1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0086A (6th Cir.)

File Name: 04a0086a.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED FOOD &

COMMERCIAL WORKERS

LOCAL 1099; JUDY BISHOP;

DOUG BURGSTALLER; JEFF

CRIDER; RAY EVANS, III;

BONNIE FRANCE; CHAD

HELMLINGER; LEAH

HELMLINGER; TONYA

MCCOY; BRYON O’NEAL;

JEFF OSTING; KEITH

ROBINSON; JESSICA

SAGRAVES,

Plaintiffs-Appellants,

v.

CITY OF SIDNEY; MICHAEL

PUCKETT; STEVEN B.

WEARLY; SIDNEY CITY

SCHOOLS; STEVE MILLER;

KEVIN O’LEARY,

Defendants-Appellees,

WAL-MART STORES, INC., et

al.; JOHN WATERS; GREG

FRANKS,

Defendants.

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No. 02-3415

2 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

No. 02-3415

Appeal from the United States District Court

for the Southern District of Ohio at Dayton.

No. 00-00296—Walter H Rice, District Judge.

Argued: July 31, 2003

Decided and Filed: March 24, 2004 

Before: KENNEDY, GILMAN, and GIBBONS, Circuit

Judges.

_________________

COUNSEL

ARGUED: Timothy M. Burke, MANLEY BURKE,

Cincinnati, Ohio, for Appellants. Boyd W. Gentry,

SURDYK, DOWD & TURNER, Dayton, Ohio, Brian L.

Wildermuth, LAW OFFICES OF NICHOLAS E. SUBASHI,

Dayton, Ohio, for Appellees. ON BRIEF: Timothy M.

Burke, Rhonda S. Frey, MANLEY BURKE, Cincinnati,

Ohio, for Appellants. Edward J. Dowd, SURDYK, DOWD

& TURNER, Brian L. Wildermuth, Nicholas E. Subashi,

LAW OFFICES OF NICHOLAS E. SUBASHI, Dayton,

Ohio, Michael Fay Boller, ASSISTANT SHELBY COUNTY

PROSECUTOR, Sidney, Ohio, for Appellees. 

_____________________

AMENDED OPINION

_____________________

JULIA SMITH GIBBONS, Circuit Judge. Plaintiffsappellants,UnitedFood and Commercial Workers Local 1099

(“Local 1099”) and twelve of its members, brought suit under

42 U.S.C. §§ 1983 and 1985 against defendants-appellees
No. 02-3415 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

3

after they were prohibited from soliciting signatures for a

referendum petition outside six polling places on election day

in Sidney, Ohio. These polling places included four public

schools, the local Y.M.C.A., and a church. At each location,

members of Local 1099 attempted to solicit signatures in

areas on school or private property that were outside of the

areas that had been designated as “campaign-free zones”

pursuant to an Ohio statute. Nevertheless, appellants were

asked to leave the premises, and in many cases they were

threatened with arrest if they failed to comply. At one

location, two individual appellantswere threatened with arrest

even after they had relocated to a spot on a public sidewalk,

outside of the campaign-free zone.

Defendants-appellees Sidney City Schools, Superintendent

Steve Miller, and Shelby County Sheriff Kevin O’Leary

moved to dismiss. The City of Sidney, City Manager

Michael Puckett, and Chief of Police Steven Wearly moved

for judgment on the pleadings. The district court concluded

that the appellants had not suffered a deprivation of their First

Amendment rights when they were denied permission to

solicit signatures at each of the six polling places and granted

the appellees’ motions. We agree with the district court that

appellants’ First Amendment rights were not violated when

they were prohibited from soliciting signatures in those areas

that were (a) within the campaign-free zone, regardless of

whether the campaign-free zone encompassed a traditional

public forum such as a sidewalk, or (b) on school or private

property, but outside of the campaign-free zone. However,

plaintiffs have alleged facts supporting a claim that they were

deprived of their First Amendment rights when they were

threatened with arrest after they moved to the public sidewalk

outside of the campaign-free zone at the Y.M.C.A., and to

that extent, their § 1983 claim should be permitted to move

forward. We therefore affirm in part, reverse in part, and

remand to the district court for further proceedings consistent

with this opinion.

4 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

No. 02-3415

I.

A. Factual Background

On February 28, 2000, the City Council of Sidney, Ohio,

enacted Ordinance No. A-2203, which “effected the rezoning

of Lots 5918 and 6180 from an I-2 Heavy Industrial District

to a B-2 Community Business District.” The process of

rezoning the property was undertaken for the purpose of

allowing expansion of a Wal-Mart store at that location. On

March 2, 2000, appellants submitted a certified copy of

Ordinance No. A-2203 and a pre-circulation referendum

petition to the City of Sidney. Pursuant to the city’s charter,

referendum petitions must be filed within two weeks

following the passage of the ordinance called into question.

