7th Circuit gives new life to anti-gay protester’s lawsuit

Tuesday, August 9, 2005

Ralph Ovadal undoubtedly got the reaction he wanted. Then — maybe even to his own surprise — he got the court decision he wanted, too.

Ovadal is a Christian minister who in 2003 led a small group of followers to a pedestrian overpass spanning one of the busiest highways in Madison, Wis. There the group unfurled large banners reading “Homosexuality is sin” and “Christ can set you free.”

Many drivers and passengers in the rush-hour traffic reacted angrily to the signs. Some responded with rude hand gestures. Others slammed on their brakes, causing several near-accidents. One even came up through her car’s sunroof to yell at Ovadal.

Unsure what to do, Madison police first told Ovadal the group would have to leave. The police then said the group could stay. Finally, the police told the protesters they would be arrested for disorderly conduct if they did not leave the overpass.

A month later, Ovadal and his group tried to launch a similar protest on a different overpass. Madison police again forced them to leave, telling Ovadal he could not display signs on any overpass in Madison.

Ovadal sued the Madison police in federal court, claiming this total ban on speech violated his First Amendment rights. The trial court judge, however, found the restriction reasonable and granted the defendants’ motion for summary judgment. Ovadal then appealed to the 7th U.S. Circuit Court of Appeals.

In a somewhat surprising unanimous decision in Ovadal v. Madison, a three-judge panel of the 7th Circuit reversed the trial court’s ruling and ordered the court to conduct a hearing on Ovadal’s claim. Though the appellate court’s July 19 opinion was not a complete victory for Ovadal, the panel’s reasoning suggests it will be difficult for Madison to target Ovadal’s overpass speech.

Recognizing that “Ovadal’s use of signs and banners to express a religious viewpoint is at the core of the speech that the First Amendment protects,” the court applied traditional public-forum analysis to determine the extent of that protection. Under this analysis, a court evaluates restrictions on speech according to the forum in which the speech takes place. If the speech occurs in a public forum (a street, sidewalk or other place that historically has hosted public assemblies), the government can regulate the speech only through content-neutral time, place or manner restrictions. If the speech occurs in a non-public forum, the government can more easily regulate speakers based on the content of their message.

Perhaps most surprising about the 7th Circuit’s decision was the ease with which the court found a pedestrian overpass to be a public forum. Citing only cases in which the public nature of sidewalks had been considered, the court without hesitation concluded a highway overpass is “a portion of a public sidewalk” and therefore is a public forum. Conspicuous by its absence was a discussion by the court of any history of public assemblies on pedestrian overpasses.

Having defined overpasses as public forums, the court next analyzed whether the Madison police were applying a policy banning all protests and signs on overpasses or a narrower policy targeting only certain speech. A blanket ban, the court said, would be permissible because it would be content-neutral. A narrower restriction, it indicated, would be difficult to justify.

The Madison police said their approach was a narrower one that could be justified. Under their policy, they said, signs and protests on overpasses are prohibited only if they impair traffic safety. Officers therefore gauge drivers’ reactions — not the content of the speech — when deciding whether to allow a protest to continue.

Concluding the evidence in the case was insufficient to determine whether this ad hoc approach could be applied in a content-neutral manner, the 7th Circuit ordered the trial court to conduct a hearing on the issue. The appellate court, however, expressed skepticism about the police’s ability to prevail and, in the process, showed surprisingly little deference to the officers’ concerns for traffic safety.

Citing the U.S. Supreme Court’s decision in Forsyth County v. Nationalist Movement (1992), the court said a listener’s reaction to speech cannot be a content-neutral basis for regulating the speech. While the court conceded that drivers’ reactions to Ovadal’s speech created a safety hazard, it asserted “it is the reckless drivers, not Ovadal, who should have been dealt with by the police.” To punish Ovadal, the court said, would be to give the drivers an unconstitutional “heckler’s veto” over his speech.

As Ovadal’s case returns to the trial court, the focus turns to the Madison Police Department. Will it adopt a blanket ban the appellate court already has said would be constitutional? Will it maintain the ad hoc approach the appellate court already has criticized? Or will it try to create a policy more neutral than its ad hoc approach but less restrictive than a blanket ban?

At this point, all Ovadal can do is wait and see. But as usually happens in First Amendment cases, the free-speech rights of many people in addition to Ovadal are suddenly now in play.

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