Lingo: Formal Equality and Substantive Equality

A recurring theme in the excellent lecture series "Civil Liberties and the Bill of Rights" by John Finn is the contrast between formal equality and substantive equality. This distinction may apply to discussions about equality of opportunity, equal protection of the law, or just about any other time when a more precise definition of equality is required. In brief:

formal equality — the rules, criteria, process, etc. do not explicitly discriminate

substantive equality — the effect of the rules, criteria, process, etc. is non-discriminatory

Most sports involve formal equality. In a professional baseball game, we want the rules to apply to both teams in the same way, even if this means one team is much more likely to win than the other. But in amateur golf, handicap may be used to give players of different skill levels a roughly similar likelihood of winning; this is a form of substantive equality.

Early women's rights supporter John Stuart Mill argued in favor of formal equality:

"It is not sufficient to maintain that women on the average are less gifted than men on the average, with certain of the higher mental faculties, or that a smaller number of women than of men are fit for occupations and functions of the highest intellectual character. It is necessary to maintain that no women at all are fit for them, and that the most eminent women are inferior in mental faculties to the most mediocre of the men on whom those functions at present devolve. For if the performance of the function is decided either by competition, or by any mode of choice which secures regard to the public interest, there needs be no apprehension that any important employments will fall into the hands of women inferior to average men, or to the average of their male competitors. The only result would be that there would be fewer women than men in such employments [....]" — from The Subjection of Women

In Mill's day, the laws did explicitly discriminate against women. So the least a reasonable society could do, he argued, was to take away these formal barriers and let the skill and strength of individual women be measured against male competitors. Today, formal discrimination against women is (usually) unthinkable in western democratic societies. Yet formally non-discriminatory policies can have discriminatory effects against women. One motivation behind the Family and Medical Leave Act was to help with the situation where women have to choose — in a way men do not — between having children and continuing their careers.

Perhaps the most famous snarky remark about formal equality came from Anatole France:

"The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

(A good quote to recite the next time someone points out that both heterosexuals and homosexuals are forbidden to marry persons of the same sex.)

Another area where the distinction between formal and substantive equality comes up is voter ID legislation. A formally fair process (ID required to vote) can have discriminatory effects (fewer poor or even fewer blacks voting). It's not enough to cite formal equality and brush off the complaint. If there is an imbalance in effect, we need ask if formal equality is all we really care about — as with professional baseball teams — or whether we're concerned enough with the substantive inequality to do something about it.

Conference Notes Day 2

[Day 1 notes here.]

Saturday's notes...

9:30

Peter Railton led off with the questions: Why did Kant write a third Critique? He had already written about pure reason and practical reason, wouldn't that cover everything? Why address judgment separately?

Answer: in order to be responsive to reasons we need some capacity that doesn't reduce to reason and isn't required by reason. The discussion of aesthetics in the Critique of Judgment is meant as an area which highlights the psychological sensibilities that drive what we do with our reasoning.

Railton went on to characterize even ordinary belief as a combination of representation and attitude. (I suppose this is what's meant by "propositional attitude" but I hadn't thought so explicitly about it before.) Adjustments to the strength of our beliefs are then characterized as adjustments to our attitude toward some proposition. Railton put up a diagram of a Bayes-like "tuning circuit" to illustrate this point. When things are working properly, our belief-attitudes should adjust each time we're faced with a confirmation or a discrepancy. I thought about entrenched political and religious divides as being cases where this "circuit" has gone into a runaway cycle of attitude reinforcement, even for what we usually think of as purely descriptive beliefs.

I really liked Railton's presentation of intrinsic value. Using the aesthetics metaphor, we don't need to believe in an ontologically mysterious value in artistic works to make sense of most "intrinsic value" talk. Instead, we can understand it as taking a broader perspective. I can't remember his example, so I'll use troll dolls. Let's say I love troll dolls. As far as I'm concerned, these things are tops when it comes to aesthetic value. But if we take a wider survey of tastes around the world and through time, troll dolls aren't going to make any Top Ten lists. Broad human sensibility isn't strongly attuned to troll dolls, even if my personal sensibility is. Meanwhile, van Gogh paintings do very very well on the broadness test.

If I could sign up for lectures with any of this conference's presenters, Railton would be my immediate choice. He's so casually thoughtful and interacts well in dialogue.

