The Evolving Scope of the First Amendment in Municipal Law

The Evolving Scope of the First Amendment in Municipal Law

10.10.2025

By Katie Hodgdon

This article provides a framework for analyzing First Amendment issues in the local government context, starting with a foundational overview of the forum doctrine and the governmental speech analysis, and then applying those principles to scenarios municipalities frequently encounter, including social media use by public officials, public comment policies at open meetings, and the emerging trend of First Amendment audits. With guidance from the United States Supreme Court, municipal attorneys are more equipped than ever to help localities craft policies that preserve constitutional rights while ensuring the ability of local governments to function effectively.

Forum Doctrine Analysis

Before analyzing the potential First Amendment issues the municipal attorney will encounter, it is important to lay the foundation that provides the framework that shapes such analysis. Citizens have long had the right to exercise their First Amendment freedoms in places the government has opened for public discussion or expression, whether through peaceful protest,[1] documenting public proceedings,[2] or participating in open meetings. However, it is well-established that the exercise of these First Amendment rights is not absolute and is subject to reasonable government regulation.[3] Indeed, the “[r]ights of free speech … while fundamental in democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time.”[4]

The level of judicial scrutiny that faces these governmental regulations and, therefore, how restrictive the regulation may be, varies with the nature of the forum in which the speech occurs.[5]

Traditional Public Forum

A traditional public forum is one typically thought of when thinking of “public property,” in that the public traditionally uses these forums for the free exchange of ideas and assembly. A traditional public forum is the most speech-protective forum, and the public’s First Amendment rights are the broadest in this arena. They are “[p]laces … which have immemorially been held in trust for the use of the public and … have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”[6] “[A] traditional public forum is property that has as ‘a principal purpose … the free exchange of ideas.’”[7] While the public enjoys the fullest scope of First Amendment rights in this forum, local governments can regulate speech in this arena.

Content-based restrictions in a traditional public forum are subject to strict scrutiny and will survive only if the regulation serves a compelling state interest and is drawn as narrowly as possible to further that interest.[8] Government regulation of speech is content-based if it draws distinctions “on its face” based on the message the speaker conveys.[9] Given their vulnerability under strict scrutiny, content-based regulations should be avoided absent a compelling governmental interest and narrowly tailored means to achieve it, as they are highly susceptible to constitutional challenge. As one constitutional scholar noted, while the scrutiny may be strict in theory, it is often fatal in fact.[10]

Neutral, non-content based restrictions in traditional public forums are subject to intermediate scrutiny and will survive if the regulation serves an important governmental interest; is substantially related to the interest; and leaves open, ample alternative forms of communication of the information.[11] That is, local governments may impose reasonable time, place or manner restrictions on protected speech, so long as the regulation meets this standard. For example, a locality may require a permit to assemble for groups that seek to use amplified sound on a public sidewalk. While the sidewalk is a traditional public forum and the group is authorized to exercise its First Amendment right to peacefully assemble, the locality has an important governmental interest in assuring the safety and convenience of people in their use.[12] “Municipal authorities, as trustees for the public, have the duty to keep their communities’ streets open and available for movement of people and property, the primary purpose to which the streets are dedicated.”[13] If the locality only required permits for certain viewpoints being expressed, such regulation would be content-based and likely fatal once challenged in court.

Even when regulating speech in a traditional public forum with a content-neutral policy, it is unwise to assume that intermediate scrutiny offers safe harbor. Courts have increasingly scrutinized whether a restriction is truly narrowly tailored and if ample alternatives actually exist. In practice, many content-neutral regulations fail – not because they are overtly unconstitutional, but because the government cannot show that the restriction avoids burdening more speech than necessary.[14] Accordingly, when drafting a regulation, document the governmental interest clearly, include legislative findings if possible, and consider whether less restrictive methods (e.g., permit processes or time-of-day limits) could achieve the same result.

