First Amendment: Freedom of Speech (Content-Neutral Regulation)

Public forum doctrine has become an increasingly significant and complex aspect of First Amendment jurisprudence. The Court, in Perry Education Association v. Perry Local Educators’ Association (1983), identified different types of public forums and set forth the basic rules governing each of them. In Rosenberger v. University of Virginia (1995), the Court demonstrated the elastic and sometimes abstract nature of a public forum.

In public forum cases, the threshold issue is one of definition. Private property implicates no state action and thus is beyond the scope of First Amendment concern. Public property may be available for expressive purposes, however, depending upon its use. Certain types of forums must be accessible. In any event, legitimate public forum management must account for interests unrelated to speech content. Typical concerns include protection of property, scheduling competing uses, efficient traffic flow, and public safety. These types of interests provide the basis not for regulation of content but of the time, place, and manner of expression.

Public forum doctrine was introduced in the late 1930s, when the Supreme Court in Hague v. CIO (1938) determined that streets and parks “immemorially have 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 characterization of streets and parks as forums that “immemorially” have been reserved for speech may have overstated reality. Four decades previously, in Davis v. Massachusetts (1897), the Court specifically had rejected the premise that “from time immemorial,” parks had been accessible for public speaking. Notwithstanding the historical glitch, the Hague decision recognized what modern case law refers to as the traditional public forum.

The civil rights era was a time of significant growth for public forum doctrine. Official efforts to deter protests in public places during the 1960s affirmed the freedom to speak and assemble on state capitol grounds, Edwards v. South Carolina (1963), and on public sidewalks, Cox v. Louisiana (1965). Decisions like these accounted effectively for speech interests in traditional public forums. In Brown v. Louisiana (1966), however, the Court reversed breach of peace convictions of persons who protested silently in a public library. The Court in the same term, in Adderley v. Florida (1966), upheld the trespass convictions of demonstrators who protested on jailhouse grounds. These cases indicated uncertainty with respect to the boundaries of traditional public forums. Insofar as a forum’s compatibility with speech may be a legitimate state concern, a library might be viewed as an inappropriate venue for any activity (including speech) that is a distraction. The grounds of a jailhouse like those of “an executive mansion, a legislative chamber, a courthouse, or the statehouse,” as Justice William Douglas noted, is a “seat[ ] of government.”

The long-term value of the Perry decision owes less to its specific result, which critics have questioned, than to its effort to establish an orderly framework for public forum analysis. Toward this end, the Court established three forum categories and the constitutional rules that govern each. The first model is the “quintessential” public forum consisting of those “places which by long tradition or by government fiat have been devoted to assembly and debate.” Primary examples of the traditional public forum are parks, streets, and sidewalks. Content-based regulation in this context must be supported by a compelling state interest and must be narrowly drawn in accounting for it.

The second category is the designated public forum. Such a venue is one that government has opened “for use by the public as a place for expressive activity.” The designated public forum may consist of a public school auditorium, fairground, or any other property that government has opened to expressive activity. The basis for differentiating it from a traditional forum is that government has no obligation to open it to speech activity and reserves the right to close it. So long as the state opens the forum, however, content-based regulation is subject to the same strict review associated with traditional forums. To the extent that government closes the forum, it must do so on a wholesale rather than selective basis.

The third category is the nonpublic forum, “which is not by tradition or designation for public communication.” In this context, government is not bound by prohibitions against content-based regulation or restrictive access. The standard of review for such regulation is not strict scrutiny but whether it is reasonable. For each type of forum, however, government is precluded from conditioning access or punishing expression on the basis of disagreement with the speaker’s opinion. This rule against viewpoint discrimination would deny government the ability to control access on the basis of political philosophy or position.

Time, place, and manner regulation, even in the context of a traditional or designated public forum, is subject to a lesser standard of review than for content-based regulation. The general rule is that such content-neutral regulation is consistent with the First Amendment, provided it promotes a substantial government interest and provides speakers an adequate alternative means for communicating their message. Common models of time, place, and manner controls include park and parade permits, limitations on door-to-door solicitation, and restrictions on sidewalk or street use. Since Perry, the Court has upheld time controls on the broadcast of indecent programming, place limitations that prohibit picketing in front of a home, and manner restrictions that regulate the volume of amplified music in a public park.

