First Amendment:

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.

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 Justice Oliver Wendell Holmes’s view.2 Years later, beginning with Hague v. CIO,3 the Court reconsidered the issue. Justice Owen Roberts wrote in Hague:

Although majority of the Justices did not join Justice Roberts’s opinion, the Court subsequently endorsed the view in several opinions.5

In the 1960s, the Court appeared to call the Roberts view into question,6 and subsequently a majority endorsed an opinion by Justice Hugo Black asserting a narrower view of speech rights in public places.7 Later decisions restated and quoted the Roberts language from Hague, and that is now the position of the Court.8 Public streets and parks,9 including those adjacent to courthouses10 and foreign embassies,11 as well as public libraries12 and the grounds of legislative bodies,13 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.14 Moreover, not all public properties are public forums. In U.S. Postal Service v. Greenburgh Civic Ass’ns, the Court stated: “[T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government,” 15 while in Grayned v. City of Rockford, the Court stated: “The crucial question is whether the manner of expression is basically compatible with the normal activity of a particular place at a particular time.” 16 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.17 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.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

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 In Freedman v. Maryland, the Court had set forth certain requirements, including 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 the 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 The Court has also suggested that the government cannot effectuate a “heckler’s veto,” the governmental termination of a speech or demonstration because of hostile crowd reaction.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, for example, Widmar v. Vincent (student groups), or for discussion of certain subjects, for example, 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

Footnotes

1

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.” )

2

Davis v. Massachusetts, 167 U.S. 43, 48 (1897).

3

307 U.S. 496 (1939). Only Justice Hugo Black joined the John Owen Roberts opinion, but only Justices James McReynolds and Pierce Butler dissented from the result.

4

Id. at 515.

5

E.g., Schneider v. Town of Irvington, 308 U.S. 147, 163 (1939); Kunz v. New York, 340 U.S. 290, 293 (1951).

6

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.

7

Adderley v. Florida, 385 U.S. 39 (1966). See id. at 47–48; Cox v. Louisiana, 379 U.S. 559, 578 (1965) (Black, J., concurring in part and dissenting in part); Jamison v. Texas, 318 U.S. 413, 416 (1943) (Black, J., for the Court).

8

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).

9

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).

10

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 decision making process from lobbying. United States v. Grace, 461 U.S. 171 (1983).

11

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.

12

Brown v. Louisiana, 383 U.S. 131 (1966) (sit-in in library reading room).

13

Edwards v. South Carolina, 372 U.S. 229 (1963); Jeanette Rankin Brigade v. Capitol Police Chief, 342 F. Supp. 575 (D.D.C. 1972) (three-judge court), aff’d, 409 U.S. 972 (1972) (voiding statute prohibiting parades and demonstrations on United States Capitol grounds).

14

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 Sch. Dist., 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).

15

U.S. Postal Serv. V. Council of Greenburgh Civic Assn’s, 453 U.S. 114, 129 (1981).

16

Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).

17

E.g., Minn. Voters All. v. Mansky, No. 16-1435, slip op. at 13 (U.S. June 14, 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); Council of Greenburgh Civic Ass’ns, 453 U.S. at 128 (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).

18

E.g., Se. Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (municipal theater); Madison Sch. Dist. 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).

19

See, e.g., Heffron v. ISKCON, 452 U.S. 640, 647–50 (1981), and id. at 656 (Brennan, J., concurring in part and dissenting in part) (stating law and discussing cases); Clark v. Comty. for Creative Non-Violence, 468 U.S. 288 (1984) (prohibition of sleep-in demonstration in area of park not designated for overnight camping).

20

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 Sch. Dist. 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.

21

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).

22

Heffron v. ISKCON, 452 U.S. 640, 654–55 (1981); Consol. Edison Co. v. PSC, 447 U.S. 530, 535 (1980).

23

Ward v. Rock Against Racism, 491 U.S. 781, 798–99, 800 (1989).

24

Thomas v. Chi. Park Dist., 534 U.S. 316, 323 (2002).

25

Id. at 322(citing Freedman v. Maryland, 380 U.S. 51 (1965)). See National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977).

26

Freedman, 380 U.S. at 58–59.

27

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 Def. & Educ. 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. Univ. of Va., 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. Ctr. Moriches Sch. 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).

28

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). Writing for the Court, Justice Potter Stewart 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.” Shuttlesworth, 394 U.S. 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) (Stone, C.J., dissenting), adopted per curiam on rehearing, 319 U.S. 103 (1943); see also City of Lakewood v. Plain Dealer Publ’g 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. Nat’l Fed’n of the Blind, 487 U.S. 781 (1988) (invalidating as permitting “delay without limit” licensing requirement for professional fundraisers); Forsyth Cnty. 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).

29

In Shuttlesworth v. City of Birmingham, the Court reaffirmed the holdings of the earlier cases, and, additionally, both Justice Potter Stewart, for the Court, 39 U.S. at 155 n.4, and Justice John 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).

30

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).

31

Forsyth Cnty., 505 U.S. at 123 (a fee based on anticipated crowd response necessarily involves examination of the content of the speech, and is invalid as a content regulation).

32

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). In a 2022 decision involving how the Free Speech, Free Exercise, and Establishment Clauses interplay, the Court rejected a “heckler’s veto” in the Establishment Clause context, stating “This Court has since made plain, too, that the Establishment Clause does not include anything like a ‘modified heckler’s veto in which” . . . religious activity can be proscribed’ based on ' “perceptions’” or ' “discomfort.’” Kennedy v. Bremerton Sch. Dist., No. 21-418, (U.S. June 27, 2022). However, 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 Felix 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.” Id

33

E.g., Minn. Voters All. v. Mansky, No. 16-1435, slip op. at 7 (U.S. June 14, 2018).

34

Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009).

35

Minn. Voters All., 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.” ).

36

Minn. Voters All., slip op. at 11. See also Summum, 555 U.S. at 469–70.

37

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 46 n.7 (1983).

38

Id. at 46.

39

Minn. Voters All., slip op. at 7 (quoting Perry Educ. Ass’n, 460 U.S. at 46).

40

Perry Educ. Ass’n, 460 U.S. at 46.