Constitutionally Protected Expressive Activity & the First Amendment: “Who Ya Gonna Call?”

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Constitutionally Protected Expressive Activity & the First Amendment:  “Who Ya Gonna Call ”

Robert C. Phillips
Deputy District Attorney (Ret.)
RCPhill101@goldenwest.net
858-395-0302
UPDATED AUGUST 2022

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            The situation is not at all uncommon:  An individual business owner, security official for a large shopping mall, or store manager representing a major retail chain store such as (but not limited to) Costco, Wal-Mart or Target, complains to law enforcement that demonstrators, signature collectors, pamphlet distributors, an organization soliciting funds for themselves or for a charity, a panhandler, or some other politically, socially, or religiously motivated individual or group of individuals has set up a table on their property near an entrance to a store.  Such persons, while on the mall or the store’s “private property,” and commonly in violation of some of the mall’s or store’s rules established to control or prohibit such activity, are generally attempting to communicate to store patrons some political, social, religious, or otherwise controversial viewpoint.

            In such a situation, the mall or store representative will typically call for law enforcement’s assistance in evicting the offending individual(s), demanding that the responding police officer tell them to leave or, in the alternative, arrest them for trespassing.  Should the officer balk at doing so, the complainant can be expected to wave around a ream of important looking documents purporting to be case law saying that what the “trespassers” are doing is “illegal.”[1]

The mall or store representative might also insist that he or she is going to make a citizen’s arrest and, pursuant to Penal Code § 142, the officer is required by law to accept the arrestee even if the officer does not agree with the wisdom or legality of doing so. 

Another related situation might be where a citizen is attaching leaflets to parked cars; an activity prohibited by some city and county ordinances as a form of littering as well as an intrusion on one’s private property.[2]  Or, the problem might be the all too often occurrence of illegal alien day-laborers soliciting employment or other favors from the mall’s or store’s parking lot or at an adjacent curb of a public thoroughfare.[3] 

Similarly, when a panhandler plops himself down in front of a store soliciting monetary handouts, store owners fear that such an unsightly or odorous individual might scare away potential customers.[4]  Such a person is typically homeless (or at least represents himself to be homeless), shabbily dressed, and at the very least, annoying to the store’s regular customers.

Another possible situation might be when a “sidewalk vendor” insists on selling his or her wares, be it food or merchandise, from either a pushcart, stand, display, pedal-driven cart, wagon, showcase, rack, or other non-motorized conveyance, or perhaps from one’s person, upon a public sidewalk or other pedestrian path in front of the complaining party’s store, or in a public park.[5]

These, and a host of other related First Amendment issues confront an officer in the field on pretty much a daily basis.  So I’ve written the following to offer some guidance and to help keep you stay out of trouble.  And while I was at it, I’ve added a number of other related topics that often involve the First Amendment.  Here’s a list of what this paper discusses:

• So what should the police officer in the field do when confronted with any one of the solicitor issues as described above

• Balancing the Parties’ Conflicting Constitutional Rights.

• The Federal Rule.

• California’s Rule.

• Recognized Exceptions to a Demonstrator’s Otherwise Lawful Exercise of His Freedom of Expression Rights.

• True Threats. 

• The Police Officer’s Dilemma.

• Students’ First Amendment Rights on School Grounds.

• Use of a Publicly Accessible Social Media Page.

• The First Amendment and the Free Exercise Clause, the Establishment Clause, and Free Speech.

• Profane and Offensive Speech.

• Picketing.

• Using Sound Amplifying Devices.

• Abortion Clinics.

• California’s Freedom of Access to Clinic and Church Entrances Act (“FACE Act”); Penal Code §§ 423 et seq.

• Vaccination Sites.

• Distributing Leaflets on Windshields.

• Protesting at Funerals.

• Illegal Aliens Seeking Work.

• “Occupy” Demonstrations.

• Political Demonstrations.

• Other Public Protests and Rioting.

• Public Meetings.

• Use of Trespassing Statutes.

• Loiterers and Vagrants.

• Panhandlers.

• Photographing and Videotaping in Public.

• Penal Code § 148 Issues and the First Amendment.

• Conclusions.

            So what should the police officer in the field do when confronted with any one of the solicitor issues as described above

            The answer is actually quite simple:  Except when necessary to preserve the peace, and with other limited exceptions, the officer should do nothing.        

Getting involved in such disputes, either by making an arrest or accepting the target of a citizen’s arrest, is likely to be little more than an exercise in futility.   What is not likely to happen is that the “trespassing” demonstrator or panhandler will ever get charged criminally in a court of law, or if he does, that a conviction will result.  This is because what such demonstrators or panhandlers are doing is generally not in violation of any of California’s criminal trespass or other related statutes.  And even if under some unique circumstance it is, at least in the case of the demonstrators, they might actually have a constitutional right to be on the complainant’s property espousing their political, social, or religious beliefs. In such a case, the constitutional protections will typically overshadow any contrary state or federal criminal statutes.

For an officer to attempt to interject a criminal prosecution into such a mix is more likely to result in civil liability for both the officer and his or her police department than get the “trespasser” into the criminal justice system.[6]

Balancing the Parties’ Conflicting Constitutional Rights:

It cannot be disputed that every person in this country has a constitutional right to the private ownership and use of property without undue interference from other persons or the government.[7]  This is no less true for the owners of a business or a shopping mall.[8]  It also applies to government-owned property.[9]  By the same token, however, we all have a First Amendment right to exercise free speech and to petition the government for redress of grievances.[10]  The right to “free speech” is broader than one might think, protecting literal speech as well as expressive or communicative conduct.[11]  The United States Supreme Court has even found that one’s First Amendment’s guarantees extend into a variety of contexts not often considered; e.g., “not only the right to speak and publish but also the right to hear, to learn, to know.”[12]

However, neither a business owner’s private property rights, nor one’s First Amendment freedoms, are absolute.[13]  Either may often, depending upon the circumstances, be forced to give way to other competing interests.[14] 

 

When called to the scene of a dispute between a shopping mall or business owner and a demonstrator, signature collector, pamphlet or leaflet distributor, or anyone else who might be attempting to discuss personal beliefs with others, the police officer finds himself in the middle of these two constitutionally protected activities, each individual doing no more than attempting to exercise his or her sometimes conflicting rights.[15]  This, for the officer, is a lose-lose situation.  It puts the officer in the position where the parties want him or her to make some very difficult decisions when in actuality, he doesn’t have sufficient information to do it correctly or equitably.  It simply can’t be done.

 

The Federal Rule:

 

The United States Supreme Court has considered this type of situation and has attempted to strike a fair balance between one’s property rights and another’s free speech rights.  Recognizing that free speech rights are not absolute,[16] it has been held that a private property owner, including commercial enterprises such as large department stores and shopping malls, may, under most circumstances, prohibit others from using their property for purposes of exercising First Amendment free speech and petitioning rights, at least so long as there are other effective alternative channels of communication.  Such “alternative channels” would include the availability of public sidewalks, parks, and streets adjacent to the store or shopping complex from where the demonstrators can make their viewpoints known.[17]

 

The federal Tenth Circuit Court of Appeal has ruled that a city ordinance that prohibits standing, sitting, or remaining for most purposes on the City’s street medians violated the First Amendment because residents use those medians for protests or other expressive activity; i.e., as a “public forum.”  The City’s ordinances seeking to prohibit standing on street medians to solicit money or advertise various viewpoints were not narrowly tailored to serve significant governmental interest in that the city failed to show any real harm from such a use of the medians.[18]

 

As an interesting side note, the United States Court of Appeals, District Court Circuit, after the U.S. Supreme court struck down federal statutes prohibiting First Amendment activity on the sidewalks surrounding the Supreme Court building finding such areas to be a “public forum,”[19] recently upheld (in what might be considered by some as a bit of a hypocritical “what’s good for the goose, is not going to be upheld for when it affects the gander”) a similar statutory prohibition[20] when that same First Amendment activity is attempted within the so-called plaza area between the sidewalk up to the front door of the Supreme Court itself.[21]

 

            In a case involving an individual’s attempts to espouse his religious principles on the campus of the Georgia Gwinnett College, with interference from campus officials, the U.S. Supreme Court had the opportunity to discuss the issue of damages.  In the case of Uzuegbunam v. Preczewski,[22] the High Court held that, for purposes of U.S. Const. art. III standing, the two plaintiffs’ request in their lawsuit for “nominal damages” (not specifying any specific amount, but merely alleging that he had suffered damages) provided the necessary redress for a completed violation of their legal rights under the First Amendment. Because nominal damages were available at common law in analogous circumstances, a request for nominal damages satisfies the “redressability element” necessary to show legal standing where a plaintiff’s claim is based on a completed violation of a legal right.  For purposes of this appeal, it was undisputed that plaintiffs experienced a completed violation of their constitutional rights when campus officials enforced their speech policies against them. Because every violation of a right imports damage, nominal damages can redress petitioner's injury even if he cannot or chooses not to quantify that harm in economic terms.[23]

 

            What is important for our purposes here is that the Supreme Court noted that “there was no dispute” that plaintiffs had established in their lawsuit that by restricting their First Amendment freedom of speech rights, the campus officials had caused “(1) an injury in fact (2) that is fairly traceable to the challenged conduct . . . .”[24]

            How about a flagpole? The United States Supreme Court, in invoking the rule that once a government opens up a forum to the public, it must also allow viewpoints it doesn’t necessarily agree with, held that the City of Boston could not constitutionally be selective about which flags citizens are allowed to fly outside city hall, likening its flagpoles at that location to a public forum.  The Court therefore held that Boston’s refusal to allow petitioners to raise their Christian flag at City Hall based on its religious viewpoint amounted to impermissible viewpoint discrimination and violated the Free Speech Clause of the First Amendment. Boston conceded that it denied petitioners’ request solely because the flag promoted a specific religion.[25]

            It is also an issue, when considering the applicability of the First Amendment protections, whether the challenged speech is being restricted or outlawed due to its “content.” 

