Whither the Public Forum Doctrine: Has this Creature of the Courts Outlived its Usefulness?

Abstract

Tracing both the development of the Public Forum Doctrine and the history of the property rights it affects, in this Article the Author argues that the doctrine currently exists as a tangled mass of precedent that is unworkable in practice. By juxtaposing the current application of the Public Forum Doctrine against a proposed approach that balances the property rights of the owner against the speech rights of the visitor to the land, the Author provides support for the position that the Public Forum Doctrine can be replaced by a more effective means of achieving a fair balance between the competing rights.

Includes an Appendix: Historical Details on the Emerging Concept: Governmental Immunity Over English Land in the Anglo-Saxon and Norman Periods (pp. 735-743).

Keywords: Public Forum Doctrine, free speech, property rights, First Amendment, Fifth Amendment, expressive rights, legal history, private property, nuisance, trespass, natural rights, police power regulations, governmental sovereignty, constitutional history, common law