Responding to First Amendment Audits: Examples of Forum Determinations

This post is Part 4 of a multi-part series. For a more detailed explanation and legal analysis of the issues discussed in this blog post series (including citations to cases referenced in the post), please see Local Government Law Bulletin No. 141 , Responding to First Amendment “Audits” in the Local Government Context .

If filming might be treated by courts as a “step in the speech process” for First Amendment purposes, how can local governments identify the areas in which they may have greater leeway to regulate filming? First, local governments should look to the factors described in in our last blog post in this series and attempt to apply them to specific areas of government-owned or government-controlled property. Courts make these forum determinations on a case-by-case, fact-specific basis. Second, it can also be helpful to look at how courts have treated certain areas of property in prior cases. This post provides specific examples of how courts across the United States have categorized some types of government property for First Amendment forum analysis purposes. Please look to Section IV of the bulletin for citations to cases referenced in this post and analysis of other categories of government property (polling places, prisons) that are not discussed in this post.

While this post includes illustrative cases from other jurisdictions, local governments should keep in mind that only decisions from the Supreme Court, the Fourth Circuit, or North Carolina state courts will be binding precedent in the event of litigation challenging a filming restriction on First Amendment grounds.

Streets, Sidewalks, and Parks

Parks, streets, and sidewalks are quintessential examples of traditional public forums. Areas of government property that are similar to streets, sidewalks, and parks have also been deemed to be traditional public forums, including the main public square of a city, a publicly-owned outdoor pedestrian mall, the steps in front of a city hall, the front lawn of a county office building, and a city-maintained alleyway. The fact that a space is an open-air, publicly accessible area indicates that it is likely a traditional public forum, but there are some exceptions to that general principle. The function and purpose of the property at issue are relevant to determining whether such property constitutes a traditional public forum. In some cases, the Supreme Court has not treated publicly accessible sidewalks and streets as traditional public forums, based on the unique function and purpose of the areas at issue. However, these cases are the exception, not the rule. As a general matter, local governments should assume that courts will treat streets, sidewalks, plazas, town squares, parks, and other outdoor areas dedicated to assembly or general pedestrian passage as traditional public forums.

Lobby Areas of Government Buildings

Courts across the United States have generally treated lobbies and waiting areas in government-owned buildings as nonpublic forums.

The Eleventh Circuit, in United States v. Gilbert , held that the interior of a federal government building was a nonpublic forum.
The Seventh Circuit, in Sefick v. Gardner , held that the lobby of a federal courthouse was a nonpublic forum, “not a place open to the public for the presentation of views.”
The Eighth Circuit, in Families Achieving Independence & Respect v. Nebraska Department of Social Services , held that a department of social services lobby was a nonpublic forum, finding that the principal purpose of the lobby was to provide services to the public, not to provide free access for expressive activities.
In Freedom Foundation v. Washington Department of Ecology , the Western District of Washington held that the lobby of the Washington Department of Ecology was a nonpublic forum, in light of the fact that Department policies only granted access to visitors in the lobby if they had a reason for being present that was related to the agency’s business.
In Selfick v. United States , the Northern District of Illinois held that the lobby of a federal government office building was a nonpublic forum.
In Low Income People Together, Inc. v. Manning , the Northern District of Ohio held that the lobby and outpatient clinic waiting areas of a public, county-owned hospital were nonpublic forums.
In Grossbaum v. Indianapolis-Marion County Building Authority , the Seventh Circuit accepted the defendant’s concession that the lobby of a city-county building (the seat of government for the City of Indianapolis and the County of Marion, Indiana) was a nonpublic forum.
In a recent 2020 case, Commonwealth v. Bradley , the Superior Court of Pennsylvania upheld a “no-filming” restriction imposed in a police department lobby as a reasonable restraint on free speech.

Some courts analyze the nature of the lobby area, the policies enforced in the lobby area, and the past use of the lobby area for expressive activities in reaching their determination of the forum status of a government building lobby. For example, in Miller v. City of Cincinnati , the Sixth Circuit held that by opening the interior of Cincinnati’s city hall to events by certain private groups, the city had created, at most, a limited public forum. The court noted that limited public forum status leads to the same result as if the interior of city hall was a nonpublic forum, because in both types of spaces, restrictions need only be “reasonable and viewpoint-neutral.”