“Under the First Amendment to the United States Constitution, ‘governments have “no power to restrict expression because of its message, its ideas, its subject matter, or its content.”’ (Citation.[26])  ‘Content-based regulations “target speech based on its communicative content.” [Citation.] As a general matter, such laws “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.’  (Citation.[27]) Viewpoint discrimination, where the ‘[g]overnment discriminat[es] among viewpoints[,] is a “more blatant” and “egregious form of content discrimination . . . .’” (Citation.[28])”[29]

            This is obviously an issue that neither a patrol officer, nor his or her supervisors, are equipped to resolve out in the field.  (See “The Police Officer’s Dilemma,” below.)

 

California’s Rule:

 

The California Supreme Court, on the other hand, has evaluated the problem differently.  The California Constitution contains its own version of the right to free speech[30] and to petition the government for redress of grievances.[31]  Interpreting these state provisions, it has been ruled that at least in California, the free speech and petitioning rights are to be given a broader application than provided for under the similar U.S. constitutional First Amendment protections, tipping the scale in most cases in favor of the demonstrator.[32] 

 

In so ruling, and while affirming a shopping center’s right to establish reasonable “time, place and manner restrictions”[33] on the activities of demonstrators,[34] signature collectors, pamphlet distributors, an organization soliciting funds for themselves or for a charity, and/or other individuals or organizations, the California Supreme Court has held that large department stores and shopping centers, at least generally, cannot prevent others from having access to their private property for the purpose of exercising free speech and petitioning rights.[35] 

 

The Court’s reasoning on this issue is based upon the concession that such businesses have, in effect, replaced the traditional town center where people used to meet to discuss the issues of the day.  Today, shopping malls and large businesses, by opening their private property to public access, have established a modern-day public forum for the communication of ideas and varied viewpoints.[36]  This is true even if the demonstrator’s message involves issues that are unpopular, controversial, or which to some—as in the case of some anti-abortion demonstrations where large, intentionally shocking photographs of aborted fetuses are used[37]—are personally offensive.[38]

 

Most recently, the First District Court of Appeal (Div. 2) used the “balancing of interests” test in finding that a parking lot and other exterior portions of a privately owned amusement park outside the ticketed area constituted public forums under the California Constitution,[39] and that an animal rights activist had a right to peacefully protest the park’s use of animal attractions in those areas.  The Court reasoned that the owner’s interest in restricting free expression was minimal in these large and open areas where it was undisputed that past protests had caused no disruptions and had not interfered with attendance.  Also, the public’s interest in expressive activity was strong in light of the large number of visitors and the direct connection between the protesters’ message and the featured attractions, and the city’s general plan and zoning laws categorized the park as a community park.  It was also noted that a “time, place, and manner” argument was forfeited because the owner did not raise it below.[40]

 

The United States Supreme Court, recognizing that the individual states may interpret their own Constitutions as they choose so long as not to diminish a person’s rights as guaranteed by the U.S. Constitution’s Bill of Rights, has given California its blessing on this concept.[41]

 

Recognized Exceptions to a Demonstrator’s Otherwise Lawful Exercise of His Freedom of Expression Rights:

 

Exceptions to this California rule have been found, however, when the location of the proposed activity is what can best be described as something other than the functional equivalent of a public forum.[42]  Whether or not a particular business or other location qualifies as an exception depends upon a careful evaluation of a number of factors.  The nature of the facility is certainly one such factor, as is the location relative to a store’s entrances and exits and how the area in question might be “typically configured and furnished.”[43]  The California Supreme Court has “instruct(ed) us to balance the competing interests of the property owner and of the society with respect to the particular property or type of property at issue to determine whether there is a state constitutional right to engage in the challenged activity.” (Citation)  The Supreme Court “did not hold that free speech and petitioning activity can be exercised only at large shopping centers or that such activities can be exercised on any property except for individual residences and modest retail establishments.  (Citation.)”[44]

 

But more importantly, a court must weigh the competing interests of the public and the property owner:[45] I.e.:  Because the store owner has a right to enjoy “freedom from disruption of normal business operations and freedom from interference with customer convenience,”[46] whether or not, and to what degree, the demonstrator’s activities interfere with the store’s activities is an issue that must be evaluated.[47] 

 

Where an exception is found, the business or shopping complex may very well have the legal right to prohibit constitutional expressive activity on its property altogether.[48]  This does not mean, however, that a police officer should necessarily be the one making this decision.  Rather, this merely means that the aggrieved business or shopping complex may seek a resolution in the civil courts where it can properly be determined, after an evidentiary hearing, whether an exception does in fact apply, and if so, what then is the most appropriate remedy. 

 

For this reason, although an exception to the general rule that these incidents are civil and best handled by a civil court judge may on its fact appear to apply, it is still strongly recommended that the responding law enforcement officers take no affirmative action absent a clear violation of a criminal statute (e.g., a battery, pursuant to P.C. § 242) other than a mere trespass.  Whether or not an exception applies will depend upon the circumstances, including whether, and to what degree, one’s First Amendment rights are in fact involved.  These are issues a police officer, responding to a radio call to referee a dispute between a business establishment and a demonstrator, is simply not equipped to resolve.  The issue is still better left to a civil court for an informed decision by a judge after a full evidentiary hearing.

 

But for the sake of being informed, below are listed the recognized exceptions to the general rule that malls, the fronts of large businesses, and other business establishments, provide a public forum for expressive activities.  Note that all these examples, except for trespassing on school grounds—grades kindergarten through 12th grade—are civil cases with a resolution being fashioned by a civil court, and not a police officer at the scene of the incident. 

 

So far, the courts have told us that the following businesses, locations, activities, or situations fall within this list of exceptions, thus potentially subjecting demonstrators or free-speech-related displays to exclusion:

 

• A stand-alone retail outlet which has its own parking area not shared with other businesses is not required to allow demonstrators to set up a table in front if it’s store.[49]  This would likely also include the large, box-style membership stores such as a Costco, at least when not part of a shopping center complex.[50]

 

• A single stand-alone supermarket’s decision to permit the placement of a few news racks on its property, in front of its store, did not create a public forum requiring it to allow other newspapers to place their racks there as well.[51]

 

• Any areas adjacent to a commercial store where the areas in dispute lack any “public forum attributes,” as shown by the evidence as presented to a civil court,[52] such as; “within a shopping center or mall, the areas outside individual stores’ customer entrances and exits, at least as typically configured and furnished.”[53]

 

• A grocery store that, even though sharing a parking lot with several other businesses, does not “encourage people to congregate in or to otherwise remain at the center for longer time periods” than necessary to complete their shopping, and which “does business as a convenience store with a goal of getting customers in and out of the store very quickly,” is not the equivalent of a public forum, or even a “quasi-public forum.”[54]

 

• A high school campus may not be entered by demonstrators without the permission of the school’s principal.   In such a case, Penal Code sections 627.2 and 627.7 may be enforced.[55]  But the rule is otherwise if the demonstrators set up their activities on the sidewalk in front of the school, so long as the sidewalk or streets are not being blocked.[56] Also note that the same protections are not necessarily accorded to a college campus where free speech receives greater protection; a college campus having “long been recognized as a ‘center for free intellectual debate.’ (Citation)”[57]  Also, driving a truck around a school with offensive pictures (aborted fetuses) displayed on the side of the truck is protected by the Constitution no matter how offensive or shocking their message might be to some people. [58] 

 

(Note:  Penal Code § 626.8 was expanded effective 1/1/2012 [AB 123] to include “willfully or knowingly creating a disruption with the intent to threaten the immediate physical safety of any pupil in preschool, kindergarten, or any of grades 1 to 8, inclusive, arriving at, attending, or leaving from school,” in an apparent attempt to get around the holding in Center for Bio-Ethical Reform; see fn. 40, below.)