11:15 

Mark Schroeder presented his paper "Tempered Expressivism" which is more specifically about relational expressivism. I particularly like his concise definition of expressivism in this paper:

"The basic idea of expressivism is that for some sentences ‘P’, believing that P is not just a matter of having an ordinary descriptive belief. This is a way of capturing the idea that the meaning of some sentences either exceeds their factual/descriptive content or doesn’t consist in any particular factual/descriptive content at all, even in context."

Schroeder then introduces three labels for expressivist theories. Unrestrained expressivist theories allow any state of mind to be expressed by P. Restrained theories place some kind of limit, e.g. it might have to be a state of mind with which it's possible to disagree. Tempered theories have a special kind of restraint: the state of mind must be "belief involving"; there has to be a descriptive belief in there somewhere. This restriction on tempered expressivist theories helps them deal with traditional challenges to expressivism, such as how to make sense of compositions like, "If lying is wrong, then getting your little brother to lie is wrong." (See "What is the Frege-Geach Problem?").

Next, Schroeder highlights two ways descriptive beliefs can be "involved" which, in turn, leads to two forms tempered expressivism might take: hybrid expressivism and relational expressivism. The primary example Schroeder gives of hybrid expressivism is essentially Daniel Boisvert's Expressive-Assertivism, which I've written about before. There are other forms of hybrid expressivism in the literature. Relational expressivism, by contrast, hasn't really been explored. What's the difference?

hybrid expressivism — "moral sentences express states of mind that consist in both an ordinary descriptive belief and a desire-like attitude"

relational expressivism — "moral beliefs consist in a certain relation holding between one’s ordinary descriptive belief state and some kind of desire-like attitudinal state"

I'm still having a hard time fully grasping the distinction Schroeder is making here. At first, I took relational expressivism to be a more restricted form of hybrid expressivism, but this was wrong. Schroeder writes, "The key insight we’ll need is that hybrid expressivism is really just a special case of relational expressivism." From what I now understand, hybrid expressivist theories are more specific about which belief and which attitude a person must hold in order to accept a given moral sentence. Meanwhile, relational expressivist theories can get away with being less substantive about the identity of beliefs and attitudes in moral statements so long as a certain class of relationship holds between them.

Schroeder does give a rough example of relational expressivism, but then he says it's not a good example (because adding detail to the belief component shouldn't be able to flip the judgment in proper relational expressivist theories) and instead directs readers to Teemu Toppinen's paper "Belief in Expressivism" which will appear along with Schroeder's paper in Oxford Studies in Metaethics vol. 8.

2:15

Steve Finlay and Justin Snedegar presented their paper "One Ought Too Many" which defends the claim that the word 'ought' itself has a more-or-less uniform meaning, as opposed to having significantly different meanings in different kinds of sentences.

For example, suppose there's a party with the door prize of kissing Mary. Bill is holding the lucky ticket.

(1) It ought to be the case that Bill kisses Mary.
  vs.
(2) Bill ought to kiss Mary.

Finlay and Snedegar (F&S) don't insist these two sentences have identical meaning as a whole (we communicate something different when we choose one form over the other). Rather, they argue that this difference can be explained without resorting to 'ought' itself meaning one thing in the first sentence and something else in the second sentence.

What's the difference between (1) and (2)? Well, sentences like (1) are more like an impersonal evaluation of the situation while sentences like (2) are much more directly concerned with an agent's deliberative choice of what to do. These are called evaluative readings vs. deliberative readings respectively. So why do "It ought to be..." forms (tend to) generate evaluative readings and "[Agent] ought to..." forms (tend to) generate deliberative readings? If 'ought' always has the same meaning, shouldn't both readings be equally available for both sentence forms?

F&S suggest that the social and linguistic context of 'ought' can imply different contrast classes for 'ought' to operate on. Certain kinds of contrast classes result in deliberative readings. So sentences like (1) tend to generate contrast classes which yield evaluative readings. Sentences like (2) tend to generate contrast classes which yield deliberative readings. For example:

It ought to be the case that [Bill | Tom | Lucy] kisses Mary.
  vs.
Bill ought to [kiss Mary | ignore Mary | kiss Lucy].

If context suggests these as the alternatives on the table, notice how the second sentence — unlike the first — yields a set of options for a particular agent to deliberate about and choose.

It might seem like F&S are just trading one kind of complexity (multiple semantics) for another kind of complexity (adding the contrast class step), but not if the contrast class step is used in 'ought' semantics anyway, which it arguably is.

