By Kristin Billera

The debate on healthcare reform in this country has led to a divided political climate, with much of the tension panning out during the course of town hall meetings. Some of these frustrations have resulted in protests and even run-ins with Congressmen. Speaker of the House Nancy Pelosi has made the dangerous argument that this behavior is “un-American,” which makes one question if Congress would take measures to silence critical speech at these meetings.

In order to determine if the government could ever constitutionally limit the speech at town hall meetings, we must determine if a town hall meeting is a public forum, a limited public forum, or a nonpublic forum. These three types of forums were distinguished in the case Perry Education Association v. Perry Local Educators’ Association. Public forums, sometimes called open forums are “government property that is opened to the public for expressive activities of any kind,” and usually include places such as parks, sidewalks, and streets. Restricting speech in a public forum is subject to strict scrutiny and therefore must serve a compelling state interest and be narrowly tailored, if they fall under content-neutral time-place-manner restrictions. Limited public forums, also called designated public forums, were defined in Perry as “’public property which the state has opened for use by the public as a place for expressive activity’ and are treated substantially the same as traditional public forums.” These include rooms used for municipal meetings or school board meetings. Restrictions on speech in limited public forums are also subject to strict scrutiny. Any area that does not fall into the category of public forum or limited public forum is considered a non-public forum, which include jails, military bases and schools. The government may regulate speech in a reasonable manner in non-public forums, provided that the reason for suppressing speech is not merely that the point of view is contrary to the view of public officials.

Unless town hall meetings were held in parks, they would not likely be considered public forums; however, the nature of these town hall meetings fits relatively well within the definition of limited public forum, because these areas are being held open to the public, for the purposes of “expressive activity.” Town hall meetings are similar to municipal meetings or school board meetings in that they are conducted by a representative of the government and citizens are given an opportunity to ask questions or express opinions. Therefore, any effort to restrict the opinions of those present at these meetings would be subject to strict scrutiny. It is not likely that most restrictions would be perceived as constitutional. It would likely need to be an extreme situation where the speaker was not giving others any chance to speak, and of course, would need to be content-neutral and apply to those on both sides of the debate. Even if it was argued that these meetings took place in non-public forums, the government would need to be extremely careful that that were not suppressing speech merely because it was contrary to the message they were communicating. Even in non-public forums, restricting speech because it is “un-American,” as Speaker Pelosi put it, would not even come close to passing constitutional muster.

It is trite, but it is trite because it is true: The 1st Amendment was not written to protect speech that is approved by everyone. The 1st Amendment is the cornerstone of our democracy and embodies perhaps our country’s most important ideals. While the country may be divided right now over this pivotal issue, it is essential that we remember that this is a byproduct of the democratic process and that we must not let fear of schism impede the protection of freedom of speech.