Amicus Curiae Brief — Good News Club v. Milford Central School

NOV 30 2®eo ~

/ NOV 80 2000

No.99-2036

|

rn 5

IN THE ig 7"

Supreme Court of the United States

THE GoopD NEws CLUB, ANDREA FOURNIER, AND

DARLEEN FOURNIER,

Petitioners,

Vv.

MILFORD CENTRAL SCHOOL,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF OF LIBERTY COUNSEL AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Jerry Falwell, Jr. Mathew D. Staver

Virginia Bar No. 27396 (Counsel of Record)

LIBERTY COUNSEL Florida Bar No. 0701092

P.O. Box 542 Erik W. Stanley

Forest, VA 24551 Florida Bar No. 0183504

Joel L. Oster

Kansas Bar No. 50513

LIBERTY COUNSEL

210 E. Palmetto Ave.

Longwood, FL 32750

(407) 875-2100

TABLE OF CONTENTS

PAGE

WOR GPPUEOD vc cece cccnccvcccccessene -i-

TABLE OF AUTHORITIES ..................... -ili-

IT a nk ee a l

SUMMARY OF ARGUMENT ..................... 2

ee Ea Es ie ane eden nae 4

APPLYING A REASONABLENESS

STANDARD TO EVALUATE THE

EXCLUSION OF A SUBJECT MATTER

FROM A GENERALLY OPEN FORUM

WOULD UNDERMINE THE SUPREME

COURT’S PUBLIC FORUM DOCTRINE. .... 4

A.

The Traditional Public Forum. .............. 6

B.

The Designated Public Forum. .............. 7

Cc.

The Nonpublic Forum. ................... 10

Il.

THE DEVELOPMENT OF THE PUBLIC

FORUM DOCTRINE BY THE SECOND

CIRCUIT COURT OF APPEALS........... 15

A.

The Fifth Circuit Has Erroneously Adopted

the Second Circuit’s Forum Analysis......... 18

B.

The Tenth Circuit Has Erroneously Adopted

The Second Circuit’s Forum Analysis. ...... . 20

Il.

THE PROPER CONSTITUTIONAL

FRAMEWORK OF THE PUBLIC FORUM

i 21

CONCLUGION . ces cncseenee eee 24

TABLE OF AUTHORITIES

CASES:

Adderley v. Florida,

ETE 14

Board of Airport Comm's of Los Angeles v. Jews for Jesus,

ee avs ccecccerosaces 14

Bronx Household of Faith v. School District No. 10,

127 F.3d 207, cert. denied, 523 U.S. 1074

ag 10, 11, 15, 16, 17, 18

Campbell v. St. Tammany Parish School Board,

2000 WL 1597749 (S® Cir. 2000)............ 11,18

Capitol Square Review Advisory Bd. v. Pinette,

515 US. 753, 762(1995)............. | 24

Carey v. Brown,

447 U.S. 455(1980)......... i 7

City Council of Los Angeles v. Taxpayers for Vincent,

466 U.S. 789(1984) ...... 14

City of Madison Joint School District v. Wisconsin Public

Employment Relations Comm'n,

429 U.S. 167 (1976) 21

Cornelius v. NAACP Legal Defense and Ed. Fund, Inc.,

473 U.S. 788 (1985) §, 6, 9, 12, 14, 16, 17, 21

Deeper Life Christian Fellowship, Inc. v. Board of Educ.,

852 F.2d 676, 680 (2™ Cir 1988) 17

-iv-

Full Gospel Tabernacle v. Community Sch. Dist., 27,

164 F.3d 829 (2™ Cir. 1999)... 0... 17

Good News Club v. Milford Central School,

202 F.3d 502 (2™ Cir. 2000)......... 5, 11, 18, 23, 24

Greer v. Spock,

Pn <ccaucetseuateeeeeanes 14

Hague v. CIO,

4 | el errr ree eee 6

ISKCON v. Lee,

505 U.S. 672(1992) ........ 14, 21, 22

Lamb's Chapel v. Center Moriches Union Free Sch. Dist.,

508 US. 384 (1993) 8,9, 10, 13, 24

Lehman v. City of Shaker Heights,

418 US 298, 304 (1974) 11

Perry Educational Assoc. v. Perry Local Educator's Assoc.,

460 U.S. 37 (1983) 6, passim

Police Dept. of Chicago v. Mosley,

408 US. 92 (1972) 5

Rosenberger v. Rector & Visitors of the L/niversity of Virgima,

SIS US. 819(1995) 14,24

Summum v. Callaghan,

130 F 3d 906 (10* Cir 1997) 11, 20

lurner Broadcasting System, Inc. v. FCC,

$12 US 622 (1994) 5

United States Postal Service v. Council of Greenburgh,

453 U.S. 114 (1981)

Widmar v. Vincent,

454 U.S. 263 (1981)

7, 10, 14

l

INTEREST OF AMICI

Liberty Counsel is a non-profit civil liberties education

and legal defense organization.’ Liberty Counsel provides

education and legal representation regarding the Free Speech,

Free Exercise, and Establishment Clauses of the First

Amendment to the United States Constitution. Attorney

Mathew D. Staver and Liberty Counsel have been actively

engaged in defending the right of equal access to public fora

throughout the nation.

