TRADITIONAL v LIMITED PUBLIC FORUMS.doc

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ARIZONA COMMON SENSE

An Exercise in Aggressive, Non-Partisan Political Activism

March 14, 2013 Volume 3, Number 12

TRADITIONAL FORUMS, LIMITED FORUMS, AND CIVILITY:

WHEN CAN GOVERNMENT OFFICIALS LIMIT SPEECH RIGHTS?

When it comes to civility, the U. S. Constitution, andgovernment limitations on free speech, there is a vastdifference between what civil discourse really means, what theConstitution actually permits (as consistently defined in thisdistrict by the U.S. Supreme Court and Ninth Circuit Court ofAppeals) and what limitations government officials consistently

choose to impose to protect establishment interests and tosilence the voice of the Unpopular Public Speaker.

Which brings us to several interrelated questions:

The first: Can civility in public discourse actually co-existwiththe vigorous exercise of First Amendment Rights?

The answer may (eventually) be determined by the participantsof an on-going project of the National Institute for Civil Discourse,newly formed at the University of Arizona in 2011.

The answer to the next question actuallydefines the relationshipbetween We the People and those we employ to conduct thepublics business, aka government:When and how may our employees lawfully proscribe the freeexercise of First Amendment Rights?1

Well, it turns out that answer may depend on the nature of thespeech and the nature of the forum where the speech is offered.

In a 2012 Arizona Law Review article, Retaliatory Forum Closure,(RFC) JD Candidate Stephen Elzinga explained an evolving aspectof government interference with speech rights:

1We are only concerned with legal public forums, aka traditional and limited.

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http://nicd.arizona.edu/http://www.scribd.com/doc/128682764/ELZINGA-2012-ARIZONA-LAW-REVIEW-ARTICLE-ON-FORUM-CLOSURE-pdfhttp://c/Documents%20and%20Settings/Owner/Parent/Application%20Data/FLAG%20BURNING%20PRESS%20RELEASES/POST%20TPD%20POLICY%20CHANGE/RUMBLE%20IN%20KENNEDY%20PARK.doc#ZAPATA#ZAPATAhttp://nicd.arizona.edu/http://www.scribd.com/doc/128682764/ELZINGA-2012-ARIZONA-LAW-REVIEW-ARTICLE-ON-FORUM-CLOSURE-pdf


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The recent Occupy Wall Street and Tea Partymovements highlight the importance of preventingunconstitutional government interference with disfavoredspeakers. Perversely, officials seeking to prevent suchprotests while evading viewpoint discrimination lawsuits

can elect to simply close forums in which speech wouldotherwise be expressed. Holding that all speakers areequally affected, courts have generally allowed suchactions.

Elzinga goes on to describe some of the forums so affected:parks (to stop Occupy Walls Street Occupations), publicschools (to pre-vent a lesbian from attending prom withgirlfriend), observation galleries in legislative bodies (to stopprotestors from wearing armbands critical of public officials),public libraries (to prevent display of gay rights newspaper on

the free literature table), etc RFC 501.

[Such retaliatory forum closure was suggested here in Tucsonin 2011, after the arrest of community activist Roy Warden who,during the Call to the Audience portion of the Tucson Mayorand Council Meeting, challenged Mayor Walkups announcedCivility Accord and the fitness of then Assistant Tucson CityManager Richard Miranda to hold public office.

Warden was arrested on September 13, 2011 after asking theMayor and Council, on several previous occasions: How can you

expect US to treat YOU with Civility, when you hire a personlike Richard Miranda2, who lied, cheated and stole, and, in hisprofessional capacity as Assistant Tucson City Police Chief, triedto destroy a local citizen, Dr. Kevin Gilmartin, as concluded by afederal jury after 17 days of testimony in 2006?

Subsequent to Wardens arrest for making impertinent,personal. and slanderous remarks,3 the City Council floated a

2 Current Tucson City Manager Richard Miranda was Assistant Tucson PoliceChief when he, at the behest of the Tucson Police Chief Doug Smith, engaged

in the retaliatory acts which were the subject of the 2006 trial. The jury foundMiranda responsible for conspiracy and first amendment retaliation andaward-ed the Plaintiffs, Dr. Gilmartin and Dr. Harris, 2.9 million dollars incompensation, including 2 million dollars in punitive damages. Three weekssubsequent to the payment of money, the Tucson City government hiredMiranda as Assistant City Manager, at a significant increase in pay.

3 Such verbiage in the Rules of the Mayor and Council, in effect since 1988,was changed in 2012 as a consequence of Wardens suit in Pima County

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http://www.scribd.com/doc/65117159/TUCSON-MAYOR-WALKUP-ARRESTS-WARDEN-FOR-PUBLIC-SPEECHhttp://www.scribd.com/doc/65117159/TUCSON-MAYOR-WALKUP-ARRESTS-WARDEN-FOR-PUBLIC-SPEECH


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trial balloon, informing the public that, after all, state law andthe Arizona Constitution didnt actually require the Council tohold Weekly Call to the Audience in which the public is invitedto present their view-points.

This announcement set off a firestorm of debate, and thecontinued vilification of Roy Warden in the local newspaper.

Subsequently; the Council rejected the idea of discontinuing theCall to the Audience, and, consequent to Roy Warden filing suitin Pima County Superior Court, the Council backed downaltogether and changed their policy.]

Elzinga concludes by recommending that First AmendmentRetaliation jurisprudence be extended by creating an action forretaliatory forum closure. (T)his would protect dis favored

speakers and give the public a greater opportunity to interactwith a wide spectrum of viewpoints.

Limited vs Traditional Public Forums

Along with retaliatory forum closure as Elzinga describes, thegovernment may lawfullycontrol speech or limit the content: itdepends upon whether the forum is a limited public forum, atraditional public forum, or a non-public forum.