Given the short amount of time in which they had to collect

signatures after Ordinance No. A-2003 was enacted on

February 28, appellants assert that it was “particularly

important to gather signatures on March 7, 2000,” the day of

the primary election in Ohio. On that date, appellants

gathered to solicit signatures for the petition from voters

outside six polling places in Sidney. These locations included

four public elementary schools (Parkwood, Emerson,

Whittier, and Lowell), the Sidney-Shelby Y.M.C.A.

(“Y.M.C.A.”), and TrinityChurch of the Brethren (“Trinity”).

Appellants Judy Bishop, Ray Evans, and Jessica Sagraves

were at Parkwood; Bryon O’Neal was at Emerson; Keith

Robinson and Tonya McCoy were at Whittier; Chad and Leah

Helmlinger were at Lowell; Jeff Crider and Jeff Osting were

at the Y.M.C.A.; and Doug Burgstaller and 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-

foot campaign-free zone around the entrances to polling

places in Ohio. Section 3501.30 instructs each county board

of elections to place small United States flags 100 feet from
No. 02-3415 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

5

the polling place on the walkways leading to the entrance in

order “to mark the distance within which persons other than

election officials, witnesses, challengers, police officers, and

electors . . . shall not loiter, congregate, or engage in any kind

of election campaigning.” Section 3501.35 further states that

in the area between the polling entrance and the two flags, no

person “shall loiter or congregate,” “hinder or delay an

elector,” or “solicit or in any manner attempt to influence any

elector in casting his vote.”

Appellants have alleged that at each of the polling places,

they were positioned outside or beyond the area marked by

the flags. They further 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 issue.]”

The locations at which appellants were attempting to solicit

signatures and the manner in which they were denied access

varied at each polling place. At Parkwood, appellants Bishop,

Evans, and Sagraves positioned themselves on school

property, but beyond the flag that had been placed outside the

entrance to the polling place. They solicited signatures at this

location for a short period of time, until the school principal

informed them that they would have to relocate 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

appellants, this flag was “far in excess of one hundred feet”

from the entrance to the polling place. Shortly after they had

relocated to this new position, a deputy from the Shelby

County Sheriff’s Office ordered them to leave the premises

and threatened them with arrest for trespassing if they failed

to comply. Appellants then relocated to a public sidewalk,

but because most of the voters were parking in the school’s

parking lot, they allege that they were unable to solicit

signatures effectively from that location.

6 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

No. 02-3415

At Emerson, O’Neal and Tambra Young had been

soliciting signatures for approximately ninety minutes before

the school principal ordered them to leave the property and

threatened to call the police if they did not comply.

Appellants allege that at some time during the morning of

March 7, Ralph Bauer, a member of the Sidney Board of

Elections, called the Sidney Police Department and requested

that they send cruisers to Emerson, Lowell, the Y.M.C.A.,

and Trinity. Bauer purportedly informed police that the

appellants were soliciting signatures at each of these locations

in areas that were within 100 feet of the polling places. An

officer from the Sidney Police Department arrived atEmerson

and told O’Neal and Young that his supervisor was on the

way and that he would decide whether they could remain on

the property. Shortly thereafter, Sidney Police Captain

Kimpel arrived and told the appellants that if they refused to

leave school property they would be trespassing. When

O’Neal asked Kimpel how they could be trespassing on

public property, Kimpel replied, “I’m not going to argue

about this. This is your last warning.” According to

appellants, “[r]ather than risk receiving a citation or being

placed under arrest,” they complied with Kimpel’s demand

and left the property.

At Whittier, appellants Robinson and McCoy positioned

themselves outside the side entrance to the polling place.

Although flags had been 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 they would have to leave school

property because of “safety issues” and that she had already

called the police. At this point, Robinson and McCoy left

school property and moved to a public sidewalk. Because

most of the voters were parking in the school’s parking lot,

appellants allege that they were unable to solicit signatures

effectively from that location.
No. 02-3415 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

7

When the Helmlingers arrived at Lowell, they asked polling

officials to identify the locations where they would be

permitted to gather signatures. The officials replied that they

did not know and called the Board of Elections. According

to appellants, one of the officials grabbed the petition out of

Leah Helmlinger’s hands and said, “Let me take a look at

that. So you’re against the Wal-Mart?” After one official

told them that they could solicit signatures at any point

beyond the flags, the Helmlingers positioned themselves “on

the public sidewalk, beyond the two flags.” Appellants allege

that shortly after Bauer’s phone call to the Sidney Police

Department, an officer arrived at Lowell and told the

Helmlingers that school officials had called to complain. The

officer told the Helmlingers that the flags had not been placed

far enough from the entrance to the polling place at Lowell

and that they would have to stay more than 100 feet from that

entrance. “Rather than risk receiving a citation or being

[placed under arrest],” the Helmlingers complied with the

officer’s request and left the property.

