Feminist Global Resistance continues our Activist Action Series, offering techniques and safety tips for activists.

Our article, “Understanding Free Speech”, is a guide for new activists and a reminder for seasoned activists going out to dance the streets. Know your RIGHTS!
As usual, this is a combined effort of activist friends and Feminist Global Resistance.

Be advised, this is not the time to be out there unless you are committed, prepared, and ready to confront oppression and potential violence.

Be inspired and organize! 

To all activists, “dancing the streets”  requires a knowledge of what one may encounter during any action. Stay vigilant.  

Remember, we are in this together; together we help each other. 

Activism can be fun, but it is serious business – take care of yourself and each other.

As always: Be prepared for confrontation and keep it safe out there!

 

Understanding Free Speech

 

Location

PUBLIC PROPERTY

What’s the best location for my free-speech activity?

Although the First Amendment gives you the right to decide where best to express yourself, your right to exercise your free-speech rights may hinge upon exactly where you choose to exercise those rights. The U.S. Supreme Court uses a Federal Forum Analysis to determine what kinds of speech are appropriate in which publicly owned locations:

Traditional Public Forums: Is it a sidewalk, a street or a public park? If the answer is yes, you’re holding your protest at a traditional public forum, where speech may only be restricted through reasonable time, place and manner restrictions.

Designated Public Forums: Other spaces may receive the same protection as traditional forums because the government has opened them up to be used for speech activities. Once the government treats a public venue as available to some for non-commercial speech, it must be made available to all. Common examples of designated public forums include public auditoriums, the steps of city hall and plazas in front of public buildings.

Non-Public Forums: In other venues, your rights are less clearly protected. At military bases, airport terminals, or the entrance to a post office, for example, reasonable prohibitions and restrictions may be upheld, as long as they are objectively applied and do not favor one side of an issue over the other. The government cannot discriminate based on viewpoint, even in a non-public forum.

How are Free Speech Locations Assessed under State Law?

Courts sometimes use the federal forum analysis to evaluate limits on speech on public property, but they have also used another test—the “basic incompatibility” test. Under that test, expressive activity on government property may only be prohibited if the speech is incompatible with the normal activity of the venue. What does that mean in the real world? It means leafleting at a train station or a prison parking lot may be approved, while forcing nurses to weave around solicitors inside a hospital ward will not be. Relevance matters, too: the courts are more likely to give the nod to a location when it is an actual or symbolic target of your protest.

SCHOOLS, UNIVERSITIES, MEDICAL CENTERS AND HOUSES OF WORSHIP

Can public universities or college campuses restrict protests?

You should be allowed to protest on the outdoor streets and plazas of public college and university campuses, subject to reasonable time, place, or manner restrictions. A public college cannot allow protests on one side of an issue but prohibit protests on the other side. But it may restrict speech activities that unduly interfere with classes.

Can my high school restrict my free-speech rights?

Your free-speech rights are fully protected in school, as well as outside. Your school may not censor or punish you because of the content of your speech—unless what you say is obscene, libelous, likely to incite material disruption or violation of school rules, or is deemed a “true threat.” Schools may not stop you from discussing a controversial topic, writing for the school newspaper or criticizing school rules, but they can require you to obey reasonable, non-content-based regulations. A school can’t ban a T-shirt that reads “No War in Iraq” but allow one that says “Support Our Troops,” for example.

Can I organize a protest at my school?

Yes. However, the school may require you to observe reasonable time, place and manner regulations, such as holding your protest before or after class, and in a safe location that doesn’t block entries and exits.

Can I skip school for a walkout or protest?

Since the law requires you to attend school, you may be punished for skipping class. The school can’t punish you for your views, however, and the consequences should be the same as if you skipped school for any other unauthorized reason. To learn about your rights at school, call your school district and ask for their regulations on free-speech activity.

Are there special rules for medical centers or places of worship?

Yes. You may not physically obstruct or intentionally interfere with the staff members, patients, or building of a medical clinic offering reproductive health services. These statutes also apply to houses of worship. In addition, some cities have “bubble ordinances” that bar demonstrators from approaching patients without permission within 100 feet of a health care facility. Check your local regulations to learn more.

PRIVATE PROPERTY

Can I protest on private property?

As a rule, the First Amendment doesn’t give you the right to engage in free-speech activities on private property unless you own or lease the property, or the owner has given you permission to use the property for speech. But you may canvass door-to-door in residential areas, unless the homeowner has put up a “no solicitors” sign.

Do shopping malls count as private property?

Shopping malls are an exception to the rule. This varies from state but the majority of states recognize big malls as the modern-day “functional equivalent” of a traditional public gathering place, because they have “common areas that would invite the public to meet, congregate, or engage in other activities typical of a public forum. . . .”
The Constitution does protect your free-speech rights in privately owned shopping centers—as long as your activity doesn’t interfere with the primary commercial purpose of the mall. However check with your local state as laws are being passed regularly to limit free speech.

What about the private walkways and parking lots in front of “big box” stores and hotels?

The shopping center rule doesn’t apply to private property areas that fail the “functional equivalent” test, such as parking lots and walkways of medical office buildings and hotels, or private walkways and parking lots in front of freestanding stores like Trader Joe’s or Costco.

Can shopping centers regulate my expressive activities?

Yes. The courts have approved a slew of “reasonable” time, manner and place regulations, some of which present obstacles for effective communication. Most large malls have rules restricting free speech activities, although the California Supreme Court’s recent decision in Fashion Valley Mall v. N.RB calls into question some of these restrictions. The Court invalidated a rule that prohibited a union from handing out leaflets at a San Diego mall calling for a boycott of a particular store, finding that the union’s interest in getting its message across outweighed the economic interests of the mall.

What if I violate a shopping center’s rules?

If you exercise your free-speech rights in violation of these rules, you may be excluded from the mall. However, you should not be arrested for trespass under state law in an area that’s open to the public unless you intentionally interfere with the establishment’s business, for example, by obstructing or intimidating its
customers.

Restrictions in shopping centers

The courts have made it clear that shopping centers can and should adopt written “reasonable” rules and regulations for free speech activity. Most large shopping malls have adopted a set of written regulations, which are available at the center’s offices. The standard for what is a “reasonable” shopping center rule is the same as the standard for the government regulating speech in a public forum—the rule must be content-neutral and narrowly tailored and leave open alternative avenues of communication.

The court decisions applying this standard have not been consistent, so the state of the law is unclear at this time. Many of the large shopping centers adopted rules that were complicated and burdensome to advocacy groups, but many of these rules were upheld in state court decisions. Such rules included:

• Requiring a permit in advance to give the center prior notice of the activity
• Limiting free speech activity to designated free speech areas (usually 2 or 3)
• Imposing strict limits on the number of participants (usually 2 or 3)
• Requiring advance approval of signs and literature
• Prohibiting all free speech activity during certain busy periods (e.g. Thanksgiving to Christmas)
• Prohibiting direct solicitation of any monetary donations

A more recent federal court decision, relying on the California Supreme Court’s ruling in the Fashion Valley case, rejected the reasoning of these state court decisions, thus calling into question many of these same rules. The court specifically rejected the following rules as either impermissible content discrimination or as not narrowly tailored.

• Prohibition on speech activities that identify or single out the mall or a mall tenant by name (e.g. content-based)
• Prohibition on the carrying or wearing of signs, including picket signs
• Prohibition on any activity on the exterior walkways
• Ban on activities during holiday periods