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New Century Foundation v. Robertson

United States District Court, M.D. Tennessee, Nashville Division

September 10, 2019

MICHAEL ROBERTSON, in his official capacity as director of Tennessee Department of Environment and Conservation, Defendant.



         Before the court are a Motion for Summary Judgment filed by plaintiffs New Century Foundation (“NCF”) and Samuel Jared Taylor (Doc. No. 59) and a Motion for Summary Judgment filed by defendant Michael Robertson (Doc. No. 66). For the reasons set forth herein, each motion will be granted in part and denied in part.


         NCF is an organization that publishes “materials about European heritage, culture, and interests.” (Doc. No. 1 ¶ 3.) Its president, Samuel Jared Taylor, is a frequent speaker at public and private events about “issues concerning European heritage, culture, and interests.” (Id. ¶ 1.) In September 2018, the plaintiffs filed a Verified Complaint (Doc. No. 1) seeking declaratory and preliminary and permanent injunctive relief against the defendant, Michael Robertson, in his official capacity as the director of the Tennessee State Park Operations (“Parks Division”), a division of the Tennessee Department of Environment and Conservation (“TDEC”), under 42 U.S.C. § 1983. The plaintiffs alleged that the defendant's policy of requiring the plaintiffs to pay the cost of hiring law enforcement officers to ensure public safety and of repairing damages caused by protesters, if plaintiffs elect to host a conference at a facility owned and operated by the State of Tennessee (the Montgomery Bell Inn and Conference Center, located within Montgomery Bell State Park), violates their rights under the First Amendment.

         After conducting an evidentiary hearing in October 2018, the court denied the defendant's Motion to Dismiss and granted the plaintiffs' Motion for Preliminary Injunction. The defendant was preliminarily enjoined from requiring the plaintiffs, as a condition of contracting to reserve lodging and meeting rooms at the MBICC, to agree to pay “damage repair costs or ancillary fees and charges” arising from damage to MBICC or Montgomery Bell State Park facilities caused by persons not affiliated with the plaintiffs, the cost of “security to ensure public safety” arising from the presence of protesters at the Park, or “any other costs above normal operating expenses reasonably resulting from the group's use of or attendance at the state park” (see Doc. No. 1-1, at 3), to the extent such charges arise from the activities of protesters and third parties over whom the plaintiffs have no control. (See Doc. No. 29.)

         The plaintiffs filed an Amended Complaint in January 2019, which added claims against Robertson in his individual capacity. The plaintiffs now assert that the defendant, in his individual capacity, acted with actual malice, is not entitled to qualified immunity, and may be personally liable both for “general and special” damages directly caused by his violation of the plaintiffs' right to free speech and for punitive damages. (See Doc. No. 39 ¶¶ 17-19.) Otherwise, the plaintiffs continue to maintain that the defendant violated the plaintiffs' constitutional right to free speech by “requiring Plaintiffs to pay an unconstitutional security fee to ensure public safety and [requiring them] to pay for damage caused by protesters if Plaintiffs elect to rent publicly available rooms at MBICC to host a conference at which attendees and speakers would discuss matters concerning European heritage, culture, and interests.” (Doc. No. 39 ¶ 22.)

         The plaintiffs filed their Motion for Summary Judgment and incorporated Brief in Support thereof (Doc. No. 59), on May 1, 2019, along with a document that purports to be a Statement of Undisputed Material Facts (Doc. No. 59-1). The defendant filed a timely Response (Doc. No. 64), Response to Plaintiffs' Statement of Undisputed Material Facts (Doc. No. 64-1), Statement of Undisputed Additional Material Facts (Doc. No. 64-2), and various deposition excerpts and other exhibits. The plaintiff filed a Reply and Response to the Statement of Additional Facts. (Doc. Nos. 65, 65-1.)

