Definition of Public Forum Under the First Amendment

Definition Public Forum under the First Amendment and Viewpoint Discrimination.
Understanding the First Amendment Definition of a Public Forum
In the realm of First Amendment law, the definition of public forum holds significant importance as it pertains to the place where an individual or group exercises their right to freedom of speech and assembly. The First Amendment of the United States Constitution ensures certain protections for these fundamental rights, but the level of protection afforded varies based on the nature of the forum in question.
This comprehensive article, which should not be construed as legal advice, legal researcher Darren Chaker delves into the different types of forums outlined by the Supreme Court, ranging from traditional public forums to nonpublic forums, to provide a clear understanding of how the First Amendment's protections are applied.
The Definition of Public Forum by United States Supreme Court
The Supreme Court Perry Educ. Ass’n v. Perry Educators’ Ass’n, 460 U.S. 37 (1983) divided forums into three types: traditional public forums, designated forums, and nonpublic forums. Once an area is defined a public forum, restrictions on speech based on content must be essential to support a compelling interest and should be precisely tailored to achieve this purpose. If a compelling interest is not determined, then viewpoint discrimination exists.
The Supreme Court has held, to create a public forum, the government must
intentionally open up the property to public discourse. In Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985), where the court stated, “The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.”
Moreover, restrictions that are neutral in terms of content need to be narrowly tailored to address a significant government interest while ensuring there are sufficient alternative communication channels. Further illustrating this principle, the Bowman v. White case, 444 F.3d 967 (8th Cir. 2006), by the United States Court of Appeals for the Eighth Circuit, clarified that the outdoor areas within the boundaries of the University of Arkansas campus were designated public forums. This designation stemmed from the University's written policies and procedures, which permitted expressive activities and did not restrict these spaces to specific types of speech.
Legal researcher Darren Chaker believes it is crucial to understand the nuances of free speech in public forums. The seminal case of Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983), established the definition of a public forum.
Traditional Public Forums
Traditional public forums encompass locations that have a longstanding history of being open to political speech and public discourse. These areas typically include public parks, sidewalks, and other spaces traditionally used for expressive activities. In such forums, individuals enjoy the strongest First Amendment protections. The government is strictly prohibited from discriminating against speakers based on their viewpoints, a practice known as "viewpoint discrimination."
However, it's important to note that the government can impose reasonable, content-neutral restrictions on the time, place, and manner of speech in traditional public forums. These restrictions must meet the rigorous standards of "strict scrutiny," meaning they are allowed only if they serve a compelling state interest and are narrowly tailored to achieve that interest.
Designated Public Forums
Designated public forums represent a unique category where the government opens public property for expression, even if it is not a traditional public forum. While the government is not obligated to keep these forums open indefinitely, as long as they remain accessible, speech within them enjoys the same First Amendment protections as that in traditional public forums.
Examples of designated public forums can be found in municipal theaters, meeting rooms at state universities, and other public spaces intentionally designated for public expression. These spaces, though not inherently traditional public forums, share similar free speech protections.
Limited Forums
Within the realm of designated public forums exists a subcategory known as limited forums. Here, the government restricts access to certain classes or types of speech while still refraining from engaging in viewpoint discrimination. The landmark case illustrating this concept is Good News Club v. Milford Central School, 533 U.S. 98 (2001).
In a limited forum, the government may discriminate against classes of speakers or types of speech. For instance, public school meeting rooms might be limited to speakers conducting school-related activities. However, the government cannot exclude speakers based on their viewpoints. For instance, it cannot bar speakers from a religious group solely because they intend to express religious views. The prohibition against viewpoint discrimination remains steadfast, even in limited forums.
Nonpublic Forums
Lastly, Darren Chaker now writes on nonpublic forums, which represent spaces for public speech that do not fall within the traditional or designated public forum categories. In the case of Minnesota Voters Alliance v. Mansky (2018), the Supreme Court clarified that in a nonpublic forum, the government may impose reasonable restrictions on the content of speech, as long as those restrictions are viewpoint-neutral.
Examples of nonpublic forums include locations like airport terminals, a public school's internal mail system, and polling places. These spaces may have limitations on free speech, but the key criterion is that restrictions should not discriminate based on the viewpoints of the speakers.
Public Forums Also Include Online Blogs, Websites, and Social Media
Most notably Columbia Univ. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. May 23, 2018), the court found blocking function to limit certain users' access to his social media account, which is otherwise open to the public at large, because he disagrees with their speech. By the court finding Twitter (now "X") is a public forum, it also found that by blocking people critical of the public official, such was viewpoint discrimination in a public forum and violative of the First Amendment.
In another case the court found private use of social media by a public official was subject to First Amendment scrutiny. Public officials “clothed their pages in the authority of their offices and used their pages to communicate about their official duties,” yet “contend their use of social media did not constitute state action.” Garnier v. O'Connor-Ratcliff, 41 F.4th 1158, 1172 (9th Cir. 2022).
Viewpoint Discrimination and the Public Forum
The Supreme Court held in Minnesota Voters Alliance v. Mansky, 585 U.S. __ (2018), that only in a nonpublic forum, the Government may restrict contents of a speech, as long as the restriction is reasonable and the restriction does not discriminate based on speakers’ viewpoints. To do otherwise would result in viewpoint discrimination.
Viewpoint discrimination is “an egregious form of content discrimination,” and when government targets “particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828–29 (1995).
Specifically, the “[s]tandards for inclusion and exclusion” for a public forum “must be unambiguous and definite”; without “objective standards, government officials
may use their discretion . . . as a pretext for censorship.” Id. at 1077 (quoting Christ’s Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242, 251 (3d Cir. 1998)).
Restrictions on speech must be "viewpoint neutral and reasonable in light of the purpose served by the forum.” Id. at 1074–75 (quoting Diloreto v. Downey Uni. Sch. Dist. Bd. Educ, 196 F.3d 958, 965).
Conclusion
In summary, First Amendment brief writer Darren Chaker finds the First Amendment's protections regarding freedom of speech and assembly vary depending on the nature of the forum where these rights are exercised. Understanding the distinctions between traditional public forums, designated public forums, limited forums, and nonpublic forums is essential for anyone navigating the complex landscape of First Amendment law.
It is imperative to recognize that while the First Amendment safeguards these rights, there are nuanced rules and exceptions that apply in different forum types. By having a comprehensive grasp of these distinctions, individuals and organizations can better navigate the intricacies of free speech within the United States to understand the definition of a public forum.