Picketing, Protesting, and Advertising: The (un)Holy

Picketing, Protesting, and
Advertising: The (un)Holy
Trinity of Public Space
2013 Washington Public Risk
Management Association’s
(PRIMA) Workshop
September 12, 2013
Key concepts:
First Amendment: assembly and speech
Police power
Forum analysis
 Protecting vulnerable and captive audiences
• Protesting:
 No protest zones and conduct restrictions
• Advertising:
 Billboards, electronic signs, and hand-bills
The First Amendment
• Article 1, Section 5 of the Washington
Constitution and the First Amendment to the
U.S. Constitution protect speech, including
picketing, protesting, and advertising.
• First Amendment and Article 1, Section 4 to
the Washington Constitution, also protect
the rights of petition and assembly.
The First Amendment
“[The] freedom to think as you will and to speak
as you think are means indispensable to the
discovery and spread of political truth . . . The
greatest menace to freedom is an inert
people; public discussion is a political duty;
and that this should be a fundamental
principle of the American government.”
Whitney v. California, 274 U.S. 357 (1927).
The First Amendment
• Regulations must be content/viewpoint
• Regulations must focus on time, place,
and manner
• Regulations must leave open alternative
channels of communication
Content Neutrality
• “The principal inquiry is determining
content neutrality . . . is whether the
government has adopted a regulation of
speech because of disagreement with
the message it conveys.” Ward v. Rock
Against Racism, 491 U.S. 781 (1989).
Narrow tailoring: Adequate Standards
• Regulations must be no broader than
necessary and contain standards to guide
enforcement. “Unfettered discretion”:
 Intimidates speakers into self-censorship
 Injects the personal opinions of enforcers
Shuttlesworth v. City of Birmingham, 394
U.S. 147 (1969).
Alternative Channels of Speech
• Government action cannot foreclose “an
entire medium of public expression across the
landscape of a particular community or
setting.” Colacurcio v. City of Kent, 163 F.3d
545 (9th Cir. 1998).
• Alternative channel may be “inadequate” if
“speaker’s ability to communicate effectively
is threatened.” Heffron v. Int’l Soc’y for Krishna
Consciousness, Inc., 452 U.S. 640 (1981).
Police Power
Public safety
Hate speech and fighting words
Property protection
“Misleading” commercial speech
Police Power: Aesthetics
“Billboards.TimesSquare.NYC.14February2003,” © 2003 Elvert Barnes,
Police Power: Aesthetics
• Government has a compelling interest in
protecting community from “visual
blight.” Metromedia, Inc. v. City of San
Diego, 453 U.S. 490 (1981) (ban on offsite billboards constitutional).
Police Power: Public Safety
“WTO protests 10,” © 1999 Steve Kaiser, http://www.flickr.com/photos/djbones/125523970
Police Power: Public Safety
• “No one could seriously dispute that the
government has a significant interest in
maintaining public order; indeed this is a
core duty that the government owes its
citizens.” Menotti v. City of Seattle, 409
F.3d 1113 (9th Cir. 2005).
Police Power: Hate Speech
• Cannot criminalize cross-burning with
intent to incite fear on account of race,
religion, or gender. R.A.V. v. City of Saint
Paul, 505 U.S. 377 (1992) (“St. Paul has
sufficient means at its disposal to prevent
[cross burning] without adding the First
Amendment to the fire.“).
Police Power: Hate Speech
• But can enact statutes/ordinances that
prohibit cross burning with a general
intent to intimidate. Virginia v. Black,
538 U.S. 343 (2003) (“The First
Amendment permits Virginia to outlaw
cross burnings done with the intent to
intimidate because burning a cross is a
particularly virulent form of
Political Speech
• One of the highest protected forms of
• Collier v. City of Tacoma, 121 Wn.2d 737
(1993) (striking down pre-election
duration restriction on political campaign
Forum analysis
• (1) Public property that has traditionally
been made available as a part of the
"privileges, immunities, rights, and liberties
of citizens";
• (2) Public property that has been designated
by the government as a public forum; and
• (3) All other public property. Perry Educ.
Ass’n v. Perry Local Educ. Ass’n, 460 U.S. 37
Traditional Public Forums
“May Day march in downtown Seattle,” © 2008 Chuck Taylor,
Traditional Public Forums
• Traditional public forums are those
properties that have historically been
used for communicative purposes.
• Long-term illegal use of government
property (e.g., use of mailboxes for
purposes other than U.S. mail) does not
create a traditional public forum.
Traditional Public Forums
• Traditional public forums include public
streets, sidewalks, planting strips, and
• Public forums exist only on main
thoroughfares, not walkway leading from
parking area to front door. U.S. v.
Kokinda, 497 U.S. 720 (1990).
Traditional Public Forums
• Regulations must be necessary to achieve
compelling governmental interest, be
content neutral, and allow alternate
channels of speech.
