Reader Tim Gier points me to this story, which he found via DailyKos:
A group promoting an anti-war rally was asked to leave a Broward County park Saturday morning after the park manager said political statements were prohibited on park property. . . . [A] review of the Broward County Code showed no ban on political discussion in parks. . . .
The ACLU and the Green Party were apparently not asked to leave.
Government-owned parks are considered “traditional public fora,” in which the government may not restrict speech based on its content (unless the content falls within the narrow First Amendment exceptions, such as deliberate falsehood, obscenity, threats, and the like). The government gets no extra power over such speech because of the government’s ownership of the property.
It thus seems pretty clear that the park manager’s actions were unconstitutional. It’s possible that a city may temporarily rent out its property, including perhaps a park, to a private entity, which could then impose its own rules on this temporarily privatized space; but it seems pretty clear that this isn’t what happened here.
My sense is that the government officials who organize events at parks sometimes want to get rid of material that they see as too controversial, since they fear that such material will make the event-going experience less pleasant for some people, and thus drive away potential attendees. (I don’t know whether this was this particular park manager’s real reason.)
I remember, for instance, a case from when I was clerking, Capital Area Right to Life, Inc. v. Downtown Frankfort, Inc., in which a city-run festival excluded “controversial groups,” including a pro-life group and two pro-choice groups. The Kentucky Supreme Court actually upheld this restriction, concluding that the policy was permissible because it was viewpoint-neutral (though the court erroneously called it “content-neutral”). Unfortunately, the Supreme Court declined to hear the case — the Court agrees to hear only 1% to 2% of the cases it’s asked to hear, and a refusal to hear the case doesn’t mean endorsement of the lower court decision. But Justice O’Connor wrote a dissenting opinion that correctly criticized the lower court’s decision. If this matter goes up to the Court again in the future, I’m quite sure that the Court will hold as she urged; and I think that most lower courts (though as we saw in the CARTL case, not the Kentucky Supreme Court) would likewise strike down such policies.
So in any event this sort of exclusion isn’t unheard-of — but it’s pretty clearly unconstitutional.
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