Supreme Court 82-1998 Dissenting Opinion

Section III


The disposition of this case impels me to make two additional observations. First, in this case, as in some others invoiving time, place, and manner restrictions,[11] the Court has dramatically lowered its scrutiny of governmental regulations once it has determined hat such regulations are content neutral.

[11 "See, e. g., City Council v. Taxpayers for Vincent, 466 U. S. --(1984); Heffron v. International Society for Krishna Conciousness, Inc., 452 U. S. 640 (1981). But see United States v. Grace, 461 U. S. (1983); Tinker v. Des Moines School District, 393 U. S. 503 (1969); Brown v. Louisiana, 383 U. S. 131 (1966).]

The result has been the creation of a two-tiered approach to First Amendment cases: while regulations that turn on the content of the expression are subjected to a strict form of judicial reveiw,[12] regulations that are aimed at matters other than expression receive only a minimal level of scrutiny.

[12 See, e.g., Landmark Communications,, Inc. v. Virginia, 435 U.S. 829 (1978). It should be noted, however, that there is a context in which regulations that are facially content neutral are nonetheless subjected to strict scrutiny. This situation arises when a regulation vests standardless discretion in officials empowered to dispense permits for the use of public forums. See, e.g., Lovell v. City of Griffin, 303 U.S. 444 (1938); Hague v. CIO, 307 U.S. 496 (1939); Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969).]

The minimal scrutiny prong of this two-tiered approach has led to an unfortunate diminution of First Amendment protection. By narrowly limiting its concern to whether a given regulation creates a content-based distinction, the Court has seemingly overlooked the fact that content-neutral restrictions are also capable of unecessarily restricting protected expressive activity. [13]

[13 See Redish, the content distinction in First Amendment Analysis, 34 Stan. L. Rev 113 (1981).]

To be sure, the general prohibition against content-based regulations is an essential tool of First Amendment analysis. It helps to put into operation the well-established principle that "government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views." Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972). The Court, however, has transformed the ban against content-distinctions from a floor that offers all persons at least equal liberty under the First Amendment into a ceiling that restricts persons to the protection of First Amendment equality-but nothing more.[14]

[14 Furthermore a content-neutral regulation does not necessarily fall with random or equal force upon different groups or different points of view. A content-neutral regulation that restricts an inexpensive mode of communicatian will fall most heavily upon relatively poor speakers and the points of view that such speakers typically espouse. See, c.g., City Council v. Taxpayers for Vincent, supra, at,____,____, This sort of latent inequality is very much in evidence in this case for respondents lack the financial means necessary to buy access to more conventional modes of pursuasion.

A disquieting feature about the disposition of this case is that it lends credcnce to the charge that judicial administration of the First Amendment, in conjunction with a social order marked by large disparities in wealth and other sources of power, tends systematically to discriminate against efforts by the relatively disadvantaged to convcy their political ideas. In the past, this Court has taken such considerations into account in adjudicating the First Amendment rights ot those among us who are financially deprived, See, e. g., Martin v. City of Struthers, 319 U. S. 141, 146 (1943) (striking down ban on door-to-door distribution of circulars in part because this mode of distribution is "essential to the poorly financed causes of little people"); Marsh v. Alabama, 326 U. S. 501 (1946)(State cannot impose criminal sanction on person for distributing literature on sidewalk of town owned by private corporation). Such solicitude is noticeably absent from the majority's opinion, continuing a trend that has not escaped the attention of commentators. See, e. g., Dorsen & Gora, Free Speech, Property, and The Burger Court: Old Values, New Balances, 1982 Sup. Ct. Rev. 195; Van Alstyne, The Recrudescence of Property Rights as the Foremost Principle of Civil Liberties: The First Decade of the Burget Court, 43 Law & Contemp. Prob. 66 (summer 1980).]

The consistent imposition of silence upon all may fulfill the dictates of an even-handed content-neutrality. But it offends our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S., at 270.[15]

[15 For a critique of the limits of the equality principie in First Amendment analysis see Redish, supra, at 134-139.]

Second, the disposition of this case reveas a mistaken assumption regarding the motives and behavior of government officials who create and administer content-neutral regulations. The Court's salutary skepticism of governmental decisionmaking in First Amendment matters suddenly dissipates once it determines that a restriction is not content-based. The Court evidently assumes that the balance struck by offcials is deseving of deference so long as it does not appear to be tainted by content discrimination. What the Court fails to recognize is that public offcials have strong incentives to overregulate even in the absence of an intent to censor particular views. This incentive stems from the fact that of the two groups whose interests officials must accommodate--on the one hand, the interests of the general public and on the other, the interests of those who seek to use a particular forum for First Amendmcnt activity--the political power of the former is likely to be far greater than that of the latter.[16]

[16 See Goldberger, Judicial Scrutiny in Public Forum Cases: Misplaced Trust in thc Judgement of Public Officials, 32 Buffalo L. Rev. 175, 208 (1983)]

The political dynamics likely to iead Officials to a disproportionate sensitivity to regulatory as opposed to First Amendment interests can be discerned in the background of this case. Although the Park Service appears to have applied the revised regulations consistently, there are facts in the record of this case that raise a substantial possibility that the impetus behind the revision may have derived less from concerns about administrative difficulties and wear and tear on the park facilities, than from other, more "political," concerns. The alleged need for more restrictive regulations stemmed from a court decision favoring the same Flrst Amendment claimants that are parties to this case. See, supra, at 2, n. 1. Moreover, in response both to the Park Service's announcement that it was considering changing its rules and the respondents' expressive activities, at least one powerful group urged the Service to tighten its regulations[17]

[17 See Declaration of Mary Ellen Hombs, Exhibit 166 Record, Vol 1.]

The point of these observations is not to impugn the integrity of the National Park Service. Rather, my intention is to illustrate concretely that government agencies by their very nature are driven to overregulate public forums to the detriment of First Arnendment rights, that facial viewpoint-neutrality is no shield against unnecessary restrictios on unpopular ideas or modes of expression, and that in this case in particular there was evidence readily available that should have impelled the Court to subject the Government's restrictive policy to something more than minimal scrutiny.

For the foregoing reasons, I respectfully dissent.

Syllabus SCT82-1998
Concurring Opinion
SCT 82-1998 Intro

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