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Speech Plus - The Constitutional Law of Leafleting, Picketing, and Demonstrating

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Speech Plus—The Constitutional Law of Leafleting, Picketing, and Demonstrating

Communication of political, economic, social, and other views is not accomplished solely by face-to-face speech, broadcast speech, or writing in newspapers, periodicals, and pamphlets. There is also “expressive conduct,” which includes picketing, patrolling, and marching, distribution of leaflets and pamphlets and addresses to publicly assembled audiences, door-to-door solicitation and many forms of “sit-ins.” There is also a class of conduct now only vaguely defined which has been denominated “symbolic conduct,” which includes such actions as flag desecration and draft-card burnings. Because all these ways of expressing oneself involve conduct—action—rather than mere speech, they are all much more subject to regulation and restriction than is simple speech. Some of them may be forbidden altogether. But to the degree that these actions are intended to communicate a point of view the First Amendment is relevant and protects some of them to a great extent. Sorting out the conflicting lines of principle and doctrine is the point of this section.

The Public Forum.—In 1895, while on the highest court of Massachusetts, future Justice Oliver Wendell Holmes rejected a contention that public property was by right open to the public as a place where the right of speech could be recognized,1173 and on review the United States Supreme Court endorsed Holmes’ view.1174 Years later, beginning with Hague v. CIO,1175 the Court reconsidered the issue. Justice Roberts wrote in Hague: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.” While this opinion was not itself joined by a majority of the Justices, the view was subsequently endorsed by the Court in several opinions.1176

1173 Commonwealth v. Davis, 162 Mass. 510, 511 (1895). “For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of rights of a member of the public than for the owner of a private house to forbid it in the house.”

1174 Davis v. Massachusetts, 167 U.S. 43, 48 (1897).

1175 307 U.S. 496, 515 (1939). Only Justice Black joined the Roberts opinion, but only Justices McReynolds and Butler dissented from the result.

1176 E.g., Schneider v. Town of Irvington, 308 U.S. 147, 163 (1939); Kunz v. New York, 340 U.S. 290, 293 (1951).

The Roberts view was called into question in the 1960s, however, when the Court seemed to leave the issue open,1177 and when a majority endorsed an opinion by Justice Black asserting his own narrower view of speech rights in public places.1178 More recent decisions have restated and quoted the Roberts language from Hague, and that is now the position of the Court.1179 Public streets and parks,1180 including those adjacent to courthouses1181 and foreign embassies,1182 as well as public libraries1183 and the grounds of legislative bodies,1184 are open to public demonstrations, although the uses to which public areas are dedicated may shape the range of permissible expression and conduct that may occur there.1185 Moreover, not all public properties are thereby public forums. “[T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government.”1186 “The crucial question is whether the manner of expression is basically compatible with the normal activity of a particular place at a particular time.”1187 Thus, by the nature of the use to which the property is put or by tradition, some sites are simply not as open for expression as streets and parks are.1188 But if government does open non-traditional forums for expressive activities, it may not discriminate on the basis of content or viewpoint in according access.1189 The Court in accepting the public forum concept has nevertheless been divided with respect to the reach of the doctrine.1190 The concept is likely, therefore, to continue be a focal point of judicial debate in coming years.

1177 Cox v. Louisiana, 379 U.S. 536, 555 (1965). For analysis of this case in the broader context, see Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 SUP. CT. REV. 1.

1178 Adderley v. Florida, 385 U.S. 39 (1966). See id. at 47-48; Cox v. Louisiana, 379 U.S. 559, 578 (1965) (Justice Black concurring in part and dissenting in part); Jamison v. Texas, 318 U.S. 413, 416 (1943) (Justice Black for the Court).

1179 E.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 152 (1969); Grayned v. City of Rockford, 408 U.S. 104, 115 (1972); Carey v. Brown, 447 U.S. 455, 460 (1980).

1180 Hague v. CIO, 307 U.S. 496 (1939); Niemotko v. Maryland, 340 U.S. 268 (1951); Kunz v. New York, 340 U.S. 290 (1951); Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969); Coates v. City of Cincinnati, 402 U.S. 611 (1971); Grayned v. City of Rockford, 408 U.S. 104 (1972); Greer v. Spock, 424 U.S. 828, 835-36 (1976); Carey v. Brown, 447 U.S. 455 (1980).

