Also known as: public forum doctrines · public-forum doctrine · public forum
Written by attorneys — see sources below.
A First Amendment framework that classifies government property by the degree of speech protection afforded, treating traditional public forums such as streets and parks as sites where content-based restrictions trigger strict scrutiny.
Paul Peterson stands on a public sidewalk within the restricted zone holding a sign condemning a foreign government's policies. Officers arrest him under a local ordinance that prohibits only such critical messages. The court invalidates the ordinance because the restriction singles out political content in a traditional public forum and fails strict scrutiny.
Pearl Porter erects a cross on the capitol square during the holiday season after the state board denies her permit. The board had allowed other private holiday displays. The court holds that the square is a traditional public forum and that viewpoint discrimination against religious speech violates the First Amendment.
Capitol Square is a 10-acre, state-owned plaza surrounding the statehouse in Columbus, Ohio. For over a century the square has been used for public speeches, gatherings, and festivals advocating and celebrating a variety of causes, both secular and religious. Ohio Admin. Code Ann. § 128-4-02(A) (1994) makes the square available for use by the public for free discussion of public questions or for activities of a broad public purpose, and Ohio Rev. Code Ann. § 105.41 (1994) gives the Capitol Square Review and Advisory Board responsibility for regulating public access. To use the square, a group must simply fill out an official application form and meet several criteria, which concern primarily safety, sanitation, and noninterference with other uses of the square, and which are neutral as to the speech content of the proposed event. In November 1993, after authorizing a state Christmas tree and granting a rabbi's application for a menorah, the Board received an application from respondent Donnie Carr of the Ohio Ku Klux Klan to place a cross on the square from December 8 to December 24, 1993. The Board denied that application on December 3, informing the Klan by letter that the decision to deny was made upon the advice of counsel in a good faith attempt to comply with the Ohio and United States Constitutions. Two weeks later, the Ohio Klan, through its leader Vincent Pinette, filed suit in the United States District Court for the Southern District of Ohio seeking an injunction requiring the Board to issue the requested permit. The District Court determined that Capitol Square was a traditional public forum open to all without any policy against freestanding displays, that the Klan's cross was entirely private expression entitled to full First Amendment protection, and that the Board had failed to show that the display of the cross could reasonably be construed as endorsement of Christianity by the State. The District Court issued the injunction, after which the Board permitted the Klan to erect its cross, and later entered summary judgment in the Klan's favor. On appeal by the Board, the United States Court of Appeals for the Sixth Circuit affirmed the District Court's judgment. The Supreme Court granted certiorari to consider whether the State’s denial of the Klan’s application to display its cross on Capitol Square was a denial of equal access in violation of the First Amendment and whether the State’s asserted justification for the denial—that it had a compelling interest in avoiding an appearance of endorsement of religion under the Establishment Clause—could be sustained.
View casePortia Price and fellow protesters picket on a public sidewalk outside a funeral with signs addressing matters of public concern. The family sues for intentional infliction of emotional distress. The court protects the speech because the location is a traditional public forum and the expression addresses issues of public importance.
Marine Lance Corporal Matthew Snyder was killed in action in Iraq. His father, Albert Snyder, arranged for the funeral to be held in Westminster, Maryland. Members of the Westboro Baptist Church, an unincorporated association founded by Fred Phelps, learned of the funeral through local newspapers and decided to picket it to communicate their belief that God punishes the United States for its tolerance of homosexuality. On the day of the funeral, Westboro members displayed placards on public land approximately 1,000 feet from the church where the service was held. The signs included messages such as "God Hates the USA," "Thank God for Dead Soldiers," "Pope in Hell," "Priests Rape Boys," "You’re Going to Hell," and "God Hates Fags." The picketing took place for about 30 minutes before the funeral began. The funeral procession passed within 200 to 300 feet of the picketers. Church members also posted an online "epic" that discussed Matthew Snyder’s funeral and criticized his parents. Albert Snyder filed a diversity action in the United States District Court for the District of Maryland against Fred Phelps, his daughters, and the Westboro Baptist Church. The suit alleged claims for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. A jury found for Snyder and awarded $2.9 million in compensatory damages and $8 million in punitive damages. The district court reduced the punitive damages award to $2.1 million but left the verdict otherwise intact. The Fourth Circuit reversed the judgment, holding that Westboro’s statements were protected by the First Amendment. The Supreme Court granted certiorari to review whether the First Amendment shields the church members from tort liability for their picketing speech.
View casePerry Pratt seeks a permit to erect a holiday display on the county courthouse lawn. Officials deny the permit while allowing comparable secular displays by others. The court treats the lawn as a traditional public forum and invalidates the denial as impermissible viewpoint discrimination.