Liberty counsel defends the right of equal access to

public fora. Liberty Counsel is very concerned about the

Second Circuit’s treatment of the public forum doctrine.

Allowing the Second Circuit’s public forum doctrine to go

unabated by this Court will cause grave harm to the public

forum doctrine. Today the disfavored speech in the Second

Circuit is religious. Tomorrow the disfavored speech may

include a much broader category.

Liberty Counsel defends the right of all people to have

equal access to public fora, and believes that if a subject matter

is banned from the fora, the government must show a

compelling interest of the highest order, which interest must be

achieved in the least restrictive means available.

' Liberty Counsel files this brief with the consent of all parties.

The letters granting consent are on file with this Court. Counsel

for a party did not author this brief in whole or in part. No

person or entity, other than Amicus Curiae, its members, or its

counsel made a monetary contribution to the preparation and

submission of this brief.

2

SUMMARY OF ARGUMENT

The Supreme Court has created the public forum

doctrine to determine when regulations or restrictions on speech

violate the First and Fourteenth Amendments of the United

States Constitution. The public forum doctrine recognizes three

types of fora: (1) the traditional public forum, (2) the designated

public forum, and (3) the non-public forum. A traditional public

forum is a place that has historically been used for

communicative activity. Traditional public fora include public

streets, parks, and sidewalks. Any regulation on the content of

speech in a traditional public forum must be necessary to serve

a compelling governmental interest and narrowly drawn to

achieve that interest. If the regulation is content-neutral, the

government may impose reasonable time, place and manner

regulations if they are narrowly tailored to serve a significant

government interest and if they leave ample alternative channels

of communication open.

| A designated public forum is a place where, by

designation, the state has created a generally open forum for

expressive activity. Any regulation on the content of speech in

a designated public forum must be necessary to serve a

compelling governmental interest and narrowly drawn to achieve

that interest. If the regulation is content-neutral, the

government may impose reasonable time, place and manner

regulations if they are narrowly tailored to serve a significant

government interest and if they leave ample alternative channels

of communication open. The test applied to a designated public

forum is identical to the test applied to a traditional public

forum. The difference between the two fora is that the

government may close the designated public forum.

A nonpublic forum is a place that is neither traditionally

held out to the public, nor designated by the government, to be

used for communicative activity. Examples of nonpublic fora

3

include, but are not limited to, international airports and

telephone poles. Any regulation on the content of speech in a

nonpublic forum must be reasonable in light of the purpose

served by the forum and viewpoint neutral.

The Second Circuit has abandoned the public forum

doctrine created by the United States Supreme Court in two

ways. First, while the Second Circuit recognizes the three

forums created by this Court, the Circuit has created a new sub-

category under the designated public forum, which the Circuit

refers to as a limited public forum. Second, the Circuit changed

the standard of review for content-based restrictions in the

designated public forum. The Second Circuit applies a

reasonableness standard to restrictions on the content of speech

in a designated public forum, and to content-based restrictions

under the “sub-category” forum called a limited public forum.

By applying a reasonableness standard instead of strict scrutiny

standard, the Second Circuit has allowed a state actor to escape

the constitutional restrictions on content-based restrictions. The

state can now do an end-run around the Constitution and

discriminate against certain groups or ideas under the guise of

a “limited” public forum.

The proper constitutional framework for the public

forum doctrine should include the three classifications of public

fora as created by this Court. There are three classifications of

public fora: (1) a traditional public forum, (2) a designated

public forum, and (3) a nonpublic forum. Traditional public

fora include streets, parks and places that by long tradition have

been devoted to assembly and debate. Restrictions of speech in

a traditional fora must be narrowly drawn to achieve a

compelling state interest. In addition, reasonable time, place and

manner regulations are permissible if they are narrowly tailored

to serve a significant government interest and if they leave ample

alternative channels of communication open.

4

A designated public forum consists of public property

which the state has generally opened, either by policy or

practice, for the public as a place for expressive activity or

indiscnminate use. A state may not enforce content-based

exclusions from a designated public forum unless the restrictions

serve a compelling state interest and are narrowly drawn to

achieve that interest. A designated public forum may be created

for a limited purpose such as use by certain groups or for the

discussion of certain subjects However, subject matter

restrictions must survive a strict scrutiny test. Reasonable time,

place and manner regulations are permissible if they are

narrowly tailored to serve a significant government interest and

if they leave ample alternative channels of communication open

A nonpublic forum is government property that has not

been opened for public speech either by tradition or by

designation Any content-based restriction must be reasonable

in light of the purpose served by the forum and viewpoint

neutral

ARGUMENT

L.

APPLYING A REASONABLENESS STANDARD TO

EVALUATE THE EXCLUSION OF A SUBJE@)

MATTER FROM A GENERALLY OPEN FORI™M

WOULD UNDERMINE THE SUPREME COURT'S

PUBLIC FORUM DOCTRINE.

The Supreme Court utilizes the public forum doctrine in

determining when regulations excluding speech on state

property violate the First and Fourteenth Amendments of the

United States Constitution. There are two guiding principles

behind the Supreme Court’s public forum doctrine. First, the

government must not discriminate against speech based on the

5

substantive content of that speech. “It is axiomatic that the

government may not regulate speech based on its substantive

content of the message it conveys.” Police Dept. of Chicago v.

