Public Forums, Public Buildings And

PUBLIC FORUMS, PUBLIC BUILDINGS AND

THE FIRST AMENDMENT

Steve Kemp

City Attorney

City of Peoria, Arizona

INTRODUCTION

Generations of Lawyers have been taught that the first amendment does not stop at the schoolhouse door.[1] At the same time many citizens have become familiar with these same cases and believe that the first amendment is unlimited in the public building and public forum context. The following is some basic principles that the Local Government Attorney can apply in analyzing issues that fall under the First Amendment.

Government communication systems

1.  Not every means of Governmental Communication is a public forum. Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788 (1985). Cornelius involved a charitable organization who was denied the right to participate in the Combined Federal Campaign, which solicited contributions from federal employees to charities. The Supreme Court held:

a.  The Combined Federal Campaign, not the workplace is the forum. The Federal Government limited participating charities to “voluntary, charitable, health and welfare agencies that provide or support direct health and welfare services to individuals or their families. As such it is a limited public forum. The Court rejected the idea that the workplace was the forum and that speech could not be regulated.

b.  However, even in a limited public forum, the government cannot discriminate against speech based on its content.

2.  Cities may have a number of means of communication that it need not provide access to outside parties:

a.  Municipal Intranets

b.  Benefits and Wellness Fairs

c.  Electronic Announcements to employees

d.  Municipal Bulletin Boards

3.  Important to have clear guidelines on the type of speech and that such guidelines not be content related.

Public Transportation Systems.

Generally a limited public forum. Korwin v. Cotton, 234 Ariz. 549, 323 P.3d 1200 (App.2014) Korwin involved a claim by a gun rights group that the City of Phoenix’s public transit regulations limiting advertising to speech proposing a commercial transaction violated the First Amendment. The Court of Appeals Decision contains three important points for the local government lawyer.

1.  Public Transit systems, such as bus shelters, benches, buses are not traditional public forums, but limited public forums.[2]

2.  Inconsistency in applying the standards does not make the area a public forum. However, failure to apply the standards at all could create that risk.

3.  The Change in standards in 2011requiring an advertisement adequately display a proposed commercial transaction was sufficient to allow the proposed advertisement to be placed.

Important to have clear guidelines that items such as bus shelters are not traditional public forums. The biggest risk is to fail to apply the standards, not inconsistent application. Finally, the definitions in the standards are important.

Nursing Homes; day care facilities; Athletic Facilities

Generally these types of facilities are evaluated under a non public forum analysis. Preminger, et al v. Principi, 411 F.3d 815 (2005). Preminger involved a political party wanting to register voters at a nursing home for veterans. The Veterans Administration had enacted regulations which appeared to prohibit partisan political activities on its property undertaken with the purpose of influencing the federal government. The Ninth Circuit, upheld the District Court finding:

1.  The Nursing Home was a non public forum not traditionally or explicitly open to First Amendment activity.

2.  A public forum is one which the government has opened to public discourse

3.  The regulation of Speech need only be viewpoint neutral, it does not have to constitute the least restrictive alternative available.

For the local government practitioner, it is important to clearly identify these non-public forums and not permit expressive First Amendment Activity. Second, regulations need to be content/viewpoint neutral.

Special Events

Special events may be public forums for purposes of First Amendment expressive activity. Telemundo of Los Angeles v. City of Los Angeles, 283 F.Supp.2d 1095 (C.D. Cal.2003). Telemundo involved a refusal by the City of Los Angeles to let it broadcast a special event celebrating Mexican Independence Day as it was sponsored by a competitor. The event was funded in part by the City and all city departments waived fees, costs and requirements, including insurance. The City declared the event a special event sponsored by the City.

District Court held that this was a public event and the City could not discriminate against media in broadcasting the event.

For the local government, the more it participates in an event, the more it becomes a public event and a public forum. This can have a number of problematic issues and conflicts, particularly the state statute prohibition of use of resources for political activities.

Public Forums

The Supreme Court addressed the rules for public Forums in Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983). Public Forums can be established by tradition or designation. Traditional public forums include public streets, parks. The state can also create public forums by opening up a facility to expressive activity such as a theater or public meeting facilities such as a community Center.

Rules on Public Forums

1.  State may not prohibit all communicative activity.

2.  Regulation restricting speech must be necessary to serve a compelling state interest and drawn narrowly to serve that end.

3.  State can enforce regulations of time, place and manner restriction that are narrowly drawn to achieve that end

4.  Must leave open ample alternative channels of communication.

Conclusion

When First amendment claims arise regarding public buildings and facilities, it is important to understand the rules for public forums and non or limited public forums and their applicability, together with the intersection of state laws that may well create additional public forum issues such as political signs and sign walkers.

1

[1] Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)

[2] Lehman v. City of Shaker Heights, 418 U.S. 298 (1974)