In the case of Florida Gun Shows, Inc. v. City of Fort Lauderdale, 2019 U.S. Dist. LEXIS 26926 (S.D. Fla. 2/19/2019), the city of Fort Lauderdale (the City) had entered into a series of leases over many years with a private entity, Florida Gun Shows (FGS), to conduct several gun shows in an auditorium located in a public park. In light of recent mass shootings at a local high school and airport, the City decided not to honor the 2019 reservation for an upcoming gun show, because gun shows were now considered to be inappropriate in a multipurpose rental facility within a “family friendly” public park.
Defendant FGS petitioned the federal district court to issue a preliminary injunction, which would block “the City from violating its free speech rights and requires the City to issue license agreements to the Plaintiff for the promised future dates for the promotion of gun shows, under the same terms and conditions that the City offers to promoters of events other than gun shows.”
As illustrated by the opinion described herein, judicial scrutiny of governmental decisions involving commercial speech in a revenue-producing, multipurpose facility for designated events is much more deferential than regulations involving free speech activities in a traditional public forum, like a public park. Governmental regulation of free speech activities in a public forum, like a public park, must be narrowly drawn to achieve a compelling governmental interest. On the other hand, governmental regulation of commercial speech in a non-public forum, like revenue-producing leases for a government-owned auditorium, must simply be reasonable to pass constitutional muster under the First Amendment.
Multipurpose Rental Facility
In 2012, the City had issued the “WMA Policies and Procedures,” which defined the purpose of the War Memorial Auditorium as follows:
To provide a guideline and procedures for the rental of the War Memorial Auditorium (WMA), a multipurpose rental facility that hosts a wide variety of events to enhance the lives and leisure time of the Citizens of Fort Lauderdale and surrounding communities.
We strive to provide these experiences while operating the facility with no cost to the City taxpayers. Revenue is achieved through facility rentals, equipment rental, parking fees, concession sales, and reimbursement for labor and services.
In addition, the “WMA Policies and Procedures” provided the following guidance regarding “decisions to enter into a lease agreement”:
War Memorial Auditorium is a multipurpose facility available to be rented for events, meetings and activities. The Auditorium Manager reviews rental requests on a case-by-case basis in conjunction with the Parks and Recreation Deputy Director. The WMA management reserves the right to decline rental under certain circumstances, including, but not limited to, previous failure to abide by the terms of the contract; failure to pay required fees or costs; illegal or inappropriate activities or subject matters.
The City described the WMA as “an asset which continues to generate revenue for the city” by hosting events that have included “an international collector car auction, bodybuilding championships, PRIDE (serving the LGBTQ community), MMA [Mixed Martial Arts] events and the Orchid Show.” On several occasions, the City had refused to issue licenses for the WMA based on the content of the events, including an adult toy show and a topless circus. According to the City, “there had been no questions about the appropriateness of gun shows at the WMA until 2012, when the sale of guns increased.”
In past years, FGS had organized and promoted gun shows several times per year at the War Memorial Auditorium in Fort Lauderdale. In 2015 and 2016, FGS presented six shows per year at the WMA, and in 2017 and 2018, there were seven per year. Attendance generally was 3,500 visitors per show, with most exhibitors coming from locations within 100 miles of Fort Lauderdale. FGS earned income from these gun shows through the sale of tickets to the shows and table rentals to the exhibitors and vendors that sold firearms, accessories, knives and gun-related items.
FGS claimed a “perfect safety record with no incidents or arrests occurring at any of its shows.” In addition, it had “10 police officers at every show, some of whom are stationed outside the WMA, to ensure that all guns are in cases and that no illegal activities are taking place.”
FGS had existing license agreements with the City and had signed a license agreement reserving dates for 2019. It had complied with all the agreements with the City but acknowledged that “the WMA is located within a park which includes recreation areas,” and other FGS gun-show venues were not in parks.
While FGS claimed the gun shows were “family friendly,” the advertising for the gun shows did not reflect this, and there were no play areas or activities for children at the shows. On the contrary, gun-show advertising showed a novelty “grenade launcher” and AR15 semi-automatic rifles without clips. Ammunition and clips were also sold at these gun shows.
Although FGS and the City had worked out reserve dates through 2025, the City released these dates in October 2018 after FGS’s license dates were not renewed. FGS conceded that the City had tried to assist in finding a venue other than the WMA for the gun shows. Moreover, there was another FGS gun show scheduled for September 2019 elsewhere in Broward County.
Beginning in 2016, there were protests by a group of about six people at the FGS events. According to the deputy director of the parks and recreation department, the City had received complaints from parents about gun shows being held in a park at the same time as youth sport programs.
Park Appropriate for City Manager
The city manager was the chief executive officer of the municipal corporation and made all decisions not specifically reserved to the city commission. In a letter dated August 31, 2018, he notified FGS that the City was declining its request for a license agreement for 2019 and any proposed license agreements for future shows beyond November 2018. He did not seek guidance from the mayor or city commission regarding the renewal of the FGS license agreement, but he was aware of comments on this subject that had been made by members of the commission and others.
