Location

PUBLIC PROPERTY

What's the best location for my free-speech activity?

Although the First Amendment gives you the right to decide where best to express yourself, your right to exercise your free-speech rights may hinge upon exactly where you choose to exercise those rights. The U.S. Supreme Court uses a Federal Forum Analysis to determine what kinds of speech are appropriate in which publicly owned locations:

1. Traditional Public Forums: Is it a sidewalk, a street or a public park? If the answer is yes, you're holding your protest at a traditional public forum, where speech may only be restricted through reasonable time, place and manner restrictions.

2. Designated Public Forums: Other spaces may receive the same protection as traditional forums because the government has opened them up to be used for speech activities. Once the government treats a public venue as available to some for non-commercial speech, it must be made available to all. Common examples of designated public forums include public auditoriums, the steps of city hall and plazas in front of public buildings.

3. Non-Public Forums: In other venues, your rights are less clearly protected. At military bases, airport terminals, or the entrance to a post office, for example, reasonable prohibitions and restrictions may be upheld, as long as they are objectively applied and do not favor one side of an issue over the other. The government cannot discriminate based on viewpoint, even in a non-public forum.

How are Free Speech Locations Assessed under State Law?

California courts sometimes use the federal forum analysis to evaluate limits on speech on public property, but they have also used another test—the "basic incompatibility" test. Under that test, expressive activity on government property may only be prohibited if the speech is incompatible with the normal activity of the venue. What does that mean in the real world? It means leafleting at a train station or a prison parking lot may be approved, while forcing nurses to weave around solicitors inside a hospital ward will not be. Relevance matters, too: the courts are more likely to give the nod to a location when it is an actual or symbolic target of your protest.

SCHOOLS, UNIVERSITIES, MEDICAL CENTERS AND HOUSES OF WORSHIP

Can public universities or college campuses restrict protests?

You should be allowed to protest on the outdoor streets and plazas of public college and university campuses, subject to reasonable time, place, or manner restrictions. A public college cannot allow protests on one side of an issue but prohibit protests on the other side. But it may restrict speech activities that unduly interfere with classes.

Can my high school restrict my free-speech rights?

In California, your free-speech rights are fully protected in school, as well as outside. Your school may not censor or punish you because of the content of your speech—unless what you say is obscene, libelous, likely to incite material disruption or violation of school rules, or is deemed a "true threat." Schools may not stop you from discussing a controversial topic, writing for the school newspaper or criticizing school rules, but they can require you to obey reasonable, non-content-based regulations. A school can't ban a T-shirt that reads "No War in Iraq" but allow one that says "Support Our Troops," for example.

Can I organize a protest at my school?

Yes. However, the school may require you to observe reasonable time, place and manner regulations, such as holding your protest before or after class, and in a safe location that doesn't block entries and exits.

Can I skip school for a walkout or protest?

Since the law requires you to attend school, you may be punished for skipping class. The school can't punish you for your views, however, and the consequences should be the same as if you skipped school for any other unauthorized reason. To learn about your rights at school, call your school district and ask for their regulations on free-speech activity, or visit the website of the ACLU in your area: www.aclunc.org (Northern California), aclu-sc.org (Southern California) or aclusandiego.org (San Diego).

Are there special rules for medical centers or places of worship?

Yes. You may not physically obstruct or intentionally interfere with the staff members, patients, or building of a medical clinic offering reproductive health services. These statutes also apply to houses of worship. In addition, some cities have "bubble ordinances" that bar demonstrators from approaching patients without permission within 100 feet of a health care facility. Check your local regulations to learn more.

PRIVATE PROPERTY

Can I protest on private property?

As a rule, the First Amendment doesn't give you the right to engage in free-speech activities on private property unless you own or lease the property, or the owner has given you permission to use the property for speech. But you may canvass door-to-door in residential areas, unless the homeowner has put up a "no solicitors" sign.

Do shopping malls count as private property?

Shopping malls are an exception to the rule. In California, the courts recognize big malls as the modern-day "functional equivalent" of a traditional public gathering place, because they have "common areas that would invite the public to meet, congregate, or engage in other activities typical of a public forum. . . ."
The California Constitution does protect your free-speech rights in privately owned shopping centers—as long as your activity doesn’t interfere with the primary commercial purpose of the mall.

What about the private walkways and parking lots in front of "big box" stores and hotels?

The shopping center rule doesn't apply to private property areas that fail the "functional equivalent" test, such as parking lots and walkways of medical office buildings and hotels, or private walkways and parking lots in front of freestanding stores like Trader Joe's or Costco.

Can shopping centers regulate my expressive activities?

Yes. The courts have approved a slew of "reasonable" time, manner and place regulations, some of which present obstacles for effective communication. Most large malls have rules restricting free speech activities, although the California Supreme Court's recent decision in Fashion Valley Mall v. N.RB calls into question some of these restrictions. The Court invalidated a rule that prohibited a union from handing out leaflets at a San Diego mall calling for a boycott of a particular store, finding that the union's interest in getting its message across outweighed the economic interests of the mall.

What if I violate a shopping center's rules?

If you exercise your free-speech rights in violation of these rules, you may be excluded from the mall. However, you should not be arrested for trespass under state law in an area that's open to the public unless you intentionally interfere with the establishment’s business, for example, by obstructing or intimidating its
customers.

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