Knowing the Waters- June 2020 column by WPPA Counsel Frank Chmelik
I am sure that most everyone has gone through an airport and seen various groups handing out literature or seeking donations. Ports across the state have seemingly seen an uptick in requests to use port district spaces for political, religious, or other gatherings. Some of these requests ask for permission to use port spaces for free and other requests are to rent port meeting spaces. This month’s Knowing the Waters will focus on issues surrounding these groups’ exercise of First Amendment rights to hold political or religious events on port property and/or soliciting donations on port property. As with most issues, the short answer is that ports should adopt a clear and well-reasoned written policy in advance of requests and apply the policy in a fair and evenhanded manner. Here are the steps to developing the policy.
Determine which port property is “open public forum” property and which is “nonpublic forum property”. Open public forum property is defined as a space that is designed to “maintain, encourage and invite public use” such as parks, beaches, airport terminals, passenger terminals and public spaces around the port offices. “Nonpublic forum” property is everything else, including port offices, shipping terminals, maintenance facilities, meeting rooms for internal port use, meeting rooms or spaces available for rent and other similar nonpublic spaces.
Develop a policy for open public forum property. Protests, solicitation for donations, and the distribution of literature by groups on public property are forums of “speech” protected under the First Amendment of the U.S. Constitution. A port’s ability to restrict or exclude groups from its open public forum property is limited because such restrictions or exclusions are measured through the lens of the First Amendment Constitutional rights of all citizens.
The law divides speech into two types – (i) “distribution speech,” which includes the distribution of materials, including leaflets, pamphlets, books, and photos, for the expression of ideas and opinions; and (ii) “solicitation speech,” which includes the protests, speeches, and solicitation of funds on behalf of charitable, political, or religious organizations. Port policy can place reasonable restrictions on the time, place, and manner of speech on public forum property, but the speech cannot be prohibited.
The policy for open public forum property must be “content blind,” meaning that the port cannot ever consider the content of the speech in placing a restriction. Reasonable restrictions on time, place, and manner of speech which will allow the continued use of public forum property for its intended use is permittable. For example, at an airport terminal, a port could place restrictions by setting aside a certain area where the groups could have a table and restrict the speakers to stay within that area so as not to unreasonably disrupt passenger flow. In one case, the Supreme Court upheld an airport’s ban on solicitation by a religious organization because the solicitation had a disruptive effect on business at the airport, caused security concerns, and resulted in a disruption of the normal flow of passenger traffic. In another case, an airport’s policy of requiring permits for organizations distributing leaflets and restricting the distribution of leaflets to designated areas of the airport was upheld because the policy set forth reasonable restrictions to prevent interference with travel and airport operations.
Next time you walk through a large airport look for the tables that have been set aside for groups to engage in speech. For comparison, bus terminals have generally been held to be open public forums, while the monorail station at Westlake Center was determined to be a nonpublic forum. In the monorail station case, the space in question provided pedestrian access to the monorail station. The court held that the monorail station was a nonpublic forum because the purpose of the property was to provide ingress and egress to the monorail platform, not to “maintain, encourage, and invite public use.” Consult your port attorney on this subject because the reasonableness of time, place and manner restrictions for public forum property will be reviewed through the lens of the First Amendment to determine if the restrictions are reasonable.
Develop a policy for nonpublic forum property. For “nonpublic forum” property a port has much more leeway. It can prohibit speech altogether (no rental for public events) or prohibit on the basis of subject matter (no rental for political events; no rental for religious events; no rentals for birthday parties). Any restriction in a “nonpublic forum” need only be reasonable and not be an effort to suppress the speaker's activity due to disagreement with the speaker's view. Here again, the restriction must be “content blind”. If a port allows the Young Republicans to rent a port meeting space it must afford the same opportunity to the Young Democrats. If the port allows one religious organization to rent a port meeting room it must afford the same opportunity to other religious organizations; the latitude for nonpublic forum property is greater because entire types of uses can be excluded. The reference to “rent” is intentional because it is difficult for ports to provide a discount or free use to one group and not another. Such action invites scrutiny for gifting public funds.
The best practice here is to think about this before a group seeks access to “public forum property” or “nonpublic forum property”. Without a policy, that decision will have the effect of setting the policy. Better to already have a well-considered policy which has been reviewed by legal counsel and is applied evenly. The bottom line is that thoughtful prior planning can avoid the allegation that the restrictions were put in place because the port did not like the content of the speech.
As always, please contact your port counsel with any questions regarding this topic. And, if you have a particular question for a Knowing the Waters please email me at fchmelik@chmelik.com.