First Amendment: Limited Public Forum requirements? Forum

[ScurryRay]

So, for context, I passed the NY bar with Barbri and am now taking the VA bar with Themis. I feel like there is a point of difference on substantive law between the two companies.

In my Barbri notes, I had that a restrictions on speech in a Limited Public forum must be: (1) viewpoint neutral, (2) reasonably related to, (3) a legitimate government interest (the same as restrictions for a Non-Public Forum).

However, Themis is telling me that a Limited Public Forum is treated the same as a Public/Designated Forum and restrictions must be: (1) content neutral, (2) narrowly tailored, (3) serving a significant government interest, and (4) leaving open alternative channels.

QUESTION: Is a LIMITED PUBLIC FORUM treated like a Non-Public Forum or a Public Forum? I feel like Barbri is correct.

[Nightcrawler]

If I remember correctly, it's treated like a public forum when opened to the public and treated like a non-public forum when closed to the public. Not 100% sure about it though as I'm not there with my review yet.

[albanach]

I thought the problem is that there are two types of limited public forum based on content type and perople permitted access. So, if you have a stage for theater that only permits musicals, or notice boards in a school that only student groups are permitted to use.

I think Widmar v. Vincent went with the narrowly drawn to meet a compelling governmental interest standard once it had determined the group were similarly situated to others permitted to access the forum. Perry stated that the government wasn't required to maintain the status of the limited forum, but while it did so it was bound to the same standards as a public forum.

It might be that the courts have looked at the limited forum differently, based on whether it's limited by the type of permitted content (the theater) or the people permitted to use it (the school)? I think that's what happened in Rosenberger v. UVA.

[JoeSeperac]

So, for context, I passed the NY bar with Barbri and am now taking the VA bar with Themis. I feel like there is a point of difference on substantive law between the two companies.

In my Barbri notes, I had that a restrictions on speech in a Limited Public forum must be: (1) viewpoint neutral, (2) reasonably related to, (3) a legitimate government interest (the same as restrictions for a Non-Public Forum).

However, Themis is telling me that a Limited Public Forum is treated the same as a Public/Designated Forum and restrictions must be: (1) content neutral, (2) narrowly tailored, (3) serving a significant government interest, and (4) leaving open alternative channels.

QUESTION: Is a LIMITED PUBLIC FORUM treated like a Non-Public Forum or a Public Forum? I feel like Barbri is correct.

This gets brought up every exam. My response is here:
http://www.top-law-schools.com/forums/v ... #p10088686

[estefanchanning]

So, for context, I passed the NY bar with Barbri and am now taking the VA bar with Themis. I feel like there is a point of difference on substantive law between the two companies.

In my Barbri notes, I had that a restrictions on speech in a Limited Public forum must be: (1) viewpoint neutral, (2) reasonably related to, (3) a legitimate government interest (the same as restrictions for a Non-Public Forum).

However, Themis is telling me that a Limited Public Forum is treated the same as a Public/Designated Forum and restrictions must be: (1) content neutral, (2) narrowly tailored, (3) serving a significant government interest, and (4) leaving open alternative channels.

QUESTION: Is a LIMITED PUBLIC FORUM treated like a Non-Public Forum or a Public Forum? I feel like Barbri is correct.

This gets brought up every exam. My response is here:
http://www.top-law-schools.com/forums/v ... #p10088686

Thanks, that was helpful. It's frustrating though. Chemerinsky's barbri lecture clearly states that limited public/non-public forums gets the reasonable test, while designated public forums and public forums get SS. So while Chemerinsky may be teaching us the 'law,' he's not exactly prepping us for the bar.

[Nightcrawler]

So, for context, I passed the NY bar with Barbri and am now taking the VA bar with Themis. I feel like there is a point of difference on substantive law between the two companies.

In my Barbri notes, I had that a restrictions on speech in a Limited Public forum must be: (1) viewpoint neutral, (2) reasonably related to, (3) a legitimate government interest (the same as restrictions for a Non-Public Forum).

However, Themis is telling me that a Limited Public Forum is treated the same as a Public/Designated Forum and restrictions must be: (1) content neutral, (2) narrowly tailored, (3) serving a significant government interest, and (4) leaving open alternative channels.

QUESTION: Is a LIMITED PUBLIC FORUM treated like a Non-Public Forum or a Public Forum? I feel like Barbri is correct.

This gets brought up every exam. My response is here:
http://www.top-law-schools.com/forums/v ... #p10088686

Thanks, that was helpful. It's frustrating though. Chemerinsky's barbri lecture clearly states that limited public/non-public forums gets the reasonable test, while designated public forums and public forums get SS. So while Chemerinsky may be teaching us the 'law,' he's not exactly prepping us for the bar.

