

exclude McGlone and Peters from Public Square Park. Tellingly, Nashville does not contest the

district court’s findings regarding Lt. Corman.

       Even if Nashville had done so, Bible Believers compels us to accept the district court’s

conclusion. We see no principled reason to distinguish Lt. Corman’s actions in this case from

those of the Wayne County counsel. If anything, this case presents an easier call as Lt. Corman

had more direct authority with respect to the action ordered than did the Wayne County counsel

whose duties were admittedly advisory. Id.

       Nashville argues that McGlone and Peters cannot establish municipal liability because

Nashville has no formally promulgated “policy to ask someone to leave a public forum that is

being used as part of a permitted event based solely upon any speech or religious view that he or

she is expressing.” Further, according to Nashville, for municipal liability “there must be a pattern

of unconstitutional conduct that is persistent and widespread in order to establish a policy or

custom” while McGlone and Peters only allege “isolated incidents of unconstitutional conduct

with regard to one special event.”

       Even if these underlying facts are true, they would not preclude municipal liability under

this court’s precedent. We found municipal liability in Bible Believers without finding a formally




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promulgated policy or a persistent pattern of unconstitutional conduct. Id. The district court

correctly rejected Nashville’s attempt to avoid municipal liability.

                                                IV.

       The district court’s judgment granting Nashville summary judgment is REVERSED and

REMANDED for proceedings consistent with this opinion.




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        KAREN NELSON MOORE, Circuit Judge, dissenting. The First Amendment reflects

“a profound national commitment to the principle that debate on public issues should be

uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

But governing precedent also reflects a “recognizable privacy interest in avoiding unwanted

communication,” Hill v. Colorado, 530 U.S. 703, 716 (2000), and it recognizes the corresponding

legitimacy of appropriately motivated and tailored “restrictions on the time, place, or manner of

protected speech,” Ward v. Rock Against Racism, 491 U.S. 781, 797 (1989). Because I believe

that it was a reasonable time, place, and manner restriction for Defendant-Appellee Metropolitan

Government of Nashville and Davidson County (“Metro”) to require Plaintiffs-Appellants John

McGlone and Jeremy Peters (“the Preachers”) to cross a downtown street if they wished to

continue shouting disruptive messages through bullhorns during a permit-authorized event in a

public park, I respectfully dissent.

                                       I. BACKGROUND

        Because the majority has already explained the background of this case, I supplement its

discussion of the facts only briefly here. In recent years, private organizers have held in downtown

Nashville an event called “Nashville Pride” (“the Festival”) as a means of celebrating Nashville’s

LGBTQ community. McGlone and Peters are evangelical Christian street preachers whose beliefs

conflict with that message and who express their contrary views using bullhorns. This case

concerns where the Preachers could stand while doing so during the 2015 Festival: on the sidewalk

immediately abutting the park where the Festival was being held (“the plaza sidewalk”), or just

across the street.

        The Preachers’ appearance at the Festival did not come as a surprise. A few days before

the Festival, Peters emailed Lt. David Corman of the Metro Police Department (“MNPD”), who



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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


had been listed as the point of contact for the Festival’s security, about Peters’s hope to preach on

a sidewalk immediately outside one of the Festival’s gates. Copying Loyd Poteete, the owner of

the private company providing security for the Festival (“Comprehensive”), Lt. Corman stated in

reply that “[t]he event organizers have secured a sidewalk, lane and road closure surrounding the

event site” and that Peters and his group would “need to conduct [their] activities on the other side

of the road.” R. 60-9 (Emails) (Page ID #515). Lt. Corman later explained that he did so because

he had “experience in having observed and dealt with Plaintiffs and/or members of their ministry

on numerous prior occasions in which they used amplification equipment that could interfere with

other sounds in the area and attracted crowds that often got confrontational with them.” R. 58

(Corman Decl. at 3) (Page ID #407). Lt. Corman therefore “believed that Plaintiffs needed to

conduct their activities across the street from the permitted area to allow Pride to express its

message and to avoid potential disruption of the event and potential altercations with Festival

patrons.” Id. Lt. Corman further explained that “MNPD does allow expulsion from an event when

an individual or group is interfering with the permit holder’s expressive message, impeding ingress

and egress of public thoroughfares, and creating a disturbance that threatens public safety,” but

that it “does not allow permit holders unfettered discretion to exclude citizens from public areas

even if those public areas are permitted.” Id. at 2–3 (Page ID #406–07).

       On the day of the Festival, the Preachers nevertheless began expressing their message using

bullhorns on the north side of the Union Street sidewalk—that is, on the plaza sidewalk just outside

the gates of the Festival. See R. 54-5 (Festival Map) (Page ID #305); R. 62 (Pls.’ Statement of

Facts at 2) (Page ID #535). Although this area was covered by the Festival’s permit, it was open




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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


to the public, and anyone could walk through.1 R. 60-3 (Richard Dep. at 53) (Page ID #467).

Festivalgoers and other passersby began to engage with the Preachers. After a few minutes, a

Comprehensive staff member named Joseph Crowe, who was also an off-duty police officer for

another jurisdiction (and clad in a police uniform), told the Preachers “to please step across the

street because this is private property.” If they did not, he explained, they would be arrested.

Video at 7:50–8:10.

         The Preachers moved across Union Street. While the Preachers were on the south side of

Union Street, MNPD Sgt. Brian Petty, working on-duty, approached them and explained that the

plaza sidewalk from which they had just come “was like private property” and, after some

prodding, stated that he would allow Comprehensive to arrest the Preachers if they began

demonstrating on the Festival side of the street. Video at 18:05–18:17, 18:38–18:52. When the

Preachers challenged this understanding of their rights to demonstrate on the plaza sidewalk, Sgt.

Petty said that he “had to follow [his] lawful orders,” id. at 22:11–22:14, and that he would

continue to enforce his understanding of where they were allowed to be “until [he was] told

something different from Metro,” id. at 22:46–22:52.

         The Preachers eventually located to a third location, on the northwest corner of Third

Avenue (which seems to have been closed off) and Union Street. The Preachers continued to

express their message via bullhorns from this position for at least an hour and a half. Id. at 34:30–

1:55:40. They engaged with at least a couple dozen Festival attendees or supporters at any given

time while demonstrating in that location.




