George Saieg V Dearborn Reply Brief

Case: 10-1746 Document: 006110736150 Filed: 09/19/2010 Page: 1
NO. 10-1746
____________________________________
UNITED STATES COURT OF APPEALS

FOR THE
SIXTH CIRCUIT
_______________________________________
GEORGE SAIEG,
Plaintiff-Appellant,
V.
CITY OF DEARBORN, ET AL.,

Defendants-Appellees.
_____________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN
HONORABLE PAUL D. BORMAN
Civil Case No. 2:09-cv-12321-PDB-RSW
______________________________________________________________________________
APPELLANT’S REPLY BRIEF

______________________________________________________________________________
WILLIAM J. BECKER, JR., ESQ. ROBERT JOSEPH MUISE, ESQ.

THE BECKER LAW FIRM THOMAS MORE LAW CENTER
11500 OLYMPIC BOULEVARD, SUITE 400 24 FRANK LLOYD WRIGHT DRIVE
LOS ANGELES, CALIFORNIA 90064 P.O. BOX 393
(310) 636-1018 ANN ARBOR, MICHIGAN 48106
(734) 827-2001
Attorneys for Plaintiff-Appellant

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................... ii
INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 3
A. Plaintiff’s religious speech activity and his expressive association

with other Christian evangelists for the purpose of engaging
in this activity are protected by the Free Speech and Free Exercise
Clauses of the First Amendment ........................................................... 3
B. All of the City streets and sidewalks at issue here are traditional
public forums ......................................................................................... 4
C. Speech restrictions in traditional public forums are sharply

limited .................................................................................................... 6
D. The City’s ban on the distribution of religious literature is

not a valid time, place, and manner restriction of speech ................... 10
E. Plaintiff is entitled to nominal damages for the past loss of his

First Amendment liberties, and he is entitled to injunctive
relief ..................................................................................................... 14
CONCLUSION ........................................................................................................ 15
CERTIFICATE OF COMPLIANCE ....................................................................... 16
CERTIFICATE OF SERVICE ................................................................................ 17
i
TABLE OF AUTHORITIES
Cases Page
American-Arab Anti-Discrimination Comm. v. City of Dearborn,

418 F.3d 600 (6th Cir. 2005) ..............................................................................6, 10
Carey v. Brown,
477 U.S. 455 (1980) ................................................................................................ 12
Carey v. Piphus,
435 U.S. 247 (1978) ................................................................................................ 14
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993) ..........................................................................................12, 14
Congregation Lubavich v. City of Cincinnati,

997 F.2d 1160 (6th Cir. 1993) .......................................................................... 12, 13
Connection Distributing Co. v. Reno,

154 F.3d 291 (6th Cir. 1998) .................................................................................... 4
Cornelius v. NAACP Legal Def. & Educ. Fund,

473 U.S. 788 (1985) .................................................................................................. 6
Elrod v. Burns,
427 U.S. 347 (1976) ................................................................................................ 15
Floyd v. Laws,
929 F.2d 1390 (9th Cir. 1991) ................................................................................ 14
Frisby v. Schultz,
487 U.S. 474 (1988) .............................................................................................. 4, 9
Hague v. CIO,
307 U.S. 496 (1939) .................................................................................................. 4
Heffron v. International Soc. for Krishna Consciousness, Inc.,

452 U.S. 640 (1981) .................................................................................................. 5
ii
Jamison v. Texas,
318 U.S. 413 (1943) ........................................................................................4, 7, 11
Lovell v. City of Griffin,

303 U.S. 444 (1938) .................................................................................................. 4
Martin v. City of Struthers,

319 U.S. 141 (1943) .............................................................................................. 4, 7
Metromedia, Inc. v. City of San Diego,

453 U.S. 490 (1981) ................................................................................................ 14
Murdock v. Pennsylvania,
319 U.S. 105 (1943) .................................................................................................. 4
NAACP v. Button,
371 U.S. 415 (1963) ................................................................................................ 10
Perry Educ. Ass’n v. Perry Local Educators,