That's because Barbri, in the need to justify their tuition, hires popular and well paid professors to teach their lectures. The problem is that those professors sat for the bar exam decades ago and have been teaching law in law schools until now. They have no idea how to prepare students for the Bar exam, unfortunately. And apparently, Barbri didn't bother telling them. They are useful to understand some law, but it's not efficient at all for Bar candidates. Stay away from big-box bar prep courses. They are just a rip-off.

[ScurryRay]

So, for context, I passed the NY bar with Barbri and am now taking the VA bar with Themis. I feel like there is a point of difference on substantive law between the two companies.

In my Barbri notes, I had that a restrictions on speech in a Limited Public forum must be: (1) viewpoint neutral, (2) reasonably related to, (3) a legitimate government interest (the same as restrictions for a Non-Public Forum).

However, Themis is telling me that a Limited Public Forum is treated the same as a Public/Designated Forum and restrictions must be: (1) content neutral, (2) narrowly tailored, (3) serving a significant government interest, and (4) leaving open alternative channels.

QUESTION: Is a LIMITED PUBLIC FORUM treated like a Non-Public Forum or a Public Forum? I feel like Barbri is correct.

This gets brought up every exam. My response is here:
http://www.top-law-schools.com/forums/v ... #p10088686

Joe - Thanks a million for the detailed answer. I am glad I am not alone in my confusion. I read your answer, though, and am not sure I follow entirely. Below are the relevant parts. My question is this - In your analysis of the NCBE answers, it sounds like you are saying (RED TEXT) that NCBE treats designated and limited public forums as both receiving strict scrutiny, correct? But in the first paragraph (BLUE TEXT), it sounds like designated public forums get a different test - narrowly tailored, substantially related, alternatives open. Am I reading that wrong? If not, it sounds like NCBE applies strict scrutiny to everything but a non-public forum then. Is that the takeaway?

"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."

[estefanchanning]

So, for context, I passed the NY bar with Barbri and am now taking the VA bar with Themis. I feel like there is a point of difference on substantive law between the two companies.

In my Barbri notes, I had that a restrictions on speech in a Limited Public forum must be: (1) viewpoint neutral, (2) reasonably related to, (3) a legitimate government interest (the same as restrictions for a Non-Public Forum).

However, Themis is telling me that a Limited Public Forum is treated the same as a Public/Designated Forum and restrictions must be: (1) content neutral, (2) narrowly tailored, (3) serving a significant government interest, and (4) leaving open alternative channels.

QUESTION: Is a LIMITED PUBLIC FORUM treated like a Non-Public Forum or a Public Forum? I feel like Barbri is correct.

This gets brought up every exam. My response is here:
http://www.top-law-schools.com/forums/v ... #p10088686

Joe - Thanks a million for the detailed answer. I am glad I am not alone in my confusion. I read your answer, though, and am not sure I follow entirely. Below are the relevant parts. My question is this - In your analysis of the NCBE answers, it sounds like you are saying (RED TEXT) that NCBE treats designated and limited public forums as both receiving strict scrutiny, correct? But in the first paragraph (BLUE TEXT), it sounds like designated public forums get a different test - narrowly tailored, substantially related, alternatives open. Am I reading that wrong? If not, it sounds like NCBE applies strict scrutiny to everything but a non-public forum then. Is that the takeaway?

"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."

I think he's saying:

Blue part = the leading distinction that some courts make
Red part = what the bar says. follow this.

[ScurryRay]

That makes sense. Thanks.

[JoeSeperac]

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.

The above is a TPM restriction which uses the intermediate scrutiny test because it is content neutral.

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.

The above is a content based/viewpoint based restriction that warrants SS.

Quick blurb from the internet:
Although content-based restrictions on speech in the public forum are subject to strict judicial scrutiny (usually a requirement that the restriction serve a compelling state interest and that there is no way of serving the interest that is less speech-restrictive), content-neutral restrictions on speech are subject to only intermediate scrutiny. In general, the government must show that the law serves an important objective (not involving the suppression of speech), that the law is narrowly tailored, and that there remain ample alternative means of communication.

[ScurryRay]

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.

The above is a TPM restriction which uses the intermediate scrutiny test because it is content neutral.

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.

The above is a content based/viewpoint based restriction that warrants SS.

Quick blurb from the internet:
Although content-based restrictions on speech in the public forum are subject to strict judicial scrutiny (usually a requirement that the restriction serve a compelling state interest and that there is no way of serving the interest that is less speech-restrictive), content-neutral restrictions on speech are subject to only intermediate scrutiny. In general, the government must show that the law serves an important objective (not involving the suppression of speech), that the law is narrowly tailored, and that there remain ample alternative means of communication.

Thanks, Joe