Town violated anti-war protester's First Amendment rights

The Court of Appeals holds that an upstate New York town violated the First Amendment when it interfered with an anti-war protester's efforts to hold a rally on Town property where patriotic celebrations regularly take place there. This kind of viewpoint discrimination is unconstitutional.

The case is Coe v. Town of Blooming Grove, decided on July 20. Bergstein & Ullrich, LLP, represented the plaintiff, with help from Scott Korenbaum, Esq. It all started in 2006, when Rev. Coe wanted to hold a rally at Moffat lawn, which fronts the library in the center of town. She was dissuaded from applying for a permit because town law required all permit applicants to obtain a $1 million insurance policy, which she could not afford. She sued in federal court, and on the preliminary injunction application, the trial court ordered the town board to take up her permit application. It did so, and granted her permission to hold the rally. But since all this happened at the last minute, few people attended the rally. On the motion for summary judgment, the district court held that (1) contrary to the town's position, the lawn is a public forum, open to all protesters and (2) she was entitled to damages because the unconstitutional mandatory insurance requirement interfered with her efforts to hold a well-attended rally. These holdings were unique; few federal decisions in New York provide guidance on which properties constitute public forums. Even fewer decisions hold that mandatory insurance policies violate the First Amendment if the municipality does not provide any waivers for the indigent.

Adamant that Rev. Coe cannot hold rallies at this location, the town appealed. The Court of Appeals affirms, but on an alternate ground. Rev. Coe proved through photographs from the local newspaper archive that the Town had allowed VFW and other organizations to hold Memorial and Veterans Day celebrations at Moffat lawn for years, at least since the 1930s. In allowing these celebrations to take place year after year, the town created a limited public forum and therefore engaged in viewpoint discrimination, in violation of the First Amendment. Here's how the Second Circuit (Parker, Chin and Lohier) sees it:

The Town and Village opened the Lawn for expression on the subjects of war and military service when they permitted speakers from private groups, including the Veterans of Foreign Wars (“VFW”), to use it without obtaining liability insurance. The Town and Village argue that the VFW’s speech merely conveyed the government’s message and thus does not prove the Lawn was opened for private expression, but we find no evidence that the Town or Village authorized, approved, controlled, or ratified the VFW’s speech, cf. Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1134 (2009), or that the VFW communicated governmental messages when it addressed these subjects.

By contrast, when Coe asked to hold a peace rally at the Lawn to speak on the same general subjects, the Town informed her “that [she] needed to take out a [$1 million] liability insurance policy.” The Town also rejected her request for a waiver of this requirement based on her inability to afford it. In this context, a liability insurance requirement is a prior restraint on speech. ... Because Coe’s speech fell within the scope of prior uses of the Lawn, the selective enforcement of the liability insurance requirement against her constituted unlawful viewpoint discrimination. Even though Coe sought to speak on the same topics as the VFW (i.e., war and military service), apparently she alone was required to obtain $1 million of liability insurance before being allowed to speak.

What this means is that government speech stands alone under the First Amendment; the government does not unlawfully discriminate if it promotes its own message on government property. But that is not what happened here. The Memorial and Veterans Day celebrations were not government speech but community speech. If you open up the property for speakers expressing a certain point of view, then you have to lets others use that property also if they want to speak on the same subject matter. Rev. Coe wanted to hold a public assembly on war and peace just as VFW does. The Town cannot prevent her from doing so.