No.
In The
Supreme Court of the United States
Robert A. Neinast,
Petitioner
v.
Board of Trustees of the Columbus Metropolitan
Library, Patrick A. Losinski, and Vonzell Johnson,Respondents
On Petition for a Writ of Certiorari to the United States
Court of Appeals for the Sixth Circuit
PETITION FOR A WRIT OF CERTIORARI
Robert A. Neinast
Pro Se
8617 Ashford Lane
Pickerington, OH 43147
(614) 759-1601
QUESTIONS PRESENTED
Robert Neinast was evicted multiple times from the Columbus Metropolitan Library for using its facilities without shoes. The state, county, and city health departments do not require shoes in public buildings; nor do the Library's own patron regulations have a shoe requirement. The Library does, however, have an eviction procedure for shoeless patrons, labeled "Inappropriate Dress." The questions presented are:
1. Whether a person may be denied access to a First Amendment public forum, in this case a public library, based upon unsupported assertions of harms, particularly when such speculation is clearly a pretext masking general disapproval of an unconventional style of dress.
2. Whether Neinast's liberty interest in his personal appearance, protected by the Due Process Clause of the Fourteenth Amendment, was infringed by the Library.
PARTIES
All parties in this matter are named in the caption.
Patrick A. Losinksi is the current Executive Director of the Columbus Metropolitan Library. He has been substituted in place of Larry D. Black, who was the Executive Director of the Library during the proceedings below. Mr. Black retired on June 28, 2002. Although Mr. Black was originally sued in both his official and personal capacities, he was granted qualified immunity in the District Court opinion; this grant was not appealed. Thus, Mr. Losinski is a party in his official capacity only.
TABLE OF CONTENTS
Questions Presented i Parties ii Table of Contents iii Table of Authorities iv Opinions Below 1 Jurisdiction 1 Constitutional Provisions, Statutes, and Regulations Involved 1 Statement of the Case 2 Reasons for Granting the Petition 7 A. The Court of Appeals Opinion Directly Conflicts with the Framework of Kreimer for Analyzing Public Library Regulations 8 B. The Court of Appeals Opinion Conflicts in Principle with the Standards for Analyzing Time, Place, and Manner Restrictions 11 C. The Circuits are Inconsistent in Analyzing Pretext Under the First Amendment 16 D. The Right of Personal Appearance Has Been Infringed Absent a Legitimate Governmental Interest 18 Conclusion 20 Appendix A (Opinion of Court of Appeals) 1a Appendix B (Opinion of District Court) 20a Appendix C (Denial of Rehearing En Banc) 36a
TABLE OF AUTHORITIES Cases:
Constitution, Statutes, and Regulations:
U.S. Const. Amend. I passim U.S. Const. Amend. XIV passim 36 CFR 504 3 39 CFR 232.1 3 40 U.S.C. §§ 193-193x 3 41 CFR 101-20.3 3 42 U.S.C. § 1983 2 Ohio Revised Code § 3375.40 1 Columbus Metropolitan Library Patron Regulations 2, 3, 6 Miscellaneous:
San Francisco Chronicle, "Footloose in San Francisco," April 3, 1969 19 Edward Tenner, Our Own Devices: The Past and Future of Body Technology (Alfred A. Knopf, New York, 2003) 8
PETITION FOR A WRIT OF CERTIORARI
Petitioner Robert A. Neinast respectfully prays that a writ of certiorari issue to review the decision of the United States Court of Appeals for the Sixth Circuit, entered in the above-entitled proceeding on October 10, 2003.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a-19a) is reported at 346 F.3d 585. The order denying the timely petition for rehearing and for rehearing en banc (App., infra, 36a-37a) is unreported. The memorandum opinion of the district court (App., infra, 20a-35a) is reported at 190 F.Supp.2d 1040.
JURISDICTION
The judgment of the court of appeals was issued on October 10, 2003, and the petition for rehearing and for rehearing en banc was timely filed on October 23, 2003 and denied on December 19, 2003. This Court has jurisdiction over this petition under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS, STATUTES, AND REGULATIONS INVOLVED
The First Amendment to the United States Constitution provides that "Congress shall make no law … abridging the freedom of speech …." The Fourteenth Amendment to the United States Constitution provides that "… nor shall any State deprive any person of life, liberty, or property, without due process of law …."
