Newsworthy events often occur in public places such as streets, sidewalks or parks. Since these places are open to the public and few restrictions are placed on the activities that take place in them, they are considered public forums. Although governments generally may not limit or deny access to public forums, they may impose reasonable "time, place and manner" restrictions on expressive activity on such property. To comply with the First Amendment, such restrictions must satisfy a three-part test: they must be content neutral, narrowly tailored to serve a significant government interest, and must leave open alternative channels of communication. The Supreme Court has used this test at least since 1939 (Hague v. CIO), and reaffirmed its application as recently as 1983. (U.S. v. Grace). Although the cases addressed by the courts typically involved political demonstrations, they can be analogized to journalists. If the media have a right of access equal to the public's, and the public has a broad right of access to a place, then reporters will have equal access to gather news in that place. Election day exit polls: In the wake of the 1980 president election, in which broadcasters announced Ronald Reagan's victory over incumbent Jimmy Carter before the polls closed in western states, many states passed laws limiting reporters' access to voters and poll workers within specified distances from polling places. The most extreme was Hawaii's statute forbidding conducting exit polls within 1,000 feet of voting places. Courts in many of these states have declared such laws unconstitutional. The U.S. Court of Appeals in San Francisco (9th Cir.) struck down a Washington state law prohibiting exit polls within 300 feet of voting places, rejecting the state's argument that it was a reasonable means of preserving order and preventing harassment of voters. The panel ruled that the law unconstitutionally restricted media access to areas which have traditionally been considered public forum property. In a concurring opinion, one judge said the law also violated the media's First Amendment right of access to information crucial to the political process. (The Daily Herald Co. v. Munro) A judge struck down Minnesota's exit poll statute, which forbade asking voters about ballot issues, as a content-based restriction on speech about government affairs that violated the First Amendment. (CBS Inc. v. Growe) Georgia's prohibition on exit polling within 250 feet of voting places was unconstitutional because it prohibited such activities even if they did not disrupt voting on public forum property, a federal judge ruled in 1988. The court limited enforcement of the statute to 25 feet (National Broadcasting Co. v. Cleland) In 1989, Florida's Supreme Court struck down a state prohibition on exit polling within 50 feet of voting places. The court said officials had not substantiated claims that exit polling disrupted voting. But the court ruled that the state could bar journalists from entering polling places to ask questions or take photographs in order to prevent disruption. (CBS Inc. v. Smith) Some states still enforce broad exit poll bans. Nebraska maintains a 100-foot restriction on polling. In Oklahoma, a pollster must obtain written authorization from the Secretary of the State Election Board no later than the Wednesday before the election in order to poll within 300 feet. Even with this identification, the pollster must remain 50 feet from the voting place and is restricted to written polling materials. No recording devices or oral interviews are allowed. (26 Okla.Stat. Ann. § 4-115)
A number of states passed laws restricting exit polling
outside of voting places after the 1980 presidential
election, during which broadcasters announced election
results before the polls had closed in western states.
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