Dickinson v. Brown et al, No. 2:2017cv00868 - Document 19 (W.D. Wash. 2017)
Court Description: ORDER denying plaintiff's 5 Motion for Preliminary Injunction, signed by Judge Robert S. Lasnik. (SWT)
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Dickinson v. Brown et al Doc. 19 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 CHRISTOPHER DICKINSON, Case No. C17-868RSL 10 Plaintiff, 11 v. 12 13 WARREN BROWN, et al., Defendants. 14 15 ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION This matter comes before the Court on “Plaintiff’s Motion for Preliminary Injunction.” 16 Dkt. # 5. After considering the parties’ memoranda and the record before the Court, plaintiff’s 17 motion for a preliminary injunction is DENIED. I. 18 19 BACKGROUND Though this case evokes expressive and religious freedoms rooted in the Constitution, it 20 essentially arises out of a disagreement over the loudness at which a person’s voice becomes 21 disruptive. Plaintiff Chris Dickinson went to a courtyard on the campus of North Seattle College 22 (“the College”) to preach, but after at least one complaint, he was forced to leave when school 23 security determined he was preaching so loudly that it was disrupting campus educational 24 activities. 25 Plaintiff presents a sure-fire winning case wherein his speech about his religious views, 26 presented in an open forum on campus, was shut down and prohibited by one anonymous 27 complaint, which led the College to banish plaintiff and his viewpoint from its campus forever. 28 ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION - 1 Dockets.Justia.com 1 However, there is another side to the story. That includes declarations from two College 2 employees and two College security officers that say plaintiff was speaking so loudly that it 3 disrupted campus educational activities, that he was warned several times to lower his voice, and 4 only when he refused to do so was he told he had to leave or he would be removed from the 5 campus. 6 Although the Court declines to grant Mr. Dickinson’s motion, the Court sees a different 7 picture than the all-or-nothing circumstances portrayed in the complaint and this motion’s 8 briefing. Surely there is a time and manner for preaching in the campus courtyard that can 9 satisfy Mr. Dickinson’s desire to spread his message without disrupting campus educational 10 activities. The College’s security director indicates Mr. Dickinson could be allowed back, and 11 Mr. Dickinson’s filings repeatedly state he does not seek to be disruptive. Unless the parties are 12 determined to litigate a dispute that is more or less about noise, the Court encourages them to 13 confer and explore solutions for allowing Mr. Dickinson to preach on campus in a nondisruptive 14 way. The Court is willing to arrange a settlement conference between the parties using a United 15 States Magistrate Judge as a neutral facilitator. The parties should confer and decide if they want 16 to pursue this avenue toward resolution. 17 A. State and College Policies 18 Before exploring the dispute that gave rise to this case, the Court will briefly summarize 19 the relevant state and College policies covering disruptive activities on campus. Disrupting 20 campus educational activities violates state and College policies on facility use—policies that 21 also seek to accommodate noncollege groups’ First Amendment activities. Chapter 132F-142 of 22 the Washington Administrative Code, titled “Use of Facilities for First Amendment Activities,” 23 begins with a statement of purpose that reads in part: 24 25 26 27 28 The public character of the colleges does not grant to individuals the right to substantially interfere with, or otherwise disrupt the normal activities for and to which the colleges’ facilities and grounds are dedicated. Accordingly, the colleges are designated public forums opened for the purposes recited herein and further subject to the time, place, and manner provisions set forth in these rules. The purpose of the time, place and manner regulations set forth in this policy is to establish procedures and reasonable controls for the use of college facilities for ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION - 2 1 2 3 4 5 6 7 8 9 10 11 12 both college and noncollege groups. It is intended to balance the colleges’ responsibility to fulfill their mission as state educational institutions of Washington with the interests of college groups and noncollege groups who are interested in using the campus for purposes of constitutionally protected speech, assembly or expression. Wash. Admin. Code. § 132F-142-030. The chapter goes on to outline certain limitations on facility use, including the following rules concerning noise and disruption: (2) Any sound amplification device may only be used at a volume which does not disrupt or disturb the normal use of classrooms, offices or laboratories, or any previously scheduled college activity. ... (7) The activity must not substantially interfere with educational activities inside or outside any college building or otherwise prevent the college from fulfilling its mission and achieving its primary purpose of providing an education to its students. The activity must not substantially infringe on the rights and privileges of college students, employees or invitees to the college. 