bballbb02 wrote:Are grounds of government buildings/courthouses public forums?? And what about classrooms and the sides of city buses and buildings?? Confusing
Sidewalks and streets in front of public buildings/sidewalks and streets in general are traditional public forums. The actual grounds of a government building are not (e.g., the steps of a courthouse).
Classrooms are not public forums unless they are "thrown open" by the government (usually this is done by allowing extracurricular groups to meet in them after school hours).
Not sure about sides of a city-owned bus but pretty sure they aren't public forums since that's likely either 1) advertising and/or 2) government speech.
Examinees ask me this every exam and here is my default response:
Restrictions on speech may be content-based or content-neutral. Labeling a regulation of speech as either content-based, or conduct-based (content-neutral) is a necessary first step. A law is content-based if the government targets the impact of the communication of the speech. This is identified in two ways: viewpoint restrictions, which limit speech based upon an opinion it espouses, or subject-matter restrictions, which limit speech based upon its topic. Both of these are impermissible under the First Amendment, as freedom of expression is at the very core of the Amendment. Thus, content-based regulations of speech are presumptively unconstitutional and content-based restrictions are subject to strict scrutiny (the state must show that the measure is necessary and narrowly tailored to achieve a compelling state interest). Content-neutral regulations, however, are generally subject to an intermediate level of scrutiny in determining their constitutionality (the law must be narrowly drawn to further a substantial government interest).
Time, place, and manner restrictions on speech are content-neutral rather than content-based and are therefore not subject to the same heightened level of scrutiny as are content-based restrictions. The level of scrutiny to be applied depends entirely on the forum in which the regulation attempts to limit speech. For example, if a forum is a public forum (government property that traditionally has been open to expressive activity), it is subject to strict scrutiny for speech regulation. A designated public forum is government owned property that the government has opened up to speech (e.g. school facilities are non-public forums in the evenings and on the weekends, but can open the place as a limited public forum on particular nights to host community debates). The state need not continue to make the forum available but if it does it cannot discriminate on basis of content. In such cases, time, place and manner regulations must be narrowly tailored and substantially related to an important government interest and leave open ample alternative channels of communication. For example, schools that open their facilities to speech may not prohibit religious speech. In a non-public forum, the government only needs to show that the regulation is rationally related to serve the interest. Thus, if the forum is nonpublic, a regulation based upon the content of speech is permissible as long as the regulation is reasonable in light of the purpose of the forum (e.g. a prohibition on antiwar protests during a military open house because of the excessive need for security to protect the protesters).
According to the First Amendment Center: “One must be careful in discussing the public-forum doctrine, because courts do not apply the doctrine with consistency. For example, some courts equate a limited public forum with a designated public forum. Other courts distinguish between the two, as a 2001 federal district court in Pennsylvania did in Zapach v. Dismuke. That court noted that “there is some uncertainty whether limited public fora are a subset of designated public fora or a type of nonpublic fora.” See http://www.firstamendmentcenter.org/spe ... c-meetings
However, it doesn’t matter what anyone else says – it only matters what NCBE says. In searching the OPE 1-4 questions from 2006-2013 (the most up to date and relevant MBE questions with answer explanations from NCBE), there are 2 questions dealing with public forums, but both are based on viewpoint-based restrictions. The first question is 2006-NCBE-OPE1 QUESTION 060. It discusses limited public forums and states that the test is strict scrutiny which requires proving that the denial was necessary to serve a compelling governmental interest. The second question is 2008-NCBE-OPE2 QUESTION 003. It discusses designated public forums and states that the test is strict scrutiny which requires proving that the denial was necessary to serve a compelling governmental interest. Accordingly, for content-based government restrictions, NCBE regards limited and designated public forums as the same. The First Amendment Center likewise says: “The government may not impose viewpoint-based restrictions on expression in a limited public forum unless those restrictions serve a compelling state interest and are narrowly drawn to achieve that end.” As such, if a forum is created for a limited purpose for use by certain groups (e.g., student groups) or for the discussion of certain subjects (e.g., school board business) a content-based prohibition must be narrowly drawn to effectuate a compelling state interest and content-based government restrictions on speech in a designated/limited public forum are subject to the same strict scrutiny as restrictions in a traditional public forum.
Looking back at older NCBE questions, there is one viewpoint neutral limited public forum question and that is 1992-NCBE-MBEX QUESTION 125. This question states that the government may regulate speech in public and limited public forums with reasonable time/place/manner restrictions that are (i) content-neutral, (ii) narrowly tailored to serve an important/significant government interest, and leave open alternative channels of communication. This corresponds with my outline. Accordingly, I suggest you rely on my outline (which corresponds with NCBE) unless BARBRI can provide you with further clarification.
The inside of a bus is a non-public forum so the govt can regulate such speech as long as there’s no viewpoint discrimination (must pass rational basis test). In Lehman, a city policy allowed commercial advertising in the interior of city buses, but not more explicitly political or generally controversial ads. The plurality opinion in Lehman justified the ban on political advertising inside buses on the ground that the inside of a bus is a non-public forum (because the bus riders were a captive audience) and the regulation was content selective, so all the govt had to do was show they had acted reasonably.
The outside of a bus is a designated public forum (so strict scrutiny applies). Some courts have recently held that the outside of a bus is a limited public forum, but unless NCBE says otherwise, you should regard the outside of a bus as a designated public forum:http://lawprofessors.typepad.com/conlaw ... o-bus.html
If courts can’t even agree what forum is applicable to a situation, how can bar examinees determine what forum applies to a certain situation. Thus, focus on the past tested rules and apply them the same way and nothing more. Otherwise, you will simply be going down a rabbit hole.