PERRY EDUCATION ASSOCIATION v. PERRY LOCAL EDUCATORS' ASSOCIATION 460 U.S. 37 (1983)

Perry provided the leading modern opinion setting guidelines governing first amendment claims of access to the public forum. a school district's collective bargaining agreement with a union (PEA) provided that PEA, but no other union, would have access to the interschool mails and to teacher mailboxes. A rival union (PLEA) sued in federal district court, challenging the constitutionality of its exclusion from the school mails. The district court denied relief, but the court of appeals held that the exclusion violated the equal protection clause and the First Amendment. The Supreme Court reversed, 5–4, rejecting both claims.

justice byron r. white wrote for the Court, setting out a three-category analysis that set the pattern for later "public forum" cases such as cornelius v. naacp legal defense and educational fund, inc. (1985). First, the streets and parks are "traditional" public forums, in which government cannot constitutionally forbid all communicative activity. Any exclusion of a speaker from such a traditional public forum based on the content of the speaker's message must be necessary to serve a compelling state interest. Content-neutral regulations of the "time, place, and manner" of expression in such places may be enforced when they are narrowly tailored to serve significant state interests and they leave open "ample alternative channels" of communication.

Second, the state may open up other kinds of public property for use by the public for expressive activity. The state may close such a "designated" public forum, but so long as it remains open it must be made available to all speakers, under the same constitutional guidelines that govern traditional public forums.

Third, communicative uses of public property that is neither a traditional nor a designated public forum may be restricted to those forms of communication that serve the governmental operation to which the property is devoted. The only constitutional limits on such restrictions on speech are that they be reasonable, and that they not be imposed in order to suppress a particular point of view. The Perry case, said Justice White, fit this third category: the school mail system was neither a traditional public forum nor designated for public communicative use; rather it could be limited to school-related communications, including those from PEA, the teachers' elected bargaining agent. Such a limitation did not exclude PLEA because of its point of view.

justice william j. brennan, for the four dissenters, argued that the exclusion of PLEA was "viewpoint discrimination," and thus that the case did not turn on the characterization of the school mails as a public forum.

thePerry formula capped a process of doctrinal development focused on what harry kalven, jr. , named "the concept of the public forum." In its origin, the concept expanded the First Amendment's protections of speech. Perry marks the success of a campaign, highlighted by Justice william h. rehnquist's opinion in United States Postal Service v. Greenburgh Civic Association (1981), to convert the public forum concept into a preliminary hurdle for would-be speakers to clear before they can establish their claims to the freedom of speech on government property or in government-managed systems of communication.

Kenneth L. Karst
(1986)