Public Forum

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PUBLIC FORUM

Laws that regulate the time, place, and manner of speech are not considered inherently problematic under the first amendment, in contrast to laws that regulate the content of speech. As a general matter, would-be speakers can be denied the use of a particular public space for their expressive activities if other proper uses of that space would be unduly disturbed and if different speakers with different messages also would be denied use of the space.

The "public forum" doctrine represents an important gloss on the general doctrine that accords government fairly wide authority to regulate speech in public places. For spaces that are designated public forums—streets, parks, and sidewalks, for example—the regulatory authority of government is subject to careful scrutiny under the First Amendment. Public forums, unlike other public spaces, cannot be devoted entirely to nonexpressive uses; some accommodation of the claims of would-be speakers must be made. In addition, when the content of the speech is taken into account in governing the use of a public forum, as when political criticism or commercial advertising but not expression of a labor grievance is disallowed on a public sidewalk, an especially strong presumption of invalidity stalks the regulation. Even content-neutral regulations regarding the time and manner of speech in a public forum pass muster under the First Amendment only if they are "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication."

The historical derivation of the public forum doctrine can be traced to an oft-quoted obiter dictum by Justice owen j. roberts in hague v. cio (1939):

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

The dictum repudiated the doctrine, endorsed by the Supreme Court forty years earlier, that government's ownership of the land on which streets and parks are situated gave officials the nearly plenary authority of a private landlord to regulate access to those spaces. The phrase "public forum" was first employed as a legal term of art by harry kalven, jr. , in an influential article on the topic of speech in public places. The Supreme Court's most comprehensive discussion of the public forum doctrine is in perry education association v. perry local educators ' association (1983).

Public streets, parks, state capitol grounds, and sidewalks have been held by the Court to be "quintessential" public forums. Public auditoriums and meeting rooms, state fair grounds, and public school classrooms have also been held to be public forums, although the tenor of judicial opinions suggests that officials may have somewhat more regulatory authority to preserve the special character of such places than may be exercised over open spaces such as streets and parks. The Court has denied public forum status to a jailyard, a military base portions of which were open to the public, residential mailboxes, and an internal communications system used for delivering messages and posting notices within a school district. The most important criterion for deciding whether a space constitutes a public forum is the traditional use of that type of space, not necessarily in the particular locale but rather as a general practice nationwide. Some Justices have contended that the dominant consideration should be whether the use of the space for expressive purposes is basically incompatible with other legitimate uses, but that position has not won acceptance by a majority of the Court.

The public forum doctrine has been criticized, primarily on two counts. First, it is claimed that the analytical device of categorizing public places on the basis of their general characteristics fails to give sufficient weight to considerations peculiar to each particular dispute over the use of public property for expressive purposes. Case-by-case variations in the degree to which expressive and regulatory values are implicated tend, so this criticism goes, to be overshadowed by the characterization of a place in gross as either a public forum or not. Particularly as applied to places that do not qualify as public forums, the categorization approach of the public forum doctrine permits government to regulate speech that may be highly appropriate in the particular circumstances and that may not impose serious burdens on other uses of the public space.

Second, and somewhat in tension with the first criticism, it is sometimes maintained that the public forum doctrine is misleading in that the designation of a place as a public forum or not has little resolving power in actual cases. Thus, the regulation of speech based on its content is highly disfavored, even as applied to places that are not public forums. It is not clear what the public forum doctrine adds to the presumption against regulation based on content. In addition, because a compelling state interest can justify the regulation of speech in a public forum and because places that are not public forums typically are devoted to activities that conflict somewhat with the use of such places for expressive purposes, it is not obvious that the public forum designation alters dramatically the balancing of conflicting uses that must take place in all disputes over access to public land.

Probably the most important aspect of the public forum doctrine is the principle that public forums cannot be closed off entirely to marches, demonstrations, rallies, and individual acts of expression. In contrast, uniformly enforced blanket prohibitions on expressive activities in places that are not public forums are permissible as a general matter under the First Amendment. Apart from this issue of blanket prohibitions, the significance of the public forum doctrine lies mainly in the tendency of courts to weigh competing particularistic considerations more favorably to speakers when the situs in dispute is a public forum.

Vincent Blasi
(1986)