This is Part Three part of a three part review by Professor Leora Harpaz of the material covered in my First Amendment Rights course during the Fall, 2012 semester.
First Amendment Rights Review - Part Three
III. Place of the Speech
The third variable that often controls whether or not speakers are entitled to exercise their First Amendment rights is the place chosen for the expression. This is particularly true where the place is property owned by the government. Some public property has been traditionally made available for expression thus classifying it as a traditional public forum and the government will have a more difficult time eliminating rights of access to such traditional public forums. The government can only regulate access to traditional public forums through the use of content-neutral time, place and manner regulations and by content-based techniques that satisfy strict scrutiny. By contrast, places that are not traditional public forums may not need to be made available to the same extent (depending on whether they are designated public forums or nonpublic forums) and the government may have an easier time justifying restrictions on access to such places. Nonpublic forums can be regulated by the use of reasonable regulations that do not discriminate on the basis of viewpoint.
To determine the standard of review to use in such cases, it is necessary to analyze the public forum status of the government-owned property where the speech is to occur.
A. Public Property and the Public Forum Doctrine
Over the years, a number of different approaches have been used to
determine whether members
of the public have access rights to government property. In general,
those approaches can be divided into two major ones. One approach
rights of access to
government property for expression if the expression would be
compatible with the principal use
of the property (a silent, but not a noisy demonstration in the reading
room of a public library). The other approach
divides government property into three categories with different access
rights attaching to the different categories. This approach allows the
government as landlord of the property to
determine how the property should be categorized and, therefore,
whether the property is available for expression (with the
exception of streets and
parks which must be made available).
Under Chief Justice Rehnquist, the Court adopted the categorization approach, taking the view that the government is entitled to decide whether particular government property, with the exception of streets and parks, will be available to the public for purposes of expression.
The Rehnquist approach, detailed in Perry Education Ass’n (PEA) v. Perry Local Educator’s Ass’n (PLEA), divides public property into three categories:
(1) traditional public forums (streets and parks);
(2) designated public forums; and
(3) nonpublic forums (government property that doesn't fall into the first two categories).
(1) Traditional Public Forums
The Court has only identified two types of government property that fall into this category. They are streets and parks; property, the Court recognizes, that has been made available to the public for purposes of expression since time immemorial. The use of a traditional public forum can be regulated, but the public has a guaranteed right of access to the use of the streets and parks, although as with all characterization issues it may sometimes be possible for the government to argue that a street is not a street (Kokinda) and a park is not a park. These forms of property can be regulated in two ways: content-neutral time, place, and manner regulations can be utilized to regulate access if the regulations satisfy the version of intermediate scrutiny utilized to analyze this type of regulation (to be constitutional, time, place, and manner regulations must be content-neutral, narrowly tailored to accomplish an important government objective, and leave open ample alternative avenues of communication) and content-based regulations can be used if the government can satisfy strict scrutiny review (least restrictive means to a compelling end).
(2) Designated Public Forums
Designated public forums are places that the government has
voluntarily and intentionally opened up for the
purpose of either all or certain kinds of First Amendment activities by
members of the public or
by a particular segment of the public. The government can regulate
access to a designated public forum in
the same ways it can
regulate access to a traditional public forum including through the use
of time, place and manner
restraints and by content-based techniques if the government can
satisfy strict scrutiny. Designated public forums can be
unlimited (available to
all members of the public for all types of expression) and limited.
Almost all designated public forums are limited in some way. A
limited public forum is a
forum that is created for a limited purpose. Such forums can be limited
in a variety of ways
including by speaker identitity (public school
facilities made available only to students at the school that created
the forum) and by subject
matter (a public comment session at a school board meeting available
discuss issues on the
school board’s agenda).
Examples of designated public forums include the Minnesota State Fair (Heffron), a municipal auditorium (Southeastern Promotions), and the Central Park Bandshell (Ward).
