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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. IN cm COUNCIL ' SEI'MRBER 26, 2W5 MTION NAI)¢ ANO SOLO M MR PMSA@ G®NY PA R.-VICME WSSOY, CABOI.YN SIIRSON, TIE LAUNSCQM AW 2ACOARY NYDEN SMU AGAINST MM MMSM POLICY ALES BANNER SPOKE IN PAPoE OF ISIS PKOPOSW POLICY NOTION UDUNTW WM: 2-5 CONNCIWKS v ING Yes: FA NGPON. GKeENs WmiCIWKS vm KG W: ALLW. CASNNPK. D•EESIM, MINIM. TRENKLE ASSENT: NAVES AW STONE \Ou I/ Y', N O5-TI5 OMEB Cn=.) AIK)"ING MICY GOWNING OISTSII=N OF NSITMA HATNNiALS IN CITY NOILOINGS AWgoed b C....... r..A 05 315 SEP 2 6 2665 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 P 8.3-A 05 315 SEP 2 6 2065 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 P 8.3-A 05 315 SEP 2 6 2005 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 05 315 SEP 2 6 2605 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 SEP 2 6 2005 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 05 315 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