Case 2:09-cv-12321-PDB-RSW Document 1 Filed 06/16/09 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

ARABIC CHRISTIAN PERSPECTIVE; and GEORGE SAIEG,
Plaintiffs,
v.
CITY OF DEARBORN; and RONALD HADDAD, in his official capacity as Chief of Police, City of Dearborn Police Department,
Defendants.

COMPLAINT Demand for Jury Trial

THOMAS MORE LAW CENTER Robert J. Muise, Esq. (P62849) Richard Thompson, Esq. (P21410) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 rmuise@thomasmore.org (734) 827-2001
THE BECKER LAW FIRM William J. Becker, Jr., Esq.* 11500 Olympic Blvd., Suite 400 Los Angeles, CA 90064 (310) 636-1018 *Subject to admission
Counsel for Plaintiffs _____________________________________________________________________________
Plaintiffs Arabic Christian Perspective (hereinafter “ACP”) and George Saieg, by and
through their undersigned counsel, bring this Complaint against the above-named Defendants,
their employees, agents, and successors in office, and in support thereof allege the following
upon information and belief:

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INTRODUCTION 1. This case seeks to protect and vindicate fundamental constitutional rights. It is a civil rights action brought under the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983, challenging Defendants’ policy, practice, custom, and/or procedure of restricting Plaintiffs’ right to engage in religious speech activity in a traditional public forum in the City of Dearborn during the 14th Annual Dearborn Arab International Festival (hereinafter “Free Speech Restriction”). 2. The United States Supreme Court has long recognized that all public streets are properly considered traditional public fora. Public streets have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. The Supreme Court has emphasized that the streets are natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place. The public streets in the City of Dearborn are no exception. 3. Plaintiffs seek a declaration that Defendants violated their clearly established constitutional rights as set forth in this Complaint; a declaration that Defendants’ Free Speech Restriction violates the United States Constitution and 42 U.S.C. § 1983 as set forth in this Complaint; a declaration that through the enforcement and attempted enforcement of Defendants’ Free Speech Restriction, Defendants have substantially burdened and unlawfully infringed upon Plaintiffs’ rights to religious exercise, religious expression, and expressive association in violation of the United States Constitutions and 42 U.S.C. § 1983; a temporary
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restraining order, preliminary injunction, and permanent injunction enjoining the enforcement of Defendants’ Free Speech Restriction as set forth in this Complaint; and nominal and compensatory damages for the harm caused by Defendants. Plaintiffs also seek an award of reasonable costs of litigation, including attorneys’ fees and expenses, pursuant to 42 U.S.C. § 1988 and other applicable law.
JURISDICTION AND VENUE 4. This action arises under the Constitution and laws of the United States. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1343. 5. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, and by the general legal and equitable powers of this Court. Venue is proper under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this district.
PLAINTIFFS 6. Plaintiff ACP is a non-profit corporation recognized by the Internal Revenue Service as a 501(c)(3) organization. ACP is incorporated under the laws of the State of California. 7. ACP is a national ministry established for the purpose of proclaiming the Holy Gospel of Jesus Christ to Muslims. As part of its outreach efforts, ACP travels around the country attending and distributing Christian literature at Muslim festivals and mosques. ACP members and volunteers are drawn from various church affiliations, cities, and backgrounds. The members and volunteers of ACP have the desire to practice their religious freedom and to
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follow their religious duty based on the Great Commission. 8. Plaintiff George Saieg is an adult resident of California and the founder and
director of ACP. He is a Christian pastor with a deeply-held religious conviction to evangelize to non-Christians. Evangelizing and handing out religious literature and materials are important aspects of Plaintiff Saieg’s religious beliefs and vocation.
DEFENDANTS 9. Defendant City of Dearborn (hereinafter “City”) is a municipal entity organized and existing under the laws of the State of Michigan. It is a municipal corporation with the right to sue and be sued. The City and its officials are responsible for creating, adopting, and enforcing the rules, regulations, ordinances, laws, policies, practices, procedures, and/or customs of the City, including the Free Speech Restriction and others related to the 14th Annual Dearborn Arab International Festival. 10. Defendant Ronald Haddad is the chief of police for the City of Dearborn Police Department. As the chief of police, he is responsible for creating, adopting, and enforcing the rules, regulations, ordinances, laws, policies, practices, procedures, and/or customs of the City, including the Free Speech Restriction and others related to the 14th Annual Dearborn Arab International Festival. Defendant Haddad is sued in his official capacity only.
STATEMENT OF FACTS 11. The City is one of the most densely populated Muslim communities in the United States. It is estimated that out of 98,000 inhabitants, nearly 30,000 are Muslims. Consequently, the City is an important place for ACP’s outreach efforts.
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12. For the past five years, ACP members and volunteers, including Plaintiff Saieg, have visited the City to attend the annual Dearborn Arab International Festival (“Festival”). During each of these years, ACP members and volunteers freely roamed the Festival, handing out religious literature and discussing their Christian faith.
13. During prior visits, Plaintiffs have never caused any disruption to the Festival with their peaceful, non-obstructive speech activities. In fact, among the people approached by Plaintiffs at the Festival, approximately eighty to ninety percent of them willingly accept Plaintiffs’ religious materials. ACP members and volunteers have also visited the homes of Dearborn-area Muslims where they are often cordially invited in for tea or dinner.
14. The Festival, which is open to the public, will be held again in the City from Friday, June 19, 2009 through Sunday, June 21, 2009. The Festival boundaries this year are as follows: Warren Avenue between Hartwell and Kingsley Street; Miller Road between Warren Avenue and Blesser Street. Plaintiffs plan to be at the Festival during each of these days to hand out religious literature and materials and to evangelize those who attend. Plaintiffs’ materials do not contain solicitations nor do they contain commercial speech; they contain religious messages.
15. While the roads are closed for vehicle traffic during the Festival, the public sidewalks remain open for pedestrian traffic in the City, including pedestrian traffic not associated with the Festival. For example, local commercial establishments remain open, and pedestrians visit these establishments for commercial purposes while the Festival is being held.
16. Plaintiff Saieg was born and grew up in the Sudan where he never had the basic freedom to share his religious beliefs with others. Plaintiff Saieg praises God for the United States of America and for its Constitution, which guarantees him the right to practice and speak
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to others about his religious faith, and to gather with others for that purpose, which is part of the mission of ACP.
17. In early June 2009, Plaintiff Saieg telephoned the Dearborn Police Department and spoke to Sergeant Jeff Mrowka. Plaintiff’s purpose for telephoning the Police Department was to introduce himself and his organization, to inform Defendants of Plaintiffs’ peaceful intention to visit the Festival once again this year to distribute religious literature and evangelize, and to request information concerning the precise location of the event. Sergeant Mrowka said he would call Plaintiff Saieg back with the requested information.
18. When Plaintiff Saieg did not promptly hear back from Sergeant Mrowka, on June 9, 2009, Plaintiff telephoned him again. During that conversation, Sergeant Mrowka asked Plaintiff Saieg to send him an email with the name of his group, contact information, and details about when Plaintiffs planned to be at the Festival. Sergeant Mrowka advised Plaintiff of the Festival’s location and stated that ACP’s speech activities would now be restricted to a designated corner on the east side of the Festival. Accordingly, Plaintiffs would be denied the right to use the public sidewalks to hand out its religious materials and to discuss their Christian faith.
19. Upon being told of the Free Speech Restriction, Plaintiff Saieg informed Sergeant Mrowka that this was unacceptable because ACP members and volunteers were expected to number more than ninety people, that Plaintiffs had never experienced any problems during past visits to the City and the Festival, that it would be impractical for so many people to be restricted to a single corner of the Festival, and that to be so restricted would prevent Plaintiffs from reaching their intended audience with their religious message. Plaintiff Saieg told Sergeant
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Mrowka that the purpose of Plaintiffs’ outreach mission would be frustrated if they were so restricted by City officials.
20. During this conversation with Sergeant Mrowka, Plaintiff Saieg also informed the officer that ACP members and volunteers had attended the Festival for the past five years without incident, and that he instructs them to observe specific rules regulating their activities. Plaintiff Saieg instructs his members and volunteers not to distribute religious materials within the Festival, which occupies the street itself, and to remain on the public sidewalks on either side of the street. He also advises them that they should not block any pedestrian traffic along the sidewalks when they are handing out their materials. Plaintiffs have always complied with these simple rules, and there has never been a problem in the past. Consequently, Plaintiffs’ speech activity is peaceful and non-obstructive.
21. Sergeant Mrowka responded to Plaintiff Saieg by stating that political parties and protesters are limited to a specific area. Plaintiff told the officer that ACP and its members and volunteers were neither a political party nor protestors.
22. Following this conversation with Sergeant Mrowka, Plaintiff Saieg tried to contact Defendant Haddad via telephone and was referred to Commander Joe Doulette, Sergeant Mrowka’s supervisor. Plaintiff Saieg attempted to contact Commander Doulette, but had to leave him a voicemail message regarding his concerns and objections with the Free Speech Restriction. Commander Doulette did not return Plaintiff’s call.
23. After his futile attempts to get Defendants’ Free Speech Restriction lifted for Plaintiffs’ religious speech, Plaintiff Saieg attempted to get the matter resolved through counsel.
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Despite these efforts, Defendants have refused to lift their Free Speech Restriction, thereby denying Plaintiffs access to the public sidewalks in the City for free speech activity.
24. Approximately 300,000 people annually attend the Festival. Unless an injunction is issued, ACP and its members and many volunteers, who will be traveling from around the country at their own expense, will suffer irreparable harm if they are not able to fully participate in ACP’s outreach mission. Many of the volunteers have limited financial resources and will be deprived of their opportunity to evangelize at great personal cost.
25. Additionally, Plaintiffs have already invested in Gospel materials for the Festival, including leaflets, DVDs, various booklets, and books, which are packaged into a bundle and ready to be distributed to willing takers. In all, Plaintiffs have prepared 15,000 separate packages at a cost of approximately $50,000. These packages are to be given away at no cost as part of Plaintiffs’ speech activity. Plaintiffs recruited and/or invited ten guest speakers and leaders who will partake in a training program for volunteers prior to the start of the Festival. These individuals act as team leaders during the outreach program. ACP provides these leaders with airfare, lodging, ground transportation, and food at a cost of approximately $15,000. ACP also incurred a charge of approximately $2,000 for the rental of a training facility. ACP’s outreach program in the City involves more than six months preparation.
26. In light of Plaintiffs’ history of attending the Festival for many years without incident, Defendants have no basis for believing or concluding that Plaintiffs’ presence on the public sidewalks of the Festival for the purpose of handing out religious materials and discussing their Christian faith poses any public safety or security risks to justify restricting Plaintiffs’ expressive activity. Also, the public interest is best served by granting Plaintiffs free access to
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the Festival, specifically including free access to the public sidewalks adjacent to the Festival, so that they and those they associate with can exercise their fundamental rights.
27. Defendants’ Free Speech Restriction deprives Plaintiffs of their fundamental rights protected by the First and Fourteenth Amendments to the United States Constitution.
FIRST CLAIM FOR RELIEF Freedom of Speech—First Amendment
(42 U.S.C. § 1983) 28. Plaintiffs hereby incorporate by reference all above-stated paragraphs. 29. By reason of the aforementioned Free Speech Restriction, created, adopted, and enforced under color of state law, Defendants have deprived Plaintiffs of their right to engage in religious expression in a traditional public forum in violation of the Free Speech Clause of the First Amendment as applied to the states and their political subdivisions under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 30. As a direct and proximate result of Defendants’ violation of the Free Speech Clause of the First Amendment, Plaintiffs have suffered irreparable harm, including the loss of their constitutional rights, entitling them to declaratory and injunctive relief and damages.
SECOND CLAIM FOR RELIEF Freedom of Expressive Association—First Amendment
(42 U.S.C. § 1983) 31. Plaintiffs hereby incorporate by reference all above-stated paragraphs. 32. By reason of the aforementioned Free Speech Restriction, created, adopted, and enforced under color of state law, Defendants have deprived Plaintiffs of their right to expressive association guaranteed by the First Amendment as applied to the states and their political
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subdivisions under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
33. As a direct and proximate result of Defendants’ violation of the First Amendment, Plaintiffs have suffered irreparable harm, including the loss of their constitutional rights, entitling them to declaratory and injunctive relief and damages.
THIRD CLAIM FOR RELIEF Free Exercise—First Amendment
(42 U.S.C. § 1983) 34. Plaintiffs hereby incorporate by reference all above-stated paragraphs. 35. By reason of the aforementioned Free Speech Restriction, created, adopted, and enforced under color of state law, Defendants have deprived Plaintiffs of their right to religious exercise in violation of the Free Exercise Clause of the First Amendment as applied to the states and their political subdivisions under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 36. As a direct and proximate result of Defendants’ violation of the Free Exercise Clause of the First Amendment, Plaintiffs have suffered irreparable harm, including the loss of their constitutional rights, entitling them to declaratory and injunctive relief and damages.
FOURTH CLAIM FOR RELIEF Equal Protection—Fourteenth Amendment
(42 U.S.C. § 1983) 37. Plaintiffs hereby incorporate by reference all above-stated paragraphs. 38. By reason of the aforementioned Free Speech Restriction, created, adopted, and enforced under color of state law, Defendants have deprived Plaintiffs of the equal protection of
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the law guaranteed under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983 by denying Plaintiffs access to a traditional public forum to engage in religious speech activities while permitting others to use this forum for commercial activities, thereby denying the use of this forum to those whose expressive activities Defendants find unacceptable.
39. As a direct and proximate result of Defendants’ violation of the Equal Protection Clause, Plaintiffs have suffered irreparable harm, including the loss of their constitutional rights, entitling then to declaratory and injunctive relief and damages.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs ask this Court: A) to declare that Defendants’ Free Speech Restriction violates the First and Fourteenth Amendments to the United States Constitution as set forth in this Complaint; B) to permanently enjoin Defendants’ Free Speech Restriction and its application to Plaintiffs’ speech and activities as set forth in this Complaint; C) to award Plaintiffs their reasonable attorney fees, costs, and expenses pursuant to 42 U.S.C. § 1988 and other applicable law; D) to grant such other and further relief as this Court should find just and proper.
DEMAND FOR JURY TRIAL Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs hereby demand a trial by jury of all issues triable of right by a jury.
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Case 2:09-cv-12321-PDB-RSW Document 1 Filed 06/16/09 Page 12 of 12 Respectfully submitted, THOMAS MORE LAW CENTER /s/ Robert J. Muise Robert J. Muise, Esq. (P62849) THE BECKER LAW FIRM William J. Becker, Jr., Esq.* *Subject to admission Counsel for Plaintiffs
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 Case 2:09-cv-12321-PDB-RSW Document 13 Filed 07/07/09 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

ARABIC CHRISTIAN PERSPECTIVE; and GEORGE SAIEG,
Plaintiffs,
v.
CITY OF DEARBORN; and RONALD HADDAD, in his official capacity as Chief of Police, City of Dearborn Police Department,
Defendants.

NO.2:09-cv-12321-PDB-RSW FIRST AMENDED COMPLAINT Demand for Jury Trial Judge Paul D. Borman Magistrate Judge Whalen

THOMAS MORE LAW CENTER Robert J. Muise, Esq. (P62849) Richard Thompson, Esq. (P21410) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106
(734) 827-2001
THE BECKER LAW FIRM William J. Becker, Jr., Esq. * 11500 Olympic Blvd., Suite 400 Los Angeles, CA 90064 (310) 636-1018 *Subject to admission
Counsel for Plaintiffs

Debra A. Walling (P37067) Laurie M. Ellerbrake (P38329) 13615 Michigan Avenue, Suite 8 Dearborn, MI 48126 (313) 943-2035
Counselfor Defendants

Plaintiffs Arabic Christian Perspective (hereinafter "ACP") and George Saieg, by and through their undersigned counsel, bring this First Amended Complaint against the above-named Defendants, their employees, agents, and successors in office, and in support thereof allege the following upon information and belief:

