Government-Owned Property: Early Doctrine
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Public Forum
In 1895, while on the highest court of Massachusetts, future Justice Oliver Wendell Holmes rejected a contention that public property was by right open to the public as a place where the right of speech could be recognized,1 and on review the United States Supreme Court endorsed Holmes’ view.2 Years later, beginning with Hague v. CIO,3 the Court reconsidered the issue. Justice Roberts wrote in Hague: “Wherever the title of streets and parks may rest, they 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. Such use of the streets and public places has from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.” Although this opinion was not itself joined by a majority of the Justices, the Court subsequently endorsed the view in several opinions.4
The Roberts view was called into question in the 1960s, however, when the Court seemed to leave the issue open,5 and when a majority endorsed an opinion by Justice Black asserting his own narrower view of speech rights in public places.6 Later decisions restated and quoted the Roberts language from Hague, and that is now the position of the Court.7 Public streets and parks,8 including those adjacent to courthouses9 and foreign embassies,10 as well as public libraries11 and the grounds of legislative bodies,12 are open to public demonstrations, although the uses to which public areas are dedicated may shape the range of permissible expression and conduct that may occur there.13 Moreover, not all public properties are public forums. “[T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” 14 “The crucial question is whether the manner of expression is basically compatible with the normal activity of a particular place at a particular time.” 15 Thus, by the nature of the use to which the property is put or by tradition, some sites are simply not as open for expression as streets and parks are.16 But if government does open non-traditional forums for expressive activities, it may not discriminate on the basis of content or viewpoint in according access.17 The Court, however, remains divided with respect to the reach of the public forum doctrine.18
Speech in public forums is subject to time, place, and manner regulations that take into account such matters as control of traffic in the streets, the scheduling of two meetings or demonstrations at the same time and place, the preventing of blockages of building entrances, and the like.19 Such regulations are closely scrutinized in order to protect free expression, and, to be valid, must be justified without reference to the content or subject matter of speech,20 must serve a significant governmental interest,21 and must leave open ample alternative channels for communication of the information.22 The Court has written that a time, place, or manner regulation “must be narrowly tailored to serve the government’s legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied . . . [s]o long as the means chosen are not substantially broader than necessary to achieve the government’s interest . . . .” 23 A content-neutral time, place, and manner regulation of the use of a public forum must also “contain adequate standards to guide the official’s decision and render it subject to effective judicial review.” 24 Unlike a content-based licensing scheme, however, it need not “adhere to the procedural requirements set forth in Freedman.” 25 These requirements include that the “burden of proving that the film [or other speech] is unprotected expression must rest on the censor,” and that the censor must, “within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution.” 26
A corollary to the rule forbidding regulation based on content is the principle—a merging of free expression and equal protection standards—that government may not discriminate between different kinds of messages in affording access.27 In order to ensure against covert forms of discrimination against expression and between different kinds of content, the Court has insisted that licensing systems be constructed as free as possible of the opportunity for arbitrary administration.28 The Court has also applied its general strictures against prior restraints in the contexts of permit systems and judicial restraint of expression.29
It appears that government may not deny access to the public forum for demonstrators on the ground that the past meetings of these demonstrators resulted in violence,30 and may not vary a demonstration licensing fee based on an estimate of the amount of hostility likely to be engendered,31 but the Court’s position with regard to the “heckler’s veto,” the governmental termination of a speech or demonstration because of hostile crowd reaction, remains unclear.32
