United Food & Commerical Workers Local 1099 v. City of Sidney

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0065P (6th Cir.)
File Name: 04a0065p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED FOOD &
COMMERICAL WORKERS
LOCAL 1099; JUDY BISHOP;
DOUG BURGSTALLER; JEFF
CRIDER; RAY EVANS, III;
BONNIE FRANCE; CHAD
HELMLINGER; LEAH
HELMLINGER; TONYA
MCCOY; BRYON O’NEAL;
JEFF OSTING; KEITH
ROBINSON; JESSICA
SAGRAVES,
Plaintiffs-Appellants,
v.
CITY OF SIDNEY; MICHAEL
PUCKETT; STEVEN B.
WEARLY; SIDNEY CITY
SCHOOLS; STEVE MILLER;
KEVIN O’LEARY,
Defendants-Appellees,
WAL-MART STORES, INC.;
JOHN WATERS; GREG
FRANKS,
Defendants.
X
-
-
-
->
,
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
N
No. 02-3415
2 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
No. 02-3415
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 00-00296—Walter H. Rice, District Judge.
Argued: July 31, 2003
Decided and Filed: March 2, 2004
Before: KENNEDY, GILMAN, and GIBBONS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Timothy M. Burke, MANLEY BURKE,
Cincinnati, Ohio, for Appellants. Boyd W. Gentry,
SURDYK, DOWD & TURNER, Dayton, Ohio, Brian L.
Wildermuth, LAW OFFICES OF NICHOLAS E. SUBASHI,
Dayton, Ohio, for Appellees. ON BRIEF: Timothy M.
Burke, Rhonda S. Frey, MANLEY BURKE, Cincinnati,
Ohio, for Appellants. Edward J. Dowd, SURDYK, DOWD
& TURNER, Dayton, Ohio, Brian L. Wildermuth, Nicholas
E. Subashi, LAW OFFICES OF NICHOLAS E. SUBASHI,
Dayton, Ohio, Michael Fay Boller, ASSISTANT SHELBY
COUNTY PROSECUTOR, Sidney, Ohio, for Appellees.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs-
appellants, United Food and Commercial Workers Local 1099
(“Local 1099”) and twelve of its members, brought suit under
42 U.S.C. §§ 1983 and 1985 against defendants-appellees
after they were prohibited from soliciting signatures for a
referendum petition outside six polling places on election day

-- 1 of 12 --

No. 02-3415 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
3
in Sidney, Ohio. These polling places included four public
schools, the local Y.M.C.A., and a church. At each location,
members of Local 1099 attempted to solicit signatures in
areas on school or private property that were outside of the
areas that had been designated as “campaign-free zones”
pursuant to an Ohio statute. Nevertheless, appellants were
asked to leave the premises, and in many cases they were
threatened with arrest if they failed to comply. At one
location, two individual appellants were threatened with arrest
even after they had relocated to a spot on a public sidewalk,
outside of the campaign-free zone.
Defendants-appellees Sidney City Schools, Superintendent
Steve Miller, and Shelby County Sheriff Kevin O’Leary
moved to dismiss. The City of Sidney, City Manager
Michael Puckett, and Chief of Police Steven Wearly moved
for judgment on the pleadings. The district court concluded
that the appellants had not suffered a deprivation of their First
Amendment rights when they were denied permission to
solicit signatures at each of the six polling places and granted
the appellees’ motions. We agree with the district court that
appellants’ First Amendment rights were not violated when
they were prohibited from soliciting signatures in those areas
that were (a) within the campaign-free zone, regardless of
whether the campaign-free zone encompassed a traditional
public forum such as a sidewalk, or (b) on school or private
property, but outside of the campaign-free zone. However,
plaintiffs have alleged facts supporting a claim that they were
deprived of their First Amendment rights when they were
threatened with arrest after they moved to the public sidewalk
outside of the campaign-free zone at the Y.M.C.A., and to
that extent, their § 1983 claim should be permitted to move
forward. We therefore affirm in part, reverse in part, and
remand to the district court for further proceedings consistent
with this opinion.
4 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
No. 02-3415
I.
A. Factual Background
On February 28, 2000, the City Council of Sidney, Ohio,
enacted Ordinance No. A-2203, which “effected the rezoning
of Lots 5918 and 6180 from an I-2 Heavy Industrial District
to a B-2 Community Business District.” The process of
rezoning the property was undertaken for the purpose of
allowing expansion of a Wal-Mart store at that location. On
March 2, 2000, appellants submitted a certified copy of
Ordinance No. A-2203 and a pre-circulation referendum
petition to the City of Sidney. Pursuant to the city’s charter,
referendum petitions must be filed within two weeks
following the passage of the ordinance called into question.
Given the short amount of time in which they had to collect
signatures after Ordinance No. A-2003 was enacted on
February 28, appellants assert that it was “particularly
important to gather signatures on March 7, 2000,” the day of
the primary election in Ohio. On that date, appellants
gathered to solicit signatures for the petition from voters
outside six polling places in Sidney. These locations included
four public elementary schools (Parkwood, Emerson,
Whittier, and Lowell), the Sidney-Shelby Y.M.C.A.
(“Y.M.C.A.”), and Trinity Church of the Brethren (“Trinity”).
Appellants Judy Bishop, Ray Evans, and Jessica Sagraves
were at Parkwood; Bryon O’Neal was at Emerson; Keith
Robinson and Tonya McCoy were at Whittier; Chad and Leah
Helmlinger were at Lowell; Jeff Crider and Jeff Osting were
at the Y.M.C.A.; and Doug Burgstaller and Bonnie France
were at Trinity.
A set of United States flags was placed outside the entrance
of each polling place pursuant to Ohio Rev. Code §§ 3501.30
and 3501.35, which together provide for the creation of a 100-
foot campaign-free zone around the entrances to polling
places in Ohio. Section 3501.30 instructs each county board
of elections to place small United States flags 100 feet from

