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Indiana v. Tippecanoe County, Indiana

United States Court of Appeals, Seventh Circuit

June 7, 2017

Higher Society of Indiana, Plaintiff-Appellee,
v.
Tippecanoe County, Indiana, Defendant-Appellant.

          Argued April 20, 2017

         Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 4:16-cv-00043 - Philip P. Simon, Judge.

          Before Manion and Rovner, Circuit Judges, and Coleman, District Judge [*]

          Manion, Circuit Judge.

         The 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.

         I. Background

         In 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.

         Under 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.

         After 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.[1] 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.

         However, 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.

         Because 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.

         After 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.

         II. ...


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