CAO 01-09
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CITY OF MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO:
Jorge M. Gonzalez
City Manager
Murray H. Dubbin ~~
City Attorney /'8
Sheri Sack ~
First Assistant City Attorney
C.A.O. NO. 01-09
FROM:
C.M.O. NO. 4-6/01
SUBJECT: City Manager Request for Legal Opinion No. 4-6/01: General
Constitutional Issues Regarding Use of Public Facilities
DATE:
August 3, 2001
Pursuant to your June 18,2001 Request For Legal Opinion, I have researched the
issue of whether legal grounds exist which justify denying the use of a public facility
such as TOP A or the convention center for an event which otherwise satisfies the
requirements for use of those forums, assuming a threat to public safety would result
from the event. In my opinion, such a denial may raise issues related to the First
Amendment of the United States Constitution, even if some threat to public safety exists.
1. City Facilities as Public Forums.
First Amendment analysis begins with a determination of the type of forum being
regulated since the level of scrutiny varies with the forum. A government owned facility
may be categorized as one of three types of fora: a traditional public forum, a designated
public forum, or a non-public forum. Perry Education Association v. Perry Local
Educators Association, 460 U.S. 37 (1983); Cornelius v. NAACP Legal Defense &
Educational Fund, Inc., 473 U.S. 788 (1985).
Traditional public forums are those places that have always been devoted to
assembly and debate, such as streets and sidewalks. Perry at 460 U.S. 45. A designated
public forum is government property (not otherwise a traditional public forum) that has
been opened for use by the public as a place for expressive activity. !d. A designated
public forum may be of a limited or unlimited nature depending on whether the
government has opened the forum for all expressive activity or only certain activity.
International Society of Krishna Consciousness, Inc. v. Lee, 505 U.S. 672,680 (1990).
The government's intent and the actual use of the forum are critical in determining
whether and to what extent a designated public forum has been created. Id.
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Municipal theaters and auditoriums have sometimes but not always been deemed
to be public forums, either traditional or designated. See e.g. Southeastern Promotions,
Ltd. v. Conrad, 420 U.S. 546 (1975)(municipal theater and auditorium were designated
public forums); Cinevision Corp. v. City of Burbank, 745 F.2d 560 (9th Cir.
1984)(Starlight Bowl, a municipally owned amphitheater was a traditional public forum):
L. Tribe, American Constitutional Law, 912-21, at 690 (1978)(municipal theater is a
traditional public forum). But see Calash v. City of Bridgeport, 788 F.2d 80 (2d Cir.
1986)(Kennedy Stadium, an outdoor arena on City property built with federal grant funds
was a non-public forum because City intended it as a service facility with only selective
access allowed to civic, charitable, and non-profit organizations.); International Society
for Krishna Consciousness, Inc. v. New Jersey Sports & Exposition Authority, 691 F.2d
155( 2d. Cir. 1982)(Meadowlands, a race track and sports stadium was a commercial
venture by the state and thus a non-public forum.).
A non-public forum is government property "which is not by tradition or
designation a forum for public communication". Perry, 460 U.S. at 46. Jails or military
bases are examples of non-public forums.
In this case, TOP A and the convention center will most likely be deemed public
forums, either traditional or designated (the standard of scrutiny in traditional and
designated public forums is the same) based upon the authority cited above and the City's
intent, as evidenced by its actions, to make those forums public. Specifically, both
TaPA and the convention center have been used for a full range of expressive activity.
The facilities have hosted religious services, charitable and political activities, artistic
performances, fundraisers and the like. It is also my understanding that the City views
both facilities as public facilities that are available for any type of use, assuming said use
is in compliance with City resolutions and policies. Thus, a court will most likely find
that TOP A and the convention center are either traditional or designated public forums.
II. Nature of Regulated Speech.
The second inquiry in a first amendment analysis is whether the speech being
regulated is commercial or non-commercial. The distinction between commercial and
non-commercial speech is at times murky. See Rubin v. Coors Brewing Co., 514 U.S.
476,491-498 (1991). But commercial speech has been defined as speech that proposes a
commercial transaction. Virginia State Board of Pharmacy v. Virginia Citizens
Consumer Council, Inc. 725 U.S. 748 (1976). However, commercial speech regarding the
substance of information, rather than the transactional aspect of it will often receive
greater protection. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). And,
if commercial and non-commercial speech are "inextricably interwined", the level of
scrutiny will depend on the nature of the speech taken as a whole. See Board of Trustees
of the State University of New York v. Fox, 492 U.S. 469 (1989).