Despite the Court’s framing of a more orderly structure for public forum analysis, loose ends and concerns remain. As times and conventions evolve, it is not always easy to determine the boundaries of tradition. Not surprisingly, therefore, the Court, in International Society for Krishna Consciousness, Inc. v. Lee (1992), fragmented over whether an airport terminal was a traditional public forum. Since Perry, moreover, the Court has reduced analysis of public forum regulation primarily to the question of whether government has a rule because of disagreement with a particular message. So long as government can demonstrate that its objective is unrelated to the content of expression, as the Court observed in Ward v. Rock Against Racism (1989), its officially stated purpose “is controlling.” Given this relaxed standard of review, critics maintain that the state can accomplish indirectly through public forum regulation what it cannot achieve through direct content control. An ordinance prohibiting residential picketing altogether, which the Court upheld in Frisby v. Schultz (1988), can be viewed as a form of prior restraint. As the Court observed in United States v. New York Times Co. (1971), “any system of prior restraint carries a heavy burden of justification against its constitutional validity.” Diminished standards for reviewing time, place, and manner regulation, so long as government can articulate a credible rationale that is content-neutral, create a potential bypass to this central First Amendment principle.

Justice WHITE delivered the opinion of the Court.

A second category consists of public property which the state has opened for use by the public as a place for expressive activity. The Constitution forbids a state to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. Although a state is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.

Public property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the “First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” In addition to time, place, and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view. As we have stated on several occasions, “the State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”

The school mail facilities at issue here fall within this third category. The Court of Appeals recognized that Perry School District’s interschool mail system is not a traditional public forum: “We do not hold that a school’s internal mail system is a public forum in the sense that a school board may not close it to all but official business if it chooses.” On this point the parties agree. Nor do the parties dispute that, as the District Court observed, the “normal and intended function [of the school mail facilities] is to facilitate internal communication of school related matters to teachers.” The internal mail system, at least by policy, is not held open to the general public. It is instead PLEA’s position that the school mail facilities have become a “limited public forum” from which it may not be excluded because of the periodic use of the system by private non-school connected groups, and PLEA’s own unrestricted access to the system prior to PEA’s certification as exclusive representative.

Moreover, even if we assume that by granting access to the Cub Scouts, YMCAs, and parochial schools, the school district has created a “limited” public forum, the constitutional right of access would in any event extend only to other entities of similar character. While the school mail facilities thus might be a forum generally open for use by the Girl Scouts, the local boys’ club and other organizations that engage in activities of interest and educational relevance to students, they would not as a consequence be open to an organization such as PLEA, which is concerned with the terms and conditions of teacher employment. . . .

Justice BRENNAN, with whom Justice MARSHALL, Justice POWELL, and Justice STEVENS join, dissenting.

The Court today holds that an incumbent teachers’ union may negotiate a collective bargaining agreement with a school board that grants the incumbent access to teachers’ mailboxes and to the interschool mail system and denies such access to a rival union. Because the exclusive access provision in the collective bargaining agreement amounts to viewpoint discrimination that infringes the respondents’ First Amendment rights and fails to advance any substantial state interest, I dissent.

The Court properly acknowledges that teachers have protected First Amendment rights within the school context. In particular, we have held that teachers may not be “compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work. . . .” We also have recognized in the school context the First Amendment right of “individuals to associate to further their personal beliefs,” and have acknowledged the First Amendment rights of dissident teachers in matters involving labor relations. Against this background it is clear that the exclusive access policy in this case implicated the respondents’ First Amendment rights by restricting their freedom of expression on issues important to the operation of the school system. As the Court of Appeals suggested, this speech is “if not at the very apex of any hierarchy of protected speech, at least not far below it.”

From this point of departure the Court veers sharply off course. Based on a finding that the interschool mail system is not a “public forum,” the Court states that the respondents have no right of access to the system, and that the school board is free “to make distinctions in access on the basis of subject matter and speaker identity,” if the distinctions are “reasonable in light of the purpose which the forum at issue serves.” According to the Court, the petitioner’s status as the exclusive bargaining representative provides a reasonable basis for the exclusive access policy.

Once the government permits discussion of certain subject matter, it may not impose restrictions that discriminate among viewpoints on those subjects whether a nonpublic forum is involved or not. This prohibition is implicit in the Mosley line of cases, in Tinker v. Des Moines Independent Community School District, and in those cases in which we have approved content-based restrictions on access to government property that is not a public forum. We have never held that government may allow discussion of a subject and then discriminate among viewpoints on that particular topic, even if the government for certain reasons may entirely exclude discussion of the subject from the forum. In this context, the greater power does not include the lesser because for First Amendment purposes exercise of the lesser power is more threatening to core values. Viewpoint discrimination is censorship in its purest form and government regulation that discriminates among viewpoints threatens the continued vitality of “free speech.”