The Ohio Revised Code § 3375.40 states, in relevant part:
Each board of library trustees … may:
(H) Make and publish rules for the proper operation and management of the free public library and facilities under its jurisdiction, including rules pertaining to the provision of library services to individuals, corporations, or institutions that are not inhabitants of the county; …
The Columbus Metropolitan Library Patron Regulations Policy (approved by the Board of Trustees) states:
The following are prohibited in the Library by either the policies of the Board, or fire or health regulations:
- Smoking in all service areas including meeting rooms and restrooms.
- Eating in public service areas, except for official Library functions. Non-alcoholic beverages in closed containers may be consumed.
- Pets, with the exception of animals serving impaired and/or disabled patrons.
- Loud or abusive language.
- Sleeping.
- Action which is disruptive or distracting to others.
- Making harassing phone calls to staff.
Staff who observe any of these actions should politely ask the patron to stop. …
STATEMENT OF THE CASE
This case was filed as a 42 U.S.C. § 1983 lawsuit in the Franklin County (Ohio) Court of Common Pleas. Defendants removed it to Federal district court pursuant to 28 U.S.C. § 1441(b). The district court had jurisdiction pursuant to 28 U.S.C. § 1331. The Sixth Circuit court of appeals had jurisdiction pursuant to 28 U.S.C. § 1291.
Petitioner Robert Neinast goes barefoot nearly continuously. He has done so at most businesses and state offices, including Wal-Mart, Galyans Sporting Goods store, and Rite-Aid Pharmacy. He has done so in the U.S. Capitol building and the Smithsonian Institute (C.A.App., 60-62). Federal Statutes and Regulations have no prohibition on citizens using Federal facilities barefoot. See, e.g., Post Office Building Regulations, 39 CFR 232.1; Smithsonian Regulations, 36 CFR 504; GSA regulations on Conduct in Federal Buildings, 41 CFR 101-20.3; and regulations for Capitol Buildings and Grounds, 40 U.S.C. §§ 193-193x. There is no evidence of any other governmental unit, state or federal, requiring shoes in its buildings.
In 2000 and early 2001, Neinast, who is a member of the Columbus Metropolitan Library, used the Reynoldsburg branch of the Library barefooted twenty times without being stopped or questioned. He also used the Main Library barefooted nine times during that period. Of those nine times, he was stopped three times by Main Library security and evicted (C.A.App., 63-65). The third time Neinast was additionally evicted from the Library for the remainder of the day and informed that the severity of further evictions would be "progressive." (C.A.App., 75, 76.) At all times Neinast was using the Library for its intended purpose: accessing the materials available there (C.A.App., 64). There is no evidence in the record that his being barefoot disturbed or annoyed any other patrons (C.A.App., 74).
Neinast filed suit against the Library in April, 2001, contending that the evictions violated his First Amendment right to receive the information available in the Library by denying him access, and they violated his liberty interest in his personal appearance.1 All courts that have addressed the issue are in agreement that public libraries are designated (or limited) public forums. See, particularly, Kreimer v. Bureau of Police, 958 F.2d 1242, 1259-60 (3rd Cir. 1992).
Although the Library's Patron Regulations have no prohibition on using the facilities barefoot, the Library has an Eviction Procedure that makes going shoeless a Type 1 infraction: "Inappropriate dress, to include but not limited to: no shirts and no shoes. …." (C.A.App., 86-87.) When Neinast wrote letters to the Board of Trustees, the Executive Director wrote to the Franklin County Prosecutor's Office, asking for "the legal reasons that [the Library] can give for requiring its customers to dress appropriately for a public place." (C.A.App., 94.) However, in defending the suit, the Library advanced the following two rationales for the policy: 1) it protects the health and safety of Library patrons; and 2) it protects the fiscal integrity of the Library by avoiding tort lawsuits for injuries. These rationales were supported by a contemporaneous affidavit from the Executive Director of the Library (C.A.App., 46-47).
On cross-motions for summary judgment by the Library and Neinast, the district court assumed that Neinast had a right of access to the speech in the Library and analyzed the shoe policy under intermediate scrutiny. It granted the Library's motion. In that analysis, it went no further in its examination of the evidence than to say:
"The shoe requirement is a valid, content-neutral regulation that promotes communication of the written word in a safe and sanitary condition. As evidenced by various incident reports, the Library's floor sometimes contains feces, semen, blood, and broken glass, all of which pose a significant danger to barefoot individuals. The Library determined that a blanket prohibition on walking barefoot was a reasonable means of minimizing these dangers." App., infra, 26a.
