Campbell Law Observer writer asserts Christmas Parade cancellations may be unconstitutional

Graphic with red and green letters stating Christmas Parade with a cancelled stamp over the words

The towns of Garner and Wake Forest cancelled their 2019 Christmas parades after the Sons of Confederate Veterans announced that the group planned to include floats in the parades.  Wake Forest Police Chief Jeff Leonard explained that the town cancelled the parade because the town feared that the Sons of Confederate Veterans would draw protests from outsiders.  Chief Leonard explained:

Groups that contact us about their plans to protest tend to follow our rules and regulations.  We’re concerned about outside agitators that don’t notify us. Radicals don’t typically call ahead. These aren’t area residents we’re talking about. These are professional protesters who have no regard for the safety and well-being of others.

A governmental action taken for the purpose of limiting expression in order to reduce the likelihood that such expression will provoke violence is a content-based viewpoint-discriminatory regulation under the Free Speech Clause, subjecting the regulation to strict scrutiny. [1]  It is my viewpoint that Garner and Wake Forest have not shown that the towns’ parade cancellations further a compelling government interest by the least-restrictive means.  As a result, in this opinion piece I take the viewpoint that the parade cancellations are unconstitutional.

Imagine that a county school board plans to hold a public town hall meeting for local taxpayers to give feedback on the school board’s management style.  Shortly before the meeting, the school board learns that most people who are likely to attend the meeting plan to sharply criticize the board’s members. In response, and with the understanding simply barring the dissenters from speaking at the meeting would be unconstitutional viewpoint discrimination, the school board cancels the meeting entirely.  Nevertheless, the governmental action of closing the meeting was a content-based action because it could not be “justified without reference to the content of the regulated speech.” [2]  Instead, the meeting was cancelled precisely because the speech at the meeting would include unpopular ideas.

Further, the decision to cancel the meeting was not only content-based, but it was also viewpoint discrimination, the most invidious form of speech restriction. [3]  In Rosenberger v. Rectors of the University of Virginia, the Supreme Court explained that the government “must abstain” from committing viewpoint discrimination by regulating speech “when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” [4]  Equally important is what the court did not say: the Court did not say that viewpoint discrimination only occurs when the government regulates only one perspective.  Instead, viewpoint discrimination occurs when the government institutes a restriction that cannot be justified without reference to the government’s interest in limiting one viewpoint.[5]  When the government cancels a public meeting because the government expects that the speech will be critical of the government, that restriction is viewpoint discrimination, regardless of whether the regulation also incidentally burdens speech that is unrelated to the viewpoint sought to be regulated.  The Supreme Court has made clear that over-inclusiveness—the burdening of more conduct than necessary to achieve the government interest—makes laws less likely to pass strict scrutiny, not more likely. [6]  The mere fact that the government purposely limits one viewpoint by also equally limiting others should not vitiate a Free Speech claim.  However, some recent Supreme Court decisions such as Hill v. Colorado have held, in contrast to this established precedent, that regulations motivated by a viewpoint-discriminatory purpose should be treated as if they are content-neutral,[7] a position that espouses nothing more than an “equal protection” view of the Free Speech Clause.

Therefore, the issue seems to reduce to whether the Free Speech Clause provides substantive protections for unpopular speech, or whether the Free Speech Clause merely ensures equal protection of all types of speech, even when a facially-neutral regulation, such as a parade cancellation, cannot be justified without reference to the government’s interest in limiting a single viewpoint.  Under the latter view, the school board’s decision to cancel the town hall meeting might not trigger strict scrutiny under Hill v. Colorado simply because the regulation is facially neutral. [8]

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.
—Justice Robert H. Jackson[9]

In Employment Division v. Smith, the Supreme Court reduced the Free Exercise Clause to little more than a glorified Equal Protection Clause by holding that religious exemptions would not be granted for neutral and generally applicable laws.[10]  The Smith decision was generally unpopular and led to the widespread institution of Religious Freedom Restoration Acts to reverse the effect of the decision.  There is no reason to do the same to the Free Speech Clause by reading it as narrowly as possible into an equal protection provision. However, even if the Free Speech Clause is contorted into an arm of the Equal Protection Clause, traditional equal protection jurisprudence still holds facially neutral governmental actions unconstitutional if those actions deny generally-available benefits to everyone on an equal basis, but are undertaken for a purpose that triggers strict scrutiny. [11]

