What are designated public forums?

Hypo 1: (Non-Public Forum) Bob, the governor of Hypofornia, has a very large office in the state capitol. The office is spacious enough to hold meetings and events, but Bob keeps it locked and only allows access to his staff and invited guests. One day, Sam, a citizen of Hypofornia, comes to the capitol and demands to use Bob's office for a public forum to discuss issues important to him. Bob denies the request. Result: Despite the fact that Bob's office is physically capable of accommodating public forums, it remains a non-public forum as long as Bob consistently keeps it closed to the public. As the governor, Bob has the right to control access to his personal office space. His decision to deny Sam's request is permissible, even if it's based on the content of the speech Sam intended to engage in, because in a non-public forum, the government can restrict speech as long as the restrictions are reasonable and not an effort to suppress a particular viewpoint.

Hypo 2: (Limited Public Forum) In hopes of improving the health of his community, Governor Bob decides to allow his spacious office to be used for a one-time Sexual Health education meeting organized by a local health organization. The meeting is open to the public. A religious group, advocating for abstinence-only education, requests to use Bob's office on the same day to hold their own meeting as a counter to the Sexual Health education meeting. Bob denies the religious group's request. Result: By opening up his office for the specific purpose of the Sexual Health education meeting, Bob has created a limited public forum. In this context, Bob's office is a forum for the limited purpose of the meeting, not for general public discourse. The religious group is seeking to access the forum to express a viewpoint contrary to the purpose for which the forum was opened. Bob's denial of their request is likely permissible because it is reasonable in light of the purpose served by the forum. The office was opened for a specific educational meeting, not as a venue for competing viewpoints on sexual education. As long as Bob's decision is not motivated by disagreement with the religious group's viewpoint, but rather by a desire to maintain the integrity of the Sexual Health education meeting, it would likely be upheld.

Hypo 3: (Designated Public Forum) Governor Bob, in an effort to increase public participation in government, decides to open his large office every Thursday evening for public meetings and events. He announces that any group can apply to use the space, regardless of their views or the content of their intended speech. However, when a controversial political group applies to use the office, Bob denies their application because he disagrees with their views. Result: By opening up his office on a regular basis for public meetings and events, Bob has turned his office into a designated public forum during those Thursday evening time slots. In a designated public forum, content-based restrictions on speech are subject to strict scrutiny, the highest level of constitutional scrutiny. Bob cannot deny the controversial group access just because he disagrees with their views; this would be viewpoint discrimination, which is presumptively unconstitutional in any type of forum. To justify excluding the group, Bob would need to demonstrate that the exclusion is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Mere disagreement with the group's views, or fear of controversy, would not suffice. By creating a designated public forum, Bob has relinquished the right to pick and choose who can use the space based on their views.

Hypo 4: (Traditional Public Forum) The large, public lawn outside the Hypofornia State Capitol building, where Governor Bob's office can be seen through a window, has long been a site for public gatherings, protests, and speeches. One day, Sam, a citizen of Hypofornia, decides to hold a peaceful protest on the lawn criticizing Governor Bob's recent policy decisions. Sam applies for a permit as required by city ordinances for large gatherings. However, the permit is denied on the grounds that Sam's protest might create a disturbance and reflect poorly on the governor. Result: The lawn outside the State Capitol building, as a site historically used for public expression and assembly, is a traditional public forum. In such forums, the government's ability to restrict speech is very limited. Content-based restrictions are subject to strict scrutiny, and even content-neutral restrictions must be narrowly tailored to serve a significant government interest and leave open ample alternative channels for communication. Here, the permit denial appears to be motivated by the content of Sam's speech - namely, criticism of the governor. This is a clear violation of the First Amendment. Even if the city could articulate a significant interest in preventing disturbances or protecting the governor's image, completely denying Sam the ability to protest is not a narrowly tailored means of achieving those ends. As long as Sam's protest remains peaceful, his right to use the traditional public forum of the State Capitol lawn for expression must be protected, regardless of the viewpoint he wishes to express.

Hypo 5: (Private Property) Governor Bob owns a large home with a spacious backyard. As a devout member of his church, Bob often opens up his backyard for church events and gatherings. These events are private, invitation-only affairs, not open to the general public. Sam, an atheist and local resident, hears about these church gatherings and asks Bob if he can use the backyard to host an event celebrating atheism. Bob politely declines, stating that he only uses his backyard for his own private purposes and for events related to his church. Result: In this scenario, Bob's backyard is private property, not a public forum of any kind. The First Amendment's protections and the public forum doctrines do not apply to private property. As a private property owner, Bob has the right to exclude others and to selectively choose who can use his property. His decision to allow his church to use the backyard for private events does not convert the space into a public forum open to all. Bob's refusal to allow Sam to use the backyard for an atheist event is a private decision concerning his private property. It does not implicate the First Amendment, regardless of whether it is based on Bob's religious beliefs or his disagreement with Sam's atheism. The Constitution does not prohibit private discrimination or require private property owners to open their land for others' expressive activities. Therefore, Sam has no First Amendment right to demand access to Bob's backyard, and Bob is within his rights to decline Sam's request.