IN THE UNITED STATES
DISTRICT COURT
FOR THE WESTERN DISTRICT OF
TENNESSEE
WESTERN
DIVISION
KENNETH D. LANSING,
)
)
Plaintiff,
)
)
vs.
)
NO.:
)
WALTER E. CREWS,
)
INDIVIDUALLY AND
)
IN HIS OFFICIAL CAPACITY AS )
DIRECTOR OF DIVISION
)
OF POLICE SERVICES FOR THE CITY )
OF MEMPHIS,
)
)
C.S. COOK,
)
INDIVIDUALLY
)
AND IN HIS OFFICIAL CAPACITY AS )
DEPUTY CHIEF WITH THE
)
MEMPHIS POLICE
)
DEPARTMENT, AND
)
)
MAJOR GARRETT,[1]
)
INDIVIDUALLY AND IN HIS OFFICIAL
)
CAPACITY AS AN OFFICER OF THE
)
MEMPHIS POLICE DEPARTMENT
)
)
Defendants.
)
PLAINTIFF’S MEMORANDUM IN
SUPPORT OF HIS MOTION FOR PRELIMINARY INJUNCTION
I.
INTRODUCTION
Kenneth Lansing moves this Honorable Court to issue a preliminary injunction prohibiting the Defendants from restricting his First Amendment liberties. Mr. Lansing, a Christian minister, frequently exercises his free speech rights on Beale Street in Memphis, Tennessee. Special events such as the Memphis in May Beale Street Music Festival are of particular interest to Mr. Lansing as the crowds that are attracted to these events give him an extraordinary opportunity to communicate his message. Not only does Mr. Lansing preach at these gatherings, but he also displays banners or placards that amplify his message. These signs are supported by an aluminum swimming pool extension pole approximately 8 to 10 feet in height. It also features two shower curtain rods for cross bars that further supports the banner.
The use of the pole to support his sign has brought Mr. Lansing in conflict with the Defendants. In response to Mr. Lansing’s free speech activities on Beale Street, the Defendants have promulgated a policy banning sign supports. They have communicated this policy to Mr. Lansing and advised him that he will be subject to arrest if he runs afoul of the policy. As a direct result of this threat, Mr. Lansing has been forced to cease his constitutionally protected activity.
Mr. Lansing moves this Court to grant him a preliminary injunction. He is likely to succeed on the merits as the Defendants’ policy constitutes unconstitutional time, place and manner restrictions on Mr. Lansing’ First Amendment liberties. Mr. Lansing suffers irreparable harm each day he is chilled from conveying his message on Beale Street. The Defendants will suffer no harm if they are precluded from trampling Mr. Lansing’s First Amendment liberties and it is in the public interest to grant the injunction.
II..
STATEMENT OF RELEVANT FACTS
Mr. Lansing is a professing Christian engaged in public ministry to advance his religious beliefs. (Verified Complaint ¶ 11) As a tenet of his faith, Mr. Lansing believes he is discharging a duty to God in publicly proclaiming and communicating his Christian beliefs. (Id.) In order to discharge this duty, Mr. Lansing travels to public areas where he has access to a significant number of individuals with whom to share his message. (Verified Complaint ¶ 12) Mr. Lansing stands on sidewalks or other public ways and communicates his religious message. (Id.)
Mr. Lansing has engaged in speech activities concerning his faith in public areas in the Memphis area for over 30 years. (Verified Complaint ¶ 13) He has no intent to physically touch or harass anyone, or to express himself other than in a peaceful manner. (Id.) There is no intent to encroach upon the private property of any person or entity or to engage in speech activities in any areas other than in public parks, properties, streets, sidewalks or other public ways. (Id.) He has no intent to block or impede ingress or egress of any individual to any property. (Id.)
Since 1982, Mr. Lansing has utilized banners for communicating his message. (Verified Complaint ¶ 14) Mr. Lansing found that in order to communicate his message to a large crowd, he needed a more visible approach. (Id.) From this desire came a ministry developed by Mr. Lansing entitled “Banners Unfurled,” where Mr. Lansing creates and produces banners that contain Christian messages. (Id.) Mr. Lansing provides these banners to other individuals engaged in open-air ministries.
