First Amendment Right to Pass out Pamphlets

Free Speech Lessons from The Punisher

The character Lewis Wilson in Marvel’s The Punisher episode “Judas Goat,” was arrested on state courthouse steps for passing out pamphlets. The arresting officer questioned whether Wilson was protesting without a permit before falsely stating Wilson had gone for the officer’s gun. Let’s take aim at the civil rights violations…

Pamphleteering is a Protected First Amendment Activity 

Passing out pamphlets and one-on-one communications are expressly protected First Amendment activities. McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014). The United States Supreme Court has stated that passing out pamphlets “is the essence of First Amendment expression.” McCullen, at 2536, citing McIntyre v. Ohio Elections Comm’n, 115 S. Ct. 1511 (1995).

The issue for Wilson is whether the courthouse steps were a “traditional public forum” where he could pass out his pamphlets. A “traditional public forum” are places such as parks and sidewalks, where people can assemble for communication and public questions. Hague v. Comm. for Indus. Org., 307 U.S. 496, 515, 59 S. Ct. 954, 83 L. Ed. 1423 (1939).

On the Courthouse Steps 

The First Amendment gives people the right to ask government officials questions on courthouse steps, even though there isn’t a right to an answer for the question. Gonzalez v. Morse, 2017 U.S. Dist. LEXIS 168217, at *4-5 (E.D. Cal. Oct. 10, 2017). Furthermore, in a case where the Klan had a permit to speak on the steps to a courthouse, the Court noted that counter-protesters could have spoken against the Klan after the Klan’s event on the courthouse steps or the sidewalk during the rally. This dicta has no mention of the counter-protesters getting a permit for the steps. Grider v. Abramson, 994 F. Supp. 840, 848 (W.D. Ky. 1998). Moreover, there are cases where courthouse steps were opened up for public events, sometimes without permission from the county. In such cases the county could not deny use of the courthouse steps based on the message of the speakers. Higher Soc’y of Ind., Inc. v. Tippecanoe Cty., 223 F. Supp. 3d 764, 772 (N.D. Ind. 2016).

Pamphleteers do not have a First Amendment Right to distribute information in the lobby of courthouses. Braun v. Baldwin, 346 F.3d 761, 764 (7th Cir. 2003). Moreover, in a highly protected First Amendment case, pamphleteers did not have a right to target court employees at the courthouse entrance with their leaflets. See, Verlo v. Martinez, 2017 U.S. Dist. LEXIS 117418 (D. Colo. July 27, 2017).

Permit Required for Pamphlets? 

The sidewalk connecting to the courthouse steps definitely would be a traditional public forum. The actual courthouse steps are a little more complicated. The answer might turn on how the courthouse steps had been used in the past.

The steps potentially are not a traditional public forum, as we want court employees, attorneys, and litigants, to be able to enter the courthouse. Moreover, the courthouse steps arguably are an extension of the lobby of the courthouse, where pamphleteering would not be allowed. The police officer could have had a good faith belief that courthouse steps were for entry or exist for the courthouse, and directed Wilson to the sidewalk to pass out pamphlets.

There is a strong argument that the courthouse steps are a traditional public forum. Moreover, there is no way Wilson’s actions could be qualified as a protest requiring a permit, but a Constitutionally protected activity of two people passing out pamphlets. Wilson was not targeting court employees or harassing people. The core of his actions were to exercise his First Amendment rights to discuss his Second Amendment rights in one-on-one communications. The police officer asking whether Wilson had a permit to pass out pamphlets was a First Amendment violation, as there is no question that is protected free speech.

Regardless of whether Wilson could pass out pamphlets on the courthouse steps, the police officer falsely arrested Wilson. The [fictional] Lewis Wilson had a strong civil rights case. Wilson should have sought legal counsel and psychological treatment instead of becoming a terrorist.

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Josh Gilliland

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, the ABA Web 100 for Best Legal Blog and Podcast categories, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.