         1  The Festival itself, on the other hand, was ticketed. The Preachers did not buy tickets or seek to enter the
Festival itself. See, e.g., R. 60-9 (Emails) (Page ID #515).


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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


                                                 II. DISCUSSION

A. First Amendment Framework

         Courts addressing First Amendment claims begin by asking three questions: (1) whether

the communication at issue “is speech protected by the First Amendment”; (2) what “the nature of

the forum” is; and (3) “whether the justifications for exclusion from the relevant forum satisfy the

requisite standard.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985).

Here, Metro concedes (1) that the Preachers’ speech was protected and (2) that the plaza sidewalk

qualified as a public forum. This case hinges on the third question: whether, under “the requisite

standard,” Metro impermissibly trammeled the Preachers’ free speech rights by excluding them

from that particular public forum. See id.

         Identifying the right standard hinges in large part, in turn, on whether the restriction was

content based. “In a traditional public forum” like this one, “the government may impose

reasonable time, place, and manner restrictions on private speech, but restrictions based on content

must satisfy strict scrutiny, and those based on viewpoint are prohibited.” Minnesota Voters All.

v. Mansky, 138 S. Ct. 1876, 1885 (2018). Thus, if the restriction was content based, then it may

be upheld only if Metro can prove that it was “necessary to serve a compelling state interest and

that it [was] narrowly drawn to achieve that end.” Perry Educ. Ass’n v. Perry Local Educators’

Ass’n, 460 U.S. 37, 45 (1983). On the other hand, if the restriction was not content based, then it

can qualify as a permissible time, place, and manner restriction so long as it was also “narrowly

tailored to serve a significant government interest, and [left] open ample alternative channels of

communication.”2 Id. I thus begin by addressing content neutrality.


         2 It is therefore analytically equivalent either (a) to consider content neutrality as a threshold question for
whether to apply the time-place-manner test, or (b) to treat content neutrality as the first of four conjunctive factors in
the time-place-manner test. See, e.g., Perry, 460 U.S. at 45.


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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


B. Content Neutrality

         “Nothing in the Constitution requires the Government freely to grant access to all who wish

to exercise their right to free speech on every type of Government property without regard to the

nature of the property or to the disruption that might be caused by the speaker’s activities.”

Cornelius, 473 U.S. at 799–800. Correlatively, governments are not required to be blind to content

in taking such considerations into account. Rather, “[t]he 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.” Ward, 491 U.S. at 791 (emphasis added). “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.”3 Id.; see

also Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015) (“Our precedents have also recognized

a . . . category of laws that, though facially content neutral, will be considered content-based

regulations of speech: laws that cannot be ‘justified without reference to the content of the




         3  While the Supreme Court has also observed that “[i]t is a familiar principle of constitutional law that [it]
will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive,” United
States v. O’Brien, 391 U.S. 367, 383 (1968) (emphasis added), the Court has also been clear, more recently, that the
government’s motive can be decisive at least in non-legislative contexts. See Heffernan v. City of Paterson, 136 S.
Ct. 1412, 1418 (2016) (“[T]he government’s reason for demoting Heffernan is what counts here. When an employer
demotes an employee out of a desire to prevent the employee from engaging in political activity that the First
Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and
42 U.S.C. § 1983—even if, as here, the employer makes a factual mistake about the employee’s behavior.”). And
non-neutral motives can certainly prompt heightened scrutiny. See, e.g., Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520, 533 (1993) (“[I]f the object of a law is to infringe upon or restrict practices because of
their religious motivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest and is
narrowly tailored to advance that interest.” (citation omitted)). See generally Richard H. Fallon, Jr., Constitutionally
Forbidden Legislative Intent, 130 HARV. L. REV. 523, 526 & n.15, 554–57 (2016).


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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


regulated speech,’ or that were adopted by the government ‘because of disagreement with the

message [the speech] conveys.’” (alteration in original) (quoting Ward, 491 U.S. at 791)).4

         In light of these principles, for example, a municipality can allowably restrict the location

of adult theaters not because of “the content of the films shown . . . but rather [because of] the

secondary effects of such theaters on the surrounding community.” City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41, 47 (1986). That does not mean that the municipality is insensitive to

the content of the regulated speech, but rather that its regulation is “justified without reference to

the content of the regulated speech.” See id. at 48 (quoting Va. Pharm. Bd. v. Va. Citizens

Consumer Council, Inc., 425 U.S. 748, 771 (1976)). The government may, in other words,

permissibly regulate the location of certain types of speech in a way that is correlated with their

content, so long as it is “treat[ing] [types of speech] differently [only] because they have markedly

different effects upon their surroundings.” Id. at 49 (quoting Young v. American Mini Theatres,

Inc., 427 U.S. 50, 82 n.6 (1976) (Powell, J., concurring)).

         Some other examples help to further flesh out this permissible form of content-correlated

but content-neutral regulation. A state actor can grant exclusive use of public land for a political

rally. See Sistrunk v. City of Strongsville, 99 F.3d 194, 196–200 (6th Cir. 1996). It can, in at least

some situations, regulate “the location of targeted picketing . . . under provisions that the

[Supreme] Court has determined to be content neutral.” Snyder v. Phelps, 562 U.S. 443, 457

(2011) (citing Frisby v. Schultz, 487 U.S. 474, 477 (1988) (upholding ban on picketing in front of

a specific home); and Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 757, 768 (1994)

(upholding “36-foot buffer zone on a public street” outside of abortion clinic)). And it can, our



         4  This exception is inapplicable “when a law is content based on its face.” Reed, 135 S. Ct. at 2228. But that
is not the case here.


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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


cases suggest, “cordon off” protestors seeking to deliver a message contrary to a public festival,

or even “disperse [an] entire crowd” that has gathered to counterprotest.5 See Bible Believers v.

Wayne Cty., 805 F.3d 228, 253 (6th Cir. 2015) (en banc); see also Collin v. Smith, 578 F.2d 1197,

1201–02 & n.8 (7th Cir.) (discussing, in dicta, various limitations that could permissibly have been

imposed on Nazi demonstrators in Skokie), cert. denied, 439 U.S. 916 (1978). In each of these

examples, speech is regulated in a way that correlates with content—but that correlation is not

caused by a governmental desire to help or hinder any particular type of speech or message.

