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Wednesday, August 11, 2010

Category Confusion and Public Forums: CLS v. Martinez

How many constitutional categories of public forums are there and what are their names?  This should be an easy question to answer, right?

In the recent case of Christian Legal Society v. Martinez, 130 S.Ct. 2971 (2010), the Supreme Court majority stated (and the dissent did not dispute) that there are three categories:  traditional public forums, designated public forums, and limited public forums. Id. at 2984 n. 11.  Compare this to the Supreme Court decision of Arkansas Educational Television Comm'n v. Forbes, 523 U.S. 666 (1998), in which the Supreme Courts divides forums into the categories of traditional public forums, designated public forums (whether open to "all or part of the public"), and nonpublic forums.  

Evidently, the Court now conceives of the term "designated public forum" to refer only to a forum that is designated as open to the public as a whole rather than to merely a part of it.  Does the distinction between the limited public forum and the "nonpublic forum" therefore collapse?  Or did the Court just omit to mention the nonpublic forum as a category because Martinez so clearly involved a limited public forum?  Even before this decision, the constitutional standards applicable to the limited public forum and the nonpublic forum weren't all that different, if, indeed, they were different at all.  It was clear, even prior to Martinez, that in both the limited public forum and the nonpublic forum, the State was required to maintain viewpoint neutrality and application of state-imposed content parameters was subject only to review for whether it was reasonable in light of the purposes of the forum.  But is there really no difference between the two now?

Does this category confusion drive anyone but me crazy?


Posted by Lyrissa Lidsky on August 11, 2010 at 02:27 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky | Permalink

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Comments

That is not how I read CLS. Limited public forum always has been a sub-category of designated public forum--I always have seen that as the best reading of Perry, where the Court introduced the designated public forum category, then dropped a footnote that a designated forum could be limited to some sub-set of speakers or subjects. So, when the government designates a non-traditional space as a public forum, it can do so for the public as a whole or "limited" to some portion of the public. That is why McConnell used the term "limited designated public forum" during oral argument--that is the terminology lower courts have used and it always struck me as precise.

On the other hand, can't government discriminate by viewpoint in a nonpublic forum? I thought that was the point of Forbes and Justice Scalia's opinion in Finley?

Posted by: Howard Wasserman | Aug 11, 2010 4:10:11 PM

I certainly believed based on previous cases that the limited public forum was a subset of the designated public forum, too. Even within a nonpublic forum, like the candidate debate at issue in Forbes, the Court said that the State was not allowed to discriminate based on his viewpoint. It went to great length to show that Forbes was excluded because he didn't have enough voter support, not because he had been a member of the American Nazi Party.

Posted by: Lyrissa | Aug 11, 2010 4:34:22 PM

Here's how I would describe the rules for nonpublic forum. The government has broad power to control speech in non public forums. Time, place, and manner restrictions are fine and speakers may be excluded as long as the exclusion is "reasonable and not an effort to an effort to suppress expression merely because public officials oppose the speaker’s view." However, the Court has said that "the right to make distinctions in access" is "implicit in the concept of the nonpublic forum." The designation as nonpublic almost always results in deference to the government actor in deciding who may speak and what shall be discussed. Here's a hypothetical that I think (but am not sure) should come out differently in a limited public forum versus a nonpublic forum. Assume a state sets up a government-sponsored conference to discuss women s reproductive choices. Since the topic of abortion can't reasonably be excluded from the forum's parameters, the exclusion of a speaker who wanted to discuss abortion would be invalid. On the other hand, if the State allowed selected speakers to come to a military base on a case-by-case basis to discuss women's reproductive health issues, it could presumably exclude all discussions of abortion, so long as the exclusion was even handed as to viewpoint (that is, it excluded both pro-life and pro-choice speakers).

