First Amendment law concerning government regulation of the freedom of speech tends to develop in strands. One such strand is forum analysis, which concerns the constitutional limitations on government control of speech and expression on government property.
The Supreme Court’s forum analysis includes three types of forums. The traditional public forum includes public streets, sidewalks, and parks, all places historically reserved for expressive activities. The designated public forum is any other government property intentionally held open for expressive activities. The nonpublic forum comprises all of the remaining government property, such as jails and military bases. The forum label dictates the analysis the court will apply.
The Supreme Court uses essentially the same test for traditional and designated public forums. The test has several requirements. First, the government generally cannot enact content based regulations that discriminate against a particular message (Widmar v. Vincent, 454 U.S. 263, 1981). Second, the government can enact content-neutral time, place, and manner regulations, but only if the regulations are reasonable (Perry Education Ass’n v. Perry Local Educators’ Ass’n, 372 U.S. 229, 1963). Reasonable regulations are defined by the Supreme Court as those that are narrowly tailored to serve a substantial government interest and leave open ample alternative channels of communication (see, for example, Ward v. Rock Against Racism, 491 U.S. 781, 1989).
It is important to emphasize that heavy use does not dictate whether a designated public forum is created. Instead, the government’s intent is critical. Thus, airports generally are not designated public forums but rather nonpublic forums, because they are places where people congregate to travel, not to speak (see, for example, International Society for Krishna Consciousness, Inc. v. Lee, 502 U.S. 1022, 1992). Similarly, a public school during school hours is a nonpublic forum and not a designated public forum because it is dedicated to teaching and learning, not to freedom of expression (see, for example, Bethel School District No. 403 v. Fraser, 478 U.S. 675, 1986).
On the other hand, public schools opened to the community for the after-hours exchanges of communication can become designated public forums. If a public school becomes a designated public forum after hours, school officials are prevented from excluding certain groups because of their message (see, for example, Good News Club v. Milford Central School, 553 U.S. 98, 2001). (The exclusion of a religious group from after-hours discussions of character and morals while allowing all other nonreligious groups to do so is impermissible content based discrimination.)
Cases and Statutes Cited