The Volokh Conspiracy

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Free Speech

No First Amendment Right for Protesters to Use Courthouse Restrooms

Yesterday’s Socratic method post followed up today with Jungian analysis.


From Judge William F. Jung's opinion Friday in Poor & Minority Justice Ass'n, Inc. v. Chief Judge (M.D. Fla.):

In November 2019, Plaintiffs protested outside the Polk County Courthouse in Bartow, Florida. They sought to enter the courthouse to use the restroom during their protest, but were refused admittance. They now claim they "experienced humiliation and bodily anguish from having to hold their urination and walk one or more blocks to the nearest restroom," and "the protest had to be ended due to sanitation and health concerns, stemming from the lack of access" to courthouse restrooms….

[But c]ourthouse restrooms are not open to the public at large, and courthouse interiors are neither forums for protest nor support facilities for protests elsewhere. As such, persons who are not attending the courthouse for court purposes may be excluded from it, however righteous their purposes may be…. The general public may not come off the street and use courthouse restrooms like they would at a park. See United States v. Gilbert (11th Cir. 1991) (affirming injunction barring protestor from using courthouse bathroom). These restrooms are reserved for the use and comfort of litigants, court attendees, lawyers, jurors, and staff.

The interior of the courthouse is a nonpublic forum. Because of this, the courthouse's restroom policy need only be "viewpoint neutral and reasonable in light of the purpose served by the forum." … Plaintiffs concede the restroom policy is viewpoint neutral…. Plaintiffs acknowledge the policy does not change depending on the message of protestors. Plaintiffs do not allege any facts showing a disparate impact between groups, nor do they allege the courthouse admitted groups with different viewpoints for restroom breaks.

The restroom policy is also reasonable. If the Polk County Courthouse were to grant the general public access to its restrooms, this could burden actual courthouse business. There are often long security lines during the jury venire scramble and daily docket calls at county courthouses. Numerous litigants, court watchers, jurors, witnesses, and court staff pass through security each day.

Adding members of the public with no court business could disproportionately burden courthouse staff and disrupt official courthouse business. And Plaintiffs do not plausibly allege that protesting outside on the sidewalk is actual, real court business.

The undersigned has visited the Polk County courthouse as a practicing attorney on several occasions. Frankly, the lobby area could be quite busy. One to two blocks away, however, there are several public restrooms available—all easily accessible without the extra burden of passing security. Plaintiffs have acknowledged this. See Dkt. 41 at 29 (stating that Plaintiffs walked "one or more blocks to the nearest restroom" after being denied entry to the courthouse). Yet they still claim the entire 50-person protest had to end because three participants could not access courthouse restrooms. This allegation is simply implausible given the many restrooms nearby. Indeed, passing through courthouse security may have been even more disruptive to the protest than walking a block or two to the nearby public restrooms.

This is not a case where anyone's speech was curtailed or threatened. Plaintiffs make no claim that their First Amendment rights were infringed in any way while they protested outside the courthouse. They also fail to establish that their inability to enter the courthouse was in any way related to their viewpoints. And restroom use itself is not expressive conduct….

Plaintiffs' claims based on the Fourth and Thirteenth Amendments are facially meritless…. [T]he facts of this case present no actual seizure, arrest, or stop. Nor do they present any forced labor. Such expansions of the law must therefore await a more apt case….

Because the Court determines there was no First Amendment violation or improper discrimination here, the Court offers no lengthy discussion of the other clear flaws in the [Complaint]. This fifth attempt at stating a cause of action should be the last. Plaintiffs have not cured the deficiencies pointed out in their earlier filings. Because any further amendment would be futile, the Court dismisses this case with prejudice.

As to the Socratic method, see this post.