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FIRST AMENDMENT
RELIGION AND EXPRESSION
FREEDOM OF EXPRESSION—SPEECH AND PRESS

Speech Plus—The Constitutional Law of Leafleting, Picketing, and Demonstrating

Communication of political, economic, social, and other views is not accomplished solely by face–to–face speech, broadcast speech, or writing in newspapers, periodicals, and pamphlets. There is also “expressive conduct,” which includes picketing, patrolling, and marching, distribution of leaflets and pamphlets and addresses to publicly assembled audiences, door–to–door solicitation and many forms of “sit–ins.” There is also a class of conduct now only vaguely defined which has been denominated “symbolic conduct,” which includes such actions as flag desecration and draft–card burnings. Because all these ways of expressing oneself involve conduct—action—rather than mere speech, they are all much more subject to regulation and restriction than is simple speech. Some of them may be forbidden altogether. But to the degree that these actions are intended to communicate a point of view the First Amendment is relevant and protects some of them to a great extent. Sorting out the conflicting lines of principle and doctrine is the point of this section.

The Public Forum.—In 1895 while he was a member of the highest court of Massachusetts, Justice Holmes rejected a contention that public property was by right open to the public as a place where the right of speech could be recognized,75 a rejection endorsed in its rationale on review by the United States Supreme Court.76 This point of view was rejected by the Court in Hague v. CIO,77 where Justice Roberts wrote: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.” While this opinion was not itself joined by a majority of the Justices, the view was subsequently endorsed by the Court in several opinions.78

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It was called into question in the 1960’s, however, when the Court seemed to leave the issue open79 and when a majority endorsed an opinion of Justice Black’s asserting his own narrower view of speech rights in public places.80 More recent decisions have restated and quoted the Roberts language from Hague and that is now the position of the Court.81 Public streets and parks,82 including those adjacent to courthouses83 and foreign embassies,84 as well as public libraries85 and the grounds of legislative bodies,86 are open to public demonstrations, although the uses to which public areas are dedicated may shape the range of permissible expression and conduct that may occur there.87 Moreover, not all public[p.1166]properties are thereby public forums. “[T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government.”88 “The crucial question is whether the manner of expression is basically compatible with the normal activity of a particular place at a particular time.”89 Thus, by the nature of the use to which the property is put or by tradition, some sites are simply not as open for expression as streets and parks are.90 But if government does open non–traditional forums for expressive activities, it may not discriminate on the basis of content or viewpoint in according access.91 The Court in accepting the public forum concept has nevertheless been divided with respect to the reach of the doctrine.92 The concept is likely, therefore, to continue be a focal point of judicial debate in coming years.

Speech in public forums is subject to time, place, and manner regulations, which take into account such matters as control of traffic in the streets, the scheduling of two meetings or demonstrations at the same time and place, the preventing of blockages of building entrances, and the like.93 Such regulations are closely scrutinized in order to protect free expression, and, to be valid, must be justified without reference to the content or subject matter[p.1167]of speech,94 must serve a significant governmental interest,95 and must leave open ample alternative channels for communication of the information.96 A recent formulation is that a time, place, or manner regulation “must be narrowly tailored to serve the government’s legitimate content–neutral interests, but . . . need not be the least– restrictive or least–intrusive means of doing so.” All that is required is that “the means chosen are not substantially broader than necessary to achieve the government’s interest.”97 Corollary to the rule forbidding regulation premised on content is the principle, a merging of free expression and equal protection standards, that government may not discriminate between different kinds of messages in affording access.98 In order to ensure against covert forms of discrimination against expression and between different kinds of content, the Court has insisted that licensing systems be constructed as free as possible of the opportunity for arbitrary administration.99 The Court has also applied its general strictures[p.1168]against prior restraints in the contexts of permit systems and judicial restraint of expression.100

It appears that government may not deny access to the public forum for demonstrators on the ground that the past meetings of these demonstrators resulted in violence,101 and may not vary a demonstration licensing fee based on an estimate of the amount of hostility likely to be engendered,102 but the Court’s position with regard to the “heckler’s veto,” the governmental termination of a speech or demonstration because of hostile crowd reaction, remains quite unclear.103

