In 1895, while on the highest court of Massachusetts, future Justice Oliver Wendell Holmes rejected a contention that public property was by right open to the public as a place where the right of speech could be recognized,1 and on review the United States Supreme Court endorsed Holmes’ view.2 Years later, beginning with Hague v. CIO,3 the Court reconsidered the issue. Justice Roberts wrote in Hague: Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.
Although this opinion was not itself joined by a majority of the Justices, the Court subsequently endorsed the view in several opinions.4
The Roberts view was called into question in the 1960s, however, when the Court seemed to leave the issue open,5 and when a majority endorsed an opinion by Justice Black asserting his own narrower view of speech rights in public places.6 Later decisions restated and quoted the Roberts language from Hague, and that is now the position of the Court.7 Public streets and parks,8 including those adjacent to courthouses9 and foreign embassies,10 as well as public libraries11 and the grounds of legislative bodies,12 are open to public demonstrations, although the uses to which public areas are dedicated may shape the range of permissible expression and conduct that may occur there.13 Moreover, not all public properties are public forums. [T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government.
14 The crucial question is whether the manner of expression is basically compatible with the normal activity of a particular place at a particular time.
15 Thus, by the nature of the use to which the property is put or by tradition, some sites are simply not as open for expression as streets and parks are.16 But if government does open non-traditional forums for expressive activities, it may not discriminate on the basis of content or viewpoint in according access.17 The Court, however, remains divided with respect to the reach of the public forum doctrine.18
Speech in public forums is subject to time, place, and manner regulations that take into account such matters as control of traffic in the streets, the scheduling of two meetings or demonstrations at the same time and place, the preventing of blockages of building entrances, and the like.19 Such regulations are closely scrutinized in order to protect free expression, and, to be valid, must be justified without reference to the content or subject matter of speech,20 must serve a significant governmental interest,21 and must leave open ample alternative channels for communication of the information.22 The Court has written that a time, place, or manner regulation must be narrowly tailored to serve the government’s legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied . . . [s]o long as the means chosen are not substantially broader than necessary to achieve the government’s interest . . . .
23 A content-neutral time, place, and manner regulation of the use of a public forum must also contain adequate standards to guide the official’s decision and render it subject to effective judicial review.
24 Unlike a content-based licensing scheme, however, it need not adhere to the procedural requirements set forth in Freedman.
25 These requirements include that the burden of proving that the film [or other speech] is unprotected expression must rest on the censor,
and that the censor must, within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution.
26
A corollary to the rule forbidding regulation based on content is the principle—a merging of free expression and equal protection standards—that government may not discriminate between different kinds of messages in affording access.27 In order to ensure against covert forms of discrimination against expression and between different kinds of content, the Court has insisted that licensing systems be constructed as free as possible of the opportunity for arbitrary administration.28 The Court has also applied its general strictures against prior restraints in the contexts of permit systems and judicial restraint of expression.29
It appears that government may not deny access to the public forum for demonstrators on the ground that the past meetings of these demonstrators resulted in violence,30 and may not vary a demonstration licensing fee based on an estimate of the amount of hostility likely to be engendered,31 but the Court’s position with regard to the heckler’s veto,
the governmental termination of a speech or demonstration because of hostile crowd reaction, remains unclear.32
The Court has defined three categories of public property for public forum analysis.33 First, there is the traditional public forum—places such as streets and parks that have traditionally been used for public assembly and debate.34 In such a forum, the government may impose reasonable time, place, and manner restrictions on private speech, but restrictions based on content must satisfy strict scrutiny, and those based on viewpoint are prohibited.
35 Second, there is the designated public forum, where the government opens property for communicative activity and thereby creates a public forum.36 Such a forum may be limited—hence the expression limited public forum
—for use by certain groups, e.g., Widmar v. Vincent (student groups), or for discussion of certain subjects, e.g., City of Madison Joint School District v. Wisconsin PERC (school board business),
37 but, within the framework of such legitimate limitations, a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.
38 Third, in a nonpublic forum,
or a space that 'is not by tradition or designation a forum for public communication,'
39 the government may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.
40
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.41 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,42 the restrictions initially placed on speakers' access to the forum,43 and the nature of the forum.44 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,
45 was a nonpublic forum.46 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.
47 Accordingly, the Court upheld the government's decision to exclude certain charitable organizations as reasonable in light of the purpose of the forum.48 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.
