BERGER v. CITY OF SEATTLE - ACLU of Washington

266 BERGER v. CITY OF SEATTLE
337 U.S. 1, 4 (1939) (“[A] function of free speech under our
system of government is to invite dispute. It may indeed best
serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even
stirs people to anger.”). The majority’s vision of a public park
as a place regulated to protect the placid outings of “associating”
citizens who are forbidden to engage in “speech activities”
at all, lest someone be unsettled, is alien to the values
instinct in the First Amendment, and to the entire public
forum concept. Are two people chatting on a street corner in
an “association” that can properly be protected by preventing
a fellow citizen from offering them a handbill? Are picnickers
on the National Mall in Washington, D.C., to be so “protected”?
The majority’s reading of Dale and Roberts to create
such a sweeping ability to protect “association” vitiates
speech protections in all public fora locations.
Further, even in the abortion clinic context, where speech
restrictions may be somewhat broader, the Supreme Court has
struck down a captive audience rule that bears a marked
resemblance to the one the majority upholds today. In
Schenck, the Court considered an injunction which barred
demonstrations within fifteen feet of any person or vehicle
using an abortion clinic, id. at 367, and held that this “floating”
buffer created an uncertain and over-broad system of
restraints on speech. 519 U.S. at 377-80. As clinic patients
moved, speech-restricted areas shifted across the landscape in
an unpredictable and, in the Court’s view, unacceptable manner.
Id.
The same problems are present here and are not leavened
by the clear public safety issues present in Schenck. The Seattle
Center’s captive audience rule applies within thirty feet of
any line, any audience, and even any group of people having
lunch in a seating area. Crowds move. As the end of a line
shifts, or a picnic table is occupied, the captive audience rule
snaps on to bar speech within thirty feet of the line or of the
picnicking park-goers. This system of shifting “speech-free”