Saturday, April 7, 2012

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.'"

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.


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

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