1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0086A (6th C ir.) File Name: 04a00 86a.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

U NITED F OOD & C OMM ERCIAL W ORKERS L OCAL 1099; J UDY B IS HOP ; D OUG B URGSTALLER ; J EFF C RIDER ; R

AY E VANS , III; B ONNIE F RANCE ; C HAD H ELMLI

NGER ; L EAH H ELMLI

NGER ; T ONYA M C C OY ; B RYON O’N EAL ; J EFF O STI NG ; K EI TH R OBIN SON ; J ESSICA S AGRAVES , Plaintiffs- Appellant s,

v.

C ITY OF S IDNEY ; M ICHAEL P UCKE TT ; S TEVEN B. W EARLY ; S IDNEY C ITY S CHOO LS ; S TEVE M ILL ER ; K EVIN O’L EARY , Defenda nts-Appe llees, W AL -M ART S TORES , I NC ., et al.; J OHN W ATERS ; G REG F RANKS , Defenda nts. X - - - -

> , - - - - - - - - - - - - - - - - - - - - - - - N No. 02-3415 2 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. No. 02-3415

Appeal from the United States District Court for the Southern District of Ohio at Day ton. No. 00-00296—Walter H Rice, District Judge.

Argued: July 31, 2003
Decided and Filed: March 24, 2004

Befor e: KENNEDY, GI

LMAN , and GI

BBONS, Circuit Judges.

_________________ COUNSEL

ARGUED: Tim ot hy M. Bur ke, MAN LE Y B URKE, Cincinnat i, O hi o, fo r A pp el la nt s. Bo yd W . G en tr y, SURDYK, DOWD & TURNER, Day ton, Ohi o, B ria n L. Wildermuth, LAW

OFFICES OFNICH OLAS E. S UBA SH I, Dayton, Ohio, for Appellees. ON BR IEF: Timothy

M. Burke, Rhonda S. F rey , MANL EY BURKE , Cincinna

ti, Ohio, for Appellants. Edward J. Do wd, SU RDYK , DOWD & TURNER, B rian L . Wildermut h, Nichol as E. Suba shi, LAW OFFI CES OF NICHOL AS E . S UBASHI, Day

ton, Ohio, Mi ch ae l F ay B oller, ASSISTANT SHEL BY COUNTY PROSECUTOR, Sidney, Ohio, for Appellees.

_____________________ AMENDED O PINION

_____________________ JU LIA SMITH

GIB BONS, Cir

cuit J u dge. Pla

intiffsappel lants, United Food and Commercial Workers Local 1099 (“Local 1099”) and twelve of its members, brought suit under 42 U.S.C. §§ 1983 and 1985 against defendants-appel le esNo. 02-3415 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. 3

after they were

prohibited from solici tin g signatures for a referendum

petition outside six polling places on election day inS id ne y, Ohio. The se polling places i ncluded f our public schools, the local Y.M.C.A., and a church. At each location, memb ers of Loca

l 1099 atte

mpted to so licit sig

natures in

areas on school or private propert y th at wer e outside of the

areas that had b een desi gnated as “cam paign- free zones” pursuant to an Ohio

statute. N everth eles s, appellants were asked to leave the premises, and in many cases they

were threatenedwith arrest if they failed to comply. At one location, two i ndividual appella nts w ere thr

eatene d with arr

est
even af ter they had re located to a spot on a public sidewalk, outside of the campaign-free zone.
Defendants-appellees Sidney City Schools, Superintendent Steve Miller, a

nd Shelby

County Sh eriff Kevin O’Le ary moved to dismiss. T

he City of Sid ney , Ci ty Manag er Michael Puckett, and Chi ef of Police Steven Wearly moved for judgment on

the pleadings. The district court concluded that the appellants had not

suffered a deprivation

of their F irst Amendment

rights whe n they

were de nied per mission to solicit signatures at each of the six polling places and g ranted the appellees’ motions. We agree with the district court that app ellants’ First Amendment rights were not violated when they were prohibited from soliciting signatures in those areas that were (a) within t

he camp aign-free zone, reg ardless of whether the campaign-free zone enc ompassed a traditional public forum such as a sidewalk, or (b) on school or private pr op er ty, but outside of the campaign-free zone. Howe ver, plaintiffs have alleged facts supporting a claim that they we

re deprived o f their First Amendment rights when they were threatened

with arrest after they

moved to the publ ic sidewa

lk out side of the campaign-free zone a t the Y.M.C.A., and

t o that extent, their § 1983 claim should be permitted to m o ve forward. We therefore affirm in part, revers e in part, and remand to the district court

for further

proceedings consistent with this opinion. 4 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. No. 02-3415

I.

A. Factua

l Background

OnFebruary

28 , 20 00, the City Council of Sidney , Ohio, enacted Ordinance No. A-2203, which“effected the rezoning of Lo ts 5918 and 6180 from an I-2 He avy Industrial District to a B-2 Community Business Di stric t.” The process of rezoning the prope

rty was unde

rta ken for the purpose of allowing expansion of a Wal-Mart store at that location. On March 2, 2000, appell ants submitted a certified copy of Or dinan ce No. A-2203 and a pre-circulation ref erendum petition to the City

of Sidney . Pursuan

t to the city’s cha

rter, referendum

petitions must be filed within two weeks following the passage of the o rdinance called into question. Giv enthe short amount of time in which they had to c ollec t signatures after O rdinanc e No. A-2 003 was e nac ted on Febr uary 28, appe llants ass ert that i t was “pa

rticular ly importantto gather

signatures on March 7, 2000,” the day of the primary ele ction in Ohio. On that date, appella nts gathered to solicit s ignatu

res f or the petition from voters outside six polling p laces in Sidney. These loca

tions included four public elementary

schools (Parkw o od, Emerson, Whittier, and L owell), t he Si dne y-Shelby

Y.M.C.A. (“Y.M.C.A.”), and Trini

t y Church of the Brethren (“Tr inity”). Appellan ts Judy B ishop, Ray

Evans, a nd Jessic a Sag raves
were at Parkw ood ; Bry

on O’Nea

l was at Emerson; Ke ith Robinson and Tonya Mc Coy were a t Whittier; Chad and Leah Helmlinger

were at Lowell; Jeff Crider and Jeff Osting wer e at the Y. M.C.A .; and Doug Burgstaller a nd Bonnie France were at Trinity

