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." — ISKCONOne 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.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.
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!
I've put together a flowchart to summarize the Rehnquist model in practical terms:
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.” [...]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.
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
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.
International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (ISKCON)
Christian Legal Society v. Martinez, 561 U.S. ___ (CLS)
Rohr, M. (2009). The ongoing mystery of the limited public forum. Nova Law Review, 33. p. 299. Retrieved from: http://ssrn.com/abstract=1535587