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INTRODUCTION 1. This case seeks to protect and vindicate fundamental constitutional rights. It is a civil rights action brought under the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983, challenging Defendants' policy, practice, custom, and/or procedure of restricting Plaintiffs' right to engage in religious speech activity in traditional public fora in the City of Dearborn during the Annual Dearborn Arab International Festival (hereinafter "Free Speech Restriction"). Defendants' Free Speech Restriction prohibited Plaintiffs from distributing their religious materials at no charge to willing recipients on the public sidewalks and within other public places during the 2009 annual festival and relegated them to a fixed, remote location that denied them access to their intended audience and frustrated their efforts to evangelize. 2. The United States Supreme Court has long recognized that all public streets and sidewalks are properly considered traditional public fora. These public fora have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. The Supreme Court has emphasized that the streets and sidewalks are natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place. The public streets and sidewalks in the City of Dearborn are no exception. 3. Defendants' Free Speech Restriction favors commerCial speech over noncommercial speech and is thereby an impermissible content-based restriction. Moreover, the
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Free Speech Restriction is not narrowly tailored to serve a substantial government interest nor does it leave open ample alternatives for Plaintiffs' religious speech.
4. Defendants' selective enforcement of the Free Speech Restriction disfavored Plaintiffs' Christian religious speech and favored other viewpoints, messages, and speech, including commercial speech and solicitations.
5. Plaintiffs seek a declaration that Defendants violated their clearly established constitutional rights as set forth in this First Amended Complaint; a declaration that Defendants' Free Speech Restriction violates the United States Constitution and 42 U.S.C. § 1983 as set forth in this First Amended Complaint; a declaration that through the enforcement and attempted enforcement of Defendants' Free Speech Restriction, Defendants have substantially burdened and unlawfully infringed upon Plaintiffs' rights to religious exercise, religious expression, and expressive association in violation of the United States Constitution and 42 U.S.C. § 1983; a preliminary and permanent injunction enjoining the enforcement of Defendants' Free Speech Restriction as set forth in this First Amended Complaint; and nominal and compensatory damages for the harm caused by Defendants. Plaintiffs also seek an award of reasonable costs of litigation, including attorneys' fees and expenses, pursuant to 42 U.S.C. § 1988 and other applicable law.
JURISDICTION AND VENUE 6. This action arises under the Constitution and laws of the United States. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1343. 7. Plaintiffs' claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, and by the
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general legal and equitable powers of this Court. Venue is proper under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to Plaintiffs' claims occurred in this district.
PLAINTIFFS 8. Plaintiff ACP is a nonprofit, religious organization that is incorporated under the laws of the State of California. 9. ACP is a national ministry established for the purpose of proclaiming the Holy Gospel of Jesus Christ to Muslims. As part of its outreach efforts, ACP travels around the country attending and distributing Christian literature at festivals and mosques. ACP members and volunteers are drawn from various church affiliations, cities, and backgrounds. The members and volunteers of ACP have the desire to practice their religious freedom and to follow their religious duty based on the Great Commission. 10. The Great Commission, in Christian tradition, is the instruction of the resurrected Jesus Christ to His disciples that they spread His teachings to all the nations of the world. It has become a tenet in Christian theology, emphasizing mission work, evangelism, and baptism. It has been a primary basis for Christian missionary activity. It is found in the New Testament at Matthew 28:16-20, Mark 16:14-18, Luke 24:44-49, Acts 1:4-8, and John 20:19-23. 11. Plaintiff George Saieg is an adult resident of California and the founder and director of ACP. He is a Christian pastor with a deeply-held religious conviction to evangelize to non-Christians. Evangelizing and handing out religious literature and materials are important aspects of Plaintiff Saieg's religious beliefs and vocation.
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DEFENDANTS 12. Defendant City of Dearborn (hereinafter "City") is a municipal entity organized and existing under the laws of the State of Michigan. It is a municipal corporation with the right to sue and be sued. The City and its officials are responsible for creating, adopting, and enforcing the rules, regulations, ordinances, laws, policies, practices, procedures, and/or customs of the City, including the Free Speech Restriction, the Festival "Rules & Regulations," and others related to the Annual Dearborn Arab International Festival. 13. Defendant Ronald Haddad is the chief of police for the City of Dearborn Police Department. As the chief of police, he is responsible for creating, adopting, and enforcing the rules, regulations, ordinances, laws, policies, practices, procedures, and/or customs of the City, including the Free Speech Restriction, the Festival "Rules & Regulations," and others related to the Annual Dearborn Arab International Festival. Defendant Haddad is sued in his official capacity only.
STATEMENT OF FACTS A. Annual Arab Festival Sponsored by the City. 14. The City contains one of the most densely populated Muslim communities in the United States. It is estimated that out of 98,000 inhabitants, approximately 30,000 are Muslims. Consequently, the City is an important location for ACP's Christian outreach efforts. 15. For the past fourteen years, the Annual Dearborn Arab International Festival ("Festival") was held in the City. The City will continue to hold the Festival in the future. 16. On or about May 4, 2009, the City granted the American Arab Chamber of Commerce and the Arab Community Center for Economic and Social Services ("A.C.C.E.S.S.")
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"pennission to conduct the 14th Annual Dearborn Arab International Festival from June 19 through June 21, 2009 subject to all applicable ordinances and the rules and regulations of the Police Department."
17. The City also authorized "assistance from the Dearborn Police, Fire, Public Works, Building & Safety and Recreation Departments to insure a safety (sic), healthy, fun and successful event."
18. As in prior years, the 2009 Festival was open to the general public. 19. According to the City, the Festival boundaries for 2009 were as follows: Warren Avenue between Hartwell Street and Kingsley Street; Miller Road between Warren Avenue and Blesser Street. The Festival was mainly held on Warren Avenue, which is a public place. And the eastern barrier was actually placed at Middlepoint Avenue. 20. The Festival occupied the streets; it did not occupy the public sidewalks. The public sidewalks were not part of the Festival. 21. As in prior years, the City closed certain roads for vehicle traffic during the Festival. However, while the roads were closed to vehicular traffic, the adjacent public sidewalks remained open for pedestrian traffic, including pedestrian traffic not associated with the Festival. For example, local commercial establishments along Warren Avenue remained open, and pedestrians visited these establishments for commercial purposes while the Festival was being held. 22. Defendants made special provisions to accommodate the businesses along Warren Avenue to ensure that the public sidewalks remained open for business activity, including commercial speech, which was unrelated to the Festival.
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23. Defendants ensured that the public sidewalks, including those immediately adjacent to the Festival, remained open for pedestrians who had no interest in attending the Festival but wanted to patronize the businesses along Warren Avenue instead. This accommodation was made to assist and promote the Warren Avenue businesses. Consequently, the Festival boundaries did not include the adjacent public sidewalks.
24. In addition to the boundaries of the Festival, Defendants also placed barriers on the public streets to restrict vehicular traffic beyond the Festival boundaries. These barriers were placed approximately one block to the north (along Morrow Circle), one block to the south (along Blesser Street), approximately five blocks to the west (along Schaefer Road) and approximately five blocks to the east (along Wyoming Street) of the Festival boundaries (hereinafter referred to as the "Border Area"). A true and accurate photograph taken during the 2009 Festival of the western border at Hartwell Street looking toward the stage at the Festival is attached to this First Amended Complaint as Exhibit 1. A true and accurate photograph taken during the 2009 Festival of the western border at Schaefer Road looking toward Hartwell Street (the western section of the Border Area) is attached to this First Amended Complaint as Exhibit 2.
25. The City police department established a mobile police station in the center of the Festival, and the City employed uniform police officers to enforce the rules, regulations, and restrictions of the Festival, including the Free Speech Restriction. City police officers patrolled the public sidewalks in order to enforce the Free Speech Restriction against Plaintiffs.
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B. Plaintiffs' Free Speech Activity. 26. Plaintiff Saieg was born and grew up in the Sudan where he never had the basic freedom to share his religious beliefs with others. Plaintiff Saieg praises God for the United States of America and for its Constitution, which guarantees him the right to practice and speak to others about his religious faith, and to gather with others for that purpose, which is part of the mission of ACP. 27. During the previous five years (2004 to 2008), ACP members and volunteers, including Plaintiff Saieg, visited the City to express their religious message to persons attending the Festival by evangelizing and distributing their religious materials without charge to persons willing to accept them. During each of these prior years, ACP members and volunteers freely roamed the perimeter of the Festival (i.e., along the public sidewalks adjacent to the Festival), handing out religious literature and discussing their Christian faith. 28. During Plaintiffs' prior visits to the Festival, Festival officials directed Plaintiffs to distribute their religious materials on the public sidewalks adjacent to the Festival borders and not to distribute them within the Festival. Plaintiffs complied with this direction and received approval from City police officers to distribute their religious materials on these public sidewalks. 29. During these prior visits, Plaintiffs never caused any disruption to the Festival with their peaceful, non-obstructive speech activity. Plaintiffs never blocked nor obstructed in any way the pedestrian traffic along the sidewalks adjacent to the Festival. And anl0ng the people approached by Plaintiffs during these visits to the Festival, approximately eighty to ninety percent of them willingly accepted Plaintiffs' religious materials. ACP members and volunteers
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also visited the homes of Dearborn-area Muslims where they were often cordially invited in for tea or dinner.
30. Plaintiffs planned to visit the 2009 Festival and/or the public areas immediately adjacent to it every day of the event to distribute religious literature and materials and to evangelize those individuals who attended the event and those individuals who were patronizing the business establishments along Warren Avenue that were not part of the Festival. Plaintiffs' materials do not contain solicitations nor do they contain commercial speech; they contain religious messages.
31. Plaintiffs are not "vendors." Their activities do not constitute "political solicitations." Their activities do not endorse a "political candidate" or a "political cause." And Plaintiffs' religious materials are not "political literature or paraphernalia." Plaintiffs distribute their religious materials at no charge to those who are willing to accept them.
32. The distribution of Plaintiffs' religious materials does not requIre that the recipient stop in order to receive the message that Plaintiffs wish to convey; instead the recipient is free to read and view the message at a later time. Consequently, Plaintiffs' distribution of their religious materials does not entail the same kind of problems presented by face-to-face solicitations or sales. Indeed, one need not ponder the contents of Plaintiffs' religious materials in order mechanically to take them out of the hand of one of the members or volunteers of ACP.
33. Plaintiffs invested in Gospel materials for the Festival, including leaflets, DVDs, various booklets, and books, which were packaged into a bundle and ready to be distributed to willing takers. In all, Plaintiffs prepared 15,000 separate packages at a cost of approximately $50,000. These packages were to be given away at no cost as part of Plaintiffs' speech activity.
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34. Plaintiffs recruited and/or invited over 75 team members, 6 guest speakers, and 11 team leaders to participate in the outreach program during the Festival. The team leaders and speakers held a training program for the team members prior to the start of the Festival. ACP provided the leaders, guest speakers, and some members with airfare, lodging, ground transportation, and food. Additionally, the speakers received an honorarium. The total cost for these expenses was approximately $29,860.
35. ACP incurred a charge of approximately $1,200 for the rental of a training facility.
36. ACP's outreach program in the City involves more than six months preparation. In April 2009, for example, Plaintiff Saieg and 3 other members of ACP traveled to Michigan in order to make preparations for their religious activities. This trip cost approximately $2,000.
C. Content-Based "Rules & Regulations" & Free Speech Restriction. 37. According to the 2009 Festival "Rules & Regulations," "No political solicitation of any kind shall be permitted at Festival entrance points or other areas where such activity would impede pedestrian or vehicular traffic," "No political literature or paraphernalia shall be passed out inside anywhere on festival grounds," "Political candidates, or those supporting a political cause, shall not set up any stands, booths tables tents [sic] or podiums," "No sales or solicitation shall be permitted outside designated vendor areas," "No tents, booths, canopies, tent extensions or temporary shelters may be erected without prior approval of the Festival Director," "No political or unrelated advertising signs shall be posted in booths or outside the vendor tents," and "All vendor activities shall be confined to designated rental areas."
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38. Defendants selectively enforced the 2009 Festival "Rules & Regulations" in a manner that favored certain political, commercial, and other speech, including solicitations, over Plaintiffs' religious expression.
39. For example, some "vendors" with booths inside the Festival were permitted to distribute "political paraphernalia" expressing a political message. One such item was at-shirt with the Calvin character from the Calvin & Hobbes cartoon urinating on the national flag of the State of Israel. Additionally, local businesses were permitted to sell items and solicit customers outside designated vendor areas. These businesses were not confined to designated rental areas; they were permitted to engage in commercial transactions and commercial speech on the public sidewalks adjacent to the Festival boundaries.
40. In addition to and as an extension of the 2009 Festival "Rules & Regulations," Defendants created and enforced against Plaintiffs the Free Speech Restriction, which restricted Plaintiffs' distribution of free religious materials to one fixed location within the Festival, thereby prohibiting Plaintiffs from distributing their free religious materials on the public sidewalks adjacent to the Festival. Defendants also enforced the speech restriction against Plaintiffs in the northern, southern, and western sections of the Border Area, thereby prohibiting Plaintiffs from distributing their free religious materials in these public places as well. The western section of the Border Area was the most densely populated area surrounding the Festival. Consequently, Plaintiffs were denied access to this "audience" for distributing their religious materials.
41. According to Section 14-81 of Chapter 14 of Article IV of the Code of Ordinances for the City (hereinafter "Section 14-81"), "It shall be unlawful for any person to
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deposit, place, throw, scatter or cast any commercial handbill in or upon any public place within this city. It shall be unlawful for any person to hand out, distribute or sell any commercial handbill in any public place. It shall not be unlawful for any person to hand out or distribute, without charge to the receiver thereof, any noncommercial handbill in any public place to any person willing to accept such noncommercial handbill." (emphasis added).
42. During the Festival, Defendants suspended the protections of Section 14-81 for Plaintiffs by prohibiting them from distributing their religious materials on the public sidewalks adjacent to the Festival and from within certain other public places in the Border Area.
43. During the Festival, commercial establishments were permitted by Defendants to set up tables along the sidewalks to engage in commercial speech and to sell items to pedestrians on the public sidewalks. Defendants did not restrict this commercial speech and activity to a fixed location within the Festival boundaries. True and accurate photographs taken during the 2009 Festival demonstrating these facts are attached to this First Amended Complaint as Exhibit 3.
44. During the Festival, Defendants permitted individuals and groups not associated with Plaintiffs to distribute commercial, political, religious, and other materials on the public sidewalks adjacent to the Festival and in the Border Area. These individuals and groups were not restricted to a fixed location within the Festival. Defendants also permitted individuals and groups not associated with Plaintiffs to distribute commercial, political, religious, and other materials while roaming within the Festival. Defendants did not restrict these individuals and groups to a fixed location. True and accurate photographs taken during the 2009 Festival demonstrating these facts are attached to this First Amended Complaint as Exhibit 4.
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45. During the 2009 Festival, Defendants allowed the public sidewalks to be used for and to be blocked by commercial activities, including commercial speech activity. During the Festival, private businesses placed out tables that blocked major sections of the sidewalk, and some of the commercial vendors within the Festival were permitted to block the sidewalk. True and accurate photographs taken during the 2009 Festival demonstrating these facts are attached to this First Amended Complaint as Exhibits 3 and 5.
D. Plaintiffs" Notification of Their Intent to Distribute Free Religious Materials. 46. In early June 2009, Plaintiff Saieg telephoned the City Police Department and spoke to Sergeant Jeff Mrowka. Plaintiff's purpose for telephoning the Police Department was to introduce himself and his organization, to inform Defendants of Plaintiffs' peaceful intention to visit the Festival area once again this year to distribute religious literature and evangelize, and to request information concerning the precise location of the event. Sergeant Mrowka said he would call Plaintiff Saieg back with the requested information. 47. When Plaintiff Saieg did not promptly hear back from Sergeant Mrowka, on June 9, 2009, Plaintiff telephoned him again. During that conversation, Sergeant Mrowka asked Plaintiff Saieg to send him an email with the name of his group, contact information, and details about when Plaintiffs planned to be at the Festival. Sergeant Mrowka advised Plaintiff of the Festival's location and stated that ACP's speech activities would now be restricted to a designated comer on the east side of the Festival. Accordingly, Plaintiffs would be denied the right to use the public sidewalks to express their faith by handing out religious materials. 48. Upon being told of the Free Speech Restriction, Plaintiff Saieg informed Sergeant Mrowka that this was unacceptable because ACP members and volunteers were expected to
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number more than ninety people, that Plaintiffs had never experienced any problems during past visits to the City and the Festival, that it would be impractical for so many people to be restricted to a single comer of the Festival, and that to be so restricted would prevent Plaintiffs from reaching their intended audience with their religious message. Plaintiff Saieg told Sergeant Mrowka that the purpose of Plaintiffs' outreach mission would be frustrated if they were so restricted by City officials.
49. During this conversation with Sergeant Mrowka, Plaintiff Saieg also informed the officer that ACP members and volunteers had attended the Festival for the past five years without incident, and that he instructs them to observe specific rules regulating their activities. Plaintiff Saieg customarily instructs his members and volunteers, and so instructed them prior to visiting the 2009 Festival, not to distribute religious materials within the Festival, which occupies the street itself, and to remain on the public sidewalks on either side of the street. He also customarily advises them, and so advised them prior to visiting the 2009 Festival, that they should not block any pedestrian traffic along the sidewalks when they are handing out their materials. Plaintiffs have always complied with these simple rules, and there has never been a problem in the past. Consequently, Plaintiffs' speech activity is peaceful and non-obstructive.
50. Sergeant Mrowka responded to Plaintiff Saieg by stating that political parties and protesters are limited to a specific area. Plaintiff told the officer that ACP and its members and volunteers were neither a political party nor protestors.
51. Following this conversation with Sergeant Mrowka, Plaintiff Saieg tried to contact Defendant Haddad via telephone and was referred to Commander Joe Doulette, Sergeant Mrowka's supervisor. Plaintiff Saieg attempted to contact Commander Doulette, but had to
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leave him a voicemail message regarding his concerns and objections with the Free Speech Restriction. Commander Doulette did not return Plaintiff scalI.
52. After his futile attempts to get Defendants' Free Speech Restriction lifted for Plaintiffs' religious speech, Plaintiff Saieg attempted to get the matter resolved through counsel. Despite these efforts, Defendants refused to lift their Free Speech Restriction, thereby denying Plaintiffs access to the public sidewalks and other public areas within the City for free speech activity.
E. Plaintiffs Were Denied Access to Their Intended Audience and Denied Ample Alternatives to Communicate Their Religious Message.
53. During the Festival and pursuant to the Free Speech Restriction, Sergeant Mrowka gave Plaintiffs a choice of two fixed locations. One was near the mobile police station, which was centrally located, and the other was a remote location on the far eastern side of the Festival between two rides. Plaintiffs chose the central location because it would allow them to reach more people and because it was near the police station, which would deter people from disrupting their activities and from making false claims against them. Plaintiffs also did not want to be situated between rides where adults attending the Festival with their children would be unlikely to approach Plaintiffs' booth.
54. Shortly after moving all of their materials to the central location, which was a difficult and time consuming task, Sergeant Mrowka informed Plaintiffs that the City required them to move from the location they had chosen-and that they had gone to significant effort to set up-to the remote eastern location. Plaintiffs complied with this order and moved to the remote location.
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55. Plaintiffs were relegated to this remote location in order to minimize the impact of their message.
56. Because the remote eastern location was near the Festival rides, the vast majority of people who came to this location were adults with children.
57. The ability to evangelize Muslims is made more difficult when the adult Muslims are with their children because Muslims are reluctant to have their children receive any materials from Christians.
58. A majority of the people attending the Festival congregated around the stage that was located on the far western side of the Festival to listen to the free concerts. Plaintiffs' eastern location was on the far opposite side of where the stage was located. Consequently, Plaintiffs were unable to reach the majority of the people attending the Festival with their religious materials.
59. It is very difficult to evangelize Muslims fron1 a fixed location without inviting attention to the individuals visiting the booth. Because Islamic law provides for severe penalties, including death, for converting to Christianity, such attention is naturally undesirable to anyone wishing to hear Plaintiffs' religious message. The Muslims who do approach will inevitably be watched by family, neighbors, and friends, subjecting them to possible ridicule, scorn, and punishment. Consequently, Muslims who are interested in Christianity are typically not willing to go to and be seen at a location that is known to be occupied by a Christian organization such as ACP. Plaintiffs experienced this difficulty at the 2009 Festival and were thus denied the ability to adequately distribute their religious materials, to reach their intended audience, and to
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accomplish their goal of interacting with and evangelizing large numbers of people attending the Festival.
60. In order to reach their intended audience-Muslims that Plaintiffs seek to inform about and convert to Christianity-with their religious message, it is essential for Plaintiffs to be able distribute their religious materials while walking on the public sidewalks and in other public places where the exchange between the ACP member or volunteer and the person he or she is evangelizing is expected to be more personal and confidential. This method allows the person receiving the religious materials to do so discretely and to take the materials to read or view in private at a later time without being exposed to ridicule, scorn, or punishment, which is likely if the individual was seen receiving materials at the ACP booth.
61. During prior Festivals in which Plaintiffs were permitted to distribute their religious materials on the public sidewalks adjacent to the Festival, Plaintiffs were able to reach significant numbers of people with their religious message. For example, in 2007, Plaintiffs distributed approximately 37,000 packets of religious materials, and in 2008, they distributed approximately 20,000. From the remote location at the 2009 Festival, Plaintiffs were only able to distribute approximately 500 packets of their religious materials, thereby significantly diminishing their ability to express their message and reach their intended audience. This remote location did not provide an ample alternative for Plaintiffs to engage in their religious speech.
62. It was known by the City that Plaintiffs effectively evangelized and converted many Muslims to Christianity during prior Festivals. To avoid any controversies arising from Plaintiffs' religious activity and to minimize the impact of Plaintiffs' speech, Defendants
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imposed the Free Speech Restriction against Plaintiffs and relegated them to locations where their speech would be less effective.
F. Defendants Had No Legitimate Basis for Restricting Plaintiffs' Speech. 63. In light of Plaintiffs' history of attending the Festival for many years without incident, Defendants had no basis for believing or concluding that Plaintiffs' presence on the public sidewalks adjacent to the Festival for the purpose of handing out religious materials and discussing their Christian faith posed any public safety, crowd control, or security issues or risks to justify restricting Plaintiffs' expressive activity. Also, the public interest would have been best served by granting Plaintiffs free access to the Festival, specifically including free access to the public sidewalks adjacent to the Festival and to the entire Border Area, so that Plaintiffs and those they associate with could have exercised their fundamental rights. 64. Defendants permitted business establishments to engage in commercial activity and speech on the public sidewalks adjacent to the Festival, and they permitted other groups and individuals to distribute materials on the public sidewalks adjacent to the Festival with no evidence of public safety, crowd control, security or other such issues or risks, thereby demonstrating that Defendants' justification for restricting Plaintiffs' religious speech was a sham. G. Present and Future Harm Caused by Defendants. 65. As a direct and proximate result of Defendants' restrictions on Plaintiffs' religious speech activity, Plaintiffs have suffered irreparable harm. 66. Defendants' Free Speech Restriction prevented Plaintiffs and those who associated with Plaintiffs from reaching their intended audience with their religious message.
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Additionally, due to the Free Speech Restriction, many ACP volunteers, nearly 25% of them, decided not to travel to the Festival since the restriction greatly limited their ability to effectively evangelize.
67. Plaintiffs will attend future Festivals in order to engage in their speech activities, which include handing out religious materials. However, upon information and belief, Defendants will impose their Free Speech Restriction against Plaintiffs during these future Festivals, thereby requiring injunctive relief to allow Plaintiffs to engage in their First Amendment activity without government interference.
68. As a direct consequence of Defendants' Free Speech Restriction, Plaintiffs had to purchase a tent, table, and chairs in order to establish their booth for distributing their religious materials. Persons seeking to distribute materials at the Festival must pay fees and incur additional costs to do so. Upon information and belief, Plaintiffs will be charged such fees and will incur such costs during future visits.
69. Because Defendants' Free Speech Restriction substantially limited Plaintiffs' ability to distribute their religious materials, Plaintiffs were left with a large surplus of materials. Consequently, Plaintiffs were required to rent space to store the leftover materials. A true and accurate photograph of the leftover materials is attached to this First Amended Complaint as Exhibit 6.
70. An estimated 300,000 people annually attend the Festival. Defendants expected the 2009 Festival to be the largest Festival to date. As a result of Defendants' Free Speech Restriction, ACP and its members and many volunteers, who travelled from around the country at their own expense, suffered irreparable harm by not being able to fully participate in ACP's
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outreach mission. Many of the volunteers have limited financial resources and have been deprived of their opportunity to evangelize at great personal cost.
71. Defendants' Free Speech Restriction deprived Plaintiffs and those who associate with them of their fundamental rights protected by the First and Fourteenth Amendments to the United States Constitution.
FIRST CLAIM FOR RELIEF Freedom of Speech-First Amendment
(42 U.S.C. § 1983) 72. Plaintiffs hereby incorporate by reference all above-stated paragraphs. 73. By reason of the aforementioned Free Speech Restriction, created, adopted, and enforced under color of state law, Defendants have deprived Plaintiffs of their right to engage in religious expression in traditional public fora in violation of the Free Speech Clause of the First Amendment as applied to the states and their political subdivisions under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 74. By favoring commercial speech over private religious speech, Defendants' Free Speech Restriction is content based in violation of the Free Speech Clause of the First Amendment. 75. Defendants' Free Speech Restriction is not narrowly tailored to serve a significant government interest nor does it leave open ample alternatives for Plaintiffs to meaningfully and effectively express their religious message in violation of the Free Speech Clause of the First Amendment.
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76. As a direct and proximate result of Defendants' violation of the Free Speech Clause of the First Amendment, Plaintiffs have suffered irreparable harm, including the loss of their constitutional rights, entitling them to declaratory and injunctive relief and damages.
SECOND CLAIM FOR RELIEF Freedom of Expressive Association-First Amendment
(42 U.S.C. § 1983) 77. Plaintiffs hereby incorporate by reference all above-stated paragraphs. 78. By reason of the aforementioned Free Speech Restriction, created, adopted, and enforced under color of state law, Defendants have deprived Plaintiffs of their right to expressive association guaranteed by the First Amendment as applied to the states and their political subdivisions under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 79. As a direct and proximate result of Defendants' violation of the First Amendment, Plaintiffs have suffered irreparable harm, including the loss of their constitutional rights, entitling them to declaratory and injunctive relief and damages.
THIRD CLAIM FOR RELIEF Free Exercise-First Amendment
(42 U.S.C. § 1983) 80. Plaintiffs hereby incorporate by reference all above-stated paragraphs. 81. By reason of the aforementioned Free Speech Restriction, created, adopted, and enforced under color of state law, Defendants have deprived Plaintiffs of their right to religious exercise in violation of the Free Exercise Clause of the First Amendment as applied to the states
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and their political subdivisions under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
82. Defendants' Free Speech Restriction targets Plaintiffs for disfavored treatment because they are Christian and because they seek to convert Muslims to Christianity.
83. As a direct and proximate result of Defendants' violation of the Free Exercise Clause of the First Amendment, Plaintiffs have suffered irreparable harm, including the loss of their constitutional rights, entitling them to declaratory and injunctive relief and damages.
FOURTH CLAIM FOR RELIEF Equal Protection-Fourteenth Amendment
(42 U.S.C. § 1983) 84. Plaintiffs hereby incorporate by reference all above-stated paragraphs. 85. By reason of the aforementioned Free Speech Restriction, created, adopted, and enforced under color of state law, Defendants have deprived Plaintiffs of the equal protection of the law guaranteed under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983 by denying Plaintiffs access to a traditional public forum to engage in religious speech activities while permitting others to use this forum for commercial activities, including commercial speech, thereby denying the use of this forum to those whose expressive activities Defendants find unacceptable. 86. Defendants also find Plaintiffs' religious speech activities unacceptable because Plaintiffs are Christian and they seek to convert Muslims to Christianity. 87. By favoring commercial speech over private religious speech, Defendants' Free Speech Restriction violates the equal protection guarantee of the Fourteenth Amendment.
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88. As a direct and proximate result of Defendants' violation of the Equal Protection Clause, Plaintiffs have suffered irreparable harm, including the loss of their constitutional rights, entitling them to declaratory and injunctive relief and damages.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs ask this Court: A) to declare that Defendants' Free Speech Restriction violates the First and Fourteenth Amendments to the United States Constitution as set forth in this First Amended Complaint; B) to preliminarily and permanently enjoin Defendants' Free Speech Restriction and its application to Plaintiffs' speech and expressive activities as set forth in this First Amended Complaint; C) to award Plaintiffs their reasonable attorney fees, costs, and expenses pursuant to 42 U.S.C. § 1988 and other applicable law; D) to grant such other and further relief as this Court should find just and proper.
DEMAND FOR JURY TRIAL Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs hereby demand a trial by jury of all issues triable of right by a jury.
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Case 2:09-cv-12321-PDB-RSW Document 13 Filed 07/07/09 Page 24 of 25 Respectfully submitted, THOMAS MORE LAW CENTER /s/ Robert J. Muise Robert J. Muise, Esq. (P62849) THE BECKER LAW FIRM
William J. Becker, Jr., Esq. *
*Subject to admission Counsel/or Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that on July 7, 2009, a copy of the foregoing FIRST AMENDED COMPLAINT with index of exhibits and exhibits was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. I further certify that a copy of the foregoing has been served by ordinary U.S. mail upon all parties for whom counsel has not yet entered an appearance electronically: none.
THOMAS MORE LAW CENTER lsi Robert J. Muise Robert J. Muise, Esq. (P62849)
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 Case 2:09-cv-12321-PDB-RSW Document 57 Filed 06/07/10 Page 1 of 44

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GEORGE SAIEG,

Plaintiff,
vs.
CITY OF DEARBORN and CHIEF OF POLICE RONALD HADDAD,

Civil Action No. 09-CV-12321
PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

Defendants. __________________________________/

OPINION AND ORDER (1) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, (2) DENYING PLAINTIFF’S REQUEST FOR INJUNCTIVE RELIEF, and
(3) GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This case is brought under the First and Fourteenth Amendments to the United States

