is the Public Forum Doctrine?
The First Amendment to the United States Constitution states,
"Congress shall make no law
abridging the freedom
". Despite this apparently absolutist
statement, the United States Supreme Court has recognized
that the right to speak is not equal at all times and in all
places. While the Court has continually upheld the principle
that an individual retains his or her constitutional rights
in government-controlled settings, the Court must nonetheless
balance the individual's right to speak with the government's
interest in managing its property.
Early jurisprudence addressing this problem focused on time,
place and manner restrictions and ultimately culminated in
a "compatible use" test. This test instructed that
the "crucial question is whether the manner of expression
is basically incompatible with the normal activity of a particular
place at a particular time." If the expression was deemed
incompatible, it could be constitutionally regulated. Eventually
the Court developed a more formal set of regulations, now
known as the "public forum doctrine," to define
the scope of protection required for speakers using government-owned
spaces. Despite being criticized as overly rigid and narrow,
the public forum doctrine remains an important principle in
First Amendment jurisprudence.
The Court's first encounter with the public forum doctrine
was not a First Amendment success. In Davis
v. Massachusetts, 167 U.S. 43, 48 (1897), the Court
affirmed Davis' conviction for speaking on Boston Common without
a permit, holding that "The right to absolutely exclude
all right to use, necessarily includes the authority to determine
under what circumstances such use may be availed of, as the
greater power includes the lesser."
The Davis rationale
survived for 40 years until the Court decided Hague
v. CIO, 307 U.S. 496 (1939). There the Court was asked
to invoke Davis
to uphold a Jersey City ordinance imposing a permit requirement
for speech in public areas. The Court rejected Davis'
rationale. Justice Roberts delivered his famous dictum that,
despite the fact that title to the "streets and parks
may rest in governments, they have immemorially been held
in trust for the use of the public and, time out of mind,
have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions. Such use
of the streets and public places has, from ancient times,
been a part of the privileges, immunities, rights and liberties
of citizens." Hague
v. CIO, 307 U.S. at 515.
The public forum doctrine was refined over the years, culminating
in Perry Education Association
v. Perry Local Educators' Association, 460 U.S. 37
(1983), where the Court established a three-tier categorization
of public forums. The first category articulated in Perry
was the traditional public forum. Traditional public forums
include the streets, sidewalks, and parks discussed in Hague
as being held in trust for the public. In a traditional
public forum, the state may not restrict speech based on content
unless it can show that its regulation is necessary to serve
a compelling state interest and is narrowly tailored to achieve
Courts, however, have read the traditional public forum definition
espoused in Perry
narrowly. In United
States v. Kokinda, 497 U.S. 720, 730 (1990), for example,
the Court held that a sidewalk that provided access from a
parking lot to the post office was not a traditional public
forum, because the Postal Service had not "expressly
dedicated its sidewalks to any expressive activity."
Similarly, in International
Society for Krishna Consciousness v. Lee, 505 U.S.
672, 680 (1992), the Court ruled that airports are not public
forums, reasoning that given the "lateness with which
the modern air terminal has made its appearance, it hardly
qualifies for the description of having 'immemorially
time out of mind' been held in the public trust and used for
purposes of expressive activity."
Justice Kennedy, though concurring in the Krishna
Consciousness decision, acknowledged that the "failure
to recognize that new types of government property may be
appropriate forums for speech will lead to a serious curtailment
of our expressive activity." Id. at 693. In any
event it is clear that Kokinda
Consciousness v. Lee signal a lessened significance
and a more constricted role for the public forum doctrine.
Limited or designated public forums are defined as "public
property which the state has opened for use by the public
as a place for expressive activity" and are treated substantially
the same as traditional public forums. Perry
at 45. Examples of limited public forums include university
meeting facilities, municipal theaters and school board meeting
rooms. The Court looks for clear governmental intent to create
a limited public forum and held in Cornelius
v. NAACP Legal Defense and Education Fund, 473 U.S.
