A group of Brooklyn community activists has lost its six-year legal battle for access to the waiting rooms of welfare offices, now known as Job Centers. The group's staff attorneys and volunteers had sought to provide information, literature and translations, as well as to act as advocates for welfare recipients and claimants at the centers.
The group, Make The Road By Walking which was founded in 1997, describes itself as a membership-led organization whose hundreds of members are primarily low-income Latino and African-American residents primarily of Bushwick, Brooklyn. Make The Road (its name comes from the saying "We make the road by walking.") engages in community organizing, offers training, and provides services.
In the case of Make The Road by Walking, Inc. v Turner, the federal courts have upheld New York City's ban on the presence of advocacy organizations such as Make the Road by Walking and the Legal Aid Society in welfare waiting rooms. The Second Circuit Court of Appeals, the federal court just below the Supreme Court of the United States, in a unanimous opinion by Judge Ralph K. Winter, affirmed the lower court's dismissal of claims of First Amendment and other constitutional violations.
In 1998, Make The Road By Walking requested access to the Job Center waiting rooms "to assist, inform, and represent claimants." The Job Centers are the division of the Human Resources Administration (HRA) that dispenses benefits, including welfare, Medicaid and food stamps. The city responded in writing that, "HRA declines to grant the access you seek, other than for the purpose of providing representation to a specific applicant or recipient."
After being denied access to the waiting rooms except to those who had previously been retained and were on the premises to represent a specific client, the organization filed the federal lawsuit in The United States District Court for the Southern District of New York on the legal grounds of the First Amendment, due process and equal protection. Judge Allen G. Schwartz dismissed the major claim, granting summary judgment to the city. (Judge Schwartz, who has since died, was, prior to his appointment to the federal bench, New York City's Corporation Counsel during the Koch administration.) He found that the city's policy would prevent overcrowding, and disruption in the waiting rooms, and would protect welfare claimants from becoming confused, and was therefore reasonable and concluded that there were no First Amendment or other constitutional violations.
All parties agreed that the speech of Make The Road By Walking is protected by the First Amendment. "However, notwithstanding that freedom of _expression... is a fundamental right, essential to our democratic society and accorded great weight by our courts, nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities."
For First Amendment purposes welfare offices are not public in the way that streets and parks are. While they are public in the sense that anyone can walk in, visitors not there on "official business" will be asked to leave. Judge Winter found that Make the Road By Walking was not there on official business as defined by the City and that the government had never intended to open the Job Centers to the public. Therefore, the waiting rooms are nonpublic.
In determining that the centers are nonpublic, the appeals court opinion draws on the legal history of welfare advocacy in welfare centers (including references to some fights that broke out when welfare applicants did not receive the benefits the advocates told them they were entitled to), during the 1970s and 1980s, when access was permitted, as well as Supreme Court decisions in the areas of free speech and solicitations in other venues such as airports and army bases. The court concluded that government intent was key, and that "the use of HRA premises shall be limited to the transaction of official business and such other activities as may be specifically authorized by the HRA ... . Distribution of written material is limited to releases issued or sponsored by HRA... . HRA defines its official business and 'limits third party access to Centers and their waiting rooms to those individuals who are part of the transaction of HRA's official business.'"
The Court of Appeals has now determined that the centers are not public because the government does not intend them to be public, that the restrictions on speech in a non public forum are reasonable, that the presence by Make The Road By Walking was not for "official business" even if its business was welfare rights, and that the organization's staff might cause "vulnerable claimants" to feel confused and exploited. With this decision, Make The Road by Walking has reached the end of this road.
No information was available about an appeal to the Supreme Court of the United States. Make The Road By Walking was represented by The Brennan Center for Justice, The Welfare Center, New York Legal Assistance Group and White & Case. The City was represented by Corporation Counsel.
Emily Jane Goodman is a New York State Supreme Court Justice