Strict scrutiny in the middle forum

Harvard Law Review

Volumn 122, Issue 8, 2009, Pages 2140-2161

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EID: 67650485797     PISSN: 0017811X     EISSN: None     Source Type: Journal    
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References (154)

1. Steven G. Gey, Reopening the Public Forum - From Sidewalks to Cyberspace, 58 OHIO ST. LJ. 1535, 1535 (1998) (emphasis added).
2. Though he proposes a fairly fundamental modification to public forum doctrine, Professor Robert Post provides a good summary of the basic concept: The object of public forum doctrine... is the constitutional clarification and regulation of government authority over particular resources. Public forum cases require courts to decide whether a resource is subject to a kind of authority 'like' that... involved in the governance of the general public... or ... 'like' that characterized by the government's control over the internal management of its own institutions....
3. Robert C. Post, Between Governance and Management: The History and Theory of the Public Forum, 34 UCLA L. REV. 1713, 1782 (1987).
4. A full-scale defense of forum analysis is outside the scope of this Note. For more extensive discussions, see, for example, Lillian R. BeVier, Rehabilitating Public Forum Doctrine: In Defense of Categories, 1992 SUP. CT. REV. 79;
5. and Gary C. Leedes, Pigeonholes in the Public Forum, 20 U. RICH. L. REV. 499 (1986).
6. See, e.g., Commonwealth v. Davis, 3g N.E. 113 (Mass. 1895), affd, 167 U.S. 43 (1897).
7. This tendency can be seen particularly well in early free speech cases, such as Dennis v. United States, 341 U.S. 494 (1991);
8. and Schenck v. United States, 249 U.S. 47 (1919).
9. For an academic discussion of this phenomenon, see Richard A. Posner, Pragmatism Versus Purposivism in First Amendment Analysis, 54 STAN. L. REV. 737, 741 (2002), which argues, "[W]hen the country feels very safe the Justices ... can ... plume themselves on their fearless devotion to freedom of speech .... But they are likely to change their tune when next the country feels endangered."
10. See Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (noting in the First Amendment context that "[u]ncertain meanings inevitably lead citizens to 'steer far wider of the unlawful zone... than if the boundaries of the forbidden areas were clearly marked'" (omission in original) (quoting Baggett v. Bullitt, 377 U.S. 360, 372 (1964))).
11. 460 U.S. 37 (1983);
12. see id. at 45-47.
13. See, e.g., United States v. Kokinda, 497 U.S. 720, 741 (1990) (Brennan, J., dissenting) ("I have questioned whether public forum analysis, as the Court has employed it in recent cases, serves to obfuscate rather than clarify the issues at hand.");
14. Del Gallo v. Parent, 557 F.3d 58, 69 n.6 (ist Cir. 2009) ("The utility and coherence of the forum analysis doctrine have been the subject of criticism."
15. (citing, for example, Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 693-94 (1992)));
16. Nat'l Ass'n of Social Workers v. Harwood, 69 F.3d 622, 644 & n.25 (1st Cir. 1995) (noting that public forum doctrine is "problematic").
17. See, e.g., Daniel A. Farber & John E. Nowak, The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication, 70 VA. L. REV. 1219, 1266 (1984) ("Unless the Supreme Court transcends its geographical approach to the first amendment and abandons formal public forum analysis, it will continue to hand down decisions that fail to analyze thoughtfully the nature and role of first amendment principles in our society").
18. Gey, supra note 1, at 1555 ("The post-Perry public forum doctrine may not be the most fractured area in modern constitutional law, but it comes close.").
19. As discussed below, the middle category of forum has been variously called a "limited public forum," a "designated public forum," a "nontraditional public forum," and a "limited open forum." See infra section III.A, pp. 2148-50.
20. Some courts have even combined terms within the middle category, noting that a forum can be "designated for one class of speaker or speech, and still 'limited' with respect to others." Justice for All v. Faulkner, 410 F.3d 760, 766 (5th Cir. 2005) (citing Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 677-81 (igg8)).
21. 515 U.S. 819 (1995).
22. Gerald Gunther, The Supreme Court, 1971 Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972).
23. Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 SUP. CT. REV. 1, 11-12.
24. 307 U.S. 496 (1939).
25. Id. at 515 (opinion of Roberts, J.).
26. For a detailed scholarly analysis of the relationship between Hague and Commonwealth v. Davis, 39 N.E. 113 (Mass. 1895), aff'd, 167 U.S. 43 (1897), that suggests public fora were not always open to free debate, see Post, supra note 2, at 1721-24.
