Free Speech Flashcards
Traditional or Quintessential Public Forums
These are places that have been made available for expression since time immemorial (i.e. streets and parks). The public has guaranteed rights of access to such places and, therefore, the government cannot close off this access completely. The government can regulate access to the streets and parks by enacting time, place, and manner regulations. To be constitutional such regulations must be content-neutral, must be narrowly tailored to accomplish an important governmental interest, and must leave open ample alternative avenues for expression. This is a version of the intermediate scrutiny test. The government can regulate access to the streets and parks based on the content of the regulated speech, but only if it has selected a narrowly tailored, least restrictive method of achieving a compelling governmental interest. Content-based regulations can be based on subject matter or viewpoint. Viewpoint discrimination is almost always unconstitutional.
Designated Public Forums
This category consists of government property that the government has intentionally opened up for the purpose of either all or certain kinds of First Amendment activities by members of the public or by a particular segment of the public such as students in a designated forum created by the school they attend. The key here is that the government’s creation of a designated public forum is a voluntary act. Moreover, the creation of a designated forum is not permanent. The government is free to eliminate forums that it voluntarily creates. The government can regulate access to designated public forums in the same manner as traditional public forums by adopting reasonable time, place and manner regulations and by adopting content-based restrictions that satisfy strict scrutiny. The government can limit a designated forum by speaker identity, subject matter, time, etc. In evaluating whether the limits imposed by the government on a limited public forum are constitutional, a court will consider whether the limits are reasonable in light of the purpose of the forum and are not based on viewpoint. Therefore, some subject matter restrictions will be constitutional if they are designed to preserve the purpose of the forum, but that deferential standard does not extend to viewpoint restrictions. Viewpoint restrictions are only constitutional if they satisfy strict scrutiny review.
Nonpublic Forums
Nonpublic forum is the residual category for government property that is neither a traditional nor a designated public forum. Nonpublic forums can be regulated by the use of reasonable regulations that do not discriminate on the basis of viewpoint. Since it is easier for the government to satisfy this standard than it is to satisfy the standards that apply to traditional and designated public forums, the government will try and classify government property as a nonpublic forum whenever possible.