Offices and Workspaces of Government Employees

There is limited caselaw analyzing government employee offices as a “forum” for First Amendment purposes. However, the courts that have evaluated the issue have consistently held that office spaces for government employees are nonpublic forums. As the Supreme Court has stated in Cornelius v. NAACP Legal Defense & Education Fund, Inc. :

“The [government] workplace, like any place of employment, exists to accomplish the business of the employer. ‘[T]he Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs.’ It follows that the Government has the right to exercise control over access to the [government] workplace in order to avoid interruptions to the performance of the duties of its employees .”

Courts around the United States have also found government workplaces to be nonpublic forums, as described below.

In Lavite v. Dunstan , the Seventh Circuit found that a county administration building housing over twenty county departments was a nonpublic forum, where no evidence showed that the building had been used for political activity, assembly of the public, or other expressive activity.
In Freedom Foundation v. Sacks , the Western District of Washington held that the Washington Department of Labor & Industries was a nonpublic forum, because “the purpose of L&I’s headquarters is to serve as a workplace for its near 2,000 employees, not a forum of free debate and expressive activity.”
In State v. Chiapetta , the Supreme Judicial Court of Maine held that a town voter registration office was a nonpublic forum.
In Day v. Chicago Board of Education , the Seventh Circuit found that a teacher’s certification and substitute teacher’s center run by the Chicago Board of Education was a nonpublic forum.
In O’Brien v. Welty , the Ninth Circuit held that faculty offices in a university department building—as well as the hallway on which the offices were located—were nonpublic forums.
In Sheets v. City of Punta Gorda, Florida , the Middle District of Florida treated a city hall—including a city clerk’s office where the plaintiff was attempting to film with a body camera—as a limited public forum. Remember, restrictions on First Amendment activity in a limited public forum are evaluated under the same standard as those in a nonpublic forum.

As seen in United States v. Kokinda (discussed in this post ), even sidewalks or parking lots directly adjacent to government workspaces may be deemed nonpublic forums when they are used primarily for egress and ingress to the building and the government has not intentionally opened them for expressive activity.

Courthouses

Courts have consistently held that courtrooms—as well as courthouses as a whole—are nonpublic forums. Courtrooms have been recognized as a place “where the First Amendment rights of everyone…are at their constitutional nadir.” Courts have also found many outdoor areas connected to courthouses, such as plazas, walkways, and parking lots, to be nonpublic forums. Public sidewalks around the perimeter of courthouse grounds, however, may constitute a traditional public forum. A number of federal district courts around the country have upheld restrictions on filming (or restrictions on the use of electronic devices generally) in courthouses. This includes a District of Maryland decision that was affirmed by the Fourth Circuit, in which the court stated that “there is no First Amendment ‘right to communication’ that guarantees a right to carry cellular phones in government buildings.”

Police Departments

As discussed earlier, many jurisdictions have recognized a right to record police activities in traditional public forums. However, there is limited case law analyzing the interior of a police department as a forum for First Amendment purposes. The case law that does exist indicates that the interior of a police department is a nonpublic forum. The Seventh Circuit has held that the interior of a police station is “not a public forum.” The Southern District of New York has recognized NYPD meeting rooms as nonpublic forums. Likewise, the Central District of California has held that a police station is a nonpublic forum. In a decision affirmed by the Eighth Circuit, the Western District of Missouri held that a plaintiff had no constitutional right to videotape a police department lobby. Similarly, the Superior Court of Pennsylvania has upheld a “no-filming” restriction imposed in the lobby of a police department as a reasonable restraint on free speech.

County Departments of Social Services

There are relatively few cases in which courts have analyzed the forum status of departments of social services and other human services agencies. However, the courts that have analyzed the issue have consistently concluded that social services agencies are nonpublic forums.

