Public Forum Doctrine Law and Education

Categories of Public Forums 1) Traditional or Quintessential Public Forums 2) Designated Public Forums 3) Nonpublic Forums

Traditional or Quintessential Public Forums Examples – Streets and Parks Guaranteed Access Rights Content Neutral Time, Place, and Manner Regulations Content-Based Regulations Evaluated Under Strict Scrutiny Test

Designated Public Forums Places that the government has intentionally opened up for the purpose of either all or certain kinds of First Amendment activities by members of the public or by a particular segment of the public such as students in a designated forum created by the school they attend.

Designated Public Forums The government can regulate access to designated forums in the same manner as traditional public forums either by content neutral time, place, and manner regulations or by content-based regulations that satisfy strict scrutiny.

How to Identify A Designated Public Forum To identify whether property qualifies as a designated public forum, courts examine: the policy and practice of the government (to determine if it intended to designate a place as a public forum); the nature of the property and its compatibility with expressive activity (to discern the government’s intent); allowing selective access is not always determinative of designated public forum status; designated public forums may be limited and selective access may only be allowed for those who fall within the limits of the forum.

Limited Public Forums The government can create a limited public forum by limiting access to a designated public forum by speaker identity, subject matter, time, etc. Limits on a limited public forum may not be based on viewpoint and must be reasonable in light of the purpose of the forum.

Nonpublic Forums Nonpublic forum is the residual category for government property that is neither a traditional nor a designated public forum. Nonpublic forums can be regulated by the use of reasonable regulations that do not discriminate on the basis of viewpoint.

Government Speech A public forum is a place the government makes available for speech by private speakers not for the government itself. When only the government is allowed to speak, it does not open up a forum for private speakers. Government speech can express a particular viewpoint. Government property used for the government’s own speech does not become a nonpublic forum. Thus, no First Amendment limits apply.