To identify whether property qualifies as a designated public forum
under the Rehnquist
approach, the critical issue is the government's intent (whether the
government intended to create a designated public forum). In discerning
intent, the Court looks at several factors:
(a) the policy and practice of the government.
These are the two main factors used to determine if the government intended to designate a place as a public forum. The government's "policy" is discerned by an examination of the government’s purpose in creating the forum, through evidence such as resolutions and other written or oral statements of purpose. This evidence is examined to determine if the government created the forum to provide an opportunity for expression by members of the public. The government's "practice" is examined by considering how the property has actually been used by the government. Even if the government's access policy, in practice, allows selective public access to the forum, this fact is not always determinative of designated public forum status as was the case in both Perry and Cornelius. Moreover, selective access, even if it is indicative of the creation of a designated public forum, may only create a limited public forum to which the challenger has no right of access as in Perry where the forum, if one existed, was a limited public forum for organizations that wished to inform schoolchildren of available afterschool activities and not a limited public forum for organizations that wished to communicate with teachers. Finally, in examining the government’s access policy, the Court is concerned with whether the government permits speech by members of the public, private speech, and not with whether the facility at issue is available for the government’s own speech as in Pleasant Grove City v. Summum.
(b) the nature of the property and its compatibility with expressive activity.
As secondary factors in determining whether property is a designated public forum, the Court also can look at the nature of the property and its compatibility with expression to discern the government’s intent. However, the fact that the property at issue is designed for communication is not determinative of public forum status as can be seen in cases such as Lehman where advertising spaces on a city bus were deemed a nonpublic forum because the government’s purpose was to raise revenue to support its public transit system.
(3) Nonpublic Forums
Limited public forums present special problems when challenging access restrictions. When the government creates a limited public forum, the forum is a designated public forum as to some potential users of the forum (those within the described limits) and a nonpublic forum as to other speakers (those outside the described limits). For example, a limited public forum designated for students attending a state university is a public forum for university students and a nonpublic forum for nonstudents. While the government has considerable discretion to create limited designated public forums, the limits are subject to constitutional challenge. To be constitutional, a limit must be reasonable in light of the purpose of the forum and not based on viewpoint. Thus, a state university responding to a nonstudent who is challenging a university decision to create a limited public forum for university students would argue it is reasonable to limit the use of university facilities to students who attend the university. The standard used to review challenges to the limits of a limited public forum (reasonable and not based on viewpoint) is the same standard that applies to the review of a denial of access to a nonpublic forum. See paragraph (3) below.
Government property that is neither a traditional public forum nor a designated public forum falls into the residual category of a nonpublic forum. Examples of nonpublic forums include advertising spaces on municipal buses (Lehman), army bases (Greer v. Spock), home mailboxes approved by the Postal Service (U.S. Postal Service v. Council of Greenburgh Civic Ass’n), the Combined Federal Campaign (Cornelius), and a public television candidate debate (Forbes).
The government can regulate access to nonpublic forums under a more lenient standard than the standards that apply to traditional and designated public forums. Access restrictions to a nonpublic forum must be reasonable in light of the nature of the property and not based on viewpoint.
(4) An Alternative Approach
The restrictive Rehnquist approach to classifying property is to be
contrasted with the approach
of Justice Kennedy in the two ISKCON cases involving airport
regulations (ISKCON v. Lee and
Lee v. ISKCON). In Justice Kennedy's view, the
category of public forums
should be expanded to go beyond those places that have long been
available for speech or are
designated as available for speech and should include places that
satisfy a three part inquiry: (1)
the government property has the physical characteristics of streets and
parks; (2) is generally
open to members of the public; and (3) is generally compatible with
First Amendment activities. Justice Kennedy found this test satisfied
when applied to the public spaces of an airport terminal. For property
that does not share the physical
characteristics of streets and parks,
Justice Kennedy would continue to use the categorization approach of Perry.
The Kennedy approach is important because it could easily gain the
support of a majority of the Court in any case where Justice Kennedy
concluded that the government property at issue satisfied his three
part test and should be considered a public forum and was joined in
that view by the 4 more liberal members of the Court.
