Public/Nonpublic Forums Distinction

2012-08-20 14:57:41

The distinction between a ‘‘public forum’’ and a ‘‘nonpublic forum’’ is at the heart of ‘‘public forum doctrine’’—the set of rules used by courts to determine when government may regulate speech on public property. If public property is deemed to be a ‘‘public forum,’’ courts are quite protective of speech and give heightened scrutiny to the government’s reasons for and means of restricting speech in the forum. (A public forum can be a ‘‘traditional’’ public forum like streets, sidewalks and parks or a ‘‘designated’’/ ’’limited’’ public forum like public-university meeting rooms and municipal theaters.) In contrast, if public property is deemed instead to be a ‘‘nonpublic forum,’’ then courts apply only a low level of scrutiny to the government’s speech restrictions on that property, requiring merely that the government regulation be reasonable in light of the purpose of the forum and not discriminate against a particular viewpoint.

Since speech in a ‘‘nonpublic forum’’ receives relatively little protection by the courts, freedom of speech depends very much on how a court initially categorizes the public property on which the government would restrict speech. ‘‘Nonpublic forum’’ serves as the default category for all public property that is neither a traditional public forum nor a designated/ limited public forum. Thus, if the property has not been used historically for purposes of assembly, communication, and discussion (as a traditional public forum) or intentionally opened by the state for use by the public for expressive activity (as a designated or limited public forum), the property is classed as a ‘‘nonpublic forum.’’ Examples of nonpublic forums include airport terminals, polling places, prisons, military bases, lampposts, Internet access on computers in public libraries, political debates on public television, and the sidewalks leading up to a post office. The public/nonpublic forums distinction has long been criticized by judges, lawyers, and academics for being inconsistently applied and easily manipulated and thus for failing to safeguard speech, particularly from covert government viewpoint discrimination.


References and Further Reading

  • Ayers, Irene Segal, What Rudy Hasn’t Taken Credit for: First Amendment Limits on Regulation of Advertising on Government Property, Arizona Law Review 42 (2000): 607.
  • Gey, Steven G., Reopening the Public Forum—From Sidewalks to Cyberspace, Ohio State Law Journal 58 (1998): 1535.
  • Montgomery, Suzanne Stone, Note, When the Klan Adopts a Highway: The Weaknesses of the Public Forum Doctrine Exposed, Washington University Quarterly 77 (1999): 557.
  • Post, Robert, Between Governance and Management: The History and Theory of the Public Forum, UCLA Law Review 34 (1987): 1713.
  • Smolla, Rodney A. Smolla and Nimmer on Freedom of Speech, vol. 1. St. Paul, MN: West Group, 2003, 8:1–52.
  • Stoll, David A., Public Forum Doctrine Crashes at Kennedy Airport, Injuring Nine: International Society for Krishna Consciousness, Inc. v. Lee, Brook. Law Review 59 (1993): 1271.
  • Tribe, Lawrence H. American Constitutional Law, 2nd ed. Mineola, NY: Foundation Press, 1988, 986–997.

See also Categorical Approach to Free Speech; Designated Public Forums; Hague v. C.I.O, 307 U.S. 496, (1939); Limited Public Forums; Public Forum Doctrines; Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 1995); Traditional Public Forums