A Funny Thing Happened on the way to the Public Forum: Why a Public Forum Analysis Applied to the Library should Protect Internet Services and Delivery Systems

• Author: Elizabeth Henslee
• Position: B.A. Emory University 2004; J.D., Florida A & M University College of Law, 2008; Masters in Library and Information Science candidate, 2015.
• Pages: 777-831

A FUNNY THING HAPPENED ON THE WAY TO THE PUBLIC FORUM: WHY A PUBLIC FORUM ANALYSIS APPLIED TO THE LIBRARY SHOULD PROTECT INTERNET SERVICES AND DELIVERY SYSTEMS ELIZABETH HENSLEE * I. INTRODUCTION The public forum doctrine 1 is broken. It is the unruly stepchild of First Amendment jurisprudence; it has no rules, no limits, and it rarely behaves. 2 The doctrine has been unevenly applied by the courts, 3 and it is the subject of much criticism from scholars. 4 The classifications are unclear and poorly Copyright © 2015, Elizabeth Henslee. * B.A. Emory University 2004; J.D., Florida A & M University College of Law, 2008; Masters in Library and Information Science candidate, 2015. 1 Matthew D. McGill, Unleashing the Limited Public Forum: A Modest Revision to a Dysfunctional Doctrine , 52 STAN. L. REV. 929, 929 (2000). 2 Aaron H. Caplan, Invasion of the Public Forum Doctrine , 46 WILLAMETTE L. REV. 647, 647 (2010) (equating the public forum doctrine with kudzu, stating, “Like that invasive, creeping vine that covers much of the American south, the doctrine has expanded luxuriantly after being transplanted beyond its native habitat, growing over objects to form a thick, fuzzy mass that obscures the features below.”). 3 Compare Widmar v. Vincent, 454 U.S. 263, 269–70 (1981) (subjecting the limited public forum designation to a strict scrutiny analysis), with Rosenberger v. Rector & Visitors, 515 U.S. 819, 829 (1995) (subjecting the limited public forum designation to a reasonableness test), and Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 392–93 (1993) (using, again, a reasonableness test for the limited public forum analysis). See Summum v. Callaghan, 130 F.3d 906, 914–15 (10th Cir. 1997) (describing inconsistent use of the terms “designated public forum” and “limited public forum”); Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266, 269–70 (9th Cir. 1995) (contradicting itself, the court equates limited public fora with public fora promoting a strict scrutiny test, and then stating that limited public fora are indistinguishable from nonpublic fora promoting a rational basis review); Naturist Soc’y, Inc. v. Fillyaw, 958 F.2d 1515, 1524 (11th Cir. 1992) (Clark, J., dissenting) (“In this first amendment free speech case we find ourselves in a quandary over labels: public forum, limited public forum, or non-public forum.”); Caplan, supra note 2, at 653 (“Another frequently voiced criticism of the public forum doctrine is the inconsistent terminology used for forums other than the traditional public forum.”). 4 See Marc Rohr, The Ongoing Mystery of the Limited Public Forum , 33 NOVA L. REV. 299, 300 (2009); McGill, supra note 1, at 938–42; Calvin Massey, Public Fora, Neutral Governments, and the Prism of Property , 50 HASTINGS L.J. 309, 309–10 (1999); David S. Day, The End of the Public Forum Doctrine , 78 IOWA L. REV. 143, 145 (1992); Richard B. 778 CAPITAL UNIVERSITY LAW REVIEW [43:777 defined at best. 5 Yet, despite all this, the doctrine remains the best option for protecting expressive activity on government property 6 and the go-to doctrine for protecting speech rights when jeopardized by government restriction. 7 The U.S. Supreme Court has refused to apply the doctrine to expressive activity that occurs in public libraries, 8 though the lower courts have applied the public forum doctrine and found that the right to access information in a public library is a fundamental right protected under the public forum doctrine. 9 It is the subject of this Article to call for a revisit of the Court’s Saphire, Reconsidering the Public Forum Doctrine , 59 U. CIN. L. REV. 739, 741 (1991); Daniel A. Farber & John E. Nowak, The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication , 70 VA. L. REV. 1219, 1223–25 (1984). 5 See, e.g. , Rohr, supra note 4, at 300 (“More than twenty-five years after the United States Supreme Court, in Perry Education Ass’n v. Perry Local Educators’ Ass’n , purported to define and elucidate the components of its ‘public forum’ doctrine, the meaning—and legal significance—of the ‘limited public forum’ concept remains startling unclear.”); Ronnie J. Fischer, Comment, “What’s in a Name?”: An Attempt to Resolve the “Analytic Ambiguity” of the Designated and Limited Public Fora , 107 DICK. L. REV. 639, 639–40 (2003) (“As important as these names are, however, even public forum doctrine veterans disagree on the exact nature of these names. The words hardly explain themselves, and can easily mislead interpreters.”). 6 Dawn C. Nunziato, The Death of the Public Forum in Cyberspace , 20 BERKELEY TECH. L.J. 1115, 1144 (2005) (“This affirmative conception of the First Amendment finds its clearest judicial expression in the development of the public forum doctrine, under which courts impose on the government the affirmative obligation to dedicate certain publicly-held property for the use and benefit of individuals seeking to exercise their free speech rights.”). 