MEMORANDUM OPINION AND ORDER
JOSEPH HOOD, District Judge
This matter is before the Court upon cross-motions for summary judgment on the plaintiff's appeal of the Commissioner's denial of his application for Supplemental Security Income and Disability Insurance Benefits [Record Nos. 10, 13]. The Court, having reviewed the record and being otherwise sufficiently advised, will deny the Commissioner's motion and grant the plaintiff's motion.
These are not traditional Rule 56 motions for summary judgment. Rather, it is a procedural device by which the parties bring the administrative record before the Court.
I. OVERVIEW OF THE PROCESS
The Administrative Law Judge ("ALJ"), in determining disability, conducts a five-step analysis:
1. An individual who is working and engaging in substantial gainful activity is not disabled, regardless of the claimant's medical condition.
2. An individual who is working but does not have a
"severe" impairment which significantly limits his physical or mental ability to do basic work activities is not disabled.
3. If an individual is not working and has a severe impariment which "meets the duration requirement and is listed in appendix 1 or is equal to a listed impairment(s)", then he is disabled regardless of other factors.
4. If a decision cannot be reached based on current work activity and medical facts alone, and the claimant has a severe impairment, then the Secretary reviews the claimant's residual functional capacity and the physical and mental demands of the claimant's previous work. If the claimant is able to continue to do this previous work, then he is not disabled.
5. If the claimant cannot do any work he did in the past because of a severe impairment, then the Secretary considers his residual functional capacity, age, education, and past work experience to see if he can do other work. If he cannot, the claimant is disabled.
Preslar v. Sec'y of Health and Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994) (citing
20 C.F.R. § 404.1520 (1982)). "The burden of proof is on the claimant throughout the first four steps of this process to prove that he is disabled."
Id. "If the analysis reaches the fifth step without a finding that the claimant is not disabled, the burden transfers to the Secretary."
Id.
II. STANDARD OF REVIEW
In reviewing the ALJ's decision to deny disability benefits, the Court may not try the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility. Cutlip v. Sec'y of Health Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). Instead, judicial review of the ALJ's decision is limited to an inquiry into whether the ALJ's findings were supported by substantial evidence and whether the ALJ employed the proper legal standards in reaching his conclusion. 42 U.S.C. § 405(g) Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001), see Landsaw v. Sec'y of Health and Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). "Substantial evidence" is "more than a scintilla of evidence, but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Cutlip, 25 F.3d at 286.
III. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed for disability benefits on October 18, 2006, alleging an onset of disability of October 17, 2006, due to learning disabilities and back problems. [Administrative Record (hereinafter, "AR") at 106-109, 120-131.] Plaintiff's application was denied upon his initial application and upon reconsideration. Upon Plaintiff's request, a hearing on his application was conducted on October 16, 2008, and his application was subsequently denied by Administrative Law Judge ("ALJ") Traci M. Hixson on February 10, 2009. [AR at 15-39.] Plaintiff timely pursued and exhausted his administrative and judicial remedies, and this matter is ripe for review and properly before this Court under § 205(c) of the Social Security Act, 42 U.S.C. § 405(g).
Plaintiff was thirty-one-years-old at the time of the final decision by the ALJ. [See AR at 106.] He has a ninth grade education and past work experience as an assembler at an all-terrain vehicle retail store. [AR at 19, 24.] He suffered injuries in an automobile accident in 2005. During an evaluation of Claimant, Robert P. Granacher, Jr., M.D., consulting examiner, noted that Ambrose is functionally illiterate, in addition to other matters noted in his evaluation. [AR at 253.]
Based upon a review of the record in this matter and the pleadings presented by the parties, there appears to be no dispute that Claimant is functionally illiterate.
During the hearing in this matter, the ALJ posed a hypothetical to the vocational expert, inquiring about:
[A] person of the same age, education and employment history of Mr. Ambrose, who can lift, carry, push and pull 20 pounds occasional[y], 10 pounds frequently, who can stand and walk for 6 hours out of an 8-hour day, but who needs the ability to have a sit/stand option every 30 minute[s], who can sit for 30, for, for 6 hours, who can, who can do limited, and I define limited as 2 hours or less, who can do limited climbing, bending, stopping, and kneeling.
