[Cite as Cleveland v. McCardle, 2012-Ohio-5749.]




         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                           JOURNAL ENTRY AND OPINION
                               Nos. 98230 and 98231




                             CITY OF CLEVELAND
                                                   PLAINTIFF-APPELLEE

                                                    vs.

                            ERIN MCCARDLE AND
                              LEATRICE TOLLS
                                                   DEFENDANTS-APPELLANTS

                               JUDGMENT:
                         REVERSED AND REMANDED


                                 Civil Appeal from the
                              Cleveland Municipal Court
                  Case Nos. 2011-CRB-037719 and 2011-CRB-037724
         BEFORE:      Blackmon, A.J., Celebrezze, J., and Sweeney, J.

         RELEASED AND JOURNALIZED: December 6, 2012

ATTORNEYS FOR APPELLANTS

J. Michael Murray
Steven D. Shafron
Berkman, Gordon, Murray & DeVan
55 Public Square, Suite 2200
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
Interim Director of Law

Victor R. Perez
Chief City Prosecutor
Connor P. Nathanson
Christina Haselberger
Assistant City Prosecutors
City of Cleveland
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, A.J.:
        {¶1} For purposes of this opinion, the appeals of both appellants Erin

McCardle and Leatrice Tolls have been consolidated.1

        {¶2} Appellants Erin McCardle and Leatrice Tolls appeal their

convictions for violating Cleveland Codified Ordinances 559.541 (“CCO

559.541”), which prohibits remaining, without a permit, between the hours of

10:00 p.m. and 5:00 a.m., on an area of downtown Cleveland, Ohio known as

Public Square, specifically, the Tom L. Johnson quadrant.2 They assign the

following error for our review:

        I. Cleveland Cod. Ord. 559.541 is unconstitutional under
        the First and Fourteenth Amendments to the United
        States Constitution.

        {¶3} Having reviewed the record and pertinent law, we reverse and

remand the trial court’s decision. The apposite facts follow.




        1
         See journal entries dated November 6, 2012.
        2
         Tom L. Johnson was the 35 Mayor of the city of Cleveland. His full name was Thomas
                                      ht




Loftin Johnson.         In his book, My Story: the Autobiography of Tom L. Johnson
[Clevelandmemory.org/ebooks/johnson(accessed Dec. 4, 2012)], he explains why tents are useful for
campaigning as opposed to public halls. He said “tent meetings have many advantages over the hall
meetings. Tent meetings can be held in all parts of the city - in short the meetings are literally taken
to the people.” In the final section of that chapter, he writes about a man trying to speak at one of
the meetings and someone shouted “come on, come on! Speak where you are.” P. 82-84. We
take judicial notice that this park is dedicated to him, and his statue is erected there as a testament to
free speech.
                               Background

     {¶4} On September 17, 2011, approximately a thousand demonstrators

assembled in Zuccotti Park, near Wall Street in New York City, to protest

against the claimed increasing income disparity between the highest income

earners, now known as the “one percent” and everyone else, now known as

the “99 percent.” The protesters erected tents and remained in Zuccotti Park

around the clock and the movement called “Occupy Wall Street” began. In

the days and weeks that followed, this movement spread to other cities,

including Cleveland, Ohio.

                             Occupy Cleveland

     {¶5} In Cleveland, members of the Occupy Movement began a

symbolic occupation of Public Square, in an area consisting of three out of a

four quadrant park. The city of Cleveland (“City”) granted the members of

the Occupy Cleveland movement a permit to remain in the southwest

quadrant past 10 p.m.

                                   Facts

     {¶6} It is uncontraverted that both appellants were arrested in the

Tom L. Johnson quadrant and charged with violating the City’s permission to

use ordinance. Both appellants respectively moved to dismiss their cases on

First Amendment grounds. The McCardle judge ruled in a written opinion
that the City ordinance that McCardle violated was constitutional.

McCardle then pled no contest to violating the permission ordinance,

otherwise known as the prohibited hours law, and her execution of judgment

was stayed pending appeal.

      {¶7} Subsequently, the judge in the Tolls case adopted the McCardle

judge’s opinion, and Tolls likewise pled no contest and her execution of

judgment was stayed pending appeal.

      {¶8} On August 16, 2007, CCO 559.541, Prohibited Hours on Public

Square, went into effect. It reads as follows:

      No unauthorized person shall remain on or in any portion of the area known
      as the Public Square area between the hours of 10:00 p.m. to 5:00 a.m.
      Persons may be authorized to remain in Public Square by obtaining a permit
      from the Director of Parks, Recreation and Properties.

