October 15, 2019 | Supreme Court Preview: Will Justices Issue Landmark Abortion Decision?
|Public Forum||Important Cases|
|The Government is constitutionally obligated to leave public forums open for speech. These areas, such as sidewalks and parks, have a long-standing tradition of being places to communicate, gather, and exchange ideas.As with any regulation of speech, statutes controlling or prohibiting speech in public forums must be content-neutral. The government cannot limit what can be said in a forum based on the viewpoint being expressed or the subject matter being discussed, unless it meets strict scrutiny – the highest standard of protection of speech.In Police Department of Chicago v. Mosley, the Court held a Chicago ordinance that prohibited all picketing except that relating to labor disputes within 150 ft. of a school during school hours was unconstitutional. Mosley peacefully picketed the school during school hours, but on the issue of racial discrimination, and was warned after the passing of the ordinance that he would be arrested if he continued. In response he sued, claiming that the ordinance violated the First Amendment. The Supreme Court ruled the ordinance unconstitutional on Equal Protection grounds because it distinguished between different types of picketing by content. Despite being ruled on Equal Protection grounds, the case was still important for reinforcing the necessity for content neutrality, or in the words of the majority opinion, “the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”|
Any restriction or regulation on speech that is content neutral does not have to meet strict scrutiny, but still must be considered a reasonable time, place, or manner restriction. These restrictions must be justified unrelated to the content of the speech, must serve a significant government interest, be narrowly tailored to serve that interest, and must leave open ample alternative channels for communicating that information.
A Minnesota State Fair regulation which banned distributing literature except for at booths was held to be a constitutional time, place, or manner restriction in Heffron v. International Society for Krishna Consciousness. The Court reasoned that the restriction was content neutral because the booths were open to anyone “first come first served”. Limiting literature hand-outs to booths fulfilled the significant government interest of keeping pedestrian traffic orderly within the fair ground. Lastly, the Court explained that the defendants had multiple other ways to communicate with their audience both on and off the fair grounds.
The modern test for time, place, and manner restrictions comes from the case Ward v. Rock Against Racism. The 1989 case revolved around a bandshell in New York City’s Central Park. After receiving complaints about noise volume levels, as well as having experienced unruly audiences disappointed with sound quality, the City required that all performances would have use the City’s own sound system and audio technician. A sponsor who hosted yearly concerts at the band shell sued, claiming this regulation violated the First Amendment. The Court of Appeals held that the regulation was unconstitutional because there were less restrictive ways to control the volume levels that did not include interfering with the sponsors sound mixing.
However, the Supreme Court overruled this and declared the regulation constitutional. First, the Court determined the bandshell to be a public forum because it was open to all. Next, the Court proceeded with a time, place, and manner evaluation of the regulation. Since the regulation applied to all performances at the bandshell regardless of content and was aimed at fixing sound issues and crowd control, it was justified without considering the content. The regulation was “narrowly tailored to serve a significant government interest” because the City had a significant interest in controlling the sound to limit complaints and stop unruly crowds, and was narrowly tailored because other solutions would be “less effective” while this regulation was still “not overly broad.” This second part of the test specifically overruled the lower court – the government does not have to prove a regulation is the “least restrictive” solution, the government regulation simply cannot be overly broad. The plaintiff must prove this overbreadth rather than the government having to prove it is the least restrictive. Lastly, the court found that sufficient alternative channels existed because the concerts were not actually being prohibited in any way- only the sound levels were affected, and in some circumstances, may be even louder under the government solution (fixing low volume issues that caused angry crowds).
Regulations of public forums has recently taken the spotlight due to high profile cases dealing with restrictions of protestors outside of abortion clinics. In the 1997 case Schenck v. Pro-Choice Network Of Western New York, the Court gave a New York District Court’s injunction restricting protesting around abortion clinics a mixed ruling. The Court first determined that the restrictions were content neutral – the injunction wasn’t based on the speech of the protestors, but on prior illegal actions (blockading the clinic and violent harassment). A permanent “buffer zone” which protestors could not enter was held as Constitutional, and justified by the state’s interest in the operation of its facilities, controlling traffic, and protecting the safety of woman. However, the “floating” buffer zone of 15 ft. around anyone entering the clinic was held to be unconstitutionally broad. The floating buffer was wide enough that in the case of certain clinics, protestors could be forced into the street due to limited sidewalk size. Additionally, the uncertainty of how to comply with the law (such as when a protestor must keep moving to stay far enough apart from the buffer zone) may lead to substantially more restriction than is allowed.
The Court next addressed the issue in 2000 with Hill v. Colorado. The challenged law in question was a state statute that prohibited anyone within 100 ft. of an abortion clinic from “knowingly” approaching within 8 ft. of a person entering or leaving the clinic “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.” The Court decided that the statute was content neutral – no one could approach someone using the clinic for those purposes, regardless of the subject matter (“the statute applies equally to used car salesmen, animal rights activists, fundraisers, environmentalists, and missionaries”). Distinguishing between other communication and “oral protest, education, or counseling” was not equivalent to blocking a specific subject matter or view. Unlike Schenck, the whole statute, including the 8 ft. mobile buffer zone, was held to be constitutional. This time, the narrowly tailored prong of the time, place, and manner test was met by the statute. Colorado’s 8 ft. limit still allowed normal conversation, and a protestor was only in violation if they “knowingly approached” (therefore not forcing the protester to constantly move back if they were approached, like in Schenck).