There was no evidence presented that indicated how feces or the other incidents were a particular danger to barefooted individuals2, or that the Library had a problem regarding injuries to barefooted patrons that needed to be addressed. Furthermore, the district court ignored the fact that there are no health code regulations requiring shoes in public buildings (and the deduction that the lack of such regulations implies no cognizable danger) (C.A.App., 59-60, 66-68, 73). Also ignored was the fact that the Library's insurance policy has no requirement that the Library enforce a shoe policy (and the deduction that the lack of such requirement implies no litigation concern) (C.A.App., 74). The court assumed that the conditions in the Library were dangerous to bare feet and accepted the common myth3 that walking barefoot is dangerous (C.A.App., 59-60, 92-93).
The district court's only mention of the Library's second rationale for the policy was in summing up:
"The Eviction Procedure was used to promote legitimate interests such as the safety of all library patrons and the fiscal integrity of the Library in preventing possible lawsuits." App., infra, 32a.
The court of appeals upheld the grant of summary judgment for the Library. It recognized public libraries as designated public forums but decided that, even though the Library policy was a time, place, and manner restriction, intermediate scrutiny was not appropriate and the rational basis standard was applied. The court said:
"While the Library regulation at issue in this case is also content-neutral, it does not directly impact the right to receive information. Therefore, applying the heightened scrutiny standard of Ward [v. Rock Against Racism, 491 U.S. 781] to the Library regulation is not appropriate." App., infra, 8a.
However, the court of appeals went on to say that the shoe policy would also survive heightened scrutiny. The court did a more extensive analysis of the incident reports of purported hazards. These reports spanned the period from December, 1996, through August, 2001, a period of about 4½ years. There were 99 such incident reports, which covered all 22 of the Library's locations (C.A.App. 123-313). The court of appeals identified 26 incidents of interest as being relevant to the case (the remaining incidents were such things as slip-and-falls on ice in a library parking lot). App., infra, 11a-14a. This amounts to 0.26 incidents per location per year. These incidents related to feces, urine, blood, vomit, and the two incidents already mentioned, supra, 5, fn. 2. There was also an incident in which a boy at storytime scraped his arm on a staple on the floor, but there is no Library Regulation preventing children from playing on the floor (C.A.App., 130, 260, 314-327). Again there was no evidence presented that indicated how feces or the other incidents were a particular danger to barefooted individuals, or that the Library had a problem regarding injuries to barefooted patrons that needed to be addressed. The court of appeals nonetheless concluded, "The Board thus has demonstrated the existence of a significant health and safety risk to individual barefooted patrons." App., infra, 12a.
Regarding the Library's second rationale for the shoe policy, Appellant's Brief did not even argue that issue. However, the court of appeals identified "the expense of litigation" as "a legitimate governmental interest," likened any injury to a barefooted patron to that which might occur to a motorcycle rider riding without a helmet, App., infra, 12a, and concluded:
"Similarly, in this case barefoot patrons of the Library who are injured as a result of the hazards previously described impose costs on the general public. For these reasons, we conclude that the Board has demonstrated a significant governmental interest in requiring that patrons of the Library wear shoes." App., infra, 13a.
No evidence or estimate of those costs was presented. No case of a barefooted customer of any business suing that business was cited.
The court of appeals also addressed Neinast's claim of pretext by the Library. Although the court acknowledged the Library's previous focus on proper attire, the change in the governmental interest reflected in the affidavit that the Executive Director prepared for the lawsuit was considered acceptable, because, "Neither the district court nor this court manufactured these reasons." App., infra, 11a, fn. 2.
Regarding Neinast's personal appearance liberty interest claim, both courts analyzed it using the rational basis standard. Since the policy was deemed to have survived intermediate scrutiny, it also necessarily survived the rational basis standard.
REASONS FOR GRANTING THE PETITION
The court of appeals has fashioned a "we disapprove" exception to the First Amendment. The method by which the court has done so is in conflict with other Circuits in three ways:
A. The decision directly conflicts with the framework of Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992) for analyzing public library regulations.
B. The decision conflicts in general with other Circuits' method of analyzing various time, place, and manner restrictions. There is confusion in determining harms, in determining what level of speculation is allowed, and in determining what evidence is sufficient.
