October 26, 2009
Dear Sir:
You have what seems to me the following question: Can the city hall be used by religious,
charitable and other organizations, to solicit charitable contributions, apparently more in the
form of goods than money?
The answer is no. Apparently, the test for whether city property used for governmental
purposes can be used by private parties is whether their use is for a public purpose, and
whether there is legislative authority for such use. A city hall is undoubtedly city property used
for governmental purposes, but its use by private persons for the solicitation of goods or money
is generally not a public purpose, and there is no legislative authority for the use of the city hall
for that purpose.
Even if solicitations in the city hall were allowed to be done by religious groups, such a use
might implicate the question of whether the city’s actions reflect an endorsement of religion
prohibited by the First Amendment. But I doubt that question needs to be addressed. If we
briefly assume for the purposes of analysis that the city could allow the city hall to be used for
the solicitation of goods or money, by religious and other kinds of groups, even for strictly
charitable purposes, it would be extremely unwise for the city to do so. I hasten to add that
undoubtedly many persons and groups who would seek to use the city hall for those purposes
are engaged in worthy causes. But if the city allowed any kind of organization or person to use
the city hall for those purposes, it is clearly the law that it could not restrict the same use of the
city hall by all other kinds of organizations and persons. Sooner or later (probably sooner than
later), there would be organizations and groups the city’s governing body would find
objectionable, but it would find itself legally bound to allow them to use the city hall. Moreover,
some of the groups or persons might find themselves objecting to the use of the city hall by
other groups or persons. It makes good sense to stay out of those situations. The simplest way
for a city to avoid any problems with solicitations in the city hall, or any other kind of expression
that is inconsistent with the use of the city hall for city hall purposes is to pass ordinances
prohibiting them.
In Perry Education Assn v. Perry Local Educators’ Assn, 460 U.S. 37 (1983), the U.S. Supreme
Court identifies three kinds of fora:
Places which by long tradition or by government fiat have been devoted to assembly and
debate, the rights of the state to limit expressive activity are sharply circumscribed. At one end
of the spectrum are streets and parks which “have immemorially been held in trust for the use of
the public, and time out of mind have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions.” [Citation omitted by me.] In these
quintessential public forums, the government may not prohibit all communicative activity. For the
state to enforce a content-based exclusion it must show that its regulation is necessary to serve
a compelling state interest and that it is narrowly drawn to achieve that end. [Citations omitted
by me.] The state may also enforce regulations of the time, place, and manner of expression
which are content-neutral, are narrowly tailored to serve a significant government interest, and
leave open ample alternative channel of communication. [Citations omitted by me.]
A second category consists of public property which the state has opened for use by the public
as a place for expressive activity. The Constitution forbids a state to enforce certain exclusions
from a forum generally open to the public even if it was not required to create the forum in the
first place. [Citations omitted by me.] Although a state is not required to indefinitely retain the
open character of the facility, as long as it does so it is bound by the same standards as apply in
a traditional public forum. Reasonable time, place and manner regulations are permissible, and
a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.
[Citation omitted.]
[In Footnote 7 within this second category, the Court said: “A public forum may be created for a
limited purpose such as use by certain groups.” [Citations omitted by me.] Some courts also call
limited public fora designated public fora.
[The third category is] [p]ublic property which is not by tradition or designation a forum for public
communications is governed by different standards. We have recognized that the “First
Amendment does not guarantee access to property simply because it is owned or controlled by
the government. [Citation omitted by me.] In addition to time, place and manner regulations, the
state may reserve the forum for its intended purposes, communicative or otherwise, as long as
the regulation on speech is reasonable and not an effort to suppress expression merely
because public officials oppose the speaker’s view. [Citations omitted by me.] As we have
stated on several occasions, “the State has power to preserve the property under its control for
the use to which it is lawfully dedicated. [Citations omitted by me.] [At 46]
A large number of cases that deal with those kinds of fora involve the question of whether the
solicitation of contributions in those fora reflect “expression” protected by the First Amendment.
Both the U.S. Supreme Court and the Sixth Circuit Court of Appeals, in which Tennessee is
located, have held that they are. In Village of Schaumburge v. Citizens for a Better Environment,
444 U.S. 620 (1980), it is said that, “[O]ur cases have long protected speech even though it is in
the form of ... solicitation to pay or contribute money.” [Also see Heffron v. International Society
for Krishna Consciousness, 452 U.S. 640 (1981), among many other cases]. In the Sixth Circuit,
it is said in Alter v. Armstrong, 961 F.2d 1224 (1972), that “The solicitation of money and the
distribution of literature are two different categories of speech, each of which enjoys protection
under the First Amendment.”[At 1228] [Also see Spinola v. Village of Granville, 2002 WL
1491874 (C.A. 6 Ohio)].]
With respect to the third kind of fora, Perry Education Assn., above makes it clear that
governments can regulate, and even prohibit certain kinds of speech, but that if the speech at
issue is allowed, its allowance cannot be prohibited in an “effort to suppress expression merely
because public officials oppose the speaker’s view.”
But what is the basis of the theory that the city cannot allow the use of its city hall for purposes
of solicitation?
There are apparently different rules for courthouses and city halls in some states. Surprisingly,
the lead case in this area is apparently the 1895 case of State ex rel. Scott v. Hart, 43 N.E. 7, in
which the Supreme Court of Indiana held that a county could not lease out space in the court
house to be used by a private business. The court reasoned that the county held that the
courthouse was “public property held by the county, but in trust for the public use.” [At 7] It
declared that the rule was different in some states with respect to city halls. In Rutherford
County v. City of Murfreesboro, 309 S.W.2d 778 (Tenn. 1958), the Tennessee Supreme Court,
declared that the county could not have dedicated certain property that was part of the
courthouse square for use as a city street. Citing Scott v. Hart, above, it said that:
County buildings and their equipment are public property held by the county, but in trust for the
public use. [Citations omitted by me.] .... “Any rule other than the one we declare would lead to
entanglements and abuses against which the public should be protected as a matter of public
policy. ***
‘The same rule should be applied to the disposition of the courthouse yard, in our opinion, as to
the space within the courthouse....” [At 783]
In West Tennessee ACLU v. City of Memphis, 323 F.Supp. 234 (W.D. Tenn. 1971), U.S.
