Untitled Texas Attorney General Opinion ( 1991 )

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DAN MORALES December 9,199l
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GEXERAL
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Mr. Joe E. Milner Opinion No. DM-64
Director
Texas Department of Public Safety Re: Whether the Texas Krishnas may
P. 0. Box 4087 distribute religious literature on Depart-
Austin, Texas 78773-0001 ment of Public Safety property (RQ-68)
Dear Mr. h4ilner:
You have asked whether religious groups may distribute religious literature
and solicit donations on property of the Department of Public Safety (the “depart-
ment”). You inform us that the department has received a request from the Texas
Krishnas for “clarification of the parameters within which our religious
organization’s volunteers can from time to time distribute religious litera-
tures . . . and receive donations” on the department’s property. You ask us to
address this issue both in light of article V, section 83, of the current Appropriations
Act, which prohibits the use of state property for private purposes, and the first
amendment of the United States Constitution.
We turn first to your query regarding tbe United States Constitution.l The
first amendment of the United States Constitution provides that “Congress shall
makenolaw... abridging the freedom of speech . . . . ’ This prohibition is equally
.applicable to the states, and applies to the department as an entity of the State of
Texas. See Fike v. jGn.ms, 274 U.S. 380 (1927); L. TRIBE, AMERICAN
CONSTITUTIONAL LAW0 11-2 at 56769 (1978).2
‘We address these issues in tbis order, because if the United States Constitution were to re-
quire the department to aIIow the Krislmas to use its property for expressive activity, then this require-
ment would prcvaiI over any prohibition in the Appropriatioos Act. See U.S. Coo+ art. VI, d. 2.
%‘he Texas Bii of Rits states that “[c]nry person shall be at liberty to speak, write or
publish his opinions on any subject.. . and no law shaIl ever be passed curMing the Iiirty of speech
or of the press.’ Tex Const. art. I, 0 8. Ao appeals court has suggested ia a case iovohkg expressive
activity on public property that the Texas constitutional provisions guanoteeing freedom of expression
are coextensive with the federal guarantees. Reed v. State, 162 S.W.2d 640,644 (Tex. App.--Texarkaoa
1988, pet. refd). The Texas Supreme hut, however, has expressly reserved judgment on the question
whether Texas’ guarantee of free speccb affords greater protection than the tint amendment of the
United States Constitution O’Quinn v. Skate Bar of Tap, 763 S.W.2d 397,402 (Tex. 1988). Because
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Mr. Joe E. Milner - Page 2 (DM-64)
You suggest that distribution of literature and solicitation of funds are
activities that are not protected by the first amendment. We disagree. It is clearly
established that distributing literature is an expressive activity protected by the first
amendment. See United States v. Grace, 461 U.S. 171, 176-77 (1983) (citing cases).
Charitable solicitation of funds and the distribution of written materials in exchange
for contributions or gifts have also been recognized as forms of protected speech.
See, e.g., Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 797-98
(1985) (citing cases); He#ron v. International Socy for Krishna Consciousness, 452
U.S. 640, 647 (1981) (citing cases). Indeed, the United States Supreme Court has
recently reaffirmed that solicitation is a form of speech protected by the first
amendment. See United States v..Kokinda, 110 S. Ct. 3115,3118,3126 (1990).3
The right to engage in these forms of speech, however, is not absolute:
Nothing in the Constitution requires the Government freely to
grant access to all who wish to exercise their right to free speech
on every type of Government property without regard to the
nature of the property or to the disruption that might be caused
by the speaker’s activities.
Cornelius, 473 U.S. at 799-800. In balancing the government’s interest in limiting
the use of its property against the interests of those who wish to use the property for
expressive activity, the United States Supreme Court has identified three types of
fora. Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569,
572 (1987). These fora include the “traditional public forum,” the “public forum
created by government designation,” and the “nonpublic forum.” Id The traditional
public forum, a public space historically associated with the free exercise of ex-
pressive activities, includes streets, sidewalks, and parks. Grace, 461 U.S. at 177;
Medlin v. Palmer, 874 F.2d 1085, 1089 (5th Cir. 1989). But see Kokinda, 110 S. Ct. at
you have not asked us to address the Krishnas’ request to distribute literature and solicit funds on
department property io light of the Texas Constitution, we do not do so here.
%‘he cases you cite are not to the contrary. See International Sock for KrishnaConsciousness
v. Lee, 925 F.Zd 576, 579 (2d Cii. 1991) (defendant sod court did not dispute that solicitation of
contrl%utions and distribution of religious literature are protecred speech); PauI.wn v. Counry of
Nu.wuu, 925 F.2d 65, 67 (2d Cii. 1991) (“freedom to circulate fliers implicates fundamental liberties”);
C-Reid v. Metropolitan Tramp. Ah., 903 F.2d 914, 916 (Zd Cu. 1990) (‘music, as a form of
expression, is protected by the Fust Amendment”). In Young v. New York City Tmnsit Ah., 903 F.&l
146, l54-55 (2d Cii. 19X1), the court concluded that street begging is not protected speech but was
carefd to distinguish it from solicitation of funds with a ‘soflicient nexus” with speech.
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Mr. Joe E. Milner - Page 3 (DM-64)
3120 (plurality opinion). A “public forum by government designation” (sometimes
called a “limited public forum”) arises when the government has intentionally
designated a place or means of communication as a public forum. Cornelius, 473
U.S. at 800. The government does not create a public forum by inaction or by
permitting limited discourse, but only by intentionally opening a nontraditional
forum for public discourse. Id. at 802. A “nonpublic forum” is an area which is not
by tradition or designation a forum for expressive communication. Peny Educ. Ass’n
v. Peny Local Educatorx’Ass’n, 460 U.S. 37,46 (1983).
