From Civil Rights Litigation: Representing Plaintiffs Today, Chapter 2
Declaration of Independence
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
The Declaration of Independence recognizes “that rights are innate, rather than created by states or nations.”1 The Declaration has often been considered to be a “super-constitution,” serving as “the American creed of liberty and equality”2 that memorializes “the obligation of national government to abide by the will of the people.”3 President Abraham Lincoln once likened the relationship between the Declaration and the Constitution to the Biblical proverb “A word fitly spoken is like an apple of gold in a frame of silver.”4 President Lincoln saw the Declaration as the golden apple within the silver frame of the Constitution.5
Although some legal scholars and Justice Antonin Scalia have discounted the authority of the Declaration, dismissing it as, in Scalia’s words, “not a legal prescription conferring powers upon the courts,” the Declaration encapsulates the very spirit in which Constitutional provisions were written, such as due process and equal protection.6 The Declaration also “maintains that the people retain the right to abolish their government when it is consistently unresponsive to their lobbying efforts against public abuses”7 and serves as an enduring reminder to our government that it is charged with upholding, preserving and defending the God-given, unalienable rights of American citizens:
As evidence by the bold and succinct language of the Declaration of Independence in 1776, the American view of sovereignty began its articulation by recognizing that all human beings have certain unalienable rights, derived first and foremost from God as their Creator. These unalienable rights are evidence that individual human beings have been given a derived sovereignty that is ultimately subordinate to God’s complete sovereignty. The Declaration also states that it is one of the primary purposes of civil government to use its delegated sovereignty to secure the unalienable rights that God has given to all human beings. By implication, therefore, if civil government acts in a way that improperly takes away the unalienable rights that God has given to all human beings, then the civil government has stepped outside the scope of its derivative sovereignty and has begun to engage in a usurpation of authority. That kind of usurpation is properly called tyranny.8
Congress shall make no law respecting an 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.9
Regulation of First Amendment Rights by Time, Place, and Manner Restrictions
As with other constitutional provisions, our rights to free speech are not absolute, and the government may impose reasonable time, place, and manner restrictions on how speech is made and communicated. It is well-settled law that even in traditional public fora, “the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”10 If speech is exercised in an appropriate forum, it cannot be abridged merely on the basis that the speaker could assert the speech somewhere else: “[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.”11 Yet, contrary to this principle, modern protesters have been removed from such appropriate places as parks, sidewalks, and other public fora and given nowhere else to go.
The propriety of time, place, and manner restrictions also depends heavily upon the nature of the forum and the sort of activities that normally take place there.12 As the Supreme Court has said:
Although a silent vigil may not unduly interfere with a public library, making a speech in the reading room almost certainly would. That same speech should be perfectly appropriate in a park. The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.13
This is significant, considering that many of the recent protests that have been shut down did take place in the center of noisy, bustling cities, where demonstrations have traditionally taken place and have often just been accepted as a natural extension of city and human life.
The Supreme Court has designated separate categories of fora and guidelines that must be identified in an analysis of whether the government has restricted First Amendment activity.14 The first step in reviewing the constitutionality of a law regulating speech is to determine whether the regulation is content based or content neutral.15 “The ‘principal inquiry’ for determining the content neutrality of a time, place, and manner restriction is ‘whether the government had adopted a regulation of speech because of disagreement with the message it conveys.’”16 The constitutionality of a law should be determined on its face and by the plain meaning of the law’s text.17
If a law restricts speech based on its content, the law presumptively violates the First Amendment.18 Time, place, and manner restrictions must not be imposed as a way for public officials to attack the views of speakers with whom the authorities disagree.19 Therefore, such restrictions cannot “be based upon either the content or subject matter of speech.”20
The traditional public forum has been devoted by the government for “assembly and debate.”21 “For the purposes of free speech and assembly protection, ‘public streets are the archetype of a traditional public forum.’”22 It has long been held that public streets and parks
have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.23
The government may impose reasonable time, place and manner restrictions “even in a traditional public forum such as a park or a sidewalk.”24 In such a forum, the government may only impose a content-based regulation of speech if it can satisfy the strict scrutiny standard;25 that is, whether the law “is necessary to serve a compelling state interest,” “that it is narrowly drawn to achieve that end,”26 and that no “less speech-restrictive means exist to achieve the interest.”27
If a law has a content-neutral restriction on speech that places an incidental burden on that speech, that law is subject to intermediate scrutiny.28 A content-neutral restriction may be identified in resolving the question of “whether the government has adopted a regulation of speech because of disagreement with the message it conveys.”29 “In other words, ‘government regulation of expressive activity is “content neutral” if it is justified without reference to the content of regulated speech.’”30 Content neutrality may also be determined by conducting the following analysis: “[A] regulation is not a content-based regulation of speech if (1) the regulation is not a regulation of speech, but rather a regulation of the places where some speech may occur; (2) the regulation was not adopted because of disagreement with the message the speech conveys; or (3) the government’s interests in the regulation are unrelated to the content of the affected speech.”31
If the government imposes a content-neutral restriction, the law must survive intermediate scrutiny and be “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”32 Under intermediate scrutiny, laws will only be upheld if they serve a substantial government interest and do not unreasonably limit alternative avenues of communication.33
The designated public forum is created when the government “intentionally open[s] a nontraditional public forum for public discourse.”34 The government must grant “general access to, or indiscriminate use of” designated public fora “whether by the general public, certain speakers, or for certain subjects.”35 In a designated public forum, “the government may only impose content-neutral time, place, and manner restrictions [that, to restate,] (a) serve a significant government interest; (b) are narrowly tailored to advance that interest; and (c) leave open ample alternative channels of communication.”36
In a nonpublic forum, the government may regulate speech “based on the subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.”37 In such a forum, the government “is not required to open its property for expressive or communicative purposes, but chooses to do so for limited purposes.”38
No matter what the forum or restriction on speech, “[w]hen the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.”39 The government bears the burden of proof to “identif[y] a substantial interest and justif[y] the challenged restriction.”40 As the Supreme Court has emphasized,
This is for good reason. “[T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed or punished is finely drawn.” Error in marking that line exacts an extraordinary cost. It is through speech that our convictions and beliefs are influenced, expressed, and tested. It is through speech that we bring those beliefs to bear on Government and our society. It is through speech that our personalities are formed and expressed. The citizen is entitled to seek out or reject certain ideas or influences without Government interference or control.41