. A set of United States flags was placed outside the entrance of each polling place pursuant to Ohio Rev. Code §§ 3501.30 and 3501.35, which together provide for the creation of

a 100- foo tcampaig

n-free zone arou

nd the ent

rances to pollin g places in Ohio. Section 3501.30 instructs each county

board of elections to place small United States flags 100 feet fromNo. 02-3415 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. 5

the po ll in g p la ce on th e w al kw ays leadingto the ent rance i n order “to mark the distance within which persons other than election officia ls, witnes ses, challen

gers, p olice of

ficers, and electors . . . shall notloiter, congregate, or engage in any kind of election campaigning.” Section 3501.35 further

states that inthe area between the

polling entrance and thetwo flags, no person “shall loiter or congrega te,” “ hinder

or delay a

n elector,” or “solicit or

in any manner

attempt to influence any elector in casting his vote.”
Appellan ts have alleged that at ea

ch of the pol ling pla

ces, they were positioned outside or bey ond the area

marked by the flags. They furthe

r allege that they

solicited signatures at each location in “a peaceful

and non-disruptive manner,” and that they “neither

interfered with school operations nor hindered public access [to any of

the polling places at iss

ue.]”

The locations at which appellants were attempting to solicit signatures and

the manner

in which they

were de nied acc ess varied at each polling place. At Parkwood, appellants Bishop, Evans, and Sag

raves posi tioned themselves on school pr op er ty, but beyond the flag that had been placed outside the entrance to the polling place. They solicited signatu res at thi s locationfor a short

period of time, until the school principal informed them that they would have to re locate to a position beyond a second flag that

had been placed “on the side of the school parking lot opposite the polling place.” According to appella nts, this flag was “fa

r in exces s of one hu

ndred fe et” fromthe entrance to the polling place. Shortly after they had relocated to this new position, a deputy fro m the S helby County Sheriff’s Office ordered them to leave the pre mise s and threatened

them with arrest for trespassing if they failed to c omply. Appellants then relocated to a public sidewalk, butbecause

most of the

voters we

re park ing in th e school’s parkinglo t, th ey allege t hat they were unable to so licit signatures effectively

from that location. 6 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. No. 02-3415

At Emerson, O’Ne al and Tambra Young had been soliciting signatures for

approxima

tely ninety minutes before the scho ol principal ordered them to leave the property and threatened

to ca ll th e p ol ic e i f t he y di d n ot co mp ly. Appellan ts allege that a t some time during the morning of March 7 , Ralph Bauer, a member of the Sidney Board of Election s, called the Sidney Police Department and

requested that they send cru isers to E merson, L

owell , the Y.M.C.A., and Tr in it y. Baue r purportedly infor med police that the appella nts were soliciting signatures at each of these locations inareas that were within 100 feet of the polling pla ces. An officer from the S idney

Police De partmen t arriv ed at Em erson and told O’Neal and Youn g that his supervisor was on the way and tha

t he would decide whether they could remain on th e prop erty . Shortly

thereafter, Sid

ney Police Captain Kimpel arrive d and told t he appe llants tha

t if they refuse d to leave school property they would be trespa ssin g. When O’Neal as ked Kimpel how they could be tre spassing on public propert

y, K im pel replied, “I’m not g oing to argue about this. This is y our last w arning .” According to appella nts, “ [r]ather than risk receiving a citation or being placed under arrest,” they

complied w ith Ki mpel’s demand

an d l ef t t he pr op er ty.

At Whittier, appellants Robinson and McCoy positioned themselves outsi d e the side entrance to the polling place. Alth ough flags had be en placed 100 feet from the front entrance to the polling site, there were no flags outside the side entrance. Robinson and McCoy collected signatures for two hours, until they were approached and ordered to leave by the assistant superintendent and a polling judge. The assistant superintendent

told them that t

hey would hav e to leave school propert y because of “safety

issues” and that she had alre a dy called the p olice. At this point, Robinson and McCoy left scho ol property and moved t o a public s idewalk. Be caus e
m ost of the vot

ers wer e parkin g in the s chool’s p arking

lot, appella nts allege that the y were unable to solicit signatures effectively

from that location.No. 02-3415 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. 7

Wh en t he Helmlingers arrived at Lowell, they asked polling officia ls to identify the locations where they would be permitted to gather signatures. The officials replied that they did not know an d cal led the Board of Elections. According to appellants, one of the officials grabbe d the petition out of L eah Helmlinger’s hands and said, “L et me take a look a t that. So you’re against the Wal-Mart?” After one off ic ial told them that t

hey could soli cit signatures a t any point beyond the flag s, the Helmlingers positioned themselves “on the publ ic sid ewalk , beyond t he two flags. ” Appel lants allege that shortly after B auer’s p hone call to the Sidney Police Department, an officer arrived at Lowell and told the Helmlingers that

school of ficials had calle d to complain. The officer told the Helmlingers that the flags had not been placed far enough from the entrance to the poll ing place a t Lowe ll and that they would have

to stay more

than 100 feet from that entrance. “Rather than risk receiving a citation or being [placed under ar rest],” the Helm li ngers complied with the of fi ce r’ s r eq ue st an d l ef

t t he pr op er ty.

