Planners and the Public Realm: Legal Rights and Planning Issues

You'll learn about:

  • The constitutional and other legal principles — particularly First Amendment principles — associated with use of public property.

  • The public forum doctrine, i.e., how public property is classified for First Amendment purposes, and what classifications under the public forum doctrine mean for the government's ability to regulate or prohibit certain speech- and religion-related activities on sidewalks, streets, parks, grounds of public buildings, and other government property.

  • Ideas for practical strategies to accomplish planning goals, such as encouraging attractive, safe, and vibrant public spaces, while ensuring that you do not encounter legal trouble as a result of the legal principles discussed above.

Planners are frequently called upon to provide for the physical and functional use of public property, including parks, sidewalks, streets, public buildings, and other government property. However, government property carries special legal treatment with respect to fundamental constitutional rights of free speech and religious exercise. This session will give planners of all levels of experience a general overview of some of the legal principles governing the regulation and use of public property, and will provide practical strategies to avoid legal trouble.

We will note how the U.S. Supreme Court's decision in  Reed v. Town of Gilbert can affect the legal rules for the use and regulation of public property. For example, panhandling and solicitation by homeless persons, parades and demonstrations in public spaces, real estate or other signs in the right-of-way, and even simple activities such as sidewalk leaflet distribution are forms of protected speech, meaning that governments cannot prohibit these activities and must regulate them in a content neutral manner.  Similarly, religious displays and worship — such as the use of public space for an Easter service — is constitutionally-protected religious exercise, yet the government is prohibited from sponsoring such activities under the Establishment Clause of the First Amendment.  Even the use by telecommunications companies of right-of-way for transmission lines carries federal legal protection.

This session will explore how planners can, through both physical planning (of parks, streetscapes, and other public spaces) and functional planning (public events and other uses of public property), ensure that public spaces achieve planning goals while ensuring that constitutional rights and other legal principles are not violated.