HomeMy WebLinkAbout2005-09-26 05-315 ORDERDate: 9-2605 [tem No. 0 315
Item/Subject Order, Adopting Polity GoWming Distribution of Written Materials in City Buildings
Responsible Department Ory Manager
Commentary: At a recent Council meeting, Mr. lames Lebreque appeared under Public Comment to
appeal, on first amendment grounds, a decision of the City Manager to disallow the placement of a
publication at the City's Health and Welfare Department. Mr. lebreque's appeal was referred to the
Goverment Operations Committee, which uphold the Manager's decision and requested that a policy be
drafted on this subject that would apply to all (sty buildings other than City Hall, which Is covered by an
existing policy.
The Assistant Ory Solicitor has providetl a separate memorandum (copy attached) addressing the
application of the first amendment to City facilities. While he has determined that the first amendment
does not provide a Constitutional right to the placement of publications at the Health and Welfare
Department, this does not mean that permission could not be granted. However, there are a number of
considerations that support adopting a policy limiting the distribution and placement of written materials.
While City FacilNes are public buildings, the Information provided in Mem should be regulated in
accordance wild the nature and functions of these facilities. While public, our buildings are intended for
specific purposes — to carry on the business operations of the Ory and to provide services to our dozens.
In many instances, citizens in need of services must come to our facilities.
As noted in the Assistant Solicitors memo, we have traditionally chosen to operate our facilities as non-
public forums. Should we choose to allow any individual or group to distribute or provide written
materials in a building, We then have no cim ca but to allow all others since, once the door is opened, we
cannot legally determine what Mould or should not be allowed on the basis of Me content of the
publication. At Heath and Welfare, for example, we could easily receive requests to place information for
and against abortion, sexual orientation rights, childhood inoculations, methods of contraception, and
other controversial issues.
The attached policy will restrict the distribution and availability of written materials in Gry buildings to
those that are prepared or acquired by me Cry and are reamnaNy related to the Department's purpose.
Department Head
Manager's Comments: Government Operations has reviewed and read =rproKal. � k
City Manager
A dated Information: Memorandum; Policy
Budget Approval:
finance Director
Legal APProral:
C Solklmr
X Passage
_ First Reading page _ of _
Referral
05 315
SEP 2 6 2005
nssagoea to Gouneuor Graeae
CITY OF BANGOR
(TULE.) ORDER, Adopting NI[q Governing Distribudon of Written Materials in Gty
Buildings
WHEREAS, the City of Bangor owns and operates numerous buildings that are intended to meet
the service needs of its citizens and for the CjWs internal busing operations; and
WHEREAS, the City has traditionally operated these buildings as non public forums in
recognition of their primary functions; and
WHEREAS, It is the intent of the City to maintain these buildings in the future as non public
forums; and
WHEREAS, the City Intends W continue to operate tiese facilities as non public forums in order
to avoid distracting these who use these facilities from the purpose of their visit
eliminate the potential for controversy among those utilizing the buildings, and avold
situations where Mose seeking service would be dissuaded from visiting a facility or
would be unnecessarily delayed in receiving service; and
WHEREAS, it Is also the intent of the City that the distribution and availability of written
materials in its non public forum facilities are regulated in a manner that is content
neutral; and
WHEREIQ to insure that these starters are formalized, the City Council has determined that
adopting a general policy governing the distribution and availability of written
materials in City Buildings is appropriate;
NOW, THEREFORE, BE I ORDERED BY THE CITY COUNM OF THE CRY OF BANGOR, THAT
The aRatlred polky, entitled Vistribution of Written Materials in City Buildings," is hereby
adopted.
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05 315
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Policy No. P.8.3 -A
POLICY
DISTRIBUTION OF WRITTEN MATERIALS IN CITY BUILDINGS
9�iT-q
The City of Bangor owns numerous buildings throughout the City necessary to
conduct the business of the City, some of which are leased to third parties. While
these buildings are publicly owned and may be open to the public, they are not
designed or intended to be traditional or limited public fora. The City has the
authority to preserve such properties under its control for the use to which they are
lawfully dedicated. Accordingly, it is the intent of this policy to keep buildings
covered by this policy as nonpublic fora in order to ensure that the buildings will be
used efficiently and for their intended purposes.