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

approximately one hour before an officer with the Sidney

Police Department arrived, allegedly after a phone call from

Bauer, and used a measuring wheel to mark a line 100 feet

from the polling place. The officer informed Crider and

Osting that they could solicit signatures anywhere beyond that

line. After Crider and Osting had been soliciting signatures

for about an hour from this new location, a deputy with the

Shelby County Sheriff’s Department arrived, and, at the

request of Y.M.C.A. membership director Michael Lieber,

ordered the appellants to leave Y.M.C.A. property. The

officer threatened them with arrest if they failed to comply.

Crider and Osting again moved to a different location, this

time to a public sidewalk that was more than 100 feet from

the polling place. The sheriff’s deputy followed and informed

them that if they attempted to solicit signatures by calling to

anyone in the Y.M.C.A.’s parking lot, he would cite them for

disorderly conduct. Because most of the voters were parking

8 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

No. 02-3415

in the Y.M.C.A.’s lot, and the deputy had threatened them

with arrest if they either entered the parking lot or attempted

to contact voters in the parking lot, appellants allege that they

were unable to solicit signatures effectively from this

location.

At Trinity, Burgstaller and France collected signatures 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 Burgstaller and France,

a polling judge came out of the church and told them that they

would be permitted to collect signatures as long as they

remained beyond a set of flags that had been placed 100 feet

from the polling entrance. The officer disagreed, and told the

appellants that it was irrelevant whether they were outside of

the 100-foot boundary because the church was private

property, and the church wanted them to leave. Rather than

“risk arrest for trespassing,” Burgstaller and France complied

with the officer’s demand and left church property.

Appellants allege that in response to their petition efforts,

the Mayor of Sidney 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 Elections with the counter-petition and a list of

nineteen individuals who purportedly had asked the city to

have their names removed from the referendum petition.

Appellants alleged that the counter-petition failed to comply

with Ohio law, and the Board of Elections referred the issue

to the Ohio Secretary of State. On April 17, 2000, the Board

of Elections informed the City of Sidney that the counterpetition was invalid, and that there were enough valid

signatures on the referendum petition to place the referendum

on the November 2000 ballot.

The referendum never took place. On April 3, 2000, the

Sidney City Council held a special meeting and adopted

Ordinance No. A-2207, which repealed Ordinance No. A-
No. 02-3415 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

9

1

Appellants voluntarily dismissed their claims against Miller,

Puckett, Wearly, and O’Leary in their respective individual capacities. 

2

Appellants have voluntarily dismissed their claims against WalMart, Waters, and Franks.

2203, rendering appellants’ referendum petition on that

ordinance moot. Shortly after Ordinance No. A-2207 was

enacted, the City Council adopted Ordinance No. A-2208,

which effected the same rezoning of lots 5918 and 6180 as

Ordinance No. A-2203. Both Ordinance Nos. A-2207 and A2208 contained emergency clauses that caused them to go into

effect immediately.

B. Procedural History

On June 13, 2000, appellants filed a complaint in the

United States District Court for the Southern District of Ohio

asserting claims under 42 U.S.C. §§ 1983 and 1985. In their

§ 1983 claim, appellants alleged that the appellees deprived

them of their federal constitutional rights under the First and

Fourteenth Amendments by preventing them from soliciting

signatures outside the areas demarcated by flags at public

polling places on March 7, 2000.1 In their § 1985 claim,

appellants alleged that the City of Sidney, Puckett, Wal-Mart,

Wal-Mart district manager John Waters, and Sidney WalMart store manager Greg Franks conspired “to prevent [them]

from engaging in their statutorily-protected right to obtain

signatures for the referendum petition, to introduce an

improper and misleading ‘counter-petition’ in an attempt to

influence the Board of Elections’ decision-making process,

and to circumvent [their] right to a referendum through a

pattern of unlawful, corrupt, and unethical legislative

conduct.”2

The Sidney City Schools and Miller moved to dismiss.

O’Leary filed a separate motion to dismiss the claims against

10 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

No. 02-3415

him in his official capacity, and the City of Sidney, Puckett,

and Wearly filed a motion for judgment on the pleadings.

The district court granted these motions on March 11, 2002.

