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Second Circuit Finds Restrictions On the Form or Manner of Speech In A Limited Public Forum Does Not Violate First Amendment

Recently, the Second Circuit Court of Appeals upheld the District Court determination that the City of Kingston had the right to prohibit the public from displaying signs at a City Council meeting and that such restriction did not, as claimed by the Plaintiffs, violate their First Amendment rights. In the case of Tyler v. City of Kingston, the Court held:”[t]he district court concluded that Plaintiffs had not adequately alleged that the City’s sign prohibition was unreasonable in light of the potential disruption or distraction that signs at Common Council meetings might pose. We AFFIRM the judgment of the district court.”

The Plaintiffs are nine citizens of the City who are active regarding various community issues. The City proposed to purchase an armored  rescue vehicle. The Plaintiffs intended to protest the proposal by appearing in City Hall at the Council meeting. They intended to carry large signs objecting to the proposed action. Several days before the scheduled hearing the City had adopted a rule prohibiting the carrying of signs in City Hall, where the hearing was scheduled to take place.

Upon arriving  at City Hall, the Plaintiffs were advised they could not carry their signs into City Hall, which had notices posted prohibiting the carrying of signs. Subsequently, Plaintiffs brought an action challenging the restrictions enforced by the City, claiming the regulation violated their First Amendment rights of free speech. The City moved to dismiss claiming that it could restrict types of speech in a limited public fora, such as those conduced during City Council meetings. The District Court granted the motion to dismiss, noting, in part, “government entities are permitted to regulate the manner or form of speech in limited public fora, including city council meetings, as long as such restrictions on speech are viewpoint neutral and reasonable.”

Plaintiffs argued on appeal “that the district court erred because (1) the City may not restrict certain forms of speech while permitting other forms of speech on the same topic; and (2) the sign prohibition is unreasonable because the City’s proffered interest in avoiding disruption or distraction is speculative, and the sign prohibition is not narrowly tailored to that interest.”

The Circuit Court noted there are four kinds of public fora, with different rules to be applied to each. In this case the activities fall within the meaning of a limited public forum “when the government opens a non-public forum for public expression, but limits expressive activity to certain kinds of speakers or the discussion of particular subjects…”. The Court went on to note that if there are             ” ‘expressive uses not falling within the limited category for which the forum has been opened, restrictions need only be viewpoint neutral and reasonable.’… ‘[S]trict scrutiny is accorded only to restrictions on speech that falls within the designated category for which the forum has been opened.’ … Otherwise, such restrictions are ‘subject to only minimal constitutional scrutiny.’…”

The Plaintiffs argued that as the City Council permitted speech on the subject, both orally and in writing,  there was no basis for restricting the manner of  speech when it came to standing silently holding signs. In upholding the District Court, the Circuit Court disagreed with the position of the Plaintiffs finding “…the form or manner in which the public participates at Common Council meetings may certainly undermine the purpose for which the forum was created—e.g., to facilitate meaningful discourse on matters of the legislative agenda.”

Drawing an analogy the Court noted, “[s]uppose the Common Council adopted rules permitting meeting attendees to contribute only by way of written remarks or requiring meeting attendees to limit their verbal remarks to a fixed amount of time. Such restrictions would limit the form or manner of speech, but plainly they would be upheld as reasonable in a limited public forum, and they would not be subject to strict scrutiny.”

The Plaintiffs’ also alleged that the City’s claim that the use of signs at the meeting would be disruptive was speculative and therefore the restrictions were not reasonable. The Court, however, found, “[h]ere, we conclude that Plaintiffs have not adequately alleged that the sign prohibition was unreasonable in relation to the City’s common-sense interest in running efficient and orderly meetings.
Plaintiffs do not allege that they were disabled from voicing their views at the August 3, 2021 Common Council meeting, nor do they allege that they could not use their signs as part of protest activities on ‘the public sidewalks surrounding’ City Hall.”

Likewise Plaintiffs argued that the restriction was not solely for obscene, vulgar or otherwise disruptive signs and therefore was overbroad. Yet the Court again noted, “… the signs referenced in Exhibit 1 to the Complaint do appear to have the potential for disrupting the orderliness of the proceedings. They include life-sized puppets as well as large (2+ foot-wide) cardboard posters, which—particularly when wielded by many individuals at once—could have been visually disruptive and interfered with the decorum of the meetings. While Plaintiffs claim that signs generally are ‘less disruptive or intrusive than public comments,’ Plaintiffs’ 13, this self-serving assertion disregards how different forms of communication can facilitate or undermine the purpose of a forum…. Here, although the Common Council could have instituted more narrow restrictions on signs—such as confining sign-holders to designated areas of the room, limiting the types and sizes of signs that could be brought, or removing disruptive sign holders—the First Amendment, under the reduced level of scrutiny applicable in a limited public forum, does not require the Common Council to have done so.”

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