Can the Vermont State House restrict the display of a publication with sexually explicit cartoons in its public cafeteria?

Plain-English summary

The Sergeant at Arms asked whether the State House could restrict the display of "Out In The Mountains," a publication then placed in the State House cafeteria, on the ground that one issue contained sexually explicit cartoons. Assistant Attorney General Michael McShane analyzed the question through the U.S. Supreme Court's public forum framework. He concluded that the cafeteria was a designated public forum because it was open to the public, hosted public meetings and lobbying, and already housed at least one other publication for distribution.

In a designated public forum, the same strict scrutiny that applies to streets and parks governs content-based restrictions. The opinion accepted that Vermont had a compelling interest in shielding minors from indecent material, citing Pacifica, Ginsberg, and Reno. So a regulation could keep the publication out of the hands of minors who frequented the cafeteria (school groups, pages aged thirteen or fourteen). But the restriction had to be tailored: any rule that also kept the publication from adults would be unconstitutionally overbroad. And any rule that targeted depictions of homosexual activity while leaving comparable heterosexual depictions in place would be viewpoint discrimination, which is forbidden even in non-public forums.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

First Amendment doctrine on public forums and minors has continued to develop since 2000, particularly as state-property speech disputes have moved to digital and social-media platforms. The categorical analysis in this opinion still tracks the structure of the case law, but specific applications turn on facts the Court has revisited many times.

Historical summary

For state facility managers (at the time): The opinion told the Sergeant at Arms that any restriction had to be content-tailored, viewpoint-neutral, and limited to access by minors. A blanket ban on the publication would not survive review.

For First Amendment researchers: This is a worked example of how Vermont's AG applied the Krishna Consciousness forum analysis to a state-owned indoor public space that is open to the public during business hours. The opinion treats the cafeteria as a designated public forum because of its actual use, not its formal designation.

For minors-protection arguments: The opinion accepts the Ginsberg line of cases as authority for restricting minors' access to non-obscene indecent material, while warning that Reno v. ACLU's overbreadth concern requires the restriction to target the minors and not the adults using the same space.

Common questions

Was "Out In The Mountains" the kind of publication the State House could ban outright?
No. The opinion concluded that adults retained a First Amendment right to receive the publication in a designated public forum, even if the content was indecent for minors.

Could the State House have moved the publication to the mailroom (where other publications were displayed) instead of the cafeteria?
The opinion did not directly answer this, but the analysis suggests a viewpoint-neutral, location-based rule applied to all comparable publications could be defensible if the goal was to limit minors' incidental exposure.

Did the Vermont AG say the cartoons were obscene?
No. The opinion treats the cartoons as constitutionally protected for adults but indecent in a way that justifies shielding minors under the Pacifica/Ginsberg framework.

Citations and references

Constitutional provisions: U.S. Const. amend. I

Cases:
- International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992) (forum analysis framework)
- R.A.V. v. St. Paul, 505 U.S. 377 (1992) (viewpoint discrimination)
- FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (compelling interest in shielding minors)
- Ginsberg v. New York, 390 U.S. 629 (1968) (regulation of indecent material as to minors)
- Reno v. ACLU, 521 U.S. 844 (1997) (overbreadth in adult-access restrictions)

Source

• Landing page: https://ago.vermont.gov/about-attorney-generals-office/attorney-general-opinions
• Original PDF: https://ago.vermont.gov/sites/ago/files/2025-11/IO%203-17-00.pdf