The ruling in Hill was controversial, garnering fierce dissents from the conservative Justices. McCullen v. Coakely, the most recent Supreme Court case on the topic, has seen the court move in the opposite direction of Hill. A Massachusetts statute making it a crime to enter or remain within 35 ft. of an abortion clinic (if you were not entering or exiting the facility) was held to be unconstitutional. Again, the second the prong of the time, place, and manner test was at issue. The Court held that the statute was not narrowly drawn and substantially burdened plaintiff’s speech more than was necessary to achieve the State’s goals. Importantly, the plaintiffs in this case were “counselors” rather than protesters – they claimed that their goal was to discuss other options with women seeking abortions, rather than simply protest. They claimed they could not do this with the buffer, whereas protesters could still continue loudly protesting outside the clinic. Additionally, the Court found that the state had enough laws in place already to deal with protesters blocking entrances aside from this statute, making it an unnecessary burden. This decision is has caused both speculation and controversy, because it did not go as far as to overrule Hill, thereby leaving many questions unanswered.
| Police Dept. of Chicago v. Mosley (1972)Heffron v. International Society for Krishna Consciousness (1981)|
Ward v. Rock Against Racism (1989)
|Limited Public Forums||Important Cases|
|Limited public forums, also known as designed forums, are places that the Government willingly leaves open to speech yet has the ability to close to all speech if it so chooses. However, when open, many of the same rules that apply to public forums apply to these as well.Public schools and universities are classic examples of limited public forums. Schools are allowed to close their facilities to public use. However, as soon as one religious or student group is permitted to use the school for use, all must be equally allowed. In Lamb’s Chapel v. Center Moriches Union Free School District, the Court held that a school district’s refusal to let a church use its premises to show a film of child rearing was unconstitutional. The school district had rules allowing for use of its rooms for civic and recreational uses but prohibited use by religious groups. The Court concluded that by opening up the property for the speech of some groups, the school had become a limited public forum – any restriction on its use must be viewpoint neutral. Non-religious child rearing videos weren’t banned – only religious ones could not be shown, specifically because they were religious, making the rule unconstitutional.||Lamb’s chapel v. Center Moriches Union Free School Dist. (1993)|
|Nonpublic Forum||Important Cases|
|Nonpublic forums may be closed to speech, and speech may be restricted as long as the regulation is reasonable and viewpoint neutral. Many different non-public forums exist.Government can restrict speech around prisons and jails. Protesters at a demonstration on a jails property were arrested for trespassing and the Court upheld their arrest in Adderly v. State of Florida, emphasizing both the security concerns of the jail as well as the government’s right to manage its property.Military bases were similarly found to be nonpublic forums in 1976 with Greer v. Spock. The Court held that bases were nonpublic, and that “the business… of Fort Dix is training soldiers, not to provide a public forum.” Additionally, the Court mentioned that unlike sidewalks and town squares, there is no tradition for political protest inside military bases.|
Even sidewalks, traditionally a classic example of a public forum, can be regulated depending on the circumstances. In Kokinda v. USA, the Court upheld a speech restriction on a sidewalk because it was located directly next to a post office. Evaluating the sidewalk’s location, the Court decided that the connecting sidewalk between the post office and its parking lot was different than a sidewalk through the middle of a city or town, and therefore had no tradition of being a public forum. Because this sidewalk was used exclusively for postal business, it was a non-public forum which the government could restrict or close as long as it the restriction was reasonable and not related to the viewpoint being expressed.
Discussion of history and traditional use, or the lack thereof, factored heavily into the decision by the Court to hold that airports were non-public forums. International Society for Krishna Consciousness, Inc. v. Lee involved a religious group being banned from soliciting or handing out leaflets in an airport. The majority opinion held that airports were nonpublic forums, emphasizing how new air travel is compared to classic public forums like town squares, as well as the non-speech related, commercial nature of airports. The Court determined that a ban on solicitation was reasonable for a non-public forum, due to the threat of fraud to travelers in airports. However, the ban on distribution of leaflets was unreasonable and therefore unconstitutional.
