United States v. Szabo

When a non-public forum implements restrictions on speech or conduct they do not necessarily violate the First or Fifth Amendments so long as the regulations administered are reasonable for the purpose of the forum and they are viewpoint neutral.

William Szabo is appealing a judgment under Title 38, Code of Federal Regulations § 1.218(a)(5) which classifies certain conduct as “disturbances” at Veteran Affairs (“VA”) facilities. As a veteran, receiving medical attention at the Sacramento VA Medical Center, Szabo’s deplorable behavior warranted supervision. As a result, he was required to have an escort while on the premises during appointments. During one of his visits, he attempted to check in, but was told that he did not have an appointment. Szabo then began to scream profanities. Szabo argues that Title 38, Code of Federal Regulations § 1.218(a)(5) violates his First and Fifth Amendment rights as applied to his conduct he demonstrated during the incident, and facially. On review, the Ninth Circuit affirmed the district court’s finding that Szabo’s behavior was not protected, and dismissed the facial challenge. The panel determined that Szabo’s behavior was not protected under the First Amendment because the VA Hospital was a non-public forum, therefore as long as the regulations that the VA Hospital administers and enforces are: (1) reasonable in light of the purpose served by the forum; and, (2) are viewpoint neutral, then deference must be given to them. As a result, Szabo’s behavior could easily be classified as a “disturbance” under Title 38, Code of Federal Regulations § 1.218(a)(5), and he was aware of what a “disturbance” was based on the fact that he was escorted to the appointment because of his negative behavior. However, the panel found that they did not have jurisdiction over the facial challenge because the statute specifically proscribes that facial challenges be made in the Federal Circuit based on Chapter 7 of the Administrative Procedure Act. As a result, Szabo did not utilize the correct avenues throughout which to facially challenge this statute. AFFIRMED in part, DISMISSED in part.