Petitioning Rights in Public Places

Note: This is a legal brief prepared for activists petitioning to get a third party on the ballot. This form of political expression may be slightly more protected than whatever you may be petitioning/flyering for.

There have been several reports over the past few weeks (including my own experience at having a "run-in" with City Police) that many folks are having problems with store management, park management, police, and other entities that would enjoy kicking us out of certain areas of the planet when we petition.

Some things to keep in mind and some key jargon to give to these folks when they approach.

  1. The Supreme Court has ruled several times on which property is open to the public and which is not. In recent years, they have narrowed this interpretation, but the base has remained the same, namely that the Court now engages in a "forum" approach. First, they classify the area that is disputed as a certain kind of "forum" - then the activities that allowed follows automatically from that designation. Some practical examples:

    1. Traditional Public Forums: Those areas that are traditionally held places in which democratic conversation and solicitation have taken place. These include public sidewalks and public parks.

      Activities Allowed: Any as long as they do not interfere with public health or safety. These public forums would be open for any type of petitioning, especially because the courts have been especially careful to safeguard "political speech" which goes to the core of the beliefs of our government - open and accessible political systems.

    2. Limited Public Forums: These are areas in which the local government or agency has chosen to make available as a "forum" area, and has opened up the area to other groups and individuals.

      Activities Allowed: Petitioning would be allowed in these areas, if these areas have been opened up to other speakers or other petitioners. An example would be the KKK requesting the use of a school cafeteria in which to hold a rally at night. This would have to be allowed if the school regularly opens the cafeteria up for the use of other groups and organizations. In other words, if the forum is opened up to one group, it must be opened to all groups - to do otherwise would be an infringement on free speech rights of the group that is denied access.

    3. Nonpublic forums: Any area not traditionally opened up for public use, and any area not designated as a public forum. I.E. if the area does not qualify for the above, then it falls into this category.

      Activities Allowed: Only those which are not excluded by regulations. These regulations must pass a simple test: they must be "viewpoint neutral" (not discriminatory) and must only regulate the time, place, and manner of the speech. Petitioning would probably not be allowed in these areas.

  2. Legal Jargon - The only thing that really needs to be remembered is that sidewalks that run along public streets, and public parks are completely and utterly open to petitioners. How do we know? Because the Supreme Court has said so:

    1. United States v. Kokinda, 497 U.S. 3115 (1990) (sidewalks)
    2. Board of Airport Commissioners v. Jews for Jesus, 482 U.S. 569 (1987) (airport terminals as nonpublic forums, supporting forum analysis)
    3. Ward v. Rock Against Racism, 491 U.S. 781 (1989) (public parks)
    4. Niemotko v. Maryland, 340 U.S. 268 (1951) (bible talks in public park)

    The importance of Political Free Speech:

    1. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (demonstration in Lafayette Park and the D.C. Mall)

    2. United States v. O'Brien, 391 U.S. 367 (1968) (burning draft certificate)

    3. Tinker v. Des Moines Independent Community School District, 393 U.S. 503(1969) (wearing of black armbands against Vietnam by high school students)

AND NOW - to my personal advice:

  1. Clearly state that you have a right to petition in that location because it is a traditional public forum under the United States Supreme Court declarations. Pull out the above list of case law to give yourself an additional bonus.

  2. Carry voter registrations with you while petitioning [if this applies] - voter registration drives are protected even more than petitioning for candidates is.

  3. If they persist in having you removed, tell them that they must provide you with an "equal and standard" alternative to the current location. For example, an offer for you to stand on a dead-end street across from a public park is NOT an "equal and standard" alternative.

  4. If really committed, force them to arrest you (they will issue you a citation) and place the burden of removing you on Their shoulders.

    Note: Check on the penalty for such an arrest first before taking this route. Also check on the availability of local legal assistance before taking this route, although a strong defense could be made without an attorney since most judges find this type of thing to be "common sense"

  5. Use the arrest or dislocation for publicity from the city or other area to publicize the fact that fewer and fewer areas are available for this type of political activity.

  6. In short, the first goal should be to:
    1. remain and collect signatures, spending the least amount of time arguing, and
    2. if unable to do this, push the issue and force them to remove you.

Hope that these comments are helpful - also never underestimate the ability of the citing of a legal case to help the effort. Usually, the owners of a location don't want this type of publicity and will not tangle with lawyers or citizen-lawyers.

Keep up the good work,

Thomas Linzey, Esq.

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Last modified: 8 August 1996