Mosley, 408 U.S. 92 (1972); Turner Broadcasting System, Inc.

v. FCC, $12 US. 622, 641-643 (1994) (stating that

discrimination against speech because of its message is

presumed to be unconstitutional). This principle of non-

discrimination should be the predominate concept behind the

public forum doctrine. As Judge Jacobs said in his dissent

below, “Even if one could not say whether the Club’s message

conveyed religious content or religious viewpoints on otherwise-

permissible content, we should err on the side of free speech.

The concerns supporting free speech greatly outweigh those

supporting regulation of the limited public forum.” Good News

Club v. Milford Central School, 202 F.3d 502, 515 (2™ Cir.

2000).

The second principle guiding the Supreme Court’s public

forum jurisprudence (outside the traditional public forum) is that

the government, like the private owner of property, may legally

preserve the property under its control for the use to which it is

dedicated. See Cornelius v. NAACP Legal Defense & Ed.

Fund. Inc., 473 U.S. 788, 800 (1985). This Court’s public

forum doctrine incorporates these two principles in determining

if restrictions on the content of speech are unconstitutional. The

public forum doctrine should not, however, be used to allow the

state to make an end-nin around the Constitution by

discriminating against any group based on the content of speech.

The principle that the government may legally preserve the

property under its control for its dedicated use should be applied

cautiously. It should only be used to the extent it allows the

government to properly manage its property, in a manner similar

to a business, according to the purpose for which the property

was dedicated However, allowing government to manage its

property does not mean the government has a license to engage

in content-based discnmination

In determining whether a regulation of speech by a state

actor on property owned by the government violates the First

and Fourteenth Amendments, the first inquiry is to determine the

type of forum subject to the regulation.

The Court has adopted a forum analysis as a means of

determining when the Government’s interest in limiting the use

of its property to its intended purpose outweighs the interest of

those wishing to use the property for other purposes.

Accordingly, the extent to which the Government can control

access depends on the nature of the relevant forum. See

Cornelius, 473 U.S. at 800.

- This Court has recognized three types of fora: the

traditional public forum, the public forum created by

government designation, and the nonpublic forum. /d. at 802.

A.

The Traditional Public Forum.

Traditional public fora are places “which by long

tradition or by government fiat have been devoted to assembly

and debate,” and where “the rights of the state to limit

expressive activity are sharply circumscribed.” Perry Educ.

Ass'n v. Perry Local Educators’ Ass'n, 460 U S. 37, 45 (1982).

Traditional public fora include streets, sidewalks and parks

which “have immemorially been held in trust for the use of the

public, and, time out of mind, have been used for purposes of

assembly, communicating thoughts between citizens, and

discussing public questions.” Hague v. C/O, 307 U.S. 496, 515

(1939); see also Perry Educ. Ass'n, 460 US. at 45.

| In order to regulate the content of speech in a traditional

public forum, the regulation must pass strict scrutiny. “Because

7

a principal purpose of traditional public fora is the free exchange

of ideas, speakers can be excluded from a public forum only

when the exclusion is necessary to serve a compelling state

interest and the exclusion is narrowly drawn to achieve that

interest.” Perry Educ. Ass'n., 460 U.S. at 45; see also Carey v.

Brown, 447 U.S. 455, 461 (1980) (“For the state to enforce a

content-based exclusion [in a traditional public forum] it must

show that its regulation is necessary to serve a compelling state

interest and that it is narrowly drawn to achieve that end.”) The

state may also enforce regulations of the time, place, and manner

of expression which are content-neutral, if the regulation is

narrowly tailored to serve a significant government interest, and

leaves open ample alternative channels of communication. See

Perry Educ. Ass'n., 460 U.S. at 45; see also United States

Postal Service v. Council of Greenburgh, 453 U.S. 114, 132

(1981).

B.

The Designated Public Forum.

The designated public forum is the second type of forum

under this Court’s public forum doctrine. In addition to

traditional public fora, a public forum may be created by

government designation ofa place or channel of communication

for use by the public at large for assembly and speech, for use by

certain speakers, or for the discussion of certain subjects. See

Perry Educ. Ass'n., 460 U.S. at 45-46, n. 7; Widmar v. Vincent,

454 U.S. 263 (1981); City of Madison Joint Sch. Dist. v.

Wisconsin Public Employment Relations Comm'n, 429 U.S.

167 (1976). A designated public forum consists of public

property which the government has opened for use by the public

as a place for expressive activity. The Constitution requires

exclusions from a forum generally open to the public to survive

a strict scrutiny test even if the government was not required to

create the forum in the first place. See Perry Educ. Ass'n., 460

U.S. at 45-46.

While the state is not required to keep open a designated

forum, the state may only discriminate against the content of

speech in a designated public forum if the restriction is necessary

to serve a compelling state interest and is narrowly drawn to

achieve that interest (the same test applied to content

restrictions in a traditional public forum). Jd; see also Widmar,

454 U.S. at 269-270 (“Although a state is not required to

indefinitely retain the open character of the facility, as long as it

does so it is bound by the same standards as apply in a

traditional public forum.”) Reasonable time, place and manner

regulations are permissible if they are narrowly tailored to serve

a significant government interest and if they leave ample

alternative channels of communication open. See Perry Educ.

Ass'n., 460 U.S. at 45-46.

