CITIZEN ASSISTANCE FORM
CAF # 3236 E-mail Response

Citizen: Mr. Comer

Dear Mr. Comer:

Thank you for your email to the City of Austin dated December 19th. We are sorry to hear about your experience at the 2009 Zilker Tree Holiday Festival. On behalf of City Manager Marc Ott, we would like to provide you information in regards to the two key issues you raise in your email; the temporary parking closure and the designated free speech zone.

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Designated Free Speech Zone
The City's designation of specific areas of City property as "free speech areas" and "designated free speech zones" does not affect, nor is it intended to affect, the rights of citizens who attend events held on the public property from freely talking about any topic or issue they please. All citizens most certainly can talk about anything they desire while attending events like the Zilker Tree Holiday Festival. Instead, the designated areas you observed are designed to provide space for other types of activities that courts also label as speech. For example, handing out leaflets that advocate positions on items of public interest, including support or opposition of political candidates or referenda, is a form of speech. Protesting is a form of speech. Asking citizens to sign a petition is a form of speech. Using a bullhorn while reading from a holy book is a form of speech. There are many other examples. The law allows governmental bodies to regulate aspects of these types of speech activities, as described further below, in order to allow other citizens like you and your family to fully enjoy events like the Zilker Tree Holiday Festival without being disrupted or delayed by those who are handing out leaflets or soliciting signatures or protesting in the middle of a crowded trail like those created for the Festival.

Governmental bodies like the City cannot simply prohibit all forms of these speech activities like those described above on their public land and in their facilities without following certain guidelines that have been created over time by courts. The law in this area is complicated, but in a nutshell, whether the public has a right of access to public property for purposes of these free speech activities, and the standard by which limitations on the right must be evaluated, differ depending on the character of the property at issue. Put another way, the issue is whether the location has become a "public forum." The United States Fifth Circuit, which governs Texas, recognizes the existence of four categories of speech forums, two of which are subject to strict scrutiny (i.e., the governmental body's policies and practices will be subject to a court's highest scrutiny) and two of which are subject to a reasonableness standard (i.e., are the governmental body's policies and practices reasonable?). Those four categories are: traditional public forum; designated public forum; limited public forum; and nonpublic forum.

Streets, sidewalks and parks are the places most traditionally associated with public use for purposes of speech and assembly. Peaceful political leafleting or signature-gathering is at the heart of the First Amendment, and a City's open spaces, streets and parks, are the public places most historically associated with free speech. But, governmental bodies may always regulate the time, place, and manner in which citizens express their first amendment rights, even in areas that are true ("traditional") public forums. For example, the City Council has adopted a written policy for citizens' use of our City Hall. That policy designates several areas as "free speech" zones, including the south Plaza. Even so, the law allows us to require that groups that want to utilize the Plaza for a free speech activity reserve it for a time certain and agree to certain time constraints, etc. Those are the reasonable "time, place, and manner" restrictions that are allowable for traditional public forums. The designations you observed during the Zilker Tree event are also allowable "time, place, and manner" restrictions under the law.

On the other end of the spectrum, the law allows governmental bodies to also designate some public facilities and properties, or portions of public facilities and properties, as nonpublic forums. For example, the individual employee offices in City Hall are nonpublic forums; the City has not done anything in practice that gives members of the public a right to unfettered access to Council Members', the City Manager's, or the City Attorney's individual offices.

If you have any further questions on these matters, you may contact Assistant City Attorney Cary Grace by telephone at (512) 974-2509, or by e-mail at cary.grace@ci.austin.tx.us, or Jason Maurer, Events Manager, Austin Parks and Recreation Department at (512) 974-2427, or by email at jason.maurer@ci.austin.tx.us.

Sincerely,

Sara Hensley, CPRP
Director
Austin Parks and Recreation Department

cc: Cora Wright, Assistant Director, Parks and Recreation Department
Cary Grace, Assistant City Attorney
Jason Maurer, Parks and Recreation Department