PUBLIC FORUM (Update 2)

Public forum doctrine initially arose out of the question whether individuals have a first amendment freedom of speech in such government-owned properties as streets, parks, and sidewalks. Finding that such properties have been dedicated "time out of mind" to expressive purposes, the Supreme Court has generally held that speech can be regulated, but not prohibited, in such "traditional" public forums. Thus, although government can adopt reasonable time, place, and manner regulations that channel speech in such forums, it must permit a significant opportunity for individuals to speak in public parks, march on public streets, and distribute leaflets on public sidewalks.

The question then arose, however, whether individuals have a similar right to speak in other forms of government-owned property, such as military bases, the grounds surrounding a jail, and airports. Because such properties have not been dedicated "time out of mind" to speech purposes, the Court has generally held that speech can be prohibited in such places, so long as the government acts in a content-neutral manner and there is at least a reasonable basis for the restriction. Thus, as the Court held in Greer v. Spock (1976), although the government must allow individuals to make speeches in public parks, it need not permit speeches on the grounds of a military base, even though the base is generally open to the public. The Court explained that "it is the business of a military installation … to train soldiers, not to provide a public forum."

Governmental allowance of some, but not all, speech in a nonpublic forum raised more difficult issues. In lamb ' s chapel v. center moriches union free school district (1993), for example, a public school district permitted student groups to meet after-hours in the school's classrooms, but prohibited use of the classrooms for religious purposes. Because the classrooms were a nonpublic forum, the school district presumably could have prohibited all after-hours use of its own buildings. But once it chose to permit some student organizations to use the classrooms after-hours, could it constitutionally exclude religiously oriented organizations from using them as well?

In police department of chicago v. mosley (1972), the Court had held that such "selective exclusions" from traditional public forums are presumptively unconstitutional and will be upheld only if they are necessary to serve a "compelling" governmental interest. The Court has applied a different approach, however, to "selective exclusions" from nonpublic forums. In this context, the Court has held that the government can constitutionally restrict access based on the "subject matter" of the speech so long as the exclusion is "reasonable and viewpoint-neutral." Applying this standard in Lamb's Chapel, the Court held that the restriction was unconstitutional because even though the classrooms were only a "limited" public forum, the denial of access to speakers who wanted to address issues from a religious perspective violated the requirement of "viewpoint-neutrality."

The most recent extension of this doctrine involves the problem of government subsidies. In rosenberger v. rector and visitors of university of virginia (1995), for example, the Court, following Lamb's Chapel, invalidated a University of Virginia policy authorizing payment from the Student Activities Fund for the printing costs of a variety of student publications, but prohibiting payment for any student publication that "primarily promotes or manifests a particular belief in or about a deity or an ultimate reality." In extending public forum analysis to cases like Rosenberger, which involves government property in the form of benefits rather than a physical locale, the Court has run into particular difficulty with the concept of "view-point-neutrality."

In rust v. sullivan (1991), for example, the Court, in a 5–4 decision, upheld the constitutionality of federal regulations providing that federal funds appropriated to support family planning services might not be used to provide referrals for abortion as a method of family planning. The dissenters, in an opinion by Justice harry a. blackmun, argued that, "until today, the Court has never upheld viewpoint-based suppression of speech simply because that suppression was a condition upon the acceptance of public funds." The Court, however, in an opinion by Chief Justice william h. rehnquist, responded that "we have here not the case of a general law singling out a disfavored group on the basis of speech content, but a case of the government refusing to fund activities, including speech, which are specifically excluded from the scope of the project funded." This line of reasoning has proved highly controversial. Critics have asked why, for example, the same argument wouldn't also hold true in cases like Lamb's Chapel and Rosenberger.

More recently, in National Endowment for the Arts v. Finley (1998), the Court upheld a federal statute that directs the NEA, in establishing procedures to judge the artistic merit of grant applications, to "tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public." For several reasons, the Court rejected the argument that "the provision is a paradigmatic example of viewpoint discrimination." First, the Court argued that the provision merely "adds 'considerations' to the grant-making process; it does not preclude awards to projects that might be deemed 'indecent' or 'disrespectful.' " Second, the Court observed that terms like "indecency" and "respect for diverse beliefs and values" are "susceptible to multiple interpretations" and do not necessarily "introduce considerations that, in practice, would effectively preclude or punish the expression of particular views."

The Court distinguished Rosenberger on the ground that, in "the context of arts funding, in contrast to many other subsidies, the government does not indiscriminately 'encourage a diversity of views from private speakers.' The NEA's mandate is to make aesthetic judgments, and the inherently content-based 'excellence' threshold for NEA support sets it apart from the subsidy issue in Rosenberger—which was available to all student organizations that were 'related to the educational purpose of the University.' " Finally, the Court emphasized that "we have no occasion here to address an as-applied challenge in a situation where the denial of a grant may be shown to be the product of invidious viewpoint discrimination. If the NEA were to leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints, then we would confront a different case." Although cases like Rust and Finley may seem a far cry from the earlier era's disputes about leafleting on public sidewalks, the common theme of access to government "property," which underlies the public forum problem, unites these decisions.

Geoffrey R. Stone
(2000)

Bibliography

Kagan, Elena 1996 Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine. The University of Chicago Law Review 63:415–463.

Post, Robert 1996 Subsidized Speech. Yale Law Journal 106: 151–174.

Redish, Martin 1996 Government Subsidies and Free Expression. University of Minnesota Law Review 80:543–577.