When considering government restrictions of speech in traditional public forums, courts use strict scrutiny. When the government restricts speech in a traditional public forum, strict scrutiny dictates that restrictions are allowed only if they serve a compelling state interest and are narrowly tailored to meet the needs of that interest. Sometimes, the government opens public property for public expression even though the public property is not a traditional public forum.
These are designated public forums. After opening a designated public forum, the government is not obligated to keep it open. However, as long as the government does keep the forum open, speech in the forum receives the same First Amendment protections as speech in traditional public forums.
Examples of designated public forums include municipal theaters and meeting rooms at state universities. A limited forum is a type of a designated public forum. A three-judge panel decided in July that no First Amendment violation occurred, because the city was free to stop offering a designated forum at any time and for any reason. Consequently, in the view of the Fourth Circuit, a government agency can freely take away the forum status from a piece of public property even if the change is intended to silence a specific speaker or a specific message.
Since the Supreme Court has said that even a relatively minor slight can be unlawful retaliation if meant to inhibit the exercise of free-speech rights, the decision to declare a piece of public property entirely off-limits for expression certainly seems to qualify.
Why courts have hesitated to recognize a retaliation claim in such situations is somewhat mystifying. It may be because the closure affects all potential speakers so that the deprivation is not sufficiently personalized to any one speaker. Or it may be deference to the spending priorities of government policymakers, whose discretion might be compromised if forced to maintain property they can no longer afford. State laws limiting the censorship discretion of school officials are on the books in seven states and in an eighth, Illinois, at the college level only , and three jurisdictions — Pennsylvania, Washington and the District of Columbia — have given students enhanced press freedom through Board of Education rules.
Student editors, managers and news directors must be free to develop their own editorial policies, content, programming and news coverage. An independent and active press — print, online and broadcast — is a basic right in a free and democratic society and is valuable in promoting the development of students as socially responsible persons. While attaining status as a public forum is a symbolically meaningful gesture, it is uncertain how much weight a court will put on forum status.
It asks too much to expect a high-school principal to be a more proficient constitutional scholar than a Supreme Court justice. But it probably is unsafe to stop there. Skip to content. Their confidence was misplaced. The designated forum: How durable? Conclusion While attaining status as a public forum is a symbolically meaningful gesture, it is uncertain how much weight a court will put on forum status.
Endnotes R. Ithaca City Sch. Hazelwood Sch. Kuhlmeier , U. Perry Ed. Cornelius v. In contrast, a non-public forum is a place where people normally do not go to protest, assemble, and express their views. For example, an office building or a school is not a public forum. The government can impose reasonable restrictions on expression in a non-public forum. For example, the government can prevent someone from marching through a public school expressing his views because the school could not function under those circumstances.
In some cases, the government changes non-public forum into a forum where people are authorized to express themselves in a certain way or on a certain topic. For example, the government could create a space on city grounds normally reserved for art and invite people to come and share their opinions on a public topic.
David L. Hudson, Jr. This article was originally published in BeVier, Lillian. Kalven, Harry, Jr. Nowak, John, and Dan Farber. Saphire, Richard B. Park, Daniel W. Caplan, Aaron. Hudson Jr. Originally published in , last updated Jan. Public Forum Doctrine [electronic resource]. By David L. Want to support the Free Speech Center? Donate Now.
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