Case summaries


Case Name: Davis v. Massachusetts, 167 U.S. 43 (1897)
Argued: March 25, 1897
Date Decided: May 10, 1897
Vote: Unanimous. An ordinance prohibiting any person from making any public address on any public grounds without a permit from the mayor is within the police power and does not violate the 14th Amendment of the Constitution of the United States.
Facts: Davis was convicted of violating a Boston City ordinance that made it illegal to make any public address on public grounds except in accordance with a permit from the mayor. Davis appealed his conviction, arguing that the ordinance violated his First Amendment right to speak.
Issue: Whether an ordinance requiring a permit from the mayor to make any public address on public grounds violates the 14th Amendment of the United States Constitution.
Legal Basis for Decision: The Court determined that the Boston Common was absolutely under the control of the legislature, which could both limit its use and could and did delegate this authority to the municipality. The Court determined that for the Legislature to forbid or limit public addresses on the common was no more an infringement of the rights of a member of the public than for the owner of private property to forbid the same conduct.
Quotable: "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."
Writing for the Majority: Justice White
Case Name: Hague v. CIO, 307 U.S. 496 (1939)
Argued: Feb. 27, 28, 1939
Date Decided: June 5, 1939
Vote: 5-2; A municipal ordinance requiring a permit for public assembly in or upon the public streets, highways, public parks or public buildings of the city is void on its face.
Facts: A Jersey City ordinance prohibited public meetings without a permit. Individual citizens and a labor union, the CIO, seeking to educate laborers about the National Labor Relations Act, applied for a permit. The permit was denied, and the citizens and the CIO filed suit, arguing that the ordinance violated their First Amendment rights to speak and assemble. Both the district and appellate courts ruled in favor of the individuals and the union.
Issue: Whether an ordinance prohibiting public meetings without a permit in order to prevent disorderly assembly violates the First Amendment.
Legal Basis for Decision: Governing principles at the time required restrictions on speech to relate to the municipality's comfort and convenience of using the streets and parks. The Court determined that the Jersey City ordinance was arbitrary and therefore did not relate to the comfort or convenience of using the streets or parks. The Court justified its finding by explaining that the director of public safety, who had authority to issue and deny permits, could determine that any communication had the potential for causing disorderly conduct and therefore could limit expression far more than the prevailing standards of the time would suggest.
Quotable: "Wherever the title of streets and parks may rest, 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."
Writing for the Majority: Justice Roberts
Case Name: Widmar v. Vincent, 454 U.S. 263 (1981)
Argued: Oct. 6, 1981
Date Decided: Dec. 8, 1981
Vote: 7-2; A state university policy prohibiting the use of university grounds or facilities for religious worship or religious teachings amounts to content-based discrimination of religious speech for which there is no compelling justification.
Facts: A state university which routinely provided facilities for registered student-organization activities refused to allow a student group to use university facilities to engage in religious worship and discussion. The exclusion was based on a university policy prohibiting the use of school buildings or facilities "for purposes of religious worship or religious teaching." Several student members of the group brought suit, alleging that the university's policy violated their rights to free exercise of religion, equal protection and freedom of speech. The district court upheld the regulation but was reversed by the court of appeals.
Issue: Whether a state university, which makes its facilities generally available for the activities of registered student organizations, may close its facilities to a registered student group desiring to use the facilities for religious worship and religious discussion.
Legal Basis for Decision: The Court reasoned that because the university had created a forum generally open for use by student groups, it assumed an obligation to justify any discriminations and exclusions under applicable constitutional norms. The Constitution forbids a state to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place unless there is a compelling justification for the exclusion and such exclusion is narrowly tailored to meet that end. The university argued that the Establishment Clause of the First Amendment required the exclusion, but the Court rejected this argument, holding that the Establishment Clause does not bar a policy of equal access in which facilities are open to groups and speakers of all kinds.
Quotable: "Although the Court recognizes that a state need not indefinitely keep a limited public forum open to the public, while the forum is open, the Court imposes the same restrictions on the state concerning restriction on limited public forums as it does on traditional public forums."
Writing for the Majority: Justice Powell
Case Name: Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983)
Argued: Oct. 13, 1982
Date Decided: Feb. 23, 1983
Vote: 5-4; Preferential access to a school mail system does not violate the First Amendment and the differential access afforded rival unions does not constitute impermissible content discrimination.
Facts: A union was elected as the exclusive bargaining agent for the teachers of a school district. Per its collective-bargaining agreement with the school board, only the representative union would have access to the interschool mail system and teacher mail folders. A rival union, contending the preferential-access system violated the First Amendment and the equal-protection clause of the Fourteenth Amendment, brought suit. The district court entered judgment for the defendants. The court of appeals reversed, holding that the school district's preferential-access policy violated both the First Amendment and the equal-protection clause of the 14th Amendment.
Issue: Whether the denial of equal access to an internal mail system within a school district to representative and rival unions violated the First Amendment and the equal protection clause of the 14th Amendment.