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The Court has defined three different categories of public property for public forum analysis. First, there is the public forum, places such as streets and parks which have traditionally been used for public assembly and debate, where the government may not prohibit all communicative activity and must justify content–neutral time, place, and manner restrictions as narrowly tailored to serve some legitimate interest. Government may also open property for communicative activity, and thereby create a public forum. Such a forum may be limited—hence the expression “limited public forum”—for “use by certain groups, e.g. Widmar v. Vincent (student groups), or for discussion of certain subjects, e.g. City of Madison Joint School District v. Wisconsin PERC (school board business),”104 but within the framework of such legitimate limitations discrimination based on content must be justified by compelling governmental interests.105 Thirdly, government “may reserve a forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”106 The distinction between the second and third categories can therefore determine the outcome of a case, since speakers may be excluded from the second category only for a “compelling” governmental interest, while exclusion from the third category need only be “reasonable.” Yet, distinguishing between the two categories creates no small difficulty, as evidenced by recent case law.

The Court has held that a school system did not create a limited public forum by opening an interschool mail system to use by selected civic groups “that engage in activities of interest and educational relevance to students,” and that, in any event, if a limited public forum had thereby been created a teachers union rivaling the exclusive bargaining representative could still be excluded as not being “of a similar character” to the civic groups.107 Less problematic was the Court’s conclusion that utility poles and other mu[p.1170]nicipal property did not constitute a public forum for the posting of signs.108 More problematic was the Court’s conclusion that the Combined Federal Campaign, the Federal Government’s forum for coordinated charitable solicitation of federal employees, is not a limited public forum. Exclusion of various advocacy groups from participation in the Campaign was upheld as furthering “reasonable” governmental interests in offering a forum to “traditional health and welfare charities,” avoiding the appearance of governmental favoritism of particular groups or viewpoints, and avoiding disruption of the federal workplace by controversy.109 The Court pinpointed the government’s intention as the key to whether a public forum has been created: “[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a non–traditional forum for public discourse.”110 Under this categorical approach, the government has wide discretion in maintaining the nonpublic character of its forums, and may regulate in ways that would be impermissible were it to designate a limited public forum.111

Application of the doctrine continues to create difficulty. A majority of Justices could not agree on the public forum status of a sidewalk located entirely on Postal Service property.112 The Court was also divided over whether nonsecured areas of an airport terminal, including shops and restaurants, constituted a public forum. Holding that the terminal was not a public forum, the Court upheld restrictions on the solicitation and receipt of funds.113 But[p.1171]the Court also invalidated a ban on the sale or distribution of literature to passers–by within the same terminal, four Justices believing that the terminal constituted a public forum, and a fifth contending that the multipurpose nature of the forum (shopping mall as well as airport) made restrictions on expression less “reasonable.”114


