Civil Division - New Castle County
March 11, 1996
Mr. Michael O. McCann
Chief of Administration
Division of Motor Vehicles
P.O. Box 698
Dover, DE 19903
Re: Right of Private Organizations to Express Their Views and Distribute Literature at the Division of Motor Vehicle Inspection Lanes
Dear Mr. McCann:
Please consider this a supplement to this office's July 1, 1993 informal opinion regarding the above referenced matter. (Exhibit "A").
You have asked what, if any, conditions may be placed on the First Amendment activities of private organizations which seek to express their views and distribute literature at the Division of Motor Vehicle ("DMV") inspection facilities. It is our understanding that DMV's past practice has been to require that such organizations submit a written request to each Lane Manager to permit the organization to assemble and hand out literature, usually at a card table located on the sidewalk or the street in front of the lanes on specific dates and times. We understand that these organizations also converse with the public and hand out literature to the citizens who are present to seek the services of DMV such as obtaining licenses and registering their vehicles. Finally, prior to such activity, we understand that the Director of DMV issues a letter approving a "permit" upon the condition that the organization not interfere with the ingress and egress of citizens into the DMV buildings, not unreasonably harass or annoy the public, and finally, not commit any violations of the Delaware Code, including, but not limited to Title 11 criminal offenses.
For the reasons outlined below, we conclude that there are three (3) courses of action the DMV may follow if it attempts to regulate the time, place, and manner of these organizations' First Amendment rights.
Established case law provides that, "the right to use government property for one's private expression depends on whether the property has by law or tradition given the status of a public forum, or rather has been reserved for specific official uses." See Capital Square Review and Advisory Board v. Vincent J. Pinette, Donnie A. Carr and Knights of the Ku Klux Klan, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995); Cornelius v. NAACP Legal Defense and Ed. Fund, Inc., 473 U.S. 788, 802-803, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985). As pointed out by the U.S. Supreme Court in Capital Square Review and Advisory Board:
[i]n the former [on publicly owned land], a State's right to limit protective expressive activity is sharply circumscribed; it may impose reasonable, content-neutral time, place and manner restrictions (a ban on all unintended displays, which did not exist here, might be one such), but it may regulate expressive content only if such a restriction is necessary and narrowly drawn, to serve a compelling state interest. Perry Ed. Assn., supra, at 45, 103 S.Ct., at 955. (Emphasis supplied).
"The First Amendment guarantees an individual the right to free speech," a term necessarily comprising the decision of "both what to say and what not to say." New York County Board of Ancient Order of Hibernirians v. Dinkin, 814 F.Supp S.D. NY 358 (1993). There is no doubt here that the DMV inspection lanes are public places on public land and therefore this office does not need to address whether the DMV inspection lanes are only used for specific official uses. In Stonewall v. Union v. City of Columbus, 6th Cir., 931 F.2d 1130 (6th Cir. 1991) the Court of Appeals, citing United States v. Grace, 461 U.S. 171, 103, S.Ct. 1702, 75 L.Ed. 2d 736 (1983) concluded as follows:
'Public places' historically associated with the free exercise of expressive activities, such as streets, sidewalks and parks, are considered without more, to be 'public forums.' In such places, the government's ability to permissibly restrict expressive conduct is very limited. (Emphasis Added).
"The streets are obviously public forums used to communicate ideas and views." Invisible Empire of the Knights of the Ku Klux Klan, Maryland Chapter v. Mayor, et al of Thurmont, D. Maryland, 700 F.Supp. 281 (Md. 1988). As pointed out in New York County Board of Ancient Order of Hibernirians v. Dinkins, 814 F.Supp 358 S.D. N.Y. (1993):
A municipality may constitutionally restrict the right to use the public streets, as they must exercise a great deal of control over traffic regulation and public safety. Shuttlesworth, 394 U.S. at 152, 89 S.Ct. At 939. Such restrictions, however, may seek to regulate only the time, place and manner of a parade, so long as these restrictions "are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989) (citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3068, 82 L.Ed.2d 221 (1984)). Additionally, incidental restrictions on speech have been upheld where the purpose of the offending regulation is unrelated to the content of the expression. Ward, 491 U.S. at 781, 109 S. Ct. at 2746. The controlling inquiry in such cases focuses on whether the government has regulated the speech because it disagrees with its content. Id. Thus, if the government's purpose underlying the regulation is justified without reference to the content of the regulated speech, then the incidental infringement of the First Amendment is constitutional, notwithstanding disparate impact.
