Federal appeals court upholds city law barring use of tables to sell products

Monday, May 24, 1999

A Miami Beach, Fla., ordinance prohibiting the use of tables to sell products
along Ocean Drive does not violate the First Amendment, a federal appeals court
recently ruled.

In 1996, city officials enacted an ordinance banning the use of tables for
vending along the tourist-filled street to maintain smooth pedestrian traffic
and to improve aesthetics. The ordinance made an exception for restaurants to
serve food outdoors.

In 1997, city officials created another exception, allowing the limited use
of tables by nonprofit groups at five locations on the east side of the street.

One World One Family Now, a California nonprofit corporation dedicated to
educating the public about spiritual ecology, another religious organization and
an individual challenged the ordinance in federal court in 1997, claiming it
infringed on their First Amendment free-speech rights. The plaintiffs wanted to
sell T-shirts from tables on the public sidewalks along Ocean Drive.

Last year, a federal court upheld the general ban on tables as a valid time,
place and manner restriction on speech.

On appeal, the 11th U.S. Circuit Court of Appeals affirmed that decision on
May 20 in One World One Family Now v. City of Miami Beach.

The 11th Circuit initially ruled that the use of tables to assist in the
selling of T-shirts, books and other items triggered First Amendment analysis,
writing: “our precedent establishes that tables used to distribute protected
literature come within the protection of the First Amendment.”

The appeals court next analyzed whether the law was content-based or
content-neutral. In First Amendment jurisprudence, content-based laws, or laws
that regulate speech based on the content of the speech, are subjected to a
higher level of judicial review than content-neutral laws.

The court found the law to be content-neutral, noting that “the Miami Beach
ordinance does not address the subject matter of any message, but only the
placement of physical structures on the public walkways intended for pedestrian

The court rejected the plaintiffs’ arguments that the law was content-based
because it allowed restaurants to sell food on tables. That distinction, the
court wrote, “does not turn the ordinance into a content-based one — unless we
were to interpret the ordinance as preferring food for the body over food for
the soul, which we decline to do.”

The appeals court next determined whether the content-neutral time, place and
manner restriction was constitutional under U.S. Supreme Court precedent. The
high court has held that cities may impose reasonable regulations on the time,
place and manner of protected speech in a public place if the restriction:

Is justified without reference to the content of the speech.

Is narrowly tailored to serve a significant government interest, and

Leaves open ample alternative channels for communication.

Having already determined the law was content-neutral, the appeals court
addressed whether the law was narrowly drawn. The 11th Circuit deferred to city
officials’ judgments that the restrictions on tables served their interests in
eliminating obstacles for pedestrians and creating an “aesthetic ambiance” in
the area, which has been named to the National Registry of Historic Places.

Finally, the court noted that nonprofit groups, such as the plaintiffs, could
still “speak, communicate and sell […] merchandise freely on the west side of
the street.”

“The only activity prohibited under the ordinance is the use of portable
tables on the west side of Ocean Drive,” the court noted.

The court concluded: “Because this regulation of physical structures on the
public walkways is content neutral, narrowly tailored and leaves open
alternative channels of communication, we find that it does not present an
unreasonable restriction on the time, place, and manner of protected speech.”