A First Amendment violation: take two

Last September, the Town of Delaware refused to give Josh Fox permission to show his film “Gasland” (at that time titled “Water Under Attack”) in Callicoon Creek Park in Callicoon, NY. The reasoning given was that the film was “too one-sided.” Since then “Gasland” has attained national prominence, winning a special award at the Sundance Festival and being shown on HBO. It has also become even more controversial, with an industry group putting out a debunking document, Fox responding with a debunking of the debunking, and shouting matches referring to the film becoming a commonplace at public forums on gas drilling. It is not therefore perhaps surprising that the town board repeated its decision last week, arguing that if it allowed the film to be shown it would appear to be taking sides.

This instinct toward even-handedness is admirable, and especially understandable given the heat that has been generated around this particular film. But the strategy for achieving it is, Constitutionally speaking, precisely backwards. The government is Constitutionally obligated to allow the expression of all viewpoints in public venues—and that includes Josh Fox and pro-industry groups. By refusing access to Fox, the Town of Delaware has set itself up for a First Amendment lawsuit, as we argued in an editorial published in our October 1, 2009 issue, and under the circumstances it is worth repeating our reasoning now.

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 are not met in this case.

We do not fault the intentions of the Town of Delaware officials who refused permission to Fox, but they have allowed their concern for even-handedness to subvert their obligations to preserve free speech. 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. That means that the objection expressed by one board member, according to the letter to the editor from Ed Levy (see at left), that if “Gasland” is shown the gas companies might come around and ask for permission to make a presentation, is also not valid. If they want to come do a “Gasland” debunking, they must be allowed to do just that. And if Fox wants to come back and do a public de-debunking, that also must be allowed. The result would be that Callicoon Creek Park, already a lively marketplace and center for local performing artists, would become a vibrant agora for the exchange of ideas about public policy—just like the agora in ancient Athens, the birthplace of democracy. We can’t see anything wrong with that.

Dr. Punnybone

Draggin' Fly