Rubin v. Young
Rubin v. Young
Opinion of the Court
This matter appears before the Court on Plaintiffs' Motion for Temporary Restraining Order/Preliminary Injunction (Doc. No. [2] ).
I. BACKGROUND
In their Motion, Plaintiffs state that they seek emergency relief to allow them to exercise their First Amendment rights in the public areas of Capitol Square property, which includes the State Capitol Building. Doc. No. [2-1], p. 1. Specifically, Plaintiffs wish to wear a pink button that states: "Don't Fuck With Us[,] Don't Fuck Without Us." Doc. No. [2-1], p. 2. The language in the button is also followed by *1351a logo associated with the organization, Planned Parenthood. Plaintiffs state that: "[t]he first part of the message is intended to convey anger and urge lawmakers not to harm women by banning abortion. The second part of the message is a health advisory that, in a humorous but serious manner, reminds people not to have sexual intercourse without birth control or protection." Id.
In support of their motion, Plaintiffs included declarations in which they state that on March 7, 2019, they were wearing the above-described pink buttons in the public areas of the State Capitol Building and were told to remove the buttons by Capitol Police. Doc. Nos. [4], [5]. Plaintiffs state that they were not doing anything disruptive at the time that they were asked to remove the buttons. Id.
The State Capitol Police Officer Defendants (hereinafter "Defendants") filed a response brief on March 13, 2019. In their affidavits and supporting materials, Defendants assert that individuals wearing the pink buttons at issue were asked to remove them because the language on the buttons was considered "obscene, vulgar, or profane, was worn in the presence of minors, and was threatening an immediate breach of the peace as prohibited by O.C.G.A. § 16-11-39(a)(4)." Doc. No. [11-1], p. 4, ¶ 7.
The Court held a hearing on the motion on March 14, 2019. This matter is now ripe for review.
II. LEGAL STANDARD
The Court considers four factors when deciding whether to issue a preliminary injunction
III. LEGAL ANALYSIS
A. Likelihood of Success on the Merits
As stated above, the first factor when determining whether to issue temporary or preliminary injunctive relief is whether the movant has a substantial likelihood of success on the merits. Parker,
*1352In their Complaint, Plaintiffs assert that Defendants have violated their First Amendment rights by prohibiting them from wearing the pink buttons at issue in public areas of the State Capitol Building. Doc. No. [1], p. 7, ¶ 22.
"The First Amendment prohibits governments from abridging free speech," which includes expressive conduct. N.A.A.C.P. v. Hunt,
Wearing a button with a political message is a form of expression within the protection of the First Amendment. See Minnesota Voters All. v. Mansky, --- U.S. ----,
At the March 14, 2019 hearing, Defendants conceded that the words in the pink button at issue are not fighting words and this Court agrees.
The Defendants' arguments focus on the latter part of the language in the pink button, i.e., "Don't Fuck Without Us," as language directly related to sexual activity and copulation. Plaintiffs agree that the language references sexual intercourse; however, Plaintiffs further assert that all three prongs of the Miller test are not met, as the button has "serious," "political," and "scientific" value in that it "conveys the scientific message that unprotected sex without birth control leads to sexually transmitted diseases and unwanted pregnancies." Doc. No. [2-1], p. 20.
After review, the Court finds that even in assuming that the first two Miller prongs are met, Plaintiffs have presented sufficient evidence to show that the third prong is not met, as a reasonable person could find that when the language in the button is taken as a whole (inclusive of consideration of the Planned Parenthood logo), that the button does not lack serious political and scientific value-to the extent that button is intended to convey a safe sex message. See Sable Commc'ns of California, Inc. v. F.C.C.,
Next, the Court must consider the relevant forum and the accompanying level of scrutiny which the Court must apply in considering the regulations of speech within that forum. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,
Plaintiffs argue that [t]he public interiors of the State Capitol Building are a designated public forum." Doc. No. [2-1], p. 8; see Cornelius,
"Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum." Pleasant Grove City, Utah v. Summum,
As stated above, Defendants concede that the speech restriction at issue is content-based. Accordingly, the Court must apply strict scrutiny and the Court must next determine if Defendants have shown that the restriction is narrowly tailored to serve a compelling government interest. Here, Defendants assert that the compelling government interest is protecting the well-being of the youth who visit the Capitol on a daily basis. Doc. No. [11], *1354p. 7. The United States Supreme Court has "recognized that there is a compelling interest in protecting the physical and psychological well-being of minors [and] that [t]his interest extends to shielding minors from the influence of literature that is not obscene by adult standards." Sable,
Despite this compelling government interest, Defendants have not shown that their restriction on speech is narrowly tailored, as requiring Plaintiffs to remove the buttons no matter where they are standing in the State Capitol constitutes a total restriction on the speech at issue. The Eleventh Circuit Court of Appeals has held that a total exclusion of a free speech expression from the Georgia State Capitol's designated public forum space is not narrowly drawn to achieve a compelling state interest. Chabad-Lubavitch of Georgia v. Miller,
B. Remaining Preliminary Injunction Factors
The Court now turns to the remaining preliminary injunction factors. To succeed under the second factor, Plaintiffs must show "a substantial likelihood of irreparable injury" if a preliminary injunction is not issued. Siegel,
Next, to succeed under the third factor, the Court must consider whether the threatened injury to the movant outweighs the hardship that would be experienced by the opposing party if the preliminary injunction were issued. Parker,
Finally, to succeed under the fourth factor, the Court must determine whether Plaintiffs' requested preliminary injunction would be adverse to public interest.
Plaintiffs' Motion for Temporary Restraining Order/Preliminary Injunction (Doc. No. [2] ) is GRANTED . Accordingly, it is hereby ORDERED that, Defendants and all their respective officers, agents, servants, employees, attorneys, and persons acting in concert of participation with *1355them are immediately enjoined from banning buttons that state, "Don't Fuck With Us[,] Don't Fuck Without Us," on the publicly accessible areas of Capitol Square property as defined by O.C.G.A. § 50-2-28(a) (over which the Capitol Police has jurisdiction, see O.C.G.A. § 35-2-122 ).
IT IS SO ORDERED this 14th day of March, 2019.
While Plaintiffs' motion is styled as a "Motion for a Temporary Restraining Order/Preliminary Injunction," because notice and opportunity to respond were provided to the State Capitol Police Defendants, the Court considers this matter solely as a request for preliminary injunction.
"This First Amendment right is protected from state infringement by the Fourteenth Amendment." Chabad-Lubavitch of Georgia v. Miller,
There is also no evidence that anyone was provoked to violence by seeing the buttons.
The Court recognizes Defendants' arguments concerning applying the Supreme Court's holding in Ginsberg v. New York,
A security for costs/damages will not be required at this time. Fed. R. Civ. P. 65(c).
Reference
- Full Case Name
- Alyson RUBIN and Jennifer Hickey v. Captain Lewis YOUNG, individually and in his official capacity as Chief of the Capitol Police Division of the Georgia Department of Public Safety Officer Wicker and John Doe, individually and in their official capacity as Capitol Police Officers
- Cited By
- 1 case
- Status
- Published