Public Property

• Pages: 175-197
• Author: Daniel A. Farber

175

Chapter 9

PUBLIC PROPERTY

Part II focused on the question of when a message is either so

harmful or so valuele ss that the government should have the power

to suppress it. In these situations, the government is acting in its

sovereign capacity to protect public safety, welfare, and mo rals. But

the government may also attempt to base restrictions on speech upon

managerial pow ers, such as its p ower to control the use of its own

property or the actions of its own emp loyees. The Court has not

exempted these more specific government powers from the

limitations of the First Amendment. It has, however, applied those

limitations somewhat differently.

The upshot is that a government may impose greater

restrictions on its own employees or on individuals using public

property than on the population generally. In part, this seems to be

only a matter of common sense: it is one thing to say that the

government cannot make it a crime to teach the “flat earth” doctrine;

it is anothe r thing to say that it must continue to emp loy a teacher

who insists on teaching this doctrine in geography class.

But the line between censorship and legitimate management of

government institutions is not always easy to draw. In this chapter,

we will consider the extent of government power to regulate speech

on public property. As it turns out, for an important class of

government prope rty, the government gains no additional leverage

from its ownership interest, but in other situations this interest does

become significant.

This chapter considers how the government’s ownership of

property relates to speech rig hts. The next chapter will consider the

related question of the government’s power to control speech based

on a special relationship with the speaker rather than with the

location.

I. Development of Public Forum Doctrine

Only within the past four decades has the Court been able to

articulate a test for speech restrictions on government property. In

this section, we trace the test’s doctrinal evolution.

A. Access, Equality, and Discretion

Outside of the categories of “unprotected” speech, anyone is free

to say whatever they want, but not necessarily on someone else’s

property. A homeowner controls entry to his or her dwelling and need

176

SPEECH IN SPECIAL SETTINGS

Pt. III

not allow use of the premises by indiv iduals who want to engage in

free expre ssion. Similarly, one might thin k the government should

be free to control the use of its property, whether in the form of

streets, parks, or buildings.

Indeed, this was the position taken by the Supreme Court when

it first considered the issue of speech on public property. A century

ago, the Court had no difficulty in affirming a state court opinion by

Oliver Wendell Holmes holding that the legislature had the absolute

right to prohibit the use of streets and parks for expressive activities.

The power to close the park or highway, thereby denying all p ublic

access, implied the lesser power to limit use of the facility to specified

activities. Thus, the state was entitled to prosecute an individual who

attempted to preach to the crowds on Boston Common.

1

If this doctrine were still in effect, there would be no right at all

to engage in free spe ech on public property. But in Hague v. CIO,

2

forty years later, the Court took quite a different approach, striking

down a law which gave the police chief complete discretion over

permits for speakers in p ublic places. In response to the argument

that the government had the unrestricted right to con trol use o f its

own property, the Court had this to say:

Wherever the title of streets and parks may rest, they have

immemorially bee n 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. Such use of the streets and

public places has, from ancient times, been a part of the

privileges, immunities, rights, and liberties of citizens. The

privilege . . . to use the streets and parks for communication

of views on national questions may be regulated in the

interest of all; . . . it must not, in the guise of regulation, be

abridged or denied.

Current doctrine represents a complex blend of these two

different viewpoints, one favoring free public expression and the

other favoring governmental property right s. As to streets, parks,

and sidewalks, with some minor exce ptions discussed later, the

government essentially gains no additional authority to regulate

private speech from its ow nership of these public spaces. It cannot

close these facilities to speech activities, cannot discriminate between

speakers based on content, and can exercise little di scretion in

determining whether to allow a particular expressive activity. It is

no wonder that such facilities are now called “public forums.” Some

1

Commonwealth v. Davis, 162 Mass. 510, 39 N.E. 113 (1895), aff’d sub nom.

Davis v. Massachusetts, 167 U.S. 43 (1897).

2

307 U.S. 496 (1939).