United States District Court, E.D. Kentucky, Central Division, Frankfort
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.
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
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
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.]
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).
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.
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)).
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).
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
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