+ Perry’s Three Fora Traditional Public Forum Streets, Parks & Sidewalks CB/CN rules apply Designated/Public Forum State need not open property for expressive purposes but once it does, it must abide by the same rules as in a traditional public forum. State can close this forum if it wants to. *Can be limited by speaker or subject matter – footnote 7 Non-Public Forum State has a right to reserve property for its intended use. Regulations of speech will be upheld as long as they are reasonable and not an effort to suppress a particular viewpoint

+ Non-Public Forums Perry: School mailboxes were non-public forum: Primary use of boxes was to transmit official school info Boxes were not by policy held open to general public Permission to use boxes had to be secured & not granted as a matter of course Cornelius: Federal charitable campaign was a non-public forum: Gov’t did not INTENTIONALLY open forum for public discourse (inaction or permitting of limited discourse not enough) Extensive admission criteria belies notion of intentional opening to public discourse History of the Campaign was to minimize disruption at work

+ Rosenberger v. Rectors and Visitors of UVA – the continued elusive distinction between designated and non-public fora SAF created from UVA students’ mandatory fees. Certain groups eligible to receive funds from SAF if “related to the educational purpose of the University” – included student newspapers Certain groups’ activities excluded from eligibility for funds – religious & political activities (electioneering and lobbying) Religious activity = any activity that primarily promotes or manifests a belief in or about a deity or an ultimate reality UVA denied WAP funding for its newspaper because it was a religious activity – WAP challenged denial as violating freedom of speech What kind of forum is SAF? Limited or non-public? Why? Why doesn’t the exclusion of some speakers make this a non-public forum as was the case in Cornelius? What kind of exclusion is the exclusion of “religious activity” – VP or SM? Why does it matter?

+ When are traditional public forums no longer traditional public forums? Kokinda, Summum, Boardley & Berger – suggest courts approach this issue somewhat differently. Do some of these courts contemplate that the “tradition” rhetoric of Hague should be used to determine whether parks/sidewalks are traditional public forums in all circumstances? Summum, p. 200; Boardley, p. 200 What are the implications of that approach? When is a park/sidewalk not a traditional public forum? Example – Defacement statute applied to person who “chalked” message on a public sidewalk outside the White House

+ National monuments as forums Should the inside of a public national monument be considered a public forum or a non-public forum? Has the government’s decision to preserve it as a place of public commemoration turned it into a non-public forum? Is expression inconsistent with the purpose of the forum? Is the desire to preserve “solemnity” at a monument viewpoint neutral? Is it achieved only by excluding expression? How can we regulate speech to ensure adequate access to monument and adequate expression by speakers? Does the Oberwetter court’s reasoning suggest that government can close declare spaces as “non-public” forums and then claim them as “permit-free” zones where NO speech can take place since that is viewpoint neutral approach?

+ Christian Legal Society v. Martinez Cal-Hastings Law School required students groups wanting to be RSOs (receive funds and other benefits) to adhere to school’s anti-discrimination/all-comers policy. Policy required that RSO’s allow any student to become member/leader of an organization. CLS challenged the policy as violating 1A right to associate (among others) w/ persons who shared its religious faith and ascribed to certain principles and conduct. SCT found that all-comers policy was best judged through the lens of “forum analysis” RSO access is a limited public forum All comers condition on access is reasonable and content-neutral

+ CLS & limited public forums SCT now seems to accept a distinct 4 th category – the limited public forum (as intimated in Perry footnote 7): What rules apply here? Not entirely clear but this might be an adequate summary. When gov’t opens a forum but limits it to certain speakers & topics, the forum parameters are constitutional if they are reasonable and viewpoint neutral. When the State applies the forum criteria and excludes a speaker based on the subject matter of his speech, the exclusion need only be “reasonable in light of the purposes served by the forum” and viewpoint neutral. But after Rosenberger SCT may review exclusion of religious viewpoints more strictly. If gov’t opens a forum but excludes a speaker whose speech obviously falls within the subject matter constraints of the forum, the exclusion is subject to strict scrutiny.