The Volokh Conspiracy
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City's Christmas Parade May Not Exclude Pride Float Because Risk of Thrown Objects or Slashed Tires
The court rejects the City's action as implementing a "heckler's veto."
From Friday's opinion by Judge Austin Huffaker (M.D. Ala.) in Prattville Pride v. City of Prattville:
Prattville Pride is a non-profit, LGBTQ organization that alleges that the Defendant, the City of Prattville ("City"), has excluded it from participating in the City's Christmas parade (scheduled to begin at 7:00 p.m. on December 6, 2024; i.e., this evening) in violation of the group's First Amendment right to free speech and right to Equal Protection ….
According to Prattville Pride, the group has complied with all the conditions imposed by the City to participate in the parade. The group has submitted its application, paid its fee, and was granted approval by the City to participate in the parade. Thereafter, certain members of the public made general complaints about Prattville Pride's participation in the parade because of the nature of the organization.
On December 3, 2024, the Prattville City Council met and discussed the group's participation. Apparently, members of the public voiced vehement opposition to Prattville Pride's participation in the upcoming parade…. Yesterday, Prattville Pride informed the City's Police Chief that the group had received threats which "referenc[ed] harmful actions to be taken against [the group] and [its] float during the Prattville Christmas Parade," and therefore the group requested additional security monitoring and presence. Prattville Pride also stated that it was "concerned not only with [its] own safety but that of bystanders and parade goers as well. Having police escorts could be a[n] invaluable deterrent."
In response, the City did not reject the request [f]or additional security, or agree to provide additional security, or offer to investigate the threats. Instead, the City's mayor removed Prattville Pride from the parade, stating: that Prattville Pride had brought to the City's attention "serious safety concerns" and that the "City will not put the rights of parade participants ahead of the safety of []its citizens." …
During a telephone hearing held on the morning of December 6, 2024, the Court inquired of the parties of the nature of the threats. The only threats mentioned were online threats about throwing eggs, rocks, and water at Prattville Pride's float or possibly slashing the float's tires so that it could not roll down the three mile stretch of the parade route….
"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." The First Amendment protects the expression that marching in a parade entails.
The "heckler's veto" is one where governmental action silences "a speaker to appease the crowd and stave off a potentially violate altercation." Bible Believers v. Wayne Cnty. (6th Cir. 2015). In the hearing this morning, the City claimed that prohibiting Prattville Pride's parade participation is the least restrictive means possible to avoid violence, which again is limited to vague online threats of throwing eggs, rocks, or water and slashing the float's tires. {During the hearing, the Court provided counsel for the City with a hypothetical where it asked whether the City would react the same way and remove a float of Alabama fans who wanted to celebrate their Iron Bowl victory in response to similar threats from Auburn fans. Counsel stated that the City would do so. The Court seriously doubts that.}
The heckler's veto is what the Court has before it today. The City removed Prattville Pride from the parade based on its belief that certain members of the public who oppose Prattville Pride, and what is stands for, would react in a disruptive way. But discrimination based on a message's content "cannot be tolerated under the First Amendment," and viewers or "[l]isteners' reaction to speech is not a content-neutral basis for regulation." Forsyth Cnty. v. Nationalist Movement (1992). Thus, the Court finds that the City's decision to remove Prattville Pride from the parade is based on content and speech.
Content-based restrictions are subject to strict scrutiny, a point both sides agree is the applicable level of scrutiny. State action that limits protected speech will not survive strict scrutiny, unless the restriction is narrowly tailored to be the least-restrictive means available to serve a compelling government interest. "[R]emoving[] or [otherwise] silencing a speaker due to crowd hostility will seldom, if ever, constitute the least restrictive means available to serve a legitimate government purpose." Bible Believers.
Here, whether considered under strict scrutiny or a lesser standard, the City has presented no evidence of legitimate, true threats of physical violence. It is undisputed that the threats and public complaints are limited to vague online comments about throwing eggs, rocks, or water at Prattville Pride's float and to the possibility of the float's tires being slashed. At the hearing, the City admitted that the City can easily require two officers to escort Prattville Pride's float during the two-hour long parade and that it would not be burdensome to do so. {During the hearing, counsel for the City represented that the person behind the threat of possible tiring slashing had already been identified by police.} The Court struggles with how the City's decision to remove a law abiding parade participant could ever survive any level of scrutiny when the more easily tailored, and reasonable, response is to simply implement additional security measures, such as two or more law enforcement officers who can walk with the float on the parade route and make an arrest if an egg, water, or rock is thrown.
For the foregoing reasons, … it is ORDERED as follows:
- The City of Prattville SHALL rescind its directive removing Prattville Pride from the subject Christmas parade, and is ENJOINED from prohibiting Prattville Pride from participating in the parade.
- The City of Prattville SHALL provide at least two law enforcement officers to escort Prattville Pride's float during the duration of the parade and to enforce the law as necessary against any person who engages in criminal conduct directed against Prattville Pride during the parade….
I think this would have clearly been the correct result if the City had tried to cancel a privately organized Pride Parade (including one on city streets) that had gotten the proper permits under a content-neutral permitting scheme. But given that this is a city-run parade, it seems to me that under Leake v. Drinkard (11th Cir. 2021), it is the city's speech, and the city can choose to exclude from it viewpoints that it wants to exclude, whether because of risk of even minor disruption (as here) or because of disagreement with the viewpoint (as in Leake, which upheld the city's right to exclude Confederate flags). To quote Leake,
[W]hen governments organize and sponsor a parade to communicate a message, the parade is their speech from which they may include or exclude participants at will. "Since every participating unit affects the message conveyed by the… organizers" of a parade, neither the government nor private parties may compel them "to alter the expressive content of their parade." This principle applies no matter whether the organizer is the government or a private party. A government cannot compel a private parade organizer to admit groups of whose views the private organizer disapproves. Hurley (holding that the State could not compel a private parade organizer to admit a gay, lesbian, and bisexual advocacy group because the "parade's organizers" had a right to choose not "to propound a particular point of view"). And we hold that a private organization cannot compel a government parade organizer to admit groups of whose views the government disapproves.
And while it looks like the parade, like the one in Leake, was open to many people, it was indeed aiming to promote a message (presumably of Christmas cheer), so that the reasoning of Leake would apply. This having been said, the matter had to be decided very quickly, with the government's position presented only at oral argument and not in any docketed written materials. Perhaps there was some concession made at oral argument that would put the matter in a different light, or perhaps it came out that the city had long treated the parade as a limited public forum in which it would accept all participants, regardless of content.
John Tyler Winans and Julia Dianne Collins (The Harris Firm LLC) represent plaintiffs.
