April 20, 2017
from the United States District Court for the Northern
District of Indiana, Hammond Division. No. 4:16-cv-00043 -
Philip P. Simon, Judge.
Manion and Rovner, Circuit Judges, and Coleman, District
Manion, Circuit Judge.
Higher Society of Indiana, a non-profit advocating for the
legalization of marijuana, wants to hold a rally on the steps
of the Tippecanoe County Courthouse in Lafayette, Indiana.
Under County policy, the group was required to get its event
sponsored by the County Board of Commissioners before it
could take place on the grounds. Since the Commissioners
didn't want to sponsor Higher Society's event, the
County denied the group permission. The organization
successfully sought a preliminary injunction in the district
court, and the County appeals. For the reasons stated below,
we agree with the district court's thorough opinion that
the County's policy likely violates the First Amendment.
Therefore, we affirm the grant of the preliminary injunction.
1999, in response to controversy over a nativity scene on the
courthouse grounds, the Tippecanoe County Board of
Commissioners voted to declare the grounds a "closed
forum." The Board approved a policy, still in effect
today, that provides:
Only displays and events sponsored and prepared by a
department or office of county government will be allowed in
the windows of the Tippecanoe County Office Building or on
the grounds of the Tippecanoe County Courthouse. Said
displays and events shall be scheduled through the Board of
Commissioners of the County of Tippecanoe.
the policy, groups seeking to hold an event on the courthouse
grounds must seek the Board's sponsorship. The County
says that it seeks to sponsor only events that essentially
echo the County's views.
it enacted the closed forum policy, the Board passed a
resolution that permitted the annual 'Round the Fountain
Art Fair to take place on the courthouse
grounds. Consistent with the policy, the County
sponsors the fair, and County Commissioners and the
maintenance department help with preparation and logistics.
In recent years, the Board has also sponsored other events.
One was a rally celebrating the 95th anniversary of the
League of Women Voters in 2015, held just after the close of
business on a weekday with about 100 people in attendance.
The Fraternal Order of Police also held a sponsored event to
pay respects to fallen police officers. That event took place
at lunchtime on a weekday. Finally, the Board has issued a
proclamation for Child Abuse Prevention and Awareness Month
in 2015 and 2016, which included events held at lunchtime on
a weekday each year led by the court-appointed Special
Advocate and the Tippecanoe Child Abuse Prevention Council.
several groups ended up making use of the courthouse grounds
without the County's permission. First, a group known as
Eyes on Lafayette was too late to get authorization for its
planned candlelight vigil against bullying. Despite being
told that it would have to hold the event on the sidewalk,
the group made use of the courthouse steps and more than 50
people attended. Second, about 60 people attended a rally in
support of Planned Parenthood that spilled over onto the
grounds during the day on a Monday in 2015. There was also a
daytime march in support of Syrian refugees during a workday
in 2015 that attracted about 70 people and made some use of
the grounds. And finally a June 2016 rally of the Greater
Lafayette Moms in favor of Gun Sense spilled over onto the
courthouse steps despite not being sponsored.
of a misunderstanding involving a County official, Higher
Society also held an event on the steps during this time.
Someone apparently was under the mistaken belief that Higher
Society's event had been sponsored, and so told the group
it could hold its rally. At the event, speakers used a podium
located on the balcony above the courthouse door and
addressed a crowd of around 40 people. Higher Society also
hung banners from the balcony and used an amplifier until a
Commissioner asked the group to stop.
its first rally, Higher Society sought permission from the
Board to hold a second event on the courthouse steps. The
Board declined to sponsor the event, citing the closed forum
policy and indicating that no Commissioners were interested
in referring the matter to the full Board. Higher Society
then sought a preliminary injunction in the Northern District
of Indiana, which Chief Judge Simon issued on December 19,
2016. Higher Society of Ind., Inc. v. Tippecanoe
Cty., 4:16-CV-00043, 2016 WL 7367791 (N.D. Ind. Dec. 19,
2016). The County timely appealed.