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NOT RECOMMENDED FOR PUBLICATION File Name: 18a0472n.06 No. 17-6291 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JOHN MCGLONE; JEREMY PETERS, as ) individuals, ) ) Plaintiffs-Appellants, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT METROPOLITAN GOVERNMENT OF ) COURT FOR THE MIDDLE NASHVILLE AND DAVIDSON COUNTY, ) DISTRICT OF TENNESSEE TENNESSEE, ) ) Defendant-Appellee. ) BEFORE: BATCHELDER, MOORE, and LARSEN, Circuit Judges. ALICE M. BATCHELDER, Circuit Judge. John McGlone and Jeremy Peters were ordered to leave a public sidewalk, or else face arrest, for preaching against homosexuality outside of an LGBTQ pride festival in downtown Nashville. Nashville enforced this restriction against the preachers because of the anti-homosexuality content of their speech. Because Nashville’s action does not survive strict scrutiny, it violated McGlone and Peters’ free speech rights protected by the First Amendment. The district court erred in finding otherwise. We REVERSE. I. Factual Background The central facts of this litigation are not in dispute. The Nashville Pride Festival (“Pride Festival”) was held on June 26 and 27, 2015, at Public Square Park in downtown Nashville. The stated purpose of the Pride Festival was “to celebrate the culture and community of the LGBTQ No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty. people in Nashville in a safe space.” The Pride Festival applied for and received a special events permit. As part of its application for the permit, the Pride Festival submitted a security action plan, which was completed by Comprehensive Security (“Comprehensive”), a private security company, and approved by the Metropolitan Nashville Police Department (“MNPD”). The Pride Festival provided a community-notification letter, as required by the application process, which identified MNPD Lieutenant David Corman as the contact person for any question related to security. The Pride Festival was a ticketed event with ingress and egress areas around the perimeter of Public Square Park. The ticketed area was marked off with fencing and barricades that controlled access, but the permitted area extended beyond the fence lines and included the area central to this dispute—the sidewalk plaza near the fountains in front of Public Square Park. McGlone and Peters believe homosexuality is sinful, and they regularly preach at public events using bullhorns and amplification equipment. Prior to the 2015 Pride Festival, Peters emailed Lt. Corman, informing him of the preachers’ intent to spread their message outside of the Pride Festival on Public Square Park’s sidewalks. Lt. Corman emailed back: “The organizers secured a sidewalk lane and road closure surrounding the event site, and it would appear that you need to conduct your activities on the other side of the road.” Testimony from Comprehensive’s owner indicates that Lt. Corman’s email was forwarded to Comprehensive’s security officers, putting them on notice that the preachers were to remain on the opposite side of the street. On June 27, 2015, McGlone and Peters, along with a number of supporters who are not involved in this litigation, went to the sidewalks of Public Square Park to preach. The sidewalk area was open to the public; no one had to pay to be there. A few minutes after McGlone and -2- No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty. Peters began preaching, they were confronted by Josh Crowe, an off-duty police officer, employed by Comprehensive as security for the festival. Crowe, following instructions provided by MNPD, told McGlone and Peters that they were not allowed to be in the sidewalk area and that they would be arrested if they remained. Their presence did not block people from queuing in line for the Pride Festival or force people to step into traffic. Only the preachers and those affiliated with them were told to leave. Together with their retinue, McGlone and Peters retreated to the sidewalk across the street from Public Square Park, and from that area preached for the next four to five hours. They claim that their message, communicated from across the street, was interfered with by “deflection” and the noise of passing traffic. Procedural History McGlone and Peters filed this action in federal court on April 14, 2016, alleging that the Metropolitan Government of Nashville and Davidson County, Tennessee (“Nashville”), violated their First Amendment rights to freedom of speech and the free exercise of religion by barring them from the Public Square Park. After discovery, McGlone and Peters filed for summary judgment, as did Nashville. The district court ruled in favor of Nashville. The preachers appealed. II. We review a district court’s grant of summary judgment de novo. Farhat v. Jopke, 370 F.3d 580, 587 (6th Cir. 2004). