By: Norman T. Deutsch
A large portion of the physical property and means of
communication in this country is owned or controlled by the
government. Consequently, an important constitutional law
issue is the extent to which speakers may use such property to
exercise First Amendment protected speech rights. To resolve
this question, the United States Supreme Court uses a forum
analysis. Under this framework the right to use government
property for speech purposes and the standard of judicial review
that applies for government exclusions depend on how the property
is categorized. The three basic categories that the Court has
recognized are the traditional public forum, the designated public
forum and the nonpublic forum.
The Court has also recognized a fourth category known as the
limited public forum. However, some commentators and
individual Justices have concluded that the Court has drained the
limited public forum of any practical significance.
Nonetheless, it lives on as a shell, and its continued existence
has caused doubt and confusion among the Federal Circuit Courts of
Appeals.
The article analyzes the Court’s forum structure. It
argues that is time to bury the limited public forum as a separate
and distinct category because as a practical matter it serves no
useful purpose. Instead, it proposes that the Court analyze
speaker access issues in terms of open and restrictive
forums. Such an approach would make the analysis in forum
cases easier, more direct, and less confusing.