Official Opinion 93-8
Acting Executive Director
Georgia Building Authority
The sale of goods, wares or other objects, when incidental and collateral to free speech activity otherwise permitted in a designated public forum, may not be prohibited under the Buildings and Grounds Policies of the Georgia Building Authority or O.C.G.A. § 50-9-9(b), but is subject to reasonable time, place and manner regulation.
You have requested an opinion concerning whether the sale of items during demonstrations that occur in designated public forum areas on the grounds and in the vicinity of the State Capitol can be prohibited.
The Buildings and Grounds Policies ("Policies") adopted by the Georgia Building Authority ("GBA"; "Authority") designate the sidewalks and patios of the Capitol and the patios at either side of the front, plaza entrance of the Floyd Building as a "public forum" for speech and expression of opinion. The Policies do not specifically address the sale of goods. However, O.C.G.A. § 50-9-9(b) makes it unlawful, without [*2] prior express written consent, for "any person, firm, group, organization or other entity to beg, panhandle, solicit, or to sell goods, wares, or any other objects or services within any buildings or on the grounds, sidewalks, or other ways owned by or under the control of the state, its agencies, authorities, commission, boards, bureaus and other state entities." (Emphasis supplied). n1
n1 Subsection (e) of the Code section makes subsection (b) applicable only to buildings, facilities and improvements adjacent to the State Capitol, and exempts persons doing business with the Department of Administrative Services.
In a designated public forum, as in a traditional public forum, the government may impose time, place and manner restrictions on speech which are content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983). The nature of a place and the pattern of its normal activities dictate the kinds of regulations of time, place and manner that are reasonable. Grayned v. City of Rockford, 408 U.S. 104, 116 (1971). [*3] n2
n2 The GBA Policies have been reviewed and upheld by a court, in a different context. See Chabad-Lubavitch of Ga. v. Harris, 752 F.Supp. 1063, 1068 (N.D. Ga. 1990).
While a distinction has been made between speech that does "no more than propose a commercial transaction" and other varieties, see Virginia Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748, 771-72 n.24 (1976), citing Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 385 (1973), if the commercial activity is "merely incidental and collateral to" the main object of dissemination of speech, it is also protected by the Constitution. See Murdock v. Pennsylvania, 319 U.S. 105, 112 (1943). Thus, written materials can be sold and contributions or gifts solicited in conjunction with free speech activity. See Heffron v. Int'l Soc. for Krishna Consciousness, 452 U.S. 640, 647 (1980).
By designating areas for "speech and expression of opinion" through its Policies, the Authority has expressly consented to and authorized other activity incidental and collateral to such speech in those areas. The public policy against unreasonable interruptions and disruptions of state employees [*4] in the performance of their public duties, as outlined in O.C.G.A. § 50-9-9(a), may represent a legitimate governmental interest furthered by restrictions on solicitations and sales in the Capitol and its environs. See generally, Jeannette Rankin Brigade v. Chief of Capitol Police, 342 F.Supp. 575, 585 (D.D.C. 1972); State v. Boone, 243 Ga. 416, 420 (1979).
However, in light of the Policies promulgated by the Authority for public forum areas, as well as constitutional tenets discussed, the proper application of O.C.G.A. § 50-9-9(b) in the designated areas is to proscribe activities that "do no more than propose a commercial transaction" and are not "merely incidental and collateral to" free speech. n3
n3 The Authority can also consent to "purely" commercial activity, pursuant O.C.G.A. § 50-9-9(b); the standards by which such consent would be granted or denied should be plainly articulated. See Sentinel Communications Co. v. Watts, 936 F.2d 1189, 1207 (11th Cir. 1991), reh'g den., 947 F.2d 1492 (1991).
Therefore, based on the foregoing, it is my official opinion that the sale of goods, wares or other objects, when incidental and collateral to free speech [*5] activity otherwise permitted in a designated public forum, may not be prohibited under the Buildings and Grounds Policies of the Georgia Building Authority or O.C.G.A. § 50-9-9(b). However, such activity is subject to existing time, place and manner regulations contained in the Policies, as well as other statutory provisions. See, e.g., O.C.G.A. §§ 16-11-34.1(c) (unlawful to obstruct streets and sidewalks on Capitol Square); 50-16-5 (defacing or injuring Capitol building or grounds); 50-16-14 (disruption or interference with normal activities on state property or buildings housing state agencies).
RAY O. LERER,
Senior Assistant Attorney General