1181 Narrowly drawn statutes which serve the State’s interests in security and in preventing obstruction of justice and influencing of judicial officers are constitutional. Cox v. Louisiana, 379 U.S. 559 (1965). A restriction on carrying signs or placards on the grounds of the Supreme Court is unconstitutional as applied to the public sidewalks surrounding the Court, since it does not sufficiently further the governmental purposes of protecting the building and grounds, maintaining proper order, or insulating the judicial decisionmaking process from lobbying. United States v. Grace, 461 U.S. 171 (1983).

1182 In Boos v. Barry, 485 U.S. 312 (1988), the Court struck down as content-based a District of Columbia law prohibiting the display of any sign within 500 feet of a foreign embassy if the sign tends to bring the foreign government into “public odium” or “public disrepute.” However, another aspect of the District’s law, making it unlawful for three or more persons to congregate within 500 feet of an embassy and refuse to obey a police dispersal order, was upheld; under a narrowing construction, the law had been held applicable only to congregations directed at an embassy, and reasonably believed to present a threat to the peace or security of the embassy.

1183 Brown v. Louisiana, 383 U.S. 131 (1966) (sit-in in library reading room).

1184 Edwards v. South Carolina, 372 U.S. 229 (1963); Jeanette Rankin Brigade v. Capitol Police Chief, 342 F. Supp. 575 (D.C. 1972) (three-judge court), aff'd, 409 U.S. 972 (1972) (voiding statute prohibiting parades and demonstrations on United States Capitol grounds).

1185 E.g., Grayned v. City of Rockford, 408 U.S. 104 (1972) (sustaining ordinance prohibiting noisemaking adjacent to school if that noise disturbs or threatens to disturb the operation of the school); Brown v. Louisiana, 383 U.S. 131 (1966) (silent vigil in public library protected while noisy and disruptive demonstration would not be); Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969) (wearing of black armbands as protest protected but not if it results in disruption of school); Cameron v. Johnson, 390 U.S. 611 (1968) (preservation of access to courthouse); Frisby v. Schultz, 487 U.S. 474 (1988) (ordinance prohibiting picketing “before or about” any residence or dwelling, narrowly construed as prohibiting only picketing that targets a particular residence, upheld as furthering significant governmental interest in protecting the privacy of the home).

1186 United States Postal Service v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 129 (1981).

1187 Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).

1188 E.g., Adderley v. Florida, 385 U.S. 39 (1966) (jails); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (advertising space in city rapid transit cars); Greer v. Spock, 424 U.S. 828 (1976) (military bases); United States Postal Service v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114 (1981) (private mail boxes); Perry Educ. Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. 37 (1983) (interschool mail system); ISKCON v. Lee, 505 U.S. 672 (1992) (publicly owned airport terminal).

1189 E.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (municipal theater); Madison School District v. WERC, 429 U.S. 167 (1976) (school board meeting); Heffron v. ISKCON, 452 U.S. 640 (1981) (state fair grounds); Widmar v. Vincent, 454 U.S. 263 (1981) (university meeting facilities).

Speech in public forums is subject to time, place, and manner regulations, which take into account such matters as control of traffic in the streets, the scheduling of two meetings or demonstrations at the same time and place, the preventing of blockages of building entrances, and the like.1191 Such regulations are closely scrutinized in order to protect free expression, and, to be valid, must be justified without reference to the content or subject matter of speech,1192 must serve a significant governmental interest,1193 and must leave open ample alternative channels for communication of the information.1194 A recent formulation is that a time, place, or manner regulation “must be narrowly tailored to serve the government’s legitimate, content-neutral interests, but . . . need not be the least-restrictive or least-intrusive means of doing so.” All that is required is that “the means chosen are not substantially broader than necessary to achieve the government’s interest ....”1195 A content-neutral time, place, and manner regulation of the use of a public forum must also “contain adequate standards to guide the official’s decision and render it subject to effective judicial review.”1196 Unlike a content-based licensing scheme, however, it need not “adhere to the procedural requirements set forth in Freedman.”1197 These requirements include that the “burden of proving that the film [or other speech] is unprotected expression must rest on the censor,” and that the censor must, “within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution.”1198

1190 Compare United States Postal Service v. Council of Greenburgh Civic Ass'ns, 454 U.S. 114, 128-31 (1981), with id. at 136-40 (Justice Brennan concurring), and 142 (Justice Marshall dissenting). For evidence of continuing division, compare ISKCON v. Lee, 505 U.S. 672 (1992) with id. at 693 (Justice Kennedy concurring).