The Court has defined three categories of public property for public forum analysis.33 First, there is the traditional public forum—places such as streets and parks that have traditionally been used for public assembly and debate.34 In such a forum, the government “may impose reasonable time, place, and manner restrictions on private speech, but restrictions based on content must satisfy strict scrutiny, and those based on viewpoint are prohibited.” 35 Second, there is the designated public forum, where the government opens property for communicative activity and thereby creates a public forum.36 Such a forum may be limited—hence the expression “limited public forum” —for “use by certain groups, e.g., Widmar v. Vincent (student groups), or for discussion of certain subjects, e.g., City of Madison Joint School District v. Wisconsin PERC (school board business),” 37 but, within the framework of such legitimate limitations, “a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.” 38 Third, in a “nonpublic forum,” or “a space that 'is not by tradition or designation a forum for public communication,'” 39 the government “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.” 40
Whether a speech restriction will be reviewed under strict scrutiny or only for reasonableness thus may turn in part on whether the government has “intentionally open[ed] a nontraditional forum for public discourse,” creating a designated public forum.41 To determine whether a forum is a designated public forum or a nonpublic forum, the Court will look to the government's intent in opening the forum,42 the restrictions initially placed on speakers' access to the forum,43 and the nature of the forum.44 For example, in Cornelius v. NAACP Legal Defense and Educational Fund, the Court held that the Combined Federal Campaign (CFC), “an annual charitable fundraising drive conducted in the federal workplace,” 45 was a nonpublic forum.46 Notwithstanding the fact that the federal government had opened the forum for solicitation by some charitable organizations, the Court concluded that “neither [the government's] practice nor its policy [was] consistent with an intent to designate the CFC as a public forum open to all tax-exempt organizations.” 47 Accordingly, the Court upheld the government's decision to exclude certain charitable organizations as reasonable in light of the purpose of the forum.48 Similarly, the Court concluded in another case that a school district had not created a public forum with its system for internal school mail because the district had not, “by policy or by practice,” “opened its mail system for indiscriminate use by the general public.” 49 The Court therefore concluded that the school district could permissibly exclude a teacher's association from using the mail system, while also allowing a different teacher's association—the teachers' exclusive representative—to use the mail system, because the school's policy was reasonable and consistent with the purposes of the forum.50
However, although the government has greater discretion to restrict speech in nonpublic forums,51 the First Amendment still prohibits certain restrictions even in nonpublic forums. For instance, the Court held in Minnesota Voters Alliance v. Mansky that “[a] polling place in Minnesota qualifies as a nonpublic forum.” 52 After reviewing the long history of state regulation of polling places on election day,53 the Court concluded that because the polling place was “government-controlled property set aside for the sole purpose of voting,” 54 it qualified as “a special enclave, subject to greater restriction.” 55 Although the forum's designation as a nonpublic forum meant that the Court did not apply strict scrutiny, the Court nonetheless struck down a Minnesota law that barred all “political” apparel from polling places as unreasonable.56 The Court acknowledged that the state could permissibly seek to “prohibit certain apparel” in polling places “because of the message it conveys,” 57 but concluded that the particular scheme followed by Minnesota was not “capable of reasoned application.” 58 In the Court's view, the breadth of the term “political” and the state's “haphazard interpretations” 59 of that term failed to provide “objective, workable standards” to guide the discretion of the election judges who implemented the statute.60
Application of these principles continues to raise often difficult questions. In United States v. Kokinda, a majority of Justices, who ultimately upheld a ban on soliciting contributions on postal premises under the “reasonableness” review governing nonpublic fora, could not agree on the public forum status of a sidewalk located entirely on postal service property.61 Two years later, in International Society for Krishna Consciousness, Inc. v. Lee, the Court similarly divided as to whether non-secured areas of airport terminals, including shops and restaurants, constitute public fora.62 A five-Justice majority held that airport terminals are not public fora and upheld regulations banning the repetitive solicitation of money within the terminals.63
A decade later, the Court considered the public forum status of the Internet. In United States v. American Library Association, Inc., a four-Justice plurality held that “Internet access in public libraries is neither a ‘traditional’ nor a ‘designated’ public forum.” 64 The plurality therefore did not apply strict scrutiny in upholding the Children’s Internet Protection Act, which provides that a public school or “library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them.” 65