• Washington’s standard may be more
stringent than the federal standard. Collier v.
City of Tacoma (“Significant” government
interest (federal) vs. “compelling”
government interest (state)).
Designated Public Forums
“Train station, Zurich, Switzerland,” ©2006 Denna Jones,
Designated Public Forums
• Not a traditional forum but created by
the government for the purpose of
• May be limited or unlimited with regard
to allowed content. If unlimited, treated
like traditional public forum, with
heightened scrutiny. DiLoreto v. Downey
Unified Sch. Dist., 196 F.3d 958 (9th Cir.
Designated Public Forums
• If limited, regulations must be reasonable
in light of the purpose served by the
forum and be viewpoint neutral
• But can discriminate based on content.
Diloreto v. Downey Unified Sch. Dist., (can
allow paid advertisements for
commercial businesses but reject poster
of Ten Commandments).
Designated Public Forums
• Nothing can ignite a controversy like
a designated public forum!
 Firestorms in San Francisco over
anti-Islam ads on buses
 Firestorm on Long Island over ProPalestinian ad in train station
“Other” Government Property
• Speech may be regulated if the
regulations are reasonable in light of the
purpose served, and
• Are content and viewpoint neutral.
Mighty Movers, Inc. v. City of Seattle, 152
Wn.2d 343 (2004) (can prohibit all signs
on utility poles because utility poles are
not a public forum).
• Picketing is protected speech! But
• By nature, picketers “pick” on
targeted individuals or groups, so
• Courts have generally upheld
content-neutral regulations/efforts
to protect vulnerable or captive
• Cannot ban all picketing on public sidewalks
surrounding Supreme Court. United States v.
Grace, 461 U.S. 171 (1983).
• Cannot ban some messages but not others.
Police Dep’t v. Mosley, 408 U.S. 92 (1972)
(unconstitutional to prohibit picketing within
150 feet of school while allowing picketing
within same zone if labor dispute in progress)
• Can adopt local regulations that prohibit
picketers from blocking ingress and
egress to public spaces like court houses
and from snarling crowds at large events.
Cameron v. Johnson, 390 U.S. 611 (1968);
Heffron v. International Soc’y for Krishna
Consciousness, 452 U.S. 640 (1981).
• Can have a local regulation requiring
picketers to carry smaller signs if
“extremely large or numerous picket
signs could interfere with a bus’s
operation or with pedestrian circulation
on the sidewalk.” Foti v. City of Menlo
Park, 146 F.3d 629 (9th Cir. 1998).
• Can prohibit residents from being
targeted in their homes. Frisby v. Schultz,
487 U.S. 474 (1988) (“The type of
picketers banned by the Brookfield
ordinance generally do not seek to
disseminate a message to the general
public, but to intrude upon the targeted
resident, and to do so in an especially
offensive way”) .
• Injunction against anti-abortion
protesters aggressively picketing
physicians’ office and using terms
“murder” and “kill” does not violate
Bering v. SHARE, 106 Wn.2d 212 (1986).
Picketing: zone of safety
• Hill v. Colorado, 530 U.S. 703 (2000) (“The
restricted zone’s prophylactic aspect is
justified by the great difficulty of protecting,
say, a pregnant woman from physical
harassment with legal rules that focus
exclusively on the individual impact of each
instance of behavior, demanding in each case
an accurate characterization (as harassing or
not harassing) of each individual movement
within the 8-foot boundary.”).
Picketing: Westboro Baptist Church
“Westboro Baptist Church in Madison,” © 2011 “cometstarmoon,”
Picketing: Westboro Baptist Church
• Snyder v. Phelps, 131 S. Ct. 1207 (2011).
 Court upheld reversal of jury verdict against
church members in tort lawsuit, finding that the
speech was on “matters of public concern” and
therefore protected by the First Amendment.
 Court did not address state/local regulation of
funeral picketing.
 Open question whether funeral attendees are a
“captive” or “vulnerable” audience.
• 18 U.S.C. § 1388 and 38 U.S.C. § 2413 create a
buffer zone around military funeral services
• Funeral picketing laws struck down in Eighth
Circuit. Phelps-Roper v. Nixon, 545 F.3d 685
(8th Cir. 2008) (“floating buffer zone”).
• But upheld in Sixth Circuit. Phelps-Roper v.
Strickland, 539 F.3d 356 (6th Cir. 2008) (buffer
from funeral ceremony only).
