NASSAU COUNTY CIVIC ASSOCIATION, INC.
"The government is us, we are the government, you and I." Teddy Roosevelt
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NASSAU COUNTY CIVIC ASSOCIATION, INC. "The government is us, we are the government, you and I." Teddy Roosevelt |
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Informational Letter on Equal Access
The First Amendment
"Congress shall make no law respecting the establishment of Religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”
The First amendment to the constitution is the cornerstone of our civil liberties. The inherent right to express one’s viewpoint is the glue that affirms the other liberties enumerated in the Bill of Rights. Freedom of speech is not limited to secular speech alone but also includes religious speech.
“Freedom of thought and freedom of speech in our great institutions are absolutely necessary for the preservation of our country. The moment either is restricted, liberty begins to wither and die...” John Peter Altgeld
General Discussion of Forums
There are four types of forums; traditional open forum, designated forum, non-public forum and a limited public forum. Each forum has been defined or created by common law and or case law. Each type of forum has its own specific criterion which establishes the parameters upon which government can regulate or limit speech.
It’s important to understand that different areas of the library can qualify as one of the four forums. This can include public meeting rooms, public bulletin boards where members of the public are permitted to post informational flyers or material, racks that hold brochures, newspapers or booklets, and other public areas such as open space outside the library. If a library wants to convert a designated public forum such as a brochure rack to a non public forum, it must prohibit all outside literature by any group or person. The library then can limit the display or posting of any material to library sponsored events.
Generally speaking, any restriction of speech cannot be based on content or viewpoint unless the government can demonstrate a compelling governmental interest. Any such regulation must then be narrowly tailored to serve this interest and must not be any greater then what is necessary; otherwise the regulation can be construed as overbroad and thus unconstitutional.
Restrictions on time, place and manner have been interpreted by the courts as reasonable as long as they are applied without regard to the content or viewpoint of the speaker.
Type of Forums
Traditional Public Forum
Places that have by long tradition or by governmental fiat been open to public assembly and debate, such as public streets, sidewalks, and parks, are considered to be traditional public fora. A traditional public forum exists in these locations regardless of the government's intent to create or not create a forum for speech. [1] If a governmental body wishes to regulate protected First Amendment speech in a traditional public forum it must meet strict requirements. It may place reasonable time, place, and manner restrictions on the speech or it may adopt restrictions that are necessary and narrowly drawn to serve a compelling governmental interest. [2] [a]
Designated Public Forum
A designated forum cannot be created by inaction but must be intentionally created by a public body that dedicates its property to expressive conduct. [3] A designated forum is subject to the same requirements as a traditional public forum in regulating First Amendment protected speech. [4] In other words, reasonable time, place, and manner regulations are acceptable as are necessary regulations that are narrowly drawn to serve a compelling interest of the public body. [a]
Non-public Forum
A forum that is not a traditional public forum or a designated public forum is a non-public forum in which the government can restrict access as long as the restrictions are reasonable and are not an effort to suppress expression merely because the public officials oppose the speaker's point of view. [5] [a]
Limited Public Forum
Although in some cases the terms “designated forum” and “limited forum” have been used interchangeably, more recent Supreme Court cases indicate that a “limited forum” is different from a “designated forum” and allows less stringent requirements to be applied in regulating speech. [6] In a 2006 decision, the Ninth Circuit Federal Court of Appeals in reviewing a California case recognized a library's meeting room as a “limited public forum” and defined it as a location classified as a nonpublic forum, intentionally opened by the library only to certain groups or for the discussion of certain topics. The Court noted that restrictions governing access to this type of forum are permitted as long as they are viewpoint neutral and reasonable in light of the purpose served by the forum. [7] [a]
Type of Speech
The U.S. Supreme Court has demonstrated in recent decisions that first amendment violations as to religious speech will not be analyzed in the context of a free exercise violation but rather will be analyzed under the well established series of freedom of speech precedents.
“A town rents its community center to local groups for meetings, but refuses to rent it to a local Hindu group that wants to hold a Divali Festival and a group that wants to hold a Christian music concert. The town tells both groups that it has a no-religious-activities policy at the center.” [b]
“These examples may be a violation of federal law. Title II of the Civil Rights Act of 1964 prohibits discrimination based on religion in public accommodations, such as restaurants, theaters and hotels. Title III of the Civil Rights Act of 1964 prohibits discrimination based on religion in public facilities owned or operated by a state of local government. The Division’s Housing and Civil Enforcement Section enforces these statutes and ensures that religious individuals and institutions have equal access to public facilities and accommodations.” [b]
In conclusion, Public libraries are defined as governmental entities and are therefore bound by the constitutional mandates of the first amendment. While libraries have some leeway in restricting or limiting speech consistent with the particular forum, it cannot discriminate on the basis of content or viewpoint when complying with the legal requirements governing the particular forum.
“The First Amendment is often inconvenient. But that is besides the point. Inconvenience does not absolve the government [or libraries] of its obligation to tolerate speech.” Supreme Court Justice Anthony Kennedy
Footnotes from excerpt
[1]
Gay Guardian Newspaper v.Ohoopee Regional Library System, 235 F.Supp.2d
1363, 1367 FN9 (S.D. Ga. 2002).
[2]
Id.
1368.
[3]
Faith Center Church Evangelistic Ministries v. Glover, 462 F.3d 1194
(9th Cir. 2006) citing Cornelius v. NAACP Legal Def. & Educ. Fund, 473
U.S. 788, 802 (1985).
[4]
Id. Citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45
(1983).
[5]
DeBoer v. Village of Oak
Park, 267 F.3d 558 (7th Cir. 2001).
[6]
Good News Club v. Milford
Cent. Sch., 533 U.S. 98 (2001);
Rosenberger v. Rector & Visitors of the
Univ. of Virginia,
515 U.S. 819 (1995).
[7]
Faith Center Church Evangelistic
Ministries v. Glover, 462 F.3d 1194
(9th Cir. 2006).
[a] “Type of Forum”-Excerpt from Library Law: Does the First Amendment Allow Libraries to Limit the Public Use of Their Property? By Gerard E. Dempsey and Janet N. Petsche October 26,2006
[b] “Protecting the Religious Freedom of All: Federal Laws Against Religious Discrimination U.S. DOJ June 2007