Footnotes

75 Commonwealth v. Davis, 162 510, 511 (1895). “For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of rights of a member of the public than for the owner of a private house to forbid it in the house.”
76 Davis v. Massachusetts, 167 U.S. 43, 48 (1897) .
77 307 U.S. 496, 515 (1939) . Only Justice Black joined the opinion and Chief Justice Hughes generally concurred in it, but only Justices McReynolds and Butler dissented from the result.
78 E.g., Schneider v. State, 308 U.S. 147, 163 (1939) ; Kunz v. New York, 340 U.S. 290, 293 (1951) .
79 Cox v. Louisiana, 379 U.S. 536, 555 (1965) . For analysis of this case in the broader context, see Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1.
80 Adderley v. Florida, 385 U.S. 39 (1966) . See id. at 47–48; Cox v. Louisiana, 379 U.S. 559, 578 (1965) (Justice Black concurring in part and dissenting in part); Jamison v. Texas, 318 U.S. 413, 416 (1943) (Justice Black for the Court).
81 E.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 152 (1969) ; Grayned v. City of Rockford, 408 U.S. 104, 115 (1972) ; Carey v. Brown, 447 U.S. 455, 460 (1980) .
82 Hague v. CIO, 307 U.S. 496 (1939) ; Niemotko v. Maryland, 340 U.S. 268 (1951) ; Kunz v. New York, 340 U.S. 290 (1951) ; Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) ; Coates v. City of Cincinnati, 402 U.S. 611 (1971) ; Grayned v. City of Rockford, 408 U.S. 104 (1972) ; Greer v. Spock, 424 U.S. 828, 835–36 (1976) ; Carey v. Brown, 447 U.S. 455 (1980) .
83 Narrowly drawn statutes which serve the State’s interests in security and in preventing obstruction of justice and influencing of judicial officers are constitutional. Cox v. Louisiana, 379 U.S. 559 (1965) . A restriction on carrying signs or placards on the grounds of the Supreme Court is unconstitutional as applied to the public sidewalks surrounding the Court, since it does not sufficiently further the governmental purposes of protecting the building and grounds, maintaining proper order, or insulating the judicial decisionmaking process from lobbying. United States v. Grace, 461 U.S. 171 (1983) .
84 In Boos v. Barry, 485 U.S. 312 (1988) , the Court struck down as content–based a District of Columbia law prohibiting the display of any sign within 500 feet of a foreign embassy if the sign tends to bring the foreign government into “public odium” or “public disrepute.” However, another aspect of the District’s law, making it unlawful for three or more persons to congregate within 500 feet of an embassy and refuse to obey a police dispersal order, was upheld; under a narrowing construction, the law had been held applicable only to congregations directed at an embassy, and reasonably believed to present a threat to the peace or security of the embassy.
85 Brown v. Louisiana, 383 U.S. 131 (1966) (sit–in in library reading room).
86 Edwards v. South Carolina, 372 U.S. 229 (1963) ; Jeanette Rankin Brigade v. Capitol Police Chief, 342 F. Supp. 575 (D.C. 1972) (three–judge court), aff’d, 409 U.S. 972 (1972) (voiding statute prohibiting parades and demonstrations on United States Capitol grounds).
87 E.g., Grayned v. City of Rockford, 408 U.S. 104 (1972) (sustaining ordinance prohibiting noisemaking adjacent to school if that noise disturbs or threatens to disturb the operation of the school); Brown v. Louisiana, 383 U.S. 131 (1966) (silent vigil in public library protected while noisy and disruptive demonstration would not be); Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969) (wearing of black armbands as protest protected but not if it results in disruption of school); Cameron v. Johnson, 390 U.S. 611 (1968) (preservation of access to courthouse); Frisby v. Schultz, 487 U.S. 474 (1988) (ordinance prohibiting picketing “before or about” any residence or dwelling, narrowly construed as prohibiting only picketing that targets a particular residence, upheld as furthering significant governmental interest in protecting the privacy of the home).
88 United States Postal Service v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 129 (1981) .
89 Grayned v. City of Rockford, 408 U.S. 104, 116 (1972) .
90 E.g., Adderley v. Florida, 385 U.S. 39 (1966) (jails); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (advertising space in city rapid transit cars); Greer v. Spock, 424 U.S. 828 (1976) (military bases); United States Postal Service v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114 (1981) (private mail boxes); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) (interschool mail system); ISKCON v. Lee, 112 Ct. 2701 (1992) (publicly owned airport terminal).
91 E.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (municipal theater); Madison School District v. WERC, 429 U.S. 167 (1976) (school board meeting); Heffron v. ISKCON, 452 U.S. 640 (1981) (state fair grounds); Widmar v. Vincent, 454 U.S. 263 (1981) (university meeting facilities).
92 Compare United States Postal Service v. Council of Greenburgh Civic Ass’ns, 454 U.S. 114, 128–31 (1981) , with id. at 136–40 (Justice Brennan concurring), and 142 (Justice Marshall dissenting). For evidence of continuing division, compare ISKCON v. Lee, 112 Ct. 2701 (1992) with id. at 27 (Justice Kennedy concurring).
93 See, e.g., Heffron v. ISKCON, 452 U.S. 640, 647–50 (1981) , and id. at 656 (Justice Brennan concurring in part and dissenting in part) (stating law and discussing cases); Clark v. Community for Creative Non–Violence, 468 U.S. 288 (1984) (prohibition of sleep–in demonstration in area of park not designated for overnight camping).
94 Niemotko v. Maryland, 340 U.S. 268 (1951) ; Cox v. Louisiana, 379 U.S. 536 (1965) ; Police Department v. Mosley, 408 U.S. 92 (1972) ; Madison School District v. WERC, 429 U.S. 167 (1976) ; Carey v. Brown, 447 U.S. 455 (1980) ; Widmar v. Vincent, 454 U.S. 263 (1981) . In Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) , a divided Court permitted the city to sell commercial advertising space on the walls of its rapid transit cars but to refuse to sell political advertising space.
95 E.g., the governmental interest in safety and convenience of persons using public forum, Heffron v. ISKCON, 452 U.S. 640, 650 (1981) ; the interest in preservation of a learning atmosphere in school, Grayned v. City of Rockford, 408 U.S. 104, 115 (1972) ; and the interest in protecting traffic and pedestrian safety in the streets, Cox v. Louisiana, 379 U.S. 536, 554–55 (1965) ; Kunz v. New York, 340 U.S. 290, 293–94 (1951) ; Hague v. CIO, 307 U.S. 496, 515–16 (1939) .
96 Heffron v. ISKCON, 452 U.S. 640, 654–55 (1981) ; Consolidated Edison Co. v. PSC, 447 U.S. 530, 535 (1980) .
97 Ward v. Rock Against Racism, 491 U.S. 781, 798, 800 (1989) .
98 Police Department v. Mosley, 408 U.S. 92 (1972) (ordinance void which barred all picketing around school building except labor picketing); Carey v. Brown, 447 U.S. 455 (1980) (same); Widmar v. Vincent, 454 U.S. 263 (1981) (college rule permitting access to all student organizations except religious groups); Niemotko v. Maryland, 340 U.S. 268 (1951) (permission to use parks for some groups but not for others). These principles apply only to the traditional public forum and to the governmentally created “limited public forum.” Government may, without creating a limited public forum, place “reasonable” restrictions on access to nonpublic areas. See, e.g. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 48 (1983) (use of school mail system); and Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788 (1985) (charitable solicitation of federal employees at workplace). See also Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (city may sell commercial advertising space on the walls of its rapid transit cars but refuse to sell political advertising space).