 

• A secured apartment complex, as “a place where the public is generally excluded, where an individual can escape the public forum by retreating into his or her apartment and closing the door,” is not required to allow leafleting to its tenants.[59]

 

• An auditorium located within a public university’s laboratory complex used for large technical group meetings “clearly do(es) not qualify it as a traditional public forum, nor even as a ‘semi-public forum.’”[60]

 

• The advertising within or on a transit bus, not being the equivalent of a public forum, may be restricted as to its content,[61] particularly when a proposed advertisement provides false information.[62]

 

But see the concurring opinion from the U.S. Supreme Court’s denial of certiorari—concurring only because the full court was not available to consider the issues—holding that if they did hear the case, they should reverse the D.C. Circuit’s decision in that forbidding transit bus advertisements based on its religious content constitutes “discrimination by a governmental entity and a violation of the First Amendment.”[63]

 

And also see a case out of the Third Circuit Court of Appeal where the federal Court held that the Southeastern Pennsylvania Transportation Authority cannot prohibit ads in its busses that are political in nature or reference matters of public debate, finding the Transportation Authority’s standards were unconstitutionally overbroad and incapable of reasoned application. The court pointed specifically to SEPTA’s broad prohibition against advertisements referencing “certain political messages” and “public debate” as violations of the First Amendment. [64]

 

The Ninth Circuit has also ruled on the issue, holding that public buses’ sides constitute a “limited public forum” because the county had adopted and consistently implemented a formal policy requiring screening of all potential advertisements, and where the purpose of the bus advertising program was to generate revenue such that expressive activities were incident to the commercial venture.  Rejection of the advertisement in question was a proper viewpoint-neutral and content-based limitation because the exclusion was consistent with the intended purpose of the buses to provide safe and reliable transportation, the standard was sufficiently definite and objective to prevent arbitrary and discriminatory enforcement, and the threat of disruption of bus service was real and not speculative.[65] 

 

However, in another seemingly similar case, the Court reached the opposite conclusion in ruling that a city’s transit authority violated a union’s First Amendment rights by declining, under its advertising policy, to run the union's proposed advertisement on the authority's buses because, even though the authority’s advertising program, which was a “limited public forum,” had legitimate concerns with transportation services and safety, none of the authority’s reasons for rejecting the union’s proposed ad was supported by an independent review of the record.  In particular, the record did not support the authority’s rejection of the union’s ad as public issue advertising, and rejection of the union’s ad on the basis that it did not propose a strictly commercial transaction was belied by the breadth of the authority’s policy, which broadly allowed for advertising that more generally promoted an entity that engaged in commercial activity.[66] 

 

Also, in yet another case, reflecting the inconsistency of the various cases evaluating this issue, a plaintiff's complaint challenging the constitutionality of the City of Semi Valley’s regulations prohibiting mobile billboards on public property unless they qualified as authorized emergency or construction-related vehicles was held by the Ninth Circuit Court of Appeal to have been improperly dismissed after a federal district court erroneously concluded that the ordinances were content neutral and reasonable time, place, and manner restrictions that did not violate the First Amendment; the lower court evaluating the sufficiency of plaintiff’s complaint against the wrong standard. The Court held instead that the authorized vehicle exemption was a content-based distinction, which triggered strict scrutiny review.[67]

 

The federal Sixth Circuit Court of Appeal has chimed in on the issue as well, siding with a conservative free speech group by ruling that a Detroit-area public transit authority’s ban on political speech in ads on its buses violated the First Amendment because such speech is not clearly defined.  The American Freedom Defense Initiative (AFDI) filed suit against the Suburban Mobility Authority for Regional Transportation, or SMART, in 2010, after two of its proposed ads regarding Islam were rejected for placement on buses. The ads were part of an outreach by AFDI to Muslims who wanted to leave the Islamic faith and promoted the website RefugefromIslam.com.  AFDI was initially successful and obtained an injunction from a federal judge, but the Sixth Circuit overturned the ruling in 2012 and held SMART had enacted a permissible total ban on political advertising.  In so deciding, the Court focused heavily on recent Supreme Court decisions, including the 2018 case Minnesota Voters Alliance v. Mansky. [68]  Mansky involved a ban on political apparel at polling locations, but the Supreme Court struck the law down as unconstitutional because of the lack of a definition of the term “political,” pointing out that SMART’s failure to precisely define political speech runs afoul of the precedent established in Mansky.[69]

 

When White Coat Waste Project tried to run a bus advertisement denouncing animal experimentation with the Greater Richmond Transit Company, the ad was denied by the Transit Company for being impermissibly “political.” White Coat challenged that denial as a violation of its First Amendment rights. Richmond Transit responded that, as a private company, it is not bound by the First Amendment, and even if it were, its policy passes constitutional muster because it only restrains speech in a nonpublic forum.  The federal Fourth Circuit concluded, however, that Richmond Transit is in fact a government actor, even though formally organized as a corporation.  Per the Court, it’s a “[g]overnment-created and -controlled corporation” (such as, for instance, Amtrak), created by the government for a government function and run by the government.  Although the government is permitted to constrain speech on its buses, such restrictions must be viewpoint-neutral and reasonable. The Court concluded that the restriction imposed in this case was not reasonable and therefore could not stand (specifically not getting to the issue of “viewpoint-neutral.”)[70]

 

• A city ordinance prohibiting the solicitation and immediate receipt of funds inside an airport terminal (i.e., Los Angeles International Airport, in this case), in its parking areas, and the adjacent sidewalks, “in a continuous or repetitive manner,” was held to be a reasonable time place and manner restriction on the California constitutional free speech rights of the International Society for Krishna Consciousness, in a decision issued by the California Supreme Court.  The ordinance notably did not seek to ban the solicitation of funds to be collected in the future, the passing out of leaflets, or talking with willing persons walking by, the Court finding the attempt to collect money on the spot to be more disruptive in an already-busy airport than these other activities.[71]  The Ninth Circuit agreed, finding the ordinance to be a reasonable restriction on the right to free speech under the First Amendment.  The Ninth Circuit’s reasoning included the finding that major international airports had a legitimate interest in controlling pedestrian congestion and reducing the risk of fraud and duress attendant to repetitive, in-person solicitation for the immediate receipt of funds.  Also, the ordinance was limited in nature and left open alternative channels to raise funds.[72]

 

• A court may impose as a condition of probation in a theft-related case that a particular person stay out of a named retail store.  Such a probation condition may lawfully include all stores in that chain (e.g., Home Depot) state-wide.[73] 

 

• A high school supervisor who’s duties include maintaining an orderly and safe environment for the students, and who during a police-student confrontation (breaking up a fight) yells “police brutality” and tells students to videotape the altercation on their cellphones, while maybe not subject to criminal charges, was subject to administrative discipline, including being fired.  The “First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities.”[74]

 

• The lawfulness of the exclusion of demonstrators from a Border Patrol enforcement zone at a checkpoint area can only be determined by a judicial evaluation and eventual determination of the issue whether the area is a public or non-public forum.[75]

 

• In a case where the plaintiffs are owners and employees of a bikini barista stand in Everett, Washington, the Ninth Circuit ruled as to the plaintiffs’ First Amendment contention that the act of wearing almost no clothing (pasties and g-strings only) while serving coffee in a retail establishment constituted speech.  The Court further held that the plaintiffs had not demonstrated a “great likelihood” that their intended messages related to empowerment and confidence would be understood by those who view them. The panel concluded that the mode of dress at issue in this case was not sufficiently communicative to merit First Amendment protection.[76]

 

• Enacted to be effective on January 1, 2019 (SB 946), the so-called “Safe Sidewalk Vending Act” prohibits the arrest of vendors selling food or merchandise from a “pushcart, stand, display, pedal-driven cart, wagon, showcase, rack, or other non-motorized conveyance, or from one’s person, while upon any public sidewalk or other pedestrian path,” or while operating within a public park.[77]  Although permits may be required, violators of the relevant (extremely comprehensive) statutes may be cited and fined only with what is referred to as an “administrative fine.”[78]

 

True Threats:

 

            Aside from the above, there are occasions when a person issues what has become known in the law as a “true threat.”  Such activity—which has developed into a whole body of law unto itself—is not protected by the First Amendment freedom of speech.  For instance:

 

Threatening words written on a vehicle, if directed to a specific individual and the circumstances indicate that the person would actually act on those threats (i.e., a “true threat”), is not constitutionally protected speech. [79]  “The First Amendment does not protect violence.”[80]  Similarly, making a bomb threat is not protected speech under the First Amendment.[81] 

 

A workplace violence restraining order imposed on defendant under Code Civ. Proc. § 527.8, was supported by substantial evidence. A reasonable person could conclude that defendant disclosed a deputy city attorney’s address so that he would know defendant could find his residence. Defendant’s repeated threats, and the recent change in his attitude toward the deputy city attorney, also supported the trial court’s conclusion that defendant’s conduct was reasonably likely to recur in the absence of a restraining order.  The portions of the order that applied to speech—i.e., the prohibition against threats of violence and the order precluding appellant from disseminating the deputy city attorney's home address—were based upon specific prior threatening conduct that was not protected by the First Amendment. The order was therefore constitutionally permissible.[82]  The Court also noted that “(a)n actual intent to cause harm is not a requirement to prove a threat that falls outside the protection of the First Amendment. ‘The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats “protects individuals from the fear of violence” and “from the disruption that fear engenders,” in addition to protecting people “from the possibility that the threatened violence will occur.”’”[83]

 

A state university may impose discipline upon a student for “[c]onduct that threatens or endangers the health or safety of any person within or related to the University community, including physical abuse, threats, intimidation, harassment, or sexual misconduct,” as provided for under Title 5, section 41301(b)(7), of the California Code of Regulations.   However, this authority may not be used in retaliation against a student who, in a non-threatening manner, exercises his First Amendment freedom of expression rights to challenge the policies and activities of the university’s administration.[84]  This is an issue that, except to preserve the peace, is best litigated in court after the filing of a lawsuit.

