A&A: Can Golf Group Nix Magazine Give Away in Parking Lot?

Q: I publish a golf lifestyle magazine. We had planned to distribute our magazine free at the parking lots during the US Open. The general parking is at Cal State Monterey Bay and is free. Can the USGA (United States Golf Association) legally prevent us from accessing the lots and passing out the magazines? If there’s a citation of a case, that would be very helpful.

A: From what I understand, you would like to distribute free copies of your magazine at Cal State Monterey’s parking lot during the USGA Open, and would like to know whether the USGA (or any other authority) might prevent you from doing so. As a preliminary matter, you may want to check with the university to see if there are any written regulations pertaining to the distribution of literature on campus. If there are not, any attempt to prevent you from distributing your magazine may be unlawful since authorities would not be acting pursuant to a written ordinance or regulation.

The practice of distributing your magazine is analogous to the leafletting cases of old. The Supreme Court has held that such form of communication, whether for political, religious, or commercial purposes, holds a venerable place in American history, and that “pamphlets and leaflets … have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest.” Jobe v. City of Cattlesburg, 409 F.3d 261, 264 (6th Cir. 2005), citing Lovell v. City of Griffin, 303 U.S. 444, 452 (1938).

In Martin v. City of Struthers, 319 U.S. 141, 143, 149 (1943), the Supreme Court struck down a ban on door-to-door leafletting, stating that the First Amendment freedom of speech “embraces the right to distribute literature, … and necessarily protects the right to receive it. The privilege may not be withdrawn even if it creates the minor nuisance for a community of cleaning litter from its streets. … Yet the peace, good order, and comfort of the community may imperatively require regulation of the time, place and manner of distribution.”

Likewise, in Watchtower Bible and Tract Society of New York v. Village of Stratton, 536 U.S. 150, 168 (2002), the Court invalidated licensing requirements for door-to-door solicitors and leafletters upon a challenge brought by a religious organization.

Given that you propose to distribute your magazine in the parking lot at a public university, which is open to any member of the public on this particular weekend for free US Open parking, you should consider whether the premises would be considered a public forum. Spaces such as sidewalks and parks have traditionally been used for conduct protected by the First Amendment, and are considered “public forums,” and therefore conduct in these forums is protected by the First Amendment and can only be restricted if a high standard is met.

The other end of the spectrum is the “non-public forum,” or places not traditionally open to the public for speech or petition-related activities. Restrictions in non-public forums need only be reasonable and are generally upheld. In between these two extremes are “limited public forums,” or areas that traditionally have not been made open to the public, but have become public forums for at least some purposes because the government body that regulates a particular area has made it available for use by the public. In order to restrict speech in a public forum or limited public forum, reasonable time, place and manner regulations are permissible, but restrictions must be “content neutral” (as opposed to “content based”) and narrowly tailored to serve a significant government interest, and must allow ample alternative channels of communication. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

Restrictions on speech in a public forum “must be justified without reference to the protected speech’s content.” ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006). Content neutral restrictions are those that are both viewpoint and subject matter neutral, i.e., do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter. See, e.g., Boos v. Barry, 485 U.S. 312, 320 (1988).

In Carreras v. Anaheim, the court found that the exterior walkways and parking areas of a city -owned stadium and convention center were public fora, and regulations prohibiting a religious group from soliciting in these areas were impermissible under the First Amendment and California law. 768 F.2d 1039, 1045 (9th Cir. 1985). The areas in question facilitate parking and the free flow of pedestrian and vehicular traffic, and the expressive activity of the religious group was not incompatible with these intended uses. Id. Fear on the city’s part that the solicitors would behave badly, as it claims the plaintiff had done in the past, were not justification for imposing the regulations that it did, and the city certainly could narrowly tailor the regulations to address any such fears, while still permitting the activity. Id. at 1046-47.

On the other hand, in Savage v. Trammell Crow Co., the court upheld a ban on leafletting in the parking lot of a privately owned shopping center as an appropriate time, place and manner restriction. 223 Cal. App. 3d 1562, 1571 (1990). Even though the shopping center was privately owned, the court found that it was a public forum for purposes of First Amendment analysis. Id. Nonetheless, the court upheld the restriction on leafletting, finding that the regulation was content-neutral, meaning it was adopted due to concerns unrelated to any message that a potential leafletter was attempting to convey. Id. at 1573. Also, the regulation was appropriately tailored to meet the center’s interest in keeping the parking lot safe and presentable, given its primary concerns related to littering and interference with ingress and egress to and from the shopping center. Id. at 1573, 1575. Finally, there were alternative channels of communication open to leafletters, especially considering that such activity was permitted on the center’s sidewalks. Id. at 1575.

Finally, in Jacobsen v. Bonine, the 9th Circuit Court of Appeals held that the perimeter walkways of interstate rest areas that border parking areas and facilities of a rest stop were not public fora, since they were not “traditional sidewalks, accessible to and from general pedestrian traffic,” but rather were “accessible only by persons traveling in motor vehicles on interstate highways.” 123 F.3d 1272, 1273-74 (9th Cir. 1997). “The government, ‘no less than a private owner of property, has the power to preserve the property under its control for the use to which it is lawfully dedicated.'” Id. at 1274 (internal quotations omitted).

A property’s “mere physical characteristics” do not dictate forum analysis, but rather its “location and purpose” and “the government’s subjective intent in having the property built and maintained, that is crucial to determining the nature of the property for forum analysis.” Id.; see also US v. Kokinda, 497 U.S. 720, 730-33 (1990) (sidewalks leading to and from entrance to post office were nonpublic fora given that sidewalk serves as right of access to post office, rather than quintessential public sidewalk). The question that a court might ask is whether the location in question has the “characteristics of public sidewalks traditionally open to expressive activity.” Jacobsen, 123 F.3d at 1274.

Depending on its specific characteristics and location, a campus parking lot may be considered a public forum, especially if parking is free at this lot during the US Open to any member of the public, and the public uses the lot to get to other areas of campus. A court would probably also consider whether leafletting has traditionally been tolerated at this particular location; whether content-neutral, narrowly drawn restrictions on such activity have been imposed; and whether there are alternative methods for communicating messages that might otherwise be communicated in the parking lot. If there is a sidewalk or other public space nearby where a leafletter is permitted to distribute literature and can reach substantially the same audience, this might pass constitutional muster with respect to whether the regulation is narrowly tailored and leaves open alternative channels of communication.

As you can see, the analysis required is necessarily case-specific. As suggested above, you may want to check the regulations in advance to see what type of activity is permitted. You may also want to scout the premises in case you need an alternative location to distribute your magazine to your target audience .