27. See also Geoffrey R. Stone, Fora Americana: Speech in Public Places, 1974 SUP. CT. REV. 233, 236-39.
28. Some have also argued that the "discovery myth" of public forum doctrine is historically inaccurate, in that state courts were dealing with issues of public speech well before Hague. See Richard T. Pfohl, Note, Hague v. CIO and the Roots of Public Forum Doctrine: Translating Limits of Powers into Individual Rights, 28 HARV. C.R.-C.L. L. REV. 533, 536 (1993).
29. See, e.g., Jamison v. Texas, 318 U.S. 413 (1943) (invalidating a conviction for passing out handbills on a public street).
30. Police Dep't v. Mosley, 408 U.S. 92, 98-99 (1972); see also Sheri M. Danz, Note, A Nonpublic Forum or a Brutal Bureaucracy? Advocates' Claims of Access to Welfare Center Waiting Rooms, 75 N.Y.U. L. REV. 1004, 1020 n.82 (2000) (stating that the Supreme Court first adopted the term "public forum" in Mosley).
31. 424 U.S. 828 (1976).
32. Id. at 838.
33. Id.
34. 454 U.S. 263 (1981).
35. Id. at 265.
36. Id. at 268 n.5.
37. Hague v. CIO, 307 U.S. 496, 515 (1939) (opinion of Roberts, J.).
38. Widmar, 454 U.S. at 272.
39. Id. at 270.
40. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 39-40 (1983).
41. Id. at 45.
42. Id. (citing Carey v. Brown, 447 U.S. 455, 461 (1980)).
43. Id.
44. Id. at 46.
45. Id. at 46 n. 7.
46. Id. at 46.
47. Id. (citing U.S. Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 131 n.7 (1981)).
48. Id. at 46, 50-51.
49. This Note only briefly reviews this history for the purpose of elucidating the shifting definition of the middle forum. For a more detailed analysis of the Court's jurisprudence post-Perry, see David S. Day, The End of the Public Forum Doctrine, 78 IOWA L. REV. 143 (1992).
50. Cf. Post, supra note 2, at 1747 (noting that "collapsing questions of access and of equal access... creates tools of analysis that for modern purposes are simply too crude to be of any use").
51. See, e.g., Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 770 (1995);
52. Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 392 (1993).
53. See, e.g., Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (holding that a publicly owned airport terminal was a nonpublic forum);
54. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (holding that a federal employee charity drive was a nonpublic forum).
55. See Matthew D. McGill, Note, Unleashing the Limited Public Forum: A Modest Revision to a Dysfunctional Doctrine, 52 STAN. L. REV. 929, 930 (2000) ("Rosenberger marked the first time since [the tripartite structure was announced in Perry]... that the Court had held government property was a limited public forum.").
56. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 885 (1995) (Souter, J., dissenting) (internal quotation mark omitted).
57. Id. at 829-30 (majority opinion).
58. Id. at 831.
59. Id. at 829.
60. Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 615 n.10 (1998) (Souter, J., dissenting).
61. Rosenberger, 515 U.S. at 829 (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985)).
62. 473 U.S. 788.
63. See Ronnie J. Fischer, Comment, "What's in a Name?": An Attempt To Resolve the "Analytic Ambiguity" of the Designated and Limited Public Fora, 107 DLCK. L. REV 639, 656 (2003) (noting that because of the Court's viewpoint discrimination finding in Rosenberger, it did not have to apply the rational basis test to the limited public forum it found).
64. This is not to suggest that speech restrictions can never be found unreasonable. For instance, in Arizona Life Coalition Inc. v. Stanton, 515 F.3d 956, 972-73 (9th Cir. 2008), the court found that the state's denial of an application for a "Choose Life" license plate was both viewpoint discriminatory and unreasonable as the application met all of the program's statutory requirements.
65. 488 F.3d 816 (9th Cir. 2007).
66. Id. at 820, 833-36.
67. Id. at 830-31 (second alteration in original) (emphases added) (quoting Hopper v. City of Pasco, 241 F.3d 1067, 1074 (gth Cir. 2001)).
68. See, e.g., Child Evangelism Fellowship of Md., Inc. v. Montgomery County Pub. Schs., 457 F.3d 376, 383 (4th Cir. 2006) ("In a limited public forum ... the government may restrict access to 'certain groups' or to 'discussion of certain topics,' ... [as long as the restrictions are] both reasonable and viewpoint neutral."
