Asked and Answered

Answers are not meant to be relied upon as legal advice specific to any reader’s situation, but are for informational purposes to help journalists understand how the law affects their work.

Q: Can I film outside a federal government building?

A: This question turns on whether the property is a “public forum” or a “nonpublic forum public property.” Reporters, and the general public as well, have more rights on the former than on the latter.

Public forums are publicly owned and open to the general public. Examples are municipal sidewalks, streets, and parks.

Nonpublic forums include government property that has not traditionally been open to the public. Examples include schools, prisons, and the inside of government buildings.

Few cases deal specifically with journalists’ rights on these types of property. However, the media have at least as much access to places as the general public. There are many decisions on what rights members of the public – most often protesters – have outside of government buildings. Reporters should draw analogies with those cases.

The government cannot deny people access to places designated as public forums, but it can impose reasonable time, place and manner restrictions on activities. These restrictions must be content neutral; narrowly tailored; serve a significant government interest; and leave open alternative channels of communication. For instance, police may be able to limit public access from government property when they believe it is necessary for public safety or to prevent interference with an investigation.

Designation of a space as a “nonpublic forum” does not mean that a reporter has no right to gather news there. Rather, it means that the government can exclude reporters, and other members of the public, if authorities can show that access would interfere with normal operations of the facility.

If the inside of a government building is a nonpublic forum and a park nearby is a public forum, gray areas are the sidewalks and outdoor space that immediately flank the buildings. The Supreme Court took on this question in 1983’s United States v. Grace. The case asked whether the government could restrict picketers from the grounds outside the Supreme Court.

The justices in Grace ruled that the outdoor patios, steps and walkways abutting the Court, as well as the inside of the building, are nonpublic forums. The fact that people are able to freely leave and enter these grounds did not make them public property. Restrictions on protesters there are constitutional because people’s presence could interfere with normal business operations.

In contrast, sidewalks that form the perimeter of the Court are “public forums” and picketers are generally allowed there. The justices found those sidewalks those “indistinguishable from any other sidewalks” in the city and noted there are no barriers that could indicate that they are part of the Court grounds.

Courts have cited Grace when determining that the sidewalks near the Vietnam Memorial and other outdoor space on the National Mall are public forums. In contrast, courts have found that a national cemetery run by the Veteran’s Administration as well as the interior of the Jefferson Memorial (which is on the National Mall) are nonpublic forums. Similarly, people can be denied access to outdoor areas inside of military bases.

Courts also have found that sidewalks that directly abut a United States Post Office are nonpublic forums. The rationale is that these sidewalks are not designated for public use, but instead are principally for people entering and exiting the post office. — Jamie Schuman