What is a public forum?
A public forum is a place that has, by tradition or practice, been held out for general use by the public for speech-related purposes.
To determine which of the standards of student expression applies in a given case, many courts first conduct a "public forum analysis." The public forum analysis determines whether individuals may have access to places for communicative purposes.1
There are three types of public forums:
I. A "traditional", or "open, public forum" is a place with a long tradition of freedom of expression, such as a public park or a street corner. The government can normally impose only content-neutral time, place, and manner restrictions on speech in a public forum. Restrictions on speech in a public forum that are based on content will be struck down, unless the government can show the restriction is necessary to further a compelling governmental interest.
II. A "limited public forum" or "designated public forum" is a place with a more limited history of expressive activity, usually only for certain groups or topics. Examples of a limited public forum would include a university meeting hall or a city-owned theater. The government can limit access to certain types of speakers in a limited public forum, or limit the use of such facilities for certain subjects. Despite these more proscriptive guidelines, however, a governmental institution may still not restrict expression at a limited forum unless that restriction serves a "compelling interest."
III. A "closed public forum" is a place that, traditionally, has not been open to public expression, such as a jail or a military base. Governmental restrictions on access to a nonpublic forum will be upheld as long as they are reasonable and not based on a desire to suppress a particular viewpoint. This standard is far more deferential to government officials.
With regard to public schools, the Supreme Court elaborated on the public forum doctrine in cases involving the use of teacher mailboxes, Perry Education Association v. Perry Local Educators’ Association,2 and student newspapers, Hazelwood School District v. Kuhlmeier.3
In Perry, the Court determined that in-school teacher mailboxes were not public forums, and that the school district could allow the official teacher union sole access to the mailboxes, even if it meant excluding a rival teacher union. "Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity," the Court wrote.4
The Court went on to say that the deferential access provided to the official teachers' union was a reasonable way to "prevent the District's schools from becoming a battlefield for inter-union squabbles."5
In Hazelwood, the Supreme Court determined that a high school newspaper produced as part of a journalism class was not a public forum. Citing Perry, the Court wrote: "Hence, school facilities may be deemed to be public forums only if school authorities have 'by policy or practice' opened those facilities for 'indiscriminate use by the general public,' or by some segment of the public, such as student organizations."6 The majority in Hazelwood also reasoned that because the production of the newspaper was "part of the educational curriculum and a regular classroom activity," it was a nonpublic forum.
Since the Hazelwood decision, many courts have continued to defer to the judgment of school officials. As a result, many forms of censorship that had previously been unacceptable under the Tinker standard of expression have been upheld.
See generally O’Neill, K. F. (2000). "A First Amendment Compass: Navigating the Speech Clause with a Five-Step Analytical Framework," SW Univ. L. Rev., 29 223, 284–289.
460 U.S. 37 (1983).
484 U.S. 260 (1988).
460 U.S. at 49.
Id. at 51.
484 U.S. at 267.
Sunday, November 29, 2015 | 12:46:09