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In the Constitutional law of the United States, a forum is a property that is open to public expression and assembly.
| | This article needs additional citations for verification .(November 2023) |
In the Constitutional law of the United States, a forum is a property that is open to public expression and assembly.
Forums are classified as public or nonpublic.
A public forum also called an open forum, is open to all expression that is protected under the First Amendment. Streets, parks, and sidewalks are considered open to public discourse by tradition and are designated as traditional public forums. The government creates a designated public forum when it intentionally opens a nontraditional forum for public discourse. Limited public forums, such as municipal meeting rooms, are nonpublic forums that have been specifically designated by the government as open to certain groups or topics. Traditional public forums cannot be changed to nonpublic forums by governments.
The use of public forums generally cannot be restricted based on the content of the speech expressed by the user. Use can be restricted based on content, however, if the restriction passes a strict scrutiny test for a traditional and designated forum or the reasonableness test for a limited forum. Also, public forums can be restricted as to the time, place and manner of speech. In the 1972 case Grayned v. City of Rockford , the Supreme Court found that "The nature of a place, the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable." In determining what is reasonable, the Court stated that "[the] crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Thus, protesters have the right to march in support of a cause, but not on a public beach during the middle of the day with bullhorns.[ dubious ][ citation needed ]
Types of Public Forums
Public forums being described in two types: traditional and designated. A traditional public forum is where speech/expression is supported by the first amendment and when the government's ability to regulate speech is reduced like a sidewalk or state park. Whereas a designated public forum is “for use by the public as a place for expressive activity”, like social media. An open forum made by the government can be barred from expression as long as there is not a retaliation or yearn to reduce certain speech. For example, when Donald Trump blocked a group of twitter users from his account on the platform, the court considered his tweets and comments section a public forum, so the commenters' first amendment rights in that setting are not allowed to be infringed. A public forum only applies to protecting political speech for instance. [1]
A nonpublic forum is not specially designated as open to public expression. For example, jails, public schools, and military bases are nonpublic forums (unless declared otherwise by the government). Such forums can be restricted based on the content (i.e., subject matter) of the speech, but not based on viewpoint. Thus, while the government could prohibit speeches related to abortion on a military base, it could not permit an anti-abortion speaker while denying an abortion rights speaker (or vice versa).
Regardless of the type of forum, any exclusion must be done on a viewpoint neutral basis. Exclusion based on the speaker's viewpoint is unconstitutional.
In several important cases, courts have decided that what appeared to be viewpoint-based censorship in a forum was actually the government's tailoring of its own speech, which need not be viewpoint neutral, and that no forum was in fact created. When a governmental entity, such as a public broadcaster, employs the speech of ordinary citizens to further its goals, the government speech doctrine blocks citizens' First Amendment claims that the government set up a forum for them, and unconstitutionally suppressed speech in it.
Prior to the legal development of substantive due process, state governments had the authority to regulate speech in public places without regard to the First Amendment. In the 1895 Massachusetts Supreme Judicial Court case Massachusetts v. Davis , Justice Oliver Wendell Holmes wrote that "For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house." The Supreme Court unanimously upheld Holmes' opinion in the 1897 appeal Davis v. Massachusetts .
However, in 1939, Justice Owen Josephus Roberts stated that "use of the streets and public places has, from ancient times, been a part of the privileges [...] of citizens." [2] And in 1965, Professor Harry Kalven described such places as a "public forum that the citizen can commandeer".[ This quote needs a citation ]
The 1988 decision in Hazelwood v. Kuhlmeier relied on the notion of a public forum in determining the degree to which a public school newspaper that has not been determined as such a forum can be protected by the First Amendment. The Court decided that such newspapers are subject to a lower level of First Amendment protection than independent student newspapers established (by policy or practice) as forums for student expression.
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), is a case of the United States Supreme Court that unanimously struck down St. Paul's Bias-Motivated Crime Ordinance and reversed the conviction of a teenager, referred to in court documents only as R.A.V., for burning a cross on the lawn of an African-American family since the ordinance was held to violate the First Amendment's protection of freedom of speech.
In the United States, freedom of speech and expression is strongly protected from government restrictions by the First Amendment to the U.S. Constitution, many state constitutions, and state and federal laws. Freedom of speech, also called free speech, means the free and public expression of opinions without censorship, interference and restraint by the government. The term "freedom of speech" embedded in the First Amendment encompasses the decision what to say as well as what not to say. The Supreme Court of the United States has recognized several categories of speech that are given lesser or no protection by the First Amendment and has recognized that governments may enact reasonable time, place, or manner restrictions on speech. The First Amendment's constitutional right of free speech, which is applicable to state and local governments under the incorporation doctrine, prevents only government restrictions on speech, not restrictions imposed by private individuals or businesses unless they are acting on behalf of the government. However, It can be restricted by time, place and manner in limited circumstances. Some laws may restrict the ability of private businesses and individuals from restricting the speech of others, such as employment laws that restrict employers' ability to prevent employees from disclosing their salary to coworkers or attempting to organize a labor union.
Rust v. Sullivan, 500 U.S. 173 (1991), was a case in the United States Supreme Court that upheld Department of Health and Human Services regulations prohibiting employees in federally funded family-planning facilities from counseling a patient on abortion. The department had removed all family planning programs that involving abortions. Physicians and clinics challenged this decision within the Supreme Court, arguing that the First Amendment was violated due to the implementation of this new policy. The Supreme Court, by a 5–4 verdict, allowed the regulation to go into effect, holding that the regulation was a reasonable interpretation of the Public Health Service Act, and that the First Amendment is not violated when the government merely chooses to "fund one activity to the exclusion of another."
Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review and strict scrutiny.
Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), was a case in which the United States Supreme Court held that a state could not limit pharmacists’ right to provide information about prescription drug prices. This was an important case in determining the application of the First Amendment to commercial speech.
Marsh v. Alabama, 326 U.S. 501 (1946), was a case decided by the US Supreme Court, which ruled that a state trespassing statute could not be used to prevent the distribution of religious materials on a town's sidewalk even though the sidewalk was part of a privately-owned company town. The Court based its ruling on the provisions of the First Amendment and Fourteenth Amendment.
Good News Club v. Milford Central School, 533 U.S. 98 (2001), was a decision of the U.S. Supreme Court that held that, when a government operates a "limited public forum", it may not discriminate against speech that takes place within that forum on the basis of the viewpoint which it expresses—in this case, against religious speech engaged in by an evangelical Christian club for children.
Cox v. New Hampshire, 312 U.S. 569 (1941), was a case in which the Supreme Court of the United States held that, although the government cannot regulate the contents of speech, it can place reasonable time, place, and manner restrictions on speech for the public safety. Here, the Court held that government may require organizers of any parade or procession on public streets to have a license and pay a fee.
Hill v. Colorado, 530 U.S. 703 (2000), was a United States Supreme Court decision. The Court ruled 6–3 that the First Amendment right to free speech was not violated by a Colorado law limiting protest, education, distribution of literature, or counseling within eight feet of a person entering a healthcare facility.
Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), is a decision of the Supreme Court of the United States concerning the constitutionality of funding restrictions imposed by the United States Congress. At issue were restrictions on the Legal Services Corporation (LSC), a private, nonprofit corporation established by Congress. The restrictions prohibited LSC attorneys from representing clients attempting to amend existing welfare law. The case was brought by Carmen Velazquez, whose LSC-funded attorneys sought to challenge existing welfare provisions since they believed that it was the only way to get Velazquez financial relief.
Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753 (1995), is a United States Supreme Court case that focused on First Amendment rights and the Establishment Clause. Vincent Pinette, an active member of the Ku Klux Klan in Columbus, Ohio, wanted to place an unattended cross on the lawn of the Capitol Square during the 1993 Christmas season. Pinette and his fellow members of the KKK submitted their request. The advisory board originally denied this request. However, Pinette and the other members of the Ohio Chapter of the Klan fought this decision in the United States District Court for the Southern District of Ohio. The court found in favor of the Klan and the advisory board issued the permit. The Board appealed to the United States Court of Appeals, which affirmed the decision of the district court. The board made one last petition to the Supreme Court where the decision was made, by a vote of seven to two, that the Klan was permitted to display the cross at the public forum.
Frisby v. Schultz, 487 U.S. 474 (1988), was a case in which the Supreme Court of the United States upheld the ordinance by the town of Brookfield, Wisconsin, preventing protest outside of a residential home. In a 6–3 decision, the Court ruled that the First Amendment rights to freedom of assembly and speech was not facially violated. The majority opinion, written by Justice Sandra Day O'Connor, concluded that the ordinance was constitutionally valid because it was narrowly tailored to meet a "substantial and justifiable" interest in the state; left open "ample alternative channels of communication"; and was content-neutral.
In the United States, some categories of speech are not protected by the First Amendment. According to the Supreme Court of the United States, the U.S. Constitution protects free speech while allowing limitations on certain categories of speech.
Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994), is a United States Supreme Court case where Petitioners challenged the constitutionality of an injunction entered by a Florida state court which prohibits antiabortion protesters from demonstrating in certain places, and in various ways outside of a health clinic that performs abortions.
McCullen v. Coakley, 573 U.S. 464 (2014), is a United States Supreme Court case involving a First Amendment challenge to the validity of a Massachusetts law establishing 35-foot (11 m) fixed buffer zones around facilities where abortions were performed.
Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988), was a landmark decision by the Supreme Court of the United States that held that public school curricular student newspapers that have not been established as forums for student expression are subject to a lower level of First Amendment protection than independent student expression or newspapers established as forums for student expression.
Anderson v. City of Hermosa Beach, 621 F. 3d 1051 (2010), was a decision by the U.S. Court of Appeals for the Ninth Circuit, which ruled that tattoos, the process of tattooing, and the business of tattooing are pure expressive activities that are fully protected by the First Amendment's free speech clause. The court determined that the process of tattooing constitutes pure expressive activity rather than conduct that is sufficiently imbued with elements of communication. As pure expressive activity, the process of tattooing can only be regulated by a proper time, place, and manner restriction. The court found in Anderson v. The City of Hermosa Beach that the Hermosa Beach Municipal Code banning tattoo parlors within the city was not a reasonable time, place, and manner restriction because the regulation was not narrowly tailored to meet the government's interest and the regulation did not leave open ample alternative avenues for the same messages to be conveyed.
Hate speech in the United States cannot be directly regulated by the government due to the fundamental right to freedom of speech protected by the Constitution. While "hate speech" is not a legal term in the United States, the U.S. Supreme Court has repeatedly ruled that most of what would qualify as hate speech in other western countries is legally protected speech under the First Amendment. In a Supreme Court case on the issue, Matal v. Tam (2017), the justices unanimously reaffirmed that there is effectively no "hate speech" exception to the free speech rights protected by the First Amendment and that the U.S. government may not discriminate against speech on the basis of the speaker's viewpoint.
Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983), was a United States Supreme Court decision concerning free speech rights on government-owned property. The Court ruled that teacher mailboxes and the use of a school mail delivery system are a nonpublic forum, and upheld a policy that allowed the union representing the teachers, but not other employee organizations, to use the district's mail system.