Q: Recently the city manager sent an e-mail to the president of the senior center regarding complaints his office had received about the local newspaper’s political cartoons being posted on the wall inside the senior center.
While the senior center is owned by the city, a local nonprofit pays rent on the building, maintains it and operates it. When asked, the City Manager responded that this is not a violation of the Brown Act because this was material posted in a city owned building, and government code section 54954.3 (c) of the Brown Act does not apply.
Is this the case? What are the senior’s rights on this issue? It seems to be a direct violation of their first amendment rights, but the City is notorious for not being transparent and open to the public.
Is there ground to stand on, or does the City have the full right to have the comics removed from the wall?
A: The City Manager was probably correct that the Brown Act does not apply, but only because, from the facts in your inquiry, there does not seem to be any meeting of a “legislative body” involved here, which is what would trigger that particular body of law. Rather, it sounds like broader First Amendment considerations are at stake here.
The analysis for determining whether any First Amendment rights have been violated begins with consideration of the exact nature of the space in question. On one end of the spectrum are places — like parks and sidewalks — that have traditionally been used for conduct protected by the First Amendment.
Such places are considered “public forums,” and conduct in these spaces is protected by the First Amendment and can only be restricted if a high standard is met. On the other end of the spectrum are “non-public forums,” which are 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 the middle are areas known as “limited public forums” or “designated public forums.” These areas have not traditionally been open to the public, but have become public forums for at least some purposes because the governmental body that regulates a particular area has made it available for use by the public, at least at certain times for certain purposes.
A high standard must be met to regulate conduct in limited purpose public forums if the conduct fits within the time or purpose for which the place has been made open. (The Supreme Court summarized this framework in the case Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).)
It may be that the senior center is a limited public forum, assuming it is open to members of the public for various uses. See, e.g., Church on the Rock v. City of Albuquerque, 84 F.3d 1273, 1278 (10th Cir. 1996) (senior center was limited public forum, given the city permitted lectures and classes on a broad range of subject by both members and non-members of the senior center, but limits the forum with respect to the age required for participation in certain activities, as well as requiring that the subject matter of topics presented be of interest to senior citizens).
Even as operated by the nonprofit, it could be that the senior center is still a limited public forum, assuming that, in general, members of the public are invited to participate in activities in this forum. The wall where these cartoons are being posted, too, might qualify as a limited public forum, if the public is generally invited to use and post items of interest on the wall.
However, the Supreme Court has warned that “simply because an instrumentality ‘is used for the communication of ideas or information'” does not automatically turn that particular instrument into a public forum. See United States Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 130 & n.6 (1981).
Thus, if the walls in question are considered non-public forums, then any restrictions placed on what can go on those walls need only be reasonable. It is possible that not allowing political cartoons to be posted due to their propensity to offend certain users of the senior center might pass as a reasonable restriction.
If, on the other hand, the senior center and the bulletin board are limited public forums, the next step in this inquiry is to determine whether the restrictions in place are content based or content neutral.
A government may impose reasonable restrictions on the time, place or manner of protected speech in a public forum, provided that the restrictions are content-neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information. Id. at 1102.
If the restrictions are content-based — i.e., they endeavor to restrict or prohibit speech based on either the viewpoint or the subject matter — then an even higher standard must be met in order for the government to justify its restrictions on that speech. See, e.g., Boos v. Barry, 485 U.S. 312, 320 (1988). In other words, the restriction must serve a “compelling government interest.”
It sounds as though the restriction here was directly linked with the content of the speech at issue — the political cartoon. It would be hard in this situation for the city to come up with a compelling reason to require the removal of such cartoons.
If, on the other hand, the city had some content-neutral restriction in place, i.e., no postings from the public are allowed on the walls of the senior center, or are only permitted in designated areas (again, without reference to the content of those postings), then it may be that such a restriction would be permissible. However, it doesn’t sound like this was the case in this situation.
Finally, there’s the practical issue of whether the city manager has authority to regulate any aspect of the operation of the senior center since, as you mentioned, the building is rented from the city and managed by a nonprofit group.
It would seem that the senior center has a board of directors, and even if that board is an arm of the city, my experience is that such organizations typically give direction to the city manager and his or her staff on issues related to the operation of the city, and not the other way around. As such, you may want to inquire into the management of the senior center to determine whether the city manager is overstepping his bounds.
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.