Government Regulation of Speech (Forum Analysis) Flashcards
Capacities in which government regulates speech - Pleasant Grove City v. Summum
As lawmaker (sees and restrict via law);
As employer (how it can restrict and maintain its employees speech);
As speaker (First amendment does not restrain the government’s speech);
License plates are government speech.
Monuments are government speech.
Public Forum
A forum exists when the government is a property-owner, it’s typically, public parks, streets, sidewalks. Essentially, public forums are places by long historical practice in which the public has been free to speak.
Since time immemorial the government owns public forums in trust for the public’s benefit.
Government Regulatory Power:
A public forum does not give the government added First Amendment restrictions, but the government also does not get additional regulatory powers.
Designated Public Forums
Property that is not inherently a public forum but has been designated as such by the government.
These spaces are irrevocable.
Government Regulatory Power:
Get no added speech regulating power, basically the same analysis as a public forum.
Content-based = SS
Content-neutral = IS
Limited Public Forums
A public space that the government has open up for speech by a particular group of people or for certain subjects.
Test is the same as nonpublic forums.
Government Regulatory Power:
Regulations on this type of property have to be:
1) Reasonable; and
2) Viewpoint neutral.
Nonpublic forum
Government owned property in which the government is able to retain the power to preserve the property under its control for the use to which it is lawfully dedicated.
Government Regulatory Power:
Regulations on this type of property have to be:
1) Reasonable; and
2) Viewpoint neutral.
Viewpoint neutral still allows gov to say “no speech at all on X topic in this nonpublic forum”. No SS in non-public forums or limited public forums.
Interactions between limited public forums and Establishment Clause
There have been cases involving K-12 public schools that opened up their gyms to let people use them and talk about stuff. They would let secular groups do it but not religious groups because the schools were worried about Establishment clause. But the religious groups would win those cases because barring the religious groups was VIEWPOINT DISCRIMINATION (not viewpoint neutral).
Time, Place, Manner restrictions - Clark v. CCNV & Ward v. Rock Against Racism
Valid if: (Intermediate scrutiny SOR) – interchangeable with O’Brien Intermediate Scrutiny SOR.
1) Is content-neutral; and
2) Is narrowly tailored, but actually this means “substantial” in this context, more like IS and not SS i.e., it asks if the regulation is causally related to the interest; and
3) A significant government interest exists; and
4) There are ample alternative channels of communication (which is almost always going to be yes.)
Note: On private property, regulations fail because the property and owner give special oomph to the message.
Ample Alternative Channels
These are other methods of getting a message out. These almost always can be found. If this is the only channel, then maybe have to let the speaker use it.
There was a case involving gov regulating speech on private property in a content-neutral way but court found no ample alternative channels. Homeowner wanted to post sign opposing Gulf War in his yard. City said no. SCOTUS said yes. It was a content-neutral reg to not have yard signs, and probably passed intermediate scrutiny, but this was before the internet and arguably that speaker didn’t really have ample alternative channels. Maybe all he could afford was a yard sign.
What if Bernie Sanders put a pro socialism sign outside his mansion? Or a military general put an anti-war sign outside his house? There is an angle of this analysis where the location can amplify the message.
Government Funds as Forum?
Government funds available for expressive purposes is treated as a type of forum because it is still gov property made available for expression. Not a public forum, rather a LIMITED public forum. UVA wanted to stop religious student group from putting out a newsletter using that fund because it was worried about Establishment, but SCOTUS said this was VIEWPOINT DISCRIMINATION
The Jefferson Memorial Cult
Jefferson memorial group adopted Jefferson as a figure of “independent living” did this weird silent dancing with headphones listening to music at night. Capital police said leave. They argued it was speech. Lower court case. That court said it’s speech but it’s a non-public forum and gov won.