The court concluded that the presence of polling sites on the

properties at issue did not transform the areas surrounding

those polling sites into traditional public forums. The court

also found that Ohio Rev. Code § 3501.29, which provides

that public and private buildings may be utilized “for the

purpose of holding elections,” created a designated public

forum “for the limited purpose of voting, [but] not for other

expressive activities which may accompany elections.” In its

decision granting the motions to dismiss, the court afforded

appellants an opportunity to file an amended complaint in

order to set forth allegations to support their contention that

the Sidney City Schools had, by policy or practice, designated

school property as a public forum for the purpose of

campaigning and other expressive activities on days when the

schools were being used as polling places. The appellants did

not avail themselves of this opportunity. Since the court

concluded that appellants had not alleged sufficient facts to

support a claim that they were deprived of their First

Amendment rights, the court also found that they had failed

to plead that the City of Sidney and Puckett had conspired to

deprive them of those rights, and dismissed their claims under

§ 1985 as well. On April 9, 2002, appellants filed this timely

appeal.

II.

This court reviews a district court’s decision to dismiss a

complaint pursuant 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) provides that a complaint may be

dismissed for failure to state a claim upon which relief may be

granted. Dismissal pursuant to a Rule 12(b)(6) motion is

proper “only if it is clear that no relief could be granted under

any set of facts that could be proved consistent with the

allegations.” Id. (citing Hishon v. King & Spalding, 467 U.S.
No. 02-3415 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

11

69, 73 (1984)). Although we must accept as true all of the

factual allegations in the complaint, we need not accept as

true legal conclusions or unwarranted factual inferences.

Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.

1987) (citations omitted). 

The standard of review applicable to a motion for judgment

on the pleadings under Rule 12(c) is the same de novo

standard that is applicable to a motion to dismiss under Rule

12(b)(6). Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 511-12

(6th Cir. 2001). In reviewing such motions, we must construe

the complaint in the light most favorable to the plaintiff,

accept all of the complaint’s factual allegations as true, and

determine whether the plaintiff undoubtedly can prove no set

of facts in support of his claims that would entitle him to

relief. Id.

A. Appellants’ § 1983 Claims

In order to state a cause of action under § 1983, appellants

must allege (1) that they were deprived of a right secured 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 Paducah, 890 F.2d 831, 833-34

(6th Cir. 1989). To evaluate appellants’ § 1983 claims in this

case, we must consider whether their First Amendment rights

were violated when they were not permitted to solicit

signatures for their referendum petition in the areas

surrounding the six polling places at issue.

Assuming that the solicitation of signatures for a

referendum petition is a protected form of speech under the

First Amendment, the mere fact that a certain category of

speech is worthy of constitutional protection does not mean

that it is “equally permissible in all places and at all times.”

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.

788, 800 (1985). The government is not required to grant

access to all who wish to exercise their right to free speech on

12 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

No. 02-3415

every type of government property “without regard to the

nature of the property or to the disruption that might be

caused by the speaker’s activities.” Id. at 799-800. Rather,

the existence of a right of access to government property and

the extent to which such access may be limited by the

government depend on the character of the property at issue.

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460

U.S. 37, 44 (1983). 

The Supreme Court has adopted a forum analysis “as a

means of determining when the government’s interest in

limiting the use of its property to its intended purpose

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 traditional public forum,

the designated public forum, and the nonpublic forum. Id. at

802. Traditional public forums are those places “which by

long tradition or by government fiat have been devoted to

assembly 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 use by certain speakers, or for the

discussion of certain subjects.” Cornelius, 473 U.S. at 802.

In traditional and designated public forums, content-based

restrictions on speech are prohibited unless necessary to serve

compelling state interests and narrowly tailored to achieve

those interests. Id. By contrast, restrictions on speech in

nonpublic forums are permissible so long as they are

viewpoint neutral and reasonable in light of the purpose

served by the forum. Id. at 49. 

To determine the extent to which the government may limit

access to its property, then, we must first identify the relevant

forum to which the appellants sought access, and next

consider whether the relevant forum is public or nonpublic,

because the government’s ability to place restrictions on

speech varies with the type of forum involved. Cornelius,

473 U.S. at 797. In this case, appellants were soliciting
No. 02-3415 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

13

signatures for their referendum petition at various positions

around polling places located on both public and private

property, but our inquiry into the relevant forum does not end

merely by identifying these two broad categories: “Rather, in

defining the relevant forum we have focused on the access

sought by the speaker. When speakers seek general access to

public property, the forum encompasses that property.” Id.

When speakers seek more limited access, however, we must

take “a more tailored approach to ascertaining the perimeters

of [the relevant] forum within the confines” of the

government property at issue. Id. Appellants here were not

seeking general access to the school and private properties

involved, but were instead seeking more limited access to the

areas surrounding each of the six polling places. These

locations can be grouped into three categories: (1) the public

sidewalk within 100 feet of the polling place, (2) the parking

lots and walkways on school or private property leading to the

polling place, and (3) the public sidewalk beyond 100 feet

from the polling place. Having identified these three relevant

forums, we must next consider whether each forum is 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 Public Sidewalk Within 100 Feet of a Polling

Place

Appellants allege that at Lowell, the Helmlingers tried to

solicit signatures from a position “on the public sidewalk.”