Constitution. Plaintiff George Saieg is the founder and former director of Arab Christian

Perspective (“ACP”), a national ministry established for the purpose of proclaiming the Gospel of

Jesus Christ to Muslims.1 Defendants are the City of Dearborn (“Dearborn” or “the City”) and its

Police Chief, Ronald Haddad (collectively, “Defendants”).2 Plaintiff seeks a declaration that his free

speech rights were abridged when Defendants restricted the ability of Plaintiff and his associates to

distribute religious literature while walking around last year’s annual Arab International Festival

1 ACP and George Saieg were the original plaintiffs in this case. ACP was dissolved in 2009, but Plaintiff and his associates continue their Christian ministry of evangelizing Muslims. On January 15, 2010, ACP was voluntarily dismissed from this action, see docket entry 25, leaving only Saieg as a party plaintiff.
2 Haddad is sued in his official capacity only.
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(the “Festival”), which is an outdoor event organized by a private organization and held every summer in Dearborn, Michigan. Plaintiff also seeks injunctive relief preventing Defendants from imposing the same restrictions on his speech at this year’s Festival, which is scheduled for June 1820, 2010. Finally, Plaintiff seeks his reasonable attorney fees, costs, and expenses pursuant to 42 U.S.C. § 1988.3 Plaintiff does not seek monetary damages.
Plaintiff filed his Motion for Summary Judgment and Request for Injunctive Relief on March 15, 2010. Defendants filed their Motion for Summary Judgment on April 9, 2010. After the parties completed their briefing, but before oral argument, the Court issued an order requiring Defendants to “designate . . . where Plaintiff’s booth/table would be located at th[e] [2010 Festival].” See docket entry 55. Defendants responded, stating that Plaintiff’s booth/table would be located within the “Artesian Tent,” which, according to the map attached to Defendants’ submission, is centrally located within the inner perimeter. See docket entry 56. That tent has night lighting. Counsel for Defendants stated at oral argument that Plaintiff would receive the tent location free of charge.
These cross-motions mark a continuation of the case filed last year by Plaintiff and his thenorganization, ACP, seeking to enjoin Defendants from enforcing the anti-leafleting ban against Plaintiffs, who wanted to carry out their Christian missionary activities at the Festival, which was held on June 19-21, 2009.
The present action was filed on June 16, 2009. The next day, on June 17, 2009—which was two days before the start of the 2009 Festival—Plaintiff filed an “Emergency Motion for Temporary Restraining Order” after learning that Defendants would not allow ACP members to distribute their
3 Section 1988(b) authorizes a court, in its discretion, to award reasonable attorney’s fees to the prevailing party in a civil rights case.
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religious literature on the public sidewalks within the inner and outer perimeters of the Festival. The next day, on June 18, 2009—the day before the start of the 2009 Festival—Presiding
U.S. District Judge Nancy G. Edmunds held an evidentiary hearing on Plaintiff’s emergency motion and denied injunctive relief.4 Ruling from the bench, Judge Edmunds stated:
the question is really whether the restriction imposed by the organizers of the festival and enforced by the City of Dearborn are neutral with respect to content and are justified under the restriction of time – places on time, method and place. And it seems to me that they clearly are. They do not distinguish among the content of what’s being distributed or promulgated, they are narrowly focused, they do provide an alternative means of access. It’s not the method of access that the plaintiffs would choose if they could have their way on this, but it appears to support a legitimate government interest for crowd control and safety. Def. Ex. P., p. 36. Judge Edmunds also held that the United States Supreme Court’s decision in Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640 (1981), and the Sixth Circuit’s decision in Spingola v. Village of Granville, 39 F. App’x 978 (6th Cir. 2002) (unpublished), both cases upon which Defendants heavily rely, control here, precluding the relief sought by Plaintiff. Plaintiff filed an Amended Complaint on July 7, 2009. The Amended Complaint contains four counts. The first count alleges a violation of Plaintiff’s First Amendment right to freedom of speech. The second count alleges a violation of Plaintiff’s First Amendment right to association. The third count alleges a violation of Plaintiff’s First Amendment right to freely exercise his religion. Finally, the fourth count alleges a violation of Plaintiff’s Fourteenth Amendment right to equal protection. Although not the subject of an independent count in the Amended Complaint, Plaintiff also alleges municipal liability under 42 U.S.C. § 1983.
4 A full transcript of the hearing is attached as Exhibit P to Defendants’ motion. 3