Designated Public Forum

The Supreme Court has recognized that “members of the public have free speech rights on other types of government property and in certain other government programs that share essential attributes of a traditional public forum.”[15] A designated public forum is a space not traditionally opened up to public assembly or debate for the free exchange of ideas that the locality took affirmative steps to open for those purposes.[16] Designated public forums are subject to the same standards as traditional public forums, where content-based regulations are subject to strict scrutiny and neutral, non-content based regulations must serve an important governmental interest, be substantially related to that interest and leave open ample forms of communication of the information. The municipal practitioner should treat the designated public forum – where the municipality takes affirmative action to designate a public forum or, alternatively, past practice designates the forum – as a traditional public forum when drafting regulations.

Limited Public Forum

A limited public forum is public property that is not open or accessible to the public that the locality has opened in a limited capacity for expressive activity. For example, a town may open a meeting space within town hall that is only open to the public for town board meetings and public hearings, thereby rendering it a limited public forum for those specific purposes. The Supreme Court has routinely recognized the government’s ability to “preserve the property under its control for the use to which it is lawfully dedicated.”[17] Regulations in a limited public forum are subject to a lower form of judicial scrutiny, and a municipality may impose restrictions on access to a limited public forum so long as the restriction is reasonable and viewpoint-neutral.[18] Limited public forums are not created by inaction but rather by an intentional act of the local government. In the event that a local government designates a location as a limited public forum, it is not bound by that designation indefinitely. Instead, the municipality should adhere to the doctrine of legislative equivalency and take the same affirmative legislative action it used to establish the limited public forum to remove such designation.

Non-Public Forum

A non-public forum is a location not traditionally open for public expression nor designated for such expression by the local government. A municipality may regulate speech in a non-public forum, and limitations on expressive activity conducted in a non-public forum must only survive a limited review; that is, the regulations must be reasonable and viewpoint-neutral.[19] A restriction is reasonable when it is consistent with the government’s legitimate interest in preserving the property for the use to which it is lawfully dedicated. The Supreme Court has consistently held that the government need not permit all forms of speech on property that it owns and controls, and the non-public forum exemplifies this principle by allowing reasonable, viewpoint-neutral restrictions that preserve the property’s intended use.[20] In the local government context, spaces such as employee offices, municipal buildings, and highway garages may qualify as non-public forums, depending on how the locality has designated the area and the purpose for which it is made available to the public.

Forum Doctrine Analysis Considerations

The designation of a forum – be it traditional public forum, designated public forum, limited public forum, and non-public forum – will ultimately depend upon the use and the location of the forum, as well as the compatibility with free speech purposes. It is important to keep in mind that the designation may vary by locality even though the location is the same – for example, sidewalks are typically thought of as a traditional public forum, yet the sidewalks leading to a United States post office were found to be a non-public forum and subject to less exacting judicial scrutiny.[21] Public ownership does not equate to unrestricted public access and speech, and local governments may limit expressive activity in spaces that are dedicated to government business (and, accordingly, constitute a limited or non-public forum), so long as such restrictions are reasonable and viewpoint neutral.

Has the Government Created a Forum for First Amendment Speech? The Governmental Speech Framework Analysis

When applying the forum doctrine analysis, municipal practitioners must first determine whether a forum for First Amendment expression exists. While some forums are straightforward – such as the limited public forum created during the comment period of a public hearing – others require a more nuanced analysis. Several seminal Supreme Court decisions, including some recent opinions, have focused not only on the type of forum but also on whether the government, through policy or practice, has affirmatively created a forum for expressive activity. The crux of these decisions is whether the locality, through its actions, engaged in government speech which, if the answer is affirmative, does not create a forum for private expressive activity. If the conduct does in fact constitute government speech, no forum is created, and the locality is not obligated to accommodate individual First Amendment expression. In contrast, if the government’s conduct does not rise to the level of government speech, the municipality cannot invoke that doctrine and instead must permit speech consistent with the type of forum it has established.

