Public Forums

Public Forum Doctrine

A. Categories of Public Forums

1) Traditional or Quintessential Public Forums

2) Designated Public Forums

3) Nonpublic Forums

B. Traditional or Quintessential Public Forums

1) Examples – Streets and Parks
(These are places that have been made available for expression since time immemorial.)

2) Guaranteed Access Rights
(The public has guaranteed rights of access to such places and, therefore, the government cannot close off this access completely.)

3) Content Neutral Time, Place, and Manner Regulations
(The government can regulate access to the streets and parks by enacting time, place, and manner regulations. To be constitutional such regulations must be content-neutral, must be narrowly tailored to accomplish an important governmental interest, and must leave open ample alternative avenues for expression. This is a version of the intermediate scrutiny test.)

4) Content-Based Regulations Evaluated Under Strict Scrutiny Test
(The government can regulate access to the streets and parks based on the content of the regulated speech, but only if it has selected a narrowly tailored, least restrictive method of achieving a compelling governmental interest. Content-based regulations can be based on subject matter or viewpoint. Viewpoint discrimination is almost always unconstitutional.)

C. Designated Public Forums

1) This category consists of government property that the government has 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 such as students in a designated forum created by the school they attend.

2) The key here is that the government’s creation of a designated public forum is a voluntary act. Moreover, the creation of a designated forum is not permanent. The government is free to eliminate forums that it voluntarily creates.

3) The government can regulate access to designated public forums in the same manner as traditional public forums by adopting reasonable time, place and manner regulations and by adopting content-based restrictions that satisfy strict scrutiny.

4) Designated public forums may be unlimited or limited public forums. Most such voluntary forums are limited in some way and are referred to as limited public forums.

5) The government can limit a designated forum by speaker identity, subject matter, time, etc. This means if the forum is limited by speaker identity, for example, that the government property is a designated forum as to some speakers (those within the described limits) and a nonpublic forum as to other speakers (those outside the described limits).

6) In evaluating whether the limits imposed by the government on a limited public forum are constitutional, a court will consider whether the limits are reasonable in light of the purpose of the forum and are not based on viewpoint. Therefore, some subject matter restrictions will be constitutional if they are designed to preserve the purpose of the forum, but that deferential standard does not extend to viewpoint restrictions. Viewpoint restrictions are only constitutional if they satisfy strict scrutiny review.

D. How to Identify a Designated Public Forum

1) To identify whether property qualifies as a designated public forum, courts principally examine the policy and practice of the government (to determine if it intended to designate a place as a public forum);

2) Courts also look at the nature of the property and its compatibility with expressive activity (to discern the government’s intent);

3) A court will not determine that government property to which a speaker seeks access is a designated public forum solely because the government has allowed selective access to the forum (e.g., by allowing it to be used by occasional speakers); and

4) Designated public forums may be limited and selective access may only be allowed for those who fall within the limits of the forum.

E. Nonpublic Forums

1) Nonpublic forum is the residual category for government property that is neither a traditional nor a designated public forum.

2) Nonpublic forums can be regulated by the use of reasonable regulations that do not discriminate on the basis of viewpoint. Since it is easier for the government to satisfy this standard than it is to satisfy the standards that apply to traditional and designated public forums, the government will try and classify government property as a nonpublic forum whenever possible.

F. Government Speech

1) Designated public forums involve access by private speakers and not just by the government itself.

2) If the only speech in a potential forum is speech by the government itself, it is not a designated public forum.

3) Government property used by the government for its own speech does not become a nonpublic forum.

4) The government as a speaker may, of course, express viewpoints, and need not present a balanced treatment of alternative viewpoints.

5) First Amendment limitations that apply to nonforums do not apply to the government's own speech which is not subject to First Amendment limitations.