 

However, where defendant sent a letter to the district attorney’s office, expressing anger over its handling of his parole violation case, it was held not to be punishable under Penal Code § 69 because it was not a “true threat” outside the protection of the First Amendment.  Under the circumstances, a reasonable listener would not have found the letter, stating that defendant’s confinement constituted a kidnapping of a Russian military operative and threatened that the entire office would be sentenced to death by firing squad, to be a serious expression of an intent to commit an act of unlawful violence because it was delusional, threatened violence by third parties who were not defendant’s associates, and included repeated assurances that defendant was not threatening to personally commit violence.[85]

 

Rioting or threatening to riot have sometimes been defended under the guise of a First Amendment free speech right.  However, the courts have drawn the line between one’s freedom of expression and “true threats.”  The Ninth Circuit has explained the differences between the two where it held that a district court erred in finding the federal Anti-Riot Act was facially overbroad and dismissed an indictment against defendants that charged them with conspiracy to violate, and violating, the Act.  The Ninth Circuit, in reversing the district court, held that 18 U.S.C. § 2101(a)(1), (2), and (4) do not violate the First Amendment except insofar as § 2101(a)(2) prohibits speech tending to “organize,” “promote,” or “encourage” a riot, and 18 U.S.C.S. § 2102(b) expands the prohibition to “urging” a riot and to mere advocacy.  However, those offending portions of the Act were held by the Ninth Circuit to be severable from the remainder of the Act, and that once the offending language was removed, the remainder of the Act is not unconstitutional on its face.[86]

In discussing “true threats,” the Ninth Circuit meticulously defines its applicability under the First Amendment where the defendant was claiming that the term “riot” is unconstitutional on its face.  Per the Court; “A ‘riot’ requires either one or more ‘acts of violence’ or one or more ‘threats’ to commit one or more acts of violence. (18 U.S.C.) § 2102(a). The completed acts of violence (or the threatened acts of violence) must ‘constitute a clear and present danger of, or . . . result in, damage or injury to the property . . . or to the person of any other individual.’ Id.  ( ) Acts of violence are not protected under the First Amendment. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 . . . (1982). Nor are ‘true threats,” which involve subjective intent to threaten.  See (United States v. Cassel, 408 F.3rd (622) at 633 (9th Cir. 2005); see also Virginia v. Black, 538 U.S. 343, 359-60 . . . (2003). ‘True threats’ are not limited to bodily harm only but also include property damage. See Cassel, 408 F.3d at 636-37; see also (United States v.) Miselis, 972 F.3d at 540 (4th Cir. 2020); United States v. Coss, 677 F.3d 278, 283-84, 289-90 (6th Cir. 2012); United States v. Parr, 545 F.3d 491, 497 (7th Cir. 2008). ( ) ‘[W]e do not hesitate to construe’ a statute punishing threats ‘to require . . . intent’ to threaten. Cassel, 408 F.3rd at 634; cf. Elonis v. United States, 575 U.S. 723, . . . (2015). By requiring proof of ‘intent’ and proof that the overt act was committed ‘for [the] purpose’ of a riot, (fn. omitted) which also indicates subjective intent, (fn. omitted) Congress limited the ‘threats’ part of the definition of a riot to ‘true threats.’ Thus, a ‘riot,’ as defined in the Act, is not protected under the First Amendment.[87]

The Police Officer’s Dilemma:

 

Again, the existence of an exception to the general “don’t arrest” rule doesn’t always mean that a police officer is the one who should be making this decision.  Nor does it mean that there is even an applicable criminal statute authorizing an arrest.  Absent a clear cut violation of an established criminal statute, and sometimes even then, it is still often best to let a civil court make the decision.  This is partially because the issue can get even more complicated in that there may be exceptions to these exceptions. 

 

For instance:  “(W)here the property owner itself is the subject of a public dispute or controversy—as for instance a labor dispute—its property may as a practical matter be the only available forum to effectively express views on the controversy and it may be required to give its opponents access to its property.”[88]  In a labor dispute, therefore, it would likely be held that it is improper for a police officer to attempt to assist the business owner in evicting the demonstrators.

 

            A police officer is simply not equipped to evaluate a shopping mall or other business’s efforts to regulate speech based upon the content (i.e., the subject matter) of whatever it is a person might be intending to relate to others.  For instance, attempts by a privately owned shopping mall to prohibit non-commercial expressive activity unrelated to the shopping mall’s businesses (i.e., a pastor discussing his religious beliefs with patrons who were willing to talk with him), being “content based” and non-disruptive to the mall’s activities, was held to be a violation of California’s Constitution, Article I, Section 2.[89]

 

            For those instances when the expressive activity is legally taking place on private property, such activity might still be subject to “reasonable time, place and manner” restrictions.  Determining which such restrictions might be enforceable and under what circumstances, is inherently problematic.  Whether or not a store’s own rules concerning time, place and manner restrictions are appropriate requires a court’s evaluation of the rules themselves, taking into account all the surrounding circumstances.[90]  For instance, it has been held that if a store is allowed to exercise discretion in enforcing its own rules without reference to some objective standards, “the regulation runs the risk of governing speech on the basis of its content,” making discriminatory practices possible.  Such a rule will not likely be upheld by a court if challenged.[91]

 

What seems to be happening, in practice, is that store administrators or their agents will cite one or more of the above listed exceptions, each standing for the right of a business or shopping complex to exclude, or at least limit, solicitors, and argue to the responding police officer that the case means that the officer must arrest the solicitor for trespass.  To the contrary:  All that these cases stand for is that the business or shopping complex has the power and the right to enforce their interests in a civil court of law.  Certainly, the store would much prefer to take a short cut and have a police officer solve their problems for them, relieving them of the need to institute a civil proceedings.  But that is not the way it should be done. 

 

Also, for officers who might be concerned that Penal Code § 142 mandates that an officer accept a person arrested by a private citizen when the arresting citizen insists, it should be noted that the Legislature amended section 142 a few years back, specifically making its mandatory provisions inapplicable to the citizen’s arrest situation.[92] Whether or not an officer determines to take custody of a person who is the subject of a citizen’s arrest is at the officer’s discretion.  In determining that there is no probable cause justifying an arrest, it would seem that an officer’s discretion would dictate that he or she decline to do so.

 

Students’ First Amendment Rights on and off School Grounds:

 

            School administrators have an interest in maintaining discipline and decorum on school grounds so that students have the opportunity to learn with a minimum of disruption.  That interest, however, sometimes has to be balanced with the individual students’ right to freedom of expression under the First Amendment.  Even students have a First Amendment right to express their views. When they choose to do so on campus, potentially interfering with the challenges already faced by teachers and school administrators, the courts are bound to decide where to draw the line.

           

            The United States Supreme Court decided way back in 1969 that school administrators cannot blindly prevent students from expressing views on controversial topics.  The landmark case on this issue is Tinker v. Des Moines Independent Community School District.[93]

 

            In Tinker, respondent school officials suspended petitioner students from public high school because they wore black armbands to school in protest of the Vietnam War. Petitioners sued the school officials under 42 U.S.C.S. § 1983. The trial court dismissed the complaint, upholding the constitutionality of respondents’ actions on the grounds that they were reasonable, given the need to prevent the disturbance of school discipline. The Eighth Circuit Court of Appeal affirmed.[94]

 

The Supreme Court reversed, holding that the wearing of armbands was entirely divorced from actually or potentially disruptive conduct by those who participated in it.  In so ruling, the Court held that the students’ conduct was closely akin to what the Court referred to as “pure speech.” As such it is entitled to comprehensive protection under the First Amendment, absent facts that might reasonably have led school officials to forecast substantial disruption of or material interference with school activities.  The school officials failed to meet this standard.

 

            The issue of students expressing their political views on campus came up once again, this time being discussed by the Seventh Circuit, where students were punished by Wisconsin school officials for expressing their opinion on a controversial subject; this time the Second Amendment and the right to bear arms. 

 

N.J. v. Sonnabend,[95] decided by the Seventh Circuit, dealt with the rights of two separate students in two separate schools to wear T-shirts supporting the Second Amendment, communicating to anyone who read the inscriptions and noted the depictions of firearms on their respective shirts that the students supported the right to bear arms; an arguably controversial subject, particularly in light of the recent school shootings.  The plaintiff-student’s apparent opinions on this issue were not favorably received by school officials.  

            While the schools’ rules did not expressly ban the wearing of such shirts, they did prohibit the wearing of “inappropriate attire” which, as interpreted by the schools’ administrators, included clothing bearing the images of firearms.  The students countered with the argument that their t-shirts were not disruptive, and thus protected under Tinker.  The trial court ruled, however, that Tinker did not apply to the schools’ “viewpoint-neutral speech restrictions.”  The students appealed.

            The Seventh Circuit failed to resolve the issue, returning the case to trial court for a renewed consideration of the Tinker standard as it applies to this case.  While not resolving the issues raised here, the Court did provide a helpful discussion of its interpretation of the Tinker decision. 