69. (quoting Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07 (2001)));
70. Deeper Life Christian Fellowship, Inc. v. Bd. of Educ., 852 F.2d 676, 679-80 (2d Cir. 1988) ("Under the limited public forum analysis, [restrictions]... need only be reasonable and viewpoint-neutral to pass constitutional muster." (citations omitted)).
71. See Norman T. Deutsch, Does Anybody Really Need a Limited Public Forum?, 82 ST. JOHN'S L. REV. 107, 145 (2008) ("If the standard of review that applies for exclusions from both ... [limited and nonpublic] forums is the same, there would seem to be no reason to distinguish between them.").
72. See, e.g., Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 677 (1998) ("If the government excludes a speaker who falls within the class to which a designated public forum is made generally available, its action is subject to strict scrutiny.");
73. ACLU v. Mote, 423 F.3d 438, 444 (4th Cir. 2005) ("[A government speech] restriction is subject to strict scrutiny 'if the government excludes a speaker who falls within the class to which a designated [limited] public forum is made generally available ....'" (second alteration and ellipsis in original)
74. (quoting Warren v. Fairfax County, 196 F.3d r86, 193 (4th Cir. 1999)));
75. Chiu v. Piano Indep. Sch. Dist., 260 F.3d 330, 347 (5th Cir. 2001).
76. Cf. Post, supra note 2, at 1752 ("If the prerogatives of proprietary control are not respected in the limited public forum, why should they be respected in the nonpublic forum?").
77. See, e.g., United States v. Kokinda, 497 U.S. 720, 751 (1990) (Brennan, J., dissenting) ("[T]here is only a semantic distinction between the two ways in which exclusions from a limitedpurpose forum can be characterized, although the two options carry with them different standards of review.").
78. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 825 (1985) (Blackmun, J., dissenting).
79. See, e.g., Christian Legal Soc'y v. Walker, 453 F.3d 853, 865-66 n.2 (7th Cir. 2006) (noting that the confusion surrounding the middle forum had "infected th[e] litigation" and that both sides had referred to a limited public forum but "were plainly arguing for different levels of scrutiny").
80. Bowman v. White, 444 F.3d 967, 975 (8th Cir. 2006).
81. 390 F.3d 65 (ist Cir. 2004).
82. Id. at 76 n.4 (citing New England Reg'l Council of Carpenters v. Kinton, 284 F.3d 9, 20 (ist Cir. 2002);
83. Berner v. Delahanty, 129 F.3d 20, 26 (ist Cir. 1997)).
84. Id. (citing Fund for Cmty. Progress, Inc. v. Kane, 943 F.2d 137, 138 (ist Cir. 1991)).
85. Id.
86. See, e.g., Warren v. Fairfax County, 196 F.3d 186, 193 (4th Cir. 1999) (indicating that "limited" and "designated" public fora are synonyms);
87. N.Y. Magazine v. Metro. Transp. Auth., 136 F.3d 123, 128 & n.2 (2d Cir. 1998).
88. See, e.g., Bowman v. White, 444 F.3d 967, 976 (8th Cir. 2006).
89. For a brief discussion of three ways in which courts have avoided the middle forum, see McGill, supra note 42, at 940-47.
90. See id. at 943-44 (arguing that at least twice the Supreme Court has found viewpoint discrimination in order to avoid "the paradox of the limited public forum").
91. 457 E-3d 376 (4th Cir. 2006).
92. Id. at 378.
93. Id. at 383
94. (quoting Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 391 (1999)) (internal quotation marks omitted).
95. Id.
96. Id. at 386.
97. A Westlaw search of the Court of Appeals database for <"limited public forum" ls "reasonable on April 14, 2009 yielded sixty-three cases between 1998 and 2008. Of those, fourteen cases found speech restrictions in a limited public forum unconstitutional. This list includes one case, Arizona Life Coalition Inc. v. Stanton, 515 F.3d 956 (9th Cir. 2008), in which the court found that there was viewpoint discrimination and that the regulation was unreasonable.
98. Id. at g72.
99. Kincaid v. Gibson, 236 F.3d 342, 356 (6th Cir. 2001).
100. See Hopper v. City of Pasco, 241 F.3d 1067, 1082 n.17 (9th Cir. 2001) (finding it unnecessary to "reach the question of viewpoint discrimination").
101. See, e.g., Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 970 (9th Cir. 2002) ("We freely admit that the Supreme Court's concept of viewpoint neutrality in First Amendment jurisprudence has not been easy to understand.").