13 Wash. Admin. Code § 132F-142-040. 14 The Seattle Colleges, which include North Seattle College and three others, have adopted 15 a policy echoing those provisions. The policy, titled “Use of Seattle College District Facilities 16 by College Groups and Non-College Groups for First Amendment Activities,” outlines the 17 following rule: 18 19 20 21 22 23 24 25 26 27 The public character of the district does not grant to individuals an unlimited license to engage in activity which limits, interferes with, or otherwise disrupts the normal activities for and to which the college’s buildings, facilities and grounds are dedicated and said buildings, facilities and grounds are not available for unrestricted use by non-college groups. . . . It is intended to balance the district’s responsibility to fulfill its mission as a state educational institution of Washington with the interests of non-college groups or college groups who are interested in using the campus for purposes of constitutionally protected speech, assembly or expression. Seattle College District Policy No. 270. If persons who are not students, faculty, or staff violate any College policy, the violator “will be advised of the specific nature of the violation, and if they persist in the violation, they will be requested . . . to leave the college property.” Wash. Admin. Code § 132F-136-050(1). In 28 ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION - 3 1 those cases, the request to leave is treated as a revocation of permission to be on campus, and 2 reentry subjects the person to arrest under state and municipal trespass provisions. Id. 3 If a person is trespassed, there are procedures for appeal. With the College, they may 4 petition for review within ten days, and the administration’s subsequent decision constitutes the 5 College’s final decision. Id. § 132F-136-050(3). That final decision is then reviewable in state 6 court under Washington’s Administrative Procedure Act, RCW 34.05.514(2) (“For proceedings 7 involving institutions of higher education, the petition [for review] shall be filed either in the 8 county in which the principal office of the institution involved is located or in the county of an 9 institution’s campus if the action involves such campus.”). 10 B. Facts 11 This case stems from events on the afternoon of Monday, October 3, 2016, when Chris 12 Dickinson, a Christian whose faith moves him to evangelize about his beliefs, went to North 13 Seattle College to preach his message. He checked in with campus security, and proceeded to 14 the campus courtyard. The campus is condensed with relatively little space between buildings, 15 and the courtyard is located more or less in the middle of the academic and administrative 16 buildings. The adjacent buildings include the library and other buildings where classes meet, 17 where students study, and where College employees work. On the day Mr. Dickinson came to 18 campus, fall quarter classes were in session. In the courtyard, there is a sign that reads “First 19 Amendment Activities” and designates the courtyard as an area where people, including 20 nonstudents, can express their opinions. 21 The parties agree that Mr. Dickinson started preaching in the courtyard sometime after 22 noon; that security personnel related a student complaint and spoke to Mr. Dickinson several 23 times about his tone and volume being disruptively loud; that he was offered the options of 24 speaking to bystanders one-on-one or handing out literature instead; and that security ultimately 25 asked him to leave and escorted him from the property. The security personnel with whom Mr. 26 Dickinson interacted were Darryl Johnson, Director of Campus Security, and Alex Maldonado, 27 a campus security officer. 28 ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION - 4 1 Mr. Dickinson’s account suggests he was not given the option of preaching more quietly, 2 and that in Mr. Dickinson’s first interaction with security, Director Johnson said he could only 3 speak to people individually or hand out literature. Director Johnson and Mr. Maldonado both 4 report independently asking Mr. Dickinson to keep his voice down so as not to disrupt College 5 activities. Director Johnson recounts that he first asked Mr. Dickinson to keep his voice down 6 after hearing him preaching loudly. Mr. Maldonado recounts asking Mr. Dickinson to keep his 7 voice down after a female student complained of a man who “was loud, being aggressive[,] and 8 making her feel uncomfortable.” Maldonado Aff., Dkt. # 12-4 ¶ 3. Director Johnson and Mr. 9 Maldonado both recount that it was only after multiple warnings that Director Johnson told Mr. 10 Dickinson he could not preach in that fashion and ultimately asked him to leave. See id. ¶ 4 11 (“Dickinson kept speaking loudly to the extent that it disrupted normal activities of the campus 12 and he would cease and comply temporarily, but then always resume preaching loudly.”). 13 The parties’ chief disagreement, however, is over the volume of Mr. Dickinson’s voice 14 and whether he was being disruptive. Mr. Dickinson recounts that he was “preaching with [his] 15 natural voice . . . [and] only sp[eaking] loud enough to be heard by those in the outdoor 16 courtyard.” Dickinson Aff., Dkt. # 5-1 ¶ 23. Mr. Dickinson clearly did not perceive the 17 preaching as loud or disruptive. 