Who can also perform simple, routine tasks involving no more than simple, short instructions, and simple work-related decisions with few workplace changes, and who has minimal interaction with the public, co-workers, and supervisors.
[AR at 31-32.] The vocational expert identified assembly, ticket seller, and surveillance monitor jobs that could be performed by an individual with the limitations described. [AR at 33-34.]
The ALJ then presented the VE with a second hypothetical in which she described an individual with the same physical limitations who could perform "simple, routine tasks, follow[] short, simple instructions, who [does] not work[] at production rate pace, who is unable to work in close proximity to others, because he's easily distracted, and who is not required to read instructions or write reports, or do math calculations." [AR at 34 (emphasis added).] In response to this inquiry, the VE stated that an individual with those limitations could perform the job of a sedentary surveillance monitor, of which there were approximately 2,000 jobs in the Commonwealth of Kentucky and 100,000 jobs nationally.
At the conclusion of all proceedings, the ALJ made the following findings of fact and conclusions of law in determining that Plaintiff was not entitled to disability benefits:
1. The claimant has not engaged in substantial gainful activity since October 17, 2006, the application date (
20 CFR 416.971,
et seq.).
2. The claimant has the following severe impairments: chronic back pain, borderline intellectual functioning, and panic disorder (
20 CFR 416.921,
et seq.).
3. The claimant does not have an impairment or combination of impairments that meets
[sic] or medically equals
[sic] one of the listed impairments in 20 CFR 404, Subpart P, Appendix 1 (
20 CFR 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to lift, carry, push or pull 20 pounds occasionally and 10 pounds frequently; stand/walk six hours in an eight-hour workday; and sit six hours in an eight-hour workday with a sit/stand option every 30 minutes. He is limited to occasional (two hours or less) climbing, bending, stooping, and kneeling. The claimant has the ability to do simple, routine tasks involving simple short instructions and simple work-related decisions with few work place changes; and minimal interaction with the public, co-workers, and supervisors.
5. The claimant is unable to perform any past relevant work (
20 CFR 416.965).
6. The claimant was born on September 22, 1977 and was 29 years old, which is defined as a younger individual age 18-49, on the date the application was filed (
20 CFR 416.963).
7. The claimant has a marginal education and is able to communicate in English (
20 CFR 416.964).
8. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (
20 CFR 416.968).
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (
20 CFR 416.969 and 416.969a).
10. The claimant has not been under a "disability," as defined in the Social Security Act, since October 17, 2006, the date the application was filed (
20 CFR 416.920(g)).
[AR at 9-14.]
IV. ANALYSIS
A. Error to Omit Consideration of Functional Illiteracy
Claimant argues that the ALJ's determination that he is not disabled is not supported by substantial evidence of record because the ALJ submitted a hypothetical to the vocational expert which did not accurately portray Claimant's condition. Specifically, Claimant complains that the residual functional capacity statement crafted by and ultimately relied upon by the ALJ fails to take into account his functional illiteracy and that, thus, any decision that relies upon a response to that hypothetical would be unsupported by substantial evidence of record. The Court agrees.
The ALJ omitted any limitations based on Claimant's functional illiteracy from the first hypothetical presented to the vocational expert and upon which the ALJ later relied in formulating her opinion. In fact, this significant and relevant fact simply goes unmentioned by the ALJ in her decision. The ALJ neither concludes nor rejects a conclusion that Ambrose is functionally illiterate, notwithstanding the undisputed nature of the fact and the second hypothetical crafted by the ALJ which took his functional illiteracy into consideration. All of this is to say that the vocational expert's response, upon which the ALJ relies in the decision rendered on February 10, 2009, was not "given in response to a hypothetical question that accurately describes the plaintiff in all significant, relevant respects." Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994). Because the ALJ relied on testimony from the vocational expert which was elicited in response to a hypothetical that failed to take into account the fact that Claimant is functionally illiterate, the decision is not supported by substantial evidence of record. The decision of the ALJ shall be reversed and this matter remanded for further proceedings which take Ambrose's functional illiteracy into account.