         Following the completion of briefing on the plaintiffs' motion, the defendant filed his own Motion for Summary Judgment (Doc. No. 66), Memorandum in Support thereof (Doc. No. 68), Concise Statement of Undisputed Material Facts (Doc. No. 67), and more evidentiary materials. The plaintiff filed an “Answer” to the defendant's motion and incorporated Brief (Doc. No. 70), and a Response to the Statement of Facts (Doc. No. 70-1). The defendant filed a Reply as well as a Reply to the plaintiffs' Response to his Statement of Facts. (Doc. Nos. 71, 72.)


         Rule 56 requires the court to grant a motion for summary judgment 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). The moving party has the initial burden of informing the court of the basis for its motion and identifying portions of the record that demonstrate the absence of a genuine dispute over material facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The moving party may satisfy this burden by presenting affirmative evidence that negates an element of the non-moving party's claim or by demonstrating an absence of evidence to support the non-moving party's case. Id. Accordingly, to win summary judgment as to its own claims, a moving plaintiff must demonstrate that no genuine issue of material fact exists as to any of the essential elements of its claims.

         Once the moving party makes its initial showing, the burden shifts to the non-moving party to provide evidence beyond the pleadings, “set[ting] forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “In evaluating the evidence, the court must draw all inferences in the light most favorable to the non-moving party.” Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

         At this stage, “‘the judge's function is not . . . to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.'” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But “[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient, ” and the party's proof must be more than “merely colorable.” Anderson, 477 U.S. 242, at 252. An issue of fact is “genuine” only if a reasonable jury could find for the non-moving party. Moldowan, 578 F.3d at 374 (citing Anderson, 477 U.S. at 252).

         “The standard of review for cross-motions for summary judgment does not differ from the standard applied when a motion is filed by only one party to the litigation.” Ferro Corp. v. Cookson Group, PLC, 585 F.3d 946, 949 (6th Cir. 2009). “[S]ummary judgment in favor of either party is not proper if disputes remain as to material facts. Rather, the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991) (citations omitted).


         The facts set forth herein are drawn from the defendant's Statement of Undisputed Material Facts (Doc. No. 67), the plaintiff's Response thereto (Doc. No. 70), defendant's Reply to the Response (Doc. No. 72), the First Amended Verified Complaint (Doc. No. 39) and Answer (Doc. No. 53), and various exhibits provided by both parties.[1] The material facts are undisputed-the parties dispute how the law should be applied to those facts.

         Michael Robertson is the Director of TDEC's Parks Division. In that position, he is directly responsible for the overall budget for fifty-six Tennessee state parks and all of the staff who carry on the day-to-day operations of the parks.

         Montgomery Bell State Park (“Montgomery Bell” or the “Park”) is one of Tennessee's resort parks. The Park has an Inn and Conference Center (collectively, “ICC”), which are consolidated in one building. Under state law, resort facilities such as the ICC are required to be revenue-generating and self-sustaining. Tenn. Code Ann. § 11-3-305.

         Every year since 2012, NCF has held an annual conference or meeting at the ICC, at which attendees and speakers “discuss matters concerning European heritage, culture, and interests.” (Doc. No. 39 ¶ 8; Doc. No. 53 ¶ 8.) Every year for the preceding five years, the plaintiffs have reserved, not only the conference and meeting rooms at the Conference Center portion of the ICC, but also all of the sleeping rooms available at the Inn portion of the ICC. They make reservations well in advance of the date of their conference with the specific intent of securing the entire facility.

         In the past, people who disagree with the content and viewpoint of the NCF conferences have gathered to protest during the NCF conferences. (Doc. No. 39 ¶ 10; Doc. No. 53 ¶ 10.) In recent years, TDEC has provided security for conference attendees, sometimes in coordination with other state agencies, and has also provided a zone within the park for protesters to gather, with a “neutral buffer zone between the [event venue] and the crowds/protesters” in which only law enforcement officers are permitted. (Doc. No. 64-3 ¶ 7.)

