DALLAS ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW, et al., Plaintiffs-Appellants, v. DALLAS COUNTY HOSPITAL DISTRICT, Defendant-Appellee.
No. 79-3967.
United States Court of Appeals, Fifth Circuit. Unit A
March 19, 1982.
Rehearing and Rehearing En Banc Denied June 18, 1982.
629 F.2d 629
Robert L. Schwartz, Chicago, Ill., amicus curiae for American Hospital Ass‘n.
Earl Luna, Dallas, Tex., Thomas V. Murto, III, for defendant-apрellee.
Roger Albright, Dallas Legal Services Fdn., Inc., Dallas, Tex., for plaintiffs-appellants.
Before BROWN, COLEMAN and GEE, Circuit Judges.
PER CURIAM:
On petition for rehearing en banc, the Dallas Association of Community Organizations for Reform Now (ACORN) has challenged our opinion, 656 F.2d 1175 (5th Cir. 1981), in which we declined to reach the question of the constitutionality of the “no solicitation” rule. The facts in this dispute are adequately set forth in that opinion. Upon reconsidering the matter, and for the reasons set forth below, we modify that opinion, vacate our affirmance of the District Court‘s, 478 F.Supp. 1250, holding, and reverse and remand on thаt issue. We now hold that the District Court should pass on the constitutionality of that rule in light of the principles discussed in the remainder of this opinion.
The Supreme Court recently reaffirmed that activities protected by the First Amendment “are subject to reasonable time, place, аnd manner restrictions.” Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298, 306 (1981). Although the District Court found that Parkland Hospital is not a public forum, 478 F.Supp. at 1257, we held that a hospital owned by the state is a public forum but one whose use may be limited by
The troublesome “no solicitation rule” appliеd by Parkland administrators to prevent ACORN from distributing their literature prohibits “solicitation of any kind” on Parkland‘s premises “without prior written approval of the hospital administration.” Neither the hospital board nor the administrator has adopted any rules concerning the conditions on whiсh approval may be granted or withheld, nor have any guidelines been established as to what types of literature may or may not be distributed. Testimony by the administrator indicated that newspapers and pamphlets from groups other than ACORN are permitted to be placed in the hospital on the basis that they are unlikely to cause anxiety to patients when sold in various parts of the hospital or placed in a reading rack in the outpatient waiting room. Upon reconsideration of this rule, we find that it is unconstitutional because (i) the hospital administration cannot forbid the distribution of literature, based on its content, throughout the entire hospital area, and (ii) the hospital administration cannot delegate unfettered discretion to the administrator to interpret the rule by making his own decision about the acceptаbility of the content of the literature.3
Thus, a hospital might adopt a regulation prohibiting the distribution in patient‘s rooms of literature that exclaimed in pejorative terms that the surgeons are “butchers trying to kill patients.” In such a case, the medical need to protect patients from emotional disturbance might warrant some content regulation, for “[e]ven within the area of protected speech, a difference in content may require a different governmental response.” Young v. American Mini Theatres, Inc., 427 U.S. 50, 66, 96 S.Ct. 2440, 2450, 49 L.Ed.2d 310, 323-24 (1976) (plurality opinion). The centrаl question would be “‘whether the manner [and, we add, content] of expression is basically incompatible with the normal activity of a particular place at a particular time.‘” Greer v. Spock, 424 U.S. 828, 843, 96 S.Ct. 1211, 1220, 47 L.Ed.2d 505, 517-18 (1976) (Powell, J., concurring) (quoting Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222, 232 (1972)); see id. at 840, 96 S.Ct. at 1218, 47 L.Ed.2d at 515 (majority opinion).
recognized the validity of reasonable time, place, or manner regulations that serve a significant governmental interest and leave ample alternative сhannels for communication. . . . Thus, the essence of time, place, or manner regulation lies in the recognition that various methods of speech, regardless of their content, may frustrate legitimate government goals. No matter what its message, a roving soundtrack that blarеs at 2 a. m. disturbs neighborhood tranquility.
The First Amendment is violated by unreasonable and unequal restrictions on access to public property, as well as by the delegation of authority to a single person to determine who may use public property for free speech. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938-39, 22 L.Ed.2d 162, 167 (1969).