4:15

Finally, Connie Rosati gave a talk on what it means for one's life to have meaning. She spent of a lot of time criticizing Susan Wolf's views on the matter, which caused some audience consternation in the Q&A. Rosati's own views are a bit nebulous. She focused on the idea of communicating something through one's life, but didn't want to require that anyone actually receive this communication, nor did she want to allow just any sort of powerfully communicating life to count (someone had dragged out Hitler).

Provocatively, she said her own life isn't meaningful and that other accounts of meaning apply the label far too liberally to average lives. When asked whether this means average lives are meaningless, she also said 'no.' I was baffled. The closest analogy I can draw to this pattern of thinking is the way many religious people reserve "holy" for a few highly revered people or activities, but don't characterize mundane things as "unholy."

Wrap-up

I missed the party Saturday night due to sudden illness and also missed Michael Smith's talk on Sunday morning because I had library class in Omaha (semester complete, yay!). Happily, his talk was loosely based on a paper available online: "The Rational Foundations of Morality."

Overall, I really appreciated the opportunity to hear from writers I already knew a little about (Dreier, Railton, Schroeder, Finlay, and Smith) and become acquainted with some new folks. From a sociological angle, I enjoyed observing the mix of personalities, clothing styles, gender and age demographics, and ratio of bearded vs. unbearded men.

I'll leave you with a quick practical reasoning anecdote from Jamie Dreier's talk. When he bought his coffee on Friday morning, the Starbucks employee insisted on putting the cup on the counter rather than hand it directly to him. He asked why. It's policy, she explained, Starbucks doesn't want to risk liability from burning customers on a bad direct handoff. Jamie held up his coffee and shook it for the audience. It was iced coffee.

Conference Notes Day 1

Today I attended the Practical Reason and Metaethics Conference in Lincoln, Nebraska. I learned that I can identify people surprisingly well after seeing just one photo from a faculty website or book jacket months ago. I also learned that if you want an easy Q&A segment after presenting a paper, avoid having Michael Smith in the audience (who, incidentally, is quite the iPad sketch artist).

9:30

Events kicked off with a presentation by Jamie Dreier titled "Quasi-Realism and the Problem of Unexplained Coincidence." The Problem of Unexplained Coincidence (PUC) is about explaining why we have reliable moral beliefs. For some kinds of anti-realists, this presents no problem because our moral beliefs only need to track our own attitudes, or or own conventions, etc. Moral realists supposedly have the most trouble because there's no obvious — or at least no non-controversial — story about how our beliefs track moral properties that aren't so closely tied up with human psychology or human society.

Dreier's talk, however, was focused on how quasi-realists might handle this problem. He did so by presenting an interesting thought experiment. Imagine a society that speaks a special form of English: one that lacks any evaluative terms. They still have feelings and attitudes similar to our own, but they have to describe (or report) their feelings rather than express them in any other linguistic ways. Presumably, these people wouldn't be faced with the PUC. Dreier went on to advance their linguistic toolkit step-by-step in a quasi-realist fashion until their communicative practices looked pretty much like our own. Since the PUC didn't seem to appear at any of these steps, and it wasn't present on the first step, it would follow that the final stage  — which looks like us — would remain free and clear of the PUC. So actual quasi-realists can, arguably, dodge the PUC.

This thought experiment can be attacked at a number of stages, which Dreier admitted and the audience took as an invitation to do so. And even if the argument itself were totally convincing, Dreier worried we would still be short a satisfying explanation of why the argument works. I would love to read a fleshed-out story of the thought experiment itself. Think The Invention of Lying except with the invention of moral predicates!

11:15

Jonathan Way presented his paper "Reasons as Premises of Good Reasoning." His talk took the form of explaining a promising understanding of what constitutes a reason for action, pointing out a difficulty, then taking his own shot at overcoming that difficulty. I'm not sure I understood him correctly, but I'll give an example anyway.

A promising understanding:

Suppose it's raining. For this fact to count as a reason for me to take an umbrella with me, it must be good reasoning to combine some set of my psychological states with the belief that it's raining and therefore take an umbrella with me.

A difficulty:

Suppose the only available umbrella belongs to the queen and she'll have my head if I take it. I have stronger reason to leave the umbrella alone. So it would seem like my psych states plus a belief that it's raining would not be good reasoning which concludes with me taking the umbrella. But it would be weird to conclude that the fact of rain is not a reason at all for me to take an umbrella.