A central inquiry into designated public fora that this

Court has not yet fully addressed involves the bounds and limits

of a designated public forum. In other words, how open does

a forum have to be before it is considered a designated public

forum? In Lamb’s Chapel v. Center Moriches Union Free

School District, the church argued, in essence, that because the

school district had opened the doors to its facilities so wide, that

it had created a designated public forum so that “restrictions on

communicative uses of the property were subject to the same

constitutional limitations as restrictions in traditional public

forums such as parks and sidewalks.” 508 U.S. 384, 391

(1993). While recognizing that the church’s argument had

considerable force, the Court concluded that it need not decide

the issue in that case. See Jd. at 391-92. Instead, the Court held

that the school district engaged in unconstitutional viewpoint

discrimination as it denied the church access to school property

solely on the basis that it did not want a Christian viewpoint to

be presented. See Jd. at 392.

9

This Court has hinted at standards to be used in

determining whether a designated public forum had been

created. The government creates a designated public forum by

intentionally opening a nontraditional forum for public

discourse. See Cornelius, 473 U.S. at 802. This Court has

looked to the policy and practice of the government to ascertain

whether it intended to designate a place not traditionally open to

assembly and debate as a public forum. See Perry Educ. Ass'n.,

460 U.S. at 47. In addition, this Court has examined the nature

of property and its compatibility with expressive activity to

determine the government’s intent. In Widmar, this Court found

that a state university with an express policy of making its

meeting facilities available to registered student groups had

created a public forum for their use. See Widmar, 454 US. at

267. The Court noted that the university’s policy evidenced a

clear intent to create a public forum. See /d. Also important to

the Court’s analysis was that a university campus, at least as to

its students, possessed many of the characteristics of a

traditional public forum. See /d. at 267 n. 5. Finally, this Court

will not find that a public forum has been created in the face of

clear evidence of a contrary intent, nor will it infer that the

government intended to create a public forum when the nature

of the property is inconsistent with expressive activity. See

Cornelius, 473 U.S. at 788.

Courts have often confused the “designated” and the

“limited” forums and have used those terms interchangeably

For example, in Perry, this Court, while describing the second

classification of fora subject to strict scrutiny, stated, “a public

forum may be created for a limited purpose such as use by

certain groups or for the discussion of certain subjects.” Perry

Educ. Ass'n, 460 U.S. at 46 n.7 (emphasis added). In Lamb's

Chapel, this Court, in describing the holding of the Second

Circuit, stated, “It held that the school property, when not in use

for school purposes, was neither a traditional nor a designated

public forum; rather, it was a limited public forum open only for

10

designated purposes.” Lamb's Chapel, 508 U.S. at 390

(emphasis added). The confusion usually arises when the courts

suggest that the government may limit the designated public

forum for its intended use. The confusion is magnified in the

Second Circuit where they have combined the limited and the

designated forum into one category. See Bronx Household of

Faith v. Community School Dist. # 10, 127 F.3d 207 (2™ Cir.

1997), cert. denied, 523 U.S.1074 (1998) (referring to the

second category of fora as “the designated public forum,

sometimes called the ‘limited public forum.”)

Cc.

The Nonpublic Forum.

The third forum in the public forum doctrine is the

nonpublic forum. This Court has recognized that the “First

Amendment does not guarantee access to property simply

because it is owned or controlled by the government.” United

States Postal Service, 453 U.S. at 129. Public property which

is not by tradition or designation a forum for public

communication is a nonpublic forum, governed by different

standards. See id “The State, no less than a private owner or

property, has power to preserve the property under its control

for the use to which it is lawfully dedicated.” Jd.

In addition to time, place, and manner regulations, the

state 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 of the speaker’s view. See id; Perry Educ. Ass'n., 460

U.S. at 49. (“Control over access to a nonpublic forum can be

based on subject matter and speaker identity so long as the

distinctions drawn are reasonable in light of the purpose served

by the forum and are viewpoint neutral.”) Consequently, this

Court has stated that a speaker may be excluded from a

ll

nonpublic forum if the speaker wishes to address a topic not

encompassed within the purpose of the forum. See Lehman v.

City of Shaker Heights, 418 U.S. 298, 304 (1974).

The nonpublic forum, however, should not be used to

provide an end-run around the public forum doctnne. Following

the lead of the Second Circuit, the Fifth and Tenth Circuits have

essentially replaced the designated forum with the nonpublic

forum, and thus changed the standard of review for any speech

restriction in a designated public forum. See Campbell v. Si.

Tammany Parish Schoot Board, 2000 WL 1597749 (5* Cir),

Summum v. Callaghan, 130 F 3d 906 (10* Cir. 1997), Bronx

Household of Faith, \27 F.3d at 207. The Second Circuit has

upset the designated public forum by applying a reasonableness

standard to any content based restriction in a designated public

forum.

For example, in Good News Club, the school opened its

facilities to use by the general public “for holding social, civic

and recreational meetings and entertainment events and other

uses pertaining to the welfare of the community.” 202 F 3d at

504. Access was limited in that the facilities were not permitted

to be used by any individual or organization for religious

purposes. See id. In essence, the school was “generally” open

to the public, except if such use had a religious purpose. The

Second Circuit approved this speech restriction, claiming that

the school had created a limited public forum, and applied a

reasonableness test to the restriction. See id. at 509.