-- 2 of 12 --

No. 02-3415 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
5
the polling place on the walkways leading to the entrance in
order “to mark the distance within which persons other than
election officials, witnesses, challengers, police officers, and
electors . . . shall not loiter, congregate, or engage in any kind
of election campaigning.” Section 3501.35 further states that
in the area between the polling entrance and the two flags, no
person “shall loiter or congregate,” “hinder or delay an
elector,” or “solicit or in any manner attempt to influence any
elector in casting his vote.”
Appellants have alleged that at each of the polling places,
they were positioned outside or beyond the area marked by
the flags. They further allege that they solicited signatures at
each location in “a peaceful and non-disruptive manner,” and
that they “neither interfered with school operations nor
hindered public access [to any of the polling places at issue.]”
The locations at which appellants were attempting to solicit
signatures and the manner in which they were denied access
varied at each polling place. At Parkwood, appellants Bishop,
Evans, and Sagraves positioned themselves on school
property, but beyond the flag that had been placed outside the
entrance to the polling place. They solicited signatures at this
location for a short period of time, until the school principal
informed them that they would have to relocate to a position
beyond a second flag that had been placed “on the side of the
school parking lot opposite the polling place.” According to
appellants, this flag was “far in excess of one hundred feet”
from the entrance to the polling place. Shortly after they had
relocated to this new position, a deputy from the Shelby
County Sheriff’s Office ordered them to leave the premises
and threatened them with arrest for trespassing if they failed
to comply. Appellants then relocated to a public sidewalk,
but because most of the voters were parking in the school’s
parking lot, they allege that they were unable to solicit
signatures effectively from that location.
6 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
No. 02-3415
At Emerson, O’Neal and Tambra Young had been
soliciting signatures for approximately ninety minutes before
the school principal ordered them to leave the property and
threatened to call the police if they did not comply.
Appellants allege that at some time during the morning of
March 7, Ralph Bauer, a member of the Sidney Board of
Elections, called the Sidney Police Department and requested
that they send cruisers to Emerson, Lowell, the Y.M.C.A.,
and Trinity. Bauer purportedly informed police that the
appellants were soliciting signatures at each of these locations
in areas that were within 100 feet of the polling places. An
officer from the Sidney Police Department arrived at Emerson
and told O’Neal and Young that his supervisor was on the
way and that he would decide whether they could remain the
property. Shortly thereafter, Sidney Police Captain Kimpel
arrived and told the appellants that if they refused to leave
school property they would be trespassing. When O’Neal
asked Kimpel how they could be trespassing on public
property, Kimpel replied, “I’m not going to argue about this.
This is your last warning.” According to appellants, “[r]ather
than risk receiving a citation or being placed under arrest,”
they complied with Kimpel’s demand and left the property.
At Whittier, appellants Robinson and McCoy positioned
themselves outside the side entrance to the polling place.
Although flags had been placed 100 feet from the front
entrance to the polling site, there were no flags outside the
side entrance. Robinson and McCoy collected signatures for
two hours, until they were approached and ordered to leave by
the assistant superintendent and a polling judge. The assistant
superintendent told them that they would have to leave school
property because of “safety issues” and that she had already
called the police. At this point, Robinson and McCoy left
school property and moved to a public sidewalk. Because
most of the voters were parking in the school’s parking lot,
appellants allege that they were unable to solicit signatures
effectively from that location.