A proposed solution:

For the fact that's raining to count as a reason for me to take an umbrella with me, it only has to be defeasibly good reasoning to combine some set of my psychological states with the belief that it's raining and therefore take an umbrella with me. It's a kind of reasoning that can lead to bad results (like taking the queen's umbrella).

2:15

Next up, Nomy Arpaly gave a talk that didn't have a title so far as I noticed. The main idea seemed to be that "bad reasoning" can be a matter of something going wrong with beliefs, not necessarily the reasoning itself. Her primary example involved two instrumental beliefs and how they combine with the same desire:

Instrumental belief #1: Putting coins in this Coke machine will produce a Coke.
Instrumental belief #2: Putting coins in this pencil sharpener will produce a Coke.

Desire: a Coke.

A person holding the first belief along with the desire might reason her way to putting a coin in a Coke machine. A person holding the second belief along with the desire might reason her way to putting a coin in a pencil sharpener. Is the first case good reasoning and the second case bad reasoning? Maybe not! Instead, there may just be some problem with the story behind instrumental belief #2 that's messing things up; putting coins in pencil sharpeners doesn't have the right kind of relationship with Coke production.The precise nature of what relationship is needed was, ah, vigorously discussed during the Q&A.

4:15

Finally, Michael Bratman took a read-the-paper-aloud approach to "Why be Means-End Coherent?" As much as I struggled with Way and Arpaly's talks on practical reason, I had a much worse time getting into Bratman's paper. His topic may have simply been too abstract for me to grasp. And it might have helped if I had stayed through the Q&A, but I had to duck out early to see my chiropractor. 

Tomorrow's lineup is: Peter Railton, Mark Schroeder, Stephen Finlay/Justin Snedegar, and Connie Rosati.

Public Forum Doctrine in U.S. v. American Library Association

United States v. American Library Association was a 2003 Supreme Court case that examined the constitutionality of CIPA, the Children's Internet Protection Act.

"[CIPA] is a federal law enacted by Congress to address concerns about access to offensive content over the Internet on school and library computers. CIPA imposes certain types of requirements on any school or library that receives funding for Internet access or internal connections from the E-rate program – a program that makes certain communications technology more affordable for eligible schools and libraries." — http://www.fcc.gov/guides/childrens-internet-protection-act

Basically: filter your Internet or miss out on federal funding.

The American Library Association led a lawsuit against CIPA on the grounds that filtering intended to block unprotected speech also inevitably blocks constitutionally protected speech, which violates the First Amendment rights of public library patrons. This legal argument had two critical points.

1. Internet access in public libraries constitutes a public forum. Therefore content regulations are subject to strict scrutiny.
2. CIPA fails under strict scrutiny because filtering is not narrowly tailored to the government's compelling interest in blocking unprotected speech ("obscenity, child pornography, or material harmful to minors"). 

Despite an earlier U.S. District Court ruling that CIPA was unconstitutional for these reasons, the Supreme Court ruled 6 to 3 in favor of CIPA. Unfortunately the breakdown of opinions was rather complicated:

Opinion of the Court (plurality) — Rehnquist, O'Connor, Scalia, and Thomas
Concurrence — Kennedy
Concurrence — Breyer
Dissent — Stevens
Dissent — Souter, Ginsberg

Since the Opinion of the Court represented a mere plurality rather than a majority, only its judgment — not its rationale on the whole — is authoritative. On the other hand, a plurality of four justices only needs one concurring justice to agree with part of its rationale for that part to count as a majority (authoritative) rationale. One such rationale for finding CIPA constitutional was simply this: Internet access in public libraries does not constitute a public forum.

"Internet access in public libraries is neither a 'traditional' nor a 'designated' public forum." — Opinion of the Court

"The public forum principles on which the District Court relied [...] are out of place in the context of this case. In determining whether the statute's conditions consequently violate the First Amendment, the plurality first finds the "public forum" doctrine inapplicable [...], and then holds that the statutory provisions are constitutional. I agree with both determinations." — Breyer's concurrence

Nothing more really needed to be said before reversing the District Court's ruling. Without classification as a public forum, Internet filtering isn't subject to strict scrutiny and so it doesn't need to be "narrowly tailored." For the sake of argument, however, the plurality went on to comment:

"Assuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled." — Opinion of the Court