(5) Public Forum Doctrine Immunity
Recently, in the Forbes case, the Court concluded
that some content-based decisions
in government settings where content selectivity is essential, such as
the programming decisions
of a public broadcaster, may be immune from forum analysis and need not
the reasonableness/viewpoint neutrality standards applied to nonpublic
forums. The Forbes
immunity approach was also relied on by some members of the Court in United
States v. American Library Association
to give public libraries complete discretion to select the books on
their shelves and the
websites that can be accessed from library computer terminals with
internet access. The theory of this immunity is that the government
should be free to make selection decisions based on content (and even
viewpoint) in certain
circumstances where such selectivity is essential such as allowing a
government art museum to choose what
paintings to hang in its galleries, a government-owned broadcast
station to choose what programs to include in its program line-up, and
a state university to choose what speakers to invite to campus as part
of a lecture series. Without immunity, and even if classified as a
nonpublic forum, these decisions would need to be reasonable and not
based on viewpoint. The purpose of the immunity doctrine is to free the
government in these situtations from the requirement of viewpoint
(6) Government Speech
The First Amendment protection for freedom of expression does not impose any limits on what the government itself is allowed to say. The government as a speaker can and often does express a particular viewpoint. When deciding whether the government has created a designated public forum or not it is important to make sure that the forum has been made available for speech by members of the public and not just for the government's own speech. The hallmark of a designated public forum is that the government intends to create a place for speech by members of the public and not just for its own speech. For example, in Pleasant Grove City v. Summum, the Court rejected a designated public forum argument as applied to a display of monuments in a city park. The Court concluded that the monuments, many of which had been donated to the government, represented the government's own speech and not the speech of private speakers. Therefore, the presence of the monuments did not create a designated public forum. In some circumstances, it is easy to tell if speech is the speech of the government or the speech of a private speaker. For example, if a government official gives a speech in her official capacity, it is the government speaking. In addition, if the government provides funding to a private organization to communicate a government-selected message, it is the government speaking. However, in some cases where the government makes use of private speakers to communicate a particular message, it may be difficult to tell if the speech is transformed into government speech or remains private speech. In such cases, the government will argue that the speech is government speech and does not create any rights of access to a public forum, and the challenger will argue that the speech is private speech and demonstrates the government's intent to create a designated public forum. There is some overlap between situations in which an immunity argument (paragraph (5)) can be made and situations is which a government speech argument can be made. For example, the government can defend its decision not to display a particular painting in a government art museum because it objects to the viewpoint expressed in the painting on the ground that the selection of paintings is the kind of decision that is inherently content-based and should get immunity and be free of the contraints of the public forum doctrine or, in the alternative, the government can argue that all of the paintings on display are owned by the government, if the facts support this conclusion, and are the government's own speech thereby defeating any First Amendment limits on the government's actions including, but not limited to, an argument that the museum collection is a public forum. Since it is impossible to know which approach a court might take, the safest course is to make both arguments.
(7) In addition to the description of the public forum doctrine in the numbered paragraphs above, it is also helpful to think of the public forum doctrine in terms of the arguments that can be made by the speaker who seeks access to government property and the arguments that can be made by the government in justifying the denial of such access, assuming that facts are available to support such arguments. A summary of these arguments is presented below.
For Speaker (when the speaker seeks access to government property):
1. In making an access claim, the speaker must identify the specific property to which the speaker seeks access and characterize it under the public forum doctrine. This argument should focus on the characteristics of the specific forum to which access is sought and and not the general nature of the government property that includes the forum. For example, the Court focused on the advertising spaces in Lehman, but not the buses in their entirety and the school mailboxes in Perry, but not the school in its entirety. This means that a particular part of government-owned property can be a public forum, while other parts are nonpublic forums.