Crider and Osting collected signatures at the Y.M.C.A. for approxima

tely one hour before an off

icer with the Sidney Police De partmen t arrive d, alleg edly

after a phone call from Bauer, a nd used a measuring wheel to mark a line 100 fe et f romthe polling place. The officer informe d Crider an d Osting t hat they could solicit signa tures anywhe

re beyond tha

t line. After Cr

ider and Osting h ad been

soliciting si gn atures for about an hour from this new location
, a deputy with the Shelby County Sheriff’s Depa

rtment arrived, and, at the request of Y.M.C.A. memb ership director Michael L ieber, ordered th e appe llants to leave Y.M.C.A. property . The off ice r th re at en ed th em wi th ar re st if th ey f ai le d t o c om pl y. Crider and Osting again m

oved to a d

iffere nt location, this time to a public s i dewalk that was more than 100 feet from the polling place. The sheriff’s deputy followed and informed themthat if they

attempte d to solicit

signatu res by calling to anyone inthe Y.M.C. A.’s par

king lot, he would

cite them for disorder ly conduct. Becau se most

of the voters were parking 8 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. No. 02-3415

inthe Y.M.C. A.’s l ot, an d the deputy had thre atened them with arrest if they

either entered

the parkinglot or attempted to contact voters in the parki ng lot , appe llant s alle ge that they

were unable to solicit signatures effectivel y from this location.
At Trinity, Burg staller

and France collected signa

tures for

one hour before an officer with the Sidney Police Department arrived, again allegedly

shortly after a

phone call from Bauer. While the officer was speaking with Burg staller and France,

a polling judge came out

of the church

and told them that they would be permitted to co llect si gnatures as long as they remained beyond a s et of f

lags that had

been placed 100 feet fromthe polling entrance. The officer disagreed, and

told the appella nts that it was irrelevant whether they were outside of the 100-foot

boundar y be cause the churc

h was priv ate pr op er ty, and the church wanted them to leave. Ra ther than “risk arrest for trespassing,” B urgstaller and France complied wi th th e o ff

ic er ’s de ma nd an d l ef

t c hu rc h p ro pe rt y. Appellan ts allege that in response to their petiti on effor ts, the Ma yo r of S idney instructed Puckett to draft a counterpetition to facilitate the removal of signatures from their referendum petition. On March 23, 2000, Puckett presented the Board of Elect ions with th e counte

r-petiti on and a li st

of nineteen individua

ls who pur

portedly had aske d the city

to have thei r names removed from the refere ndum petition. Appellan ts allege d that the

counter -petition failed to comply with Ohio law, and

the Board of

Elections referred the issue to the Ohio Secr

etary of State. On April

17, 2000, the Board of Election s informe d the City of Sidney

that t h e counterpetition was invalid, an d that ther e were enough valid signatures on the referendum petition to place the referendum on the Nov ember 20 00 ballot.

The re ferend

um never took plac e. On Apr

il 3, 2000, t

h e Sidney City Council held a speci al m eeting and adopted Ordinance No. A-2207
, which repealed Ordinance No. A-No. 02-3415 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. 9

1 Ap pellan ts volunt aril y dis missed t heir c laims agains t Mill er , Puc kett, W early, an d O ’Leary in their resp ective in divid ual cap acities.

2 Ap pel lants have v olunta rily dismisse d their c laims ag ainst W alM art, Wa ters, and Frank s. 2203, render ing appel lants’ referendum petition on that ordinance moot. Shortly after Ordinanc e No. A-2207 was

e nacted, the City Council adopted Ordinance No. A-220 8
, whicheffected the same rezoning of lots 59 18 an d 6180 as Ordinance No. A-2203. Both Ord inance N os. A-2207 and A2208 contained emergency clauses that caused

them to g o into ef fe ct im me di at el y.

B. Procedural History

On June 13, 2000, appellants filed a complaint in th e United States District Court for the SouthernDistrict o f Ohio assertingclaims under 42 U.S.C. §§ 1983 and 1985. In the ir § 1983 clai

m, appell ants alle ged tha

t the appe ll ees deprived themof their

federa l constitut ional rig hts under the Firs tand Fourtee nth Amendments by

preventing them

from soliciting signatures outside the areas de marcat ed by flags a t public polling pla c es on March 7, 2000. 1 In the ir § 1985 c laim, appella nts alleged that

the City of

Sidney , Puckett, Wal-Mart
, Wal-Mart district manager John Waters, and Sidne y W alMart store manager Greg

Franks conspired “to prevent [them] fromengag

ing in the ir statutorily-protected rig ht to obtain signatures for th e refe rendum petition, to introduce an improper and mislea

ding ‘c ounter-

petiti on ’ in an at

tempt to influence the Board of Elec t ions’ dec ision-mak ing proc ess, and to circu mvent [th eir] right to a referendum through a pattern of unlawful, corrupt, and un e thical legislative conduct.” 2

The Sidney City

Schoo ls and Miller

moved to di smiss. O’Leary filed a se parate motion to dismiss the claims against 10 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. No. 02-3415

him in his offi cial ca

pacity, and the C ity o f Si dne y, Pu ckett, and Wearly filed a motion for jud gment on the plea

dings. The district court granted these motions onMarch 11, 2002. The court concluded that the presence of polling sites on

the properties at issue did n ot tr ansform the areas surrounding those polling sites into traditional public forums. The court also found that Ohio Rev. Code § 3 5 01.29, which provides that pu b lic and private buildings may be utilized “for the purpose of holding

election s,” cre ated a de signate d publ ic f orum“for the limited purpose of voting, [but] not for othe r expressive activities which may ac company ele ctions.” In its decisiongranting the motions to dismiss, the c ourt af forded appella nts an opportunity to file an ame nded comp laint in order to set for th alleg ati ons to s upport their contention that the Sidney

City Schools had, by policy

or practice, designated school propert

y as a public forum for the purpose of campaigning

and other expressive activities on day s when the schools were being used

as polling places. The appella nts did notavail the

mse lves of this opportunity. Since the court concluded

that appellants ha d not alleg ed suffi cient fa cts to support a clai m that they

were de

prived of their Fi rst Amendment

rights, the court also found that they had failed to plead that the City of

Sidney and Pucke

tt had con spired to deprive themof

those rights, and dismissed their claims under § 1985 as well. OnApril 9, 20 02, appe llants file d this timely appeal.