460 U.S. 37 (1983) .................................................................................................. 13
Police Dept. of the City of Chicago v. Mosley,

408 U.S. 92 (1972) .................................................................................................. 12
Roberts v. United States Jaycees,

468 U.S. 609 (1984) .................................................................................................. 4
Schneider v. New Jersey,

308 U.S. 147 (1939) ............................................................................................7, 11
S.O.C., Inc. v. County of Clark,

152 F.3d 1136 (9th Cir. 1998) ................................................................................. 13
Spingola v. Village of Granville,

39 Fed. Appx. 978 (6th Cir. 2002) ............................................................................ 5
United States v. Grace,

461 U.S. 171 (1983) ................................................................................................ 10
iii
Ward v. Rock Against Racism,

491 U.S. 781 (1989) ................................................................................................ 10
iv
INTRODUCTION
In their response brief, the City of Dearborn and its Chief of Police, Ronald
Haddad, (collectively referred to as “Defendants”) offer an untenable version of
the facts and a tendentious view of the law in a feckless attempt to justify their
unconstitutional restriction on Plaintiff Saieg’s fundamental First Amendment
liberties.
The right to freedom of speech is not about the right to catharsis. It is about
the right to meaningfully participate in public debate on important public issues.
Or, as in this case, the right to meaningfully express one’s religious beliefs in
traditional public forums, such as city streets and sidewalks.
This court should not allow the City of Dearborn and its Chief of Police to
treat First Amendment liberties as a mere inconvenience to be pushed aside
however and whenever they wish. Remarkably, in their brief Defendants
essentially threaten to expand the “inner perimeter” should this court agree with
the panel that granted the emergency restraining order and strike down the
enforcement of Defendants’ draconian speech restriction in the “outer perimeter.”1
Defendants’ callous indifference to fundamental constitutional rights must be
1
Defendants claim that if this court were to strike down the speech restriction in
the “outer perimeter” then “a new ‘outer perimeter’ would need to be established,
and the cycle would begin all over again.” (Defs.’ Br. at 28). Should this court
rule in Plaintiff’s favor, Plaintiff requests that the decision be crafted to prevent
Defendants from circumventing it by playing a game of shifting “perimeters.”
1
rejected, lest First Amendment liberties be relegated to meaningless platitudes in
the City of Dearborn.
There is no question that as a matter of well established constitutional law
Plaintiff’s right to engage in religious expression is at its zenith when he is doing
so on the public streets and sidewalks, including those streets and sidewalks that
remain open to the general public during the Dearborn Arab Festival.
Contrary to Defendants’ claim (Defs.’ Br. at 11), Plaintiff has never
requested to be a participant in the festival. And for five years (2004 to 2008), he
and his fellow Christians peacefully distributed their religious literature on the
public sidewalks and other public areas adjacent to Warren Avenue, the actual
location of the Arab street festival, without complaint or incident. (R-30: Saieg
Decl. at ¶¶ 9-10 at Ex. 1; R-36: Mrowka Dep. at 24 at Ex. 7).
In 2009, however, as a result of a regime change, which included the
addition of Defendant Haddad, Defendants imposed severe and exceedingly
restrictive measures to keep Christian evangelists, such as Plaintiff, in check. They
threatened to arrest Plaintiff if he or any of his associates peacefully distributed any
of their religious literature on the adjacent public sidewalks or in the 30-block
buffer zone designed to keep these street evangelists at bay, even though these
2
areas remained open for commercial and other pedestrian traffic totally unrelated
to the festival.2
In the final analysis, we live in a free society, not a police state. The City of
Dearborn is not exempt from the proscriptions of the First Amendment, nor can it
declare martial law because they are holding an Arab Festival. The district court
got it terribly wrong, and its opinion must be reversed if we are at all serious about
preserving the fundamental constitutional rights to freedom of speech and the free
exercise of religion.
ARGUMENT
Plaintiff’s principal brief fully addressed the main issues in this case.
Nonetheless, the following highlights further demonstrate the error of Defendants’
arguments and why the district court’s decision must be reversed.
A. Plaintiff’s religious speech activity and his expressive association with