More recently, in Packingham v. North Carolina, the Court appeared to equate the Internet to traditional public fora like a street or public park. Specifically, Justice Kennedy, writing for the Court, observed that, “[w]hile in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular.” 66 Consequently, the Court struck down a North Carolina law making it a felony for registered sex offenders to use commercial social networking websites that allow minor children to be members, such as Facebook. Applying strict scrutiny, the Court held that the North Carolina law impermissibly restricted lawful speech as it was not narrowly tailored to serve the government’s interest in protecting minors from registered sex offenders because it “foreclose[d] access to social media altogether,” thereby “prevent[ing] the user from engaging in the legitimate exercise of First Amendment rights.” 67
The First Amendment precludes government restraint of expression and it does not require individuals to turn over their homes, businesses, or other property to those wishing to communicate about a particular topic.68 But it may be that in some instances private property is so functionally akin to public property that private owners may not forbid expression upon it. In Marsh v. Alabama,69 the Court held that the private owner of a company town could not forbid distribution of religious materials by a Jehovah’s Witness on a street in the town’s business district. The town, wholly owned by a private corporation, had all the attributes of any American municipality, aside from its ownership, and was functionally like any other town. In those circumstances, the Court reasoned, “the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” 70 This precedent lay unused for some twenty years until the Court first indicated a substantial expansion of it, and then withdrew to a narrow interpretation.
First, in Food Employees Union v. Logan Valley Plaza,71 the Court held constitutionally protected the picketing of a store located in a shopping center by a union objecting to the store’s employment of nonunion labor. Finding that the shopping center was the functional equivalent of the business district involved in Marsh, the Court announced there was “no reason why access to a business district in a company town for the purpose of exercising First Amendment rights should be constitutionally required, while access for the same purpose to property functioning as a business district should be limited simply because the property surrounding the ‘business district’ is not under the same ownership.” 72 “[T]he State,” said Justice Marshall, “may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put.” 73 The Court observed that it would have been hazardous to attempt to distribute literature at the entrances to the center and it reserved for future decision “whether respondents’ property rights could, consistently with the First Amendment, justify a bar on picketing which was not thus directly related in its purpose to the use to which the shopping center property was being put.” 74
Four years later, the Court answered the reserved question in the negative.75 Several members of an antiwar group had attempted to distribute leaflets on the mall of a large shopping center, calling on the public to attend a protest meeting. Center guards invoked a trespass law against them, and the Court held that they could rightfully be excluded. The center had not dedicated its property to a public use, the Court said; rather, it had invited the public in specifically to carry on business with those stores located in the center. Plaintiffs’ leafleting, not directed to any store or to the customers qua customers of any of the stores, was unrelated to any activity in the center. Unlike the situation in Logan Valley Plaza, there were reasonable alternatives by which plaintiffs could reach those who used the center. Thus, in the absence of a relationship between the purpose of the expressive activity and the business of the shopping center, the property rights of the center owner will overbalance the expressive rights to persons who would use their property to communicate.
Then, the Court formally overruled Logan Valley Plaza, holding that shopping centers are not functionally equivalent to the company town involved in Marsh.76 Suburban malls may be the “new town squares” in the view of sociologists, but they are private property in the eye of the law. The ruling came in a case in which a union of employees engaged in an economic strike against one store in a shopping center was barred from picketing the store within the mall. The rights of employees in such a situation are generally to be governed by federal labor laws77 rather than the First Amendment, although there is also the possibility that state constitutional provisions may be interpreted more expansively by state courts to protect some kinds of public issue picketing in shopping centers and similar places.78 Henceforth, only when private property “‘has taken on all the attributes of a town’” is it to be treated as a public forum.79
- Commonwealth v. Davis, 162 Mass. 510, 511 (1895). “For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of rights of a member of the public than for the owner of a private house to forbid it in the house.”
- Davis v. Massachusetts, 167 U.S. 43, 48 (1897).