C. The decision conflicts in general with other Circuits' acceptance of pretextual and post hoc rationalizations under First Amendment scrutiny and excuses the restriction of speech under the ruse of a dress code.
This case presents an important constitutional question regarding access to First Amendment public forums, and whether what "everybody knows," when such knowledge is simply a common myth, is sufficient justification to deny access to a public forum without further examination. This Court's review is therefore warranted.
A. The Court of Appeals Opinion Directly Conflicts with the Framework of Kreimer for Analyzing Public Library Regulations
In Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992), the Third Circuit set up the framework that has been used ever since in analyzing public library conduct regulations. All courts that have heard the issue, including the Sixth Circuit, have agreed that the right to receive speech is co-equal with the right to make speech ("If there is a right to advertise, there is a reciprocal right to receive the advertising …." Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 757 (1976)), and that public libraries are designated (or limited) public forums dedicated to the receipt of the speech available therein. Kreimer, 958 F.2d at 1255, 1260.
The analysis in Kreimer is thorough and compelling: regulations regarding patron behavior when the patron is not using the library for its intended purpose (such as sleeping or harassing library staff) need only be reasonable and follow the rational basis standard; regulations regarding patron behavior while the patrons are engaged in using the library for its intended purpose (receiving speech by accessing Library materials) are subject to the stricter intermediate standard of review required for time, place, and manner restrictions, since otherwise the regulation "would require the expulsion of a patron who might otherwise be peacefully engaged in permissible First Amendment activities within the purpose for which the Library was opened, such as reading, writing or quiet contemplation." Kreimer, 958 F.2d at 1264. In the instant case, Neinast was clearly using the Library for its intended purpose.
The influence of Kreimer is demonstrated by the other library cases that have endorsed and applied that framework: Mainstream Loudoun v. Bd. of Trustees of the Loudoun Cty. Library, 24 F.Supp.2d 552 (E.D.Va. 1998); Armstrong v. District of Columbia Public Library, 154 F.Supp.2d 67 (D.D.C. 2001); Wayfield v. Town of Tisbury, 925 F.Supp. 880 (D.Mass. 1996); Brinkmeier v. City of Freeport, 1993 U.S. Dist. LEXIS 9255, 1993 WL 248201 (N.D. Ill. 1993). These cases were not even appealed, almost assuredly due to their obvious correctness in their application of the Kreimer decision.
The principal holding of the Sixth Circuit in the instant case is that the time, place, and manner analysis in Ward v. Rock Against Racism, 491 U.S. 781 (1989) does not apply to a library regulation restricting access by patrons, since "it does not directly impact the right to receive information," and that "[t]herefore, applying the heightened scrutiny standard of Ward to the Library regulation is not appropriate." It is not clear how it can be claimed that preventing a patron from using the Library "does not directly impact the right to receive information." Nonetheless, this holding directly conflicts with the Kreimer framework, and throws the previously settled state of the law regarding libraries into confusion. This is a recurring national issue; the Kreimer decision can no longer be relied on by other courts.
This reduction in scrutiny for particular time, place, and manner restrictions is unique to the Sixth Circuit,4 and does not agree with this Court's precedent. However, the confusion in the Circuits regarding time, place, and manner restrictions that limit access to First Amendment public forums is not limited to Library cases. In Weinberg v. City of Chicago, 310 F.3d 1029 (7th Cir. 2002), an ordinance restricting the sale of books outside Chicago's United Center arena was found to be an impermissible prior restraint on free speech. The confusion is found in the dissent to the denial of a rehearing en banc, in which Judge Easterbrook wrote:
"This case presents the question whether the first amendment (applied to the states by the fourteenth) requires state and local governments to make speech exceptions to laws regulating conduct-here, the sale of merchandise. … Whether governments must make speech exceptions to neutral statutes is an important and recurring question, here and in other circuits … Why can't peddling-control ordinances cover sales of literature? Economic laws of general application are valid if supported by any rational basis, and the government receives the benefit of all plausible inferences." Weinberg v. City of Chicago, 320 F.3d 682, 683-84 (7th Cir. 2003).
In another case involving the right of access to receive speech, Potts v. City Of Lafayette, Indiana, 121 F.3d 1106 (7th Cir. 1997), intermediate scrutiny was applied to the time, place, and manner restriction on attending a Ku Klux Klan rally. There was no finding that this access restriction did not "directly impact the right to receive information," nor that the rational basis standard applied.
