Public and Nonpublic Forums

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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 distinction between public and nonpublic forums may be difficult to ascertain. Whether a speech restriction will be reviewed under strict scrutiny or only for reasonableness thus may turn in part on whether the government has “intentionally open[ed] a nontraditional forum for public discourse,” creating a designated public forum.1 To determine whether a forum is a designated public forum or a nonpublic forum, the Court will look to the government’s intent in opening the forum,2 the restrictions initially placed on speakers’ access to the forum,3 and the nature of the forum.4 For example, in Cornelius v. NAACP Legal Defense and Educational Fund, the Court held that the Combined Federal Campaign (CFC), “an annual charitable fundraising drive conducted in the federal workplace,” 5 was a nonpublic forum.6 Notwithstanding the fact that the federal government had opened the forum for solicitation by some charitable organizations, the Court concluded that “neither [the government’s] practice nor its policy [was] consistent with an intent to designate the CFC as a public forum open to all tax-exempt organizations.” 7 Accordingly, the Court upheld the government’s decision to exclude certain charitable organizations as reasonable in light of the purpose of the forum.8 Similarly, the Court concluded in another case that a school district had not created a public forum with its system for internal school mail because the district had not, “by policy or by practice,” “opened its mail system for indiscriminate use by the general public.” 9 The Court therefore concluded that the school district could permissibly exclude a teacher’s association from using the mail system, while also allowing a different teacher’s association—the teachers’ exclusive representative—to use the mail system, because the school’s policy was reasonable and consistent with the purposes of the forum.10

However, although the government has greater discretion to restrict speech in nonpublic forums,11 the First Amendment still prohibits certain restrictions even in nonpublic forums. For instance, the Court held in Minnesota Voters Alliance v. Mansky that “[a] polling place in Minnesota qualifies as a nonpublic forum.” 12 After reviewing the long history of state regulation of polling places on election day,13 the Court concluded that because the polling place was “government-controlled property set aside for the sole purpose of voting,” 14 it qualified as “a special enclave, subject to greater restriction.” 15 Although the forum’s designation as a nonpublic forum meant that the Court did not apply strict scrutiny, the Court nonetheless struck down a Minnesota law that barred all “political” apparel from polling places as unreasonable.16 The Court acknowledged that the state could permissibly seek to “prohibit certain apparel” in polling places “because of the message it conveys,” 17 but concluded that the particular scheme followed by Minnesota was not “capable of reasoned application.” 18 In the Court’s view, the breadth of the term “political” and the state’s “haphazard interpretations” 19 of that term failed to provide “objective, workable standards” to guide the discretion of the election judges who implemented the statute.20

Application of these principles continues to raise often difficult questions. In United States v. Kokinda, a majority of Justices, who ultimately upheld a ban on soliciting contributions on postal premises under the “reasonableness” review governing nonpublic forums, could not agree on the public forum status of a sidewalk located entirely on postal service property.21 Two years later, in International Society for Krishna Consciousness, Inc. v. Lee, the Court was similarly divided as to whether non-secured areas of airport terminals, including shops and restaurants, constitute public forums.22 A five-Justice majority held that airport terminals are not public forums and upheld regulations banning the repetitive solicitation of money within the terminals.23

A decade later, the Court considered the public forum status of the internet. In United States v. American Library Association, Inc., a four-Justice plurality held that “Internet access in public libraries is neither a ‘traditional’ nor a ‘designated’ public forum.” 24 The plurality therefore did not apply strict scrutiny in upholding the Children’s Internet Protection Act, which provides that a public school or “library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them.” 25

More recently, in Packingham v. North Carolina, the Court appeared to equate the internet to traditional public forums like a street or public park. Specifically, Justice Anthony Kennedy, writing for the Court, observed that, “[w]hile in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular.” 26 Consequently, the Court struck down a North Carolina law making it a felony for registered sex offenders to use commercial social networking websites that allow minor children to be members, such as Facebook. Applying strict scrutiny, the Court held that the North Carolina law impermissibly restricted lawful speech as it was not narrowly tailored to serve the government’s interest in protecting minors from registered sex offenders because it “foreclose[d] access to social media altogether,” thereby “prevent[ing] the user from engaging in the legitimate exercise of First Amendment rights.” 27

