Good luck solving the "public forum" puzzle

If you're a protester, you go where the people are. The protest means nothing if no one can see it. That's why Lisa Zalaski and an animal rights group went to a public area in City of Bridgeport to protest the Ringling Brothers Circus, which uses elephants against their will. The case highlights the rare issue of when public property is a free-speech zone, known to lawyers as the public forum.

The case is Zalaski v. City of Bridgeport Police Department, decided on July 27. The case starts off with a bang. The Second Circuit (Pooler, McLaughlin and Wesley) writes, "This case presents a conflict between an individual's assertion of her First Amendment right to engage in public protest and the official responsibility to maintain public safety and order." But it ends in a whimper: the case is remanded to the district court to clarify why it granted the City summary judgment on the public forum question.

I cannot emphasize strongly enough how complicated the public forum inquiry is. If you think that public property large enough to accommodate a public assembly automatically constitutes a public forum (which sharply limits when the government can restrict free speech), then take a look at this case, which reminds us that there are different levels of public fora (including designated and limited public fora), each of which affords protesters and police different rights and entitlements. The multi-part legal standard used in solving this riddle is as nuanced and complicated as reading Frank Zappa's sheet music.

To the uninitiated, the plaza outside the arena in this case looks like a public forum. The plaza is a "large, semi-circular, paved area through which the patrons must walk in order to reach the Arena's entrances and attend performances held inside." Anti-circus protests have taken place annually. But it's not clear if this is a public forum, and the law is not clear on this issue in general. While the district court said it's a limited public forum (which gives the City much leeway in regulating protests), the Court of Appeals doesn't think the trial court fully explained itself. For guidance, the Second Circuit highlights two ends of the case law puzzle. In the Hotel Employees case (2002), the Court of Appeals said the concourse outside Lincoln Center is not a public forum (even though it's outside a cultural landmark and can certainly accommodate leafletting). But in the Paulson case (1991), the sidewalks outside Nassau Coliseum (a domed structure with all the charm of a trip to the dentist) is a public forum.

While Judges Pooler and McLaughlin send the case back to the district court to take up this issue again, Judge Wesley writes in dissent that the Court of Appeals can certainly decide this issue on its own, and he would find that the property is a limited public forum and that the plaintiff's First Amendment rights were not violated when the police effected certain physical restrictions on where the protesters could situate themselves.