Invasion of the Public Forum Doctrine

Abstract:     
The public forum doctrine is like an invasive weed that has expanded luxuriantly after being transplanted beyond its native habitat. The metaphor of the “forum” was first used as a way to explain why the government cannot engage in prior restraint or content discrimination with regard to speaking, picketing, or leafleting on city parks and sidewalks. It has since outgrown these locations, becoming so pervasive that courts frequently assert that all government property must be some kind of forum. The reflex to invoke the public forum doctrine where it does not belong leads to a number of awkward results. When used in inapt situations, the doctrine does little to help lawyers and judges reach correct results, but instead introduces a branching series of dead ends, redundancies, and inefficiencies. Continued use of the public forum doctrine in these settings may hinder the development of better-fitting legal rules. A larger problem arises when the doctrine goes beyond inelegance to create genuinely unjust results.

For all of the debate that occurs over designating particular government properties as a traditional, designated, limited, or nonpublic forums, almost no effort has been applied to defining a forum itself. The law would be better served by recognizing that some locations for speech are simply not forums at all. As a step towards a better definition of a forum, this article identifies five features of a traditional public forum that help explain why these are spaces where the government must allow free-ranging discourse. It then examines the difficulties that result from invoking the public forum doctrine in factual situations lacking different combinations of these features.

Number of Pages in PDF File: 31

Keywords: “public forum”, “traditional public forum”, “limited public forum”, “designated public forum”, “nonpublic forum”, nonforum, rosenberger, summum, greenburgh, weise, pinette, southworth, velazquez, sammartano, “cohen v. california”

Accepted Paper Series