They argue that appellees’ conduct prohibiting them from

soliciting signatures at this location constituted an

impermissible restriction on their speech in a traditional

public forum. Traditional public forums are those places

which “by long tradition or by government fiat have been

devoted to assembly and debate.” Perry, 460 at 45. While it

is true that public sidewalks are generally considered

traditional public forums, see Frisby v. Schultz, 487 U.S. 474,

480-81 (1988), speakers may nevertheless be excluded from

14 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

No. 02-3415

a traditional public forum on the basis of the content of their

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. 

Appellants’ complaint in this case makes clear that the

Helmlingers were deterred from soliciting signatures on the

public sidewalk in front of Lowell because the sidewalk was

within the 100-foot campaign-free zone established by Ohio

Rev. Code §§ 3501.30 and 3501.35. The Supreme Court

upheld the constitutionality of a similar “campaign-free zone”

in Burson v. Freeman, 504 U.S. 191, 196-97, & n.2 (1992),

even though the statute in question barred speech in areas that

included “quintessential public forums,” such as the streets

and sidewalks adjacent to polling places. The Court

concluded that the “campaign-free zone” was necessary in

order 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 applicable and

evenhanded restrictions that protect the integrity and

reliability of the electoral process itself”). In light of a long

history of problems with voter intimidation and election fraud

in this country, the Court held that Tennessee could decide

that the “last 15 seconds before its citizens enter the polling

place should be their own, as free from interference as

possible.” Id. at 210. The 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

consensus, and simple common sense show that some

restricted zone around polling places is necessary to protect

[the fundamental right to vote],” even when that right

conflicts with the exercise of free speech. Id. at 211. 

Thus, a state may require persons soliciting signatures to

stand 100 feet from the entrances to polling places without

running afoul of the Constitution. Id. at 211. The

Helmlingers therefore were not deprived of their First
No. 02-3415 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

15

Amendment rights when they were ordered to move from the

public sidewalk to a position beyond 100 feet from the polling

place. In keeping with Burson, Ohio may prevent persons

from soliciting signatures within 100 feet of polling places,

even in areas that include traditional public forums such as

sidewalks. 

2. The Parking Lots and Walkways Leading to the

Polling Place

At Parkwood, Emerson, Whittier, Trinity, and the

Y.M.C.A., appellants set up to gather signatures at various

locations on school and private property that were outside the

campaign-free zone established by §§ 3501.30 and 3501.35.

Appellants argue that the presence of the polling places

affected the character of the school and private property that

surrounded them. They contend that Ohio created a

designated public forum by providing for the use of school

and private buildings “for the purpose of holding elections”

in Ohio Rev. Code § 3501.29. The district court concluded

that by enacting § 3501.29, the Ohio legislature indicated an

intent to open up a portion of public school and private

property to registered voters for the limited purpose of voting,

but not for other expressive activities which may accompany

elections. This “limited designated public forum” included

the parking lot, the walkways and hallways leading to the

polls, and the area containing the voting booths themselves;

all other areas on school and private property remained

nonpublic forums.

In reaching this conclusion, the district court relied heavily

on the Eighth Circuit’s decision in Embry v. Lewis, 215 F.3d

884 (8th Cir. 2000). In Embry, the plaintiffs attempted to

gather signatures for a referendum petition outside a school

building that had been designated as a polling place. Id. at

886. They set up a table “on the grass of the school’s west

property,” near, but not upon the public sidewalk. Id. One of

the plaintiffs refused to leave the property when asked by the

16 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

No. 02-3415

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

subsequent action brought under § 1983, the plaintiffs argued

that Missouri had designated the school property, and in

particular the limited area in which they were located, “as a

limited public forum for the purpose of voting and

electioneering activities on that particular day.” Id. at 887.

The Eighth Circuit held that 

[o]nly a portion of the school property was a designated

public forum . . . for the limited purpose of voting . . . .

Specifically, 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 area

containing the voting booths. All other areas of school

property, however, remained a nonpublic forum.

Id. at 888. The plaintiffs in Embry were not located on those

portions of school property that had been appropriated for

election purposes; they were on the grassy area located next

to the sidewalk. Id. at 888-89. The court concluded that this

area remained a nonpublic forum on election day, and that the

decision to exclude the plaintiffs from this portion of school

property was a reasonable and viewpoint neutral restriction on

speech in a nonpublic forum. Id. at 889.

