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Constitutional Law • First Amendment - Free Speech
CONLAW#142
Legal Definition
Public forums are government properties that the government is constitutionally required to make available for speech and include areas that are historically open to speech, such as sidewalks and parks.
Plain English Explanation
The First Amendment guarantees the right to free speech, but that doesn't mean you can say whatever you want, wherever you want. The government has to balance free speech with other important considerations, like public safety and the smooth functioning of society.
However, there are certain places, known as "public forums," where the government's ability to restrict speech is very limited. These are places that have traditionally been open to the public for the purpose of assembly, debate, and discussion. Classic examples include public parks, sidewalks, and town squares.
The idea is that in a free society, there need to be some common spaces where people can gather to express their views, protest, and engage with their fellow citizens. The government owns and manages these spaces, but it can't pick and choose which views are allowed - it has to allow all peaceful speech and assembly, even if it's controversial or unpopular.
There are some reasonable restrictions the government can impose, like requiring permits for large demonstrations or prohibiting excessively loud noise at night. But in general, public forums are places where the government's thumb has to come off the scale, and diverse views are allowed to flourish. It's a key way that the public square is preserved in a modern society.
Of course, most government-owned property is NOT a public forum - military bases, airport terminals, and the interiors of government buildings can have much stricter speech rules. The public forum doctrine recognizes that some government spaces are different, and serve as our shared soapbox. It's one way the Constitution ensures that free speech isn't just a right on paper, but a living reality in our communities.
Note: In other cards, you will learn about the various rules that allow the government to restrict types of speech in public forums.
However, there are certain places, known as "public forums," where the government's ability to restrict speech is very limited. These are places that have traditionally been open to the public for the purpose of assembly, debate, and discussion. Classic examples include public parks, sidewalks, and town squares.
The idea is that in a free society, there need to be some common spaces where people can gather to express their views, protest, and engage with their fellow citizens. The government owns and manages these spaces, but it can't pick and choose which views are allowed - it has to allow all peaceful speech and assembly, even if it's controversial or unpopular.
There are some reasonable restrictions the government can impose, like requiring permits for large demonstrations or prohibiting excessively loud noise at night. But in general, public forums are places where the government's thumb has to come off the scale, and diverse views are allowed to flourish. It's a key way that the public square is preserved in a modern society.
Of course, most government-owned property is NOT a public forum - military bases, airport terminals, and the interiors of government buildings can have much stricter speech rules. The public forum doctrine recognizes that some government spaces are different, and serve as our shared soapbox. It's one way the Constitution ensures that free speech isn't just a right on paper, but a living reality in our communities.
Note: In other cards, you will learn about the various rules that allow the government to restrict types of speech in public forums.
Hypothetical
Hypo 1: The city of Hyperville owns a beautiful public park with a stage and amphitheater. For decades, the park has been used for concerts, plays, and public gatherings. One day, Sam, a political activist, tries to hold a peaceful rally in the park to protest government corruption. The park manager, Bob, tells Sam that he can't hold his rally because the content is "too controversial." Result: The park is a classic public forum, so the government cannot discriminate based on the content or viewpoint of speech. Bob's attempt to shut down Sam's rally because he doesn't like the message is unconstitutional. Sam has a right to use the park stage just like any other group, as long as he complies with reasonable time, place and manner restrictions that apply to everyone.
Hypo 2: The Hyperville Transit Authority owns the city bus system. Sam is a religious preacher who wants to get on the buses and preach to the passengers about his faith. Bob, the bus supervisor, tells Sam that he is not allowed to preach on the bus because it could make passengers uncomfortable. Result: A city bus is not a traditional public forum. Although it's owned by the government, it's primary purpose is transportation, not public expression. The interior of a bus is a limited public forum at most, meaning the government has much more ability to restrict speech, as long as the restrictions are reasonable and viewpoint neutral. A rule against preaching on the bus is likely constitutional, because it applies equally to all religious speech and serves the legitimate purpose of avoiding a captive audience for passengers.
Hypo 3: The city of Hyperville has a program where it allows local artists to paint murals on the walls of government buildings. Sam, a controversial political artist, applies to paint an anti-government mural as part of the program. Bob, the program administrator, denies Sam's application, saying his mural is too "divisive and offensive." Result: By inviting artists to paint on government building walls, the city has created a "limited public forum." This type of forum is not required to exist, but once the government opens it up, it can't discriminate based on viewpoint. Bob can't deny Sam's mural just because he disagrees with the anti-government message. As long as Sam meets the neutral criteria for the program (e.g. artistic merit, size requirements, non-obscenity), the city must allow his mural, even if it's critical of the government.