1: See Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802 (1985); see also United States v. Am. Libr. Ass’n, Inc., 539 U.S. 194, 206 (2003) (plurality opinion) ( “To create such a [designated public] forum, the government must make an affirmative choice to open up its property for use as a public forum.” ); United States v. Kokinda, 497 U.S. 720, 727 (1990) (plurality opinion) (holding certain sidewalks were a nonpublic forum because the government owner had not “expressly dedicated” them “to any expressive activity” ). Cf. Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 814 (1984) ( “Appellees’ reliance on the public forum doctrine is misplaced. They fail to demonstrate the existence of a traditional right of access respecting such items as utility poles for purposes of their communication comparable to that recognized for public streets and parks. . ..” ).
2: Cornelius, 473 U.S. at 803.
3: See Perry Educ. Ass’n, 460 U.S. at 4748.
4: Cornelius, 473 U.S. at 803.
5: Id. at 790.
6: Id. at 805.
7: Id. at 804 (emphasis added).
8: Id. at 809.
9: See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 47 (1983). The Court also stated, however, that “even if we assume that by granting access to the Cub Scouts, YMCA’s, and parochial schools, the School District has created a ‘limited’ public forum, the constitutional right of access would in any event extend only to other entities of similar character. While the school mail facilities thus might be a forum generally open for use by the Girl Scouts, the local boys’ club, and other organizations that engage in activities of interest and educational relevance to students, they would not as a consequence be open to an organization such as [the Perry Local Educators’ Association], which is concerned with the terms and conditions of teacher employment.” Id. at 48. In United States v. Kokinda, 497 U.S. 720, 730 (1990) (plurality opinion), the Court interpreted this language to mean that in a limited public forum, “regulation of the reserved nonpublic uses would still require application of the reasonableness test.”
10: Perry Educ. Ass’n, 460 U.S. at 50–51. See also Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 269–70 (1988) (holding that a student newspaper created as part of “a supervised learning experience” was not a public forum).
11: See, e.g., United States v. Am. Libr. Ass’n, Inc., 539 U.S. 194, 204–05 (2003) (plurality opinion).
12: Minn. Voters All. v. Mansky, No. 16-1435, slip op. at 8 (U.S. June 14, 2018).
13: Id. at 1–3.
14: Id. at 8.
15: Id. (quoting Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680 1992)) (internal quotation marks omitted).
16: Id. at 13.
17: Id. at 12.
18: Id. at 19.
19: Id. at 13.
20: Id. at 18.
21: 497 U.S. 720, 727 (1990) ( “[R]egulation of speech activity where the Government has not dedicated its property to First Amendment activity is examined only for reasonableness.” ).
22: 505 U.S. 672 (1992).
23: Id. at 683 ( “[N]either by tradition nor purpose can the terminals be described as satisfying the standards we have previously set out for identifying a public forum.” ).
24: 539 U.S. 194, 205–06 (2003) ( “We have ‘rejected the view that traditional public forum status extends beyond its historic confines.’ The doctrines surrounding traditional public forums may not be extended to situations where such history is lacking.” (quoting Ark. Educ. TV Comm’n v. Forbes, 523 U.S. 666, 679 (1998))). While decided on constitutional vagueness grounds, in Reno v. ACLU, the Court struck down a provision of the Communications Decency Act of 1996 that prohibited the use of an “interactive computer service” (that is, the internet) to display indecent material “in a manner available to a person under 18 years of age.” 521 U.S. 844, 860 (1997). The Court did not consider the internet’s status as a forum for free speech, but observed that the internet “constitutes a vast platform from which to address and hear from a world-wide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can ‘publish’ information.” Id. at 853.
25: Am. Libr. Ass’n, 539 U.S. at 199; see also id. at 206 ( “A public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak.” ).
26: Packingham v. North Carolina, 582 U.S. 98, 104 (2017) (quoting ACLU 521 U.S. at 868); see also id. at 105 ( “This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.” ).
27: Id. at 105, 107; see id. at 106 ( “[G]iven the broad wording of the North Carolina statute at issue, it might well bar access not only to commonplace social media websites but also to websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com.” ). The Court was careful to point out, however, that its opinion should not be read as barring states from enacting laws more specific than that of North Carolina, noting that “[s]pecific criminal acts are not protected speech even if speech is the means for their commission.” Id. at 107 (citing Brandenburg v. Ohio, 395 U.S. 444, 447–49 (1969)). Indeed, “it can be assumed that the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.” Id.