Legal Basis for Decision: The Court adopted a three-part framework to evaluate different types of government-owned property. In traditional public forums, "places which by long tradition or by government fiat have been devoted to assembly and debate," the rights of a state to limit expressive activity are more closely scrutinized. In such forums, the government may not prohibit all communicative activity and may enforce content-based restrictions only to the extent that such regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. A second category of property is the limited public forum, public property which the state has opened for use by the public for expressive activity. Although a state is not bound to retain the open character of the property indefinitely, as long as it does so it is bound by the same standards as apply to a traditional public forum. Public property that is not by tradition or designation a public forum is designated as a nonpublic forum. The state may reserve the forum for its intended purposes as long as the regulation on speech is reasonable and not an effort to suppress expression because public officials oppose the speaker's view. The Court determined that the school mail facilities at issue were a nonpublic forum. The Court based its decision on the fact that the school mail system was not open to the public and permission had to be obtained from the school principal. The record indicated that permission had been granted only to a few outside organizations, such as the YMCA, Cub Scouts, and other civic and church organizations. Citing Greer v. Spock, 424 U.S. 828, 838 (1976), the Court stated that this type of selective access does not transform government property into a public forum.
Quotable: "The existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue."
Writing for the Majority: Justice White
Case Name: Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788 (1985)
Argued: Feb. 19, 1985
Date Decided: July 2, 1985
Vote: 4-3; The federal government does not violate the First Amendment by excluding legal-defense and political advocacy organizations from participating in the Combined Federal Campaign (CFC), a charity drive aimed at federal employees.
Facts: The federal government created the Combined Federal Campaign (CFC), an annual charity drive targeting federal employees. Only "appropriate" volunteer organizations were permitted to participate in the CFC. The NAACP Legal Defense and Education Fund was denied participation and filed suit claiming that the CFC's denial of participation to advocacy groups was a violation of the First Amendment. The trial and appellate courts held that the government's reasons for exclusion were not reasonable and the exclusion violated the First Amendment. The Supreme Court reversed.
Issue: Whether the exclusion of advocacy groups from the CFC violated the NAACP's First Amendment right to solicit contributions.
Legal Basis for Decision: Finding that the solicitation of charitable donations was protected speech, the Court then contemplated the nature of the forum. The parties agreed that the CFC was not a traditional public forum but disagreed over whether the CFC was a limited or nonpublic forum. This decision clarified that the Court looks to the "policy and practice" of the government to ascertain whether it intended to designate a place not traditionally open to public discourse as a public forum. The Court concluded that, although the government had created a charity drive through which organizations could solicit donations from federal employees, it could restrict the participation of certain legal-defense and advocacy organizations. Because the government's policy was to limit participation in the charity drive to "appropriate" volunteer organizations, the Court reasoned that the charity drive was not a public forum. As such, the exclusion needed only to be reasonable in light of the purpose served by the forum and viewpoint-neutral, a standard that was met in this case.
Quotable: "The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening nontraditional forum for public discourse."
Writing for the Majority: Justice O'Connor
Case Name: United States v. Kokinda, 497 U.S. 720 (1990)
Argued: Feb. 26, 1990
Date Decided: June 27, 1990
Vote: 5-4; A United States Postal Service regulation which prohibits "soliciting alms and contributions" on postal premises does not violate the First Amendment.
Facts: Volunteers set up a table on a sidewalk near a post office entrance to solicit contributions and distribute political literature. The sidewalk was located entirely on postal property and served as the only means for customers to travel from the parking lot to the post office entrance. The volunteers were asked to leave and refused. They were subsequently convicted of violating the provision prohibiting solicitations on postal property. The appeals court reversed the conviction, finding that the postal sidewalk was a traditional public forum and the regulation at issue was not narrowly tailored to accomplish asserted governmental interests. Finding that the postal sidewalk was not a public forum, the Supreme Court reversed.
Issue: Whether a Postal Service regulation prohibiting solicitations on postal premises violates the First Amendment. Inherent in this consideration is whether the sidewalk where the solicitations occurred is a traditional public forum.
Legal Basis for Decision: The Court explained that a protectable sidewalk is one that is continuously open and serves as a place where people can "enjoy the open air or the company of friends or neighbors in a relaxed environment." Finding that the postal sidewalk was intended solely to provide access from the parking lot to the post office, the Court determined that the postal sidewalk was not a public forum. Applying the rational-basis test to the regulation, the Court concluded that the regulation was reasonable, because prohibiting solicitation was related to preventing the disruption of postal business. Therefore, the Court concluded, the regulation was constitutional.
Quotable: "Not every public sidewalk is a public forum."
Writing for the Majority: Justice O'Connor
Case Name: International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992)
Argued: March 25, 1992
Date Decided: June 26, 1992
Vote: 5-4; Airports are not public forums.
Facts: The members of the International Society of Krishna Consciousness (ISKCON) perform a ritual called sankirtan, which requires them to solicit funds for the Krishna movement and to distribute Krishna literature in public places. The Port Authority of New York and New Jersey enacted a regulation prohibiting the solicitation of funds and the distribution or sale of literature in airport terminals. ISKCON sough an injunction, alleging that the regulation violated the First Amendment. Both the district and appellate courts sided with ISKCON.
Issue: Whether airport terminals are public or nonpublic forums and whether the regulation prohibiting solicitation in airport terminals violates the First Amendment.
Legal Basis for Decision: The Court ruled that airport terminals are not public forums, stating explicitly: "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." In his concurring opinion, Justice Kennedy recognized, however, that this "failure to recognize the possibility that new types of government property may be appropriate forums for speech will lead to a serious curtailment of our expressive activity." Nonetheless, having found air terminals to be nonpublic forums, the Court also held that the regulation in question was reasonable to promote efficient air travel.
Quotable: "The government need not permit all forms of speech on property that it owns and controls. Where the government is acting as a proprietor, managing its internal operations, rather than acting as a lawmaker with the power to regulate or license, its action will not be subjected to the heightened review to which its actions as a lawmaker may be subject."
Writing for the Majority: Chief Justice Rehnquist