The Public Access Doctrine : Our Constitutional Right To Sun, Surf, And Sand

Before Brenden Leydon came along, the Town of Greenwich, Connecticut had an ordinance that banned out-of-towners from its beach. Leydon, however, wanted to jog down the Greenwich Point Beach and, believing he had a right to do so, filed a lawsuit against the Town. His right to jog on the beach, he first argued, was rooted in the public trust doctrine, an ancient law developed by a Roman Emperor who may have believed, as Leydon did, that something special about the seashore made it a place that everyone should be able to access. Leydon next argued, under a more modern and familiar doctrine, that his right to free speech and expression was violated when he was prevented from accessing the beach and “exchanging ideas and information with other park users.” He lost. The trial court noted that while the public trust doctrine is well known, there was no authority to apply it to this case. He appealed and won on the grounds that the public trust doctrine did apply, and that the town ordinance violated it. The appellate court noted that “[f]or almost two centuries, our Supreme Court has discussed the concept that land held by a municipality as a public park or public beach is held for the use of the general public and not solely for use by the residents of the municipality.” The Town appealed, and the Connecticut Supreme Court reached yet another outcome, one that differed from both of the lower courts. It found that Leydon had a right to the beach not on the basis of a doctrine handed down from the Roman Empire, but as a right of expression. It is not surprising that faced with a question regarding who has rights to access the beach, three different courts came to three different conclusions. The nation’s beaches are more crowded than ever. Each year, the nation’s beaches host approximately two billion visits, more than twice the number of visits to the combined “properties of the National Park Service (286 million) Bureau of Land Management (106 million) and all state parks and recreation areas (767 million).” The handling of the Leydon decision reflects three approaches for dealing with the tension between the rights of beachfront property owners, whether private or municipal, and the increasing public demand for the beach. This Comment will examine the approach of two states still adhering to a narrow interpretation of the ancient public trust doctrine that limits public access. It will then explore the possibility of a new public access doctrine based on authorities inherent in both the public trust doctrine and freedom of expression. The two doctrines are distinct and have developed from separate bodies of law with different historical underpinnings. But both of them are based on the notion of obligations incumbent upon the government by virtue of its ownership or, in the case of the public trust doctrine, stewardship, of certain types of property. Part II of this Comment will examine the public trust doctrine, focusing on its application in states that have interpreted it broadly. Part III will examine the doctrine as it exists in Maine and Massachusetts, where courts have so far refused to use it as a tool for opening up the beaches for the general public. Part IV will examine the public forum doctrine, the notion that there are places such as “streets and parks” that, by their very nature as public fora, must remain open to those who wish to exercise their freedom of speech and expression. Part V will further compare the fundamental values underlying both doctrines. Part VI will examine the Leydon decision in detail, focusing on the use of the public forum doctrine as a means of gaining access to the beach. Finally, Part VII will propose a new “public access doctrine,” a concept that merges the state ownership interests granted through public trust with the constitutional protection afforded public fora, to achieve a potent new argument in favor of opening up the nation’s beaches. It is important to acknowledge the difficulties of achieving a pure synthesis of the two doctrines. Most significantly, the public forum doctrine typically deals with property owned by the government; the public trust doctrine deals with property that the government holds in trust for the public welfare, even though actual title to the land may lie in private hands. Also, the public forum doctrine deals with free speech and expression. The public trust doctrine, on the other hand, grants access for the purposes of fishing, navigation, and, in most states, recreation. Finally, the public trust doctrine is derived from state common law, while the public forum doctrine is rooted in constitutional precedent dealing with limits the government can impose on free speech. Despite these differences, the Connecticut decision highlighted the fundamental interests that are inherent in both doctrines, and that are at stake any time a fence is erected between the beach and people who want to use it