This was important guidance for libraries or legislatures interested in avoiding any chance of "constitutional difficulties." Everyone could rest assured that strict scrutiny was off the table, but U.S. v. ALA did not settle the question of which lower standard of judicial review might apply. Breyer and the plurality did not agree on this point:

"Just as forum analysis and heightened judicial scrutiny are incompatible with the role of public television stations and the role of the NEA, they are also incompatible with the discretion that public libraries must have to fulfill their traditional missions. Public library staffs necessarily consider content in making collection decisions and enjoy broad discretion in making them." — Opinion of the Court

"Instead, I would examine the constitutionality of the Act's restrictions here as the Court has examined speech-related restrictions in other contexts where circumstances call for heightened, but not 'strict,' scrutiny--where, for example, complex, competing constitutional interests are potentially at issue or speech-related harm is potentially justified by unusually strong governmental interests. Typically the key question in such instances is one of proper fit." — Breyer's concurrence

So it's unclear whether the selection decisions of library staff are subject to heightened scrutiny or merely rational review. This uncertainty is compounded by the uncertainty of what would happen in any particular instance of applying heightened scrutiny; it's a vague standard.

The Other Four Justices

How did Kennedy's concurrence play into all this? He ignored the question of public forum doctrine and jumped straight into the plurality's hypothetical situation wherein strict scrutiny is applied and CIPA passes anyway because adults can request to have the filter disabled.

Both dissents treated Internet access in public libraries as a public forum then went on to characterize filtering as overly broad — rather than narrowly tailored — for the purpose of shielding children from unprotected speech.

Conflicting Interpretations Today

In the current edition of the American Library Association's Intellectual Freedom Manual, Theresa Chmara writes:

"In sum, public libraries must remain cautious about using filtering. Ultimately, the CIPA scheme was upheld because it was tied to funding and the government conceded that an adult’s request for disabling of the filter could never be denied and did not have to be justified. The Supreme Court also left no doubt that in a case challenging the application of filtering software, a library would be liable if it did not disable a filter to provide access to constitutionally protected material." (OIF, p. 345)

Despite this, a library system in rural Washington State has chosen to filter all computers without the option to entirely disable filtering on request, even when constitutionally protected material stays blocked as a result. Just this week, a U.S. District Court ruled in favor of the library system's choice of filtering policy. The District Court cites U.S. v. ALA to say that strict scrutiny is inappropriate; it also cites a Ninth Circuit decision in support of rational review when government services are allowed to make content choices. Notice how the plurality's support of rational review in the Supreme Court case was not used, because — as shown above — concurring justices did not elevate the plurality rationale to a majority rationale on this point.

On a careful reading of U.S. v. ALA, the constitutionality of refusing to disable filters for adults was left an open question. The plurality opinion and both concurrences brought up the issue of filter disabling only to say that prompt disabling would satisfy any level of judicial review. It's an unwarranted leap of logic to infer that slow disabling (or refusal to disable) would fail to satisfy some level of review. It might, but none of the six justices concurring in judgment actually said so. Breyer made this clear when he wrote:

"Perhaps local library rules or practices could further restrict the ability of patrons to obtain 'overblocked' Internet material. [...] But we are not now considering any such local practices. We here consider only a facial challenge to the Act itself." — Breyer's concurrence

The case from Washington State is likely to be appealed. Must filters be disabled on request? Can public libraries deliberately block constitutionally protected speech? Neither side has reason to give up just yet.

References

Office for Intellectual Freedom (OIF). (2010). Intellectual Freedom Manual (8th ed.). Chicago, IL: American Library Association.

United States v. American Library Association, 539 U.S. 194 (2003).

Metaethics Conference

I will be attending a conference on "Practical Reason and Metaethics" on the 20th through 22nd. Just wanted to let readers know in case anyone is sufficiently close to Lincoln, NE and sufficiently interested in showing up. Can't say I didn't mention it now!

Details here.

Expect some notes during/after the conference.

Public Forum Categories

U.S. citizens always have First Amendment free speech protection, but the details of speech protection change depending on context. Public forum doctrine is a system of analysis developed by the Supreme Court to explain how these changes work on government property or within government channels of communication (see my posts on Hague, Widmar, and Perry). Private contexts aren't addressed by public forum doctrine.

