finding that leafleting on the sidewalks bordering Constitution Avenue “within an area officially designated by the National Park Services as the Vietnam Veterans Memorial” was leafleting in a traditional public forum in part because the sidewalks at issue “are used by thousands of pedestrians every year, including not only Memorial visitors, but people going other places”
How later courts described this case
- finding that leafleting on the sidewalks bordering Constitution Avenue “within an area officially designated by the National Park Services as the Vietnam Veterans Memorial” was leafleting in a traditional public forum in part because the sidewalks at issue “are used by thousands of pedestrians every year, including not only Memorial visitors, but people going other places”
- holding that two sidewalks within the area designated as the Vietnam Veterans Memorial, “indistinguishable from ordinary sidewalks used for the full gamut of urban walking,” constitute public forums
- noting that while the government’s dedication of “property to a use inconsistent with public assembly and debate . . . precludes [its] classification as a public forum[,]” the government cannot establish such inconsistency merely by - 17 - declaring and enforcing restrictions on speech on a property that has historically been a site for expressive activity
- noting that while the government’s dedication of “property to a use inconsistent with public assembly and debate ... precludes [its] classification as a public forum[,]” the government cannot establish such inconsistency merely by declaring and enforcing restrictions on speech on a property that has historically been a site for expressive activity
Written by the judges who cited it.
The opinion
STEPHEN F. WILLIAMS, Circuit Judge, concurring:
I continue to believe that the “public forum” classifications artificially complicate the judicial assessment of time, place or manner restrictions. See Community for Creative Non-Violence v. Turner, 893 F.2d 1387, 1397-99 (D.C.Cir.1990) (concurring opinion). The present case seems a useful illustration; we would reach exactly the same result without public forum analysis. Whether the court is applying the “three-pronged” test for a time, place or manner restriction in a public forum, or a “reasonableness” test for such a restriction elsewhere, the key issue is the compatibility of the forbidden speech with the purposes to which the site is dedicated. Thus, in evaluating the solicitation ban in Kokinda, both the four-justice plurality and Justice Kennedy, concurring, addressed the compatibility of solicitation with the intended uses of the Post Office entrance walk, compare 110 S.Ct. at 3122-24 (plurality), with id. at 3125-26 (Kennedy, J.), though Justice Kennedy assumed that the walk might be a public forum and the plurality affirmatively found the opposite. Indeed, here the main role of “forum” analysis has been to extend the briefs, as both parties (necessarily) addressed the sidewalks’ characteristics both in the forum analysis and then in assessment of the ban; in addition, both briefs made that assessment under two assumptions, the existence and the non-existence of a public forum. And while forum analysis adds the allure of seemingly discrete analytic steps, the decisions suggest, as I argued earlier, that it adds little in real predictability.