A review of Supreme Court cases which defined the

boundaries and parameters of the nonpublic forum illustrate the

narrow application that should accompany this forum. In Perry,

a union and its members brought suit challenging a provision of

a collective bargaining agreement between a school distnct and

the exclusive bargaining representative that granted the

bargaining representative exclusive access to teacher mailboxes

12

and the interschool mail system to the exclusion of rival unions

See Perry Educ. Ass'n, 460 US. at 37. This Court held that

public property which is not by tradition or designation a forum

for public communication may be reserved by the state for its

intended purposes, communicative or otherwise, as long as

regulation on speech is reasonable and not an effort to suppress

expression merely because the public officials opposed the

speaker's views. /d at 55

Perry was decided under a nonpublic forum category

The Court held that the “normal and intended function of the

school mail facilities is to facilitate internal communication of

school related matters to teachers.” /d at 46. The internal mai!

system was not held open to the general public This Court held

that the school district mailboxes were a nonpublic forum, and

consequently applied a reasonableness test in denying the

request to have access to the mail system /d

This Court addressed the issue of nonpublic fora two

years later in Cornelius. See 473 U.S. at 788 In Cornelius. a

legal defense fund (“Fund”) was denied access to the Combined

Federal Campaign (“CFC”), a charity drive aimed at federal

employees and military personnel The Fund swed, claiming that

its exclusion from the fund raising campaign violated the First

Amendment right to free speech. This Court held that the

government does not violate the First Amendiment in a

nonpublic forum when it limits participation in a charity drive

aimed at federal employees in order to minimize disruption of

the federal workplace, to ensure the success of the fund raising

effort or to avoid the appearance of political favoritism without

regard to the viewpoint of the excluded groups See id at 808

The case, however, was remanded to determine whether the

Fund's exclusion was due to viewpoint discrimination.

In reaching its holding, the Court applied a public forum

analysis. The Court recognized the three classifications of fora

13

(1) a traditional public forum, (2) a designated public forum, and

(3) a nonpublic forum. See id at 799. This Court stated that

the first two categories required the government to pass a strict

scrutiny test in order to regulate the content of speech in those

forums. The third category, a nonpublic forum, required a more

lenient test. In this category, access can be restricted as long as

the restrictions are reasonable and are not an effort to suppress

expression merely because public officials oppose the speaker's

view. See id at 805. This Court held that the fund raising

campaign was a nonpublic forum, and consequently applied the

reasonableness standard. It is important to note that this case

cites to Perry where this Court stated that in a designated public

fora, the state can place regulations on the identity of the

speaker and the subject matter if the regulations pass a strict

scrutiny review. See id. at 799 (citing Perry Educ. Ass'n., 460

US. at 46) (“A public forum may be created for a limuted

purpose such as use by certain groups or for the discussion of

certain subjects.”). Again, the forum in question was # fund-

raising campaign that was only open to certain groups The

forum in question was not a forum that was generally apen to

the public.

In Lamb's Chapel, a church brought sunt alleging that a

school district violated its constitutional nghts by refusing the

church’s request to use school fiacilities for a religious onented

film series on family values and child rearing. See S08 US at

384. The Court held that the school district violated the free

speech clause of the First Amendment by denying the church

access to the school premises solely because the film dealt with

the subject from a religious standpoint. See id.

While the prior “forum” cases clearly discussed this issue

within the three distinct public fora , i.e., traditional, designated

and nonpublic, the Court in Lamb's Chapel decided not to

classify the forum because the case clearly involved viewpoint

discrimination (which is always unconstitutional irrespective of

14

the forum) In other words, even assuming that the forum was

a nonpublic forum, the restrictions could not survive because

they were not viewpoint neutral See id at 392-93

Finally, in Rosenberger, a university student organization

which published a newspaper with a Christian editorial

viewpoint brought suit against the university challenging its

denial of funds from a fund created by the university to make

payments to outside contractors for printing costs of

publications of student groups. See 515 US. at 819. This

Supreme held that the denial of funding amounted to viewpoint

discrimination. See id at 835. This Court, in applying the

nonpublic forum standard to the decision to exclude the

religious paper, held that the denial of funding amounted to

viewpoint discrimination and thus unconstitutional See id

In summary, this Court has never declared that a public

facility that is generally opened to the public, similar to the

forum opened’by Milford Central School, is a nonpublic forum,

or a even a lsmited forum, subject to a reasonableness review.

Some instances of a nonpublic forum which this Court has

addressed include a post office, a school mail room, a military

base, airports, utility poles, and transportation facilities. See

e.g., id, ISKCON v. Lee, 505 U.S. 672 (1992); Bd. of Airport

Comms of Los Angeles v. Jews for Jesus, 482 U.S. 569 (1987);

Cornelius, 473 U.S. at 788; City Council of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789 (1984); Perry Educ.

Ass'n., 460 U.S. at 37, United States Postal Service., 453 US.

at 114 Greer v. Spock, 424 U.S. 828 (1976); Adderley v.

Florida, 385 U.S. 39 (1966). These nonpublic fora were not

generally open to the public for expressive activity. However,

the fora in Milford Central School has been opened to the

community for various forms of expression. The forum in the

Milford Central School is clearly a designated public forum.