other Christian evangelists for the purpose of engaging in this activity
are protected by the Free Speech and Free Exercise Clauses of the First
Amendment.
There is no question that Plaintiff’s speech activity (the distribution of
religious literature in traditional public forums of the City for purposes of
2
City police officers would not permit Plaintiff to distribute his religious literature
in either the “inner perimeter” or the “outer perimeter” areas during the Arab
Festival. (R-30: Saieg Decl. at ¶¶ 20-21 at Ex. 1; R-36: Mrowka Dep. at 18, 32-33
at Ex. 7; R-37: Haddad Dep. at 99-100 at Ex. 9; R-36: Beydoun Dep. at 55, 77 at
Ex. 3). If Plaintiff did engage in such speech activity, he was subject to arrest. (R-
37: Haddad Dep. at 70-72 at Ex. 9).
3
evangelizing and spreading his Christian faith along with other fellow Christian
evangelists) is protected by the U.S. Constitution. Lovell v. City of Griffin, 303
U.S. 444, 452 (1938) (holding that the First Amendment protects literature
distribution); Jamison v. Texas, 318 U.S. 413 (1943) (same); Martin v. City of
Struthers, 319 U.S. 141 (1943) (same); Murdock v. Pennsylvania, 319 U.S. 105,
110 (1943) (holding that “spreading one’s religious beliefs” and “preaching the
Gospel” are constitutionally protected activities). Roberts v. United States Jaycees,
468 U.S. 609, 622 (1984) (“[I]mplicit in the right to engage in activities protected
by the First Amendment” is “a corresponding right to associate with others in
pursuit of a wide variety of political, social, economic, educational, religious, and
cultural ends.”); Connection Distributing Co. v. Reno, 154 F.3d 281, 295 (6th Cir.
1998) (“Freedom to engage in association for the advancement of beliefs and ideas
is an inseparable aspect of freedom of speech.”).
Indeed, Defendants and the district court treat the constitutional right to
distribute religious literature on public sidewalks in the City of Dearborn with less
respect than selling hotdogs in the very same forum.
B. All of the City streets and sidewalks at issue here are traditional public
forums.
The public streets and sidewalks in the City are traditional public forums; no
further inquiry is necessary. Hague v. CIO, 307 U.S. 496, 515 (1939); Frisby v.
Schultz, 487 U.S. 474, 480-81 (1988) (“No particularized inquiry into the precise
4
nature of a specific street is necessary; all public streets are held in the public trust
and are properly considered traditional public fora.”). The public sidewalks
adjacent to Warren Avenue and those public sidewalks in the “outer perimeter”
retained their character as public sidewalks, and thus remained traditional public
forums, because they remained open for use by the general public for purposes
wholly unrelated to the festival. (R-30: Saieg Decl. at ¶ 19, Ex. B at Ex. 1; R-36:
Beydoun Dep. at 73-74 at Ex. 3; R-37: Haddad Dep. at 16-18 at Ex. 9; R-36:
Mrowka Dep. at 69-72 at Ex. 7; R-38: Tr. 19-20, 22-23, 26-27 at Ex. 18).
Defendants cannot change this fact by fiat. And this fact alone makes Heffron v.
International Soc. for Krishna Consciousness, Inc., 452 U.S. 640 (1981), and
Spingola v. Village of Granville, 39 Fed. Appx. 978 (6th Cir. 2002), inapplicable.3
In sum, Plaintiff does not desire to participate in the festival, nor does he
desire to distribute his literature where the festival activities are taking place on
Warren Avenue and Miller Road. Rather, he desires to distribute his religious
3
Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640
(1981), is not a panacea for all challenges to speech restrictions associated with
public gatherings. The closed and exclusive use of the fairground in Heffron
makes that case factually and legally distinguishable from this one. Plaintiff has
not objected to the City restricting literature distribution on Warren Avenue—the