1 Harley Kim McCoy, a student in the courtyard that day, 18 likewise did not perceive the preaching as “overly loud” or disruptive. McCoy Aff., Dkt. # 5-5 19 ¶¶ 23, 51, 74. 20 Director Johnson, Mr. Maldonado, and two other College employees describe Mr. 21 Dickinson’s volume differently. Director Johnson and Mr. Maldonado recall hearing Mr. 22 Dickinson from the campus security office, which is about 150 feet from the courtyard and 23 separated by columns and trees. Director Johnson describes Mr. Dickinson as “yelling loudly” 24 1 See Dickinson Aff. ¶ 25 (“I was not loud. I was not shouting.”); id. ¶ 29 (“I was not loud. I was only 25 speaking loud enough to be heard by those in the courtyard. . . . I wasn’t doing anything out of the 26 ordinary.”); id. ¶ 31 (“I wasn’t loud . . . .”); id. ¶ 41 (“I did not want to be disruptive. I just wanted to speak loud enough to be heard.”); id. ¶ 50 (“I only spoke loud enough to be heard in the courtyard.”); 27 id. ¶ 59 (“I did not believe preaching itself is disruptive without considering noise level.”). 28 ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION - 5 1 and his voice as “unnaturally loud and reverberat[ing] within the courtyard.” Johnson Aff. ¶ 9. 2 Star Conrad and Lori Whitish are both College employees who were working with the windows 3 closed on the second floor of an adjacent building. Ms. Conrad recounts that Mr. Dickinson was 4 “very loud,” that “[h]e went on yelling for some time,” and that “[h]e was loud enough to 5 disturb [her] work and the work of [her] staff.” Conrad Aff., Dkt. # 12-2 ¶ 4. Ms. Whitish 6 describes being “startled and alarmed,” Whitish Aff., Dkt. # 12-1 ¶ 8, and that “[t]he volume of 7 his voice was loud enough to disrupt [her] work,” id. ¶ 7. The two women were prepared to call 8 security when they saw Director Johnson and Mr. Maldonado addressing the situation. 9 As noted, Director Johnson ultimately asked Mr. Dickinson to leave and then informed 10 him that he was trespassed from campus. The next day, the College sent Mr. Dickinson a 11 notification, informing him he had been trespassed pursuant to Wash. Admin. Code § 132F-13612 050 for violating College policy against “engag[ing] in activity which limits, interferes with, or 13 otherwise disrupts the [College’s] normal activities.” See Trespass Notification (Ex. M), Dkt. # 14 5-13 (quoting Seattle College District Policy No. 270). Before receiving the letter, Mr. 15 Dickinson inquired about returning. In response, an administrator sent him an email citing 16 violations of two district facilities policies and directing further questions to Director Johnson. 17 Through counsel, Mr. Dickinson sent the College a demand letter requesting he be 18 allowed to return and preach. The College declined to review its decision, citing Mr. 19 Dickinson’s refusals to stop disrupting classes and campus activities in violation of College 20 policy. 21 Mr. Dickinson then filed a complaint in the above-captioned matter against College 22 President Warren Brown and Director Johnson. He also filed the instant motion for a 23 preliminary injunction seeking to enjoin President Brown, Director Johnson, or anyone else 24 from applying the disruption policy based on individual complaints generally and from 25 enforcing the trespass notification against Mr. Dickinson personally. 26 27 II. DISCUSSION The Court evaluates a motion for a preliminary injunction under the familiar standard that 28 weighs (1) the likelihood of a plaintiff’s success on the merits; (2) the possibility of irreparable ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION - 6 1 injury without relief; (3) the balance of hardships to the parties; and (4) whether an injunction 2 would advance the public interest. See Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449, 456 (9th Cir. 3 1994); Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1201 4 (9th Cir. 1980). Likelihood of success on the merits is the most important factor, and a party 5 seeking preliminary relief will not succeed without passing that threshold inquiry. Garcia v. 6 Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). 7 As noted, Mr. Dickinson asserts two claims challenging the constitutionality of the 8 College’s policy and actions. First, he asserts the College violated his First Amendment right to 9 free speech when campus security enforced the College’s disruption policy and stopped him 10 from preaching in the manner he desired. Second, he asserts the College’s policy of regulating 11 speech that is “disruptive to the learning environment” is void for vagueness. 12 A. First Amendment Claim 13 The First Amendment prohibits government entities from “abridging the freedom of 14 speech.” U.S. Const. amend. I. Standards applied to government regulation of speech vary 15 depending on the speech, forum, and regulation, but for this motion’s purposes, the parties agree 16 that Mr. Dickinson sought to express protected speech in a designated public forum, Dkt. # 5 at 17 13–15; Dkt. # 12 at 6, and that the College regulated his speech in a content-neutral way, see 18 Dkt. # 5 at 16 n.2. In such cases, “the government may impose reasonable restrictions on the 19 time, place, or manner of protected speech, provided the restrictions . . . are narrowly tailored to 20 serve a significant governmental interest, and that they leave open ample alternative channels for 21 communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1988) 22 (internal marks and citation omitted). 