Con Law- conduct v. public forum

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BCLS
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Con Law- conduct v. public forum

Postby BCLS » Wed Apr 24, 2013 4:31 pm

It seems like in a lot of the public forum cases, like those where people are distributing handbills, the government, in addition to having a perhaps credible public forum restriction, might also be able to argue it was only prohibiting conduct, i .e. distributing handbills, regardless of the content. Does it make sense to throw both arguments out there (those being its a reasonable time, place, or manner restriction and state was only regulating conduct)? Thanks!

Thanks!!

MinEMorris
Posts: 228
Joined: Sat Nov 17, 2012 12:26 am

Re: Con Law- conduct v. public forum

Postby MinEMorris » Wed Apr 24, 2013 4:53 pm

Yes, just like on any law school exam, you'll want to talk about any test that could reasonably apply to the facts that you're given. Sometimes speech tests overlap and simultaneously apply to the same set of facts. Other times there's a foundational issue that would need to be solved (e.g. what type of forum the location of the speech is) before you could determine which test should apply to the facts. When resolution of a foundational matter is necessary, it's usually best to argue in the alternative on an exam, or at least mention the existence of other plausible analyses.

My memory of conlaw is a bit rusty, so this hypothetical may not be very good, but to give it a shot:

Imagine that due to the constant outbreak of riots during occupy protests, the US sets up small emergency military outposts in the centers of all public parks. A protestor then walks to the middle of one of these outposts and starts distributing handbills in an effort to try to persuade soldiers to abandon the outpost. The protestor is then removed and notified that the distribution of handbills is prohibited within the boundaries of the outpost.

As you may have learned, military bases have been found to be non public forums, but public parks are, of course, traditional public forums. What would the forum status be of an emergency military outpost in the middle of a public park? No idea. You can obviously try to argue it either way, but I would personally note arguments on both sides and go through the alternative analyses. If it is found to be a traditional public forum, then normal TPM analysis would apply. If it is found to be a non public forum, then the analysis would simply be whether the restriction reasonably reserves the property (the military base) for its intended use. Considering that this question is analyzed under what is essentially rational basis review, it's pretty likely that the restriction would pass muster if it's a non public forum.

Does that answer your question and make sense?
Last edited by MinEMorris on Wed Apr 24, 2013 4:59 pm, edited 1 time in total.

BCLS
Posts: 567
Joined: Mon Aug 23, 2010 9:40 am

Re: Con Law- conduct v. public forum

Postby BCLS » Wed Apr 24, 2013 4:57 pm

MinEMorris wrote:Yes, just like on any law school exam, you'll want to talk about any test that could reasonably apply to the facts that you're given. Sometimes speech tests overlap and simultaneously apply to the same set of facts. Other times there's a foundational issue that would need to be solved (e.g. what type of forum the location of the speech is) before you could determine which test should apply to the facts. When resolution of a foundational matter is necessary, it's usually best to argue in the alternative on an exam, or at least mention the existence of other plausible analyses.

My memory of conlaw is a bit rusty, so this hypothetical may not be very good, but to give it a shot:

Imagine that due to the constant outbreak of riots during occupy protests, the US sets up small emergency military outposts in the center of all public parks. A protestor then walks to the center of one of these outposts and starts handing out fliers in an effort to try to persuade soldiers to abandon the outpost. The protestor is then removed and notified that the distribution of handbills is prohibited within the boundaries of the military outpost.

As you may have learned, military bases have been found to be non public forums, but public parks are, of course, traditional public forums. What would the forum status be of an emergency military outpost in the middle of a public park? No idea. You can obviously try to argue it either way, but I would personally note arguments on both sides and go through the alternative analyses. If it is found to be a traditional public forum, then normal TPM analysis would apply. If it is found to be a non public forum, then the analysis would simply be whether the restriction reasonably reserves the property (the military base) for its intended use. Considering that this question is analyzed under what is essentially rational basis review, it's pretty likely that the restriction would pass muster.

Does that answer your question and make sense?


That makes sense-- thank you x100000 for that thoughtful response. I love this website.

One question, after conducting the public/non public forum aspect of that problem, would you alternatively, as the state, throw in an argument that it was only regulating conduct, that is distributing the handbills? This would be subject to the O'Brien test. Thanks!