This Court is warranted in stepping in to protect and clarify, not only the right of access to public libraries, but also the general right of access to First Amendment public forums.
B. The Court of Appeals Opinion Conflicts in Principle with the Standards for Analyzing Time, Place, and Manner Restrictions
After stating its principal holding, the court of appeals went on to say that, if intermediate scrutiny were applied, the Library policy would survive it. However, the standards by which the court of appeals applied intermediate scrutiny to the policy conflict in many respects with the other Circuits and with this Court.
Under Supreme Court precedent for intermediate scrutiny "[w]hen the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms … [i]t must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way," Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994). Furthermore, "[w]hen the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions," United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 816 (2000); "[t]his burden is not satisfied by mere speculation or conjecture," Edenfield v. Fane, 507 U.S. 761, 770 (1993); and "a 'reasonable' burden on expression requires a justification far stronger than mere speculation about serious harms," United States v. National Treasury Employees Union, 513 U.S. 454, 475 (1995). Although briefed, the court of appeals simply ignored this precedent.
These standards are sporadically applied throughout the Circuits. For instance, the Kreimer court applied them scrupulously: there was clear and strong evidence that Richard Kreimer's odor disturbed other patrons and that Kreimer stalked or stared at library employees, preventing them from doing their work.5 However, in Potts, 121 F.3d at 1111, there was no evidence that small tape recorders presented any more danger than other allowed items, or were any less dangerous in the hands of official press. ("[Potts] argues that the City itself did not view tape recorders as dangerous, [since] it allowed members of the media to enter the rally with [them]. Potts further points out that the City permitted individuals to take in … items which present no less danger than a micro cassette recorder.") Speculation on the danger of micro cassette recorders was deemed sufficient for this restriction on access to the public forum.
In Weinberg, 310 F.3d at 1038, speculation on the dangers of congestion at the United Center was not accepted:
"In the context of a First Amendment challenge under the narrowly tailored test, the government has the burden of showing that there is evidence supporting its proffered justification. The City contends that because there is heavy traffic around the United Center, safety concerns justify the ordinance. On its face, this contention is hard to dispute. However, First Amendment rights demand more than mere facial assertions. It is true that the government may rely upon its own "real-world experience" in enacting regulations, but the City cannot blindly invoke safety and congestion concerns without more." [Citations omitted.]
Furthermore, that court went on to say:
"The City of Chicago has provided no objective evidence that traffic flow on the sidewalk or street is disrupted when Mr. Weinberg sells his book. The City offered no empirical studies, no police records, no reported injuries, nor evidence of any lawsuits filed. … [T]he only evidence the City offered was based on speculation as to what might happen if booksellers could sell their books and the cumulative effect this might have on pedestrian traffic." Weinberg, 310 F.3d at 1039.
In leafletting cases, which also address the right of access to public forums, the courts have carefully examined the claims that such leafletting presented danger of traffic congestion, safety, sanitation or security, and found such claims unsupported and speculative. See, e.g., Lederman v. United States, 291 F.3d 36, 43, 44 (D.C.Cir. 2002) ("If people entering and leaving the Capitol can avoid running headlong into tourists, joggers, dogs, and strollers-which the Government apparently concedes, as it has not closed the sidewalk to such activities-then we assume they are also capable of circumnavigating the occasional protester.") ("We 'closely scrutinize' challenged speech restrictions 'to determine if [they] indeed promote[ ] the Government's purposes in more than a speculative way.'"); Jews for Jesus Inc. v. Massachusetts Bay Transportation Authority, 984 F.2d 1319, 1325 (1st Cir. 1993) ("The record, moreover, does not support the Authority's fears. … We therefore affirm the district court's determination that the evidence did not demonstrate a causal connection between leafletting and litter-related safety problems."); Paulsen v. County of Nassau, 925 F.2d 65, 71 (2nd Cir. 1991) ("Though appellants raise legitimate concerns that unrestrained leafletting may pose substantial safety hazards, they have in the past permitted the distribution of advertisements related to Coliseum events. We take this as a strong indication that, for the right price, the dangers asserted are not unduly grave." (emphasis added)).
