Perry’s original tri-partite forum analysis 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. 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

Perry - designated, limited and nonpublic fora Why doesn’t the fact that the school allowed other groups to use the mailboxes mean that the boxes were a designated public forum as opposed to a non-public forum? SCT - school kept sufficient control over access – required permission, etc. – so that it was clear that it had not opened up the forum for expressive purposes How much control over mailboxes must school cede before a designated forum is created Since the school allowed groups like Boy Scouts, Girl Scouts, YMCA, parochial schools to use boxes, why hasn’t the school has opened up the mailboxes as an expressive forum – i.e., designated forum? SCT - even if opening up access to these groups created a forum, it would be “limited” only to groups of a similar character. Which brings us to footnote 7

Designated and limited public fora – the same or different Issue: If gov’t can’t discriminate based on content in a designated public forum, how can it only open forum to “entities of a similar character” and still have a limited public forum rather than a non- public forum? Footnote 7 intimates that can limit designated forums by speaker or subject matter What are the implications of this for the applicable rules? Do we apply the rules of the nonpublic forum (reasonable and viewpoint neutral)? Do we allow content (subject-matter discrimination) only re the parameters of the forum but not within the forum itself?

Nonpublic fora and viewpoint discrimination Perry involved a non-public forum. Even here the government cannot engage in viewpoint-based discrimination. Was the school’s refusal to allow the rival union access to the teacher’s mailbox in Perry an attempt to suppress a particular viewpoint?

More on nonpublic fora & viewpoint discrimination Cornelius - CFC involved a voluntary fundraising drive in federal workplace conducted during work hours. E.O. limited it to “voluntary, tax-exempt, non-profit, charitable agencies that provide direct health and welfare services” & excluded legal defense and political advocacy groups. What kind of forum was the CFC? Why? Do you agree with Justice O’Connor’s characterization? Was the exclusion of legal defense and political advocacy groups based on viewpoint? Is the desire to “avoid controversy” unassociated with viewpoint?

Rosenberger v. Rectors and Visitors of UVA 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 – 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?

Kokinda – when is a public forum not a public forum? Why weren’t the post office sidewalks a public forum? What are the opinion’s implications? When is a public forum no longer be a public forum? How much speech must the gov’t allow on its property before a designated forum is created under Kokinda’s language? Are there ways of limiting the opinion’s reach?

Eroding the traditional public forum? After Kokinda/Summum (p. 200) – is SCT signaling that a traditional public forum isn’t always a traditional public forum? Under what circumstances would/should that be the case? Kokinda: when sidewalk isn’t really used as a public passageway Summum: when the speech isn’t a typical transitory protest/entertainment that doesn’t interfere with the other traditional function of the property (driving, walking, park) – unlike a permanent monument Should a park be considered a different kind of forum for different kinds of speech? Dangers?