Michael Marcavage v. City of Philadelphia, Pennsylvania

* Honorable Joseph F. Irenas, Senior United States District Judge for the District of
New Jersey, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1049
MICHAEL MARCAVAGE,
Appellant
v.
CITY OF PHILADELPHIA, PENNSYLVANIA;
WARREN EDWARDS, SERGEANT, INDIVIDUALLY, AND IN HIS
OFFICIAL CAPACITY AS A PHILADELPHIA POLICE OFFICER;
OFFICER JOHN DOE, INDIVIDUALLY, AND IN HIS
OFFICIAL CAPACITY AS A PHILADELPHIA POLICE OFFICER;
OFFICER JANE DOE, INDIVIDUALLY, AND IN HER
OFFICIAL CAPACITY AS A PHILADELPHIA POLICE OFFICER;
WILLIAM V. FISHER, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY;
OFFICER DANIEL KELLY, INDIVIDUALLY AND IN HIS
CAPACITY AS A PHILADELPHIA POLICE OFFICER;
JAMES TIANO, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civ. No. 04-cv-04741)
District Court: Hon. Petrese B. Tucker
ARGUED: February 5, 2008
Before: McKEE, AMBRO, Circuit Judges.
IRENAS, Senior District Judge *

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(Filed: April 1, 2008)
C. SCOTT SHIELDS, ESQ. (ARGUED)
LLOYD T. HOPPE, JR., ESQ.
SHIELDS & HOPPE
223 NORTH MONROE STREET
P.O. BOX 23
MEDIA, PA 19063-0000
ATTORNEY FOR APPELLANT
JANE L. ISTVAN, ESQ. (ARGUED)
CITY OF PHILADELPHIA
LAW DEPARTMENT
1515 ARCH ST., 17TH FLOOR
ONE PARKWAY
PHILADELPHIA, PA 19102-0000
ATTORNEY FOR APPELLEES
OPINION
McKEE, Circuit Judge.
Michael Marcavage appeals judgments in favor of the City of Philadelphia and
certain of its agents in the suit he filed pursuant to 28 U.S.C. § 1983 alleging violations of
his First Amendment liberties. He argues the district court erred in granting certain
defendants judgment as a matter of law, and also erred in instructing the jury. Because we
agree that the court erred in instructing the jury, we will remand for a new trial on those

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claims that resulted in a jury verdict against Marcavage.
Inasmuch as we write only for the parties who are familiar with this case, we need
not recite the procedural or factual background of this dispute in detail.
At trial, Marcavage requested a number of jury instructions on the limitations the
First Amendment imposes on a government’s ability to restrict speech. The court refused
to give the precise instructions Marcavage requested. Rather, in pertinent part, the court
instructed the jury as follows:
The First Amendment protects speech and other expressive activity in
public spaces-all of the activities at issue in this have taken place in public
fora. However, the protections afforded by the First Amendment are not
absolute. Principles of religious tolerance do not relieve an individual from
complying with the laws of general applicability, so the right of free
exercise does not relieve an individual of the right to comply with a valid
and neutral law of general applicability.
Even though First Amendment rights are to be guarded, they may still be
regulated by the state. The constitutional guarantee of liberty implies the
existence of an organized society maintaining public order, without which
liberty itself would be lost in the excesses of anarchy.
* * *
The Plaintiff claims that the restrictions on his activity were content-based.
Discrimination against speech because of its message is [sic] may be
deemed unconstitutional. A restriction on speech is content-based when it
is based on the message of the speaker or the dislikes of an audience. For
the state to enforce a content-based exclusion it must show that its
regulation is necessary to serve a compelling state interest and that it is
narrowly drawn to achieve that end. If you find, by a preponderance of the
evidence, that any of the Defendants (1) acted to restrict Mr. Marcavage's
free speech activities because of the content of his message or his
viewpoint; and (2) that they did not have a compelling reason for doing so,
and (3) that the restriction was not narrowly drawn to achieve that end, then
you must find Defendants' liable to Plaintiff for violating his

