Community for Creative Non-Violence v. Turner, N-VIOLENCE
Decision Date | 26 January 1990 |
Docket Number | NON-VIOLENCE,No. 89-7120,N-VIOLENCE,89-7120 |
Parties | COMMUNITY FOR CREATIVE, et al., Appellees, v. Carmen TURNER, Appellant. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia. (Civil Action No. 88-1048)
Linda Lazarus, with whom Gerald J. Stief, Robert J. Kniaz, Robert L. Polk, and Bruce P. Heppen were on the brief for the appellant.
Andrew T. Karron, with whom Maureen E. McGirr, and Arthur B. Spitzer were on the brief for appellees.
Before MIKVA, EDWARDS, and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
The Washington Metropolitan Area Transit Authority ("WMATA") promulgated a regulation (the "Regulation") governing the use of WMATA property by those wishing to engage in free speech activities. The trial court determined that certain provisions of the Regulation were facially violative of the first amendment and thus invalid. In particular, the trial court invalidated the provisions that require those who wish to engage in free speech activities to obtain a permit, empower WMATA to modify or rescind the permit under certain specified conditions, allow WMATA to set the maximum number of persons who may engage in free speech activities on a station-by-station basis, and prohibit certain forms of expression.
On January 15, 1987, WMATA adopted the Regulation to govern "the organized exercise of rights and privileges which deal with political, religious, or social matters and are non-commercial." The Regulation requires those wishing to engage in these free speech activities to obtain a permit by mail or in person from the WMATA central business office during normal business hours. The Regulation also provides for the enforcement of its restrictions under applicable local criminal laws and ordinances.
In a separate consolidated criminal action, appellees Snyder, Fennelly, and other members of Community for Creative Non-Violence ("CCNV") were arrested and prosecuted for allegedly violating the Regulation. Superior Court Judge Hamilton dismissed the case on the grounds that the Regulation was facially overbroad and thus violative of the first amendment.
Appellees subsequently filed a complaint charging that the Regulation contravened the first, fifth, and fourteenth amendments to the Constitution. The parties filed cross-motions for summary judgment. On May 17, 1989, Judge Sporkin issued a Memorandum Opinion and Order granting the appellees' motion for partial summary judgment and invalidating the entire Regulation. 714 F.Supp. 29. On May 19, 1989, the trial court issued an Amended and Substituted Order superseding the May 17, 1989 order and granting in part the appellees' motion for partial summary judgment. --- F.Supp. ----.
The trial court's Amended Order invalidated the following provisions of the Regulation:
Section 100.10 Free Speech Activities
....
(b) Permit. All individuals and groups requesting permission to engage in free speech activities on WMATA property must first submit and have approved the permit request in accordance with Section 100.2, permits.
(c) Modification and Suspension. All free speech permits are subject to modification and suspension as a result of or in the event of any emergencies such as snow storms, traffic accidents, power failures, transportation strikes; or on the day of the observance of national holidays; or other conditions which may affect the traffic flow in the area covered by free speech activities creating a dangerous condition or substantially interfering with the general public.
....
(e) Number of Individuals. The number of persons permitted to engage in free speech activities at each Metro Station will be designated on a station-by-station basis.
....
(g) Prohibitions. Free speech activities are to take place in a conversational tone and at no time shall such activities include chanting, dancing, shouting, outcries, or the use of any device for voice amplification or any other sound device including musical instruments.
it is common ground that appropriate permit systems are permissible under the First Amendment.... A permit system is an embodiment of time, place, and manner restrictions that have long enjoyed the approbation of the Supreme Court.
Kroll v. United States Capitol Police, 847 F.2d 899 (D.C.Cir.1988), modified on reh'g, No. 83-2014 (Jan. 19, 1989) (emphasis added).
The standard for reviewing time, place, and manner restrictions on expression protected by the first amendment depends on the nature of the forum being regulated. If it is a "public forum," the Supreme Court has held that the regulation must be content-neutral, narrowly tailored to serve a significant governmental interest, and allow for sufficient alternative channels of communication. See Rock Against Racism, 109 S.Ct. at 2753. If the proposed forum for expression is not a public forum, the regulation will be upheld as long as the restrictions are reasonable and are not directed at opposing the views of particular individuals. See Adderley v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1986).
Courts that have addressed the public forum question have determined that a property may become a public forum in two ways. First, courts have tended to characterize as a public forum property that resembles streets and parks because such property historically has been devoted to the exchange of free ideas. See, e.g., United States v. Grace, 461 U.S. 171, 179, 103 S.Ct. 1702, 1708, 75 L.Ed.2d 736 (1982) ( ); see also U.S. Southwest Africa/Namibia Trade & Cultural Council v. United States, 708 F.2d 760, 763-66 (D.C.Cir.1983) ( ). Second, in Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985), the Court stated that it
has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum. The Court has also examined the nature of the property and its compatibility with expressive activity to discern the government's intent.
Id. at 802, 105 S.Ct. at 3449; see Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) ( ); Madison Joint School Dist. v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) ( ); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (municipal auditorium In contrast, the Court has refused to find a designated public forum where there is clear evidence of contrary intent or the nature of the regulated property is inconsistent with free speech activity. See, e.g., Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) ( ); Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) (...
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