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Now before the Court is Plaintiff’s Request for Injunctive Relief and the parties’ crossmotions for summary judgment. The matters have been fully briefed and the Court heard oral argument on May 21, 2010. For the reasons that follow, Defendants’ Motion for Summary Judgment will be granted; Plaintiff’s Request for Injunctive Relief and Motion for Summary Judgment will be denied.
II. BACKGROUND A.
Plaintiff, a Christian pastor with “a deeply-held religious conviction to evangelize nonChristians” and convert them to the Christian faith, is the founder and former director of ACP, a national ministry established for the purpose of proclaiming the Gospel of Jesus Christ to Muslims.5 Saieg Aff. ¶¶ 1, 3; Saieg Dep. at 15-16. As stated by Plaintiff,
[a]s part of my Christian outreach efforts, I travel around the country with fellow Christians attending and distributing Christian literature at various festivals and mosques to exercise my religion and to follow my religious duty . . . Saieg Aff. ¶ 4. Plaintiff’s religious materials, which are distributed free of charge to willing recipients, “do not contain solicitations” or “commercial speech” – only “religious messages.” Id. ¶ 5.
5 ACP dissolved in 2009 but its mission remains important to Plaintiff and his associates: [i]n December 2009, the Board of Directors voted to dissolve ACP. Nonetheless, my fellow Christians and I will continue our public ministry to evangelize Muslims, including evangelizing Muslims in the City of Dearborn, Michigan . . . during the annual Dearborn Arab International Festival.
Saieg Aff. ¶ 6. See also Saieg Dep. at 16.
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B. The Festival is organized and operated by the American Arab Chamber of Commerce (“AACC”), a private organization. Beydoun Dep. at 14. The purpose of the Festival is to “bring as many Metro Detroiters to the East Dearborn area,” “promote the Warren Avenue Business District,” and “build bridges from the Warren Avenue community to the Greater Metro Detroit area.” Def. Ex. E, p. 3. Festival events include a carnival, main stage with live performers, children’s tent, vendor and artisan tents, sidewalk sales, and multi-cultural food and entertainment. Id. at p. 1; Def. Ex. D (flyer and program). Fay Beydoun is the current Executive Director of the AACC, a position that she has held since 2009. Beydoun Dep. at 11-12. As Executive Director of the AACC, Beydoun was the chief organizer of the 2009 Festival; she will also organize this year’s Festival. Plaintiff has not sued the AACC. The Festival is held in an area that envelops public streets and sidewalks in Dearborn. See Def. Ex. F (map). Thus, street closures by the City are necessary to facilitate the Festival. See Def. Ex. E (memo from the AACC to the Dearborn City Council listing street closure requests); Def. Ex. M (Dearborn City Council resolution approving the closure of streets); Def. Ex. I (memo regarding placement of barricades on roads). “Core” Festival activities—including the main stage, the carnival, the children’s tent, and the vendor and artesian tents—take place within what the parties call the “inner perimeter,” which is defined by the following boundaries: western and eastern boundaries at Hartwell Street and Kingsley Street, respectively; northern and southern boundaries at the front of the businesses located on Warren Avenue, encompassing the sidewalks on Warren Avenue. To the extent that core Festival
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activities occur on Miller Road, the northern and southern boundaries extend one block beyond the Warren Avenue businesses. See Def. Ex. M (Dearborn City Council resolution listing Festival boundaries). See also Beydoun Dep. at 41-42 (discussing Festival boundaries).
“Ancillary” activities take place in what the parties call the “outer perimeter,” which is defined by the following boundaries: western and eastern boundaries at Schaefer Road and Wyoming Avenue, respectively; northern and southern boundaries at Morrow Circle and Blesser Avenue, respectively. Defendants concede in their brief that “the outer perimeter [does] not include activities such as carnival rides or vendor booths,” but rather “provid[es] a safe, controllable buffer between the bulk of the Festival activities and the outside world.” Def. Br. at 4-5.6 Also within the outer perimeter is parking for both Festival-related and non-Festival-related traffic:
[parking in the outer perimeter] was for people that were going to the businesses [on or around Warren Avenue], not just [for people] coming to attend the festival, and it was also for some [Festival] vendors. Beydoun Dep. at 43-44. A map of the inner perimeter is attached as Exhibit D to Defendants’ motion. The main stage is located on the western edge of the inner perimeter; the carnival is located on the eastern edge of the inner perimeter. A series of tents line the space in between – from west to east along Warren Avenue: food booths, sponsor booths, children’s tent, and artisan tent containing forty booths. See Def. Ex. D. In total, the 2009 Festival featured fourteen food vending areas, seventeen sponsor areas, forty artisan booths, and twenty-five information tables, for a total of ninety-six booths or tables throughout the inner perimeter. See id. Beydoun anticipates that the inner perimeter will be
6 The Festival organizers requested that this “buffer zone” be created “between the open streets and the area where the core Festival activities were occurring” “[t]o ensure an orderly and safe transition from the open streets and the streets occupied by the Festival.” Id. at 3.
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expanded at the upcoming 2010 Festival to accommodate additional sponsors and vendors. Beydoun
Dep. at 54-55.
The Festival attracts hundreds of thousands of people. Def. Ex. G (Dearborn Press & Guide
article). More than 250,000 were expected to attend the 2009 Festival. Id.
C.
The Festival is organized by the AACC, not by the City. However, as Defendants
acknowledge in their brief,
any large-scale event that occurs within the City of Dearborn inevitably requires City services. For example, the [AACC] cannot close the streets and sidewalks without the City’s permission. (Exhibit E.) Police support is needed for crowd control, to maintain a perimeter around the event, and to ensure public safety. (Transcript of deposition of Ronald Haddad, p. 15, 18, attached as Exhibit K. [Hereinafter “Haddad dep.”]) To facilitate this support, the Dearborn Police Department set up a command post within the Festival boundaries. (Haddad dep., p. 52.) Additionally, the City is responsible for maintaining the cleanliness of the streets and sidewalks.
Def. Br. at 5. Moreover,
[t]o ensure orderly planning, the City sends representatives to meetings of the Festival committee. Five meetings took place for the 2009 Festival. (Mrowka dep., p. 8.) City participants included Sgt. Jeffrey Mrowka and Deputy Recreation Director Eric Peterson. (Mrowka dep., p. 9.) Mrowka is special events coordinator for the police department. (Mrowka dep., p. 5.) Peterson is the special events coordinator for the recreation department. Mrowka and Peterson ensure that organizations hosting events in the City obtain necessary approvals, and they identify the steps that will need to be taken to maintain the public health, safety, and welfare during the event.
Id. See also Beydoun Dep. at 21 (testifying that “[t]he City provides a lot of support for the festival
and . . . they’re the key people that would help . . . facilitat[e] the festival and so forth, so [City
officials] were invited to the [AACC] meetings”); id. at 40 (testifying that City police officers are
physically present at the Festival to “ensure that sidewalks and traffic . . . [are] . . . maintained”); id.
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at 77 (testifying that the AACC “coordinated with the police” in attempting to control handbilling). Dearborn’s Chief of Police, Ronald Haddad, and its Mayor, both participated in the 2009 Festival opening ceremony. Beydoun Dep. at 75.
The City granted permission to the AACC to conduct the 2009 Festival “subject to all applicable ordinances and the rules and regulations of the Police Department.” Def. Ex. M (Dearborn City Council Resolution 5-330-09). Via the same resolution, the City Council also (1) authorized the road closures sought by the AACC, (2) authorized the use of certain City-owned lots for off-site Festival parking, and (3) authorized assistance from the Dearborn Police, Fire, Public Works, Building & Safety and Recreational Departments to “insure a safe[], healthy, fun and successful event.” Id.
D. As noted above, the Festival grounds include the sidewalk area along Warren Avenue. Any existing business along Warren Avenue that wanted to set up a sidewalk sale on the sidewalk in front of their store was required to submit an application to the AACC and obtain an AACC-issued permit/certificate.7 Beydoun Dep. at 31-32.
7 For Festivals prior to 2009, any Warren Avenue business that wanted to set up a sidewalk sale at the Festival was required to apply to the City for a permit and obtain a Cityissued permit/certificate. This changed beginning with the 2009 Festival:
A: [I]n the past [before 2009] the city had issued the sidewalk sales permits and then after that [the AACC] had a discussion [with the City] and it was agreed that the [AACC] would issue permits or certifications allowing [Warren Avenue businesses] to have things outside . . .
Beydoun Dep. at 31. See also id. at 65. According to Defendants, “this change in procedures caused the sidewalks to become subsumed within the Festival boundaries.” Def. Br. 7.
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Non-Warren Avenue businesses, such as food vendors, artists, and private organizations such as ACP, were also allowed to participate in the 2009 Festival. Such businesses and organizations were required to submit a timely application to the AACC and pay a fee. As explained by Beydoun:
Q: Now, the tables and vendors that wanted to set up along Warren Avenue, did you have a separate process for them?
A: Yes. Q: Was there a fee for individuals to set up a vending table or a tent
along Warren Avenue? A: We don’t allow just anybody to come and set up, and they’re not
allowed to decide where they want to set up. We have specific areas for specific things. Q: If somebody wanted to do vending, wanted to sell food items but not be on the sidewalk but wanted to be on Warren Avenue, was there an application process that they would go through with [the AACC]? A: Yes. Q: Was there a fee associated with that? A: Yes. Beydoun Dep. at 33. The fee schedule applicable to non-Warren Avenue businesses/organizations wishing to participate in the Festival is attached as the last two pages to Defendants’ Exhibit O. An organization wishing to distribute religious materials at the Festival would have to purchase an information table. Beydoun Dep. at 50. An information table costs $150 plus a $100 refundable deposit. Id. A sign costs an extra $55, if needed by the business/organization. Id. Plaintiff has never sought an information table through the AACC: “I never asked for a booth and I don’t want a booth.” Saieg Dep. at 105. Plaintiff wants to freely roam the public sidewalks,
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handing out religious literature, for the purpose of evangelizing Muslims; he does not want to distribute his materials from a fixed location. In 2009, the AACC provided Plaintiff with a booth, free of charge. This year, counsel for Defendants stated at the hearing on May 21, 2010, that the AACC would provide Plaintiff with a booth, free of charge, in the artisan tent, which is closer to the middle of the Festival than was last year’s booth location next to the children’s carnival. Also, unlike last year’s fixed location, this booth is equipped with lighting to facilitate nighttime activity.
E. The Festival rules, which are promulgated by the AACC, prohibit “solicitation . . . outside designated vendor areas.” Def. Ex. O, p. 3, ¶ 2. The rules also prohibit “political solicitation.” Id. at p. 2. Beydoun conceded in her deposition that ACP’s activity, because it is not commercial in nature, would not fall under the definition of “solicitation.” Beydoun Dep. at 53-54. ACP’s activity also would clearly not constitute “political solicitation.” Thus, there does not appear to be any written rule, promulgated by the AACC, preventing the distribution of religious materials at the Festival. Nonetheless, Beydoun testified that “handbilling along the sidewalks adjacent to the festival” is not allowed. Beydoun Dep. at 35-36. As stated by Beydoun, “[i]f you want to distribute, there is a specific place for you to distribute, which is at an information table.” Id. at 51-52. Beydoun testified that the AACC was concerned about keeping the sidewalks clear for the benefit of both Festival-goers and non-Festival-goers alike: “[w]e wanted to make sure that the sidewalks were available . . . for the people attending the festival [and] [for the] people that were trying to get from one location to another to go to the businesses.” Beydoun Dep. at 37. See also id. at 62 (“[t]he concerns were that we wanted to make sure that there was a clear path for people, for pedestrians to be able to walk and to get from one place to another”). Beydoun further testified that
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[ACP] wanted to hand out items and we have the information tables for them to do that. That’s how we control making sure that we have a safe environment by creating those information tables within the tents for them. Id. at 54. Beydoun testified that, during the 2009 Festival, she was aware that “city police officers were prohibiting individuals from distributing literature in [the] outer [perimeter].” Beydoun Dep. at 55. She expects that City police officers will again prohibit the distribution of literature in both the inner and outer perimeters during the upcoming 2010 Festival. Id. at 56. Beydoun testified regarding the potential problems that could arise if handbilling was allowed in the outer perimeter: Q: [W]hat would be the pedestrian or traffic issues with . . . allowing
individuals to distribute literature in that outer boundary area? A: [I]f you allowed someone to distribute literature within [the] outer
area, you might as well allow the other street vendors to set up tables and start selling things in that area, too. That is the buffer between going in and out. You got to maintain a security area. Id. at 58. Dearborn Police Chief Ronald Haddad also testified that his officers patrolled the sidewalks during the 2009 Festival to ensure that they remain clear and open. Haddad Dep. at 17-18. He further testified that handbilling on the sidewalks during the Festival “was not going to be permitted” because we have rules where everybody is going to be in an assigned booth or table or tent, and anything that would delay the passage of anyone that would have a free access to the sidewalk, anything that would occur there that wasn’t part of the sanctioned festival, it was not going to be permitted. Id. at 18.8 Moreover, Haddad and his officers “were going to make sure that we kept the sidewalks,
8 Haddad has extensive experience in law enforcement and, specifically, in crowd control. As he testified before Judge Edmunds:
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knowing that it was going to be a very crowded situation, we were going to do our very best to keep
the sidewalks flowing.” Id. Dearborn police officers who observed an individual distributing
literature of any kind would be expected to stop that activity from occurring. Haddad Dep. at 70,
76. Haddad testified that if the individual persisted despite a police warning to stop, the individual
would be subject to possible arrest. Id. at 72.
With regard to handbilling at the upcoming 2010 Festival, Haddad testified as follows:
I’m going to recommend that no one be allowed to give out any kind of free material in a venue that swells up to a hundred thousand plus at any hour of the day and that hopefully will attract 300,000 people in the course of one weekend. I think it’s a bad practice. I think that I’m not the only one that feels that way. You can go to the Michigan State Fair, they will not allow you to give out a paper clip unless you’re stationary and at a booth. It just makes good sense, it’s a good practice and it’s not a standard that is applied indiscriminately, it’s across the board.
Id. at 95.
I’m in my 35th year of law enforcement. I spent 34 short years of my life in the City of Detroit. . . . I worked for Chrysler security over their fire and security at three major plants for nine months, and I’ve been the 18th police chief for the City of Dearborn since December 15th.
* * * *
I was assigned in charge of Detroit’s east side, and that included the downtown area. Also, southwest Detroit was attached to it, and I had the occasion to be the commanding officer of the 11th Precinct for eight years during which time we did the Michigan State Fair for eight consecutive years. I was the task force commander there, as well. And the short answer is yes, I’ve been assigned many jobs for crowd control.
* * * *
And I was also in charge of Homeland Security for six years as an added responsibility for the City of Detroit, and I oversaw all major special events.
Def. Ex. P., pp. 18-19.
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F. Because Dearborn contains one of the largest Muslim populations in the United States, Plaintiff deems it “an important location for [his] Christian outreach efforts.” Saieg Aff. ¶ 8. Accordingly, Plaintiff has visited Dearborn during the Festival every year since 2004. Id. ¶ 9. The Festival has grown in size every year. The ability of Plaintiff and his associates to freely roam the Festival grounds distributing their religious literature became circumscribed beginning at the 2009 Festival. Plaintiff describes his experience at Festivals prior to 2009 as follows:
9. For the five years prior to 2009 (2004-2008), I and other ACP members and volunteers visited the City during the Festival. During each of these years, we freely roamed the public areas adjacent to and surrounding the Festival, including public sidewalks, handing out religious literature and discussing our Christian faith.
Saieg Aff. ¶ 9. See also Saieg Dep. at 80 (explaining that at Festivals prior to 2009, Plaintiff and his associates conducted their outreach only on public sidewalks).
However, at the 2009 Festival, ACP members were not permitted to freely distribute their religious materials on the public sidewalks along Warren Avenue, as they had done in previous years. See Saieg Aff. ¶¶ 12-13; Saieg Dep. at 70-71.
G. Dearborn Police Sergeant Jeffrey Mrowka testified that the fixed location limitation applied equally to everyone wishing to distribute literature at the 2009 Festival:
Q: My understanding is you couldn’t even distribute literature individually within the festival unless you were in your fixed location, that’s right.
A: In a fixed location, that’s right. Q: So if individuals were away from their booths trying to distribute
literature, either on the sidewalks or on Warren Avenue, that would
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have been stopped; is that right? A: Yes. Q: So the only location then – and then you said the outer boundaries
they weren’t permitted to do the same thing, is that right, distribute the literature? A: Yes. Q: So the only place, then, in the City of Dearborn during the time this festival was going on that you could distribute the literature would be beyond those outer boundaries; is that right sir? A: In relationship to this festival, yes. Mrowka Dep. at 32-33.
H. Plaintiff states that ACP members were unable to reach their intended audience from the eastern location. According to Plaintiff, their tent/booth was not equipped with electricity and “[p]eople appeared unwilling to approach [their] location at night.” Id. ¶ 36. Additionally, because the eastern location was near the carnival, “the vast majority of people who came to this location were children.” Id. ¶ 37. As stated by Plaintiff, “[t]he ability to evangelize adult Muslims is made more difficult if Muslim children receive materials from Christians because the adult Muslims get angry if this happens.” Id. See also Saieg Dep. at 74 (explaining that adult “Muslims get offended if you give gospel material to their children”). Plaintiff also complains that his 2009 tent/booth was far from the main stage area, which was on the western edge of the inner perimeter: “[t]he majority of the people attending the Festival congregated around the stage to listen to the free concert. From our location, we were unable to reach these people with our materials.” Id. ¶ 38. As noted above, this year’s tent/booth location is
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closer to the main stage area, and not next to the children’s rides, and provides electricity to facilitate
nighttime activity.
Plaintiff states that it is essential to his mission that he and his associates be permitted to
freely roam the sidewalks of the Festival handing out their religious materials:
39. It is very difficult to evangelize Muslims from a fixed location because there are severe penalties under Islamic law for converting to Christianity . . . . The Muslims who do approach us will inevitably be watched by family, neighbors, and friends, subjecting them to possible ridicule, scorn, and punishment. As a result, Muslims who are interested in Christianity are typically not willing to go to and be seen at a location that is known to be occupied by Christian evangelists, such as ACP. I have personally experienced this in the past, and I experienced this at the 2009 Festival.
40. In order to reach our intended audience—Muslims who we want to convert to Christianity—with our religious message, it is essential for us to be able to distribute our religious materials while walking on the public sidewalks where the exchange between the Christian brother or sister and the person he or she is evangelizing is more personal and confidential. This allows the person receiving the religious materials to do so discretely and to read or view the materials in private at a later time without being exposed to ridicule, scorn, or punishment, which is likely if the individual was seen receiving materials at a Christian “booth.” In fact, it is not uncommon for a Muslim woman to take the Christian materials and hide them under her burqa for fear that her husband will see her with them. I have experienced this many times myself.
Id. ¶¶ 39-40. See also Saieg Dep. at 75-76.9
When permitted to freely roam the sidewalks at Festivals prior to 2009, ACP members
distributed approximately 37,000 and 20,000 packets of religious materials at the 2007 and 2008
9 In short, Plaintiff states that he wishes to reach Muslims who have “been [held] captive in their countries for years,” who have previously “not [been] allowed to hear about Jesus Christ”; in other words, “the people that are afraid to walk to a Christian booth.” Saieg Dep. at 96.
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Festivals, respectively. Id. ¶ 41. At the 2009 Festival, by contrast, ACP members were only able to distribute approximately 500 packets of religious materials from their fixed location. Id.; Saieg Dep. at 101-102. Thus, the speech restriction placed on ACP members at the 2009 Festival “severely limited [their] ability to distribute [their] religious materials” and consequently, ACP had to seek storage space for the leftover materials. Saieg Aff. ¶ 42; Pl. Ex. 1L (photograph of storage space). See also Saieg Dep. at 92 (explaining that “a lot less” people approached ACP members at the 2009 Festival compared to prior years).
ACP members wish to visit the City during the 2010 Festival to distribute [their] religious materials on the public streets and sidewalks adjacent to and surrounding the Festival. However, because [they] are subject to arrest by City police officers for engaging in [their] peaceful speech activity in the City, [they] are deterred from doing so.
Id. ¶ 45. See also Saieg Dep. at 66. III. SUMMARY JUDGMENT STANDARD
Pursuant to Fed. R. Civ. P. 56(b), a party against whom a claim is asserted may “at any time, move with or without supporting affidavits, for a summary judgment in the party’s favor as to all or any part thereof.” Summary judgment is appropriate where the moving party demonstrates that there is no genuine issue of material fact as to the existence of an essential element of the nonmoving party’s case on which the nonmoving party would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Of course, [the moving party] always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of
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material fact.” Id. at 323. A fact is “material” for purposes of a motion for summary judgment where proof of that fact
“would have [the] effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.” Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984) (quoting Black’s Law Dictionary 881 (6th ed. 1979)) (citations omitted). A dispute over a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). Conversely, where a reasonable jury could not find for the nonmoving party, there is no genuine issue of material fact for trial. Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir. 1993). In making this evaluation, the court must examine the evidence and draw all reasonable inferences in favor of the non-moving party. Bender v. Southland Corp., 749 F.2d 1205, 1210-1211 (6th Cir. 1984).
If this burden is met by the moving party, the non-moving party’s failure to make a showing that is “sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial,” will mandate the entry of summary judgment. Celotex, 477 U.S. at 322-323. The non-moving party may not rest upon the mere allegations or denials of his pleadings, but the response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts which demonstrate that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). The rule requires the non-moving party to introduce evidence of evidentiary quality” demonstrating the existence of a material fact. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 145 (6th Cir. 1997).
IV. ANALYSIS - FREEDOM OF SPEECH (COUNT I)
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Defendants argue, as Judge Edmunds found in her ruling on June 18, 2009, that the City’s ban on handbilling in both the inner and outer perimeters of the Festival constitutes a valid time, place, and manner restriction under Heffron and Spingola. Additionally, Defendants argue that the Amended Complaint should be dismissed under Fed. R. Civ. P. 12(b)(7) for failure to join the AACC, a purported necessary party under Fed. R. Civ. P. 19.
Plaintiff, on the other hand, contends that (1) this case is distinguishable from Heffron and Spingola, (2) Defendants may not, consistent with the First Amendment, ban handbilling on public streets and sidewalks, and (3) the ban is not a valid time, place, and manner restriction because it is impermissibly content-based and does not satisfy intermediate scrutiny. Additionally, Plaintiff argues that dismissal of this case for failure to join a party is unwarranted.
The Court first addresses Defendants’ joinder argument. The Court then addresses whether the handbilling ban in the inner and outer perimeters is a valid time, place, and manner restriction under the First Amendment.
A. Should the Case be Dismissed for Failure to Join a Party? Defendants urge the Court to dismiss this case under Fed. R. Civ. P. 12(b)(7) because Plaintiff failed to name the AACC as a party defendant. According to Defendants, the AACC is a necessary party defendant because “even if . . . Plaintiff is successful against . . . Defendants, it would not change the rules of the Festival that require Plaintiff to . . . limit materials distribution to a fixed location.” Def. Br. at 14. For this reason, Defendants contend that “complete relief” could not be granted to Plaintiff unless the AACC is a party. Defendants’ argument is unpersuasive because it ignores two crucial facts. First, even if he wanted to, Plaintiff probably could not sue the AACC, a private organization, for First Amendment
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violations. See Hudgens v. Nat’l Labor Relations Bd., 424 U.S. 507, 513 (1976) (“[i]t is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state”). But see also Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000) (“a private entity can be held to constitutional standards when its actions so approximate state action that they may be fairly attributed to the state”).
Second, and more importantly, the City—and not the AACC—is the proper party defendant in this case because it is the City’s police officers who will be enforcing an “across the board” ban on all handbilling (except for handbilling occurring from assigned booths). As mentioned above in Section II(E), there is no written AACC-promulgated rule prohibiting religious handbilling. The AACC-promulgated rules prohibit only “solicitation” (which, according to Beydoun, is meant to cover distribution of handbills of a commercial nature) and “political solicitation.” Plaintiff’s religious literature does not qualify under either of these two banned categories. However, notwithstanding the lack of a written AACC-promulgated rule banning all handbilling, Dearborn Police Chief Haddad testified that he and his officers will be enforcing an “across the board” ban on all handbilling at the Festival (except handbilling from a assigned booths). Haddad Dep. at 18, 70, 76, 95. Haddad also testified that an individual handing out materials at the Festival in violation of the ban would be subject to possible arrest. Id. at 72. Plaintiff seeks an order preventing the City from enforcing, via threat of arrest, what he contends to be an unconstitutional speech restriction. See Saieg Aff. ¶ 44 (“[m]y fellow Christians and I . . . . intend to, visit the City during the 2010 Festival to distribute our religious materials . . . . However, because we are subject to arrest by City police officers for engaging in this . . . speech activity in the City, we are deterred from doing so”). Because Plaintiff seeks to enjoin Dearborn police officers from enforcing what is alleged to be an
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unconstitutional speech restriction, the City and its Police Chief are the proper party defendants.
Defendants’ joinder argument is unpersuasive.
B. Is the Handbilling Ban a Valid Time, Place, and Manner Restriction?
1. The First Amendment, Generally
The First Amendment—which applies to the states through the Fourteenth Amendment, see
Murdock v. Commonwealth of Pa., 319 U.S. 105, 108 (1943)—declares, in relevant part: “Congress
shall make no law . . . abridging the freedom of speech.” U.S. Const. amend I. As stated by the
Sixth Circuit,
[g]overnmental restrictions on the content of speech pose a high risk that the government really seeks to suppress unwelcome ideas rather than achieve legitimate objectives. As a general rule, therefore, the government cannot inhibit, suppress, or impose differential content-based burdens on speech. Nevertheless, courts will uphold such a regulation if necessary to serve a compelling state interest and it is narrowly tailored to the achievement of that end.
Spingola, 39 F. App’x at 982 (citations omitted). “[T]he First Amendment does not guarantee the
right to communicate one’s views at all times and places or in any manner that may be desired.”
Heffron, 452 U.S. at 647.
Laws that do not regulate speech per se, but, rather, restrict the time, place and manner in which expression may occur are treated differently. Such laws burden speech only incidentally, for reasons unrelated to the speech’s content or the speaker’s viewpoint. In considering such content-neutral, time, place and manner restrictions, the Supreme Court employs “intermediate scrutiny,” upholding limitations on the time, place, and manner of protected expression as long as “they are justified without reference to the content of the regulated speech, . . . are narrowly tailored to serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information.”
Spingola, 39 F. App’x at 982 (citation omitted) (emphasis in original). Thus, time, place, and
manner restrictions are valid so long as they (1) are content-neutral, (2) are narrowly tailored, (3)
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serve a significant governmental interest, and (4) leave open ample alternative channels for communication.
First of all, this Court reiterates that Plaintiff and his fellow missionaries will be able to mingle throughout the Festival and talk to people. Additionally, while circulating freely, they will be able to wear pins containing a message. The sole issue of contention is leafleting.
Heffron and Spingola both provide examples of speech restrictions that were upheld as valid time, place, and manner restrictions. In Heffron, the Supreme Court upheld a regulation on speech at the Minnesota State Fair, which was held on a 125-acre tract of state-owned land, that prohibited the distribution of literature or the soliciting of funds except at a rented booth. 452 U.S. at 643, 656. The Court held that the regulation was content-neutral because it “applie[d] evenhandedly to all who wish to distribute and sell written materials or to solicit funds” regardless of the speaker, viewpoint, or subject matter. Id. at 648-649. The Court also accepted the State’s argument that the regulation was justified by a substantial state interest: protecting the “safety and convenience” of the fair-goers and ensuring the orderly flow of pedestrian traffic through the crowded fairgrounds. Id. at 650. Relatedly, the Supreme Court held that “consideration of a forum’s special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in the light of the characteristic nature and function of the particular forum involved.” Id. at 650-651. As stated by the Court,
there are significant differences between a street and the fairgrounds. A street is continually open, often uncongested, and constitutes not only a necessary conduit in the daily affairs of a locality’s citizens, but also a place where people may enjoy the open air or the company of friends and neighbors in a relaxed environment. The Minnesota Fair, as described above, is a temporary event attracting great numbers of visitors who come to the event for a short period to see and experience the host of exhibits and attractions at the Fair. The flow of the crowd and demands of safety are
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more pressing in the context of the Fair. As such, any comparisons to public streets are necessarily inexact. Id. at 651. Finally, the Court held that the regulation left open ample alternative means for the communication of information because (1) the rule did not prevent members of the religious sect who brought the case, the Krishna, from practicing their religion outside the fairgrounds and (2) the rule did not prevent Krishna members from mingling with the crowd, orally propagating their views, or arranging for a booth to distribute and sell their religious literature. Id. at 654-655. In Spingola, the Sixth Circuit upheld an ordinance requiring anyone engaged in public speaking during a town assemblage to speak from a designated “public speaking area.” 39 F. App’x at 979. The assemblage at issue was a street fair, drawing thousands of people over a two-block area comprised of public streets. Id. at 978. There was no dispute in Spingola that the ordinance was content-neutral. Id. at 983. Relying heavily on Heffron, the court found that the fair area, “though comprised of public streets, [was] not serving in that function during the festival.” Id. at 983. The court also held, citing Heffron, that the ordinance served the important governmental purposes of increasing public safety during the festival, ensuring smoother traffic flow, and balancing free speech with the rights of persons attending the festival to be free from hindrance. Id. at 984. Moreover, alternative channels for speech existed because the ordinance called for a designated speaking area and the plaintiff, a “confrontational evangelist,” could stand outside the festival grounds if he chose. Id. at 984-985. In the instant case, the Court concludes that the site at issue is in reality a fairgrounds.
2. The Parties’ Arguments The crucial question in this case is whether the “across the board” ban on mobile handbilling in the inner and outer perimeters of the Festival, which was enforced at the 2009 Festival and will
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again be enforced at the upcoming 2010 Festival, see Haddad Dep. at 18, 70, 72, 76, 95, qualifies
as a valid time, place, and manner restriction.10
Plaintiff makes several arguments. First, he broadly contends that Defendants may not,
consistent with the First Amendment, ban handbilling on public streets and sidewalks. Second, he
argues that the handbilling ban does not qualify as a valid time, place, and manner restriction. In
so arguing, Plaintiff attacks each of the four required elements of a valid time, place, and manner
restriction; specifically, he contends that the handbilling ban (1) does not leave open ample
alternative channels for communication, (2) is content-based, (3) does not serve a significant
governmental interest, (4) is not narrowly tailored.
Defendants disagree with Plaintiff on each point. According to Defendants, they may
regulate handbilling on public streets and sidewalks and the restriction at issue here—the “across
10 The Court takes this opportunity to clarify precisely what rule/regulation is being subjected to constitutional scrutiny in this case. Again, as discussed above, there is no written rule promulgated by the AACC banning all handbilling at the Festival. Instead, the written Festival rules ban “solicitation,” which, according to Beydoun, covers commercial handbilling only, and “political solicitation.” These written rules are not at issue in this case because they are rules that are promulgated by a private organization and Dearborn Police Chief Haddad has never indicated that he and his officers will be enforcing them. Instead, Haddad indicated that he and his officers will be enforcing an “across the board” ban on all types of handbilling at the Festival, except for handbilling that occurs at designed booths. It is this “across the board” ban about which Plaintiff complains; it is therefore the “across the board,” police enforced ban that is the subject of constitutional scrutiny.
Thus, the City has vowed to enforce a broad ban on handbilling in both the inner and outer perimeters of the Festival, except for handbilling from a designated booth/table. Plaintiff complains about this police-enforced ban and, because Dearborn police officers did (in 2009), and will (in 2010), enforce it, the First Amendment applies.
The Court finds that the public streets on which the Festival is held are “not serving in that function during the festival” see Spingola, 39 F. App’x at 983, rather, they comprise part of a fairground.
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the board” ban on handbilling in the inner and outer perimeters—constitutes a valid time, place, and manner restriction.
3. Discussion Before addressing Plaintiff’s arguments, the Court first notes that the speech at issue in this case is undisputably protected by the First Amendment. See Murdock, 319 U.S. at 110 (“spreading one’s religious beliefs or preaching the Gospel through distribution of religious literature and through personal visitations is an age-old type of evangelism with as high a claim to constitutional protection as the more orthodox types [of religious practices]”). Plaintiff first argues that because the Festival grounds are comprised of public streets and sidewalks, Defendants may not, consistent with the First Amendment, ban handbilling on public streets and sidewalks. In so arguing, Plaintiff emphasizes in his brief that public streets are traditional public fora and are thus “held in public trust,” Frisby v. Schultz, 487 U.S. 474, 481 (1988), as “proper places for the dissemination of information and opinion.” Schneider v. State of N.J., Town of Irvington, 308 U.S. 147, 151 (1939). While this is a component of the relevant First Amendment analysis, Plaintiff does not acknowledge that the Festival grounds here are analogous to those in Spingola inasmuch as both festival grounds are comprised of public streets that, in the words of the Spingola court, are “not serving in that function during the festival.” See 39 F. App’x at 983. As such, Plaintiff’s reliance on cases such as Jamison v. State of Tex., 318 U.S. 413 (1943), Martin v. City of Struthers, 319 U.S. 141 (1943), and Lovell v. City of Griffin, 303 U.S. 444 (1938)—all of which involve the enforcement of speech restrictions on streets and sidewalks that are serving in their ordinary function as open streets and sidewalks—is misplaced. This is because “[t]he flow of the crowd and demands of safety are more pressing in the context of [a] [f]air” and
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“[a]s such, any comparisons to public streets are necessarily inexact.” Heffron, 452 U.S. at 541. Additionally, Plaintiff also fails to acknowledge that speech—even if taking place in a
traditional public forum—is subject to valid time, place, and manner restrictions. See Spingola, 39 F. App’x at 983 (“regardless of whether we would classify the . . . festival area as a traditional public forum or a limited public forum . . . , the Ordinance is examined under the same intermediate level of scrutiny”). Therefore, the argument that Defendants may not regulate speech on public streets and sidewalks is unpersuasive.
Plaintiff’s main argument is that the handbilling ban in the inner and outer perimeters of the Festival does not constitute a valid time, place, and manner restriction. Specifically, Plaintiff contends that the handbilling ban (1) does not leave open ample alternative channels for communication, (2) is content-based, (3) does not serve a significant governmental interest, (4) is not narrowly tailored. The Court addresses each of these requirements, in turn, below. Ultimately, the Court concludes that the ban on handbilling in the inner and outer perimeters qualifies as a valid time, place, and manner restriction.
a. Does the Handbilling Ban Leave Open Alternative Channels for Communication? Plaintiff argues that by banning the distribution of religious literature on the sidewalk and in other public areas and forcing Plaintiff to a fixed location, Defendants’ restriction does not leave open ample alternative means of communication, and it prevents Plaintiff from reaching his intended audience in violation of the Constitution.
Pl. Br. at 18-19. Heffron and Spingola preclude Plaintiff’s argument. The speech restriction at issue in Heffron prohibited the distribution of literature or the soliciting of funds at the Minnesota State Fair except at a rented booth. The Supreme Court found that the restriction left open ample
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alternative means for the communication of information because (1) the regulation did not prevent Krishna members from practicing their religion outside the fairgrounds and (2) the regulation did not prevent Krishna members from mingling with the crowd, orally propagating their views, or arranging for a booth to distribute and sell their religious literature. See 452 U.S. at 654-655.
Similarly, in Spingola, the Sixth Circuit held that alternative channels for speech existed because the ordinance, which required anyone engaged in public speaking during a town assemblage to speak from a designated “public speaking area,” called for a designated speaking area and the plaintiff, a “confrontational evangelist,” could stand outside the festival grounds if he chose. See 39 F. App’x at 985-985.
So too, the instant case. There is no allegation that Plaintiff missionaries were in anyway prohibited or discouraged from distributing their religious literature outside the Festival boundaries. Nor does Plaintiff allege that then-ACP members were prevented from mingling with the Festival crowd and orally propagating their religious views; Plaintiff and his associates were only prevented from distributing literature outside of their designated booth. Finally, then-ACP members could—and did at the 2009 Festival—utilize a booth to distribute their religious literature.11 They will be permitted to do the same at the 2010 Festival.12 This year, Plaintiff will receive a booth, free of charge, with electricity to facilitate evening activities, and a location closer to the center of the Festival.
Plaintiff and his fellow missionaries have never been denied access to the Festival forum,
11 As noted in the background section, the AACC waived Plaintiff’s rental fee. 12 During oral argument, counsel for Defendants indicated that the AACC would waive Plaintiff’s rental fee, as it did last year.
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nor have they been denied the opportunity to interact with their intended audience, Festival-goers. Thus, the case upon which Plaintiff relies—Bay Area Peace Navy v. United States, 914 F.2d 1224, 1229-1230 (9th Cir. 1990), where the speech restriction in question prevented the plaintiff from reaching its intended audience with its message—is inapposite. In short, the very same alternative avenues of communication are available to Plaintiff in this case as were available to the respective plaintiffs in both Heffron and Spingola. These alternative avenues were deemed constitutionally adequate by the Supreme Court and the Sixth Circuit in Heffron and Spingola, respectively; they are constitutionally adequate here, as well.
The Court acknowledges Plaintiff’s complaint that “[p]eople appeared unwilling to approach [the booth] location at night” because their tent was not equipped with electricity, see Saieg Aff. ¶ 36, and the tent was not ideally located because it was near the children’s area. Id. ¶ 38. This year, the tent is equipped with electricity, and the location is not in the children’s area, but instead in the central area.
The Constitution does not guarantee a person “her best means of communication.” Phelps-Roper v. Strickland, 539 F.3d 356, 372 (6th Cir. 2008) (citing Heffron, 452 U.S. at 647 (“the First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired”)). See also Prime Media, Inc. v. City of Franklin, Tenn., 181 F. App’x 536, 541 (6th Cir. 2006) (unpublished) (“alternative channels of communication need not be available at every location, or at the most desirable location, within a city”). Plaintiff and his fellow missionaries will not be denied access to the Festival forum, nor denied the opportunity to interact with their intended audience. Under these circumstances, notwithstanding Plaintiff’s complaints, alternative channels for communication of their message remained sufficiently open.
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See Heffron, 452 U.S. at 654-655; Spingola, 39 F. App’x at 985-985. b. Is the Handbilling Ban Content-Neutral?
“[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92, 95 (1972). Thus,
[g]overnment action that stifles speech on account of its message . . . contravenes this essential [First Amendment] right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. Turner Broad. Sys., Inc. v. Fed. Commc’n Comm’n, 512 U.S. 622, 641 (1994). For this reason, content-based regulations are subject to “the most exacting scrutiny,” id. at 642, and are “presumptively invalid.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1992). Plaintiff argues that the ban on handbilling is content-based and therefore subject to strict scrutiny. Plaintiff believes that the ban favors commercial speech in violation of the First Amendment because it permits local businesses along Warren Avenue, and no one else, to set up sidewalk sales immediately outside their respective storefronts.13 Plaintiff relies mainly upon the following three cases in support of his argument, all of which hold that the government cannot favor commercial speech over non-commercial speech, or vice-versa: S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1145 (9th Cir. 1998) (invalidating as content-based an ordinance that prohibited the distribution of handbills that contain commercial advertising while allowing the distribution of handbills that did not contain commercial advertising); Metromedia, Inc. v. City of San Diego, 453
13 Plaintiff also argues that the ban violates his Fourteenth Amendment right to equal protection for the same reason.
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U.S. 490, 513 (1981) (White, J., plurality opinion) (invalidating as content-based a city ordinance that, among other things, favored commercial advertisements on billboards over non-commercial advertisements); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993) (invalidating as content-based a city regulation banning newsracks that distributed commercial handbills but not newsracks that distributed newspapers). The regulations in each of these cases were invalidated essentially because, in the words of the Ninth Circuit, “an officer who seeks to enforce the [regulation] would need to examine the contents of the handbill to determine whether its distribution was prohibited.” See S.O.C., Inc., 152 F.3d at 1145.
Defendants, on the other hand, argue that the ban on handbilling is content-neutral: Plaintiff has taken great pains to argue that distinctions have been made between commercial and non-commercial speech, but the evidence clearly demonstrates that no such content-based decisions were made. First and foremost, . . . the sidewalks were not functioning as sidewalks, but instead were incorporated in to the Festival grounds, and the [AACC] was granted the same control over the sidewalks that it had over the streets during the Festival. Beydoun explained, “we don’t allow just anybody to come and set up, and they’re not allowed to decide where they want to set up. We have specific areas for specific things.” (Beydoun dep., at 33.) For example, there were numerous themed tents – one for food vendors, one for artists, and one for children’s activities. (Exhibit D.) The Warren Avenue businesses effectively constitute their own themed area of the Festival, and they are able to take advantage of their location by setting up in front of their business, when logically feasible. (Beydoun dep., p. 36.)
Resp. Br. at 21. Defendants’ position is persuasive. One of the stated purposes of the Festival is to “promote
the Warren Avenue Business District.” Def. Ex. E, p. 3. Thus, the AACC affords anyone who occupies existing store space along Warren Avenue, subject to logistical concerns, the opportunity
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to utilize the sidewalk in front of their store during the Festival.14 As Defendants note, and the Court agrees, “[t]he Warren Avenue businesses effectively constitute their own themed area of the Festival, and they are able to take advantage of their location by setting up in front of their business, when logically feasible.”
To the extent that Defendants enforce the AACC’s rule permitting occupants of space along Warren Avenue to set up on the sidewalk outside their storefronts at the exclusion of those who do not occupy space along Warren Avenue, the restriction is not content-based because no expression is being restricted based on “its message, its ideas, its subject matter, or its content.” See Mosley, 408 U.S. at 95. Rather, Defendants, by enforcing the AACC’s rule, are favoring, if anyone, those with space along Warren Avenue no matter who they are or what their message. In reality, this is a quid pro quo for stores negatively impacted by the Festival. In exchange for subjecting them to Festival crowds in front of their stores and closed-off streets that block regular customers’ ingress and egress, the existing merchants are permitted to set up tables out front to sell their wares. Thus, if ACP had an existing office located in the inner perimeter along Warren Avenue, there is nothing
14 Beydoun testified that only businesses along Warren Avenue were permitted to be sidewalk vendors:
Q: Is there anybody other than the businesses [along Warren Avenue] who were the sidewalk vendors? * * * *
A: No. Q: So the sidewalk vendors are essentially the businesses along
Warren Avenue? A: That is correct. Beydoun Dep. at 64-65.
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in the record to suggest that it could not set up a table outside its office like everyone else occupying space along Warren Avenue. In other words, there is nothing to suggest that the criterion to set up a sidewalk sale along Warren Avenue has anything to do with the message of the occupant, or the subject matter of the occupant’s speech (i.e., commercial versus non-commercial); rather, the criterion is that the occupant simply occupy space in the inner perimeter along Warren Avenue. See Beydoun Dep. at 65 (testifying that the sidewalk vendors along Warren Avenue are Warren Avenue businesses). Because Defendants are not enforcing a restriction on expression that favors commercial speech over non-commercial speech, the cases cited by Plaintiff, discussed above, are not controlling.15
c. Does the Handbilling Ban Serve a Substantial Governmental Interest? In Heffron, the Supreme Court held that the government’s interest in ensuring the orderly flow of pedestrian traffic through a crowded fairgrounds constitutes a substantial governmental interest. See 452 U.S. at 650. The Sixth Circuit, in Spingola, held the same. See 39 F. App’x at 984. Indeed, Judge Edmunds also held the same in the instant case, in denying Plaintiff’s request for a temporary restraining order last year. Defendants argue that the holdings in Heffron and Spingola apply with equal force here because the goals underlying the handbilling ban are the same as those proffered by the governments
15 For the same reason, Plaintiff’s equal protection claim fails. The case upon which Plaintiff relies in support of his equal protection claim, Mosley, is inapplicable. In Mosley, the Supreme Court held that a city ordinance prohibiting all picketing within 150 feet of a school, except peaceful picketing of any school involved in a labor dispute, violated the Equal Protection Clause because it makes an impermissible distinction between peaceful labor picketing and other peaceful picketing. Id. at 94. Here, on the other hand, as explained, occupants along Warren Avenue are conferred the right to conduct sidewalk sales during the Festival because of their location alone, not because of a message, idea, or subject matter of speech espoused by the occupant.
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in both Heffron and Spingola. Plaintiff, on the other hand, argues that the holdings are inapplicable here for two reasons. First, Plaintiff points out that the fairgrounds in Heffron were not located on public streets and sidewalks as are the Festival grounds here. Thus, as Plaintiff notes, “the fair [in Heffron] occurred at a closed, fixed location entirely dedicated for that purpose—there was no ongoing business activity on the fairgrounds nor pedestrian traffic moving through that was unrelated to the fair.” Pl. Br. at 19. Plaintiff contends that Heffron is inapplicable here based on this distinction. In Heffron, everyone on the fairgrounds was there for the fair; here, because the Festival takes place on public streets that are lined with stores that are open to Festival-goers and nonFestival-goers alike, not everyone at the Festival, presumably, was there for the Festival – some were there for matters unrelated to the Festival.
This argument is foreclosed by Spingola. The fair at issue in Spingola took place over a twoblock area comprised of public streets in the Village of Granville. See 39 F. App’x at 978. Thus, in upholding the public speaking ban at issue in Spingola as a valid time, place, and manner restriction, the Sixth Circuit applied the Heffron holding to a venue, like the one here, that was comprised of public streets and was open to pedestrian traffic unrelated to the fair.
Plaintiff’s second argument as to why Heffron does not apply here is also unpersuasive. Plaintiff argues that the presence of some Festival activities on the sidewalk along Warren Avenue frustrates the government’s stated goal of ensuring the orderly flow of pedestrian traffic through the crowded Festival. As stated by Plaintiff, “it makes little sense to permit businesses to set up fixed locations that plainly block the public sidewalks and then prohibit individuals from distributing noncommercial, religious literature in the same forum.” Pl. Br. at 17. However, a similar argument was made by the plaintiff, and rejected by the Sixth Circuit, in Spingola:
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Spingola argues that the [public speaking] regulation does not relieve the crowding and pedestrian flow obstructions that take place during the festival regardless. That, however, is not the question. The question is whether preventing uncontrolled public speaking in these areas promotes a significant governmental interest that would be less effectively achieved without the law. That is accomplished by providing a smoother flow of traffic within the festival crowd.
39 F. App’x at 984. Accordingly, Plaintiff’s second argument, like his first one, is foreclosed by
Spingola.
Based on the Supreme Court’s holding in Heffron and the Sixth Circuit’s holding in
Spingola, Defendants’ proffered justifications for the handbilling ban—maintaining crowd control,
relieving pedestrian congestion, and ensuring an orderly Festival—constitute substantial
governmental interests.
d. Is the Handbilling Ban Narrowly Tailored to Serve the City’s Substantial Governmental Interests?
As stated by the Sixth Circuit,
time, place, and manner regulations of speech must be narrowly tailored to serve the government’s legitimate, content-neutral interests. Narrow tailoring means that the “[g]overnment may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals,” but it does not require that the means chosen “be the least restrictive or least intrusive means” of serving its goals. “Rather, the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.”
Richland Bookmart, Inc. v. Knox County, Tenn., 555 F.3d 512, 528 (6th Cir. 2009) (citations
omitted). For example, in United States v. Grace, 461 U.S. 171 (1983), a case upon which Plaintiff
heavily relies, the Supreme Court declared unconstitutional a broad restriction on speech on the
public sidewalks surrounding the Supreme Court’s building. The regulation banned, in part, the
display of “any flag, banner, or device designed . . . to bring into public notice any party,
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organization, or movement.” Id. at 175. The purpose of the regulation was to “provide for the protection of the [Supreme Court] building and grounds and of the persons and property therein, as well as the maintenance of proper order and decorum.” Id. at 182. The Court found that the regulation was not a valid time, place, and manner restriction “because it ha[d] an insufficient nexus with any of the public interests that may be thought to undergrid [it].” Id. at 181. In other words, the regulation did “not sufficiently serve those public interests that [were] urged as its justification.” Id. See also Nat’l Ass’n for Advancement of Colored People v. Button, 371 U.S. 415, 438 (1963) (“[b]road prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms”).
Plaintiff argues that the City’s goals of maintaining crowd control, relieving pedestrian congestion, and ensuring an orderly Festival are not furthered by prohibiting handbilling in the outer perimeter. This is because the outer perimeter is not crowded with wall-to-wall people as is the inner perimeter, which serves as the actual Festival grounds. As stated by Plaintiff,
Defendants do not limit their speech restriction to the public sidewalks immediately adjacent to where the Festival activities are taking place on Warren Avenue and Miller Road. Instead, they created a broad, prophylactic prohibition on the distribution of literature that extends beyond the actual Festival grounds to include more than 30 surrounding City blocks (“outer perimeter”). Consequently, the City has created a “First-Amendment-freezone” that has little to no connection with the Festival. Pl. Br. at 17 (footnote omitted). Via this argument, then, Plaintiff is challenging the handbilling ban in the outer perimeter only, asserting that the ban is not narrowly tailored to alleviate the City’s crowd control concerns since those concerns are not implicated in the uncrowded outer perimeter. Plaintiff does not mount a “narrow tailoring” challenge with respect to the enforcement of the handbilling ban in the inner perimeter. For the reasons that follow, the Court rejects Plaintiff’s
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argument and finds that the ban on handbilling in the outer perimeter is narrowly tailored to serve the City’s legitimate and substantial interest in ensuring an orderly Festival.
The outer perimeter runs approximately five blocks to the west of the western edge of the inner perimeter, covering the following blocks: Rueter Avenue, Jonathon Street, Bingham Street, Calhoun Street, and Schaefer Highway. The outer perimeter runs approximately four blocks to the east of eastern edge of the inner perimeter, covering the following blocks: Emanon Street, Freda Street, Normile Street, and Wyoming Avenue.16
The stated purpose of the outer perimeter is to “provid[e] a safe, controllable buffer between the bulk of the Festival activities and the outside world” in order “[t]o ensure an orderly and safe transition from the open streets and the streets occupied by the Festival.” Def. Br. at 3-4. See Mrowka Dep. at 15 (testifying that the purpose of the outer perimeter is to “restrict traffic and crowd control into the festival area”). There is no dispute that this constitutes a substantial interest under Heffron. See 452 U.S. at 650 (“it is clear that a State’s interest in protecting the ‘safety and convenience’ of persons using a public forum is a valid governmental objective”). Rather, the dispute is whether a handbilling prohibition in the outer perimeter is narrowly tailored to serve the City’s interest. The Court finds that it is.
It is crucial to note that this case is not just about Plaintiff’s right to exercise his First Amendment rights in the outer perimeter; it is about the right of everyone to do so. That is, if the Court struck down the ban as unconstitutional, everyone—not just Plaintiff and his associates—would be permitted to distribute literature in the outer perimeter. Organizations of all
16 Plaintiff’s briefs contain repeated references to an outer perimeter that is “30 blocks” in size. This description is misleading because, as discussed, the outer perimeter runs only one block to the north and south of the inner perimeter and five and four blocks, respectively, to the west and east of the inner perimeter.
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kinds, businesses, and individuals alike would all flock to the outer perimeter to promote their respective interests and messages. The consequence of this would be to effectively extend the Festival grounds into an area that is meant to serve as a buffer zone between the Festival and the outside world. This result would undermine the legitimate and substantial interest of the City to “ensure an orderly and safe transition from the open streets and the streets occupied by the Festival.” It is for this reason that a ban on handbilling in the outer perimeter is narrowly tailored. A result to the contrary would severely undercut the City’s substantial interest in maintaining a safe zone, clear of wall-to-wall Festival crowds, between the Festival grounds and the outside world.
It is also for this reason that the Court finds the Supreme Court’s decision in Grace inapplicable here. In Grace, the ban on certain communicative activity on the public sidewalks surrounding the Supreme Court building did not sufficiently serve the government’s interest in protecting the Supreme Court grounds and maintaining proper order and decorum. There was an “insufficient nexus” between the ban and the public interests undergridding it. In other words, the Grace Court effectively held that the government could accomplish its goals, which were deemed to be substantial governmental interests, without imposing the ban. The same is not true here for the reasons stated in the preceding paragraph. Without a ban on the distribution of literature in the outer perimeter—which is meant to serve as a safe zone for three days out of the year—the City could not accomplish its goal.
The Court also finds Grace distinguishable because the ban in Grace applied to communicative activity taking place on sidewalks that were serving in their traditional function as sidewalks. See Grace, 461 U.S. at 179 (“[t]he sidewalks comprising the outer boundaries of the [Supreme] Court grounds are indistinguishable from any other sidewalks in Washington, D.C., and
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we can discern no reason why they should be treated any differently”). The same is not true here. For three days out of the year, the streets and sidewalks of the outer perimeter are not serving as traditional streets and sidewalks; rather, they are serving in an entirely different role. See Heffron, 452 U.S. 651 (“[t]he flow of the crowd and demands of safety are more pressing in the context of [a] Fair. As such, any comparisons to public streets are necessarily inexact”). For these reasons, Grace is not controlling here.
The Court analogizes the two perimeters to airport traffic; the inner perimeter is like the main runway, while the outer perimeter is like a taxiway which serves the purpose of unimpeded ramp up and ramp down of traffic speeds into the inner perimeter.
For the reasons stated above, the Court finds that the handbilling ban in the inner and outer perimeters meets the requirements for a valid time, place, and manner restriction on speech. Accordingly, summary judgment will be granted in favor of Defendants on Plaintiff’s First Amendment free speech claim.
V. ANALYSIS - FREEDOM OF ASSOCIATION (COUNT II) Defendants argue that they are entitled to summary judgment in their favor on Plaintiff’s freedom of association claim. Plaintiff does not seek summary judgment on this claim, and the claim is scarcely discussed in Plaintiff’s motion papers, and not at all at oral argument. In the Amended Complaint, Plaintiff states that “Defendants have deprived [him] of [his] right to expressive association guaranteed by the First Amendment” “[b]y reason of the [handbilling restriction].” Am. Compl. ¶ 78. In his response to Defendants’ Motion for Summary Judgment, Plaintiff states that the handbilling ban forces Plaintiff “to be a participant in—and thus [a] supporter of—the Festival.” Resp. at 9 (emphasis deleted).
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This argument, although interesting, is unpersuasive. Plaintiff relies solely upon Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), in support of his argument. There, the Supreme Court held that the government cannot force private citizens who organize a parade to include among the marchers a group imparting a message that the organizers do not wish to convey. Id. at 559. Thus, the Court found that compelling the parade organizer to include the Irish-American Gay, Lesbian, and Bisexual Group in the parade “violates the fundamental rule . . . under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Id. at 572.
The present case is not like Hurley. Hurley involved a situation where the government was attempting to use its power to compel a private speaker, the parade organizer, to alter its message. Here, the government is not forcing Plaintiff to do anything; Plaintiff, by his own choice, wishes to impart his religious message upon Festival-goers. For this reason, Hurley is inapplicable. Plaintiff’s freedom of association claim is unavailing.
VI. ANALYSIS - FREE EXERCISE CLAIM (COUNT III) Plaintiff does not discuss his free exercise claim in his motion papers despite the fact that the claim is discussed by Defendants. Therefore, the claim is deemed abandoned. See Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 405 (6th Cir. 1992) (if the non-moving party fails to carry its burden of setting forth specific facts showing genuine issues of fact for trial, “its opportunity is waived and its case wagered”). In any event, the claim is not viable. As stated in a respected treatise,
the free exercise clause is invoked in several situations. One is when the government prohibits behavior that a person’s religion requires. . . . The free exercise clause also is invoked when the government requires conduct that a person’s religious prohibits. . . . Additionally, the free exercise clause is
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invoked when individuals claim that laws burden or make more difficult religious observances. E. Chemerinsky, Constitutional Law § 12.3.1, p. 1247 (3d ed. 2006). None of these situations appear to be implicated in this case; if one is, Plaintiff does not explain how. Accordingly, summary judgment will be granted in favor of Defendants on Plaintiff’s free exercise claim.
VII. ANALYSIS - EQUAL PROTECTION CLAIM (COUNT IV) Plaintiff’s equal protection claim under the Fourteenth Amendment is not viable for the reasons stated in footnote 15, above.
VIII. ANALYSIS - MUNICIPAL LIABILITY Although not the subject of a separate count, Plaintiff broadly asserts municipal liability against the City. Plaintiff contends that the City is liable under § 1983 because it enforced an unconstitutional speech restriction. In addition, Plaintiff alleges throughout his Amended Complaint and motion papers that the handbilling ban at the 2009 Festival was selectively enforced by Dearborn police officers. Although the parties do not explicitly acknowledge it as such, the selective enforcement claim constitutes a municipal liability claim. Three general rules govern a municipal liability claim. First, “a municipality cannot be held liable [under § 1983] solely because it employs a tortfeasor–or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658, 691 (1978). In other words,
a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Id. at 694. Second, “[a] local government entity violates § 1983 where its official policy or custom
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actually serves to deprive an individual of his or her constitutional rights.” Gregory v. City of
Louisville, 444 F.3d 725, 752 (6th Cir. 2006). Third, “[t]he burden of proof is on the plaintiff to set
forth the unconstitutional policy and link it with both the municipality and the injuries at issue.”
King v. City of Eastpointe, 86 F. App’x 790, 801 (6th Cir. 2003) (unpublished).
The Supreme Court has explained why a plaintiff seeking to impose liability on a
municipality under § 1983 must identify a municipal “policy” or “custom” that caused injury:
Locating a “policy” ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality. Similarly, an act performed pursuant to a “custom” that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.
Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 403-404 (1997) (citation omitted).
Put differently,
[t]he requirement that a municipality’s wrongful actions be a “policy” is not meant to distinguish isolated incidents from general rules of conduct promulgated by city officials. It is meant to distinguish those injuries for which “the government as an entity is responsible under § 1983” from those injuries for which the government should not be held accountable. “Monell is a case about responsibility.” “The ‘official policy’ requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.”
Meyers v. City of Cincinnati, 14 F.3d 1115, 1117 (6th Cir. 1995) (citations omitted) (emphasis in
original).
Because the Court has found that enforcement of the handbilling ban in the inner and outer
perimeters is constitutional, Plaintiff cannot establish an unconstitutional policy or custom. His
municipal liability claim, therefore, is not viable.
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With regard to Plaintiff’s selective enforcement claim, the Third Circuit has stated that
in order to establish municipal liability for selective enforcement of a facially viewpoint- and content-neutral regulation, a plaintiff whose evidence consists solely of the incidents of enforcement themselves must establish a pattern of enforcement activity evincing a governmental policy or custom of intentional discrimination on the basis of viewpoint or content.
Brown v. City of Pittsburgh, 586 F.3d 263, 294 (3d Cir. 2009). There is no policy of selective
enforcement at issue in this case. Thus, in order to sustain his selective enforcement claim, Plaintiff
must demonstrate a municipal custom of selective enforcement or, in the words of the Third Circuit,
“a pattern of enforcement activity evincing a governmental . . . custom of intentional discrimination
on the basis of viewpoint or content.” Brown, 586 F.3d at 294.
Plaintiff testified that he observed Dearborn police officers selectively enforcing the
handbilling ban at the 2009 Festival:
27. During the 2009 Festival, the rules and regulations were selectively enforced. For example, various festival booths on Warren Avenue blocked parts of the sidewalk (Haddad deposition exhibit 14); ART (Arabic Radio & Television) had a booth at the Festival and was allowed to pass out flyers outside of the booth, even in front of the police and security guards; a “Monster” truck was allowed to pass out free drinks within the border areas to Festival goers; and a Five Star Video representative was permitted to distribute flyers to Festival goers in the street and on the sidewalks without first purchasing a booth. True and accurate photographs of these activities are attached to this declaration as Exhibit F.
28. Even though my fellow Christians and I were prohibited from distributing our religious literature on the adjacent and surrounding public streets and sidewalks during the Festival, certain individuals unrelated to us and our Christian outreach were not so prohibited. In fact, some individuals were distributing literature within the Festival itself on Warren Avenue and the City police did not stop them. A true and accurate photograph of an individual distributing literature to me on Warren Avenue during the Festival (Haddad deposition exhibit 17) and a true and accurate photograph of an individual distributing literature to me on the public sidewalk adjacent to
41