B. ALJ Did Not Fail to Account for Panic Attacks or Low Intellectual Functioning Nor Did She Improperly Give More Weight to the Opinion of Non-Treating Source Than to Examining Source
Ambrose also complains that the ALJ did not account for his panic attacks or low intellectual function in the hypothetical posed to the VE and also erroneously relied upon non-examining sources to the exclusion of the opinions of Robert P. Granacher, Jr., M.D., consulting examiner. In the ALJ's opinion, however, she specifically noted Claimant's reported panic attacks and his Global Assessment of Functioning rating of 65, a rating which Claimant does not dispute. Such limitations are clearly accounted for in the hypotheticals which describe an individual who can "perform simple, routine tasks involving no more than simple, short instructions, and simple work-related decisions with few workplace changes, and who has minimal interaction with the public, co-workers, and supervisors."
Nor did the ALJ give more weight to the non-examining source, H. Thompson Prout, than that of Dr. Granacher. The ALJ stated that she gave "great weight" to the opinion of Dr. Granacher, and, indeed, she relied on it almost exclusively in completing her analysis of Claimant's mental limitations. Although, the ALJ did note that Dr. Prout's assessment of Claimant's abilities was consistent with the residual capacity that she had found as a result of her review of the record, this does not take away from the fact that Dr. Granacher's evaluation serves as the foundation for the decision of the ALJ. Further, Dr. Prout did not disagree with Dr. Granacher's evaluation or findings, and apparently relied upon them in preparing his report. The Court concludes that the ALJ did not err in this regard.
C. Conclusion
For all of the reasons stated above, the Court concludes that the ALJ's decision was not based on substantial evidence of record as she relied on testimony from the vocational expert which was elicited in response to a hypothetical that failed to take into account the fact that Claimant is functionally illiterate. However, the ALJ did not fail to take into account Plaintiff's panic attacks or low intellectual function in articulating Plaintiff's residual functional capacity, nor did she give greater weight to a non-examining source than that of an examining source as argued by Claimant. It follows that she did not err in these respects.
Accordingly, IT IS ORDERED:
(1) That Plaintiff Ambrose's motion for summary judgment [Record No. 10] is GRANTED;
(2) That the Commissioner's motion for summary judgment [Record No. 13] be, and the same hereby is, DENIED;
(3) That the decision of the ALJ is REVERSED and this matter REMANDED for further proceedings in keeping with this order.
This the 24th day of September, 2010.
tions on expressive activities.
See Summum, 129 S.Ct. at 1132.
i. Traditional Forum
Traditional public fora include sidewalks, parks, and other areas that by "tradition or by government fiat" are open to public assembly and debate. Helms, 495 F.3d at 255 (quoting Perry, 460 U.S. at 45, 103 S.Ct. 948). Restrictions on speech in a traditional public forum receive strict scrutiny; the government may exclude a speaker from a such a forum "only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest." Cornelius v. NAACP Legal Defense Educ. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985).
If a publicly-owned property is not a traditional public forum, heightened First Amendment scrutiny is not automatic. See id., 473 U.S. at 800-801, 105 S.Ct. 3439. A government may, however, transform a publicly-owned property into a public forum by making it "a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects." Id. at 802, 105 S.Ct. 3439. A government "does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse." Id. Governmental intent is the "touchstone" of a court's analysis in determining whether it has created a public forum. Kincaid v. Gibson, 236 F.3d 342, 348-349 (6th Cir. 2001) (en banc). To determine governmental intent, courts "look to the government's policy and practice with respect to the forum as well as to the nature of the property at issue and its `compatibility with expressive activity.'" Id. at 349 (quoting Cornelius, 473 U.S. at 802, 105 S.Ct. 3439).
ii. Designated Forum
The government creates a designated public forum when it opens a piece of public property to the public at large, treating as if it were a traditional public forum. See Parks v. Finan, 385 F.3d 694, 695-696, 699 (6th Cir. 2004) (grounds of state capitol, opened by state government for public expressive activities on a permit system, are either a traditional public forum or designated public forum); Church of the Rock v. City of Albuquerque, 84 F.3d 1273, 1278 (10th Cir. 1996) (city-owned senior center is a designated public forum because, although "not a traditional location of public debate or assembly," the city opened it "to the public for discussive purposes" by permitting "lectures and classes on a broad range of subjects by both members and non-members"). As the Supreme Court held in Summum, "Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum." 129 S.Ct. at 1132 (citing Cornelius, 473 U.S. at 802, 105 S.Ct. 3439).
