Public Forum by Darren Chaker

For purposes of the First Amendment, Darren Chaker posts this blog about library internet filtering and its review before the high court. The Supreme “Court [has] identified three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum.” Cornelius v. NAACP Legal Def. & Educ.Fund, Inc., 473 U.S. 788, 802 (1985). “Traditional” public fora include those places which “by long tradition or by government fiat have been devoted to assembly and debate.” Perry Educ. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45 (1983). They include “streets and parks which 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.” Id. at 45 (internal quotation marks and citations omitted). Computers are devices of very recent origin. They are manifestly not in the category of traditional public fora. A “designated” public forum “consists of public property which the State has opened for use by the public as a place for expressive activity.” Id. at 45 (emphasis added).

Moreover, in order to be a “designated” public forum, the property must be open to “indiscriminate use by the general public.” Id. at 47 (emphasis added). Thus the Court has explained that “[t]he mere fact that an instrumentality is used for the communication of ideas does not make a public forum.… Were we to hold to the contrary, display cases in public hospitals, libraries, office buildings, military compounds, and other public facilities, immediately would become Hyde Parks open to every would-be pamphleteer and politician. This the Constitution does not require.” Perry, 460 U.S. at 49, n.9 (internal quotation marks and citations omitted). 

No library has opened its doors for indiscriminate use by the public at large for all communication purposes. Libraries accordingly are not properly characterized as “designated” public fora. But see Kreimer v. Bureau of Police, 958 F.2d 1242, (3d Cir. 1992)(concluding that a library is a designated public forum and upholding library regulations on patron behavior). A “non-public forum” (sometimes called a “nonforum”) consists of “publicly-owned facilities that have been dedicated for either communicative or non-communicative purposes, but that have never been designated for indiscriminate expressive activity by the general public.” Smolla And Nimmer On Freedom Of Speech § 8:8. Libraries fall into this category and are subject to the broad authority that government may exercise over such property.


In the traditional forum content-based regulations of citizen speech are subject to strict scrutiny. Such regulations will survive challenge only if “narrowly drawn to achieve a compelling state interest.” International Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). In a “designated” forum the government may dedicate it to 10 certain purposes and impose limitations that are “reasonable in light of the purpose served by the forum,” as long as the regulation does not result in “viewpoint discrimination.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (quoting Cornelius, 473 U.S. at 406). 

By contrast, in a non-public forum “the state has maximum control over communicative behavior since its actions are most analogous to that of a private owner.” Paulsen v. County of Nassau, 925 F.2d 65, 69 (2nd Cir. 1991). “[G]overnment imposed restrictions of speech in [non-public fora] will be upheld so long as reasonable and viewpoint neutral.” Lee Art Theater, Inc.v. Virginia, 505 U.S. 636, 694. (Kennedy, J. concurring).

As Smolla and Nimmer have pointed out: The government “may reserve the forum for its intended purposes communicative or otherwise, as long as the regulation of speech is reasonable and not an effort to suppress expression merely because public officials opposed the speaker’s view. Entire classes of speech thus may be excluded from a nonforum. Those classes may be identified by content, as long as the exclusion is reasonable in light of the purpose of the forum and there is no discrimination upon viewpoints within a class. Smolla And Nimmer § 8:8 (quoting Perry, 460 U.S. at 47 with emphasis added by Smolla and Nimmer).The communications that are the target of the filtering software mandated by the federal statute are websites containing obscenity, child pornography or material harmful to minors. This restriction is manifestly the sort of content-based regulation that is permissible under the First Amendment standard that governs “designated” fora or non- public fora. 

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