II.

This court reviews a district court’s decision to di smiss a complaint pur suan t to Federal Rule of Civil Procedure 12(b)(6) de novo

. Bloch v. Ribar
, 156 F.3d 673, 677 (6th Cir. 1998). Rule 12(b )(6) p rovides that a complaint may be dismissedfor fail

ure to sta te a cla imupon whichrelief may

be granted. Di sm issal purs uant to a Ru

le 12(b) (6) motion

is proper “only if it is clear that no relief could be granted under any set of fa

cts that c ould be pr

oved con si sten t with the allegations.” Id. (citi ng Hishon v. King & Spalding , 467 U.S.No. 02-3415 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. 11

69, 73 (1984)). Although we must acce pt as true all of the factual allega

tions i n the complaint, we need not accept as true legal c onclusion s or unwa rrante d factua

l infere nces. Morgan v. Church’s Fried Chicken , 829 F.2d 10, 1 2 (6th Cir. 1987) (citations omitted).

The standar

d of revi ew applic able to a motion for judgment

onthe plea

dings u nder Rul e 12(c) is the same de novo standard that is app licable

to a motion to dismiss underRule 12(b)(6). Ziegler v. IBP Hog Mkt., Inc. , 249 F.3d 509, 511-12 (6th Cir. 2001). In reviewing

suchmotions, we must construe the complaint in the li gh t most favorable to the plaintiff,

acc ept all of the complaint’s factual allegations as true , an d determine whether the plaintiff undoubtedly can prove

no set of facts in support of hi s claims t hat would

entitle hi

m to relief. Id.

A. Appellants ’ § 1983 Cl aim s

Inorder to

state a c ause of action under § 1983, app ellants must allege (1) that they

were deprived of a right sec ured by the Constitution or the laws of the United States, and (2) that the deprivation was caused by a person acting under color of state law. Moore v. City of Pa duc ah , 890 F.2d 831, 833-34 (6th Cir. 1989) . To eval

uate app ellants’ § 1983 cla ims in this case, we must

consider whether their First Ame

ndment rig

hts

were vio l ated whe

n they were no t permitte d to solicit sig nat ures for their referendum petition in the areas surrounding the six polling places at issue.
Assuming that the solici ta tion of signatures for a refe rendum

petition is a protected form of speech under the First Amendmen

t, the mere fac t that a certain category of speech is worthy

of const itutio nal protection does not mean that it is “equa

lly p ermissibl e in all pla

ces and a t all time s.” Cornelius v. NAACP

Legal Def. & Educ . Fund, Inc. , 473 U.S. 788, 800 (1985). The govern ment is not required to grant

access to all who wish to exercise their right to free speech on 12 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. No. 02-3415

every typ e of go vernmen

t proper ty “ without r egar d to the nature of t he property

or to the disruption that might be

ca used by the speake

r’s activities.” Id. at 799-800. Rather, the existence of a right of access to g overnment propert y and the e xtent to which such access may be limited by the government

depend on

the character of

the property a

t issue. Perr y Ed uc. Ass’n v. Perry Local Educators’ Ass’n , 460 U.S. 37, 44 (1983).

The Supreme C ourt has ado pted a forum anal ysi s “as a

means of deter

mining when the g overnme nt’s inter est in limiting the use of

its prope rty

to its inten

ded purp ose outweighs the interest of those wishing to use the property for other purposes.” Cornelius , 473 U.S. at 800. The Court has identified three types of

forums: the traditi onal publi c forum, the designa

ted public forum, and the nonpublic forum. Id. at 802. Traditional public forums are th ose places “which by long tradition o r by

gover nment fia t have be en devote d to

as se mbly and debate.” Perry , 460 U.S. at 45. Government may also create a public forum by its designation of “a

place

or channel of communication for use by the public at large for assembly and speech, for u se by

certain speakers, or for the discussion of certain subjects.” Cornelius , 473 U.S. at 802. Intraditional and designated public forums, c onte nt-based restrictions on speech are prohibited unless necessary to serve compelling st ate interests and narrowly tailored to achieve those interests. Id. By contr ast, restrictions on s peech in nonpublic forums are permissible so long as they are viewp oin tneutral

and rea sonable i

n light of

the purpo se served by the

forum. Id. at 49.

To determine the extent to which the gover nment may

limit

access to its property, then, we must fi rst identify the rele

vant foru m to which the appellants sought access, and nex t consider whether the rele vant forum is public or nonpublic, because the gov ernment ’s ability to place restric tions o n speech varies w ith the type of for

um involved. Cornelius
, 473 U.S. at 797. In this case, appellants wer e solicitingNo. 02-3415 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. 13

signatures for their referendum petition at various pos i tions around polling p laces lo cated on both p ublic and

private pr op er ty, but our inquiry

into the relevant forum does not end merely by identifying these

two broad ca

tegori es: “Rather, in defining the relevant forum we ha ve focus ed on the a ccess sought by the speaker. When speakers seek g eneral access to public property, the f

orum encompasses that property .” Id. When speakers seek more limited ac cess, however, w e must take “a more tailored approach to asce rtaining the perimeters

o f [th e relevant] forum within the confines” of the government

property a

t issue. Id. Appellants here were not seekinggener

al acce ss to th e sch ool and private properties involved, butwere ins tead see king mor e limited a

ccess to the

areas surround

ing eac h of the six polling pl aces. T hese locations can be g

rouped in to three categ ories: (1 ) the publ ic sidewalk within 100 feet of the pollingplace, (2) the parking lots an d w al kw ays on school or private property lea

ding to the polling place, a

nd (3) the

public sid

ewalk be yond 100 feet fromthe polling place. Having identified these three releva nt forums, we must next consider whether each forumis public

or nonpublic, and whether

the government’s justification for prohibiting appellants from soliciting signatures in each area met the requisite constitutional standard.