The city manager acknowledged that one of his reasons for not renewing the FGS license was his subjective characterization of gun shows as not “family-oriented entertainment.” As understood by the city manager, “activities at the WMA should be consistent with those of a park; i.e., events to which one could send an unaccompanied 13- or 15-year-old.” While “family-oriented entertainment” was not a requirement for activities at the WMA, the city manager viewed it as a “philosophy or part of a business plan.” He admitted, however, that licenses had been issued to FGS and its predecessor every year prior to 2018.
According to the city manager, his understanding of what activities were considered family friendly had changed over time. While his formulation was a general definition, it primarily applied to the Fort Lauderdale community, and was influenced by community reaction to the mass shootings in Parkland, Florida, and at the Fort Lauderdale airport. After these incidents, the city manager found that the number of negative public comments about the gun shows increased. Before that time, the city manager did not believe the City would have supported banning gun shows at the WMA.
The city manager claimed he was not aware that gun shows were being held at the WMA until 2012. In 2013 and 2014, some parents in the community expressed their concerns about the City’s role in “promoting an activity which was not in keeping with other activities in the park.” While the city manager admitted he knew of no illegal gun sales at FGS events, he thought “the emphasis at gun shows has changed in recent years from recreational gun use to self-defense.”
Moreover, the city manager believed “the showcasing of militarized weapons was a factor in transforming gun shows into an activity which does not belong in a municipal park that is supported by taxpayers’ dollars.” Further, the city manager noted the City had bought back 100–200 guns from its citizens in 2018. In his opinion, “a municipality which is buying guns back from people should not, at the same time, be engaged in putting guns back on the street.”
In deciding not to renew the FGS license agreement, the city manager admitted he did not consider any analytical data concerning whether weapons sold at the FGS gun shows had been used in any crimes. Moreover, he did not know how many fewer guns or knives would be sold as a result of eliminating the gun shows. Nevertheless, the city manager did not want the City to contribute to gun and knife violence and believed sales of weapons at least might be slowed by canceling the shows.
The city manager had visited some FGS shows for 10 or 15 minutes and did not recall seeing any children at the shows. He did not interview anyone prior to making the decision not to renew the FGS license agreement.
Preliminary Injunction Requirements
This case was considered, and the opinion was issued by a federal magistrate judge in the federal district court. Federal magistrate judges are appointed to assist federal district court judges in the performance of their duties.
As described by the federal magistrate judge, a pretrial preliminary injunction, blocking the City’s action prior to trial, would require FGS to show “a substantial likelihood of success on the merits of its claims” when the case proceeded to trial. In addition, FGS would have to show it would suffer “irreparable damage” if the court did not grant the requested preliminary injunction. Moreover, the threatened injury to FGS would have to outweigh any damage the proposed injunction would cause to the City. Further, FGS would have to
show that the requested injunction, if issued by the court, “would not be adverse to the public interest.”
First Amendment Commercial Speech
FGS claimed it would likely succeed at trial on its claim that the City’s ban on gun shows at the WMA violated the “First Amendment right to commercial speech while not advancing any substantial interest of the City.” In response, the City claimed its decision not to license gun shows at WMA was “a permissible regulation of commercial speech.” Further, the City claimed, “the public [has] an overriding interest in not being exposed to military-style weapons in its public facilities and communities at large.”
As noted by the federal magistrate judge, on the First Amendment claim, “the deprivation of free speech rights constitutes an irreparable injury as a matter of law.” On the other hand, the court found FGS would not necessarily “suffer irreparable injury,” because FGS had “an adequate remedy at law in the form of damages” to recover any economic losses associated with the City’s decision not to renew the license agreement for 2019. As a result, in determining whether FGS was entitled to the requested preliminary injunction, the federal district court would determine whether FGS had had its First Amendment commercial speech rights violated by the City’s decision.
FGS and the City both agreed that “the offer for sale of guns, knives and ammunition at the Plaintiff’s [i.e., FGS] gun shows is lawful commercial speech, entitled to First Amendment protection as long as that speech is not misleading.” Moreover, FGS and the City both agreed on the following point:
[O]nce it is determined that an offer of goods for sale is a lawful activity and not misleading, a state or local regulation which restricts that activity must directly advance a substantial government interest and must not be more extensive than is necessary to serve that interest.
That being said, the federal magistrate judge acknowledged that “the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.”
Government as Business
Within the context of First Amendment protection for commercial speech, the court examined “the distinction between a municipality acting in its proprietary, rather than its law-making role.” As noted by the court, the U.S. Supreme Court had recognized the “long-settled principle that governmental actions are subject to a lower level of First Amendment scrutiny when the governmental function operating is not the power to regulate or license, as lawmaker, but, rather, as proprietor, to manage its internal operations.” Specifically, when “the Government operated in its proprietary capacity,” the court acknowledged governmental “actions will be deemed valid, for First Amendment purposes, unless they are unreasonable, or are arbitrary, capricious or invidious.”
