The Public Sensibilities Forum
Posted: 14 Aug 2017
Date Written: January 15, 2001
In a wide range of contexts, governments are operating “public sensibilities forums.” That is, governments are granting speech opportunities to private citizens and groups, but are limiting access to speech that is, in one way or another, consistent with, rather than offensive to, public sensibilities. This type of standard creates the possibility that the people who administer the forum will engage in unconstitutional viewpoint discrimination. At the same time, these government/private speech interactions are acts of largesse, not regulation, and are often highly publicly visible. These considerations suggest that the government, and the public it serves, should not have to tolerate the same range of “outrageous” speech that they must when the government does not provide the speech opportunity.
This Article proposes that the resolution of these competing intuitions is a properly limited public sensibilities forum. This exists when the government: assumes responsibility for limiting access according to public sensibilities; has authority to do so, usually because an unwilling audience will likely view the speech created; does not monopolize the speech market by creating the speech opportunity; and articulates clear standards that primarily relate to the manner, rather than the viewpoint, of expression.
Keywords: Constitution, First Amendment, Free Speech, Government Speech, Forum, Viewpoint Discrimination
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