What may be forbidden is expression that interferes with the functioning of the hospital. An acceptable rule would prevent only those expressions that are basically incompatible with the normal activity of a particular place at a particular timе. See Greer v. Spock, 424 U.S. 828, 838, 96 S.Ct. 1211, 1220, 47 L.Ed.2d 505, 514 (1976).
We hold that the rules at Parkland with regard to solicitation or leafletting must define by objective standards the literature that is forbidden because of the potential interference with the hospital‘s administration. Parkland need not allow disruption of the hospital or interference with patient care—by proper rules, with fixed standards, such disruption can be forbidden.4 The present rule, however, which contains no time, place, and manner guidelines, and which is applied by the hospital administrator at his discretion, must be held unconstitutiоnal.
Given the overcrowded and congested conditions at Parkland, a precisely-drawn rule could constitutionally prohibit all solicitation and leafleting in its small and crowded front lobby, its busy outpatient clinic, and the various waiting rooms where, because of lack of space, certain necessary medical services (teaching patients, recording patient histories, taking patients’ vital signs, administering medications, drawing blood, etc.) must be provided. We find that the significant governmental interest inherent in providing medical care to the public justifiеs certain carefully drawn restrictions on freedom of expression. United States v. O‘Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672, 680 (1968). Interference with the operation of Parkland‘s services need not be tolerated. Carey v. Brown, 447 U.S. 455, 470, 100 S.Ct. 2286, 2296, 65 L.Ed.2d 263, 276 (1980). For example, literature distributed among patients, awaiting medical care, that stаted that the doctors are incompetent and will do more harm than good could quite easily cause further disturbances to those already suffering ailments. On the other hand, a public hospital‘s rules should set forth standards that allow some freedom of expression outside patient areas, for example on the sidewalks and in the parking lots, that would cause little harm or disturbance to the hospital‘s operation. Thus, we are not chastising Parkland for its sensitivity to patient needs, but we are, under clearly established constitutional principles, requiring that standards must be set forth that are consistent with
The present “no solicitation rule” at Parkland is not vague—no solicitation at all is permitted. However, in application, it is clear that some literature is allowed on the premises of Parkland. Thus it becomes vague because those seeking to place their literature or leaflets in the waiting rooms of the hospital have no idea whеther their expressions constitute “solicitation” under the “no solicitation rule“.
The present “no solicitation rule” is also overbroad in that it potentially reaches and restricts every single mode of expression, including pure speech. Thus, even expressions that could in no way disrupt the purposes of the hospital could be prohibited under the rule if they were determined by the hospital administrator to constitute solicitation.
In conclusion, we affirm the District Court‘s findings that (i) ACORN‘s activities are protected by the First Amendment, subject to reasonable timе, place, and manner restrictions, and (ii) that ACORN activities including solicitation or the distribution of leaflets, are incompatible with the primary activities of all areas where patient care is being administered.6 We reverse both the District Court‘s finding that Parkland is not a public forum and its hоlding that Parkland‘s “no solicitation rule” is constitutional. The case is remanded to the District Court for reconsideration and a decision in accordance with the principles set forth above. Except insofar as explicitly granted in this per curiam opinion, it is ordered thаt the petition for rehearing is denied. No member of the panel nor Judge of this Administrative Unit in regular active service having requested that the Court be polled on rehearing en banc (
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
COLEMAN, Circuit Judge, dissenting.
I bеlieve that our prior opinion in this case, which was expressly limited to its facts, correctly stated the law applicable to those facts. Therefore, I would not extend the decision beyond the actual issue in the case.
More particularly, in the absence оf a Supreme Court decision to the contrary, I would hold that a hospital—designed, constructed, and operated for the sole purpose of treating human ills—is not a public forum. The overriding function of such a unique institution should not be subjected to a room to room, place by place, analysis for the promulgation of some kind of a limited rule as to those particular areas. Overworked, understaffed personnel of hospitals should not have their mission diverted by such stumbling blocks. No real First Amendment right is promoted by allowing it. The privacy of and a rеasonably tranquil atmosphere for sick people, and the
I respectfully dissent.
COLEMAN
CIRCUIT JUDGE
Notes
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. . . . Vague laws may trap the innocent by not providing fair warning . . . A vague law impermissibly delеgates basic policy matters . . . for resolution on an ad hoc and subjective basis with the attendant dangers of arbitrary and discriminatory application. . . . [Where] a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exerсise of [those] freedoms.” [footnotes omitted]