In the instant case, the Library presented, and the court of appeals approved of, evidence that, on rare occasions, feces, urine, or vomit might be on its floors. But there is no evidence presented that these present any sort of danger to a barefooted patron. The Library could easily have presented an affidavit from the Columbus Board of Health that such a danger existed, except, of course, for the fact that the Board of Health recognizes no such danger, as evidenced by its lack of regulation of bare feet in public buildings. The court of appeals approved of a staple on the floor as a cognizable danger to barefooted patrons, yet ignored the fact that the boy injured was injured on his arm6 lying on the floor during a storytelling period, and ignored the fact that the Library has no regulation preventing children from being on those floors. This is a strong indication that, as long as it does not involve the disapproval of bare feet, "the dangers asserted are not unduly grave." Even the two foot injuries presented, supra, 5, fn. 2, had nothing to do with being barefooted. Other government buildings might be expected to occasionally have similar conditions, yet none of them have a similar shoe policy limiting patron access.7 Supra, 2-3. The court of appeals approved the policy based on mere speculation and ignored the evidence contrary to that speculation.
The court of appeals also cited a fear of unjustified8 lawsuits as an acceptable rationale for the shoe policy. However, nothing was presented to show that barefooted patrons are wont to be injured and sue.9 Out of the vast array of tort actions that might be possible in the Library, the Library singled out bare feet, not because of some special problem the Library was having, but because bare feet were deemed "inappropriate dress". Most egregiously, the court of appeals did not even identify this governmental interest as substantial, as required for intermediate scrutiny ("Avoiding the expense of litigation is a legitimate governmental interest", App., infra, 12a (emphasis added)).
The language of the Library, as approved by the court of appeals, was even speculative: "may be harmed," "could have suffered injuries," "potential claims," and "could have prevented." App., infra, 10a. In fact, there was simply no evidence that the Library was having any sort of problem at all with barefooted patrons being injured, or that there was any sort of problem that needed to be addressed by this shoe policy. The Library, supported by the court of appeals, targeted bare feet for its disapproval as "inappropriate dress."
The Circuits are simply inconsistent when it comes to applying the standards of intermediate scrutiny to accessing public forums, and require guidance from this Court. If the instant case is allowed to stand, the unpopular can be excluded from attending events at public forums on the whim of public officials. For instance, attendance at rallies could be predicated on the attendees wearing white shirts and ties, based on the speculation of violence, and that being dressed nicely would reduce that violence. Exclusion would be based on how clever the public officials were in their speculations.
Finally, the court of appeals departed from this Court's precedent regarding summary judgment. The evidence regarding supposed dangers, the lack of Health Department regulations, the lack of insurance requirements, and the lack of lawsuits from barefoot injuries should have been interpreted in Neinast's favor, but this was not done. Such a departure from clear precedent, particularly as it involves limiting free speech on the pretense of regulating an unpopular mode of dress, justifies this Court's intervention and supervision.
C. The Circuits are Inconsistent in Analyzing Pretext Under the First Amendment
It is clear from the record that bare feet were banned in the Library because they were considered "inappropriate dress,"10 and that the safety and lawsuit justifications were mere pretext. The court of appeals acknowledged that there was "some evidence" of pretext, but explained that that rationale was acceptable, since it was the Library, not the court itself, that had manufactured the pretext. App., infra, 11a, fn. 2.
The issue of pretext, even under the weaker "reasonableness" standard for non-public forums, is also an area in which the Circuits are in conflict. In rejecting the acceptance of pretext regarding newsracks in airports, the Fourth Circuit said, "The district court did not err in determining that the governmental interests asserted as justification for the ban were post hoc, pretextual creations, which were not shown to have been significantly threatened by the conduct banned." Multimedia Publishing Co. v. Greenville-Spartanburg Airport District, 991 F.2d 154, 162 (4th Cir. 1993). While accepting pretext in Grossbaum v. Indianapolis-Marion County Building Authority, 100 F.3d 1287 (7th Cir. 1996), the Seventh Circuit also said, "Our holding today is expressly limited to speech regulations in nonpublic fora. We express no opinion on the harder issue of whether motive is relevant in public forum cases." Id., at 1299, fn. 11. The Eighth Circuit, acknowledging the impropriety of using pretext, said, "The district court concluded that this rationale [(bomb concealment in a newsrack)] was mere pretext because the terminal has many other places where a bomb could be hidden, …" Jacobsen v. City of Rapid City, 128 F.3d 660, 663 (8th Cir. 1997). However, the court placed the burden on Jacobsen to come forth with concrete evidence of the impact on him of the newsrack ban. This prompted a dissent: "I dissent from Part II for the reason that it places the burden on Jacobsen with respect to the City's policy restricting his speech." Jacobsen, 128 F.3d at 665 (Gibson, J., concurring in part and dissenting in part.)