         In his Supplemental Affidavit, Robertson testified that, each year, prior to the event, TDEC employees discuss the security measures that will be implemented and the rules TDEC expects the attendees to follow. (Robertson Supp. Aff., Doc. No. 64-3 ¶ 3.) If a group provides Robertson with information related to potential threats to a group and its safety, as NCF has done, Robertson will factor that information into his analysis of the staffing needs. Robertson stated, “We also do our own research into all groups to determine the potential for crowds or protesters.” (Doc. No. 54-3 ¶ 3.) “One of the issues for cost-recovery purposes is the likelihood of protesters/crowds that may get rowdy or destructive such that increased security/staffing is necessary to protect the nonpublic forum, the attendees of the event, and the staff at the event.” (Doc. No. 54-3 ¶ 3.) In an email dated May 1, 2018, following NCF's 2018 conference, from plaintiff Jared Taylor to Pat Wright, a member of Robertson's staff, Taylor expressed his appreciation for the “thorough, courteous, and very professional services” of the staff engaged in providing security. (Doc. No. 64-6, at 2.) Taylor continued: “Everyone I spoke to at the conference was grateful for the protection you provided us. . . . I know it must have been very expensive to mobilize a force of that size. . . .” (Id.)

         When the plaintiffs attempted to reserve the ICC for their May 2019 conference, a proposed group contract (“Contract”) containing slightly different language from that used in previous years was provided to them, specifically, language related to cost recovery. On the third page of the Contract the following paragraphs appear:

Refundable Security Deposit: in addition to the reservation deposit, a cash, check, or credit card deposit equal to 10% of the expected balance, including any anticipated catering costs and fees, is required for group reservations. This deposit is due at least 30 days prior to the reservation arrival date and is intended to cover expenses that TDEC may reasonably incur because of the group's reservation and use of or attendance at the state park. The park will hold this deposit as a security deposit to be applied toward: 1) any damage-repair costs or ancillary fees and charges assessed to the group or its members or affiliates due to issues related to the use of the park or its equipment and/or facilities, including park restoration following the group's use; 2) reasonably required state staff expenses that exceed typical staffing expenses for the facility, including event monitoring, set-up, takedown, or security to ensure public safety; 3) use of additional facilities; and/or 4) any other costs above normal operating expenses reasonably resulting from the group's use of or attendance at the state park.
The parties agree that the Park may assess reasonable fees or charges above the security deposit, should the security deposit be insufficient to cover the expenses listed above.

         (Contract, Doc. No. 1-1, at 3 (emphasis added); see also Robertson Supp. Aff. Doc. No. 64-3 ¶ 2 (“The contract that we provided to NCF was the one that was being used at that point and is still in use today for all groups. . . .”).)

         Leading up to the implementation of the revised group Contract, around 2013, TDEC began to consider cost recovery measures for group events at the revenue-generating facilities in the state parks, such as the ICC, so that the facilities could continue to be self-sufficient. TDEC determined that, because group events sometimes lead to increased need for security and personnel above the norm, the contract that had been used by various groups to reserve state park facilities, such as the ICC, needed to be modified to allow for cost recovery measures.

         In deciding whether to provide for cost recovery and, if so, what language should be used, the defendant and TDEC's office of General Counsel looked at National Park Service materials. Robertson ascertained that National Park Service materials contained cost recovery language for national park facilities to use. After several iterations, TDEC settled upon a revised group contract in 2018 that contained the cost recovery language quoted above. The contract is intended to be used for reservations at all revenue-generating facilities at Tennessee state parks that are subject to the statutory mandate that they be self-sufficient.

         The plaintiffs' claims in this lawsuit are based on their reading of the requirements imposed by this new contractual language. Specifically, they object to the Contract insofar as it manifests a policy to make the plaintiffs financially responsible for the cost of security to “ensure public safety”-which the plaintiffs interpret as including the safety of the protesters assembled in the public areas of Park as well as their own safety from the protesters-and for the repair of all damages to park facilities-which the plaintiffs interpret to include damages caused by protesters, as suggested by the Contract's reference to “damage-repair costs . . . due to issues related to the use of the park or its . . . facilities, including park restoration following the group's use.” (See Doc. No. 39 ¶ 12.) The plaintiffs do not argue that the imposition of a security deposit, per se, constitutes an unconstitutional prior restraint on speech. Rather, they contend that the requirement that they agree to cover future costs that they are not able to estimate in advance and that are based on factors outside their control constitutes an unconstitutional prior restraint on their speech in the form of a so-called “heckler's veto.”

