Forum (legal)

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Forum is a United States constitutional law term that describes a government-owned property which is open to public expression and assembly.

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[edit] Types of forums

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. Some public forums, such as municipal meeting rooms, have been specifically designated by the government as open to speech, and are known as limited public forums. Others, including streets, parks and sidewalks, are considered open by tradition, and are designated as traditional public forums. The practical difference between the two is that whereas a limited forum can be changed to a nonpublic forum by the government, traditional forums cannot.
  • 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 resticted 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).

Public forums cannot be resticted based on content. But even 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.

[edit] 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 speech doctrine blocks citizens' First Amendment claims that the government set up a forum for them, and unconstitutionally suppressed speech in it.

[edit] History

Prior to the legal development of sustantive due process, state governments had the authority to regulate speech in public places without regard to the First Amendment. In the 1895 Massachusetts Supreme 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 priveleges [...] of citizens." And in 1965, Professor Harry Kalven described such places as a "public forum that the citizen can commandeer".

[edit] Usage

The decision in Hazelwood v. Kuhlmeier 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.

[edit] References

[edit] See also

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