This Court has obliquely addressed the issue in Watchtower Bible & Tract Society of New York, et al. v. City of Stratton, et al., 536 U.S. 150, 170 (2002), saying,
"In the intermediate scrutiny context, the Court ordinarily does not supply reasons the legislative body has not given. Cf. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 816 (2000) ('When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions' (emphasis added))…. It does mean that we expect a government to give its real reasons for passing an ordinance." (Breyer, J., concurring) (Italic emphasis in the original; boldfaced emphasis added).
It is important for this Court to resolve and clarify this issue, for burdensome restrictions on speech now depend on the creativity of the government in manufacturing pretextual and post hoc justifications, and the government's reliance on common myth.
D. The Right of Personal Appearance Has Been Infringed Absent a Legitimate Governmental Interest
This case also presents issues regarding the liberty interest right of personal appearance. In Kelley v. Johnson, 425 U.S. 238 (1976), this Court upheld the right of a police department to determine the dress of its officers. However, this Court also said:
"Certainly its language cannot be taken to suggest that the claim of a member of a uniformed civilian service based on the 'liberty' interest protected by the Fourteenth Amendment must necessarily be treated for constitutional purposes the same as a similar claim by a member of the general public." Kelley, 425 U.S. at 248-49.
The instant case treated a similar claim by a member of the general public the same as that for a member of the uniformed civilian service. This is similar to the way the 11th Circuit dealt with an ordinance requiring shirts to be worn on public streets. DeWeese v. Town of Palm Beach, 812 F.2d 1365 (11th Cir. 1987). However, using the rational basis test, the DeWeese court overturned the ordinance, finding the proffered justification was not related to a legitimate legislative goal.
There is no legitimate governmental interest in this case. The district court and the court of appeals have greatly enlarged the sphere of governmental interest in the public health and safety by allowing a regulation solely to protect a person from himself. Such an interest has never before been deemed legitimate. Even when motorcycle helmet regulations have been upheld, it has been on the basis that the massive head injuries that have resulted place a significant burden on the common weal. It is difficult to see how, for instance, the staple incident, which required a 23¢ band-aid, places any burden at all on the public. This is reflected in an April 3, 1969, San Francisco Chronicle article (C.A.App., 79), in which the City Attorney Thomas M. O'Connor "pointed out that no law could be adopted to protect barefoot persons from the dangers of street and sidewalk, but only to protect the general public from disease or injury." The rationale that the court of appeals used applies equally well to public streets or even to a public beach, yet no other type of governmental entity requires shoes, either indoors or outdoors. If such a rationale is acceptable, then the Town of Palm Beach in DeWeese, supra, could have rescued the constitutionality of its ordinance requiring shirts simply by advancing the pretext that the ordinance protected the citizens from sunburn, mosquito bites, and any diseases transmitted by mosquitoes; and that it furthermore protected the Town from unjustified lawsuits filed by sunburned citizens.
In Miller v. School District No. 167, 495 F.2d 658, 664 fn. 25 (7th Cir. 1974), then Judge, now Justice, Stevens, wrote:
"We do not have a case in which the sovereign insists that every citizen must wear a brown shirt to demonstrate his patriotism. Fortunately, intervention of the federal judiciary has not been required during the brief history of our Republic in order to avoid intolerable instances of required conformity like that following the Manchus' invasion of China in 1644, or the official prohibition of beards during the reign of Peter the Great."
Or, these days, we might add the Taliban, or the French regarding Muslim head scarves. Yet here we have the government, using unsupported safety concerns as a pretext for its feelings that bare feet are "inappropriate dress," insisting that shoes be worn instead of leaving it to the citizens to weigh for themselves the risks and benefits of their clothing choices.
This unwarranted expansion of governmental power warrants this Court's supervision.
CONCLUSION
The petition for a writ of certiorari should be granted. The Court may wish to consider summary reversal of the court of appeal's judgment.
Respectfully submitted.
