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

AuthorElizabeth Henslee
PositionB.A. Emory University 2004; J.D., Florida A & M University College of Law, 2008; Masters in Library and Information Science candidate, 2015.
Pages777-831
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 doctrine1 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 scho lars.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 expan ded 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), an d Lamb’s Chapel v. Ctr. Moriches Union F ree 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 Doctri ne, 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 property6 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, Reconsid ering 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 Educato rs’ 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. Nunz iato, 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 individu als 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 rest rictions 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 o f 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 t o 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 demonst rate 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 th e communication of information).

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