The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Seum v. Byerman (E.D. Ky.), decided Friday by U.S. District Judge Gregory F. Van Tatenhove:
Plaintiff Dan Seum, Jr., a resident of Kentucky, is a citizen advocate and was once the Director of Veteran's Affairs at Kentucky for Medicinal Marijuana (Ky4MM), "a non-profit organization working to legalize medicinal use of cannabis in Kentucky." He states that on February 17, 2017, he was present on the third floor of the Capitol Annex to meet with Representative Jerry Miller in order to advocate on purposed legislation.
While awaiting his meeting with Rep. Miller, Seum engaged other advocates in conversation and, in context, quoted a racially charged statement accredited to Harry Anslinger, a former commissioner of the Federal Bureau of Narcotics. [The purported quote was apparently, "Most marijuana smokers are colored people, jazz musicians, and entertainers. Their satanic music is driven by marijuana, and marijuana smoking by white women makes them want to seek sexual relations with Negroes, entertainers, and others. It is a drug that causes insanity, criminality, and death—the most violence-causing drug in the history of mankind."] Seum suggests Anslinger used this rhetoric to promote the criminalization of marijuana. According to Seum, "it was plain in context that Seum was criticizing Anslinger's speech and not endorsing it."
Approximately two weeks later, Seum received a letter from Defendant Byerman advising Seum that, at the direction of Defendant Hoover, Seum was permanently banned from the third floor of the Capitol Annex due to offensive comments Seum made in front of employees of the Legislative Research Commission (LRC).
Defendants contend Seum's recitation of "'racist propaganda' including the racially charged terms 'colored people' and 'Negroes' and the phrase that 'marijuana smoking by white women makes them want to seek sexual relations with Negroes,'" was made in the presence of a LRC employee who took offense to Seum's remarks. Further, Defendants state that after the LRC employee complained of Seum's conduct, Defendants conducted an investigation, which substantiated the employee's claims and resulted in Seum's banishment from the third floor of the Capitol Annex….
[A] designated public forum results when the government designates property "for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects." The Sixth Circuit has acknowledge that "[e]ven in designated public fora, the government 'is not required to indefinitely retain the open character of the facility.'" Content-based governmental restrictions on designated public forums must meet strict scrutiny. Thus, the restriction must be narrowly tailored and serve a compelling state interest. On the other hand, a nonpublic forum is "public property which is not by tradition or designation a forum for public communication…." "The government's decision to restrict access in a nonpublic forum 'need only be reasonable, it need not be the most reasonable or the only reasonable limitation.'"
Based on the record, which includes affidavits attached to Seum's Motion and exhibits attached to Defendants' Response, the Court determines that the third floor of the Capitol Annex is properly classified as a designated public forum. While the Defendants contend policy is in place to restrict access to the third floor of the Capitol Annex to members of the General Assembly, employees, and those members of the public who have obtained special access authorization from a member or employee, Seum maintains that the third floor, and especially the lobby area of the Annex's third floor, by practice, has been used for public communication.
For support, Seum attaches an affidavit of Perry Clark, a current Kentucky State Senator, which states, in part, "There is no monitoring nor restriction enforced regarding access to the general areas of the Capitol Annex, including the third floor, by the general public." It is important to note, Seum challenges the ban so that he may "seek[ ] access to his state Representatives, which is consistent with the purpose of the forum." Defendants, as support, submit a picture which purports to show a sign restricting access to the lobby area of the Annex's third floor to legislators and staff. However, any member of the public, with or without special access authority, would necessarily have to enter that lobby to gain further access to the office areas of the third floor. And such areas may be classified as designated public forums because the government intends those areas to be used by certain speakers, in this case those with special access authority.
Because the third floor of the Capitol Annex is deemed a designated public forum for the purposes of this motion, the governmental restriction must be analyzed. Here, the Court finds that Seum's banishment is based on the content of his speech. As such, the banishment must meet strict scrutiny. Thus, the restriction must be narrowly tailored and serve a compelling state interest. Although Defendants state the purpose of the ban was "to avoid any potential future harassment of the LRC's employees," the unequivocal and permanent ban of Seum from the third floor of the Capitol Annex suggests this restriction is not narrowly tailored to serve that state interest. Consequently, there is at least some likelihood that Seum will succeed on the merits of his substantive First Amendment arguments….
Seum [also] meets the three elements of [a First Amendment retaliation] claim. First, Seum presents evidence that suggests his advocacy involves citing Harry Anslinger, the first commissioner of the Federal Bureau of Narcotics …. According to Seum, "[a] recognized part of Anslinger's approach to advocating the criminalization of cannabis was an appeal to racism." The Court agrees with Seum that, in context, his speech is protected political speech. Based on the content of his speech, Seum was banned, for life, from accessing the third floor of the Capitol Annex. This banishment satisfies not only the adverse action element, but also the motivation element, for a successful First Amendment retaliation claim. Consequently, there is a likelihood of success on the merits of Seum's First Amendment retaliation claim.
Defendants argue that if the Court grants the preliminary injunction they will suffer substantial harm because it would leave the Defendants with no recourse to protect the LRC employees from any potential harassment from Seum…. [But d]uring the course of litigation and period of injunction, if granted, the LRC is free to take appropriate enforcement measures against Seum should he engage in harassing or otherwise inappropriate conduct….
Defendants maintain that "entry of a preliminary injunction is not in the public's interest because the state legislature must and should be able to make decisions to protect its personnel, and indeed the public at large, from harm and distress from the Plaintiff's offensive behavior…." Seum counters by citing the Sixth Circuit's [precedent], which states, "it is always in the public interest to prevent the violation of a party's constitutional rights." Seum has appropriately brought his constitutional allegations, and he is likely to succeed on those claims. Therefore, on the facts of this case, the Court finds the public interest would best be served by the issuance of a preliminary injunction preventing Defendants from enforcing the ban during the pendency of this case.
I should add that, even if the lobby were viewed as a limited public forum—a place open to the public for discussion of particular topics, where speech restrictions need only be reasonable and viewpoint-neutral—the ban would be unconstitutional: It was motivated by the perception (however mistaken) that Seum's speech was racist.
Obligatory reference to "He Said Jehovah":