First Amendment protections of speakers’ rights to speech and assembly vary based on the speakers’ chosen forum. The Supreme Court breaks down forums into three types: traditional public forums, designated forums, and nonpublic forums. See Perry Educ. Ass’n v. Perry Educators’ Ass’n, 460 U.S. 37 (1983). Finally, some public property is not a forum at all.
Traditional public forums include public parks, sidewalks and areas that have been traditionally open to political speech and debate. Speakers’ in these areas enjoy the strongest First Amendment protections. In traditional public forums, the government may not discriminate against speakers based on their views. This is called “viewpoint discrimination.” The government may, however, subject speech to reasonable, content-neutral restrictions on its time, place, and manner. When considering government restrictions of speech in traditional public forums, courts use “strict scrutiny.” Under strict scrutiny, restrictions are allowed only if they serve a compelling state interest and are narrowly tailored to meet the needs of that interest.
Sometimes, the government opens public property for public expression even though the public property is not a traditional public forum. These are designated public forums. After opening a designated public forum, the government is not obligated to keep it open. However, so long as the government does keep the forum open, speech in the forum receives the same First Amendment protections as speech in traditional public forums. Examples of designated public forums include municipal theatres and meeting rooms at state universities.
The government may limit access to a designated public forum to certain classes or types of speech. In these “limited forums,” although the government may discriminate against classes of speakers or types of speech, it may not exercise viewpoint discrimination. For example, the government may limit access to public school meeting rooms by only allowing speakers conducting school-related activities. It may not, however, exclude speakers from a religious group simply because they intend to express religious views. See Good News Club v. Milford Central School, 533 U.S. 98.
Nonpublic forums are forums for public speech that are neither traditional public forums nor designated public forums. Government restrictions on speech in nonpublic forums must be reasonable, and may not discriminate based on speakers’ viewpoints. Examples of nonpublic forums include airport terminals and a public school’s internal mail system. See Perry.
Finally, some public property is not a forum at all, and thus is not subject to this forum analysis. For example, public television broadcasters’ are not subject to forum analysis when they decide what shows to air.