788, 802, that it will not infer the government intent to
create a limited public forum. The Court looks to the "policy
and practice" of the government to determine whether
it intended to designate a nontraditional forum as open to
assembly and debate. The Court also considers the nature of
the property to ascertain whether it is compatible with expressive
Although the Court recognizes that a state need not indefinitely
keep a limited public forum open to the public, while the
limited forum is open, the same restrictions governing traditional
public forums apply. Widmar
v. Vincent, 454 U.S. 263 (1981). Specifically, a state
may only impose reasonable, content-neutral time, place and
manner restrictions so long as the restriction is necessary
and narrowly tailored to serve a compelling state interest.
Finally, every forum that is not a traditional or limited
public forum is a nonpublic forum. Examples of nonpublic forums
are street-light posts, prisons, military bases, polling places,
a school district's internal mail system and airport terminals.
The Court grants states much greater latitude in regulating
nonpublic forums. In addition to applying time, place and
manner regulations, the state may reserve the forum for its
intended purposes, communicative or otherwise, as long as
the regulation on speech is reasonable and not an effort to
suppress expression merely because public officials oppose
the speaker's view.
Recent cases and controversies illustrate that the public
forum doctrine remains a hotly contested area of modern jurisprudence.
The 2000 Democratic and Republican National Conventions, for
example, were marked by debates over when and where protesters
could publicly demonstrate. Attempts were made to limit protests
the weekend before the convention and to allow only those
demonstrations for which prior permits had been properly obtained.
Officials in Philadelphia passed laws to prohibit bandanas
and masks from being worn during protests. In Los Angeles,
law-enforcement officials planned to create a safety zone
around the convention site to keep protesters at least 200
yards from delegates. A federal judge intervened, however,
ruling that the zone violated the First Amendment by unreasonably
restricting the public's chances to communicate with convention
delegates. As a result of the decision, the city was forced
to allow demonstrators on the sidewalks across the street
from the convention entrance.
Recent lower federal court decisions further illustrate the
continuing battle over the public forum doctrine. In Hopper
v. City of Pasco, 2001 U.S. App. LEXIS 2232 (9th Cir.
2001), the city opened a display area within the city hall.
Artists who were invited to display their work were summarily
uninvited when their submissions provoked controversy. The
artists brought suit, claiming violation of the First Amendment.
The District Court held in favor of the city, finding that
the display area was a nonpublic forum. On appeal, however,
the Ninth Circuit reversed, holding that the city had, in
fact, created a designated public forum and had wrongly excluded
the artists' work without a compelling government interest.
In Marlin v. District of Columbia Board of Elections and
Ethics, 236 F. 3d 716 (D.C. Cir. 2001), a voter challenged
a District of Columbia election regulation that prohibited
him from voting in his designated polling place while wearing
a campaign sticker in favor of one mayoral candidate. The
district court held that the ban constituted a reasonable
viewpoint-neutral regulation of a nonpublic forum and, therefore,
did not violate the First Amendment. The United States Court
of Appeals for the District of Columbia affirmed.
Similarly, in Embry v. Lewis, 215 F. 3d 884 (8th Cir.
2000), individuals collecting signatures for an initiative
on the grounds of a public school designated as a polling
place were arrested after refusing to leave. The district
court opined that opening a portion of the school for voting
did not convert the rest of the school grounds from a nonpublic
forum into a designated public forum. The Eighth Circuit affirmed
the decision, holding that the exclusion from the nonpublic
forum was reasonable, based on the broad discretion school
officials have in restricting visitors on school property
to protect the safety and welfare of their students.
Notwithstanding its long history, the public forum doctrine
continues to play a paramount role in decisions concerning
when and where an individual may exercise his or her First
Amendment right to free speech. As the cases demonstrate,
the extent of protection afforded to a speaker using government-owned
facilities is chiefly dependent upon how a particular property