ARIZONA COMMON SENSE

An Exercise in Aggressive, Non-Partisan Political Activism March 14, 2013 Volume 3, Number 12

TRADITIONAL FORUMS, LIMITED FORUMS, AND CIVILITY: WHEN CAN GOVERNMENT OFFICIALS LIMIT SPEECH RIGHTS? When it comes to civility, the U. S. Constitution, and government limitations on free speech, there is a vast difference between what civil discourse really means, what the Constitution actually permits (as consistently defined in this district by the U.S. Supreme Court and Ninth Circuit Court of Appeals) and what limitations government officials consistently choose to impose to protect establishment interests and to silence the voice of the Unpopular Public Speaker. Which brings us to several interrelated questions: The first: Can civility in public discourse actually co-exist with the vigorous exercise of First Amendment Rights? The answer may (eventually) be determined by the participants of an on-going project of the National Institute for Civil Discourse, newly formed at the University of Arizona in 2011. The answer to the next question actually defines the relationship between We the People and those we employ to conduct the publics business, aka government: When and how may our employees lawfully proscribe the free exercise of First Amendment Rights?1 Well, it turns out that answer may depend on the nature of the speech and the nature of the forum where the speech is offered. In a 2012 Arizona Law Review article, Retaliatory Forum Closure, (RFC) JD Candidate Stephen Elzinga explained an evolving aspect of government interference with speech rights:

We are only concerned with legal public forums, aka traditional and limited.

The recent Occupy Wall Street and Tea Party movements highlight the importance of preventing unconstitutional government interference with disfavored speakers. Perversely, officials seeking to prevent such protests while evading viewpoint discrimination lawsuits can elect to simply close forums in which speech would otherwise be expressed. Holding that all speakers are equally affected, courts have generally allowed such actions. Elzinga goes on to describe some of the forums so affected: parks (to stop Occupy Walls Street Occupations), public schools (to pre-vent a lesbian from attending prom with girlfriend), observation galleries in legislative bodies (to stop protestors from wearing armbands critical of public officials), public libraries (to prevent display of gay rights newspaper on the free literature table), etc RFC 501. [Such retaliatory forum closure was suggested here in Tucson in 2011, after the arrest of community activist Roy Warden who, during the Call to the Audience portion of the Tucson Mayor and Council Meeting, challenged Mayor Walkups announced Civility Accord and the fitness of then Assistant Tucson City Manager Richard Miranda to hold public office. Warden was arrested on September 13, 2011 after asking the Mayor and Council, on several previous occasions: How can you expect US to treat YOU with Civility, when you hire a person like Richard Miranda2, who lied, cheated and stole, and, in his professional capacity as Assistant Tucson City Police Chief, tried to destroy a local citizen, Dr. Kevin Gilmartin, as concluded by a federal jury after 17 days of testimony in 2006? Subsequent to Wardens arrest for making impertinent, personal. and slanderous remarks,3 the City Council floated a
Current Tucson City Manager Richard Miranda was Assistant Tucson Police Chief when he, at the behest of the Tucson Police Chief Doug Smith, engaged in the retaliatory acts which were the subject of the 2006 trial. The jury found Miranda responsible for conspiracy and first amendment retaliation and award-ed the Plaintiffs, Dr. Gilmartin and Dr. Harris, 2.9 million dollars in compensation, including 2 million dollars in punitive damages. Three weeks subsequent to the payment of money, the Tucson City government hired Miranda as Assistant City Manager, at a significant increase in pay.
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Such verbiage in the Rules of the Mayor and Council, in effect since 1988, was changed in 2012 as a consequence of Wardens suit in Pima County
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trial balloon, informing the public that, after all, state law and the Arizona Constitution didnt actually require the Council to hold Weekly Call to the Audience in which the public is invited to present their view-points. This announcement set off a firestorm of debate, and continued vilification of Roy Warden in the local newspaper. the