The banners are uniquely designed to communicate a message above the crowd. (Verified Complaint ¶ 15) The banners are customarily attached to a pole 8 to 10 feet in height. It is designed so that one person can carry the banner and yet still have both hands free to use a Bible and pass out religious tracts, while the banner is aloft by using an elbow to secure the pole. (Id.; Exhibit 1) Ordinarily, Mr. Lansing would utilize an aluminum swimming pool extension pole in order to carry the banner. (Id.) The outside diameter of the pole measures approximately 1.25 inches . (Id.)
Mr. Lansing's banners contain numerous Christian messages with all of them referring to certain scriptural passages in the Bible. (Verified Complaint ¶ 16) Mr. Lansing also utilizes artistic renderings pertaining to these messages. (Id.) The combination of the pictures and the wording serves as an effective communication tool when Mr. Lansing is in the midst of large crowds. (Id.)
For the purpose of proclaiming his religious message, with the use of a banner, Mr. Lansing believes he is being called to go to the Beale Street Historic District, particularly during events that draw large crowds of people such as Memphis In May Music Fest, New Year=s Eve, and Fourth of July celebrations. (Verified Complaint ¶ 17) Mr. Lansing has been using his banner at the Beale Street Historic District every Saturday night, unless it rains or the temperature goes well below 30E, many Friday nights also in the summers, since 1992. (Verified Complaint ¶ 18) Until May of 2001, Mr. Lansing never encountered any police opposition to the use of his banner in the Beale Street Historic District. (Id.)
On May 5, 2001, Mr. Lansing and other colleagues visited the Beale Street Historic District for the specific purpose of sharing their religious convictions. (Verified Complaint ¶ 19) Per custom, and as a means of communicating his views, Mr. Lansing and his colleagues carried certain banners in order to share their religious message through pictures and biblical passages, as well as words. (Id.)
On this particular day, however, Mr. Lansing and his companions were instructed by Deputy Chief C. S. Cook of the Memphis Police Department that they could not use their banners on poles. (Verified Complaint ¶ 20) This was the first instruction of this sort that Mr. Lansing has ever received from Memphis Police Department, although he had been using his banners at the Beale Street Historic District almost weekly for almost 10 years. (Verified Complaint ¶ 21)
This mandate denies Mr. Lansing and his colleagues the use of their banners. (Verified Complaint ¶ 22) To have a banner without a metal pole would necessarily require two people on each side of the banner with a cardboard mailing tube on each side that would have to be held up since cardboard tubes would not be rigid or long enough to bear up against any gust of wind. (Id.) Two individuals without access to their Bibles and with difficulty handing out tracts with one hand constantly engaged and the two having to coordinate their efforts to keep the banner tightened up and then trying to move through a crowd and have the crowd move around them would cause the banners to be destroyed or pulled down by someone else. (Id.) The mandate from Deputy Chief C.S. Cook completely eliminated the use of the banners. (Id.)
Deputy Chief C.S. Cook stated that the poles had to go due to the possibility of them being used as weapons should violence erupt on Beale Street. (Verified Complaint ¶ 23) Yet there was absolutely no basis upon which to believe a shower curtain pole or a swimming pool cleaner pole could possibly create a violent situation. (Id.) During the entire period of Mr. Lansing's use of the pole and banner at the Beale Street Historic District, no one has ever been injured. No police have ever been engaged in any action regarding the poles or the banners or to respond to any danger pertaining to anyone’s safety about the poles. (Id.)
Mr. Lansing and his colleagues were ordered to use the banners without the poles or otherwise they would be arrested. (Verified Complaint ¶ 24) Mr. Lansing believed the threat of arrest was a credible one. (Id.) Given this threat, and the inability to speak without the banners, Mr. Lansing and his colleagues departed the area. (Id.)
Mr. Lansing attempted to use other ways of using a banner without the pole. (Verified Complaint ¶ 26) He attempted to use balloons as a way of carrying the banner. Neither the balloons or any other device worked for Mr. Lansing. (Id.) In order to carry the banner, the pole is absolutely necessary. (Id.)
