State Senate staffers are still smarting over the state’s $100,000 settlement with Mitch Kahle — an atheist activist — for a scuffle after Kahle was forcibly removed from the Senate gallery for protesting an invocation on the last day of session in April 2010.
Kahle, who was acquitted of disorderly conduct, filed a federal lawsuit that included claims the Senate staff violated his First Amendment right to freedom of speech. Kevin Hughes, an ally of Kahle’s who recorded the incident on video and was caught up in the scuffle, was also part of the lawsuit.
Senate staffers countered that Kahle had no First Amendment right to speak because the Senate chamber is a non-public forum.
U.S. District Judge Leslie Kobayashi, in a January ruling, agreed that the Senate chamber is not a public forum. But that does not necessarily mean that protesters such as Kahle have no free speech rights.
From the ruling:
The Court takes judicial notice pursuant to Fed. R. Evid. 201(b)(1) and (c)(1) of the nature of the proceedings that occur in the Senate Chambers while the Senate is in session and finds that it is a non-public forum. That fact, however, does not mean that Kahle had no free speech rights when he attended the session. The Ninth Circuit has recognized that:
In a nonpublic forum, our scrutiny is less exacting: “In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speakers’s view.” [Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,] 46, 103 S. Ct. 948 [(1983)]. Such sparing treatment stems from the oft-recognized principle that the “First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” Id. (quoting [United States Postal Serv. v. Council of] Greenburgh [Civic Ass’ns], 453 U.S. [114,] 129, 101 S. Ct. 2676 [(1981)]); see also Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S. Ct. 2701, 120 L. Ed. 2d 541 (1992); United States v. Kokinda, 497 U.S. 720, 725, 110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990) (plurality op.).
Under this analysis, the primary issues relevant to Kahle’s free speech claims are: whether Kahle was ejected from the Senate Chambers pursuant to a complete, content-neutral ban on public speech during the Senate session; and whether that ban was reasonable. The allegations in the First Amended Complaint and the representations in the parties’ filings in connection with the instant Motion reveal that there are disputed issues of material fact on these issues, and the Court cannot say that the State Defendants are entitled to judgment as a matter of law on Kahle’s free speech claims.