What is the Public Forum Doctrine?

The First Amendment to the United States Constitution states, "Congress shall make no law … abridging the freedom of speech …". 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 that interest.

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 and Krishna 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 activity.

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 is designated.