Forum (legal)
Encyclopedia
A public forum is a United States constitutional law
term that describes a government
-owned property that is open to public expression
and assembly.
A public forum, also called an open forum, is open to all expression that is protected under the First Amendment
. Streets, parks, and sidewalks are considered open to public discourse by tradition and are designated as traditional public forums. The government creates a designated public forum when it intentionally opens a nontraditional forum for public discourse. Limited public forums, such as municipal meeting rooms, are nonpublic forums that have been specifically designated by the government as open to certain groups or topics. Traditional public forums cannot be changed to nonpublic forums by governments.
The use of public forums generally cannot be restricted based on the content of the speech expressed by the user. Use can be restricted based on content, however, if the restriction passes a strict scrutiny test for a traditional and designated forum or the reasonableness test for a limited forum. Also, public forums can be restricted as to the time, place and manner of speech. In the 1972 case Grayned v. Rockford, the Supreme Court
found that "The nature of a place, 'the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.'" In determining what is reasonable, the Court stated that "[the] crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Thus, protesters have the right to march in support of a cause, but not on a public beach during the middle of the day with bullhorns.
A nonpublic forum is not specially designated as open to public expression. For example, jails, public schools, and military bases are nonpublic forums (unless declared otherwise by the government). Such forums can be restricted based on the content of the speech, but not based on viewpoint. Thus, while the government could prohibit speeches related to abortion
on a military base, it could not permit a pro-life speaker while denying a pro-choice speaker (or vice versa).
Regardless of the type of forum, any exclusion must be done on a viewpoint neutral basis. Exclusion based on the speaker’s viewpoint is unconstitutional.
doctrine blocks citizens' First Amendment
claims that the government set up a forum for them, and unconstitutionally suppressed speech in it.
, state governments had the authority to regulate speech in public places without regard to the First Amendment. In the 1895 Massachusetts Supreme Judicial Court
case Massachusetts v. Davis, Justice Oliver Wendell Holmes
wrote that "For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house." The Supreme Court unanimously upheld Holmes' opinion in the 1897 appeal Davis v. Massachusetts.
However, in 1939, Justice Owen Josephus Roberts
stated that "use of the streets and public places has, from ancient times, been a part of the privileges [...] of citizens." And in 1965, Professor Harry Kalven
described such places as a "public forum that the citizen can commandeer".
relied on the notion of a public forum in determining the degree to which a public school newspaper that has not been determined as such a forum can be protected by the First Amendment
. The Court decided that such newspapers are subject to a lower level of First Amendment protection than independent student newspapers established (by policy or practice) as forums for student expression.
United States constitutional law
United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution.- Introduction :United States constitutional law defines the scope and application of the terms of the Constitution...
term that describes a government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
-owned property that is open to public expression
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
and assembly.
Types
Forums are classified as public or nonpublic.A public forum, also called an open forum, is open to all expression that is protected under the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
. Streets, parks, and sidewalks are considered open to public discourse by tradition and are designated as traditional public forums. The government creates a designated public forum when it intentionally opens a nontraditional forum for public discourse. Limited public forums, such as municipal meeting rooms, are nonpublic forums that have been specifically designated by the government as open to certain groups or topics. Traditional public forums cannot be changed to nonpublic forums by governments.
The use of public forums generally cannot be restricted based on the content of the speech expressed by the user. Use can be restricted based on content, however, if the restriction passes a strict scrutiny test for a traditional and designated forum or the reasonableness test for a limited forum. Also, public forums can be restricted as to the time, place and manner of speech. In the 1972 case Grayned v. Rockford, the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
found that "The nature of a place, 'the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.'" In determining what is reasonable, the Court stated that "[the] crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Thus, protesters have the right to march in support of a cause, but not on a public beach during the middle of the day with bullhorns.
A nonpublic forum is not specially designated as open to public expression. For example, jails, public schools, and military bases are nonpublic forums (unless declared otherwise by the government). Such forums can be restricted based on the content of the speech, but not based on viewpoint. Thus, while the government could prohibit speeches related to abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
on a military base, it could not permit a pro-life speaker while denying a pro-choice speaker (or vice versa).
Regardless of the type of forum, any exclusion must be done on a viewpoint neutral basis. Exclusion based on the speaker’s viewpoint is unconstitutional.
Forum analysis versus government speech doctrine
In several important cases, courts have decided that what appeared to be viewpoint-based censorship in a forum was actually the government's tailoring of its own speech, which need not be viewpoint neutral, and that no forum was in fact created. When a governmental entity, such as a public broadcaster, employs the speech of ordinary citizens to further its goals, the government speechGovernment speech
The government speech doctrine, in American Constitutional Law, deals with speech made by the government. The doctrine says that the government need not maintain viewpoint neutrality in its own speech, broadly defined...
doctrine blocks citizens' First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
claims that the government set up a forum for them, and unconstitutionally suppressed speech in it.
History
Prior to the legal development of substantive due processDue process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
, state governments had the authority to regulate speech in public places without regard to the First Amendment. In the 1895 Massachusetts Supreme Judicial Court
Massachusetts Supreme Judicial Court
The Massachusetts Supreme Judicial Court is the highest court in the Commonwealth of Massachusetts. The SJC has the distinction of being the oldest continuously functioning appellate court in the Western Hemisphere.-History:...
case Massachusetts v. Davis, Justice Oliver Wendell Holmes
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
wrote that "For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house." The Supreme Court unanimously upheld Holmes' opinion in the 1897 appeal Davis v. Massachusetts.
However, in 1939, Justice Owen Josephus Roberts
Owen Josephus Roberts
Owen Josephus Roberts was an Associate Justice of the United States Supreme Court for fifteen years. He also led the fact-finding commission that investigated the attack on Pearl Harbor. At the time of World War II, he was the only Republican appointed Judge on the Supreme Court of the United...
stated that "use of the streets and public places has, from ancient times, been a part of the privileges [...] of citizens." And in 1965, Professor Harry Kalven
Harry Kalven
Harry Kalven, Jr. was an American jurist, regarded as one of the preeminent legal scholars of the 20th century. He was the Harry A. Bigelow Professor of Law at the University of Chicago Law School. Kalven coauthored, with Charles O...
described such places as a "public forum that the citizen can commandeer".
Usage
The decision in Hazelwood v. KuhlmeierHazelwood v. Kuhlmeier
Hazelwood School District et al. v. Kuhlmeier et al., was a decision by the Supreme Court of the United States, which held that public school curricular student newspapers that have not been established as forums for student expression are subject to a lower level of First Amendment protection...
relied on the notion of a public forum in determining the degree to which a public school newspaper that has not been determined as such a forum can be protected by the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
. The Court decided that such newspapers are subject to a lower level of First Amendment protection than independent student newspapers established (by policy or practice) as forums for student expression.
See also
- Time, place, or manner restrictions