23 “[T]he requirement of narrow tailoring is satisfied ‘so long as the . . . regulation promotes 24 a substantial government interest that would be achieved less effectively absent the regulation.’” 25 Id. at 799 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). The regulation “need 26 not be the least restrictive or least intrusive means of [serving the interest],” id. at 798, but the 27 regulation may not “burden substantially more speech than is necessary,” id. at 799. A 28 regulation fails to leave open ample alternative channels of communication if it “effectively ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION - 7 1 prevents a speaker from reaching his intended audience.” Edwards v. City of Coer d’Alene, 262 2 F.2d 856, 866 (9th Cir. 2001). 3 Here, the College’s policy and its application satisfy the requirement of narrow tailoring, 4 and leave open ample alternative channels for communication. First, the Court agrees that the 5 College has a significant interest in controlling excessively loud noise that interferes with or 6 disrupts its mission of serving and teaching students. See Dkt. # 12 at 8; see also Widmar v. 7 Vincent, 454 U.S. 263, 267–68 n.5 (1981) (“A university’s mission is education, and decisions 8 of this Court have never denied a university’s authority to impose reasonable regulations 9 compatible with that mission upon the use of its campus and facilities.”). 10 The disruption policy is narrowly tailored to serve that interest. By its terms, the policy 11 only regulates activity that “limits, interferes with, or otherwise disrupts the normal activities for 12 and to which the college’s buildings, facilities and grounds are dedicated.” Seattle College 13 District Policy No. 270. The policy explicitly seeks to balance its operations and educational 14 activities with noncollege groups’ desires to engage in forms of expression. That standard does 15 not burden substantially more speech than is needed to promote the interest in maintaining an 16 educational and work environment that is not excessively loud. See Ward, 491 U.S. at 791. 17 The record does not show the policy was applied to prohibit more speech than necessary 18 in Mr. Dickinson’s particular case. Two security employees, one female student, and two 19 administrative employees found Mr. Dickinson to be disruptively loud. The female student felt 20 compelled to report it to security, and the employees were planning on doing so until they 21 discovered the noise was being addressed. Mr. Dickinson clearly did not perceive his own voice 22 as being disruptively loud, 2 see Compl., Dkt. # 1 ¶ 57 (“He did not understand how his speech 23 was disruptive.”), but in an environment like a college campus, whether noise or speech is 24 disruptive is contextual. It varies based on the time of day, the volume of ambient noise, and the 25 26 2 Based on Dickinson’s factual allegations, the core of his disagreement is with the determination that he 27 was disruptively loud. That is, he appears to simply assert he actually complied with College policy, but Dickinson does not make that argument here and did not seek substantive state-court review of the 28 College’s final decision pursuant to Washington’s Administrative Procedure Act, RCW 34.05.514(2). ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION - 8 1 activities occurring on campus. The same volume of noise may be unnoticeable during a busy 2 lunch hour but still shrill and distracting while class is underway. Here, a number of observers 3 independently considered the volume of Mr. Dickinson’s voice, in context, to be loud enough 4 that it was disruptive. A recording of Mr. Dickinson in the courtyard filed with the Court does 5 not dispel those impressions. See Ex. F, Dkt. # 5-6. Narrow tailoring does not require Director 6 Johnson to have precisely detected the maximal decibel level and tone at which classes and 7 nearby work would remain undisrupted. See Ward, 491 U.S. at 798. The record before the Court 8 does not indicate a substantially greater limit on Mr. Dickinson’s speech than necessary to avoid 9 disruption. 10 Second, the College’s disruption policy and its application left open ample alternative 11 channels for communication. Mr. Dickinson was given the option of speaking at a more 12 conversational volume or handing out literature. Mr. Dickinson asserts that these alternatives 13 were inadequate, but individual conversations appear to be an otherwise adequate and even 14 valuable part of Mr. Dickinson’s endeavor to spread his message. See Compl. ¶¶ 18, 53. On the 15 record before the Court, the alternatives available allowed Mr. Dickinson to engage in the same 16 activity only at a lower volume. The record does not indicate Mr. Dickinson was effectively 17 prevented from reaching his intended audience. See Edwards, 262 F.2d at 866. 