Public Forum Doctrine

Public Forum Doctrine The Supreme Court established the doctrine of the public forum in 1939, when it ruled in Hague v. Congress of Industrial Organizations that government may not prohibit speech‐related activities such as demonstrations, leafleting, and speaking in public areas traditionally provided for speech. Such places have historically served as essential vehicles of communication, especially for groups who lack power or access to alternative channels of communication.

The public forum doctrine matured during the social movements of the 1960s, as vociferous civil rights and other protesters pressed for social change. In striving to balance the First Amendment interests at stake with the social need for order and domestic tranquility, the Supreme Court has had to address two major issues. First, assuming that a public forum exists, government may still regulate access to it and control harmful incidental effects of expression such as noise, congestion, litter, and disorder, so long as such regulation does not discriminate on grounds of viewpoint and does not substantially restrict the exchange of communication (United States v. Grace, 1983). This is the “time, place, and manner” doctrine. Second, the Court has had to determine which areas are subject to public forum standards in the first place. This question is the central issue in modern public forum adjudication.

In Perry Education Association v. Perry Local Educators' Association (1983), the Court ruled that the level of First Amendment protection depended on one of three types of forum being used. “Traditional” public forums are those established by historical practice or government fiat. Governments may not close these forums and must provide reasonable access to all speakers regardless of the viewpoint they express. Controversial speech in such forums may not be restricted because of the reactions of the audience (“hecklers' vetoes”) unless police reasonably anticipate imminent disorder (Gregory v. City of Chicago, 1969). Areas the Court has designated traditional public forums (before and after Perry) include: streets or sidewalks adjoining such public buildings as state capitols (Edwards v. South Carolina, 1963), courthouses (United States v. Grace), schools (Police Department of Chicago v. Mosley, 1972), parks (Niemotko v. Maryland, 1951), and residential neighborhoods (Frisby v. Schultz, 1988). Government may prohibit access to a traditional public forum only if the prohibition is narrowly tailored and necessary to achieve a compelling social or governmental interest. For example, in Frisby the Court held that a city may protect residential privacy by prohibiting “focused picketing taking place solely in front of [and directed at] a particular residence” (p. 483). In Madsen v. Women's Health Center (1994), the Court upheld some restrictions on protests outside abortion clinics.

A second type of forum is one created by governmental “designation.” Government may shut down these forums in a viewpoint neutral manner, but must adhere to neutral standards while such forums remain open. In Widmar v. Vincent (1981), the Court ruled that once a state university opens its facilities to student groups, it may not exclude religious groups without a compelling reason.

The third type is known as “off‐limits” public property. Property that serves a specific government purpose and is not a public forum by tradition or designation is significantly less protected by the First Amendment. Government may sometimes even engage in viewpoint discrimination in these domains by showing that the disparate treatment is reasonably related to the property's function. For example, in Perry the Court ruled that a rival union could be excluded from access to a public interschool mailing system (only the duly elected union representative was granted access by the education association pursuant to a bargaining agreement), even though the Boy Scouts and related groups had been granted access. This category has included: mailboxes to deposit nonstamped mailable matter (U.S. Postal Service v. Greenburgh Civic Association, 1981); public lightposts for campaign signs (Los Angeles v. Taxpayers for Vincent, 1984); military bases (United States v. Albertini, 1985); one‐hundred‐foot zones around polling booths (Bunson v. Freeman, 1992); airport and transportation terminals (International Society for Krishna Consciousness v. Lee, 1992); and Internet access in public libraries (United States v. American Library Association, 2003).The Court's reasons for placing public property in category three rather than categories one or two have not always been self‐evident (e.g., Perry; Vincent). This suggests that the public forum doctrine may be less important to the actual disposition of the case than the Court's evaluation of the merits of the speech claim and the competing government interests. In addition, the expansion of government power to declare its property “off‐limits” has coincided with the Court's refusal to bestow public forum status on such public‐oriented private property as shopping centers (Hudgens v. NLRB, 1976). Consequently, the doctrine of the public forum has become less formidable as government asserts its property rights, and demographic trends favor the use of malls over traditional downtown streets, sidewalks, and parks for commerce and association.

See also Speech and the Press.

Bibliography

John Nowak and and Dan Farber , The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication, Virginia Law Review 70 (1984): 1219–1266.

Donald A. Downs