On May 2, the Minnehaha County Commission approved a new policy brought by new county auditor and longtime anti-abortion activist Leah Anderson banning First Amendment activities anywhere on the grounds of the Minnehaha County campus in downtown Sioux Falls except for two small rectangles outside the courthouse and in the parking lot of the Administration Building. The new policy meant that petition circulators, like those who have been collecting signatures for Dakotans for Health‘s initiative to codify Roe v. Wade in South Dakota’s Constitution since November, would no longer be able to stand beside the west doors of the Admin Building, one of the busiest public spaces and one of the best signature-collecting locations in South Dakota.
Dakotans for Health sued immediately in federal court, claiming the new policy infringes on First Amendment rights. Judge Roberto Lange of the United States District Court of South Dakota granted a temporary restraining order, allowing petitioners to continue to work the main west doors of the Admin Building until the court could hear arguments on May 26.
In court, Minnehaha County contended that it needed new restrictions on free speech around the Admin Building to address discomfiting behavior by petition circulators and blockers alike and obstruction of the west entryway. The county says these problems have arisen just in the last few months, during the time when the Roe v. Wade initiative was the only petition on the streets. Dakotans for Health argued that restricting petitioners to pieces of pavement far from where most people are walking unfairly quashes their petition activities.
After the May 26 hearing, Judge Lange renewed his temporary restraining order for two weeks, to give himself time to visit the Minnehaha County campus himself, study the grounds, and think about the arguments and the law. After a quiet visit to the site and two full weeks of study, Judge Lange ruled yesterday in favor of the plaintiffs and enjoined the county’s attempt to drive speakers away from the Admin building doors.
To grant petitioners and other speakers any protection and to restrict the government’s power to control what sort of activities take place on the property it controls, the Court had to grapple with the core question of whether the grounds of the Minnehaha County Admin Building—and specifically, the sidewalk leading to the main west entrance—are a traditional public forum. Judge Lange explains the difference between traditional public fora and nonpublic fora:
The government’s authority to limit speech is at its lowest in traditional public fora like public streets, parks, and sidewalks. See Grace, 461 U.S. at 177 (noting that “streets, sidewalks, and parks, are considered, without more, to be public forums” and that government authority to restrict speech in these areas “is very limited”) (cleaned up and citation omitted)); Schenck v. Pro-Choice Network of W. N.Y, 519 U.S. 357, 377 (1997) (“[S]peech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum.”). The government may impose reasonable time, place, and manner restrictions in public forums, but only if those restrictions are content neutral, “narrowly tailored to serve a significant governmental interest,” and “leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (cleaned up and citation omitted). This same test applies to designated public forums, which are created when the government “intentionally open[s] a nontraditional fomm for public discourse.” Cornelius, 473 U.S. at 802; Pleasant Grove City v. Summum, 555 U.S. 460,469-70 (2009) (explaining that the same standard governs restrictions on speech in public forums and designated public forums).
The government has more leeway to regulate speech in nonpublic fora, meaning “government property that is not by tradition or designation a forum for expressive activities by the public.” Ball v. City of Lincoln, 870 F.3d 722, 730 (8th Cir. 2017) (cleaned up and citation omitted). Restrictions on speech in a nonpublic forum pass muster so long as they are “reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view.” Cornelius, 473 U.S. at 800 (cleaned up and citation omitted). These restrictions ‘”need not be the most reasonable or the only reasonable limitation’ to be constitutionally permissible.” Ball, 870 F.3d at 730 (quoting United States v. Kokinda, 497 U.S. 720, 730 (1990)) [Lange, 2023.06.13, pp. 20–21].
If the walkway to the Admin Building’s west entrance is a traditional public forum, the plaintiffs win. If that walkway is a nonpublic forum, the county wins and petitioners go stand in the parking lot or along Minnesota Avenue or wherever else the county tells them to.
The Court says the walkway is likely a traditional public forum. Noting that the Supreme Court “has never established a test for determining whether a sidewalk is a public forum” and has left courts to make this determination on a case-by-case basis, Judge Lange turns to criteria offered by the Eighth Circuit:
- physical appearance and location of the property,
- traditional use of the property,
- objective use and purposes of the space,
- government intent and policy with respect to the property, and
- any special characteristics regarding the environment in which those areas exist.
