The seemingly simple proposal that Princeton lease one or both Nassau Street kiosks to the Princeton Regional Chamber of Commerce is a policy and constitutional quagmire the town would do well to avoid unless it turns over administration of the kiosks to a broad-based non-profit entity, such as the Arts Council of Princeton.
Indeed, the merchant association’s stated goal of cleaning up the messy kiosks offers an excellent opportunity for a partnership between the merchants and the non-profit community that could benefit both — and the community as a whole.
But a long-term lease of the kiosk to a commercial group alone would defeat the purpose of the kiosk – which is to provide a public forum for a wide variety of views free of economic considerations – and begs constitutional challenges to kiosk administration that would inevitably draw the town into expensive litigation.
Situated on the sidewalks of the town’s main street, the kiosks are in the midst of what the U.S. Supreme Court has called the “traditional public forum” in which the free speech rights of the citizen cannot be limited or constrained except for reasonable, content-neutral regulations.
The Court, in its 1939 decision Hague v. C.I.O., pronounced the public streets and parks to be traditional public forums that “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.” Based on this doctrine, the Court barred Jersey City mayor Frank Hague from blocking a labor protest on city streets. The Hague decision has been repeatedly affirmed and applied in innumerable ways to bar government restriction of speech in the public fora.
Princeton’s Nassau Street kiosks are the very epitome of the “traditional public forum” protected by the Hague decision. The kiosks are situated on the public streets accessible to every pedestrian at any time, and they have been used for decades solely to enable the public free communication on any subject.
Now, the merchant association seeks control of the kiosks to offer advertising that will favor its members and for the admitted purpose of sanitizing the structures. Such an arrangement furthers the creation of a mall-like Disney-downtown, which is anathema to a vibrant and free community. Of greater concern, the merchant association control over the kiosks implicates the First Amendment concerns expressed in Hague v. CIO.
We doubt that either the municipality or the merchants association has given proper consideration to these questions and the risk that the kiosks, if administered by the merchants, would likely drag the community into unnecessary administrative and constitutional confrontations.
Such difficulties would be much less likely if the town were to permit the merchant’s association to refurbish the kiosks, leaving the administration of the structures to a non-profit entity with broad-based, diverse public support, like the Arts Council. While the Arts Council, too, would be subject to content-neutral limitations in its administration of the kiosks, the broader-based, non-commercial mission of the Arts Council would tend to insulate it from administrative and constitutional challenge.
Further, by bringing the cultural and merchant community together, such a partnership would further the goals of all concerned, particularly the town as a whole, which does not need or want a mall or Disney-like downtown.
The kiosks are unique public fora that should not be used for paid commercial advertising or as a platform for any particular group. To allow any kiosk to function that way would be to betray its purpose: to be a place where anyone may speak on equal terms, on any matter, free of charge, free of content control, and free of the prevailing commercial theme on Nassau Street.
This proposal is not new. When the present kiosks were first created in the early 1990’s, prominent merchants opposed the kiosks on the ground that they were unsightly. The Arts Council took over kiosk administration, and that administration has been free of legal challenge since. It would be wise to build on that tradition, and to invite the merchant association to support it by lending a hand to a non-profit group in refurbishing the kiosks, bringing them up to date, and keeping their essential function as we have known and enjoyed them over the years.
Bruce Afran teaches First Amendment law at Rutgers-Newark Law School. Roger Martindell’s grandfather, a federal judge, issued the 1938 injunction against Jersey City’s Mayor Hague that led to the Supreme Court decision in Hague v. CIO.