Unleashing the limited public forum: a modest revision to a dysfunctional doctrine.

• Author: McGill, Matthew D.

INTRODUCTION

In 1995, Justice Kennedy, in his opinion for the majority in Rosenberger v. Rector & Visitors of University of Virginia,(1) announced without fanfare that the University's Student Activity Fund ("SAF") was, for purposes of First Amendment public forum analysis, a limited public forum.(2) He wrote for the 5-4 majority, "The SAF is a forum more in a metaphysical than in a spatial or geographic sense, but the same [limited public forum] principles are applicable."(3) This conclusion meant that the Supreme Court would be required to apply strict scrutiny(4) to any content-based restrictions the University of Virginia placed upon the speech of qualifying student organizations that sought disbursements from the SAF.(5)

Although the Court had fully delineated the concept twelve years earlier in Perry Education Ass'n v. Perry Local Educators' Ass'n,(6) Rosenberger marked the first time since then that the Court had held government property was a limited public forum.(7) Just as Julius Caesar remarked "Gallia est omnis divisa in partes tres,"(8) Justice White announced in Perry that all publicly owned property or channels of communication(9) fell into one of three categories: the traditional public forum,(10) the limited public forum,(11) or the non-public forum.(12) Since 1983, the Court has held on several occasions that government property was either a traditional public forum or a non-public forum.(13) Only in Rosenberger, though, has the Court held that government property fell into the second category, that of a limited public forum.(14) And as will be described below, even in that single case, the Court shied away from the full implications of the conclusion it had reached.(15)

Why has the limited public forum doctrine remained jurisprudentially dormant for so long? This note suggests that the answer lies in a critical flaw in the doctrine--one that has pervaded it since its formal introduction in 1983--and puts forth a modest reformulation of that doctrine. The purpose of the reformulation is to revive the concept of the limited public forum before it withers away altogether, but to do so in a manner that does not undermine the larger rubric of public forum analysis set up in Perry.

Section I of this note reviews the history and mechanics of modern public forum analysis, with an emphasis placed upon the Court's analysis of regulations in limited public forums.(16) Along the way, Section I describes a defect inherent in the Court's limited public forum doctrine that renders it totally unworkable.(17) Briefly stated, within a limited public forum it is impossible for one to differentiate between a presumptively invalid content-based restriction on speech and a legitimate adjustment of the content parameters that define the forum. Part II examines the two ways in which the Supreme Court has responded to the dysfunction of the limited public forum doctrine.(18) Additionally, Part II explores the efforts of the U.S. Court of Appeals for the Second Circuit to come to grips with this doctrine.(19)

Parts III and IV propose a new method of analyzing restrictions on speech in a limited public forum. Part III argues that the status quo, where the limited forum doctrine is all but a dead letter, undermines the values of the First Amendment.(20) The absence of a workable limited public forum doctrine offers the government greater control over the content of speech and, on a more general level, reduces the amount of speech activity in public spaces. Part IV advocates a modest revision to the Court's limited public forum analysis.(21) Currently, courts are instructed to test the content parameters that define a limited public forum only for reasonableness and viewpoint neutrality, and to apply strict scrutiny to content-based restrictions on speech falling within those parameters. However, since it is usually impossible to distinguish between a content-based restriction on speech within the parameters of a limited public forum and an adjustment of those parameters, the Court should apply a single test of intermediate scrutiny to all restrictions on speech in limited public forums. This revision would revive the concept of the limited public forum within our First Amendment jurisprudence, yielding a more equitable balance between the access of private speakers to government property and the needs of government to exercise some measure of control over it.

1. MODERN PUBLIC FORUM ANALYSIS AND THE PROBLEMATIC CONCEPTION OF THE LIMITED PUBLIC FORUM

   1. A Brief History of the Modern Public Forum Doctrine(22)

      When the state places restrictions on the content of speech taking place on government property, a court's analysis of the location of the speech, more than any other factor, will determine whether or not the restriction is constitutional. It's not so much what you say, but where you say it that counts.

      In 1983, Perry set up the analytical framework for claims against restrictions of speech on government property, dividing government property into three categories: traditional public forums, designated public forums, and non-public forums.(23) The rules that apply to restrictions on speech--that is the power of the speaker's First Amendment claim--would depend upon the categorization of the property at issue.(24) Thus, a content-based restriction may be constitutional on one parcel of government property, but run afoul of the First Amendment on another, differently categorized piece of property.

      Modern public forum analysis is among the most maligned of all the Court's doctrines,(25) especially its positivist and formalistic devotion to categories of property.(26) However, despite the drumbeat of criticism, this process of categorization remains the dominant method by which courts determine the level of scrutiny that is applied to regulations of speech on public property.

      To define the category of traditional public forum, the Perry Court turned, as it often had before, to Justice Roberts' dicta in Hague v. CIO.(27) Traditional public forums are those places that "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."(28) As examples, the Perry Court listed streets and parks.(29) Since Perry, the category has been expanded to include sidewalks(30) and the curtilage around state capitols(31) and town halls.(32) Justice White set out a speech-protective doctrine for the analysis of speech restrictions in these public spaces. In a traditional public forum, the government could not ban all communicative activity.(33) Further, the Court would apply strict scrutiny to any regulation that was based on the content of speech. That is, all regulations based on the subject or viewpoint of the speech or the status of the speaker had to be justified by a compelling state interest and narrowly tailored to that interest.(34) Finally, content-neutral regulations of the time, place, or manner of speech had to be narrowly tailored to a significant government interest and had to leave open ample alternative channels of communication.(35)

      The second category consisted of public property that, "by government fiat," the state had opened to public use for expressive activities.(36) Of these designated public forums, the Court noted that the state was required neither to open such a forum to the public, nor to retain its open character indefinitely.(37) Once it did open such a forum, however, government regulations on speech were subject to the same strictures as in a traditional public forum; all content-based regulations had to pass strict scrutiny.(38)

      However, a designated public forum need not be open to all people or all subjects of speech. The Court pointed out in a footnote that the state could create a public forum for a limited purpose, such as use by certain groups or for certain subjects.(39) These limitations were allowed to be content-based, but they had to be reasonable and viewpoint-neutral.(40) Thus a state could exclude speech from a designated public forum if the forum were limited to a certain topic or class of speakers, and the speech or speaker did not fall within those parameters set up by the state.

      As an example, the Court cited Widmar v. Vincent.(41) In that 1981 case, the University of Missouri at Kansas City had a policy of allowing registered student groups to use University facilities for meetings and events.(42) A registered student religious group was excluded from those same facilities.(43) The University cited a regulation that prohibited the use of its facilities for religious activities as the reason for the exclusion.(44) The Court ruled that, since the University had maintained a forum generally open for use by registered student groups, the University violated the Free Speech Clause by excluding a group based on the religious content of their speech.(45) As long as the speaker and the speech fall within the limitations on the openness of the forum set by the state, a content-based restriction will face strict scrutiny. In Widmar, the forum was open only to registered student groups. If everyday citizens of Kansas City were excluded from the University's facilities, they could not claim the same protections as a registered student group unless it was established that the facilities were, in fact, open to the general public.

      In Perry and subsequent cases, this subset of designated public forums--those that were set aside for a particular purpose, subject, or class of speaker--were called limited public forums.(46) In practice, though, government has so rarely created a designated public forum that was truly open to all speakers and all topics that the terms designated public forum and limited public forum are, today, used largely interchangeably.(47) In this note, though, I will not use the terms interchangeably. The term "designated public...