2. If the property is an ordinary street or park (and not one used for special purposes), it will be considered a traditional public forum. The government may then control access by using reasonable, time, place or manner regulations or, if based on content, by satisfying strict scrutiny review. The speaker will argue that these standards have not been satisfied.
3. If the property has some of the physical characteristics of streets and parks, the speaker can argue, using Justice Kennedy’s approach in Lee v. ISKCON and ISKCON v. Lee, that the property should be considered a public forum based on its physical characteristics, the fact that it is open to the public, and that it is generally compatible with expression. If it is a public forum under this analysis, the government can only control access by using reasonable, time, place or manner regulations or, if based on content, by satisfying strict scrutiny review. The speaker will argue that these standards have not been satisfied.
4. If the property is not a traditional public forum, but has been opened for use by some members of the public, the speaker can try and argue that the property is a public forum by designation by the government. In arguing that property is a designated public forum (a place that the government has intentionally opened up for the purpose of First Amendment activities), the speaker will make arguments based on the policy (statements about the purpose of the property) and practice of the government (how the property is used with particular focus on the grant of rights of access). To discern the government’s intent, arguments may also focus secondarily on the nature of the property and its compatibility with expressive activity. If the property is a designated public forum, the government can only control access by using reasonable, time, place or manner regulations or, if based on content, by satisfying strict scrutiny review. The speaker will argue that the property is a designated public forum and that these standards have not been satisfied.
5. In arguing that the property is a designated public forum, the
speaker must consider the
possibility that the property is a limited public forum. A limited
public forum is one
that the government intentionally opens up only for speech of a
particular type or to a particular
group of speakers. Examples of this would be a decision by a state
university to open up its
classrooms for use by student organizations, but not by outside
community groups, or a decision
by the city council to create an open microphone opportunity during a
council meeting when
speakers are permitted to address issues on the council’s agenda, but
not issues not being
considered by the council. In the case of a limited public forum, the
limits must be reasonable in
light of the purpose of the forum and not based on viewpoint. If a
speaker is denied access, the
speaker can argue that the
limits are unreasonable, impermissibly based on viewpoint, or that the
been excluded even
though his or her speech falls
within the limits of the limited forum. In addition to limiting the
scope of the forum, the
government can also impose time, place and manner restraints on access
to a limited public forum and content-based
regulations that satisfy strict scrutiny. If the speaker falls within
the limits of the limited forum,
the speaker can argue that additional restrictions on forum access do
not satisfy these standards. For example, if a city creates a
designated forum for the plays of Shakespeare and a speaker wants to
gain access for a production of Hamlet, the speaker falls within the
limits of the forum. If the production is denied access because it
includes a small amount of nudity, the play's producer can challenge
the exclusion because it is based on the nude content of the play and
argue that the government lacks a compelling reason for the exclusion.
On the other hand, if the speaker falls outside the limits of the
limited public forum,
the limited public forum is a nonpublic forum as applied to
the speaker and the speaker must challenge his or her exclusion based
on the standards applicable
to nonpublic forums. For example, if a production of Hair is excluded
from the forum for Shakespeare's plays, the producer will be limited to
arguing that the exclusion is unreasonable in light of the nature of
the forum or is based on viewpoint. In this circumstance, neither of
these arguments is likely to be successful.
6. If the speaker cannot successfully argue that the property is one of the varieties of public forums described above, the speaker, as an alternative argument, can argue that the property is a nonpublic forum, but the government restrictions on access are either based on viewpoint or are unreasonable.
7. The speaker might also need to respond to an immunity claim advanced by the government. The government may argue that the denial of access is like a programming decision by a public television station (Forbes) or a book selection decision by a public library. These decisions are viewed as inherently content-based and are immunized from public forum analysis so that the government is free to make such decisions without even satisfying the limits that apply to nonpublic forums. In other words, the decisions need not be reasonable or viewpoint neutral. In responding to such an argument, the speaker must argue that the government activity at issue does not require a high degree of content selectivity and should not be immunized from public forum analysis.
