Court: Court of Appeals for the Second Circuit; August 4, 2004; Federal Appellate Court
Make the Road by Walking (MRBW) appeals a summary judgment favoring the Human Resources Administration (HRA) regarding MRBW's exclusion from Job Center waiting rooms when not conducting "official business." The district court ruled that this exclusion did not infringe upon MRBW's First Amendment, due process, or equal protection rights. Additionally, the court granted MRBW summary judgment on its claim that part of the HRA's admission policy was unconstitutionally vague, but MRBW only appeals the First Amendment ruling, with HRA not cross-appealing.
The central issue is whether the Job Center waiting rooms qualify as nonpublic or limited public fora under First Amendment considerations. The court determined that the waiting rooms are nonpublic fora, and the exclusion of MRBW was reasonable and viewpoint neutral. The ruling is affirmed, with the court providing different reasoning from the district court.
MRBW, established in 1998 and located in Bushwick, Brooklyn, aims to assist welfare claimants with public assistance benefits. Its activities include informing claimants of their rights, aiding in applications, translating, and representing claimants in meetings. MRBW's staff comprises lawyers and non-lawyers, with a mix of trained and untrained advocates, according to conflicting claims between MRBW and HRA. The Job Centers, operated by HRA and specifically by its Family Independence Administration (FIA), are where claimants apply for or recertify welfare benefits such as cash assistance, Medicaid, and food stamps.
Job Centers feature waiting rooms and designated areas with cubicles for eligibility specialists and financial planners to assist claimants. The waiting rooms are intended to facilitate interactions with the FIA. The classification of Job Centers as limited public or nonpublic fora has been informed by HRA policies from the 1970s onward. Federal and state laws mandate that claimants may bring advocates into Job Centers, where advocates can assist and represent claimants but cannot solicit new clients in waiting areas. Advocates do not need prior approval or training for entry. Historically, a 1974 ruling established that while waiting rooms are not traditional public fora, some advocacy was permissible. Following this, HRA allowed advocates to provide assistance in Job Centers until approximately 1991, including regulations for "Community Tables" for organizations to engage with clients. Subsequent court decisions led to greater access for advocates. Notable Supreme Court cases in 1985 and 1992 further clarified the nature of public fora, emphasizing that a designated public forum arises only when the government explicitly intends to create one.
Governmental intent has been a key factor in the enforcement of HRA's policy, which diverges from the analyses in Albany Welfare and Brezenoff. Since the early 1990s, HRA has enforced a policy from its 1974 Code of Conduct, restricting the use of its premises to official business and authorized activities. Distribution of written materials is limited to those issued or sponsored by HRA or approved organizations, with third-party access restricted to individuals involved in HRA's official business, as defined by applicable laws.
Recent years have seen the admission of select entities, such as advocates and contractors for managed health care and homelessness intervention, who interact with claimants in Job Center waiting rooms. These contractors operate under contracts requiring compliance with anti-discrimination laws and liability indemnification for the City, with insurance coverage of $1 million per occurrence, aligned with federal and state statutes.
While the general public can enter Welfare Centers, Job Center supervisors monitor waiting rooms multiple times daily to ensure that visitors are there for official business, asking those who are not to leave. Claimants may bring support persons, but representatives of MRBW are prohibited from entering unless authorized as retained advocates. A request for access to assist claimants was made by MRBW and several legal organizations on August 19, 1998, but HRA declined this request except for specific representation under existing regulations. This led to a lawsuit seeking access to the Job Center waiting rooms.
MRBW's complaint alleged that HRA's access policy infringed upon the First and Fourteenth Amendments by being vague, engaging in viewpoint discrimination, and restricting MRBW's rights to speech, press, petition, and association. Additionally, MRBW contended that the policy violated due process and equal protection rights of welfare claimants. Both parties filed for summary judgment, resulting in the district court partially granting each motion. The court found parts of HRA's policy, specifically clauses allowing entry for activities authorized by the HRA Administrator and literature distribution, to be unconstitutionally vague, leading to their severance while upholding the rest of the policy. HRA did not appeal this decision.