2.8 APPLICABILITY
This policy is applicable to all buildings owned by the City of Bangor except City Hall,
which is covered by a separate Policy, buildings operated by the Bangor School
Department, and buildings leased to third parties. Buildings covered by this Policy
include, but are not limited to, the following:
Bat Community Connector Buildings
Fire Department Stations
Fleet Maintenance Building
Harbor Masters Building
Health & Welfare Department Buildings, including:
Administration Offices
Dental Clinic
General Assistance Offices
Immunization Clinic
Public Health Nursing Offices
Shelter Care Plus Offices
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SID Clinic
Park Woods
WIC offices
Parks & Recreation Buildings, including the Golf Course
Police Headquarters
Public Works Building
Pickering Square Parking Garage
Waste Water Treatment Plant
3.0 GENERAL POLICY
In buildings to which this Policy applies:
3.1 The City shall not allow the distribution or dissemination of any written
materials (including, but not limited to, magazines, brochures, newspapers,
Flyers, pamphlets, and posters) by the Public..
3.2 The City Department responsible for the operation of a building may, but is
not required to, distribute or display materials that are prepared or acquired
by the City and that are reasonably related to the Department's purpose.
Departments shall be viewpoint neutral in deciding which such materials to
provide.
3.3 Materials submitted to the City for filing as part of any application, that are
required by law to be displayed, or that are an element of a presentation
made at any public meeting sponsored by the City or other governmental
agency are exempt from this policy.
4.0 BASS PARK PARKS AND RECREATION CENTER & BANGOR INTERNATIONAL
AIRPORT
4.1 The Bass Park Complex and the Parks and Reireation Center on Main Street
are subject to 4 3 except when these facilities, or a portion thereof, are
leased to a third party, during which time the leasee may distribute materials
within the leased area.
4.2 The Bangor International Airport is subject to 4 3 with the exception of those
portions of the facility that are leased to third parties and are therefore not
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subject to this policy.
5.0 OTHER
5.1 Commercial advertising in City Buildings is governed by the Cil Advertising
Policy, which policy shall not be affected or superceded by this policy. A
copy of the Advertising Policy Is available for inspection in the City Manager's
Office, Bangor City Hall.
5.2 Posters or publications informing the public of upcoming events,
performances, or activities may be placed or distributed in City Buildings only
for events supported or sponsored, in part or in whole, by the City or by the
State of Maine or United States Government. Approval to place such
publications and posters shall be sought from the Department Director
responsible for the City Building or his or her designee.
5.3 The City may remove any materials that have become outdated, due to space
limitations, or when required to avoid visual clutter In public or office areas.
Such removal is at the sole but viewpoint -neutral discretion of the
responsible staff person and may be without notice to the organization that
has placed the materials concemed.
Edward A. Barrett
City Manager
Council Reference:
Effective Date:
hJfWffj
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Memorandum
To:
Goverrunent Operation Committee
Date:
9 August 2005
Atom:
John Hamer, Assistant City Solicitor
Re:
First Amendment Rights
The question has been raised whether the City is required by the First
Amendment W allow a person to distribute literature in the Health & Welfare
waiting area
The Fast Amendment to the Constitution, applicable to state and local
governments through the Fourteenth Amendment, mandates that no law shell
'abridg[e] the freedom of speech.' U.S. Const amend. 1. However, the Find
Amendment does not guarantee access to property simply because it is owned
or controlled by the government U. S Postal Service v. Coun it of rsburgh
C9uic Associations, 453 U.S. 114, 129 (1981(. The government, as a private
owner of property, has power to preserve the property under its control for the
use to which it is lawfully dedicated. Geer v. Spock, 424 U.S. 828, 836 (1976).
Nottung in the Constitution requires the Government freely to grant access to
ell who wish W exercise their right to free speech on every type of Government
property without regard to the nature of the property or to the disruption that
might be caused by the spec leis activities. Jones v. North CamFirm Prisoners'
Labor Union, 433 U.S. 119, 136 (1977(.
To determine whether prohibiting tine dissemination of literature on Cityowned
property is a violation of a person's First Amendment right to free speech, it is
necessary W first determine the location's forum type. There are three lands of
fora- a traditional pubhc forum, a limited forum, and a non-pubLc forum.