Subject matter exclusions from this forum must survive strict

scrutiny.

15

IL

THE DEVELOPMENT OF THE PUBLIC FORUM

DOCTRINE BY THE SECOND CIRCUIT COURT OF

APPEALS.

While the Second Circuit claims to follow this Court’s

public forum doctrine, the Circuit has significantly altered the

doctrine. In essence, the Circuit has replaced a strict scrutiny

standard with a reasonableness standard to content based

restrictions in the second classification of forums, which the

Second Circuit describes as “the designated public forum,

sometimes called the ‘limited public forum.’”” Bronx Household

of Faith v. Community School Dist. # 10, 127 F.3d 207 (2™ Cir

1997), cert. denied, 523 U.S.1074 (1998). The limited public

forum created by the Second Circuit looks like the designated

public forum created by this Court, yet applies a reasonableness

test to any speech restrictions in the limited public forum.

According to the Second Circuit, the nature of restrictions on

speech is based on “the nature of the forum in which the speech

is delivered.” Jd at 211. There are three general types of

forums in this regard: (1) traditional public forums, (2)

designated or limited public forums, and (3) nonpublic forums.

See id.

The Second Circuit describes this Court’s treatment of

the public forum doctrine as follows:

The Supreme Court has identified three types of

forums: the traditional public forum; the

designated public forum, sometimes called the

“limited public forum”; and the nonpublic forum.

_ . . Limited public forums are “created by

government designation of a place or channel of

communication for use by the public at large for

assembly and speech, for use by certain

16

speakers, or for the discussion of certain

subjects.” But restrictions on access based on

speaker identity and subject matter are

permissible only if “the distinctions drawn are

reasonable in light of the purpose served by the

forum and are viewpoint neutral.” Where the

proposed use falls outside of the limited forum,

“the State is subject to only minimal

constitutional scrutiny.” A nonpublic forum is

government property that has not been opened

for public speech either by tradition or by

designation. In such a forum, the government

may make “distinctions in access on the basis of

subject matter and speaker identity.”

Id. at 211 (citations omitted).

The Second Circuit has misread this Court’s opinion

concerning the public forum doctrine. In Bronx Household of

Faith, the Second Circuit, in describing the limited public forum,

quoted from Cornelius, stating that limited public forums are

“created by government designation of a place or channel of

communication for use by the public at large for assembly and

speech, for use by certain speakers, or for the discussion of

certain subjects.” Bronx Household of Faith, 127 F.3d at 211,

quoting Cornelius, 473 U.S. at 802. The Second Circuit then

stated that “restrictions on access based on speaker identity and

subject matter are permissible if ‘the distinctions drawn are

reasonable in light of the purpose served by the forum and are

viewpoint neutral.’” Bronx Household of Faith, 127 F.3d at

211, (quoting Cornelius, 473 U.S. at 806).

The Second Circuit erred, however, as the section of

Cornelius that Bronx Household of Faith cites to refers to a

designated public forum, and not a nonpublic forum. This is a

critical distinction as this Court in Cornelius stated that “when

=_—— —

17

the Government has intentionally designated a place or means of

communication as a public forum speakers cannot be excluded

without a compelling governmental interest.” Cornelius, 473

U.S. at 800. In other words, the Second Circuit cited to

Cornelius for support to apply a reasonableness standard to

restrictions in the second forum classification, which the Second

Circuit describes as designated or limited, while Cornelius

actually requires a strict scrutiny standard.

The Second Circuit effectively has abolished the

designated public forum by combining the designated public

forum with the limited public forum and applying a

reasonableness standard. Based on the public forum analysis

applied by the Second Circuit, there is no difference between a

“designated public forum, sometimes called the “limited public

forum” and a “nonpublic forum.” According to the Second

Circuit, limited public fora are those that the government has

designated as a “place . . . of communication for use by the

public at large for assembly and speech, for use by certain

speakers, or for the discussion of certain subjects.” Bronx

Household of Faith, 127 F.3d at 211 (quotations omitted).

According to the Second Circuit, N.Y. Education Law § 414

and policies promulgated thereunder create limited public fora.

See, e.g., Full Gospel Tabernacle v. Community Sch. Dist., 27,

164 F.3d 829, 829 (2™ Cir. 1999) (per curiam), aff’g 979 F.

Supp. 214, 220 (S.D.N.Y. 1997); Bronx Household of Faith,

127 F.3d at 215; Deeper Life Christian Fellowship, Inc. v. Bd.

of Educ., 852 F.2d 676, 680 (2™ Cir. 1988)

The Second Circuit has applied the same reasonableness

standard, i.e., content based restrictions are permissible if they

are reasonable in light of the purpose served by the forum and

are viewpoint neutral, to the designated public forum, which the

Circuit sometimes refers to as a the limited public forum. See

Bronx Household of Faith, 127 F.3d at 211. The Second Circuit

has misconstrued the proper standard to apply to restrictions in

a designated and limited public forum. The Second Circuit

does not apply the strict scrutiny test, but rather a

reasonableness test. In the Second Circuit, restrictions on

speech in a limited public forum will withstand First Amendment

challenge if they are reasonable and viewpoint neutral. See

Good News Club v. Milford Central School, 202 F.3d 502

(2000); Bronx Household of Faith, 127 F.3d at 214. The

Second Circuit applies strict scrutiny to content-based

restrictions if the subject matter is permitted (which under the

Supreme Court’s precedent would be viewpoint) and

reasonableness to exclude subject matter that is not permitted

(where the Supreme Court precedent would apply strict

scrutiny). The Second Circuit’s approach to the public forum

doctrine destroys the public forum.