Conversely, the court partially upheld HRA's motion, ruling that the restriction of HRA premises to "official business" was not vague, as defined by state and local law. The inclusion of various entities, such as contractors and Medicaid providers, did not indicate arbitrary discretion in defining "official business." The court referenced the New York Social Services Law and the New York City Charter, affirming HRA's role as the mayoral agency responsible for public assistance.
Furthermore, the court classified Job Center waiting rooms as "public fora" for welfare-related speech, establishing that restrictions in limited public fora must be reasonable and viewpoint neutral. HRA's policies met this standard, aiming to reduce congestion and prevent confusion among claimants regarding non-official endorsements. The court emphasized that it would not question the city's policy decisions, concluding that HRA's policy was constitutional and viewpoint neutral. MRBW subsequently filed an appeal.
Review of a district court’s summary judgment is conducted de novo, favoring the nonmoving party in factual inferences (Tri-State Employment Servs. Inc. v. Mountbatten Sur. Co. Inc., 295 F.3d 256, 260 (2d Cir. 2002)). When evaluating cross-motions, each motion is assessed independently, drawing reasonable inferences against the motion under consideration (Hotel Employees, Rest. Employees Union Local 100 of N.Y. v. City of N.Y. Dep’t of Parks, Recreation, 311 F.3d 534, 543 (2d Cir. 2002)). Summary judgment is warranted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law (Fed. R. Civ. P. 56(c)).
The HRA does not dispute that MRBW seeks to engage in First Amendment-protected speech. While freedom of expression is fundamental and highly valued (Brezenoff, 677 F.2d at 236), the Constitution does not mandate the government to grant unrestricted access for speech on all governmental property, particularly considering the potential disruption of such activities (Cornelius, 473 U.S. at 799-800). Restrictions on expression on government property undergo heightened scrutiny (Perry, 460 U.S. at 45).
Judicial scrutiny levels depend on the forum type. "Traditional public fora," like streets and parks, receive the greatest protection for expressive activities. The government may only alter their public status by completely changing their use (Perry, 460 U.S. at 45). In these fora, content-neutral regulations must be narrowly tailored to serve significant government interests while allowing ample alternative communication channels. Content-based restrictions must serve a compelling state interest and be narrowly drawn (Perry, 460 U.S. at 45).
The "designated public forum" differs as it is not traditionally open for assembly but has been intentionally opened by the state for public expressive activities. The government can close such fora but must adhere to the same limitations as traditional public fora while it remains public (Perry, 460 U.S. at 46; Lee I, 505 U.S. at 678).
A limited public forum is a type of designated public forum where the government allows expressive activities but restricts participation to certain speakers or topics. Restrictions on speech within a limited public forum must be reasonable and viewpoint neutral. In contrast, a nonpublic forum is public property that is not traditionally open to expression or is specifically designated by the government as such. Here, restrictions on speech also need to be reasonable and viewpoint neutral, allowing the government to reserve the forum for its intended purposes without suppressing expression based on opposition to a speaker's views.
Determining whether a space is a limited public or nonpublic forum hinges on governmental intent, which is the key factor in forum analysis. Courts examine the government's policy and practice to assess whether it intended to create a public forum. Even if members of the public can freely access a space, it can still be deemed nonpublic if expressive activities are restricted. Moreover, allowing some speakers access does not automatically convert a nonpublic forum into a limited public forum. The distinction between "general access" (which indicates a designated public forum) and "selective access" (indicative of a nonpublic forum) is crucial. A designated public forum arises when the government provides general access to a class of speakers, whereas selective access—where eligibility is restricted to a specific group—does not create such a forum. This distinction encourages the government to permit some expressive activities rather than risk not allowing any expression at all.
Government intent is pivotal in determining whether a property is a designated public forum or nonpublic forum, especially outside traditional public fora. The access policy's characterization as selective or general is based on written policies and actual practices. A limited public forum exists when discussions are allowed on specific topics, while a nonpublic forum arises when access is restricted to particular discussions that must be individually approved. For instance, the Supreme Court established Fort Dix as a nonpublic forum, allowing only select civilian discussions that supported the military mission, despite occasional civilian engagements. The purpose of access limits often indicates a forum's status; selective access aimed at advancing government objectives leans towards nonpublic classification. Physical characteristics also influence forum designation, with courts hesitating to infer public forum status if the property's nature contradicts expressive activities.