1191 See, e.g., Heffron v. ISKCON, 452 U.S. 640, 647-50 (1981), and id. at 656 (Justice Brennan concurring in part and dissenting in part) (stating law and discussing cases); Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (prohibition of sleep-in demonstration in area of park not designated for overnight camping).

1192 Niemotko v. Maryland, 340 U.S. 268 (1951); Cox v. Louisiana, 379 U.S. 536 (1965); Police Department v. Mosley, 408 U.S. 92 (1972); Madison School District v. WERC, 429 U.S. 167 (1976); Carey v. Brown, 447 U.S. 455 (1980); Widmar v. Vincent, 454 U.S. 263 (1981). In Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), a divided Court permitted the city to sell commercial advertising space on the walls of its rapid transit cars but to refuse to sell political advertising space.

1193 E.g., the governmental interest in safety and convenience of persons using public forum, Heffron v. ISKCON, 452 U.S. 640, 650 (1981); the interest in preservation of a learning atmosphere in school, Grayned v. City of Rockford, 408 U.S. 104, 115 (1972); and the interest in protecting traffic and pedestrian safety in the streets, Cox v. Louisiana, 379 U.S. 536, 554-55 (1965); Kunz v. New York, 340 U.S. 290, 293-94 (1951); Hague v. CIO, 307 U.S. 496, 515-16 (1939).

1194 Heffron v. ISKCON, 452 U.S. 640, 654-55 (1981); Consolidated Edison Co. v. PSC, 447 U.S. 530, 535 (1980).

1195 Ward v. Rock Against Racism, 491 U.S. 781, 798, 800 (1989).

1196 Thomas v. Chicago Park Dist., 534 U.S. 316, 323 (2002).

1197 534 U.S. at 322, citing Freedman v. Maryland, 380 U.S. 51 (1965). See National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977).

1198 Freedman v. Maryland, 380 U.S. 1, 58-59 (1965).

Corollary to the rule forbidding regulation premised on content is the principle, a merging of free expression and equal protection standards, that government may not discriminate between different kinds of messages in affording access.1199 In order to ensure against covert forms of discrimination against expression and between different kinds of content, the Court has insisted that licensing systems be constructed as free as possible of the opportunity for arbitrary administration.1200 The Court has also applied its general strictures against prior restraints in the contexts of permit systems and judicial restraint of expression.1201

1199 Police Department v. Mosley, 408 U.S. 92 (1972) (ordinance void that barred all picketing around school building except labor picketing); Carey v. Brown, 447 U.S. 455 (1980) (same); Widmar v. Vincent, 454 U.S. 263 (1981) (college rule permitting access to all student organizations except religious groups); Niemotko v. Maryland, 340 U.S. 268 (1951) (permission to use parks for some groups but not for others). These principles apply only to the traditional public forum and to the governmentally created “limited public forum.” Government may, without creating a limited public forum, place “reasonable” restrictions on access to nonpublic areas. See, e.g. Perry Educ. Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. 37, 48 (1983) (use of school mail system); and Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788 (1985) (charitable solicitation of federal employees at work-place). See also Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (city may sell commercial advertising space on the walls of its rapid transit cars but refuse to sell political advertising space); Capitol Square Review Bd. v. Pinette, 515 U.S. 753 (1995) (denial of permission to Ku Klux Klan, allegedly in order to avoid Establishment Clause violation, to place a cross in plaza on grounds of state capitol); Rosenberger v. University of Virginia, 515 U.S. 819 (1995) (University’s subsidy for printing costs of student publications, available for student “news, information, opinion, entertainment, or academic communications,” could not be withheld because of the religious content of a student publication); Lamb’s Chapel v. Center Moriches School Dist., 508 U.S. 384 (1993) (school district rule prohibiting after-hours use of school property for showing of a film presenting a religious perspective on child-rearing and family values, but allowing after-hours use for non-religious social, civic, and recreational purposes).