Appellants note that, unlike the plaintiffs in Embry, they

attempted to solicit signatures from the parking lots and

walkways leading to the polling places – precisely those areas

that the Eighth Circuit concluded had been designated as

public forums for the limited purpose of voting on election

day. They argue that if these areas were in fact designated as

public forums, the state could not open them up for the

limited purpose of voting and at the same time restrict similar

types of expressive activities that were consistent with the

principal function of the forum. Thus, we must decide

whether the parking lot and walkways leading to polling

places are “designated public forums for the limited purpose

of voting,” and whether the action of appellees in restricting
No. 02-3415 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

17

the appellants’ ability to solicit signatures in these areas was

permissible.

As we have already noted, the government creates 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 forum by

inaction or by permitting limited discourse, but only by

intentionally opening up a nontraditional forum for public

discourse. Cornelius, 473 U.S. at 802. In determining

whether the government has intended to open up its property

for use as a designated public forum, the Supreme Court has

said that we must look to the policy and practice of the

government, as well as to the nature of the property and its

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

schools and privately-owned buildings for public discourse

merely by utilizing portions of them as polling places on

election day. Appellants were given the opportunity by the

district court to amend their complaint in order to set forth

allegations supporting their contention that the government

had, by policy or practice, designated the property

surrounding the polling places as a public forum for the

purposes of campaigning or other expressive activities. They

did not avail themselves of this opportunity. Appellants also

argue that § 3501.30's designation of a campaign-free zone

outside every polling place is evidence of the compatibility of

expressive activity with polling places because it “implies an

expectation that people will gather at polling places to express

themselves.” The district court rejected this argument, and so

do we. Just because certain types of speech are expressly

prohibited within a certain area does not mean that they are

therefore permissible outside that area. See Embry, 215 F.3d

at 888-89 (“Although Missouri law makes it an offense to

electioneer within 25 feet of a polling place’s outer door, it

18 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

No. 02-3415

does not automatically follow that electioneering is allowed

anywhere outside the 25 foot line.”). 

Although the issue was not squarely before the court in

Embry because the plaintiffs in that case were on the grassy

area located next to the sidewalk, the Eighth Circuit described

the parking lot and walkways leading to the polling places as

“designated public forums for the limited purpose of voting.”

We respectfully disagree. The forum at issue here is neither

a traditional public forum nor a government-designated one.

By opening up portions of school and private property for use

as polling places on election day, Ohio has not opened up a

nontraditional forum for public discourse. In fact, there is no

evidence in the record of discourse of any sort. There is no

evidence of expressive activity occurring anywhere on the

properties involved, other than “each voter’s communication

of his own elective choice[,] and this has long been carried

out privately – by secret ballot in a restricted space.” See

Marlin v. District of Columbia Bd. of Elections & Ethics, 236

F.3d 716, 719 (D.C. Cir. 2001) (holding that the interiors of

polling places are nonpublic forums). 

When the district court, following the decision in Embry,

described the parking lots and walkways leading to the

polling places as “limited designated public forums,” it may

have had in mind the “limited public forum” described in

Good News Club v. Milford, 533 U.S. 98, 106 (2001). In

Good News, the Supreme Court employed the term “limited

public forum” to refer to a forum that the state had reserved

“for certain groups or for the discussion of certain topics.” Id.

In such forums, government restrictions on speech must be

reasonable and viewpoint neutral, the same standards that

apply to restrictions on speech in nonpublic forums. Id. Our

circuit and others have noted the confusion surrounding the

use of the terms “designated public forum” and “limited

public forum.” See, e.g., Goulart v. Meadows, 345 F.3d 239,

249 (4th Cir. 2003); DeBoer v. Vill. of Oak Park, 267 F.3d

558, 567 (7th Cir. 2001) (“[T]he use of this terminology . . .
No. 02-3415 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

19

3

The Fourth Circuit treats the terms “designated public forum” and

“limited public forum,” as two names for the same type of forum.

Goulart, 345 F.3d at 250. Some circuits consider the limited public forum

to be a subcategory of the designated public forum. Donovan v.

Punxsutawney Area Sch. Dist., 336 F.3d 211, 225 (3d Cir. 2003); Hopper

v. City of Pasco, 241 F.3d 1067, 1075-76 (9th Cir. 2001). Still others

consider the limited public forum to be a subse t of the nonpublic forum

classification. Summum v. City of Ogden, 297 F.3d 995, 1002 n.4 (10th

Cir. 2002). We need not resolve this issue here because we conclude that

the parking lots and sidewalks leading to the polling places are nonpublic

forums, but we note that the result in this case would be the same if we

had concluded that these areas were instead limited public forums.

has introduced some analytical ambiguity because the

[Supreme] Court previously had employed the term “limited

public forum” as a subcategory of the designated public

forum, subject to the strict scrutiny governing 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 need to

delve deeply into the nuances 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 expressive activity occurred within

the context of the forum created “does not imply that the

forum thereby [became] a public forum for First Amendment

purposes.” Cornelius, 473 U.S. at 805. In the absence of

evidence of an intent on the part of the government to open

these nontraditional forums for public discourse, limited or

otherwise, we conclude that the parking lots and walkways

leading to the polling places are nonpublic forums, with no

different status than the remaining areas on school and private

property.