In the early part of 2002, Mr. Lansing knew of the upcoming Memphis In May Music Festival, and further knew of the need of the poles for the banners in order to communicate his religious message during that time. (Verified Complaint ¶ 27) Through counsel, Mr. Lansing contacted Walter E. Crews, Director of Divisional Police Services, for the purpose of relinquishing the mandate pertaining to the poles. (Id.) Mr. Lansing explained the adverse impact on his speech by excluding the poles. (Id.)
Director Crews turned the matter over to Deputy Chief C.S. Cook, who issued the mandate in the first place, and Deputy Chief Cook responded to Mr. Lansing's plea. (Verified Complaint ¶ 28) In the response of the Defendants, Deputy Chief C.S. Cook denied the request from Mr. Lansing to use the poles for his banners. Once again, Deputy Chief C.S. Cook thought the use of a pole posed a Apotential threat for danger.@ (Id.) Deputy Chief C.S. Cook tied this supposed danger with the size of the crowd at that time. (Id.) Elaborating further, Deputy Chief Cook explained that they expected a large crowd to attend the Memphis In May Music Festival and that such conditions required the barring of the poles. (Id.)
On May 4, 2002, Mr. Lansing and some of his colleagues attempted to enter the Beale Street Historic District with their banners on poles. (Verified Complaint ¶ 29) Since Mr. Lansing displayed his banner on a pole the night before in the Beale Street Historic District without incident, he believed he would be able to continue to exercise his First Amendment rights without interference from the Defendants. (Id.) However, on this night Mr. Lansing was ordered by Major Garrett of the Memphis Police to take his pole out of the Beale Street Historic District. (Id.)
On the following day, May 5, 2002, Mr. Lansing and some colleagues entered the Beale Street Historic District again, at approximately 3:30 p.m.. (Verified Complaint ¶ 30) (Id.) The crowd was smaller than the night before. Yet, Major Garrett instructed Mr. Lansing again that he would have to get the poles and banners out of the Beale Street Historic District by approximately 5:00 p.m. (Id.) There were very few people present at the time, but Major Garrett nonetheless thought that the crowd could pick up. (Id.) Mr. Lansing believed that he would be arrested if he persisted in the exercise of his constitutional rights. (Id.)
On May 17, 2002, under weather conditions that were cold and windy, Mr. Lansing and two colleagues, came with one sole banner partly supported by a street-light pole. (Verified Complaint ¶ 31) However, once again, Mr. Lansing was approached by Major Garrett who said that Mr. Lansing could not stay with the banner affixed to the light pole. (Id.)
Mr. Lansing advised Major Garrett that the issue raised by Deputy Chief C.S. Cook pertained to the density of the crowd and due to the lack of individuals in the crowd, he thought he should be able to stay and use the banner. (Verified Complaint ¶ 32) Major Garrett promptly advised Mr. Lansing that such was not the case, and that he would not be allowed to use the pole in the Beale Street Historic District. (Id.)
On May 18, 2002, Mr. Lansing and a few colleagues again proceeded into the Historic District, and carried amongst them only one banner. (Verified Complaint ¶ 33) The crowd was a normal Saturday night crowd, with no special events going on at the time, but due to the cold it was not nearly as large as you would expect. Mr. Lansing was stopped by Major Garrett. Mr. Lansing explained to Major Garrett that the crowd was not excessive. Major Garrett told Mr. Lansing that he could never come back to the Beale Street Historic District with his poles again. (Id.) Mr. Lansing believed that he would be arrested if he did no comply with the officer’s directives. (Id.)
Mr. Lansing pointed out an unattended microphone pole that was in close proximity to Major Garrett and inquired as to whether he and his colleagues were being singled out due to their religious message. (Verified Complaint ¶ 34) Major Garrett replied, “call it what you want, but you can’t go into the area with the poles.” (Id.) Major Garrett further commented: “banners, O.K., but no poles, so what are you going to do?@ (Id.) Mr. Lansing replied that he would leave, which he and his colleagues promptly did. (Id.)