iii. Limited Forum
A government entity may "create a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects." Summum, 129 S.Ct. at 1132. In Good News Club v. Milford Central Sch, 533 U.S. 98, 102-03, 106-07, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001), the Supreme Court held that a public school created a limited public forum when it opened its building after hours for public meetings, subject to the permission of the administration. The government may restrict speech in a limited public forum as long as the restrictions do "not discriminate against speech on the basis of viewpoint" and are "reasonable in light of the purpose served by the forum." Id. at 106-07; see also Summum, 129 S.Ct. at 1132.
In Summum, the Supreme Court clarified that the designated public form and the limited public forum are distinct forum types and that restrictions on speech in a limited public forum receive lesser scrutiny than those in a designated public forum. 129 S.Ct. at 1132. This ruling resolves the confusion over terminology and scrutiny levels noted by this court and others after the Supreme Court first articulated the concept of a "limited public forum" in Good News Club. See Gilles v. Garland. 281 Fed.Appx. 501.513 (6th Cir. 2008) (J. Moore, concurring); United Food Commercial Workers Local J 099 v. City of Sidney, 364 F.3d 738, 750 (6th Cir. 2004) (noting confusion about terminology and proper scrutiny levels but declining to "delve deeply into the nuances of designated versus limited public forums" because it was unnecessary to the holding); Citizens for Community Values, Inc. v. Upper Arlington Public Library Bd. of Trs:, 2008 WL 3843579, at *5 n. 3 (S.D.Ohio 2008) (noting confusion in the Sixth Circuit and elsewhere about terminology and proper scrutiny levels).
iv. Nonpublic Forum
By contrast, a nonpublic forum is a publicly-owned property that is not by tradition or governmental designation "a forum for public communication." Helms, 495 F.3d at 256. The government may limit access to a nonpublic forum "based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." Id. (quoting Cornelius, 473 U.S. at 806, 105 S.Ct. 3439). In Helms, for example, we concluded that the reception area of a judge's office was a nonpublic forum despite the judge's "open-door policy" designed to accommodate individual members of the public to visit his office to speak with him. Id. at 256-67. The "small reception area" was only eight feet from an office suite the judge shared with several other county officials. Id. at 257. We held that the judge did not intend "to create a public `forum for expressive activity'" open to "prolonged sit-ins" simply by making himself accessible to individuals seeking to discuss public matters with him. Id.
In this case, by opening the interior spaces of Cincinnati's city hall to private groups under the aegis of Administrative Regulation # 5, the City has not created a traditional public forum because the regulation does not make City Hall's interior space as open to public discourse as a sidewalk or park. Nor does the regulation allow the City to treat that space as a designated public forum. Instead, Administrative Regulation # 5 has created, at most, a limited public forum like that described in Good News. Moreover, even if we were persuaded by the City's argument that the regulation, as revised, creates only a nonpublic forum, the result would be the same, because government limitations on speech in both a limited public forum and a nonpublic forum receive the same level of scrutiny. In both instances, any restrictions must be "reasonable and viewpoint neutral." Summum, 129 S.Ct. at 1132; see also Helms, 495 F.3d at 256.
