Traditional public forums include public parks, sidewalks, and areas that have traditionally been open to political discourse and debate. Speakers in these areas enjoy the strongest protections of the First Amendment. In traditional public forums, the government cannot discriminate against speakers based on the speakers' opinions. Doing so is called viewpoint discrimination, which is prohibited under the First Amendment.
However, the government may subject expression to reasonable and content-neutral restrictions as to its time, place and manner. When considering government restrictions on freedom of expression in traditional public forums, courts resort to strict scrutiny. When the government restricts freedom of expression in a traditional public forum, strict scrutiny dictates that restrictions are only allowed if they serve an overriding state interest and are strictly tailored to the needs of that interest. The public forum doctrine is an analytical tool used in First Amendment case law to determine the constitutionality of restrictions on freedom of expression applied to government assets.
Courts use this doctrine to decide if groups should have access to participate in expressive activities on such property. In our last blog post in this series, we analyzed the “forum analysis” framework that courts use when evaluating restrictions on freedom of expression on government property. In this post, we will analyze the factors that courts evaluate when deciding whether a particular area of government ownership is a traditional public forum, a designated public forum, a limited public forum, or a private forum. The second criterion that led the court to issue its ruling was that the account be used to interact with the public.
However, as long as the government keeps the forum open, expression in the forum receives the same First Amendment protections as expression in traditional public forums. This led both a New York federal court and the appellate court to conclude that the Twitter account had become a designated public forum. However, at least one federal district court in the Sixth Circuit has established a distinction between live streaming and mere video recording, arguing that live streaming on social media could constitute expressive conduct under the First Amendment and, therefore, restrictions on live streaming could be subject to forum analysis, as well as other forms of “expression.” It's common for First Amendment auditors to assert that they have the First Amendment right to film in a government building because it's open to the public (or, in some cases, simply because it's government property).If public expression is incompatible or is likely to substantially disrupt the intended function of an area, a court is more likely to classify that area as a non-public forum. The use of forum analysis seems appropriate in a case where a person attempts to film in a publicly accessible area.
The way in which a local government unit enforces a policy in practice can undermine the stated intention of the policy for the purposes of the First Amendment forum. You may notice that the designated public forum and limited public forum categories described above sound quite similar. The First Amendment's level of protection with respect to the right to speak and assemble varies depending on the speaker's forum or the place where he is speaking. Some local governments may not have any policies regarding public expression on government property. In analyzing school practices as a whole, the Third Circuit held that, in practice, the school had created a designated public forum, despite its stated intentions and policies.
As explained in section IV of the bulletin, several courts have determined that publicly accessible areas of government building lobbies are non-public forums. The government is not required to create such a forum or to keep it open, but as long as such a forum is open, the government is subject to the same limitations that apply in a traditional public forum.