It appears that government may not deny access to the public forum for demonstrators on the ground that the past meetings of these demonstrators resulted in violence,1202 and may not vary a demonstration licensing fee based on an estimate of the amount of hostility likely to be engendered,1203 but the Court’s position with regard to the “heckler’s veto,” the governmental termination of a speech or demonstration because of hostile crowd reaction, remains quite unclear.1204

1200 E.g., Hague v. CIO, 307 U.S. 496, 516 (1939); Schneider v. Town of Irvington, 308 U.S. 147, 164 (1939); Cox v. New Hampshire, 312 U.S. 569 (1941); Poulos v. New Hampshire, 345 U.S. 395 (1953); Staub v. City of Baxley, 355 U.S. 313, 321-25 (1958); Cox v. Louisiana, 379 U.S. 536, 555-58 (1965); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-53 (1969). Justice Stewart for the Court described these and other cases as “holding that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license without narrow, objective, and definite standards to guide the licensing authority is unconstitutional.” Id. at 150-51. A person faced with an unconstitutional licensing law may ignore it, engage in the desired conduct, and challenge the constitutionality of the permit system upon a subsequent prosecution for violating it. Id. at 151; Jones v. Opelika, 316 U.S. 584, 602 (1942) (Chief Justice Stone dissenting), adopted per curiam on rehearing, 319 U.S. 103 (1943). See also City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (upholding facial challenge to ordinance vesting in the mayor unbridled discretion to grant or deny annual permit for location of newsracks on public property); Riley v. National Fed'n of the Blind, 487 U.S. 781 (1988) (invalidating as permitting “delay without limit” licensing requirement for professional fundraisers); Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992). But see Walker v. City of Birmingham, 388 U.S. 307 (1967) (same rule not applicable to injunctions).

1201 In Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969), the Court re-affirmed the holdings of the earlier cases, and, additionally, both Justice Stewart, for the Court, id. at 155 n.4, and Justice Harlan concurring, id. at 162-64, asserted that the principles of Freedman v. Maryland, 380 U.S. 51 (1965), governing systems of prior censorship of motion pictures, were relevant to permit systems for parades and demonstrations. The Court also voided an injunction against a protest meeting that was issued ex parte, without notice to the protestors and with, of course, no opportunity for them to rebut the representations of the seekers of the injunction. Carroll v. President and Comm'rs of Princess Anne, 393 U.S. 175 (1968).

1202 The only precedent is Kunz v. New York, 340 U.S. 290 (1951). The holding was on a much narrower basis, but in dictum the Court said: “The court below has mistakenly derived support for its conclusions from the evidence produced at the trial that appellant’s religious meetings had, in the past, caused some disorder. There are appropriate public remedies to protect the peace and order of the community if appellant’s speeches should result in disorder and violence.” Id. at 294. A different rule applies to labor picketing. See Milk Wagon Drivers Local 753 v. Meadowmoor Dairies, 312 U.S. 287 (1941) (background of violence supports prohibition of all peaceful picketing). The military may ban a civilian, previously convicted of destroying government property, from reentering a military base, and may apply the ban to prohibit the civilian from reentering the base for purposes of peaceful demonstration during an Armed Forces Day “open house.” United States v. Albertini, 472 U.S. 675 (1985).

1203 Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (a fee based on anticipated crowd response necessarily involves examination of the content of the speech, and is invalid as a content regulation).

1204 Dicta clearly indicate that a hostile reaction will not justify suppression of speech, Hague v. CIO, 307 U.S. 496, 502 (1939); Cox v. Louisiana, 379 U.S. 536, 551 (1965); Bachellar v. Maryland, 397 U.S. 564, 567 (1970), and one holding appears to point this way. Gregory v. City of Chicago, 394 U.S. 111 (1969). On the other hand, the Court has upheld a breach of the peace conviction of a speaker who refused to cease speaking upon the demand of police who feared imminent violence. Feiner v. New York, 340 U.S. 315 (1951). In Niemotko v. Maryland, 340 U.S. 268, 273 (1951) (concurring opinion), Justice Frankfurter wrote: “It is not a constitutional principle that, in acting to preserve order, the police must proceed against the crowd whatever its size and temper and not against the speaker.”