The City argues that under the Supreme Court's ruling in Ysursa v. Pocatello Education Association, ___ U.S. ___, 129 S.Ct. 1093, 1098, 172 L.Ed.2d 770 (2009), government restrictions on speech in nonpublic fora receive only rational basis review and need not be viewpoint-neutral. We reject this argument because the Court's reasoning in Ysursa is entirely unrelated to forum analysis. In that case, the Court upheld Idaho's decision to ban local government employers from allowing union payroll deductions for political purposes against a First Amendment challenge. See id. at 1097-98. The Court observed that the state is "not required to assist others in funding the expression of particular ideas, including political ones," and noted that a state's decision not to do so by permitting payroll deductions "is not an abridgement of the union's speech" but, rather, the state's refusal to be enlisted in support of the union's speech activities. Id. at 1098. Because a government's "decision not to subsidize the exercise of a fundamental right does not infringe the right," the court applied rational basis review to plaintiff's claim. Id. The Court's opinion in Ysursa, however, has no bearing on the scrutiny level applicable to Administrative Regulation # 5, because the Ysursa Court did not engage in forum analysis in order to resolve the First Amendment dispute in that case. Hence, we reject the City's attempt to characterize COAST's request to access city hall for its rally as a request that the City subsidize its political speech by providing space. Of course, the City could altogether close the interior spaces of city hall to expressive activities by private groups if it chose to do so. The City, however, maintains a policy permitting private groups to engage in speech activities in City Hall with the discretionary sponsorship of authorized officials. As long as this policy exists, forum analysis applies.
Because the requirement of sponsorship or collaboration in this case is facially viewpoint neutral, the remaining issue is whether the requirement is reasonably related to the purpose of the forum. The stated purpose of the forum is to allow city officials to exercise their rights and responsibilities under the City Charter. But, Administrative Regulation # 5 permits authorized officials to open spaces in city hall to private parties for events that they do not attend or assist in organizing. As a result, the sponsorship or collaboration requirement, as drafted, bears little relationship to any official duties under the City Charter. We therefore hold that the district court did not abuse its discretion in concluding that plaintiffs have shown a likelihood of success on the merits of their facial First Amendment challenge to the sponsorship requirement under the public forum doctrine.
b. Governmental Speech
On appeal, the City raises for the first time an argument that events inside city hall are exempt from First Amendment scrutiny altogether because they represent "government speech." This claim arises from the Supreme Court's recent decision in Pleasant Grove v. Summum, a 2009 opinion that was released after the district court issued the preliminary injunction and the City filed its notice of appeal. See ___ U.S. ___, 129 S.Ct. 1125, 1132, 172 L.Ed.2d 853 (2009). We conclude that this argument fails on its merits.
In Summum, a public park erected a donated Ten Commandments monument but rejected a monument representing another religious organization's tenets. Id. at 1129-30. The court found no constitutional violation, holding that the First Amendment "does not regulate government speech," and that a government entity is entitled to "select the views that it wants to express." Id. at 1131. In so holding, however, the court affirmed that "[w]hile government speech is not restricted by the Free Speech Clause, the government does not have a free hand to regulate private speech on government property." Id. at 1132. In concluding that the Ten Commandments monument was government speech rather than private speech on government land, the court noted that "[governments have long used monuments to speak to the public" and that the public reasonably interprets "privately financed and donated monuments that the government accepts and displays to the public on government land" as conveying the government's views. Id. at 1133. See also ACLU v. Bredesen, 441 F.3d 370, 375 (6th Cir. 2006) (holding that a "Choose Life" license plate is government speech for First Amendment purposes because "the government determines [the] overarching message and retains the power to approve every word disseminated") (citing Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 560-61, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005)).
Under the Court's reasoning in Summum, the activities that take place in Cincinnati's city hall are not "government speech." Although government speech may involve private individuals, the connection between the events that take place inside city hall under Administrative Regulation # 5 and any official government views is simply too attenuated. As we have noted, sponsoring city officials need not be involved directly in the activities that take place in city hall. Moreover, no one can reasonably interpret a private group's rally or press conference as reflecting the government's views simply because it occurs on public property. Historically, governments have exercised strong "editorial control over donated monuments," Summum, 129 S.Ct. at 1133, while private individuals can apparently access the interior of Cincinnati's city hall for assemblages on the whim of any authorized official.
Thus, we conclude that the doctrine of government speech does not prevent applying First Amendment scrutiny in this case.
2. First Amendment Expressive Association Claim
The district court held that the plaintiffs have shown likely success on their claim that the sponsorship requirement violates the First Amendment right of expressive association. Applying strict scrutiny, the district court reasoned that in requiring collaboration with city officials, "Administrative Regulation # 5 forces groups, such as COAST, to accept members it does not desire" and concluded that "there are means significantly less restrictive of associational freedoms by which Defendants could control the use of the interior of City Hall." The City argues that the district court erred because that Administrative Regulation # 5 does nothing to interfere with COAST's membership. We agree.
