Q: My family and I have been protesting an event but now the promoter has placed an “order of protection” against us so that we cannot return. He wrote on his order that we are disruptive and that the police had to be called. The police were called but because we were peacefully picketing they said there was nothing they could do. We are currently waiting on court to fight this order. I was wondering if this order of protection can actually take our constitutional rights away or would the first amendment “quash” the order of protection? The order doesn’t state how many feet it just states that we cannot go on or near the premises… Does this include the public sidewalk outside the fenced area?
A: Whether or not the organizer of your event can place limits on your ability to picket the event depends on numerous factors, the most important of which is whether the space in which you are picketing is public property, and how that space has historically been used for purposes of speech. As a general matter, a private entity can limit or restrict speech on private property (with some exceptions), but if the private entity is trying to limit speech on, say, a public sidewalk outside a privately owned building, then the analysis changes and the First Amendment is invoked. As a general matter, the private entity could not force you off the public property. If I’m understanding your inquiry correctly, it may be that a private organization, not the government, is attempting to restrict your speech, and may be attempting to get an order from the courts to achieve this goal. The inquiry is highly fact-specific, but perhaps the following general explanation of First Amendment law will help as you navigate this process.
As a starting point, in addition to finding out whether the exact location where you are picketing is public or private property, you may want to check whether the city or county have any ordinances governing picketing to see if there are any regulations that restrict such activities.
The inquiry as to whether regulations restricting speech are permissible under the First Amendment turns on the type of space and whether the restrictions 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.
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 US v. Kokinda, the U.S. Supreme Court held that 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. 497 U.S. 720, 730-33 (1990). Similarly, in Jacobsen v. Bonine, the Ninth 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).
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).
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. 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.
In Fiesta Mall Venture v. Mecham Recall Comm., 159 Ariz. 371, 375, 767 P.2d 719, 723 (Ct. App. 1988), the Arizona Court of Appeals found that, while article II, section 6 of the Arizona state constitution may provide more extensive protections than the First Amendment, it does not require private property owners to permit political activity on their premises. In finding that private shopping malls and retail businesses did not constitute a public forum, the court noted the “essentially private character of a store and its privately owned abutting property” in holding that a recall committee did not have a constitutionally protected right to solicit signatures on private property. Id.
As you can see, whether a particular space constitutes public fora is necessarily a case-specific, fact-intensive inquiry. If you think that the space where you are picketing does constitute the type of public space where speech has historically been permitted, you will want to make sure that your picketing is not obstructing the free flow of foot traffic or preventing anyone from accessing the venue.
Bryan Cave 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.