Q: My City’s Code creates a system of Neighborhood Associations and, above them, a tier of District Coalitions. The NAs and DCs are quasi-governmental bodies supported and funded by the City to assist with neighborhood-level governance and participation in city decision-making; however, they have non-profit status. One of the NA board members is facing litigation due to his expression of opinion in a public forum. Are these agencies protected under the First Amendment?
A: Given that the entities at issue were created by City Code for civic engagement and governance, they may be subject to the First Amendment. It is also unclear if the City could rightfully delegate governing power to private non-profits, based on the private non-delegation principle. If the NAs and DCs are subject to the First Amendment, whether there has been any violation of the First Amendment is necessarily fact specific.
As you probably know, permissible governmental speech restrictions vary based on whether the forum at issue is public, limited public, or nonpublic. Public comment sessions have been found to be limited public forums. See White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990).
Generally, in a 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. Perry Educ. Ass’n. v. Perry Local Educators Ass’n., 460 U.S. 37, 45 (1983).
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).
If you believe the speech at issue was targeted because of the content, then a higher standard (i.e., strict scrutiny) must be met. “[C]ontent-based exemptions may pass constitutional muster only if they are the least restrictive means to further a compelling interest.”Foti v. City of Menlo Park, 146 F. 3d 629, 637 (9th Cir. 1998).
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.