Further, in determining “whether the speech in question is protected speech,” the court acknowledged that “even protected speech is not equally permissible in all places and at all times.” According to the court, “nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property.” On the contrary, the court noted: “the Government, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”
To address the scope and applicability of First Amendment protection, the court found that “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.” This forum analysis established by the Supreme Court draws “a distinction between property traditionally utilized as a public forum for the free exchange of ideas and property used as a nonpublic forum”:
[W]hen the property in question is a public forum, speakers can be excluded only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest. However, access to a non-public forum can be restricted by the Government as long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view.
In assessing reasonableness, the court would consider “the purpose of the forum and all the surrounding circumstances.” While “the Government’s decision to restrict access to a non-public forum need only be reasonable,” the court noted this decision “need not be the most reasonable or only reasonable limitation.”
Credible Business Decision
Applying these principles to this particular case, the federal magistrate judge found “the City was acting in its proprietary capacity” when making its decision not to renew the agreement with FGS for 2019. In so doing, the court found the city manager had made a credible business decision that was limited to the gun shows scheduled for the calendar year 2019. Further, the court determined the city manager had decided “based on his belief that gun shows were not the type of family-friendly activities which should be held in an auditorium located in a public park.”
In concluding that the city manager’s action was a proprietary decision, the federal magistrate rejected the FGS characterization of the City’s 2019 lease agreement policy as effectively a legislated “new rule” within the City’s law-making authority. Further, the federal magistrate found this proprietary decision by the city manager not to renew the City’s agreement with FGS was “consistent with the fact that other types of shows have been denied licenses at the WMA based on inappropriate subject matter (as authorized by the WMA’s Policies and Procedures), as well as by the fact that gun shows are permitted elsewhere in the City.”
In the opinion of the court, “treating this decision as a rule of regulation” would be inappropriate and effectively “render the City powerless to use its property for other purposes, such as the proposed uses as a soccer and lacrosse stadium or a concert venue.” As a result, the court found the First Amendment would not mandate an injunction requiring the renewal of the City’s agreement with FGS for gun shows in 2019 and reserved dates in the future.
As noted by the court: “When the government acts in its position as a proprietor to manage its internal operations, as opposed to using its power as a regulator or lawmaker, those governmental actions are subject to a lower level” of First Amendment judicial scrutiny; i.e., a showing of reasonableness will suffice as opposed to proof of a compelling state interest.
In this instance, the federal magistrate found the WMA was not a public forum because “access to the venue is not open to all who apply for a lease.” On the contrary, the magistrate found “the City has in the past found such activities as an adult toy show and a topless circus to be unsuitable to the WMA.” Having found the WMA was a non-public forum, the question before the court was, therefore, whether the city manager’s decision not to renew the FGS lease for 2019 was “reasonable.”
The city manager had cited the following “long-held view” as the primary reason for his decision:
[G]un shows, which are held during the daytime and on weekends, are not the type of family-friendly activity appropriate for an auditorium located in a public park with play areas for children.
Moreover, he noted a perceived “shift in gun shows’ emphasis after 2012 from recreational gun use to self-defense, as well as the increasing prominence of militarized weapons at the shows.” Further, the city manager had been receiving “complaints from parents about gun shows in Holiday Park, especially after the recent mass shootings in nearby Parkland, Florida, and at the Fort Lauderdale airport.”
The federal magistrate agreed with FGS that the city manager’s determination that “gun shows are not ‘family friendly’ is a subjective one.” Nevertheless, the federal magistrate found that “common sense clearly supports the concept that activities in public parks which include play areas for children should be suitable for all ages.” In the past, the court further noted the City had refused to lease the WMA for “activities deemed to be inappropriate for the venue.”
Accordingly, the federal magistrate found that the city manager was “entitled to consider the emotional impact of the recent mass shootings on the parents and children in this community when deciding, at least for 2019, that a gun show was not an appropriate activity to be held at the WMA within Holiday Park.”
The federal magistrate concluded that (1) the City’s decision not to renew the Plaintiff’s lease agreement for 2019 was made in its proprietary, rather than its law-making capacity, (2) the restriction of the Plaintiff’s commercial speech was in a non-public forum and (3) the decision to exclude the Plaintiff’s gun show was reasonable.
Based on these conclusions, the federal magistrate found FGS had “failed to show a substantial likelihood of success on the merits of its First Amendment claim.” The federal magistrate, therefore, denied the FGS request for a preliminary injunction. FGS could then appeal this determination by the federal magistrate judge and seek a preliminary injunction based on a full review of the pretrial record by a federal district court judge.