United States Island Law

The laws around the use of traffic islands, and public space in general, vary around the world.  In the United States, while it is an open question of the law, a traffic island with pedestrian access is most likely considered a Traditional Public Forum and protected by the First Amendment. This accords these spaces with the most extensive protection of first amendment rights of peaceable assembly. But traffic islands are actually the freest place the in American city to gather in public. This is because they are less restrictive for gathering than other traditional public fora (i.e. sidewalks require a permit to gather because pedestrians would be blocked and parks and beaches have various restrictions such as being closed at night).

These islands of public are specs of city in a sea of urbanization…shrinky-dink piazzas hidden in plain view by the velocity of the everyday. They are found around the world, with varying elements, they tell a story of the urban built environment through the geometry of the city, its laws and pathways.

Please keep in mind the following to ensure that your visit to one of these traditional Public Fora , a gem worthy of a National Park status in the U.S., is filled with great experiences and memories:

  • The island must have pedestrian access (i.e. there is a crosswalk or sidewalk).
  • Your visit cannot interfere with any substantial government interest such as traffic and public safety.  In other words, activities can’t block pedestrian access, be dangerous to vehicles or block the line of sight from one side of the street to the other side.
  • Your visit cannot interfere with other expressive and non-expressive usages of the island
  • A permit is not needed, just use your common sense to make sure you aren’t endangering yourself or anybody else.  If your group is very large (i.e. over 50), in some cities you may need a permit.
  • You cannot obstruct vision from one side of the street to the other, which could be construed as a public safety concern as it might be hide illegal activity from a police officer’s line of site.
  • Amplified sound is also most likely not allowed although a small stereo like you would use at the beach is most likely fine.
  • You cannot permanently alter the landscape. You can have temporary structures as long as they do not block the line of sight from one side of the street to another or in any other way obstruct or cause risk to pedestrians or vehicular traffic.
  • Gardening requires permission from the city.  In California, government code section 4216 prohibits digging in publicly owned property without permission with fines reaching up to $50,000. While this code may appear to be directed to construction and excavation, it could be applied to any form of digging with a tool. In California, there is no digging allowed on public property
  • Type of activity – entertainment: the use of islands is dependent on their use for peaceable assembly. There is a question as to whether a community gathering such as a picnic or playing music qualifies. Historically, the courts did not view playing music for entertainment as peaceable assembly. Only activities that were politically motivated for gathering to discuss and influence decisions about the common good were protected. Please see In re Flaherty, 38 P. 981, 983–84 (Cal. 1895) and the last bullet point of legal cases listed below. But the freedom of speech has evolved and under the public forum doctrine it may be protected. There is another issues to consider. One may argue in today’s built environment that gathering for community purposes is a form of peaceable assembly because the very act of being able to gather in public spaces without spending money to socialize is increasingly difficult, particularly in many urban areas in the country. In this sense, gathering at an level in itself becomes a form of engaging in the common good.
  • Type of activity – selling/commercial: Islands are used extensively to sell fruits, flowers, etc by immigrants (see 71 year old man… and Tasty Cherries) and this is condoned by cities. But regarding First Amendment law, the use of islands for selling such as a mini flea market or bazaar is unlikely to be protected as peaceable assembly under the First Amendment or the Public Forum Doctrine. Commerce is private act that is not about discussing and influencing the common good. Instead, it is about influencing the private good. Special note: if you are selling is art you may wish to consult with a lawyer as it may be protected under free speech but since this site focuses on the non-commercial use of the spaces it hasn’t been researched thoroughly.
  • Note: ordinances may vary by city and state. For example, in Santa Monica you are only allowed to walk or jog and in some cities a permit may be required for large groups to gather. In New York city, if you re-enact the hisstory of street life in the U.S. by conducting a parade on a traffic island, not that processesions require permit if they are a parade. In NYC, a “parade” is any procession or race which consists of a recognizable group of 50 or more pedestrians, vehicles, bicycles, or other devices moved by human power, or ridden or herded animals proceeding together upon any public street or roadway. If you plan to gather with more than 50 people on a traffic island, take note. Information on obtaining a permit from the NYPD. This law was the result of Critical Mass bike rides and was reported on by the NY Times. A recent court case failed to overturn the law: see Streetblog
  • Outside the United States: islands are a global artifact. The laws above are based on the United States. For a perspective on the global narrative of traffic islands, visit this island world map.