- 307 U.S. 496 (1939). Only Justice Black joined the Roberts opinion, but only Justices McReynolds and Butler dissented from the result.
- E.g., Schneider v. Town of Irvington, 308 U.S. 147, 163 (1939); Kunz v. New York, 340 U.S. 290, 293 (1951).
- Cox v. Louisiana, 379 U.S. 536, 555 (1965). For analysis of this case in the broader context, see Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1.
- Adderley v. Florida, 385 U.S. 39 (1966). See id. at 47–48; Cox v. Louisiana, 379 U.S. 559, 578 (1965) (Justice Black concurring in part and dissenting in part); Jamison v. Texas, 318 U.S. 413, 416 (1943) (Justice Black for the Court).
- E.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 152 (1969); Grayned v. City of Rockford, 408 U.S. 104, 115 (1972); Carey v. Brown, 447 U.S. 455, 460 (1980).
- Hague v. CIO, 307 U.S. 496 (1939); Niemotko v. Maryland, 340 U.S. 268 (1951); Kunz v. New York, 340 U.S. 290 (1951); Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969); Coates v. City of Cincinnati, 402 U.S. 611 (1971); Grayned v. City of Rockford, 408 U.S. 104 (1972); Greer v. Spock, 424 U.S. 828, 835–36 (1976); Carey v. Brown, 447 U.S. 455 (1980).
- Narrowly drawn statutes that serve the state’s interests in security and in preventing obstruction of justice and influencing of judicial officers are constitutional. Cox v. Louisiana, 379 U.S. 559 (1965). A restriction on carrying signs or placards on the grounds of the Supreme Court is unconstitutional as applied to the public sidewalks surrounding the Court, since it does not sufficiently further the governmental purposes of protecting the building and grounds, maintaining proper order, or insulating the judicial decisionmaking process from lobbying. United States v. Grace, 461 U.S. 171 (1983).
- In Boos v. Barry, 485 U.S. 312 (1988), the Court struck down as content-based a District of Columbia law prohibiting the display of any sign within 500 feet of a foreign embassy if the sign tends to bring the foreign government into “public odium” or “public disrepute.” However, another aspect of the District’s law, making it unlawful for three or more persons to congregate within 500 feet of an embassy and refuse to obey a police dispersal order, was upheld; under a narrowing construction, the law had been held applicable only to congregations directed at an embassy, and reasonably believed to present a threat to the peace or security of the embassy.
- Brown v. Louisiana, 383 U.S. 131 (1966) (sit-in in library reading room).
- Edwards v. South Carolina, 372 U.S. 229 (1963); Jeanette Rankin Brigade v. Capitol Police Chief, 342 F. Supp. 575 (D.C. 1972) (three-judge court), aff’d, 409 U.S. 972 (1972) (voiding statute prohibiting parades and demonstrations on United States Capitol grounds).
- E.g., Grayned v. City of Rockford, 408 U.S. 104 (1972) (sustaining ordinance prohibiting noisemaking adjacent to school if that noise disturbs or threatens to disturb the operation of the school); Brown v. Louisiana, 383 U.S. 131 (1966) (silent vigil in public library protected while noisy and disruptive demonstration would not be); Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969) (wearing of black armbands as protest protected but not if it results in disruption of school); Cameron v. Johnson, 390 U.S. 611 (1968) (preservation of access to courthouse); Frisby v. Schultz, 487 U.S. 474 (1988) (ordinance prohibiting picketing “before or about” any residence or dwelling, narrowly construed as prohibiting only picketing that targets a particular residence, upheld as furthering significant governmental interest in protecting the privacy of the home).
- United States Postal Serv. v. Council of Greenburgh Civic Assn's, 453 U.S. 114 (1981).
- Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).