Specifically, in Pleasant Grove City, Utah v. Summum, the city was sued after it denied a religious organization’s request to place a monument in a public park that contained at least 11 permanent, privately donated displays, including a monument of the Ten Commandments.[22] The city indicated that it limited monuments to those directly related to the city’s history or to those donated by groups that had longstanding community ties.[23] The religious organization asserted that this policy violated the free speech clause of the First Amendment and sought injunctive relief. The Supreme Court noted that no prior decision of the court addressed the application of the free speech clause to a governmental entity’s acceptance of a permanent, privately donated monument in a public park and whether such acceptance constituted governmental speech or a forum for private speech.[24] When governmental entities engage in their own expressive conduct, there is no First Amendment violation, as the free speech clause restricts governmental regulation of private speech and does not apply to governmental speech.[25] That is, there is no forum for expressive activity when a municipality engages in governmental speech.

In this case, the court indicated that while there may be situations where it is difficult to tell whether a government entity is speaking on its own behalf or providing a forum for private speech, permanent monuments displayed on public property typically represent government speech.[26] Governments have long used monuments to communicate to the public, and assistance from private sources, as in the instant case, does not preclude the government from asserting the government speech doctrine.[27] While public parks are typically used in the First Amendment context for purposes of assembly and communicating ideas, there is no “long tradition” of allowing individuals to permanently occupy public space with any manner of monuments. Since the monument display constituted governmental speech, no forum for private speech was created and, accordingly, the religious organization’s First Amendment rights were not violated.

While the court has clarified that permanent monuments on public property generally constitute government speech and forum analysis does not apply to the installation of permanent monuments on public property, gray areas remain. When advising local governments, do not assume that speech “looks” governmental simply because it is on public land or appears permanent. If the locality has a practice or policy of inviting input, whether formally or informally, it may inadvertently create a forum for private expression. When in doubt, draft policies that clarify intent and limit ambiguity.

In Walker v. Texas Div, Sons of Confederate Veterans, Inc., a divided Supreme Court applied the Summum governmental speech analysis when reviewing whether a state’s regulation of license plates constitutes governmental speech, specifically finding that the regulation of license plates is governmental speech that does not create a public form for expressive speech.[28] The court held that states have traditionally used license plates to convey government speech, that license plate designs are typically associated with the state in the public’s mind and serve a governmental purpose, and that states maintain direct control over the messages conveyed on specialty plates.[29] Unlike the set of facts in Summum, license plates are typically not traditional public forums for public speech. As no public forum was created and the conduct constituted governmental speech, the state’s rejection of a specialty license plate design by an organization did not violate the First Amendment.[30]

In contrast, in Shurtleff v. City of Boston, Massachusetts, the plaintiff filed suit against the city of Boston after the city denied a request to fly its religious flag on the city’s third flagpole, asserting that the denial violated the free speech clause of the First Amendment.[31] In this instance, the city had a program that allowed private groups to fly the flag of their choosing during events sponsored by the groups. The city has three flag poles, which generally contained the American flag, the Commonwealth of Massachusetts state flag, and typically the city’s flag on the third pole. For years, the city authorized groups to hold ceremonies in front of city hall and hoist a flag of their choosing on the pole that typically held the city’s flag. The flags ranged from flags from other countries to flags associated with groups or causes. The plaintiff sought to fly its “Christian flag” during an event celebrating the civic and social contributions of the Christian community, which was denied by the city for fear of violating the Establishment Clause, resulting in the ensuing litigation.[32]

