Silently Holding Up Signs at Legislative Hearings Seems Like The Definition of Protected Political Speech
Silently Holding Up Signs at Legislative Hearings Seems Like The Definition of Protected Political Speech
Police escorted protestors out of a Tennessee House Subcommittee hearing for holding up signs. Did this violate their First Amendment rights?
NOTE: An updated version of this post was recently published in The Tennessee Lookout. The case has ultimately been dismissed by both parties now that the special session is over, but the issue is likely to rear its head again in future sessions.
This post has been updated with a correction note below.
On Tuesday, during a Tennessee House Civil Justice Subcommittee meeting, police escorted protestors out of the hearing for holding signs that read “1 KID > ALL THE GUNS.” This hearing was part of a special Tennessee General Assembly legislative session focused on public safety in the wake of the shooting at The Covenant School in Nashville.
Here is a video of the incident:
Today, Judge Anne Martin of the Davidson County Chancery Court sided with the American Civil Liberties Union of Tennessee, temporarily blocking a rule passed by House Republicans banning signs during the special session.
As you can see in the video, before the subcommittee chair called attention to them, the women were not shouting or being disruptive and were simply holding up signs. On Monday, however, House Republicans passed strict rules to prevent legislators and protestors from disrupting proceedings. As Adam Friedman reported at The Tennessee Lookout, the rules prohibited carrying signs and restricted the public’s access:
As part of the special session and new rules, Republican lawmakers restricted public access to the Capitol building, legislative offices and House floor.
A cap was set for how many people could enter the Capitol, and members of the public won’t be allowed to carry signs while in the House gallery.
House Republicans also closed off one of the two galleries from the public, allowing only credentialed guests like media members, legislative staff and lobbyists.
Did the sign ban and subsequent removal of these protestors violate their First Amendment rights?
Courts have long recognized the ability of legislative bodies to set rules for decorum in public meetings and hearings. For instance, in Acosta v. City of Costa Mesa (2012), the Ninth Circuit upheld City Council rules prohibiting “disorderly, insolent, or disruptive behavior.” In Steinburg v. Chesterfield County Planning Commission (2008), the Fourth Circuit ruled:
Officials presiding over such meetings must have discretion [. . .] to cut off speech which they reasonably perceive to be, or imminently to threaten, a disruption of the orderly and fair progress of the discussion, whether by virtue of its irrelevance, its duration, or its very tone and manner.
Courts have also argued that legislative hearings or board meetings are “limited public forums” or “public property which the State has opened for use by the public as a place for expressive activity” (See Perry Education Association v. Perry Local Educators’ Association et al. (1983), Ison v. Madison Local School District Board of Education (2021), and ACT-UP v. Walp (1991))
Even in traditional public forums like public sidewalks, the Supreme Court has recognized that there can be some restrictions on speech. In Ward v. Rock Against Racism (1989), the Supreme Court argued, “Our cases make clear, however, that even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information’” (citing Clark v. Community for Creative Non-Violence (1984).
In limited public forums, however, the Supreme Court has held that the government may go further and impose content-based restrictions such as reserving a venue “for certain groups or for the discussion of certain topics” (Rosenberger v. Rector and Visitors of the University of Virginia (1995)) as long as they “are reasonable in light of the purpose served by the forum and are viewpoint neutral” (Cornelius v. NAACP Legal Defense and Education Fund (1985)).
But still, courts have found that the First Amendment applies in a limited public forum setting. In ACT-UP v. Walp (1991), the U.S. District Court for the Middle District of Pennsylvania held that the gallery of the Pennsylvania House chamber was a limited public forum. Because of this, the court found that members of a group called ACT-UP, who were barred from attending a speech by the Governor, “were denied the ability to engage in protected speech, and, as a result, access may be restricted only by reasonable time, place and manner regulations or in order to protect a compelling governmental interest by the narrowest of means.” While the group would not have been allowed to speak, the court argued that their presence constituted speech because “simply attending the speech and making themselves known through their presence is itself communicative in nature.” That’s because the Governor’s speech pertained to the issue for which ACT-UP was advocating.