         Metro argues in its briefing that its restriction of the Preachers’ speech here fell under this

umbrella. See Appellant’s Br. at 13–17. Based on the record, that argument is compelling. There

is no evidence in the record to suggest, for example, that Metro required the Preachers to preach

across the street because it disagreed with or wished to disfavor their message. Rather every

indication suggests that Metro did so in order to protect the right of a permit-holder—any permit-

holder—to hold a permit-authorized event without being subject to an unreasonable amount of

interference or disruption.6 See R. 58 (Corman Decl. at 3) (Page ID #407); R. 60-9 (Emails) (Page

ID #515). In other words, the restriction applied to these Preachers with their message, but it also


         5 The counterprotesters too, in such a situation, would be regulated in a way that is correlated with the content
of their speech. But the regulation again would not be motivated by any agreement or disagreement with the
counterprotesters’ message, but rather because of the public disorder, looming violence, or threat of a heckler’s veto
stemming from the counterprotesters’ expression of their own message.

         6  While there is nothing in the record to tell us how deeply the disruption reached into the Festival, the video
makes clear that the Preachers had at least begun to interfere in an ongoing way with people entering and exiting the
Festival by the time Officer Crowe told them to move across the street. See Video at 3:50–6:15. It also seems all but
certain from the video that the Preachers’ bullhorns were loud enough that they were heard within the Festival as well.
See, e.g., id. The Preachers argue that the district court “conceded” that they did not “drown[] out the message of the
Festival,” Reply Br. at 15, but the page to which they cite, R. 83 (Summary J. Hr’g Tr. at 45) (Page ID #799), merely
shows the district court challenging Metro’s argument during a hearing. Given that the district court’s written opinion
does not reaffirm that sentiment from argument at the hearing—and, if anything, undercuts it, see R. 76 (Dist. Ct. Op.
& Order at 19–20) (Page ID #714–15)—I do not construe the district court to have made any factual findings
qualifying for deference on this score. (I also shudder to think what it would mean for appellate courts if every phrase
a judge used to probe a litigant’s legal theory during oral argument qualified as a factual finding.) And, in any event,
just because someone has not drowned another out does not mean that they have not unduly interfered.


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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


would have applied to people showing up with bullhorns to protest the Iraq War, or to glorify the

Iraq War, or to say anything else loud and disruptive for an ongoing period of time.7 That makes

the restriction “[a] regulation that serves purposes unrelated to the content of expression . . . , even

if it has an incidental effect on some speakers or messages but not others.” Ward, 491 U.S. at 791.

And therefore, because Metro’s restriction was motivated by a desire to prevent serious

interference with a permit-holder’s authorized event rather than disagreement with the regulated

party’s message, the restriction qualifies as content neutral.

         The Preachers have sought to avoid this conclusion by pointing to three of this court’s

precedents. None, however, is sufficiently analogous. In Bible Believers, for example, our court,

sitting en banc, determined that local police had enforced a “heckler’s veto” against speakers who

had sought to express an anti-Islamic message at the Arab International Festival in Dearborn,

Michigan. 805 F.3d at 255. But that was after police failed to curtail crowd violence against the

speakers and then escorted the speakers out of the festival—“permanently cutting off [their]

speech,” id., in the absence of a meaningful attempt to allow them to express themselves. See id.




         7   I hasten to emphasize the conjunctive nature of these factors. I do not understand the First Amendment,
for example, to mean that if a municipality seeks to exclude one disruptive party, for example, it must therefore—at
peril of strict scrutiny—exclude all people who speak loudly, even if supportively or for merely an instant. By way
of illustration, imagine that an organization has secured a permit to hold a public memorial service for a fallen soldier
in a public park. The service includes, as many do, a series of prayers. One citizen standing on the sidewalk just
outside the park chooses to yell “Amen” at the top of his lungs at the end of each prayer for the duration of the service,
while a second, temporarily moved by an unrelated frustration, makes a momentary exclamation at one point. A third
citizen on the same sidewalk, meanwhile, chooses to yell a stream of invective regarding soldiers and religion at the
top of his lungs for the duration of the service, causing a small crowd to form and making it harder for others
(especially at the periphery) to hear the service. Cf. Snyder, 562 U.S. at 448–49. I do not believe that there is any
content discrimination if the police allow the first two citizens to remain while requiring the third citizen to move
across the street. Certainly, the police would be treating the third speaker differently from the other two, and the
treatment would vary with the content. But only the third speaker’s statements are loud, disruptive, and ongoing, and
there is no indication that other loud and ongoing statements that would also be disruptive would be treated any
differently. It is similarly true that the City of Renton treated movie theaters that chose to show children’s cartoons
differently from movie theaters that chose to show adult films. See Renton, 475 U.S. at 44. But only one of those two
types of theaters generated the secondary effects that the City was worried about, and there was no indication that
other theaters that generated the same secondary effects would have been treated any differently. See id. at 47–49.


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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


at 241, 253–55. Indeed, what the police did in this case in Nashville sounds a lot like what our en

banc court suggested should have been done in Bible Believers. See id. at 253 (noting that police

could have “cordon[ed] off the speakers,” among other possibilities); id. at 254 (“But in this case,

there were a number of easily identifiable measures that could have been taken short of removing

the speaker: e.g., . . . erecting a barricade for free speech, as was requested; . . . or allowing the

Bible Believers to speak from the already constructed barricade to which they were eventually

secluded prior to being ejected from the Festival.”). Just as our en banc court suggested that those

options were permissible, content-neutral options in Bible Believers (even though they too would

have been correlated with the speakers’ content), requiring the Preachers to cross the street before

continuing to shout from their bullhorns appears content neutral in light of the record here too.

       The Preachers have also sought to rely on Parks v. City of Columbus, 395 F.3d 643 (6th

Cir. 2005), and Saieg v. City of Dearborn, 641 F.3d 727 (6th Cir. 2011), but those analogies

likewise fail to fit this case. Saieg, a case involving a leafleting prohibition (also, like Bible

Believers, at Dearborn’s Arab International Festival), 641 F.3d at 729, especially fails to fit on

content neutrality, because we found in Saieg that the leafleting restriction at issue was content

neutral, id. at 735. In Parks, by contrast, we did find that a city’s exclusion of the plaintiff from a

public arts festival was content based, but we did so in the context of a “peaceful” leafleter,

395 F.3d at 653, who was excluded despite the fact that the arts festival that had no discernible

“collective message” (and certainly not one that Parks was interfering with), id. at 651, and where

“[t]he City offered no explanation as to why the sponsor wanted him removed,” id. at 654. Indeed,

as Metro points out, Appellee’s Br. at 26, we specifically distinguished the issue presented by

Parks from a case in which “the speaker attempted to interfere with the expressive message

conveyed by the permit-holder.”        Id. at 649.      In short, Parks did not involve the same



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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


considerations—loud and ongoing pronouncements from a bullhorn that threaten to disrupt or

interfere with permit-authorized activities—that could have permissibly motivated Metro here.