Lange’s quiet trip to the Minnehaha County campus produced this analysis to support the Court’s conclusion that the walkway, right up to the west entrance, is a traditional public forum:
The sidewalk running in front of the west side of the Administration Building looks just like the public sidewalks bordering the county campus; they share the same design, are made of the same material, and appear similar though the sidewalk actually widens by a foot or so as it wraps around the west entrance of the Administration Building. Unlike the sidewalks in Kokinda and other cases Defendants cite, the sidewalk outside the west entrance is not physically separated from the surrounding public sidewalks…. Rather, the sidewalk at issue connects with the public sidewalks on Minnesota Avenue and West 6 Street and runs unbroken from these points along the west side of the Administration Building. The sidewalk is not exactly like the sidewalk in Grace, where the public had “no indication whatever” that they had entered a special enclave…. A person on the sidewalk outside of the west entrance to the Administration Building would know that they are on a governmental entity’s campus. Still, the sidewalk’s connection with the public sidewalks makes it decidedly different from the sort of isolated, free-standing sidewalks courts have found to be nonpublic forums [Lange, 2023.06.13, pp. 24–25].
The Court notes that the county itself recognizes the traditional use of the walkway as a public forum:
Defendants argue that the “traditional and objective use” of the sidewalk outside the west entrance is to “assist patrons and employees to access the [Administration Building], both from their vehicles in the parking lot and from the cross-thoroughfare on 6 Street”…. Although facilitating access to the Administration Building is certainly one use of the sidewalk, it’s not the only one. Petition circulators have for many years used the sidewalk to request signatures from people entering and exiting the Administration Building. The Defendants recognized this themselves in their prior policy, stating that “Minnehaha County buildings, particularly the Administration Building, have traditionally been popular locations for citizens collecting signatures for ballot petitions.” Beyond that, government property can be a public forum even though it was not built for the purpose of expressive activity…. Here, the longtime use of the sidewalk to gather petition signatures and the Defendants’ recognition of this use suggests that the sidewalk is a public forum [Lange, 2023.06.13, pp. 24–25].
The Court also notes that the very proximity of those west doors to so many important government offices used by so many people supports the conclusion that the walkway to those doors is a traditional public forum:
The last factor for this Court to consider—any special circumstances—also favors finding that the sidewalk is a public forum. The sidewalk runs along the most used entrance to the Administration Building, a building that houses the county auditor, treasurer, and register of deeds, the state’s attorney office, the public advocate, and the Minnehaha County Commission itself, as well as links to the Courthouse with directions to those coming for jury duty on where to go. Both the County Commission and the Planning Commission hold regular public meetings in the
Commission Chambers on the third floor of the Administration Building. The Administration Building thus houses both administrative and legislative activities. Numerous courts have found that an area’s proximity to a seat of legislative power suggests that the area is a public forum…. And while the sidewalk’s proximity to legislative activities in the Administration Building might not be enough by itself to confer public forum status, it makes this case different from San Antonio Firefighters Ass’n Local 624 v. City of San Antonio…, a case on which Defendants rely involving public library sidewalks [Lange, 2023.06.13, pp. 26–27].
Finding that the sidewalk leading to the Admin Building’s main west entrance is a traditional public forum requires the county to demonstrate that it has “narrowly tailored” its restrictions “to serve a significant governmental interest”—i.e., the government must impose the least restriction on free speech necessary to meet clearly demonstrated needs.
Judge Lange directs our attention to a Massachusetts case, McCullen v. Coakley 2014, in which anti-abortion activists beat back the state’s effort to boot them off the sidewalks near abortion clinics:
The Supreme Court held that the statute was not narrowly tailored because it burdened substantially more speech than was necessary to further Massachusetts’ legitimate interest in “public safety, patient access to healthcare, and the unobstructed use of public sidewalks”…. The statute’s main failure, the Court explained, was its significant burden on the plaintiffs’ sidewalk counseling:
[T]he buffer zones impose serious burdens on petitioners’ speech. At each of the three Planned Parenthood clinics where petitioners attempt to counsel patients, the zones carve out a significant portion of the adjacent public sidewalks, pushing petitioners well back from the clinics’ entrances and driveways. The zones thereby compromise petitioners’ ability to initiate the close, personal conversations that they deem essential to “sidewalk counseling.”
These buffer zones likewise “made it substantially more difficult for petitioners to distribute literature to arriving patients.” Id at 488. The Court rejected Massachusetts’ attempt to downplay these burdens, explaining that the government “imposes an especially significant First Amendment burden” when it frustrates methods of communication like leafleting and personal conversations [Lange, 2023.06.13, p. 29].
