December 20, 2012
Public colleges and universities frequently face issues involving free speech activities on campus. The use of free speech areas and notice requirements are often challenged as being unconstitutional restrictions on free speech rights. In Prigmore v. City of Redding (2012) 2012 WL 6214634, a California Court of Appeal held the area outside a public library was a public forum and struck down as unconstitutional some common speech-related regulations. Although Prigmore involved a property that may be different from a college or university campus, the court’s rationale as well the outcome of a federal district court decision earlier this year in a university-related case, reflects a need for campuses to review their free speech policies and practices, particularly if speech activities are subject to restrictions or limited to designated “free speech areas.”
The Policy at Issue in Prigmore
The Board of Trustees of a public library in the City of Redding adopted a policy governing “use of a limited public forum” after a dispute concerning speakers’ use of space outside the library. The Outdoor Public Forum Policy limited leafleting to a specific “free speech area” in front of the library, prohibited leafleting involving solicitation, banned leafleting of vehicles in the parking lot, and prohibited “offensively coarse utterance, gesture or display, or addresses abusive language toward another person.” It also required online reservations for use of the “free speech area” at least 72 hours in advance, and provided that reservations would be given on a first-come, first-served basis, and would be limited to 5 days per month to provide availability to others. Violation of the policy would constitute a violation of the Redding Municipal Code.
Various plaintiffs, including the ACLU and certain Tea Party organizations, filed complaints, alleging these provisions of the Policy were unconstitutional under both the United States and California Constitutions and seeking to enjoin enforcement and to have declared unconstitutional portions of the Policy. When the trial court issued the injunctions requested, the City of Redding and other defendants appealed with limited success.
Overview of Forum Analysis
Courts apply a forum analysis to determine when the government’s interest in limiting use of its property to its intended purpose will outweigh the interests of those wanting to use it for other purposes, such as speech activities. The type of forum dictates the permissible restriction.
Government property generally is divided into three categories: the traditional public forum, the designated public forum, and all remaining property referred to as the nonpublic forum. The traditional public forum is “a place that by long tradition has been used by the public at large for the free exchange of ideas,” such as public sidewalks, streets and parks. Government creates a “designated public forum” when it intentionally opens a nontraditional public forum for use by the public at large for assembly and speech. In either the traditional or designated public forum, free speech rights are afforded the greatest protection. Content-based restrictions are permitted if they are necessary to serve a compelling state interest and are narrowly drawn to achieve that end. Restrictions on the time, manner and place of speech are permitted if they are reasonable and viewpoint-neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the speaker’s intended message.
All remaining public property, that is, all property not characterized as a traditional public forum or as a designated public forum, is a considered nonpublic forum. Government may set time, place, and manner regulations for use of nonpublic forums, or even reserve a forum for specific purposes, as long as such regulation is reasonable and viewpoint-neutral. Although the “Liberty of Speech” clause of the California Constitution is viewed as broader than the right of free speech provided in the First Amendment, California courts employ the same time, place and manner test as the federal courts.
The Prigmore Holdings
The Court of Appeal in Prigmore determined the outdoor areas of the library campus are analytically similar to the areas that have traditionally been deemed public forums and should be treated as such. In reaching this conclusion, the court noted the library itself is a public building to which there is complete, unrestricted public access; it is located adjacent to public parks and near other public buildings; it has an entrance that is larger than the typical sidewalk, includes benches and a newspaper rack, and is an area where people can congregate for conversation. Based on this conclusion, the court held as a general matter that leafleting on the walkways and entrance of the library must be permitted. By contrast, a ban on leafleting cars in the library’s parking lot can be an appropriate time, place and manner restriction based on the City’s articulated safety concerns.
Additionally, the court determined that a ban on all leafleting involving the solicitation of funds was not narrowly tailored to serve the interest in banning on-site or immediate solicitation and was, therefore, unconstitutional. Had the Policy banned only the collection of money on site, the court would have upheld this facet of the Policy.
Notably, the court rejected the City’s designation near the library of a “free speech area,” part of which was designated for speakers’ tables, for leafleting. The court found this limitation was much broader than necessary to achieve the City’s interest in minimizing pedestrian congestion in the area, and may actually have exacerbated the congestion by restricting the leafleting to an area so near to the library doors. While the court would have accepted some restriction on the placement of tables in the free speech area to address the issue of congestion, it took issue with the broad requirement that all leafleting occur within the free speech area. The court rejected prior decisions of other courts that upheld the use of free speech areas based on those cases involving a limited public forum (which is a type of nonpublic forum) or confined spaces, such as areas set aside with a fence or requiring an admission fee. While this decision does not necessarily mean all free speech areas will be found unconstitutional, this portion of the decision signals that California courts may be more inclined to scrutinize the rationale for designating free speech areas.
The City sought to justify the free speech area, in part, with the rationale that without a geographic restriction, anyone in the area would become a captive audience to persons wishing to exercise their rights of free speech. The court rejected this rationale: “[T]hose entering the Library ‘are fully capable of saying “no” to persons seeking their attention and then walking away, they are not members of a captive audience. They have no general right to be free from being approached.’ ”
As to other provisions of the Policy, the court found the ban on “offensively coarse” utterances, gestures or displays to be unconstitutionally vague and overbroad. It further found the reservation scheme to be unnecessary in the absence of a limited free speech area, and commented that such schemes often are found to be unconstitutional limitations on free speech.
An argument exists that Prigmore does not apply to a college or university setting because a public library is distinguishable from property that is set aside for educational use by students. However, the Prigmore decision may well be signaling a judicial trend toward greater protection of free speech rights.
Indeed, earlier this year, a federal district court in Ohio found that a policy at the University of Cincinnati, which required that all “demonstrations, picketing, and rallies” be conducted in a designated free speech area and that speakers provide notice of such use at least five working days in advance was unconstitutional as applied to students because: (1) the notice requirement was not limited to regulation of large demonstrations or those using sound amplification, as examples, but was broadly applicable to any demonstration, picket or rally and thus placed an unwarranted burden on the exercise of free speech; (2) the policy imposed conflicting notice requirements and failed to provide objective criteria for determining whether an expressive activity constitutes a demonstration, picket or rally; (3) the University provided no explanation of a compelling interest to restrict all demonstrations, picketing, and rallies to the free speech area and only speculative benefits of the notice requirement; and (4) the vague aspects of the policy presented university officials with the opportunity for arbitrary or discriminatory enforcement. (Univ. of Cincinnati Chapter of Young Americans for Liberty v. Williams, Case No. 1:12-cv-155, Order Granting In Part Plaintiffs’ Motion for a Preliminary Injunction, Enjoining Enforcement of Certain Notice and Location Requirements of the University of Cincinnati’s Free Speech Policies As Applied to Students (6/12/12).)
By contrast, the Eleventh Circuit Court of Appeals last year, in Bloedorn v. Grube (11th Cir. 2011) 631 F.3d 1218, upheld a state university ban on visitors speaking on campus walkways, outside of its established free speech area and without a permit. The distinction between regulations applicable to visitors and to students is consistent with the general rule established by the Supreme Court that public colleges are not required to make facilities equally available to students and nonstudents alike, or to grant free access to all grounds or buildings. (Widmar v. Vincent (1981) 454 U.S. 263, 268 n.5.)
Given the recent free speech cases, it is advisable that universities and colleges conduct a detailed review of their free speech policies and current practices, as well as the reasons for including particular restrictions, in consultation with legal counsel.