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82. Should the court uphold the law's constitutionality?
The group's permit application was denied pursuant to the state law, and the group has filed an action challenging the law's constitutionality.
A group of five demonstrators who wanted to protest inadequate state funding for children's services applied for a permit to march single file on the sidewalk surrounding the capitol building. Each demonstrator planned to carry a two-foot-square sign that would read, «Our lawmakers do not care about our children.»
To preserve the appearance and accessibility of its capitol building, a state enacted a law prohibiting «the display of any sign on any portion of the public sidewalk surrounding» the building.
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Public property that has historically been open to speech-related activities (e.g., streets, sidewalks, public parks, and the internet) is called a public forum.
To be valid, government regulations of speech and assembly in public forums (and designated public forums) must:
(i) be content-neutral (i.e., subject matter-neutral and viewpoint-neutral);
(ii) be narrowly tailored (i.e., the regulation may not burden substantially more speech than necessary to further the significant government interest, although it need not be the least restrictive means of accomplishing the goal) to serve an important government interest (i.e., traffic safety, orderly crowd movement, personal privacy, noise control, litter control, aesthetics, etc.); and
(iii) leave open alternative channels of communication (other reasonable means for communicating the idea must be available). For example, a ban on all leafleting was not narrowly tailored to the state's interest in controlling litter because it would suppress too much speech. Schneider v. New Jersey, 308 U.S. 147 (1939).
B is correct. The court should not uphold the constitutionality of the law because it is prohibiting speech in a public forum in a way that is not narrowly tailored to serve its substantial government interest. Sidewalks are considered to be a public forum, where speech may be regulated as long as it is reasonable in time, place, and manner. This means it must be content-neutral, narrowly tailored to serve an important government interest, and leave open alternative channels of communication. Here, however, the regulation fails this test because although preserving the appearance and accessibility of the capitol building may be an important interest, the ban on all signs on any portion of the sidewalk is not narrowly tailored to serve that interest. See Schneider, 308 U.S. 147 (finding a ban on all leafleting not narrowly tailored to serve the interest in controlling litter).
A is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the law should not be upheld, it is not because the prohibition «is more restrictive than needed to serve a legitimate government interest,» which is the incorrect standard to apply to the sidewalk, which is, in fact, a public forum. Nevertheless, the law should not be upheld because it fails the test for regulation of public forums, as explained above.
C is incorrect. This answer choice misstates the applicable legal standard for time, place, and manner restrictions in public forums. The inquiry is not whether the regulation is «necessary to serve a compelling public interest,» but rather, whether it is narrowly tailored to serve an important government interest. As previously stated, the law in this case fails this test in that it bans too much speech in a way that is not narrowly tailored to improve the appearance and accessibility of its capitol building.
D is incorrect. Again, sidewalks have been held to be a public forum, and the regulation prohibiting the signs must be more than reasonable to survive scrutiny, it must be narrowly tailored to serve the important interest and leave open alternative channels of communication.