The First Amendment extends beyond the right to speak to encompass the "right of expressive association," i.e., the "right to associate for the purpose of speaking." Rumsfeld v. Forum for Academic Institutional Rights, Inc., 547 U.S. 47, 68, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006). The right protects "a group's membership decisions" and also protects against laws that make "group membership less attractive" without "directly interfering] with an organization's composition," such as requiring groups to disclose their membership lists or imposing penalties "based on membership in a disfavored group." Id. at 69, 126 S.Ct. 1297 (citing Brown v. Socialist Workers `74 Campaign Comm. (Ohio), 459 U.S. 87, 101-02, 103 S.Ct. 416, 74 L.Ed.2d 250 (1982); Healy v. James, 408 U.S. 169,180-84, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972)). "The forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints." Boy Scouts of America v. Dale, 530 U.S. 640, 648, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000).
In analyzing an expressive association claim, courts use a three-step process. The first determination is whether a group is entitled to protection. See id. at 655, 120 S.Ct. 2446. A group need not associate "for the `purpose' of disseminating a certain message" to be protected; it is enough that a group "engage[s] in expressive activity that could be impaired." Id. Political advocacy groups like COAST are the paradigmatic expressive associations entitled to protection. Second, courts ask whether the government action in question "significantly burden[s]" the group's expression, affording deference "to an association's view of what would impair its expression." Id. at 653, 120 S.Ct. 2446. Lastly, the government's interest in any restriction must be weighed against plaintiffs right of expressive association. See id. at 656,120 S.Ct. 2446.
A government action does not interfere with the right of expressive association unless it directly or indirectly interferes with group membership. In Forum for Academic Institutional Rights, the Supreme Court held that requiring law schools to allow military recruiters on campus as a condition of receiving federal funds did not significantly burden associational rights because "[r]ecruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students." 547 U.S. at 69, 126 S.Ct. 1297. The statute at issue, therefore, did not "force a law school `to accept members it does not desire.'" Id. The right of expressive association does not shield groups from mere "interaction" with nonmembers, and a group cannot invoke it simply by claiming interaction "would impair its message." Id. (quoting Dale, 530 U.S. at 653, 120 S.Ct. 2446).
In this case, the plaintiffs' expressive association claim fails because nothing in Administrative Regulation #5 affects the internal membership decisions of groups seeking to use city hall for expressive activities. Officials who "sponsor" or "collaborate" with groups to use the interior spaces do not become members of the group — they are outsiders with whom groups must interact only for the limited purpose of accessing the city hall space. Indeed, Administrative Regulation # 5 requires so little interaction that the sponsoring official apparently need not help organize or even attend a sponsored event. Administrative Regulation # 5, therefore, does not "significantly burden" COAST's constitutional right of association, and the district court erred in concluding that the plaintiffs' expressive association claim is substantially likely to succeed.
3. Equal Protection Claim
The district court also concluded that the plaintiffs had shown likely success on their equal protection claim. Applying strict scrutiny, the district court held that Administrative Regulation # 5 was not narrowly tailored to effect a compelling government interest. On appeal, the defendants argue that the district court erred in applying strict scrutiny and that plaintiffs have no cognizable equal protection claim. We agree.
The Equal Protection Clause "protects against invidious discrimination among similarly situated individuals or implicating fundamental rights." Scarbrough v. Morgan Cnty. Bd. of Ed., 470 F.3d 250, 260 (6th Cir. 2006). "The threshold element of an equal protection claim is disparate treatment; once disparate treatment is shown, the equal protection analysis to be applied is determined by the classification used by government decision-makers." Id. Strict scrutiny is appropriate only if a classification "infringes on a class of people's fundamental rights [or] targets a member of a suspect class." Id..
Neither the plaintiffs nor the district court provide more than cursory analysis of why plaintiffs' equal protection claim should receive strict scrutiny. The classification at issue is, presumably, those groups who collaborate with authorized officials to access city hall and those who do not. But because such "collaborators" and "non-collaborators" are not suspect classifications, strict scrutiny is appropriate only if the classification infringes on fundamental rights.
