Three days after Michale Hoffman was arrested for holding a sign on the side of the road by Jacksonville Aviation Authority (JAA) police, PINAC investigative reporter Jeff Gray visited the Jacksonville airport and was also threatened with arrest for holding a sign on public property.
While Gray is standing on a public right of way, JAA officer Jennifer Cruz strode up to Gray asking, “Can I help you with something?” before claiming that Gray is on private property, must provide ID in accordance with state law and will be arrested for trespassing unless he has “legitimate airport business.”
Gray stood his ground, saying “You ought to be ashamed of yourself, you know this is not private property.”
JAA Lieutenant Stevens arrived and when told that the property is owned by the state of Florida, claimed “It doesn’t matter, it’s private property, it’s already been to the Supreme Court, its not a First Amendment venue.”
When asked if the JAA is a state authority, Stevens claimed the JAA is an “independent authority.”
The Florida Supreme Court disagrees.
In Jackson-Shaw Company v. Jacksonville Aviation Authority, the court wrote:
“As explained in the district court’s opinion, the JAA is a public entity:
The JAA is [a] public body, established by Florida law to develop and administer public airports in Jacksonville, Florida. It is a political subdivision of the state of Florida…”
In addition, a trespass warning can only be given if a person has violated a city ordinance, state law, or lawful directive.
The trespass ordinance gives authority to issue a trespass warning for public property in three instances: (1) “city employees or officials, or their designees, having control over a facility, building, or outdoor area, including municipal parks” may issue a trespass warning to “any individual who violates any city ordinance, rule or regulation, or state law or lawful directive of a city employee or official” for the public property where the violation occurred, (2) a police officer may issue a trespass warning, when the city official in control of the pertinent city property is unavailable, to “any individual who violates any city ordinance or state law” for the public property where the violation occurred but only if “the police officer [has] receive[d] the approval of the officer’s immediate supervisor for the issuance of the trespass warning,” and (3) any city employee or official has authority “to issue a trespass warning to any person for any lawful reason for any city property . . ., when necessary or appropriate in the sole discretion of the city employee or official.”
As the JAA is about to discover, both Gray and Hoffman were not given a lawful order to leave as they had violated no law or ordinance. Before leaving the property under threat of arrest, Gray was also confronted by a third and fourth JAA officer who were dressed up as if ready for combat.
When asked as to whether the airport was public or private property, JAA Community Relations Administrator Debbie Jones said the land was private, and provided an aerial map of the property boundaries and the original deed of the property to the JAA’s predecessor, the Jacksonville Port Authority, which is explicitly called in the deed a “body corporate and politic.”
“The yellow lines appear to outline JAA/JIA property. I was undoubtedly standing within this area,” said Jeff Gray. “However JAA/JIA is a state agency created by the Florida State Legislature, so even if it is their property, it is still state/public property.”
Additionally, public records expert Joel Chandler weighed in on the subject.
“Obviously, the nice folks at JAA are unfamiliar with Catron v. City of St. Petersburg, 658 F. 3d 1260 – Court of Appeals, 11th Circuit 2011. They might want to bone-up on that sooner rather than later. Something tells me they are about to schooled on the finer points of trespass on public property and thoroughfares.They may also want to take a minute to take note of this jewel:“All Florida citizens enjoy the inherent right to window shop, saunter down a sidewalk, and wave to friends and passersby with no fear of arrest.”Wyche v. State 619 So. 2d 231 – Fla: Supreme Court 1993.”
UPDATE: South Florida attorney Michael Pancier provided the following information from the Second Circuit of Appeals in New York after reading the article. He also added that airports, specifically terminals, are not considered traditional free speech forums. However, public streets do fall under the protection of free speech.
When the government attempts to restrict constitutionally-protected speech on its own property, “the level of scrutiny to which the restriction is subjected depends on how the property is categorized as a forum for speech.” Am. Freedom Def. Initiative v. Metro. Transp. Auth., 880 F.Supp.2d 456, 469 (S.D.N.Y.2012), appeal dismissed, No. 12–3174 (2d Cir. Sept. 25, 2012). This forum analysis is a “means of determining when the Government’s interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for [expressive] purposes.” Cornelius, 473 U.S. at 800, 105 S.Ct. 3439. The Second Circuit has sorted government property into four forum classifications. Ranging from those triggering the highest level of scrutiny to the least, these are: (1) traditional public fora, (2) designated public fora, (3) limited public fora, and (4) nonpublic fora. See R.O. ex rel. Ochshorn v. Ithaca City Sch. Dist., 645 F.3d 533, 539 (2d Cir.2011), cert. denied, ––– U.S. ––––, 132 S.Ct. 422, 181 L.Ed.2d 261 (2011); Hotel Emps., 311 F.3d at 544–46. After determining the type of forum at issue, the Court “then applies the requisite standards for that forum to the challenged speech restriction.” AFDI, 880 F.Supp.2d at 469.