1. Alexander Tsesis, Self-Government and the Declaration of Independence, 97 CORNELL L. REV. 4 at 698 (May 2012).
4. Id. at 702.
6. Id. at 703 (citing Troxel v. Granville, 530 U.S. 57 (2000) (Scalia, J., dissenting)).
7. Id. at 706.
8. State ex rel. Merrill v. Ohio Dep’t of Natural Resources, 2009 Ohio 4256 at **41–42 (2009).
9. U.S. CONST. amend. I.
10. Seattle Affiliate of Oct. 22nd Coalition to Stop Police Brutality, Repression and Criminalization of a Generation v. City of Seattle, 550 F.3d 788, 804 (9th Cir. 2008) (citing Ward v. Rock Against Racism, 491 U.S. 781 (1989)).
11. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556 (1975) (citing Schneider v. State (Town of Irvington), 308 U.S. 147 (1939) (alteration in original)).
12. Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).
13. Id. at 116–17 (citations, page numbers, and footnotes omitted).
14. Occupy Fresno v. County of Fresno, No. C 11-01894 CRB, at *5 (E.D. Cal. 2011).
15. Occupy Minneapolis v. County of Hennepin, 866 F. Supp. 2d 1062, 1069 (D. Minn. 2011).
16. McCarthy v. Barrett, 804 F. Supp. 2d 1126, 1139 (W.D. Wash. 2011) (citing Ward v. Rock Against Racism, 491 U.S. 781 (1989)).
17. Occupy Minneapolis, 866 F. Supp. 2d at 1070; Occupy Fresno, No. C 11-01894 CRB, at *7 (citing City of L.A. v. Alameda Books, Inc., 535 U.S. 425 (2002)).
18. Occupy Minneapolis, 866 F. Supp. 2d at 1069.
19. Consolidated Edison Co. v. Public Serv. Comm’n, 447 U.S. 530, 536 (1980).
21. Occupy Fresno, No. C 11-01894 CRB, at *5 (citing Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666 (1998)).
22. McCarthy v. Barrett, 804 F. Supp. 2d at 1138–39, citing to Snyder v. Phelps, 131 S. Ct. 1207 (2011).
23. Hague v. Committee for Indus. Org., 307 U.S. 496, 515–16 (1939) (page numbers omitted).
24. Occupy Minneapolis, Civ. No. 11-3412, at **8–9.
25. Id. at *6.
26. Occupy Fresno, No. C 11-01894 CRB, at *6 (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983)).
27. Id. at *6 (citing United States v. Alvarez, 617 F.3d 1198 (9th Cir. 2010)).
28. Occupy Minneapolis, 866 F. Supp. 2d at 1069.
29. Ward, 491 U.S. at 791.
30. McCarthy, 804 F. Supp. 2d at 1139 (citing Hill v. Colorado, 530 U.S. 703 (2000)).
31. Wag More Dogs, Ltd. v. Cozart, 680 F.3d 359, 366 (4th Cir. 2012) (citing Covenant Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421 (4th Cir. 2007)).
32. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984).
33. Ward v. Rock Against Racism, 491 U.S. 781, 789 (1989).
34. Occupy Fresno, No. C 11-01894 CRB, at *5.
35. John Doe v. City of Albuquerque, 667 F.3d 1111, 1129 (10th Cir. 2012) (citing Summum v. Callaghan, 130 F.3d 906 (10th Cir. 1997)).
36. Id. at 1130, 1131 (citing Shero v. City of Grove, 510 F.3d 1196 (10th Cir. 2007)).
37. Wisconsin Educ. Ass’n Council v. Walker, 705 F.3d 640, 660–61 (7th Cir. 2013).
38. Id. at 660.
39. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 816 (2000).
40. Id. at 816–17 (2000) (citing Greater New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173 (1999)).
41. Id. at 817–18 (citation omitted) (alteration in original).