MinEMorris
Posts: 228
Joined: Sat Nov 17, 2012 12:26 am

Re: Con Law- conduct v. public forum

Postby MinEMorris » Wed Apr 24, 2013 5:28 pm

BCLS wrote:It seems like in a lot of the public forum cases, like those where people are distributing handbills, the government, in addition to having a perhaps credible public forum restriction, might also be able to argue it was only prohibiting conduct, i .e. distributing handbills, regardless of the content. Does it make sense to throw both arguments out there (those being its a reasonable time, place, or manner restriction and state was only regulating conduct)? Thanks!

Thanks!!


No problem, glad it's helpful!

O'Brien analysis, keep in mind, only comes into play if the act triggering the regulation was symbolic speech. In Johnson the court said that to qualify as symbolic speech, there must be intent to convey a particular message by the act and a great likelihood that message would be understood by those who viewed the act. It's unlikely that the mere act of handing out a leaflet is going to meet this symbolic speech test, so O'Brien analysis normally wouldn't apply. (Note that the O'Brien/TPM/Intermediate Scrutiny are all basically the same test, so whether one or all of them apply tends not to be outcome determinative.) That said, context is everything for meeting the symbolic speech test. Imagine a situation where there was a religious man that always wore a pink hat and distributed handbills in the local park. Late one night, that man is shot, and the public rumor is that it was the police who shot him. A few days later, a hundred college students wear pink hats and distribute religious handbills on the sidewalk in front of the police station. In a situation like this, you would have a much stronger argument that the act triggering the law is symbolic speech.

Because a ban on the distribution of handbills is a restriction on a means of communicating, I think it falls squarely within TPM analysis unless I'm missing something. Also keep in mind the possibility of generally applicable laws that have disproportionate burdens on speech. An example of such a law would be a law that stated newspaper companies now have their ink purchases taxed by 800%. That's not a regulation of speech, but it's clearly going to have a dramatic effect on speech. Generally applicable laws do NOT receive intermediate scrutiny unless they meet the requirements discussed in Arcara. You may or may not have covered that case/this topic.

BCLS
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Joined: Mon Aug 23, 2010 9:40 am

Re: Con Law- conduct v. public forum

Postby BCLS » Wed Apr 24, 2013 6:12 pm

Thank you! So for example, in City of Erie, Pap's AM, there was a state ordinance making it illegal to "appear in public in a state of nudity." A private nude dancing club filed suit for an injunction. The first argument by the club would be this is expressive activity. State would respond, we are regulating conduct, not the message. I would go into an O'Brien analysis.

Additionally, it seems like, although the court in Pap's never discussed it, that there is a public forum issue if this occurred somewhere else, on state property. Imagine that someone was arrested at the state house for doing a nude dance. It's expressive. It's also on public property. Would it be worthwhile to conduct a public forum analysis? Although, if we use public forum analysis it seems like this would be shut down instantly as a content-based reg.

BCLS
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Re: Con Law- conduct v. public forum

Postby BCLS » Wed Apr 24, 2013 6:28 pm

or, for example, a silent sit opposing a war in at a public library. Could examine this under public forum doctrine. Also, though, couldn't state argue its prohibiting conduct, that is, disruptive conduct of all kinds, content neutral, in a library. So here would there be that dual analysis?

MinEMorris
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Joined: Sat Nov 17, 2012 12:26 am

Re: Con Law- conduct v. public forum

Postby MinEMorris » Wed Apr 24, 2013 8:08 pm

O'Brien gives you a free speech claim any time that you are engaging in expressive activity (as determined by the Johnson test I mentioned above) and are hit with some law or regulation because of it. If John Wilkes Booth had worn a confederate flag when he shot Lincoln, he probably would have had a free speech claim against the criminal law prohibiting murder under O'Brien. It's almost unimaginable that a law prohibiting murder wouldn't survive the O'Brien test, but he could still at least make the challenge.

The Supreme Court found in Barnes that nude dancing is expressive activity. Accordingly, the Court has since applied the O'Brien test to nude dancing establishments' claims against laws that forbid public nudity. The interesting stuff about paps was mostly the secondary effects stuff, but I don't think that's what your question is getting at, so I'll cut to the heart of where I think your question lies.