The Supreme Court noted that for years, the city approved hundreds of requests to raise dozens of different flags and did not deny a request until the instant case. The city asserted that no First Amendment rights were violated, as the flagpole was reserved to fly flags that communicate governmental messages, while the plaintiff argued that the city opened the flagpole for private citizens to express their views. The court indicated that the boundary between government speech and private expression can blur when, as in the instant case, the government invites the public to participate in a program. To distinguish between governmental and private speech, the court conducted a holistic, case-specific inquiry that considered the history of the expression at issue, the public’s perception of who the speaker is, and the extent to which the government actively shaped or controlled the expression. While certain factors favored the city (e.g., the presence and position of a flag has historically conveyed important messages about government and the public perception is generally that flags are considered speech by the government) and others favored the plaintiff (the city’s program suggested certain flags were not governmental speech), the court found that because the city did not control the flag raisings nor shape the messages on the flags and therefore lacked meaningful involvement in the process, the flag raisings constituted private speech that was subject to First Amendment protections.^[33] Because the plaintiff’s request to fly its flag was denied based on its content, the city discriminated based on religious viewpoint and violated the Free Speech Clause of the First Amendment.

These recent Supreme Court decisions affirm that government speech is not subject to the forum doctrine, but whether speech qualifies as governmental in nature is determined through a holistic, fact-specific inquiry. If a municipality intends to engage in government speech and avoid inadvertently creating a forum for private expression, local government attorneys should guide officials in developing formal written policies and taking affirmative steps that demonstrate government control over the message. In Shurtleff, the court emphasized the absence of such policies: The city had no written guidelines governing flag raisings and no pre-authorization procedures in place. While it is difficult to predict whether the outcome would have differed had those measures existed, the court made clear that such formalities would have weighed in the city’s favor. In short, government speech requires intentionality, and municipalities must actively shape and manage the message to retain constitutional protections.

Has a Public Officer or Employee Created a Forum for First Amendment Speech? Social Media and the Lindke v. Freed State Action Doctrine

Two decades ago, the municipal attorney was likely not advising their clients on social media issues. Of course, this is no longer the case, and the Supreme Court recently opined on whether First Amendment rights are implicated by a government officer or employees’ social media use. While these officers and employees are still individuals and do not lose their ability to participate in society to express personal views or use social media because of their elected or employment status, they do have to tread carefully, depending upon the context the individual is operating in, as recently discussed in Lindke v. Freed.

The core question in Lindke v. Freed was whether a public official violates the First Amendment by deleting comments or blocking a user on a personal social media page. Freed, the city manager of Port Huron, Michigan, deleted critical comments from his Facebook page and subsequently blocked the commenter. The plaintiff argued that the page had become a public forum due to Freed’s official status and subject matter, and that the deletion and blocking constituted viewpoint discrimination in violation of the First Amendment.[34] A unanimous Supreme Court disagreed, finding that in the event a public officer blocks someone or prevents them from commenting on their social media profiles, the state action doctrine must be applied and the social media will only be subject to constitutional scrutiny if the public officer (1) possessed actual authority to speak on behalf of the government on a matter and (2) purported to exercise that authority when speaking in the relevant social media post.[35] One’s status as a public official is not determinative of the issue.

The court found that application of the state action doctrine to social media accounts and posts is a fact-specific determination that should be analyzed on a case-by-case basis. In the event that the action is private conduct – even by a public official – it is not subject to constitutional claims while conversely, private parties could potentially act with the authority of the government. The court noted that it is difficult to analyze state or local officials that routinely interact with the public, and that not every encounter by an official is a governmental action. The distinction between private conduct and state action turns on substance as opposed to labels. If Freed acted in his private capacity in blocking the plaintiff, there was no First Amendment violation, but rather, Freed was exercising his own First Amendment rights. Practically speaking, local official social media pages should include a disclaimer stating that “this is the personal page of ‘Public Officer’” – this establishes a strong presumption that the officer is not speaking in their official capacity in furtherance of official duties but rather in their private capacity as a citizen. “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”[36]

The Forum Doctrine Analysis in Practice

Having established the framework for identifying different types of forums and distinguishing government speech from the creation of a forum for private expression, the analysis now turns to the First Amendment issues the local government practitioner may encounter and how municipalities may regulate speech within established public forums. This is particularly relevant in the context of public meetings and First Amendment audits, where the boundaries of permissible regulation are frequently tested.

