“Doctrinal Problems”*

It may seem odd that we see so many constraints on expression in traditional public forums in light of today’s generally permissive First Amendment landscape. In recent years, the Supreme Court has upheld the First Amendment rights of video gamers, liars, and people with weird animal fetishes. But in most cases involving the public forum—cases where speech and assembly might actually matter to public discourse and social change—courts have been far less protective of civil liberties.

Part of the reason for this more tepid judicial treatment of the public forum is a formalistic doctrinal analysis that has emerged over the past half-century. Courts allow governmental actors to impose time, place, and manner restrictions in public forums. These restrictions must be “reasonable” and “neutral,” and they must “leave open ample alternative channels for communication of the information.”

The reasonableness requirement is an inherently squishy standard that can almost always be met. The neutrality requirement means that restrictions on a public forum must avoid singling out a particular topic or viewpoint. For example, they cannot limit only political speech or only religious speech (content-based restrictions0. And they cannot limit only political speech expressing Republican values or only religious speech expressing Jewish beliefs (viewpoint-based restrictions). It turns out to be pretty easy for government officials to satisfy the neutrality requirement.

The requirement of “ample alternative channels” introduces another highly subjective standard. Lower courts have found that an alternative is not sufficiently ample “if the speaker is not permitted to reach the intended audience” or if the distance between speaker and audience is so great that only those “with the sharpest eyesight and most acute hearing have any chance of getting the message.” But the ampleness standard is otherwise underspecified. At least one federal appellate court has concluded that an alternative venue need not be within “sight and sound” of the intended audience.

The Supreme Court’s only recent consideration of the ampleness standard came in its deeply divided opinion in Hill v. Colorado, which upheld a public forum restriction that had been challenged by anti-abortion protestors. The majority opinion concluded that the restriction left open “ample alternative channels for communication” and did “not entirely foreclose any means of communication.” Justice Anthony Kennedy warned in dissent that “our foundational First Amendment cases are based on the recognition that citizens, subject to rare exceptions, must be able to discuss issues, great or small, through the means of expression they deem best suited to their purpose.” Kennedy insisted “it is for the speaker, not the government, to choose the best means of expressing a message.” That sentiment echoes Justice William Brennan’s assertion in an earlier case: “The government, even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers and listeners; free and robust debate cannot thrive if directed by the government.” The underspecified ampleness standard can substantially hinder these goals.

As long as the requirements of reasonableness, neutrality, and ample alternative channels are met, officials can limit the duration and time of day when public forums can be used, the location of an expressive event, and the way in which ideas are conveyed. In principle, these restrictions make sense. In practice, they have been used to control and mute expression and voice.

Consider, for example, how restrictions on time can sever the link between message and moment. Closing a public forum for periods of time that encompassed symbolic days of the year like September 11, August 6 (the day the United States detonated an atomic bomb on the city of Hiroshima), or June 28 (the anniversary of the Stonewall Riots) could stifle political dissent. Time restrictions that closed the public sidewalks outside of prisons on days of executions, outside of legislative buildings on days of votes, or outside of courthouses on days that decisions are announced, would raise similar concerns. Yet all of these restrictions are arguably permissible under current doctrine.

Restrictions on place that preclude access to symbolic settings can be similarly distorting. As law professor Timothy Zick has noted, “Speakers like abortion clinic sidewalk counselors, petition gatherers, solicitors, and beggars seek the critical expressive benefits of proximity and immediacy.” Zick observes that current doctrine means “individuals who wish to engage in speech, assembly, and petition activities are too often displaced by a variety of regulatory mechanisms, including the construction of ‘speech zones.'” Take, for example, a labor protest. A strike that occurs in front of an employer’s business rather than blocks or miles away not only communicates to a different audience but also conveys different meanings.

Restrictions on manner can drain an expressive message of its emotive content. A ban on singing could weaken the significance of a civil rights march, a funeral procession, or a memorial celebration. Manner restrictions can also eliminate certain classes of people from the forum altogether. That might be true of a requirement that all expression be conveyed by handbills or leaflets rather than by posters. As Supreme Court Justice William Brennan once observed, “The average cost of communicating by handbill is . . . likely to be far higher than the average cost of communication by poster. For that reason, signs posted on public property are doubtless ‘essential to the poorly financed causes of little people.'”

Under current doctrine, the state’s regulation of public spaces through time, place, and manner restrictions is too easily justified apart from serious inquiry into the implications of those restrictions. A government official can usually come up with some reason to regulate expressive activity, some explanation of neutrality, and some argument that an ample alternative for communication exists. But the First Amendment should require more than just any justification to overcome its presumptive constraint against government action.

Sometimes the government can go to even greater extremes than the latitude afforded under time, place, and manner restrictions. Under an evolving doctrine known as government speech, the government can characterize some expression as distinctively its own and not subject to any First Amendment review.

Not all applications of the government speech doctrine are problematic; some cases are easy to understand. When the City of Pawnee hosts a tribute to black history on Martin Luther King Jr. Day, it is “speaking” a message consistent with Dr. King’s values. To that end, it need not ensure that members of the Ku Klux Klan have an opportunity to present their perspective. The event is premised on government speech rather than on facilitating a diversity of viewpoints and ideas.

Even though we can readily grasp the easy cases, the government speech doctrine is fiercely contested by courts and legal scholars because the line drawing it requires beyond those easy cases is impossible to configure. And without any lines—if the government could claim its own speech in any possible forum—the doctrine would swallow the First Amendment.

The Supreme Court unwisely gestured toward the possibility of the unrestricted government speech doctrine in its 2009 decision Pleasant Grove v. Summum. In that case, an obscure religious group called Summum wanted to erect a stone monument in a city park in Pleasant Grove City, Utah. Summum argued that because Pleasant Grove’s park was a traditional public forum, the city could not limit the privately donated monuments in the park to those representing certain mainstream groups, like a statue of the Ten Commandments. The city responded that the park space was a limited resource that could only accommodate a limited number of monuments, and insisted that it could choose which ones to include. In some ways the city’s argument makes sense—public parks are finite resources and cannot possibly accommodate every monument that every person wanted to contribute. But rather than addressing that issue within a public forum analysis, the Supreme Court ducked the issue by designating the monuments in the city par as government speech. That meant Pleasant Grove could decide which monuments to allow and which ones to prohibit. Sidestepping the public forum analysis avoided the hard work that courts and officials should be required to undertake in these settings.

*This excerpt has been adapted (without endnotes) from Confident Pluralism: Surviving and Thriving through Deep Difference by John D. Inazu (2016).

***

To read more about Confident Pluralism, click here.