Use of Beaches as Public Forum

First Amendment jurisprudence has long extended a right to speak on certain government property that qualifies as a public forum such as beaches. This right to speak in the public forum permits everyone to introduce their views for free. The public forum is particularly important for those who would otherwise lack adequate resources to access the marketplace of ideas. Without such free access, the right to free speech for many would be illusory.

Certain public property–such as streets, sidewalks, parks, and beaches – are so historically associated with the exercise of free speech rights that denial of access to anyone is constitutionally forbidden. However, unlimited access to such public forums would likely lead to chaos and thereby decrease First Amendment protection. Consequently, the Constitution permits the state to place reasonable time, place, and manner restrictions on access to public forums.

The word beach, in its ordinary signification, when applied to a place on tide waters, means the space between ordinary high and low water mark, or the space over which the tide usually ebbs and flows. It is a term not more significant of a sea margin than “shore.” Niles v. Patch, 13 Gray (Mass.) 257. The term designates land washed by the sea and its waves; is synonymous with “shore.” Littlefield v. Littlefield, 28 Me. 180. When used in reference to places near the sea, beach means the land between the lines of high water and low water, over which the tide ebbs and flows. Hodge v. Boothby, 48 Me. OS. Beach means the shore or strand. Cutts v. Ilussey. 15 Me. 237. Beach, when used in reference to places anywhere in the vicinity of the sea, means the territory lying between the lines of high water and low water, over which the tide ebbs and flows, it is in this respect synonymous with “shore,” “strand,” or “flats.” Doane v. Will- cutt, 5 Gray (Mass.) 328. 335, 66 Am. Dec. 369. Beach generally denotes land between high and low water mark. East Hampton v. Kirk, 6 Hun (N. Y.) 257. To “beach” a ship is to run it on the beach or shore; this is frequently found necessary in the case of fire, a leak, etc.

This right of access to government property is not absolute, however. An unlimited right of access to the public forum would jeopardize the First Amendment rights of everyone. If everyone spoke at the same time in the same public forum, the resulting chaos would prevent all speakers from communicating their respective messages. The Constitution permits the Government to place limited time, place, and manner restrictions on the right to speak in a public forum to ensure that those who wish to speak can be heard. Cox v. New Hampshire, 312 U.S. 569 (1941), was a case in which the Supreme Court of the United States held that, although the government cannot regulate the contents of the speech, it can place reasonable time, place, and manner restrictions on speech for the public safety. Not that public safety must be in issue for this to be applicable, to begin with.

Police Arresting Surfer

Police Arresting Surfer

Reasonable time, place, and manner restrictions must be content neutral because by arbitrarily dictating where, when, or under what circumstances people can speak, the government could effectively suppress speech. For example, a Government could advise a speaker whom it disfavored that she could speak only at 4 a.m. in a deserted area. On the other hand, it could allow a preferred speaker access to the town square at noon. Such abuses of time, place, and manner restrictions could result in the suppression of speech just as effectively as more direct methods of censorship.

The modern Court’s public forum analysis is confined to public or government property. Even within the category of government property, there are public forums and non-public forums. Among public forums, there are different types affording different speech rights. Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983), separated public property into various categories of public fora.

Traditional public forums included streets, sidewalks, parks, and beaches. The government could not close these forums off to the public. Content-based exclusions based on the speaker’s viewpoint or based on the subject matter of the speech must be “necessary to serve a compelling state interest and narrowly drawn to achieve that end.” Id. at 45. Finally, “regulations of the time, place, and manner must be content-neutral and narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Id.

See also:

Matthews v. Bay Head Improvement Association (SC of NJ 1984)

Leydon v. Greenwich (CT 2001)

Copyright 2012 Clinton Cimring, Florida International University School of Law

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