Election debates have also been held to be nonpublic forums. In a state congressional race, a third party candidate sued after being denied access to a televised debate. The Court ruled against the candidate in Arkansas Education Television Commission v. Forbes, holding that a state-owned televised debate is a nonpublic forum. First, the Court declined to extend the forum doctrine to broadcasting, because that would infringe on the First Amendment rights of broadcasters. Next, the Court determined that the government had not created a limited public forum by having the debate – a limited public forum would have been created with the intent to provide general access, while the debate had only “selective access” to certain candidates. The Court concluded that the restriction was reasonable and not viewpoint discrimination, because the candidates lack of support was the criteria rather than his views. The dissent by Justice Stephens, joined by Justices Souter and Ginsberg, took particular issue with this because an unpopular view will always be the one with less support (yet should have the same protection).
| Adderly v. Florida (1966)Greer v. Spock (1976)US v. Kokinda (1990)|
|Private Property||Important Cases|
|Due to the government action requirement there is no constitutional right to use private property owned by others for speech. However, there has been several cases regarding free speech in privately owned shopping malls. The Court has fluctuated over time in how it deals with these cases.In Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, a 1968 opinion regarding laborers picketing a business within a private shopping mall, the Court held that the privately owned shopping mall could not exclude the striking laborers within it. The shopping mall was considered the “functional equivalent” to a business district, much like an earlier case Marsh v. Alabama, where the Court had prevented a company-owned town from restricting speech within it.However, the Court reversed directions from this opinion in Lloyd Corp v. Tanner. This time, the demonstrators were protesting the Vietnam War and the Court allowed the shopping center to ban them. The Court attempted to distinguish their opinion from Logan Valley, pointing out that the protest in that case had been related to the shopping mall, whilst this did not.|
By focusing on the subject matter of the protest, the Court had basically created a content-based distinction. Because of this, Tanner was overruled in 1976 Hudgens v. National Labor Board Relations. The reasoning in Logan Valley was also critiqued. Comparing the company town from Marsh to the shopping center defendant in Hudgens, the Court found them very different – the private company in Marsh having actually assumed control as a governing body for the town compared to Hudgen’s simply operating a mall. The Court held that there was no First Amendment right to use a privately owned shopping mall for speech.
Four years later, the Court’s opinion shifted again to what is now the current stance on the topic. The decision in PruneYard Shopping Center v. Robins revolved around a Californian constitutional amendment which allowed for the use of private shopping malls for speech. Distinguishing this case from their opinion in Hudgens, the Court noted that State constitutions can expand rights, and that no such provision was at issue in other prior upheld the provision, leaving room for protected expression in privately owned shopping malls via state law.
|Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc. (1968)Lloyd Corp., Ltd. v. Tanner (1972)Hudgens v. National Labor Relations Board (1976)Pruneyard Shopping Center v. Robins (1980)|
|Although students have freedom of speech within school, there are still significant limits. When determining the degree of expression allowed for students, the Court has frequently had to balance two opposing notions: teaching students how to express themselves in an open democratic society, and letting school administrators effectively manage their schools. The difficulty in successfully doing this clearly shows in the wide variety of ways the Court has tried to do so since first considering issue.One of the earliest and most defining Supreme Court decisions regarding freedom of expression in schools is the 1969 case Tinker v. Des Moines Independent Community School. Two high school and one junior high school students wore black armbands to protest the Vietnam War and were suspended from school after they refused to remove them. They sued, and the Supreme Court ruled in their favor. The oft-quoted majority opinion written by Judge Fortas stated that, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school house gate.” Armbands, although symbolic, were given higher protection closer to “pure speech” since they were part of a silent, passive, sign of expression. The opinion emphasized that the expression was non-disruptive, and that because of that, the school had no constitutional reason to restrict it.Although Tinker established student freedom of speech via a test that focused solely on disruption, more recent cases have seen different analyses school officials. The 1986 case Bethel School District No. 43 v. Fraser, a student nominated a classmate for student government by giving a sexual-innuendo filled speech. In response, his school suspended him and prevented him from speaking at graduation. The Court upheld this as constitutional, because indecent or vulgar language was “wholly inconsistent with the ‘fundamental values’ of public school education|
.Punishment and restriction of indecent or disruptive speech was again upheld in the 2007 decision for Morse v. Frederick. At a televised school sponsored event off of school grounds, a high school student unfurled a banner saying “BONG HITS 4 JESUS.” His banner was confiscated and he was suspended. The Court upheld the actions of the school because they determined that restriction of messages promoting drug use at school events to be a reasonable restriction on the First Amendment. The opinion was controversial and divided, written by a plurality, with 3 justices dissenting, and three others writing concurrences (one of which dissented in part). The dissent described the plurality’s opinion as doing “great violence to the First Amendment” and warned against making special rules regarding view points on drugs or alcohol.
Schools have substantially more control over speech when they are promoting it or it involves school resources. In Hazelwood School District v. Kuhlmeier, members of a student newspaper sued their principal after he chose to remove two stories from the school-run student newspaper: an anonymous interview with three pregnant students at the school, and an article on student’s affected by divorce. The principal had concerns about potentially exposing the identities of the pregnant students, exposing younger students to inappropriate sexual material, and providing a one-sided view of the divorcing. Holding that the school paper was a nonpublic forum which the principal only had to regulate in a reasonable matter, the Court upheld the principal’s decision. The school newspaper, which was written through the school’s journalism class, was determined by the Court to be within the category of curricular decisions controlled by the school. These included school sponsored publications, plays, and other things someone “reasonably” could believe was sponsored by the school.
|Tinker v. Des Moines Sch. Dist. (1969)Bethel School District No. 43 v. Fraser (1986)Morse v. Frederick (2007)Hazelwood School District v. Kuhlmeier (1988)|