In a limited public forum, such as the Tuesday night Meeting of

the Tucson Mayor and Council, the government may lawfullyplace time and content limitations on speech.

For example: prior to the opening of the Tuesday meetings, thepublic is invited to fill out a blue card and request three minutesto address the Mayor and Council during Item 6: Call to theAudience, a half hour period of time in which the public mayaddress the Mayor and Council on a variety of local issues withinthe jurisdiction of the Mayor and Council.

[Meaning: Diatribes against President Obama and other officials

who are outside the power of the Tucson Mayor and Council toaddress, may be proscribed.]

At the Tuesday meetings the public may not speak out of turnor otherwise interrupt the proceedings, or other speakers; they

Superior Court challenging the policy.

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http://azstarnet.com/news/local/govt-and-politics/article_1a8f8265-9dfe-5f3a-93db-19e81c6aa3ae.htmlhttp://azstarnet.com/news/local/govt-and-politics/article_1a8f8265-9dfe-5f3a-93db-19e81c6aa3ae.htmlhttp://azstarnet.com/news/local/govt-and-politics/article_1a8f8265-9dfe-5f3a-93db-19e81c6aa3ae.htmlhttp://azstarnet.com/news/local/govt-and-politics/article_1a8f8265-9dfe-5f3a-93db-19e81c6aa3ae.html


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must wait for their allotted three minutes of time. Thus: publicspeech is (1) limitedto three minutes every Tuesday during Callto the Audience, and (2) limited to issues which are within thejurisdiction of the Mayor and Council.

However; in traditional public forums, sidewalks and parks, thegovernment is absolutely forbidden from issuing any4

prohibitions or limitations on lawful political speech whatsoever.

Or so the Supreme Court has ruled, time and time again.

From time immemorial, streets, sidewalks and parks have beenheld in trust for the use of the public and have been used for thepurpose of assembly, communicating thoughts, and discussingpublic questions. Hague v C.I.O. 307 U.S. 496, 515 (1939)

As a matter of historical fact, public meetings, or face-to-facepublic debate, is the very process by which the AmericanRevolution was formed: the protection ofthis process of publicmeeting and debate is the core purpose of the First Amendment.

Traditional public forums may be found in any number of publicplaces; indeed, with some minor restrictions for residentiallocations, schools, and hospitals, virtually any street corner mayserve as a traditional public forum.

In Tucson Arizona the two places of greatest public utility as

free speech forums, are Armory Park, where Pro-Raza groupsmeet every May One to advance their interest in theImmigration Debate and, Library Square, near the corner ofPennington and Stone, in close proximity to every local courtbuilding, within earshot of some 2,000 or more local publicofficials.

In Freedom of SpeechCivilityAnd Effective DemocraticEngage-ment, written by University of Arizona Rogers College ofLaw Professor Toni Massaro and published by the NationalInstitute for Civil Discourse, Professor Massaro quotes the

following 1949 U.S. Supreme Court case:

[A] function of free speech under our system ofgovernment is to invite dispute. It may indeed bestserve its high purpose when it induces a condition of

4 I will analyze the distinction between lawful and unlawful speech in a futureissue.

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http://www.scribd.com/doc/128686495/UNIVERSITY-OF-ARIZONA-CONSTITUTIONAL-LAW-PROFESSOR-TONI-MASSARO-ARTICLE-ON-CIVIL-DISCOURSE-pdfhttp://www.scribd.com/doc/128686495/UNIVERSITY-OF-ARIZONA-CONSTITUTIONAL-LAW-PROFESSOR-TONI-MASSARO-ARTICLE-ON-CIVIL-DISCOURSE-pdfhttp://www.scribd.com/doc/128686495/UNIVERSITY-OF-ARIZONA-CONSTITUTIONAL-LAW-PROFESSOR-TONI-MASSARO-ARTICLE-ON-CIVIL-DISCOURSE-pdfhttp://www.scribd.com/doc/128686495/UNIVERSITY-OF-ARIZONA-CONSTITUTIONAL-LAW-PROFESSOR-TONI-MASSARO-ARTICLE-ON-CIVIL-DISCOURSE-pdf


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unrest, creates dissatisfaction with conditions as theyare, or even stirs people to anger. Speech is oftenprovocative and challenging. . . . There is no roomunder our Constitution for a more restrictive view.For the alternative would lead to standardization of

ideas either by legislatures, courts, or dominantpolitical or community groups. Terminiello v. City ofChicago, 337 U.S. 1, 45 (1949). (Massaro, page 391)(emphasis added)

Speech is often provocative? It may indeed best serve its highpurpose when it induces a condition or unrest, createsdissatisfaction or even stirs people to anger?

What appears to be a conflict between the free exercise ofconstitutional rights, as set forth by Terminiello, and the notion

of civil discourse is particularly relevant here in TucsonArizona, in light of the horrific events which took place onJanuary 08, 2011 when a federal judge, a congresswoman, achild and other citizens were brutally assaulted and murderedwhile engaged in the performance of their public duties and inthe exercise oftheir right to speak and be heard.

This event, together with our proximity to the Mexican border,has inspired rancorous debate on two of Americas mostcontentious political issues, Gun Rights and ImmigrationRights, resulting in public violence and resultant government

insult to our foundational constitutional liberty.

So, regarding the question of civility in public discourse andthe rigors of political debate: can the two reallyco-exist?

Maybe, just maybeIf the NICD moves ahead aggressively withits task, andIf the public is truly interested

Roy Warden, PublisherArizona Common Sense

[email protected]

Next Up: Can the government ever lawfully issue an Order ofPrior Restraint, which prohibits the Unpopular Public Speakerfrom the free exercise of First Amendment rights?

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mailto:[email protected]:[email protected]