Q: We had some 15 protesters on a public passage that is a footpath over a major frwy. A government entity kept harassing us during our protest.
We hung large signs over the frwy as these overpasses have metal grids fencing. This in turn slowed but did not impede or block or obstruct moving traffic.
Houston police never asked us to leave and did not worry us however Dept of Transportation employees kept trying to find ways to get us off the overpass.
I do not see this agency as having jurisdiction over a public overpass.We cleaned up before and after the event. The next day a protest broke out on another hwy with an overpass and received full press coverage. In this instance the road was impassable and the overpass jammed full of mobs. No evidence of the Department of Transportation then. What can we do to get back at this agency?
A: In general, where public spaces are concerned, governmental entities are permitted to make and enforce reasonable time, place and manner restrictions, so long as they are content-neutral.
So, for example, the extent to which the government must make a public park or public sidewalk (or in your case, a public overpass) available for private speech (as opposed to just its own speech) will depend on the specific features of that public space.
Some public places — namely, parks and sidewalks — are considered “traditional public forums” because they have historically been open for use by private speakers and the government is thus limited in how it can control speech in those areas. Moreover, even if a conduit has not historically been open for private speakers, the government can nevertheless designate it as being available for private speakers.
In such situations, the conduit is considered a “designated public forum.” In either a traditional or designated public forum, the government may place only reasonable time, place and manner restrictions on the private speakers.
The government may not, without satisfying a very demanding balancing test, limit the content of the private speaker’s speech, or favor one type of speech over another.
In your situation, this would mean that if the Department of Transportation is putting restrictions on one group with respect to the use of a public overpass, but no restrictions on another group using the overpass in the same manner, then it would seem that there may be some First Amendment concerns.
On the other hand, if the government had reasonable time, place and manner restrictions in place with respect to speech on overpasses, and applied those restrictions evenly to all groups, regardless of what the messages are, then a court might find such restrictions meet First Amendment scrutiny.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.