Higher Society of Indiana v. Tippecanoe County, No. 17-1089 (7th Cir.) June 7, 2017

The Higher Society of Indiana, a pro-marijuana advocacy group, sought but was denied the sponsorship of the Tippecanoe County Board of Commissioners which was necessary for them to hold an event at the county courthouse.  The Seventh Circuit has upheld the preliminary injunction entered at Higher Society’s behest.

More than fifteen years ago the county commissioners declared the courthouse grounds a “closed forum” in an effort to diminish controversy surrounding displays on courthouse grounds.  The “closed forum” designation meant that individuals or groups wishing to use the courthouse grounds would need the board’s assent.  

Sponsorship has not been uniformly obtained in advance of events. Higher Society held one unsponsored event under the mistaken impression that there had been sponsorship.  This litigation ensued, as noted above, when Higher Society sought but was refused sponsorship.

The Seventh Circuit observed that First Amendment jurisprudence concerning injunctive relief focuses on the likelihood of success on the merits.  It is widely held that even momentary deprivations  of First Amendment rights precipitate irreparable harm, and no public interest is offended by enjoining an unconstitutional statute.  

The county might defend its policy either by arguing that the courthouse grounds policy is viewpoint neutral and reasonable, but it concedes it cannot do so, leaving it to assert that courthouse events are ‘government speech’, rendering the First Amendment inapplicable.

To prevail in any assertion that the sponsored events on the courthouse grounds are government speech, the commissioners would need to show that there is a history of government speech, that all involved would understand that the government is speaking, and whether the government maintained editorial control over the speech.

None of these conditions could be met.

The commissioners’ policy violates the private speech rights of Higher Society.  The Seventh Circuit expressed its understanding that the county would want to permit some but not all events, and hoped that some constitutionally sound accommodation might be reached, but that nonetheless the county erred here by imposing viewpoint based restrictions on private speech.

Higher Soc’y Indiana v. Tippecanoe Cnty. (7th Cir., 2017)

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