Because a principal purpose of traditional public fora is the free exchange of
ideas, speakers can be excluded from a public forum only when the exclusion is
necessary to serve a compelling state interest and the exulusion is narrowly
drawn to achieve that interest. See Perry Educ Assn. v. Perry Local Educators'
Ass'n., 460 U.S. 37, 45 (1983(. Similarly, when the Government has
intentornahy designated a place or means of communication as a public forum,
speakers cannot be excluded without a compelling governmental interest. In
public fora, governments are limited W coatenbneutral time, place, and manner
restrictions.
However, the government does net create a public forum by inaction or by
permitting limited discourse, but only by intentionally opening a nontraditional
forum for public discourse. Accordingly, the U.S. Supreme Court lite looked to
the policy, and practice of the government to ascertain whether it intended W
05 315
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designate a place not traditionally open to assembly and debate as a public
forum. Cornelius v. NAACP Legal Def e and P ucukxml Fund, Inc. 473 U.S.
788, 802 (1985(.
The Health & Welfare Department is established by the Code of the City of
Bangor, Chapter 28, Article XIII, for the purpose of improving the public health
and welfare through the operation of a dental clbuq maximization chide, public
health nursing program, shelter plus care program, transitional housing
program, S.T.D. come, and W.I.C. program. Educational reading materials are
provided in the Health & Welfare waiting area for the convenience of those
citizens going W the Department for services. The Department and grounds are
not a traditional public forum, nor has the City expressed any intention to
make it available as a public forum; consequently, it is a nonpublic forum.
Access W a nonpublic forum can be restricted as long as the restrictions are
reasonable and (are( not an effort to suppress expression merely because
public officials oppose the speaker's view.- Id at 800. The Government's
derision to restrict access to a nonpublic fomm need only be reasonable; it
sed not be the most reasonable or the only reasonable limitation. In contrast
to a public forum, a finding of strict incompatibility between the nature of the
speech or the identity of the speaker and the functioning of the nonpublic
forum is not mandated. The reasonableness of the Government's restriction of
access to a nonpublic forum must be assessed in the light of the purpose of the
forum and all the surrounding circumstances. Id. at 808-9.
The avoidance of controversy is a valid ground for restricting speech in a
anpubec forum, although it would not in a public forum, because by definition
nonpublic forum is not dedicated W general debate or the Gee exchange of
ideas. The Mrst Amendment does not forbid aviewpoint-neutral exclusion of
speakers who would disrupt a nonpublic forum and hinder its effectiveness for
its intended purpose. Id. at 811.
Control over access to a nonpublic forum can be based on subject matter and
speaker identity so long as the distinctions drawn are reasonable in light of the
purpose served by the forum and are viewpoint neutral. Peng Education Assn.,
460 U.S. at 49. Although a speaker may be excluded from a nonpublic forum if
he wishes to address a topic not encompassed within the purpose of the forum,
or if he is not a member of the class of speakers for whose especial benefit the
fomm was created, the government violates the truest Amendment when it
denies access he a speaker solely to suppress the paint of view he espouses on
an otherwise includible subject. Cornelius, 473 U.S. at 806.
The City may (but is not required to) restrict the dissemination of literature for
any reasonable purpose in the light of the Health & Welfare Department's
function- the City's decision to restrict access to the Health & Welfare
Department's waiting area (or any other nonpublic focal need only be
reasonable. The avoidance of controversy is a valid ground for restricting
speech th a nonpublic forum- the City easy exclude speakers who would disrupt
the Department's operations or hinder its effectiveness in a viewpoint -neutral
manner. Likewise, control over access can be based on subject matter and
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SEP 2 6 2005
speaker identity so long as the distinctions drawn me reasonable in light of the
purpose served by the forum and are viewpoint neutral.
In this case, the topic about which the citizen seeks to disseminate information
is nat encompassed within the purpose of the forum and may therefore be
excluded. After the citizen involved alleged the Health & Welfare Dvector had a
viewpoint bias, the materials were reviewed by the City Solicitor and City
Manager, both of whom determined without regard to viewpoint that the
materials were not appropriate for the Health & Welfare Department.
JISH
CC: Bangor qty Council
Edward A. Barrett, City Manager