In December 1986 Allegheny County permitted the Holy Name Society to place a creche on the Grand Staircase of the county courthouse. The display ran from November 26 through January 9. It consisted of the Nativity figures inside a wooden manger topped by an angel holding a banner that read "Gloria in Excelsis Deo!" The creche was framed by a wooden fence, red and white poinsettias, and two small evergreen trees. A plaque stated that the display was donated by the Holy Name Society. The county used the creche as the backdrop for its annual Christmas-carol program. High-school choirs performed during weekday lunch hours. At the same time the city of Pittsburgh erected a 45-foot Christmas tree under the middle arch of the Grant Street entrance to the City-County Building. On December 22 the city placed an 18-foot Chanukah menorah of tree-and-branch design next to the tree. The tree stood beneath a sign bearing the mayor's name and the words "Salute to Liberty." The menorah was owned by Chabad. City employees stored, erected, and removed it each year. The display remained until January 13. On December 10, 1986 the Greater Pittsburgh Chapter of the American Civil Liberties Union and seven local residents filed suit in federal district court. They sought a permanent injunction against both displays. Chabad was permitted to intervene as a defendant to defend the menorah. The district court denied the injunction on May 8, 1987. A divided panel of the Court of Appeals for the Third Circuit reversed. It held that each display had the impermissible effect of endorsing religion. Rehearing en banc was denied by a 6-to-5 vote. The county, the city, and Chabad each petitioned for certiorari. The Supreme Court granted all three petitions.
View casePierre Poulin's Christian student newspaper seeks university reimbursement for printing costs under a program that funds other student journals. Administrators deny the request because of the publication's religious viewpoint. The court treats the funding program as a designated public forum and strikes down the exclusion as impermissible content discrimination.
The University of Virginia, an instrumentality of the Commonwealth of Virginia, maintains a Student Activities Fund financed by a mandatory $14 per semester fee assessed to each full-time student. The fund supports extracurricular student activities related to the University's educational purpose through payments to third-party contractors for approved groups that qualify as Contracted Independent Organizations. To obtain CIO status, a student group must be composed primarily of University students, file its constitution, pledge nondiscrimination, and agree to a disclaimer stating that it is independent of the University. CIO publications are eligible for printing-cost reimbursement if their content is related to the University's educational purpose, but the Guidelines expressly exclude funding for any activity that primarily promotes or manifests a particular belief in or about a deity or an ultimate reality. In 1990, University of Virginia undergraduates formed Wide Awake Productions as a CIO and began publishing Wide Awake: A Christian Perspective at the University of Virginia. The first issue contained articles on racism, crisis pregnancy, prayer, C. S. Lewis, and reviews of religious music, each marked by a cross; subsequent issues addressed homosexuality, missionary work, eating disorders, and Christian theology, with advertisements from churches and Christian bookstores. In 1991, Wide Awake Productions requested $5,862 from the Student Activities Fund to cover printing costs for one issue. The Appropriations Committee of the Student Council denied the request on the ground that the publication constituted a religious activity under the Guidelines. Wide Awake Productions appealed the denial through the Student Council and the Student Activities Committee, which upheld the decision. The group and three of its student editors and members then filed suit in the United States District Court for the Western District of Virginia under 42 U.S.C. § 1983, alleging that the refusal to pay printing costs violated their rights under the First Amendment Speech, Press, and Free Exercise Clauses and the Equal Protection Clause. On cross-motions for summary judgment, the District Court ruled for the University. The United States Court of Appeals for the Fourth Circuit affirmed, and the Supreme Court granted certiorari.
View casePavel Petrov applies to register a trademark containing a disparaging term for his band. The patent office rejects the application on dignity grounds. The court holds that the denial constitutes viewpoint discrimination against private speech and cannot be justified under the public forum or government-speech doctrines.
Simon Tam serves as the lead singer of the rock group The Slants, whose members are Asian-Americans. He chose the name in an effort to reclaim the term and drain its denigrating force as a derogatory reference to Asian persons. The group has incorporated childhood slurs into its lyrics and titled albums including The Yellow Album and Slanted Eyes, Slanted Hearts. Tam filed an application with the Patent and Trademark Office seeking registration of THE SLANTS as a trademark. The PTO examining attorney rejected the application after applying a two-part analysis and concluding that a substantial composite of persons of Asian descent would find the mark offensive. The attorney cited dictionary definitions labeling the term as derogatory and evidence that the band's name had prompted cancellation of a performance along with negative comments from online readers. Tam appealed the denial first to the examining attorney and then to the Trademark Trial and Appeal Board, which upheld the refusal. Tam then brought the case before the Federal Circuit. Sitting en banc, that court reversed the Board. The Government petitioned for certiorari, and the Supreme Court granted review.
View caseStrict scrutiny applies. The government must show that the restriction is narrowly tailored to serve a compelling interest. Primary authorities illustrate that selective bans on political signs or picketing fail this test when they target particular messages.
Traditional public forums are streets and parks that have historically been open for speech. Designated public forums arise when the government intentionally opens property for expressive activity by certain groups. Both receive heightened protection against content discrimination.
Yes, provided the restrictions are content neutral, narrowly tailored to a significant government interest, and leave open ample alternative channels. A ban on focused residential picketing satisfies these criteria when it protects home privacy without regard to message.
The university creates a designated public forum and may not exclude groups based on the religious content of their speech. Such exclusion constitutes impermissible content discrimination under the First Amendment.
…e. g. , Marks v. United States , 430 U. S. 188, 198 (1977) (Stevens, J., concurring in part and dissenting in part), and "public forum," see, e. g. , United States Postal Service v. Council of Greenburgh Civic Assns. , 453 U. S. 114, 126-131 (1981); id. , at 136-140 (Brennan, J., concurring in judgment); id. , at…