1. The P ub lic Sidewalk Wi thin 100 F eet of a P olling Place
Appellan ts allege that at Lowell, the He lmli ngers t ried to sol ic it signatures from a position “on the public sidewalk.” They argue that appe llees’ c onduct pr ohibiti ng t hem from soliciting signatures at this location constituted an impermiss ible restriction on their spe ech i n a traditional public forum. Traditional public forums are th ose places

w hich“by long

tradition or by g overnment fiat have been devoted to assembly and deba

te.” Perry , 460 at 45 . While it is tr ue th at pu bl ic si de wa lk s a re ge ne ra ll y co nsidered traditional public forums, see Frisby v. Schult z , 487 U.S. 474, 480-81 (1988), speakers may nevertheless be excluded from 14 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. No. 02-3415

a traditional public

forum on t

he basis o f the con

tent of the ir speech as long as the exclusion is necessary to serve a compelling state interest and narrowly tailored to achieve that interest. Perry , 460 U.S. at 45.
Appellan ts’ com pl aint in this case makes clear that the Helmlingers were deterred from soliciting sig natures on the public sidewalk in front of Lowe ll becau se the sid

ewalk was within the 100-foot

campaig n-free zone esta blished by

Ohio Rev. Code §§ 3501.30 and 3 501.35. The Supreme Court upheld the constitutionality of a similar “campa ign-fre e zo ne” in Burson v. Freeman , 504 U.S. 191, 196-9 7, & n.2 (1992),

even though the statute in question barred speech in areas that included “quintes sential pu

blic foru ms,” such as the str

eets and sidewalks adjacent to polling places. The Court concluded

that t he “c ampa

ign- free zo ne” w as nece ssary

in

o rder to serve the state’s compelling interest in protecting voters from confusion and undue influence, and that the statute was narrowly

drawn to achieve that interest. Id. at 199 (noting that the Court has upheld “generally applicabl e and

eve nh anded

restrictions that protect the integrity and reliabil ity of the electoral process itself”). I n light of a long history of problems with voter intimidation and election fraud inthis count

ry , the Cour

t held tha t Tenness e e could decide that the “last 15 seconds before its citizens enter the polling p lace should be their own, as free from interfere nce as possible.” Id. at 210. Th e Court did not limit its opinion only to those cases where voter confusion and undue influence had already been shown: “A long history , a substantial

consensu s , and simple

common se

nse show t

hat some restricted zone around polling places is necessary to protect [the fundamental right to vote],” even w hen that right conflicts with the exercise of free speech. Id. at 211.
Thus, a state ma

y r equire p ersons so liciting

signatu res to stand 10 0 f eet from the entrances to polling places without running afoul of the Constitution. Id. at 2 11. The Helmlingers therefore were not depri ve d of their

FirstNo. 02-3415 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. 15

Amendment

rights when they

were ordered to move from the public sidewalk to a position beyond 100feet from the polling place. In keeping with Bu rson , O hio may prevent pe rsons fromsoliciting signatures within 100 feet of polling pl aces,
even i n areas that include traditional public forums such as sidewalks.

2. The Parking Lots and Walkwa ys Leading t o the Polling Place

At Parkwood, Emerson, Whittier, Trinity, and the Y.M.C.A
., appe llants set up to gather signatures at various locations onschool and private property that were outside the campaign-free zone established by §§ 3501.30 and 3501.35. Appellan ts argue that the presence of the polli ng places affected the characte

r of the school an

d private property that surrounded

them. They contend that Oh io created a designated

publi c forum by providing for the use of school and private b uildin gs “for

the purpo se of hold

ing ele ctions” inOhio Rev. C ode § 3501 .29. The d istrict c ourt co ncluded that by enacting § 3501.29, the Ohio legislature indicated an intentto open up a po rtion of p ublic school and pr

ivate propert y to registered voters for th e lim ited p urpos e of vo ting, butnot for other expressive activities which may accompany election s. This “limi

ted designated public forum” included the parking lot, the wal kways and ha llways leading

to the polls, and the area containing the voting boo ths themse lves; all other ar

eas on sc

hool a nd private property

remained nonpublic forums.

Inreaching this conclusion, the district court relied h eavily

onthe Eigh

th Circuit’ s decision in Embry v. Lewis
, 215 F.3d 884 (8th Cir. 2000). In Embry , the plaintiffs attem p ted to gather signatures for a referendum petition outside a school building that had been designated as a po llin g place. Id. at 886. They

set up a ta

ble “on the gras s of th e school’ s west property,”

near, but not upon the public sidewalk. Id. One of the plaintiffs refused to leave the property w hen asked by the 16 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. No. 02-3415

school’s principal, and she was arrested. Id. at 886-87. In a subsequent

actionbrought under § 1983, the plaintiffs argued that Missouri ha

d desi gnated the schoo l proper ty, and in particul ar the limited area in which they were located, “as a limitedpublic forum for the purpose of vo ting and electioneering

activities on that part icular d ay.” Id. at 887. The Eig hth Circui

t held tha t [o]nly a portion of the school pr operty was a designated public forum . . . for the limited purpose o f voting .