      Such permits shall be issued when the Director finds:

      (a) That the proposed activity and use will not unreasonably interfere with or
      detract from the promotion of public health, welfare and safety;

      (b) That the proposed activity or use is not reasonably anticipated to incite
            violence, crime or disorderly conduct;
      (c) That the proposed activity will not entail unusual, extraordinary or
      burdensome expense or police operation by the City;

      (d) That the facilities desired have not been reserved for other use at the day
      and hour required in the application.

      For purposes of this section, the “Public Square area”
      includes the quadrants and all structures (including but
      not limited to walls, fountains, and flower planters)
      located within the quadrants known as Public Square and
      shown on the map below, but excludes the quadrant on
      which sits the Soldiers and Sailors Monument; the Public
      Square area also excludes all dedicated streets, public
      sidewalks adjacent to dedicated streets and RTA bus
      shelters within this area.

      {¶9} The City offered no evidence as to why the Soldiers and Sailors

Monument was exempted from the prohibited use ordinance.               Whoever

violates the ordinance is guilty of a minor misdemeanor for a first-time

offender.   We conclude that the City ordinance is an unconstitutional

violation of the First Amendment rights to free speech and assembly.

                        The Activity and the Place

      {¶10} The appellants were engaged in a peaceful protest on grounds

that have historically been viewed as a public place.       However, between

10:00 p.m. and 5:00 a.m., this area becomes less public for those who are

unauthorized to be in the park. An unauthorized person is anyone who fails

to obtain a permit to be in the park physically. It forbids a person from being

on the park grounds; but allows for “permitted activity” or “proposed use”

once sanctioned by the director of parks.

      {¶11} The ordinance has a curfew for individuals and requires a permit

for activity or use by an individual.       Consequently, it does not exempt a

person or group who intends to erect a tent for a meeting or speech nor does it
narrow its focus to those who seek to be in the area to demonstrate or protest

for an hour or all night.3

      {¶12} We conclude that the activity of the Occupy Cleveland group,

including the appellants, was speech-related activity and is protected under

the First Amendment. The police identified the appellants’ activities in the

police report, (Exhibit A), as protesting the economic inequities between Wall

Street and the rest of America.       Thus, their activity advanced a public

purpose and spoke to a public issue. See Snyder v. Phelps,           U.S.       ,

131 S.Ct. 1207, 179 L.Ed. 2d 172 (2011). They were not a private group

using the park for a private purpose such as camping for recreation. The

place was public with unlimited access until 2007 when the City restricted

use between the hours of 10:00 p.m. to 5:00 a.m.

      {¶13} In Capital Square & Review Advisory Bd. v. Pinette, 515 U.S.

753, 757-770, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995), the Supreme Court

citing Hague v. Commt. for Indus. Organization, 307 U.S. 496, 59 S.Ct. 954,

83 L.Ed. 1423 (1939), held there is a constitutional right to use “streets and

parks for communication of views.” This right to use is based on the fact

that “streets and parks * * * have immemorially been held in trust for the

      3
        We take judicial notice that had this law been in effect when Tom L.
Johnson was running for public office, he would have been arrested for erecting a
tent regardless of his purpose.
public and, time out of mind, have been used for purposes of assembly,

communicating thoughts between citizens, and discussing questions.” Hague

at 515. Thus, the Ku Klux Klan could erect a cross on Capital Square in

Columbus, Ohio, with impunity and without having to seek permission.

        {¶14} Therefore, the appellants’ peaceful activity and the public nature

of the area makes for a perfect blend of the notion that ideas should be

advanced and vetted in the open marketplace, protected by the tenant of the

First Amendment to the United States Constitution.

                        Permission to Speak In Public

        {¶15}   The First Amendment provides in part that “Congress shall

make no law * * * abidging the freedom of speech * * *.” First Amendment to

the U.S. Constitution. As we discussed earlier, the appellants were engaged

in peaceful speech-related activity at the Tom L. Johnson public park. The

appellants should not have been required to obtain permission to use the

park.

        {¶16} In Perry Edn. Assn. v. Perry Local Educators’ Assn., 460 U.S.

