Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 23 (1996)

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Cite as: 518 U. S. 727 (1996)

Opinion of Breyer, J.

Petitioners also rely on this Court's "public forum" cases. They point to Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S., at 45, a case in which this Court said that "public forums" are "places" that the government "has opened for use by the public as a place for expressive activity," or which "by long tradition . . . have been devoted to assembly and debate." Ibid. See also Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S., at 801 (assuming public forums may include "private property dedicated to public use"). They add that the Government cannot "enforce a content-based exclusion" from a public forum unless "necessary to serve a compelling state interest" and "narrowly drawn." Perry, supra, at 45. They further argue that the statute's permissive provisions unjustifiably exclude material, on the basis of content, from the "public forum" that the Government has created in the form of access channels. Justice Kennedy adds by analogy that the decision to exclude certain content from common carriage is similarly subject to strict scrutiny, and here does not satisfy that standard of review. See post, at 796-799, 805-807.

For three reasons, however, it is unnecessary, indeed, unwise, for us definitively to decide whether or how to apply the public forum doctrine to leased access channels. First, while it may be that content-based exclusions from the right to use common carriers could violate the First Amendment, see post, at 796-800 (opinion of Kennedy, J.), it is not at all clear that the public forum doctrine should be imported wholesale into the area of common carriage regulation. As discussed above, we are wary of the notion that a partial analogy in one context, for which we have developed doctrines, can compel a full range of decisions in such a new and changing area. See supra, at 739-743. Second, it is plain from this Court's cases that a public forum "may be created for a limited purpose." Perry, supra, at 46, n. 7; see also Cornelius, supra, at 802 ("[T]he government 'is not required to indefinitely retain the open character of the facility' ")

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