Subsequently; the Council rejected the idea of discontinuing the Call to the Audience, and, consequent to Roy Warden filing suit in Pima County Superior Court, the Council backed down altogether and changed their policy.] Elzinga concludes by recommending that First Amendment Retaliation jurisprudence be extended by creating an action for retaliatory forum closure. (T)his would protect disfavored speakers and give the public a greater opportunity to interact with a wide spectrum of viewpoints. Limited vs Traditional Public Forums Along with retaliatory forum closure as Elzinga describes, the government may lawfully control speech or limit the content: it depends upon whether the forum is a limited public forum, a traditional public forum, or a non-public forum. In a limited public forum, such as the Tuesday night Meeting of the Tucson Mayor and Council, the government may lawfully place time and content limitations on speech. For example: prior to the opening of the Tuesday meetings, the public is invited to fill out a blue card and request three minutes to address the Mayor and Council during Item 6: Call to the Audience, a half hour period of time in which the public may address the Mayor and Council on a variety of local issues within the jurisdiction of the Mayor and Council. [Meaning: Diatribes against President Obama and other officials who are outside the power of the Tucson Mayor and Council to address, may be proscribed.] At the Tuesday meetings the public may not speak out of turn or otherwise interrupt the proceedings, or other speakers; they
Superior Court challenging the policy.

must wait for their allotted three minutes of time. Thus: public speech is (1) limited to three minutes every Tuesday during Call to the Audience, and (2) limited to issues which are within the jurisdiction of the Mayor and Council. However; in traditional public forums, sidewalks and parks, the government is absolutely forbidden from issuing any4 prohibitions or limitations on lawful political speech whatsoever. Or so the Supreme Court has ruled, time and time again. From time immemorial, streets, sidewalks and parks have been held in trust for the use of the public and have been used for the purpose of assembly, communicating thoughts, and discussing public questions. Hague v C.I.O. 307 U.S. 496, 515 (1939) As a matter of historical fact, public meetings, or face-to-face public debate, is the very process by which the American Revolution was formed: the protection of this process of public meeting and debate is the core purpose of the First Amendment. Traditional public forums may be found in any number of public places; indeed, with some minor restrictions for residential locations, schools, and hospitals, virtually any street corner may serve as a traditional public forum. In Tucson Arizona the two places of greatest public utility as free speech forums, are Armory Park, where Pro-Raza groups meet every May One to advance their interest in the Immigration Debate and, Library Square, near the corner of Pennington and Stone, in close proximity to every local court building, within earshot of some 2,000 or more local public officials. In Freedom of SpeechCivilityAnd Effective Democratic Engage-ment, written by University of Arizona Rogers College of Law Professor Toni Massaro and published by the National Institute for Civil Discourse, Professor Massaro quotes the following 1949 U.S. Supreme Court case: [A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of
I will analyze the distinction between lawful and unlawful speech in a future issue.
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unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. . . . There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups. Terminiello v. City of Chicago, 337 U.S. 1, 45 (1949). (Massaro, page 391) (emphasis added) Speech is often provocative? It may indeed best serve its high purpose when it induces a condition or unrest, creates dissatisfaction or even stirs people to anger? What appears to be a conflict between the free exercise of constitutional rights, as set forth by Terminiello, and the notion of civil discourse is particularly relevant here in Tucson Arizona, in light of the horrific events which took place on January 08, 2011 when a federal judge, a congresswoman, a child and other citizens were brutally assaulted and murdered while engaged in the performance of their public duties and in the exercise of their right to speak and be heard. This event, together with our proximity to the Mexican border, has inspired rancorous debate on two of Americas most contentious political issues, Gun Rights and Immigration Rights, resulting in public violence and resultant government insult to our foundational constitutional liberty. So, regarding the question of civility in public discourse and the rigors of political debate: can the two really co-exist? Maybe, just maybeIf the NICD moves ahead aggressively with its task, andIf the public is truly interested Roy Warden, Publisher Arizona Common Sense roywarden@hotmail.com Next Up: Can the government ever lawfully issue an Order of Prior Restraint, which prohibits the Unpopular Public Speaker from the free exercise of First Amendment rights?