Public Meetings: The Right To Speak Versus the Ability To Conduct Public Business

The very nature of public meetings invokes the right of the public to attend; however, any ensuing First Amendment rights for expressive conduct are governed by the forum in which the meeting occurs. It is well-settled that public meetings are, in general, a limited public forum where the government may impose content-neutral time, place, and manner restrictions that are narrowly tailored to serve a significant government interest.[37] Indeed, the First Amendment does not guarantee the right to communicate one’s views at all times or in any manner that may be desired.[38] In Tyler v. City of Kingston, the city prohibited signs and posters in City Hall and in public meetings held within the building. The plaintiffs filed suit asserting that the city violated their First Amendment rights when it barred them from bringing signs and life-size puppets into City Hall to protest the proposed purchase of an armored rescue vehicle.[39] The city countered that City Hall was a limited public forum, which allowed the city to reasonably restrict speech that falls outside the types of speech for which the forum had been opened.

The court agreed, finding that governmental entities are permitted to restrict the form or manner of speech in a limited public forum – even if the speech addresses topics on the agenda – so long as the restriction is reasonable and viewpoint-neutral. The court found that it is reasonable for the city to assert a common-sense interest in prohibiting signs at a common council meeting in order to run an efficient and orderly meeting. The plaintiffs had ample alternatives to express their speech – outside of City Hall, where councilmembers would pass the signs and puppets – and while the signs may have related to an agenda topic, the speech still could undermine the purpose for which the forum was created, that being meaningful discourse on matters of the legislative agenda.[40]To this end, local governments can confidently regulate speech in a limited public forum such as City Hall, so long as the regulation is reasonable and viewpoint-neutral.

In contrast, in Griffin v Bryant, a municipality adopted a public comment policy that forbade speakers from making any negative mention of any village personnel, staff, or of the governing body during the public input portion of the governing body’s meetings.[41] While the local government asserted that the legislation was in place to prevent disruption during meetings, the court found that such basis was not enough to overcome the strict scrutiny standards applicable to content-based regulations, those being identifying a compelling interest that is served in the least restrictive manner.[42] As previously discussed, the municipal practitioner should avoid any viewpoint-based restrictions, as “modern First Amendment jurisprudence has erected an extremely heavy presumption against viewpoint discrimination.”[43]

These cases illustrate the delicate balance local governments must strike when regulating speech in limited public forums such as public meetings. Having established the legal parameters for distinguishing government speech from private expression and regulating speech within public meetings, the analysis turns next to the growing phenomenon of First Amendment audits and the legal considerations they present for municipalities.

First Amendment Audits and Public Recording

While there is no specific legal definition of a First Amendment audit, the term generally refers to a form of activism where a citizen journalist seeks to exercise their First Amendment rights by recording public officers and employees in government spaces, and thereafter post these recordings with their “findings” online. Individuals are often asserting their “First Amendment right” to take an action, and First Amendment auditors are using both the freedom of speech and freedom of the press to conduct their activities. While First Amendment audits were likely not contemplated when the First Amendment was adopted in 1791, courts have found that recording government activity is protected speech under the First Amendment.

First Amendment Audits – Legal Framework

The legal landscape regarding recording government activities has evolved dramatically over the last several decades, as the advent of smart phones has made it easier than ever to record and share activities and has contributed to the discussion of proper government authority. This right was preserved well before the arrival of social media, with a court finding over two decades ago that “[t]he First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”[44] The evolution of smart phones and social media has brought the right to record government activities to the forefront, as citizens continue to use these tools to engage in activity encompassed with the First Amendment. The role of the First Amendment as it relates recording government activities has been analyzed extensively at both the federal and state level.

