Responding to First Amendment Audits: Examples of Forum Determinations
Lobby Areas of Government Buildings
Courts across the United States have generally treated lobbies and waiting areas in government-owned buildings as nonpublic forums.
There is limited caselaw analyzing government employee offices as a “forum” for First Amendment purposes. However, the courts that have evaluated the issue have consistently held that office spaces for government employees are nonpublic forums. As the Supreme Court has stated in Cornelius v. NAACP Legal Defense & Education Fund, Inc.:
“The [government] workplace, like any place of employment, exists to accomplish the business of the employer. ‘[T]he Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs.’ It follows that the Government has the right to exercise control over access to the [government] workplace in order to avoid interruptions to the performance of the duties of its employees.”
Courts around the United States have also found government workplaces to be nonpublic forums, as described below.
Courthouses
Courts have consistently held that courtrooms—as well as courthouses as a whole—are nonpublic forums. Courtrooms have been recognized as a place “where the First Amendment rights of everyone…are at their constitutional nadir.” Courts have also found many outdoor areas connected to courthouses, such as plazas, walkways, and parking lots, to be nonpublic forums. Public sidewalks around the perimeter of courthouse grounds, however, may constitute a traditional public forum. A number of federal district courts around the country have upheld restrictions on filming (or restrictions on the use of electronic devices generally) in courthouses. This includes a District of Maryland decision that was affirmed by the Fourth Circuit, in which the court stated that “there is no First Amendment ‘right to communication’ that guarantees a right to carry cellular phones in government buildings.”
Police Departments
As discussed earlier, many jurisdictions have recognized a right to record police activities in traditional public forums. However, there is limited case law analyzing the interior of a police department as a forum for First Amendment purposes. The case law that does exist indicates that the interior of a police department is a nonpublic forum. The Seventh Circuit has held that the interior of a police station is “not a public forum.” The Southern District of New York has recognized NYPD meeting rooms as nonpublic forums. Likewise, the Central District of California has held that a police station is a nonpublic forum. In a decision affirmed by the Eighth Circuit, the Western District of Missouri held that a plaintiff had no constitutional right to videotape a police department lobby. Similarly, the Superior Court of Pennsylvania has upheld a “no-filming” restriction imposed in the lobby of a police department as a reasonable restraint on free speech.
County Departments of Social Services
There are relatively few cases in which courts have analyzed the forum status of departments of social services and other human services agencies. However, the courts that have analyzed the issue have consistently concluded that social services agencies are nonpublic forums.
Lobby Areas of Government Buildings
Courts across the United States have generally treated lobbies and waiting areas in government-owned buildings as nonpublic forums.
- The Eleventh Circuit, in United States v. Gilbert, held that the interior of a federal government building was a nonpublic forum.
- The Seventh Circuit, in Sefick v. Gardner, held that the lobby of a federal courthouse was a nonpublic forum, “not a place open to the public for the presentation of views.”
- The Eighth Circuit, in Families Achieving Independence & Respect v. Nebraska Department of Social Services, held that a department of social services lobby was a nonpublic forum, finding that the principal purpose of the lobby was to provide services to the public, not to provide free access for expressive activities.
- In Freedom Foundation v. Washington Department of Ecology, the Western District of Washington held that the lobby of the Washington Department of Ecology was a nonpublic forum, in light of the fact that Department policies only granted access to visitors in the lobby if they had a reason for being present that was related to the agency’s business.
- In Selfick v. United States, the Northern District of Illinois held that the lobby of a federal government office building was a nonpublic forum.
- In Low Income People Together, Inc. v. Manning, the Northern District of Ohio held that the lobby and outpatient clinic waiting areas of a public, county-owned hospital were nonpublic forums.
- In Grossbaum v. Indianapolis-Marion County Building Authority, the Seventh Circuit accepted the defendant’s concession that the lobby of a city-county building (the seat of government for the City of Indianapolis and the County of Marion, Indiana) was a nonpublic forum.
- In a recent 2020 case, Commonwealth v. Bradley, the Superior Court of Pennsylvania upheld a “no-filming” restriction imposed in a police department lobby as a reasonable restraint on free speech.