-- 3 of 12 --

No. 02-3415 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
7
When the Helmlingers arrived at Lowell, they asked polling
officials to identify the locations where they would be
permitted to gather signatures. The officials replied that they
did not know and called the Board of Elections. According
to appellants, one of the officials grabbed the petition out of
Leah Helmlinger’s hands and said, “Let me take a look at
that. So you’re against the Wal-Mart?” After one official
told them that they could solicit signatures at any point
beyond the flags, the Helmlingers positioned themselves “on
the public sidewalk, beyond the two flags.” Appellants allege
that shortly after Bauer’s phone call to the Sidney Police
Department, an officer arrived at Lowell and told the
Helmlingers that school officials had called to complain. The
officer told the Helmlingers that the flags had not been placed
far enough from the entrance to the polling place at Lowell
and that they would have to stay more than 100 feet from that
entrance. “Rather than risk receiving a citation or being
[placed under arrest],” the Helmlingers complied with the
officer’s request and left the property.
Crider and Osting collected signatures at the Y.M.C.A. for
approximately one hour before an officer with the Sidney
Police Department arrived, allegedly after a phone call from
Bauer, and used a measuring wheel to mark a line 100 feet
from the polling place. The officer informed Crider and
Osting that they could solicit signatures anywhere beyond that
line. After Crider and Osting had been soliciting signatures
for about an hour from this new location, a deputy with the
Shelby County Sheriff’s Department arrived, and, at the
request of Y.M.C.A. membership director Michael Lieber,
ordered the appellants to leave Y.M.C.A. property. The
officer threatened them with arrest if they failed to comply.
Crider and Osting again moved to a different location, this
time to a public sidewalk that was more than 100 feet from
the polling place. The sheriff’s deputy followed and informed
them that if they attempted to solicit signatures by calling to
anyone in the Y.M.C.A.’s parking lot, he would cite them for
disorderly conduct. Because most of the voters were parking
8 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
No. 02-3415
in the Y.M.C.A.’s lot, and the deputy had threatened them
with arrest if they either entered the parking lot or attempted
to contact voters in the parking lot, appellants allege that they
were unable to solicit signatures effectively from this
location.
At Trinity, Burgstaller and France collected signatures for
one hour before an officer with the Sidney Police Department
arrived, again allegedly shortly after a phone call from Bauer.
While the officer was speaking with Burgstaller and France,
a polling judge came out of the church and told them that they
would be permitted to collect signatures as long as they
remained beyond a set of flags that had been placed 100 feet
from the polling entrance. The officer disagreed, and told the
appellants that it was irrelevant whether they were outside of
the 100-foot boundary because the church was private
property, and the church wanted them to leave. Rather than
“risk arrest for trespassing,” Burgstaller and France complied
with the officer’s demand and left church property.
Appellants allege that in response to their petition efforts,
the Mayor of Sidney instructed Puckett to draft a counter-
petition to facilitate the removal of signatures from their
referendum petition. On March 23, 2000, Puckett presented
the Board of Elections with the counter-petition and a list of
nineteen individuals who purportedly had asked the city to
have their names removed from the referendum petition.
Appellants alleged that the counter-petition failed to comply
with Ohio law, and the Board of Elections referred the issue
to the Ohio Secretary of State. On April 17, 2000, the Board
of Elections informed the City of Sidney that the counter-
petition was invalid, and that there were enough valid
signatures on the referendum petition to place the referendum
on the November 2000 ballot.
The referendum never took place. On April 3, 2000, the
Sidney City Council held a special meeting and adopted
Ordinance No. A-2207, which repealed Ordinance No. A-

-- 4 of 12 --

No. 02-3415 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
9
1Appellants voluntarily dismissed their claims against Miller,
Puckett, W early, and O’Leary in their resp ective individual cap acities.
2Appellants have voluntarily dismisse d their claims against W al-
Mart, Wa ters, and Franks.
2203, rendering appellants’ referendum petition on that
ordinance moot. Shortly after Ordinance No. A-2207 was
enacted, the City Council adopted Ordinance No. A-2208,
which effected the same rezoning of lots 5918 and 6180 as
Ordinance No. A-2203. Both Ordinance Nos. A-2207 and A-
2208 contained emergency clauses that caused them to go into
effect immediately.
B. Procedural History
On June 13, 2000, appellants filed a complaint in the
United States District Court for the Southern District of Ohio
asserting claims under 42 U.S.C. §§ 1983 and 1985. In their
§ 1983 claim, appellants alleged that the appellees deprived
them of their federal constitutional rights under the First and
Fourteenth Amendments by preventing them from soliciting
signatures outside the areas demarcated by flags at public
polling places on March 7, 2000.1 In their § 1985 claim,
appellants alleged that the City of Sidney, Puckett, Wal-Mart,
Wal-Mart district manager John Waters, and Sidney Wal-
Mart store manager Greg Franks conspired “to prevent [them]
from engaging in their statutorily-protected right to obtain
signatures for the referendum petition, to introduce an
improper and misleading ‘counter-petition’ in an attempt to
influence the Board of Elections’ decision-making process,
and to circumvent [their] right to a referendum through a
pattern of unlawful, corrupt, and unethical legislative
conduct.”2
The Sidney City Schools and Miller moved to dismiss.
O’Leary filed a separate motion to dismiss the claims against
10 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
No. 02-3415
him in his official capacity, and the City of Sidney, Puckett,
and Wearly filed a motion for judgment on the pleadings.
The district court granted these motions on March 11, 2002.
The court concluded that the presence of polling sites on the
properties at issue did not transform the areas surrounding
those polling sites into traditional public forums. The court
also found that Ohio Rev. Code § 3501.29, which provides
that public and private buildings may be utilized “for the
purpose of holding elections,” created a designated public
forum “for the limited purpose of voting, [but] not for other
expressive activities which may accompany elections.” In its
decision granting the motions to dismiss, the court afforded
appellants an opportunity to file an amended complaint in
order to set forth allegations to support their contention that
the Sidney City Schools had, by policy or practice, designated
school property as a public forum for the purpose of
campaigning and other expressive activities on days when the
schools were being used as polling places. The appellants did
not avail themselves of this opportunity. Since the court
concluded that appellants had not alleged sufficient facts to
support a claim that they were deprived of their First
Amendment rights, the court also found that they had failed
to plead that the City of Sidney and Puckett had conspired to
deprive them of those rights, and dismissed their claims under
§ 1985 as well. On April 9, 2002, appellants filed this timely
appeal.
II.
This court reviews a district court’s decision to dismiss a
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) de novo. Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir.
1998). Rule 12(b)(6) provides that a complaint may be
dismissed for failure to state a claim upon which relief may be
granted. Dismissal pursuant to a Rule 12(b)(6) motion is
proper “only if it is clear that no relief could be granted under
any set of facts that could be proved consistent with the
allegations.” Id. (citing Hishon v. King & Spalding, 467 U.S.