8. The speaker may also need to respond to a government argument that the property at issue is not a forum for members of the public to use to express their views, but only a forum for the government to use to showcase the government’s own views. If the government is the sole speaker allowed to use the forum, the property will not be considered a public forum. Moreover, the government does not need to satisfy First Amendment limits including the requirements of reasonableness and viewpoint neutrality. An example would be a public school bulletin board used exclusively for the posting of official notices by the school. Even though the bulletin board is used for purposes of communication, it is only communicating the government’s own messages and is not a designated public forum for private expression. In responding to such an argument, the speaker can argue that the forum is made available to members of the public and not only the government itself.
For the Government:
1. If the property is an ordinary street or park (and not one used for special purposes), it will be considered a traditional public forum and the government may need to concede that the property is a traditional public forum. In the case of a tradional public forum, the government can control access by using reasonable, time, place or manner regulations or, if based on content, by satisfying strict scrutiny review. The government will argue that its restrictions on access satisfy these standards.
2. If the property is a street or park, but is being used for special purposes, then the government can argue that it is a nonpublic forum (like the Post Office sidewalk in Kokinda) (see treatment of nonpublic forums below). In the alternative, the government can argue that the property has been transformed into a limited public forum (see treatment of limited public forums below).
3. If the property has some of the physical characteristics of streets and parks, the speaker may argue, using Justice Kennedy’s approach in Lee v. ISKCON and ISKCON v. Lee, that the property should be considered a public forum based on its physical characteristics, the fact that it is open to the public, and that it is generally compatible with expression. The government will respond to this attempt to characterize the property as a public forum by arguing that the property lacks some or all of these characteristics and, in addition, is neither a traditional public forum nor a designated public forum. If the property might be considered a public forum using this analysis, the government can still control access by using reasonable, time, place or manner regulations or, if based on content, by satisfying strict scrutiny review. The government will argue that these standards have been satisfied.
4. If the property is not a traditional public forum, the government will attempt to argue that the property is not a designated public forum and should be classified as a nonpublic forum. In arguing that property is not a designated public forum, the government will make arguments based on the policy (statements about purpose of the property) and practice of the government (how the property is used with particular focus on the absence of general rights of access). To discern the government’s intent, arguments may also focus secondarily on the nature of the property and its incompatibility with expressive activity. The grant of selective rights of access (such as by opening teacher mailboxes for use by the designated collective bargaining representative in Perry) is not enough to automatically transform government property into a designated public forum. Moreover, the fact that the forum is designed for expression does not automatically transform it into a designated public forum as can be seen in Lehman. Therefore, the government can defeat such an argument by demonstrating that its purpose in creating the forum is not to create an opportunity for expression, but for some other purpose such as to raise revenues (Lehman) or to limit disruption of a government workplace (Cornelius). Even if the property is a designated public forum, the government can still control access by using reasonable, time, place or manner regulations or, if based on content, by satisfying strict scrutiny review. The government will argue that these standards have been satisfied.
5. In responding to an argument that the property is a designated public forum, the government may argue that the property is only a limited public forum. The government can define and limit a designated public forum by imposing limits that are reasonable in light of the purpose of the forum and not based on viewpoint. The government will argue that the limits are reasonable and that the property is a nonpublic forum as to the speaker since the speaker falls outside the limits of the limited public forum. In addition to limiting the scope of the forum, the government can also impose reasonable time, place and manner restraints on the forum and content-based regulations that satisfy strict scrutiny. If the speaker falls within the limits of the limited forum, the government can argue that additional restrictions on forum access satisfy these standards. If the speaker falls outside the limits, the limited public forum is a nonpublic forum as applied to the speaker and the speaker must challenge his or her exclusion based on the standards applicable to nonpublic forums.
6. If the government can successfully argue that the property is a nonpublic forum, it can defend restrictions on access to the property based on the fact that they are reasonable and not based on viewpoint.