A.

The Fifth Circuit Has Erroneously Adopted the Second

Circuit’s Forum Analysis.

The Second Circuit’s approach is a cancer that is eating

away at this Court’s public forum doctrine. Now, this cancer

has spread and is contaminating the public forum doctrine in

other circuits. The Fifth Circuit has now joined the Second

Circuit in misconstruing the public forum doctrine, and

particularly, the appropriate standard of review for content

based restrictions to a designated public forum. In Campbell v.

St. Tammany Parish School Board, 2000 WL 1597749 (5"

Cir.), a case similar to Good News Club, the plaintiff requested

to use the school facilities to “worship the Lord in prayer and

music” and to “pray about” and “engage in religious and Bible

instruction with regard to” various issues. The school board

denied the plaintiff's request, citing a school board policy that

permitted its facilities to be used for “civic and recreational

meetings and entertainment and other uses pertaining to the

welfare of the community,” but not for partisan political activity,

19

for-profit fund-raising, and “religious services or religious

instruction.” Jd. at *1. The court stated:

In sum, the record shows that St. Tammany

schools were overwhelmingly used by groups for

activity of interesi to students or parents. Such

a limited set of uses does not create a public

forum, as the Supreme Court held in Perry

Education Association v. Perry Local

Educators’ Association . . . St. Tammany’s

policy is supported by rational reasons sufficient

to rebut any inference that its decision to exclude

religious services was viewpoint discriminatory.

Especially where, as here, the school district has

affirmative evidence that its motive was not

viewpoint discrimination, such reasons need only

be rational. They need not be compelling.

Id. at 2-3.

In a holding similar to the Second Circuit’s, the Fifth

Circuit held that although the school board had created a forum

that was open to the general public for uses pertaining to the

welfare of the community, yet had specifically excluded any

religious instruction, it had created a limited public forum

subject only to a reasonableness standard. /d. 5.

Judge Jones, writing for the dissent of five judges to the

denial of en banc review, recognized that the majonty was

recognizing the wrong forum and applying the wrong standard,

stating “[w]ith due respect, the panel is looking through the

wrong end of the telescope. Such a narrow view of the

conditions under which a designated public forum can anise 1s

incorrect.” Jd. at 6. Judge Jones stated that the approach taken

by the majority “conflicts with the Supreme Court’ s equal access

and viewpoint discrimination cases, decisions of five other

20

circuit courts, and previous Fifth Circuit cases.” /d at 6.

In the dissent, Judge Jones stated ,““When public facilities

are available for ‘indiscriminate use by the general public’, a

designated public forum exists, and content-based exclusion of

speakers must survive strict scrutiny review.’” /d. at 6. In

determining whether a designated public forum had been

created, “all that is required is that the forum be ‘generally open’

to the public.” Jd. “Once a forum is opened up to assembly or

speaking by some groups, government may not prohibit others

from assembling or speaking on the basis of what they intend to

say.” Id. The dissent concluded that “since the broad ‘welfare

of the community’ standard and the actual use of the facilities,

rather than the district’s exclusion of three categories of speech,

determine the type of forum” it was obvious that the school

board had created a public forum subject to strict scrutiny

review. /d. at 7.

The Tenth Circuit Has Erroneously Adopted The Second

Circuit’s Forum Analysis.

The cancer that is eating away at the First Amendment

has also spread to the Tenth Circuit. In Summum v. Callaghan

130 F.3d 906 (1997), a county denied a church’s request to

erect a religious monolith display near a Ten Commandments

monolith located on the front lawn of the county courthouse.

The Court adopted the Second Circuit’s flawed public forum

doctrine by recognizing a subcategory to the designated public

forum, called a limited public forum, subject to a reasonableness

standard. /d. at 915. By allowing for the circuits to create a new

classification of fora, the limited public forum as a subset of the

designated public forum, the stage is set for state actors to

openly discriminate against religious expression while only

having to comply with a reasonableness standard.

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IIL.

THE PROPER CONSTITUTIONAL FRAMEWORK OF

THE PUBLIC FORUM DOCTRINE.

This Court should maintain the three classifications of

public fora, as described in Perry Education Association v.

Perry Local Educators’ Association, 460 U.S. 37 (1983).

There are three classifications of public fora: (1) a traditional

public forum, (2) a designated public forum, and (3) a nonpublic

forum. Traditional public fora include streets, parks and places

that “by long tradition ... have been devoted to assembly and

debate.” /d. at 45. Restrictions on speech in a traditional public

forum are “subject to the highest scrutiny” and “survive only if

they are narrowly drawn to achieve a compelling state interest.”

ISKCON v. Lee, 505 U.S. 672 (1992). In addition, reasonable

time, place and manner regulations are permissible if they are

narrowly tailored to serve a significant government interest and

if they leave ample alternative channels of communication open.

See Perry Educ. Ass'n., 460 U.S. at 45-46.