-- 5 of 12 --

No. 02-3415 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
11
69, 73 (1984)). Although we must accept as true all of the
factual allegations in the complaint, we need not accept as
true legal conclusions or unwarranted factual inferences.
Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.
1987) (citations omitted).
The standard of review applicable to a motion for judgment
on the pleadings under Rule 12(c) is the same de novo
standard that is applicable to a motion to dismiss under Rule
12(b)(6). Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 511-12
(6th Cir. 2001). In reviewing such motions, we must construe
the complaint in the light most favorable to the plaintiff,
accept all of the complaint’s factual allegations as true, and
determine whether the plaintiff undoubtedly can prove no set
of facts in support of his claims that would entitle him to
relief. Id.
A. Appellants’ § 1983 Claims
In order to state a cause of action under § 1983, appellants
must allege (1) that they were deprived of a right secured by
the Constitution or the laws of the United States, and (2) that
the deprivation was caused by a person acting under color of
state law. Moore v. City of Paducah, 890 F.2d 831, 833-34
(6th Cir. 1989). To evaluate appellants’ § 1983 claims in this
case, we must consider whether their First Amendment rights
were violated when they were not permitted to solicit
signatures for their referendum petition in the areas
surrounding the six polling places at issue.
Assuming that the solicitation of signatures for a
referendum petition is a protected form of speech under the
First Amendment, the mere fact that a certain category of
speech is worthy of constitutional protection does not mean
that it is “equally permissible in all places and at all times.”
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.
788, 800 (1985). The government is not required to grant
access to all who wish to exercise their right to free speech on
12 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
No. 02-3415
every type of government property “without regard to the
nature of the property or to the disruption that might be
caused by the speaker’s activities.” Id. at 799-800. Rather,
the existence of a right of access to government property and
the extent to which such access may be limited by the
government depend on the character of the property at issue.
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.
37, 44 (1983).
The Supreme Court has adopted a forum analysis “as a
means of determining when the government’s interest in
limiting the use of its property to its intended purpose
outweighs the interest of those wishing to use the property for
other purposes.” Cornelius, 473 U.S. at 800. The Court has
identified three types of forums: the traditional public forum,
the designated public forum, and the nonpublic forum. Id. at
802. Traditional public forums are those places “which by
long tradition or by government fiat have been devoted to
assembly and debate.” Perry, 460 U.S. at 45. Government
may also create a public forum by its designation of “a place
or channel of communication for use by the public at large for
assembly and speech, for use by certain speakers, or for the
discussion of certain subjects.” Cornelius, 473 U.S. at 802.
In traditional and designated public forums, content-based
restrictions on speech are prohibited unless necessary to serve
compelling state interests and narrowly tailored to achieve
those interests. Id. By contrast, restrictions on speech in
nonpublic forums are permissible so long as they are
viewpoint neutral and reasonable in light of the purpose
served by the forum. Id. at 49.
To determine the extent to which the government may limit
access to its property, then, we must first identify the relevant
forum to which the appellants sought access, and next
consider whether the relevant forum is public or nonpublic,
because the government’s ability to place restrictions on
speech varies with the type of forum involved. Cornelius,
473 U.S. at 797. In this case, appellants were soliciting