In so doing, the Court pointed out that Tinker held that a school’s restrictions on student speech may be constitutionally justified if the school officials can show that the speech in question “would materially and substantially disrupt the work and discipline of the school” or invade the rights of others. It is not necessary to prove that “unless the speech at issue is forbidden, serious consequences will in fact ensure.”  Per the Court, school officials must present “facts [that] might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities” or the invasion of the rights of others. This, the Court held, is an objective inquiry, placing the burden of justifying student-speech restrictions squarely on school officials.

At the same time, the Tinker standard acknowledges the broad authority of school officials to maintain order and discipline and establish conditions in the school environment that are conducive to learning.  School officials are not obligated to tolerate student speech that is inconsistent with its basic educational mission.

It was also noted that in applying the rule of Tinker, a court must consider such factors as the age and grade level of the students to whom the speech is directed as well as any other factor particular to the educational environment or history of the school or student body in question.

But because the trial court in this case failed to apply Tinker appropriately, the case was remanded to the trial court for further consideration.[96] 

The United States Supreme Court (in an 8-to-1 decision) ruled that a public high school violated a student’s First Amendment rights by suspending her from the cheerleading team when, outside of school hours and away from campus, the student transmitted on social media vulgar language and gestures (i.e.,  posting pictures on the social media “snapchat,” showing the minor and a friend with middle fingers raised, bearing the caption: “F__k school f__k softball f__k cheer f__k everything.”) criticizing the school and its cheerleading team. The High Court ruled that although the school’s regulatory interests remained significant in some off-campus circumstances, certain features of off-campus speech diminished the strength of the unique educational characteristics that might call for special First Amendment leeway.  Under the facts of this case, the school’s interest in prohibiting students from using vulgar language to criticize a school team or its coaches did not overcome the student’s First Amendment interests in free expression. Contrary, perhaps, to what authority the school might have, had she expressed the same sentiments while on campus during school hours, the student spoke under the circumstances of this case where the school did not stand in “loco parentis,” and there was no evidence of a substantial disruption of a school activity.[97]

 

In a similar case, the Tenth Circuit Court of Appeal held that a student had a right to sue for a violation of his First Amendment and due process rights after he had been expelled from school for posting a Snapchat photo of he and his friends wearing wigs and hats in a thrift store, including a hat that resembled a foreign military hat from the World War II period, that had included the caption: “Me and the boys bout to exterminate some Jews.”[98] As offensive and insensitive as such language may be, a person—a high school student in this case—has a constitutional right to at least say it.

 

Use of a Publicly Accessible Social Media Page:

In a case involving school officials restrictions on the use of an otherwise publicly accessible social media page, the Ninth Circuit affirmed the district court’s bench trial judgment in favor of plaintiffs in an action brought pursuant to 42 U.S.C. § 1983.  Plaintiffs alleged in their lawsuit that two members of the Poway Unified School District Board of Trustees violated plaintiffs First Amendment rights by ejecting plaintiffs from the Trustees’ social media pages that was being used to communicate with constituents about public issues.[99] 

The Court in this case noted that plaintiffs’ claims presented an issue of first impression in the Ninth Circuit; i.e., whether a state official violates the First Amendment by creating a publicly accessible social media page related to his or her official duties and then blocking certain members of the public from that page because of the nature of their comments.

The three-justice panel held that under the circumstances presented here, the Trustees acted under color of state law by using their social media pages as public fora in carrying out their official duties. The Court further held that, applying First Amendment public forum criteria, the restrictions imposed on the plaintiffs’ expression were not appropriately tailored to serve a significant governmental interest and so were invalid. The panel concluded that the Trustees violated plaintiffs’ First Amendment freedom of expression rights and that the district court was therefore correct to grant the plaintiffs’ declaratory and injunctive relief.

In so ruling, the Court rejected the Trustees’ assertion that the dispute was moot because after plaintiffs filed their lawsuit, the Trustees began using a word filter on Facebook to prevent any new comments from being posted on their Facebook pages, thereby closing the Facebook pages as public fora. The panel held that: (1) Using a word filter on Facebook would not affect plaintiff Christopher Garnier’s claims involving being blocked from Twitter; (2) the word filter limit did not change Facebook’s non-verbal “reaction” feature; and (3) the Trustees failed to carry their burden of showing they would not, in the future, remove the word filters from their Facebook pages and again open those pages up for verbal comments from the public.

The Court also rejected the Trustees’ assertion that creating, maintaining, and blocking plaintiffs from their social media accounts did not constitute state action under § 1983. Both through appearance and content, the Trustees held their social media pages out to be official channels of communication with the public about the work of the Poway Unified School District Board. Given the close nexus between the Trustees’ use of their social media pages and their official positions, the Trustees in this case were acting under color of state law when they blocked plaintiffs.

The Court further rejected the Trustees’ assertion that blocking plaintiffs was a narrowly tailored time, place, or manner restriction. Per the Court, even if plaintiffs’ comments did interfere with the Trustees’ interests in facilitating discussion or avoiding disruption on their social media pages, the Trustees’ decision to block plaintiffs burdened substantially more speech than was necessary and therefore was not narrowly tailored.

Addressing plaintiffs’ cross appeal, the Court held that the district court correctly concluded that at the time the Trustees blocked plaintiffs, it was not clearly established that plaintiffs had a First Amendment right to post comments on a public official’s Facebook or Twitter page. The district court therefore did not err by granting qualified immunity to the Trustees as to plaintiffs’ damages claim.

It will be interesting to see what effect, if any, this case might have on the common practice of some social medial forums, such as Twitter, to block or suspend the accounts of some individuals due to the controversial nature of the comments made by those individuals. 

The First Amendment and the Free Exercise Clause, the Establishment Clause, and Free Speech:

 

A high school football coach who lost his job because he knelt at midfield after games to pray, inviting his players to join him, was held by the U.S. Supreme Court to have a constitutional right to do so.[100]   In so deciding, the Court held that the plaintiff coach carried his burden in establishing that the school district infringed upon his rights under the Free Exercise Clause of the First Amendment because the school district had failed to act pursuant to a neutral and generally applicable rule.  The “Free Exercise Clause” refers to the section of the First Amendment prohibiting Congress from making a law respecting the establishment of religion.  The High Court also held that the school district failed to prove that its actions were essential to avoid a violation of the Establishment Clause. The “Establishment Clause” refers to the constitutional prohibition on the government establishing a religion.  In this case it was also held that the coach had established an infringement of his rights under the First Amendment’s Free Speech Clause because his speech was private—not government—speech, as the prayers were not ordinarily within the scope of his duties as a coach.  Lastly, it was noted that a First Amendment violation does not automatically follow whenever a public school or other governmental entity fails to censor private religious speech, and there was no evidence that the students were coerced to pray with their coach.[101]

 

 

 

Profane and Offensive Speech:

 

The use of profanity, as tasteless as the practice may be to many who have to listen to it, and as indicative of a lack of character as it is, is generally a First Amendment protected means of expression.  Examples:

 

In the landmark U.S. Supreme Court case decision of Cohen v. California,[102] defendant—not a fan of the government’s practice of drafting individuals into the military—wore a jacket in a county courthouse with lettering on the back expressing his discontent over the draft that read; “F__k The Draft.”  He was criminally charged and convicted for disturbing the peace, pursuant to P.C. § 415, which prohibits “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct . . . .”  After his conviction was affirmed by the state Second District Court of Appeal, the United States Supreme Court granted certiorari.  In reversing defendant’s conviction, the Supreme Court rejected the state’s argument that the four-letter expletive imprinted on defendant’s jacket was “offensive conduct” that might provoke others to violence against defendant, noting that he did not engage in any act of violence, or make any loud noises, when he wore the jacket in the municipal courthouse as an expression of his feelings toward the Vietnam War and the draft. A conviction resting solely upon “speech” may be justified under the First and Fourteenth Amendments only for the manner that the freedom was exercised, but not for the content of the message. The Court observed that the statute was not limited to protecting courtroom decorum, nor directed at erotic messages, and the message did not consist of “fighting words,” directed at readers of the message. That the message was thrust upon unsuspecting viewers, who were not captive and could avert their eyes, did not entitle the state to protect the sensitive by curtailing all such speech. Moreover, no evidence demonstrated that anyone was prepared to strike out at whomever assaulted their sensibilities.[103]

 

California, however, has made it illegal (as a form of “disturbing the peace”) where a person “uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.”[104]  The use of this section has been held to be constitutional on numerous occasions.[105]  More recent decisions tend to cast some doubt upon the continuing validity of this theory (see below).