The law in the United States is a complex interplay among the constitutions, congress, judicial system and cities’ ordinances.  From a legal standpoint, nothing is certain until the Supreme Court has ruled on it, and even then there are cases where the court has reversed a previous Supreme Court ruling.  Thus, to be legally precise and accurate, it is only possible to say the most likely traffic islands with pedestrian access are considered public fora.  There are several legal rulings based on the First Amendment and its protection of free speech (which can be language as well as conduct) and peaceable assembly.  For example:

  • Hague v. CIO (1939), Supreme Court Justice Roberts wrote: ”Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.” In this case, the high court ruled that peaceful demonstrators may not be prosecuted for “disorderly conduct” and also secured streets and sidewalks as public forums.
  • Warren v. Fairfax (1997), in the 4th Appellate Court ruling in Virgina on, Judge Murnaghan wrote: “[P]eople have been engaging in [expressive] activity on median strips for as long as median strips have been in existence. Newspaper criers, local civic fundraisers, members of political campaigns, religious groups, and people with a message have often chosen median strips, with their ready access to the bustle of undifferentiated humanity, as their preferred launching point for expressive conduct.”
  • Opinion from Munger, Tolles & Olson (2008) “[Traffic islands] are public thoroughfares to which the public has open access, and they are therefore inherently compatible with expressive activity. In ACLU of Nevada, the Ninth Circuit held that a pedestrian mall created out of several blocks of Las Vegas’ main downtown street was a traditional public forum.  The court focused on the mall’s use as a public thoroughfare, which by definition is “inherently compatible” with expressive activity.   The court explicitly rejected the proposition that a space must have a primary purpose of facilitating public assembly or expression to be a traditional public forum, a proposition the district court had relied on in holding that the mall was not a public forum because it had been created for the purpose of stimulating economic growth, not promoting expression.” from Munger, Tolles & Olson which provided Islands of LA with pro-bono legal advice on the First Amendment protection of traffic islands for free speech and assembly.
  • United States v. Cruikshank, 92 U.S. 542 (1876), the Supreme Court said that the “right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers and duties of the national government, is an attribute of national citizenship, and as such, under the protection of, and guaranteed by, the United States.” The high court applied the liberty only to any federal government’s encroachment.
  • De Jonge v. Oregon, 299 U.S 353 (1937), the U.S. Supreme Court unanimously ruled that the right to peaceably assemble “for lawful discussion, however unpopular the sponsorship, cannot be made a crime.” The decision applied the First Amendment right of peaceful assembly to the states through the due process clause of the Fourteenth Amendment.
  • Thornhill v. Alabama, 310 U.S. 88 (1940), the Supreme Court held that orderly union picketing that informs the public of issues is protected by the constitutional freedom of speech of the press and the right of peaceable assembly and cannot be prosecuted under state loitering and picketing laws.
  • Edwards v. South Carolina, 372 U.S. 229 (1963), in an 8-to-1 decision, the high court overturned the breach of peace convictions of 180 black students who had peacefully marched to the state capitol to protest discrimination. The police stopped the demonstration and arrested the students because they were afraid that the 200-300 who gathered to watch the demonstration might cause a riot. The court held the state law unconstitutionally over-broad because it penalized the exercise of free speech, peaceable assembly, and the right of petition for a redress of grievances. A disorderly crowd, or the fear of one, cannot be used to stop a peaceful demonstration or cancel the right of peaceable assembly.
  • In re Flaherty (case law excerpt and additional text from The Neglected Right of Assembly by Tabitha Al Haj), P 577-578: To the twentieth-century legal mind, these outcomes are hard to reconcile because we see all of these cases as about an individual’s right of free expression, which includes both the right to march and the right to express oneself musically. But within the worldview of these nineteenth-century judges, music, while part of American traditions of democratic politics, was not constitutive of any constitutional right. This is made clear in the following passage from In re Flaherty in which the parade cases are distinguished: “The cases cited [by the Petitioner] all deal with ordinances regulating the right of the people to have processions or parades in the streets; and it is this right that is discussed, although the accompaniment of music is mentioned in some of the ordinances. . . . But the proposition that a man has a natural, ingrained, inviolate, common-law, or constitutional right to beat a drum on the traveled streets of a city has no foundation in reason or authority.” Therefore, “[t]here is no need of discussing the general power and right of a city to prohibit such noises on the streets as those made by the beating of drums.”

For more information on the Public Forum Doctrine, please visit Freedom Forum’s website.

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