Having concluded that the parking lots and walkways

leading to the polling places are nonpublic forums, we must

next consider whether the restriction on soliciting signatures

was reasonable and viewpoint neutral. The reasonableness of

the government’s restriction on access to a nonpublic forum

20 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

No. 02-3415

must be assessed in light of the purpose of the forum and all

of the surrounding circumstances. Cornelius, 473 U.S. at

810. According to appellants’ complaint, school officials

asked them to leave the premises because they were

concerned about “safety issues.” At the Y.M.C.A. and

Trinity, police officers were responding to requests from the

owners of those properties when they asked appellants to

leave the premises. Appellants argue that their exclusion

from these properties was unreasonable because they were

soliciting signatures in a peaceful and non-disruptive manner.

However, the government does not need to wait “until havoc

is wreaked to restrict access to a nonpublic forum.”

Cornelius, 473 U.S. at 810. Furthermore, appellees could

prohibit appellants from soliciting signatures if they thought

that their activities would disrupt the polling place or the

school or private property surrounding it. “Although the

avoidance of controversy is not a valid ground for restricting

speech in a public forum, a nonpublic forum by definition is

not dedicated to general debate or the free exchange of ideas.

The First Amendment does not forbid a viewpoint-neutral

exclusion of speakers who would disrupt a nonpublic form

and hinder its effectiveness for its intended purpose.” Id.

Appellants argue in their brief that their exclusion from the

areas outside of the polling places was an attempt to suppress

their speech because public officials opposed their views, but

they have alleged no facts to support this allegation. There is

no contention, for example, that others were permitted to

solicit signatures for referendum petitions on other topics, or

that anyone was allowed to engage in other types of

electioneering activities within these areas. Under these

circumstances, we conclude that the decision to exclude

appellants from soliciting signatures in the parking lots and

walkways leading to the polling places was reasonable and

viewpoint neutral, and that the appellants’ First Amendment

rights were not violated when they were denied access to

these nonpublic forums. 
No. 02-3415 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

21

3. The Public Sidewalk Beyond 100 Feet From the

Polling Place

In a footnote in its opinion dismissing the claims against

the Sidney City Schools and Miller, the district court stated

that “[t]here is no allegation that the [appellants] were denied

the ability to solicit signatures from adjacent, public property

such as the sidewalks in front of the polling place.” United

Food & Commercial Workers, Union Local 1099 v. City of

Sidney, 199 F. Supp. 2d 739, 742 n.6 (S.D. Ohio 2002). This

conclusion is contrary to allegations in the complaint that

appellants were prohibited from soliciting signatures from the

public sidewalk within the campaign-free zone at Lowell, and

from the public sidewalk outside the campaign-free zone at

the Y.M.C.A. We have already determined that appellants

were not deprived of their First Amendment rights at Lowell

because, although they were on the public sidewalk, they

were also within the 100-foot campaign-free zone established

by §§ 3501.30 and 3501.35. Now we must decide whether

appellants were deprived of their First Amendment rights

when a deputy with the Shelby County Sheriff’s Office

threatened two of the appellants with arrest if they attempted

to solicit signatures by calling out to anyone in the Y.M.C.A.

parking lot, even after they had relocated to a public sidewalk

beyond 100 feet from the polling place. 

“[S]peech in public areas is at its most protected on public

sidewalks, a prototypical example of a traditional public

forum.” Schenck v. Pro-Choice Network of Western New

York, 519 U.S. 357, 377 (1997). As we have already noted,

in a traditional public forum, content-based restrictions on

speech must be necessary to serve compelling state interests

and narrowly tailored to achieve those interests. Perry, 460

U.S. at 45. The state may also enforce regulations of the

time, place, and manner of expression, provided the

regulations (1) are content-neutral, (2) are narrowly-tailored

to serve a significant government interest, and (3) leave open

ample alternative channels of communication. Id. Thus, the

22 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

No. 02-3415

appropriate level of scrutiny is initially tied to whether the

restriction distinguished between prohibited and permitted

speech on the basis of content. See Frisby, 487 U.S. at 481.