See id. at 653–54; see also Startzell v. City of Phila., 533 F.3d 183, 199 (3d Cir. 2008)

(distinguishing a case much like this one from the situation in Parks).

       What these cases make clear, instead, is that a permit-holder cannot use the law to exclude

somewhat more modest forms of purported interference—for example, “peaceful” leafleters—

from public fora. See, e.g., Parks, 395 F.3d at 653. But there is no indication in the record that

Metro sought to restrict those kinds of less disruptive speakers. See R. 58 (Corman Decl. at 2–3)

(Page ID #406–07) (explaining that “MNPD does not allow permit holders unfettered discretion

to exclude citizens from public areas even if those public areas are permitted,” but that it “does

allow expulsion from an event when an individual or group is interfering with the permit holder’s

expressive message, impeding ingress and egress of public thoroughfares, and creating a

disturbance that threatens public safety” (emphasis added)). Had the Preachers here simply sought

to carry signs, wear tee shirts, or pass out leaflets on the plaza sidewalk, this would be a very

different case. But that is not the expression at issue, and the Preachers have not introduced any

evidence to contradict the record evidence suggesting that Metro would have allowed them to

demonstrate in such less disruptive manners. Here, instead, the Preachers brought bullhorns—

and, by extension, disruption and interference—directly to the entrance and exit gates. Metro

could permissibly require the Preachers to cross the street without qualifying as having imposed a

content-based restriction.

                                               ***

       If the record and the parties’ written submissions were all that our court had to go on, I

would conclude easily that the foregoing establishes that Metro’s restrictions were content neutral



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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


for purposes of summary judgment. But the governing standard, of course, is that we must allow

summary judgment only “if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Saieg, 641 F.3d at 733 (quoting

FED. R. CIV. P. 56(a)).           Statements made by Metro’s appellate counsel at oral argument,

meanwhile, conceivably undercut what the record itself otherwise indicates.

       This problem arose when our panel began asking Metro’s appellate counsel about various

hypotheticals to try to understand Metro’s theory of the case. The following exchange occurred8

       Court:              Could the Preachers have stood on the sidewalk and handed out
                           leaflets there?
       Appellee:           I believe, your honor, that is a closer case. I believe if those leaflets
                           said similar to—
       Court:              Similar to their message.
       Appellee:           If it weren’t specifically an undermining, competing message of the
                           Festival.
       Court:              So wait a minute, are you saying . . . if I’m an Episcopalian minister,
                           and I want to stand there, and I want to say, “God loves all people,
                           we believe in gay marriage, come to my church and get married”—
                           that person would be allowed to stay and preach his vision of the
                           Gospel and a preacher who comes in and says, “Homosexuality is a
                           sin,” they’re not allowed? That’s the State’s position?
       Appellee:           Our position is that if there’s a discordant message . . . to the
                           underlying expressive message, then yes, those people can be
                           limited in exactly where they stand. I want to be clear—
       Court:              But you would allow the Episcopalian minister in my hypothetical
                           to stand right there, . . . have a bullhorn [and say], “Come to our
                           church, get married, we’ll perform your wedding tomorrow,” but not
                           the people with a message contrary to that—a different vision of
                           Christianity? Because I’m thinking that’s not just content
                           discriminatory, but viewpoint discriminatory, and that seems tough
                           ...
       Appellee:           And I would say, your honor, that, again, it’s the context of the
                           permit. And in that situation, if there were bullhorns and if people



       8   I have transcribed this exchange in full given its relevance to the central question of content neutrality.


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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


                     were gathering around and people couldn’t get in and there were
                     ingress and egress being blocked, and I would submit that—
       Court:        But couldn’t there be ingress and egress being blocked by my
                     Episcopalian minister who’s saying, “Come, free weddings
                     tomorrow, we’re going to waive our fees, come sign up, we’re
                     scheduling people,” and everybody’s coming, they’re like “Great, I
                     want to marry my partner”—that person can stay and block all they
                     want, but—
       Appellee:     And I don’t think I articulated myself very well. No, that person
                     cannot stay and block all they want. If someone is there with leaflets
                     that say “Love Jesus,” I think they should be allowed to stay there.
                     I think once you’re talking about bullhorns and gathering of people
                     and people not being able to line up—and I would submit that in the
                     video in this case, while the district judge did say that it seemed like
                     people could get around, I mean they could get around, but there
                     was a big crowd and you had to do some maneuvering to get around
                     ...
       Court:        So the key really to your position is the use of the bullhorns and
                     causing a crowd to form and that that would apply no matter what
                     the message of the bullhorns would be?
       Appellee:     I think that is the first prong of our message. And then the second
                     prong is that this case, the case of Sistrunk, is really the most on-
                     point case in the Sixth Circuit, even though it was a political-rally
                     case, that says a group that gets a permit has a right to exclusive
                     control of an area to express their message. And this certainly was
                     a discordant view to that message and undermined the entire
                     expressive message of the festival, which was that this traditionally
                     marginalized group of society could come and celebrate being who
                     they are.
       Court:        Is it the bullhorns that are the problem? So if I stood out there, and
                     I said, “Sign up for my low-interest-rate credit card and I’ll give you
                     a free tee shirt,” and everybody’s like great, I want the free tee shirt
                     and the credit card, and I’ve got my bullhorn, and it’s loud, and I’m
                     attracting a crowd, and maybe you can’t hear back in the Festival—
                     although there’s no indication here that this message was blocking
                     out speakers inside. Can I stand there and advertise my credit card?
                     “Come, everybody is welcome, I welcome all people to apply for
                     my credit card, and I’ll give you a tee shirt”?
       Appellee:     I don’t think once you start attracting a crowd and making an issue
                     with ingress and egress to the Festival, you would be allowed to
                     stand there. That’s a different case than here, there are noise
                     ordinances—which is not at issue in this case—but things like that
                     that could come into play.