So the questions at hand in the case of the Tennessee House barring signs from legislative hearings are (1.) whether this restriction furthers the compelling government interest of conducting a legislative session without disruption and (2.) whether such restrictions are reasonable in light of the fact that the hearing on gun safety was open to the public.
Indeed, the Supreme Court held in City of Madison Joint School District v. Wisconsin Employment Relations Commission (1976) that once school board meetings were opened to the public, they could not “discriminate between speakers on the basis of [. . .] the content of their speech.” “Where the State has opened a forum for direct citizen involvement,” the court reasoned, “it is difficult to find justification for excluding teachers who make up the overwhelming proportion of school employees and who are most vitally concerned with the proceedings.”
Since the subcommittee meeting was about measures for public safety and was open to the public, it is hard to argue that Nashville residents and parents concerned about gun safety should be barred from peacefully and quietly making their presence known during a hearing. In the ACT-UP case, group members testified that they planned to wear T-shirts and other apparel to make their presence known. The federal court in that case argued, “[t]he wearing of T-shirts and other apparel, even if only symbolic in nature, has been held to be protected speech under the first amendment” (citing Tinker v. Des Moines Independent Community School District (1991).
Banning signs serves no purpose other than the prohibition of non-disruptive, political speech. The idea that signs held by audience members would cause distractions, distort the legislative process, or sway committee members in any meaningful way is a naive view of how legislatures work. Let’s also not pretend that most members of the committee haven’t already made up their minds on where they stand on these issues.
Courts have even ruled in favor of public meeting attendees who were ejected for wearing ninja masks (see City of Dayton v. Estrati (1997)) and even making a Nazi salute (see Norse v. City of Santa Cruz (2010)).
While we cannot definitively determine the exact motive, the removed protestors could make a compelling argument that House Republicans deliberately directed the signage ban at gun control supporters, who have been more vocal and passionate on this issue during the special session and who, in fairness, caused disruptions during the last legislative session. Therefore, there is an implied effort to prohibit certain viewpoints from being aired by the public rather than specific conduct. If previous statements made by legislators further demonstrated this motive, it would constitute deliberate viewpoint discrimination, a clear violation of the First Amendment, even in a limited public forum.
In its complaint, the ACLU of Tennessee argued that
The Rules of Order are entirely unreasonable and do not further the purpose of the forum (the galleries and committee meeting rooms of the House of Representatives). A sign the size of an average piece of paper cannot obstruct the view of participants or committee members and is not disruptive to the proceedings. It does not make noise or emit light. Moreover, nothing in the Rules of Order permit speech of a similar size—or larger—on t-shirts, sashes, buttons, or anything else that can be worn. Under the Rules of Order, a person attending a subcommittee meeting could wear a shirt or hat or button with the Nike logo on it but cannot have a sign with the Nike logo on itthat is the exact same size.
The complaint also cited several First Amendment cases on the importance of silent protests (see Brown v. Louisiana (1966) and Carey v. Brown (1980)) and specific provisions of the Tennessee Constitution that protect this sort of speech:
Article I, Section 19:
The free communication of thoughts and opinions, is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty
Article I, Section 23:
That the citizens have a right, in a peaceable manner, to assemble together for their common good, to instruct their representatives, and to apply to those invested with the powers of government for redress of grievances, or other proper purposes, by address or remonstrance.
A member of the public silently holding up a sign at a legislative hearing would seem to be exactly what the founders envisioned when they sought to protect political speech and the right of the public to petition their government. Yet, Tennessee Republicans act as though these peaceful acts are an affront to the legislative process.
It will be interesting to see if this case furthers First Amendment jurisprudence on the balance between free speech and legislative decorum. But in the meantime, let’s not pretend that holding up small, non-obstructive signs harms our legislative process under some distorted sense of civility.
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CORRECTION: An earlier version of this post incorrectly attributed quotes from the ACLU of Tennessee’s complaint (found here) to the Chancery Court’s injunction.