BERGER v. CITY OF SEATTLE - ACLU of Washington

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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”
BERGER v. CITY OF SEATTLE zones is precisely the sort of capricious restraint, likely to chill far more speech than the Seattle Center would be justified in regulating, that Schenck struck down. 519 U.S. at 377- 80. By somehow finding a captive audience in a public park and then endorsing a buffer zone as restrictive as that struck down in Schenck, the majority turns the law on its head. It does not simply abdicate its responsibility to safeguard the rights of the public but creates dangerous new legal principles that have no obvious stopping point. I cannot go along with this perilous course. III. Conclusion 267 The majority does not acknowledge how radically its holdings alter our law, creating a legal structure which will make it far easier to shut down discourse in public parks and other traditional public fora. Democracies survive and grow through public conversations among their citizens. For this reason, we have always viewed any limitations on speech in traditional public fora with extreme skepticism. Today’s opinion departs from that long tradition. I respectfully dissent.
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BERGER v. CITY OF SEATTLE - ACLU of Washington

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