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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


       Court:          So it’s not the bullhorn . . . it’s the crowd that’s the problem? It’s
                       not the bullhorn. If I stood out there with my bullhorn and said, “It’s
                       raining today, it’s raining today, it’s raining today,” and the sun is
                       shining, everybody would just ignore me and think I was a crazy
                       person and walk by. So it’s not the bullhorn—it’s the crowd
                       forming? And that goes to time place and manner? I just am trying
                       to get a handle on it.
       Appellee:       It’s three things. First, it’s that Nashville Pride had a permit for
                       exclusive use of this area to promote their message. And under
                       Sistrunk, they could exclude discordant speakers. It’s also, on the
                       realities of this case—if you just sort of want to get away from the
                       academic law, because First Amendment cases have to be fact
                       specific in a lot of instances—you also not only have a message that
                       undercuts Pride’s expressive message, you have it through
                       amplification equipment. And you have it through incendiary
                       language that is broadcast very loudly in a group that is quite
                       frankly, if you watch the video, I submit designed to draw an
                       incendiary crowd. You have it happening at an area that has been
                       set up, part of the permitted festival, to allow people to not have to
                       line up in the street, and if you watch the video, minute five, I mean
                       the people that engage with the Appellees [sic] are people who are
                       in line to go to this Festival, so I would submit that they were at least
                       distracted from their expressive purpose by the Appellees [sic] in
                       this case. At the end of the day . . .
       Court:          So distraction is enough?
       Appellee:       No, your honor, certainly not. But this notion that people were just
                       standing around doing nothing and that there’s no indication that
                       they were actually people participating or wanting to participate in
                       the Festival I think is belied by the video.

Oral Arg. at 20:19–26:17.

       There are several problems with Metro’s arguments here. For one, they noticeably

overstate the applicability of a case like Sistrunk to the situation here. In Sistrunk, we ruled that a

municipality could grant a permit to a political campaign (there, the Bush-Quayle ‘92 campaign)

“seeking to make exclusive use of” an otherwise traditional public forum “for expressive activity

during a limited period of time,” 99 F.3d at 198, and that the campaign could in turn exclude an

individual seeking to communicate a contrary message (tacitly, by wearing a pro-Clinton button),

see id. at 199. But even assuming that Sistrunk is still good law—an issue not implicated directly

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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


by this case—there is no debating that Sistrunk merely allowed the exclusion of a plaintiff who

attempted to communicate a contrary message within a temporarily nonpublic forum. See id. at

198–99. Indeed, we made clear in Sistrunk that “[t]he plaintiff could have stood with her button

on the sidewalk leading up to the rally to express her support for Clinton,” id. at 199—a statement

that, though dicta, should eliminate any question that the Preachers here could not have been

removed from the still-public forum of the plaza sidewalks simply for wearing buttons or tee shirts,

or carrying placards, or handing out leaflets espousing their contrary message. The true question

here, distinct from that of Sistrunk, is whether the Preachers were permissibly forced to cross the

street for communicating their message with bullhorns—and all the additional disruption and

interference that bullhorns entail.

          Second, and more centrally, Metro’s argument potentially raises a question about Metro’s

true purpose. As noted above, when it comes to content neutrality, “[t]he government’s purpose

is the controlling consideration.” Ward, 491 U.S. at 791. And while inquiring into a given

government actor (or institution’s) purpose may be thorny in some cases, the Supreme Court has

been clear that “scrutinizing purpose does make practical sense . . . where an understanding of

official objective emerges from readily discoverable fact, without any judicial psychoanalysis of a

drafter’s heart of hearts.” McCreary Cty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 862

(2005). Here, appellate counsel seemed to suggest at one point that Metro would limit any speaker

with a “discordant message,” but not others engaged in similar non-“discordant” speech. See Oral

Arg. at 20:35–21:25. If accurate and cognizable, that statement would at least create a genuine

issue of material fact that Metro is in fact regulating speech based on the content of that speech,

rather than based on other effects that are independent of (but correlated with) the content of that

speech.



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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


       Ultimately, however, I do not believe that these statements render summary judgment

inappropriate. For one, it is not clear to me that Metro’s statements were in fact intended to be a

concession to such a legally indefensible position. As Judge Batchelder has argued in a different

case, it is questionable at best to interpret as an explicit concession the statements made when an

“obviously harried attorney attempts to explain his position.” Haus v. Bechtel Jacobs Co., LLC,

491 F.3d 557, 571 (6th Cir. 2007) (Batchelder, J., dissenting). On my read of the transcribed

language above, counsel at several junctures attempted to clarify what seem to have simply been

unartfully worded answers to questions concerning a notoriously thorny area of legal doctrine. See

Oral Arg. at 21:24–21:27 (“I want to be clear . . .”); id. at 22:06–22:12 (“And in that situation, if

there were bullhorns and if people were gathering around and people couldn’t get in and there were

ingress and egress being blocked . . .”); id. at 22:36–22:49 (“And I don’t think I articulated myself

very well. No, that person cannot stay and block all they want. If someone is there with leaflets

that say ‘Love Jesus,’ I think they should be allowed to stay there. I think once you’re talking

about bullhorns and gathering of people and people not being able to line up . . .”); id. at 24:22–

24:29 (“I don’t think once you start attracting a crowd and making an issue with ingress and egress

to the Festival, you would be allowed to stand there.”); id. 26:06–26:08 (“No, your honor, certainly

[distraction is] not [enough].”). In short, I do not believe this is a situation in which counsel has

in fact “succinctly and unequivocally admitted” what it might sound like counsel admitted. See

Haus, 491 F.3d at 571 (Batchelder, J., dissenting). I think it is much more likely that counsel

simply misspoke.

       Moreover, as Judge Batchelder has also explained:

       [T]he very most that the majority can offer is that [Metro’s] appellate counsel was
       equivocal on the matter. But, this is not evidence. In fact, there is no evidence in
       the record—admissible or otherwise—to support this contention; there is no Rule



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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


       36 admission, no interrogatory answer, no stipulation, no deposition testimony, no
       trial testimony . . . nothing . . . .

Id. at 572. This observation accords with the approach that both we and other circuits have taken.

