Part III: Judge Brett Kavanaugh Joins Pro-Speech Opinion Upholding Rights of Protesters

Hon. Brett Kavanaugh

United States Court of Appeals for the District of Columbia Circuit (2006-Present)

This post is the third in a series exploring the free speech views of Judge Brett Kavanaugh. (Part I is here, part II is here, and part IV is here.) This post explores two opinions Judge Kavanaugh wrote or joined addressing the rights of protesters under the First Amendment. In these decisions, Judge Kavanaugh demonstrated a solicitude for First Amendment speech freedoms, but one limited to activities that are peaceful and non-destructive.

Boardley v. U.S. Dep’t of the Interior, 615 F.3d 508 (D.C. Cir. 2010)

In Boardley, Judge Kavanaugh joined an opinion holding that National Park Service rules requiring permits, in addition to existing restrictions limiting speech to free speech areas, were overbroad and unconstitutional.

The National Park Service’s rules “erect two layers of restrictions on speech in public parks: first, they confine specified expressive activities to ‘free speech areas’; and second, they require a permit to be obtained before engaging in such activities, whether in a ‘free speech area’ or elsewhere.” 615 F.3d at 512.

Although the Court did not decide whether national parks as a whole are traditional public fora, the government had conceded in briefing that the “free speech areas” within the parks served as designated public forums. Id. at 515. The Court determined that the regulations were content-neutral, not content-based, and thus it needed to determine whether the regulations survived the “familiar” time, place, and manner analysis. Id. at 516.

The court held that the regulations were not narrowly tailored because the licensing requirement was imposed on individuals and small gatherings, not just on large groups. Id. at 522 (“The fit between means and ends is far more precise when the NPS regulations are applied to large groups.”). The Court also held that, by regulating individuals, “the permit requirement infringes on individuals’ ability to engage in anonymous speech,” implicating McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). Id. at 523.

Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir. 2011)

Here, the D.C. Circuit held that a law against the defacement of public property did not violate the First Amendment rights of anti-abortion protestors who wished to chalk the street in front of the White House.

Judge Kavanaugh wrote a short concurring opinion to emphasize that “[n]o one has a First Amendment right to deface government property.” Id. at 1122. The law here, according to Judge Kavanaugh, was “a reasonable time, place, and manner restriction for purposes of First Amendment doctrine” because it was content and viewpoint neutral. Id.

We know of no case where a federal court has ruled in favor of chalked messages in a public forum. We do note that such time, place, and manner regulations must be applied on a content-neutral basis. Yet this is little evidence local governments fairly apply the regulations in such a manner, including on the plaintiff Mahoney, who alleged he had previously chalked a message in front of the local police chief without arrest or a request to stop. Unfortunately, the lower court did not allow for such discovery, and thus the appeals court ruling against the plaintiff could not be reasonably viewed as hostile to free speech or press.[1]

[1] Failinger, M.A., 2012. Talking Chalk: Defacing the First Amendment in the Public Forum. West Virginia Law Review, 115.

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The Center for Competitive Politics is now the Institute for Free Speech.