Creating the Public Forum
State University of New York (SUNY), Buffalo, SUNY Buffalo Law School
April 27, 2011
Akron Law Review, Vol. 44, No. 3, 2011
SUNY Buffalo Legal Studies Research Paper No 2011-022
The public forum doctrine protects a right of access - “First Amendment easements” - to streets and parks and other traditional places for public expression. It is well known that the doctrine was articulated by the Supreme Court in a series of cases in the 1930s and 1940s. Lesser known are the historical circumstances that surrounded its creation. Critics believed that in a modern world where the mass media dominated public discourse - where the soap box orator and pamphleteer had been replaced by the radio and mass circulation newspaper - mass communications had undermined the possibility of widespread participation in politics, public life, and democratic “public discussion.” The public forum doctrine was one response to this concern.
This paper describes the development of the public forum doctrine in the context of a larger story about the nation’s efforts in this period to come to terms with its first modern crisis of communication. This crisis was precipitated by a growing public perception of a fundamental contradiction of mass communications. Without the mass media, a culturally diverse and geographically dispersed public could not communicate across social and spatial boundaries. At the same time, the mass media undermined the public’s ability to communicate meaningfully. The street-corner preacher and town square speaker could not compete with the mass media for a public audience. Poor and disfavored groups could not use the media to express their views, and media owners skewed the news to suit their political interests.
This crisis of communication spawned a national debate on the meaning of freedom of speech under the new system of modern mass communications - radio, motion pictures, and mass publishing. The rise of media empires in the 1930s demonstrated how an unregulated press could dominate public discourse, distort public opinion and quash the expression of non-media speakers. Intellectuals and activists on the left offered a theory of the First Amendment as an affirmative state obligation to provide the public with the means to carry out public discussion. This “public forum movement” argued that the state must compel privately-owned media to facilitate the speech of non-media speakers and itself provide alternative means of communication to those unable to access the mass media - it must create “public forums” on the radio, in print journalism, and in public space.
A broadcast reform effort in the 1930s pressured the Federal Communications Commission to use its licensing authority to compel radio station owners to present diverse views on public affairs and to represent the interests of minority groups. There were similar, ultimately unsuccessful campaigns to turn newspapers into public forums through right of access laws and balanced content requirements enforced by the state. The public forum doctrine similarly reflected an emerging awareness of the link between material and communicative inequalities in the mass media age. Because average citizens could not access the mass media to express their interests and views, the Court concluded, freedom of speech protects a right to reach a public audience in the streets, commons, and parks.
Number of Pages in PDF File: 59
Keywords: public forum, mass media, First Amendment, legal historyAccepted Paper Series
Date posted: June 23, 2011 ; Last revised: December 18, 2014
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