The Court has defined three different categories of public property for public forum analysis. First, there is the public forum, places such as streets and parks which have traditionally been used for public assembly and debate, where the government may not prohibit all communicative activity and must justify content-neutral time, place, and manner restrictions as narrowly tailored to serve some legitimate interest.* Government may also open property for communicative activity, and thereby create a public forum. Such a forum may be limited—hence the expression “limited public forum”—for “use by certain groups, e.g., Widmar v. Vincent (student groups), or for discussion of certain subjects, e.g., City of Madison Joint School District v. Wisconsin PERC (school board business),”1205 but within the framework of such legitimate limitations discrimination based on content must be justified by compelling governmental interests.1206 Thirdly, government “may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”1207 The distinction between the second and third categories can therefore determine the outcome of a case, since speakers may be excluded from the second category only for a “compelling” governmental interest, while exclusion from the third category need only be “reasonable.” Yet, distinguishing between the two categories creates no small difficulty, as evidenced by recent case law.

* “[A]lthough a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.” Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1129 (2009).

1205 Perry Educ. Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. 37, 45-46 (1983).

1206 460 U.S. at 46 n.7.

1207 460 U.S. at 46. Candidate debates on public television are an example of this third type of public forum: the “nonpublic forum.” Arkansas Educational Television Comm'n v. Forbes, 523 U.S. 666, 679 (1998). “Although public broadcasting as a general matter does not lend itself to scrutiny under the forum doctrine [i.e., public broadcasters ordinarily are entitled to the editorial discretion to engage in viewpoint discrimination], candidate debates present the narrow exception to this rule.” Id. at 675. A public broadcaster, therefore, may not engage in viewpoint discrimination in granting or denying access to candidates. Under the third type of forum analysis, however, it may restrict candidate access for “a reasonable, viewpoint-neutral” reason, such as a candidate’s “objective lack of support.” Id. at 683.

The Court has held that a school system did not create a limited public forum by opening an interschool mail system to use by selected civic groups “that engage in activities of interest and educational relevance to students,” and that, in any event, if a limited public forum had thereby been created a teachers union rivaling the exclusive bargaining representative could still be excluded as not being “of a similar character” to the civic groups.1208 Less problematic was the Court’s conclusion that utility poles and other municipal property did not constitute a public forum for the posting of signs.1209 More problematic was the Court’s conclusion that the Combined Federal Campaign, the Federal Government’s forum for coordinated charitable solicitation of federal employees, is not a limited public forum. Exclusion of various advocacy groups from participation in the Campaign was upheld as furthering “reasonable” governmental interests in offering a forum to “traditional health and welfare charities,” avoiding the appearance of governmental favoritism of particular groups or viewpoints, and avoiding disruption of the federal workplace by controversy.1210 The Court pinpointed the government’s intention as the key to whether a public forum has been created: “[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a non-traditional forum for public discourse.”1211 Under this categorical approach, the government has wide discretion in maintaining the nonpublic character of its forums, and may regulate in ways that would be impermissible were it to designate a limited public forum.1212

1208 Perry Educ. Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. 37 (1983). This was a 5-4 decision, with Justice White’s opinion of the Court being joined by Chief Justice Burger and by Justices Blackmun, Rehnquist, and O'Connor, and with Justice Brennan’s dissent being joined by Justices Marshall, Powell, and Stevens. See also Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (student newspaper published as part of journalism class is not a public forum).

1209 City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) (upholding an outright ban on use of utility poles for signs). The Court noted that “it is of limited utility in the context of this case to focus on whether the tangible property itself should be deemed a public forum.” Id. at 815 n.32.

1210 Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788 (1985). Precedential value of Cornelius may be subject to question, since it was decided by 4-3 vote, the non-participating Justices (Marshall and Powell) having dissented in Perry. Justice O'Connor wrote the opinion of the Court, joined by Chief Justice Burger and by Justices White and Rehnquist. Justice Blackmun, joined by Justice Brennan, dissented, and Justice Stevens dissented separately.

1211 473 U.S. at 802. Justice Blackmun criticized “the Court’s circular reasoning that the CFC is not a limited public forum because the Government intended to limit the forum to a particular class of speakers.” Id. at 813-14.

1212 Justice Kennedy criticized this approach in ISKCON v. Lee, 505 U.S. 672, 695 (1992) (concurring), contending that recognition of government’s authority to designate the forum status of property ignores the nature of the First Amendment as “a limitation on government, not a grant of power.” Justice Brennan voiced similar misgivings in his dissent in United States v. Kokinda: “public forum categories— originally conceived of as a way of preserving First Amendment rights—have been used . . . as a means of upholding restrictions on speech.” 497 U.S. at 741 (emphasis in original) (citation omitted).