only area exclusively dedicated to festival activities. Plaintiff does strenuously
object, however, to the City banning his First Amendment activity on the adjacent
public sidewalks and other surrounding public areas that are not used exclusively
for the festival and in fact are kept open by the City for pedestrian and other traffic
wholly unrelated to the festival so as to appease the local businesses who don’t
want to be bothered by the event.
5
literature on the public sidewalks and other public areas adjacent to and
surrounding the festival that are open to the general public for purposes unrelated
to the festival.4 (R-30: Saieg Decl. at ¶¶ 9-14, 33, 39-44 at Ex. 1).
C. Speech restrictions in traditional public forums are sharply limited.
Restrictions on speech in traditional public forums, such as the one at issue
here, are sharply limited. American-Arab Anti-Discrimination Comm. v. City of
Dearborn, 418 F.3d 600, 605 (6th Cir. 2005) (“Constitutional concerns are
heightened further where, as here, the [challenged ordinance] restricts the public’s
use of streets and sidewalks for political speech.”). Defendants’ arguments and the
district court’s opinion turn the First Amendment on its head, essentially placing
the burden on Plaintiff to show some compelling reason for being allowed to
exercise his First Amendment liberties on City sidewalks and other public areas
that remain open to the general public.
4
Identifying the precise forum at issue is a crucial aspect of the First Amendment
forum analysis. As the Supreme Court stated,
[F]orum analysis is not completed merely by identifying the
government property at issue. Rather, in defining the forum we have
focused on the access sought by the speaker. When speakers seek
general access to public property, the forum encompasses that
property. In cases in which limited access is sought, our cases have
taken a more tailored approach to ascertaining the perimeters of a
forum within the confines of the government property.
Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 801 (1985)
(emphasis added). Thus, Defendants’ lack of precision regarding the actual access
sought by Plaintiff must be rejected. (See Defs.’ Br. at 31-32) (incorrectly arguing
that because Plaintiff is seeking access to the adjacent sidewalks and the “outer
perimeter” he is thus “seeking to participate in the Festival”).
6
As the U.S. Supreme Court has long acknowledged, “[T]he streets are
natural and proper places for the dissemination of information and opinion; and
one is not to have the exercise of his liberty of expression in appropriate places
abridged on the plea that it may be exercised in some other place.” Schneider v.
New Jersey, 308 U.S. 147, 163 (1939). Defendants’ draconian speech restriction
eviscerates this longstanding rule of law. Indeed, “one who is rightfully on a street
which the state has left open to the public carries with him there as elsewhere the
constitutional right to express his views in an orderly fashion. This right extends to
the communication of ideas by handbills and literature as well as by the spoken
word.”5 Jamison, 318 U.S. at 416 (emphasis added); Martin, 319 U.S. at 145-49
(“Freedom to distribute information to every citizen wherever he desires to receive
it . . . must be fully preserved.”).
Every street and sidewalk at issue in this case (i.e., not Warren Avenue or
Miller Road, which are used exclusively for festival activities) has been left open
for the public (i.e., all pedestrian traffic) for purposes wholly unrelated to the
festival. Defendants have no right to prevent Plaintiff from distributing his
religious literature to pedestrians in these public areas.
5
The City ordinance dealing with the distribution of handbills recognizes this
