Q: Is there any caselaw or information I can refer to regarding display of a sign, placard, or passing out fliers in the parking lot of a municipal courthouse? Would I have to keep a certain distance from the courthouse doors to stay within the law?
A: As a starting point, you may want to check the city or county ordinance governing solicitation on public property to see if there are any regulations that restrict such activities on public property. The inquiry as to whether regulations restricting speech are permissible under the First Amendment turns on whether they represent reasonable time, place and manner restrictions.
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 “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).
The California Court of Appeal struck down a Los Angeles County regulation that prohibited solicitation “in any manner or for any purpose, in any building or in or on any property or premises owned, lease, managed or controlled by the county of Los Angeles.” Los Angeles County Code § 13.16.010; People v. Tisbert, 11 Cal. App. 4th Supp. 1, 8 (1992).
In Tisbert, the appellant had set up a small portable table inside a county courthouse, where he placed several brochures and two petitions to collect signatures for two proposed ballot initiatives. Id. at 3.
He was expelled from the courthouse by sheriff’s deputies, and charged with a misdemeanor for violating the county’s solicitation statute, for which he was subsequently found guilty at trial. Id. at 4. In reversing his conviction, the appellate court stated that a courthouse is a public place, “which in general entitles a person to speak freely therein,” but, on the other hand, “a courthouse is operated for the limited purpose of conducting trials and other forms of judicial exercise.” Id. at 6.
The court concluded that the ordinance was overbroad on its face, since it is “not narrowly drawn to achieve the county’s purpose of safeguarding its property or the activities conducted therein.” Id. at 7. The court left it to the county to construct a “constitutionally solid” ordinance. Id. at 8.
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. Note that the Ninth Circuit has said that a courthouse is not a public forum, Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 966 (9th Cir. 2002), but it is not clear that that determination would extend to the parking lot or other areas outside of the courthouse. A federal district court in California said, more broadly, that courthouse grounds were not a public forum, Comfort v. MacLaughlin, 473 F. Supp. 2d 1026, 1028 (C.D. Cal. 2006), but again, that would not necessarily extend to a parking lot.
As you can see, the analysis required is necessarily case-specific. I hope that the analysis provided above is helpful in determining where you might want to distribute your flyers at the courthouse.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.