Application of the doctrine continues to create difficulty. A majority of Justices could not agree on the public forum status of a sidewalk located entirely on Postal Service property.1213 The Court was also divided over whether nonsecured areas of an airport terminal, including shops and restaurants, constituted a public forum. Holding that the terminal was not a public forum, the Court upheld restrictions on the solicitation and receipt of funds.1214 But the Court also invalidated a ban on the sale or distribution of literature to passers-by within the same terminal, four Justices believing that the terminal constituted a public forum, and a fifth contending that the multipurpose nature of the forum (shopping mall as well as airport) made restrictions on expression less “reasonable.”1215

In United States v. American Library Association, Inc., a four-Justice plurality of the Supreme Court found that “Internet access in public libraries is neither a ‘traditional’ nor a ‘designated’ public forum.”152 The plurality therefore did not apply “strict scrutiny” in upholding the Children’s Internet Protection Act, which, as the plurality summarized it, provides that a public school or “library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them.”153 The plurality found that Internet access in public libraries is not a “traditional” public forum because “[w]e have ‘rejected the view that traditional public forum status extends beyond its historical confines.’”154 And Internet access at public libraries is not a “designated” public forum because “[a] public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak. It provides Internet access, not to ‘encourage a diversity of views from private speakers,’ but for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality.”155

Nevertheless, although Internet access in public libraries is not a public forum, and particular Web sites, like particular newspapers, would not constitute public fora, the Internet as a whole might be viewed as a public forum, despite its lack of a historic tradition. The Supreme Court has not explicitly held that the Internet as a whole is a public forum, but, in Reno v. ACLU, which struck down the Communications Decency Act’s prohibition of “indecent” material on the Internet, the Court noted that the Internet “constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can ‘publish’ information.”156

In United States v. American Library Association, Inc., a four-justice plurality of the Supreme Court found that “Internet access in public libraries is neither a ‘traditional’ nor a ‘designated’ public forum.” 37 The plurality therefore did not apply “strict scrutiny” in upholding the Children’s Internet Protection Act, which, as the plurality summarized it, provides that a public school or “library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them.” 38 The plurality found that Internet access in public libraries is not a “traditional” public forum because “[w]e have ‘rejected the view that traditional public forum status extends beyond its historical confines.’ ” 39 And Internet access at public libraries is not a “designated” public forum because “[a] public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak. It provides Internet access, not to ‘encourage a diversity of views from private speakers,’ but for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality.” 40

Nevertheless, although Internet access in public libraries is not a public forum, and particular Web sites, like particular newspapers, would not constitute public fora, the Internet as a whole might be viewed as a public forum, despite its lack of a historic tradition. The Supreme Court has not explicitly held that the Internet as a whole is a public forum, but, in Reno v. ACLU, which struck down the Communications Decency Act’s prohibition of “indecent” material on the Internet, the Court noted that the Internet “constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can ‘publish’ information.” 41

1213 United States v. Kokinda, 497 U.S. 720 (1990) (upholding a ban on solicitation on the sidewalk).

1214 ISKCON v. Lee, 505 U.S. 672 (1992).

1215 Lee v. ISKCON, 505 U.S. 672 (1992).

152 539 U.S. 194, 205 (2003).

153 539 U.S. at 199.

154 539 U.S. at 206.

155 539 U.S. at 206 (citation omitted).

156 A federal court of appeals wrote: “Aspects of cyberspace may, in fact, fit into the public forum category, although the Supreme Court has also suggested that the category is limited by tradition. Compare Forbes, 523 U.S. at 679 (“reject[ing] the view that traditional public forum status extends beyond its historic confines” [to a public television station]) with Reno v. ACLU, 521 U.S. 844, 851-53 (1997) (recognizing the communicative potential of the Internet, specifically the World Wide Web).” Putnam Pit, Inc. v. City of Cookeville, 221 F.3d 834, 843 (6th Cir. 2000) (alternate citations to Forbes and Reno omitted). In Putnam Pit, the city denied a private Web site’s request that the city’s Web site establish a hyperlink to it, even though the city’s Web site had established hyperlinks to other private Web sites. The court of appeals found that the city’s Web site was a nonpublic forum, but that even nonpublic fora must be viewpoint neutral, so it remanded the case for trial on the question of whether the city’s denial of a hyperlink had discriminated on the basis of viewpoint.

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