Perry’s original tri-partite forum analysis

Traditional Public Forum•Streets, Parks & Sidewalks

•CB/CN rules apply

Designated/Public Forum•State need not open property for expressive purposes but once it does, it must abide by the same rules as in a traditional public forum. State can close this forum if it wants to.

Non-Public Forum•State has a right to reserve property for its intended use. Regulations of speech will be upheld as long as they are reasonable and not an effort to suppress a particular viewpoint

Perry - designated, limited and nonpublic fora

• Why doesn’t the fact that the school allowed other groups to use the mailboxes mean that the boxes were a designated public forum as opposed to a non-public forum?

• SCT - school kept sufficient control over access – required permission, etc. – so that it was clear that it had not opened up the forum for expressive purposes

• How much control over mailboxes must school cede before a designated forum is created

• Since the school allowed groups like Boy Scouts, Girl Scouts, YMCA, parochial schools to use boxes, why hasn’t the school has opened up the mailboxes as an expressive forum – i.e., designated forum?

• SCT - even if opening up access to these groups created a forum, it would be “limited” only to groups of a similar character.

• Which brings us to footnote 7

Designated and limited public fora – the same or different

Issue: If gov’t can’t discriminate based on content in a designated public forum, how can it only open forum to “entities of a similar character” and still have a limited public forum rather than a non-public forum?

•Footnote 7 intimates that can limit designated forums by speaker or subject matter

•What are the implications of this for the applicable rules?

• Do we apply the rules of the nonpublic forum (reasonable and viewpoint neutral)?

• Do we allow content (subject-matter discrimination) only re the parameters of the forum but not within the forum itself?

Nonpublic fora and viewpoint discrimination

• Perry involved a non-public forum. Even here the government cannot engage in viewpoint-based discrimination.

• Was the school’s refusal to allow the rival union access to the teacher’s mailbox in Perry an attempt to suppress a particular viewpoint?

More on nonpublic fora & viewpoint discrimination

• Cornelius - CFC involved a voluntary fundraising drive in federal workplace conducted during work hours. E.O. limited it to “voluntary, tax-exempt, non-profit, charitable agencies that provide direct health and welfare services” & excluded legal defense and political advocacy groups.

• What kind of forum was the CFC? Why? Do you agree with Justice O’Connor’s characterization?

• Was the exclusion of legal defense and political advocacy groups based on viewpoint? Is the desire to “avoid controversy” unassociated with viewpoint?

Rosenberger v. Rectors and Visitors of UVA

• SAF created from UVA students’ mandatory fees. Certain groups eligible to receive funds from SAF if “related to the educational purpose of the University” – included student newspapers• Certain groups’ activities excluded from eligibility for

funds – religious & political activities (electioneering and lobbying)

• Religious activity = any activity that primarily promotes or manifests a belief in or about a deity or an ultimate reality

• UVA denied WAP funding for its newspaper because it was a religious activity – challenged denial as violating freedom of speech

• What kind of forum is SAF? Limited or non-public? Why?• Why doesn’t the exclusion of some speakers make this a

non-public forum as was the case in Cornelius?

• What kind of exclusion is the exclusion of “religious activity” – VP or SM? Why does it matter?

Kokinda – when is a public forum not a public forum?

• Why weren’t the post office sidewalks a public forum?

• What are the opinion’s implications?

• When is a public forum no longer be a public forum?

• How much speech must the gov’t allow on its property before a designated forum is created under Kokinda’s language?

• Are there ways of limiting the opinion’s reach?

Eroding the traditional public forum?

• After Kokinda/Summum (p. 200) – is SCT signaling that a traditional public forum isn’t always a traditional public forum? Under what circumstances would/should that be the case?

• Kokinda: when sidewalk isn’t really used as a public passageway

• Summum: when the speech isn’t a typical transitory protest/entertainment that doesn’t interfere with the other traditional function of the property (driving, walking, park) – unlike a permanent monument

• Should a park be considered a different kind of forum for different kinds of speech? Dangers?