The First Amendment's public forum.

• Author: Inazu, John D.

ABSTRACT

The quintessential city park symbolizes a core feature of a democratic polity: the freedom of all citizens to express their views in public spaces free from the constraints of government imposed orthodoxy. The city park finds an unlikely cousin in the federal tax code's recognition of deductions for contributions made to charitable, religious, and educational organizations. Together, these three categories of tax-exempt organizations encompass a vast array of groups in civil society.

The city park is a traditional public forum under First Amendment doctrine, and the charitable, educational, and religious deductions under the federal tax code function much like a limited public forum. Numerous other governmental arrangements reflect similar purposes and functions: sidewalks, parking lots, public schools, websites, public libraries, vanity license plates, and student activity funds, to name a few. In each of these cases, private groups and individuals rely on government resources (financial or otherwise) to inculcate and express their ideas and their ways of life. The ideal of the public forum represents one of the most important aspects of a healthy democracy. It signifies a willingness to tolerate dissent, discomfort, and even instability. The distortion of that ideal represents one of the greatest challenges to First Amendment jurisprudence today. That distortion is partially attributable to two important doctrinal developments. The first is increased judicial reliance on purportedly "content-neutral" time, place, and manner restrictions. The second is the relationship between the public forum and the evolving government speech doctrine, under which the government characterizes messages advanced under the auspices of its financial and other resources as distinctively its own and not subject to First Amendment review. This Article suggests that one factor facilitating these developments is a gradual but unmistakable shift in the moorings of the public forum doctrine from the Assembly Clause to the Speech Clause. The public forum is a First Amendment doctrine, not a free speech doctrine, and we will comprehend its purposes and its possibilities only when we rediscover the values underlying the rights of the First Amendment.

TABLE OF CONTENTS INTRODUCTION I. THE RIGHT OF ASSEMBLY AND THE ROOTS OF THE PUBLIC FORUM A. The Right of Assembly B. The Public Forum (and Its Demise) C. The Right of Association II. THE LIMITATIONS OF SPEECH A. The Lim its of Time, Place, and Manner B. Government Speech III. RECLAIMING THE PUBLIC FORUM A. The Necessary Limits of the Public Forum B. The Risk of Instability C. Preserving the Public Forum D. The Marketplace of (Good and Bad) Ideas (and Groups) CONCLUSION INTRODUCTION

The quintessential city park boasts fields, benches, sidewalks, and playgrounds. It also reflects our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." (1) The city government owns and manages the land and the physical structures built upon it. But within this space, anyone can say almost anything. (2) Skaters, vagabonds, hipsters, Klansmen, lesbians, Christians, and cowboys--the city park accommodates them all. The city park thus symbolizes a core feature of a democratic polity: the freedom of all citizens to express their views in public spaces free from the constraints of government-imposed orthodoxy.

The city park finds an unlikely cousin in the federal tax code's recognition of deductions for contributions made to charitable, religious, and educational organizations. (3) The deductions effectively allow individual taxpayers to direct federal dollars to nonprofits of their choosing. (4) The meanings of "charitable" and "educational" are deliberately broad, and the code does not define "religious" organizations. (5) Together, these three categories of tax-exempt organizations encompass a vast array of groups in civil society--so vast that every one of us could find groups we think belong and also groups we find morally repugnant and harmful to society. And, of course, our lists of reprehensible groups would differ--the pro-choice group and the pro-life group, religious groups of all stripes (or no stripe), hunting organizations and animal rights groups--the tax deductions benefits them all. The resulting mosaic enacts the aspirations of a democratic polity. Organizations and ideas wither or thrive not by government hat, but rather based on the "values and the choices of private givers." (6)

