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Seum v. Osborne

United States District Court, E.D. Kentucky, Central Division, Frankfort

September 28, 2018

DAN SEUM, JR., Plaintiff,
v.
David Osborne, in his official capacity as Acting Speaker of the Kentucky House of Representatives and Co-Chairman of the Legislative Research Commission, and DAVID BYERMAN, in his official capacity as Director of the Legislative Research Commission, Defendants.

          MEMORANDUM OPINION & ORDER

          GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiff's Motion for a Preliminary Injunction. [R. 17.] For the following reasons, the Court will GRANT Seum's Motion for a Preliminary Injunction.

         I

         Plaintiff Dan Seum, Jr., a resident of Kentucky, is a citizen advocate and was once the Director of Veteran's Affairs at Kentucky for Medicinal Marijuana (Ky4MM), “a non-profit organization working to legalize medicinal use of cannabis in Kentucky.” [R. 1 at 1.] He states that on February 17, 2017, he was present on the third floor of the Capitol Annex to meet with Representative Jerry Miller in order to advocate on purposed legislation. [R. 17-1 at 4.] While awaiting his meeting with Rep. Miller, Seum engaged other advocates in conversation and, in context, quoted a racially charged statement accredited to Harry Anslinger, a former commissioner of the Federal Bureau of Narcotics. [Id. at 5-6.] Seum suggests Anslinger used this rhetoric to promote the criminalization of marijuana. [Id. at 5.] According to Seum, “it was plain in context that Seum was criticizing Anslinger's speech and not endorsing it.” [Id. at 6.] Approximately two weeks later, Seum received a letter from Defendant Byerman advising Seum that, at the direction of Defendant Hoover, Seum was permanently banned from the third floor of the Capitol Annex due to offensive comments Seum made in front of employees of the Legislative Research Commission (LRC). [Id. See also R. 1-1 at 1.]

         Defendants contend Seum's recitation of ‘“racist propaganda' including the racially charged terms ‘colored people' and ‘Negroes' and the phrase that ‘marijuana smoking by white women makes them want to seek sexual relations with Negroes, '” was made in the presence of a LRC employee who took offense to Seum's remarks. [R. 20 at 2-3.] Further, Defendants state that after the LRC employee complained of Seum's conduct, Defendants conducted an investigation, which substantiated the employee's claims and resulted in Seum's banishment from the third floor of the Capitol Annex. [Id. at 3.]

         II

         “A preliminary injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urban Cty. Gov't, 305 F.3d 566, 573 (6th Cir. 2002) (citing Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000) (finding that issuance of a preliminary injunction “involve[es] the exercise of a very far-reaching power, which is to be applied only in the limited circumstances which clearly demand it”)). To issue a preliminary injunction, the Court must balance the following factors: (1) whether the movant has shown a strong likelihood of success on the merits; (2) whether the movant will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the injunction. Overstreet, 305 F.3d at 573. “[W]hen a party seeks a preliminary injunction on the basis of a potential violation of the First Amendment, ‘the likelihood of success on the merits often will be the determinative factor.'” Jones v. Caruso, 569 F.3d 258, 265-66 (6th Cir. 2009). See also City of Pontiac Retired Emps. Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014). However, even where a movant fails to show a strong likelihood of success on the merits, a court may exercise its discretion to grant a preliminary injunction when “the movant has, at minimum, shown serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if the injunction is issued.” Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 399-400 (6th Cir. 1997) (citations omitted).

         A

         Seum essentially sues on four allegations: (1) a violation of his right to petition and access the government; (2) a violation of his right to free speech; (3) First Amendment retaliation; and (4) a violation of right to due process. [See R. 1.] The Court will analyze Seum's likelihood of success on the merits as it relates to those claims.

         1

         For the purpose of this motion, all of Seum's substantive First Amendment claims can be analyzed together. The determination on success on the merits of these claims will turn on whether the third floor of the Capitol Annex is a designated public forum, as Seum contends, or a non-public forum, as Defendants contend. The classification of the forum will determine what level of scrutiny to apply to the governmental conduct. See Helms v. Zubaty, 495 F.3d 252, 256 (6th Cir. 2007) (citing Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 802 (1985)). When determining the forum classification, the Court may look beyond the government's explicit policies concerning the area in question and consider “the nature of the property and its compatibility with expressive activity to discern the government's intent.” Cornelius, 473 at 802 (referencing Widmar v. Vincent, 454 U.S. 263 (1981)).

         On the one hand, a designated public forum results when the government designates property “for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects.” Helms, 495 F.3d at 255 (quoting Cornelius, 473 U.S. at 802). The Sixth Circuit has acknowledge that “[e]ven in designated public fora, the government ‘is not required to indefinitely retain the open character of the facility.'” Id. (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983)). Content-based governmental restrictions on designated public forums must meet strict scrutiny. Id. at 256. Thus, the restriction must be narrowly tailored and serve a compelling state interest. Cornelius, 473 U.S. at 800. On the other hand, a nonpublic forum is “public property which is not by tradition or designation a forum for public communication. . . .” Helms, 495 F.3d at 255. “The government's decision to restrict access in a nonpublic forum ‘need only be reasonable, it need not be the most reasonable or the only reasonable limitation.'” Id. at 256 (quoting Cornelius, 473 U.S. 808).

         Based on the record, which includes affidavits attached to Seum's Motion and exhibits attached to Defendants' Response, the Court determines that the third floor of the Capitol Annex is properly classified as a designated public forum. While the Defendants contend policy is in place to restrict access to the third floor of the Capitol Annex to members of the General Assembly, employees, and those members of the public who have obtained special access authorization from a member or employee [see R. 20 at 2], Seum maintains that the third floor, and especially the lobby area of the Annex's third floor, by practice, has been used for public communication [see R. 17-1 at 11]. For support, Seum attaches an affidavit of Perry Clark, a current Kentucky State Senator, which states, in part, “There is no monitoring nor restriction enforced regarding access to the general areas of the Capitol Annex, including the third floor, by the general public.” [R. 17-4.] It is important to note, Seum challenges the ban so that he may “seek[] access to his state Representatives, which is consistent with the purpose of the forum.” [Id.] Defendants, as support, submit a picture which purports to show a sign restricting access to the lobby area of the Annex's third floor to legislators and staff. [R. 20-2.] However, any member of the public, with or without special access authority, would necessarily have to enter that lobby to gain further access to the office areas of the third floor. And such areas may be classified as designated public forums because the government intends those areas to be used by certain speakers, in this case those with special access authority.

         Because the third floor of the Capitol Annex is deemed a designated public forum for the purposes of this motion, the governmental restriction must be analyzed. Here, the Court finds that Seum's banishment is based on the content of his speech. [See R. 1-1 (“This ban is . . . in response to the offensive comments that you made on February 17, 2017, in front of staff of the Legislative Research Commission.”).] As such, the banishment must meet strict scrutiny. Helms, 495 F.3d at 256. Thus, the restriction must be narrowly tailored and serve a compelling state interest. See Cornelius, 473 U.S. at 800. Although Defendants state the purpose of the ban was “to avoid any potential future harassment of the LRC's employees” [see R. 10-1 at 5], the unequivocal and permanent ban of Seum from the third floor of ...


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