Federal

A majority of the federal circuit courts have addressed the right to record government activity, finding that the right to record is protected by the First Amendment and subject only to reasonable time, place and manner restrictions, which are determined by the forum in which the speech has occurred.[45] Gathering information about public officers and employees in a form that is easily and readily disseminated – such as through a smart phone – serves a cardinal First Amendment right in both protecting and promoting the free discussion of governmental affairs.[46] The public’s right of access to information is coextensive with that of the press, meaning that one does not have to be a reporter in order to assert freedom of the press as protected under the First Amendment. Indeed, a citizen’s right to film government officials in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.[47] Although much of the case law addresses recording law enforcement activities, the right to record local government officials – such as the day-to-day duties of the municipal clerk – is still captured within the framework of the First Amendment protections. The public has a right to access information about their officials’ public activities, and video recordings enable citizens to act as a “watchdog of government activities.”[48] Practically speaking, this means that the public has a right to record public officers and employees who are engaged in their official duties although, as previously discussed with other forms of expressive activity, this right is not unfettered and is dependent upon the forum in which the conduct occurs.

State

At the state level, Civil Rights Law Section 79-p provides that bystanders have a right to record law enforcement activity, so long as they do not interfere with the law enforcement activity or engage in criminal activity while recording. While this statute does not explicitly address recording non-law enforcement activity, case law indicates that this protection is extended to recording all government activity. Additionally, the Open Meetings Law (Public Officers Law Section 103 [d]) provides the public with the right to record open meetings and public hearings, so long as the recording is not obtrusive. A locality can and should adopt a policy regarding the use of recording equipment at meetings, including acceptable locations to record (perhaps not on the dais). If the governing body adopts a recording policy, it should be conspicuously posted and available in writing prior to any meeting. Note that the Open Meetings Law only applies to open meetings, and the protections afforded by the statute do not extend to the day-to-day operations at town hall.

Limitations on Recording Government Officials

While both the courts and state law provide that there is a right to record government officers engaged in their duties, this right is not an unfettered license to run amok, and individuals are still required to act within the law when asserting a protected First Amendment right. First Amendment freedoms do not give journalists or citizens the unabridged right to act in any manner that they please, and crimes and torts that occur for the sake of reporting the news are not protected by the First Amendment. Courts have found that there is no threat to a free press in requiring its agents – journalists or citizen journalists – to act within the confines of the law.^[49] While there may be a First Amendment right to record government activity, one cannot commit a crime while engaging in this activity using the cloak of free press.

Recording Public Officers and the Public Forum Doctrine Analysis

As previously discussed, it is well-established that citizens have the right to record government activity. However, it is also well-established that the right to film is not absolute and is subject to reasonable time, place and manner restrictions.^[50] Practically speaking, this means that First Amendment auditors do not have the right to record on government property simply because the property is owned by the government; instead, the right to record depends upon the public forum the recording occurs within.

Recording in Non-Public and Limited Public Forums

Recording in non-public or limited public forums need only be reasonable and viewpoint neutral. Restrictions on limited and non-public forums need not be the most reasonable or the only reasonable limitation in order to survive court scrutiny. In 2019, a court found that a city’s policy prohibiting citizens from recording inside City Hall unless the individual had consent from the person being recorded was reasonable, inasmuch as “[a] government workplace, like any other workplace, exists to accomplish the business of the employer” and the government can exert control and adopt regulations over access to the workplace “in order to avoid interruptions to the performance of the duties of its employees.”[51] Even though recording government employees in the course of their duties is a protected First Amendment right, the city’s restriction on unconsented recording was not unreasonable given the purpose of City Hall to conduct government business.

Recording in Traditional and Designated Public Forums

As previously noted, recording regulations in traditional and designated public forums are subject to a more exacting judicial review, depending upon the regulation: content-based regulations (e.g., recording prohibited by journalists) are subject to strict scrutiny and must service a compelling governmental interest and be drawn as narrowly as possible, while neutral regulations (e.g., no recording allowed) are subject to intermediate scrutiny and must serve an important governmental interest and be substantially related to that interest.