During the last couple of years in which Mr. Lansing's pole use was being restricted and then eventually eliminated, he noted many other similar items in the Beale Street Historic District, including microphone stands being used by musicians in the area, individuals using a crutch, and a variety of poles on awnings and umbrellas being utilized for vendors. (Verified Complaint ¶ 35) At or near the time Mr. Lansing was told by the Defendants that his pole represented a potential hazard to people on Beale Street, he noted a number of items in the Beale Street Historic District that posed a similar “threat.” These included numerous vendor umbrellas supported by poles of similar size and construction to the one supporting Mr. Lansing’s sign; at least two metal easels on Beale street used by street artists and restaurants to display menus to passers-by on the sidewalk; a beer vendor’s canopy that was supported by four aluminum poles similar in size and construction to the one supporting Mr. Lansing’s sign; dozens of chairs, tables, and barstools that are set up on the sidewalk by restaurants who provide alfresco dining during special events on Beale Street; in addition to the tables set up on the sidewalks, at least one restaurant has tables and chairs perched above the street where patrons dine on a large balcony one story above Beale Street; microphone stands and other musical equipment used by bands that play on the street during the Beale Street Music Festival; and four-foot poles with heavy metal bases that support the velvet ropes that divide restaurant outdoor seating areas from the public thoroughfare. (Id.) Of all the poles that Mr. Lansing noticed, only the poles being used for the banners were being excluded from the Beale Street Historic District. (Id.)
As a result of the policy created by the Memphis Police Department and used against Mr. Lansing and his colleagues for the use of poles with their banners, Mr. Lansing has suffered deprivation of his constitutional rights. (Verified Complaint ¶ 36) Mr. Lansing desires to exercise his constitutional rights by using his banner at upcoming Memphis In May Festivals, other large events, as well as weekend nights at the Beale Street Historic District. (Verified Complaint ¶ 37) Yet, the defendants= past acts and policies have placed Mr. Lansing in the unenviable position of having to choose between abandoning the future exercise of his constitutional rights, and his religious duty, or facing arrest, incarceration and prosecution by the Memphis Police Department. (Id.)
The threat of being arrested for merely using poles on his banners containing religious messages severely limits Mr. Lansing's constitutionally protected rights and religious practices on the public grounds of the Beale Street Historic District. (Verified Complaint ¶ 40)
Mr. Lansing is deterred and effectively barred from communicating his religious message in the Beale Street Historic District. (Verified Complaint ¶ 41) Because of the threat issued to him, Mr. Lansing fears that he will be arrested upon engaging in his desired speech on public property. (Id.) The impact of deterring Mr. Lansing from exercising his constitutional rights on public ways in the City of Memphis constitutes irreparable harm to Mr. Lansing. (Verified Complaint ¶ 42) Mr. Lansing has no adequate remedy at law for the loss of his constitutional rights. (Verified Complaint ¶ 43)
III.
APPLICABLE LAW AND ARGUMENT
A. Preliminary Injunction Standard
The standard for granting a party’s motion for preliminary injunction is well settled. In reaching a decision, the Court must consider (1) the plaintiff's likely success on the merits; (2) the risk of irreparable harm to the Plaintiff if the motion is not granted; (3) the risk of substantial harm to others if the motion is granted; and (4) whether granting the injunction is in the public interest. Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1429 (6th Cir. 1997).
B.
The Defendants’ Policy that Limits the Use of Pole-Supported Banners
Constitutes an Unconsitutional Infringement of Mr. Lansing’s Freedom of
Speech.
The Defendants’ decision to deny Mr. Lansing the freedom to raise his banner constitutes an unconstitutional infringement upon Mr. Lansing’s First Amendment liberties. Mr. Lansing has a constitutionally‑protected right to display his message on Beale Street. Public streets “have immemorially been held in trust for the use of the public and, time out of mind, have been used for the purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. Congress of Industrial Organizations, 307 U.S. 469, ___ (1939).