The Grace Court found that the ordinance was unconstitutional as applied to the public sidewalks surrounding the Court building because "it could not be justified as a reasonable place restriction." Id. At 183, 103 S.Ct., at 1710. As the Sixth Circuit noted in Stonewall, "[t]he Grace decision reaffirms the ability of a governmental entity to restrict expressive conduct by "reasonable time, place, and manner restrictions as long as the restrictions are 'content-neutral, are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.'" Id. At 177, 103 S.Ct., at 1707.
Additional case law supports this conclusion. In Invisible Empire, KKK v. Mayor et al. of Thurmont, 700 F. Supp. 281 (Md. 1988), the Court considered whether the Mayor of Thurmont could grant an applicant for a parade in Thurmont. The Court noted that there were two parades which occurred with regularity in the Town of Thurmont ("Town") - the annual volunteer firefighter's parade and the Catoctin High School Homecoming Parade. The Court noted that the two traditional parades received special treatment from the Town, but went on to note that this particular situation revealed the unfettered discretion of the Board of Commissioners to grant or deny permission to the parade in the Town because neither of these two applicants, nor any other applicants received any degree of scrutiny. However, the KKK did. There were no written guidelines or criteria for granting permission to parade, although the Town posted ad hoc "[its] concerns in a statement in preparation for a Town meeting." If the KKK paraded without permission, the Town concluded that it would have "cause" to arrest them. The Court noted as follows:
Such prior restraints on freedom of speech are not invalid if they are "narrowly drawn, reasonable and definite" standards to guide officials. Niemotko v. State of Maryland, 340 U.S. 268, 271, 71 S.Ct. 325, 327, 95 L.Ed.2d 267 (1951). Any limits imposed on the licensing official's discretion must be made explicit - "by textural incorporation, binding judicial or administrative construction, or well-established practice." City of Lakewood v. Plane Dealer Publishing Co., - U.S. 108 S.Ct. 2138, 2151, 100 L.Ed.2d 771 (1981). The standard is not met here - there are no ordinances or regulations which guide the Commissioners in their decisions. Clearly there are no narrowly drawn limitations. On the contrary, the Town regards its power to impose these conditions as limitless. Nor are the Town's criteria embodied in well-established practice....
The Court found the Town's procedures for considering parade requests and conditions to be imposed on such requests as unconstitutional prior restraints on free speech. The Court noted that the Town's process was extremely vague and vested unbridled discretion with the Board of Commissioners to approve or disapprove parade applications "as they saw fit."
However, the Court noted that it did not find that the Town was required to enact a written ordinance and further noted that a town policy could be constitutional under appropriate circumstances. For example, the Town could adopt an "explicit practice" to grant all parade requests and impose uniform constitutional conditions on all applicants.(1) Likewise, the DMV could enact specific narrowly tailored policies to serve significant government interests, such as the conditions already outlined in its letter approving "the permit" including but not limited to: not blocking ingress and egress to the DMV titling and registration facilities. The Court also noted that there was no showing that an insurance or hold harmless agreement was necessary because the Town had insurance which covered parade activity. In the instant case, unless the Division of Motor Vehicles leases the Motor Vehicle Inspection Lanes facilities and it is required as part of its lease agreement to purchase insurance, the State is protected by the doctrine of sovereign immunity. See 18 Del. C. § 503, et seq.; Doe v. Cates, Del. Supr., 499 A.2d 1175 (1985). Accordingly, there is no need to require these organizations to purchase insurance.
The Court also noted that the Town could not ordinarily serve its interest in safety by criminalizing conduct which causes injury to persons or property and by arresting violators of its criminal laws. See Collin v. Smith, 578 F.2d 1197, 1209 (7th Cir. 1987).(2)
The second area of concern is whether the Division of Motor Vehicles should attempt to regulate the communicative activity of these organizations which exercise First Amendment right and/or distribute literature. The legal standard was set forth in Perry Education Assn. v. Perry Local Educators Assn., 460 U.S., 103 S.Ct., 948 (1983) where the Court concluded as follows:
[i]n this quintessential public forms, the government may not prohibit all communicative activity. For the state to enforce a content - based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Carrie v. Brown, 447 U.S. 455, 461, 100 S.Ct. 2286, 2290, 65 L.Ed.2d 263 (1980). The state may also enforce regulations at the time, place and manner of expression which are content-neutral, or narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. United States Postal Service. v. Council of Greenburg, 453 U.S. 114, 132, 101 S.Ct. 2676, 2686, 69 L.Ed.2d 517 (1981); Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 535-536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980); Grayned v. City of Rockford, Super., 408 U.S. at 1125, 92 S.Ct. at 2302; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 147, 85 L.Ed. 155 (1939).
