A First Amendment violation

Recently, the Town of Delaware refused to give Josh Fox permission to show his film “Water Under Attack” in Callicoon Creek Park in Callicoon, NY. It used as the basis for its decision the contention that the film, a documentary on the impact of natural gas drilling activities on water, was “too one-sided.” Fox said he believed that the town’s refusal to let him show the film might be a First Amendment issue.

When we first heard about the case, we weren’t so sure. After all, municipalities can and do require permits for public events all the time, and sometimes applicants are turned down, without the Supreme Court getting dragged into it.

Then we started to do a little research. And as it turns out, it’s not even a close call. We’re going to stick our necks out as laymen and call it a First Amendment violation, pure and simple.

The case hinges on two key concepts: “public forum” and “content neutrality.”

Any type of expression that takes place in a public forum is entitled to the strictest degree of Constitutional protection. Therefore, though there are some circumstances in which public agencies may prohibit such expression in the public interest, the criteria used must be content-neutral; that is, they must not apply to the topics discussed or viewpoints articulated.

Some First Amendment cases are complicated by disagreements over what does and does not count as a public forum. But public parks, of which Callicoon Creek Park is one, are indisputably public forums. As Justice Owen Roberts wrote in his opinion on the landmark 1939 case Hague v. CIO, “Wherever the title of streets and parks may rest, they 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. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.”

Despite this, municipal authorities do have an established right to set up a permitting process if it is expeditious and has a clear set of rules that is applied consistently to all applicants, and to grant or refuse permits according to those rules. But there are strict Constitutional limits to the criteria that may be used in denying a permit: they must be limited to time, place or manner. “Place” obviously can’t mean the whole park or other forum, but could be restricted in terms of, say, a location within a park that causes a traffic disturbance or puts an endangered species at risk; time could be restricted to prevent disturbances of a residential area late at night; manner could be related to the volume of sound and local noise ordinances.

But restrictions related to content—like a judgment that the expression in question is “too one-sided”—are forbidden unless they “serve a compelling state interest,” like preventing imminent violence, and there is no way of serving the interest that is less speech restrictive. Those conditions were not met in this case.

We don’t question the good intentions of the Town of Delaware officials who refused permission to Fox. Probably they felt that it wasn’t fair for public property to be used to represent a point of view that not all taxpayers share. But that’s just not the way that the right of free speech in public places works. You get free speech when everybody is allowed to express any point of view—not when everybody is forbidden from speaking for fear that someone else might disagree. Fox’s film must be allowed, and so must any peaceable event held by those wanting to discuss other perspectives on gas drilling.

Perhaps the Town of Delaware simply doesn’t have a formal set of rules for permitting the use of public places. If not, it might want to consider formulating a set, with its lawyer’s advice. It needs to come up with something that serves public needs in terms of issues like preserving the peace, keeping people and the environment safe and making sure that public facilities aren’t damaged or abused. But if it keeps on deciding cases like this on an ad-hoc basis, or adopts a system with criteria that prohibit certain viewpoints from being expressed, it is at risk of finding itself at the wrong end of a First Amendment lawsuit.

And while it’s at it, it might invite Fox back for a showing of his film.

Dr. Punnybone

Dropping His Drawers