constitutional requirement, stating, “It shall not be unlawful for any person to hand
out or distribute, without charge to the receiver thereof, any noncommercial
handbill in any public place to any person willing to accept such noncommercial
handbill.” (R-36: Morello Decl. at ¶ 2, Ex. A at Ex. 2) (emphasis added).
7
As the undisputed evidence shows, the City authorized the Arab Festival to
take place on Warren Avenue and Miller Road. (R-36: Dep. Ex. 2 at Ex. 5). As a
result, the festival’s activities (i.e., the activities that raise the safety, traffic, and
crowd control concerns) took place on Warren Avenue, with a few activities held
on Miller Road. (R-36: Beydoun Dep. at 29, 42 at Ex. 3; Mrowka Dep. at 15-18 at
Ex. 7; R-38: Dep. Ex. 3 at Ex. 17; Tr. at 27 at Ex. 18). The City erected barriers to
separate the festival activities from the public sidewalks, which remained open to
public traffic wholly unrelated to the festival. (R-30: Saieg Decl. at ¶ 19, Ex. B at
Ex. 1; R-36: Beydoun Dep. at 73-74 at Ex. 3; R-37: Haddad Dep. at 16-18 at Ex. 9;
R-36: Mrowka Dep. at 69-72 at Ex. 7; R-38: Tr. 19-20, 22-23, 26-27 at Ex. 18).
During the 2009 festival, the City closed off two areas to vehicle traffic—
not pedestrian traffic—creating an “inner perimeter,” which included the areas
dedicated to the festival, and an “outer perimeter,” which was approximately a 30-
block buffer zone for vehicle traffic. (R-36: Mrowka Dep. at 9-18 at Ex. 7; R-38:
Dep. Ex. 29 at Ex. 19 (Map); R-30, 31: Saieg Decl. at ¶¶ 20-21, Ex. C, at Ex. 1).
These same areas will be closed off for future festivals. (R-37: Haddad Dep. at 99-
100 at Ex. 9). In their brief, Defendants admit the following:
Thus, while the “outer perimeter” may not have included carnival rides,
stages, or vendors, that was exactly the point. Without the “outer
perimeter,” vehicles could have driven right up to the Festival, traffic
8
encountering the Fair would inevitably direct itself onto residential streets
rather than turning on to the major roads of Schaefer or Wyoming, and there
would have been a logistical problem finding places for Festival workers and
for patrons of the Warren Avenue businesses to park
(Defs.’ Br. at 28) (emphasis added). Thus, as Defendants admit here and in the
record below,6 the reason for the “outer perimeter” was to control vehicles and
vehicle traffic. There were no restrictions on pedestrian traffic, and Plaintiff has
no desire to drive a vehicle anywhere within the “outer perimeter.”7 And as the
undisputed photographic evidence shows, the public streets and sidewalks in the
“outer perimeter” were barren (i.e., no crowd control issues). (See, e.g., R-30, 31:
Saieg Decl. at ¶¶ 20-21, Ex. C at Ex. 1).
In sum, there is no basis—let alone one that arises to the level of a
substantial government interest sufficient to overcome Plaintiff’s constitutional
rights—to ban literature distribution to pedestrians in these public areas. As
Defendants acknowledge, “A statute is narrowly tailored if it targets and eliminates
no more than the exact source of the ‘evil’ it seeks to remedy.” (Defs.’ Br. at 33)
(quoting Frisby, 487 U.S. at 485) (emphasis added). The “exact source of the
6
Defendant Haddad testified as to the purpose of the “outer perimeter” barricades
as follows: “They’re set up strategically to give traffic some final point to turn
away from the Warren Avenue destination.” (R-41; Haddad Dep. at 26-27 at
Defs.’ Ex. K).
7
The district court’s analogy to an airport runway is similarly inapt. (R-57; Op. &
Order at 37).
9
‘evil’” targeted by the “outer perimeter” is vehicle traffic. However, in the
process, this restriction also eliminated Plaintiff’s free speech activity in violation
of the Constitution.
D. The City’s ban on the distribution of religious literature is not a valid

