February 1, 2023.
checklist for determining the classification of and constitutional standards of review for traditional, designated, limited, and non-public forums for free speech purposes under the First Amendment.
Practical Law Government Practice
Determine the Forum
Gather information and context on the property at issue to determine whether the forum is:
- An open public forum where content-based limitations on speech are almost always unconstitutional. Open public forums include:
- traditional public forums; and
- designated public forums.
- A limited public forum or non-public forum where reasonable content-based limitations on speech are generally constitutional.
(For more on the public forum analysis, see Free Speech Limitations on Government Regulation: Overview on Practical Law.)
Identify Traditional Public Forums
Traditional public forums are those portions of public property traditionally open for public:
- Assembly and expression.
Certain types of public property are almost always deemed traditional public forums, including:
- Town squares.
Identify Designated Public Forums
Designated public forums are those portions of government property:
- Intentionally opened by the government for open public expressive activity and discourse.
- Not otherwise traditionally open for expressive conduct. Once the property is designated as a public forum, it is treated identically to a traditional public forum. However, the government is not required to indefinitely retain the open character of the forum.
Examples of designated public forums include:
- Free speech zones that provide protestors a place to assemble on government property that is not otherwise open for expressive conduct.
- Lampposts on which the public is allowed to place signs.
Identify Limited Public Forums
Limited public forums are a subclassification of designated public forums that the government specifically opens for:
- Use by only certain groups.
- The discussion of only certain subjects or genres. The government may impose blanket restrictions on the discussion of other genres that are outside the scope of the limited public forum’s purpose. However, if the government’s custom or actual practice allows indiscriminate use of or unfettered access to a forum that was previously opened as a limited public forum, courts are unlikely to uphold the original limitations of the forum.
- A specific manner of communication.
Examples of limited public forums have included:
- University meeting rooms opened for student groups.
- School board meetings.
- Subway platforms opened for charitable solicitations.
- Public libraries.
Identify Non-Public Forums
Non-public forums are government properties not traditionally used or designated for use as a forum for expressive activity. In non-public forums, the government typically either:
- Limits all private speech.
- Selectively allows certain speech for proprietary purposes, such as generating revenue.
Examples of non-public forums include:
- Military bases.
- Proprietary moneymaking ventures, such as golf courses and racetracks.
- Police and fire stations.
- Public schools.
- Polling stations.
- Courthouse lobbies and hallways.
- Hospitals and nursing homes.
- Municipal websites.
- The interior of government office buildings.
Determine the Applicable Standard of Review
Understand that the standard of review differs based on the type of forum.
Apply the Standard of Review for Traditional and Designated Public Forums
In traditional and designated public forums, governmental limitations on speech receive strict scrutiny review unless they are content-neutral time, place, or manner restrictions. This means that:
- Content-based restrictions are presumed unconstitutional unless the government can prove that the policy is necessary to serve a compelling state interest and narrowly tailored to achieve that end (strict scrutiny). A regulation is not narrowly tailored if a less restrictive alternative serves the government’s purpose.
- Content-neutral restrictions on speech are reviewed under intermediate scrutiny, which is easier to satisfy than strict scrutiny. Reasonable, content-neutral time, place, or manner regulations are permissible in traditional and designated public forums.
Apply the Standard of Review for Limited Public Forums and Non-Public Forums
Governmental regulations of speech in limited public forums and non-public forums:
- Must be reasonable in light of the purpose of the forum.
- Must be viewpoint neutral.
- Must not selectively deny access for speech in the genre or subject specifically allowed in a limited public forum. The regulations otherwise do not have to be content neutral.
- Should convey a clear intent that the government is only opening the property as a limited public forum or non-public forum.
- Should employ selective access policies on an individual, non-ministerial basis.
- May allow for the closure of the forum at any time.