 

Officers also need to be aware, for instance, that a demonstrator’s lack of civility in a contact with a police officer does not provide the officer with probable cause to arrest.  A citizen has a First Amendment constitutional right to be critical of the police, even to the point where he or she directs profanity or obscene gestures at an officer.  Such conduct does not constitute “disorderly conduct” or any other form of resisting an officer in the performance of his duties, and thus cannot provide the necessary probable cause for an arrest.[106] 

 

The federal Fourth Circuit Court of Appeals applied even tighter standards in a case where the defendant was held to have been improperly convicted for using “abusive language” under Va. Code § 18.2-416, ruling that although an ugly racial epithet was used by defendant, and that it constituted extremely “abusive language,” the government failed to prove (or even to offer evidence) that defendant’s use of a highly offensive slur tended to cause immediate acts of violence by anyone.  In this case, former military officer Jules Bartow was shopping at the Quantico Marine Corps Exchange when he used a racist slur that generally seemed aimed at either an African American employee or an African American man in civilian clothes. Bartow was escorted out of the store and arrested by base security officers. He was then criminally convicted for using “abusive language” in violation of Virginia Code § 18.2-416.  While the Fourth Circuit Court of Appeals found that the racist slur to be “abhorrent” and “undoubtedly” constituted “abusive language,” it was held that the government failed to prove that Bartow’s use of the slur caused immediate violence by anyone. The court stated that the Virginia statute did not criminalize the use of the words used and it was “not a fighting word per se.” It was unclear to whom Bartow addressed the slur.  The Court also found that the government offered no evidence that any of the individuals towards whom it may have been addressed reacted violently, or that a reasonable person in their positions would have done so.[107]

 

Similarly, the Sixth Circuit Court of Appeal held that a plaintiff’s First Amendment rights were violated in a case where the plaintiff appeared to be doing everything he could, verbally, to get himself arrested.  In this case, the plaintiff went to a county fair wearing a shirt that clearly expressed his opinion of the police.  I.e., “F__k The Police.”  He was contacted by deputy sheriffs, but not arrested, when other fair-goers complained.  Several hours later, after having removed his shirt, he was contacted again; this time by six officers and the Executive Director of the fairgrounds.  Told that he had to leave the fair grounds and given his entrance fee back, plaintiff was escorted from the fairgrounds.  While being led out, plaintiff tested the limits to the deputies’ patience by calling them such things as “thugs with badges,” “f__king thugs with guns,” “f__king thugs with badges,” “six bitch ass f__king pigs,” “dirty rat bastards,” and “eight pussies with badges,” among other things.  Finally getting what he wanted, plaintiff found himself arrested for various state disturbing the peace offenses, similar to California’s Pen. Code § 415.  After the local prosecutor declined to prosecute, plaintiff filed a 42 U.S.C. § 1983 lawsuit in federal court alleging a violation of his First Amendment rights and being retaliated against for having worn his “F__k The Police” shirt.  The Sixth Circuit reversed the trial court’s dismissal of the lawsuit, holding that police officers are held to a higher standard than average citizens, the First Amendment requiring them to tolerate “coarse criticism.” The Court held that the plaintiff’s obscene comments did not amount to “fighting words,” as required by the state’s statutes.  As such, it was ruled that the officers did not have qualified immunity against civil suit on either the First Amendment violation or the retaliation theories advanced by the plaintiff.[108]

 

See “Students’ First Amendment Rights on and off School Grounds,” above, for examples involving school students using profane or abusive language, as it relates to their First Amendment rights.

 

Picketing: 

 

Labor-related picketing raises a whole other set of issues that police officers are in no position to resolve, except to know that the courts tend to give such activities even more protections.  Labor-related picketing is generally recognized as “a special class of protected activity.”[109] The legality of, and procedures applicable to such demonstrations on private property necessitate consideration of such statutory enactments as the Labor Management Relations Act and other federal code provisions.[110]  These are complicated issues that lawyers and courts literally take years to resolve.

 

For instance, the California Supreme Court has held that a Ralph’s Supermarket’s privately owned entrance area, at least under the facts of one case, was not a “public forum” under the California’s liberty of speech provisions,[111] and therefore doesn’t enjoy state constitutional protections as other nearby areas and that other considerations that must be taken into account.  In this regard, the Court held that Labor Code § 1138.1, as well as something called the “Moscone Act,” which together comprise a part of a state statutory system for regulating labor relations and which are modeled on federal law, do apply.  In reaching this conclusion, the Court reversed the appellate court’s conclusion that the Moscone Act and Lab. Code. § 1138.1 violate the First and Fourteenth Amendments to the U.S. Constitution. [112]  

 

Per the California Supreme Court, the two statutes do not violate either the U.S. Constitution’s free speech or equal protection guarantees on the ground that they give speech regarding a labor dispute greater protection than speech on other subjects.  Both statutes afford substantive and procedural protections to peaceful union picketing on a private sidewalk outside a targeted retail store during a labor dispute.  Therefore, such picketing may not be enjoined (or stopped) on the ground that it constitutes a trespass.[113]  If a court can’t enjoin such activity, police officers similarly cannot be making arrests based upon an alleged trespass. 

            The rights of the picketers in this case involved issues that the courts batted back and forth for months, taking into account the actual physical makeup of the location of the picketing, with specific justices disagreeing with each other until the issues were finally resolved by the Supreme Court.  Even then, the Court issued four separate concurring opinions.  To expect a police officer at the scene, and without the benefit of months of contested litigation enjoyed by the appellate courts, to reach a just and correct resolution in such a circumstance, is completely unrealistic. 

 

It has also been held that labor union picketers may be precluded from picketing and conducting other demonstrations (i.e., loud chanting, singing, marching, carrying posters or placards, taking photographs, recording video footage, and distributing written materials or business cards) inside a retail establishment.[114] However, this decision was reached as a result of Walmart filing a civil complaint in the Los Angeles superior court for trespass, seeking injunctive and declaratory relief against the union, and not the result of any law enforcement action taken at the time of the civil defendant’s actions inside the store.  Should a retail establishment representative seek a criminal trespass arrest, citing this Walmart case, a responding officer should point out to the complainant that there is a difference between a civil and a criminal trespass, and refer the person to his or her store’s attorneys.

 

Whether or not picketing is legal, however, often involves issues that a patrol officer is in no position to decide.  Even when later considered by the courts, there may be honest differences of opinion.  For instance, in one particular case, the Ninth Circuit Court of Appeals held that the National Labor Relations Board erred in concluding that the employees' picketing in front of the commercial office building where they worked violated § 8(b)(4)(ii)(B) of the National Labor Relations Act, found in 29 U.S.C. § 158(b)(4)(ii)(B); a source no officer in the field can be expected to be familiar with.  Ultimately, it took an appellate court to tell us that the Board failed to identify substantial independent evidence rebutting the presumption that the employees’ picketing was lawful as the union never made any statements or took any actions indicating that an objective of its picketing was to coerce the building manager into pressuring the employer to meet the employees' demands.[115]

 

Using Sound Amplifying Devices:

 

How about the use of an amplifying device to make one’s presence even more disturbing   It depends, apparently, upon the nature of the place where the noise is occurring. 

 

For instance, the Ninth Circuit Court of Appeal (in a split 2-to-1 decision) has held that the use of an amplifying device in a location which is already noisy is lawful and cannot be prevented.  A preliminary injunction against enforcement of a city ordinance that required individuals to obtain permits before using sound amplifying devices within the city should have been granted because the permit requirement was a unconstitutional “prior restraint” that chilled First Amendment free speech rights and would continue to chill these rights absent injunctive relief.  At least in this case, where plaintiff sought to use a bullhorn in front of the 138- acre Six Flags Discovery Kingdom, the City of Vallejo failed to show that it would suffer any hardship from the issuance of a preliminary injunction.  Per the Court, The sidewalk next to Six Flags “is not an area of the city where people come to seek peace and quietude,” inferring that in other areas where “peace and quietude” are not an unreasonable expectation, such an ordinance might be enforceable. Also, although the city had amended the ordinance after the litigation had commenced, the case was not thereby rendered moot under U.S. Const. art. III because the amended ordinance only eliminated a permit fee, which did not eliminate the asserted harm caused by the permit requirement.[116]

 

Abortion Clinics:

 

            When Massachusetts enacted a statute that mandated that “counselors” (i.e., individuals who attempted to intercept women proceeding to a “reproductive health care facility” and counsel them on alternatives to abortion) remain at least 35 feet from a clinic’s entrance and its driveway (Mass. Gen. Laws, ch. 266, §§ 120E1/2(a), (b)), thus creating a safe “buffer zone” for pregnant women, the United States Supreme Court ruled in McCullen v. Coakley[117] that such a statute violates the counselor’s First Amendment rights.  By its very terms, the statute was held to restrict access to “public way[s]” and “sidewalk[s];” places that have traditionally been open for speech activities and that the Court has accordingly labeled “traditional public fora.”  The Court found the statute to be too broad and not “narrowly tailored” in that it “burden[s] substantially more speech than is necessary to further government’s legitimate interests.”

 

Similarly, it has been held in a California case that a city ordinance (Oakland) that sought to regulate the activities of certain individuals in front of an abortion clinic, but not others, when the different levels of enforcement are based upon the content of the message each represents (i.e., it is not “content-neutral”), is presumptively invalid.[118]

 

            Cases prior to the recent U.S. Supreme Court’s McCullen decision have reached seemingly conflicting conclusions in similar situations.  This is because in attempting to determine the legality of demonstrating, or “counseling,” in front of abortion clinics, the demonstrators’ (or “counselors’) First Amendment free speech and assembly rights must be balanced with the health and safety interests of women attempting to obtain medical services, including clinical abortions, in a private medical facility.[119] The results of such balancing will inevitably vary with the circumstances, taking into account any number of other factors. 

