Public Forum

Author:Vincent Blasi

Page 2067

Laws that regulate the time, place, and manner of speech are not considered inherently problematic under the FIRST AMENDMENT, in contrast to laws that regulate the content of speech. As a general matter, would-be speakers can be denied the use of a particular public space for their expressive activities if other proper uses of that space would be unduly disturbed and if different speakers with different messages also would be denied use of the space.

The "public forum" DOCTRINE represents an important gloss on the general doctrine that accords government fairly wide authority to regulate speech in public places. For spaces that are designated public forums?streets, parks, and sidewalks, for example?the regulatory authority of government is subject to careful scrutiny under the First Amendment. Public forums, unlike other public spaces, cannot be devoted entirely to nonexpressive uses; some accommodation of the claims of would-be speakers must be made. In addition, when the content of the speech is taken into account in governing the use of a public forum, as when political criticism or commercial advertising but not expression of a labor grievance is disallowed on a public sidewalk, an especially strong presumption of invalidity stalks the regulation. Even content-neutral regulations regarding the time and manner of speech in a public forum pass muster under the First Amendment only if they are "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication."

The historical derivation of the public forum doctrine can be traced to an oft-quoted OBITER DICTUM by Justice OWEN J. ROBERTS in HAGUE V. CIO (1939):

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

The dictum repudiated the doctrine, endorsed by the Supreme Court forty years earlier, that government's...

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