. . . S pec if ic al ly, this area included the parking lot, the walkway leading to the west entrance, the hallway inside the school leading to the voting booths, and the a rea containing the voting

booths. Al l o ther a reas of school propert y, however , remained a nonp ublic for um.
Id. at 888. The plaintiffs in Embry were no t located

on those portions o f s chool property tha t had been appropriated for election purp oses; they

were on the gra ssy area loca ted n ext to the sidewalk. Id. at 888-89. The cour t conclud ed that th is

area remained a nonpublic forum on el ec ti on da y, and that the decision to exclude the plaintiffs from thisportion of school propert y was a re asonab le and viewpoint neutral restriction on speech in a nonpublic forum. Id. at 889.
Appellan ts note that, unlike the plaintiffs in Embry
, th ey attempted to solicit signatures from the parking l ots and

wa lk wa ys leadingto the polling places – precisely those a reas that the Eighth Circuit concluded had be en de signated as public forums for the limited purpose of voti ng on election da y. They

argue that if these areas were in fact designated as public forums, the state c ould not open them up for the limitedpurpose of voting and at the same time restrict similar typesof expres si ve activities that were consistent with the principal function of the forum. Thus, we mus t decide whether the park ing lot a nd walkwa

ys l eading

to pollin g places are “de signate d publicforums for the limite d purpose of voting,” and whether the action of appe llees inrestrictingNo. 02-3415 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. 17

the appella

nts’ abili ty to solicit signatures in these areas was permissible.

As we have

alread y no ted, the governme

nt crea tes a designated

public forum where it opens up its property for use by the public as a place for expressive activity

. Perry , 460 U.S. at 45. The government does not create a public f orumby inactionor by p ermi tting limited discourse, but only by intentiona

lly opening up a nontraditional for um for publi c discourse. Cornelius , 473 U.S. at 802. I n determining whether the government has intended to open up

its prope rty for use as a d

esigna ted public forum, the Supreme Court has said that we mu st

look to the policy and prac tice of the go vernmen

t, as well as to the nature of the property and i t s compatibility with expressive activity

. Id.

There is no evidence in the record in this case that indicates that Ohio intended to open up nontraditional forums such as
s choo ls and priva

tely-owned b

uildings for publi c discourse merely by utilizing portions of them as polling place s on election day. Appellants we

re giventhe opportunity by the districtcourt to am end their complain

t in order to set for th allegations supporting their contention that the governm en t had, by p olicy

or practice, de signate d the prop erty surrounding the polling places as a public forum for the purposes of campaigning

or other expressive activities. They did not avail themselve s of this op

portunity . Appella

nts also argue that § 3501.30's designation of a c ampaign-free zone outside every polling

place is evidence of the compatibility of expressive activity with polling place s because it “implies an expectationthat people will gather at polling places to express themselves.” The distr

ict cour t reject ed this ar gument, and so do w e. Ju st becau se cert ain ty pes of spe ech are

expressly prohibited

within a certain area d oes not mean that they a re therefore permissible outside that area. See Embry , 215 F.3d at 888-89 (“

Althoug h Missouri l aw make s it an off ense to electioneer

within 25 feet of a polling place’s outer door, it 18 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. No. 02-3415

does not automat i cally follow that elec tioneering is allowed anywher e outside the 25 foot line.”).

Alth ough the issue was not square l y be fore the court in Embry because the plaintiffs in that case were on the gra ssy
area located next to the si dewalk, the Eigh th Circuit described the parking lot and walkways leading to the polling places as “designated

public forums for the limited purpose of voting.” We respectfully disag

ree. The forum at issue here is neither

a traditional public

forum nor

a government-designated one

. By opening up portions of school and private propert y f or use
as polling pl ac es on election day , Ohio has not opened up a nontraditional forumfor publi c discourse. I n fact, there is no evidence in the recor d of disco urse of any sort. There is no evi dence of expressive activity occ urring any

where on th e properties involved, other than “each

voter’s communication

o f his own elective choice[,] and this has long been carried out pr ivately – by

secret ballot in a restricted space.” S e e Marlin v. District of

ColumbiaBd. of Elections & Ethics , 236 F.3d 716, 719 (D. C . Cir. 2001) (holding that the interiors of polling places are nonpublic forums).

Whe nthe district court, following the decision in Emb ry , described the park

ing lotsand w alkways lea ding to the polling places as “limited designa ted public forums,” it may have had in mind

the “limite d p ublic for

um” described in Good News Club v. Milfor d , 53 3 U. S. 98, 106 (20 01) . In Good News, the Supreme Court employed the term “limited p ublic for

um” to refer to a forum that the state had rese rved “for certain groups or for the discussion of certain topics.” Id. Insuch forums, government restrictions on speech must be

reasona ble and viewpoint neutral, the same standard s that apply to restrictions on speech

in nonpubli c forums

. Id. Our circuit and other

s have no ted the c onfusio n s urrounding the

use of the terms “designated public forum” and “ limited public forum.” See, e.g.
, Goulart v. Meadows , 345 F.3d 239, 2 49 (4th Cir. 2 003); DeBoer v . Vill. of Oak Park

, 267 F.3 d 558, 567 (7th Cir. 2001) (“[T]he use of this terminology . . .No. 02-3415 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. 19

3 The Fou rth Circ uit treats the terms “d esigna ted p ublic fo ru m” and “li mited pu blic forum ,” as t wo na mes f

or t he s ame t

ype of f orum

. Go ulart
, 345 F. 3d at

250. Some circuits co nside r the limited pub lic forum to be a su bca tegor y of the d esigna ted p ublic fo rum. Dono van v. Punxsutawney Area Sch . Dist. , 336 F. 3d 211 , 225 (3d Cir. 20 03) ; Hopper

v. City of

Pasco , 241 F. 3d 10 67, 1075- 76 (9th Cir. 2001). Stil l others consider the l imit ed public f

orum to be a subse t of the nonpublic forum classificatio n. Summum v. Cit y of Ogden , 297 F. 3d 995, 100 2 n.4 (10 th Cir. 200 2). We need not resolve this issue here because we conc lude that the parking lots and si dewalks leading to th e polli ng places are no npub lic forums, but we note tha t th e resul t in thi s case woul d be the sa me if we had co ncluded that these areas were instead limited public forum s. has introduc ed some a naly tical amb ig uit y beca

use the [Supreme] Courtprevious ly had employed the te

rm “limited public forum” a s a subca tegory of the de signate d public forum, subject