 

            For instance, a medical clinic, where persons are picketing or distributing leaflets on privately owned property, such as a 40-space parking lot of a small clinic that provides family planning services including abortions, has been held not to be a public forum.  In such a case, at least where the property is posted as being for the exclusive use of patients and staff, and after the demonstrators have refused to leave when requested to do so, it was held that the protestors may be arrested for trespassing, per P.C. § 602(o).[120] However, in light of the United States Supreme Court’s decision in McCullen v. Coakley, the correctness of this case is now in question, or at least should be reevaluated. 

 

Whether or not it is wise to make such an arrest, therefore, is questionable given all the factors that must be considered in determining the constitutionality of the protestors’ activities.  This, again, is probably something that an officer in the field is not equipped to decide.

 

California’s Freedom of Access to Clinic and Church Entrances Act (“FACE Act”); Penal Code §§ 423 et seq.:

 

            Related to the above, specific misdemeanor criminal violations, enacted for the protection of health care services providers and their “clients,” as well as for places of religious worship, were added to the Penal Code, and may, where necessary, be enforceable by law enforcement officers.  These new sections outlaw the intentional injury to, intimidation of, or interference with, or attempt to do so, any person or entity because that person or entity is a reproductive health services client, provider, or assistant, “by force, threat of force, or physical obstruction that is a crime of violence.”  (P.C. § 423.2(a))  The same protections are given to any person who is lawfully exercising or seeking to exercise his or her First Amendment right of religious freedom at a place of religious worship.  (subd. (b))[121] 

                                                                                             

The new sections also prohibit the “nonviolent physical obstruction” of a reproductive health services client, provider, or assistant (subd. (c)), or a place of religious worship (subd. (d)), where such action involves the intentional injury to, intimidation of, or interference with, the victim. 

 

All the relevant terms are specifically defined in P.C. § 423.1.  For instance, to “interfere with” means “to restrict a person's freedom of movement.”  (subd. (b)) To “intimidate” means “to place a person in reasonable apprehension of bodily harm to herself or himself or to another.”  (subd. (c)) And “physical obstruction” means “rendering ingress to or egress from a reproductive health services facility or to or from a place of religious worship impassable to another person, or rendering passage to or from a reproductive health services facility or a place of religious worship unreasonably difficult or hazardous to another person.”  (subd. (e))

 

But the Legislature, in enacting these statutes, specifically noted that “nothing in this act, and no actions by anyone pursuant to this act, (are intended) to otherwise harm anyone because of his or her beliefs, constitutionally protected speech, or lawful actions.”  (Stats 2001, ch 899, subd. (f))  While there are as of yet no case decisions interpreting the scope of these new provisions, it is apparent from this statement of intent that they are not to be used to limit peaceful protests or the exercise of a protestor’s First Amendment freedom of speech rights.  In other words, so long as protestors at reproductive health services facilities aren’t in clear violation of the “interference . . . of movement,” “intimidation,” and “physical obstruction” prohibitions, arrests should not be made.  And even when protestors are pushing the envelope on these issues, it might be best if any arrests are preceded by a warning.

 

Certainly, a court of appeal will not allow the standard trespass provisions to circumvent these section 243 et seq. restrictions on law enforcement actions at the scene of a peaceful demonstration.  This again should be the subject of a determination by a civil court based upon an evidentiary hearing where “reasonable time, place, and manner restrictions,” if any, may be imposed by the court.  Police officers at the scene” should not be expected to guess what those restrictions might be.

 

Vaccination Sites:

 

On October 8, 2021, Governor Newsom signed into law SB 742, enacting new Penal Code section 594.39.  Designated as “emergency legislation,” section 594.39 was effective immediately. This new section makes it a misdemeanor (Subd. (b)), punishable by up to $1,000 fine and/or up to six months in county jail, to;

 

“. . . knowingly approach within 30 feet of any person while a person is within 100 feet of the entrance or exit of a vaccination site and is seeking to enter or exit a vaccination site, or any occupied motor vehicle seeking entry or exit to a vaccination site, for the purpose of obstructing, injuring, harassing, intimidating, or interfering with that person or vehicle occupant.”  (Subd. (a))

 

The relevant definitions (i.e., “obstructing,” etc.) are contained in Subd. (c).  Of importance here is the Legislature’s definition of “harassing,” contained in Subd. (c)(1):

 

“‘Harassing’ means knowingly approaching, without consent, within 30 feet of another person or occupied vehicle for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with, that other person in a public way or on a sidewalk area.”

 

Shortly after its enactment, a federal district court judge ruled that the law’s “uncommon definition” of “harassing,” as it is defined in the statute, is overly broad and unconstitutionally vague.  So the judge issued a temporary restraining order barring the state from enforcing the “harassing” portion of this new law, specifically leaving in place the remainder of the statute, i.e.; the restrictions on “obstructing (Subd. (c)(4)), injuring (not defined), intimidating (Subd. (c)(3)), or interfering with (Subd. (c)(2)) that person or vehicle occupant.” The problem with the term “harassing,” per the judge, is that its definition as contained in the statute is too broad and too vague, necessarily “conducive to different and conflicting interpretations on what conduct is even prohibited by its terms.”  This all comes under the constitutional requirement that criminal statutes cannot be so broad that they necessarily include constitutionally protected activity, and/or so vague as to fail to give notice to reasonable persons that what they are doing is illegal.[122] 

 

Also in Penal Code section 594.39 are definitions for a “true threat” (i.e., Subd. (c)(5)): I.e., a statement in which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular person or group of persons regardless of whether the person actually intends to act on the threat; and “Vaccination site” (i.e., Subd. (c)(6)): I.e., the physical location where vaccination services are provided, including, but not limited to, a hospital, physician’s office, clinic, or any retail space or pop-up location made available for vaccination services.  The section also specifically exempts from its provisions “lawful picketing,” as the term is defined section 527.3 of the Code of Civil Procedure.

 

Distributing Leaflets on Windshields: 

 

As for placing leaflets or other forms of non-commercial (i.e., political) information on the windshields of parked cars, it becomes an issue of whether doing so “creates an abundance of litter significantly beyond the amount the city already manages to clean up.”[123]  Anything less than this has been held to be outweighed by the person’s First Amendment freedom of expression rights.  Also, the car owner’s right to be free from unwanted leaflets being put on his or her windshield must generally take a back seat to the leafleteer’s freedom of expression rights,[124] depending upon the circumstances.[125] But in any case, these are issues that can only be resolved after an evidentiary hearing in a civil court; not by a police officer standing on a street corner as he attempts to referee the warring parties. 

 

Protesting at Funerals:

 

Another unusual circumstance highlighting the importance courts attach to First Amendment freedom of expression rights involved members of a Baptist Church who were protesting America’s tolerance of homosexuality by picketing at the military funeral for a soldier killed in Iraq.  The demonstrators used inappropriate signage such as “Thank God for Dead Soldiers.”  The justifiably offended soldier’s father’s $5 million judgment in a civil suit for the intentional infliction of emotional distress was reversed by the federal Fourth Circuit Court of Appeal, holding that the demonstrator’s activities, as offensive as they might be, was protected by the First Amendment.[126]  The United States Supreme Court upheld the appellate court’s ruling in this case despite agreeing that the demonstrator’s actions were “outrageous.”[127] The First Amendment may at times takes precedence over the exercise of common decency and respect.

 

Note, however, that as a result of this case, the California Legislature made such conduct illegal by statute.  As of January 1, 2013, pursuant to Penal Code § 594.37, it is now a misdemeanor to engage in picketing on public property where such picketing targets a funeral during the time period beginning one hour prior to the funeral and ending one hour after it ends.  The constitutionality of this statute, however, has yet to be determined.  In that a state statute never takes precedence over federal constitutional protections, such as provided under the First Amendment, the validity of this statute is questionable.

 

Illegal Aliens Seeking Work:    

 

How about the groups of illegal aliens that crowd city street corners or entrances to Home Depot or other box-style stores   The Ninth Circuit Court of Appeal has ruled that soliciting employment or other favors on street corners in such a manner is a form of a constitutionally protected freedom of expression.  A city ordinance attempting to outlaw such activity is therefore unconstitutional as being too broad in that it sought to regulate significantly more speech than was necessary to achieve the city’s purposes, and because there are other ways, such as enforcing already existing traffic laws, to control such activities.[128] In reaching this conclusion, the court overruled its own previous decision on this issue which had upheld a substantially identically worded ordinance.[129]

 

“Occupy” Demonstrations: 

 

It has further been held that a governmental entity has the right to place reasonable time, place and manner restrictions on demonstrators who, en mass, seek to occupy public land for extended periods of time,[130] such as occurred in the recent so-called “occupy” demonstrations that occurred in a number of major U.S. cities.  Recognizing that there is no constitutional right to erect structures (e.g., tents) on another’s property, [131] which includes public parks, [132] it has been held that it is not unreasonable for a local government to enforce a no-camping-overnight ordinance on the demonstrators.

