Price v. City of N.Y.
15 Civ. 5871 (KPF) (S.D.N.Y. Jun. 25, 2018)
a designated or limited public forum, or a
nonpublic forum, the Supreme Court has directed
lower courts to consider the space's compatibility
with expressive activity and whether the
government's general "policy and practice" shows
that the forum is intended to be used for speech by
the public. Paulsen v. Cty. of Nassau, 925 F.2d 65,
69 (2d Cir. 1991); see also Cornelius, 460 U.S. at
45.11
27
11 "Governmental intent is said to be the
touchstone of forum analysis." Huminski v.
Corsones, 386 F.3d 116, 152 (2d Cir. 2004)
(quoting Gen. Media Commc'ns, Inc. v.
Cohen, 131 F.3d 273, 279 (2d Cir. 1997)).
In evaluating whether the government
intended to create a public forum, courts
may look to its "policies or regulations"
The first category is the traditional public forum,
including public streets, parks, and sidewalks, see
Perry Educ. Ass'n, 460 U.S. at 45, which "by long
tradition or by government fiat have been devoted
to assembly and debate," Paulsen, 925 F.2d at 68
(quoting Perry Educ. Ass'n, 460 U.S. at 45). See
also Int'l Soc'y for Krishna Consciousness, Inc. v.
Lee, 505 U.S. 672, 678 (1992) (observing that
traditional public forums are spaces that have
"traditionally been available for public
expression").
regarding use of the space. Hotel Emps. &
Rest. Emps. Union, Local 100 of N.Y., N.Y.
& Vicinity, AFL-CIO v. City of N.Y. Dep't
of Parks and Recreation, 311 F.3d 534, 547
(2d Cir. 2002). However, "[i]ntent is not
merely a matter of stated purpose." Paulsen
v. Cty. of Nassau, 925 F.2d 65, 69 (2d Cir.
1991). Courts must look beyond official
policy
statements
and
evaluate
2002), the Second Circuit identified four factors
that courts should use when evaluating the nature
of a particular *27 property or space: (i) "whether
the [property] falls within those categories of
property historically deemed to be traditional
public fora," (ii) "whether it is the type of property
that should be so classified given its physical
characteristics," (iii) "the objective way it is used,"
and (iv) the government's "intent in constructing
and opening it to the public." Zalaski v. City of
Bridgeport Police Dep't, 613 F.3d 336, 343 (2d
Cir. 2010) (quoting Hotel Emps., 311 F.3d at 53637). The Second Circuit has repeatedly recognized
that the "primary factor" in forum analysis is the
manner in which the public space is used. See id.;
Hotel Emps., 311 F.3d at 547.
the
government's actual practice towards the
space at issue. Make the Road by Walking,
Inc. v. Turner, 378 F.3d 133, 143 (2d Cir.
2004) (citing Cornelius v. NAACP Legal
Def. & Educ. Fund, Inc., 473 U.S. 788, 802
(1985));
Paulsen,
925
F.2d
at
69
(Government intent can be inferred from
"policy and past practice, as well as the
nature of the property and its compatibility
with
expressive
activity."
(emphasis
added)). To that end, "[o]bjective indicia of
intent to create a public forum, combined
with a history of consistent practice, can
overcome a bare statement of contrary
purpose." Paulsen, 925 F.2d at 70 (citation
omitted).
In Hotel Employees & Restaurant Employees
Union, Local 100 of New York, N.Y. & Vicinity,
AFL-CIO v. City of New York Department of
Parks and Recreation, 311 F.3d 534 (2d Cir.
28
In a traditional public forum, content-based
restrictions on speech must survive "strict
scrutiny" — that is, the restriction must be
narrowly tailored to serve a compelling
government interest. Pleasant Grove City v.
Summum, 555 U.S. 460, 469 (2009); Hotel Emps.,
311 F.3d at 545. In such a forum, the government
may impose content-neutral time, place, and
manner restrictions; however, these must be
"narrowly tailored to serve a significant
government *28 interest, and leave open ample
alternative channels of communication." Perry
Educ. Ass'n, 460 U.S. at 45.
The second category is the designated public
forum, which although not a traditional public
forum,12 exists because "the government has taken
13
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