The actions of agents of the Memphis city police have denied Mr. Lansing’s access to this public forum. Mr. Lansing’s use of a pole to assist him in broadcasting his message is hardly a unique issue in American jurisprudence. Government entities have a long history of attempting to restrict the message by restricting the pole to which the message is attached and courts have an equally long history of striking down those attempts.
In Thornhill v. Alabama, 310 U.S. 88 (1940), the Supreme Court addressed a similar issue in the context of labor picketing. In this case, the State of Alabama had criminalized “carrying a sign or placard on a staff above [one’s] head.” Id. at 98-99. The State of Alabama claimed that its restrictions were necessary in order to protect the community from the violence and “breaches of the peace” that often resulted from the message communicated by the picketers. Id. at 105. However, the Supreme Court determined that the possibility of unrest was insufficient to warrant the restriction of the free speech rights of the picketers. Id. at 106.
More recently, the Supreme Court has placed picketing “on the highest rung of the hierarchy of First Amendment values.” Carey v. Brown, 447 U.S. 455, 466-67 (1980). Simply stated, it is a citizen’s First Amendment right to put his message on a stick and display it in a public forum.
While the right to speak is not absolute, the actions of the Defendants do not constitute reasonable time, place and manner restrictions. Time, place and manner restrictions are constitutional only if they are (1) content neutral; (2) narrowly tailored to serve a significant government interest; and (3) leave open ample alternative means of communication. Frisby v. Schultz, 487 U.S. 474, 481 (1988).
1.
Content Neutral
While the Defendants’ policy of barring Mr. Lansing’s use of a pole to raise his banner may be content neutral on its face, its application reveals that his message has been banned under the pretext of public safety. As a result, the policy cannot be said to be content neutral.
There is little doubt that a city has a substantial interest making its streets safe. Hill v. Colorado, 530 U.S. 703, 715 (2000) (safeguarding the health and safety of the citizenry is a traditional exercise of the police power). However, the Defendants may not use such a basis to pretextually ban free speech. See, Project 80’s Inc. v. City of Pocatello, 942 F.2d 635, 638 (9th Cir. 1991) (court rejected city’s proffered reason for banning door-to-door solicitation due to the lack of evidence that such activity led to an appreciable level of crime).
In the instant case, Defendants advised Mr. Lansing that his pole was a threat to the safety of Beale Street due to its potential use as a weapon if disorder were to ensue. However, close in time to Mr. Lansing’s encounter with the police, Beale street was riddled with other such potential weapons and no action was taken by the police to sweep the area of all potential instruments of danger.
For instance, on the night Mr. Lansing was stopped by the police and advised that his pole posed a threat to the safety of Beale street patrons, he observed the following items that posed a similar hazard:
-- numerous vendor umbrellas supported by poles of similar size and construction to the one supporting Mr. Lansing’s sign;
-- at least two metal easels on Beale street used by street artists and restaurants to display menus to passers-by on the sidewalk;
-- a beer vendor’s canopy that was supported by four aluminum poles similar in size and construction to the one supporting Mr. Lansing’s sign;
-- dozens of chairs, tables, and barstools that are set up on the sidewalk by restaurants who provide alfresco dining during special events on Beale Street;
-- in addition to the tables set up on the sidewalks, at least one restaurant has tables and chairs perched above the street where patrons dine on a large balcony one story above Beale Street;
-- microphone stands and other musical equipment used by bands that play on the street during the Beale Street Music Festival; and
-- four-foot poles with heavy metal bases that support the velvet ropes that divide restaurant outdoor seating areas from the public thoroughfare.
(Exhibit 3)
These similarly “dangerous” objects were allowed to remain on Beale Street, while the Defendants drove Mr. Lansing from the area with the threat of arrest. As a result, it cannot be said the policy of the Memphis police to rid Beale Street of items that could be used as weapons in case of a riot is content neutral. If it were, all of the potentially dangerous instruments that menaced Beale Street that night would have been removed, not just Mr. Lansing’s pole.
2.
