Justice Elena Duarte, writing for the Third District Court of Appeal, held that the City of Redding, CA’s—and its library’s—policy of limiting leafleting to a “free speech area” on the plaza outside the library violated the First Amendment. (The policies are tightly tied together, as the library’s board of trustees is made up of all the same members as the city council, and the council made violation of the library policy a criminal act.) Though considered together by the courts, the legal challenges were originally filed separately by Suann Prigmore, the chair of the Bostonian Tea Party’s Constitution Week Committee, The Bostonian Tea Party and the North State Tea Party Alliance, and by the American Civil Liberties Union (ACLU) of Northern California, as well as two individual ACLU members. According to The Metropolitan News-Enterprise, the Daughters of the American Revolution was involved in the original leafleting dispute, but did not bring suit.

The ruling

Duarte concluded that the exterior of the library is a traditional public forum, not just a limited public forum as the city contended, and thus free speech rights should receive the greatest degree of protection. “Characterizing the area as a public forum is consistent with the role of a library as ‘a mighty resource in the free marketplace of ideas,’” she said, also citing physical characteristics of the space, such as unrestricted access to the public and benches for congregating, which make the plaza more like a park than the entrance to a retail establishment.

The entrance to the City of Redding public library

She found that while some restrictions on placement of tables might be appropriate to avoid congestion, Redding’s were substantially broader than necessary, and no restrictions on placement of individuals without tables are needed at all, since there are already non-contested rules against obstructing anyone’s way. Because library patrons can say no and continue to enter or exit the library, Duarte held that they’re not a captive audience. “They have no general right to be free from being approached,” she said. She also held that the city’s ban on leafleting which solicited funds was not narrowly tailored enough, because it banned asking for funds in the future, not just immediately or on-site. “We will not rewrite the Policy to make it constitutional,” she said. Likewise, Duarte held that the rule against “offensively coarse utterance, gesture, or display, or … abusive language toward another person,” was unconstitutional, as is the prior registration requirement. Said Duarte, “A permitting requirement, even where ministerial and performed promptly at no cost, raises significant concerns, particularly the loss of anonymity and the ban on spontaneous speech.” However, the appeals court sided with the city in the case of leafleting in the parking lot, finding that the trial court had failed to consider the safety issue which the city said was its primary rationale. Duarte also said that certain provisions in the preliminary injunctions, intended to prevent the city from enforcing the leaflet ban by other means, would also prohibit a constitutionally permitted ban on on-site solicitation and hence were overly broad.

Next Steps

Linda Lye of the ACLU of Northern California told LJ that an upcoming case management conference on January 7 with the trial court would present a universe of procedural options, including a petition for review by the California Supreme Court. Failing that, the parties could agree to convert the preliminary injunction into a permanent injunction, continue to litigate open issues, or, if the trial court grants a continuance, go into settlement negotiations. Said Lye, “We’re delighted with the result. The library is the public space where people come to receive and exchange ideas…the idea that the city was trying to limit the flow of speech in the outside areas surrounding the public library was deeply troubling.” Pending the results of Monday’s conference, Rick Duvernay, attorney for the city of Redding, told LJ that the city council will decide whether to petition for a review by the California Supreme Court at its meeting on January 15. Although the decision was announced on December 13, 2012, Duvernay said it won’t be final until 30 days afterward, and then the city has another 10 days to file a petition. The city runs Shasta County’s two additional branches through private library management firm LSSI, so Duvernay said, “theoretically, if the decision becomes final, it affects the other two branches” as well as the Redding branch. However, he added, he doesn’t think there has been “other speech activity going on at the other branches.” For that matter, there hasn’t been much at the Redding branch, either, “since the dispute arose in 2010,” said Duvernay, other than the Bostonian Tea Party distributing pocket constitutions during constitution week in 2011 and 2012. “There are aspects of the appeal court decision that were good for the city,” said Duvernay, citing the restrictions on leafleting in the parking lot and the ruling that parts of the injunction were overly broad. “It’s a decision I think we could live with, but … the injunction has presented more challenges for us in managing the library. They’ve had to have security staff out there to monitor on a full time basis... We aren’t able to give instructions to the point that we used to.” The decision “is an interpretation of California’s liberty of speech clause, so I don’t think it should give any concern outside of California,” concluded Duvernay, “but in California it is a precedent setting decision, and one of the first times the courts have extended the public forum designation to a new venue in many years.” Rosario Garza, executive director of the California Library Association (CLA), told LJ that CLA's "Board of Directors has a board meeting scheduled for January 18, and we will be adding this topic to the agenda for discussion." Deborah Caldwell-Stone, Deputy Director of the American Library Association's Office for Intellectual Freedom, told LJ, "We are not aware of any similar cases in other states that address leafleting outside the library. Libraries have dealt with comparable controversies concerning the use of meeting rooms and literature tables, as well as rules that require library users to refrain from certain behavior or meet safety requirements." The library staff and the Bostonian Tea Party did not immediately respond to LJ’s request for comment.