-- 6 of 12 --

No. 02-3415 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
13
signatures for their referendum petition at various positions
around polling places located on both public and private
property, but our inquiry into the relevant forum does not end
merely by identifying these two broad categories: “Rather, in
defining the relevant forum we have focused on the access
sought by the speaker. When speakers seek general access to
public property, the forum encompasses that property.” Id.
When speakers seek more limited access, however, we must
take “a more tailored approach to ascertaining the perimeters
of [the relevant] forum within the confines” of the
government property at issue. Id. Appellants here were not
seeking general access to the school and private properties
involved, but were instead seeking more limited access to the
areas surrounding each of the six polling places. These
locations can be grouped into three categories: (1) the public
sidewalk within 100 feet of the polling place, (2) the parking
lots and walkways on school or private property leading to the
polling place, and (3) the public sidewalk beyond 100 feet
from the polling place. Having identified these three relevant
forums, we must next consider whether each forum is public
or nonpublic, and whether the government’s justification for
prohibiting appellants from soliciting signatures in each area
met the requisite constitutional standard.
1. The Public Sidewalk Within 100 Feet of a Polling
Place
Appellants allege that at Lowell, the Helmlingers tried to
solicit signatures from a position “on the public sidewalk.”
They argue that appellees’ conduct prohibiting them from
soliciting signatures at this location constituted an
impermissible restriction on their speech in a traditional
public forum. Traditional public forums are those places
which “by long tradition or by government fiat have been
devoted to assembly and debate.” Perry, 460 at 45. While it
is true that public sidewalks are generally considered
traditional public forums, see Frisby v. Schultz, 487 U.S. 474,
480-81 (1988), speakers may nevertheless be excluded from
14 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
No. 02-3415
a traditional public forum on the basis of the content of their
speech as long as the exclusion is necessary to serve a
compelling state interest and narrowly tailored to achieve that
interest. Perry, 460 U.S. at 45.
Appellants’ complaint in this case makes clear that the
Helmlingers were deterred from soliciting signatures on the
public sidewalk in front of Lowell because the sidewalk was
within the 100-foot campaign-free zone established by Ohio
Rev. Code §§ 3501.30 and 3501.35. The Supreme Court
upheld the constitutionality of a similar “campaign-free zone”
in Burson v. Freeman, 504 U.S. 191, 196-97, & n.2 (1992),
even though the statute in question barred speech in areas that
included “quintessential public forums,” such as the streets
and sidewalks adjacent to polling places. The Court
concluded that the “campaign-free zone” was necessary in
order to serve the state’s compelling interest in protecting
voters from confusion and undue influence, and that the
statute was narrowly drawn to achieve that interest. Id. at 199
(noting that the Court has upheld “generally applicable and
evenhanded restrictions that protect the integrity and
reliability of the electoral process itself”). In light of a long
history of problems with voter intimidation and election fraud
in this country, the Court held that Tennessee could decide
that the “last 15 seconds before its citizens enter the polling
place should be their own, as free from interference as
possible.” Id. at 210. The Court did not limit its opinion only
to those cases where voter confusion and undue influence had
already been shown: “A long history, a substantial
consensus, and simple common sense show that some
restricted zone around polling places is necessary to protect
[the fundamental right to vote],” even when that right
conflicts with the exercise of free speech. Id. at 211.
Thus, a state may require persons soliciting signatures to
stand 100 feet from the entrances to polling places without
running afoul of the Constitution. Id. at 211. The
Helmlingers therefore were not deprived of their First

-- 7 of 12 --

No. 02-3415 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
15
Amendment rights when they were ordered to move from the
public sidewalk to a position beyond 100 feet from the polling
place. In keeping with Burson, Ohio may prevent persons
from soliciting signatures within 100 feet of polling places,
even in areas that include traditional public forums such as
sidewalks.
2. The Parking Lots and Walkways Leading to the
Polling Place
At Parkwood, Emerson, Whittier, Trinity, and the
Y.M.C.A., appellants set up to gather signatures at various
locations on school and private property that were outside the
campaign-free zone established by §§ 3501.30 and 3501.35.
Appellants argue that the presence of the polling places
affected the character of the school and private property that
surrounded them. They contend that Ohio created a
designated public forum by providing for the use of school
and private buildings “for the purpose of holding elections”
in Ohio Rev. Code § 3501.29. The district court concluded
that by enacting § 3501.29, the Ohio legislature indicated an
intent to open up a portion of public school and private
property to registered voters for the limited purpose of voting,
but not for other expressive activities which may accompany
elections. This “limited designated public forum” included
the parking lot, the walkways and hallways leading to the
polls, and the area containing the voting booths themselves;
all other areas on school and private property remained
nonpublic forums.
In reaching this conclusion, the district court relied heavily
on the Eighth Circuit’s decision in Embry v. Lewis, 215 F.3d
884 (8th Cir. 2000). In Embry, the plaintiffs attempted to
gather signatures for a referendum petition outside a school
building that had been designated as a polling place. Id. at
886. They set up a table “on the grass of the school’s west
property,” near, but not upon the public sidewalk. Id. One of
the plaintiffs refused to leave the property when asked by the
16 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
No. 02-3415
school’s principal, and she was arrested. Id. at 886-87. In a
subsequent action brought under § 1983, the plaintiffs argued
that Missouri had designated the school property, and in
particular the limited area in which they were located, “as a
limited public forum for the purpose of voting and
electioneering activities on that particular day.” Id. at 887.
The Eighth Circuit held that
[o]nly a portion of the school property was a designated
public forum . . . for the limited purpose of voting . . . .
Specifically, this area included the parking lot, the
walkway leading to the west entrance, the hallway inside
the school leading to the voting booths, and the area
containing the voting booths. All other areas of school
property, however, remained a nonpublic forum.
Id. at 888. The plaintiffs in Embry were not located on those
portions of school property that had been appropriated for
election purposes; they were on the grassy area located next
to the sidewalk. Id. at 888-89. The court concluded that this
area remained a nonpublic forum on election day, and that the
decision to exclude the plaintiffs from this portion of school
property was a reasonable and viewpoint neutral restriction on
speech in a nonpublic forum. Id. at 889.
Appellants note that, unlike the plaintiffs in Embry, they
attempted to solicit signatures from the parking lots and
walkways leading to the polling places – precisely those areas
that the Eighth Circuit concluded had been designated as
public forums for the limited purpose of voting on election
day. They argue that if these areas were in fact designated as
public forums, the state could not open them up for the
limited purpose of voting and at the same time restrict similar
types of expressive activities that were consistent with the
principal function of the forum. Thus, we must decide
whether the parking lot and walkways leading to polling
places are “designated public forums for the limited purpose
of voting,” and whether the action of appellees in restricting

