Posting in City Sponsored Spaces
Q: I would like to know if cities which maintain bulletin boards, kiosks and other posting places may regulate the content of what is posted and if there is any requirement that these tax supported facilities be available to all?
Our city regulates the contents of posting but the only requirement written down is “it must be of general community interest”. Who decides is not specified and what are the criteria is not specified. In essence this excludes any opinion critical of the city administration.
Also I would like to know if the Public Records Act or some other statute requires that agencies, like cities, must have their practices and policies in writing somewhere.
A: Assuming the kiosks and bulletin boards you reference are located on city sidewalks, streets or parks, a restriction that bans speech that is critical to the administration would likely not pass First Amendment scrutiny. Sidewalks, streets and parks are generally considered to be public forums. See ACLU v. City of Las Vegas, 333 F. 3d 1092, 1099 (9th Cir. 2003). “[T]he government must bear an extraordinarily heavy burden to regulate speech in such locales.” Grossman v. City of Portland, 33 F.3d 1200, 1204 (9th Cir. 1995). With respect to public forums, the government has the right to establish regulations on the time, place and manner of protected speech. In order to impose restrictions on speech in a public forum, the restrictions must be “justified without reference to the content of the regulated speech … narrowly tailored to serve a significant governmental interest, and … leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). A regulation that would ban speech on those kiosks and bulletin boards that is critical to the administration would likely not be deemed content neutral and, thus, not pass First Amendment scrutiny.
Moreover, while there is no statute that I am aware of that would require cities to issue written regulations, one of the ways of ensuring that time, place and manner regulations are content-neutral is to have such regulations in writing. If the regulations are not in writing, it gives too much discretion to the city to decide to impose them only when a person or organization is engaging in speech that the city dislikes. In addition, when decision-makers have the power to make decisions based on ambiguous criteria — such as that the speech simply be “of general community interest” — this leaves decision-makers with too much discretion to make determinations on any basis, including determinations based on content, which is impermissible. See Vo v. City of Garden Grover, 115 Cal. App. 4th 425, 438 (2004) (“The [zoning administrator’s] ability to make decisions based on ambiguous criteria such as the ‘general welfare’ of the community effectively gives the [zoning administrator] the power to make decisions on any basis at all, including an impermissible basis, such as content-based regulation of speech.”) (citing Dease v. City of Anaheim, 826 F. Supp. 336, 344 (C.D.Cal. 1993)). Such regulations — that is, regulations that leave too much discretion on decision-makers to make determinations based on ambiguous criteria — would therefore be unconstitutional under the First Amendment.