The Volokh Conspiracy

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Free Speech

No Speech for Two Months in Front of the State Capitol: We're Decorating Trees

That can't be constitutional.


[UPDATE 11/5/2021, 6:57 pm: The ban has been lifted.]

From the motion for a temporary restraining order in Blue State Refugees v. Noem, filed yesterday in the District of South Dakota by Alan Gura (Institute for Free Speech):

On November 8 and 9, 2021, Plaintiffs plan to hold a political demonstration on the South Dakota Capitol Grounds to coincide with the special legislative sessions set for those dates…. But State officials have sprung a seasonal speech prohibition to banish all demonstrations from the State capitol grounds from October 25 through January 1. The asserted reason? They are decorating the capitol building for Christmas….

Among their beliefs, Plaintiffs and their members deeply believe that receipt of COVID-19 vaccines should not be required to maintain employment, attend schools, or access public accommodations and other businesses. Some of them object to these drugs on religious grounds. Others believe the risk/reward profile of these drugs cuts against their use, at least on their own facts. They believe that it is morally wrong, and socially and economically harmful, to require people who do not wish to take these drugs to take them as a condition of employment, education, or visiting a business.

South Dakota legislators have drafted legislation, Draft 55, the "COVID-19 Vaccine Freedom of Conscience Act," which would bar employers, educational institutions, and businesses from requiring that people be vaccinated against COVID-19.

South Dakota's part-time legislature is set to meet in special session on November 8, 2021, to consider redistricting.  It is also set to meet in special session on November 9, 2021, to consider the impeachment of the State's Attorney General.

Plaintiffs intend to hold a political demonstration in support of Draft 55, on the South Dakota Capitol Grounds, on November 8 and 9, 2021, to coincide with the special legislative sessions on those days. It is important to Plaintiffs that they be able to demonstrate on the grounds of the actual seat of state government, especially when the legislature is in session. Speaking and protesting at other times and locations would not hold the same meaning or be as effective. The demonstration would involve speeches by Robertson, Dollick, and others; chanting; waiving of signs and flags; and  distributing political literature.

Plaintiffs have attracted approximately 30-40 people to their demonstrations in the past. They estimate at least as many people would attend their planned November 8-9 demonstration at the capitol grounds….

On October 29, 2021, Luke Robertson emailed Joan Henderson, Senior Secretary at the Bureau of Administration, seeking a demonstration permit. "My friends and I consider ourselves Blue State Refugees, and we would like to obtain a permit for using the capitol grounds on Nov 8 and 9 for a political demonstration during the Special Session. How can we obtain this permit?" Henderson responded via email, "Unfortunately, the Capitol Grounds are not available during the Special Session due to the Christmas decorating season."

Robertson, in turn, responded via email by linking to the Guidelines, and stating, "The State Capitol and Capitol Grounds Use Guidelines say on section B5 that the annual Christmas tree display is for Thanksgiving week through New Years. My request is for Nov 8-9, which does not fall in that range. Can you please clarify?" Henderson replied, explaining,

South Dakota Capitol in Pierre has a huge Christmas Tree display during that time. And in order to prepare for the display, we start decorating in October. The week of November 8, we have scaffolding in the Capitol Rotunda and we are decorating. In front of the Capitol, we will be preparing for bringing in over 100 trees….

The South Dakota capitol grounds are a quintessential traditional public forum, falling within the category that includes "parks which 'have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.'" Chief among such parks are the parks surrounding seats of government, from Capitol Hill in Washington, D.C., to state capitol grounds such as South Dakota's, to lawns adjacent to county courthouses and municipal buildings….

"To justify a content-neutral restriction on the time, place, and manner of protected speech in a public forum," Defendants "must show that the restriction is 'narrowly tailored to serve a significant governmental interest, and … leave[s] open ample alternative channels for communication of the information.'" …

"Th[e] narrow tailoring requirement means not only that the regulation must promote a substantial government interest that would be achieved less effectively absent the regulation, but also that the factual situation demonstrates a real need for the government to act to protect its interests. In other words, it is not enough for [Defendants] to recite an interest that is significant in the abstract; there must be a genuine nexus between the regulation and the interest [they] seek[] to serve."

Defendants cannot carry their burden. To be sure, "the state has a significant and legitimate interest in controlling the grounds at its own seat of government," including "legitimate" "aesthetic interests." And courts recognize that the "state may legitimately exercise its police powers to advance aesthetic values," particularly as zoning to protect historic districts or reduce urban blight can significantly impact property values. But in this context, though Plaintiffs support the Christmas display, the State's interest in decorating its Capitol is not equivalent to "substantial" interests such as those in maintaining public safety.

More importantly, even if the Court were to assume that the State's decorating interest is substantial, the seasonal speech ban is not remotely tailored to the decorating interest, let alone narrowly so. There is no "real need" for such a broad ban, and there is no "genuine nexus" between the decorating interest and the seasonal speech ban.

The capitol grounds extend to over 200 acres, or roughly 150 football fields. Banning all First Amendment activity in an area this size—continuously for at least two months—is not in any way tailored to advancing any interest in allowing State workers to decorate the Capitol or any of its surroundings. Defendants can keep people away from the Capitol's front doors while trees are coming through. They can keep people out of the rotunda while the trees are moved through the area and decorated with ornaments. What this has to do with people protesting half a mile away is unclear. Plaintiffs should be allowed to demonstrate as near to the capitol as possible without interfering with any decorating activity, should that be occurring at the same time.

Plaintiffs do not question that public parks can be closed for maintenance. Groundskeepers everywhere will, on occasion, cordon off some discrete area of a park, while workers trim trees, mow grass, and install or maintain amenities—for as long as they need to work and not any longer. But Defendants are not pervasively decorating throughout the entire capitol grounds, 24 hours a day, seven days a week, for a solid two months or more, and in any manner that is inherently incompatible with speech and protest. Nor are they closing the entire capitol grounds to visitors, for any apparent length of time….

Moreover, an alternative location may be insufficient "where that expression depends in whole or part on the chosen location." The capitol grounds are sui generis, and Plaintiffs' speech derives its meaning and impact, in part, from its location at the seat of government.