In a case that has been percolating for more than five years and which we reported on last year, the Ninth Circuit Court of Appeals reversed a district court
In Tennessee Planned Parenthood Case, Court Finds Private Street is Not a Public Forum
Last month, a federal district court in Tennessee denied a motion for preliminary injunction filed by a man who wished to picket a Planned Parenthood location in a business park in Memphis. The court determined that the private street on which the plaintiff, John Brindley, intended to picket was not a public roadway and therefore was not a traditional public forum requiring content neutral speech regulations.
Planned Parenthood’s offices are located on Virginia Run Cove, a two-lane street that serves multiple businesses located within the park. The park is zoned as a planned unit development, and the street serves the businesses located within the park. Brindley sought to protest Planned Parenthood on Virginia Run Cove, but was asked to move by a police officer on the premise that Virginia Run Cove is a private street. Brindley subsequently moved to a nearby public street, but was dissatisfied that his protest location was nearly 300 feet from his target audience, Planned Parenthood. Brindley subsequently filed his complaint in federal district court.
In conducting a forum analysis to determine whether Virginia Run Cove was a public forum for First Amendment purposes, the court noted that some public fora are privately-owned. These areas include public sidewalks that run across private property, sidewalks on private university campuses, and even the streets of corporate-owned communities. However, the court observed, private areas are not converted into public fora where the owner of the property allows a more limited use of the property.
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No Christmas in July for Archdiocese of Washington; Appeals Court Affirms Denial of Preliminary Injunction
Last December, we reported on a federal district court’s denial of a motion for preliminary injunction relating to the Archdiocese of Washington’s unsuccessful efforts to post Christmas-season advertising on transit vehicles owned and operated by the Washington Metropolitan Area Transit Authority. Unfortunately for the Archdiocese, Christmas did not come in July either. Last week, the federal Court of Appeals for the D.C. Circuit affirmed the denial of preliminary injunctive relief.
The facts of the case are available on our post regarding the district court’s decision.
On appeal, the appellate court (which included as a panelist Supreme Court nominee Judge Kavanaugh) agreed with the district court. First, the court agreed that the advertising space on WMATA transit vehicles constitutes a non-public forum, where the government can exercise greater control over content yet must adhere to requirements of viewpoint neutrality and reasonableness. In so ruling, the D.C. Circuit joins a majority of federal appeals courts that have now ruled that transit advertising spaces are non-public fora.
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Supreme Court to Minnesotans: Wear Your Political Buttons, Badges, and T-Shirts to the Polls
Tea Partiers in the Land of 10,000 Lakes, as well as those hipsters who like to wear vintage political t-shirts (think “Nixon’s the One!” or “LBJ All the Way!”) on election day scored a big victory at the Supreme Court last week. In a 7-2 decision, the Court held that a Minnesota law prohibiting individuals from wearing or displaying certain types of political attire was unconstitutional under the First Amendment. The Minnesota law in question also prohibited displays of campaign materials within 100 feet of a polling place and the distribution of political materials to be worn at a polling place.
The law was challenged by a Tea Party group, and was upheld by lower courts.
Applying the public forum doctrine, the Supreme Court found in Minnesota Voters Alliance v. Mansky that the interior of a polling place constitutes a nonpublic forum. In a nonpublic forum, speech regulations must be viewpoint neutral and reasonable in light of the purposes of the forum. While the Court observed that Minnesota could constitutionally prohibit political attire, buttons, and other paraphernalia from the interior of a polling place, it found that the law in question failed the reasonableness standard. The Court noted, for example, that the statute failed to define the term “political,” such that voters and those enforcing the law had no standards by which to determine what attire would pass muster. While local polling places had been issued some guidance on the issue, the Court found that the guidance similarly lacked clarity regarding what constituted political speech. The Court observed that other states, including California and Texas, had much clearer laws that narrowed the class of prohibited speech to that which advocates for or against a candidate or ballot measure appearing on the ballot.
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Eighth Circuit Upholds Lincoln, Nebraska Anti-Leaflet Policy
Last week, a federal appeals court upheld an order granting summary judgment to the City of Lincoln, Nebraska in a case involving a prohibition on leafleting activity outside of the city’s basketball arena. In the decision, the court determined that the plaza outside of the arena was a nonpublic forum, and that the city’s regulation met the basic requirement of reasonableness for regulations of speech in a nonpublic forum.
In 2010, Lincoln and the University of Nebraska created a joint agency to redevelop a portion of the city and to construct a new athletic arena for the university’s sports teams. In connection with the redevelopment, new pedestrian areas were constructed, including a plaza immediately outside of the arena. The city entered into a private management agreement allowing a concessionaire to manage and operate the arena and surrounding property. After the arena opened in 2013, the concessionaire, SMG, adopted a policy establishing the plaza outside of the arena as a nonpublic forum, and specifically reserved use of the plaza for tenants of the arena. Other pedestrian areas outside of the plaza were designated for public uses.
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