See Esch v. Cty. of Kent, 699 F. App’x 509, 514 n.2 (6th Cir. 2017) (“And of course,

representations made during oral argument are not part of the record, and are generally not

sufficient to support a motion for summary judgment.” (citing EOTT Energy Operating Ltd. P’ship

v. Winterthur Swiss Ins. Co., 257 F.3d 992, 999 (9th Cir. 2001); McDonald’s Corp. v. Robertson,

147 F.3d 1301, 1308 n.4 (11th Cir. 1998); CHARLES A. WRIGHT & ARTHUR R. MILLER ET AL.,

FEDERAL PRACTICE & PROCEDURE § 2723 n.2 (4th ed. Supp. 2017))). “Accordingly,” particularly

in light of the ambiguity of counsel’s statements during rapid-fire questioning, in my view we

ought “not consider [Metro’s] oral argument statements in adjudicating this appeal.” See Esch,

699 F. App’x at 514 n.2. I therefore continue to believe that the restriction at issue here was content

neutral and thus proceed to the rest of the time, place, and manner test.

C. Significance of the Government Interest

       “A valid time, place, and manner regulation must also ‘serve a significant governmental

interest.’” Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981)

(quoting Va. Pharm. Bd., 425 U.S. at 771). “[C]onsideration of a forum’s special attributes is

relevant to the constitutionality of a regulation since the significance of the governmental interest

must be assessed in light of the characteristic nature and function of the particular forum involved.”

Id. at 650–51; see also Hill v. Colorado, 530 U.S. 703, 716 (2000) (“The recognizable privacy

interest in avoiding unwanted communication varies widely in different settings.”). In Heffron,

for example, the Supreme Court distinguished the Minnesota fairgrounds from a normal public

street, noting that “[t]he flow of the crowd and demands of safety are more pressing in the context

of the Fair,” id. at 651, and concluding that the state accordingly had a substantial-enough interest

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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


“in confining distribution, selling, and fund solicitation activities to fixed locations,” id. at 654.

The Court noted that the interest was especially significant in light of the fact that not only the

plaintiffs but also “all other organizations . . . would be entitled to distribute, sell, or solicit if the

booth rule [could] not be enforced with respect to [the plaintiffs],” and that the resulting flood of

solicitors could well overrun the fair and prevent the state from “managing the flow of the crowd.”

Id. at 654.

        Metro appears to characterize its governmental interest here much the same way that the

Third Circuit characterized the City of Philadelphia’s interest in Startzell:

        The City has an interest in ensuring that a permit-holder can use the permit for the
        purpose for which it was obtained. This interest necessarily includes the right of
        police officers to prevent counter-protestors from disrupting or interfering with the
        message of the permit-holder. Thus, when protestors move from distributing
        literature and wearing signs to disruption of the permitted activities, the existence
        of a permit tilts the balance in favor of the permit-holders.

Startzell, 533 F.3d at 198–99; see Appellee’s Br. at 26–27 (quoting this language from Startzell);

see also R. 58 (Corman Decl. at 3) (Page ID #407) (explaining that Lt. Corman “believed that

Plaintiffs needed to conduct their activities across the street from the permitted area to allow Pride

to express its message and to avoid potential disruption of the event and potential altercations with

Festival patrons”). Understood this way, and considering the (temporary) “special attributes” and

“characteristic nature and function of the” public land covered by the Festival’s permit, Heffron,

452 U.S. at 650–51, the interest asserted by Metro qualifies as a sufficiently significant interest for

two main reasons.

        First, while the permit did not divest the plaza sidewalk of its status as a public forum, see,

e.g., Parks, 395 F.3d at 648, it did change the nature of that public forum in the specific context of

the time-limited event covered by the permit. It was not, for that brief window of time, “a

continually open, often uncongested . . . place where people [could] enjoy the open air or the

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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


company of friends and neighbors in a relaxed environment,” but part of “a temporary event

attracting great numbers of visitors who c[a]me to the event for a short period” to align themselves

with a particular message. See Heffron, 452 U.S. at 651. In that context, there was an interest in

ensuring that the temporary event was able to proceed as planned that would not apply on a normal

street corner. And that interest is, as in Heffron, greater given the need for neutral administrability.

After all, if the Preachers’ group of eight-to-ten evangelists, see Video at 2:09:05–2:09:22, were

allowed to plant themselves at the entrance gate and begin preaching their message via bullhorns,

it is not clear on what grounds other groups equally interested in disrupting the Festival (or merely

shouting their own, unrelated disruptive messages) could have been excluded. See Heffron,

452 U.S. at 654.

        More importantly, however, the means of speech employed by the Preachers differs sharply

from the peaceful solicitation involved in cases like Heffron, Parks, and Saieg. Whereas those

plaintiffs brought conversation-level voices and pieces of paper, the plaintiffs here brought

bullhorns. That their message was offensive to listeners does not rob it of protection, “[b]ut the

protection afforded to offensive messages does not always embrace offensive speech that is so

intrusive that the unwilling audience cannot avoid it.” Hill, 530 U.S. at 716. “Even in a public

forum,” as the Supreme Court has explained, “one of the reasons we tolerate a protester’s right to

wear a jacket expressing his opposition to government policy in vulgar language is because

offended viewers can ‘effectively avoid further bombardment of their sensibilities simply by

averting their eyes.’” Id. (quoting Cohen v. California, 403 U.S. 15, 21 (1971)). Thus, whereas

society might well have to tolerate a peaceful but offensive leafleter “when ‘strolling through

Central Park,’ . . . the interest in preserving tranquility in ‘the Sheep Meadow’ portion of Central

Park may at times justify official restraints on offensive musical expression” there. Id. (first



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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


quoting Cohen, 403 U.S. at 21; then quoting Ward, 491 U.S. at 784).9 The interest in allowing a

permit-holder to hold its authorized event without being seriously disrupted (if not drowned out)

is significant enough, too, to justify reasonable restraints on the location of speakers who cause

ongoing disruption or interference.10 See Startzell, 533 F.3d at 197 (“The constitutional guarantee

of liberty implies the existence of an organized society maintaining public order, without which

liberty itself would be lost in the excesses of anarchy.” (quoting Cox v. Louisiana, 379 U.S. 536,

554 (1965))); cf. Madsen, 512 U.S. at 772–73 (“The First Amendment does not demand that

patients at a medical facility undertake Herculean efforts to escape the cacophony of political

protests.”).

