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IntroductionWhen you conduct purely expressive activities, like conveying messages of an ideological, philosophical, religious, or political nature (known as particular message speech), on traditional public fora, it elevates the expression to the full protection of the First Amendment. What makes these fully protected expressions unique is that they, and items inextricably intertwined with the particular message expression, can be exchanged for remuneration without a license, permit or other regulatory restrictions that do not pass the strict scrutiny of judicial review.
Stated more simply, social justice activists, community organizers and non-profit organizations can use parks and sidewalks to disseminate information, create discussions, raise awareness, and gain the support, both financial and social, they need to further their mission, and they can do so without a license, permit or other unnecessary restrictions. |
Messenger RightsPhilosophic, religious, ideological, political, scientific and charitable messages, collectively known as particular message expressions, and items inextricably intertwined with those expressions, are considered purely expressive. That means they can be shared, and exchanged for remuneration, on traditional public fora, without a business license, street vendor permit or other regulatory restrictions that do not pass the strict scrutiny of judicial review.
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Additional Resources |
Particular Message Expression
Let's look at some examples to help further illustrate this aspect of First Amendment protected expression. All of the following examples assume you are on traditional public fora:
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You have the right to use the public fora to hand out literature for the Golden Apple Corp., a Fraternal Order that celebrates the Goddess Eris, and exchange golden apple figurines for remuneration.
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You have the right to use the public fora to inform people that you are running for political office. You can collect donations for your campaign and exchange buttons with your campaign slogan for remuneration.
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You have the right to use the public fora to inform people about their First Amendment right to use traditional public fora to conduct fully protected expressive activities. You can collect donations or exchange stickers with your insignia for remuneration.
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Inextricably Intertwined
An item may be inextricably intertwined with a particular message in two different ways. Either the item itself bears the protected message, or the item does not bear any message, but is imbued with meaning through the expressive conduct. Let's look at a few examples to help illustrate this point.
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You are passionate about creating a community that is accepting of all faiths and cultures. You want to use the public fora to disseminate this message.
These bumper stickers, bearing images and phrase that are symbolic of your message, are inextricably intertwined with your expression and can be exchanged for remuneration. |
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You are passionate about saving the whales and you want to use the public fora to disseminate that message. You set up a table with a banner that says, "Save the Whales" and you have brochures that educate people about the issue.
In this case, an item may be intrinsically intertwined with the expression, even if it lacks images or phrases with your message. The fact that it is |
Test Your Knowledge
Lets look at a hypothetical situation to see if you can determine which of the given examples could be intrinsically intertwined with a particular message, which itself is fully protected, allowing the item to be excahnged for remuneration without a license.
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#1 Senior Dog Sanctuary:
You are a lover of senior dogs & want to encourage others in your community to consider adopting a senior dog for their next canine companion. You decide to set up a table in the park to hand out fliers and talk to people about senior dog adoption. Which of the following three items could be 'inextricably intertwined' with your expression and exchanged for remuneration? |
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Great! You are now able to identify items intrinsically intertwined with a particular message. But before you are ready to conduct your first public display of particular message expression, there are still a few things to consider.
Time, Place & Manner
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It is legal for a city to establish narrowly tailored time, place, and manner restrictions so long as they are equally applied to all persons and manner of expression. If there are no specific ordinances in your community governing fully protected expressive activities, remember that you have the same responsibilities as every other person in the park, on the sidewalk or in the plaza. You must be in compliance with all health and safety regulations that apply to all persons.
If, for example, you want to conduct purely expressive activities in a local park, you must abide by the posted open and close hours. Your community may have rules which prohibit the use of shade structures for all park users, and those rules will apply to you as well. Special EventsMany communities host special events throughout the year: farmers markets, arts and culture festivals, and food truck events are a few examples. Often times these events are held on traditional public fora and are free and open to the public.
The First Amendment protects your right to conduct fully protected expressive activities inside the boundaries of these events and you do not have to pay a fee to the event organizer. All other health and safety guidelines (see below) should be followed. In our experience, purely expressive activities conducted inside the boundaries of a special event are likely to draw the most attention from authorities. These events are big business; the event promoter and city benefit financially. Your actions threaten their business model and upset their commercial clients who pay for their space. Be prepared if you are challenged by the event promoter or law enforcement (see below). |
Helpful Guides |
Basic Guidlines
Do not hang from or lean items on any buildings or other structures including lamp posts, parking meters, benches, and trees.
Maintain at least ten feet of radiance between you and any crosswalk, bridge, fire hydrant, bus stop, any entrance or exit doorway, wheel chair ramp, green, yellow or red zone, and do not obstruct a sign.
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Keep your display to a maximum of 10 ft. x 10 ft. This includes any space you may need for table, chairs, easels, or props.
Avoid having anything taller than 8 ft as part of your display, including shade structures. 
Leave at least 5 ft of clear passage way for pedestrians. Consider the space that people viewing your art may occupy when making this determination.
Be at least 18" away from the curb. 
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Encounters with AuthoritiesIf you are privileged enough to be able and willing to assert your rights (not all people in all situations can and for good reasons), your actions can protect your rights and the rights of more vulnerable classes of people who are unable to secure their rights for themselves.
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Helpful Guide |
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Three Goals Document Inform Don’t Get Arrested |
Document the Encounter
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Done correctly, these steps can give you leverage to begin a conversation with your local representatives to create meaningful change in your community. Contact a City Council member or search for an Arts & Culture committee and tell them your story.
Tips for Success
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Choose a High Traffic Area
Do Not Obstruct Traffic or Pedestrians No Hawking, or Selling To People in Vehicles |
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Be Prepared for:
Sun Wind & Precipitation |
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Smile: It goes a long way.
Hello: Waving is acceptable. Introduction: Tell them your name. Name: Ask for their name. Eye Contact: Not too much. That can be creepy. |
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Bring a Friend
Remember Water & Snacks Have a Plan for Breaks |
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