-- 8 of 12 --

No. 02-3415 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
17
the appellants’ ability to solicit signatures in these areas was
permissible.
As we have already noted, the government creates a
designated public forum where it opens up its property for use
by the public as a place for expressive activity. Perry, 460
U.S. at 45. The government does not create a public forum by
inaction or by permitting limited discourse, but only by
intentionally opening up a nontraditional forum for public
discourse. Cornelius, 473 U.S. at 802. In determining
whether the government has intended to open up its property
for use as a designated public forum, the Supreme Court has
said that we must look to the policy and practice of the
government, as well as to the nature of the property and its
compatibility with expressive activity. Id.
There is no evidence in the record in this case that indicates
that Ohio intended to open up nontraditional forums such as
schools and privately-owned buildings for public discourse
merely by utilizing portions of them as polling places on
election day. Appellants were given the opportunity by the
district court to amend their complaint in order to set forth
allegations supporting their contention that the government
had, by policy or practice, designated the property
surrounding the polling places as a public forum for the
purposes of campaigning or other expressive activities. They
did not avail themselves of this opportunity. Appellants also
argue that § 3501.30's designation of a campaign-free zone
outside every polling place is evidence of the compatibility of
expressive activity with polling places because it “implies an
expectation that people will gather at polling places to express
themselves.” The district court rejected this argument, and so
do we. Just because certain types of speech are expressly
prohibited within a certain area does not mean that they are
therefore permissible outside that area. See Embry, 215 F.3d
at 888-89 (“Although Missouri law makes it an offense to
electioneer within 25 feet of a polling place’s outer door, it
18 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
No. 02-3415
does not automatically follow that electioneering is allowed
anywhere outside the 25 foot line.”).
Although the issue was not squarely before the court in
Embry because the plaintiffs in that case were on the grassy
area located next to the sidewalk, the Eighth Circuit described
the parking lot and walkways leading to the polling places as
“designated public forums for the limited purpose of voting.”
We respectfully disagree. The forum at issue here is neither
a traditional public forum nor a government-designated one.
By opening up portions of school and private property for use
as polling places on election day, Ohio has not opened up a
nontraditional forum for public discourse. In fact, there is no
evidence in the record of discourse of any sort. There is no
evidence of expressive activity occurring anywhere on the
properties involved, other than “each voter’s communication
of his own elective choice[,] and this has long been carried
out privately – by secret ballot in a restricted space.” See
Marlin v. Dist. of Columbia Bd. of Elections & Ethics, 236
F.3d 716, 719 (D.C. Cir. 2001) (holding that the interiors of
polling places are nonpublic forums).
When the district court, following the decision in Embry,
described the parking lots and walkways leading to the
polling places as “limited designated public forums,” it may
have had in mind the “limited public forum” described in
Good News Club v. Milford, 533 U.S. 98, 106 (2001). In
Good News, the Supreme Court employed the term “limited
public forum” to refer to a forum that the state had reserved
“for certain groups or for the discussion of certain topics.” Id.
In such forums, government restrictions on speech must be
reasonable and viewpoint neutral, the same standards that
apply to restrictions on speech in nonpublic forums. Id. Our
circuit and others have noted the confusion surrounding the
use of the terms “designated public forum” and “limited
public forum.” See, e.g., Goulart v. Meadows, 345 F.3d 239,
249 (4th Cir. 2003); DeBoer v. Vill. of Oak Park, 267 F.3d
558, 567 (7th Cir. 2001) (“[T]he use of this terminology . . .