There is limited caselaw analyzing government employee offices as a “forum” for First Amendment purposes. However, the courts that have evaluated the issue have consistently held that office spaces for government employees are nonpublic forums. As the Supreme Court has stated in Cornelius v. NAACP Legal Defense & Education Fund, Inc.:
“The [government] workplace, like any place of employment, exists to accomplish the business of the employer. ‘[T]he Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs.’ It follows that the Government has the right to exercise control over access to the [government] workplace in order to avoid interruptions to the performance of the duties of its employees.”
Courts around the United States have also found government workplaces to be nonpublic forums, as described below.
- In Lavite v. Dunstan, the Seventh Circuit found that a county administration building housing over twenty county departments was a nonpublic forum, where no evidence showed that the building had been used for political activity, assembly of the public, or other expressive activity.
- In Freedom Foundation v. Sacks, the Western District of Washington held that the Washington Department of Labor & Industries was a nonpublic forum, because “the purpose of L&I’s headquarters is to serve as a workplace for its near 2,000 employees, not a forum of free debate and expressive activity.”
- In State v. Chiapetta, the Supreme Judicial Court of Maine held that a town voter registration office was a nonpublic forum.
- In Day v. Chicago Board of Education, the Seventh Circuit found that a teacher’s certification and substitute teacher’s center run by the Chicago Board of Education was a nonpublic forum.
- In O’Brien v. Welty, the Ninth Circuit held that faculty offices in a university department building—as well as the hallway on which the offices were located—were nonpublic forums.
- In Sheets v. City of Punta Gorda, Florida, the Middle District of Florida treated a city hall—including a city clerk’s office where the plaintiff was attempting to film with a body camera—as a limited public forum. Remember, restrictions on First Amendment activity in a limited public forum are evaluated under the same standard as those in a nonpublic forum.
Courthouses
Courts have consistently held that courtrooms—as well as courthouses as a whole—are nonpublic forums. Courtrooms have been recognized as a place “where the First Amendment rights of everyone…are at their constitutional nadir.” Courts have also found many outdoor areas connected to courthouses, such as plazas, walkways, and parking lots, to be nonpublic forums. Public sidewalks around the perimeter of courthouse grounds, however, may constitute a traditional public forum. A number of federal district courts around the country have upheld restrictions on filming (or restrictions on the use of electronic devices generally) in courthouses. This includes a District of Maryland decision that was affirmed by the Fourth Circuit, in which the court stated that “there is no First Amendment ‘right to communication’ that guarantees a right to carry cellular phones in government buildings.”
Police Departments
As discussed earlier, many jurisdictions have recognized a right to record police activities in traditional public forums. However, there is limited case law analyzing the interior of a police department as a forum for First Amendment purposes. The case law that does exist indicates that the interior of a police department is a nonpublic forum. The Seventh Circuit has held that the interior of a police station is “not a public forum.” The Southern District of New York has recognized NYPD meeting rooms as nonpublic forums. Likewise, the Central District of California has held that a police station is a nonpublic forum. In a decision affirmed by the Eighth Circuit, the Western District of Missouri held that a plaintiff had no constitutional right to videotape a police department lobby. Similarly, the Superior Court of Pennsylvania has upheld a “no-filming” restriction imposed in the lobby of a police department as a reasonable restraint on free speech.
County Departments of Social Services
There are relatively few cases in which courts have analyzed the forum status of departments of social services and other human services agencies. However, the courts that have analyzed the issue have consistently concluded that social services agencies are nonpublic forums.
- In Make The Road by Walking, Inc. v. Turner, the Second Circuit Court of Appeals found that welfare center waiting rooms were nonpublic forums because the New York City Human Resources Association enforced a policy reserving those rooms for the transaction of official business, including for welfare claimants and those accompanying them.
- In Families Achieving Independence & Respect v. Nebraska Department of Social Services, the Eighth Circuit held that a department of social services lobby was a nonpublic forum, finding that the principal purpose of the lobby was to provide services to the public.
- In National Federation of the Blind of Missouri v. Cross, the Eighth Circuit held that a state vocational rehabilitation agency for blind persons was a nonpublic forum. The court found that the rehabilitation agency’s own provision of information to clients could not be characterized as the intentional opening of a forum for public discourse.
- In Nathaniel v. Iowa Department of Human Services, the Southern District of Iowa held that the Iowa Department of Human Services was a nonpublic forum.