Case 2:09-cv-12321-PDB-RSW Document 57 Filed 06/07/10 Page 42 of 44
Warren Avenue during the Festival (Haddad deposition exhibit 18) are attached to this declaration as Exhibit G. Additional true and accurate photographs of individuals distributing materials on the public sidewalks and on Warren Avenue during the 2009 Festival are attached to this declaration as Exhibit H. Saieg Aff. ¶¶ 27-28. Accepting Plaintiff’s testimony as true and assuming that the pictures show what they are alleged to show, and taking the evidence in the light most favorable to Plaintiff, the testimony above is insufficient to establish a cognizable municipal liability claim based on selective enforcement. Plaintiff alleges the following instances of selective enforcement of the handbilling ban during the 2009 Festival: (1) Arabic Radio & Television was allowed to pass out flyers outside of its booth; (2) a “Monster” truck was allowed to pass out free drinks within the border areas to Festival-goers; (3) a Five Star Video representative was permitted to distribute flyers to Festival-goers in the street and on the sidewalks without first purchasing a booth; (4) “some individuals were distributing literature within the Festival itself on Warren Avenue and the City police did not stop them.”
These four instances, even if true, do not amount to “a pattern of enforcement activity evincing a governmental . . . custom of intentional discrimination on the basis of viewpoint or content.” Brown, 586 F.3d at 294. This is because these instances, alone, are insufficient to show that selective enforcement of the handbilling ban was “so widespread as to have the force of law.” Brown, 520 U.S. at 403-404.
In addition, Plaintiff has not demonstrated that “those whose edicts or acts may fairly be said to represent official policy,” such as Chief Haddad, are responsible for the above-described instances of selective enforcement. See Monell, 426 U.S. 694. In other words, Plaintiff has not alleged that
42

Case 2:09-cv-12321-PDB-RSW Document 57 Filed 06/07/10 Page 43 of 44
the constitutional injury, selective enforcement of the handbilling ban, was inflicted by the City itself, through its decision-makers (i.e., Haddad), as opposed to one or more of its employees or agents (i.e., individual patrol officers). See Monell, 436 U.S. at 691 (“a municipality cannot be held liable under § 1983 on a respondeat superior theory”). For these reasons, Plaintiff’s selective enforcement claim is not viable under § 1983.
IX. QUALIFIED IMMUNITY Haddad mistakenly argues that he is entitled to qualified immunity. This is not an action for monetary relief; it is an action for declaratory and injunctive relief. Moreover, Haddad is sued in his official capacity only. “Qualified immunity is an affirmative defense to damage liability; it does not bar actions for declaratory or injunctive relief. Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 527 (9th Cir. 1989). Moreover, “[q]ualified immunity shields [a] defendant from personal liability, but it does not shield him from . . . claims brought against him in his official capacity.” Hall v. Tollett, 128 F.3d 418, 430 (6th Cir. 1997). Accordingly, Haddad is not entitled to qualified immunity.
X. ORDER For the reasons stated, Defendants’ Motion for Summary Judgment is granted. Plaintiff’s Motion for Summary Judgment and Request for Injunctive Relief is denied. All other outstanding motions are denied as moot. This case is dismissed. SO ORDERED.
s/Paul D. Borman PAUL D. BORMAN UNITED STATES DISTRICT JUDGE
43

Case 2:09-cv-12321-PDB-RSW Document 57 Filed 06/07/10 Page 44 of 44 Dated: June 7, 2010
CERTIFICATE OF SERVICE Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on June 7, 2010.
s/Denise Goodine Case Manager
44

 
 Case: 2:09-cv-12321 As of: 05/07/2013 02:36 PM EDT 1 of 8
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:09−cv−12321−PDB−RSW

CLOSED

Arabic Christian Perspective et al v. Dearborn, City of et al Assigned to: District Judge Paul D. Borman Referred to: Magistrate Judge R. Steven Whalen Case in other court: U.S. Court of Appeals − Sixth Circuit,
10−01746
U.S. Court of Appeals − Sixth Circuit, 10−01746 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 06/16/2009 Date Terminated: 06/07/2010 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Arabic Christian Perspective TERMINATED: 01/15/2010

represented by Erin E. Mersino Thomas More Law Center 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 734−827−2001 Fax: 734−930−7160 Email: emersino@thomasmore.org ATTORNEY TO BE NOTICED

Robert J. Muise American Freedom Law Center P.O. Box 131098 Ann Arbor, MI 48113 734−635−3756 Fax: 801−760−3901 Email: rmuise@americanfreedomlawcenter.org ATTORNEY TO BE NOTICED