Writing for the Court in Perry, Justice White laid down the three category scheme that still serves as the canonical text for public forum doctrine. Unfortunately, White's category descriptions raised as many questions as they answered. Rather than slowly build a more specific category model through subsequent cases and controversies, I will present one category model as a reference — the one I consider to be the best — then show how it still fails to capture all the ways federal courts treat public forum doctrine.

The Rehnquist Reference Model

I'm naming this model in honor of Chief Justice Rehnquist because of his remarks in International Society for Krishna Consciousness v. Lee (ISKCON). Paragraph breaks added, in-text citations removed:

"These cases reflect, either implicitly or explicitly, a "forum based" approach for assessing restrictions that the government seeks to place on the use of its property. [...] Under this approach, regulation of speech on government property that has traditionally been available for public expression is subject to the highest scrutiny. Such regulations survive only if they are narrowly drawn to achieve a compelling state interest. [...]

The second category of public property is the designated public forum, whether of a limited or unlimited character - property that the State has opened for expressive activity by part or all of the public. [...] Regulation of such property is subject to the same limitations as that governing a traditional public forum. [...]

Finally, there is all remaining public property. Limitations on expressive activity conducted on this last category of property must survive only a much more limited review. The challenged regulation need only be reasonable, as long as the regulation is not an effort to suppress the speaker's activity due to disagreement with the speaker's view." — ISKCON

One virtue of the reference model is its comprehensiveness. All public property goes into one of these three categories. Because the third category is often labeled "nonpublic forum," other models sometimes distinguish between "nonpublic forum" and "nonforum property"...but the same First Amendment rules are in effect either way! I suspect the motivation for drawing this distinction is the oddity of calling public property a "forum" when it doesn't serve as a communication platform. We can fix this by rephrasing "nonpublic forum" as "non-(public forum)" as Rehnquist implies. Occam's Razor at work.

Another virtue of this model is separating all public forums into "traditional" versus "designated." Some other models have the nasty habit of contrasting "traditional" with "limited." These are orthogonal concepts! On one axis: traditional vs. designated. On another axis: limited vs. unlimited. This gives us four possibilities:

Traditional, limited public forum — A public park in which only local residents can stand on a soapbox would hypothetically count, but I don't think anything of this kind actually exists.

Traditional, unlimited public forum — A public park in which anyone can stand on a soapbox.

Designated, limited public forum — Public university meeting rooms open to any student groups, as in Widmar.

Designated, unlimited public forum — This is probably the intent of "free speech zones" on university campuses. Any member of the public can use them as they would the traditional, unlimited forums of streets and parks. Guess this explains the preachers!

Since the first of these four possibilities is (I think) an empty set and since most designated forums are limited to particular groups of citizens, it's an understandable mistake to think in terms of "traditional" versus "limited." Still, I cringe every time.

I've put together a flowchart to summarize the Rehnquist model in practical terms:

The primary (but not sole) rival to the Rehnquist model is one I will call the O'Connor model. For convenient comparison, I'll give its flowchart first, then get into details:

The glaring difference is that — according to the O'Connor model — public forums are always unlimited. In other words, any forum designated for a particular class of speakers is automatically not a public forum at all, which means content regulations are only subject to rational scrutiny.

In Cornelius v. NAACP Legal Defense and Education Fund, Justice O'Connor wrote:

"Because a principal purpose of traditional public fora is the free exchange of ideas, speakers can be excluded from a public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest. [...] Similarly, when the Government has intentionally designated a place or means of communication as a public forum speakers cannot be excluded without a compelling governmental interest. Access to a nonpublic forum, however, can be restricted as long as the restrictions are 'reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker's view.'"

While this does have the virtue of simplicity — public forums are always open to the general public! — it makes nonsense of speaker-class limited public forums such as the student organization facilities in Widmar. Instead of declaring the entire notion of limited public forums void, O'Connor ignores the idea and initiates a second, divergent line of judgments. This alternative model shows up somewhat mutated in the 2010 case Christian Legal Society v. Martinez (paragraph breaks added, in-text citations removed):

"In conducting forum analysis, our decisions have sorted govern­ment property into three categories. First, in traditional public forums, such as public streets and parks, “any restriction based on the content of . . . speech must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest.” [...]

Second, governmental entities create designated public forums when “government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose”; speech restrictions in such a forum “are subject to the same strict scrutiny as restrictions in a traditional public forum.” [...]

