Traditional Public Forums

All recognize that citizens have a First Amendment right to speak. But what places are available for speech? If someone wants to proselytize a crowd of strangers in a public park or organize loud demonstrations on public streets, may the government restrict the speaker or regulate the marchers? May the government restrict distribution of leaflets on street corners because recipients litter the streets? Questions such as these are addressed under the First Amendment doctrine of the ‘‘public forum.’’

Early in the twentieth century, while serving on the Massachusetts Supreme Judicial Court in a case upholding the conviction of a preacher for speaking on the Boston Common without a permit, Justice Holmes held that the government could forbid use of streets and parks much like a private homeowner could exclude unwanted guests from his or her property. Such an approach would grant the government unlimited power to restrict communications on public property. However, beginning in the 1930s, the Supreme Court has held that certain public spaces known as ‘‘traditional’’ public forums—streets and parks—have ‘‘immemorially been held in trust’’ for the public to assemble and communicate.

Courts have followed two theories in cases involving traditional public forums. One theory is that the government is required to provide equal access to public places. The idea is that if the government permits public marches supporting breast cancer research, it must also permit marches criticizing the government’s incessant war-mongering. For example, in Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), the Court invalidated a Chicago ordinance prohibiting picketing near schools but exempting peaceful picketing of any school involved in a labor dispute. In Staub v. Baxley, 355 U.S. 313 (1958), the Court overturned an ordinance that prohibited the solicitation of membership in dues-paying organizations without a permit from officials on the grounds that one’s First Amendment rights may not hinge ‘‘upon the uncontrolled will of an official.’’ Such decisions require that government act in a ‘‘content neutral’’ way toward speakers and demonstrators and protect against picking and choosing based on the message contained in one’s literature.

However, the equal access approach does not prevent the government from closing streets and parks to all demonstrations or public speakers. Thus, a second theory requiring presumptive mandatory access to streets and parks—traditional public forums—has continued to influence courts. For example, certain New Jersey municipalities forbade distribution of leaflets on public streets to curtail litter. The Supreme Court held this purpose insufficient to justify a total ban on literature distribution, particularly since the communities had other means of preventing litter— such as punishing those who actually throw papers on the street. Likewise, a municipality cannot forbid the display of advocacy signs on private residences on grounds that such signs contribute to visual blight: Residential signs posted during political campaigns provide an important outlet for citizens to communicate, and the government may not remove that ‘‘channel’’ of communication.

The fact that the government must permit access to certain property for communicative purposes does not mean that it may not impose restrictions on communication in the public forum. Indeed, unless the government property is a ‘‘traditional’’ forum, a different set of rules governs so-called ‘‘nontraditional’’ forums such as mailboxes and utility poles where literature might be posted, military bases, airports, and property immediately adjacent to post offices and jails.

Moreover, even within the ‘‘traditional’’ public forum, the government may regulate the ‘‘time, place, and manner’’ (TPM) of communications in the public forum. Such regulations must be issued without regard to the content of the communication; must serve important goals of the government and the means chosen must reasonably relate to the ends sought; and must leave open sufficient other outlets for the communications. The current Supreme Court has interpreted this doctrine in a relatively relaxed way and has approved many regulations that limit the scope of communicative activity.

For example, in one case, demonstrators sought to publicize the plight of the homeless by sleeping outdoors overnight in the middle of winter in a public park in Washington, D.C. The Court upheld National Park Service regulations that prohibited such camping as a reasonable ‘‘manner’’ regulation. In another case, the Minnesota State Fair prohibited the distribution of literature on fairgrounds, except from special booths. The Court upheld the partial ban as a reasonable ‘‘traffic’’ regulation that avoided congestion and inconvenient ‘‘bottlenecks’’ to pedestrian traffic.

The principle that reasonable TPM regulations will be upheld in public forum cases has been tested in several important Abortion Protest Cases. In Madsen v. Women’s Health Center, 512 U.S. 753 (1994), after hearing evidence that demonstrators were preventing access to a medical clinic providing abortions, holding aloft images of bloodied fetuses, and employing amplification equipment that penetrated the clinic, a lower court had issued an injunction imposing limits on the demonstrators. The injunction established a thirty-six-foot ‘‘buffer zone’’ around the clinic, forbade the display of the images and use of sound equipment, and forbade approaching any patient within three hundred feet of the clinic.

In reviewing the injunction, the Supreme Court upheld the buffer zone limit, but only to the extent to which it protected actual entrances to the clinic. The court analyzed the image and sound regulation in light of the government’s interest in avoiding interference with the right to receive medical treatment. The noise injunction was upheld, since amplified voices interfered with surgical procedures and patient recovery. However, the image limitation was overturned; the Court reasoned that to protect patients the clinic could draw blinds. The ban on approaching others within three hundred feet was also overturned, since it was far broader than necessary to protect clinic patients.

In sum, the traditional public forum doctrine has generally protected access to streets and parks for communicative activity. However, courts have tended to be much more deferential to governmental time, place, and manner regulations that appear to be reasonable. Although TPM regulations may effectively restrict the capacity of speakers to reach their intended audience (such as the fairgoers at the Minnesota State Fair), the current Court has concluded that those restrictions are a reasonable trade-off.

JOHN T. NOCKLEBY

References and Further Reading

• Kalven, The Concept of the Public Forum: Cox v. Louisiana, Sup. Ct. Rev. (1965): 1.
• Post, Between Governance and Management: The History and Theory of the Public Forum, UCLA L. Rev. 34 (1987): 1713.
• Stone, Fora Americana: Speech in Public Places, Sup. Ct. Rev. (1974): 1287.

Cases and Statutes Cited

• Clark v. CCNV, 468 U.S. 288 (1984)
• Davis v. Massachusetts, 167 U.S. 43 (1897)
• Hague v. C.I.O., 307 U.S. 496 (1939)
• Heffron v. ISKON, 452 U.S. 640 (1981)
• City of Ladue v. Gilleo, 512 U.S. 43 (1994)
• Madsen v. Women’s Health Center, 512 U.S. 753 (1994)
• Police Department of Chicago v. Mosley, 408 U.S. 92 (1972)
• Schneider v. State, 308 U.S. 147, 163 (1939)
• Staub v. Baxley, 355 U.S. 313 (1958)

See also Content-Neutral Regulation of Speech; Holmes, Oliver Wendell, Jr.; Picketing; Prior Restraint; Time, Place, and Manner Rule