RulesCommunications Highlights 2008 1204

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To: Rules and Communications Committee From: Jayne W. Williams, City Attorney Re: Use of City Facilities by Candidates Date: October 22, 2008 Page: 2 content, such regulation is subject to strict scrutiny.3 Typically, designated public forums are noticed or advertised to inform the community of the purposes for which the forum that is usually nonpublic is made public. Nonpublic Forum: A nonpublic forum is public property which is not dedicated to general debate or the free exchange of ideas. With regard to a nonpublic forum, "the government is free to restrict access'as long as the restrictions are reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker's view"'4 Internal City Hall offices or other government facilities not open to the public for specific reasons (workspaces, storage, preservation of security, for example) are traditional nonpublic forums, 2. Reasonable Restrictions on Use of Public Facilities City facilities made available for public use constitute designated public forums. Generally, policies which distinguish between favored or disfavored categories of speech are content-based. Therefore, a policy which precludes city facilities from being used by candidates or for political purposes would likely be considered content-based. Pursuant to both the state and the federal constitutions, policies which regulate protected speech and activities within a designated public forum, based on the content of the speech, are subject to strict scrutiny,5 Content-Based Restrictions: Although the City is limited in its ability to restrict constitutionally protected activity in a designated public forum, the City can impose reasonable time, place and manner restrictions on the use of such public facilities. Once the City opens public facilities "to the public for expressive activities, the [City] may establish and enforce 'reasonable, time, place and manner regulations' as long as they are (1) content neutral, (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels of communication."6 Accordingly, in order for the City to "enforce [such] acontent-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end."~ 3 White v. Cify of Norwalk, 900 F.2d 1421 (9~h Cir. 1990). (Constitutionality of regulating speech in city council chambers.). a Hopper v. Cify of Pasco, 241 F. 3d 1067 (9~h Cir. 2001). (Constitutionality of policy which excluded controversial art from city hall gallery. Court held that city policy which opened city hall for display of art work made city hall a designated public forum from which art work could only be excluded when necessary to serve a compelling government interest.). s U.C. Nuclear Weapons Labs Conversion Project v. Lawrence Livermore Lab, 154 Cal.App.3d 1157, 1170 (1984). (Court examined whether federally owned laboratory was required to allow antinuclear group to use laboratory visitor center which was regularly made available for use by other groups. Court held that laboratory action to exclude antinuclear group from use of laboratory visitor center violated state constitution where group's use was compatible with purpose and function of the visitor's center.). s Khademi v. South Orange County Community College District, 194 F.Supp.2d 1011, 1024 (2002) (quoting Gonzales v. Superior Court, 180 Cal.App.3d 1116, 1125 (1986)). (Group of students sued the South Orange County Community College District on the grounds that policy which regulated their expressive rights with regard to the use of campus facilities violated the First Amendment. Court held that portions of district policy which were in place lacked a compelling government interest to violate the state and federal constitutions.). ~ Khademi, 194 F.Supp.2d at 1024.