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Thursday, April 30, 2015

Shutting down the forum

When government opens a traditional or designated public forum, viewpoint-based restrictions are virtually per se unconstitutional and content-based restrictions must survive strict scrutiny. The risk is that, faced with having to permit objectionable speech in the forum, government will shut down the forum altogether for all speakers or redefine the designated forum to remove the objectionable speech from the forum's scope. These restrictions receive less (at times no) constitutional scrutiny. And the result is a dramatic decrease in the overall amount and level of expression.

The latest example comes from New York and the ads on its trains and buses. Last week, Judge Koeltl of the Southern District of New York held that MTA violated the First Amendment in rejecting a billboard from the American Freedom Defense Initiative, a pro-Israel/anti-Islam group that engages in highly provocative rhetoric in ads on public transit facilities (the latest ad featured a purported quotation from Hamas-connected media saying "Killing Jews is Worship that draws us close to Allah"). Judge Koeltl held, correctly, that MTA's ad spaces constitute a public forum, the ad was neither fighting words nor incitement, and rejecting the ad did not survive strict scrutiny.

On Wednesday, MTA responded by voting 9-2 to no longer allow "viewpoint advertising" in MTA spaces. In other words, the government shut down the forum rather than allow some objectionable speech in. The Board ignored the urging of the head of the New York Civil Liberties Union, who argued in part that "The New York City transit system is our public square. It is where virtually all of us pass through day in and day out. And because of that, it is a central part of our free speech in New York City." He was joined by AFDI head Pamela Geller, who apparently used the same provocative rhetoric as in her ads.

One Board member countered by identifying the problems with "hateful speech" and the right of transit riders to reach their destinations in "safety and serenity." Both propositions are inconsistent with the prevailing vision of the First Amendment--hateful speech is constitutionally protected and members of the public do not have a right to avoid unwanted speech in the name of their "serenity." More importantly, these comments reflect the viewpoint discrimination underlying a nominally content-neutral regulation. Although all political speech is excluded from the forum, the move is justified and motivated entirely by the government's desire to prohibit only one side of that content. But because we generally do not get into the motive underlying a facially content-neutral restriction, none of that matters.

Of course, this is the paradox of the First Amendment's content distinction--the government is on safer footing the more speech it restricts. The MTA cannot restrict only AFDI's offensive political ads, so it restricts all political ads. In doing so, however, it removes a substantial amount of speech from the public space, deprives the public of a substantial amount of information and ideas, and deprives speakers of an important way to reach an audience. So long as we ignore even blatantly viewpoint-based motivations, this always will be the result.

Posted by Howard Wasserman on April 30, 2015 at 09:41 AM in First Amendment, Howard Wasserman | Permalink


Doctrinally, it's not. Normatively it is, if you believe a) that a large diminution in the amount of speech is a problem or b) there is something perverse about government being able to get away with targeting a particular speaker so long is it also targets lots of other speakers.

Posted by: Howard Wasserman | Apr 30, 2015 2:32:57 PM

The move doesn't allow favored speakers to speak while disfavored speakers can't. Isn't that the evil that the per se rule is meant to prevent? Why is the motive relevant?

Posted by: brad | Apr 30, 2015 2:19:07 PM

Adding on: The problem here is that the intent behind the change is entirely viewpoint-based. But we don't do anything with that. And maybe we can't or shouldn't. But this presents an unusually obvious case.

Posted by: Howard Wasserman | Apr 30, 2015 11:39:57 AM

It's the latter. It is government defining the scope of a designated public forum, thereby creating a "limited" designated public forum. So long as the limitation is rational and viewpoint-neutral, it's valid.

Posted by: Howard Wasserman | Apr 30, 2015 11:38:48 AM

This is a useful and important observation about how First Amendment protections work, but this particular case is, I think, more complicated than you suggest. It looks like what the MTA did is ban all political ads. That's not content-neutral. Looking at the ruling you link to, it looks like the MTA conceded that the ad spaces were a designated public forum, and therefore that content-based restrictions are subject to strict scrutiny. If that's still the standard, this policy, too, is clearly unconstitutional.

The complication, of course, is that in limited or nonpublic forums, the government can have content-based restrictions on speech as long as they are viewpoint-neutral and reasonably related to the purposes of the forum. This policy probably passes that test. Avoidance of controversy, for example, can be a legitimate basis for a speech restriction in that context. The hard question, and probably the dispositive question, is whether this new speech restriction is a restriction on speech within a designated public forum, in which case it is probably invalid, or whether it alters the nature of the MTA's forum, in which case it is probably valid.

Posted by: JHW | Apr 30, 2015 11:02:29 AM

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