The first category, the traditional public forum, encompasses unmistakably public areas, such as streets and parks, “which have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Pleasant Grove City, UT v. Summum, 555 U.S. 460, 469, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) (internal citations and quotation marks omitted); see also N.Y. Magazine v. Metro. Transp. Auth., 136 F.3d 123, 128 (2d Cir.1998). In such a forum, content-based speech restrictions must survive strict scrutiny, meaning that the restriction in question must be narrowly tailored to serve a compelling government interest. Pleasant Grove City, 555 U.S. at 469, 129 S.Ct. 1125; Hotel Emps., 311 F.3d at 545. The government may properly implement content-neutral time, place, and manner restrictions, but these must be “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). In determining whether a forum should be designated as public, a court should consider “how the locale is used,” as well as the “government’s intent in constructing the space and its need for controlling expressive activity on the property, as evidenced by its policies or regulations.” Hotel Emps., 311 F.3d at 547; see Jones v. N.C. Prisoners’ Labor Union, 433 U.S. 119, 130, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) (noting, for example, that a prison is not a public forum for inmates because their freely exercising First Amendment rights would conflict with the “legitimate *507 operational considerations of the institution”).
The second category, the designated public forum, “refers to government property which, although not a traditional public forum, has been ‘intentionally opened up for that purpose.’ ” AFDI, 880 F.Supp.2d at 469 (quoting Christian Legal Soc.’y v. Martinez, ––– U.S. ––––, –––– n. 11, 130 S.Ct. 2971, 2984 n. 11, 177 L.Ed.2d 838 (2010)); see also Cornelius, 473 U.S. at 802, 105 S.Ct. 3439; N.Y. Magazine, 136 F.3d at 128–29. “Because the government, as property owner, has opened up a designated public forum to the same breadth of expressive speech as found in traditional public forums, the same standards apply: Any content-based restrictions on speech must survive strict scrutiny, meaning they must be narrowly tailored to serve a compelling government interest, and content-neutral time, place, and manner restrictions are permissible only if they are narrowly tailored and leave open other avenues for expression.” AFDI, 880 F.Supp.2d at 469 (citing Pleasant Grove City, 555 U.S. at 469–70, 129 S.Ct. 1125); see also Int’l Action Ctr. v. City of N.Y., 587 F.3d 521, 526–27 (2d Cir.2009) (citing Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661, (1989)); Hotel Emps., 311 F.3d at 545.
The third category, the limited public forum, is often analyzed as a subset of the designated public forum and as a nonpublic forum opened up for specific purposes. See Byrne v. Rutledge, 623 F.3d 46, 55 n. 8 (2d Cir.2010) (“[T]he law of [the Second Circuit] describes a limited public forum as both a subset of the designated public forum and a nonpublic forum opened to certain kinds of speakers or to the discussion of certain subjects.” (internal quotation marks and citations omitted)). The government has opened up limited public fora for some speech, but these fora are “ ‘limited to use by certain groups or dedicated solely to the discussion of certain subjects.’ ” Christian Legal Soc’y, 130 S.Ct. at 2984 n. 11 (quoting Pleasant Grove City, 555 U.S. at 470, 129 S.Ct. 1125). Common examples of limited public fora include “state university meeting facilities opened for student groups, open school board meetings, city-leased theaters, and subway platforms opened to charitable solicitations.” AFDI, 880 F.Supp.2d at 470 n. 6 (quoting Hotel Emps., 311 F.3d at 545). “The government has more leeway to restrict speech in a limited public forum than in a traditional or designated public forum,” id.; however, speech restrictions in a limited public forum must be viewpoint-neutral and reasonable in light of the forum’s purpose. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106–07, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); Cornelius, 473 U.S. at 806, 105 S.Ct. 3439.
The final category, the nonpublic forum, consists of property that “the government has not opened for expressive activity by members of the public.” Hotel Emps., 311 F.3d at 546; see also Perry Educ. Ass’n, 460 U.S. at 45–46, 103 S.Ct. 948. Examples of nonpublic fora include airport terminals, government-owned professional sports stadiums, military bases and restricted access military stores, and jailhouse grounds. Hotel Emps., 311 F.3d at 546 (collecting cases). Restrictions on speech in such fora must only be “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry Educ. Ass’n, 460 U.S. at 46, 103 S.Ct. 948; see also Cornelius, 473 U.S. at 800, 105 S.Ct. 3439; Hotel Emps., 311 F.3d at 546 (“The government *508 may restrict speech in non-public fora subject only to the requirements of reasonableness and viewpoint neutrality.”).
Quoted from Hershey v. Goldstein, 938 F. Supp. 2d 491, 506-08 (S.D.N.Y. 2013)