- E.g., Minnesota Voters Alliance v. Mansky, 585 U.S. ___, No. 16-1435, slip op. at 13 (2018) (polling places); ISKCON v. Lee, 505 U.S. 672, 679 (1992) (publicly owned airport terminal); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983) (interschool mail system); United States Postal Service v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 128 (1981) (private mail boxes); Greer v. Spock, 424 U.S. 828, 838 (1976) (military bases); Lehman v. City of Shaker Heights, 418 U.S. 298, 304 (1974) (plurality opinion) (advertising space in city rapid transit cars); Adderley v. Florida, 385 U.S. 39, 47–48 (1966) (jails).
- E.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (municipal theater); Madison School District v. WERC, 429 U.S. 167 (1976) (school board meeting); Heffron v. ISKCON, 452 U.S. 640 (1981) (state fair grounds); Widmar v. Vincent, 454 U.S. 263 (1981) (university meeting facilities).
- Compare United States Postal Service v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 128–31 (1981), with id. at 136–40 (Justice Brennan concurring), and 142 (Justice Marshall dissenting). For evidence of continuing division, compare ISKCON v. Lee, 505 U.S. 672 (1992) with id. at 693 (Justice Kennedy concurring).
- See, e.g., Heffron v. ISKCON, 452 U.S. 640, 647–50 (1981), and id. at 656 (Justice Brennan concurring in part and dissenting in part) (stating law and discussing cases); Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (prohibition of sleep-in demonstration in area of park not designated for overnight camping).
- Niemotko v. Maryland, 340 U.S. 268 (1951); Cox v. Louisiana, 379 U.S. 536 (1965); Police Dep’t of Chicago v. Mosle, 408 U.S. 92 (1972); Madison School District v. WERC, 429 U.S. 167 (1976); Carey v. Brown, 447 U.S. 455 (1980); Widmar v. Vincent, 454 U.S. 263 (1981). In Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), a divided Court permitted the city to sell commercial advertising space on the walls of its rapid transit cars but to refuse to sell political advertising space.
- E.g., the governmental interest in safety and convenience of persons using public forum, Heffron v. ISKCON, 452 U.S. 640, 650 (1981); the interest in preservation of a learning atmosphere in school, Grayned v. City of Rockford, 408 U.S. 104, 115 (1972); and the interest in protecting traffic and pedestrian safety in the streets, Cox v. Louisiana, 379 U.S. 536, 554–55 (1965); Kunz v. New York, 340 U.S. 290, 293–94 (1951); Hague v. CIO, 307 U.S. 496, 515–16 (1939).
- Heffron v. ISKCON, 452 U.S. 640, 654–55 (1981); Consolidated Edison Co. v. PSC, 447 U.S. 530, 535 (1980).
- Ward v. Rock Against Racism, 491 U.S. 781, 798–99, 800 (1989).
- Thomas v. Chicago Park Dist., 534 U.S. 316, 323 (2002).
- 534 U.S. at 322, citing Freedman v. Maryland, 380 U.S. 51 (1965). See National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977).
- Freedman v. Maryland, 380 U.S. 51, 58–59 (1965).
- Police Dep’t of Chicago v. Mosle, 408 U.S. 92 (1972) (ordinance void that barred all picketing around school building except labor picketing); Carey v. Brown, 447 U.S. 455 (1980) (same); Widmar v. Vincent, 454 U.S. 263 (1981) (striking down college rule permitting access to all student organizations except religious groups); Niemotko v. Maryland, 340 U.S. 268 (1951) (striking down denial of permission to use parks for some groups but not for others); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (striking down ordinance that prohibited symbols, such as burning crosses, that constituted fighting words that insult on the basis of some factors, such as race, but not on the basis of other factors). These principles apply only to the traditional public forum and to the governmentally created “limited public forum.” Government may, without creating a limited public forum, place “reasonable” restrictions on access to nonpublic areas. See, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 48 (1983) (use of school mail system); and Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788 (1985) (charitable solicitation of federal employees at workplace). See also Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (city may sell commercial advertising space on the walls of its rapid transit cars but refuse to sell political advertising space); Capitol Square Review Bd. v. Pinette, 515 U.S. 753 (1995) (denial of permission to Ku Klux Klan, allegedly in order to avoid Establishment Clause violation, to place a cross in plaza on grounds of state capitol); Rosenberger v. University of Virginia, 515 U.S. 819 (1995) (University’s subsidy for printing costs of student publications, available for student “news, information, opinion, entertainment, or academic communications,” could not be withheld because of the religious content of a student publication); Lamb’s Chapel v. Center Moriches School Dist., 508 U.S. 384 (1993) (school district rule prohibiting after-hours use of school property for showing of a film presenting a religious perspective on child-rearing and family values, but allowing after-hours use for non-religious social, civic, and recreational purposes).