Recording Policies – Recommendations

Reasonable time, place and manner restrictions are permissible when addressing recording activity on public property, even when protected First Amendment rights are implicated. Each local government is different, and municipalities should take an inventory of all their property and designate which areas constitute non-public, limited, designated, and traditional public forums. The recording policy can be tailored from there, keeping in mind that local governments are less restricted when addressing non-public and limited public forums. The policy should be in writing, content-neutral, straightforward and posted conspicuously. Reasons for restricting access can include protecting private information, employee and public safety, facility security, and efficient government operations, among other things. Areas deemed limited and non-public forums by the governing board can and should have signs indicating “restricted area” or “authorized personnel only.” The locality can create secure areas and install keypad access only. Most importantly, there is no inherent right to be in the building or to record municipal operations under the guise of the First Amendment simply because the building is owned by the municipality. Instead, the analysis and access are determined by the forum in which the speech is occurring and by the First Amendment right asserted by the individual.

First Amendment Audits – Tips for the Municipal Practitioner

One of the best tips in dealing with a First Amendment audit is to be prepared for one to occur and not be caught by surprise, as these audits are happening at an increasing frequency throughout the state and country. A plethora of First Amendment audit recordings are available online that demonstrate what to expect from one of these encounters. Municipal officers and employees should familiarize themselves with the locality’s policies regarding access and recording, as well as workplace violence prevention. Auditors may show up alone or in a group and will likely employ a variety of tactics to get content for their recording. They may attempt to record everything in sight and all publicly accessible areas (and perhaps non-public areas, although that can be restricted). Auditors will likely ask a lot of questions and ask for lists of employee names, salaries or other government documents. The most important tip is to stay calm and consider any responses as opposed to speaking reflexively.

First Amendment audits are a protected form of speech that are subject to reasonable time, place and manner regulations. Local governments should have a clear and precise policy in place that designates the forums in their municipality and the access afforded to same. Clarity in the process ensures that an audit – when it occurs – will run smoothly for all involved.

Conclusion

As this article demonstrates, the line between government speech and a forum for private expression is not always bright. Local governments must navigate this terrain with care, particularly in the context of social media, public meetings and recording activity in government buildings. Recent Supreme Court decisions confirm that municipalities have the ability to regulate expressive conduct within the parameters of the First Amendment, so long as such regulation is reasonable, viewpoint-neutral, and clearly grounded in established forum doctrine. As First Amendment issues continue to evolve, so too must the local government’s ability to respond in a manner that preserves constitutional rights while ensuring that government can function effectively. Equipped with the tools of forum analysis and recent judicial guidance, municipal practitioners are well positioned to guide their municipalities through this ever evolving and always interesting legal landscape.

This article appears in a forthcoming issue of Municipal Lawyer, the publication of the Local and State Government Law Section. For more information visit nysba.org/lsgl.

Katie Hodgdon serves as association counsel with the New York Association of Towns. She is an officer of the Local and State Government Law Section and co-chairs the section’s Taxation, Finance, and Economic Development Committee and the Code Drafting Committee. She is serving her second five-year term on the Third Judicial District’s Committee on Character and Fitness.

Endnotes:

[1] See Cox v. State of Louisiana, 379 U.S. 536 (1965).

[2] See Glik v. Cuniffe, 655 F.3d 78 (2011).

[3] See Fields v. City of Philadelphia, 862 F.3d 353 (2017).

[4] Cox, 379 U.S. 536 at 554.

[5] See Peck v. Baldwinsville Central School District, 426 F.3d 617 (2005).

[6] Id. at 626–27.

[7] Int’l Society for Krishna Consciousness v. Lee, 505 US 672 (1992) (quoting Cornelius v. NAACP Legal Defense & Ed Fund, Inc., 473 US 788, 800 (1985)).

[8] See Reed v. Town of Gilbert, 576 U.S. 155 (2015).

