Metropolitan News-Enterprise


Monday, December 17, 2012


Page 1


C.A. Upholds Order Allowing Leafleting Outside Library


By JACKIE FUCHS, Staff Writer


The City of Redding wrongfully prohibited the Tea Party and the American Civil Liberties Union from distributing leaflets in front of its public library, the Third District Court of Appeal has held.

Justice Elena Duarte, writing for the panel Thursday, agreed with Shasta Superior Court Judge Monica Marlow that restrictions imposed by the city, including a requirement that leaflets be distributed only in a small “free speech” area, violate the First Amendment.

The panel agreed with the city, however, that the judge abused her discretion by extending the injunction to a ban on leafleting in the parking lot, saying she should have considered the city’s asserted safety interest.

In 2006 the city opened the present library building, which borders public parks on three sides. Across the street from the library is a large softball field and next to that a city hall complex.

The library’s entrance area covers approximately 765 square feet and contains two cement columns, a sculpture, several benches, and a newspaper rack. A parking lot in front of the entrance wraps around much of the building, with walkways connecting it to the library.

The library receives about 750 visitors a day.

In 2010 the Bostonian Tea Party, a member of the North State Tea Party Alliance, celebrated Constitution Day, Sept. 17, by placing along the west wall of the Library breezeway a table displaying pocket-sized constitutions, the group’s newspaper, and other items including labels with quotations from various founding fathers.

Two days later, three women from the Daughters of the American Revolution set up their own table near the east wall. In response Kimberly Niemer, the library’s director of community services, demanded that they move their table to the same area where the Tea Party had set up its table.

The DAR complied with the request, but Suann Prigmore, the chair of the Boston Tea Party’s constitution week committee, took issue with it and instigated a dispute, which ended with the Library Board of Trustees, comprised of the five members of the Redding City Council, adopting, over opposition, an official policy “to recognize limited leafleting activity while exercising necessary control and supervision” on the library campus.

A diagram attached to the policy showed that leafleting was limited to an area of about 42 square feet south of the entry doors. Tables had to be at least four feet from the doors and could cover no more than 30 square feet of the area.

Violations of the library’s policy were deemed violations of the Redding Municipal Code, subjecting leafleters to possible criminal sanctions.

In April 2011 Prigmore and other Tea Party members distributed leaflets in front of the library and put them on cars in the parking lot. During that same period, members of the ACLU also handed out leaflets in front of the library.

Upon receiving a warning from Niemer that they were violating the library’s new policy, the leafleters stopped their activities, citing concerns about being arrested.

Shortly thereafter the ACLU of Northern California filed suit alleging that certain provisions of the policy were unconstitutional under both the United States and California constitutions, and seeking declaratory relief and both permanent and preliminary injunctions.

On the same day, the Boston Tea Party and the North State Tea Party Alliance filed their own complaint for declaratory and injunctive relief, challenging the same portions of the policy as the ACLU, as well as various provisions of the Redding Municipal Code’s ban on handbills.

In both cases, upon ex parte applications, the court granted temporary restraining orders prohibiting enforcement of the policy “directly or indirectly, by any means whatsoever.”

More Leafleting

After issuance of the TRO, members of the Tea Party and ACLU resumed leafleting outside the library. This time, Jan Erickson, the director of library services, accused some of them of violating the library’s code of conduct, which had been in place before the library had adopted the anti-leafleting policy.

That code prohibited leafleting “except in accordance with reasonable time, place and manner restrictions imposed by library staff.” Erickson said that she understood that to mean, as explained to her by the city attorney, that the TRO was intended to preserve the status quo prior to adoption of the policy, i.e., that the code of conduct still applied.

Marlow disagreed and granted the preliminary injunctions, finding that the bans on leafleting were unconstitutional as the area outside the library was a public forum.

On appeal, the panel largely affirmed, disagreeing with the city’s view that the library was only a limited public forum and, therefore, subject to reasonable viewpoint-neutral restrictions.

The panel agreed with Marlow’s definition of the forum at issue as: “(1) the public open space on the entry side of the Library, (2) the entry and exit door area to the Library, and (3) the adjacent parking lot.”

Public Forums

Using the state Supreme Court’s approach to identifying public forums, which has been to analyze the similarity of the area at issue to areas that have traditionally been deemed public forums, Duarte concluded that since there is complete unrestricted public access to those areas, characterizing them as a public forum is consistent with the role of a library as a resource for ideas.

She noted that:

“The Library is located adjacent to public parks and near other public buildings. The entrance is larger than the typical sidewalk and includes several benches and a newspaper rack. It is an area where people can rest or congregate for lengthy conversation. These physical characteristics distinguish … [it from] stand alone retail establishments that do not invite people to congregate, to meet friends, rest, or be entertained, and are not public forums.”

Accordingly, she said, leafleting on the walkways and entrance of the Library must be permitted.

Furthermore, the panel found, applying intermediate scrutiny, the city’s ban on any leafleting which “involve[s] the solicitation of funds” was not narrowly tailored to serve the government’s interest in banning on-site or immediate solicitations.”

Duarte said:

“While such a ban may have been the City’s intent, the Policy … simply does not say what the City now claims it meant. Rather, the Policy bans all leafleting involving the solicitation of funds, future as well as immediate. We will not rewrite the Policy to make it constitutional.”

The city’s limitation of leafleting to a “free speech area” near the library’s doors was also not narrowly tailored “because it is substantially broader than necessary to achieve the City’s interest.”

Duarte explained:

“While the possibility of congestion is certainly a legitimate concern, and we acknowledge some restriction on the tables’ placement may be appropriate, here we see no showing by the City that its restriction … is tailored to address the City’s interest.”

Captive Audience Doctrine

Nor was the panel convinced by the city’s argument that Marlow erred in failing to consider the captive audience doctrine, which protects unwilling listeners from certain speech.

The panel wrote:

“As in the case of any pedestrian on any sidewalk, Library patrons can continue to enter or exit the Library to avoid unwanted leaflets…. [they] are not members of a captive audience.”

In addition, although the city provided declarations in which people expressed “the understandable desire to not be approached by strangers … such desires … are not a legitimate basis for curtailing free speech.”

 The panel did find, however, that the trial court had not resolved the factual issue of whether a concern for safety supported by an expert declaration was a sufficient governmental interest to justify the ban on leafleting in the parking lot.

“[I]ts ruling on this issue was arbitrary, based on the wrong law, and thus … because the trial court answered the wrong question and applied the wrong law, we conclude the trial court abused its discretion in granting the preliminary injunction as to the ban on leafleting in the parking lot.”

The panel also found that certain provisions in the preliminary injunctions dealing with soliciting and offensive language were overly broad and, therefore, ordered the improper language stricken from the injunctions.

Presiding Justice Vance Raye and Justice Harry Hull Jr. concurred in the opinion.

The case is Prigmore v. City of Redding; 12 S.O.S. 6450.


Copyright 2012, Metropolitan News Company