-- 9 of 12 --

No. 02-3415 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
19
3The Fourth Circuit treats the terms “d esignated public forum” and
“limited public forum,” as two names for the same type of forum.
Goulart, 345 F.3d at 250. Some circuits co nsider the limited public forum
to be a subcategory of the designated public forum. Donovan v.
Punxsutawney Area Sch. Dist., 336 F.3d 211 , 225 (3d Cir. 20 03); Hopper
v. City of Pasco, 241 F.3d 1067, 1075-76 (9th Cir. 2001). Still others
consider the limited public forum to be a subse t of the nonpublic forum
classificatio n. Summum v. City of Ogden, 297 F.3d 995, 100 2 n.4 (10th
Cir. 20 02 ). W e need not resolve this issue here because we conclude that
the parking lots and sidewalks leading to the polling places are no npub lic
forums, but we note tha t the result in this case would be the same if we
had co ncluded that these areas were instead limited public forum s.
has introduced some analytical ambiguity because the
[Supreme] Court previously had employed the term ‘limited
public forum’ as a subcategory of the designated public
forum, subject to the strict scrutiny governing restrictions on
designated public forums”); Putnam Pit v. City of Cookeville,
221 F.3d 834, 842 n.5 (6th Cir. 2000).3 We do not need to
delve deeply into the nuances of designated versus limited
public forums in this case, however, because these types of
forums are characterized by discourse, and discourse is what
is absent here. That some expressive activity occurred within
the context of the forum created “does not imply that the
forum thereby [became] a public forum for First Amendment
purposes.” Cornelius, 473 U.S. at 805. In the absence of
evidence of an intent on the part of the government to open
these nontraditional forums for public discourse, limited or
otherwise, we conclude that the parking lots and walkways
leading to the polling places are nonpublic forums, with no
different status than the remaining areas on school and private
property.
Having concluded that the parking lots and walkways
leading to the polling places are nonpublic forums, we must
next consider whether the restriction on soliciting signatures
was reasonable and viewpoint neutral. The reasonableness of
the government’s restriction on access to a nonpublic forum
20 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
No. 02-3415
must be assessed in light of the purpose of the forum and all
of the surrounding circumstances. Cornelius, 473 U.S. at
810. According to appellants’ complaint, school officials
asked them to leave the premises because they were
concerned about “safety issues.” At the Y.M.C.A. and
Trinity, police officers were responding to requests from the
owners of those properties when they asked appellants to
leave the premises. Appellants argue that their exclusion
from these properties was unreasonable because they were
soliciting signatures in a peaceful and non-disruptive manner.
However, the government does not need to wait “until havoc
is wreaked to restrict access to a nonpublic forum.”
Cornelius, 473 U.S. at 810. Furthermore, appellees could
prohibit appellants from soliciting signatures if they thought
that their activities would disrupt the polling place or the
school or private property surrounding it. “Although the
avoidance of controversy is not a valid ground for restricting
speech in a public forum, a nonpublic forum by definition is
not dedicated to general debate or the free exchange of ideas.
The First Amendment does not forbid a viewpoint-neutral
exclusion of speakers who would disrupt a nonpublic form
and hinder its effectiveness for its intended purpose.” Id.
Appellants argue in their brief that their exclusion from the
areas outside of the polling places was an attempt to suppress
their speech because public officials opposed their views, but
they have alleged no facts to support this allegation. There is
no contention, for example, that others were permitted to
solicit signatures for referendum petitions on other topics, or
that anyone was allowed to engage in other types of
electioneering activities within these areas. Under these
circumstances, we conclude that the decision to exclude
appellants from soliciting signatures in the parking lots and
walkways leading to the polling places was reasonable and
viewpoint neutral, and that the appellants’ First Amendment
rights were not violated when they were denied access to
these nonpublic forums.

-- 10 of 12 --

No. 02-3415 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
21
3. The Public Sidewalk Beyond 100 Feet From the
Polling Place
In a footnote in its opinion dismissing the claims against
the Sidney City Schools and Miller, the district court stated
that “[t]here is no allegation that the [appellants] were denied
the ability to solicit signatures from adjacent, public property
such as the sidewalks in front of the polling place.” United
Food & Commercial Workers, Union Local 1099 v. City of
Sidney, 199 F. Supp. 2d 739, 742 n.6 (S.D. Ohio 2002). This
conclusion is contrary to allegations in the complaint that
appellants were prohibited from soliciting signatures from the
public sidewalk within the campaign-free zone at Lowell, and
from the public sidewalk outside the campaign-free zone at
the Y.M.C.A. We have already determined that appellants
were not deprived of their First Amendment rights at Lowell
because, although they were on the public sidewalk, they
were also within the 100-foot campaign-free zone established
by §§ 3501.30 and 3501.35. Now we must decide whether
appellants were deprived of their First Amendment rights
when a deputy with the Shelby County Sheriff’s Office
threatened two of the appellants with arrest if they attempted
to solicit signatures by calling out to anyone in the Y.M.C.A.
parking lot, even after they had relocated to a public sidewalk
beyond 100 feet from the polling place.
“[S]peech in public areas is at its most protected on public
sidewalks, a prototypical example of a traditional public
forum.” Schenck v. Pro-Choice Network of W. New York, 519
U.S. 357, 377 (1997). As we have already noted, in a
traditional public forum, content-based restrictions on speech
must be necessary to serve compelling state interests and
narrowly tailored to achieve those interests. Perry, 460 U.S.
at 45. The state may also enforce regulations of the time,
place, and manner of expression, provided the regulations (1)
are content-neutral, (2) are narrowly-tailored to serve a
significant government interest, and (3) leave open ample
alternative channels of communication. Id. Thus, the
22 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
No. 02-3415
appropriate level of scrutiny is initially tied to whether the
restriction distinguished between prohibited and permitted
speech on the basis of content. See Frisby, 487 U.S. at 481.
Content-neutral regulations are those that are “justified
without reference to the content of the speech.” Virginia
State Bd. of Pharmacy v. Virginia Citizens Consumer
Counsel, Inc., 425 U.S. 748, 771 (1976). Content-based
restrictions, on the other hand, regulate speech on the basis of
the ideas expressed. R.A.V. v. City of St. Paul, 505 U.S. 377,
382 (1992). It is impossible to determine from this record
whether the deputy’s threat of arrest was based on the content
of the appellants’ speech or on content-neutral time, place,
and manner concerns. At this stage of the litigation, it
suffices to say that appellants have alleged facts supporting a
claim that their First Amendment rights were violated when
they were threatened with arrest even after they had moved to
the public sidewalk. It was not necessary for them to first
expose themselves to arrest or prosecution in order to be able
to seek relief. See Steffel v. Thompson, 415 U.S. 452, 459
(1974). We leave it to the district court on remand to
determine whether the deputy’s threat of arrest was motivated
by reasonable time, place, and manner concerns, or whether
it was an impermissible content-based restriction on speech
in a traditional public forum. See Pouillon v. City of Owosso,
206 F.3d 711, 717-18 (6th Cir. 2000).
Because appellants have not alleged facts supporting their
claims that their First Amendment rights were violated when
they were denied the opportunity to solicit signatures at the
four public schools involved in this case, we affirm the
district court’s decision dismissing their § 1983 claims
against the Sidney City Schools and Superintendent Miller.
Appellants’ remaining § 1983 claims are against the City of
Sidney and O’Leary, Puckett, and Wearly in their official
capacities. As the district court noted, a claim against an
officer or employee of a governmental entity in his or her
official capacity is a claim against the governmental entity
itself. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67