time, place, and manner restriction of speech.
There is no question that the City may enforce time, place, and manner
restrictions on speech if the restriction is content-neutral, narrowly tailored to
advance a significant government interest, and leaves open ample alternative
means of communication. Ward v. Rock Against Racism, 491 U.S. 781, 802
(1989). However, if the restriction burdens substantially more speech than is
necessary to further the City’s interests, as in this case, it is invalid. Id. at 799;
United States v. Grace, 461 U.S. 171 (1983) (striking down a content-neutral, time,
place, and manner restriction because it burdened more speech than necessary);
American-Arab Anti-Discrimination Comm., 418 F.3d at 605 (“[T]he government
may not burden substantially more speech than is necessary to further [its goal].”).
Indeed, broad prophylactic rules are constitutionally impermissible. NAACP v.
Button, 371 U.S. 415, 438 (1963).
Pursuant to its authority to enforce time, place, and manner restrictions of
speech, the City “may provide for control of travel on their streets in order to
insure the safety and convenience of the traveling public” and thus “may punish
10
conduct on the streets which is in violation of a valid law,” such as a City
ordinance against littering, obstructing travel, disorderly conduct, or disturbing the
peace. Jamison, 318 U.S. at 416.
However, as noted above, the justification for banning vehicle traffic from
the “outer perimeter” during the festival does not extend to restricting Plaintiff’s
literature distribution. Schneider, 308 U.S. at 160 (“So long as legislation
[designed to keep streets open] does not abridge the constitutional liberty of one
rightfully upon the street to impart information through speech or the distribution
of literature, [the City] may lawfully regulate the conduct of those using the
streets.”).
The ban on literature distribution on the public sidewalks adjacent to Warren
Avenue and Miller Road fares no better. These public sidewalks are not closed off
for the festival. Rather, the City ensures that they remain open for pedestrian
traffic unrelated to the festival so as to accommodate, inter alia, the local area
businesses that do not want to participate in the festival itself.
Moreover, a cursory review of the claimed “interest” for banning literature
distribution on these public sidewalks demonstrates that the restriction is not valid
in that (1) it favors commercial activity over religious speech and (2) the City’s
alleged “interest” for banning protected speech activity is not “substantial” in light
11
of the fact that obstructive commercial activity (i.e., “street vendors”) is permitted.8
In their application, festival organizers requested that the City issue street
vendor permits per the City’s ordinance that requires all vendors to get permits to
sell items on public sidewalks. (R-36: Beydoun Dep. at 31 at Ex. 3; R-38: Dep.
Ex. 24 at Ex. 15; R-36: Morello Decl. at ¶ 3, Ex. B (“Street Vendors” ordinance) at
Ex. 2). To lessen its administrative burdens, the City authorized festival organizers
to issue the permits to the local Warren area businesses (subject to final approval
8
For similar reasons, this restriction also violates the Equal Protection Clause of
the Fourteenth Amendment. In Police Dept. of the City of Chicago v. Mosley, 408
U.S. 92, 96 (1972), the Court stated, “[U]nder the Equal Protection Clause, not to
mention the First Amendment itself, government may not grant the use of a forum
to people whose views it finds acceptable, but deny use to those wishing to express
less favored or more controversial views.” See also Carey v. Brown, 447 U.S. 455,
461-62 (1980). In Congregation Lubavitch v. City of Cincinnati, 997 F.2d 1160
(6th Cir. 1993), this Circuit struck down on equal protection grounds a speech
restriction that made distinctions between privately-sponsored and publicly-
sponsored exhibits and displays. See id. at 1166 (stating that “the ordinance
violates the Equal Protection Clause unless the distinction can be shown to be
finely tailored to governmental interests that are substantial”). Similarly here,
Defendants permit the commercial activity of local businesses on the public
sidewalks, even though this activity is exceedingly obstructive. Yet, they prohibit
Plaintiff’s peaceful, non-obstructive free speech activity in this same forum. See