Posted by: Lyrissa | Aug 11, 2010 4:49:56 PM

Hi Lyrissa. These category questions have always fascinated me too. As for your two contrasting examples at the end of your last comment, I intuit outcomes similar to yours, but I'm not sure that the difference is that the former setting is a limited designated public forum while the latter is non-public. I've always read the requirements for those two fora as the same -- reasonableness + no-viewpoint-discrim. I think those differing outcomes are explicable simply because in the latter case, the restriction is not clearly unreasonable (I'm envisioning a case-by-case program that involves selected issues speaker-by-speaker, versus a more intrinsically open-ended conference in your former example).

Of course, complicating things even further is the government's ability to argue that in a given case it is the speaker, even if it is using a private speaker as its conduit, in which case it can restrict whatever it likes. (e.g., Rust) The military base example seems to create a bit of an opening for that kind of an argument, too, whereas a conference is much more plainly a forum for private speech.

Posted by: Heidi Kitrosser | Aug 11, 2010 5:37:38 PM

But if the standard is the same, as Heidi suggests, then we're back to the original question: What is the difference between a D/P/F and nonpublic forum? Maybe that a nonpublic forum can be more easily closed up? Maybe the problem is Forbes, where SCOTUS was afraid to call the debate a D/P/F, which it was, even though it would have produced the same result (because the restriction was reasonable and viewpoint-neutral).

I am not convinced Lyrissa's cases don't come out the same way--both restrictions are OK. In a limited public forum (and perhaps in a nonpublic forum), seemingly fine lines can be drawn as to what subjects are allowed in the forum. So all health care except abortion--if government can come up with a vaguely plausible explanation ("too controversial")--is not so unreasonable as a forum definition.

Posted by: Howard Wasserman | Aug 12, 2010 12:49:36 AM

One possible difference between the D-LPF and the NPF is how exclusion based purely on speaker identity should be treated. The Court said in Forbes: "If the government excludes a speaker who falls within the class to which a designated public forum is made generally available, its action is subject to strict scrutiny.” I've been trying to reconcile this with application of only a reasonableness standard to the exclusion of the students in Martinez, and here's a possible explanation I've come up with. If the State opens up a forum for students to discuss “environmental issues,” any exclusion of a student who is clearly discussing an environmental issue is subject to strict scrutiny, but exclusion of the student because his topic is not truly an “environmental issue” is subject to only a reasonableness standard. Buy it? Or is that stuff about speaker identity and strict scrutiny in Forbes (stemming from Kokinda) just dicta that doesn't mean anything really?

Posted by: Lyrissa | Aug 12, 2010 10:37:16 AM

I think I buy it, with a slight twist. It is true that a a D/P/F is treated the same as a traditional P/F--any exclusion or regulation based on content (in the sense of subject matter) must satisfy strict scrutiny. But recent cases have introduced a prior definitional question: What is the scope of the designated forum; that is, how is the forum defined and for what speakers or subjects has the forum been opened? That definition of the forum is what must be reasonable and viewpoint-neutral. And the distinction you describe maps onto these two distinct questions.

So this gives the government two bites at the apple for excluding or controlling speakers in the forum: 1) The forum is not open for this speaker or this speech--and government wins on that so long as the exclusion is reasonable and viewpoint-neutral; and 2) Even if this person is within the forum, our reason for excluding him was either content-neutral or satisfies strict scrutiny. As a practical matter, I think # 1 absorbs # 2; that seems to be what happened in CLS. But this may all be angels on the head of a pin.

Posted by: Howard Wasserman | Aug 12, 2010 3:53:25 PM

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Posted by: NFL Jersey | Aug 13, 2010 10:35:53 PM

I certainly believed based on previous cases that the limited public forum was a subset of the designated public forum, too. Even within a nonpublic forum, like the candidate debate at issue in Forbes, the Court said that the State was not allowed to discriminate based on his viewpoint. It went to great length to show that Forbes was excluded because he didn't have enough voter support, not because he had been a member of the American Nazi Party.

Posted by: Torrent Download | Dec 13, 2010 2:31:17 PM

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