         This readily apparent interest in the facts of this case, see, e.g., R. 57 (Crowe Decl. at 1–2)

(Page ID #400–01); R. 58 (Corman Decl. at 3) (Page ID #407); R. 60-9 (Emails) (Page ID #515),

distinguishes it from a case like Saieg, on which the Preachers seek to rely, Appellants’ Br. at 29–

30. There, we ruled that Dearborn’s leafleting restrictions on the inner perimeter of its festival did

“not further a substantial governmental interest” not because they could not, 641 F.3d at 736 (“In

appropriate contexts, each of these governmental interests can be substantial.”), but rather because



         9  See also Hill, 530 U.S. at 716–17 (“The unwilling listener’s interest in avoiding unwanted communication
has been repeatedly identified in our cases. It is an aspect of the broader ‘right to be let alone’ that one of our wisest
Justices characterized as ‘the most comprehensive of rights and the right most valued by civilized men.’ The right to
avoid unwelcome speech has special force in the privacy of the home and its immediate surroundings, but can also be
protected in confrontational settings.” (citations omitted) (quoting Olmstead v. United States, 277 U.S. 438, 478 (1928)
(Brandeis, J., dissenting))); id. at 724 (upholding buffer law prohibiting certain types of speech surrounding medical
facilities on the grounds that “the statute’s restriction seeks to protect those who enter a health care facility from the
harassment, the nuisance, the persistent importuning, the following, the dogging, and the implied threat of physical
touching that can accompany an unwelcome approach within eight feet of a patient by a person wishing to argue
vociferously face-to-face”).

         10 Much as noted above, of course, a government cannot justify restricting speech in order to prevent the
occasional minor or ephemeral disruption. See, e.g., Saieg, 641 F.3d at 738; Parks, 395 F.3d at 654. But that does
not mean that it lacks a valid interest in mitigating major and ongoing interference. Cf. Parks, 395 F.3d at 649
(distinguishing the Parks case from “circumstances where the speaker attempted to interfere with the expressive
message conveyed by the permit-holder”).


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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


“the interests that the defendants ha[d] named [we]re merely ‘conjectural’ as opposed to ‘real,’”

id. at 737 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994)). For one, we

explained, “the defendants ha[d] chosen to keep the sidewalks open for public use, showing that

the interests in crowd control and public safety [we]re not so pressing that they justif[ied]

restricting normal activity that occurs on streets and sidewalks.” Id. at 737. “Second and more

importantly,” we added, the organizers had also allowed “sidewalk vendors” on the relevant

sidewalks, further “belying the significance of their interest in clear sidewalks and crowd control.”

Id. It thus did not wash for the defendants to claim that leafleting was a major concern, given that

“[l]eafleting is less obtrusive than sidewalk tables are.” Id. As we observed, “the government’s

interest may still be insubstantial if the regulation burdens substantially less speech than is

necessary to further the government’s interest.” Id. at 738.

       No such arguments apply here. There is no indication, for example, that Metro allowed

other loud, disruptive speakers—or, indeed, anyone or anything else that would have disrupted the

permit-authorized event—on the sidewalk just outside the Festival gates. Rather, based on his

“experience in having observed and dealt with Plaintiffs and/or members of their ministry on

numerous prior occasions in which they used amplification equipment,” Corman anticipated the

likelihood of “interfere[nce]” and “potential disruption of the event” and communicated the

restriction accordingly. R. 58 (Corman Decl. at 3) (Page ID #407). When that danger in fact

manifested, others reiterated the restriction. See, e.g., R. 57 (Crowe Decl. at 1–2) (Page ID #400–

01).

       The Preachers argue, meanwhile, that the case is like Saieg because “no one who was not

in line to buy tickets was asked to leave except McGlone and Peters and those with them,” and

“there were sponsor tents in the permitted area as well.” Appellants’ Br. at 28–29. But that misses



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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


the point. In contrast to Saieg, no one else on the sidewalk area at issue served to endanger the

interest that Metro asserts—no one, for example, brought bullhorns that began to disrupt parts of

the Festival. True, the Preachers did not necessarily disrupt entry and exit from the Festival from

a safety perspective—there is evidence that “there was enough room for people to get around

without dangerously stepping out in traffic.” R. 54-7 (Petty Dep. at 30) (Page ID #317). But that

just means that one interest (in pedestrian safety) was, at least for purposes of summary judgment,

insufficient to justify the restriction; it does not mean that Metro’s interest in preventing disruption

was not at stake. And indeed, the record discloses no evidence that Metro ignored any comparable

threats of disruption to the event the way that the municipality in Saieg ignored comparable threats

to sidewalk density; it instead reveals sincere concern regarding the disruption that these

speakers—like any speakers with their own, separate agenda11 armed with bullhorns—could cause.

See, e.g., R. 58 (Corman Decl. at 3) (Page ID #407); R. 60-9 (Emails) (Page ID #515). In the

context of a permit-authorized, time-limited, expressive event on public property, and in light of

the particular dangers of disruption posed by a group of speakers with a separate agenda using

bullhorns, I would deem Metro’s interest in requiring the Preachers to demonstrate across the street

“sufficient to satisfy the requirement that a place or manner restriction must serve a substantial

state interest.” See Heffron, 452 U.S. at 654.




         11  That is, any speakers whose interests are completely independent of the Festival’s. That could mean
speakers who are adverse to the Festival’s message, but it would also encompass speakers—like the hypothetical
credit-card hawker that our panel raised at oral argument, see Oral Arg. at 23:42–24:22—whose messages are simply
oblique. Just as it can be (for reasons discussed above) content neutral to treat such speakers differently than speakers
involved in permit-authorized activity, doing so in order to allow a permit-authorized event to go forward without
major disruption can reflect a significant government interest. See Saieg, 641 F.3d at 736; cf. Parks, 395 F.3d at 649.
And there is no indication here that Metro allowed other, unaffiliated speakers like the hypothetical credit-card hawker
to show up and interfere with the Festival.


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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


D. Narrow Tailoring

        That brings us to narrow tailoring. The Supreme Court has emphasized “that restrictions

on the time, place, or manner of protected speech are not invalid ‘simply because there is some

imaginable alternative that might be less burdensome on speech.’” Ward, 491 U.S. at 797 (quoting

United States v. Albertini, 472 U.S. 675, 689 (1985)). In other words, “a regulation of the time,

place, or manner of protected speech must be narrowly tailored to serve the government’s

legitimate, content-neutral interests but . . . it need not be the least restrictive or least intrusive

means of doing so.” Id. at 798. “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.’” Id. at 799 (quoting Albertini, 472 U.S. at 689).

