October 2017 - Parks & Recreation - 21

tioned the federal district court to issue
a preliminary injunction to enjoin (i.e.,
prohibit) the city from interfering with
the planned demonstration. In so doing,
Kessler claimed the city's decision to revoke the previously granted permit had
violated his right to freedom of speech
as guaranteed by the First and Fourteenth Amendments.
Content-Based Restrictions
As noted by the federal district court, " a
municipal government has no power to restrict expression because of its message, its
ideas, its subject matter, or its content. " To
do so would violate the First Amendment,
made applicable to the state and local government through the Fourteenth Amendment. Moreover, the court acknowledged
that " content-based restrictions " by the government are presumed to be unconstitutional. As characterized by the federal district
court: " Government regulation of speech is
content based if a restriction applies to particular speech because of the topic discussed
or the idea or message expressed. "
Content-based restrictions are not
limited to those that on their face
draw distinctions based on the message a speaker conveys. Instead, they
include those that cannot be justified
without reference to the content of
the regulated speech, or that were
adopted by the government because
of disagreement with the message
the speech conveys.
In this instance, the federal district
court found Kessler had shown that he
was likely to prove at trial that " the decision to revoke his permit was based on
the content of his speech. " In the opinion of the court, Kessler's allegation was
supported by the fact " the City solely
revoked his permit, but left in place the
permits issued to counter-protestors. "
The disparity in treatment between
the two groups with opposing views
suggests that the defendants' decision

to revoke Kessler's permit was based
on the content of his speech rather
than other neutral factors that would
be equally applicable to Kessler and
those protesting against him. This
conclusion is bolstered by other evidence, including communications on
social media indicating that members of City Council oppose Kessler's
political viewpoint.

preliminary injunction hearing " critics
of Kessler and his beliefs would likely
follow him to McIntire Park if his rally
is relocated there. " Further, " given the
timing of the city's decision and the relationship between Kessler's message and
Emancipation Park, " the court found
" supporters of Kessler are likely to still
appear at the [Emancipation] Park, even
if the location of Kessler's demonstra-

...demonstrations and counter-demonstrations can create
challenging First Amendment concerns for public park
and recreation agencies...
Having found sufficient evidence to
indicate the city's decision to revoke Kessler's permit constituted a content-based
restriction of speech, the federal district
court would apply " strict scrutiny " to
this decision. In the doing, to pass constitutional muster, the city would have
to prove that " the restriction furthers a
compelling interest and is narrowly tailored to achieve that interest. "
Speculative Crowd Concerns
According to the city, " the decision to revoke Kessler's permit was motivated by
the number of people likely to attend the
demonstration. " The federal district court,
however, found the city's concerns about
crowd size at Kessler's demonstration were
" purely speculative. " Based on the record,
the court found " no evidence to support the
notion that many thousands of individuals
are likely to attend the demonstration. "
Assuming the city's decision was indeed based on " the number of counter-protestors expected to attend Kessler's
demonstration, " in the opinion of the
court, " merely moving Kessler's demonstration to another park will not avoid a
clash of ideologies or prevent confrontation between the two groups. " In fact,
both sides had acknowledged during the

tion is moved elsewhere. "
Accordingly, the federal district court
found " a change in the location of the
demonstration would not eliminate the
need for members of the city's law enforcement, fire, and emergency medical services personnel to appear at Emancipation
Park. " On the contrary, the court found the
change of location for the demonstration
" would necessitate having personnel present at two locations in the city. "
The federal district court, therefore,
concluded the city's " eleventh-hour decision " to revoke Kessler's permit and
move his demonstration to another park
was not " narrowly tailored to serve
compelling state interests. " Instead, the
federal district court found " the scant record and the undisputed circumstantial
evidence weigh substantially against a
finding that the relocation of the event
furthers a compelling interest and is narrowly tailored to achieve that interest. "
Having concluded that Kessler had
made the requisite showing of a likelihood of success on the merits of his
claim against the city, the federal district
court also found Kessler would suffer irreparable harm if the city's decision to
revoke his permit was allowed to stand.
As noted by the federal district court: " As

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October 2017 - Parks & Recreation

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