Traditionalist American Knights of Ku Klux Klan v. City of Cape Girardeau
Traditionalist American Knights of Ku Klux Klan v. City of Cape Girardeau
Opinion of the Court
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion for Preliminary Injunction (ECF No. 3). This matter is fully briefed and ready for disposition.
BACKGROUND
On September 6, 2012, Plaintiffs Frank Ancona and other members of the Traditionalist American Knights of the Ku Klux Klan (collectively, “KKK”) filed a Motion for Preliminary Injunction to prohibit Defendant City of Cape Girardeau, Missouri (“Defendant”) from enforcing City of Cape Girardeau, Missouri Code of Ordinances (“Code of Ordinances”) § 22-82 while this case is resolved on its merits. Code of Ordinances § 22-82 provides that “No person shall throw or deposit any handbill in or upon any vehicle; provided, however, that it shall not be unlawful in any public place for a person to hand out or distribute a handbill to any occupant of a vehicle who is willing to accept it.” Violators of the ordinance can be subject to imposition of a fine, imprisonment, or both. Id.
Plaintiffs plan to distribute handbills in the City of Cape Girardeau on September 28, 2012, and on future, undetermined dates. (Memorandum in Support of Motion for Preliminax^y Injunction (“Memorandum”), ECF No. 4, p. 1). In their Motion for Preliminary Injunction, Plaintiffs present a First Amendment challenge to the constitutionality of Code of Ordinances § 22-82.
STANDARD OF REVIEW
“[W]hether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Dataphase Sys. v. CL Sys., 640 F.2d 109, 114 (8th Cir. 1981). “When a plaintiff has shown a likely violation of his or her First Amendment rights, the other requirements for obtaining a preliminary injunction are generally deemed to have been satisfied.” Phelps-Roper v. Troutman, 662 F.3d 485, 488 (8th Cir. 2011) (citing Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008)).
DISCUSSION
Plaintiffs ask the Court to grant its motion for preliminary injunction to preclude the enforcement of Code of Ordinances § 22-82 in anticipation of placing handbills on cars on September 28, 2012 and thereafter.
Plaintiffs primarily rely on Krantz v. City of Fort Smith, 160 F.3d 1214 (8th Cir. 1998), which struck down similar ordinances that prohibited placing a handbill on any other person’s vehicle parked on public property within city limits, unless an occupant of the vehicle was willing to accept the handbill.
Defendant argues that Code of Ordinances § 22-82, which is part of the City’s anti-litter ordinance, does not violate the First Amendment. (Response to Plaintiffs Motion for Preliminary Injunction and Memorandum of Law (“Response”), ECF No. 15, pp. 2-3). Defendant also argues that Plaintiffs have not shown any irreparable harm because Plaintiffs have not been charged with violating the ordinance, only the threat the ordinance will be enforced. (Id., p. 3).
Here, “[n]o one disputes [the KKK’s] right to say [its] piece, repugnant though [its] message be.” McCalden v. California Library Ass’n, 955 F.2d 1214, 1230 (9th Cir. 1992); Invisible Empire of Knights of Ku Klux Klan v. Mayor, Bd. of Comrs., etc., 700 F.Supp. 281, 288 (D.Md. 1988) (“However repugnant that message may be to the citizens of Thurmont, its public officials, and, indeed, this Court, the KKK has the right to communicate it to the public in some manner.”). The sole issue is whether Defendant can limit the method the KKK wishes to use to distribute its message in order to promote Defendant’s purported government interest of preventing litter. Although Defendant asks the Court to follow the decision in Jobe, the Court is constrained by the holding of the Eighth Circuit in Krantz v. City of Fort Smith, 160 F.3d 1214 (8th Cir. 1998). See Jay Packaging Group, Inc. v. Mark Andy, Inc., No. 4:10MC00763 ERW, 2011 WL 208947, at *2, 2011 U.S. Dist. LEXIS 5721, at *4 (E.D.Mo. Jan. 21, 2011) (“this Court is bound to follow the established law of the Eighth Circuit”). Based upon the reasoning and holding of Krantz, the Court finds that Plaintiffs will likely succeed on the merits of this case. In addition, the Court finds that the balance of the equities and the public interest weigh in favor of granting the injunction so as to allow freedom of speech. Defendant has not provided any evidence that “a cause-and-effect relationship actually exists between the placement of handbills on parked cars and litter that impacts the health, safety, or aesthetic well-being of’ residents of Cape Girardeau. Krantz, 160
CONCLUSION
For the foregoing reasons, the Court finds that Plaintiffs have established the requirements necessary for a preliminary injunction on its claim under the First Amendment of the U.S. Constitution.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Preliminary Injunction [3] is GRANTED. Defendant City of Cape Girardeau, Missouri is preliminarily enjoined from enforcing City of Cape Girardeau Code of Ordinances § 22-82.
IT IS FURTHER ORDERED that Plaintiffs must provide a $100 bond for the preliminary injunction to be effective.
. Plaintiffs never identify the significance of this date.
. The plaintiffs challenged ordinances in Alma, Dyer, Fort Smith and Van Burén, Arkansas. The ordinances in these cities were all substantially similar. For example, Van Burén, Arkansas Ordinance No. 5-1983 provided in relevant part:
SECTION 3. It shall be unlawful for any person to place or deposit any commercial or non-commercial handbill or other hand-distributed advertisement upon any vehicle not his own, or in his possession, upon any public street, highway, sidewalk, road, [or] alley within the City of Van Burén, providing, however, that it shall not be unlawful upon any such street or other public place for a person to hand out and distribute to the receiver therefor, any handbill to any occupant of the vehicle that is willing to accept it.
Krantz, 160 F.3d at 1216.
. § 113.05 Placing Posters on Vehicles
It shall be unlawful for any person to place or deposit or in any manner to affix or cause to be placed or deposited or affixed to any automobile or other vehicle or other automotive vehicle, any handbill, sign, poster, advertisement, or notice of any kind whatsoever, unless he be the owner thereof, or without first having secured in writing the consent of the owner thereof.
. As in Krantz, the court recognized that "[t]o qualify as a reasonable time-place-and-manner regulation of speech, the law must (1) be content-neutral, (2) serve a significant government interest, (3) be narrowly tailored to serve that government interest and (4) leave open ample alternative channels of communication.” Jobe, 409 F.3d at 267.
. The Court afforded the parties an opportunity for an evidentiary hearing but both sides declined and indicated that they wanted the Court to rule based upon the briefs. See ECF No. 18.
Reference
- Full Case Name
- TRADITIONALIST AMERICAN KNIGHTS OF THE KU KLUX KLAN v. CITY OF CAPE GIRARDEAU, MISSOURI
- Status
- Published