Paul Pfeifer
By Paul Pfeifer

Do you remember the Occupy Wall Street movement? It started in September 2011 when protestors gathered in New York City’s Zuccotti Park. The movement spread to other cities, including Cleveland, where, on October 21, at around 10 p.m., a group known as Occupy Cleveland engaged in a demonstration in the Public Square area.

Police notified the protestors they needed to leave because of the city’s curfew. Several people – including Erin McCardle and Leatrice Tolls – remained. McCardle was arrested and charged with criminal trespass, resisting arrest, and a curfew violation under three different Cleveland ordinances.

Tolls was also arrested and charged with criminal trespass and violating curfew.

Each filed a motion to dismiss the charges, contending that the ordinance establishing a curfew in the Public Square was unconstitutional under the First and Fourteenth Amendments to the United States Constitution.

After a hearing, the court denied the motions, and both women pled no contest to the curfew violation. The remaining charges were dismissed.

Both women filed appeals. The protestors argued that the city’s interests weren’t furthered by the ordinance, let alone furthered in a narrowly tailored way. But the city maintained that the ordinance is not a complete ban on speech. Instead, it simply prohibits any person from remaining in the Square during the designated hours, while allowing unfettered and unrestricted access at all other times of day.

The court of appeals reversed the lower court’s judgment, holding that the ordinance violated the protestors’ First Amendment rights to free speech and assembly. After that, the case came before us – the Ohio Supreme Court.

The ordinance in question states that no unauthorized person shall remain in Public Square “between the hours of 10:00 p.m. to 5:00 a.m.” People may remain in the Square if they obtain a permit. Permits are issued if the proposed activity doesn’t unreasonably interfere with public health and safety, isn’t anticipated to incite violence or disorderly conduct, and won’t entail burdensome expense or police operation by the city.

The First Amendment to the United States Constitution prohibits Congress from “abridging the freedom of speech…or the right of people peaceably to assemble…” (City ordinances are brought within the scope of this prohibition by the Fourteenth Amendment.)

A government entity can’t exclude speakers from a public forum without a compelling state interest. But, the United States Supreme Court has stated that “the First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.” Therefore, even expression “protected by the First Amendment is subject to reasonable time, place, and manner restrictions.”

So was the ordinance constitutional? By a six-to-one vote, our court said yes, and reversed the court of appeals’ judgment.

The majority stated that a “major criterion for a valid time, place, and manner restriction on activities protected by the First Amendment is that the restriction may not be based upon the content, or subject matter, of the speech.” The majority concluded that the ordinance was content neutral because it prohibits persons from remaining in the Square during certain hours without a permit, regardless of their message or activities.

But a content-neutral regulation may still be unconstitutional unless it meets three requirements – it must serve a significant government interest, it must be narrowly tailored, and it must leave open ample alternative avenues of communication. The majority concluded that the ordinance met all three requirements.

The majority claimed that Cleveland’s regulatory aims are presented on the face of the ordinance – to safeguard public health, to protect against violence and criminal activity, to conserve city resources, and to preserve property. According to the majority, those reasons “serve a significant government interest.”

Is the ordinance narrowly tailored? The court of appeals held that it was not sufficiently narrow and that the “permit’s requirement serves as an unreasonable ban and has the purpose of eliminating peaceful speech.”

But the majority of our court determined that since the ordinance doesn’t ban public expression within the Square 24 hours a day, and because late night/early morning activity is possible with a permit, the ordinance is narrowly tailored to serve its significant government interest.

As to the “alternative avenues of communication” requirement – the ordinance leaves open a reasonable opportunity for speech because it expressly excludes “all dedicated streets, public sidewalks adjacent to dedicated streets and…bus shelters within this area.” Consequently, the majority stated, “the protestors could have simply moved off the grass and onto the public sidewalks surrounding the Public Square. They had unrestricted access to the sidewalks adjacent to Public Square and had 17 hours in which they could have been in the square without a permit.”

Therefore, according to the majority, the ordinance permits alterative channels of communication and thus satisfies that requirement.

I cast the dissenting vote. It’s quite clear that the Cleveland ordinance is unconstitutional under the federal Constitution because it is not narrowly tailored to further a significant government interest. One obvious example is enough to put the lie to the majority’s conclusion to the contrary.

McCardle was arrested and charged with violating the ordinance because she remained in Public Square without a permit between 10:00 p.m. and 5:00 a.m. The city asserts, and a majority of our court believes, that the ordinance is necessary to “safeguard public health, to protect against violence and criminal activity, to conserve city resources, and to preserve property.”

And yet the ordinance wouldn’t prohibit 1,000 Ohioans, or foreigners for that matter, from marching from one side of the square to the other, over and over, all night, as long as they do not remain in Public Square.

How can an ordinance that prohibits one person from remaining in Public Square be considered narrowly tailored to serve a significant government interest when the same ordinance allows 1,000 people or 100 or one person to walk back and forth through the park all night? It defies logic.

The ordinance is, in fact, not narrowly tailored to further a significant government interest. Therefore, I dissented.

NOTE: The case referred to is: Cleveland v. McCardle, 139 Ohio St.3d 414, 2014-Ohio-2140. Case No. 2013-0096. Decided May 28, 2014. Majority opinion written by Justice Judith Ann Lanzinger.