Supplement: [P. 1167, add to n.98 following citation to Niemotko v. Maryland:]

Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995) (denial of permission to Ku Klux Klan, allegedly in order to avoid Establishment Clause violation, to place a cross in plaza on grounds of state capitol); Rosenberger v. University of Virginia, 515 U.S. 819 (1995) (University’s subsidy for printing costs of student publications, available for student “news, information, opinion, entertainment, or academic communications,” could not be withheld because of the religious content of a student publication); Lamb’s Chapel v. Center Moriches School Dist., 508 U.S. 384 (1993) (school district rule prohibiting after–hours use of school property for showing of a film presenting a religious perspective on child– rearing and family values, but allowing after–hours use for non–religious social, civic, and recreational purposes).

99 E.g., Hague v. CIO, 307 U.S. 496, 516 (1939) ; Schneider v. State, 308 U.S. 147, 164 (1939) ; Cox v. New Hampshire, 312 U.S. 569 (1941) ; Poulos v. New Hampshire, 345 U.S. 395 (1953) ; Staub v. City of Baxley, 355 U.S. 313, 321–25 (1958) ; Cox v. Louisiana, 379 U.S. 536, 555–58 (1965) ; Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150–53 (1969) . Justice Stewart for the Court described these and other cases as “holding that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license without narrow, objective, and definite standards to guide the licensing authority is unconstitutional.” Id. at 150–51. A person faced with an unconstitutional licensing law may ignore it, engage in the desired conduct, and challenge the constitutionality of the permit system upon a subsequent prosecution for violating it. Id. at 151; Jones v. Opelika, 316 U.S. 584, 602 (1942) (Chief Justice Stone dissenting), adopted per curiam on rehearing, 319 U.S. 103 (1943) . See also City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (upholding facial challenge to ordinance vesting in the mayor unbridled discretion to grant or deny annual permit for location of newsracks on public property); Riley v. National Fed’n of the Blind, 487 U.S. 781 (1988) (invalidating as permitting “delay without limit” licensing requirement for professional fundraisers); Forsyth County v. Nationalist Movement, 112 Ct. 2395 (1992). But see Walker v. City of Birmingham, 388 U.S. 307 (1967) (same rule not applicable to injunctions).
100 In Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) , the Court reaffirmed the holdings of the earlier cases, and, additionally, both Justice Stewart, for the Court, id. at 155 n.4, and Justice Harlan concurring, id. at 162–64, asserted that the principles of Freedman v. Maryland, 380 U.S. 51 (1965) , governing systems of prior censorship of motion pictures, were relevant to permit systems for parades and demonstrations. These standards include prompt and expeditious administrative handling of requests and prompt judicial review of adverse actions. See National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977) . The Court also voided an injunction against a protest meeting which was issued ex parte, without notice to the protestors and with, or course, no opportunity for them to rebut the representations of the seekers of the injunction. Carroll v. President and Comm’rs of Princess Anne, 393 U.S. 175 (1968) .
101 The only available precedent is Kunz v. New York, 340 U.S. 290 (1951) . The holding was on a much narrower basis, but in dictum the Court said: “The court below has mistakenly derived support for its conclusions from the evidence produced at the trial that appellant’s religious meetings had, in the past, caused some disorder. There are appropriate public remedies to protect the peace and order of the community if appellant’s speeches should result in disorder and violence.” Id. at 294. A different rule applies to labor picketing. See Milk Wagon Drivers Local 753 v. Meadowmoor Dairies, 312 U.S. 287 (1941) (background of violence supports prohibition of all peaceful picketing). The military may ban a civilian, previously convicted of destroying government property, from reentering a military base, and may apply the ban to prohibit the civilian from reentering the base for purposes of peaceful demonstration during an Armed Forces Day “open house.” United States v. Albertini, 472 U.S. 675 (1985) .
102 Forsyth County v. Nationalist Movement, 112 Ct. 2395 (1992) (a fee based on anticipated crowd response necessarily involves examination of the content of the speech, and is invalid as a content regulation).
103 Dicta clearly indicate that a hostile reaction will not justify suppression of speech, Hague v. CIO, 307 U.S. 496, 502 (1939) ; Cox v. Louisiana, 379 U.S. 536, 551 (1965) ; Bachellar v. Maryland, 397 U.S. 564, 567 (1970) , and one holding appears to point this way. Gregory v. City of Chicago, 394 U.S. 111 (1969) . On the other hand, the Court has upheld a breach of the peace conviction of a speaker who refused to cease speaking upon the demand of police who feared imminent violence. Feiner v. New York, 340 U.S. 315 (1951) . In Niemotko v. Maryland, 340 U.S. 268, 273 (1951) (concurring opinion), Justice Frankfurter wrote: “It is not a constitutional principle that, in acting to preserve order, the police must proceed against the crowd whatever its size and temper and not against the speaker.”
104 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45–46 (1983) .
105 460U.S. at 46 460U.S. at 46.
106 Id.

