This case raises the question of whether the waiting areas of a welfare center must be regarded as an open forum for communication about welfare issues. Make the Road By Walking (MRBW) is an advocacy group that presses for welfare reform and that seeks to inform applicants and potential beneficiaries of public assistance of their rights with respect to the welfare system. To that end, the group requested permission to enter the waiting areas of welfare centers to talk to welfare applicants. The request was denied by the New York City Administrator of the Human Resources Administration (HRA). Under city policy, individuals applying for assistance may be accompanied only by family members, friends or welfare advocates that have been specifically retained by the applicants. Advocacy groups that are not specifically retained by welfare beneficiaries are generally excluded. This exclusion was challenged as a violation of the First and Fourth amendments. Both parties moved for summary judgment. The District Court upheld the exclusion on the grounds that the Job Center waiting rooms were "limited public fora," and that the HRA’s restriction of speech to clearly defined "official business" did not constitute viewpoint discrimination.
The Second Circuit affirmed the District Court’s decision in August 2004, but did so on different grounds. The NYCLU had filed an amicus brief in the Court of Appeals contending that the content of the advocacy that MRBW seeks to pursue is consistent with the categories of content that the city permits within these "limited public fora." The NYCLU, therefore, argued that the exclusion of MRBW and other similarly-situated advocacy groups is a form of viewpoint discrimination. Furthermore, the NYCLU argued that even if viewpoint discrimination cannot be found in this case, the exclusion amounts to content discrimination, which cannot be found to be narrowly tailored in the pursuit of any compelling interests. The Second Circuit rejected both these claims. First, the court’s decision concluded that Job Center waiting rooms must be considered "nonpublic fora" because the language of the HRA’s written policy does not demonstrate any intent to open them to the public. Second, the decision held that reasonable restrictions on expression on government property include the avoidance of negative effects of expression such as public disruption or distraction, as long as they are viewpoint neutral. Since the court found no evidence of bias within the HRA’s policy, it upheld the exclusion.
U.S. Court of Appeals, 2nd Cir., 02-7876 (amicus)