Regulations of commercial speech in public forums are judged under the four-part
test articulated in Central Hudson Gas & Electric Corp. v. Public Service Commission of
New York, 447 U.S. 557 (1980). The Central Hudson test states that if (1) the
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commercial speech concerns lawful activity and is not misleading, then the regulation of
it must (2) implement a substantial governmental interest; (3) directly and materially
advance that interest; and (4) reach no further than necessary to accomplish the interest.
Id. at 447 U.S. 564-65.
III. Legal Analysis.
Assuming an event involves commercial speech and assuming that the speech
concerns lawful activity and is not misleading, the first prong of Central Hudson is
satisfied. The second prong is easily satisfied since public safety is, of course, a
substantial government interest. Scholl v. A1artin, 467 U.S. 253,264 (1984) quoting
DeVeau v. Braisted 363 U.S. 144 (1960). To satisfy the third prong, the City must
show, with competent record evidence. that the potential harm from the event is real and
not just conjecture and banning the event would maintain public safety. See Greater New
Orleans Broadcasters Association v. United States, 527 U.S. 173 (1999). If the City
could show that the threat of harm from the event is real, then the third prong would be
satisfied since banning the event would obviously eliminate the threat. Finally, as to the
fourth prong, the City must show that there is a "reasonable fit" between the regulation
and the interest served. In other words the City must show that the scope of the
regulation is in proportion to the interest being served Board of Trustees of the
University of New York v. Fox, 492 U.S. at 480.
In determining whether there is a "reasonable fit", a court will ask if there are
numerous and obvious less-burdensome alternatives to the regulation. See 44 Liquormart,
517 U.S. 529; Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995). The City would
have to show that the obvious less-burdensome alternative to banning the event, allowing
the event with increased security, would still compromise public safety. Indeed, to
prevail under Central Hudson, the City would have to prove that regardless of the
amount of increased security or police presence, the City would be unable to protect the
public if the event was permitted. In view of the size of the City's police force, its ability
to receive aid from the County and other municipal police forces, and its past
performance in protecting the City from hoards of tourists, gangs, white supremacists,
Cunanan, etc., I believe that the decision to ban an event involving commercial speech in
a public forum based on a threat to public safety would be subject to challenge.
Non-commercial speech in a public forum is judged by one of two standards
depending on whether the regulation is content-based or content-neutral. A regulation is
content-based when the content of the speech being conveyed determines whether the
speech is subject to the regulation. It is not enough that the justification for the regulation
is content-neutral. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993).
Content-neutral, time, place, and manner regulations must be narrowly tailored to
serve a significant government interest and must leave open ample alternative channels of
communication. Ward v. Rock against Racism, 491 U.S. 781 (1989). Content-based
regulations are subject to strict scrutiny and must be necessary to serve a compelling
governmental interest and narrowly drawn by the least restrictive means to accomplish
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that end. ld. One World one Family Now v. City of Miami Beach, 175 F.3rd 1282 (11 th
Cir. 1999). Content-based decisions are presumptively unconstitutional. R.A. V v. City of
St. Paul Minnesota 505 U.S. 377 (1992).
The decision to ban the event in this case would be content-based and thus subject
to strict scrutiny. In order to justify a content-based decision, the City must show that its
decision is narrowly tailored to serve a compelling governmental interest. One World
One Family Now. 175 F.3rd 1282. Certainly, a threat to public safety and order is a
compelling interest. Scholl v. Martin, 467 U.S. 253 (1984). A court may find that the
ban was the least restrictive means of protecting public safety, so long as the City is able
to prove that no amount of police presence could maintain order.
Finally, you ask in connection with the event, what measures may the City take to
protect the public. Courts will give great discretion to the City in determining the best
way to protect the public, see e.g. One World One Family Now v. City of Miami Beach,
175 F.3d 1282, and in general, rational, well-reasoned measures should be upheld.
cc: Christina M. Cuervo, Assistant City Manager
Richard Barreto, Chief of Police
Doug Tober, General Manager of Convention Center
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