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546-47
(1993) (stating that when the government restricts conduct protected by the First
Amendment, but fails to restrict other conduct producing harm of the same sort, the
interest given for the restriction is not compelling); Congregation Lubavich, 997
F.2d at 1166 (observing that because the government was willing to disregard
traffic problems when making exceptions, the court could not accept the claim that
traffic control was a substantial interest). Thus, the distinctions made between
commercial activity (permitted) and free speech activity (not permitted) in the
same forum are not finely tailored to governmental interests that are substantial in
violation of the Equal Protection Clause.
12
by the City), thereby allowing these local businesses to use the public sidewalks
for [exceedingly obstructive] commercial activity while denying Plaintiff access to
this traditional public forum for his constitutionally protected religious speech
activity. Because the City is willing to permit this obstructive commercial activity,
while banning the peaceful, non-obstructive speech activity of Plaintiff, its claimed
interests regarding crowd and traffic control are not “substantial.” See
Congregation Lubavich, 997 F.2d at 1166 (“Because the City is so willing to
disregard the traffic problems [by making exceptions], we cannot accept the
contention that traffic control is a substantial interest.”) (quotations and citation
omitted).
Moreover, during the festival, the City also made special accommodations
for local businesses to ensure that their commercial activity unrelated to the Arab
Festival was not adversely affected by keeping the public sidewalks open for their
business patrons. (R-38: Tr. at 26-27, 29 at Ex. 18; R-37: Haddad Dep. at 16-18 at
Ex. 9). Thus, the City favored the commercial activity of the local businessmen—
none of whom were Christian evangelists, and Defendants knew that—over the
constitutionally protected religious speech activity of Plaintiff. Restrictions that
favor commercial speech over non-commercial speech are content based, S.O.C.,
Inc. v. County of Clark, 152 F.3d 1136, 1145 (9th Cir. 1998), and impermissible in
a public forum, Perry Educ. Ass’n v. Perry Local Educators, 460 U.S. 37, 55
13
(1983) (“In a public forum . . . all parties have a constitutional right of access and
the State must demonstrate compelling reasons for restricting access to a single
class of speakers. . . .”). See Metromedia, Inc. v. City of San Diego, 453 U.S. 490
(1981) (invalidating ordinance prohibiting outdoor advertising because it
discriminated on the basis of content by permitting on-site commercial speech
while broadly prohibiting noncommercial messages) (White, J., plurality opinion).
The City has no compelling reason for allowing street vendors to engage in
obstructive commercial activity on the public sidewalks, while banning Plaintiff’s
non-obstructive First Amendment activity. Church of Lukumi Babalu Aye, Inc.,
508 U.S. at 546-47 (“Where government restricts only conduct protected by the
First Amendment and fails to enact feasible measures to restrict other conduct
producing substantial harm or alleged harm of the same sort, the interest given in
justification of the restriction is not compelling.”).
In the final analysis, Defendants’ restriction on Plaintiff’s speech in the
entire “outer perimeter” and on the “inner perimeter” sidewalks that remained open
for use by the general public cannot withstand constitutional scrutiny.
E. Plaintiff is entitled to nominal damages for the past loss of his First
Amendment liberties, and he is entitled to injunctive relief.
Because Defendants violated Plaintiff’s First Amendment freedoms, he is
entitled to nominal damages and injunctive relief. See Carey v. Piphus, 435 U.S.
247, 266-67 (1978); Floyd v. Laws, 929 F.2d 1390 (9th Cir. 1991) (holding that
14
nominal damages must be awarded as a matter of law upon finding a constitutional
violation).; Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First
Amendment freedoms . . . constitutes irreparable injury.”).
CONCLUSION
Plaintiff respectfully requests that this court reverse the grant of summary
judgment in Defendants’ favor and reverse the denial of Plaintiff’s motion for
summary judgment and request for injunctive relief, thereby granting judgment in
Plaintiff’s favor.
Respectfully submitted,
By: /s/ Robert J. Muise