Applying these principles, the Job Center waiting rooms are classified as nonpublic forums. The HRA's written policy explicitly reserves these spaces for "official business" or activities "specifically authorized" by the Administrator, showing no intent to allow public access for expressive purposes. The "specifically authorized" clause has not facilitated public entry and has been removed by the district court, which HRA did not contest. The nature of these waiting rooms resembles that of other restricted areas like airport terminals or medical clinics, where casual conversations occur but do not constitute public discourse.
Conversations in welfare office waiting rooms may cover various topics, but these interactions are incidental to the primary function of ensuring an orderly flow of claimants to interviewers. Welfare advocacy organizations had access to these waiting rooms from 1974 until approximately 1991, but this access was mandated by judicial decisions rather than a voluntary policy by HRA. Prior court rulings classified waiting rooms as limited public fora for discussions about welfare, disregarding government intent. However, subsequent Supreme Court rulings clarified that governmental intent and access policies are crucial for distinguishing between designated public fora and nonpublic fora. Following these rulings, HRA implemented a Code of Conduct limiting access to "official business," indicating a shift from limited public fora to nonpublic fora.
Even if HRA had voluntarily allowed access between 1974 and 1991, it retains the right to alter access policies without violating the First Amendment. The waiting rooms could lose their nonpublic status if open to all who could engage in official business. HRA's Executive Order stipulates that use of its premises is restricted to official business, and access is determined case-by-case. Managed care providers, for instance, cannot simply enter; they must undergo a vetting process before being admitted. Claimants and their authorized advocates are allowed access strictly for official business purposes, with any discussions being casual and incidental. Advocates are prohibited from soliciting new clients within the waiting rooms, and HRA staff monitor the premises to ensure that only individuals engaged in official business are present.
The Job Center waiting rooms are classified as nonpublic fora, prompting an evaluation of the exclusion of advocacy groups, particularly MRBW, for its reasonableness and viewpoint neutrality. The conclusion is that the exclusion meets these criteria. Restrictions on speech in nonpublic fora must be reasonable and align with the forum's purpose, reflecting legitimate government interests. A restriction is considered reasonable if it serves the intended use of the property. The government may restrict expression to those conducting official business, especially in spaces not designated for open communication. In the Job Center waiting rooms, interactions primarily involve casual conversations related to official business, with authorized parties providing necessary services and information. HRA's decision to exclude MRBW's representatives is justified as their presence does not constitute official business, given that HRA already provides the services MRBW claims to offer. Furthermore, the government may exclude expressions that could undermine the forum’s purpose, particularly if they are distracting or disruptive. Disruption interferes with the intended use of the space, similar to how solicitation in an airport can hinder passenger movement.
Limits on speech in nonpublic forums may be justified to avoid negative effects of expression, as demonstrated in several court cases. In *Cornelius*, the Court indicated that excluding controversial advocacy groups from fundraising drives was reasonable, as their presence could dissuade donations due to a lack of universal support for such groups. In *Lee I*, the exclusion of solicitors from airport terminals aimed to protect vulnerable passengers, as "unsavory" solicitors could exploit them. The Court also recognized that allowing private expression could imply government endorsement, making it reasonable to limit speakers to avoid perceptions of political favoritism. The evaluation of whether a restriction is reasonable should consider the potential disruptions caused by similar groups seeking access. For example, crowd control concerns justify prohibiting certain expressions to maintain order, as seen in *Lee I*. While the government can restrict expression without providing alternative outlets, the presence of such outlets may inform the reasonableness of restrictions. The substantial alternative channels available for communication, such as outdoor solicitation in *Lee I*, supported the reasonableness of limiting access for specific groups. Consequently, the exclusion of MRBW and similar advocacy organizations was deemed reasonable, as it aligned with HRA’s objectives to minimize disruption and perceived endorsement of potentially misleading advice. Additionally, historical experiences of disruption can further justify speech restrictions, as indicated in the context of postal facility management distractions from competing demands for space.
