First Amendment Rights
Professor Harpaz
PUBLIC FORUM ANALYSIS: ISSUES THAT EACH SIDE
SHOULD CONSIDER ADDRESSING
A. For Speaker (when the speaker seeks access to government
property):
1. What is the nature of the specific property that the speaker
seeks to access? This focuses on the specific property and not its
general character. For example, the Court focused on the advertising
spaces in Lehman, but not the buses in their entirety, and
the school mailboxes in Perry Education Association, but not
the school generally. 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
content-neutral reasonable, time, place or manner regulations or, if
based on content, by satisfying strict scrutiny review. The speaker
can argue that these standards have not been satisfied.
3. 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 and voluntarily opened
up for the purpose of expression), the speaker will make arguments
based on the policy (government statements about the purpose of the
property) and practice of the government (how the property is used
with a particular focus on the grant of rights of access). To
discern the government’s intent and whether the government intended
to create a designated public forum, arguments may also focus
secondarily on the nature of the property and its compatibility with
expressive activity. If the property is a general purpose 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 can argue
that the property is a designated public forum and that these
standards have not been satisfied.
4. In arguing that the property is a designated public forum, the
speaker must consider the possibility that the property is a limited
public forum, which is true of most designated public forums. A
limited (designated) public forum is one that the government
intentionally opens up only for speech of a particular type or for
the use of a particular category of speakers or some combination of
these two. Examples of this would be a decision by a state
university to open up its classrooms for use by student
organizations, but not by non-student community groups or a decision
by the city council to create an open microphone opportunity during
a city council meeting when speakers are permitted to address issues
on the council’s agenda, but not issues not being considered by the
council.
5. In the case of a limited public forum, the arguments that are
available depend on who is challenging the limited public forum. If
the excluded 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. Therefore,
the speaker can argue the limits are either unreasonable in light of
the purpose of the limited pubic forum or based on viewpoint.
However, if the speaker is denied access, but falls within the
limits of the limited public forum, the speaker can argue that
additional restrictions on forum access are not content-neutral
time, place, or manner regulations or are content-based regulations
that do not satisfy strict scrutiny. These are the same standards
that apply to traditional public forums.
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 in light of the purpose of the
property.
7. 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. 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, if there
are facts to support such an argument, can attempt to argue that the
forum is made available to members of the public and not only the
government itself and should be classified as a designated or
limited public forum. This argument is more easily available in
situations where the government, in some way, makes use of private
speech to express the government’s message as in Pleasant Grove
City v. Summum.
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. The government may then control access by using
content-neutral reasonable, time, place or manner regulations or, if
based on content, by satisfying strict scrutiny review. The
government will argue that it has satisfied 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 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 the 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 the school mailboxes for use by the designated
collective bargaining representative in Perry Education
Association) 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).
4. 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 forum by imposing limits that are reasonable in light of
the purpose of the forum and not based on viewpoint, the same
standards that apply to nonpublic forums. 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 content-neutral
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.
5. 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 in light of the
purpose of the property and not based on viewpoint.
6. 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 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. The government, as a speaker, is free to
express its own viewpoint and need not express views that it
disagrees with and does not wish to communicate. If the government
in some way is making use of private speech to communicate the
government’s message, it will have to argue that the speech should
be characterized as the government’s own speech as was the case with
the privately donated monuments in Pleasant Grove City v. Summum.