Against this background, it is clear that the Court’s approach to this case is flawed. By focusing on whether the interschool mail system is a public forum, the Court disregards the independent First Amendment protection afforded by the prohibition against viewpoint discrimination. This case does not involve a claim of an absolute right of access to the forum to discuss any subject whatever. If it did, public forum analysis might be relevant. This case involves a claim of equal access to discuss a subject that the board has approved for discussion in the forum. In essence, the respondents are not asserting a right of access at all; they are asserting a right to be free from discrimination. The critical inquiry, therefore, is whether the board’s grant of exclusive access to the petitioner amounts to prohibited viewpoint discrimination. . . .

Bibliography

Kalven, Harry, Jr. “The Concept of the Public Forum.” Supreme Court Review 1 (1965).

Post, Robert. “Between Governance and Management: The History and Theory of the Public Forum.” UCLA Law Review 34 (1987): 1713.

The First Amendment comprises a set of freedoms that often are bundled together in the same breath. The guarantees of freedom of speech and of the press often merge into the concept of expressive freedom. Religious freedom represents the convergence of the establishment clause and free exercise clause. Although these provisions typically are viewed as mutually enhancing, they sometimes are in conflict with each other. The establishment clause and free exercise clause point in different directions, for instance, when issues such as state aid to parochial schools or public prayer must be reviewed. Prayer or religious displays in public settings may be viewed as official support for religion in derogation of the establishment clause. Exponents and sometimes the Court, however, maintain that these activities should be permitted to accommodate the free exercise of religion.

The establishment clause and free exercise clause are not the only tension in the First Amendment. Conflict also arises between the establishment clause and the freedom of speech clause. The Court initially confronted this clash of constitutional interests in Widmar v. Vincent (1981) when it reviewed a state university policy that denied campus facilities access to student religious organizations. Insofar as the university had opened its facilities to some student organizations, the Court determined a designated public forum had been created. Because exclusion of religious groups was driven by content concerns, rather than considerations of time, place, or manner, the Court strictly scrutinized the policy. Although acknowledging that compliance with the establishment clause would constitute a compelling interest, under appropriate circumstances, it determined that restrictive access was not necessary in this instance. Rather, the Court determined that an equal access policy would not have a secular purpose, would not have the primary effect of promoting religion, and would not excessively entangle government and religion. Consistent with modern understanding of the establishment clause, therefore, the Court concluded that the university could accommodate the freedom of speech clause without crossing the establishment clause.

Despite these concerns, the balance between freedom of speech and the establishment clause moved even more decisively toward the accommodation of religious expression. In Rosenberger v. Rector and Visitors of the University of Virginia (1995), the Court reviewed a university program for funding student publications. Although providing financial support for “student news, information, opinion, entertainment and academic communications media groups,” the program specifically excluded religious publications. This exclusion was based upon the university’s concern that funding religious messages would violate the establishment clause.

In an opinion authored by Justice Anthony Kennedy, the Court held that the establishment clause constituted no barrier to public funding of religious publications. From its perspective, the object of university funding was “to open a forum for speech and to support various student enterprises . . . in recognition of the diversity and creativity of student life.” The Court thus characterized the funding program as a designated public forum. Consistent with public forum doctrine, and because the denial of funding was content-based, the university was obligated to demonstrate that exclusion of student religious groups was supported by a compelling interest and represented a narrowly tailored means of accounting for it. Noting as it did in Widmar that compliance with the establishment clause may represent a compelling interest, the Court nonetheless concluded that a restrictive access policy was not necessary to meet this need. As the Court saw it, “[a]ny benefit to religion is incidental to the government’s provision of secular services for secular purposes on a non-religious basis.” In other words, it was not necessary to deny funding on the basis of religious views to obey the establishment clause.

For Justice Sandra Day O’Connor, who authored a concurring opinion, the key consideration was whether university funding of the religious publication would constitute an endorsement of religion. Insofar as it received the same assistance provided to other publications, Justice O’Connor was satisfied that its funding would not represent an endorsement of the magazine’s religious perspective. Critical to her opinion were requirements that student organizations be independent of the university and provide disclaimers of any association with the university and its responsibility for content. Given the university’s objective of a free and diverse market of ideas, and consequent improbability that anyone would perceive its endorsement of a religious message, Justice O’Connor saw exclusion on the grounds of religious viewpoint as a free speech violation.