Supplement: [P. 1169, add to n.106:]

Candidate debates on public television are an example of this third type of public forum: the “nonpublic forum.” Arkansas Educational Television Comm’n v. Forbes, 523 U.S. 666, 679 (1998) . “Although public broadcasting as a general matter does not lend itself to scrutiny under the forum doctrine [i.e., public broadcasters ordinarily are entitled to the editorial discretion to engage in viewpoint discrimination], candidate debates present the narrow exception to this rule.” Id. at 675. A public broadcaster, therefore, may not engage in viewpoint discrimination in granting or denying access to candidates. Under the third type of forum analysis, however, it may restrict candidate access for “a reasonable, viewpoint–neutral” reason, such as a candidate’s “objective lack of support.” Id. at 683.

107 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) . This was a 5–4 decision, with Justice White’s opinion of the Court being joined by Chief Justice Burger and by Justices Blackmun, Rehnquist, and O’Connor, and with Justice Brennan’s dissent being joined by Justices Marshall, Powell, and Stevens. See also Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (student newspaper published as part of journalism class is not a public forum).
108 City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) (upholding an outright ban on use of utility poles for signs). The Court noted that “it is of limited utility in the context of this case to focus on whether the tangible property itself should be deemed a public forum.” Id. at 815 n.32.
109 Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788 (1985) . Precedential value of Cornelius may be subject to question, since it was decided by 4–3 vote, the non–participating Justices (Marshall and Powell) having dissented in Perry. Justice O’Connor wrote the opinion of the Court, joined by Chief Justice Burger and by Justices White and Rehnquist. Justice Blackmun, joined by Justice Brennan, dissented, and Justice Stevens dissented separately.
110 473U.S. at 802 473U.S. at 802. Justice Blackmun criticized “the Court’s circular reasoning that the CFC is not a limited public forum because the Government intended to limit the forum to a particular class of speakers.” Id. at 813–14.
111 Justice Kennedy criticized this approach in ISKCON v. Lee, 112 S. Ct. 2701, 27, (1992) (concurring), contending that recognition of government’s authority to designate the forum status of property ignores the nature of the First Amendment as “a limitation on government, not a grant of power.” Justice Brennan voiced similar misgivings in his dissent in United States v. Kokinda: “public forum categories— originally conceived of as a way of preserving First Amendment rights— have been used . . . as a means of upholding restrictions on speech”. 497U.S. at 741 497U.S. at 741 (emphasis original) (citation omitted).
112 United States v. Kokinda, 497 U.S. 720 (1990) (upholding a ban on solicitation on the sidewalk).
113 ISKCON v. Lee, 112 Ct. 2701 (1992).
114 Lee v. ISKCON, 112 Ct. 2709 (1992).
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