37, 45, 103 S.Ct. 948, 74 L.Ed. 2d 794 (1983), the following pronouncement

was made:

        In these quintessential public forums, the government
        may not prohibit all communicative activity. For the
        State to enforce a content-based exclusion it must show
        that its regulation is necessary to serve a compelling state
      interest and that it is narrowly drawn to achieve that end.
       The State may also enforce regulations of the time, place,
      and manner of expression which are content-neutral, are
      narrowly tailored to serve a significant government
      interest, and leave open ample alternative channels of
      communication.

      {¶17} CCO 559.541 was not aimed at the Occupy Movement. It was

enacted in 2007, well before the movement. It is unclear from the record the

interest the City was concerned with and why this ordinance was enacted at

that time.

      {¶18} The City has argued that the ordinance is a time, place, and

manner restriction, content-neutral, and thus constitutional. We conclude

that even a time, place, and manner restriction may be deemed

unconstitutional when it over burdens speech, which is the case here.

      {¶19} Initially, the City argued that the appellants were engaged in

non-speech or at best low-valued speech and this court should review the

City’s law under a rational basis standard. It is undisputed that appellants

were protesting or demonstrating the claimed economic inequality in America

under the tent of a group named Occupy Wall Street. They were expressing

their beliefs and planned to erect tents in the park as further protest to bring

attention to their concerns.

      {¶20}   Consequently, Clark v. Community for Creative Non-Violence,

468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), is not helpful and
inapplicable.   The ordinance in that case specifically banned sleeping in

public parks; the interest was to keep the national parks aesthetically placed

in and near the Capital. The non-violent picketers had a permit to engage in

the use of the park for expressive activity, but did not have a permit to sleep

in the park.     Under the ordinance in Clark, the regulation specifically

forbade sleeping in the nation’s parks. CCO 559.541 does not forbid sleeping;

it forbids absolute presence in the park between 10:00 p.m. and 5:00 a.m.,

regardless of the user’s message or purpose.

        {¶21} It is uncontroverted that this regulation does not specifically

reference any speech activity. The City’s prohibited use law does not ban

picketing or demonstrating specifically.       As a result, it is on its face

content-neutral. The City has not adopted this regulation of speech because

it disagrees with the message being conveyed. Ward v. Rock Against Racism,

491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).            However, an

ordinance may be a content-neutral time, place, and manner regulation and

nonetheless be unconstitutional.    The issue for us is whether it serves a

substantial significant interest; is narrowly tailored; and offers alternative

channels of communication. As to each issue, the City has failed to meet the

United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968),

test.
      {¶22} We must point out that the appellants did not seek a permit for

this quadrant; consequently, we are not concerned with whether the City’s

permit requirement was administered in a content-neutral manner. Also,

the evidence is void in the record of how the City advanced its permit

requirement. Our concern is the prior restraint aspect as it is viewed under

the O’Brien test. Thus, we turn to whether the City’s law restricting use of a

park, although content-neutral, is nonetheless invalid under O’Brien. The

City must establish that it has a significant, substantial interest in having

this law. The City has relied solely on the right to pass laws that protect the

health and safety of its citizens. However, when the freedom of speech is at

issue, the City has a significant burden, which it has not sustained. During

oral argument, the City argued that the ordinance was needed so that

Cleveland could clean the area.     Also, it argued that it was a sanitation

concern because the protesters were planning to sleep at the park.         The

ordinance uses the same health, welfare, and safety language and adds

expense and burden to City’s services and conflicts with other users.

Aesthetics and convenience are not significant interests in this case when the

ban prohibits all speech.

      {¶23} In Snyder, 131 S.Ct. 1207, the court rejected a welfare interest

when the religious group was accused of causing mental anguish to the family
of a deceased serviceman while picketing during the funeral service. The

Supreme Court held when the speaker is in a public place with a public

message of a public concern, the expressive activity may not be burdened

unless it serves a compelling interest.     We are not suggesting that the

Supreme Court has altered the O’Brien test, but if the interest in Snyder did

not suffice, certainly sanitation, convenience, and aesthetics will not suffice

under O’Brien in this case.

      {¶24}     We reiterate that the City failed to present any testimony

regarding a specific interest that concerned the City. It is conceivable that

the City was concerned more with private issues, such as homeless

individuals using the park for the private purpose of sleeping. Here, the

appellants were engaged in the very activity noted by the Supreme Court in

Snyder: engaged in speech-related activity in a public place concerning a

public issue.