to the strict scrutiny g overning restrictions on designated

public forums”); Putnam Pit v. City of Cookeville
, 221 F.3d 834, 842 n.5 (6th Cir. 2000). 3 We do not needto delve deeply into the nuanc e s of designated versus limited public forums in this case, however, because these types of forums are characterized by discourse, and discourse is what is absent here. That

some expre ssive ac tivity

occurr ed within the conte xt of the forum created “does not imply that the forumthereby [beca

me] a public f

orum for First Amendment pur poses.” Cornelius , 473 U.S. at 805. In the absenc e o f evidence of an inte

nt on the pa

rt of the governme

nt t o o pen thesenontraditional forums for public discourse, limite d or

o th erwise, we co nc lu de th at th e p ar ki ng lo ts an d w al kw ays le ading t o the polling places are nonpublic forums, with no different status thanthe rema

ining ar eas on sc hool and private pr op er ty. Havingconcluded that the parking lo ts an d w al kw ays leadingto th e poll ing p l aces ar e nonpubl ic forums , we must next consider whether the restriction on soliciting signatures

was reasona

ble and vi ewpoint neutral. The rea sonableness of the government’s restriction on acce ss to a nonpublic forum 20 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. No. 02-3415

must be assessed in light

of the purpose o f the for

um and all of the surrou nding circumstances. Cornelius , 473 U.S. at 810. According to appel lan ts’ compla int, schoo l officia

ls asked them to leave the premises becaus e t hey wer e concerned

about “safety

issues.” At the Y.M.C.A. and Tr in it y, police officers were re sponding to requests from the

owners of those propertie s when th ey a sked app ellants to leave t he pre mises. Appellants argue that their exclusion fromthese p ropert ies was unreasonable because they were soliciting signatures in a peaceful and non-disruptivemanner. However, the government does notneed to wait “until havoc is wreaked to restrict access to a nonpublic for um.” Cornelius
, 473 U.S. a

t 810. Fur

th e rmore, a

ppellee s could prohibit appella nts from soliciting signatures if they thought that their activities would disrupt the polling pl ace or the school or private property surrounding it. “Although the avoidance of contr

oversy is not a va

lid ground for restricting speech i n a public forum, a nonpublic

forum by definition is notdedicat

ed to gener

al debat e or the fr ee excha nge of ideas. The First Amendment does not forbid a viewpoint-neutral exclusion of speakers who would disrupt a nonpub lic form and hinder its

effec tiveness

for its inten ded purpose.” Id. Appellan ts argue in their brie f that their exclusion from the

areas outside of

the polling

places w as an att empt to suppress their speech because public officials opposed their view s, but they have alleged no facts to s upport thi s alleg ation. The re is

no contention, for exam

ple, that othe

rs were permitte d to solicit signatures for refere

ndum petitions on other topics, or that anyone wa s al lowe d to engage in other ty pes of electioneering

activities w ithin these

areas. Under th ese circumst ances, we con clud e that the decision to exclude appella nts from soliciting signatures in the parking lots and

wa lk wa ys leading to the polling places was rea sonable and viewpoint neutral, and that

the appellants’ First Amendment rightswe re not vio lated whe n they were de nied acc ess to these nonpublic forums.No. 02-3415 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. 21

3. The Public Sidew alk Beyond 100 F eet F rom the Polling Place

Ina footnote

in its opinion dismissing the claim s again st the Sidney City

Schoo ls and Miller, the district court stated that “[t]here is no allegation that the [appellants] were denied the ability to solicit signatu res fro m adjace

nt, public propert y suchas the sidewal ks in fron t of the polling place.” United Food & Comme

rcial Workers, Union L ocal 1099 v. City of Sidney
, 199 F. Supp. 2d 739, 742n.6 (S.D. Ohio 2002). This conclusionis contra

ry to alleg ati ons in the complaint that appella nts were prohibited from soliciting signatures fr om the public sidewalk

within the campaign-free zone at Lowell, and fromthe public sidewalk out s ide the campaign-free zone at the Y.M.C.A. We have already determined that appel l ants
were not depri

ved of the ir First A

mendment

rights a t Lowe ll because, although they

were on the public sidewalk, they

were also within the 100-foot campaign-free zone

established by §§ 3501. 30 and 3 501.35. Now we must decide whether appella nts were deprived of their First Amendment ri ght s when a deputy with the Shelby County Sheriff’s Off

ice threatened

two of the

appella nts with arrest if they

attempted to solicit signatures by

calling out to any

one in the Y.M.C.A. parkinglot, even

after they had relo cated to

a public s idewalk beyond 100 fee

t from the polling place.
“[S]peech inpublic areas is at its most protect ed on publ ic sidewalks, a prototy

pical exa mple of a

traditional p u blic forum.” Sc henck v. Pro-Choice Network of W estern New York
, 519 U.S . 357, 377 (1997). As we have already noted, ina traditional public f

orum, content-based restrictions on speech must be necessary

to serve compellingstate inte rests and narrowly ta

ilored to achieve those i nterests. Perry , 460 U.S. at 45. The state may a lso enforce regulations of the time, pl ace, and manner of expression, provided the regulations (1 ) a re content-neutral, (2) are na rrowly-tailore d to serve a significant government interest, and (3) leave open amplealternative channels of communication. Id. Thus, the 22 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. No. 02-3415

appropr iate level of scrutiny is initially tied to whe ther the restriction

distinguished between prohi bi ted and permitted speech on the basis of content. See Frisby
, 487 U.S. at 481. Content-neutral regula

tions are those that are “justified withoutreference to the content of the spee ch.” Vi r ginia State Bd. of Pharmacy v. Virginia Citizen s Con sumer Counsel, Inc. , 42 5 U.S . 748, 771 (1976). Content-based restrictions, on the other

hand, regulate speech on the basis of the ideas expressed. R.A.V. v . City of St. Paul , 505 U.S. 377, 382 (199 2). It is impossible to determine from this recor d whether the deputy’s threa

t of arrest was based on the content of the appellants’ speech or on content-neutral time , place, and manner concerns. At this stag e of the liti gation, it suffices to say that appellants have allege d facts suppo rting a claim that their F ir st Amendment rights were violated when they were threate

ned with a

rrest ev en afte

r they had moved

to the public s idew alk. I

t was not ne cessar

y f or them to f

irst expose themselve s to arre st or prosecution in order to be able to seek relief. See St effel v. Thompson , 415 U.S. 452, 459 (1974). W e lea ve it to the district c ourt on re

mand to determine if the appellants’ First Amendment rights w ere in fact deterred or chilled by

the deputy’s threa

t of arrest, and whether that threat

was motivated by re asonable time, place,

a nd manner concerns or whether it was a n imperm issibl e content-based

restriction on spe ech in a t raditiona l public forum. See Poui llon v. City of Owosso , 206 F.3d 711, 717-18 (6th Cir. 2000).