The city park is a traditional public forum under First Amendment doctrine, and the charitable, educational, and religious deductions under the federal tax code function much like a limited public forum. (7) Numerous other governmental arrangements reflect similar purposes and functions, such as sidewalks, parking lots, public schools, websites, public libraries, vanity license plates, and student activity funds. (8) In each of these cases, private groups and individuals rely on government resources (financial or otherwise) to inculcate and express their ideas and their ways of life. (9) In some cases, the government offers these arrangements with the express purpose of facilitating a diversity of private viewpoints. But government's purpose should not be the only relevant inquiry. Sometimes, the historical or ongoing uses of a government-provided arrangement make it the functional equivalent of a public forum. (10) For example, whatever its original purpose, the current federal tax code supports a diverse range of private groups free from government-imposed orthodoxy. (11)

The ideal of the public forum represents one of the most important aspects of a healthy democracy. It signifies a willingness to tolerate dissent, discomfort, and even instability. The distortion of that ideal represents one of the greatest challenges to First Amendment jurisprudence today. Under current law, political protestors are relegated to physically distant and ironically named "free speech zones." (12) Anti-abortion demonstrators are prohibited from public sidewalks outside of abortion clinics. (13) Labor picketers confront onerous restrictions against their practices in public areas. (14) Churches are prohibited from renting generally available public facilities. (15) Groups with certain membership requirements are banned from public school campuses. (16) And groups that are deemed contrary to "public policy" are denied tax-exempt status. (17) The public forum in practice is quite unrecognizable from its theory, and that departure should give us great pause.

The problems with today's public forum are partially attributable to two important doctrinal developments. The first is increased judicial reliance on purportedly "content-neutral" time, place, and manner restrictions. (18) The second is the relationship between the public forum and the evolving government speech doctrine, under which the government characterizes messages advanced under the auspices of its financial and other resources as distinctively its own and not subject to First Amendment review. (19) This Article suggests that one factor facilitating these developments is a gradual but unmistakable shift in the moorings of the public forum doctrine from the Assembly Clause to the Speech Clause. The public forum is a First Amendment doctrine, not a free speech doctrine. And we will only comprehend its purposes and its possibilities when we rediscover the values underlying the rights of the First Amendment. (20)

Part I describes the roots of the right of assembly, the evolution of the public forum out of that right, and the gradual shift of the public forum to the speech right. Part II highlights two problems that emerge from a speech-centered focus of the doctrine. Part III considers ways to reclaim a more robust concept of the public forum through renewed focus on the right of assembly and the values that underlie it. (21)

1. THE RIGHT OF ASSEMBLY AND THE ROOTS OF THE PUBLIC FORUM

   1. The Right of Assembly

      One of the goals of this Article is to reestablish the historical and doctrinal connections between the public forum and the right of assembly. These connections are traceable to the Framers' recognition that the rights of speech and assembly are distinct and serve different purposes and values. (22) During the House debates over the language of the Bill of Rights, Theodore Sedgwick of Massachusetts criticized the proposed right of assembly as redundant in light of the freedom of speech: "If people freely converse together, they must assemble for that purpose; it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called in question; it is derogatory to the dignity of the House to descend to such minutiae." (23) John Page of Virginia responded with a reference to William Penn's trial for unlawful assembly. (24) Historian Irving Brant notes that "[t]he mere reference to it was equivalent to half an hour of oratory." (25) After Page spoke, the House defeated Sedgwick's motion to strike assembly from the draft amendment by a "considerable majority." (26)

      At another point in the debates over the text of the assembly clause, the drafters removed a reference that would have limited assembly to those purposes that served "the common good." (27) We do not know the reason for the textual change, but we know its consequences: if the right of assembly had encompassed only the common good (as defined by the state), then assembly as a means of protest or dissent would have been greatly curtailed. (28) Congress decided otherwise. On September 24, 1789, the Senate approved the amendment in its final form, without reference to the common good, and the subsequent ratification of the Bill of Rights in 1791 enacted "the right of the people peaceably to assemble." (29) The final wording, with the qualification that assembly must be "peaceable," suggests...