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About Just out. (Portland, OR) 1983-2013 | View Entire Issue (July 15, 1994)
e ▼ July 15. 1004 T Just out LAW REVIEW SECO ND TH 0 W G H T 5 Tolerance ef censorship RESA LE CLOTHING fo r MEN AND WOMEN P O R T L A N D L O C A T IO N S : 106 NE 26tti Avo. ♦ 233-2262 I Nock ncxlti of BurrnkU» 6341 S.W. Capitol Hwy. ♦ 244-4149 Acrom trom N a tm 't HOUKS: Mondcry-Satvday lOam b épm A case against a right to life group bears disturbing implications to sexual minorities EUGENE L O C A T IO N : 77 W. 11»h Avo., Sud# C ♦ 663-6501 1VE PAYCASH for C LO Illina DAILY Advance fix $ 1 0 (subject to serv. chg.) at It's My Pleasure, Fostixx; $ 1 2 . 5 0 door Remember, closets are for clothes, w e’ll fill yours for less For All Your Real Estate Needs Barbara Lee Thurheimer, G.R.I. C O L D LU C U . 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P O R T L A N D , O R 9 7 2 14 by Geoffrey Wren U.S. Supreme Court decisions have estab n May 31, 1994, the United States lished that the state can impose reasonable time, Supreme Court refused to review a place and manner restrictions on speech, so long case where the highest court in Ken tucky denied speech rights to a “con as the restrictions are “content-neutral” and leave open ample alternative channels of communica troversial group.” The case, Capital tion. The “content neutral” requirement means Area Right to Life, Inc. vs. Downtown Frankfort, that the state cannot restrict communication be Inc., says much about the First Amendment’s cause it does not like the message communicated. guarantee of freedom of speech in the late 20th The Kentucky Court held that Downtown century. Frankfort, Inc., did not abridge Capital Area Right Downtown Frankfort, Inc., a private corpora to Life’s freedom of speech by denying it a booth. tion created to revitalize Frankfort, Ky., annually The Kentucky Court interpreted the U.S. Su sponsored a “Great Pumpkin Festival” on the preme Court’s “content-neutral” requirement “to city’s public mall. Participating groups occupied include being neutral as to the type of message the booths under permits issued by the corporation. restriction permits as well as being nondiscrimi- Capital Area Right to Life, an anti-abortion natory between messages of the same type, so group, had occupied a booth at the 1989 festival. long as there is a logical and legitimate reason for When it requested a booth permit for the 1990 restricting the type of message.” The Kentucky festival, DFI responded that it had changed its C ourt considered policy. The corpora- m DFI’s denial of the tion stated i t. now booth permit con “reserve[d] the right tent-neutral because to deny participation” it denied booth per to any group deemed “inappropriate” to the mits to other groups festival’s purpose. It that wished “to en also told Capital Area Wh:- i gage in ‘controver Right to Life that it sial’ speech.” could not have a booth To reach this because it was a "con co n clu sio n , the troversial group.” Court had to tiptoe Capital Area Right around the fact that to Life sued. The Downtown Frank group claimed that fort, Inc., itself de DFI unconstitution cided what messages ally abridged its right were “controversial” A\ to freedom of speech when it doled out under the First and booth permits. In a •V / Fourteenth Amend thundering dissent l** I ments to the U.S. Con ing opinion, two stitution. judges on the Court The constitutional argued that this fact I guarantee of freedom showed why DFI’s of speech applies only policy was unconsti with respect to gov tutional. Ä - ernment action. Law Given the impor- ■VO yers call this principle tanceofthe issues in “state action.” A par Capital Area, it is © ticular restriction on [ \ ® (§ ) Z ? \ o d d that the U.S. speech implies federal Supreme Court re- constitutional rights 0 ^ ffiv fused to review the only when it is “the case. Various rea state” that imposes the restriction. Truly, private sons could explain the Court’s action. The Court action does not go against the Constitution. A may not have considered the case an appropriate private actor, constitutionally, can tell another to vehicle to review a regulation of “controversial” shut up. speech. Or the Court may have been bothered that The requirement of state action does not nec the Great Pumpkin Festival had been discontin essarily require an official state actor. Sometimes ued by the time the case reached the Supreme private organizations bear enough of a connection Court. with the government that their actions effectively More ominously, certain justices may have become state actions. agreed that the state should have the right to deny In Capital Area, the Kentucky Court held that forums to groups it considers controversial. If so, Downtown Frankfort, Inc., had engaged in state the case bears disturbing implications for sexual action. The Court reasoned that the corporation minorities. received its funding from a public source, that it One may not grieve over the restriction of an had taken over a function formerly performed by anti-abortion group’s cacophony. But many gay the city of Frankfort, and, most persuasively, that and lesbian groups could earn the tags “contro DFI controlled issuance of permits to those who versial” or “inappropriate” in the minds of those wanted to set up booths on public property. charged with doling out permits to public events. The conclusion that DFI was a state actor is Capital Area shows the ultimate fragility of important. The Kentucky Court acknowledged our freedom of speech. A constitutional right that the state, not a private party, impeded Capital matters only to the extent a court will enforce it. Area Right to Life’s freedom of speech. The mere How a court interprets the First Amendment has fact that DFI restricted the group’s speecKdid not much to do with societal attitudes towards toler mean that the restriction violated the Fitft Amend ance of censorship. ment. O