Do we have an unfettered right to protest on government property?

Tuesday, February 14, 2006

No. The government can limit such protests depending on several factors. First, violent protests are outlawed anywhere. The text of the First Amendment provides for “the right of the people peaceably to assemble.” The key word is “peaceably” — violent protesting is not allowed.

Second, not all government property is treated the same for First Amendment purposes. The U.S. Supreme Court has established the public-forum doctrine to examine whether certain types of public property are open to First Amendment expressive activity. These categories include traditional public forums, limited or designated public forums and nonpublic forums. Still other government property is not considered a forum at all.

First Amendment rights apply the most in a traditional public forum, such as a public park. In its 1939 decision Hague v. C.I.O. the U.S. Supreme Court explained: “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.”

The general rule is that government officials may not impose content-based restrictions on speech in a public forum. This means that city officials must not treat different persons and groups of persons differently on the basis of the content (and viewpoint) of their messages. The government can justify content-based speech restrictions only by showing that it has a compelling state interest in imposing them (such as safety or security concerns), and that it has done so in a narrowly tailored way. Even in a public forum, the government may impose reasonable time, place and manner restrictions that are content-neutral, leave open ample, alternative ways for expression and are narrowly tailored. This means that city officials could limit protests to certain hours of the day and perhaps certain locations. Again, the key terms are “reasonable” and “content-neutral.”

The next category is a limited or designated public forum (though some lower courts distinguish between limited and designated — see discussion in Speaking at public meetings section).

In a limited public forum (such as a meeting room on a public college campus that is frequently used by outside groups), the government designates the certain types of subject matter that can be discussed at the location. After the government has created such a forum, setting boundaries on classes of speakers or topics, the government must meet the standards of a traditional public forum; namely, restrictions on speech must be reasonable and viewpoint-neutral. The theory is that when the government opens a forum up to the public, it shouldn’t be able to skew discussions by over-regulating expression.

Still another category is the nonpublic forum, a place where the government has greater leeway for control, as restrictions on expression must only be reasonable and viewpoint-neutral. What this means is that the right to protest is often affected by the location and purpose of the government property where the protest takes place. In United States v. Grace (1983), the U.S. Supreme Court wrote that the “public sidewalks forming the perimeter of the Supreme Court grounds, in our view, are public forums and should be treated as such for First Amendment purposes.” The same protest rights would not apply inside the Supreme Court building or on the steps right outside the Court. In U.S. v. Kokinda (1990), the U.S. Supreme Court ruled that postal sidewalks were not public forums, writing that they do “not have the characteristics of public sidewalks traditionally open to expressive activity.” The Court clarified that “the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.”

In sum, there is no unfettered right to protest on government property. Protests must be peaceable, and the government has the right to impose content-neutral, reasonable time, place and manner restrictions on expression. Furthermore, as the Supreme Court said in Kokinda, “the government’s ownership of property does not automatically open that property to the public.”

The government has greater power to regulate expression when it acts as a proprietor controlling its internal operations than it does as a sovereign lawmaker. This means that government officials could limit protests inside a courthouse because the government has important operations to conduct. It must be able to control its operations to carry out its functions. The government must be able to carry on its own speech and expression free from interference. Contrast this with the public sidewalks two blocks from a courthouse. Here, the government cannot argue that it is conducting its own internal operations. Speech restrictions there would implicate a forum analysis and trigger a higher degree of judicial scrutiny.