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Politics As Usual
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07-08-2004, 09:27 PM
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4102
Not Me
Too Lazy to Google
Join Date: Nov 2003
Posts: 4,460
Quote:
Originally posted by Tyrone Slothrop
Please point me to a single case that says that it is presumptively OK for the government to regulate speech, based on its content,* so long as the speech occurs somewhere other than a public forum.
Just one case. One of the cases you've been reading, presumably.
CORNELIUS v. NAACP LEGAL DEFENSE & ED. FUND, 473 U.S. 788 (1985)
The issue presented is whether respondents have a First Amendment right to solicit contributions that was violated by their exclusion from the CFC. To resolve this issue we must first decide whether solicitation in the context of the CFC is speech protected by the First Amendment, for, if it is not, we need go no further. Assuming that such solicitation is protected speech,
we must identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic.
Finally, we must assess whether the justifications for exclusion from the relevant forum satisfy the requisite standard. Applying this analysis, we find that respondents' solicitation is protected speech occurring in the context of a
nonpublic forum
and that the Government's reasons for excluding respondents from the CFC appear, at least facially, to satisfy
the reasonableness standard.
We express no opinion on the question whether petitioner's explanation is merely a pretext for viewpoint discrimination. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
. . . .
Having identified the forum as the CFC, we must decide whether it is nonpublic or public in nature. Most relevant in this regard, of course, is Perry Education Assn.
There the Court identified three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum.
Traditional public fora are those places which "by long tradition or by government fiat have been devoted to assembly and debate." 460 U.S., at 45 . Public streets and parks fall into this category. See Hague v. CIO, 307 U.S. 496, 515 (1939). In addition to traditional public fora, a public forum may be created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects. Perry Education Assn., supra, at 45 and 46, n. 7. Of course, the government "is not required to indefinitely retain the open character of the facility." Id., at 46.
. . . .
Control over access to a
nonpublic forum can be based on 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
. Perry Education Assn., supra, at 49.
Although a speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed within the purpose of the forum, see Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), or if he is not a member of the class of speakers for whose especial benefit the forum was created, see Perry Education Assn., supra, the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.
The Court of Appeals found it unnecessary to resolve whether the government's denial of access to respondents was viewpoint based, because it determined that respondents' exclusion was unreasonable in light of the purpose served by the CFC.
. . . .
Based on the present record, we disagree and conclude that respondents may be excluded from the CFC. The Court of Appeals' conclusion to the contrary fails to reflect the nature of a nonpublic forum.
The Government's decision to restrict access to a nonpublic forum need only be reasonable;
it need not be the most reasonable or the only reasonable limitation.
In contrast to a public forum, a finding of strict incompatibility between the nature of the speech or the identity of the speaker and the functioning of the nonpublic forum is not mandated.
Cf. Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983); Lehman v. City [473 U.S. 788, 809] of Shaker Heights, 418 U.S. 298 (1974). Even if some incompatibility with general expressive activity were required, the CFC would meet the requirement because it would be administratively unmanageable if access could not be curtailed in a reasonable manner. Nor is there a requirement that the restriction be narrowly tailored or that the Government's interest be compelling.
The First Amendment does not demand unrestricted access to a nonpublic forum merely because use of that forum may be the most efficient means of delivering the speaker's message.
See United States Postal Service v. Council of Greenburgh Civic Assns., 453 U.S., at 129 . Rarely will a nonpublic forum provide the only means of contact with a particular audience. Here, as in Perry Education Assn., supra, at 53-54, the speakers have access to alternative channels, including direct mail and in-person solicitation outside the workplace, to solicit contributions from federal employees.
The reasonableness of the Government's restriction of access to a nonpublic forum must be assessed in the light of the purpose of the forum and all the surrounding circumstances.
Here the President could reasonably conclude that a dollar directly spent on providing food or shelter to the needy is more beneficial than a dollar spent on litigation that might or might not result in aid to the needy. Moreover, avoiding the appearance of political favoritism is a valid justification for limiting speech in a nonpublic forum. See Greer v. Spock, 424 U.S., at 839 ; Lehman v. City of Shaker Heights, supra, at 304. In furthering this interest, the Government is not bound by decisions of other executive agencies made in other contexts. Thus, respondents' tax status, while perhaps relevant, does not determine the reasonableness of the Government's conclusion that participation by such agencies in the CFC will create the appearance of favoritism.
The Court of Appeals' rejection of the Government's interest in avoiding controversy that would disrupt the workplace and adversely affect the Campaign is inconsistent with our [473 U.S. 788, 810] prior cases. In Perry Education Assn., supra, at 52, we noted that "exclusion of the rival union may reasonably be considered a means of insuring labor peace within the schools." Similarly, the exclusion of respondents may reasonably be considered a means of "insuring peace" in the federal workplace. Inasmuch as the Court of Appeals rejected this reason for lack of conclusive proof of an actual effect on the workplace, it ignored the teachings of this Court that the Government need not wait until havoc is wreaked to restrict access to a nonpublic forum. 460 U.S., at 52 , n. 12.
Finally, the record amply supports an inference that respondents' participation in the CFC jeopardized the success of the Campaign. OPM submitted a number of letters from federal employees and managers, as well as from Chairmen of local Federal Coordinating Committees and Members of Congress expressing concern about the inclusion of groups termed "political" or "nontraditional" in the CFC. More than 80 percent of this correspondence related requests that the CFC be restricted to "non-political," "non-advocacy," or "traditional" charitable organizations. Deposition of P. Kent Bailey, Program Analyst for OPM, App. 275, 276. In addition, OPM received approximately 1,450 telephone calls complaining about the inclusion of respondents and similar agencies in the 1983 Campaign. Id., at 286. Many Campaign workers indicated that extra effort was required to persuade disgruntled employees to contribute. Id., at 287. The evidence indicated that the number of contributors had declined in some areas. Id., at 305. Other areas reported significant declines in the amount of contributions. See Executive Orders 12353 and 12404 as they Regulate the Combined Federal Campaign (Part 1), Hearing before the House Committee on Government Operations, 89th Cong., 1st Sess., 67 (1983) (statement of Donald J. Devine, Director, OPM). Thus, the record adequately supported petitioner's position that respondents' continued participation in the Campaign would be detrimental to the Campaign and disruptive of the federal [473 U.S. 788, 811] workplace.
Although the avoidance of controversy is not a valid ground for restricting speech in a public forum, a nonpublic forum by definition is not dedicated to general debate or the free exchange of ideas.The First Amendment does not forbid a viewpoint-neutral exclusion of speakers who would disrupt a nonpublic forum and hinder its effectiveness for its intended purpose.
I think perhaps what you are saying is that the government cannot engage in non-viewpoint neutral suppression of speech in non-public forums. That is true but different from content-based regulation, which includes subject matter restrictions.
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Last edited by Not Me; 07-08-2004 at
09:37 PM
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