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1 Although neither party objects to this procedure on appeal, we note that Fed. R. Civ.
P. 51(b)(2) states that the court “must give the parties an opportunity to object . . . to the
proposed instructions . . . before the instructions . . . are delivered.”
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constitutionally protected rights.
The Defendants in this case claim that any restrictions on Plaintiff's activity
were restrictions on the time, place, and manner of that activity. I instruct
you that the government may impose reasonable time, place, and manner
restrictions on First Amendment activity to further significant governmental
interests. If you find that the Defendants' actions were (1) restrictions on
the time, place, and manner of Plaintiff's activity; (2) the restrictions were
designed to further a significant governmental interests, and (3) that those
restrictions were reasonable, then you must rule for the Defendants and
against the Plaintiff.
The court provided counsel with these instructions immediately before charging
the jury and informed the parties that they could only make objections to the written
charge after it was given to the jury.1
I.
We review the district court’s refusal to give a specific charge for abuse of
discretion. Our review of the jury charge that was given is plenary insofar as we are
determining whether the charge as a whole misstated relevant law. See Woodson v. Scott
Paper Co., 109 F.3d 913, 929-932 (3d Cir. 1997). Viewing the charge that was given as a
whole, we conclude that the court made two errors that require reversal and remand.
A. Time, Place, and Manner Restrictions
The scope of a governmental entity’s ability to impose reasonable time, place, and
manner restrictions is set forth in Ward v. Rock Against Racism, 491 U.S. 781, 791

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There the court instructed:
A restriction on speech is content-based when it is based on the message of
the speaker or the dislikes of an audience. For the state to enforce a
content-based exclusion it must show that its regulation is necessary to
serve a compelling state interest and that it is narrowly drawn to achieve
that end. If you find, by a preponderance of the evidence, that any of the
Defendants (1) acted to restrict Mr. Marcavage's free speech activities
because of the content of his message or his viewpoint, and (2) that they did
not have a compelling reason for doing so, and (3) that the restrictions was
not narrowly drawn to achieve that end, then you must find Defendants'
liable to Plaintiff for violating his constitutionally protected rights.
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(1989). There, the Supreme Court held that such restrictions must be: (1) justified
without reference to the content of the regulated speech; (2) narrowly tailored to serve
significant governmental interests, and (3) must leave open alternative channels for
communications. See also Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452
U.S. 640 (1981).
Here, the district court instructed the jury that they could return a verdict for the
City if the challenged actions were: (1) restrictions on the time, place, and manner of
Plaintiff's activity, (2) the restrictions were designed to further a significant governmental
interests, and (3) the restrictions were reasonable. Joint Appendix II, at 532. The court
did not inform the jury of the government’s obligation to allow alternative channels of
communications. In addition, the jury was not told that a time, place, and manner
restriction must be both content-neutral and narrowly tailored.
We realize that the court did inform the jury that any regulation had to be content-
neutral in another part of the charge.2 That instruction does mitigate the court’s failure to

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instruct that time, place, and manner restrictions must be content-neutral, and must satisfy
a compelling government interest. We note, however, that even this instruction was
incorrect. In fashioning the charge, the court placed the burden on Marcavage to prove
that the Defendants’ restrictions were content-based. See Joint Appendix, at 531
(instructing the jury (in part) that “If you find, by a preponderance of the evidence, that
any of the Defendants acted to restrict Mr. Marcavage's free speech activities because of
the content of his message or his viewpoint. . .,” it must find Defendants’ liable.) This
belies the Supreme Court’s oft-repeated pronouncement that “when the government
restricts speech, the government bears the burden of proving the constitutionality of its
actions.” See U.S. v. Playboy Entertainment Group, Inc., 529 U.S. 816 (2000) (citing
Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U.S. 173, 183
(1999); Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)).
Moreover, the court’s failure to instruct on the obligation to provide an alternative
channel for the speech was never corrected nor mitigated. That omission prevented the
jury from determining whether the reasonable restrictions that were imposed allowed an
alternate channel for Marcavage’s speech. The error is significant because Marcavage
contends that the police and city defendants required him to move to locations and that
did not allow him an adequate opportunity to have his message reach his target audience,
and that he was not able to adequately continue communicating his message. These are
questions of fact that must be resolved.
Appellees argue that the charge's requirement that the restrictions be "reasonable"