7. The government may also argue that its content-based selection decisions are immunized from public forum analysis based on the Supreme Court’s decisions in the Forbes and American Library Association cases. In such a case, the government may argue that the denial of access being challenged is like a programming decision by a public television station or a book selection decision by a public library. These decisions are viewed as inherently content-based and are immunized from public forum analysis so that the government is free to make such decisions without even satisfying the limits that apply to nonpublic forums. In other words, the decisions need not be reasonable or viewpoint neutral.
8. Another argument the government may make is that the property at
issue is not a forum for
members of the public to use to express their views, but only a forum
for the government to use
to showcase the government’s own views. If the government is the sole
speaker allowed to use
the forum, the property will not be considered a public forum. An
example would be a government art museum where the government purchases
all of the paintings on display or accepts them as donations to its
collection. In this situation, even though the paintings are a form of
expression, the message communicated is one selected by the government
and displayed through its own speech (paintings that it owns either
through purchase or donation). Communicating such a message through its
own speech does not create a designated public forum for expression by
members of the public.
B. Religious Speech on Public Property
Relgious speech is fully protection expression under the free speech
clause of the First Amendment. This means it is very difficult, if not
impossible, for the government to justify exclusion of religious speech
in circumstances where speech on other subjects is allowed. Many of the
cases involving religious speech on public property involve religious
speech that is excluded from a traditional or designated public forum.
Such content discrimination against religious speech cannot be
justified by the government as necessary to prevent a violation of the
Establishment Clause. This is because the Establishment Clause does not
prevent private religious speech from being included in a public forum.
The focus of the Establishment Clause is on government religious speech
rather than private religious speech. Therefore, exclusions of private
religious speech from a public forum cannot be justified based on this
rationale. As a result, the government cannot satisfy the strict
scrutiny test that applies to content discrimination in a public forum.
Examples of striking down exclusions of private religious speech are
found in Widmar v. Vincent and
Capital Square Review Board v. Pinette.
Even in Pinnette, a case
involving an unattended display of a cross erected by the Ku Klux Klan
in front of the Ohio Statehouse, while the government was permitted to
the placement of a disclaimer to avoid the appearance of government
endorsement of the private
religious message, it could not exclude the cross when other unattended
displays were permitted. Even in cases where the Court refuses to
classify the government property as a traditional or designated public
forum, but instead assumes it is a nonpublic forum, the Court strikes
down the exclusion of private religious speech as viewpoint
discrimination even though all religous speech is excluded (Lamb's Chapel v. Center Moriches Union
Free School Dist. and Good News
Club v. Milford Central School).
A recent case involving a religious display on
government property, Pleasant Grove
City v. Summum, also involves the public
speech/private speech distinction. In Summum,
however, a Ten Commandments monument was donated to the city and the
city successfully argued that the park where it was displayed was not a
public forum because it only displayed the government's own speech. The
characterization of the monument as government speech allowed the city
to refuse to display other religious monuments in the park without
violating the free speech clause. However, characterizing the religious
monument as government speech opened up the possibility
of a challenge to the display of the monument under the Establishment
Clause. For additional discussion of Summum
and the government speech doctrine see A (6) above.