For example, in Griffin v. Prince Edward County, the Supreme Court struck down the closure of all public schools in Prince Edward County, Virginia because the closure was motivated by a refusal to desegregate.[12]  Rather than complying with equal protection standards and desegregating public schools, the government chose the unconstitutional route of denying public education to everyone. [13]  The government then chose to direct county funds to private schools that could maintain their own segregated facilities. [14]

Similarly, in Palmer v. Thompson, the city of Jackson, Mississippi closed all public swimming pools rather than comply with desegregation requirements. [15]  However, the Supreme Court ruled for the government in Palmer and distinguished Griffin on the grounds that, in Palmer, the government had directed no funds toward private swimming pools. [16]  The majority also relied upon “substantial evidence in the record” that desegregating the swimming pools would have been too unsafe and too costly. [17]  Palmer stands for the proposition that, when substantial evidence suggests that providing a public benefit to all citizens on an equal basis would be too unsafe or too costly, the government may constitutionally deny the benefit to everyone on an equal basis, even if that denial is partially motivated by discriminatory motivations, as long as the government does not proceed to finance a substantially similar benefit through private action. [18]

It is not at all clear that the Palmer rule is desirable, and its holding implicitly rejected at least one recent per curiam Supreme Court decision.[19] The Palmer dissent explained that the swimming pool closures taught Jackson’s African Americans a lesson:

In Jackson the price of protest is high.  Negroes there now know that they risk losing even segregated public facilities if they dare to protest segregation. Negroes will now think twice before protesting segregated public parks, segregated public libraries, or other segregated facilities. They must first decide whether they wish to risk living without the facility altogether, and at the same time engendering further animosity from a white community which has lost its public facilities also through the Negroes’ attempts to desegregate these facilities.[20]

However, it is clear that the holding in Palmer is qualified by a substantial evidentiary showing that keeping the public benefit open to everyone would be too unsafe or too costly. [21]  Even if the Free Speech Clause is relegated to nothing more than an equal protection provision with respect to viewpoint discrimination, under Palmer the government must still show substantial non-pretextual evidence of the safety risks or undue costs associated with the maintenance of a limited public forum before it can constitutionally shut it down for the purpose of limiting a viewpoint. [22]

Most scholarly authority argues that the Free Speech Clause goes farther than the Equal Protection Clause and provides substantive protections for unpopular speech against any regulations motivated by viewpoint discrimination, even if the regulations are facially neutral. [23]  Under this view, the parade cancellations simply trigger strict scrutiny as a viewpoint-discriminatory regulation, and vague concerns about future protests are not sufficiently compelling to save a speech regulation from being struck down under strict scrutiny. [24]

[A] law neutral on its face still may be unconstitutional if motivated by a discriminatory purpose.
— Justice Lewis F. Powell, Jr.[25]

However, even under the significantly weaker Palmer equal protection standard, the towns’ denial of generally-available public benefits (parades as forums for speech) for a viewpoint-discriminatory purpose is only constitutional if the towns can show substantial non-pretextual evidence that the continuation of the parades would be too unsafe or too costly. [26]  However, Garner Town Manager Rodney Dickerson stated that the parade cancellation was “[o]ut of safety and for just the image of Garner, that’s not what we wanted to portray.” [27]  Kentrell Perry, a Garner small business owner, saw through Garner’s “public safety” justification and told ABC11 that

“I can only assume in the past that something like that may have gone unnoticed, or they would have continued it.  But with enough of us saying, ‘you know what, I don’t believe in that message of them marching,’ and then them cancelling it—because this is a really big thing for Garner.”[28]

The Washington Post agreed, reporting that “[w]hile no one made any threats in their online posts, the possibility of protests was enough to sway [Garner] officials to decide on Nov. 27 to cancel the event in the interest of safety, seeking to avoid ‘disruption.’” [29]

To read the full story, follow the link to the Campbell Law Observer.