Public Forum Arguments For Each Side

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.