August 2014 - Parks & Recreation - 36

L AW R E V I E W

pertaining to different locales altogether or...to justify restrictions
based solely on history, consensus and simple common sense.
The state supreme court found " Ordinances that relate to
the interest of ensuring the safety of people using public forums have been consistently upheld. " Within the context of
a significant government interest, the court noted " a traditional exercise of the state's police powers is to protect the
health and safety of its citizens. " In the opinion of the court,
Cleveland's " curfew and permit requirements in Cleveland
Codified Ordinance 559.541 address these issues. " The court
found " [t]he ordinance itself protects the safety of those
wishing to use the square after hours and protects the city's
investment in that property. "
The ordinance also protects the city's investment in the
Public Square. Property preservation and aesthetic concerns
have been held to be significant when they concern urban
spaces and public parks. A city's interest in preserving the
quality of urban life is one that must be given high respect.
The state supreme court held that " the significance of
these interests is well-settled and justifies the time, place

and manner restriction here, " because " the government interests that the city seeks to promote and protect through
the ordinance have been consistently upheld as satisfying
intermediate scrutiny. "
Narrowly Tailored
The protesters also argued that the city's permit requirement in the ordinance was " not " narrowly tailored " to further the city's significant governmental interests. The state
appeals court agreed. In the opinion of the state appeals
court, the purpose of the permit requirement created an
" unreasonable ban " and eliminated " peaceful speech. "
In response, the city contended the ordinance was " not a
complete ban on speech. " The city stressed " the ordinance
simply prohibits any person from remaining in the Public
Square between 10 p.m. and 5 a.m. " As a result, the city
claimed the ordinance allowed " unfettered and unrestricted access at all other times of day. " Consistent with the ordinance, the city reiterated that " [t]hose seeking to remain
in the square during the hours limited by the ordinance,
regardless of whether they wish to engage in speech or any
other type of activity, may do so by obtaining a permit. "
As described by the state supreme court, " [a] regulation
of the time, place, or manner of speech or expression must
be narrowly tailored to serve the government's legitimate
content-neutral interests, but it need not be the least restrictive or least intrusive means of doing. " On the contrary, the court acknowledged " [t]he requirement to narrowly tailor the regulation of speech is satisfied so long as
the neutral regulation promotes a substantial government
interest that would be achieved less effectively absent the
regulation. " Accordingly, the state supreme court rejected the holding of the state appeals court that Cleveland's
ordinance was not narrowly tailored. In the opinion of
the state supreme court, Cleveland Codified Ordinance
559.541 was indeed " narrowly tailored to serve its significant government interests. "
The city's interests in safeguarding public health, protecting against violence and criminal activity, and preserving
the Public Square would be achieved less effectively without
the enactment and enforcement of Cleveland Codified Ordinance 559.541. The ordinance does not ban public expression within the square 24 hours a day. The limitation is on
any activity during the late night and early morning hours,
unless granted a permit.
Alternative Communication Avenues
Having found the challenged ordinance served a signifi-

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August 2014 - Parks & Recreation

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