When is a public street not a public street? And when is a public sidewalk not a public sidewalk?
Apparently when a panel of three judges makes that claim, according to a dispute that has developed over Rodney Keister, a street preacher.
He was ordered by the University of Alabama in Tuscaloosa to shut up, because he was on public sidewalks that ran through their campus.
Keister is defended by Nate Kellum at the Center for Religious Expression, which is seeking a hearing from the full 11th Circuit Court of Appeals.
It’s because, according to a friend-of-the-court brief filed by the American Center for Law and Justice, while there are a number of good reasons for speech to be limited depending on location, being surrounded by a university campus isn’t one.
ACLJ argued that like the “Blob” in the movie of that name, which consumes anything it touches, the school “devours the speech rights of those on the sidewalks the campus touches.”
“First, let’s cover some legal background. The First Amendment protects the right to free speech. But that right is not equally protected in all places. Obviously, you have a greater right to engage in leafletting or public protest in a park than inside a DMV office. Reflecting this difference, the Supreme Court uses ‘forum’ analysis to differentiate between places that are more or less compatible with free speech,” ACLJ explained.
“At the top of the free speech ladder is so-called ‘traditional public forum’ property, which consists of public streets, sidewalks, and parks. In such places, the First Amendment provides maximum protection, and restrictions on speech must comply with a demanding constitutional standard. For example, while excessive noise or obstruction of passage can be prohibited in such places, the government cannot ban picketing or street preaching altogether.
“By contrast, in other, less protected speech fora (e.g., inside a classroom, or on the grounds of a jail), the government has considerably more flexibility to impose limits on speech. Of course, streets and sidewalks inside special enclaves – a military base, for example, or maybe a gated community – do not automatically get the same protected treatment as sidewalks and streets open to general public use. But the normal presumption is that if it’s a public street, sidewalk, or park, it’s a traditional public forum,” the legal team explained.
In the Keister case, however, a three-judge panel from the 11th Circuit “ruled, surprisingly, that the public streets and sidewalks in question were not ‘traditional public forum” property – because they ran through ‘the heart’ of the campus.”
ACLJ is reminding the court that the Supreme Court has “repeatedly rejected the notion that the nature of property adjacent to the streets and sidewalks can somehow negate the public forum status of those public ways.”
The rulings already have found that a street through a residential neighborhood is a public forum.
“Likewise the sidewalk around the Supreme Court itself.”
That property, the high court has said, “occupies a special position in terms of First Amendment protection and will not lose its historically recognized character for the reason that it abuts government property that has been dedicated to a use other that as a forum for public expression.”
The fact the panel cited the street’s presence through “the heart” of campus also is problematic.
“Would the same rule the panel applies to a college campus apply to a corporate headquarters? An arts complex? A large farm tract? Why not?”
If it stands, the three-judge panel’s ruling, the brief charges, “will fundamentally destabilize First Amendment law.”