Narrowly Tailored
In order to pass constitutional muster, the Defendants’ policy of denying Mr. Lansing his right to display his sign on Beale Street must be narrowly tailored to prevent “no more than that exact source of the ‘evil’ it seeks to remedy.” Frisby, 487 U.S. at 485. The First Amendment demands that municipalities provide “tangible evidence” that speech-restrictive “policies are necessary to advance the proffered interest in public safety.” Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 100-01 (1972) (speculative predictions regarding unrest caused by labor picketing insufficient basis for banning all such expressions of free speech).
The decision of the Defendants to deny Mr. Lansing his First Amendment rights on Beale Street are anything but narrowly tailored. The Defendants proffered reason for its action is public safety. In addition to the pretextual problems previously discussed regarding the order for Mr. Lansing to remove his pole while other similar objects littered Beale Street, the Defendants cite to unspecified and unfocused “threats” that motivated their actions. In a letter authored by Deputy Chief C.S. Cook, dated April 17, 2002, he stated:
* * *
As I explained, the issue is not about the size of the banners, which you certainly have the right to display. The issue is about the size of the crowd (estimated at 40.000) on Beale Street and the use of an aluminum (or wood) pole, which under the circumstances poses a potential threat for danger
Since our conversation, I have again thought about the night I met Mr. Lansing. I also recall a shooting which occurred very close to where Mr. Lansing and I stood and talked. I have also thought about our country and this time of potential danger, and have considered your question. I am asking for your understanding of our need to manage the historic district for the safety of our citizens and the businesses.
* * *
(Exhibit 2)
Mr. Lansing understands, and greatly appreciates, the Defendants’ commitment to the safety and security of Beale Street. However, it cannot be said that the Defendants’ policy, as stated in Deputy Chief Cook’s letter, is narrowly tailored to achieve its purpose. The police policy is so overbroad that it impermissibly “sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech.” Thornhill, 310 U.S. at ___.
Deputy Chief Cook’s letter also highlights the vague and arbitrary nature of the Defendants’ policy. As justification for denying Mr. Lansing his First Amendment liberties, the Deputy Chief points to such disparate events as a shooting on Beale Street to the terrorist attacks on America. The lack of a direct or realistic threat posed by Mr. Lansing’s pole shows that the Defendants have cast too wide a net in order to secure Beale Street. See, Edwards v. Coeur D’Alene, 525 F.3d 856, ___ (9th Cir. 2001) (lack of empirical evidence regarding threat of public unrest was a significant factor in determining whether a municipality’s ban on picketing was narrowly tailored).
This Defendants’ policy can hardly be said to be narrowly tailored. It preemptively curtails any activity that could, even in the most remote sense, lead to a perilous situation should some unspecified or unanticipated unrest erupt on Beale Street. Such draconian tactics impermissibly “entrust lawmaking to the moment-to-moment judgment of the policeman on his beat.” Kolender v. Lawson, 461 U.S. 352, 359 (1983). Accordingly, the Defendants’ policy of no sign supports on Beale Street, even if it were uniformly applied, is not narrowly tailored to further the proffered government interest of safeguarding Beale Street.
3.
Alternative Means of Communication
“The First Amendment protects the right of every citizen to reach the ‘minds of willing listeners and to do so there must be opportunity to win their attention.’” Heffron v. Int’l Society for Krisna Consciousness, Inc., 452 U.S. 640, 654 (1981) (quoting Kovacs v. Cooper, 336 U.S. 77, 87 (1949). While theoretically, Mr. Lansing could employ other means of communicating his message, such as leafleting or holding his banner in his hands rather than attaching it to the pole, these methods would not allow him to convey his message as effectively. Alternative methods would rob Mr. Lansing of the opportunity to display his sign while having his hands free to hold his Bible or distribute Christian literature as he can do when his sign is supported by a pole.
