CENSORSHIP&POLITICALLY CORRECT

 

PUBLIC, DESIGNATED (LIMITED) AND NONPUBLIC FORA

PUBLIC FORUM--"property that has traditionally been open to the public for expressive activity"--street corners and parks.

DESIGNATED (LIMITED) PUBLIC FORUM--the government "has designated or created a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for discussion of certain subjects."

When the government seeks to curb expression in either a public or a designated forum, the "strict scrutiny" test must be applied to determine if there is a First Amendment violation.

*compelling state interest

*the restriction is narrowly tailored to fit that interest

NONPUBLIC FORUM--"an area that the government may reserve. . . for its intended purposes" and "to which the government may control or limit access."

When the government seeks to curb expression in a nonpublic forum, it must be a reasonable restriction and it must be viewpoint neutral (although subject discrimination is permissible).

Sefick v. City of Chicago (N.D. Ill. 1979)

The plaintiff, probation officer and sculptor, was granted permission to exhibit art (which was intended to offer critical social commentary). See pp. 646-647. See also pp. 648-649.

Sefick v. Gardner (N.D. Ill. 1998)

Defendants had permitted Sefick to display a socially critical sculpture of Judge Duff in the Dirksen Building lobby. p. 589; but refused to allow him to display a second sculpture there (p. 591); they offered exhibition space in the Metcalf Building.

Policy: "An application will be denied if 'the proposed use interferes with access to the public area, disrupts official government business, interferes with approved uses of the property by tenants or by the public, or damages any property; [or] . . . is intended to influence or impede any pending judicial proceeding'"

Reasonableness? pp. 595-596

Sefick v. Gardner (7th Cir. 1998)

 

LeBron v. National Railroad Passenger Corp. (1995)

Pl. sought to lease space for ad ad in Penn Station on the "Spectacular"--a curved, back-lit display space (103' X 10') for 2 months. He described the ad as "political." When defs. saw the photomontage and text, they refused to lease the space. See description, p. 4. They offered him a choice of 500 billboards available in NYC as an alternative. He rejected the offer and sued.

District Court: AMTRAK is a government actor, and this refusal is a 1A violation.

Appellate Court: AMTRAK is not a government actor.

Supreme Court: AMTRAK is a government actor. Remanded to the Appellate Court to determine if there is a 1A violation.

Appellate Court:

No viewpoint discrimination; all political viewpoints are suppressed.

 

POLITICAL CORRECTNESS ON CAMPUS

Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (4th Cir. 1993)

Sigma Chi annually holds a "Derby Days" event, giving the proceeds to charity. One event was the "ugly woman contest, " in which the members caricatured different types of women. One caricature was of an African-American woman: black face/body paint; wig with curlers; stuffed dress; speech parody.

After a student protest, the Dean announced that the fraternity had created a hostile learning environment and that the skit was contrary to the University's mission statement (promoting a culturally and racially diverse student body).

The Dean punished the fraternity:

--no activities for the rest of the semester

--for the next two years the only events allowed would be

+pledging

+"pre-approved philanthropic events with an educational purpose directly related to gender discrimination and cultural diversity"

Court: "First Amendment principles governing live entertainment are relatively clear; short of obscenity, it is generally protected. . . regardless of quality." p. 389 and p. 390.

--Test for when conduct is expressive (Texas v. Johnson)

*an intent to convey a particular message

*a great likelihood that the message will be understood by those viewing the conduct

--Furthermore, the University is engaging in viewpoint discrimination, encouraging conduct/expression which furthers the mission statement and at the same time punishing conduct/expression that opposes those goals. p. 393

[Strict Scrutiny Test: compelling state interest; narrowly tailored]

 

TIME, PLACE AND MANNER RESTRICTIONS

Ward v. Rock Against Racism

From 1979 to 1986 "Rock Against Racism" sponsored concerts/speeches in Central Park. They furnished their own equipment and technicians. There were a lot of complaints about the level of volume. RAR repeatedly refused to reduce volume, and the city repeatedly cut off power.

In 1985 the city developed new guidlines for using the bandshell: the city would furnish high quality equipment and expert sound technicians for ANYONE using the bandshell. All users except RAR complied.

RAR sued, arguing a violation of First Amendment rights

Court:

--the regulation is content neutral

--the regulation is one of "time/place/manner"

*narrowly tailored (but not the least restrictive alternative) to serve a substantial government interest

*does not unreasonably limit alternative avenues of expression pp. 798-799