pageok
pageok
pageok
May Government Ban Advocacy Near Movie Theaters, Outdoor Restaurants, and the Like?

The Ninth Circuit's Berger v. City of Seattle decision earlier this year seemed to authorize such broad bans, on a "captive audience" rationale; today, the Ninth Circuit agreed to rehear the case en banc. Here's my earlier criticism of the decision, which still strikes me as correct, and which leads me to hope that the en banc court will reject the panel's reasoning:

It seems to me pretty clear that [the government may not restrict advocacy near movie theaters, outdoor restaurants, and the like], because such [speech, including picketing, performance, and other genres] -- whether related to labor issues, the merits of the movies the theater was showing, or whatever else -- is protected by the First Amendment, at least in traditional public forums such as parks or sidewalks.

The law may restrict the volume of the picketing, or the size of the group, especially if there's a serious security threat that may stem from the presence of a large group, or if the group is likely to block pedestrian traffic. In some situations, the law may create a 36-foot buffer zone if there's a serious risk of picketers' blocking entrances, and narrower restrictions have proven unavailing. The law may also require that people not approach within a few feet of a particular person to talk to the person without the person's permission. And the Court has upheld restrictions on residential picketing, stressing the special role of the home as a place where people should be able to retreat from controversy. But as a general matter, people -- especially in small groups -- are free to express their views in front of places of commerce and entertainment, even when offended listeners might be present.

The Ninth Circuit, though, held last week (Berger v. City of Seattle) that it's constitutional to ban speech to strangers -- even speech by one person -- within 30 feet of "any captive audience," including "patrons waiting in line for events" or eating in a seating area. The particular rule involved restrictions in a park, but a city sidewalk is just as much a traditional public forum as a park.

So this means that picketing, demonstrating, and the like, on city sidewalks -- even when engaged in by one person -- can be forced 30 feet away from any movie theater line, any outdoor restaurant seating area. Likewise, I take it that such speech can be forced 30 feet away from any employee whose job requires him to stand near a sidewalk, for instance a hotel doorman, an employee working as a sidewalk vendor, a maintenance worker, and the like. Those employees are, after all, even more "captive" than diners or people standing in line.

What's more, the court read Madsen's authorization of a 36-foot buffer zone outside an abortion clinic entrance as being justified by "captive audience" concerns related to "women entering an abortion clinic." The Ninth Circuit thus seems to suggest that an audience may be "captive" even to speech that it only needs to see briefly. If that's so, then any picketing or demonstrating outside any business would be seen as involving a "captive audience" of business employees and vendor employees who have to come and go through the front door, and perhaps of customers, too.

This strikes me as a pretty clearly mistaken result. It might not have been intended by the judges in the Ninth Circuit panel majority, who were talking about restrictions in a park and not on a sidewalk -- but, as I mentioned, parks and sidewalks are both treated as the same sort of place by First Amendment law (a traditional public forum), and if a restriction is allowed in a park, it would presumably also be allowed on a sidewalk. (If anything, restrictions on sidewalks may often be more justifiable because pedestrian traffic problems tend to be more serious on sidewalks.)

Moreover, while the particular plaintiff in the Ninth Circuit case was a street performer who made balloons, apparently performed magic tricks, "talk[ed] to his audience about his personal beliefs, especially the importance of reading books," and seemingly accepted contributions, the panel's rationale wasn't limited to people like plaintiff (nor am I quite sure just how it could be so limited). The panel upheld the captive audience rule on its face, and treated it (in relevant part) as banning "speech activities 'within thirty (30) feet of any captive audience ....'" It did not limit its decision to rules banning speech activities that solicit (expressly or implicitly) the immediate handing over of money, or to rules banning balloonmaking and magic tricks but allowing political or social advocacy. The decision is thus a precedent for restrictions that cover many more people than "Magic Mike" Berger.

Finally, I should note again that the Court has indeed accepted some kinds of restrictions on picketing in public places, as I said in the second paragraph of this post. The Ninth Circuit's decision is thus not a completely radical new step. But it does go far beyond, I think, the narrow restrictions that have been upheld, and covers speech that poses no real security risk, no threat to individual privacy, no material threat of blocking entrances, and no inherent danger of people trespassing on others' personal space (this is a 30-foot exclusion zone, not a requirement that one stay 8 feet away from people whom one is approaching).

And to the extent that one does see this as a logical extension of past decisions, that should be a reminder that the slippery slope from narrow restrictions to much broader ones is a real risk in a legal system that's built on analogy and precedent. Even when the precedents by no means require a particular result, and even don't justify it in the minds of many, some decisionmakers (here, judges) may read them that the precedents may end up justify many more restrictions than the precedents' drafters contemplated.

Smokey:
"Captive" audience??

Give me a break. Those folks can walk away any time they choose.

What's more important, a movie ticket,or the 1st A? You can buy a ticket online if you're worried about being a "captive.".
7.14.2008 4:14pm
EH (mail):
The "captive audience" argument seems to be a slippery slope towards anywhere that people are for a purpose. That if people are someplace for any particular reason, that makes them a captive audience.
7.14.2008 4:55pm
Paula Hall (www):
If an advocacy group wanted to guarantee itself an audience, it would have to own or rent a speaking venue, or borrow one from sympathizers, and somehow convince people of the value of coming to hear what they have to say.

When advocates address people queing for a movie or dining al fresco, those advocates are taking something they have neither earned nor paid for: an audience. The people they are addressing have been attracted to that spot because of the value being offered by the movie theater or the restaurant. The advocates are drawn to that spot precisely because some business with something of value to offer has managed to attract a crowd. In effect, such advocates are stealing the good will and venues of the businesses whose patrons they accost. It does not matter that the movie theater or the restaurant may abut a public thoroughfare. Streets and sidewalks are for passage, they are not a means to violating the property rights of others.