7 Id. at 1147 (“Absent the public forum doctrine, individuals would be restricted to expressing themselves on their own private property or on property owned by others only if they could convince these other property owners to permit such speech on their property.”). 8 See United States v. Am. Library Ass’n, 539 U.S. 194, 205 (2003). 9 See, e.g. , Doe v. Albuquerque, 667 F.3d 1111, 1130 (10th Cir. 2012) (a library is a designated public forum for a limited purpose subject to strict scrutiny); Neinast v. Bd. of Trs. of Columbus Metro. Library, 346 F.3d 585, 591 (6th Cir. 2003) (the library is a limited public forum, a type of designated public forum, subject to strict scrutiny for right to access information); Kreimer v. Bureau of Police, 958 F.2d 1242, 1261 (3d Cir. 1992) (finding the library to be a limited public forum afforded constitutional protection “only to expressive activity of a genre similar to those that government has admitted to the limited forum ”) (emphasis in original); Lu v. Hulme, No. 12-11117-MLW, 2013 WL 1331028, at *5 (D. Mass. Mar. 30, 2013) (“A public library is often deemed to be a designated public forum. In a designated public forum, content neutral time, place and manner restrictions on protected First Amendment rights are permissible if ‘they are narrowly tailored to serve a significant 2015] THE INTERNET—A PUBLIC FORUM ANALYSIS 779 governmental interest, and . . . they leave open ample alternative channels for communication of the information.’”) (citations omitted); Spreadbury v. Bitterroot Pub. Library, 862 F. Supp. 2d 1054, 1056 (D. Mont. 2012) (finding “[w]e all have a right to use our public libraries” under a limited public forum analysis); Jaffe v. Baltimore Cnty. Bd. of Library Trs., No. RDB-08-1437, 2009 WL 7083368, at *4 (D. Md. Mar. 25, 2009) (“As a limited public forum, the Defendant must ‘permit the public to exercise rights that are consistent with the nature of the Library and consistent with the government's intent in designating the Library as a public forum.’”) (citations omitted); Tronsen v. Toledo-Lucas Cnty. Pub. Library, No. 3:08CV148, 2008 WL 2622939, at *2 (N.D. Ohio June 30, 2008) (“[T]he right of public access to information is not without limits. Indeed, by its very nature, as a sanctuary for inquiry, study, learning and contemplation, a library is a not an unlimited public forum.”) (citations omitted); Hill v. Derrick, No. 4:05-CV-1229, 2006 WL 1620226, at *6 (M.D. Pa. June 8, 2006) (“Under First Amendment jurisprudence a public library is a limited public forum. Therefore, the Library ‘is obligated only to permit the public to exercise rights that are consistent with the nature of the Library and consistent with the government's intent in designating the Library as a public forum.’ Traditionally, libraries provide a place for ‘reading, writing, and quiet contemplation.’”) (citations omitted); Gay Guardian Newspaper v. Ohoopee Reg’l Library Sys., 235 F. Supp. 2d 1362, 1368 (S.D. Ga. 2002) (“As a limited public forum, ‘the Library is obligated to permit the public to exercise rights that are consistent with the nature of the Library and consistent with the government's intent in designating the Library as a public forum,’ but ‘other activities need not be tolerated.’”) (citations omitted); Armstrong v. D.C. Pub. Library, 154 F. Supp. 2d 67, 75 (D.D.C. 2001) (The library is a limited public forum opened up for the expressive activity of receiving information and ideas; and, there is a strong nexus between that right and the right to access public libraries); Sund v. Wichita Falls, Tex., 121 F.Supp.2d 530, 548 (N.D. Tex. 2000) (“The Wichita Falls Public Library, like all other public libraries, is a limited public forum for purposes of First Amendment analysis . . . . In a limited public forum, the government's ability to restrict patrons’ First Amendment rights is extremely narrow. Thus, the City cannot limit access to library materials solely on the basis of the content of those materials, unless the City can demonstrate that the restriction is necessary to achieve a compelling government interest and there are no less restrictive alternatives for achieving that interest.”) (citations omitted); Mainstream Loudoun v. Bd. of Trs. of Loudon Cnty. Library, 24 F. Supp. 2d 552, 563 (E.D. Va. 1998) (“We find that defendant intended to designate the Loudoun County libraries as public fora for the limited purposes of the expressive activities they provide, including the receipt and communication of information . . . .”); Brinkmeier v. City of Freeport, No. 93 C 20039, 1993 WL 248201, at *4 (N.D. Ill. 1993) (the library is a limited public forum, a sub-category of designated public fora, and subject to narrowly tailored restrictions that serve a significant governmental interest and leave open ample alternative channels for the communication of information) . 780 CAPITAL UNIVERSITY LAW REVIEW [43:777 analysis of the public forum doctrine in...