A man shouted at BHPD officers as he walked through the National Night Out Against Crime celebration on Aug. 6 in Beverly Hills. The city is considering creating a designated area for demonstrators at its events. (photo by Tabor Brewster)

At its Aug. 21 City Council meeting, the city of Beverly Hills considered adopting “free speech zones” – areas near city-hosted events where protestors and demonstrators would be able to express themselves on a first-come-first-serve basis.

According to a city staff report, the space would be limited and individuals would only be able to utilize the zone once per month. While the city has yet to implement or approve any such policy, the possibility has raised questions from residents and First Amendment experts.

“In America, every place is a free speech zone. You get to speak everywhere. Free speech is not something that is supposed to be separated off from everyone else and limited to certain times and places,” Loyola Law School professor Aaron Caplan said.

Caplan teaches constitutional law and civil procedure at Loyola Marymount. He was a staff attorney for the American Civil Liberties Union, where he litigated First Amendment cases. He said free speech zones are an exceptionally rare idea in the United States, where freedom of speech is federally protected by the First Amendment of the Constitution.

However, some universities have attempted to create free speech zones to mitigate the effects of student protestors. Free speech zones on college campuses have often resulted in lawsuits from groups like the ACLU and the Foundation for Individual Rights and Expression. According to FIRE, as of December 2018, 11 states have passed legislation that outlaws free speech zones on college campuses. California currently does not have any laws barring free speech zones at universities. Free speech zones have also occasionally been put in place at political rallies and conventions in years past, such as both the Democratic and Republican National Conventions.

Free speech zones have been used outside the U.S. In 2008, the Chinese Communist Party established three free speech zones to allow protests during the 2008 Olympic Games in Beijing, where speech is usually heavily restricted.

However, it is unclear if any municipality in the United States has ever enacted a similar policy on free speech zones, or whether it would be legal for Beverly Hills to do so. Caplan explained that the government is allowed to impose “time, place or manner” restrictions on speech, but not restrictions on content of speech.

“A great example is a noise ordinance,” Caplan said. “You can say whatever you want, but it can’t be over 75 decibels. Or it can’t be a certain distance of a school that’s in session, or a hospital. These are things about the time, place or manner of the speech and not about the substance of the speech.”

However, he said that to enforce a free speech zone during a city-hosted event, the city may run into many issues surrounding the content of the speech.

“A free speech zone – it’s obviously about place, and it’s obviously about time and manner. But the question is, is it really neutral with regard to your speech?” Caplan said. “Let’s say I am walking through the [Concours d’Elegance] car show and I have a button on my shirt that says ‘vote for Harris’ or ‘vote for Trump,’ and they’re going to say, ‘if you you’re going to wear that button you have to go stand in the free speech zone.’ They’re going to have to have some kind of definition. They’re saying you can’t demonstrate unless you’re in the free speech zone. Well what does demonstrate mean, if the only way you can tell the difference between someone who’s demonstrating and someone who’s not demonstrating is to think about what their words are?  If I have a shirt that says ‘have a nice day,’ I’m not demonstrating. If I have a shirt that says ‘free Gaza,’ I am demonstrating. Well now you’re limiting my speech, you’re not just limiting the time place and manner. It’s like saying ‘oh, if your speech is demonstration-type speech, then you have to go stand in a corner.’ So that’s a big problem… If it hinges on the content of the speech, they can’t do it.”

In a statement, the ACLU of Southern California echoed Caplan’s concerns over the potential free speech zones.

“Governments may impose some restrictions on when, where and how people can speak in public spaces, but only if the rules are clearly defined, narrowly tailored to important government interests and allow for other ways for people to get their messages out,” said Jonathan Markovitz, a senior staff attorney for ACLU of Southern California. “However, any attempt by Beverly Hills to declare broad swaths of public space off limits to protest would be unconstitutional and would needlessly expose the city to the risk of costly litigation that it would surely lose.”

A proposal for free speech zones has not been approved, and city staff will return before the City Council with an additional staff report on the subject.

Beverly Hills Deputy City Manager Keith Sterling emphasized the preliminary nature of the discussion, stating that the idea will need to undergo further examination before anything is approved. He said the issue crosses multiple departments that work on events, including Community Services, Public Works and the BHPD.