"Lawsuit Helps End Speech Restrictions Outside California Library," Davis Wright Tremaine Pro Bono Report

As a result of a lawsuit pursued by DWT on behalf of the ACLU of Northern California, the city council of Redding, Calif., agreed to withdraw speech limitations it had imposed on the area around its municipal library. It announced this decision in January after DWT and the ACLU won in the California Court of Appeal.

The appellate court found that the area outside the library was “a public forum,” and therefore open to all expression that is protected by the First Amendment (with limited exceptions for neutral government restrictions). It wrote: “Characterizing the area [outside the Redding library] as a public forum is consistent with the role of a library as ‘a mighty resource in the free marketplace of ideas.’”

The ruling upheld a trial court’s preliminary injunction against enforcement of the limits. DWT partner Thomas R. Burke and associate Vidhya Prabhakaran, in the firm’s San Francisco office, and Devin Smith, an associate in the firm’s Seattle office, worked on the matter in the trial court; Ambika Doran, an associate in the Seattle office, worked with Burke on the appeal and successfully argued the case in the 3rd District Court of Appeal in Sacramento. DWT worked closely with Linda Lye of the ACLU of Northern California, co-counsel throughout the litigation.

The city moved to adopt its new policy in 2010, following a dispute over leafleting at the library. A local Tea Party group had set up a table to hand out copies of the Constitution and other material outside the library entrance in celebration of Constitution Week. Soon after, a Daughters of the American Revolution chapter came to distribute literature as well, and was told its workers had to leaflet in the same area, over the Tea Party’s objections.

In response, the city council passed an ordinance governing speech activities around the library. It restricted leafleting to a “free speech area” near the entrance; required advance reservations for use of the area; prohibited leafleting that contained solicitations for funds; prohibited “offensively coarse” language or gestures; and banned leafleting of vehicles in the parking lot.

An unlikely alliance formed, and the ACLU joined with the Tea Party to challenge the new rules, which took effect in April 2011.

In largely upholding the trial court’s injunction, the Court of Appeal emphasized that the area outside the library was not designed solely for patrons to enter and exit. “There is complete, unrestricted public access,” they wrote. “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.” Further, the court noted, the library property “is located adjacent to public parks and near other public buildings.”

As a result, the panel wrote, “leafleting on the walkways and entrance of the Library must be permitted according to the principle that ‘one who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion. This right extends to the communication of ideas by handbills and literature as well as by the spoken word.’”
The court rejected the city’s claim that patrons’ distaste for leafleters justified the restrictions. “Such desires and complaints, while understandable, are not a legitimate basis for curtailing free speech,” the Court of Appeal panel wrote.

The court reversed the trial court’s injunction against Redding’s ban on leafleting of vehicles in the library parking lot because, it found, the lower court had failed to evaluate evidence that the practice raised legitimate public safety issues.

Full Spring 2013 Pro Bono Report