Matthew Charles Cardinale v. City of Atlanta

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10958
____________________
MATTHEW CHARLES CARDINALE,
Plaintiff-Appellant,
versus
CITY OF ATLANTA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-01077-AT
____________________
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2 Opinion of the Court 21-10958
Before G RANT, L UCK , and H ULL, Circuit Judges.
PER CURIAM:
As part of its prohibition against campaigning for public
office within City Hall, the City of Atlanta does not permit speakers
to identify themselves as candidates during the public comment
period at meetings of the city council and its committees. Matthew
Cardinale, who previously ran for city council and plans to run
again, sued the City seeking a declaratory judgment that this policy
violates the First Amendment as a content-based restriction on free
speech. On cross-motions for summary judgment, the district
court granted summary judgment to the City. Cardinale now
appeals.
We review a district court’s decision on cross-motions for
summary judgment de novo.
Chavez v. Mercantil
Commercebank, N.A., 701 F.3d 896, 899 (11th Cir. 2012).
Summary judgment is appropriate “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).
To assess whether the government may prohibit private
speech that occurs on government property, courts employ a
forum analysis, which determines the applicable level of scrutiny
based on the type of government property at issue.
See Keister v.
Bell, 29 F.4th 1239, 1251 (11th Cir. 2022). We recognize four
categories of government property: “the traditional public forum,
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21-10958 Opinion of the Court 3
the designated public forum, the limited public forum, and the
nonpublic forum.”
Id.
The City argued in its summary judgment motion that the
limited public forum category applies here and that the restriction
at issue need only be reasonable and viewpoint neutral. In
response, Cardinale agreed that the city council meetings are
limited public fora,1 but contended that strict scrutiny applies
because the speech restriction is content based, relying on the
Supreme Court’s decision in
Reed v. Town of Gilbert, 576 U.S. 155
(2015). He also argued in the alternative that even if
Reed did not
require strict scrutiny, the policy still fails.
The district court correctly concluded that
Reed did not
change the level of scrutiny that we apply in a limited public forum.
Reed addressed restrictions on the content of outdoor signs placed
in “the public right-of-way abutting the street” and elsewhere
around the town, and it applied strict scrutiny as is appropriate for
that forum.
Id. at 161, 171.
Reed did not dictate that strict scrutiny
applies to all content-based restrictions regardless of forum
type—that is why, in the several years since
Reed, both the
Supreme Court and this Circuit have continued to differentiate
among forum types when determining the level of scrutiny to
apply.
See, e.g.,
Minnesota Voters All. v. Mansky, 138 S. Ct. 1876,
1885–86 (2018);
Keister, 29 F.4th at 1251–57.
1 We decline to address Cardinale’s new position on appeal that the meetings
are designated public fora.
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4 Opinion of the Court 21-10958
In a limited public forum, the government “may be justified
in reserving its forum for certain groups or for the discussion of
certain topics.”
Good News Club v. Milford Cent. Sch., 533 U.S.
98, 106 (2001) (quotation and brackets omitted). This power to
restrict speech is “not without limits”—the restriction cannot
“discriminate against speech on the basis of viewpoint,” and it must
“be reasonable in light of the purpose served by the forum.”
Id. at
106–07 (quotation omitted).
Applying that standard, the district court correctly upheld
the City’s policy against candidate self-identification. Cardinale
does not contend that the policy discriminates based on viewpoint.
And we agree with the district court’s conclusion that prohibiting
speakers from discussing their candidacy is reasonable in light of
the purpose of the forum—conducting city business—because it
limits potential disruption and decreases the need for difficult
judgments about whether speech amounts to campaigning.
Cardinale argues on appeal that this speech restriction must be
narrowly tailored to the purpose of the limited public forum, but
he relies on an unpublished case,
Cleveland v. City of Cocoa Beach,
221 F. App’x 875 (11th Cir. 2007). There, the panel concluded that
a prohibition on the display of campaign materials during a city
commission meeting was reasonable “given the limited forum in
which it was applied and because it was narrowly tailored to serve
a legitimate government interest.”
Id. at 880. Even assuming
Cardinale properly preserved this argument, we are not persuaded
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21-10958 Opinion of the Court 5
that
Cleveland reflects a requirement that all content-based speech
restrictions in a limited public forum must be narrowly tailored.
Because the City’s policy is reasonable, we AFFIRM the
district court’s summary judgment order.2
2 The City’s motion for leave to file a supplemental brief and Cardinale’s
motion for leave to file a response are DENIED.
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