Public Forum Doctrine
A. Categories of Public Forums
1) Traditional or Quintessential Public Forums
2) Designated Public Forums
3) Nonpublic Forums
B. Traditional or Quintessential Public Forums
1) Examples – Streets and Parks
(These are places that have been made available for expression since
2) Guaranteed Access Rights
(The public has guaranteed rights of access to such places and,
therefore, the government cannot close off this access completely.)
3) Content Neutral Time, Place, and Manner Regulations
(The government can regulate access to the streets and parks by
enacting time, place, and manner regulations. To be constitutional
such regulations must be content-neutral, must be narrowly tailored
to accomplish an important governmental interest, and must leave
open ample alternative avenues for expression. This is a version of
the intermediate scrutiny test.)
4) Content-Based Regulations Evaluated Under Strict Scrutiny Test
(The government can regulate access to the streets and parks based
on the content of the regulated speech, but only if it has selected
a narrowly tailored, least restrictive method of achieving a
compelling governmental interest. Content-based regulations can be
based on subject matter or viewpoint. Viewpoint discrimination is
almost always unconstitutional.)
C. Designated Public Forums
1) This category consists of government property that the government
has intentionally opened up for the purpose of either all or certain
kinds of First Amendment activities by members of the public or by a
particular segment of the public such as students in a designated
forum created by the school they attend.
2) The key here is that the government’s creation of a designated
public forum is a voluntary act. Moreover, the creation of a
designated forum is not permanent. The government is free to
eliminate forums that it voluntarily creates.
3) The government can regulate access to designated public forums in
the same manner as traditional public forums by adopting reasonable
time, place and manner regulations and by adopting content-based
restrictions that satisfy strict scrutiny.
4) Designated public forums may be unlimited or limited public
forums. Most such voluntary forums are limited in some way and are
referred to as limited public forums.
5) The government can limit a designated forum by speaker identity,
subject matter, time, etc. This means if the forum is limited by
speaker identity, for example, that the government property is a
designated forum as to some speakers (those within the described
limits) and a nonpublic forum as to other speakers (those outside
the described limits).
6) In evaluating whether the limits imposed by the government on a
limited public forum are constitutional, a court will consider
whether the limits are reasonable in light of the purpose of the
forum and are not based on viewpoint. Therefore, some subject matter
restrictions will be constitutional if they are designed to preserve
the purpose of the forum, but that does not extend to viewpoint
D. How to Identify a Designated Public Forum
1) To identify whether property qualifies as a designated public
forum, courts principally examine the policy and practice of the
government (to determine if it intended to designate a place as a
2) Courts also look at the nature of the property and its
compatibility with expressive activity (to discern the government’s
3) A court will not determine that government property to which a
speaker seeks access is a designated public forum solely because the
government has allowed selective access to the forum (e.g., by
allowing it to be used by occasional speakers); and
4) Designated public forums may be limited and selective access may
only be allowed for those who fall within the limits of the forum.
E. Nonpublic Forums
1) Nonpublic forum is the residual category for government property
that is neither a traditional nor a designated public forum.
2) Nonpublic forums can be regulated by the use of reasonable
regulations that do not discriminate on the basis of viewpoint.
Since it is easier for the government to satisfy this standard than
it is to satisfy the standards that apply to traditional and
designated public forums, the government will try and classify
government property as a nonpublic forum whenever possible.
F. Government Speech
1) Designated public forums involve access by private speakers and
not just by the government itself.
2) If the only speech in a potential forum is speech by the
government itself, it is not a designated public forum.
3) Government property used by the government for its own speech
does not become a nonpublic forum.
4) The government as a speaker may, of course, express viewpoints,
and need not present a balanced treatment of alternative viewpoints.
5) First Amendment limitations that apply to nonforums do not apply
to the government's own speech which is not subject to First