Note: This is an educational course, not legal advice.
Government owns streets, parks, schools, offices and military bases. When people want to speak on government property, the answer depends on what kind of place it is. That is the public forum doctrine, and it uses the content distinction in each kind of place.
| Forum (examples) | Content-based rules | Content-neutral rules |
|---|---|---|
| Traditional public forum (streets, sidewalks, parks) | strict scrutiny | time, place and manner test |
| Designated public forum, opened by the government for speech generally (a city theater opened to all groups) | strict scrutiny, while it stays open | time, place and manner test |
| Limited public forum, opened for some groups or subjects (school rooms opened after hours to community groups) | reasonable in light of the purpose and viewpoint-neutral | the same |
| Nonpublic forum (military bases, airport terminals, internal mail systems, polling places) | reasonable and viewpoint-neutral | the same |
Why it works
Why does the place matter? Streets and parks have, in Justice Roberts's words in Hague v. Committee for Industrial Organization (1939), "immemorially been held in trust for the use of the public" and used for assembly and debate "time out of mind." Other property exists for other jobs (running a base, moving travelers, delivering school mail), and government may keep it focused on that job. In Perry Education Association v. Perry Local Educators' Association (1983) a school district let the elected teachers' union use teacher mailboxes but not a rival union: the mail system was a nonpublic forum, and the rule was reasonable and viewpoint-neutral. In International Society for Krishna Consciousness, Inc. v. Lee (1992) airport terminals were held nonpublic forums. Military bases are treated as nonpublic forums too. Even in a nonpublic forum, though, a rule must be reasonable and clear enough to apply evenhandedly.
Key idea
The forum sets the test: in traditional and designated public forums, content-based rules get strict scrutiny; in limited and nonpublic forums, restrictions need only be reasonable and viewpoint-neutral.
Worked example: A sidewalk
A city bans leafleting about any religious subject on public sidewalks downtown. Test?
- Sidewalks are a traditional public forum.
- The ban turns on subject (religion): content-based.
- Strict scrutiny applies, and the ban will almost surely fail.
Answer: Strict scrutiny in a traditional public forum.
Worked example: An airport
An airport authority bans asking for money inside its terminals, for all causes. Test?
- Terminals are nonpublic forums (ISKCON v. Lee, 1992).
- The rule need only be reasonable and viewpoint-neutral.
- Soliciting money can slow travelers; the rule treats every cause alike.
Answer: Reasonable and viewpoint-neutral: upheld.
Common mistake
Thinking all government property is a public forum. A military base or an airport terminal is not; the forum category sets the test. But even nonpublic forums forbid viewpoint discrimination and require reasonableness.