Robert A. Neinast
Petitioner, Pro Se
8617 Ashford Lane
Pickerington, OH 43147
(614) 759-1601
March 2004
Footnotes:
1. He also claimed a violation of the First Amendment in that his bare feet were conveying a message; and a due process violation in the way the eviction procedure was carried out. These claims are no longer part of this action. [Back]
2. For instance, while there was one case of a barefoot little girl getting the top of her toe scraped by an opening door, if she had been wearing sandals, the same injury would have resulted. The paramedics that were called to the scene called the injury "not serious." There was a similar incident in which a fully shod woman nearly broke her foot from such a misaligned door. (C.A.App., 297, 301.) [Back]
3. One billion people worldwide live barefoot without difficulty. Edward Tenner, Our Own Devices: The Past and Future of Body Technology (Alfred A. Knopf, New York, 2003), p. 53. [Back]
4. The Sixth Circuit is not even consistent with itself. In Grider v. Abramson, 180 F.3d 739 (6th Cir. 1997), restrictions on access to receive the speech at a Ku Klux Klan rally were subject to strict scrutiny (while the restriction was considered a time, place, and manner restriction, it was analyzed under strict scrutiny instead of intermediate scrutiny because of anticipated listener reaction to the content of the speech). [Back]
5. In the instant case the court of appeals correctly recognized that the Kreimer court’s comments regarding the footwear rule were dicta, since that issue was not before the court. No analysis of the rule was performed. App., infra, 9a. [Back]
6. The incident was resolved by placing a band-aid on the boy’s arm. A similar resolution would suffice for a barefooted patron. [Back]
7. There was no suggestion that libraries contain some unique hazard differentiating them from other governmental entities, which hazard might justify a requirement of mandatory safety equipment (shoes). [Back]
8. Unjustified since, under Ohio law, a library patron is a licensee, and the Library need only "refrain from wanton and willful conduct" that might injure the patron. Fuehrer v. Westerville City School Dist. Bd. of Edn., 61 Ohio St.3d 201, 204, 574 N.E.2d 448, 450 (1991). No evidence was presented that the Library was so lax. Furthermore, the principle of "assumption of the risk" would likely apply. [Back]
9. For a barefooted injury inside a publicly accessible building (not a pool or spa), a search on Lexis-Nexis finds only Anderson v. Racetrac Petroleum, Inc., 296 S.C. 204, 371 S.E.2d 530 (S.C. 1988). Even an annotated report, "Duty and liability respecting condition of store or shop", from 1936, a time when folks went barefooted more frequently, contains not a single reference to a barefooted injury. 100 A.L.R. 710. However, published opinions are replete with instances of lawsuits in which the choice of shoe is implicated in an injury. See, e.g. — Heels: Blumberg v. M. & T. Inc., 34 Cal.2d 226, 209 P.2d 1 (Cal. 1949); Burns v. Schnuck Markets, 719 S.W.2d 499 (Mo.App.Div.3 1986); Jones v. Hyatt Corporation of Del., 681 So.2d 381 (La.App.4.Cir. 1995). Worn-down shoes: Harsha v. Renfro Drug Co., 77 S.W.2d 584 (Tex.Civ.App. 1934). Golf shoes: Beauchamp v. Los Gatos Golf Course, 273 Cal.App.2d 20, 77 Cal.Rptr. 914 (Cal.App.Dist.1 1969); Bezozo v. Town of Hempstead, 686 N.Y.S.2d 489 (N.Y.App.Div. 1999). Platform shoes: Brown v. McDonald's Corp., 428 So.2d 560 (La.App.4.Cir. 1983); Johnson v. City of Chicago, 431 N.E.2d 1105, 103 Ill. App.3d 646 (Ill.App.1 1981). Flip-flops: Love v. The Waterbed Sleep Shoppe, 652 So.2d 650 (La.App.1.Cir. 1995); Estes v. Wal-Mart Stores, Inc., 800 So.2d 1018 (La.App.5.Cir. 2001). Based on these, and a plethora of other similar lawsuits, the Library would have stood on firmer ground if it had chosen to ban high-heels, worn-down shoes, golf shoes, platform shoes, and flip-flops. However, if the Library had denied access by singling out high-heels, it is unlikely the courts would have accepted speculation about supposed dangers or accepted a liability rationale. [Back]
10. Yet sandals or flip-flops, which expose just as much of the foot, are considered acceptable. [Back]
