First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The government’s latitude to regulate speech depends, in part, on the forum where that speech occurs. When the government regulates speech in a traditional public forum, such as a public park or sidewalk, or intentionally designates a forum for public speech, content-based regulations are subject to strict scrutiny.1 In contrast, when the government opens up a nonpublic forum for a limited public purpose, it “may impose some content-based restrictions on speech.” 2 Regardless of the type of forum, however, restrictions on content generally must be viewpoint-neutral to comply with the First Amendment.3

The Court applied these standards in several cases involving programs for student organizations at public universities, which generally have been considered limited or nonpublic forums. In one such case from 1995, the Court acknowledged that the government sometimes needs to limit forums it creates to “certain groups” or “certain topics,” but ruled that once a government “has opened a limited forum,” it may not “discriminate against speech on the basis of its viewpoint.” 4 In that case, the university discriminated on the basis of viewpoint by denying funding to a student group because of its religious perspective.5 By comparison, requiring registered student organizations “to accept all comers” is “textbook viewpoint neutral,” the Court held in a 2010 decision.6

Apart from the requirement of viewpoint-neutrality, a regulation of speech in a nonpublic forum must be “reasonable” in light of the forum’s purpose.7 A law that is viewpoint-neutral on its face may be unreasonable if it lacks discernible standards to encourage viewpoint-neutral enforcement. In Minnesota Voters Alliance v. Mansky, a 2018 decision, the Court reviewed a state’s political “apparel ban,” which prohibited wearing any “political badge, political button, or other political insignia” within a polling place.8 The Court held that a polling place on Election Day is a nonpublic forum subject to reasonable, content-based restrictions.9 The apparel ban was viewpoint-neutral on its face, the Court determined, because it made “no distinction based on the speaker’s political persuasion.” 10 The Court nonetheless struck down the apparel ban because it was overbroad in its operation, reaching apparel expressing viewpoints on issues on and off the ballot.11 In addition, the lack of “objective, workable standards” for election judges to apply made the apparel ban susceptible to viewpoint-discriminatory enforcement, which contributed to its unreasonableness.12

Footnotes

1

Minn. Voters All. v. Mansky, No. 16-1435, slip op. at 7 (U.S. June 14, 2018).

2

Id. at 8; see, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 48–49 (1983) (reasoning that because a public school’s mail system was not a public forum, it had no constitutional obligation to let any organization use its mail boxes).

3

See Manhattan Cmty. Access Corp. v. Halleck, No. 17-1702, slip op. at 8–9 (U.S. June 17, 2019) (stating that “[w]hen the government provides a forum for speech (known as a public forum),” it “ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint” ); Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 806 (1985) (explaining that “[c]ontrol over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral” ).

4

Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995).

5

Id. at 825–27; see also Good News Club v. Milford Cent. Sch., 533 U.S. 98, 109 (2001) (holding that a public school engaged in viewpoint discrimination when it excluded a club from its “afterschool forum” because of the club’s “religious nature” ).

6

Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 694–95 (2010) (holding, in addition, that the policy did not discriminate on the basis of viewpoint in effect); see also Turner Broad. Sys. v. FCC, 512 U.S. 622, 647 (1994) (holding that a federal statute requiring cable companies to transmit certain broadcast stations was not viewpoint-based because it did not differentiate among the messages that the stations carry).

7

Cornelius, 473 U.S. at 806.

8

No. 16-1435, slip op. at 3 (U.S. June 14, 2018).

9

Id. at 8–9.

10

Id. at 9.

11

Id. at 13–17.

12

Id. at 18.