District Court for the Western District of Tennessee, appears to have found the rule the same for
courthouses and city halls in Tennessee. There the mayor of Memphis began a program under
which he could allow unused space in the city hall to be made available to any organization he
considered to be “worthwhile and in the community’s best interest.” [At 234] The mayor
subsequently allowed a group chartered for the purpose of assisting prisoners of war and the
missing in action from the Vietnam War to use space in the city hall. The mayor’s approval of
the use of the city hall was followed by a request by a selective service counseling association,
headed by a Reverend Richard M. Moon, to also be allowed to use space in the Memphis City
Hall. The mayor denied that group the use of the city hall, because he felt that its use by such a
group was not consistent with his program.
The court held that the use of the space in the city hall by the patriotic group was not for a
public purpose, and that even if it was, absent statutory authority the city hall could not be used
by a private group. Citing Shelby County v. Memphis Abstract Title Co., 140 Tenn. 74, 84, 203
S.W. 339, 342, the court declared that:
We fail to find any statutory power to the quarterly county court or to the county commissioners
to lease any part of the space in the offices designed for the use of county officials, and we think
it clear that no such authority exists. The power, if existent, on the exercise would give the
lessee the right to control the space leased to him or it to the exclusion of other members of the
public and the lease could be multiplied, resting in the serious embarrassment of others whose
rights to use the registry rooms and equipment cannot be denied.
In the absence of statutory authority, no part of the rooms in current use as a registry of deeds
and as part of a courthouse may be leased to or used for a period of months and years for
private purposes. County buildings and their equipment are public property held by the county,
but I trust for the public use. [At 236]
It was also held in Jonesboro Area Athletic Association v. City of Dixon, 181 S.E.2d 852 (Ga.
1971), that a city could not lease property it held in its governmental capacity without statutory
authority.
Of course, a long term lease of city hall property is different than allowing temporary charitable
solicitations inside a city hall, but the difference seems one of degree rather than principle.
Indeed, there was apparently no lease involved in the mayor’ grant of space in the Memphis
City Hall to the patriotic group in ACLU v. City of Memphis, above. es
I have been unable to find any general law authority for a city to permit the use of the city hall
property for charitable solicitations. In addition, even though your city is a home rule
municipality, I see no authority in its charter for the city to allow its city hall property to be used
for that purpose.
But more important in West Tennessee ACLU v. City of Memphis, above, is that it anticipated
the fora classification contained in Perry Education Association, above, and the limitation
expressed in that case, and subsequent Free Speech cases, that a government that allowed
free speech in fora in which it was not required to allow it, could not discriminate among the
persons and groups who sought to exercise the same rights in such fora:
The Court is also of the opinion there is no inherent constitutional right to compel public officials
to open municipal buildings to the public for use as an office even in the exercise of free speech
and assembly. [Citations omitted by me.] This is a different privilege entirely from the rights
guaranteed under the First and Fourteenth Amendments to the exercise of free speech and
assembly without unlawful abridgement in public places, streets, parks and halls by private
individuals or groups. [At 237]
Its ruling, said the court did not necessarily mean that any organization other than city officials
or city employees could not use available city hall space, but such organization and groups
permitted to use that space “must be of a nature to be classified as in their essential and
primary character ‘governmental or public purpose’ in order to be entitled to use space in
Memphis City Hall.” [Confusing internal quotation marks omitted by me.] [At 238] .
But then the court went on to declare that:
Had the mayor the authority to permit non-governmental, private use of municipal property and
had he properly exercised that authority, there would be an obligation to make available space
with due regard to the constitutional rights of those seeking such space without unjust
discrimination.[at 238]
West Tennessee ACLU v. City of Memphis was subsequently reversed by the Sixth Circuit [454
F.2d 1162], cert.denied by U.S. Supreme Court [409 U.S. 879, October 10, 1972]. The Sixth
Circuit’s basis for reversal was that the U.S. District Court had resolved this case wholly on state
law grounds, and for that reason should have dismissed the action and permitted the parties to
seek relief in the state courts, possibly avoiding any decision under the Fourteenth Amendment.
The Sixth Circuit declared that “We neither accept or reject the District Judge’s conclusion that
the occupancy of an office in the Memphis City Hall by Memphians for Patriotism was a violation
of the laws of the State of Tennessee. It does appear that this case presents an issue which my
be controlled by the laws of the State of Tennessee.” [At 1162]
But even though that case was reversed, it is still a convenient and pertinent vehicle to present
certain legal principals that I have taken pains to point out are clearly the law in Tennessee:
where the government could have prohibited the speech (including solicitations) in the fora at
issue, in this case the city hall, it cannot do an about face and discriminate against other
persons and groups that wish to exercise the same right to speech it gave to a previous person
or group.
In addition, West Tennessee ACLU v. City of Memphis, is a practical demonstration of what
happens when a government allows its administrative offices to be used by private parties for
purposes other than clearly governmental business: The mayor allowed a patriotic group to use
the Memphis City Hall, which was almost immediately followed by a request from a draft
counseling organization, headed by Reverend Moon, to use space in the city hall.
Something similar may well happen if the city gets into the business of opening the city hall for
charitable uses, even if those uses are otherwise well-intentioned.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/