In Make The Road by Walking, Inc. v. Turner , the Second Circuit Court of Appeals found that welfare center waiting rooms were nonpublic forums because the New York City Human Resources Association enforced a policy reserving those rooms for the transaction of official business, including for welfare claimants and those accompanying them.
In Families Achieving Independence & Respect v. Nebraska Department of Social Services , the Eighth Circuit held that a department of social services lobby was a nonpublic forum, finding that the principal purpose of the lobby was to provide services to the public.
In National Federation of the Blind of Missouri v. Cross , the Eighth Circuit held that a state vocational rehabilitation agency for blind persons was a nonpublic forum. The court found that the rehabilitation agency’s own provision of information to clients could not be characterized as the intentional opening of a forum for public discourse.
In Nathaniel v. Iowa Department of Human Services , the Southern District of Iowa held that the Iowa Department of Human Services was a nonpublic forum.

Local Health Departments

The authors of this blog post have found no cases applying First Amendment forum analysis to areas within a local health department. Public hospitals, however, have generally been recognized by courts as nonpublic forums, as have Veterans’ Affairs medical facilities. As one court explained, “[f]ew places have more nonpublic characteristics than medical centers, whose work is private by its very nature.” Public hospitals and medical centers are an imperfect analogue for local health departments, which provide a wide range of services outside of clinical care ( e.g. , environmental health services). However, the comparison may still be instructive, given that many local health departments do provide clinical health care services.

Based on a review of caselaw examining other similar settings (including departments of social services), it is likely that courts would find all areas of a local health department to be nonpublic forums, unless a county had intentionally created a designated or limited public forum by purposefully opening some part of the building for the public to engage in expressive activities. In a formal opinion letter , the State of Alabama’s Office of the Attorney General reached the same conclusion regarding the nonpublic forum status of county health departments, stating that the Alabama Department of Public Health could prohibit photography and video recording by the public at county health departments.

Public school facilities are nonpublic forums unless “school authorities have by policy or by practice opened those facilities for indiscriminate use by the general public…or by some segment of the public, such as student organizations.” Public school classrooms are nonpublic forums during school hours. Other areas in use during school hours, such as cafeterias and hallways between classrooms, have similarly been treated by courts as nonpublic forums. Outside of the classroom setting, certain areas of school property may become limited public forums if the school has opened them up for expressive activity by student groups or the outside public. For example, a public school may create a limited public forum when it opens a gymnasium to the public during interschool athletic events, when it opens its building after hours for public meetings, or when it allows members of the public to engage in artistic expression on outdoor school grounds.

Public Meetings

In the Fourth Circuit, courts have held public meetings of elected and appointed public bodies to be limited public forums, where a public body “is justified in limiting its meeting to discussion of specified agenda items and in imposing reasonable restrictions to preserve the civility and decorum necessary to further the forum’s purpose of conducting public business.” See Steinburg v. Chesterfield County Planning Comm’n, 527 F.3d 377, 385 (4th Cir. 2008); Davison v. Rose, 19 F.4th 626, 635 (4th Cir. 2021). However, the public comment portion of a public meeting could become a “designated public forum” if the governing body opens up the floor to all types of speech without imposing any restrictions on the topics that may be discussed or on who may speak.

The First Amendment forum analysis is somewhat irrelevant to analyzing restrictions on filming in public meetings in North Carolina. North Carolina’s Open Meetings Law establishes a statutory right for “[a]ny person [to] photograph, film, tape-record, or otherwise reproduce any part of a meeting required to be open.” G.S. 143-318.14(a) . The only exception to this right is if the public body determines in good faith that the size of the meeting room cannot accommodate the members of the public body, members of the public, and all the equipment and personnel necessary for broadcasting, photographing, filming, and tape-recording the meeting without unduly interfering with the meeting. In such a case, the public body may require those recording the meeting to pool their equipment and the personnel operating it. The statute also allows a public body to regulate the placement and use of filming equipment so as to prevent undue interference with the meeting.

The next blog post in this series will describe courts’ analysis of speech regulations and the standards of judicial review applicable in each forum.