We conclude that strict scrutiny is inapplicable in this case. The sponsorship requirement under Administrative Regulation # 5 is minimal because an official need not be actively involved with an event to sponsor it. Under the public forum doctrine described above, government officials may open publicly-owned spaces to "certain groups or for the discussion of certain topics." Good News Club, 533 U.S. at 106-07,121 S.Ct. 2093. Granting access to one group and not another inevitably involves classification — those invited into the forum and those who are not. The forum analysis applied above assumes such classification but does not extend strict scrutiny to limited public fora and nonpublic fora. The appropriate First Amendment standard in this case is viewpoint neutrality and rational relationship to the purpose of the forum, not strict scrutiny. Id.
Thus, the district court erred in applying strict scrutiny to determine whether plaintiffs had shown a likelihood of success on their equal protection claim.
4. Void-For-Vagueness Claim
The district court concluded that COAST has shown a substantial likelihood of success on its claim that Administrative Regulation # 5 is unconstitutionally vague. We agree.
In pursuing a void-for-vagueness claim, a plaintiff must establish to a court's satisfaction that "[a regulation's] prohibitive terms are not clearly defined such that a person of ordinary intelligence can readily identify the applicable standard for inclusion and exclusion." United Food Commercial Workers Union Local 1099 v. Southwest Ohio Regional Transit Auth., 163 F.3d 341, 358-59 (6th Cir. 1998) (citing Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)). The void-for-vagueness doctrine not only ensures that laws provide "fair warning" of proscribed conduct, but it also protects citizens against the impermissible delegation of basic policy matters "for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." UFCW, 163 F.3d at 358-59 (citing Grayned, 408 U.S. at 108-109, 92 S.Ct. 2294). Without "clear standards guiding the discretion of public officials" with enforcement authority, there is a risk that those officials will "administer the policy based on impermissible factors." UFCW, 163 F.3d at 358-59. As a result, laws or regulations that, for example, give officials "unbridled discretion over a forum's use" are impermissible because of the "danger of censorship and of abridgement of our precious First Amendment freedoms." Id. A statute that fails to constrain "an official's decision to limit speech" with "objective criteria" is unconstitutionally vague. Id.
In UFCW, for example, we held that a policy governing the selection of advertisements for city busses was unconstitutionally vague on its face. Id. at 363. The policy prohibited "controversial" advertisements and required those selected to be "aesthetically pleasing" without any further guidance as to the meaning of these criteria. Id. at 359-60. We held that these terms were so vague that they gave officials "the power to deny a proposed ad that offends the officials' subjective beliefs and values under the guise that the ad is aesthetically displeasing [or controversial]." Id. at 360. Because of this "danger of arbitrary and discriminatory application," the court in UFCW found that the plaintiffs due process challenge was substantially likely to succeed on the merits. Id.
In this case, Administrative Regulation # 5 provides even less guidance to officials than the advertising policy in UFCW. The parties stipulate that the revised version of Administrative Regulation # 5, as did the original, gives complete discretion to council members and department heads to select whom they will sponsor. The only direction provided is that the purpose of the interior of city hall is to allow City officials "to exercise the rights and responsibilities specified in the Charter of the City of Cincinnati." Without further specificity, this directive offers no meaningful guidance. We conclude that the plaintiffs have established a substantial likelihood of success with regard to the merits of their void-for-vagueness claim.
III. CONCLUSION
Because the plaintiffs have established a substantial likelihood of success on their free speech and void-for-vagueness claims, there appears to be no issue as to the existence of the remaining preliminary injunction factors. As we have previously noted, "even minimal infringement upon First Amendment values constitutes irreparable injury sufficient to justify injunctive relief." Newsom v. Norris, 888 F.2d 371, 378 (6th Cir. 1989). When a constitutional violation is likely, moreover, the public interest militates in favor of injunctive relief because "it is always in the public interest to prevent violation of a party's constitutional rights." Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998).
We therefore conclude that the district court properly enjoined enforcement of Administrative Regulation # 5 on the basis of the plaintiffs' free speech and void-for-vagueness claims. On these grounds, we AFFIRM the order of the district court and REMAND the case for further proceedings.