C. Speech in the Public Schools
The Supreme Court has decided 4 public school student speech cases. These cases make clear that while students do not lose all of their free speech rights while at school, their rights are severely limited in the public school setting. The public school student speech cases do not explicitly rely on conventional forms of First Amendment analysis, such as the traditional 3 levels of scrutiny. The earliest of the 4 cases, Tinker v. Des Moines Independent School District, prevented a school district from disciplining students for engaging in protected symbolic political speech (wearing black armbands to protest the Vietnam War) while at school unless the school district could show that the speech would "substantially interfere with the work of the school" or "materially disrupts classwork." Under the Tinker standard, a public school cannot rely on "undifferentiated fear or apprehension of disturbance," but must have evidence of actual disruption caused by the speech or evidence from which the school could reasonably forecast a likelihood of disruption. After Tinker, which was decided in 1969, each of the 3 subsequent cases distinguished Tinker and permitted public schools to discipline students for certain kinds of speech or in certain school settings. In Bethel School Dist No. 403 v. Fraser (1986), a student, speaking at a school assembly to nominate a candidate for student government, used sexual innuendo and double entendres, but did not use explicit sexual references or profanity. The Court upheld the school's decision to discipline the student since the sexual content of the speech was distinguishable from the political message in Tinker and the school was permitted to "teach[ ] students the boundaries of socially appropriate behavior." The Court variously described the speech that fell within the Fraser rule as "lewd and indecent" and "vulgar and lewd" compared with the controversial political message at issue in Tinker. Where the student speech falls with the Fraser rule, the public school is permitted to discipline a student for such speech without making any showing that the speech has produced or is likely to produce harm. In 1988 in Hazelwood School District v. Kuhlmeier, the Court dealt with censorship by the school principal of articles in a student newspaper that was produced by students in a journalism class. The Court once again distinguished Tinker, characterizing Tinker as involving "a student's personal expression." By contrast, Kuhlmeier involved "school-sponsored . . . expressive activities that student, parents, and members of the public might reasonably perceive to bear the imprimatur of the school." In the case of such activities, that could be viewed as "part of the school curriculum," the school was permitted to "exercis[e] editorial control over the style and content of student speech in school sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." The "reasonably related to legitimate pedagogical concerns" standard seems similar to rational basis review. The final case in this quartet of student speech cases is Morse v. Frederick (2007). In that case, the Court allowed a public school to discipline a student for displaying a banner that read "BONG HiTs 4 JESUS." The principal interpreted the banner as advocating illegal drug use and, therefore, in violation of the school's strong antidrug policy. The Court concluded that the enforcement of the school's antidrug policy promoted an important, and even possibly a compelling interest in discouraging illegal drug use by students. The Court distinguished Tinker because the student speaker in Morse claimed the message on the banner was "just nonsense" rather than a political statement and because the Court concluded that the school's interest in deterring drug use was very different than "an abstract desire to avoid controversy," the interest at issue in Tinker. While distinguishing Tinker, the Court refused to rely on Fraser to justify disciplining the speech based on the fact that the message was offensive. The 4 public school student speech cases leave many questions unanswered since the exact reach of each of the 4 decisions is far from clear. Unresolved questions include whether public schools can discipline students for school-related speech that takes place away from school, how should a court determine whether an activity is a school-sponsored expressive activity governed by Kuhlmeier as contrasted with personal expression of students governed by Tinker, what kinds of speech fall within the reach of Fraser, and what kinds of strong school policies other than an antidrug policy can justify disciplining a student for the content of their speech, to mention just a few of the unanswered questions.
D. Private Property
Private property owners seeking to use their own property for speech, particularly residential property, have at least as many rights as persons seeking to use traditional public forums and even greater rights when the private property is a person's home as indicated in cases like Ladue where lawn signs on residential property were considered to be a “unique and important” means of communication. Moreover, the Court recognized that “individual liberty in the home has long been part of our culture and our law; that principle has special resonance when the government seeks to constrain a person’s ability to speak there.”
E. Privately Owned Communications Media
Private property owners may also own a particular medium of communication such as a newspaper or a television station and seek to keep that property free from government regulation. The nature of the private property used as a vehicle for communication may determine the level of First Amendment protection available to its owner. Speech in a newspaper gets the full protection of the First Amendment. By contrast, radio and television broadcasting receives the least amount of First Amendment protection and speech over the airwaves can be regulated in ways that would be unacceptable as applied to other media. This contrast can be seen in the different treatment of broadcast indecency in Pacifica as compared to internet indecency in Reno v. American Civil Liberties Union.
IV. The Nature of the Government Interest
While the standards of review used to analyze restrictions on speech vary (although most are either strict scrutiny review or a version of intermediate scrutiny review), they all require an analysis of both ends and means. Means must be either the least restrictive alternative or narrowly tailored and ends must be either substantial or compelling. This section of the review focuses on the various ends or objectives commonly discussed in First Amendment case law.
