Constitution42

The Supreme Court is being asked to overturn a lower court decision that gives a university the right to control public speech that occurs on a public sidewalk.

Traditionally those locations are considered a public forum, and only a few restrictions can be placed on speech, such as people not being allowed to create excessive noise, or make threats.

But in this case, a three-judge panel from the 11th Circuit Court of Appeals decided that the public sidewalks in the city of Tuscaloosa, Alabama, are actually not public – if they run past the University of Alabama.

The conflict developed when Rodney Keister, a street preacher, was ordered by university officials to shut up.

He was preaching on those “public” city sidewalks.

But the ruling, in fact, gave university officials the right to control any public speech there.

Now the fight is being submitted to the U.S. Supreme Court by the American Center for Law and Justice.

“At stake in the case is the freedom of people to speak on sidewalks along public streets,” reported Walter Weber of the ACLJ.

“A quick constitutional refresher: The U.S. Supreme Court for many decades has recognized that the right to free speech under the First Amendment means that, in general, you carry your right to speak with you. That is, if you have a right to be in a public place, you have a right to speak there as well. Certainly state and local laws can prevent abuses like excessive noise, threats, obstruction of traffic, and so forth. But aside from such ‘reasonable time, place, and manner’ restrictions, you keep your right to speak. And the places where such speech receives the strongest protection are public streets, sidewalks, and parks – places the Supreme Court calls ‘traditional public fora’ for free speech,” he explained.

However, Keister, a traveling Christian evangelist whose ministry is to college students, was ordered by university officials to either obtain a speech permit from the school, for which officials said he didn’t qualify, or stop preaching.

The school demanded that it controlled “expressive activity” on the public sidewalks.

Weber explained the appeal raises the question about whether free speech is allowed on public sidewalks – or whether it is not.

The filing explains, “Review is especially needed here because the constitutional rule the Eleventh Circuit adopted – refusing to grant sidewalks along public streets presumptive public forum status, disregarding the seamless connection to other city streets and sidewalks, and instead relying upon the identity of the adjacent property – departs dramatically from the way other federal circuits – and this court – have addressed the public forum issue.”

The lower court decision creates vagueness and ends up with an “incoherent, unworkable” standard because it is based on the proximity of the university next to the sidewalks, the filing explains.

“Presumably the same arguments could be made about sidewalks running past an arts center, a corporate complex, an industrial or commercial district, or farming tracts. In all of these contexts, authorities wishing to shut down speech they deem unwelcome can be expected to invoke the decision below, or its reasoning, to negate the traditional public forum status of sidewalks running beside such properties,” the court was told.

Weber explained, “In short, this case is not so much about the ‘heart’ of a college campus as about a dagger pointed at the ‘heart’ of the right to free speech. If adjacent property owners can veto the right of someone to picket, leaflet, or merely speak peacefully to passersby, a core part of freedom in this country will be in grave jeopardy.”

The district court originally had ruled that the school was a “special enclave” and therefore could control the speech on public sidewalks beside public streets that run through it.

The Supreme Court previously has “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 ACLJ said.

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