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Saieg v. City of Dearborn, 641 F.3d 727, 733 (6th Cir. 2011). -3- No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty. III. This appeal raises two issues. First, whether McGlone and Peters’ right to free speech, protected by the First Amendment, was violated by their exclusion from Public Square Park. Second, whether Nashville is properly subject to municipal liability in this case. A. McGlone and Peters’ First Amendment Claim. The right of free people to express themselves without unjustified governmental restriction is enshrined in our First Amendment. U. S. CONST. amend. I. (“Congress shall make no law . abridging the freedom of speech . .”). Under the Supreme Court’s jurisprudence, the First Amendment’s protection of speech applies against the states and their political subdivisions, such as Nashville. See Gitlow v. New York, 268 U.S. 652, 666 (1925); see also Lovell v. City of Griffin, 303 U.S. 444, 450 (1938). Three inquiries guide courts in ascertaining whether First Amendment free speech rights have been violated: (1) whether the allegedly excluded speech is protected under the First Amendment; (2) the nature of the forum in which the speech was to take place; and (3) whether the government’s exclusion is justified under the requisite standard. See Cornelius v. NAACP Legal Defense and Educ. Fund., 473 U.S. 788, 797 (1985); see also Saieg, 641 F.3d at 734-35. The parties agree that the First Amendment protects McGlone and Peters’ speech and that the sidewalk area in question is a traditional public forum. The question in this case is whether Nashville’s exclusion of the preachers from Public Square Park can be justified under the applicable level of constitutional scrutiny. We review restrictions of protected speech in a traditional public forum using one of two standards. Saieg, 641 F.3d at 733-35. If the restriction is content based, then we apply strict scrutiny, id. at 734, and the restriction survives only if it is “narrowly tailored to be the least- -4- No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty. restrictive means available to serve a compelling government interest,” Bible Believers v. Wayne Cty, 805 F.3d 228, 248 (6th Cir. 2015) (en banc). If instead the restriction is a content-neutral regulation of the time, place, and manner of speech, then we evaluate it under an intermediate scrutiny standard, asking whether the restriction is “narrowly tailored to serve a significant government interest, and leave[s] open ample channels of communication.” Saieg, 641 F.3d at 735. McGlone and Peters say our scrutiny of Nashville’s actions should be strict, Nashville argues that it should be intermediate. McGlone and Peters are right. Strict scrutiny applies because Nashville’s restriction of McGlone and Peters’ speech was content based. “Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Reed v. Town of Gilbert, 135 S.Ct. 2218, 2227 (2015).1 On the other hand, “[g]overnment regulations of speech are content neutral if they are ‘justified without reference to the content or viewpoint of the regulated speech.’” Saieg, 641 F.3d at 735 (quoting Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 696 (2010)). Nashville argues that its speech restrictions were not content based because Nashville’s reasons for excluding McGlone and Peters from the public sidewalk area were unrelated to the 1 There is a distinction between content-based and viewpoint discrimination, but that distinction becomes salient when the speech is restricted in a non-public forum. See Perry Educ. Assn. v. Perry Local Educators’ Assn., 460 U.S. 36, 48-49 (1983). Viewpoint discrimination is succinctly described in Rosenberger v. Rector and Visitors of the University of Virginia, where the Court said: When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction. 515 U.S. 819, 829 (1995) (citations omitted). The action taken against McGlone and Peters likely falls within the “viewpoint discrimination” subcategory of content discrimination, but in this case, because all agree that Public Square Park is a traditional public forum, the distinction between the two is a distinction without a difference. We refer in this opinion, therefore, only to content discrimination. -5- No. 17-6291, McGlone, et al. v. Metro. Gov’t of Nashville & Davidson Cty.

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