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Case 3:13-cv-01479-P Document 12 Filed 04/19/13 Page 4 of 12 PageID 103 merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) the grant of the injunction will not disserve the public interest.” Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011) (citing Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009)). “A preliminary injunction is an extraordinary remedy.” La Union del Pueblo Entero v. FEMA, 608 F.3d 217, 219 (5th Cir. 2010). “The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). Thus, “a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.” Id. The Court may accept otherwise inadmissible evidence, including hearsay evidence, “in the form of deposition transcripts and affidavits.” Sierra Club, Lone Star Chapter v. F.D.I.C., 992 F.2d 545, 551 (5th Cir. 1993). Order 3:13-CV-1479-P Page 4 of 12 A. Success on the Merits Government Interest Regardless of whether the Ordinance is content-based or content-neutral, the City must demonstrate that it has some meaningful interest in more stringent regulation of traffic at or near the sidewalk of Expressway Tower. Courts use varying standards in evaluating the propriety of government regulation of free speech. The most demanding standard of review is known as strict scrutiny, whereupon the government must demonstrate that “the restriction [is] narrowly tailored to serve a compelling government interest.” Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, --U.S.--, 130 S.Ct. 2971, 2984 n. 11 (2010) (emphasis added). Where a regulation is content-neutral and restricts the time, place, and manner of speech, courts apply intermediate scrutiny, which requires the government to
Case 3:13-cv-01479-P Document 12 Filed 04/19/13 Page 5 of 12 PageID 104 demonstrate that the regulation (1) serves a significant governmental interest, (2) is narrowly tailored to achieve that interest, and (3) leaves open ample alternative channels of communication. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (emphasis added) (citing Clark v. Cmty. for Creative Non–Violence, 468 U.S. 288, 293 (1984)); Consol. Edison Co. of N.Y. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 530, 535–36 (1980). Considering the available tests, a showing of only a minimal government interest will not withstand a challenge on First Amendment grounds. See e.g. Bd. of Airport Comm'rs v. Jews for Jesus, 482 U.S. 569, 575 (1987); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 502 (1981) (plurality opinion); Stay the Course W. Va. v. Tennant, No. 1:12-CV-01658, 2012 U.S. Dist. LEXIS 112147, at *17- 18 (S.D. W. Va. Aug. 9, 2012). Under the facts of this case, the interest articulated by the City would have to be either compelling or significant. Based upon the evidence submitted at the preliminary injunction hearing, there is inadequate evidence of either a significant government interest or a compelling government interest in more rigorous signage regulation at the specific area where Plaintiffs seek to protest. Order 3:13-CV-1479-P Page 5 of 12 Upon considering the evidence presented at the preliminary injunction hearing, the Court finds that the City has failed to demonstrate any need to regulate signs and other displays at or near the proposed protest venue as strictly as outlined in the Ordinance. In its most general, abstract form, the Ordinance serves the interest of the City in ensuring traffic safety. Metromedia, Inc., 453 U.S. at 507–08 (describing traffic safety as one of a municipalities “substantial governmental goals”). This interest would be especially important along traditionally-defined multi-lane highways, which involve motorists traveling at a high rate of speed, in frequently changing lanes, entering, or exiting the roadway. However, the City has failed to adequately and particularly demonstrate that the traffic along the service road near the
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