Any time the government owns the land, I think you should start thinking about public forum analysis. If it is determined that something is a non public forum ("NPF") or no forum at all ("NFAA"), you can toss O'Brien, TPM, etc. all out the window. NPFs and NFAAs are analyzed under different standards; O'Brien and all of that other stuff are first amendment tests for speech conduct that occurs outside of NPFs and NFAAs. For NPFs, you simply ask whether the regulation is reasonable restriction that helps reserve the property for its intended use, with the one caveat that viewpoint discrimination is prohibited. That's the only test that applies to NPFs. Using your library example, if a public library were an NPF, then all you'd have to ask is whether prohibiting sit-ins is a reasonable restriction that helps reserve the property for its intended use. Considering that sit-ins block access, take up space, distract peaceful contemplation, etc. I think you'd have a solid argument that it is a reasonable restriction. Even if TPM or O'Brien applied, they would be pointless because the NPF analysis is a lower standard. If something failed to pass the NPF reasonable reservation stuff, then there's no way it's going to pass TPM/O'Brien.

In NFAAs the govt can basically do whatever it wants; it can even engage in viewpoint discrimination.

Here's a breakdown in case it helps:
Traditional Public Forum: All of the tests like O'Brien, TPM, content-based regulation triggering strict scrutiny, etc. apply.
Unlimited Designated Public Forum: Same rules as traditional public forum.
Limited purpose designated public forum: If you're within the limited designation (e.g. the govt has opened a place up for religious discussions and your speech relates to religion) then all of the TPF rules apply. It's my understanding that if you're outside the designation (e.g. you're talking about gun control at the religion place) you can be flat out excluded/shut down with no review.
[Just FYI: I looked it up out of curiosity and a public library is apparently a limited purpose designative public forum]
Non public forum: see previous
No forum at all: see previous

I always thought of it like this: outside of traditional public forums, it's basically the government's house. They mostly get to call the shots in terms of who they invite in and why. If they want to invite the public to treat it like a traditional public forum (i.e. make it an unlimited designated public forum), they can. If they want to only invite the public to treat it like a traditional public forum for certain purposes (limited purpose designated public forum), they can. If they don't want the public to treat it like a traditional public forum and only want them to come in if they're going to do business or whatever (non public forum), as in a Social Security Office, then they can boot people out who are messing with their goal by treating it like a traditional public forum. If they just want to treat it like their fort and not invite the public to participate (no forum at all), as in the Oval Office, they can boot anyone out for any reason, basically.

Hope that makes sense. The bottomline answer to your questions, I think, is this: if the govt owns the land, do forum analysis. If you determine is a TPF or UDPF, you're still just going to be worrying about O'Brien and all of that mess. If you get to LPDPF, you need to ask whether the speech falls within the limited purpose, and if so, you apply O'Brien and all that mess. If you get to NPF and lower, you're applying completely different standards and O'Brien/all of that becomes irrelevant.

I have to end again with my disclaimer: I'm pretty confident about all of this, but it has seriously been a while since I took conlaw. I could be way wrong on any part of it.
Last edited by MinEMorris on Wed Apr 24, 2013 8:13 pm, edited 1 time in total.

BCLS
Posts: 567
Joined: Mon Aug 23, 2010 9:40 am

Re: Con Law- conduct v. public forum

Postby BCLS » Wed Apr 24, 2013 8:13 pm

MinEMorris wrote:O'Brien gives you a free speech claim any time that you are engaging in expressive activity (as determined by the Johnson test I mentioned above) and are hit with some law or regulation because of it. If John Wilkes Booth had worn a confederate flag when he shot Lincoln, he probably would have had a free speech claim against the criminal law prohibiting murder under O'Brien. It's almost unimaginable that a law prohibiting murder wouldn't survive the O'Brien test, but he could still at least make the challenge.

The Supreme Court found in Barnes that nude dancing is expressive activity. Accordingly, the Court has since applied the O'Brien test to nude dancing establishments' claims against laws that forbid public nudity. The interesting stuff about paps was mostly the secondary effects stuff, but I don't think that's what your question is getting at, so I'll cut to the heart of where I think your question lies.

Any time the government owns the land, I think you should start thinking about public forum analysis. If it is determined that something is a non public forum ("NPF") or no forum at all ("NFAA"), you can toss O'Brien, TPM, etc. all out the window. NPFs and NFAAs are analyzed under different standards; O'Brien and all of that other stuff are first amendment tests for speech conduct that occurs outside of NPFs and NFAAs. For NPFs, you simply ask whether the regulation is reasonable restriction that helps reserve the property for its intended use, with the one caveat that viewpoint discrimination is prohibited. That's the only test that applies to NPFs. Using your library example, if a public library were an NPF, then all you'd have to ask is whether prohibiting sit-ins is a reasonable restriction that helps reserve the property for its intended use. Considering that sit-ins block access, take up space, distract peaceful contemplation, etc. I think you'd have a solid argument that it is a reasonable restriction. Even if TPM or O'Brien applied, they would be pointless because the NPF analysis is a lower standard. If something failed to pass the NPF reasonable reservation stuff, then there's no way it's going to pass TPM/O'Brien.