102. See, e.g., Marjorie Heins, Viewpoint Discrimination, 24 HASTINGS CONST. L.Q. 99, 103 (1996) ("The concept of viewpoint neutrality in First Amendment jurisprudence has... been confusing in both definition and application, and has been selectively applied in many contexts.").
103. Tucker v. Cal. Dep't. of Educ., 97 F.3d 1204, 1216 (9th Cir. 1996).
104. 129 S. Ct. 1125 (2009).
105. Id. at 1129-30.
106. Id. at 1130.
107. Id. at 1137 (omission in original)
108. (quoting United States v. Am. Library Ass'n, 539 U.S. 194, 205 (2003)) (internal quotation marks omitted).
109. Id. at 1134.
110. Id. at 1131.
111. Id. at 1138. As Justice Stevens pointed out in his concurrence, which expressed some skepticism toward the "recently minted government speech doctrine," the government is not entirely free to say whatever it wants.
112. Id. at 1139
113. (Stevens, J., concurring). Limits external to the Free Speech Clause - such as the Establishment and Equal Protection Clauses - clearly apply. Id.
114. 414 F.3d 23 (D.C. Cir. 2005);
115. see also Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1093-96 (8th Cir. 2000) (finding announcements noting private organizations' underwriting of public broadcasting to be government speech).
116. PETA, 414 F.3d at 25.
117. Id. at 26.
118. Id.
119. Id. at 27.
120. Id. at 28.
121. Id. at 29.
122. Emily Buchanan Buckles, Comment, Food Fights in the Courts: The Odd Combination of Agriculture and First Amendment Rights, 43 HOUS. L. REV. 415, 443 (2006).
123. See Saumya Manohar, Comment, Look Who's Talking Now: "Choose Life" License Plates and Deceptive Government Speech, 25 YALE L. & POL'Y REV. 22g, 233 (2006)
124. (describing the seeming inconsistency between Rust v. Sullivan, 500 U.S. 173 (1991),
125. and Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001),
126. and between Rosenberger and National Endowment for the Arts v. Finley, 524 U.S. 569 (1998)).
127. Rust, 500 U.S. at 194.
128. 505 U.S. 672 (I992).
129. Id. at 697 (Kennedy, J., concurring in the judgment).
130. Id. at 697-98.
131. Gey, supra note 1, at 1574-75; McGiIl, supra note 42, at 951-52.
132. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring).
133. Id.
134. Others have suggested eradicating the category of "limited public forum," see, e.g., Deutsch, supra note 56, at 145-50, though they have not further advocated that all restrictions be analyzed under strict scrutiny, nor examined the implications of this modification.
135. Though there might be some situations in which this Note's proposal would lead a court to designate a forum nonpublic where previously it might have called it "limited," in practice this will have no impact on the level of protection speech receives because restrictions in both limited and nonpublic fora are assessed only for their reasonableness.
136. See Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L. REV. 793, 812-13 (2006).
137. Id. at 815.
138. Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, 47 COLUM. J. TRANSNAT'L L. 72, 73 (2008).
139. See Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. REV. 1267 (2007).
140. Id. at 1331.
141. See Matthew D. Bunker & Emily Erickson, The Jurisprudence of Precision: Contrast Space and Narrow Tailoring in First Amendment Doctrine, 6 COMM. L. & POL'Y 259, 266 (2001).
142. Naturally, any such regulation would have to satisfy the constitutional test for such restrictions under Brandenburg v. Ohio, 395 U.S. 444 (1969).
143. Cf. Bunker & Erickson, supra note 112, at 266-67 (citing Ward v. Rock Against Racism, 491 U.S. 78I (I989), as a case using this means of determining narrow tailoring).
144. Id. at 268 (citing Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), as an example of this type of narrow tailoring).
145. Id. at 271 (citing 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (I996), as a case using this means of narrow tailoring).
146. See id. at 278-85 (suggesting four different ways to determine which contrast space to use);
147. see also Ian Ayres, Narrow Tailoring, 43 UCLA L. REV 1781, 1784-85 (I996). For an interesting argument challenging the application of the strict scrutiny standard to the First Amendment entirely and arguing for a system of "categorical rules and categorical exceptions,"
148. see Eugene Volokh, Essay, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, I44 U. PA. L. REV. 24I7, 2456 (I996).
149. ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELFGOVERNMENT 26-27 (1948).
150. Id. at 39.
151. I ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 252 (Phillips Bradley ed., Francis Bowen rev., Alfred A. Knopf 1956) (Henry Reeve trans., I835) (I835).
152. 52I U.S. 844 (I997).
153. Id. at 868.
154. Id. at 853.