Original opinion text

Informal Opinion #2000-1
March 17, 2000
Kermit R. Spaulding
Sergeant At Arms
Vermont State House
Re: Cartoons in Out In The Mountains
Dear Mr. Spaulding:
You have asked to what extent display and distribution of the above-mentioned
publication may be regulated in the State House.
It is my understanding that the publication in question is often displayed in the
State House Cafeteria as is one other publication. The concern is that the publication
contains cartoons that are sexually explicit. The January edition of the publication
contains cartoons that depict sexual activity including depictions of intimate sexual
contact.
As you know the First Amendment limits the extent to which speech can be
regulated. The United States Supreme Court has held that the government need not
permit all forms of speech on property that it owns and controls. The Court has adopted
a "forum based" approach for evaluation of restrictions that the government seeks to
place on the use of the property. The Court has recognized three distinct categories of
public property: traditional public forum, designated public forum, and nonpublic forum.
International Society for Krishna Consciousness. Inc. v. Lee 505 U.S. 672 (1992)
A traditional public forum is property that has as a principal purpose the free
exchange of ideas. In a traditional public forum, which includes places such as streets
and parks, the government may not prohibit all activity that communicates information
and opinions. Content-based exclusions are possible but the exclusion must be
necessary to serve a compelling state interest and must be narrowly drawn to serve that
purpose.
A designated public forum differs from a traditional public forum in that it is not a
public space that is historically associated with free expression. It is a place that the
state has opened for use by the public and in which expressive activity has been
allowed. In the case of a designated public forum the state need not indefinitely retain
the open character of the facility, but as long as the facility is open to the public, the
state is bound by the same standards that apply in a traditional public forum.
Public property that is not by tradition or designation a forum for public
communication is considered a nonpublic forum. Places such as the interior of
government owned office space would be considered nonpublic forum. In places that
are not a public forum regulations concerning expression need only be reasonable, as
long as the regulation is not an effort to suppress the speaker's activity due to
disagreement with the speaker's view. Stated differently, even in nonpublic forums a
regulation will not be upheld if it discriminates on the basis of the speaker's viewpoint.
Obviously, before determining the degree to which expression may be regulated
in the State House cafeteria it is necessary to determine the cafeteria's nature as a
forum. It is my understanding that the cafeteria is open to the public when the State
House is open, that public meetings are sometimes held there and that lobbying occurs
there. I also understand that the publication in question and "Seven Days" are the only
two publications that have recently been displayed for distribution in the cafeteria. Other
publications are displayed in the State House mailroom.
Given that the State House cafeteria is a place that the state has opened for use
by the public and in which expressive activity has been allowed, I conclude that it falls
within the definition of designated public forum. As such, there are strict limits on the
extent to which communicative activity can be regulated. Any limitation or exclusion
based on content must be necessary to serve a compelling state interest and be
narrowly drawn to achieve that end. Additionally, the regulation may not be designed to
suppress a particular viewpoint. R.A.V. v. St. Paul 112 S. Ct. 2538 (1992)
It is my understanding that the principal concern is that children not be exposed
to sexually explicit material. I also understand that the cafeteria is frequented by groups
of school children. Many of those children are under the age of twelve. Additionally, the
cafeteria is frequented by legislative pages. The usual age of pages is thirteen or
fourteen.
The United States Supreme Court has recognized that there is a compelling
interest in protecting the physical and psychological well-being of minors which extends
to shielding them from indecent materials that are not obscene by adult standards. FCC
v. Pacifica Foundation 438 U.S. 726 (1978)
In Ginsberg v. State of New York 88 S.Ct. 1274 (1968) the Supreme Court found
a New York statute that prevented the distribution of materials to children to be valid
even when the materials in question were constitutionally protected concerning adults.
The materials involved in Ginsberg were magazines that were described in the Court's
decision as "girlie" picture magazines. The magazines contained photographs
containing some degree of nudity. There is no indication in the Court's decision that the
magazines at issue contained photos or drawings involving sexual activity or sexual
intercourse.
Given the above-mentioned United States Supreme Court decisions it is
reasonable to conclude that the First Amendment does permit some regulation of
materials that depict sexual intercourse, particularly in the context of access by minors.
Regulation may occur even in a designated public forum such as the State House
cafeteria. However, in order to be consistent with the First Amendment the regulation
must be limited in a number of ways.
Any regulation that restricts access of adults to the publication in question is
likely to be constitutionally objectionable as over-broad. Reno v. American Civil Liberties
Union 117 S. Ct. 2329 (1997) Therefore, the regulation would have to be limited to
making displays of the publication within the State House unavailable to minors.
Any regulation that is designed or appears to be designed to suppress a
particular viewpoint would not be consistent with the First Amendment. For that reason,
a regulation that restricts minors' access to material depicting homosexual activity while
not restricting minors access to material depicting similar heterosexual activity is
unlikely to survive judicial review. In this regard it would be helpful to prepare written
guidelines and to take steps to ensure that the guidelines are applied evenhandedly.
To summarize, it is my opinion within the context of your inquiry, that it is
constitutionally permissible to prohibit access by minors to displays within the State
House of material that depicts intimate sexual activity. Such regulation is likely to be
impermissibly overbroad if it also restricts the access of adults to such materials. Any
regulation that prohibits or restricts access to material that depicts homosexual activity
without prohibiting or restricting access to material depicting similar heterosexual activity
is likely to fail because of its tendency to suppress a particular viewpoint.
I hope that this is responsive to your concerns.
Very truly yours,
Michael McShane
Assistant Attorney General