However the concept has been perverted today, in reason, the right to free speech is not a right to make someone else pay to provide you with a forum in which to air your views. It is a right to use your own property to express your views, without someone forcibly preventing you from using your property as you so please.
7.14.2008 5:18pm
EH (mail):
In effect, such advocates are stealing the good will and venues of the businesses whose patrons they accost.

And thus the rights of free speech and assembly get subsumed under economic concerns. You can only speak freely where you have paid for that right.
7.14.2008 6:16pm
Respondent:
I doubt that there is any longer a majority on the Supreme Court willing to uphold new restrictions on abortion protesters as part of the court's "abortion ad-hoc nullification regime". And should this case make it to the Supreme Court, it will be interesting to see how the conservative justices go about distinguishing it from the abortion precedents while leaving open the ability to overturn them. While Roberts and Alito might not want to explicitly overturn the abortion speech precedents, I suspect that they'd want to at least leave room to gut them WRTL style.
7.14.2008 6:55pm
DangerMouse:
What's more, the court read Madsen's authorization of a 36-foot buffer zone outside an abortion clinic entrance as being justified by "captive audience" concerns related to "women entering an abortion clinic."

News flash: abortion law once again a travesty with unintended consequences.

Here's another news flash: abortion mills are businesses just like those in your local mall.
7.14.2008 9:54pm
Oren:
DangerMouse, I suggest you look at the factual record preceding FACE, especially with regards to Topeka, KS. I have no problem with expressions of oppositions but when you start to deny others the right to go about their business by physically impeding them then the state ought to restrict that conduct.
7.15.2008 1:26am
Boose:
The actual problem here:
Restaurants, movie theaters, etc want to own more than they do. Imagine if the mall where the restaurant is was privately owned. This would be no problem. What if the movie theater owned the area where people queue up for tickets? no problem. Why don't they do this? Because they know they can trust the government to limit peoples rights to their advantage in the public domain. Also, why buy up land when you have to pay property taxes on something you just want as a buffer?
7.15.2008 4:58am
Smokey:
Re: abortion is a business:

''The opposition to Justice Owen is not really about abortion rights, it is about abortion profits.

''Simply put, the abortion industry is opposed to parental notice laws because parental notice laws place a hurdle between them and the profits from the abortion clients -- not the girls who come to them, but the adult men who pay for these abortions.

''These adult men, whose average age rises the younger the girl is, are eager not to be disclosed to parents, sometimes living down the street.

''At nearly one million abortions per year, the abortion industry is as big as any corporate interest that lobbies in Washington. They not only ignore the rights of parents, they also protect sexual offenders and statutory rapists.''

Yep.
7.15.2008 7:28am
Sk (mail):
I think its a bit more complicated.

How about a restaurant with street seating. You want to eat there. Because it faces the street, free speech guarantees the right of people to say, I guess, whatever they want (after all, 'fuck' is considered protected political speech), presumably five feet from your table, for as long as they want, without regard for your desire to have a nice meal.

I know your response: that's the price the restaurant pays for having seating on the street. But really? Are we really saying as a society that we can't have outdoor dining if any one individual wants to ruin the experience for the rest of the population?

I know your response: the government isn't in the business of suppressing free speech rights in order to protect the economic interests of the restaurant.

How about a picnic table in a park, where you are holding a family reunion? You've reserved the table, your entire family is there (from children to grandparents), and protester choose to yell 'fuck' at your gathering the entire time you are there. Public venue, public protest, and protected speech. Your family really can't do anything about it?

I know the absolutists here will declare that the slippery slope may lead from enjoying a picnic (or a dinner in a restaurant) to the gulag, but in the real world, its a more complicated issue, and the kinds of tradeoffs that the Ninth Circuit Court is wrestling with are entirely defensible (if not entirely correct).

Sk
7.15.2008 10:00am
Some Guy (mail):
Wait, is this the same Court of Appeals that told all California retail owners that they had to allow unions "equal" space on their property to protest their actual paying retail tenants and harass their customers?! Why yes, this would be the same darn court.

Guess they don't like magicians as much as unions. Why don't they just name the individuals and organizations whose messages they approve of in the next opinion, so we all know in advance who can and who can't claim a "free speech" right on someone else's property? Here's a hint, abortion protestors aren't going to make that list.

(By the way, great job linking to Findlaw for the opinion when the same document is available for free from the court's website. Personally, I wouldn't trust any attorney who actually paid for a Findlaw subscription.)
7.15.2008 11:26am
Some Guy (mail):

Boose: Restaurants, movie theaters, etc want to own more than they do. Imagine if the mall where the restaurant is was privately owned. This would be no problem. What if the movie theater owned the area where people queue up for tickets? no problem. Why don't they do this? Because they know they can trust the government to limit peoples rights to their advantage in the public domain. Also, why buy up land when you have to pay property taxes on something you just want as a buffer?


You were too quick to blame the property owners, you should do a little research into the Ninth Circuit's jurisprudence. In the Ninth Circuit, simply paying for property does not give you the right to exclude people from it who are expressing political messages you disagree with. The Ninth circuit prohibits a private property owner from stopping odious groups from using his property over his objections. They use a "public commons" theory.

I was actually there during oral argument for a case where a union lawyer argued that posting signs (absent a protest) on the private property protesting the tenants should be allowed, as well. Never heard how that turned out.
7.15.2008 12:01pm
Smokey:
Oops. Forgot the attribution in my 6:28 a.m. post above. It was by Sen. Orrin Hatch on the Senate floor.
7.15.2008 1:03pm