In response to your query regarding the kinds of restrictions the department
may impose on expressive activity, the proper first amendment analysis depends
upon the nature of the state property in question. The department may enforce
“reasonable time, place, and manner regulations” in a traditional public forum or a
public forum created by government designation as long as the restrictions “are
content-neutral, are narrowly tailored to serve a significant government interest, and
leave open ample alternative channels of communication.” Grace, 461 U.S. at 177
(quoting Perry Educ A&n); Medlin, 874 F.2d at 1089. Content-based restrictions
are subject to the highest level of scrutiny. Medlin, 874 F.2d at 1089 (citing
ConsolidatedEdiron Co. of New York v. Public Sew. Comm’n of New York, 447 U.S.
530 (1980)). A nonpublic forum may be reserved by the department “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 speaker’s view.” PerryEduc. Ass’n, 460 U.S. at 46.
The department has informed us that the Krishnas have asked to distribute
literature in a parking lot adjacent to a department office building where members
of the public apply for various licenses. The department has further informed us
that this area has not been open historically as a public forum and that it has never
granted the request of any other group to use the area for expressive activity.
Assuming these facts are true, we believe that a court would conclude that the area
in question is a “nonpublic forum,” and therefore that the department may restrict
access to the area as long as the restriction is reasonable and not an effort to
suppress expression merely because department offtcials might oppose the Krishnas’
views. Because we are not a fact-finding body and are thus unable to take evidence
or make findings of fact, however, we cannot determine the specific nature of the
area in this opinion. Moreover, even assuming that the subject parking lot ir most
properly categorized as a nonpublic forum, we would not be able to assess in the
opinion process the reasonableness of the department’s policies or the propriety of
department offtcials’ motives in promulgating that policy. Of course, the
department may decide to designate the parking lot or other property as a public
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Mr. Joe E. Milner - Page 4 (DM-64)
forum.4 In that case, the department may enact reasonable time, place, and manner
regulations as long as the restrictions are content-neutral, are narrowly tailored to
serve a significant state interest, and leave open ample alternative channels of
communication. See Heffron, supra, at 648-56.5
Finally, you have also asked whether the Appropriations Act prohibits the
department from permitting the Krishnas to distribute literature and solicit funds on
its property. Section 83 of article V of the current Appropriations Act provides, “No
person shall entrust state property to any state offtcial or employee or to anyone else
to be used for other than state purposes.” General Appropriations Act, Acts 1991,
72d Leg., 1st C.S., ch. 19, iI 83, at 1037. Although the legislative history of this
language is not well-documented,6 we do not believe that this provision is intended
to apply to the situation at hand. This provision is identical to language in article 8
of the State Purchasing and General Services Act. See V.T.C.S. art. 601b, 6 8.03(d)
(formerly V.T.C.S. art. 6252-6, 8 5(c), repealed by Acts 1979, 66th Leg., ch. 773,
B 99.05, at 1960).7 That provision of the State Purchasing and General Services Act
clearly applies solely to state-owned personal property as opposed to real property.
See id 58.01(a) (‘This article applies to personal property belonging to the state”).
Thus, we believe that the appropriations provision is also intended to apply solely to
the use of state-owned personal property and is inapplicable here. Furthermore,
even if article V, section 83, of the Appropriations Act applies to reul property, we
believe that the transitory use of state-owned real property for expressive activity
protected by both the United States and Texas Constitutions does not constitute
entrustment of state property. Therefore, we conclude that article V, section 83, of
the Appropriations Act does not prohibit the department from permitting Krishnas
to distribute literature and solicit funds on its property.
4We assume from your letter that the department has sufficient authority over the parking lot
in question to designate it as a public forum.
%%e department has not asked us to render ao opinion regarding proposed “time, place, and
manner” regulations and, eveo if it had, it would be diiticult for os to assess the “reasonableness” of any
such regulations in the opinion process.
%st appropriations acts have contained identical laoguage. See AcIs 1989, 71st Leg., cb.
1263, art. V, 0 88, at 5804, Acts 1987, 70th Leg., 2d C.S., ch. 78, art. V, 5 85, at 869; Acts 1985, 69th
Leg., ch. 980, art. V, 0 92, at budget 514. We do not address whether this is a valid rider.
‘7The72d Legislature repealed article 8 of the State FIwhasii and General Services Act “on
c&tic&ion by the comptroller of the implementation of the fwd asset component of the uniform
statewide accounting system.” Acts 1991,72d Leg., 2d C.S., cb. 8, 0 6.01(d), at 175. The comptroller
has not yet issued such a certification.
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Mr. Joe E. Milner - Page 5 (DM-64)
SUMMARY
Distributing literature and charitable solicitation of funds are
expressive activities protected by the first amendment of the United
States Constitution. Balancing the Department of Public Safety’s
interest in limiting the use of its property against the interests of those
who wish to use the property for expressive activity requires findings of
fact and is not amenable to the opinion process. If the department has
not opened its property as a public forum it may restrict access to the
area as long as the restriction is reasonable and is not an effort to
suppress the views of a certain group. On the other hand, if it wishes to
do so, the department may designate its property as a public forum. In
that case, the department may enact reasonable time, place, and
manner restrictions regulating the use of its property for expressive
activity. Article V, section 83, of the Appropriations Act does not
prohibit the department from permitting groups to engage in such
activities on its property.
yu~om~
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Deputy Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Mary R. Crouter
Assistant Attorney General
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