- E.g., Hague v. CIO, 307 U.S. 496, 516 (1939); Schneider v. Town of Irvington, 308 U.S. 147, 164 (1939); Cox v. New Hampshire, 312 U.S. 569 (1941); Poulos v. New Hampshire, 345 U.S. 395 (1953); Staub v. City of Baxley, 355 U.S. 313, 321–25 (1958); Cox v. Louisiana, 379 U.S. 536, 555–58 (1965); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150–53 (1969). Justice Stewart for the Court described these and other cases as “holding that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license without narrow, objective, and definite standards to guide the licensing authority is unconstitutional.” Id. at 150–51. A person faced with an unconstitutional licensing law may ignore it, engage in the desired conduct, and challenge the constitutionality of the permit system upon a subsequent prosecution for violating it. Id. at 151; Jones v. Opelika, 316 U.S. 584, 602 (1942) (Chief Justice Stone dissenting), adopted per curiam on rehearing, 319 U.S. 103 (1943). See also City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (upholding facial challenge to ordinance vesting in the mayor unbridled discretion to grant or deny annual permit for location of newsracks on public property); Riley v. National Fed’n of the Blind, 487 U.S. 781 (1988) (invalidating as permitting “delay without limit” licensing requirement for professional fundraisers); Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992). But see Walker v. City of Birmingham, 388 U.S. 307 (1967) (same rule not applicable to injunctions).
- In Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969), the Court reaffirmed the holdings of the earlier cases, and, additionally, both Justice Stewart, for the Court, id. at 155 n.4, and Justice Harlan concurring, id. at 162–64, asserted that the principles of Freedman v. Maryland, 380 U.S. 51 (1965), governing systems of prior censorship of motion pictures, were relevant to permit systems for parades and demonstrations. The Court also voided an injunction against a protest meeting that was issued ex parte, without notice to the protestors and with, of course, no opportunity for them to rebut the representations of the seekers of the injunction. Carroll v. President and Comm’rs of Princess Anne, 393 U.S. 175 (1968).
- The only precedent is Kunz v. New York, 340 U.S. 290 (1951). The holding was on a much narrower basis, but in dictum the Court said: “The court below has mistakenly derived support for its conclusions from the evidence produced at the trial that appellant’s religious meetings had, in the past, caused some disorder. There are appropriate public remedies to protect the peace and order of the community if appellant’s speeches should result in disorder and violence.” Id. at 294. A different rule applies to labor picketing. See Milk Wagon Drivers Local 753 v. Meadowmoor Dairies, 312 U.S. 287 (1941) (background of violence supports prohibition of all peaceful picketing). The military may ban a civilian, previously convicted of destroying government property, from reentering a military base, and may apply the ban to prohibit the civilian from reentering the base for purposes of peaceful demonstration during an Armed Forces Day “open house.” United States v. Albertini, 472 U.S. 675 (1985).
- Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (a fee based on anticipated crowd response necessarily involves examination of the content of the speech, and is invalid as a content regulation).