HRA representatives provided testimony indicating that welfare advocacy organizations disrupted HRA operations in waiting rooms between 1974 and 1983 by misleading clients about their entitlement to benefits, which led to chaotic behaviors such as claimants throwing papers and starting fights. The presence of these organizations could also disturb claimants, who might feel pressured to engage with advocates or read their materials, creating a scenario where claimants are a captive audience. HRA could reasonably conclude that many claimants prefer not to be approached by advocacy groups, fearing exploitation by unscrupulous entities posing as legitimate organizations. Allowing advocates access would escalate HRA’s processing and oversight costs, as they would need to manage access requests and ensure compliance, risking accusations of favoritism. Furthermore, the limited space in waiting rooms would necessitate restrictions on the number of advocates allowed, complicating scheduling and compliance monitoring. Despite these restrictions, advocates can still reach claimants outside Job Centers or through community offices. The document emphasizes that restrictions need not be the most reasonable to be constitutionally valid, as long as they meet a minimum standard of reasonableness. It also highlights that any speech restrictions must not disguise viewpoint discrimination; such discrimination is a specific form of content discrimination.
The government may target specific viewpoints expressed by speakers rather than the subject matter itself, leading to a nuanced distinction between content discrimination (which is permissible in nonpublic forums) and viewpoint discrimination (which is impermissible). It is lawful for the government to express its own viewpoint using its property without ensuring viewpoint diversity, particularly when it is the sole speaker or employs private entities to convey its message. If the Human Resources Administration (HRA) is the only entity expressing itself in Job Center waiting rooms, and if third parties present are acting as agents of HRA, no viewpoint discrimination occurs.
The waiting rooms were populated by individuals conducting official business on behalf of HRA, such as managed care and homelessness intervention providers, and officials from the Census Bureau, rather than speakers expressing personal views. The City Charter mandates coordination among mayoral agencies, reinforcing that exclusion from the waiting rooms was based on the lack of official business, not viewpoint discrimination. While facially neutral restrictions can disguise viewpoint suppression, there is no evidence that HRA’s access policy was biased against any particular viewpoint; it aimed to preserve the intended use of Job Centers. Consequently, the conclusion is that the Job Center waiting rooms are nonpublic forums, and excluding those without official business, including MRBW, is justified and viewpoint neutral, leading to an affirmation of the decision.
Four versions of the Code of Conduct have been enacted since 1974, with consistent language regarding Job Center premises across all versions. The City Charter permits heads of mayoral agencies, including the Human Resources Administration (HRA), to contract with private entities for official duties such as Medicaid and homelessness services. Regulations mandate that HRA provide access to Job Center appointments for retained advocates, allowing applicants or recipients to have legal representation during interviews with social services representatives. The City Charter also requires mayoral agencies to coordinate activities with other government entities.
HRA tour groups, led by officials, briefly pass through waiting rooms without interacting with claimants or engaging in expressive activities. A court previously ruled that HRA's policy does not infringe on the due process or equal protection rights of claimants; however, this ruling is moot since no claimants remain in the case. There is a dispute regarding the level of scrutiny for speech restrictions in limited public forums, with differing views on whether speech restrictions should be reasonable and viewpoint neutral or subject to strict scrutiny based on governmental intent. The government’s intent is emphasized as the crucial factor in determining the nature of the forum, as demonstrated in the case of a fundraising drive at a federal workplace aimed at reducing disruption.
Public school mail facilities in Perry are classified as nonpublic forums, primarily because their intended function is to facilitate internal communication among teachers. This principle is supported by the precedent set in Fighting Finest, where police precinct bulletin boards were deemed nonpublic forums due to their purpose of promoting internal police objectives. Similarly, in Perry v. McDonald, vanity license plates were also classified as nonpublic forums since they were designed solely to generate state revenue without a clear intention to foster unlimited public expression.
In the context of the HRA, despite a district court finding a "specifically authorized" clause unconstitutionally vague, its application indicates HRA's intent to avoid allowing expressive activities in waiting rooms. These waiting rooms, characterized by limited size and occupancy by individuals seeking benefits, are not conducive to free expression and are only accessible during business hours.
MRBW's argument against the exclusion of unretained advocates, citing their potential disruption compared to retained advocates, is rejected. Retained advocates are allowed in waiting rooms to support their clients during interviews without engaging in expressive activities, while unretained advocates are seen as more disruptive due to their solicitation of clients. Retained advocates are typically more familiar with their clients' cases, which further justifies their admission over unretained advocates.
