PUBLIC FORUM (Update 1)

In recent years the Supreme Court has elevated the distinction between public and nonpublic forums into "a fundamental principle of First Amendment doctrine." Apart from rules of time, place, and manner, government regulation of speech within a public forum is usually subject to the strict scrutiny ordinarily required by First Amendment jurisprudence. Government regulation of speech within a nonpublic forum, however, is accorded wide latitude and presumptive constitutionality. The Court has increasingly relied upon public forum doctrine to insulate from ] udicial review restrictions on speech in such settings as schools, prisons, military establishments, and state bureaucracies.

Given the dramatic constitutional difference in the government's power to regulate speech within public and nonpublic forums, the distinction between the two is a matter of some importance. The Court has offered two criteria for this distinction. The first distinguishes public from nonpublic forums on the basis of whether the government property at issue has "traditionally served as a place for free public assembly and communication of thoughts by private citizens." The second turns on whether government has deliberately opened the property at issue for indiscriminate use by the general public. The Court has never explained, however, why the exercise of ordinary First Amendment rights on government property should depend either upon tradition or upon the permission of the government. As a consequence, modern public forum doctrine has justly received nearly universal scholarly condemnation.

The explosive growth of the doctrine is nevertheless undeniable. The underlying cause of this growth appears to be that the Court is using public forum doctrine to distinguish two different kinds of government authority: management and governance. The government exercises managerial authority when it acts through institutions to achieve explicit and fixed ends. The purpose of schools is to educate the young; the goal of prisons is to punish and reform convicted criminals; the objective of the military is to safeguard the nation; and so forth. In each of these settings, the Court has used public forum doctrine to enable government to regulate speech to achieve these institutional ends. Thus, for example, the Court has classified schools as nonpublic forums to permit them to censor student speech inconsistent with the achievement of their educational mission.

Outside these narrow institutional settings, however, governmental objectives in a democracy are not fixed and given, but rather are determined by a process of public deliberation. For this reason, public speech cannot be instrumentally regulated in a managerial fashion. In public forums, therefore, the First Amendment requires that the state exercise the authority of governance, in which the regulation of speech is presumptively unconstitutional unless justified according to strict constitutional tests. These tests are designed to ensure that governmental goals and policies be perpetually subject to the evaluation of democratic deliberation.

Although the Court's doctrine has not explicitly recognized this distinction between management and governance, the pattern of its decisions has served to define the boundary between these two different forms of authority. Public forum doctrine has thus achieved important prominence in this age of the activist state, in which the rapid proliferation of government institutions has both created a legitimate need for expansive new forms of regulating speech and yet has simultaneously threatened to strangle public deliberation.

The most controversial aspect of contemporary public forum doctrine has been the Court's tendency to defer to institutional authorities on the question of whether the regulation of speech is truly necessary to achieve institutional objectives. In the 1988 decision hazelwood school district v. kuhlmeier, for example, the Court concluded that determinations of the educational propriety of speech should properly rest "with the school board … rather than with the federal courts" and that therefore judges should defer to the decisions of school officials. But such deference in effect cedes to the states enormous discretion to regulate speech and sharply raises the question of the circumstances under which courts ought to relinquish careful supervision of governmental curtailments of speech.

Robert C. Post
(1992)

Bibliography

Farber, Daniel A. and Nowak, John E. 1984 The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication. Virginia Law Review 70: 1219–1266.

Post, Robert C. 1987 Between Governance and Management: The History and Theory of the Public Forum. Ucla Law Review 34:1713–1835.