In NFAAs the govt can basically do whatever it wants; it can even engage in viewpoint discrimination.

Here's a breakdown in case it helps:
Traditional Public Forum: All of the tests like O'Brien, TPM, content-based regulation triggering strict scrutiny, etc. apply.
Unlimited Designated Public Forum: Same rules as traditional public forum.
Limited purpose designated public forum: If you're within the limited designation (e.g. the govt has opened a place up for religious discussions and your speech relates to religion) then all of the TPF rules apply. It's my understanding that if you're outside the designation (e.g. you're talking about gun control at the religion place) you can be flat out excluded/shut down with no review.
[Just FYI: I looked it up out of curiosity and a public library is apparently a limited purpose designative public forum]
Non public forum: see previous
No forum at all: see previous

I always thought of it like this: outside of traditional public forums, it's basically the government's house. They mostly get to call the shots in terms of who they invite in and why. If they want to invite the public to treat it like a traditional public forum (i.e. make it an unlimited designated public forum), they can. If they want to only invite the public to treat it like a traditional public forum for certain purposes (limited purpose designated public forum), they can. If they don't want the public to treat it like a traditional public forum and only want them to come in if they're going to do business or whatever (non public forum), as in a Social Security Office, then they can boot people out who are messing with their goal by treating it like a traditional public forum. If they just want to treat it like their fort and not invite the public to participate (no forum at all), as in the Oval Office, they can boot anyone out for any reason, basically.

Hope that makes sense. The bottomline answer to your questions, I think, is this: if the govt owns the land, do forum analysis. If you determine is a TPF or UDPF, you're still just going to be worrying about O'Brien and all of that mess. If you get to LPDPF, you need to ask whether the speech falls within the limited purpose, and if so, you apply O'Brien and all that mess. If you get to NPF and lower, you're applying completely different standards and O'Brien/all of that becomes irrelevant.

I have to end again with my disclaimer: I'm pretty confident about all of this, but it has seriously been a while. I could be way wrong on any part of it.


Thanks so much for your thoughtful response--- it was very helpful and I really appreciate it!

MinEMorris
Posts: 228
Joined: Sat Nov 17, 2012 12:26 am

Re: Con Law- conduct v. public forum

Postby MinEMorris » Wed Apr 24, 2013 8:34 pm

Of course! Again, I'm happy any of it is helping.

I reread your question and thought I'd elaborate on content neutrality, since maybe that was what your question was more concerned with.

In both the O'Brien and TPM test, though it appears in different places in the respective tests, there is an element that basically asks whether the law is regulating the content of the speech. If law fails this part of the tests, that is, the law regulates the content of the speech, and the content is not an unprotected/lesser protected category of speech, you go to strict scrutiny. If the content it's regulating is lesser protected speech, then you apply whatever tests/caveats apply for that category of speech. If the content is unprotected speech, you get rational basis review subject to the limitation that you cannot discriminate between viewpoints.

Determining whether a law regulates the content of the speech can be difficult. We know from O'Brien that you can look at both the face of the statute and the legislative history. O'Brien also tells us that when the law is facially neutral but the legislative history is mixed (some anti speech stuff and some stuff that doesn't have to do with speech), then it's not content-based (i.e. one legitimate legislative motive is sufficient to keep the court from shifting to strict scrutiny if the statute is facially neutral). Facial neutrality can be hard to determine, though, and you'll want to argue both sides on an exam. For example, take the ban on "counseling" within a range of hospitals in Hill. In one sense you could say that it's content neutral (which the Court ultimately found) because it applies regardless of what you're counseling about or what your message is in your counseling. In another sense, whether you're counseling someone seems really determined by the content of your speech. A ban on counselling would seem to effectively ban certaint content. The Court probably could have found it to be content-based if it wanted to.

The Court is hardly consistent about how rigorous it's going to be to find content neutrality, so if you ever think there's an argument, go for it. You can just say something like "arguably by focusing on ____, the statute is a content-based regulation of fully protected speech. If this were found, the law would be subject to strict scrutiny, which it almost certanly would not pass. Assuming, however, that th court does not find it to be a content-based regulation of fully protected speech, X test would apply. The elements of X test are as follows:...."




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