        Here, Metro’s interest in allowing a permit-authorized event to use the permit-covered area

without serious disruption would have been “achieved less effectively absent the regulation.” Id.

(quoting Albertini, 472 U.S. at 689). While requiring the Preachers to cross the street did not

silence the Preachers or prevent them from communicating their message to a large number of

attendees, see Video at 34:30–1:55:40, it did shift their bullhorn-amplified communication—and

the commotion attending it—a short ways away from where other attendees were simply trying to

purchase tickets, enter the Festival, or engage with the Festival’s message.                        This limited

restriction—requiring the Preachers to cross the street (which, at least where the Preachers settled,

was closed off anyway, eliminating any noise deflection from passing cars)—qualifies as narrowly

tailored.12




        12   To be clear, had Metro shifted the Preachers multiple blocks over, this case would likely come out
differently, whether on this prong, on the ample alternative channels prong, or on heckler’s veto grounds. Cf. Bible
Believers, 805 F.3d at 234, 241, 255 (finding an unconstitutional heckler’s veto where speakers were wholly
“silence[d]” and “expel[led]” from the festival altogether, such that their speech was “permanently cut[] off”). But

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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


Saieg, on which the Preachers rely, Appellants’ Br. at 30–33, is again inapposite. There, we ruled

that leafletting provisions on the outer perimeter of the Arab International Festival were

“substantially broader than necessary to further the government’s [asserted] interests” in crowd

control. Saieg, 641 F.3d at 740. In reaching this conclusion, we emphasized that while “the

primary justification for the outer perimeter [restriction] [wa]s to curb vehicular traffic and provide

parking, not to cabin pedestrian crowds,” there was no indication of “any existing problem of

pedestrian traffic in the outer perimeter area,” nor was any danger of one posed by Saieg, who had

hoped to “leaflet[] by foot.” Id. “[T]he restriction,” we explained, was therefore “not narrowly

tailored because there [wa]s ‘an insufficient nexus’ between the government’s asserted interest and

the leafleting restriction.” Id. (quoting United States v. Grace, 461 U.S. 171, 181 (1983)).

         As should be apparent, however, the asserted interest here is distinct from—and more

credible than—the one asserted in Saieg, and there is a clear nexus between that interest and the

restriction.13 Furthermore, we made clear in Saieg that allowing people like Saieg to leaflet

peacefully did not entail blanket permission for all other conceivable activity in the same place.

See Saieg, 641 F.3d at 740 (“[P]ermitting everyone to leaflet in the outer perimeter area does not

require the city to permit street vending or other attractions in the area defined by the outer

perimeter.”). In short, Metro’s imposing a roadway’s distance between the Festival and the




the simple fact that the Preachers were forced to move from the area covered by the permit does not render Metro’s
restriction an overly broad exclusion.

         13 The Preachers argue that the restriction here swept much further—that it was geared toward “creat[ing] a
‘safe space’ free of any opposition to [the Festival’s] message.” Appellants’ Br. at 33–34. But they offer no evidence
for that proposition aside from one questionable phrase from oral arguments at summary judgment below. See id. at
33 (quoting R. 83 (Summary J. Tr. at 48–49) (Page ID #802–03)). As already discussed, however, we do not generally
treat statements made at oral argument as evidence, see Esch, 699 F. App’x at 514 n.2, and, moreover, there is no
evidence that Metro sought to move more passive protestors, such as leafleters, people carrying signs, or people
wearing shirts espousing contrary messages.


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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


Preachers’ bullhorn-amplified protest was a narrowly tailored means of serving Metro’s legitimate

interest in allowing the permit-authorized activity to proceed without major disruption.

E. Ample Alternative Channels of Communication

       The final prong in the time, place, and manner analysis is the availability of sufficient

alternative channels of communication. “Any time, place, and manner restriction must leave open

ample alternative channels by which speakers can communicate their messages.” Saieg, 641 F.3d

at 740. “An alternative is not ample if the speaker is not permitted to reach the intended audience.”

Id. (quoting Bay Area Peace Navy v. United States, 914 F.2d 1224, 1229 (9th Cir. 1990)). On the

other hand, “speakers are ‘not entitled to [their] best means of communication.’” Id. (alteration in

original) (quoting Phelps-Roper v. Strickland, 539 F.3d 356, 372 (6th Cir. 2008)).

       Metro can easily satisfy this prong. A brief review of the video provides the clearest

evidence that the Preachers’ alternative location—situated on a busy corner just across a closed-

off street from the Festival’s gates—was more than adequate to permit them to communicate their

message to Festival attendees. See Video at 34:30–1:55:40. Indeed, the Preachers appear to have

been able to engage at any given time with at least two dozen attendees or supporters of the

Festival, if not more—not to mention the plenty of others who must have heard their bullhorns

across the street or through the Festival’s chain-link fence. The Preachers resist this conclusion

by arguing that “their message could not be heard as well from the location on the other side of

the street,” Appellants’ Br. at 35, but that argument is squarely foreclosed by Supreme Court

precedent as insufficient. See Ward, 491 U.S. at 802 (“That the city’s limitations on volume may

reduce to some degree the potential audience for respondent’s speech is of no consequence, for

there has been no showing that the remaining avenues of communication are inadequate.”). That

the Preachers wanted a bigger channel of communication does not mean that they were denied



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No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.


constitutionally adequate channels of communication. Saieg, 641 F.3d at 740. And the video

makes clear that the channels that remained were sufficiently robust.

                                      III. CONCLUSION

       The First Amendment requires individuals and groups to tolerate the expression of many

views with which they disagree, but it does not require anarchy. In this case, a municipality sought

to regulate the position of a group of continuously disruptive speakers with bullhorns in order to

prevent that group from interfering significantly with another group, which had secured a permit

enabling it to use public land for its own expressive purpose. The municipality regulated the first

group’s position in a way that did not silence them or seriously curtail their communication; it

simply required them to cross the street. Though I share the majority’s solicitude for the First

Amendment, I do not understand the First Amendment to prohibit such a reasonable regulation of

time, place, and manner. I respectfully dissent.




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