Many of the government interests promoted in the First Amendment area are no different than the interests asserted to justify regulations with no First Amendment implications such as safety, health and preventing the outbreak of violence. However, there are some justifications that are special to the First Amendment and others that have special implications when the regulation affects First Amendment activity.
(A) Protection of the Captive Audience - when people are forcibly
exposed to speech against
their will, the government may try and intervene to protect them. Such
an effort is more
acceptable if the audience has a reasonable expectation of privacy in
the place where they find
themselves such as at home as in Frisby v. Schultz and less
acceptable if the unwilling
listener is in a public place, as in Cohen v. California, where
the Court believes the listener
should simply walk away. An exception to the "walk away" principle is
found in the abortion clinic cases where the Court has upheld some
restrictions designed to protect the privacy of clinic patients.
(B) Protection of children - some special solicitude can be shown
for the sensibilities of
children, but protecting children cannot be used to justify cleansing
public discourse so that
adults are prevented from receiving any speech except that appropriate
for a child's ears. If it is
possible to prevent child access while permitting adult access to
protected material, the court
would prefer such an approach (Sable; Lorillard
Tobacco). Protection of
children from sexual abuse is central to the Court’s decision to
recognize child pornography as an
unprotected category of expression, but also to limit the category to
situations where an actual
child is used to produce the pornography (compare Ferber with Ashcroft
Speech Coalition). While the government has a compelling interest
in protecting children, children (minors) have free speech rights under
the First Amendment. While they have fewer rights than adults, such as
in the area of obscenity where the definition of obscenity varies with
whether the material is viewed by an adult audience or a child
audience, they still have significant First Amendment rights. This can
be seen in the Court's decision in Brown v. Entertainment Merchants
Association where the Court decided that violent video games are
expression as applied to minors, as well as in Erznoznik v. City of Jacksonville
where the Court concluded that a total ban on all nudity in movies
banned speech that was protected as to minors.
(C) Aesthetics - speech that is destructive of the attractiveness of
neighborhoods such as signs or
billboards can be regulated in order to promote aesthetics, although
not all such regulations will
be upheld. The Court struck down the ban on lawn signs in Ladue
because it viewed lawn signs
as a uniquely valuable means of expression and the newsrack regulation
in Discovery Network
because it impermissibly distinguished between commercial speech and
fully protected speech. However, it upheld the content-neutral ban on
signs attached to utility poles in Taxpayers for Vincent. In
general, aesthetic justifications have been sufficient under the
various versions of intermediate scrutiny used in First Amendment
analysis, such as time, place, and manner analysis, where the
government must show it has a significant or important governmental
interest. The case law has not confronted the issue of whether an
aesthetic justification would be sufficient under strict scrutiny
review where the government's justification must be compelling.
(D) Morality - setting an appropriate moral tone and promoting the
decent life. Morality justifications for speech regulations present the
cleansing public debate of unpopular speech or speech in an offensive
form and are not
automatically deferred to by most members of the Court. This concern
with morality as a
justification for regulating sexually explicit non-obscene speech can
be seen in the Court’s
adoption of the secondary effects rationale in Renton rather than a
morality rationale as suggested
by a plurality in Young v. American Mini Theatres. A similar
have led a plurality of the Court to back away from the morality
justification offered in Barnes v.
Glen Theatre, Inc. as a justification for a ban on
public nudity as applied to nude dancing to adopt a secondary effects
rationale to uphold a similar ban in City
of Erie v. Pap's A.M.
(E) Outbreak of Violence - preventing violence justifies many speech
restraints such as in
Brandenberg, Feiner and Chaplinsky. However,
when the speech is protected, the Court will not
allow the government's apprehension of violence, without convincing
evidence that violence will
occur, to justify suppression of speech (Cohen, Texas v.