Miller v. City of Excelsior, Minnesota

Background

David Miller, described in the opinion as a Minnesota resident and evangelical Christian, wanted to share religious, political, and social views on public sidewalks in Excelsior’s B-1 and B-2 downtown business districts. He wanted to use a voice amplifier because he alleged that background noise made it impossible to be heard conversationally without amplification. The opinion states that he did not seek to draw a crowd, block passageways, solicit money or organizational membership, or participate in demonstrations.

Excelsior’s noise ordinance prohibited amplified sound in the B-1 and B-2 districts when it was plainly audible at the property line of its source. The parties understood this rule to effectively eliminate unpermitted amplified sound on the public sidewalks. Outside those districts, the ordinance imposed distance-based limits. The City treated Miller’s proposed use of amplified sound as a special event requiring a permit, even if fewer than 50 people attended. The permitting scheme included a $150-per-day application fee and a 30-day advance-application requirement for Level 1 events. The fee could not be waived or varied, although other requirements could be subject to a variance.

Miller had used a megaphone on an Excelsior sidewalk in 2020. A police sergeant told him that he could share his views but that using a megaphone violated the City Code; Miller was not cited. Later communications from city officials stated that he needed a permit to use amplified sound in the downtown districts. Miller sought a variance from the fee and notice requirement. The City agreed to waive the 30-day requirement but stated that the fee could not be varied. Miller did not submit a permit application.

Claims and preliminary-injunction standard

Miller sued under 42 U.S.C. § 1983, a federal law allowing claims against state or local officials for violations of federal rights. He brought facial and as-applied challenges based on free speech, religious exercise, and due process. A facial challenge attacks a law more broadly, while an as-applied challenge contends that the law cannot be enforced against the particular plaintiff. His motion for a preliminary injunction sought to stop enforcement of the amplified-sound restriction and the permit requirement for amplified speech on the downtown sidewalks.

The court applied the four preliminary-injunction factors: likely success on the merits, likely irreparable harm, the balance of harms, and the public interest. Because Miller sought to block enforcement of local ordinances, the court required him to show that he was more likely than not to prevail. The opinion discusses only his free-speech and due-process claims because Miller did not separately brief his religious-exercise claim and confirmed that he viewed it as coextensive with his free-speech claim.

Amplified-sound restriction

The court treated Miller’s challenge to Section 16-105(b)(3) as primarily facial. It concluded that the restriction was content-neutral, meaning it regulated sound without regard to the speaker’s message. Even so, a content-neutral speech restriction must be narrowly tailored to serve a significant governmental interest and leave adequate alternative ways to communicate.

The court recognized that Excelsior had a significant interest in protecting residents and property users from unwelcome noise. But it found that Section 16-105(b)(3) likely burdened substantially more speech than necessary because it prohibited amplified sound that was audible at the property line, regardless of whether the sound was loud, raucous, disturbing, or interfered with others’ use of the area. In the court’s view, the rule effectively eliminated amplified sound on public ways in the downtown districts and could reach sound only slightly louder than ordinary speech. The court therefore found that Miller was likely to succeed on his facial challenge to that provision.

Special-event permit scheme

The court held that the permit system was a form of prior restraint because it required approval before certain speech could occur. But it concluded that the system’s facial permit requirement could be construed as applying to special events involving amplified sound, rather than to every use of amplified sound. The City had a substantial interest in permitting events that could involve crowds, competing uses of public spaces, and demands on city resources.

The court rejected Miller’s facial argument that the permit scheme gave officials unbridled discretion. It found that the Code identified objective grounds for denying permits, including failure to meet application requirements, prior noncompliance, scheduling conflicts, safety risks, significant property damage, and undue burdens on public-safety resources. It also found that the variance provision supplied sufficient limits and that the record did not show unfair or discriminatory administration. The court likewise rejected, at this stage, Miller’s challenge to collecting basic contact information from applicants. It noted that Miller had not shown that the liability-insurance requirement was likely to be applied to him, particularly because the City presented evidence that Level 1 events were not required to carry insurance.

The court separately found that Miller was likely to succeed on his as-applied challenge to the 30-day notice requirement. Miller was a single speaker, and the court found that requiring 30 days’ notice substantially burdened spontaneous speech and was excessive for a small-scale event. The court also found that the possibility of a variance did not cure the problem because obtaining one imposed uncertainty and could take weeks.

The court further found that Miller was likely to succeed on his as-applied challenge to the non-waivable $150-per-day fee. Based on Miller’s proposed activity, the court considered costs such as location preparation, cleanup, and wear and tear to be of limited relevance. It also noted that charging the full fee for each day appeared difficult to reconcile with the City’s claimed administrative costs. The court stated that the fee might be constitutional in some circumstances but appeared unlikely to be narrowly tailored in Miller’s case on the record presented.

Ruling and scope of relief

Judge Eric C. Tostrud concluded that all four preliminary-injunction factors favored Miller. The court found likely irreparable harm because the City’s enforcement threat chilled his intended speech, and it found that the public interest and balance of harms favored protecting his speech without the challenged downtown ban, 30-day notice requirement, and $150 daily fee.

The court’s order expressly GRANTED in part and DENIED in part Miller’s motion for a preliminary injunction. It preliminarily enjoined the defendants and their officers, agents, employees, and assigns from enforcing Section 16-105(b)(3). It also preliminarily enjoined them from requiring Miller to submit a permit application at least 30 days before the speech described in his submissions and from requiring him to pay the $150 application fee for that speech. The order stated that it did not prohibit enforcement of any other provision of Excelsior’s Code of Ordinances and that the motion was denied in all other respects. Miller was required to post a $150 bond by 5:00 p.m. on August 10, 2022.