Constitutional doctrine relating to attempts by government bodies to control speech activities on public property.
Government bodies in the United States own and manage a variety of property, including streets, parks, and public buildings. In their role as property owners, government bodies often seek to exercise control over the activities that occur on government property, including expressive activities. Early in the twentieth century, the Supreme Court interpreted the First Amendment’s free speech clause to permit government the same broad discretion to control activities on its property as enjoyed by most private property owners. Over the course of the twentieth century, however, the Court eventually crafted distinctions among types of government property that dictated the kinds of control government might exercise over speech-related activities on public property. The Court’s elaboration of these distinctions is commonly referred to as the public forum doctrine.
The core of the public forum doctrine was the Court’s determination that some forms of government property were held by government in trust for its citizens for speech-related purposes. Public streets and parks, for example, have, according to the Court, “immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communications of thought between citizens, and discussing public questions.” The Court designated public properties traditionally held for speech-related properties as “public forums.”
Within these public forums, the Court sharply limited government power to regulate speech-related activities. In particular, the public forum doctrine prevents the government from attempting to exclude speech from such forums out of hostility to the views expressed or the subject matters addressed in the speech. Government, however, is not without all power to regulate speech in public forums. It may regulate the timing, placement, or manner of speech in such forums. These kind of regulations commonly referred to as time, place, and manner restrictions allow government to control the volume of concerts in public parks, for example, or to schedule appropriate times for parades on public streets. In public forums, then, government may coordinate expressive activities, but it may not censor particular views or subjects. Although government may enforce reasonable time, place, and manner restrictions on speech in these forums, it may discriminate against speech with a particular content only if it demonstrates a compelling justification. This kind of demonstration is rare, but occasionally government will proffer a weighty enough justification, as, for example, in Frisby v. Schultz
Eventually, the Court had to consider whether other types of public property were subject to the same rules as those it had applied to classic public forums such as public streets and parks. In Perry Education Association v. Perry Local Educators’ Association
Finally, the Court ruled in Perry Education Association that certain types of public property might be reserved by government for particular purposes and not made available to the public for general expressive activities. Within these “nonpublic forums,” government may exercise considerable control over speech, even to the extent of choosing what subjects may be addressed in these forums. Government may not, however, attempt to suppress the expression of particular viewpoints. Furthermore, at a minimum, any regulations of speech in nonpublic forums must be reasonable. Within these broad parameters government may designate particular uses for its nonpublic forums, including particular expressive uses. Thus, for example, in United States Postal Service v. Greenburgh Civic Associations
Brzezinski, Matthew. Fortress America: On the Frontline of Homeland Security, an Inside Look at the Coming Surveillance State. New York: Bantam Books, 2004. Hentoff, Nat. Free Speech for Me--but Not for Thee: How the American Left and Right Relentlessly Censor Each Other. New York: HarperCollins, 1992. Kalven, Harry. A Worthy Tradition: Freedom of Speech in America. New York: Harper & Row, 1988. Kersch, Ken I. Freedom of Speech: Rights and Liberties Under the Law. Santa Barbara, Calif.: ABC-Clio, 2003. O’Neil, Robert M. Free Speech in the College Community. Bloomington: Indiana University Press, 1997. Smith, Norris, and Lynn M. Messina, eds. Homeland Security. New York: H. W. Wilson, 2004. Smolla, Rodney A. Free Speech in an Open Society. New York: Alfred A. Knopf, 1992. Tedford, Thomas L. Freedom of Speech in the United States. New York: Random House, 1985.
Assembly and association, freedom of
First Amendment speech tests
Speech and press, freedom of
Time, place, and manner regulations