'Everybody Out of the Pool:' Recognizing a First Amendment Claim for the Retaliatory Closure of (Real or Virtual) Public Forums
30 U. Fla. J.L. & Pub. Pol'y 1, 2019
58 Pages Posted: 23 Jun 2021
Date Written: September 21, 2019
America has a rich history of peaceful protests and demonstrations on public property as activists exercise their First Amendment right of freedom of speech, regardless of how vitriolic or partisan that rhetoric may be. But the amount of First Amendment protection that speakers receive when using government property, and the durability of that protection, is an issue that has confounded federal courts, calling for U.S. Supreme Court clarification.
Two recent federal appellate court decisions, one in the Fourth Circuit U.S. Court of Appeals and the other in the Ninth Circuit, leave considerable uncertainty as to whether a speaker who is denied access to (real or virtual) public property for expression can mount a successful First Amendment claim.
The primary legal determinant is called the “forum doctrine,” which claims that while all government property belongs to the public both physically and metaphysically, not all government property is equally suitable for expressive use. While speech in a forum is highly protected against content-based discrimination, the federal courts have created a gaping loophole that invites abuse: A government agency may not directly silence a speaker in a public forum, but can indirectly achieve the same result simply by declaring that the forum is "closed," even if that closure if nakedly retaliatory for constitutionally protected speech.
In the first case, the Fourth Circuit tackled the display of banners on lampposts in Lexington, Virginia. The Sons of Confederate Veterans were blocked from using city lamppost standards for commemorative displays even though other speakers were given access to the same property. The Court categorized the city-owned lampposts as a designated public forum, but found no First Amendment violation in the city’s decision to rescind public access to the forum, even if intended to silence a particular disfavored viewpoint.
Meanwhile, the Ninth Circuit case involved a student-produced magazine at UC-San Diego specializing in tasteless humor. The university denied the magazine’s eligibility to compete for student activity fees, forcing it to discontinue printing. In this scenario, according the court, denying funding effectively closed the forum and violated the newspaper’s freedom of speech. These cases are difficult to reconcile, and they suggest the need for Supreme Court clarification.
This forum nature of public spheres also extends to social media pages. Social media users who were blocked from reading or posting comments to pages maintained by government officials have largely prevailed when challenging the withdrawal of access as a First Amendment violation. Because it is now so easy to create a "forum," government decision-makers need clear judicial guidance about when a governmental social media page may be deactivated entirely.
The article traces the history of the "forum closure" doctrine to an old and discredited line of federal caselaw dating back to the closure of public swimming pools by segregationists. The article concludes that the notion that government property may freely be closed without inquiry into the decision-maker's motives is an illegitimate relic of the segregation era that, like segregation itself, should be discarded and renounced.
Keywords: First Amendment, free speech, public forum
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