Professor Harpaz

Government Owned/Operated Media

Government media include student newspapers, government websites, government-owned broadcast facilities, public access cable television stations, and government publications including newspapers, newsletters, pamphlets, etc. Regulation of government media can be analyzed under a number of different First Amendment doctrines. They can be classified as designated public forums (see 3 below) creating rights of access to some members of the public under certain circumstances, they can be immune from the constitutional limits of the public forum doctrine because the nature of the forum at issue and the decision being challenged requires the government have the ability to make inclusion and exclusion decisions based on subject matter and even viewpoint (see 2 below), and they can avoid any First Amendment concerns if they are classified as government speech rather than private speech (see 1 below). These three possibilities are discussed below:

1) Government speech doctrine - the First Amendment distinguishes between the government’s role as the regulator of private speech and its role as a speaker. In its role as a regulator, the First Amendment applies to all of its regulatory decisions. By contrast, when the government is speaking, it is free of First Amendment limits on its own speech. It can choose where and when to speak and what to say without worrying that it will have to provide an opportunity for private speakers to respond to its views. The content of government-owned media may be classified as government speech. If so, the First Amendment does not provide any rights to private speakers. Below is an excerpt from Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), a case resolved using the government speech doctrine:

    The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. A government entity has the right to "speak for itself." "[I]t is entitled to say what it wishes," Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833 (1995), and to select the views that it wants to express. Indeed, it is not easy to imagine how government could function if it lacked this freedom. "If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed."  

    A government entity may exercise this same freedom to express its views when it receives assistance from private sources for the purpose of delivering a government-controlled message. See Rosenberger, supra at 833 (a government entity may "regulate the content of what is or is not expressed . . . when it enlists private entities to convey its own message"). This does not mean that there are no restraints on government speech. For example, government speech must comport with the Establishment Clause. The involvement of public officials in advocacy may be limited by law, regulation, or practice. And of course, a government entity is ultimately "accountable to the electorate for its advocacy."  
    While government speech is not restricted by the Free Speech Clause, the government does not have a free hand to regulate private speech on government property. This Court long ago recognized that members of the public retain strong free speech rights when they venture into public streets and parks. In order to preserve this freedom, government entities are strictly limited in their ability to regulate private speech in such "traditional public fora." Reasonable time, place, and manner restrictions are allowed, but any restriction based on the content of the speech must satisfy strict scrutiny.

    With the concept of the traditional public forum as a starting point, this Court has recognized that members of the public have free speech rights on other types of government property. We have held that a government entity may create "a designated public forum" if government property is intentionally opened up for that purpose. Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum. The Court has also held that a government entity may create a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects. In such a forum, a government entity may impose restrictions on speech that are reasonable and viewpoint-neutral.

    There may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech, but this case does not present such a situation.  

2) Forbes immunity doctrine - In Arkansas Ed. Television Comm'n v. Forbes, 523 U.S. 666 (1998), 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 public forum analysis and need not satisfy even the reasonableness/viewpoint neutrality standards applied to nonpublic forums. The theory of this immunity is that the government should be free to make selection decisions based on content in certain circumstances where such selectivity is required such as choosing what paintings to hang in a government art museum, what speakers to invite to speak as part of a government-funded lecture series, and what shows to include in the broadcast schedule of a public television station operated by a government entity. Since content and viewpoint are essential in decision-making in these settings, the government should be free from the constraints of the public forum doctrine in making such decisions. Thus, for example, a government broadcaster should have the same journalistic discretion as a private broadcaster.

3) Public Forum Doctrine - this doctrine classifies property owned by the government into one of several different kinds of forums. Members of the public have different rights of access to that property under the First Amendment depending on the way the government property is classified.

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
(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.)

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).

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 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).
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.