Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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In July 2015, Joseph Walsh attended a meeting conducted by Portland City Council in order to express his disagreement with a proposed appropriation of funds. Upon voting in favor of the proposal by the Council members, Walsh engaged in a series of disruptive conduct, such as shouting and slamming his hand on a conference table. In response, Portland Mayor Charlie Hales warned that Walsh would be excluded from future City Council meetings if he continued to interrupt the proceedings. A week later, Walsh was served with a notice, preventing him from entering the City Hall building and its surrounding areas for 60 days. Such exclusion was pursuant to Portland City Code § 3.15.020B.5.b, which authorizes the mayor to issue an exclusion order “for any period of time up to and including permanent exclusion from City buildings,” for violation of the city’s Rules of Conduct.
Subsequently, Walsh brought a civil action against the city, alleging that the exclusion order violated his First Amendment right to free speech. The U.S. District Court for the District of Oregon granted his request for temporary injunctive relief and his declaratory judgment in finding the city ordinance in violation of the First Amendment right to free speech. The Court held that while the City Council meetings are limited public forums, which permit the government to freely regulate time, place, manner, and even the content of speech, the act of prospectively excluding individuals from attending the meetings pursuant to the ordinance was unreasonable and thereby in violation of the First Amendment.
According to the court documents, Joseph Walsh was an activist and representative of a group called “Individuals for Justice.” He was a frequent attendee of Portland City Council meetings during which he made public comments on proposals and agenda items.
On July 8, 2015, with the intention of making comments on the city’s proposal to appropriate funds from the Oregon Department of Transportation to the Portland Police Bureau, Walsh entered the City Hall building and sat among other public attendees. During his brief absence, the Council voted in favor of the proposal. As he missed the opportunity to make a public comment, Walsh began shouting while the meeting was still in session. In response, Portland City Mayor Hales warned that he would be excluded from the meeting as well as future ones if he continued to interrupt the proceeding. Walsh continued shouting and slammed his hand on a conference table, and accused the mayor of being “cheap.” Then at the request of a security officer, Walsh voluntarily left the building.
Seven days later on July 15, 2015, as Walsh attempted to enter the City Hall, he was served with an exclusion notice, informing him that he could not enter the building and its surrounding areas for 60 days because his past interruption of the meeting violated the city’s Rules of Conduct.
According to Portland City Code § 3.15.020B.5.b:
“Any Person-in-Charge may exclude any person who violates any Rule of Conduct while in or upon any City building or property, from a specific City building or property or from all City buildings and properties, for a period of 24 hours. The Mayor, and specifically identified designees of the Mayor, may issue an exclusion for any period of time up to and including permanent exclusion from City buildings.”
Walsh brought a civil action before the U.S District Court for the District of Oregon against the city, Mayor Hales, and Bryant Enge, the official who had issued the exclusion notice. He sought a declaratory judgment that the city ordinance at issue was in violation of the First Amendment right to free speech. He also filed a motion for a temporary restraining order to prevent the city from enforcing the exclusion order.
District Judge Michael H. Simon delivered the opinion of the Court.
The Court first held that Walsh had proper standing to sue the city and its officials. It then proceeded with the main issue of whether Portland City Code § 3.15.020B.5.b, authorizing prospective exclusion from city buildings, was in violation of the First Amendment right to free speech. As a general principle, the U.S. Constitution does not require the government “to grant access to all who wish to exercise their right to free speech on every type of [g]overnment property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985). The first test of assessing the constitutionality of a government-based restriction on speech is: “(1) whether the First Amendment protects the plaintiff’s speech; (2) the nature of the forum; and (3) whether the justifications offered for limiting or excluding speech from the forum satisfy the requisite standards.” Id.
The defendants here argued that Walsh’s interruptive speech at the meeting was not protected. The Court, however, held that Walsh’s speech was his “actual and primary message” to criticize the City Council’s approval of the proposal without allowing him to publicly comment. In making this observation, the Court made a reference to White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990), in which the Ninth Circuit Court of Appeals underscored that “[c]itizens have an enormous first amendment interest in directing speech about public issues to those who govern their city.”
With respect to the forum analysis, there are three types of public forums generally recognized by federal courts: (1) traditional public forums; (2) designated public forums; and (3) limited public forums. In contrast with traditional and designated public forums, limited public places are government property “limited to use by certain groups or dedicated solely to the discussion of certain subjects.” Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 470 (2009). According to the Court, “city council meetings are limited public forums.” And in the present case, there was no indication that the city had opened the City Hall building to expressive speech. The federal jurisprudence on this type of forum allows the government to regulate “not only the time, place, and manner of speech in a limited public forum, but also the content of speech — as long as content-based regulations are viewpoint neutral and enforced that way.” Norse v. City of Santa Cruz, 629 F.3d 966 (9th Cir. 2010). Furthermore, a limitation imposed on protected speech in public forums must be reasonable. To meet this requirement, the government must offer “evidence that the restriction reasonably fulfills a legitimate need.” Sammartano v. First Judicial Dist. Court, in & for Cty. of Carson City, 303 F.3d 959 (9th Cir. 2002).
The defendants contended that the prospective exclusion ordinance is “necessary” in order to protect public safety and prevent future disruptions. However, the Court was of the opinion that Portland City officials had the alternative of excluding disruptive individuals for the duration of the proceeding. In addition, the Court indicated from the records that Walsh did not threatened anyone with violence, nor he encouraged others to engage in violence. Accordingly, the Court concluded that the city’s prospective exclusion pursuant to its Code § 3.15.020B.5.b was not reasonable.
Therefore, the Court granted Walsh’s request for temporary injunctive relief and his declaratory judgment to find the ordinance in violation of the First Amendment right to free speech.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands freedom of expression because the Court uses First Amendment jurisprudence to analyze the validity of Portland City’s code and find that this particular ordinance in this situation infringed on the individuals right to free speech.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Reply Brief of Plaintiff
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