United States: expressivity discounted by ‘forum’ and ‘action’

In the United States, contrary to the approach taken in the UK or France, little attention is paid to the possible different forms a gathering might take as long as they are expressive.

That is, for the purposes of First Amendment protection, currently there is no initial difference between an indoor or outdoor meeting, just as between a stationary or moving assembly (procession). There used to be a difference approximately until the end of the 19^th century between assemblies on parks and streets, and the moving assemblies. Indoor meetings (the clear case of reunion in the French understanding) are also covered by the First Amendment.

Whether out- or indoor, however, the extent and the manner of the protection will depend on the kind of ‘forum’ to which access is sought. Government property and private property naturally enjoy different status, but more interestingly, within government property there has evolved a complicated classification in the ‘public forum’

jurisprudence. After a long history of twists and changing emphasis on which Robert Post’s 1987 article⁹⁸ is the seminal analysis, the public forum doctrine classifies government-owned places in three categories.

First, most highly protected is the public forum, ie streets, parks which were ‘time out of mind, immemorially held in public trust for purposes of assembly, communicating

97 Duguit, Traité, above n 71 at 339.

98 Robert Post, ‘Between Governance and Management: the History and Theory of the Public Forum’, 34 UCLA L. Rev. 1713 (1987).

31 thoughts between citizens, and discussing public questions.’⁹⁹ On such ‘quintessential public forums’¹⁰⁰ as called in the Perry decision, general First Amendment standards apply; a compelling state interest needs to be shown for content-based (see Chapters 3 to 5), and some legitimate interest for content-neutral restrictions (see Chapters 7 to 9), the required link between the two is strongly varying.

Secondly, there is the limited public forum, government property which was opened up for communication by the government. Here it is quite unclear what sort of standard applies. Robert Post actually thought already in 1987 the limited public forum is dead. Perry claims that as long as the state keeps the forum generally open, the same standards apply as on the traditional public forum. Decisions discussed in more detail under place restrictions¹⁰¹ below will prove Post’s point, eg a publicly accessible military base can discriminate on the basis of content, ie it belongs to the third, rather than to the second category.

The third category consists of ‘[p]ublic property which is not, by tradition or designation, a forum for public communication.’¹⁰² On such nonpublic forums the state, in addition to time, manner, and place (TMP) restrictions, ‘may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.’¹⁰³

How these three – or, in effect – two standards operate in practice will be also visible in the book, even though it is structured not along the lines of the US public forum doctrine, but along the line of prior restraint-substance-modality restrictions, more common to the other jurisdictions.

What sort of ‘assemblies’ – though again, the expression ‘assembly’ is basically never used – are worthy of First Amendment protection is also delineated by the speech plus theory, ie expressivity does not matter if it is done by ‘action’. Speech plus is not a full-fledged doctrine, but the Supreme Court, especially Justice Hugo Black, found it often useful to differentiate elements of assembly into ‘speech’ and ‘conduct’ or ‘action’,

99 First mention Hague v. CIO, 307 U. S. 515, 516 (1939).

100 Perry Education Association v. Perry Local Educators’ Association, 460 U. S. 37, 45 (1983).

101 See in Chapter 9.

102 460 U.S. 46.

103 460 U.S. 46.

32 and to accord lesser protection to the latter ones. Justice Black’s view about conduct being unprotected expresses perhaps most clearly the judicial aversion and/or ignorance as to how meaning is generated on assemblies. Justice Black still is considered a champion of free speech, exactly because he meant anything what is speech should be absolutely protected. As early commentators put it: ‘peaceful, orderly and almost academic discussion is the only mode of communication which Black would absolutely protect.’¹⁰⁴

In a classic speech plus reasoning, in Cox v. New Hampshire¹⁰⁵ from 1941, the Supreme Court accepted the fact finding of the state court according to which the gathering ‘was a march in formation, and its advertising and informatory purpose did not make it otherwise. . . . It is immaterial that its tactics were few and simple. It is enough that it proceeded in an ordered and close file as a collective body of persons on the city streets.’¹⁰⁶ That it was a march in formation, resulted in the applicability of a statute requiring special permit for parades even on sidewalks, and, thus, in conviction of otherwise peaceful Jehovah’s witnesses who were moving in four-five single line groups and holding up signs. Thus, the qualification of their activities as march actually worsened their legal status, which would have been otherwise just that of the simple passersby or shopper on the sidewalks. As Edwin Baker pointed out, the only legally relevant difference between the conduct of the 88 Jehovah’s Witnesses gathering at the intersections on a street of Manchester, New Hampshire, and the other hourly 26 000 passersby who crossed the intersection was that the Witnesses engaged in First Amendment activity,¹⁰⁷ they were ‘marching in formation.’ Certainly, that a group shows its unity by formation (which was in this case a very modest formation, the reader should not have the image of Hitlerian militant marches in her mind) renders the group expressive. The Court does not say explicitly that the formation rendered the parade under the protection of the First Amendment, however. The Court only stresses that the permit requirement is not aimed at the expressive content. It accepted the state supreme court’s interpretation that the statute ‘prescribed ‘no measures for controlling or

104 N.N., ‘Reflections on Justice Black and Freedom of Speech’, 6 Val. U. L. Rev. 316 (1972) 323.

105 Cox v. New Hampshire, 312 U.S. 569 (1941).

106 312 U.S. 574.

107 Edwin Baker, Human Liberty and Freedom of Speech (Oxford, Oxford University Press 1992) at 138.

33 suppressing the publication on the highways of facts and opinions, either by speech or by writing’; that communication ‘by the distribution of literature or by the display of placards and signs’ was in no respect regulated by the statute; that the regulation with respect to parades and processions was applicable only ‘to organised formations of persons using the highways,’ and that ‘the defendants, separately, or collectively in groups not constituting a parade or procession’, were ‘under no contemplation of the Act’,’ and the Act only served to secure public convenience in the use of the streets.¹⁰⁸

Thus, the Court considered the permit (and fee) requirement attached basically to

‘formation’ as not burdening the expressive aspects of the activity. It remains unclear and even incomprehensible what the justices then think why the Witnesses were building the formation, if not for expressive purposes. Rather, it would seem that the formation is clearly part of the expression, just as Charles Tilly would claim, it is one of the WUNC (Worth, Unity, Numbers and Commitment) displays which contributes to the unity of the group.¹⁰⁹

This limited understanding of expression was reinforced in a 1965 case where it was ‘emphatically rejected’¹¹⁰ that

the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech.

It appears therefore that the USSC attempts to make a distinction between what is considered physical, external or maybe what takes up a space, and what is considered ‘the message’.