- Dicta indicate that a hostile reaction will not justify suppression of speech, Hague v. CIO, 307 U.S. 496, 502 (1939); Cox v. Louisiana, 379 U.S. 536, 551 (1965); Bachellar v. Maryland, 397 U.S. 564, 567 (1970), and one holding appears to point this way. Gregory v. City of Chicago, 394 U.S. 111 (1969). Yet the Court upheld a breach of the peace conviction of a speaker who refused to cease speaking upon the demand of police who feared imminent violence. Feiner v. New York, 340 U.S. 315 (1951). In Niemotko v. Maryland, 340 U.S. 268, 273 (1951) (concurring opinion), Justice Frankfurter wrote: “It is not a constitutional principle that, in acting to preserve order, the police must proceed against the crowd whatever its size and temper and not against the speaker.”
- E.g., Minnesota Voters Alliance v. Mansky, 585 U.S. ___, No. 16-1435, slip op. at 7 (2018).
- Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009).
- Minnesota Voters Alliance, slip op. at 11. See also Summum, 555 U.S. at 469. Cf. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) ( “[T]ime, place, or manner restrictions . . . . are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” ).
- Minnesota Voters Alliance, slip op. at 11. See also Summum, 555 U.S. at 469–70.
- Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 46 n.7 (1983).
- 460 U.S. at 46.
- Minnesota Voters Alliance, slip op. at 7 (quoting Perry Educ. Ass'n, 460 U.S. at 46).
- Perry Educ. Ass'n, 460 U.S. at 46.
- See Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802 (1985). See also United States v. Am. Library Ass'n, Inc., 539 U.S. 194, 206 (2003) (plurality opinion) ( “To create such a [designated public] forum, the government must make an affirmative choice to open up its property for use as a public forum.” ); United States v. Kokinda, 497 U.S. 720, 727 (1990) (plurality opinion) (holding certain sidewalks were a nonpublic forum because the government owner had not “expressly dedicated” them “to any expressive activity” ). Cf. Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 814 (1984) ( “Appellees' reliance on the public forum doctrine is misplaced. They fail to demonstrate the existence of a traditional right of access respecting such items as utility poles for purposes of their communication comparable to that recognized for public streets and parks . . . .” ).
- Cornelius, 473 U.S. at 803.
- See Perry Educ. Ass'n, 460 U.S. at 4748.
- Cornelius, 473 U.S. at 803.
- Id. at 790.
- Id. at 805.
- Id. at 804 (emphasis added).
- Id. at 809.
- See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 47 (1983). The Court also stated, however, that “even if we assume that by granting access to the Cub Scouts, YMCA's, 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 [the Perry Local Educators' Association], which is concerned with the terms and conditions of teacher employment.” Id. at 48. In United States v. Kokinda, 497 U.S. 720, 730 (1990) (plurality opinion), the Court interpreted this language to mean that in a limited public forum, “regulation of the reserved nonpublic uses would still require application of the reasonableness test.”
- Perry Educ. Ass'n, 460 U.S. at 50–51. See also Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 269–70 (1988) (holding that a student newspaper created as part of “a supervised learning experience” was not a public forum).
- See, e.g., United States v. Am. Library Ass'n, Inc., 539 U.S. 194, 204–05 (2003) (plurality opinion).
- Minnesota Voters Alliance v. Mansky, 585 U.S. ___, No. 16-1435, slip op. at 8 (2018).
- Id. at 1–3.
- Id. at 8.
- Id. (quoting Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680 (1992)) (internal quotation marks omitted).
- Id. at 13.
- Id. at 12.
- Id. at 19.
- Id. at 13.
- Id. at 18.
- 497 U.S. 720, 727 (1990) ( “[R]egulation of speech activity where the Government has not dedicated its property to First Amendment activity is examined only for reasonableness.” ).
- 505 U.S. 672 (1992) .
- Id. at 683 ( “[N]either by tradition nor purpose can the terminals be described as satisfying the standards we have previously set out for identifying a public forum.” ).