Becau se appel lants hav e not alle ged fa cts supportin

g their claims that their

First Amendment rights were violated when they were denied the opportuni ty t o solicit signatures at the four public schools involved in t his case, we affirm the districtcourt’s decis ion dismissi ng their § 1983 cla

ims agains tthe Sidney City

Schools and Superintendent Miller. Appellan ts also hav e fail ed to alle ge fac ts support

ing thei r claim that their First Amendment rights were violated by the City of Sidney

or its employees Puckett and Wear ly, and weNo. 02-3415 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. 23

4 Alt hou gh Sh erif

f O’Leary

has rai sed the def

ense of qualif

ied immu nity, this defense is not av ailable to office rs who have b een su ed in their officia l capa cities. Alki re v. Irv ing , 330 F.3d 80 2, 810-11 (6th Cir. 2003). affirm the district

court’s decision dismissing those claims as well.
Appe l lants’ remainin

g § 1983 c laim is ag ainst O’L eary in his official capac ity a s Shelby County Sheriff, and, as the distr ict court noted, this claim is really one against Shelby County itse lf

. See Will v. Mich. Dept. of State Police , 491 U.S. 58, 67 (19 89); Monell v. Dept. of Social Servs. , 436 U.S. 658, 690 n. 55 ( 1978) (noting tha t officia l c ap ac it y suits “gene rally repres ent on ly anothe r way of ple ading a n actio n agains tan entity

of which an offic er is an a

gent”) ; Leach v. Shelby County Sh eriff

, 891 F.2d 1241, 1245-46 (6th Cir. 1989). 4 In or

der to hol d a county

gover nme nt liabl e under § 1983, app ellants mu st be able to show tha

t the y were deprived of a cons titutional

right a nd that the

county itself

was responsible for the violation. Doe v. Cla iborne Cou nty , 103 F.3d 495, 505-06 (6 thCi r. 1996). We have already determined

that appellants have succeeded, t o this point, in alleging that they were deprived of their constitutional rights when a deput y with the Shelby County Sheriff’s Off

ice threatened

them with a

rrest ev en afte

r th ey mov ed to the p ubl ic sidewalk

at the Y.M .C.A. Appe llants hav e also alleged that this constitut ion al violati on occur red “in furtherance of . . . off

icia l poli cy .” We

note that in order to be successful on remand, appellants must prove not on ly that their expression was in fact

deterred or chilled by

the deputy’s conduct, butalso that t

he deputy threatened to call the police be cause of the co

ntent of their messa

ge and not mere ly because he had valid content-neutral time, place, and manner
concer ns. Additiona

lly, in order

to hold the

county liable under § 1983, appellants must be able to prove that the deputy 24 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. No. 02-3415

acted pursuant t o an o fficial policy or c ustom. See Mone ll
, 436 U.S. at 691.

B. Appellants ’ § 1985 Cl aim

Inaddition to

their § 19 83 claims, appella nts also al leged intheir complaint

that the Ci

ty o f Sidney

, Puckett, Wal-Mart
, and two of Wal-Mart’s employe es conspired to prevent them from“engaging in their sta tutorily-protected r

ight to obtai n signatures for

a referendum petition, to introduce an improper and misleading ‘counter-petition’ in an attem pt t o influence the Board o f Elections’ deci sion-mak ing proc ess, and t

o circumvent

their right to a referendum throug h a pa ttern of unlawfu l, corrupt , and unethical le gislativ e conduct,” in violation o f § 1985. Because the appellants have dismissed their cla ims aga inst the three Wal-Mart defendants, theonly remainingdefendants in t heir § 1985 claim are the City of Sidney and City

Manager Puckett.

To state a cause of action un der § 198 5, appell ants must prove the existence of a conspiracy among two or more persons. Hull

v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ. , 926 F.2d 505, 509 (6th Cir. 1991). In this case, appella nts are all eging a conspiracy between the city and one of its officers acting in his official capac ity. Th is court has rejected the conc ept of an

“intra- corpora

te consp ir ac y” and has held that an

entity cannot

conspire with its own agents or employ ees. See id. Since the

remainin g § 1985 d

efenda nts
are the City

and one of

its employees, appellants ca nnot meet their burden of proving a con spiracy between two or more persons. We therefore a ffirm the district court’s decision dismissing their claims under § 1985.No. 02-3415 United Fo od & Commerc ial Wo rkers Local 1099

, et al. v. City of Sidn ey, et al

. 25

III.

For the fore going

reasons , we aff

irm the dis t ri ct court’s decisiondismissing appellants’ § 1983 claims against the Sidney City Schools, the City of

Sidney, Miller, Puckett, and We ar ly. We also affirm the distr ict court’s decision dismissing appellants’ § 19 85 cla ims against the City of Sidney and Puckett. We reverse the district court’s decision dismissing appella

nts’ § 1983 claims against Sheriff O’Leary inhis officia

l capac ity insofar as it relates to activities on the public sidewalk outside the campaign-free zone a t the Y.M.C. A. and rema

nd to the di strict co

urt for f urth e r proceedings consistent with this opinion.