Robert J. Muise, Esq.
THOMAS MORE LAW CENTER
24 Frank Lloyd Wright Drive
P.O. Box 393
Ann Arbor, Michigan 48106
(734) 827-2001
Attorneys for Plaintiff-Appellant
15
CERTIFICATE OF COMPLIANCE
I certify that pursuant to Fed. R. App. P. 32(a)(7), the foregoing Brief is
proportionally spaced, has a typeface of 14 points Times New Roman, and
contains 3,795 words, excluding those sections identified in Fed. R. App. P.
32(a)(7)(B)(iii).
s/Robert J. Muise
Robert J. Muise (P62849)
16
CERTIFICATE OF SERVICE
I hereby certify that on September 19, 2010, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals for
the Sixth Circuit by using the appellate CM/ECF system. Participants in the case
who are registered CM/ECF users will be served by the appellate CM/ECF system.
I further certify that all of the participants in this case are registered CM/ECF
users.
s/Robert J. Muise
Robert J. Muise (P62849)
17

George Saieg V Dearborn Reply Brief

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Case: 10-1746 Document: 006110736150 Filed: 09/19/2010 Page: 1

UNITED STATES COURT OF APPEALS

CITY OF DEARBORN, ET AL.,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

APPELLANT’S REPLY BRIEF

WILLIAM J. BECKER, JR., ESQ. ROBERT JOSEPH MUISE, ESQ.

Attorneys for Plaintiff-Appellant

TABLE OF AUTHORITIES .................................................................................... ii

A. Plaintiff’s religious speech activity and his expressive association

C. Speech restrictions in traditional public forums are sharply

D. The City’s ban on the distribution of religious literature is

E. Plaintiff is entitled to nominal damages for the past loss of his

CERTIFICATE OF COMPLIANCE ....................................................................... 16

CERTIFICATE OF SERVICE ................................................................................ 17

American-Arab Anti-Discrimination Comm. v. City of Dearborn,

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

Congregation Lubavich v. City of Cincinnati,

Connection Distributing Co. v. Reno,

Cornelius v. NAACP Legal Def. & Educ. Fund,

Heffron v. International Soc. for Krishna Consciousness, Inc.,

Lovell v. City of Griffin,

Martin v. City of Struthers,

Metromedia, Inc. v. City of San Diego,

Perry Educ. Ass’n v. Perry Local Educators,

Police Dept. of the City of Chicago v. Mosley,

Roberts v. United States Jaycees,

Schneider v. New Jersey,

S.O.C., Inc. v. County of Clark,

Spingola v. Village of Granville,

United States v. Grace,

Ward v. Rock Against Racism,

Haddad, (collectively referred to as “Defendants”) offer an untenable version of

unconstitutional restriction on Plaintiff Saieg’s fundamental First Amendment

the right to meaningfully participate in public debate on important public issues.

traditional public forums, such as city streets and sidewalks.

treat First Amendment liberties as a mere inconvenience to be pushed aside

however and whenever they wish. Remarkably, in their brief Defendants

enforcement of Defendants’ draconian speech restriction in the “outer perimeter.”1

Defendants’ callous indifference to fundamental constitutional rights must be

rejected, lest First Amendment liberties be relegated to meaningless platitudes in

the City of Dearborn.

There is no question that as a matter of well established constitutional law

Plaintiff’s right to engage in religious expression is at its zenith when he is doing

Contrary to Defendants’ claim (Defs.’ Br. at 11), Plaintiff has never

Decl. at ¶¶ 9-10 at Ex. 1; R-36: Mrowka Dep. at 24 at Ex. 7).

In 2009, however, as a result of a regime change, which included the

addition of Defendant Haddad, Defendants imposed severe and exceedingly

restrictive measures to keep Christian evangelists, such as Plaintiff, in check. They

threatened to arrest Plaintiff if he or any of his associates peacefully distributed any

of their religious literature on the adjacent public sidewalks or in the 30-block

Nonetheless, the following highlights further demonstrate the error of Defendants’

arguments and why the district court’s decision must be reversed.

A. Plaintiff’s religious speech activity and his expressive association with

There is no question that Plaintiff’s speech activity (the distribution of

religious literature in traditional public forums of the City for purposes of

evangelists) is protected by the U.S. Constitution. Lovell v. City of Griffin, 303

Gospel” are constitutionally protected activities). Roberts v. United States Jaycees,

by the First Amendment” is “a corresponding right to associate with others in

pursuit of a wide variety of political, social, economic, educational, religious, and

is an inseparable aspect of freedom of speech.”).

respect than selling hotdogs in the very same forum.

C. Speech restrictions in traditional public forums are sharply limited.

Restrictions on speech in traditional public forums, such as the one at issue