Mr. Lansing has no alternative means of effectively communicating his message. In a similar situation, the Ninth Circuit Court of Appeals recently found unconstitutional a city ordinance that banned picketing at city parades. Edwards v. Coeur D’Alene, 525 F.3d 856, ___ (9th Cir. 2001). In that case, the City of Coeur D’Alene allowed parade protesters to display signs and placards, but it banned the attachment of those signs to sticks or poles. Id. at ___. The Ninth Circuit found that these restrictions violated the speakers’ First Amendment liberties. Id. at ___. It noted that “without access to sign handles, signholders in parades and public assemblies cannot hoist their signs in the air so that the messages are visible above a crowd.” Id. at ___. It further ruled out alternative means of communicating without the use of sticks or poles to support the protesters’ banners, finding
[a]s a general rule, parades and public assemblies involve large crowds and significant noise. While some of these mass gatherings are less populated and more orderly than others, it is often difficult to see more than a few feet in any direction, or to hear anyone who isn’t standing nearby. These circumstances make it difficult for individual protestors or participants to convey their messages to the broad audience they seek to attract.
Id. at ___.
Consequently, the Ninth Circuit held that the stick supported signs were absolutely necessary for the protestors to convey their message. This is also the case in Mr. Lansing’s situation. The crowd on Beale Street is often such that Mr. Lansing’s constitutionally-protected speech is lost if he is not able to thrust his message above the throng where it can be seen. In addition to the line-of-sight problem, Mr. Lansing also needs to affix his sign to a pole in order for him to have his hands free to distribute literature or access his Bible. There are no alternative means of communicating that would not greatly compromise Mr. Lansing’s First Amendment liberties.
C.
Application of the Substantive Law to the Preliminary Injunction
Standard
1.
Likelihood of Success on the Merits
The Plaintiff is likely to succeed on the merits. The Defendants’ actions unconstitutionally infringed upon Mr. Lansing’s freedom of speech. As previously established, the Defendants’ actions do not constitute legitimate time, place and manner restrictions. The Defendants’ policy of precluding Mr. Lansing from using a pole to support his banner is not content neutral as applied, it is not narrowly tailored to serve a significant government interest, nor does it leave open ample alternative means of communication. To be a legitimate restriction, the Defendant must show that its policy satisfies all three prongs of the test when, in fact, it fails each part.
As the Court has seen, the Defendants’ have allowed all manner of potentially dangerous instruments to remain on Beale Street while threatening to arrest Mr. Lansing if he persisted in exercising his First Amendment rights. The Defendants’ policy is not narrowly tailored as it allows the police to eject anyone from Beale street in order to guard against an unspecified threat. Finally, the Plaintiff will succeed on the merits because there is no reasonable alternative means of him to communicate his message effectively.
2.
Irreparable Harm
Mr. Lansing will suffer irreparable injury if the injunction is not granted. The loss of First Amendment freedoms, even for only a few moments, results in irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976).
3.
Granting the Injunction Will Cause No Harm to Others
The only conceivable harm that would be suffered by the Defendant is the denial of its ability to enforce an unconstitutional policy. The Defendants will suffer no harm if they are precluded from restricting Mr. Lansing’s free speech.
4.
The Public Interest Favors Granting the Preliminary
Injunction
Given the irreparable harm that would be suffered by Mr. Lansing if the preliminary injunction is denied and the lack of harm that could inure to the Defendants if the injunction is granted, the public interest favors the issuance of the injunction.
IV. CONCLUSION
For the reasons set forth above, the Plaintiff’s Motion for Preliminary Injunction should be granted. Mr. Lansing will likely succeed on the merits because the Defendants’ policy of banning signs attached to poles on Beale Street is an unreasonable time, place and manner restriction on free speech. Mr. Lansing suffers irreparable harm each day he is chilled from conveying his message on Beale Street. The Defendants will suffer no harm if they are precluded from trampling upon Mr. Lansing’s First Amendment liberties and it is in the public interest to grant the injunction.
Respectfully submitted,
KENNETH D. LANSING
_____________________________
JERRY M. LANG
Attorney for the Plaintiff
TN BAR # 015448
_____________________________
NATHAN W. KELLUM
Attorney for the Plaintiff
TN BAR # 013482; MS BAR # 8813
CENTER FOR INALIENABLE RIGHTS
1355 Lynnfield Rd., Suite 263
Memphis, TN 38119
(901) 818-5374
COUNSEL FOR PLAINTIFF