Westboro counter-protests
“Unitarian Universalists counter protest Westboro,” © 2011 “cometstarmoon,”
“WTO, 10 Years Later,” © 2009 Joe Goldberg, http://www.flickr.com/photos/goldberg/4169721154
Protesting: No-protest Zones
• Menotti, 409 F.3d 113. WTO No Protest Zone:
 Content neutral because it prohibited all protests
(even though shoppers, workers, and delegates
were allowed to enter)
 Narrowly tailored to achieve compelling interest
of public order because violent protesters were
hiding behind peaceful protesters
 Left open alternative channels because protests
allowed across the street from conference
Protesting: Conduct Restrictions
• Clark v. Community for Creative Non-violence,
468 U.S. 288 (1984).
• Can prohibit protestors from sleeping in
Layfayette Park/National Mall under contentneutral camping restriction
• Sleeping is expressive activity, but alternative
channels of expression left open because
protestors allowed to put up symbolic “tent
Protesting: Conduct Restrictions
• Security policy requiring protesters using a
public easement through Westlake Center to
hold stick-mounted signs pointing down is a
reasonable regulation on speech.
• Westlake monorail easement is not a public
• Policy designed to protect bystanders from
getting clocked with signs. Sanders v. City of
Seattle, 160 Wn.2d 198 (2007).
Protests: Occupy Wall Street etc.
• Prolonged protests of “Occupy” movements
created public health risks.
• Courts upheld efforts by (patient)
governments and property owners to evict
protesters for public health/safety needs. See,
e.g., Waller v. City of New York, 34 Misc. 371
(2011) (“owner has the right to adopt
reasonable rules that permit it to maintain a
clean, safe, publicly accessible space.”).
Protests: Occupy Wall Street etc.
“The First Amendment gives every New Yorker the
right to speak out — but it does not give anyone
the right to sleep in a park or otherwise take it
over to the exclusion of others — nor does it
permit anyone in our society to live outside the
law. The First Amendment protects speech – it
does not protect the use of tents and sleeping
bags to take over a public space.”
– Mayor Michael Bloomberg.
Protesting: Prior Restraints (permits)
• Courts have generally upheld reasonable
requirements for protesters to obtain permits
prior to protests of a certain size.
• Requirement for permit may not interfere
with the timing of the protest, if timing is
essential to the message.
• Local governments must have clear standards
for granting/denying permits.
Advertising (commercial speech)
• “Proposes a commercial transaction” or is
“related solely to the economic interests of
the speaker and its audience.”
• Concerns lawful activity and not misleading.
Central Hudson Gas & Elec. v. Pub. Svc.
Comm’n, 447 U.S. 557 (1980).
Advertising (commercial speech)
• Under Central Hudson, speech must be
lawful and not misleading, and
regulations must:
 (1) implement a substantial
governmental interest,
 (2) directly advance that interest, and
 (3) reach no further than necessary to
protect the interest.
Billboards – not just for advertising!
• Billboards used “. . . to publicize the `City in
motion' campaign, to communicate messages
from candidates for office, to propose
marriage, to seek employment, to encourage
the use of seat belts, to denounce the United
Nations, to seek support for Prisoners of War
and Missing in Action, to promote the United
Crusade and to provide directions to the
traveling public . . .” Metromedia v. San Diego.
• Can completely ban offsite billboards for
aesthetic and safety concerns, but
• Cannot ban onsite billboards, and
• Cannot ban non-commercial billboards
but allow commercial. Metromedia v.
City of San Diego; National Advertising
Co. v. Town of Babylon, 900 F.2d 551 (2nd
Cir. 1990).
Electronic signs
• Can ban them as long as no exceptions swallow
the rule. Naser Jewelers v. City of Concord, 513
F.3d 27 (1st Cir. 2008); La Tour v. City of
Fayetteville, Ark., 442 F.3d 1094 (8th Cir. 2006),
• Electronic signs are big money!
• City codes commonly ban electronic signs in
historic districts and non-commercial zones.
• City codes may restrict ambient light levels and
“dwell time” for traffic safety and aesthetic
Portable signs
Portable signs
• Ban on some, but not all, portable commercial
signs is impermissible restriction on
commercial speech. Ballen v. City of Redmond,
466 F.3d 736 (9th Cir. 2006).
• Desire to prohibit “white flight” does not
justify ban on real estate signs. Winmark
Assocs. v. Town of Willingboro, 431 U.S. 85
Photos by “Marxchivist,” “thirteenofclubs,” “akeg,” http://www.flickr.com/photos/
• Common source of citizen complaints
• Complete ban on handbills is
unconstitutional. Schneider v. State, 308
U.S. 147 (1939).
• Distinctions between commercial and
non-commercial are suspect. City of
Cincinnati v. Discovery Network, 507 U.S.
410 (1993).
• Can enact an ordinance:
 Prohibiting the throwing of handbills into
the wind or on vacant property;
 Prohibiting handbills on properties with
“NO HANDBILLS” or equivalent signage
• Consider making “NO HANDBILLS” signs
available through local government.
Photo by “auweia,” http://www.flickr.com/photos/[email protected]/6224809678/

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