      {¶25} The City did not seek to make exceptions for those individuals

seeking to use the park for a speech-related activity. The way the ordinance

is written, it seems to be concerned with those who seek to use the park for

private reasons. Consequently, it is not narrowly tailored. The City argues

that it allows for the users to seek a permit and that is sufficient to meet the

O’Brien test. We disagree.
     “A statute is narrowly tailored if it targets and eliminates
     no more than the exact source of the ‘evil’ it seeks to
     remedy.” Frisby v. Schultz, 487 U.S. 470-485 (quoting
     Members of City Council v. Taxpayers for Vincent, 466 U.S.
     789, 807, (1984). The narrow-tailoring requirement is
     satisfied when the governmental regulation “promotes a
     substantial government interest that would be achieved
     less effectively absent the regulation.” Ward, 491 U.S. at
     799. However, this standard “does not mean that a time,
     place, or manner regulation may burden substantially
     more speech than is necessary to further the government’s
     legitimate interests.     Government may not regulate
     expression in such a manner that a substantial portion of
     the burden on speech does not serve to advance its goals.”
      Id. Yet, this “narrowly tailored” analysis does not require
     a court to decide whether there are alternative methods of
     regulation that would achieve the desired end, but would
     be less restrictive of plaintiffs’ First Amendment rights.
     Id. at 797.

     {¶26} The City’s ordinance impacts the appellants’ right to speak and

engage in speech-related activity.      The City’s purported interest is

convenience and sanitation. It is no question that the appellants are banned

from expressive activity. The City contends that the permit requirement is

sufficiently narrowing. We disagree. The permit’s requirement serves as an

unreasonable ban and has the purpose of eliminating peaceful speech. In

Frisby, 487 U.S. 470 and Snyder, 131 U.S. 1207, the Supreme Court held that

the concern was whether the laws’ impact on speech failed to achieve the

legitimate goals of the City, and instead of meeting these goals, the law
substantially banned more speech than was necessary.          Here, the ban

absolutely forbids access regardless of the purpose.

      {¶27} When balancing the City’s need to clean the park with the right

of appellants to engage in a communicative activity, the latter should always

prevail. Consequently, we believe the City’s law targets and eliminates more

than the evil it seeks to remedy, which it claims is convenience and

sanitation.

      {¶28} Because the City’s law is not narrowly tailored, it is unnecessary

to discuss whether there were alternative channels of communication. At

one point in the record, it was suggested that the police told appellants to

move to another area. Also, we note that the appellants could have used the

Soldiers and Sailors quadrant; it was also suggested that they could have

protested at other hours without penalty. As we have pointed out on several

occasions in this opinion, the City’s regulation burdens the rights of

appellants to use a public place for public discourse on a public matter. The

City must have a significant, substantial interest.       Convenience is an

insufficient interest, and permit laws are by their nature prior restraints of

which a time, place, and manner regulation will not suffice when the

regulation bars more speech than is necessary. Accordingly, under O’Brien,

the City’s prohibited hours law is unconstitutional.
      {¶29} Finally, appellants argue the City’s unauthorized persons law is

unconstitutionally overbroad and facially invalid. The sum of the appellants’

argument is that this law in all of its application directly restricts protected

First Amendment activity. The City argues that the ordinance is designed to

protect the City’s legitimate governmental interests, which are health, safety,

and welfare.

      {¶30} It is well established that a law may be facially void for over

breadth reasons. This occurs even when the appellants are the parties at

interest and the City is acting to regulate matters in its interest: health,

safety, and welfare.    However, when the ordinance sweeps broadly and

burdens the freedom to engage in communicative activity, any interest it

seeks to protect may be overshadowed by its ban on speech.           Here, the

ordinance fails to take into consideration persons who are seeking to use the

park for peaceful protest with a public message of interest to those who might

want to see, hear, or know about the protest. Consequently, we agree with

the appellants that this law on its face is void.   But as such, we believe it

can be narrowed by exempting those who seek to use the park for expressive

activity when the message is of a public concern and there exists individuals

who want to know about the message.
      {¶31}     In conclusion, we hold that the City’s regulation is

content-neutral, but unconstitutional because the appellants’ speech-related

activity occurred in a public forum and thus, the regulation is not narrowly

tailored in ways that the government has showed is necessary to serve a

significant, substantial interest. Thus, we conclude that we need not address

the alternative channels prong of O’Brien.     Besides, we conclude it is not

enough to validate the City’s law.

      {¶32} Judgment reversed and remanded for further proceedings

consistent with this opinion.

      It is, therefore, considered that said appellants recover of said appellee

their costs herein taxed.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, J., and
JAMES J. SWEENEY, J., CONCUR
