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One World One Family Now v. City of Miami Beach, 175 F.3d 1282 (11th Cir. 1999).

Smith v. City of Fort Lauderdale, Florida, 177 F.3d 954 (11th Cir. 1999).
 

John A. Duff, J.D., LL.M., M.A.

Beach areas attract significant numbers of visitors. In an effort to protect these areas and the people who frequent them, municipalities enact ordinances aimed at maintaining and enhancing public access by restricting certain types of activity. Occasionally these efforts are viewed as running afoul of individual liberties such as freedom of expression. Recently, a federal appeals court issued two rulings outlining the extent to which certain activities - acknowledged as attributes of constitutionally protected speech - may be limited at public beaches. Both cases arose from challenges to town ordinances in Florida restricting commercial activities on or along public beaches. In both instances, the court relied on a series of questions that required resolution in the affirmative to uphold the ordinances:

. does the area at issue constitute a public forum?

. does the activity at issue constitute speech?

. does the enforcement of the ordinance restrict speech in a constitutionally valid manner?
 

The Miami Beach case

In an effort to protect the ambience of the Art Deco district of Miami Beach, the city had prohibited virtually all commercial activity from public streets and sidewalks in the area except the opportunity for restaurants situated in the area to set up tables and chairs as outdoor café extensions of their establishments. Another exception was the Nonprofit Vending and Distribution Ordinance which allowed nonprofit groups the limited use of tables for solicitation and vending at five locations on the east side of the street in the commercial district from 8 a.m. to one half hour after sunset. In One World One Family Now v. City of Miami Beach,1 a nonprofit organization argued that the city's restriction on the place and time for setting out tables used to sell message-bearing t-shirts emblazoned with slogans amounted to an unconstitutional violation of the First Amendment free speech guarantee.

The Appeals Court, citing the U.S. Supreme Court's holding that a public sidewalk "is a quintessential public forum,"2 quickly moved on to the activity at issue to determine whether it constituted speech, and if so, whether the ordinance in question could validly restrict the activity. The Court relied on an earlier 11th Circuit decision to divine that setting up tables may constitute an attribute of "expressive activity" governed by the First Amendment.3 The final question, therefore, was whether the ordinance at issue met the 'content neutral' and 'time-place-manner' tests articulated by the Supreme Court.

Applying the Supreme Court's 'content-neutral' standard, the 11th Circuit ruled that the Miami Beach ordinance did not restrict expression based on the content thereof. The 11th Circuit then applied the time- place-manner test which requires that any restriction on speech must be narrowly tailored to maintain opportunities to express ideas and opinions in public. Upon review of the Miami Beach ordinance, the court found that the narrow manner in which the restrictions were applied preserved One World's opportunity to express itself in nearby areas, for sufficient time and in a valid manner. As a result, the court upheld the ordinance.
 

The Fort Lauderdale case

In an effort to stem begging in the vicinity of Fort Lauderdale's beaches, the city enacted an ordinance proscribing panhandling along a five mile strip of the beach and adjacent sidewalks. A group of homeless persons challenged the ordinance as a First Amendment violation. The federal district court ruled in favor of the city and the plaintiffs appealed. The 11th Circuit addressed the case in Smith v. City of Fort Lauderdale, Florida.4

Because no challenge was raised as to the 'content-neutrality' of the ordinance, the court addressed the argument regarding the sufficient narrowness of the prohibition. As it did in the One World case, the court found that the area constituted a public forum and proceeded on to the 'content-neutral' and 'time-place- manner' tests. The court found that since the ordinance left the door open for begging in nearby areas and was substantially related to a significant governmental interest outlined in its stated objectives "to eliminate nuisance activity on the beach and provide patrons with a pleasant environment in which to recreate,"5 the rule was sufficiently narrow to survive the First Amendment claim.
 

Endnotes
 

1. 175 F.3d 1282 (11th Cir. 1999).

2. Id. at 1285 (quoting Perry Educ. Ass'n. v. Perry Local Educator's Ass'n, 460 U.S. 37, 45 (1983)).

3. Id. at 1286 (quoting International Caucus of Labor Committees v. Montgomery, 111 F.3d 1548, 1550, 1551-53 (11th Cir. 1997)).

4. 177 F.3d 954 (11th Cir. 1999).

5. Id. at 955-957 (quoting City of Fort Lauderdale Rule 7.5(c)).

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