Free Speech Part 2: Forum Analysis

What is forum analysis?

It determines how much the government may regulate speech on government property based on the type and use of the property.

What are the four types of forums?

Traditional public forums, designated public forums, limited public forums, and nonpublic forums.

What is a traditional public forum?

Government property historically open to speech, such as parks, sidewalks, and town squares.

What is a designated public forum?

Government property that is not traditionally open to speech but that the government intentionally opens for broad expressive use.

What rules apply to a designated public forum?

The same rules that apply to a traditional public forum while it remains open for that use.

What scrutiny applies to a content-based restriction in a traditional or designated public forum?

Strict scrutiny.

What must the government show under strict scrutiny?

The restriction must be narrowly tailored to achieve a compelling government interest.

What is a time, place, and manner regulation?

A rule governing when, where, or how speech occurs without regulating its content.

When is a content-neutral time, place, and manner restriction valid in a public forum?

When it serves an important government interest, is narrowly tailored, and leaves open adequate alternative channels of communication.

Does narrowly tailored in the time, place, and manner test require the least restrictive means?

No. It requires a good fit between the rule and the government’s interest.

What are adequate alternative channels of communication?

Other effective ways for speakers to reach their intended audience.

What is a nonpublic forum?

Government property not traditionally open to public expression, such as a government workplace or military base.

What test applies to speech restrictions in a nonpublic forum?

The restriction must be reasonable in light of the forum’s purpose and viewpoint-neutral.

What is a limited public forum?

Government property opened for a limited range of speakers, subjects, or expressive activities.

What test applies to restrictions in a limited public forum?

They must be reasonable in light of the forum’s purpose and viewpoint-neutral.

Can the government limit speech by subject in a limited public forum?

Yes, if the subject limit defines the forum’s permitted purpose and is viewpoint-neutral.

Can the government allow only one side of a debate in a limited public forum?

No. That is viewpoint discrimination.

What is the difference between content discrimination and viewpoint discrimination?

Content discrimination distinguishes between subjects; viewpoint discrimination distinguishes between opinions on a subject.

How do you distinguish a designated public forum from a limited public forum?

Look at the government’s intent: broad expressive use suggests a designated forum; use confined to specified purposes suggests a limited forum.

Are public K–12 schools traditional public forums during classes?

Generally, no. Schools may regulate student speech to maintain their educational function, subject to the applicable student-speech rules.

Does the press receive greater First Amendment speech protection simply because it is the press?

No. The press generally has the same First Amendment speech protection as other speakers.