December 2023 Knowing the Waters: Free Speech
By Frank Chmelik and Tim Schermetzler of CSD Attorneys at Law P.S. - WPPA Counsel
We were recently asked about the ability of protestors coming to a port district to protest the handling of a certain type of cargo at a port shipping terminal (we don’t know the nature of the cargo). The subject of this month’s column is port districts and use of port property for speech related activities. As with most issues, the short answer is that ports should adopt a clear and well-reasoned written policy in advance of the requests and apply the policy in a fair and evenhanded manner. Care is needed here because under the First Amendment to the United States Constitution, a citizen has the right to be free from governmental action taken to deter the citizen from exercising those rights, (“prior restraint”) or to retaliate against the citizen’s exercise of those rights (”retaliation”). Here are the steps to developing the policy.
Determine which port property is “open public forum” property and which is “nonpublic forum property.” Open public forum property is defined as a space that is designed to “maintain, encourage and invite public use” such as streets, parks, beaches, and public spaces around the port offices. These spaces are considered open to public discourse by tradition. “Nonpublic forum” property is everything else, including port offices, shipping terminals, maintenance facilities, meeting rooms for internal port use, meeting rooms or spaces available for rent and other similar nonpublic spaces. A list of open public forum property would be helpful.
Develop a policy for open public forum property. Protests, solicitation for donations and the distribution of literature by groups on public property are forums of “speech” protected under the First Amendment of the U.S. Constitution. A port’s ability to restrict or exclude groups from its open public forum property is limited because such restrictions or exclusions are measured through the lens of the First Amendment Constitutional rights of all citizens. A written port policy can place reasonable restrictions on the time, place, and manner of speech on open public forum property to ensure the continued use of public forum property for its intended use. One thing is clear, the policy must be “content blind” meaning that the port cannot ever consider the content of the speech in placing a restriction or enforcing the restriction.
Develop a policy for nonpublic forum property. For “nonpublic forum” property a port has much more leeway. A port can prohibit speech altogether (no rental for public events) or prohibit on the basis of subject matter (no rental for political events or no rental for religious events or no rentals for birthday parties). Any restriction in a “nonpublic forum” need only be “reasonable” and not be an effort to suppress the speaker's activity due to disagreement with the speaker's view. Here again the restriction must be “content blind.” If a port allows the young Republicans to rent a port meeting space it must afford the same opportunity to the young Democrats. If the port allows one religious organization to rent a port meeting room, it must afford the same opportunity to other religious organizations. One can see that the latitude for nonpublic forum property is greater because entire types of uses can be excluded. The reference to “rent” is intentional because it is difficult for ports to provide a discount or free use to one group and not another. Such action invites First Amendment scrutiny and may be a violation against the gifting of public funds.
Airport Terminals. We note that courts have held that airport terminals (and the Seattle monorail stations) are nonpublic forums because they exist for travel, not for traditional public spaces. In the 1992 United States Supreme Court case International Society for Krishna Consciousness Inc. vs. Lee the court held that restrictions on speech in airports need only have a “rational basis.” Since that case, many airports have adopted policies rationally related to the movement of passengers. Airports place reasonable restrictions by setting aside a certain area where the groups could have a table and restrict the speakers to staying within that area so as not to unreasonably disrupt passenger flow. Next time you walk through a large airport look for the tables that have been set aside for groups to engage in speech.
Enforce the port policies in a consistent and evenhanded manner. Once a policy is in place, it should be consistently applied without regard to the content of the speech or the speaker. For example, in 2021 the City of Selah, Washington was sued in federal court by the Selah Alliance for Equity (S.A.F.E.) alleging that the City censored their members’ free speech by erasing chalk messages and confiscating and destroying signs in support of racial equality. The federal court issued a preliminary ruling barring the enforcement of the applicable City ordinance. In 2022 the City settled with S.A.F.E. agreeing, among other things, not to enforce certain parts of the ordinance and paying the group $300,000.
As always, please contact your port counsel with any questions regarding this topic. And, if you have a particular question for a Knowing the Waters please email me at fchmelik@csdlaw.com or Tim Schermetzler at tschermetzler@csdlaw.com.