First Amendment inversions.

• Author: Greenbaum, Eli
• Position: Religious vs. commercial speech - Placement of the religious boundary on public property

Tenafly Eruv Ass'n v. Borough of Tenafly, 155 F. Supp. 2d 142 (D.N.J. 2001).

In Lehman v. City of Shaker Heights, (1) the Supreme Court held that a municipal transportation company could exclude political expression from its buses, even as it allowed commercial vendors to advertise. The Court reasoned that the transportation system was a nonpublic forum--an institution run by the government for specific purposes--and that the government could exclude political speech that interfered with those purposes. By permitting government to privilege commercial speech over political expression, Lehman's nonpublic forum doctrine allows for the reversal of the usual First Amendment hierarchy. Later cases provided doctrinal props to ensure the fairness of such inverted (2) structures: In a nonpublic forum, the government can discriminate on the basis of subject matter but not on the basis of viewpoint. (3) Additionally, any restrictions on speech have to be reasonable in light of the forum's purpose. (4) These criteria ensure that the government, even in a nonpublic forum, cannot "suppress expression merely because public officials oppose the speaker's view." (5)

Tenafly Eruv Ass'n v. Borough of Tenafly (6) uses the nonpublic forum doctrine to invert another, more fundamental, First Amendment hierarchy. Members of the Tenafly Jewish community sought to construct an eruv (7) around the town's perimeter. The mayor and town council opposed the eruv, citing a facially neutral ordinance that prohibited placing material on the town's utility poles. (8) As plaintiffs in the district court, supporters of the eruv argued that it constituted symbolic speech and was protected under the Free Speech Clause of the First Amendment. The district court agreed with the plaintiffs' characterization of the eruv as symbolic speech but found that the ordinance, as applied to the nonpublic forum where the eruv was to be built, placed valid restrictions on such expression. When the plaintiffs pointed out that the town allowed other religious structures in the nonpublic forum, the court denied that those structures constituted speech, (9) describing some as only "decorations" (10) and others as serving merely "utilitarian function[s]." (11)

Tenafly uses the nonpublic forum to invert the First Amendment in a novel way--privileging conduct even as it belittles speech. The Tenafly plaintiffs, reaching for the safeguards of the First Amendment, claimed that the eruv constituted speech. But the logic of the nonpublic forum turned this argument against itself. The court allowed the town to discriminate against the eruv specifically because, being speech, it differed from the permitted structures.

Many courts share Tenafly's intuitive reliance on the speech/conduct dichotomy. Lehman, for example, can be seen as scrutinizing distinctions between political and commercial advertising (speech) but not distinctions between political advertising and walking down the aisle of a bus (not speech). (12) I argue that this intuition is incorrect: The relevant difference between advertising and walking is not that one is speech and the other conduct; and, in any case, the devices of Lehman's progeny--viewpoint neutrality and reasonableness--cannot be coherently applied if one makes such a distinction. I conclude that, in the nonpublic forum, courts should eschew the vagaries of the speech/conduct distinction.

I

After Lehman, the Supreme Court required that any restrictions on expression in a nonpublic forum be reasonable and viewpoint neutral. (13) But Tenafly did not compare the viewpoints of the eruv and the decorations and did not apply the reasonableness test. (14) This Part accounts for those omissions, demonstrating why they are consistent with the logic of the speech/conduct inversion. I then contend that, despite this internal coherence, the Tenafly court should not have used the speech/conduct dichotomy simply to skip those tests.

Consider how Lehman tested for viewpoint neutrality and reasonableness. There, the fact that the expression took place in a nonpublic forum allowed the government to reverse the usual First Amendment priorities--regulating political expression while leaving commercial speech alone. Both categories of speech, however, remained within the broader constitutional ambit of protected expression. As a result, to justify regulation, the government still had to show that it had not chosen among different viewpoints. It also had to show that, in light of the property's purpose, the distinction between the two kinds of speech was reasonable. (15)

But Tenafly did not have two categories to compare. By defining all permissible behavior as "nonspeech," the court precluded analysis of that behavior under the nonpublic forum doctrine. For example, by classifying the decorations as conduct, the court effectively denied that they expressed any message at all. From this perspective, it was logically impossible for Tenafly to have discriminated between different viewpoints. (16)...