18 The College’s mechanism for enforcing its determination that Mr. Dickinson violated 19 College policy—that is, that Mr. Dickinson was trespassed—does not change the Court’s 20 conclusion. The provision that empowers the College to invoke trespass remedies applies to 21 persistent violations of any College policy, and that provision is invoked only after the potential 22 violator has been warned. See Wash. Admin. Code § 132F-136-050(1). The record before the 23 Court indicates that Director Johnson only invoked the trespass remedy once he determined that 24 Mr. Dickinson repeatedly violated College policy. In contrast, whether the disruption policy and 25 its application run afoul of the First Amendment depends on the terms of the policy and Director 26 Johnson’s substantive application of those terms to Mr. Dickinson’s speech. As explained 27 above, the record before the Court does not indicate that the policy or its application violates the 28 ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION - 9 1 First Amendment. The Court accordingly concludes that Mr. Dickinson’s First Amendment 2 claim is not likely to succeed on the merits. 3 B. Vagueness Claim 4 Due process prohibits subjecting an individual to “a criminal law so vague that it fails to 5 give ordinary people fair notice of the conduct it punishes, or so standardless that it invites 6 arbitrary enforcement.” Johnson v. United States, 135 S. Ct. 2551, 2556 (2015). 7 First, the College’s actions do not violate the notice requirements of due process. As 8 noted, the enforcement mechanism that allows the College to invoke the criminal law—here, 9 trespass—requires that the potential violator “be advised of the specific nature of the violation 10 [of College policy],” and they are only trespassed “if they persist in the violation.” See Wash. 11 Admin. Code § 132F-136-050(1). Insofar as the trespass provision is the actual criminal law 12 applied in this case, it “gives ordinary people fair notice of the conduct it punishes,” Johnson, 13 135 S. Ct. at 2556, because it requires they be warned of any underlying policy violation. 14 In addition, the Supreme Court has considered similar disruption ordinances and did not 15 find them to be unconstitutionally vague. In particular, the Court in Grayned v. City of 16 Rockford, 408 U.S. 104 (1972), considered a vagueness challenge to an ordinance that 17 proscribed “willfully mak[ing] or assist[ing] in the making of any noise or diversion which 18 disturbs or tends to disturb the peace or good order of [a] school session or class thereof,” id. at 19 107–08 (citation omitted). The ordinance was “[d]esigned . . . ‘for the protection of Schools,’ 20 [and] forb[ade] deliberately noisy or diversionary activity that disrupt[ed] or [wa]s about to 21 disrupt normal school activities.” Id. at 110–11. The Supreme Court determined the ordinance’s 22 terms made it sufficiently clear what conduct was prohibited. Here, the Court is likewise 23 satisfied that the College’s policy prohibiting “activity which limits, interferes with, or otherwise 24 disrupts the [College’s] normal activities” sufficiently notifies individuals of what conduct it 25 covers. 26 Second, the disruption policy is not standardless to the point of inviting arbitrary 27 enforcement. Mr. Dickinson argues that the policy invites arbitrary enforcement because its 28 application depends on subjective complaints. The contextual nature of maintaining a learning ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION - 10 1 environment, however, necessarily involves accounting for noise’s impact on listeners, and the 2 Supreme Court has relied on listeners’ reactions to excessive noise as justifications for speech 3 regulations. See Ward, 491 U.S. at 800 (citing “complaints about excessive volume” in tailoring 4 analysis of sound regulations); Grayned, 408 U.S. at 112 (explaining school-disturbance 5 ordinance was not unconstitutionally vague in part because the “prohibited disturbances [were] 6 easily measured by their impact on the normal activities of the school”). Additionally, Mr. 7 Dickinson does not argue in this motion that the standard is enforced based on listeners’ 8 objections to a message’s content. See Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles Cty. 9 Sheriff Dep’t, 533 F.3d 780, 789 (9th Cir. 2008). It does not invite arbitrary enforcement to 10 allow campus security to consider complaints when determining whether a speaker is being 11 disruptive, and the record does not indicate that Director Johnson arbitrarily enforced the policy 12 in this case. For those reasons, the Court concludes Mr. Dickinson’s vagueness claim is not 13 likely to succeed on the merits. 14 Because the Court has concluded that, based on the record before the Court, Mr. 15 Dickinson has not met the threshold requirement for a preliminary injunction of showing a 16 likelihood of success on the merits, the Court need not consider the other factors for preliminary 17 relief. See Garcia, 786 F.3d at 740. 18 19 III. CONCLUSION For the foregoing reasons, plaintiff’s motion for a preliminary injunction, Dkt. # 5, is 20 DENIED. 21 DATED this 28th day of December, 2017. 22 23 24 25 A Robert S. Lasnik United States District Judge 26 27 28 ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION - 11
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