- 539 U.S. 194, 205–06 (2003) ( “We have ‘rejected the view that traditional public forum status extends beyond its historic confines.’ The doctrines surrounding traditional public forums may not be extended to situations where such history is lacking.” (quoting Ark. Educ. TV Comm’n v. Forbes, 523 U.S. 666, 679 (1998))). While decided on constitutional vagueness grounds, in Reno v. American Civil Liberties Union, the Court struck down a provision of the Communications Decency Act of 1996 that prohibited the use of an “interactive computer service” (i.e., the Internet) to display indecent material “in a manner available to a person under 18 years of age.” 521 U.S. 844, 860 (1997). The Court did not consider the Internet’s status as a forum for free speech, but observed that the Internet “constitutes a vast platform from which to address and hear from a world-wide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can ‘publish’ information.” Id. at 853.
- American Library Association, 539 U.S. at 199; see also id. at 206 ( “A public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak.” ).
- Packingham v. North Carolina, 582 U.S. ___, No. 15-1194, slip op. at 4–5 (2017) (quoting Am. Civil Liberties Union, 521 at 868); see also id. at ___, slip op. at 6 ( “This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.” ).
- Id. at ___, slip op. at 6, 8; see id. at 7 ( “[G]iven the broad wording of the North Carolina statute at issue, it might well bar access not only to commonplace social media websites but also to websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com.” ). The Court was careful to point out, however, that its opinion should not be read as barring states from enacting laws more specific than that of North Carolina, noting that “[s]pecific criminal acts are not protected speech even if speech is the means for their commission.” Id. (citing Brandenburg v. Ohio, 395 U.S. 444, 447–49 (1969)). Indeed, “it can be assumed that the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.” Id.
- In Garner v. Louisiana, 368 U.S. 157, 185, 201–07 (1961), Justice Harlan, concurring, would have reversed breach of the peace convictions of “sit-in” demonstrators who conducted their sit-in at lunch counters of department stores. He asserted that the protesters were sitting at the lunch counters where they knew they would not be served in order to demonstrate that segregation at such counters existed. “Such a demonstration . . . is as much a part of the ‘free trade in ideas’ . . . as is verbal expression, more commonly thought of as ‘speech.’” Conviction for breach of peace was void in the absence of a clear and present danger of disorder. The Justice would not, however protect “demonstrations conducted on private property over the objection of the owner . . . , just as it would surely not encompass verbal expression in a private home if the owner has not consented.” He had read the record to indicate that the demonstrators were invitees in the stores and that they had never been asked to leave by the owners or managers. See also Frisby v. Schultz, 487 U.S. 474 (1988) (government may protect residential privacy by prohibiting altogether picketing that targets a single residence).
- 326 U.S. 501 (1946).
- 326 U.S. at 506.
- Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308 (1968).
- 391 U.S. at 319. Justices Black, Harlan, and White dissented. Id. at 327, 333, 337.
- 391 U.S. at 319–20.
- 391 U.S. at 320 n.9.
- Lloyd Corp. v. Tanner, 407 U.S. 551 (1972).
- Hudgens v. NLRB, 424 U.S. 507 (1976). Justice Stewart’s opinion for the Court asserted that Logan Valley had in fact been overruled by Lloyd Corp., 424 U.S. at 517–18, but Justice Powell, the author of the Lloyd Corp. opinion, did not believe that to be the case, id. at 523.
- But see Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180 (1978).
- In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), the Court held that a state court interpretation of the state constitution to protect picketing in a privately owned shopping center did not deny the property owner any federal constitutional rights. But cf. Pacific Gas & Elec. v. Public Utilities Comm’n, 475 U.S. 1 (1986), holding that a state may not require a privately owned utility company to include in its billing envelopes views of a consumer group with which it disagrees, a majority of Justices distinguishing PruneYard as not involving such forced association with others’ beliefs.
- Hudgens v. NLRB, 424 U.S. 507, 516–17 (1976) (quoting Justice Black’s dissent in Logan Valley Plaza, 391 U.S. 308, 332–33 (1968)).
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