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subsumed a finding that the charge left open an alternative channel of communication.
We disagree. In Pouillon v. City of Owoso, 206 F.3d 711, 717-718 (6th Cir. 2000), the
court explained that the reasonableness of time, place, and manner restrictions is a
question of law comprised of the three individual determinations set forth in the Ward
test. The sufficiency of any alternate channels for communications is a component that
must be submitted to the jury. Id. (explaining that the question of whether the restriction
"left open ample alternative channels of communication…also should have gone to the
jury."). Absent that initial factual inquiry, the jury is not competent to render a decision
on whether a time, place, manner restriction is "reasonable."
B. The Instructions Lacked the Requisite Balance.
We are also concerned that the instructions were not appropriately balanced. The
charge provides extensive instructions about the City’s need to regulate Marcavage's
activities and its interest in doing so. For instance, the court instructed the jury that First
Amendment rights are not absolute, and that the city has an interest in maintaining the
order, peace, and public safety, and even told the jury that without regulation, "liberty
itself [may] be lost in the excesses of anarchy." Joint Appendix, at 529. Those
statements in isolation are undeniably true.
However, the court offered only minimal instructions about the importance of
safeguarding the fundamental liberties embodied in the First Amendment. We can not
help but be concerned that, on balance, the jury could have concluded that the City’s right

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was paramount even absent a compelling state interest showing the least restrictive means
of furthering a compelling state interest.
This does not mean that we disagree with the court’s statement that it did not have
to inform the jury of every nuance of First Amendment jurisprudence. It certainly did not
have to do so. However, it did have to provide an appropriately balanced instruction to
allow the jury to properly resolve the factual issues underlying Marcavage’s legal claims.
Taken as a whole, we do not believe that the jury was informed that an individual such as
Marcavage has First Amendment interests that are as significant as the state’s interest in
regulation. For example, the jury was not instructed that he has a constitutionally
protected right to hand out leaflet, display his signs, and communicate to listeners. See
Hill v. Colorado, 530 U.S. 703, 715 (1999); Lovell v. City of Griffin, 303 U.S. 444 (1938).
The only instruction in this regard was that the "First Amendment protects speech and
expressive activity in public spaces-and that the speech in this case occurred in public
fora." Joint Appendix, at 529. However, even that instruction is modified by the next
sentence informing the jury that First Amendment rights are not absolute.
Thus, the instructions as a whole highlighted the state interest in preserving public
peace and order, while diminishing Marcavage's interest in expression and speech. This
is exemplified by the court’s summary informing the jurors that the government may
regulate speech, or else “liberty itself would be lost in the excesses of anarchy.” Joint
Appendix II, at 529.
II.

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3 We do not believe the remainder of Marcavage’s claims of error have merit, and we
reject them without discussion.
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Accordingly, we must vacate the judgment in favor of the Appellees based on the
jury’s verdict and remand for a new trial consistent with this opinion.3
AMBRO, Circuit Judge, concurring
I reluctantly concur in my colleagues’ outcome (overturning the jury verdict in
favor of several Philadelphia police officers on Marcavage’s First Amendment claims).
There seems little more the police could have done to accommodate Mr. Marcavage’s
desire to assert in public forums his point-of-view. While there are, as Judge McKee well
notes, shortcomings with the jury instructions, my initial thought was that they were
harmless. The problem is that errors in jury instructions should only be ignored “if a
motion for a directed verdict should have been granted, or if the erroneous instruction
went to an issue that is immaterial in the light of the jury’s verdict, or if it otherwise is
apparent that the error could not have changed the result.” 11 Charles Alan Wright,
Arthur R. Miller, Mary Kay Kane, Federal Practice & Procedure § 2886 (2d ed. 1995)
(footnotes omitted). I cannot say with certainty that this case fits into one of the above
categories, and thus I recede from a dissent with the dismaying suspicion that we are
remanding for retrial a case whose outcome will remain the same.

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