The relevant cases indicate that a strict scrutiny test is applied to content-based restrictions [regulations] on political speech in a public forum and that the State is required to assure that any such "regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." See Michael Boos v. Marian S. Barry, Jr., Mayor of District of Columbia, 485 U.S. 312, 108 S.Ct. 1157 (1988); Perry Education Assn. v. Perry Local Educator's Assn., 460 U.S. at 45, 103 S.Ct., at 955 accord Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, 482 U.S. 322, 569, 572-572, 107 S. Ct. 2568, 2571, 96 L.Ed.2d 500 (1987); Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985); United States v. Grace, 461 U.S. 171, 103 S.Ct., at 1702 (April 20,. 1983).
The Eleventh Circuit has also concluded that a public entity such as the DMV cannot charge a permit or licensing fee to organizations which exercise First Amendment rights on public property.
The government may not profit by imposing licensing or permit fees on the exercise of First Amendment rights," See, Murdoch v. Pennsylvania, 319 U.S. 105, 113-114, 63 S.Ct. 870, 875-876, 87 L.Ed. 1292 (1993), and is prohibited from raising revenue under the guise of defraying its administrative costs. Gannett Satellite Info. Network v. Metropolitan Transp. Auth.. 745 F.2d at 774.
See Sentinel Communications Corp. v. Watts, 936 F.2d 1189 (11th Cir. 1991).
Based upon the above case law, there are three (3) alternatives the Department of Public Safety, Division of Motor Vehicles may consider in attempting to regulate First Amendment time, place and manner activities at the various DMV Inspection facilities.
First, the Secretary of Public Safety has requisite statutory authority to "establish and promulgate such rules and regulations governing administration and operation of the Department as may be deemed necessary by [her] and which are not inconsistent with the laws of this state." See 29 Del. C. §8204(7). Besides the constraints already enacted in the Delaware Criminal Code, after complying with the Administrative Procedures Act, the Secretary has the authority to adopt a rule or regulation regulating the time, place and manner of organizations' First Amendment activities. As the cited case law establishes, any such regulation would be subject to strict scrutiny by a reviewing court.
Second, as pointed out in the Capital Square Review and Advisory Board decision, by the Supreme Court the DMV may institute the use of written policies and/or practices and consistently applying the same to various organizations that wishes to exercise First Amendment expression rights at the Motor Vehicle facilities.
Third, the Division can maintain the status quo by allowing organizations to submit a written request to the Lane Manager as a precondition to exercise each facility's right to distribute literature and peacefully assemble. The DMV can continue to grant this "permit" in writing subject to the usual conditions of not blocking the public ingress and egress to the facilities, not harassing citizens and not committing any offenses as set forth in the criminal code, or any other Delaware law.
Finally, you have requested that our office expedite the issuance of this opinion and we have honored that request. If you desire any further research or case authorities, please do not hesitate to contact our office. After considering the course of action you wish to follow, please feel free to contact our office for assistance in reviewing and/or implementing any changes which you decide to make to your written policies.
Very truly yours,
John K. Welch
Deputy Attorney General
Michael J. Rich
cc: The Honorable Karen L. Johnson
Michael D. Shahan, Director, DMV
Mr. Alex Krajewski, Support Services Chief
Ms. Elizabeth Bacon, Opinion Administrator
1. See Wilson v. Castle, 1993 W.L.276959 (E.D.Pa) (a park containing 500 acres with a visitors center, a lake, botanical garden, bicycle and walking trails is a "public forum."
2. In our July 1, 1993 opinion we noted that such criminal laws exist in Delaware and de facto concluded could be one means for controlling First Amendment activities of these organizations while on public property such as the Division of Motor Vehicle lanes without formally passing a regulation or specifying in writing a specific policy or procedure.
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