July/August 2017 Issue

Also in this issue: Wisconsin Supreme Court Expands Fair Dealership Law to Municipalities     |     Conditional Use Zoning Law in Flux     |     Limitations on Interior Property Inspections for Property Tax Assessments     |     Supreme Court Decides Wisconsin Regulatory Takings Case     |     Wisconsin Supreme Court Addresses Open Meetings Law And Committees

County’s Courthouse Access Policy Violated First Amendment

Brian P. Goodman | 08.06.17

In Higher Society of Indiana v. Tippecanoe County, Indiana, 858 F.3d 1113 (2017), the Seventh Circuit Court of Appeals held that a County’s policy that restricted a group’s demonstration on courthouse grounds violated the First Amendment.

The Higher Society of Indiana is a non-profit organization that advocates for the legalization of marijuana in Indiana. The group wanted to hold a rally on the steps of the Tippecanoe County Courthouse in Lafayette, Indiana. In 1999, the Tippecanoe County Board of Commissioners declared the courthouse grounds a ​“closed forum” and adopted a policy requiring groups to obtain the Board’s sponsorship before holding an event on the grounds. The County wanted to only sponsor events that echoed the County’s views. Over the years, the Board sponsored various events with diverse viewpoints. However, several groups consistently protested on the courthouse grounds without the Board’s permission, and the Board did not object. Due to a County official’s misunderstanding, Higher Society held a peaceful event on the courthouse steps without Board sponsorship. A Commissioner asked the group to stop, and the group disbanded. Subsequently, Higher Society asked for permission to hold a second event on the courthouse steps. The Board declined to sponsor the event, citing the closed forum policy and the lack of support from any Commissioner. Higher Society then sued the County and was granted an injunction by a court allowing it to demonstrate. 

In Higher Society, the County argued that even though its denial of the group’s request to demonstrate was clearly viewpoint discrimination, it was permissible under the First Amendment because the events the County sponsors on the courthouse grounds constitute government speech. The Seventh Circuit Court of Appeals disagreed and held that the County’s denial of the marijuana advocacy group’s request was impermissible viewpoint discrimination and not government speech. 

The Court noted there were two ways the County could legally block Higher Society’s demonstration from courthouse grounds. First, the County could have argued that the grounds were a nonpublic forum and that its speech regulations were ​“viewpoint neutral and reasonable.” Second, the County could argue that its sponsored events are government speech, which the County could regulate without violating the First Amendment. Because the County admitted that its denial of Higher Society’s event was not viewpoint neutral, the County had to argue its event was government speech. The Court noted that government speech occurs when (1) the government has traditionally spoken to the public in the manner at issue; (2) observers of the speech at issue would reasonably attribute the message to the government; and (3) the government maintained editorial control over the speech. 

The Court found that events on the courthouse grounds were private speech because the government had not historically used events conducted by private groups to deliver its own messages. Additionally, unlike permanent park monuments or state license plates, a reasonable observer would not attribute Higher Society’s views to the County. A reasonable observer would know that protesters like to demonstrate on symbolic public property and, in many cases, the First Amendment guarantees them the right to march peacefully and make speeches, even if the government does not like what they are saying. Finally, the Court noted that the County did not have any editorial control of Higher Society’s message. Presumably, anyone at the rally could express a view with which the County did not agree. Without such control, the County could not show that the private speakers were speaking on behalf of the County. 

This case should serve as a reminder to municipalities about the requirements of the First Amendment. Even if a municipality designates a certain space as a nonpublic forum, the municipality cannot engage in viewpoint discrimination with respect to access to that space. If a municipality wants to let certain groups demonstrate in that space, then it must allow other groups to assemble in that space, even if the municipality does not agree with those groups’ messages. However, a municipality can subject all groups to certain viewpoint neutral restrictions such as reasonable restrictions on the time, place, and manner of the demonstrations. Additionally, when creating policies to restrict demonstrations on government property, municipalities should be mindful of the limitations of the government speech doctrine. Any policy regarding access to public spaces should be enforced consistently to avoid charges of viewpoint discrimination. 

— Brian P. Goodman