-- 11 of 12 --

No. 02-3415 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
23
4Because the appellants have not addressed the district court’s
dismissal of their claims aga inst M iller, Puc kett, and W early in their
official capa cities in their b riefs or o therwise, they have waive d this
argument on appeal, and we affirm the district court’s decision dismissing
those claims. See United States v. Elder, 90 F.3d 111 0, 1118 (6th Cir.
199 6).
(1989); Leach v. Shelby County Sheriff, 891 F.2d 1241, 1245-
46 (6th Cir. 1989). The district court construed the claims
against O’Leary, Puckett and Wearly in their official
capacities as claims against the City of Sidney, and so do we.4
Thus, while we reverse the district court’s decision dismissing
appellants’ § 1983 claims against the City of Sidney, we note
that in order to be successful on remand, appellants must
prove not only that their expression was in fact deterred or
chilled by the deputy’s conduct at the Y.M.C.A., but also that
the deputy threatened to arrest them because of the content of
their message and not merely because he had valid content-
neutral time, place, and manner concerns. Additionally, in
order to hold the City liable under § 1983, appellants must be
able to prove that the deputy acted pursuant to an official
municipal policy or custom. See Monell v. Dep’t of Social
Servs., 436 U.S. 658, 691 (1978).
B. Appellants’ § 1985 Claim
In addition to their § 1983 claims, appellants also alleged
in their complaint that the City of Sidney, Puckett, Wal-Mart,
and two of Wal-Mart’s employees conspired to prevent them
from “engaging in their statutorily-protected right to obtain
signatures for a referendum petition, to introduce an improper
and misleading ‘counter-petition’ in an attempt to influence
the Board of Elections’ decision-making process, and to
circumvent their right to a referendum through a pattern of
unlawful, corrupt, and unethical legislative conduct,” in
violation of § 1985. Because the appellants have dismissed
their claims against the three Wal-Mart defendants, the only
24 United Food & Commercial Workers
Local 1099, et al. v. City of Sidney, et al.
No. 02-3415
remaining defendants in their § 1985 claim are the City of
Sidney and City Manager Puckett.
To state a cause of action under § 1985, appellants must
prove the existence of a conspiracy among two or more
persons. Hull v. Cuyahoga Valley Joint Vocational Sch. Dist.
Bd. of Educ., 926 F.2d 505, 509 (6th Cir. 1991). In this case,
appellants are alleging a conspiracy between the city and one
of its officers acting in his official capacity. This court has
rejected the concept of an “intra-corporate conspiracy” and
has held that an entity cannot conspire with its own agents or
employees. See id. Since the remaining § 1985 defendants
are the City and one of its employees, appellants cannot meet
their burden of proving a conspiracy between two or more
persons. We therefore affirm the district court’s decision
dismissing their claims under § 1985.
III.
For the foregoing reasons, we affirm the district court’s
decision dismissing appellants’ § 1983 claims against the
Sidney City Schools, Miller, O’Leary, Puckett, and Wearly.
We also affirm the district court’s decision dismissing
appellants’ § 1985 claims against the City of Sidney and
Puckett. We reverse the district court’s decision dismissing
appellants’ § 1983 claims against the City of Sidney insofar
as it relates to activities on the public sidewalk outside the
campaign-free zone at the Y.M.C.A., and remand to the
district court for further proceedings consistent with this
opinion.

-- 12 of 12 --