William J. Becker − NOT SWORN , Jr. The Becker Law Firm 11500 Olympic Boulevard Suite 400 Los Angeles, CA 90064 310−636−1018 Fax: (310) 765−6328 Email: bbeckerlaw@gmail.com ATTORNEY TO BE NOTICED

Plaintiff George Saieg

represented by Erin E. Mersino (See above for address) ATTORNEY TO BE NOTICED

Robert J. Muise (See above for address) ATTORNEY TO BE NOTICED

William J. Becker − NOT SWORN , Jr. (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Dearborn, City of

represented by

Case: 2:09-cv-12321 As of: 05/07/2013 02:36 PM EDT 2 of 8

Laurie M. Ellerbrake Dearborn City Legal Department 13615 Michigan Avenue Dearborn, MI 48126 313−943−2035 Email: lellerbrake@ci.dearborn.mi.us ATTORNEY TO BE NOTICED

Matthew J. Zalewski − INACTIVE City of Dearborn 13615 Michigan Avenue Dearborn, MI 48126 313−943−2035 ATTORNEY TO BE NOTICED

Defendant
Ronald Haddad Dearborn Police Chief

represented by Laurie M. Ellerbrake (See above for address) ATTORNEY TO BE NOTICED

Matthew J. Zalewski − INACTIVE (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/16/2009
06/16/2009 06/17/2009 06/17/2009 06/17/2009 06/18/2009 06/18/2009
06/18/2009 06/18/2009 06/18/2009 07/01/2009

# Docket Text
1 COMPLAINT filed by Arabic Christian Perspective, George Saieg against all defendants with Jury Demand. Plaintiff requests summons issued. Receipt No: 06450000000002029559 − Fee: $350. County of 1st Plaintiff: Orange County, California − County Where Action Arose: Wayne − County of 1st Defendant: Wayne. [Previously dismissed case: No] [Possible companion case(s): None] (Muise, Robert) (Entered: 06/16/2009)
2 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Arabic Christian Perspective (Muise, Robert) (Entered: 06/16/2009)
3 SUMMONS Issued for *Dearborn, City of* (SSch) (Entered: 06/17/2009)
4 SUMMONS Issued for *Ronald Haddad* (SSch) (Entered: 06/17/2009)
5 Emergency MOTION for Temporary Restraining Order by Arabic Christian Perspective, George Saieg. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 (Declaration of George Saieg)) (Muise, Robert) (Entered: 06/17/2009)
6 NOTICE of hearing on 5 Emergency MOTION for Temporary Restraining Order. Motion Hearing set for 6/18/2009 11:00 AM before District Judge Nancy G Edmunds. (CHem) (Entered: 06/18/2009)
Minute Entry −Motion Hearing held on 6/18/2009 re 5 Emergency MOTION for Temporary Restraining Order filed by Arabic Christian Perspective, George Saieg before District Judge Nancy G Edmunds. (Court Reporter Suzanne Jacques) (CHem) (Entered: 06/18/2009)
7 ORDER denying 5 Motion for TRO. Signed by District Judge Nancy G Edmunds. (CHem) (Entered: 06/18/2009)
8 CERTIFICATE of Service/Summons Returned Executed. Dearborn, City of served on 6/18/2009, answer due 7/8/2009. (Muise, Robert) (Entered: 06/18/2009)
9 CERTIFICATE of Service/Summons Returned Executed. Ronald Haddad served on 6/18/2009, answer due 7/8/2009. (Muise, Robert) (Entered: 06/18/2009)
10 TRANSCRIPT of Motion for Preliminary Injunction held on 6/18/2009. (Court Reporter/Transcriber: Suzanne Jacques(email:federaltranscript@gmail.com)) (Number of Pages: 39) Redaction Request due 7/22/2009. Redacted Transcript

Case: 2:09-cv-12321 As of: 05/07/2013 02:36 PM EDT 3 of 8

07/01/2009 07/07/2009 07/07/2009
07/10/2009 07/10/2009 07/10/2009 07/10/2009 07/20/2009 07/20/2009
08/12/2009 08/19/2009 09/02/2009 09/17/2009 01/15/2010 01/15/2010 01/25/2010 02/12/2010 02/12/2010

Deadline set for 8/3/2009. Release of Transcript Restriction set for 9/29/2009. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Jacques, S.) (Entered: 07/01/2009)
11 Notice of Filing Transcript. (Jacques, S.) (Entered: 07/01/2009)
12 NOTICE of Appearance by Laurie M. Ellerbrake on behalf of Dearborn, City of, Ronald Haddad. (Ellerbrake, Laurie) (Entered: 07/07/2009)
13 AMENDED COMPLAINT with Jury Demand filed by Arabic Christian Perspective, George Saieg against all defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 (Photograph of western border of Festival), # 3 Exhibit 2 (Photograph of western section of Border Area), # 4 Exhibit 3 (part 1 of 2) (Photographs of commercial speech and activity), # 5 Exhibit 3 (part 2 of 2) (Photographs of commercial speech and activity), # 6 Exhibit 4 (Photographs of individuals/groups distributing materials), # 7 Exhibit 5 (Photograph of vendor blocking sidewalk), # 8 Exhibit 6 (Photograph of leftover religious materials)) (Muise, Robert) (Entered: 07/07/2009)
14 STIPULATION AND ORDER for enlargement of time to answer re 13 Amended Complaint,, Signed by District Judge Paul D Borman. (DGoo) (Entered: 07/10/2009)
15 STIPULATED PROTECTIVE ORDER Signed by District Judge Paul D Borman. (DGoo) (DGoo). (DGoo). (Entered: 07/10/2009)
16 NOTICE of Correction re 15 Protective Order. (DGoo) (Entered: 07/10/2009)
17 NOTICE of Correction re 15 Protective Order. (DGoo) (Entered: 07/10/2009)
18 NOTICE of Appearance by William J. Becker − NOT SWORN, Jr on behalf of Arabic Christian Perspective, George Saieg. (Becker − NOT SWORN, William) (Entered: 07/20/2009)
19 NOTICE of Appearance by William J. Becker − NOT SWORN, Jr on behalf of Arabic Christian Perspective, George Saieg. (Becker − NOT SWORN, William) Modified on 7/21/2009 (BSoc). [DOCUMENT IS AN AMENDED NOTICE OF APPEARANCE] (Entered: 07/20/2009)
20 ANSWER to Amended Complaint with Affirmative Defenses by Dearborn, City of, Ronald Haddad. (Ellerbrake, Laurie) (Entered: 08/12/2009)
21 NOTICE TO APPEAR: Scheduling Conference set for 9/23/2009 03:45 PM before District Judge Paul D Borman (DGoo) (Entered: 08/19/2009)
22 DISCOVERY plan jointly filed pursuant to Federal Rules of Civil Procedure 26(f) (Muise, Robert) (Entered: 09/02/2009)
23 SCHEDULING ORDER: Discovery due by 3/12/2010 Dispositive Motion Cut−off set for 4/30/2010 Signed by District Judge Paul D Borman. (Refer to image for additional dates) (DGoo) (Entered: 09/17/2009)
24 STIPULATED PROTECTIVE ORDER Signed by District Judge Paul D Borman. (DGoo) (Entered: 01/15/2010)
25 NOTICE of Voluntary Dismissal by Arabic Christian Perspective as to Arabic Christian Perspective (Muise, Robert) (Entered: 01/15/2010)
26 ORDER DISMISSING PLAINTIFF ARABIC CHRISTIAN PERSPECTIVE re 25 Notice of Voluntary Dismissal filed by Arabic Christian Perspective. Signed by District Judge Paul D Borman. (DGoo) (Entered: 01/25/2010)
27 WITNESS LIST by Dearborn, City of, Ronald Haddad (Ellerbrake, Laurie) (Entered: 02/12/2010)
28 SEALED Plaintiff's Preliminary Witness List by George Saieg. (Muise, Robert) (Entered: 02/12/2010)

Case: 2:09-cv-12321 As of: 05/07/2013 02:36 PM EDT 4 of 8

03/02/2010 03/15/2010 03/15/2010 03/15/2010 03/15/2010 03/15/2010 03/15/2010 03/15/2010
03/15/2010 03/15/2010
03/16/2010 03/22/2010

29 NOTICE of Appearance by Matthew J. Zalewski on behalf of Dearborn, City of, Ronald Haddad. (Zalewski, Matthew) (Entered: 03/02/2010)
30 MOTION for Summary Judgment and Request for Injunctive Relief by George Saieg. (Attachments: # 1 Brief in Support with Certificate of Service, # 2 Index of Exhibits, # 3 Exhibit 1−−Declaration of George Saieg, # 4 Exhibit −−1(A) Religious Literature, # 5 Exhibit −−1(B) Photographs of Barriers on Sidewalks) (Muise, Robert) (Entered: 03/15/2010)
31 EXHIBIT 1(C) Photographs of Festival Barriers re 30 MOTION for Summary Judgment and Request for Injunctive Relief by George Saieg (Attachments: # 1 Exhibit −−1(D) Photographs of Business Activities) (Muise, Robert) (Entered: 03/15/2010)
32 EXHIBIT 1(E) Additional Photographs of Business Activities (part 1 of 2) re 30 MOTION for Summary Judgment and Request for Injunctive Relief by George Saieg (Muise, Robert) (Entered: 03/15/2010)
33 EXHIBIT 1(E) Additional Photographs of Business Activities (part 2 of 2) re 30 MOTION for Summary Judgment and Request for Injunctive Relief by George Saieg (Muise, Robert) (Entered: 03/15/2010)
34 EXHIBIT 1(F) Photographs of Activities at Festival re 30 MOTION for Summary Judgment and Request for Injunctive Relief by George Saieg (Attachments: # 1 Exhibit −−1(G) Photographs of Individuals Distributing Literature, # 2 Exhibit −−1(H) Additional Photographs of Individuals Distributing Literature) (Muise, Robert) (Entered: 03/15/2010)
35 EXHIBIT 1(I) Photographs of Public Sidewalks Adjacent to Festival re 30 MOTION for Summary Judgment and Request for Injunctive Relief by George Saieg (Attachments: # 1 Exhibit −−1(J) Photograph of Mobile Police Station, # 2 Exhibit −−1(K) Photographs of ACP "Booth", # 3 Exhibit −−1(L) Photograph of Leftover Religious Materials) (Muise, Robert) (Entered: 03/15/2010)
36 EXHIBIT 2 Declaration of Francia Morello re 30 MOTION for Summary Judgment and Request for Injunctive Relief by George Saieg (Attachments: # 1 Exhibit −−2(A) City Ordinance: Distribution of Handbills, # 2 Exhibit −−2(B) City Ordinance: Street Vendors, # 3 Exhibit −−2(C) City Ordinance: Special Events, # 4 Exhibit −−3 Fay Beydoun Deposition Excerpts, # 5 Exhibit −−4 City Services Memorandum, # 6 Exhibit −−5 City Council Resolution, # 7 Exhibit −−6 Department of Recreation Memorandum Regarding Festival, # 8 Exhibit −−7 Sgt Jeffrey Mrowka Deposition Excerpts, # 9 Exhibit −−8 City Police Department Personnel Summary &After Action Report) (Muise, Robert) (Entered: 03/15/2010)
37 EXHIBIT 9 Chief Ronald Haddad Deposition Excerpts re 30 MOTION for Summary Judgment and Request for Injunctive Relief by George Saieg (Attachments: # 1 Exhibit −−10 Photographs of Police Command Trailer, # 2 Exhibit −−11 Photograph of Opening Ceremony, # 3 Exhibit −−12 Poster Promoting Festival, # 4 Exhibit −−13 Festival Meeting Notes &Agenda) (Muise, Robert) (Entered: 03/15/2010)
38 EXHIBIT 14 List of Businesses that Applied for Special Permits re 30 MOTION for Summary Judgment and Request for Injunctive Relief by George Saieg (Attachments: # 1 Exhibit −−15 Special Events Application for Festival, # 2 Exhibit −−16 American Arab Chamber of Commerce Memorandum to City Regarding Festival, # 3 Exhibit −−17 Map of Festival Area, # 4 Exhibit −−18 Transcript Excerpts from TRO Hearing, # 5 Exhibit −−19 Map of "Inner Perimeter" and "Outer Perimeter" of Festival, # 6 Exhibit −−20 Photographs of Baby Strollers at Festival, # 7 Exhibit −−21 Festival "Rules &Regulations") (Muise, Robert) (Entered: 03/15/2010)
39 NOTICE of hearing on 30 MOTION for Summary Judgment and Request for Injunctive Relief. Responses due by 4/16/2010 Replies due by 4/30/2010 Motion Hearing set for 7/15/2010 02:00 PM before District Judge Paul D Borman. (DGoo) (Entered: 03/16/2010)
40 NOTICE of hearing on 30 MOTION for Summary Judgment and Request for Injunctive Relief. Motion Hearing RESCHEDULED for 5/21/2010 02:00 PM

Case: 2:09-cv-12321 As of: 05/07/2013 02:36 PM EDT 5 of 8

04/09/2010
04/09/2010 04/09/2010 04/09/2010 04/09/2010 04/12/2010 04/16/2010
04/16/2010 04/16/2010 04/23/2010 04/23/2010 04/23/2010 04/28/2010 04/30/2010

before District Judge Paul D Borman. (DGoo) (Entered: 03/22/2010)
41 MOTION for Summary Judgment by Dearborn, City of, Ronald Haddad. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Ex B− training program, # 3 Exhibit Ex C− dep transcript of Beydoun, # 4 Exhibit Ex D− flyer and program, # 5 Exhibit Ex E− request for resolution, # 6 Exhibit Ex F− Map, # 7 Exhibit Ex G− article, # 8 Exhibit Ex H− dep transcript of Mrowka, # 9 Exhibit Ex I− memo, # 10 Exhibit Ex J− photos, # 11 Exhibit Ex K− dep transcript of Haddad, # 12 Exhibit Ex L− Peterson memo, # 13 Exhibit Ex M− council resolution, # 14 Exhibit Ex N− minutes, # 15 Exhibit Ex O− festival application, # 16 Exhibit Ex P− motion transcript, # 17 Exhibit Ex Q− speech photos, # 18 Exhibit Ex S− call for service, # 19 Exhibit Ex T− prosecution report, # 20 Exhibit Ex U− McDowell letter, # 21 Exhibit Ex V− sidewalk photos, # 22 Exhibit Ex W− crowd photos) (Ellerbrake, Laurie) (Entered: 04/09/2010)
42 SEALED EXHIBIT A− Dep transcript of Saieg re 41 MOTION for Summary Judgment by Dearborn, City of, Ronald Haddad. (Ellerbrake, Laurie) (Entered: 04/09/2010)
43 SEALED EXHIBIT R− Plaintiff's Answers to Defendants' Second Interrogatories re 41 MOTION for Summary Judgment by Dearborn, City of, Ronald Haddad. (Ellerbrake, Laurie) (Entered: 04/09/2010)
44 MOTION set hearing date for Motion for Summary Judgment before 15th Annual Arab International Festival by Dearborn, City of, Ronald Haddad. (Ellerbrake, Laurie) (Entered: 04/09/2010)
45 MOTION for Leave to File Excess Pages by Dearborn, City of, Ronald Haddad. (Ellerbrake, Laurie) (Entered: 04/09/2010)
46 NOTICE of hearing on 41 MOTION for Summary Judgment. Responses due by 4/23/2010 Replies due by 4/30/2010 Motion Hearing set for 5/21/2010 02:00 PM before District Judge Paul D Borman. (DGoo) (Entered: 04/12/2010)
47 RESPONSE to 30 MOTION for Summary Judgment and Request for Injunctive Relief filed by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit B − Program for "Facing the Muslim Challenge", # 3 Exhibit C − Dep transcript of Beydoun, # 4 Exhibit D − Festival flyer and program, # 5 Exhibit E − Request from Arab Chamber, # 6 Exhibit F − Map of Festival area, # 7 Exhibit G − Press &Guide article, # 8 Exhibit H − Dep transcript of Mrowka, # 9 Exhibit I − Memo regarding barricades, # 10 Exhibit J − Photos of Festival grounds, # 11 Exhibit K − Dep transcript of Haddad, # 12 Exhibit L − Memo from Peterson, # 13 Exhibit M − Council Resolution, # 14 Exhibit N − Meeting minutes, # 15 Exhibit O − Festival application, # 16 Exhibit P − Transcript of TRO hearing, # 17 Exhibit Q − Speech photos, # 18 Exhibit R − Letter to editor, # 19 Exhibit S − Sidewalk photos, # 20 Exhibit T − Crowd photos) (Zalewski, Matthew) (Entered: 04/16/2010)
48 SEALED EXHIBIT A − Dep. transcript of Saieg re 47 Response to Motion,,, by All Defendants. (Zalewski, Matthew) (Entered: 04/16/2010)
49 MOTION for Leave to File Excess Pages by All Defendants. (Zalewski, Matthew) (Entered: 04/16/2010)
50 RESPONSE to 41 MOTION for Summary Judgment filed by George Saieg. (Attachments: # 1 Index of Exhibits) (Muise, Robert) (Entered: 04/23/2010)
51 SEALED EXHIBIT 22−−Plaintiff Saieg Deposition Excerpts &Deposition Exhibit 46 re 50 Response to Motion by George Saieg. (Muise, Robert) (Entered: 04/23/2010)
52 SEALED EXHIBIT 23−−Deposition Exhibit 33: Call for Service re 50 Response to Motion by George Saieg. (Muise, Robert) (Entered: 04/23/2010)
53 REPLY to Response re 30 MOTION for Summary Judgment and Request for Injunctive Relief filed by George Saieg. (Muise, Robert) (Entered: 04/28/2010)
54 REPLY to Response re 41 MOTION for Summary Judgment filed by All Defendants. (Zalewski, Matthew) (Entered: 04/30/2010)

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05/10/2010 05/19/2010 05/21/2010
06/07/2010 06/07/2010 06/07/2010 06/08/2010 06/17/2010
07/02/2010
07/02/2010 07/07/2010 09/20/2010 10/06/2010
05/26/2011
05/27/2011 06/08/2011 06/08/2011

55 ORDER regarding upcoming hearing re 41 MOTION for Summary Judgment filed by Dearborn, City of, Ronald Haddad. Signed by District Judge Paul D Borman. (DGoo) (Entered: 05/10/2010)
56 RESPONSE to 55 Order by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Letter from American Arab Chamber) (Zalewski, Matthew) (Entered: 05/19/2010)
Minute Entry − Motion Hearing held on 5/21/2010 re 30 MOTION for Summary Judgment and Request for Injunctive Relief filed by George Saieg, 41 MOTION for Summary Judgment filed by Dearborn, City of, Ronald Haddad before District Judge Paul D Borman. Disposition: taken under advisement(Court Reporter Mosby) (DGoo) (Entered: 05/21/2010)
57 OPINION and ORDER granting 41 Motion for Summary Judgment; denying 30 Motion for Summary Judgment. Signed by District Judge Paul D Borman. (DGoo) (Entered: 06/07/2010)
58 JUDGMENT in favor of defendants against plaintiff. Judgment in the amount of $ *0*. Signed by District Judge Paul D Borman. (DGoo) (Entered: 06/07/2010)
59 NOTICE OF APPEAL by George Saieg. Receipt No: 0645−2498129 − Fee: $ 455 − Fee Status: Fee Paid. (Muise, Robert) (Entered: 06/07/2010)
60 Certificate of Service re 59 Notice of Appeal. (CGre) (Entered: 06/08/2010)
61 ORDER from U.S. Court of Appeals − Sixth Circuit re 59 Notice of Appeal filed by George Saieg − Disposition: The motion for injunction pending appeal is GRANTED as follows. The relief granted hereby pertains only to the Festival to be held June 18, 19 and 20, 2010, after which this order will be deemed to have expired. [Appeal Case Number 09−12321]. (CGre) (Entered: 06/18/2010)
62 BILL OF COSTS by Dearborn, City of, Ronald Haddad (Attachments: # 1 Index of Exhibits List of Exhibits, # 2 Exhibit A; Receipt for transcript of TRO hrg, # 3 Exhibit B; Receipt for transcripts of deps of Mrowka and Haddad, # 4 Exhibit C; Receipt for transcript of dep of Beydoun, # 5 Exhibit D; Receipt for transcript of dep of Saieg) (Ellerbrake, Laurie) (Entered: 07/02/2010)
63 COST TAXED in amount of $729.25 against plaintiff. (DPer) (Entered: 07/02/2010)
64 MOTION Defendants' Motion to Review Taxation of Costs re 62 Bill of Costs, 63 Costs Taxed by Dearborn, City of, Ronald Haddad. (Ellerbrake, Laurie) (Entered: 07/07/2010)
65 ORDER STAYING 64 MOTION Defendants' Motion to Review Taxation of Costs re 62 Bill of Costs, 63 Costs Taxed filed by Dearborn, City of, Ronald Haddad. Signed by District Judge Paul D Borman. (DGoo) (Entered: 09/20/2010)
66 ORDER from U.S. Court of Appeals − Sixth Circuit re 59 Notice of Appeal filed by George Saieg − Disposition: It is ORDERED that the motion to expedite oral argument be and it hereby is GRANTED. [Appeal Case Number 10−1746]. (CGre) (Entered: 10/06/2010)
67 OPINION and Judgment from U.S. Court of Appeals − Sixth Circuit re 59 Notice of Appeal filed by George Saieg − Disposition: It is ORDERED that the judgment of the district court is REVERSED IN PART and AFFIRMED IN PART, and the case is REMANDED for further proceedings consistent with the opinion of this court. [Appeal Case Number 10−1746]. (CGre) (Entered: 05/26/2011)
68 LETTER from U.S. Court of Appeals − Sixth Circuit re 67 Appeal Opinion − Corrected Page 14. [Appeal Case Number 10−1746] (CGre) (Entered: 05/27/2011)
69 Emergency MOTION for Permanent Injunction by George Saieg. (Muise, Robert) (Entered: 06/08/2011)
70 NOTICE of hearing on 69 Emergency MOTION for Permanent Injunction. Responses due by 6/10/2011 Motion Hearing set for 6/14/2011 01:00 PM before District Judge Paul D. Borman. (DGoo) (Entered: 06/08/2011)

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06/10/2011
06/13/2011
06/14/2011 06/14/2011
06/17/2011 06/20/2011 06/21/2011
06/21/2011 06/21/2011
06/22/2011 06/22/2011 06/27/2011 06/30/2011
07/01/2011
07/01/2011 07/07/2011