[9] See id. at 163.

[10] See Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv L. Rev. 1 (1972).

[11] See Ward v. Rock Against Racism, 491 U.S. 781 (1989).

[12] See Cox, 379 U.S. 536 at 555.

[13] Schneider v. State of New Jersey, 308 U.S. 147 (1939).

[14] See Sharpe v. Winterville Police Dept, 59 F.4th 674 (4th Cir. 2023) (finding that that locality’s policy prohibiting an individual from livestreaming a traffic stop did not survive intermediate scrutiny, as the municipality did not demonstrate how its stated policy interest of promoting officer safety by prohibiting recording furthered officer safety or was tailored to that interest.)

[15] Pleasant Grove City v. Summum, 55 U.S. 460 (2009).

[16] See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983).

[17] Cornelius v. NAACP Legal Defense & Educ. Fund Inc., 473 U.S. at800.

[18] See Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661 (2010).

[19] See Int’l Soc’y for Krishna Consciousness v. Lee, 505 U.S. at 670.

[20] See id.

[21] See United States v. Kokinda, 497 U.S. 720 (1990).

[22] See Pleasant Grove City v. Summum, 555 U.S. 460 (2009).

[23] See id.

[24] See id.

[25]See id.

[26] See id.

[27] See id.

[28] See Walker v. Texas Div., Sons of Confederate Veterans Inc., 576 U.S. 200 (2015).

[29] See id.

[30] The dissent noted that the majority took a “large and painful bite out of the First Amendment” and improperly categorized private speech (e.g., specialty license plates that featured NASCAR) as governmental speech and warned of setting a dangerous precedent that allows the government to suppress disfavored viewpoints simply by claiming the speech as its own. Walker at 223 (Alito, J., dissenting).

[31] See Shurtleff v. City of Boston, Mass., 596 U.S 243 (2022).

[32] See id. at 250–251.

[33] See id. The court noted that the city had the ability to change its policies going forward, which could potentially shift the flag raising to governmental speech not subject to First Amendment protections.

[34] See Lindke v. Freed, 601 U.S. 87 (2024).

[35] See id.

[36] Id. at 205.

[37] See Perry Educ. Ass’n; Rowe v. City of Cocoa, Fla., 358 F.3d 800 (2024). While the Rowe decision applies the appropriate analysis for governmental regulation of expressive conduct, it also found the city’s restriction of speakers to residents/taxpayers valid, which is directly at odds with opinions from the Committee on Open Government, which has opined that it is “unlikely that that a public body could validly prohibit a non-resident from speaking at a public forum based upon residency” (N.Y. State Comm Open Gov’t OML-AO-4141 (2006)). The municipal practitioner should avoid imposing any residency/property ownership requirements on speakers in a limited public forum unless the locality wants to defend a First Amendment suit.

[38] See Heffron v. Int’l Soc’y for Krishna Consciousness, 452 U.S. 640 (1981).

[39] See Tyler v. City of Kingston, 74 F.4th 57 (2023).

[40] See id.

[41] See Griffin v. Bryant, 30 F.Supp3d 1139 (2014). Quote originally from Hague v. Committee for Indus. Organization, 307 U.S. 496 (1939).

[42] See id.

[43] Id.

[44] See Smith v. City of Cumming, 212 F.3d 1332 (2000).

[45] See e.g. Irizarry v. Yehia, 38 F.4th 1282 (2022); Turner v. Lieutenant Driver, 848 F.3d 678 (2017); Glik v. Cunniffe, 655 F.3d 78 (2011)

[46] See Glik v. Cunniffe, 655 F.3d at 82.

[47] See id.

[48] Irizarry v. Yehia at 1289.

[49] See Galella v. Onassis, 487 F.2d 986 (1973).

[50] See Fields v. City of Phila., 862 F.3d 353 (2017).

[51] See Sheets v. City of Punta Gorda, 415 F.Supp 3d 1115 (2019).