The Rosenberger decision represents a significant expansion of free speech doctrine, insofar as it emphasizes the importance of religious speech and extends the concept of a public forum into a somewhat abstract realm. What the Court characterizes as equal access to funding, however, may be viewed less as a public forum issue than as an economic benefit. If so, the decision is at odds with a long line of cases supporting the proposition that the state cannot abridge basic freedom but is not constitutionally obligated to subsidize them. The trimming of the establishment clause is the inevitable result of a choice between constitutional provisions perceived to be in conflict with each other. Whether the case presented an either-or proposition was debated before and has been debated since the Court’s ruling. By making it a choice between constitutional principles, the Court in one decision achieved the dual result of enhancing freedom of speech and subtracting from antiestablishment interests.

Justice KENNEDY delivered the opinion of the Court.

By paying outside printers, the University in fact attains a further degree of separation from the student publication, for it avoids the duties of supervision, escapes the costs of upkeep, repair, and replacement attributable to student use, and has a clear record of costs. As a result, and as in Widmar, the University can charge the SAF, and not the taxpayers as a whole, for the discrete activity in question. It would be formalistic for us to say that the University must forfeit these advantages and provide the services itself in order to comply with the Establishment Clause. It is, of course, true that if the State pays a church’s bills it is subsidizing it, and we must guard against this abuse. That is not a danger here, based on the considerations we have advanced and for the additional reason that the student publication is not a religious institution, at least in the usual sense of that term as used in our case law, and it is not a religious organization as used in the University’s own regulations. It is instead a publication involved in a pure forum for the expression of ideas, ideas that would be both incomplete and chilled were the Constitution to be interpreted to require that state officials and courts scan the publication to ferret out views that principally manifest a belief in a divine being.

Were the dissent’s view to become law, it would require the University, in order to avoid a constitutional violation, to scrutinize the content of student speech, lest the expression in question—speech otherwise protected by the Constitution—contain too great a religious content. The dissent, in fact, anticipates such censorship as “crucial” in distinguishing between “works characterized by the evangelism of Wide Awake and writing that merely happens to express views that a given religion might approve.” That eventuality raises the specter of governmental censorship, to ensure that all student writings and publications meet some baseline standard of secular orthodoxy. To impose that standard on student speech at a university is to imperil the very sources of free speech and expression. As we recognized in Widmar, official censorship would be far more inconsistent with the Establishment Clause’s dictates than would governmental provision of secular printing services on a religion-blind basis.

“[E]ven if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer. Merely to draw the distinction would require the university—and ultimately the courts—to inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our cases.

To obey the Establishment Clause, it was not necessary for the University to deny eligibility to student publications because of their viewpoint. The neutrality commanded of the State by the separate Clauses of the First Amendment was compromised by the University’s course of action. The viewpoint discrimination inherent in the University’s regulation required public officials to scan and interpret student publications to discern their underlying philosophic assumptions respecting religious theory and belief. That course of action was a denial of the right of free speech and would risk fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires. There is no Establishment Clause violation in the University’s honoring its duties under the Free Speech Clause. . . .

Justice SOUTER, with whom Justice STEVENS, Justice GINSBURG, and Justice BREYER join, dissenting.

The Court today, for the first time, approves direct funding of core religious activities by an arm of the State. It does so, however, only after erroneous treatment of some familiar principles of law implementing the First Amendment’s Establishment and Speech Clauses, and by viewing the very funds in question as beyond the reach of the Establishment Clause’s funding restrictions as such. Because there is no warrant for distinguishing among public funding sources for purposes of applying the First Amendment’s prohibition of religious establishment, I would hold that the University’s refusal to support petitioners’ religious activities is compelled by the Establishment Clause. I would therefore affirm.

Since I cannot see the future I cannot tell whether today’s decision portends much more than making a shambles out of student activity fees in public colleges. Still, my apprehension is whetted by Chief Justice Burger’s warning in Lemon: “in constitutional adjudication some steps, which when taken were thought to approach ‘the verge,’ have become the platform for yet further steps. A certain momentum develops in constitutional theory and it can be a ‘downhill thrust’ easily set in motion but difficult to retard or stop.”

I respectfully dissent.

Bibliography

Redish, Martin, and Daryl Kessler. “Government Subsidies and Free Expression.” Minnesota Law Review 80 (1996): 543.

Werhan, Keith. “The Liberalization of Freedom of Speech on a Conservative Court.” Iowa Law Review 80 (1994): 51.