CRS Annotated Constitution
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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[p.1165]
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[p.1169]
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
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).
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.
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