49 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.50
However, although the government has greater discretion to restrict speech in nonpublic forums,51 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.
52 After reviewing the long history of state regulation of polling places on election day,53 the Court concluded that because the polling place was government-controlled property set aside for the sole purpose of voting,
54 it qualified as a special enclave, subject to greater restriction.
55 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.56 The Court acknowledged that the state could permissibly seek to prohibit certain apparel
in polling places because of the message it conveys,
57 but concluded that the particular scheme followed by Minnesota was not capable of reasoned application.
58 In the Court's view, the breadth of the term political
and the state's haphazard interpretations
59 of that term failed to provide objective, workable standards
to guide the discretion of the election judges who implemented the statute.60
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 fora, could not agree on the public forum status of a sidewalk located entirely on postal service property.61 Two years later, in International Society for Krishna Consciousness, Inc. v. Lee, the Court similarly divided as to whether non-secured areas of airport terminals, including shops and restaurants, constitute public fora.62 A five-Justice majority held that airport terminals are not public fora and upheld regulations banning the repetitive solicitation of money within the terminals.63
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.
64 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.
65
More recently, in Packingham v. North Carolina, the Court appeared to equate the Internet to traditional public fora like a street or public park. Specifically, Justice 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.
66 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.
67
Quasi-Public Places
The First Amendment precludes government restraint of expression and it does not require individuals to turn over their homes, businesses, or other property to those wishing to communicate about a particular topic.68 But it may be that in some instances private property is so functionally akin to public property that private owners may not forbid expression upon it. In Marsh v. Alabama,69 the Court held that the private owner of a company town could not forbid distribution of religious materials by a Jehovah’s Witness on a street in the town’s business district. The town, wholly owned by a private corporation, had all the attributes of any American municipality, aside from its ownership, and was functionally like any other town. In those circumstances, the Court reasoned, the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.
70 This precedent lay unused for some twenty years until the Court first indicated a substantial expansion of it, and then withdrew to a narrow interpretation.
First, in Food Employees Union v. Logan Valley Plaza,71 the Court held constitutionally protected the picketing of a store located in a shopping center by a union objecting to the store’s employment of nonunion labor. Finding that the shopping center was the functional equivalent of the business district involved in Marsh, the Court announced there was no reason why access to a business district in a company town for the purpose of exercising First Amendment rights should be constitutionally required, while access for the same purpose to property functioning as a business district should be limited simply because the property surrounding the ‘business district’ is not under the same ownership.
72 [T]he State,
said Justice Marshall, may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put.
73 The Court observed that it would have been hazardous to attempt to distribute literature at the entrances to the center and it reserved for future decision whether respondents’ property rights could, consistently with the First Amendment, justify a bar on picketing which was not thus directly related in its purpose to the use to which the shopping center property was being put.
74
Four years later, the Court answered the reserved question in the negative.75 Several members of an antiwar group had attempted to distribute leaflets on the mall of a large shopping center, calling on the public to attend a protest meeting. Center guards invoked a trespass law against them, and the Court held that they could rightfully be excluded. The center had not dedicated its property to a public use, the Court said; rather, it had invited the public in specifically to carry on business with those stores located in the center. Plaintiffs’ leafleting, not directed to any store or to the customers qua customers of any of the stores, was unrelated to any activity in the center. Unlike the situation in Logan Valley Plaza, there were reasonable alternatives by which plaintiffs could reach those who used the center. Thus, in the absence of a relationship between the purpose of the expressive activity and the business of the shopping center, the property rights of the center owner will overbalance the expressive rights to persons who would use their property to communicate.
Then, the Court formally overruled Logan Valley Plaza, holding that shopping centers are not functionally equivalent to the company town involved in Marsh.76 Suburban malls may be the new town squares
in the view of sociologists, but they are private property in the eye of the law. The ruling came in a case in which a union of employees engaged in an economic strike against one store in a shopping center was barred from picketing the store within the mall. The rights of employees in such a situation are generally to be governed by federal labor laws77 rather than the First Amendment, although there is also the possibility that state constitutional provisions may be interpreted more expansively by state courts to protect some kinds of public issue picketing in shopping centers and similar places.78 Henceforth, only when private property ‘has taken on all the attributes of a town’
is it to be treated as a public forum.79