         The defendant has maintained at least since the October 4, 2018 hearing that the Parks Division has no intention to charge the plaintiffs for any damages caused by protesters. (Hr'g Tr., Doc. No. 47, at 26-27 (explaining that the group could be charged for damages caused by attendees but not for any damages caused by “other people who are using park facilities”); Robertson Aff., Doc. No. 19-1 ¶ 12; Robertson Supp. Aff., Doc. No. 64-3 ¶ 10.) Robertson also insists that the purpose of the group contract is to “recover for the greater than normal Tennessee Parks-incurred costs . . . related to the protection of the revenue-generating facilities” and those “related to the security of the attendees of and staff present for the event at the facility.” (Doc. No. 64-3 ¶ 4.) Robertson construes the scope of the term “public safety” to mean the safety of the ICC staff and event attendees, not the safety of the general public, including that of any protesters. (Id.; see Id. ¶ 8 (“My interpretation of the contract's provision for a security/personnel fee to ‘ensure public safety' meant security provided by the Tennessee Parks Department necessary to protect the users of the facility, in this case, the users of the [ICC]. The ‘public' that is referenced means the persons using the facility pursuant to the group contract.”).) The task of policing the area occupied by protesters falls, to some extent, upon park rangers but is undertaken “primarily [by] other State agencies such as the Department of Safety, Tennessee Bureau of Investigation, and the Department of Correction, among others.” (Id. ¶ 4.) Robertson asserts that “[t]he costs associated with the handling of the protesters, security to ensure the safety of the general public, and the use of the public part of the park are not borne by NCF.” (Id. ¶ 4.) The cost of posting park rangers at any “entrances that provide ingress/egress” to the ICC from the buffer zone is the only charge arising from the posting of park personnel outside the strict confines of the ICC that would be passed on to NCF. (Id. ¶ 7.) Robertson specifically represents that, if a group's event “needed additional security or other measures in excess of what we normally provide, then those would be charged as cost recovery measures.” (Doc. No. 47, at 27.)

         Robertson has been employed by the Parks Division for more than thirty years and began his tenure as a park ranger. He was promoted through the ranks over the years and attained his current position in 2012. As part of his training, education, and experience in his various positions with the Parks Division, Robertson learned how to assess the needs for law enforcement, staffing, and other resources for events, “including needs for protection of park property and users of park property.” (Doc. No. 70-1 ¶ 9.)

         Robertson testified that the criteria generally used to determine the amount of staffing required for any particular group event include:

(1) the facility or facilities reserved; (2) the time of year of the reservation, which takes into account the probable weather and other considerations of the year, for example high-traffic times of the year; (3) the time of day that the event is to take place, including evaluation of events which are to occur over multiple days; (4) the revenue-generating impact of the group's reservation on the use of other park facilities; (5) the security of park staff inside the reserved facilities that are reasonably required to protect the facilities from harm and who are required to work the event under the group reservation; (6) the estimated number of participants in the group making the reservation; and (7) the estimated number of viewers, including media.

         (Robertson Aff., Doc. No. 19-1 ¶ 11 (cited in Statement of Undisputed Facts, Doc. No. 67 ¶ 10).) He avers that these criteria apply to every group reservation (id. ¶ 10) and that he has used the above-referenced factors to determine the needs for events for many years (Robertson Supp. Aff., Doc. No. 64-3 ¶ 1). Robertson expressly acknowledges that “the presence of protesters/crowds in the [public areas of the park] may have an impact on the fee to be charged, ” but he insists that the fees “are not related to the actual activities of the protesters, the use of the public park forums, or the security to ensure the safety of the general public-those activities are handled primarily by other State agencies.” (Doc. No. 64-3 ¶ 4.) The defendant concedes, however, that “part of the ...

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