Under the First Amendment to the U.S. Constitution, the government (including elected officials, legislative bodies, police, and public schools) can’t restrict people’s freedom of speech and other forms of expression. But free speech isn’t absolute. Some kinds of expression aren’t protected because they’re particularly harmful. People in certain situations have more limited free-speech rights. And the government has more or less leeway to restrict expression, depending on where it takes place (what’s known in legalese as the “forum”).
Over the years, the U.S. Supreme Court has made a distinction between different types of forums, with different levels of protection for free speech: traditional public forums, designated public forums, limited public forums, and nonpublic forums. But all of these areas have one thing in common: Government can’t try to restrict speech based on people’s opinions (known as “viewpoint discrimination”). And they don’t have to be physical spaces. For instance, a student newspaper at a public high school or college (whether in print or digital) might be public forum in certain instances.
Traditional Public Forums
People enjoy the strongest free-speech protections in places like public squares, sidewalks, and parks that have long been open to the public for debate, demonstrations, political rallies, leafletting, and other ways of expressing opinions. There may be reasonable rules on when, where, and how people may express themselves in traditional public forums. But those restrictions shouldn’t have anything to do with the content of the expression, unless they were necessary to serve a compelling governmental interest (the legal standard known as “strict scrutiny”).
Designated Public Forums
Sometimes, government opens up spaces for expression, such as public libraries, utility poles where a city lets people post flyers, and “free speech zones” on college campuses. As long as a designated public forum is open, any restrictions on the content of speech must meet the same strict scrutiny test as in traditional public forums.
The Supreme Court has found that privately owned property could be a designated public forum if the government controlled the space, such as a building that a city leased to use as a municipal theater. (See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975).)
Limited Public Forums
Sometimes, government designates a public forum for a limited purpose or a limited group of speakers. For example, school boards or city councils often set aside part of their meetings for public comment, but they may limit speakers to city residents addressing certain topics. Courts haven’t always been consistent in the way they treat limited public forums—whether they're more like designated public forums or nonpublic forums (see below). Generally, however, it appears that government may limit access or speech in these settings as long as the restrictions are reasonable (a lower standard than strict scrutiny) and aren’t an attempt to silence certain viewpoints. (See, for example, Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 561 U.S. 661 (2010).)
In several lawsuits, people have argued that government agencies—or even individual government officials—shouldn’t be allowed to block critical comments on their social media accounts because they’ve used those accounts as designated or limited public forums. (For more details, see our article on whether public officials may ban constituents from social media accounts.)
In government-controlled settings that haven’t been open to free speech (usually called “nonpublic forums” or “closed public forums”), there may be reasonable restrictions on expression in order to preserve the spaces for their intended purpose. Some of the places that courts have considered nonpublic forums include military bases, prisons, courthouses, airport terminals, federal building lobbies, and legislators’ offices.
Sometimes the distinction between a public forum and a nonpublic forum can seem a bit arbitrary. For instance, courts have held that the sidewalks around the perimeter of the U.S. Supreme Court grounds are a public forum, but not the public plaza in front of the building. (See United States v. Grace, 461 U.S. 171 (1983) and Hodge v. Talkin, 799 F.3d 1145 (D.C. Cir. 2015).)
Questions for Your Lawyer
- The teacher in charge of my high school newspaper has generally let student journalists decide what goes in the publication. School officials used to have a hands-off policy with the paper, but now a new principal has started censoring articles about controversial subjects—including one I wrote. Can I sue the school for violating my free-speech rights, because it allowed the paper to become a public forum by policy and practice?
- My organization’s gay-friendly newspaper was displayed on a table that the local library set aside for literature from all sorts of community groups. After some people complained about our paper, the library got rid of the table. It’s pretty clear to us that the move was aimed at silencing our viewpoint, even though it applies to all public literature. Can we sue the library for violating our First Amendment rights?
- The police stopped my musicians’ union from picketing at the city-owned plaza in front of the performing arts complex. Isn’t that a violation of our right to freedom of expression in a public forum?
- Can airport authorities stop me (and others) from protesting actions by immigration officials on the sidewalk in front of the airport? What about the road leading to the airport?