Silently holding signs at legislative hearings is protected political speech

During the Tennessee General Assembly’s August special session on public safety at a House Civil Justice Subcommittee meeting, police escorted protestors out of the hearing for holding signs that read “1 KID > ALL THE GUNS.” 

Before the subcommittee chair called attention to them, the women were not shouting or being disruptive and were simply holding up signs. On the Aug. 21 opening day, however, House Republicans passed strict rules to prevent legislators and protestors from disrupting proceedings. As the Tennessee Lookout reported, the rules prohibited carrying signs and restricted the public’s access.

The day after the incident, Davidson County Chancellor Anne Martin  issued a temporary restraining order (TRO) against the sign rule after the American Civil Liberties Union of Tennessee filed a lawsuit challenging it.  

The complaint argued that “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 it that 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.

On Aug. 28, Martin converted the TRO into a temporary injunction against the sign ban, ruling that “[a]lthough the Court appreciates the General Assembly’s desire to maintain decorum and prevent disruptions in its proceedings, the Court cannot conclude that the rule banning signs is reasonable in light of the purpose it could legitimately serve.”

The First Amendment and legislative hearings

This incident raises an important set of issues that have long been contested in First Amendment jurisprudence whereby courts have sought to balance the free speech and protest rights of citizens with the independence of legislatures and their need to conduct business without disruption. These questions also get at the heart of the First Amendment itself, which was designed to prevent the government from stifling debate over matters of public concern.   

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 found 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” 

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).

Tennessee Attorney General, ACLU, agree to end suit over House sign ban

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.

In her temporary injunction, Martin found that another case, Bynum v. U.S. Capitol Police Bd. (2000), was more persuasive in determining the type of forum to evaluate the level of scrutiny to analyze the rule in question. In Bynum, the U.S. District for the District of Columbia argued that the inside of the U.S. Capitol was a nonpublic forum and, thus, required the lowest level of scrutiny.

Still, Martin rebuked the House rule, arguing that “Defendants cannot meet even the lowest level of scrutiny applicable to limited or nonpublic forums as the sign ban is patently unreasonable.” That’s because the government cannot restrict First Amendment activity in a nonpublic forum if the restrictions are not “viewpoint neutral” or “reasonable in light of the purpose served by the forum.”

On the question of viewpoint neutrality, 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). 

House Republicans lose decision on sign bans

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 making a Nazi salute (see Norse v. City of Santa Cruz (2010)).

Martin also argued that “the Senate did not implement a ban on signs in its rules for the special session” and “[g]iven that the ban was only enacted in the House for this particular session, where prior protests over gun policies have recently taken place, and given that the purpose of the special session was to address specifically enumerated topics, it could be inferred that the sign ban was enacted to exclude certain viewpoints.” However, she found that there was “no direct evidence” that the “House enacted this rule in a way that is directed more towards one point of view than another.”

While we may not be able to definitively determine the exact motive, the removed protestors could also 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 rather than explicit effort to prohibit certain viewpoints from being aired by the public rather than specific conduct.

Regardless, Martin agreed that the signage ban was unreasonable. 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. 

Furthermore, 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.