“When the Government restricts speech, the Government bears the burden of provingthe constitutionality of its actions.”
United States v. Playboy Entertainment Group, Inc.
,529 U.S. 803, 816 (2000);
Ashcroft v. American Civil Liberties Union
, 542 U. S. 656, 666(2004). Ordinarily “the burdens at the preliminary injunction stage track the burdens attrial.”
Gonzales v. O Centro Espirita
, 546 U.S. 418, 429 (2006). But the burden isinverted in this constitutional challenge. This Court should grant both a temporaryrestraining order and preliminary injunction unless the City can show that Plaintiffs areunlikely to succeed on the merits.
B. The Ordinance Is A Prior Restraint On Free Speech In A TraditionalPublic Forum—Subject To Heightened Judicial Scrutiny.
Plaintiffs desire to communicate on a public sidewalk—a traditional public forumthat occupies "a special position in terms of First Amendment protection."
Boos v. Barry
,485 U.S. 312, 318 (1988), quoting
, 461 U.S. 171, 180 (1983).The government's ability to restrict expressive activity in such places "is very limited."
. at 177. Jacksonville's permit scheme is a prior restraint because it requires groups toobtain a permit before engaging in constitutionally protected speech.
Cox v. City of Charleston
, 416 F.3d 281, 284 (4th Cir. 2005);
Shuttlesworth v. City of Birmington
, 394U.S. 147, 150-151 (1969). There is a "heavy presumption" against its constitutionality.
Forsyth County v. Nationalist Movement,
505 U.S. 123, 130 (1992);
Bantam Books, Inc.v. Sullivan,
372 U.S. 58, 70 (1963).It is offensive—not only to the values protected by the First Amendment, but tothe very notion of a free society—that in the context of everyday public discoursea citizen must first inform the government of her desire to speak to neighbors andthen obtain a permit to do so.
Watchtower Bible & Tract Soc't of NY, Inc. v. Vill. of Stratton
, 536 U.S. 150, 165-66(2002).
Page 3 of 20
Case 4:11-cv-00187-BO Document 2-1 Filed 11/01/11 Page 3 of 20