Federal Appeals Court Questions State Senator's Order to Remove a Dissident from the Senate Building

by Best Best & Krieger LLP
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Removal Order Could Have Violated the First Amendment

Salvador Reza, a member of a community group focused on protecting migrant workers, attended an Arizona Senate session during a legislative hearing on a controversial immigration-related bill. Reza and some of his supporters were seated in an overflow room, and both supporters and opponents of the measure applauded and booed during the hearing. Near the end of the hearing, Sen. Russell Pearce, the Senate president, claimed the noise from the overflow room was interfering with the hearing. An officer was sent to silence the audience, but Reza refused. When the officer threatened to arrest the disrupters, they clapped louder. This was repeated when the sergeant-at-arms entered the overflow room. When the hearing concluded, Pearce asked an officer to identify the noisy protestors and ordered that they be denied future access to the building.

Two days later Reza tried to enter the building and, when he was asked to depart, he refused and was arrested. Reza sued Pearce for violating his First Amendment rights by barring him from the building. Reza also brought Fourth Amendment claims against the officers who arrested him. When the district court dismissed his lawsuit, Reza appealed to the U.S. Ninth Circuit Court of Appeals.

In a case issued this week, the federal appellate court reversed the district court and sent the case back to further develop the facts surrounding Reza’s First Amendment claim.

The court determined that the Senate building was a “limited public forum” that is public property “limited to use by certain groups or dedicated solely to the discussion of certain topics.” The court analogized the Senate building to a city council meeting room, where the public has the opportunity to address public officers. A “limited public forum” has its own set of rules under the First Amendment. The court noted that those rules apply equally to persons who are either participating in the proceedings, such as making a statement or testifying, or simply observing them, like Reza in this case.

The court acknowledged that, in a limited public forum, the government may restrict speech, not only as to time, place and manner, but also to preserve the forum for its intended purpose — namely, the conduct of a governmental entity’s business, so long as the regulation does not suppress expression based on viewpoint. Further, any regulation or restriction must be reasonable in light of the purpose served by the forum, such as restrictions to maintain decorum and order to allow the public business to be conducted.

Here, the court found that there were questions of fact whether Reza had in fact disrupted the Senate proceedings and whether there were legitimate concerns that his future presence in the building would interrupt legislative debate. The court also doubted that the order barring Reza from the building in the future, which also prevented him from visiting his elected representative, was reasonable under the limited facts and circumstances presented from the district court. Viewing the facts and allegations in the light most favorable to Reza, the court concluded that Pearce’s order could have constituted a violation of Reza’s First Amendment rights and sent the case to the district court to further develop those facts.

This case serves as a reminder that government officials must be extremely careful in restricting access to public buildings, particularly legislative chambers and offices. The cause for the restriction must be clearly established and documented, and the restriction, itself, must be reasonable and limited to preserving the forum for the purpose for which it is intended.

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