A designated public forum consists of public property

which the state has generally opened, either by policy or

practice, for the general public as a place for expressive activity

or indiscriminate use. Even though a state is not required to

open a public forum, a state may not enforce content-based

exclusions from a forum generally open to the public unless the

restrictions serve a compelling state interest and is narrowly

drawn to achieve that interest. A designated public forum may

be created for a limited purpose such as use by certain groups or

for the discussion of certain subjects. See Cornelius v. NAACP

Legal Defense and Educ. Fund, Inc., 473 U.S. 788 806 (1985);

Widmar v. Vincent, 454 U.S. 263 (1981); City of Madison Joint

School District v. Wisconsin Public Employment Relations

Comm'n, 429 U.S. 167 (1976). However, subject matter

22

exclusions must be subject to strict scrutiny. Reasonable time,

place and manner regulations are permissible if they are

narrowly tailored to serve a significant government interest and

if they leave ample alternative channels of communication open.

See Perry Educ. Ass'n., 460 U.S. at 45-46.

A nonpublic forum is government property that has not

been opened for public speech either by tradition or by

designation. See id. at 46. “The State, no less than a private

owner of property, has power to preserve the property under its

control for the use to which it is lawfully dedicated.” /d. at 129.

However, any restriction must be construed in light of the

purpose to which the property was “lawfully dedicated.” For

example, if the property is generally open to the public for civic,

recreational, and community welfare uses, then it is not a

limited, nonpublic forum. In such a nonpublic forum, the

government may make distinctions in access on the basis of

subject matter and speaker identity only if the distinctions drawn

are reasonable in light of the purpose served by the forum and

are viewpoint neutral. /d at 49. For example, in /SKCON v.

Lee, this Court held that an airport was a nonpublic forum and

that any restrictions on access only had to be reasonable in light

of the purpose of the forum and viewpoint neutral. See 505

U.S. at 672.

In determining whether a forum is a designated public

forum or a nonpublic forum, the courts should not engage in a

“counting” exercise. Just because a state has opened its

facilities to only ten groups does not mean that the forum is

nonpublic and limited. When a state has opened its facilities to

nine out of ten subject matters, then the proper exercise for the

courts is to determine if excluding the tenth subject matter is

supported by a compelling governmental interest and narrowly

tailored to achieve that interest. This is the only way to keep the

vibrancy of the designated forum. This Court should not engage

in counting the number of subject matters permitted to

23

determine whether the forum is a designated or nonpublic

forum. To be “generally” opened to the public does not require

a mathematical subject matter count.

By using the public forum doctrine adopted by the

Second Circuit, state actors are allowed to make an end-run

around the First Amendment, and are essentially given a green

light to discriminate based on speech content. The state actor

in the Second Circuit may open the use of its facilities to any

subject matter, except the subject matter with which it disagrees.

For example, in the present case, the Milford Central School has

opened the use of its facilities to essentially any subject matter,

except religion. New York law states that the district facilities

may be used for “holding social, civic, and recreational meeting

and entertainment events and other uses pertaining to the

welfare of the community.” However, “school premises shall

not be used by any individual or organization for religious

purposes.” See Good News Club, 202 F.3d at 503-04. It is

difficult to imagine a use that would not fit under the description

of “pertaining to the welfare of the community.” Consequently,

by specifically omitting anything with a religious purpose, yet

opening up its facilities to the general public for anything

pertaining to the welfare of the community, Milford Central

School has made an end-run around the Constitution and has

discriminated against religious speech. By declaring that the

forum created by Milford Central School District is a limited

forum, the Second Circuit has essentially eliminated the

designated public forum category.

Applying the proper constitutional framework to the

case at hand results in the Milford Center School’s exclusion of

the Good News Club to be found unconstitutional. First, when

Milford Central School opened its facilities to the general public

for “uses pertaining to the welfare of the community”, the

forum had been “generally open” to the public, and a designated

public forum was created. In order for the exclusion of the

24

Good News Club to be upeld, the exclusion must serve a

compelling governmental interest and be the least restrictive

means of accomplishing that interest. Milford Central School

does not have a compelling interest to exclude the Good News

Club. Their only possible interest is to avoid an Establishment

Clause violation, which this Court has rejected as a valid reason

to deny free speech rights to religious organizations. See

Rosenberger, 515 U.S. at 839; Capitol Square Review Advisory

Bd. v. Pinette, 515 U.S. 753, 762 (1995); Lamb's Chapel, 508

U.S. at 392; Even assuming that the state has a compelling

interest to exclude the Good News Club (which it clearly does

not), total exclusion of any group with a “religious purpose” is

not the least restrictive means of achieving that interest.

Consequently, the exclusion of the Good News Club violates the

First and Fourteenth Amendments of the United States

Constitution.

CONCLUSION

For the foregoing reasons, the decision of the Court of

Appeals for the Second Circuit should be reversed.

Respectfully submitted,

Jerry Falwell, Jr. Mathew D. Staver

Virginia Bar No. 27396 (Counsel of Record)

LIBERTY COUNSEL Florida Bar No. 0701092

P.O. Box 542 Erik W. Stanley

Forest, VA 24551 Florida Bar No. 0183504

Joel L. Oster

Kansas Bar No. 50513

LIBERTY COUNSEL

210 E. Palmetto Ave.

Longwood, FL 32750

(407) 875-2100