Forums

Overview

A forum in First Amendment law refers to the place in which a speaker speaks. The First Amendment's protections regarding the right to speak and assemble will vary based on the speakers’ chosen forum. In Perry Educ. Ass’n v. Perry Educators’ Ass’n, 460 U.S. 37 (1983), the Supreme Court divided forums into three types: traditional public forums, designated forums, and nonpublic forums. 

Traditional Public Forums

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 the speakers' views. Doing so is called viewpoint discrimination, which is prohibited under the First Amendment. 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. When the government restricts speech in a traditional public forum, strict scrutiny dictates that restrictions are allowed only if they serve a compelling state interest and are narrowly tailored to meet the needs of that interest.

Designated Public Forums

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, as 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 theaters and meeting rooms at state universities.

Limited Forums

A limited forum is a type of a designated public forum. Here, the government limits access to a designated public forum to certain classes or types of speech. In Good News Club v. Milford Central School, 533 U.S. 98 (2001), the Supreme Court held that in a “limited forum,” the government may discriminate against classes of speakers or types of speech. However, the government is still prohibited from engaging in 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. 

Nonpublic Forums

Nonpublic forums are forums for public speech that are neither traditional public forums nor designated public forums. According to the Supreme Court in Minnesota Voters Alliance v. Mansky, 585 U.S. __ (2018), in a nonpublic forum, the Government may restrict contents of a speech, as long as the restriction is reasonable and the restriction does not discriminate based on speakers’ viewpoints. Examples of nonpublic forums include airport terminals, a public school’s internal mail system, and a polling place. 

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.

Further Reading

For more on forums, see this University of Florida Faculty Scholarship article, this Fordham Law Review article, and this University of Virginia Law Review article