Third, governmental entities establish limited public forums by opening property 'limited to use by certain groups or dedicated solely to the discussion of certain subjects' [...] As noted in text, '[i]n such a forum, a governmental entity may impose restrictions on speech that are reasonable and viewpoint-neutral.'" — CLS, Opinion of the Court, Footnote 11

Here, the phrase "limited public forum" is retained, but it is subject to the standards normally applied to nonpublic forums. I traced the justifying citations in CLS a few hops back to O'Connor's statement.

Conclusion

Not even Supreme Court justices have a clear, shared understanding of public forum doctrine. Outside of forums expressly open to all citizens for any communicative purpose, it's difficult to predict whether the Court will require strict scrutiny of government regulation of content. Much depends on whether the Court follows ISKCON or CLS for its three-category model.

References

Cornelius v. NAACP Legal Defense & Education Fund, 473 U.S. 788
International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (ISKCON)
Christian Legal Society v. Martinez, 561 U.S. ___ (CLS)

Suggested Reading

Rohr, M. (2009). The ongoing mystery of the limited public forum. Nova Law Review, 33. p. 299. Retrieved from: http://ssrn.com/abstract=1535587

Perry Education Association v. Perry Local Educators' Association

A federally guaranteed right to free speech was developed in a series of U.S. Supreme Court cases starting from the surprisingly late date of 1939 (see my posts on Hague and Widmar). In 1983, Perry Education Association v. Perry Local Educators' Association was used by the Court as an opportunity to summarize the overall structure of public forum doctrine.

PEA versus PLEA

Perry Education Association (PEA) and Perry Local Educators' Association (PLEA) were two teachers unions in the school district of Perry Township, Indiana. When the school board recognized PEA as the exclusive representative for the district's teachers, PLEA was told that it could no longer use the district's internal mail system to communicate with educators.

PLEA sued in federal district court on First Amendment grounds and lost. However, the Court of Appeals reversed in PLEA's favor. The U.S. Supreme Court determined that First Amendment rights had not been violated, and reversed the reversal. PLEA could be excluded from the school district's internal mail system.

This judgment was based on a three category approach to speech rights on government property or — as in this case — using government channels of communication. I'll be quoting these definitions in full (minus in-text citations) because they are so heavily referenced in later cases.

First Category

"In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which '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.' [...] In these quintessential public forums, the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. [...] The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication."

Second Category

"A second category consists of public property which the State has opened for use by the public as a place for expressive activity. The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. [...] Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest."

Third Category

"Public property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the 'First Amendment does not guarantee access to property simply because it is owned or controlled by the government.' [...] In addition to time, place, and manner regulations, the State 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. [...] As we have stated on several occasions, '[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.'"

So...Mailboxes

The Court determined that school district internal mailboxes were in the third category. They obviously don't fall in the first category, but PLEA argued that since outside parties had sometimes been allowed to use it, the mail system had been opened up for public use. The Court drew a distinction between the hypothetical situation where anyone could use the mail without asking permission and the actual situation where the school district had been granting permission at its discretion. Occasionally letting some members of the public use a facility does not transform it into a public forum.

Even in the third category, isn't there something wrong with letting one teachers union have access while denying it to a rival teachers union? The Court decided the two aren't alike because PEA had official status while PLEA did not.

"Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity. These distinctions may be impermissible in a public forum but are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property. The touchstone for evaluating these distinctions is whether they are reasonable in light of the purpose which the forum at issue serves."

I believe a fair analogy here would be the way current Presidents of the United States have access to government channels of communication that mere Presidential hopefuls do not, e.g. the White House press room. Of course this exclusive access does not extend to parks and other traditional or designated public forums.

Not So Simple

The category definitions above may seem to have clarified public forum doctrine. No such luck. If you do a web search on the types of public forums, you will find a number of short explanations that wildly disagree with each other. You'll also find scholarly papers explaining why public forum doctrine is a mess. Basically, if you think it makes sense, you haven't read enough to be confused again!

Now that I've gone over the most important background cases, my next post will unclarify public forum doctrine by drawing on definitions from Perry to the present.

References

Perry Education Association v. Perry Local Educators' Association, 460 U. S. 37 (1983)

Widmar v. Vincent

To recap, Davis (1897) gave state governments practically unlimited discretion to decide what may be said in public and by whom. Hague (1939) turned things around by affirming that streets and parks are traditionally open to free speech, subject only to regulation necessary to maintain peace and order.

