Saturday, November 17, 2007

Funny Things Happening at the Nonpublic Forum

In re: Casupang (HSC November 13, 2007)

Background. The HGEA, the exclusive union for government workers in Hawai'i, posted on a bulletin board in the fourth-floor office of the Department of Transportation an announcement that was anti-Lingle and urging its members to vote Democrat, esp. for Mayor Mufi Hannemann. A worker saw the announcement and was concerned. The DOT told HGEA to take down the announcement on the grounds that it was prohibited by the State Ethics Commission's "campaign restriction flier." The HGEA brought a prohibited labor practice complaint before the Hawai'i Labor Relations Board and lost. It appealed. The HGEA argued that, among other things, the gov't violated the First Amendment rights of the workers it represents when the State ordered it to take down its political materials.

Undeniable State Action. The HGEA must first show that the act at issue was state action. The ban was imposed by Gov. Lingle as an employer and executed by officials working on behalf of the State. The kind of speech involved is political, which fits squarely in the scope of protected speech. Undoubtedly, the State took action here.

Three Kinds of Gov't Property. The HSC next classified the three kinds of gov't property for First Am. purposes. A public forum is property traditionally designated for assembly and debate (e.g. streets and town squares) and any gov't regulation of them must be supported by a compelling interest. A limited public forum is property opened for public use for expressive activity and is subject to content-netural regulation (e.g. reasonable time, place, and manner); the ltd. public forum can be limited to only certain groups or topics of debate. Finally, there's the nonpublic forum which is subject any "reasonable restriction."

The HSC rejected the HGEA's claim that the board space was a public forum or a limited public forum on the grounds that the boards are not traditional places for debate like streets and plazas and that HGEA offered no evidence/case law showing that the bulletin board space was reserved for a public forum. The HSC also notes that although ltd. public fora may be created for a ltd. purpose such as use by certain groups, HGEA "does not cite to any case law in which a designated public forum was created for use by one group." Thus, the HSC held that the bulletin bd. space reserved for HGEA posting as provided in its collective bargaining agreement is a nonpublic forum subject to any reasonable restrictions.

Nonpublic Fora Allows Mere "Reasonableness." The HSC majority held that HGEA failed to argue that the restriction was unreasonable. Remember, once found nonpublic, the only kinds of unconstitutional restrictions are those that are unreasonable--content-based restrictions that discriminate among the viewpoints presented. Here the prohibition was against any and all campaign materials whether pro Democrat, Republican, Communist, or Libertarian. This, according to the HSC, was content-neutral and reasonable.

Justice Levinson's Concurrence. Justice Levinson concurred and CJ Moon joined. Levinson's concurrence, in this regard, went to the majority's assertion that HGEA did not raise any reasonableness arguments. Justice Levinson disagreed in this regard, but concluded that those argument--that the State's restriction thwarts the purpose of the CBA provision--was not persuasive.

Limited Public Fora Even More Limited? In concluding that the bulletin bd. space is a nonpublic forum, the HSC relied heavily on Perry Ed. Ass'n v. Perry Local Educators' Ass'n, 460 US 37 (1983), where the US Sup. Ct. found an internal mail delivery system to be a nonpublic forum. In Perry, two unions vied for use of the mail system. One union was the exclusive representative of teachers. Another was an outside union challenging the state's exclusion from the mail system. The US Sup. Ct. concluded that the system was a nonpublic forum because it was not open to the public and upheld the exclusion. The HSC concluded that the DOT bulletin board, like the mail system, is not open to the public. Under Perry's facts, this makes sense. The outside union is part of the public. However, under these facts it's less so. HGEA is not arguing that the bulletin board is open to the public, it argues that the designated bulletin bd. space opens the union, as the exclusive representative of gov't workers, is open to HGEA. The HSC's counter that HGEA failed to cite case law allowing the designation of a public forum created for use by one group becomes relevant here.

But in doing that, has the HSC altered the definition of a limited public forum? When it extolled the three kinds of public property, the HSC, citing Perry, expressly mentioned that gov't property specifically designated for public use by certain groups and for certain topics still counts as ltd. public fora. Then again, if the absence of case law supporting that premise bumps it to a nonpublic forum, has the HSC read that part out of the definition of a ltd. public forum?

Labor Pains. The other issues in this case revolved around the Hawai'i statutes that allow unions to take concerted action on behalf of their members. Much of the discussions in these issues relate to the intricacies and expertise of labor law. Read the opinion to learn more.

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