Fight’s not over yet on House sign ban Suit ending, but speaker hints at revisiting rules
A lawsuit over the state House’s ban on signs during last month’s special legislative session may be coming to a close. But the First Amendment issues surrounding when government can limit speech in the name of order and decorum aren’t likely going away.
House Speaker Cameron Sexton, R-Crossville, has hinted the House may again take up a form of the rules in January when the legislature returns for the second year of the 113th General Assembly, a move likely to spark renewed debate about the boundaries of the First Amendment.
The suit, from the American Civil Liberties Union and three local activists, was filed after the three activists were removed from a House committee hearing on Aug. 2 for holding paper signs supporting gun reform in defiance of a new rule banning signs in the gallery and committee hearing rooms.
Davidson County Chancellor Anne Martin issued a temporary restraining order the same day that the suit was filed, blocking the chamber’s new rule. Despite the state’s attempt to overturn the order at a hearing days later, Martin ruled in the activists’ favor, continuing to block the rule for the remainder of the special session.
But since the rule only applied to the August special session, both the ACLU and the state filed motions this week ahead of a Friday hearing agreeing to dismiss the lawsuit.
Still, the issues argued in the case are likely to come back.
Lawsuit spurs questions
When unsuccessfully arguing for the removal of the temporary restraining order on Aug. 28, Assistant Attorney General Cody Brandon leaned heavily on the argument that House
galleries are a “non-public fora” which are subject to different constitutional standards than other forums. According to Brandon, because the sign prohibition was both “reasonable” and “viewpoint natural,” two standards that must be met to limit free speech, the rule should be upheld.
Brandon cited other states and bodies that have similar rules, including the U.S. Supreme Court and state capitols in Michigan, Mississippi, Virginia, and Nebraska, where courts have affirmed that signs may not be allowed.
“Tennessee is not alone in restricting the use of signage in the places where its legislature does business, to prevent and disruption,” he argued.
But at the same hearing, the courts denied that the prohibition was reasonable and hinted the rule may have lacked viewpoint neutrality.
So that leaves the question: when could the House limit sign usage in the galleries and committee hearing rooms?
“A big part of the decision (to determine the boundaries of citizen’s free speech rights in the gallery) needs to look to how the facility has historically been used,” said Braden Boucek, director of litigation at the Southeastern Legal Foundation and constitutional law expert at Belmont University. “Is it open to all speakers? Is it open to no speakers? Or is it something in the middle? And within the scope of its historical usage, what restrictions have been allowed? If I was the judge, I would want to know has the state of Tennessee historically prohibited signs from its gallery.”
The House has technically had a rule against signs in the galleries since the early 2000s, according to testimony from House Ethics Counsel Doug Himes during the Aug. 28 hearing.
But the ACLU argued the rule is rarely enforced and that the Senate permits spectators to hold signs.
Signs have also been a regular presence in House galleries under multiple former speakers.
This discrepancy weakened the state’s leaning on historical precedence, leading them to emphasize what type of forum the gallery is.
House galleries, Boucek said, can generally be agreed upon as a non-public forum, or limited forum, because legislators do have some latitude to make rules that uphold decorum and the efficiency of their work. But that does not mean a total ban of speech and expression can be made.
“It seems like everybody agreed this was a non-public forum,” he said. “But that doesn’t mean there’s no First Amendment. It’s not a free speech-free zone. It just means that it just gets diminished First Amendment protection.”
Rules can limit speech if viewpoint neutral
Rules can be implemented that limit free speech, as long as they are viewpoint neutral and reasonable — meaning the purpose the limitation serves is important enough to warrant limiting speech and does not target a specific idea. Common examples include limitations on sign size, to avoid disrupting the view of others, or limitations on sign material. For example, no signs on poles, so as to not create a possible weapon.
But according to Martin’s ruling, the sign prohibition as written for the special session failed to meet the qualifications for limiting speech in a non-public forum, as it targeted avenues of expression that were non-disruptive and the timing of the rule’s enforcement leaned toward possible viewpoint discrimination.
“What Martin ruled, was that (the state) failed to satisfy even that diminished relaxed standard of non-public forums,” Boucek said.
“Even a limited public forum has to be viewpoint neutral. Chancellor Martin appeared, to me, to be suspicious that this rule was not a viewpoint neutral, like the ACLU asserted, precisely because the only time they enacted this was in a reaction to a gun control legislation.”
Although this suspicion was not explicitly noted in the court findings, it was hardly needed: Martin hung the decision on the standard that the sign ban was not “reasonable.”
“She proceeded to the second step of the analysis and she said the sign restriction was not reasonable,” he said. “Holding a sign up is not inherently disruptive, according to her ruling. The state can regulate disturbances, of course, but the state also allows people to wear T-shirts or pins that have the same message (as the small signs in question). So why is silently holding up a sign disruptive but not silently wearing a T-shirt? That was why she thought that the restriction swept too broadly.”
Deborah Fisher, executive director of the Tennessee Coalition for Open Government and director of the John Seigenthaler Chair of Excellence in First Amendment Studies, expressed similar concerns to Boucek.
“I do think that we may be at a crossroads here,” she said. “Is the House going to double down and try to continue the sign ban when the regular session starts in January? Or, you know, is it going to tweak the rule, so it’s more consistent with what they’ve done in the past? That’s a question.”
Fisher noted that the defense that the rule was reasonable to avoid disruptions seemed disingenuous to many due to its timing.
“It seemed like kind of a harsh reaction to the disruptions that did occur earlier this year on the House floor,” she said. “I think the public should be concerned if this rule comes back, as it would mark a departure for this House to say that you can’t have an 8.5 by 11 signs held to your chest. Because it sort of says we don’t want to hear what you have to say….and I just don’t think what has happened so far seems to justify continuing that policy.”
Should the rule return, Fisher said her organization would “continue to support an open government.”
“We support open government and we support people being able to come to the legislature and petition their lawmakers,” she said.
“And I think that part of that is being able to wear a T-shirt with your message on it, or hold a small sign with your message on it. TCOG would hope that the House would roll back this wholesale ban on signs to something that seems more reasonable to protect the safety and decorum of the meeting as well as the First Amendment.”
The USA TODAY Network - Tennessee’s coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners.
Have a story to tell? Reach Angele Latham by email at alatham@ gannett.com, by phone at 931-623-9485, or follow her on Twitter at @angele_ latham.