Hypo 4: Sam is walking down a public sidewalk in front of City Hall chanting political slogans through a megaphone. A police officer named Bob approaches Sam and arrests him for violating the city's noise ordinance, which prohibits amplified sound that can be heard more than 50 feet away. Result: The sidewalk in front of City Hall is a quintessential public forum. However, the government can still impose reasonable "time, place and manner" restrictions on speech, as long as they are content-neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative communication channels. Here, the noise ordinance appears to be content-neutral (it applies to all loud noises, not just political speech). It serves the significant interest of noise control and public peace. And it leaves open other ways for Sam to get his message out (he can still chant and protest without amplification). As long as the 50 foot rule is not enforced selectively, Sam's arrest is likely constitutional even though it occurred in a public forum.
Hypo 2: The Hyperville Transit Authority owns the city bus system. Sam is a religious preacher who wants to get on the buses and preach to the passengers about his faith. Bob, the bus supervisor, tells Sam that he is not allowed to preach on the bus because it could make passengers uncomfortable. Result: A city bus is not a traditional public forum. Although it's owned by the government, it's primary purpose is transportation, not public expression. The interior of a bus is a limited public forum at most, meaning the government has much more ability to restrict speech, as long as the restrictions are reasonable and viewpoint neutral. A rule against preaching on the bus is likely constitutional, because it applies equally to all religious speech and serves the legitimate purpose of avoiding a captive audience for passengers.
Hypo 3: The city of Hyperville has a program where it allows local artists to paint murals on the walls of government buildings. Sam, a controversial political artist, applies to paint an anti-government mural as part of the program. Bob, the program administrator, denies Sam's application, saying his mural is too "divisive and offensive." Result: By inviting artists to paint on government building walls, the city has created a "limited public forum." This type of forum is not required to exist, but once the government opens it up, it can't discriminate based on viewpoint. Bob can't deny Sam's mural just because he disagrees with the anti-government message. As long as Sam meets the neutral criteria for the program (e.g. artistic merit, size requirements, non-obscenity), the city must allow his mural, even if it's critical of the government.
Hypo 4: Sam is walking down a public sidewalk in front of City Hall chanting political slogans through a megaphone. A police officer named Bob approaches Sam and arrests him for violating the city's noise ordinance, which prohibits amplified sound that can be heard more than 50 feet away. Result: The sidewalk in front of City Hall is a quintessential public forum. However, the government can still impose reasonable "time, place and manner" restrictions on speech, as long as they are content-neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative communication channels. Here, the noise ordinance appears to be content-neutral (it applies to all loud noises, not just political speech). It serves the significant interest of noise control and public peace. And it leaves open other ways for Sam to get his message out (he can still chant and protest without amplification). As long as the 50 foot rule is not enforced selectively, Sam's arrest is likely constitutional even though it occurred in a public forum.
Related Concepts
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Are profane and indecent speech protected?
Can government speech be challenged?
How do you analyze a free speech issue?
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Is discretion allowed in determining fees for public demonstrations?
Is speech protected when it incites illegal activity?
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What are content-based restrictions, and which level of scrutiny is applied?
What are designated public forums?
What are limited public forums?
What are non-public forums?
What are prior restraints and when are they valid?
What are the limits of free speech during a broadcast?
What does the 1st Amendment prohibit, and how is it applied?
What is the 1st Amendment right to access private property for speech?
What is the constitutionality of laws prohibiting group discrimination?
What level of scrutiny is applied to content-based restrictions on public forums?
What level of scrutiny is applied to court orders suppressing speech?
What level of scrutiny is applied to laws impacting freedom of association?
What level of scrutiny is applied to laws that require disclosure of group membership?
What rights do the press have in addition to those granted to private citizens?
When are obscenities and sexually oriented speech considered obscene?
When are time, place, and manner restrictions on speech valid?
When is a law unconstitutionally overbroad?
When is a law unconstitutionally vague?
When is commercial speech protected, and when is it not?
When is speech by government employees not protected?
When may a private figure recover for defamation if there is no matter of public concern?
When may a private figure recover for defamation regarding a matter of public concern?
When may a public official or figure recover for defamation?
When may the government ban child pornography?
When may the government burden lawful, non-misleading, non-fraudulent commercial speech?
When may the government punish or limit news reporting?
When may the government punish private possession of obscene materials?
When may the government regulate symbolic speech?
When may the government require a license for speech?
When may the government use zoning ordinances to regulate adult businesses?
Which level of scrutiny is applied to content-neutral restrictions?
