NINTH CIRCUIT UPHOLDS FREE SPEECH CLAIM
The Ninth Circuit Court of Appeals in Seattle decided in May, 2008 that Bitterroot National Forest Supervisor Dave Bull was wrong in September of 2005 when he ordered three Friends of the Bitterroot members to be barred from a press conference at the agency headquarters in Hamilton, Montana. Bull had the three members, Stewart Brandborg, Larry Campbell, and Friends President Jim Miller, escorted outside because they disagreed with the agency’s views concerning a proposed timber sale and wildfire prevention plan.
Members were amazed that they had been denied access to a public meeting. As Stewart Brandborg said, “In my 60 years of conservation work, I have never before been barred from an agency’s public press conference. My associates and I were excluded, in the presence of an armed guard, from a meeting to which chosen citizen supporters of the Forest Service proposal had been invited. Most unconscionable was the implication of this action that I and/or my associates might commit some kind of violent act.”
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The Court upheld the Forest Service’s right to allow only certain people to speak at its press conference, but directed that a trial should go forward on the issue of whether the exclusion of persons based upon their views amounted to viewpoint discrimination – which is prohibited by the First Amendment as a violation of freedom of speech.
In April 2008, Kim Wilson, a cooperating attorney with Montana ACLU and from the Helena firm of Reynolds, Motl and Sherwood, presented an oral argument on First Amendment rights to a three-judge panel of the Ninth Circuit Court of Appeals in Seattle, regarding the removal of the three FOB members from the Forest Service press conference. Montana District Judge Donald Molloy had allowed the suit to go forward to show that Bitterroot Forest Supervisor Dave Bull improperly allowed some people into the press conference to speak, while excluding representatives from Friends of the Bitterroot because they disagreed with timber sale and wildfire plan that was to be adopted. According to Judge Molloy, First Amendment case law has clearly established that when the government opens up a forum to allow some people to speak, it may not exclude others on the basis of their viewpoint.
As Larry Campbell observed, “It’s unfortunate that it takes going to court to affirm what was plainly understood not long ago…In the USA government officials cannot simply exclude citizens because they hold dissenting opinions. The fact that Supervisor Bull tried to portray us as dangerous by having armed and flak-jacketed federal guards bar us from the public press conference was over-the-top theatrics that made his anti-democratic behavior even more of an affront.”
The government appealed Judge Molloy's decision to the Ninth Circuit Court of Appeals and argued that the principle of "government speech" allowed Supervisor Bull to prevent people who didn't agree with him from attending the press conference. ACLU and FOB countered that government speech cannot be a shield for viewpoint discrimination, under the First Amendment.
The Ninth Circuit panel chose to hear the case at the University of Washington Law School. In front of 150 law students, the panel, headed by Judge Margaret McKeown, grilled counsel for both sides, testing the limits of government speech and the right of the public to attend government press conferences which are open to only "some" of the public.
The court allowed the government to limit those who may speak at the press conference, but sent the case back to Judge Molloy for a hearing on whether Brandborg, Campbell and Miller were improperly excluded because of their disagreement with the agency’s proposals.
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The three FOB members were gratified by the court’s ruling, but still expressed their concern about government attempts to limit free speech.
As Jim Miller said, “What we have been seeing recently in this country is our government excluding people who disagree from participation in public process. This compels us to pursue this case.”
“This decision is important because it affirms the right of the individual to be part of the governmental process, regardless of the individual’s political views,” noted Montana ACLU Legal Director Betsy Griffing. “We all deserve a right to be heard and to participate in government, and cannot be excluded from that process simply because government officials might disagree with what we have to say.”