Widmar v. Vincent (1981) is an informative example of the way free speech rights subsequently expanded beyond streets and parks. It's also an important case for religious freedom.

Cornerstone

Don't worry about the names Widmar and Vincent. The real contention was between the University of Missouri at Kansas City (UMKC) and an evangelical Christian student group called Cornerstone. As an officially registered group, Cornerstone used university facilities for meetings from 1973 to 1977. At this point, UMKC denied further use of facilities, citing a university regulation against use of facilities for "purposes of religious worship or religious teaching."

Cornerstone challenged this regulation in district court, and lost. Not only could the university apply such a rule, the district court concluded that UMKC must discriminate against religious groups. Between letting religious groups use the facilities and collecting an activity fee from students to fund this practice, the district court believed the Establishment Clause had been violated.

The Eighth Circuit Court of Appeals disagreed and reversed the district court's judgment. The Supreme Court sided with the Circuit Court. Cornerstone and other religious student groups were guaranteed access alongside non-religious student groups.

Forum Creation

"Through its policy of accommodating their meetings, the University has created a forum generally open for use by student groups. Having done so, the University has assumed an obligation to justify its discriminations and exclusions under applicable constitutional norms. [...]

Here UMKC has discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion. These are forms of speech and association protected by the First Amendment. [...] In order to justify discriminatory exclusion from a public forum based on the religious content of a group's intended speech, the University must therefore satisfy the standard of review appropriate to content-based exclusions. It must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end."

Streets and parks are public forums by tradition, but the government can choose to create additional public forums. Notice how this implies that not all government property is a public forum in which First Amendment protections are in full effect. We'll look at these categories in more detail in a future post. For now, I want to point out a complication to keep in mind: the created public forum is only open to student groups, not the general public. It's not simply that the category traditionally held by streets and parks has been extended to university meeting facilities. The term "limited public forum" is used farther down the page to describe this situation.

Strict Scrutiny

Freedom of speech is not absolute. When another "compelling state interest" is at stake, speech may still be regulated if the regulation is "narrowly drawn" to protect the other interest. This process of strict scrutiny usually ends up striking down regulation as being unnecessary or too broad.

In this case, the Establishment Clause was offered as a compelling state interest which necessitated excluding religious student groups from university facilities even if they would normally have the right to religious expression. The Court responded by saying the Establishment Clause was not being violated so no such regulation was necessary.

Nuancing the Separation of Church and State

A common but simplistic understanding of the Establishment Clause is that government may not benefit religious groups in any way. The so-called lemon test given in Lemon v. Kurtzman is the Court's three-pronged standard for these situations:

First, the [governmental policy] must have a secular legislative purpose...

Both lower courts agreed that opening a forum for student gatherings — religious and nonreligious alike — would serve a secular purpose.

second, its principal or primary effect must be one that neither advances nor inhibits religion...

However, the university and the district court argued that opening the forum to religious expression would have a primary effect of advancing religion. The Supreme Court held that any such effects are incidental — not primary — to opening a forum for all student groups. Nor could the university be reasonably understood as giving special approval of religion; no one assumes that the university approves of every political student group's viewpoint.

finally, the [policy] must not foster `an excessive government entanglement with religion.'

Since the district court didn't claim excessive entanglement was an issue, the Supreme Court didn't need to argue otherwise. Lemon test passed! The Court concluded:

"Having created a forum generally open to student groups, the University seeks to enforce a content-based exclusion of religious speech. Its exclusionary policy violates the fundamental principle that a state regulations of speech should be content-neutral, and the University is unable to justify this violation under applicable constitutional standards."

Justice Stevens Agrees, Sort Of

Though he came to the same judgment, Justice Stevens rejected the public forum reasoning of the other seven judges who supported the opinion of the Court. He snarkily pointed out the oddity of treating a forum "from which the public may be excluded" as a "public forum." In the interest of academic freedom, he believed state universities should be free to discriminate based on content in order to fulfill their educational mission as they see fit.

"Thus, I do not subscribe to the view that a public university has no greater interest in the content of student activities than the police chief has in the content of a soapbox oration on Capitol Hill."

Even so, Stevens held that universities may not engage in viewpoint discrimination within the subject matters open for discussion. And in this particular case, the university based its exclusion on faulty reasoning about the Establishment Clause. Without any valid reason given for its exclusionary policy, UMKC's policy was, he held, invalid.

References

Widmar v. Vincent — 454 U. S. 263 (1981)