71 RESPONSE to 69 Emergency MOTION for Permanent Injunction filed by Dearborn, City of, Ronald Haddad. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit A; Proposed Judgment, # 3 Exhibit B; Opinion, # 4 Exhibit C; Memo and Hold Harmless Agreement) (Ellerbrake, Laurie) (Entered: 06/10/2011)
72 REPLY to Response re 69 Emergency MOTION for Permanent Injunction filed by George Saieg. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1−−Proposed Judgment, # 3 Exhibit 2−−City Council Resolution of May 31, 2011) (Muise, Robert) (Entered: 06/13/2011)
Minute Entry − Status Conference held on 6/14/2011, before District Judge Paul D. Borman. (Court Reporter Leann Lizza) (DGoo) (Entered: 06/14/2011)
73 JUDGMENT reversing in part the Court's order granting summary judgment and judgment is entered in plaintiff's favor on his first amendment free speech claim against all defendants. Signed by District Judge Paul D. Borman. (DGoo) (Entered: 06/14/2011)
74 MANDATE from U.S. Court of Appeals − Sixth Circuit as to 59 Notice of Appeal filed by George Saieg. [Appeal Case Number 10−1746]. (CGre) (Entered: 06/17/2011)
75 BILL OF COSTS by George Saieg (Attachments: # 1 Exhibit A−−Fees of the Clerk, # 2 Exhibit B−−Court Reporter Fees, # 3 Exhibit C−−Witness Fees) (Muise, Robert) (Entered: 06/20/2011)
76 MOTION for Attorney Fees by George Saieg. (Attachments: # 1 Index of Exhibits, # 2 Exhibit −−1 Declaration of Attorney Robert Muise, # 3 Exhibit −−A Record of Costs and Fees, # 4 Exhibit −−2 Declaration of Attorney Robert Bunting) (Muise, Robert) (Entered: 06/21/2011)
77 COSTS TAXED in the amount of $805.00 against defendants. (DPer) (Entered: 06/21/2011)
78 BILL OF COSTS [AMENDED] by George Saieg (Attachments: # 1 Exhibit −− 1 Declaration of Attorney Robert Muise, # 2 Exhibit −− A Fees of the Clerk, # 3 Exhibit −− B Court Reporter Fees, # 4 Exhibit −− C Witness Fees) (Muise, Robert) (Entered: 06/21/2011)
79 COSTS TAXED (AMENDED) in the amount of $2,322.16 against defendants. (DPer) (Entered: 06/22/2011)
80 ORDER REFERRING MOTION to Magistrate Judge R. Steven Whalen: 76 MOTION for Attorney Fees filed by George Saieg. Signed by District Judge Paul D. Borman. (DGoo) (Entered: 06/22/2011)
81 MOTION Review of Amended Taxed Bill of Cost re 79 Costs Taxed by George Saieg. (Muise, Robert) (Entered: 06/27/2011)
82 ORDER REFERRING MOTION to Magistrate Judge R. Steven Whalen: 81 MOTION Review of Amended Taxed Bill of Cost re 79 Costs Taxed filed by George Saieg. Signed by District Judge Paul D. Borman. (DGoo) (Entered: 06/30/2011)
83 STIPULATION re 76 MOTION for Attorney Fees Stipulation to Extend Time for Defendants to File Response by Dearborn, City of, Ronald Haddad (Zalewski, Matthew) Modified on 7/1/2011 (NHol). [PLEASE DISREGARD − FILED IN ERROR] (Entered: 07/01/2011)
84 STIPULATED ORDER Adjourning Response due date as to 76 MOTION for Attorney Fees: (Response due by 8/4/2011). Signed by Magistrate Judge R. Steven Whalen. (MLan) (Entered: 07/01/2011)
85 NOTICE of hearing on 81 MOTION to Review Amended Taxed Bill of Cost re 79 Costs Taxed, and 76 MOTION for Attorneys' Fees. Motion Hearing set for 10/6/2011 at 10:00 AM before Magistrate Judge R. Steven Whalen. (THac) (Entered: 07/07/2011)

Case: 2:09-cv-12321 As of: 05/07/2013 02:36 PM EDT 8 of 8

08/04/2011 08/10/2011 09/08/2011 09/27/2011 10/04/2011 10/18/2011
01/27/2012 01/27/2012 01/30/2012 01/31/2012 02/27/2012 03/09/2012

86 RESPONSE to 76 MOTION for Attorney Fees , Costs, Expenses, and Nominal Damages filed by Dearborn, City of, Ronald Haddad. (Attachments: # 1 Index of Exhibits List of Exhibits, # 2 Exhibit A; 2010 Economics of Law Practice, # 3 Exhibit B; Daniels v Hawkins) (Ellerbrake, Laurie) (Entered: 08/04/2011)
87 REPLY to Response re 76 MOTION for Attorney Fees filed by George Saieg. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1−−Supplemental Declaration of Attorney Muise, # 3 Exhibit A−−Supreme Court Insider Article Published by The National Law Journal) (Muise, Robert) (Entered: 08/10/2011)
TEXT ONLY NOTICE − as to 81 MOTION Review of Amended Taxed Bill of Cost re 79 Costs Taxed, 76 MOTION for Attorney Fees : Motion Hearing ADJJOURNED TO 10/18/2011 10:00 AM before Magistrate Judge R. Steven Whalen (MLan) (Entered: 09/08/2011)
88 ORDER Denying Defendants' 64 Motion to Review Taxation of Costs − Signed by District Judge Paul D. Borman. (FMos) (Entered: 09/27/2011)
89 AMENDED NOTICE of hearing on 81 MOTION to Review Amended Taxed Bill of Cost re 79 Costs Taxed, 76 MOTION for Attorney Fees. Motion Hearing set for 10/18/2011 at 12:00 PM before Magistrate Judge R. Steven Whalen. (THac) (Entered: 10/04/2011)
Minute Entry − Motion Hearing held on 10/18/2011 76 MOTION for Attorney Fees filed by George Saieg, and 81 MOTION Review of Amended Taxed Bill of Cost re 79 Costs Taxed filed by George Saieg before Magistrate Judge R. Steven Whalen. Disposition: TAKEN UNDER ADVISEMENT AND GRANTED, RESPECTIVELY. (Court Reporter Linda Cavanagh) (JCur) (Entered: 10/19/2011)
90 REPORT AND RECOMMENDATION recommending granting 76 MOTION for Attorney Fees filed by George Saieg. Signed by Magistrate Judge R. Steven Whalen. (JCur) (Entered: 01/27/2012)
91 REPORT AND RECOMMENDATION recommending denying as moot 81 MOTION Review of Amended Taxed Bill of Cost re 79 Costs Taxed filed by George Saieg. Signed by Magistrate Judge R. Steven Whalen. (JCur) (Entered: 01/27/2012)
92 NOTICE of Appearance by Erin E. Mersino on behalf of All Plaintiffs. (Mersino, Erin) (Entered: 01/30/2012)
93 NOTICE of Change of Address/Contact Information by Robert J. Muise on behalf of George Saieg. (Muise, Robert) (Entered: 01/31/2012)
94 SATISFACTION OF JUDGMENT as to All Defendants by George Saieg (Muise, Robert) (Entered: 02/27/2012)
95 OPINION and ORDER denying as moot 81 Motion filed by George Saieg, adopting 90 Report and Recommendation, granting 76 Motion for Attorney Fees, filed by George Saieg Signed by District Judge Paul D. Borman. (DGoo) (Entered: 03/09/2012)

 
 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 11a0147p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

GEORGE SAIEG,

;

Plaintiff-Appellant,

 



v.

>

CITY OF DEARBORN; RONALD HADDAD,



Dearborn Chief of Police, Defendants-Appellees.

  1

No. 10-1746

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 09-12321—Paul D. Borman, District Judge.

Argued: April 29, 2011

Decided and Filed: May 26, 2011

Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.

_________________

COUNSEL
ARGUED: Robert Joseph Muise, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, for Appellant. Laurie M. Ellerbrake, Dearborn, Michigan, for Appellees. ON BRIEF: Robert Joseph Muise, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, for Appellant. Laurie M. Ellerbrake, Dearborn, Michigan, for Appellees.
MOORE, J., delivered the opinion of the court, in which CLAY, J., joined. DAUGHTREY, J. (p. 22), delivered a separate dissenting opinion.
_________________

OPINION _________________

KAREN NELSON MOORE, Circuit Judge. Each summer, Plaintiff George Saieg attends the Arab International Festival (“Festival”) in the City of Dearborn, Michigan (“City”). At the Festival, Saieg leads a group of Christians whose goal is to convert Muslims to Christianity. In 2009, Dearborn police instituted a leafleting

1

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restriction for the Festival. Pursuant to the restriction, no one may leaflet from the sidewalks that are directly adjacent to the Festival attractions, or on the sidewalks and roads that surround the Festival’s core on each side by one to five city blocks. The restriction permits leafleting at the Festival only from a stationary booth and not while walking around the Festival.
Saieg sued the City of Dearborn and its Chief of Police, alleging that the leafleting restriction violated his First Amendment right to free speech, as well as his freedom to associate, his free exercise of religion, and his right to equal protection. The district court denied a temporary restraining order before the 2009 Festival and granted summary judgment to the defendants in 2010. This court granted Saieg an injunction pending appeal for the 2010 Festival, permitting Saieg to distribute leaflets from the outer sidewalks and roads, but not on the sidewalks that are directly adjacent to the Festival attractions.
On the free speech claim, we REVERSE the district court’s grant of summary judgment to the defendants and its denial of summary judgment to the plaintiffs. We thereby invalidate the leafleting restriction within both the inner and outer perimeters of the Festival.1 The restriction on the sidewalks that are directly adjacent to the Festival attractions does not serve a substantial government interest. The City keeps those same sidewalks open for public traffic and permits sidewalk vendors, whose activity is more obstructive to sidewalk traffic flow than pedestrian leafleting is. Moreover, the prohibition of pedestrian leafleting in the outer perimeter is not narrowly tailored to the goal of isolating inner areas from vehicular traffic. The City can be held liable because the Chief of Police, who instituted the leafleting restriction, created official municipal policy. We AFFIRM the district court’s judgment for the defendants on all other claims. We REMAND to the district court for such further proceedings as are consistent with this opinion that may be warranted.

1Saieg has not requested the ability to leaflet on the street that contains Festival attractions. As a result, we do not pass judgment on whether a ban on leafleting on that street itself is constitutionally permissible.

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I. BACKGROUND
A. Substantive Facts
1. The Arab International Festival
The American Arab Chamber of Commerce (“AACC”) organizes the Festival, which is free and open to the public. Each year, over 250,000 people attend the Festival, which features carnival rides, a main stage with live entertainment, international food, merchandise sales, a tent targeted at children, and tents in which artisans and other vendors display products. In 2009, forty artisan vendors, twenty-five information tables, fourteen food vendors, and seventeen sponsor booths took part in the Festival. These attractions are all located within the “inner perimeter” of the Festival: the eight blocks of Warren Avenue between Hartwell Street to the west and Kingsley Street to the east, as well as one block south on Miller Road, which intersects Warren Avenue. Due to the scale of the event, officers from the Dearborn Police Department supply extensive security and support the Festival from a “[c]ommand post trailer.” R. 47-11 (Ex. K: Haddad dep. at 52). The resolution authorizing the Festival “subject[s]” the Festival to “the rules and regulations of the Police Department.” R. 47-13 (Ex. M: Council Resolution)
Businesses located along the inner perimeter on Warren Avenue can obtain permits to display and sell their goods on the sidewalks outside their storefronts. Although the City itself issued the sidewalk permits prior to 2009, the City now delegates authority to issue the permits to the AACC. Businesses and organizations not located on Warren Avenue can purchase an information table. In fact, if businesses or organizations wish to distribute materials, the City’s police department requires that the distribution occur from a “fixed location,” which in practice means an information table located in the street, not on the sidewalk. R. 47-8 (Ex. H: Mrowka dep. at 32). “[H]andbilling along the sidewalks that are adjacent to the [F]estival” is not permitted. R. 47-3 (Ex. C: Beydoun dep. 35). Police officers are expected to warn anyone who distributes leaflets and, if the person continues, to arrest the offender. Dearborn Chief

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of Police Ronald Haddad, who assumed his position shortly before the 2009 Festival and has prior experience with crowd control in other capacities, testified that a similar policy is in place at the Michigan State Fair. The Michigan State Fair “will not allow you to give out a paper clip unless you’re stationary and at a booth. It just makes good sense, it’s a good practice[,] and it’s not a standard that is applied indiscriminately[;] it’s across the board.” R. 47-11 (Ex. K: Haddad Dep. at 95). Fay Beydoun, Executive Director of the AACC, testified that the leafleting policy exists “to make sure that the sidewalks [a]re available, whether it’s for the people attending the [F]estival or people [who a]re trying to get from one location to another to go to the businesses” along Warren Avenue. R. 47-3 (Ex. C: Beydoun Dep. at 37); see also R. 47-11 (Ex. K: Haddad Dep. at 18) (“[K]nowing that it [i]s going to be a very crowded situation, we . . . do our very best to keep the sidewalks flowing.”).
To accommodate Festival traffic, the City barricades the roads within an “outer perimeter” or “buffer zone” that surrounds the inner perimeter. Although the outer perimeter does not contain attractions, it services the Festival by “restrict[ing] traffic,” R. 47-8 (Ex. H: Mrowka Dep. at 15), and “giv[ing] [vehicular] traffic some final point to turn away from the Warren Avenue destination,” R. 47-11 (Ex. K: Haddad Dep. at 26–27). The outer perimeter also enhances “crowd control [leading] into the [F]estival area.” R. 47-8 (Ex. H: Mrowka Dep. at 15). Finally, the outer perimeter includes parking for Festival attendees and vendors, as well as for displaced employees of Warren Avenue businesses and any of those businesses’ patrons who are not attending the Festival. R. 47-3 (Ex. C: Beydoun Dep. at 43–44). The outer perimeter stretches one block north of Warren Avenue (Morrow Circle), one block south of Warren Avenue (Blesser Avenue), five blocks west of Hartwell Street (Schaefer Road), and four blocks east of Kingsley Street (Wyoming Avenue).
The restriction on leafleting applies in the outer perimeter area as well. Beydoun explained why: “if you allowed someone to distribute literature within [the] outer area, you might as well allow the other street vendors to set up tables and start selling things

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in that area, too. That is the buffer between going in and going out. You [have] to maintain a security area.” R. 47-3 (Ex. C: Beydoun Dep. at 58).
2. Saieg and the Arabic Christian Perspective
Saieg founded the Arabic Christian Perspective (“ACP”), a now-defunct “national ministry established for the purpose of proclaiming the Holy Gospel of Jesus Christ to Muslims. As part of its outreach efforts, ACP travel[ed] around the country attending and distributing Christian literature at festivals and mosques.” R. 13 (Amended Compl. ¶ 9). Because the City is home to a “big Muslim community,” the Festival provides Saieg the opportunity to evangelize “thousands of Muslims in one place.” R. 48 (Ex. A: Saieg Dep. at 42, 44). Before each Festival, the ACP operated an annual event called “Facing the Muslim Challenge.” In 2009, the program featured panel discussions, workshops on “[e]ffectively witnessing to Muslims,” debates, door-todoor outreach, and mosque tours. R. 47–2 (Ex. B: Program). The program culminated in outreach at the Festival. At each Festival from 2004 to 2008, Saieg and 90 to 120 ACP members distributed leaflets from the public sidewalks that abut Warren Avenue.
In 2009, Saieg had planned for 90 ACP members to continue the practice of leafleting while roaming the Festival. However, when Saieg shared these plans with a City police sergeant, Saieg learned that the new Chief of Police, Chief Haddad, would not permit anyone to distribute leaflets while walking around the Festival. Instead, the City provided the ACP with a booth, waiving the standard fee. The booth was poorly lit and located by carnival rides, which attracted mostly children. This problem was remedied in 2010, when the ACP’s booth was lit and located “in the central area.” Saieg v. City of Dearborn, 720 F. Supp. 2d 817, 834–35 (E.D. Mich. 2010) (describing thenupcoming plans for the 2010 festival). Saieg also faces a more basic problem with booth-based evangelism: “[t]he penalty of leaving Islam according to Islamic books is death,” which makes Muslims reluctant to approach a booth that is publicly “labeled as . . . Christian.” R. 48 (Ex. A: Saieg Dep. at 75). Saieg believes that evangelism is more effective when he can roam the Festival and speak to Muslims more discreetly. The ACP distributed 37,000 packets of religious materials in 2007 and 20,000 packets in

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2008, but only 500 packets in 2009 due to the remote, fixed location. Numbers from 2010 are not in the record.
B. Procedural History
On June 16, 2009, Saieg and ACP sued the City and Chief Haddad for violating their First Amendment rights to free speech, free association, and free exercise of religion, in addition to violating the Equal Protection Clause. Saieg has specified that “this is not a facial challenge” to the leafleting restriction but “an as-applied challenge.” Appellant Br. at 38. Moreover, Saieg has “at no time . . . requested to engage in his religious activity on Warren Avenue or Miller Road,” although he has asked to leaflet on the sidewalks that are adjacent to those roads. Id. at 2. The plaintiffs sought declaratory and injunctive relief, attorney fees and costs, and nominal damages. Two days after the plaintiffs filed their complaint, the district court denied a temporary restraining order. At the 2009 Festival, the plaintiffs distributed leaflets from the inconveniently located booth.
The ACP was dismissed from the case after the organization dissolved. On June 7, 2010, the district court denied Saieg’s motion for summary judgment and granted summary judgment to the defendants. The district court held that the leafleting restriction was a valid time, place, and manner restriction, relying heavily on Heffron v. International Society for Krishna Consciousness, 452 U.S. 640 (1981), and the Sixth Circuit’s application of Heffron in Spingola v. Village of Granville, 39 F. App’x 978 (6th Cir. 2002) (unpublished opinion). The district court reasoned that Saieg retains alternative channels of communication, even though they are not his preferred channels, because he could “orally propagat[e] [his] religious views,” distribute materials from a booth, and distribute materials outside of the Festival. Saieg, 720 F. Supp. 2d at 834–35. The leafleting restriction is content neutral, said the district court, because permitting Warren Avenue businesses to have sidewalk sales “favor[s], if anyone, those with space along Warren Avenue no matter who they are or what their message” is. Id. at 837. The leafleting restriction serves a substantial government interest “in ensuring the orderly flow of pedestrian traffic through the crowded Festival.” Id. at 838. Finally, the district

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court found that the restriction is narrowly tailored because allowing everyone to distribute leaflets in the outer perimeter area would “effectively extend the Festival grounds into an area that is meant to serve as a buffer zone between the Festival and the outside world.” Id. at 840. Even though streets and sidewalks are traditionally public fora, “[f]or three days out of the year, the streets and sidewalks of the outer perimeter . . . are serving an entirely different role.” Id. The district court found that Saieg had abandoned his free exercise claim, and also disposed of the freedom of association and equal protection claims. Finally, the district court found that the City was not liable under 42 U.S.C. § 1983 because there was no constitutional violation. The four instances of selective enforcement that Saieg highlighted were “insufficient to show that selective enforcement . . . was so widespread as to have the force of law,” and Saieg had not shown that the selective enforcement stemmed from official policy. Id. at 844 (internal quotation marks omitted).
Saieg appealed to the Sixth Circuit and filed an emergency motion for expedited review. On June 17, 2010, this court ruled that Saieg was likely to succeed on the merits of his claim because, although Heffron and Spignola “may support the restriction of leaflet distribution among the crowds within the core area of the Festival, they do not appear to preclude similar activity in the ‘outer perimeter’ or ‘buffer zone’ leading up to the core area.” Sixth Circuit 06/17/10 Order at 3. The panel therefore granted Saieg’s motion for an injunction pending appeal, permitting Saieg “to distribute his religious literature in the streets contained within . . . the ‘outer perimeter’ or ‘buffer zone,’” but not “within the Festival itself.” Id. That order expired after the 2010 Festival. Id. The 16th annual Festival will be held June 17–19, 2011. Arab International Festival, www.americanarab.com/events-a-programs/business-development.html.

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II. DISCUSSION
A. Standard of Review
When a district court denies a permanent injunction, we review the court’s legal conclusions de novo, its factual findings for clear error, and the scope of the injunction for abuse of discretion. Worldwide Basketball & Sport Tours, Inc. v. NCAA, 388 F.3d 955, 958 (6th Cir. 2004), cert. denied, 546 U.S. 813 (2005). “A party is entitled to a permanent injunction if it can establish that it suffered a constitutional violation and will suffer continuing irreparable injury for which there is no adequate remedy at law.” Wedgewood Ltd. P’ship I v. Twp. of Liberty, 610 F.3d 340, 349 (6th Cir. 2010) (internal quotation marks omitted), cert. denied, 131 S. Ct. 1007 (2011).
The district court granted the defendants summary judgment on the first point—whether Saieg suffered a constitutional violation. That is a legal question, so the standard of review coincides with the de novo standard that we apply to summary judgments generally. Id. “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “We review cross motions for summary judgment under this standard as well, evaluating each motion on its own merits.” La Quinta Corp. v. Heartland Props. LLC, 603 F.3d 327, 335 (6th Cir. 2010).
B. Free Speech
Following the Supreme Court’s guidance in Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 797 (1985), we analyze free speech claims in three steps. Parks v. City of Columbus, 395 F.3d 643, 647 (6th Cir. 2005). The first step is to determine whether the plaintiff’s conduct is protected speech. Id. Saieg’s conduct is clearly protected. “‘[T]he hand distribution of religious tracts is an age-old form of missionary evangelism,’ Murdock v. Pennsylvania, 319 U.S. 105, 108 (1943), and such activity ‘has the same claim as [oral and written dissemination] to the guarantee[] of freedom of speech . . . ,’ id. at 109.” Parks, 395 F.3d at 647.

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The second step is to “‘identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic.’” Id. (quoting Cornelius, 473 U.S. at 797). Public streets and sidewalks “are ‘quintessential’ public forums for free speech,” Hill v. Colorado, 530 U.S. 703, 715 (2000); see also Frisby v. Schultz, 487 U.S. 474, 480–81 (1988), although “there have been limited circumstances where public streets or sidewalks are not considered public fora,” Parks, 395 F.3d at 648 (mentioning sidewalks by post offices and sidewalks in military reservations). Restrictions on speech in traditional public fora must either be (1) reasonable time, place, and manner regulations or (2) “narrowly drawn to accomplish a compelling governmental interest.” United States v. Grace, 461 U.S. 171, 177 (1983). In general, then, “the government’s ability to permissibly restrict expressive conduct” on public streets and sidewalks “is very limited.” Id.
The parties disagree about whether the streets and sidewalks within the inner and outer perimeters were functioning as traditional public fora or limited public fora2 during the Festival. Compare Parks, 395 F.3d at 652 (holding that “the streets remained a traditional public forum notwithstanding the special[, non-exclusive] permit” that allowed a private group to operate a public Arts Festival on public streets), with Spingola, 39 F. App’x at 983 (holding that the “public streets” were “not serving in th[eir traditional] function during the festival”); see also Heffron, 452 U.S. at 651 (explaining that the Minnesota Fair, which is “a temporary event attracting great numbers of visitors,” presents problems of traffic flow and crowd control that make “any comparisons to public streets . . . necessarily inexact”). This disagreement, however, is not germane to the free speech issue in this case. If a rule is “content-neutral, [then] the appropriate test is intermediate scrutiny,” even when the rule governs speech in a traditional public forum. Phelps-Roper v. Strickland, 539 F.3d 356, 361–62 (6th Cir. 2008); see also Spingola, 39 F. App’x at 983 (“[R]egardless of whether we would classify the . . . festival area as a traditional public forum or a limited public forum . . . ,
2“The government may restrict speech in a limited public forum as long as the restrictions do ‘not discriminate against speech on the basis of viewpoint’ and are ‘reasonable in light of the purpose served by the forum.’” Miller v. City of Cincinnati, 622 F.3d 524, 535 (6th Cir. 2010) (quoting Good News Club v. Milford Central Sch., 533 U.S. 98, 106–07 (2001)).