Content-neutral regulations are those that are “justified

without reference to the content of the speech.” Virginia

State Bd. of Pharmacy v. Virginia Citizens Consumer

Counsel, Inc., 425 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 (1992). It is impossible to determine from this record

whether the deputy’s threat of arrest was based on the content

of the appellants’ speech or on content-neutral time, place,

and manner concerns. At this stage of the litigation, it

suffices to say that appellants have alleged facts supporting a

claim that their First Amendment rights were violated when

they were threatened with arrest even after they had moved to

the public sidewalk. It was not necessary for them to first

expose themselves to arrest or prosecution in order to be able

to seek relief. See Steffel v. Thompson, 415 U.S. 452, 459

(1974). We leave it to the district court on remand to

determine if the appellants’ First Amendment rights were in

fact deterred or chilled by the deputy’s threat of arrest, and

whether that threat was motivated by reasonable time, place,

and manner concerns or whether it was an impermissible

content-based restriction on speech in a traditional public

forum. See Pouillon v. City of Owosso, 206 F.3d 711, 717-18

(6th Cir. 2000).

Because appellants have not alleged facts supporting their

claims that their First Amendment rights were violated when

they were denied the opportunity to solicit signatures at the

four public schools involved in this case, we affirm the

district court’s decision dismissing their § 1983 claims

against the Sidney City Schools and Superintendent Miller.

Appellants also have failed to allege facts supporting their

claim that their First Amendment rights were violated by the

City of Sidney or its employees Puckett and Wearly, and we
No. 02-3415 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

23

4

Although Sheriff O’Leary has raised the defense of qualified

immunity, this defense is not available to officers who have been sued in

their official capacities. Alkire v. Irving, 330 F.3d 802, 810-11 (6th Cir.

2003).

affirm the district court’s decision dismissing those claims as

well. 

Appellants’ remaining § 1983 claim is against O’Leary in

his official capacity as Shelby County Sheriff, and, as the

district court noted, this claim is really one against Shelby

County itself. See Will v. Mich. Dept. of State Police, 491

U.S. 58, 67 (1989); Monell v. Dept. of Social Servs., 436 U.S.

658, 690 n. 55 (1978) (noting that official capacity suits

“generally represent only another way of pleading an action

against an entity of which an officer is an agent”); Leach v.

Shelby County Sheriff, 891 F.2d 1241, 1245-46 (6th Cir.

1989).4 In order to hold a county government liable under

§ 1983, appellants must be able to show that they were

deprived of a constitutional right and that the county itself

was responsible for the violation. Doe v. Claiborne County,

103 F.3d 495, 505-06 (6th Cir. 1996). We have already

determined that appellants have succeeded, to this point, in

alleging that they were deprived of their constitutional rights

when a deputy with the Shelby County Sheriff’s Office

threatened them with arrest even after they moved to the

public sidewalk at the Y.M.C.A. Appellants have also

alleged that this constitutional violation occurred “in

furtherance of . . . official policy.” We note that in order to be

successful on remand, appellants must prove not only that

their expression was in fact deterred or chilled by the deputy’s

conduct, but also that the deputy threatened to call the police

because of the content of their message and not merely

because he had valid content-neutral time, place, and manner

concerns. Additionally, in order to hold the county liable

under § 1983, appellants must be able to prove that the deputy

24 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

No. 02-3415

acted pursuant to an official policy or custom. See Monell,

436 U.S. at 691.

B. Appellants’ § 1985 Claim

In addition to their § 1983 claims, appellants also alleged

in their complaint that the City of Sidney, Puckett, Wal-Mart,

and two of Wal-Mart’s employees conspired to prevent them

from “engaging in their statutorily-protected right to obtain

signatures for a referendum petition, to introduce an improper

and misleading ‘counter-petition’ in an attempt to influence

the Board of Elections’ decision-making process, and to

circumvent their right to a referendum through a pattern of

unlawful, corrupt, and unethical legislative conduct,” in

violation of § 1985. Because the appellants have dismissed

their claims against the three Wal-Mart defendants, the only

remaining defendants in their § 1985 claim are the City of

Sidney and City Manager Puckett. 

To state a cause of action under § 1985, appellants 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,

appellants are alleging a conspiracy between the city and one

of its officers acting in his official capacity. This court has

rejected the concept of an “intra-corporate conspiracy” and

has held that an entity cannot conspire with its own agents or

employees. See id. Since the remaining § 1985 defendants

are the City and one of its employees, appellants cannot meet

their burden of proving a conspiracy between two or more

persons. We therefore affirm the district court’s decision

dismissing their claims under § 1985.
No. 02-3415 United Food & Commercial Workers

Local 1099, et al. v. City of Sidney, et al.

25

III.

For the foregoing reasons, we affirm the district court’s

decision dismissing appellants’ § 1983 claims against the

Sidney City Schools, the City of Sidney, Miller, Puckett, and

Wearly. We also affirm the district court’s decision

dismissing appellants’ § 1985 claims against the City of

Sidney and Puckett. We reverse the district court’s decision

dismissing appellants’ § 1983 claims against Sheriff O’Leary

in his official capacity insofar as it relates to activities on the

public sidewalk outside the campaign-free zone at the

Y.M.C.A. and remand to the district court for further

proceedings consistent with this opinion.