Speech in public places
By Roy Gutterman, September 13, 2011
James Deferio has a message he wants to disseminate. He wants to share his beliefs on college campuses. When the State University of New York at Albany demanded he apply for a revocable permit 30 days in advance, make a series of guarantees and pony up $50 for a processing fee as well as rental fees for facilities, it was too much.
The Syracuse man with an evangelical Christian message is now fighting for his First Amendment rights in United States District Court in Syracuse.
His First Amendment suit, along with a pending motion for a preliminary injunction seeking to prevent SUNY from enforcing its speech policies, is before U.S. District Judge Glenn T. Suddaby, who heard arguments on August 10, but ordered the parties to provide a more thorough briefing.
Despite its serious free speech implications, this case has flown under the radar for months even though Deferio is backed by the Alliance Defense Fund, a national organization which defends the religious and free speech rights of evangelical Christians engaged in public discourse. Deferio, of Syracuse, has been involved in legal challenges and disputes in Chicago, Elmira, N.Y. and Oneonta, N.Y.
“I am a Christian and traveling evangelist. I am compelled by my faith to talk to others about my faith,” he said in an affidavit filed with his suit. “I often visit public universities to share my Christian beliefs with students and anyone else on campus. This gives me the opportunity to share my belief with the leaders of tomorrow.”
The case raises interesting First Amendment questions about speech on a state university system’s campuses as well as the important questions of the application of a campus speech policy. The university’s denial of a permit application appears to be an example of a prior restraint or government censorship.
In sharing his message, Deferio also distributes literature and displays signs and says he does not solicit funds and only wants to express himself in a peaceful manner. The SUNY Albany campus, because of its urban design without fences or barriers and wide open spaces, poses as a “great place for my expression,” he said in the affidavit.
Similar to a public mall – an urban vestige of the marketplace of ideas – SUNY Albany is a place where ideas can be disseminated, expressed and exchanged. SUNY, as an arm of the state government, is engaging in a form of censorship, perhaps even content discrimination.
Public debate in public places about public issues is almost always afforded the highest level of protection under the First Amendment unless there are reasonable time, place or manner restrictions or a compelling government interest to suppress the speech.
The body of law on speech in public places is deep. The use of a public forum and the role of speech in a public forum or even limited public forum has a long, rich history, with the courts generally siding with speakers unless there is a compelling government interest to justify the regulation of the speech.
The Supreme Court has struck down policies and laws that impede public discourse in public places including parade ordinances, bans on door-to-door dissemination, newspaper box ordinances and after-hours use of public school facilities, just to name a few.
Back in 2008, Deferio spoke at SUNY Albany without complying with the university’s advance notice policy. His affidavit says he was allowed to speak for a while at the Campus Center Pavilion area until a campus police inspector told him his time was up. In April 2009, he tried again but was denied.
The university policy on “Use of Facilities by Non-Commercial Organizations” explains the guidelines for using university facilities and the process for the revocable permit system. The application requires 30-days’ notice, a $50 processing fee and at least $250 in other fees. The speaker will also have to obtain an insurance certificate. The permit itself imposes some burdens on the speaker, too, such as a promise to take good care of the facilities and responsibility for loss or damage. The permit can also be taken away.
The state, for its part, is arguing that the permit application process is not burdensome or content-specific and the advance notice requirement is reasonable for its facilities.
Furthermore, the day before the August hearing, the university told the court it was rescinding the policy, through which permits are considered, approved or denied by the SUNY comptroller as “consistent with or in furtherance of University purposes where such use does not infringe upon, delay or conflict with the normal operation of the campus.”
Jonathan Scruggs, an ADF lawyer, described the policy as “burdensome” and was not satisfied with the state’s revocation of the policy, which he said was not a policy but “a promise.”
“We don’t just challenge SUNY Albany’s policy but also SUNY’s policy,” Scruggs told the court.
Deferio’s message of evangelical Christianity might not be everybody’s cup of tea, but it deserves to enter the marketplace of ideas. Whether the policy violates the First Amendment and should not be enforced will be determined by the court. Judge Suddaby ended the hearing by asking the parties to submit additional briefs.
This case could be part of a growing body of free speech law relating to speech on public issues with a religious bent. The lower courts have ruled on numerous cases over the years testing the boundaries of speech with religious messages, including some with hateful and distasteful messages.
Most recently, in March, the Supreme Court reiterated these doctrines in Snyder v. Phelps, known as the Westboro Baptist Church case. Chief Justice Roberts emphatically reaffirmed the democratic tradition of public debate while affording another Christian group the right to picket and demonstrate (with potentially offensive and hurtful messages) outside funerals of fallen soldiers.
Perhaps this issue can also find some guidance from a 1943 case in which the court made some wide pronouncements regarding the role of free speech enmeshed with religion. In Murdock v. Pennsylvania, the Court invalidated a local law which required door-to-door solicitors to have a license.
Justice William O. Douglas wrote: “The hand distribution of religious tracts is an age-old form of evangelism – as old as the history of printing presses. It has been a potent force in various religious movements down through the years … This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits … It also has the same claim as the others to the guarantees of freedom of speech and freedom of the press.”
Granted, Deferio’s case does not involve the same kind of challenge that Douglas wrote about, but the issues fall within the scope of the First Amendment and raise questions about the government application here.
Roy S. Gutterman is an associate professor and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University. This is the inaugural piece for the Tully Center’s Free Speech Zone. https://tully.syr.edu.