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the Ordinance is examined under the same intermediate level of scrutiny.”). As explained below, the leafleting restriction is content neutral.
Therefore, it is the third step that decides this case: “whether the justifications for exclusion from the relevant forum satisfy the requisite standard.” Cornelius, 473 U.S. at 797. The requisite principle applicable to this case is that “[t]ime, place, and manner restrictions may be enforced even in a traditional public forum so long as they are content neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” M.A.L. ex rel. M.L. v. Kinsland, 543 F.3d 841, 850 (6th Cir. 2008). The leafleting restriction does not satisfy this standard.
1. Content Neutrality
The leafleting restriction is content neutral. Whether a restriction on speech is content neutral has substantial bearing on the constitutionality of the restriction because “the government is held to a very exacting and rarely satisfied standard when it disfavors the discussion of particular subjects or particular viewpoints within a given subject matter.” Hill, 530 U.S. at 735 (Souter, J., concurring) (internal citations omitted). Government regulations of speech are content neutral if they are “justified without reference to the content or viewpoint of the regulated speech.” Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, --- U.S. ---, 130 S. Ct. 2971, 2994 (2010) (internal alterations and quotation marks omitted); see also Hill, 530 U.S. at 719 (“‘The principal inquiry . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.’” (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989))). “The government’s purpose is the controlling consideration.” Ward, 491 U.S. at 791. “[D]ifferential impact” without more does not demonstrate that a regulation is content based. Christian Legal Soc’y, 130 S. Ct. at 2994.
Requiring that all literature be distributed from a stationary location is a contentneutral regulation. Designating “specific areas for specific things” at the Festival, R. 473 (Ex. C: Beydoun dep. at 33), “is not a ‘regulation of speech.’ Rather, it is a regulation

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of the places where some speech may occur.” Hill, 530 U.S. at 719. Supporting this conclusion is the fact that “the State’s interests” in crowd control and public safety “are unrelated to the content of [the regulated] speech.” Id. at 719–20. In addition, Saieg has not produced evidence that the regulation was “adopted ‘because of disagreement with the message [that his speech] conveys.’” Id. at 719 (quoting Ward, 491 U.S. at 791).
Saieg argues that the leafleting restriction is content based because it privileges commercial speech over noncommercial speech. He points to the City’s practice of letting Warren Avenue storefronts erect sidewalk tables, whereas he cannot distribute materials from the same sidewalk. This argument misapprehends the criterion for who can vend from the sidewalk. The criterion is location, not content or type (commercial or noncommercial) of speech. Any entity with a storefront on Warren Avenue can set up sidewalk table, and no one without a storefront can become a sidewalk vendor. R. 47-3 (Ex. C: Beydoun Dep. at 64–65). The defendants do not inquire into whether the sidewalk vendor is commercial or noncommercial, and the defendants do not screen the messages that sidewalk tables convey for content.
The AACC’s proposal for the 2009 Festival confirms that location of the speakers, not the content of their speech, is the criterion for permitting sidewalk sales. The AACC describes “sidewalk sales . . . by merchants on Warren Ave[nue]” as a component of the Festival, alongside the “main stage, children’s tent, vendor tents, artisan’s tents,” “carnival,” and “[f]ood and entertainment.” R. 47-5 (Ex. E: Request from AACC at 1). Moreover, the 2009 proposal names “promot[ing] the Warren Avenue Business District” as one of two objectives for the Festival. R. 47-5 (Ex. E: Request from AACC at 3). As a way of promoting the Warren Avenue Business District, the sidewalk tables offer a “quid pro quo for stores negatively impacted by the Festival. In exchange for subjecting them to Festival crowds in front of their stores and closed-off streets that block regular customers’ ingress and egress, the existing merchants are permitted to set up tables out front to sell their wares.” 720 F. Supp. 2d at 837.

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In sum, the leafleting restriction does not use location as a guise for the content of speech. Neither the leafleting restriction nor the interest that the defendants seek to promote are related to the content of the restricted speech. The restriction, then, is content neutral.
2. Substantial Governmental Interest
The leafleting restriction does not further a substantial governmental interest. Time, place, and manner regulations must “‘promote[] a substantial government interest that would be achieved less effectively absent the regulation.’” Ward, 491 U.S. at 799 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). “‘The validity of time, place, or manner regulations does not turn on a judge’s agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests’ or the degree to which those interests should be promoted.” Id. at 800 (quoting Albertini, 472 U.S. at 689) (internal alteration marks removed).
The defendants have named several interests that they find significant: relieving “pedestrian overcrowding,” enhancing “traffic flow,” minimizing “threats to public safety,” and limiting “disorderliness at the Festival.” Appellee Br. at 37. In appropriate contexts, each of these governmental interests can be substantial. In fact, the interests that the defendants have identified closely parallel the interests that the Supreme Court validated in Heffron. In Heffron, Minnesota imposed leafleting restrictions at the state fair because the state was concerned with “maintain[ing] the orderly movement of the crowd given the large number of exhibitors and persons attending the Fair.” 452 U.S. at 649–50. The Supreme Court held that “the State’s interest in confining distribution, selling, and fund solicitation activities to fixed locations is sufficient to satisfy the requirement that a place or manner restriction must serve a substantial state interest.” Id. at 654; see also Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 768 (1994) (recognizing the state’s “strong interest in ensuring the public safety and order” and “in promoting the free flow of traffic on public streets and sidewalks”).
The defendants must do more, however, than “assert[] interests [that] are important in the abstract.” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 664 (1994).

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In the context of the Festival’s inner perimeter, the interests that the defendants have named are merely “conjectural,” as opposed to “real.” Id. Two activities that Festival organizers permit on sidewalks abutting Warren Avenue erode the significance of the government’s interest in restricting leafleting on those same sidewalks. These activities are legally relevant because “[e]xemptions from an otherwise legitimate regulation of a medium of speech . . . may diminish the credibility of the . . . rationale for restricting speech in the first place.” City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994).
First, Festival organizers keep sidewalks that are adjacent to Warren Avenue open for public traffic. In Heffron, attendees paid an admission fee to enter the fairgrounds, 452 U.S. at 658 (Brennan, J., dissenting), which means that the fairgrounds were closed to members of the public who were not attending the fair. In fact, the Supreme Court expressly distinguished the fairgrounds in Heffron from a public street. 452 U.S. at 651. In contrast, Festival organizers have intentionally maintained the public character of the sidewalks that are adjacent to the Festival attractions, keeping those sidewalks open for traffic that is unrelated to the Festival. R. 47-3 (Ex. C: Beydoun Dep. at 37) (“We wanted to make sure that the sidewalks [a]re available, whether it’s for the people attending the [F]estival or people [who a]re trying to get from one location to another to go to the businesses.”). The sidewalks may well host more traffic during the Festival than they do on other days of the year. Nevertheless, the defendants have chosen to keep the sidewalks open for public use, showing that the interests in crowd control and public safety are not so pressing that they justify restricting normal activity that occurs on streets and sidewalks. Therefore, because Festival organizers permit public traffic on the sidewalks next to Warren Avenue, the interest in curtailing First Amendment expression on those sidewalks is not substantial.3
Second and more importantly, Festival organizers permit sidewalk vendors on the sidewalks that are adjacent to Warren Avenue, belying the significance of their interest in clear sidewalks and crowd control. The sidewalk vendors have no analog in
3The district court rejected this argument because Spingola applied Heffron to a two-block fair on public streets. However, Spingola was an unpublished opinion that did not analyze the issue. To the extent that Spingola’s holding runs counter to our analysis, we do not find Spingola persuasive.

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the facts of Heffron, where the fair “confin[ed] individual exhibitors to fixed locations, with the public moving to and among the booths or other attractions, using streets and open spaces provided for that purpose.” 452 U.S. at 650. Leafleting is less obtrusive than sidewalk tables are because “‘[t]he distribution of literature does not require that the recipient stop in order to receive the message the speaker wishes to convey; instead the recipient is free to read the message at a later time.’” Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 690 (1992) (O’Connor, J., concurring) (quoting United States v. Kokinda, 497 U.S. 720, 734 (1990)). The defendants admitted at oral argument that leafleters have never posed any problems of public safety or breach of the peace at the Festival that could make leafleters more obtrusive than sidewalk vendors. By permitting the more obstructive sidewalk tables in the same place where Saieg wishes to leaflet by foot, the defendants have undercut the credibility of the asserted government interests.4
The defendants respond that an interest can be substantial even if the state does not promote it in every conceivable way. A restriction on speech can satisfy the time, place, and manner test if the restriction “promotes a substantial government interest that would be achieved less effectively absent the regulation.” Ward, 491 U.S. at 799 (internal quotation marks omitted; emphasis added). This statement of the law is drawn from the requirement of narrow tailoring. Immediately after the quoted language, Ward clarifies that, “[t]o be sure, this standard [for narrow tailoring] does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government’s legitimate interests.” Id. (emphasis added). By analogy, even when a regulation promotes a government interest that would be achieved less effectively absent the regulation, the government’s interest may still be insubstantial if the regulation burdens substantially less speech than is necessary to further the

4The district court’s response to Saieg’s argument is not persuasive. According to the district court, the Sixth Circuit rejected an argument similar to Saieg’s in Spingola. In Spingola, the plaintiff “argue[d] that the regulation does not relieve the crowding and pedestrian flow obstructions that take place during the festival regardless.” 39 F. App’x at 984. Saieg’s argument goes further than saying that the regulation is not a panacea for crowd control. Saieg claims that the defendants permit one activity that seriously harms the government’s supposed interest at the same time that they ban another activity that only mildly harms that same supposed interest.

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government’s interest. See City of Ladue, 512 U.S. at 51 (“[T]he notion that a regulation of speech may be impermissibly underinclusive is firmly grounded in basic First Amendment principles.”); Rubin v. Coors Brewing Co., 514 U.S. 476, 489 (1995) (holding that a policy violates the First Amendment because “exemptions and inconsistencies bring into question the purpose” of the policy, even though “the Government’s interest . . . remains a valid goal”); Florida Star v. B.J.F., 491 U.S. 524, 540 (1989) (holding that “the facial underinclusiveness” of the state’s restriction on speech “raises serious doubts about whether Florida is, in fact, serving . . . the significant interests [that it has] invoke[d] in support” of the policy). In this case, the nature and scale of the activities that the defendants permit on the sidewalks adjacent to Warren Avenue show that the government’s asserted interests are not substantial in the context of those sidewalks.
With regard to the outer perimeter, the roads and sidewalks are open for pedestrians in the same way as the sidewalks that are adjacent to Warren Avenue. Concerns about crowd control seem to be exclusively conjectural. However, Saieg focuses his argument about the outer perimeter on the question of narrow tailoring. We follow his lead and address the outer perimeter below.
3. Narrow Tailoring
The leafleting restriction within the outer perimeter is not narrowly tailored to further the government’s objectives. To be narrowly tailored, a regulation must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Ward, 491 U.S. at 799. Put differently, the regulation must not be “substantially broader than necessary.” Id. at 800. “[W]hen a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement even though it is not the least restrictive or least intrusive means of serving the [state’s] goal.” Hill, 530 U.S. at 726.
The parties disagree about whether the sidewalks adjacent to the Festival and the streets and sidewalks within the outer perimeter area are “part of” the Festival. Consequently, the parties also disagree about whether Saieg seeks to participate in the

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Festival or to leaflet near the Festival, a distinction that informs their arguments about narrow tailoring. This debate is a red herring. The narrow-tailoring requirement focuses on the nexus between the regulation and the government’s interest. Grace, 461 U.S. at 181. The government’s interests need not be coterminous with “the Festival” as a monolithic area, and the government may have different interests in different areas of the Festival or near the Festival. As a result, whether these locations are classified as part of “the Festival” does not determine whether the leafleting restriction is narrowly tailored to accomplish the government’s interests.
Saieg has not requested to leaflet on Warren Avenue. Moreover, Saieg has not disputed that the restriction on leafleting within the inner perimeter—the sidewalks adjacent to Warren Avenue—is narrowly tailored. Saieg, 720 F. Supp. 2d at 839 (“Plaintiff does not mount a ‘narrow tailoring’ challenge with respect to the enforcement of the handbilling ban in the inner perimeter.”). As explained above, we agree with Saieg that the inner-perimeter restriction on leafleting does not further a substantial government interest, making the question of narrow tailoring irrelevant.
The restriction on leafleting within the outer perimeter is substantially broader than necessary to further the government’s interests, assuming that those interests are substantial. In reaching the opposite conclusion, the district court and the defendants correctly analyze the issue from the perspective of permitting everyone to leaflet, not only Saieg. See Heffron, 452 U.S. at 653 (“Obviously, there would be a much larger threat to the State’s interest in crowd control if all other religious, nonreligious, and noncommercial organizations could likewise move freely about the fairgrounds distributing and selling literature and soliciting funds at will.”). The district court, however, used that perspective to magnify an unsubstantiated fear. “[M]ere speculation about danger” is not an adequate basis on which to justify a restriction of speech. Bay Area Peace Navy v. United States, 914 F.2d 1224, 1228 (9th Cir. 1990); see also Turner Broad. Sys., Inc., 512 U.S. at 664 (requiring that the government “demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way”). Although the government has an

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interest in crowd control, the defendants “must do more than simply posit the existence of the disease sought to be cured.” Turner Broad. Sys., Inc., 512 U.S. at 664 (internal quotation marks omitted); see also Klein v. City of San Clemente, 584 F.3d 1196, 1202 (9th Cir. 2009) (“[M]erely invoking interests is insufficient. The government must also show that the proposed communicative activity endangers those interests.” (internal alteration marks and quotation marks omitted)), cert. denied, 130 S. Ct. 1706 (2010). The district court neglected these principles by concluding that throngs of people “would all flock to the outer perimeter to promote their respective interests and messages,” thereby “extend[ing] the Festival grounds into an area that is meant to serve as a buffer zone between the Festival and the outside world.” Saieg, 720 F. Supp. 2d at 840. The weakness in the district court’s argument is that the primary justification for the outer perimeter is to curb vehicular traffic and provide parking, not to cabin pedestrian crowds. Despite the district court’s speculation, the record does not mention any existing problem of pedestrian traffic in the outer perimeter area. Saieg leaflets by foot. While his leafleting might attract pedestrian listeners who would congregate on the sidewalks, it is hard to imagine that leafleters, who would be competing with more interesting attractions on Warren Avenue, could draw crowds so large that the Festival would balloon outward. Attracting merely a few listeners on a sidewalk would not implicate a substantial governmental interest in crowd control.
Beydoun’s testimony mirrors the hyperbole of the district court: “if you allowed someone to distribute literature within [the] outer area, you might as well allow the other street vendors to set up tables and start selling things in that area, too. That is the buffer between going in and going out. You [have] got to maintain a security area.” R. 47-3 (Ex. C: Beydoun Dep. at 58). Beydoun’s worry is exaggerated. Although “[t]he justification for the [challenged rule] should not be measured by the disorder that would result from granting an exemption solely to” the challenging party, Heffron, 452 U.S. at 652, permitting everyone to leaflet in the outer perimeter area does not require the city to permit street vending or other attractions in the area defined by the outer perimeter. Instead, by invalidating the leafleting restriction, we hold only that the defendants must

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permit speech—including, but not limited to, archetypical First Amendment activity such as distributing leaflets, books, or DVDs.
The restriction on pedestrian leafleting is substantially broader than necessary to further the interest in vehicular traffic control and parking. In other words, the restriction is not narrowly tailored because there is “an insufficient nexus” between the government’s asserted interest and the leafleting restriction. Grace, 461 U.S. at 181.
4. Ample Alternative Channels of Communication
We do not decide whether the restriction on leafleting leaves Saieg with ample alternative methods of communicating to his target audience. Any time, place, and manner restriction must leave open ample alternative channels by which speakers can communicate their messages, although speakers are “not entitled to [their] best means of communication.” Phelps-Roper, 539 F.3d at 372. “An alternative is not ample if the speaker is not permitted to reach the intended audience.” Bay Area Peace Navy, 914 F.2d at 1229 (internal quotation marks omitted). The requirements for a time, place, and manner restriction are conjunctive. See, e.g., Watchtower Bible & Tract Soc’y of New York, Inc. v. Village of Stratton, 536 U.S. 150, 168–69 (2002) (invalidating an ordinance that served a substantial government interest because it was not narrowly tailored—without discussing whether ample alternative channels of communication existed). Thus, the leafleting restriction is unconstitutional even if it leaves open ample alternative channels of communication.
5. Summary
Even though the leafleting restriction is content neutral and might provide ample alternative means of communication, the policy is not a reasonable time, place, and manner restriction. Within the inner perimeter, the restriction does not serve a substantial governmental interest, as evidenced by the defendants’ willingness to permit sidewalk vendors and ordinary pedestrian traffic on the same sidewalks where they prohibited Saieg from leafleting. Within the outer perimeter area, the restriction is not

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narrowly tailored because the government’s interest in vehicular traffic control is attenuated from concern about pedestrian crowds that pedestrian leafleting might draw.5
Saieg has requested, in the event that this court rules in his favor, “that the decision be crafted to prevent Defendants from circumventing it by playing a game of shifting ‘perimeters.’” Reply Br. at 1 n.1. Our holding is not predicated on the boundaries of the Festival or a distinction between the inner and outer perimeters. Saieg and other members of the public may leaflet from any street or sidewalk that remains open for typical, non-Festival pedestrian traffic, even if the street or sidewalk is simultaneously used for Festival traffic. We note that, should the City’s conjectural harms come to pass, the City can move to modify the injunction. Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., 466 F.3d 391, 395 (6th Cir. 2006), cert. denied, 549 U.S. 1339 (2007).
In addition to declarative and injunctive relief, Saieg is entitled to nominal damages for the violation of his constitutional rights. See Carey v. Piphus, 435 U.S. 247, 266 (1978).
C. Freedom of Association
Saieg’s freedom-of-association claim lacks merit. The freedom to associate protects “choices to enter into and maintain certain intimate human relationships” as well as “associat[ion] for the purpose of engaging in those activities protected by the First Amendment.” Roberts v. United States Jaycees, 468 U.S. 609, 617–18 (1984). Unless they promote compelling state interests, government actions violate the freedom of association when, for example, they “seek to impose penalties or withhold benefits from individuals because of their membership in a disfavored group; . . . attempt to require disclosure of the fact of membership in a group seeking anonymity; . . . [or] try to interfere with the internal organization or affairs of the group.” Id. at 622–23 (internal

5Although Saieg has sought to leaflet on the sidewalks adjacent to Warren Avenue and Miller Road, he has repeatedly declined to request permission to leaflet on those streets themselves. Appellant Br. at 2. Because Saieg has not raised the issue, we have no occasion to decide whether Saieg may leaflet on those streets.

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citations omitted). Even though Saieg has been deprived of one outlet for his association’s expression, his freedom to associate has not been abridged in any way comparable to these examples. Saieg is free to associate even at the Festival. Only leafleting, not association, has been restricted.
D. Free Exercise of Religion
Saieg abandoned his free exercise claim before the district court. 720 F. Supp. 2d at 841. He has not contested the waiver on appeal. Therefore, his free exercise claim is not one that we must consider. Doe v. Bredesen, 507 F.3d 998, 1007 (6th Cir. 2007), cert. denied, 129 S. Ct. 287 (2008).
E. Equal Protection
The leafleting restriction does not violate the Equal Protection Clause. Saieg argues that the leafleting restriction distinguishes by content between religious leaflets and commercial sidewalk tables. He relies on Police Department of City of Chicago v. Mosley, 408 U.S. 92, 96 (1972), which held that “[s]elective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.” Unlike the restriction in Mosley, however, the restriction in this case does not “describe[] permissible [speech] in terms of its subject matter.” Id. at 95. Instead, sidewalk tables are permissible according to the location of the organization that operates them, not the subject matter of the message that the organization conveys. See supra Section II.B.1. Therefore, the restriction does not violate the Equal Protection Clause.
F. City’s Liability
The City may be held liable for the restriction of Saieg’s free speech rights that the leafleting restriction caused. A municipality is liable if a constitutional injury results from a policy or custom “made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694–95 (1978). In this case, the City approved the Festival “subject to . . . the rules and regulations of the Police Department.” R. 47-13 (Ex. M: Council Resolution).

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Although the AACC also wanted to prohibit leafleting, Chief Haddad described the leafleting policy as his department’s policy, subject only to the approval of the city council and the mayor. R. 47-11 (Ex. K: Haddad Dep. at 95–96) (stating that “the police department will supply the standards that must be met,” such as the “prohibition of individuals handing out . . . materials on the public sidewalk”). The police department’s leafleting policy, made with the authority that the City Council delegated to it, fairly represents official City policy. Therefore, Saieg may hold the City liable for violating his First Amendment right to free speech.
However, the City is not liable for claims of selective enforcement. Because the argument portion of Saieg’s appellate brief does not identify or provide citations for any instances of selective enforcement, Saieg has waived the claim. Even considering the merits of Saieg’s claim, the district court properly found that the incidents of supposedly selective enforcement were not “so widespread as to have the force of law,” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403–04 (1997), and are not actions ascribable to Chief Haddad as opposed to individual officers. 720 F. Supp. 2d at 844.
III. CONCLUSION
The leafleting restriction is not a reasonable time, place, and manner restriction. In the inner perimeter, the restriction does not serve a substantial governmental interest. In the outer perimeter, the restriction is not narrowly tailored. The defendants therefore violated Saieg’s First Amendment right to freedom of speech. Absent an injunction, Saieg will continue to suffer irreparable injury for which there is no adequate remedy at law. As a result, on the free-speech claim, we REVERSE both the district court’s grant of summary judgment to the defendants and its denial of summary judgment to the plaintiffs. We AFFIRM the district court’s judgment for the defendants on all other claims. We REMAND to the district court for such further proceedings as are consistent with this opinion that may be warranted, including the entry of such injunctive relief in favor of Saieg as may be appropriate in advance of the Festival scheduled for June 17-19, 2011.

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_________________
DISSENT _________________
MARTHA CRAIG DAUGHTREY, Circuit Judge, dissenting. In contrast to the majority here, I am persuaded that the restrictions on leafleting imposed during the Arab International Festival did not violate the plaintiff’s First Amendment right to free speech. Those restrictions constituted a reasonable time, place, and manner limitation in service of a substantial government interest, and they were sufficiently narrowly tailored to further that substantial interest, as the district court held in a thoughtful and welldocumented opinion granting summary judgment to the City of Dearborn and its Chief of Police. While I would normally set out an analysis to support this conclusion, there is no reason to delay issuance of the majority’s order in this expedited appeal, given that the district court has provided a masterful explanation for judgment in the defendants’ favor. I therefore dissent for reasons set out in the district court’s opinion and order filed on June 7, 2010.