 

 

 

 

Political Demonstrations: 

 

Political demonstrations also raise unique issues.  The general rule is that government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the government agency fears, dislikes, or disagrees with the views expressed.  Further, government agents may not constitutionally disadvantage one group in comparison to another where the agents had no objectively reasonable security rationale for doing so.  The fundamental right to speak, however, being subject to exceptions, does not leave people at liberty to publicize their views whenever and however they please.[133] 

 

In the most recent authority on this issue, it was held by the Supreme Court (reversing a contrary ruling out of the Ninth Circuit Court of Appeal) that Secret Service agents had not violated a clearly established right when they moved anti-government protesters away from a public restaurant where President Bush was to eat dinner, taking them out of weapons range, while leaving the pro-government protestors were they were originally situated.  Under the circumstances of this case, the Supreme Court found both that (1) there was no prior case law that would have alerted the Secret Service agents that they might be violating the First Amendment, and (2) in any case, leaving the anti-government protestors within easy “weapons range” (handguns or explosive devices) of the President made no sense from a security standpoint.[134] 

 

Note also that when dealing with military bases, it has been held that a public road easement through a military installation (Vandenberg Air Force Base, in this case), even though located outside the fenced area of the base and thus not a physical part of the military installation itself, may still be controlled by military authorities.  Exclusive possession and control of such an easement through a military base is not required for a road to be included within the control of the installation authorities.  Thus, a “protest area” set aside by the base commander for peaceful demonstrations on such an easement is still subject to the command authority of a military officer.  The choice to secure a portion of the installation more closely with fences does not alter the boundaries of the installation as a whole or diminish the authority of the installation commander over the unfenced areas.[135] 

 

The news media has certain rights when it comes to their attempts to talk to protesters, interjecting a whole new prospective to the problems protests can sometimes cause the police, often leaving the police with no right, or at least readily available, answer.  But that doesn’t necessarily mean that the news media has a right to stir the pot, so to speak, where it might agitate an already tense situation.  For instance, in an action brought by plaintiffs—a journalist and a magazine—alleging that city police officers violated their First Amendment rights when they prevented the journalist from engaging in dialogue with a protester under threat of arrest, the officer was entitled to qualified immunity because plaintiffs had not identified any clearly established right that the officer violated in enforcing separate protest zones set up for the purpose of minimizing the likelihood of a violent confrontation.  Also, the city could not be held liable under a Monell theory[136] because even assuming city police officers violated the journalist’s First Amendment rights, nothing in the complaint plausibly alleged a policy, custom, or practice leading to that violation, and plaintiffs' allegations amounted to no more than an isolated or sporadic incident that could not form the basis of Monell liability for an improper custom.[137]

 

Other Public Protests and Rioting:

 

            Public protests present unique and often exceedingly difficult situations for which there is often no right answer, or easy resolution, for the officer on the beat.  The First Amendment to the United States Constitution guarantees to all “the freedom of speech . . . (and) the right of people peaceably to assemble, and petition the government for a redress of grievances.”   Protestors have the right to express their opinions, no matter how unpopular or how inconvenient it might be to others.  However, with emotions often running high, and differing opinions being expressed, such public protests can easily slide into the riot situation if law enforcement doesn’t do something to at least control the situation.

 

Activities such as demonstrations and protest marches are clearly protected by the First Amendment.[138] City streets and sidewalks are a public forum.[139] Speech that stirs passions, resentment, or anger is fully protected by the First Amendment.[140]

 

            The government may not prohibit angry or inflammatory speech in a public forum unless it is (1) “directed to inciting or producing eminent lawless action;” and (2) “likely to incite or produce such action.”[141]  Federal and state law clearly provides that protests and assemblies cannot be dispersed on the ground they are unlawful unless they are “violent or . . . pose a clear and present danger of eminent violence” or they are violating some other law in the process.[142]

 

            Enjoining or preventing First Amendment activities before demonstrators have acted illegally or before the demonstration poses a “clear and present danger” is presumptively a First Amendment violation.[143]  First Amendment activity may not be prevented before the fact in order to obviate possible unlawful conduct.  And, the fact that those same demonstrators engaged in prior unlawful conduct does not justify an assumption that the next day’s activities will also be unlawful and warrant the enjoining of future demonstrations.[144]  It is generally accepted that unlawful conduct that involves First Amendment issues may be dealt with only after it occurs.[145]

 

After protestors demonstrated against President Bush at a campaign stop on a public street outside a restaurant, the Ninth Circuit determined that Secret Service agents were properly denied qualified immunity as to the protestors’ First Amendment claim where the protestors plausibly alleged that the agents acted with the sole intent to discriminate against them because of their viewpoint.  The protestors alleged that the agents engaged in viewpoint discrimination by requiring them to demonstrate at a distance because they were protesting, rather than supporting, the President’s policies.  Specifically, the protestors alleged that (1) at the direction of the agents, they were moved to a location where they had less opportunity than the pro-Bush demonstrators to communicate their message to the President, and (2) any security-based explanation for the differential treatment offered by the agents was pretextual and the agents’ directives accorded with a pattern of Secret Service action suppressing the speech of those opposed to the President.[146]

 

            So what do we do   The decisions to be made, and the actions to taken, are well above the individual officer-on-the beat’s paygrade.  Rather, the responsible law enforcement agency’s administration must make preparations for an organized response to potential and actual violence by insuring an adequate police presence.[147] Then, when laws are actually broken, the appropriate arrests may be made of those who actively engage in such conduct, rather than to suppress legitimate First Amendment conduct as a prophylactic, before-the-fact, measure.[148]

 

This is not to say that law enforcement may not lawfully step in and act before a riot actually begins (e.g., an “unlawful assembly,” per P.C. §§ 407, 408, or rout, per P.C. §§ 406, 408).   However, it is recognized that the line between a lawful assembly and an unlawful one, or even before the demonstration reaches the rout or riot stage, is indeed thin, and, in the heat of the moment, sometimes hard to find.   Caution must be exercised to insure that law enforcement does not intervene before the demonstrators’ activities become illegal.

 

If, therefore, the leaders of an assembly are clearly inciting a riot (P.C. § 404.6(a), (b)), posing a “clear and present danger of eminent violence” and “likely to incite or produce such action,[149] the assembly may be declared unlawful, a disbursement order issued, and violators arrested.  (P.C. §§ 409)  Or, when a situation has degraded into an actual riot or any other criminal violation, aggressive (yet lawful) law enforcement action is certainly warranted.  (P.C. § 410)

 

            The demonstrators’ First Amendment rights, however, are not without limitation.  Under both state and federal law, it is recognized that governments have a strong interest in regulating the use of their streets and other places.[150]  When protests take the form of mass demonstrations, parades or picketing on public streets or sidewalks, the free passage of traffic, protecting property rights, and the prevention of public disorder and violence become important objects of legitimate state concern.[151] 

 

            Balancing these important government interests with the demonstrators’ First Amendment rights, it has consistently been held that it is lawful to place reasonable “time, place, and manner” restrictions, even in the form of a prior-restraint (e.g., requiring permits, limiting the “free speech” locations, etc.), on the freedom of speech.[152]

 

            In evaluating whether time, place and manner restrictions placed upon demonstrators are reasonable under the circumstances, the court will consider whether the speech restrictions:

 

• Are content neutral (i.e., non-discriminating);
• Are narrowly tailored to serve a specific governmental interest; and
• Left open ample alternative channels for communication.[153]

 

It is constitutionally permissible to limit the areas where protestors are allowed to exercise their First Amendment rights, as amply illustrated by a Second Circuit Court of Appeal decision out of the State of New York:  During a political convention, protesters were arrested after they failed to comply with police instructions to move from an area where demonstrating was prohibited, a “no-demonstration zone,” to one designated for protesting, a “demonstration area.” The appellate court determined that the protesters’ First Amendment claims failed because the limitation on speech around the convention was a permissible “time, place, and manner restriction” on speech, holding that:  (1) The restraint on expressive activity was content neutral; (2) the no-demonstration zone on a two-block strip of the avenue for four days was narrowly tailored to address the threats to sidewalk congestion and security created by the convention; and (3) a demonstration zone one avenue from the primary entrance to the convention location was an ample alternative channel for protesters. The protesters’ Fourth Amendment claims failed because the officers had probable cause to arrest them for obstruction of governmental administration under New York Penal Law § 195.05 (2010) since they rejected 17 directives to leave the no-demonstration zone, and an audio recording showed indisputably that they were neither courteous nor compliant.[154]

 

Lesser forms of protest are also protected.  In a 42 U.S.C. § 1983 suit, the arrestees/plaintiffs, who were engaged in protesting police activities by writing messages in chalk about the police on the sidewalks in front of  police station and other public property, were held to have sufficiently shown that their arrests were in retaliation for their exercise of their First Amendment rights because a reasonable factfinder could conclude that the anti-police content of the arrestees’ chalk messages was a substantial or motivating factor for their arrests, particularly as the arresting officer knew that the arrestees were activists that were vocally critical of the police.  The arresting officer was not entitled to qualified immunity because it was clearly established at the time of the arrests that an arrest, even though supported by probable cause, but made in retaliation for protected speech, violates the First Amendment.[155] Additionally, while the existence of probable cause to arrest, as a rule, provides a civil defendant with a defense,[156] an exception to this rule applies where an arrest for such a situation rarely occurs.[157]

 

Public Meetings: 

 

Anyone who willfully and unlawfully disturbs or breaks up any lawfully conducted assembly or meeting (except meetings listed in ....

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