In McCullen, the Supreme Court found Massachusetts could have addressed the behavior it found problematic by enforcing existing laws.
Here, Judge Lange found Dakotans for Health, which is trying to put abortion rights to a public vote, is making the same persuasive arguments that Massachusetts activists trying to stop abortions made about the need for reasonably close contact with fellow citizens:
Plaintiffs presented evidence that to be effective, petition circulators
need to be in a high-traffic pedestrian area, close enough to have a personal conversation with voters in a calm, inviting tone. Plaintiffs believe that this approach is more effective than shouting at people from a distance, and that the area near the doors to the west entrance is the best place from which to engage in their chosen manner of speech. Under the LIMITED PUBLIC USE POLICY, however, petition circulators are displaced to a “Designated Area” over fifty feet from the west entrance to the Administration Building. A petition circulator seeking signatures from the designated area would either need to call out across a lane of travel and one row of parked cars to people walking into the building or hope that people park close enough to the designated area that they might walk past them. In short, the new policy makes it much less likely that voters using the west entrance will engage at all with petition circulators. Indeed, [Lloyd] Ringrose, a longtime petition circulator who believed that the west entrance was the best place to gather signatures, testified that he would not bother trying to collect signatures from the designated area because of its distance from the door and the resulting inability to speak with voters in a conversational tone [Lange, 2023.06.13, p. 30].
…and about the government’s ability to achieve its stated objectives by simply enforcing its less-restrictive existing policy:
Plaintiffs’ counsel in cross-examining the Defendants’ witnesses repeatedly pointed out that enforcement of the prior policy would have addressed all these complaints. After all, the prior policy required petition circulators to remain outside, to not obstruct individuals as they enter and exit the building, to conduct themselves in a polite, courteous, and professional manner, and to enter the vestibule only if allowed by the Commission Administrative Officer in case of severe weather…
Requiring petition circulators to remain in the designated areas also burdens substantially more speech than necessary to achieve Defendants’ interests in promoting public safety, efficient access to the Administration Building, and protecting county employees from harassment. As Plaintiffs note, simply enforcing the prior policy would address the Defendants’ concern without imposing a significant burden on Plaintiffs’ method of communication. After all, that policy required petition circulators to remain outside county buildings, avoid obstructing people entering and exiting the buildings, and to conduct themselves in a “polite, courteous and professional manner.” Defendants could also convert, for instance, the one reserved law enforcement and adjacent handicap-accessible parking spots just outside the west entrance into a designated area, as this would allow Plaintiffs to solicit signatures in a conversational tone while at the same time secure efficient access to the west entrance by removing them from that limited area of the sidewalk right outside the west doors. In short, Defendants could easily achieve their interests without restricting petition circulators to the designated areas over fifty feet from the west entrance… [Lange, 2023.06.13, pp. 17, 31–32].
Minnehaha County has always had the authority to regulate the behavior of speakers on the grounds of county property. If speakers—be they petition circulators, anti-abortion petition blockers, or just regular folks megaphoning their grievances to the county commission—block the doors, genuinely harass citizens, or engage in other disorderly conduct, the county can call deputies—whose office is mere yards away—and haul away those bad behavers. But in her apparent zeal to block petitioners from putting Roe v. Wade to a vote in South Dakota, Auditor Leah Anderson violated the First Amendment by proposing to banish petition circulators to the parking lot, thus incurring in her first three months on the job a costly court loss for Minnehaha County.
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In a footnote, Judge Lange observes that the designated speech area in the Admin Building parking lot was not only much farther from the main entrance than the county claimed in its policy but also would put petitioners and other speakers in the way of delivery trucks and turning traffic:
Plaintiffs presented testimony that the “designated area” to the west of the Administration Building is actually 53.3 feet west of the main entrance doors. On inspection, the “designated area” outside the Administration Building is at least twice as far away as the 25 feet stated in the LIMITED PUBLIC USE POLICY. The designated area outside of the Administration Building appears to presently be used as parking for delivery vehicles—such as a Federal Express delivery vehicle when the undersigned visited. Vehicles turning into the parking lanes directly across from the west entrance tend to partially cross into the designated area when making such a turn [Lange, 2023.06.13, p. 12, note 8].
Hmmm… so not only was Auditor Anderson trying to run roughshod over free speech, but she was also perhaps hoping to run over some free speakers.