Public forum doctrine

DEFINITION: Constitutional doctrine relating to attempts by government bodies to control speech activities on public property.

SIGNIFICANCE: Although the Supreme Court initially held that government bodies have the same power to control the use of public properties as private owners, during the twentieth century, the Court expanded citizens' rights to engage in expressive activities in public venues.

Government bodies in the United States own and manage a variety of properties, including streets, parks, and public buildings. In their role as property owners, government bodies often seek to exercise control over the activities that occur on government property, including expressive activities. Early in the twentieth century, the Supreme Court interpreted the First Amendment’s free speech clause to permit the government the same broad discretion to control activities on its property as enjoyed by most private property owners. In the twentieth century, however, the Court eventually crafted distinctions among types of government property that dictated the kinds of control government might exercise over speech-related activities on public property. The Court’s elaboration of these distinctions is commonly called the public forum doctrine.

Traditional Public Forums

The core of the public forum doctrine was the Court’s determination that some forms of government property were held by the government in trust for its citizens for speech-related purposes. Public streets and parks, for example, have, according to the Court, “immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communications of thought between citizens, and discussing public questions.” The Court designated public properties traditionally held for speech-related purposes as “public forums.”

Within these public forums, the Court sharply limited government power to regulate speech-related activities. In particular, the public forum doctrine prevents the government from attempting to exclude speech from such forums out of hostility to the views expressed or the subject matter addressed in the speech. The government, however, does have the power to regulate speech in public forums. It may regulate the timing, placement, or manner of speech in such forums. This type of regulation, commonly referred to as time, place, and manner restrictions, enables the government to regulate the volume of concerts in public parks, for example, or to schedule appropriate times for parades on public streets. In public forums, the government may coordinate expressive activities, but it may not censor particular views or subjects. Although the government may enforce reasonable time, place, and manner restrictions on speech in these forums, it may discriminate against speech with a particular content only if it demonstrates a compelling justification. This kind of demonstration is rare, but occasionally the government will proffer a weighty enough justification, as, for example, in Frisby v. Schultz (1988), when the Court upheld a ban on focused picketing on the public streets in front of a particular resident, such as a picket by abortion protesters of the home of a doctor who performed abortions.

Designated Public Forums and Nonpublic Forums

Eventually, the Court had to consider whether other types of public property were subject to the same rules as those applied to classic public forums, such as public streets and parks. In Perry Education Association v. Perry Local Educators’ Association (1983), the Court described three categories of public property and the measure of protection accorded to speech in each type. First, the Court reiterated the protection afforded to speech in “traditional” public forums, such as streets and parks. Second, the Court identified some types of public property as “designated” public forums. These exist when the government opens particular property for a wide range of expressive purposes. In such cases, the government must adhere to the same rules that apply to traditional public forums. In particular, it may not attempt to prevent particular subjects or viewpoints from accessing the forum. Thus, in Widmar v. Vincent (1981), the Court held that a university could not prevent a Christian student group from meeting in university facilities that had been made generally available to other student groups for speech-related activities.

The Court ruled in Perry Education Association that certain types of public property might be reserved by the government for particular purposes and not made available to the public for general expressive activities. Within these “nonpublic forums,” the government may exercise considerable control over speech, even to the extent of choosing what subjects may be addressed in these forums. The government may not, however, attempt to suppress the expression of particular viewpoints. Furthermore, at a minimum, any regulations of speech in nonpublic forums must be reasonable. Within these broad parameters, the government may designate specific uses for its nonpublic forums, including particular expressive uses. Thus, for example, in United States Postal Service v. Greenburgh Civic Associations (1981), the Court held that mailboxes are nonpublic forums and federal law may restrict access to mailboxes to postal material. Similarly, in Greer v. Spock (1976), the Court ruled that military bases are not public forums and demonstrations in this venue can be prohibited.

In Walker v. Sons of Confederate Veterans (2015), the Court ruled that Texas’s specialty license plate program was government speech, not a public forum. Since the state was the speaker, it could reject designs without violating the First Amendment, clarifying that not all platforms where individuals contribute content qualify as public forums. Conversely, federal appeals courts have treated government-run social media accounts differently; both the Second and Fourth Circuit Courts found that public officials using social media for official purposes create public forums. In Knight First Amendment Institute at Columbia University v. Trump (2019), the United States Court of Appeals for the Second Circuit ruled that President Trump’s Twitter (now X) account constituted such a forum. Therefore, blocking users who criticized him constituted viewpoint discrimination, violating the First Amendment. However, the US Supreme Court vacated the judgment in Biden v. Knight First Amendment Institute at Columbia University (2021), stating that the case was moot because Trump was no longer president and Twitter had permanently suspended his account. While it neutralized the legal precedent, the Court did not overturn the case on its merits. In Lindke v. Freed (2024), the US Supreme Court held that a public official’s social-media activity is subject to the First Amendment only when the official had actual authority to speak for the government and appeared to exercise that authority in the relevant posts or actions. In O’Connor-Ratcliff v. Garnier (2024), the Court applied the same approach in a case involving school board members’ social-media pages.

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