The Place You Speak
A place where a person speaks, according to the First Amendment, is called a forum. Depending on the type of forum a person chooses to speak in, their speech is protected to varying degrees. The Supreme Court created three categories of forums: traditional public forums, designated public forums, and nonpublic forums. Land, which has traditionally been open to the public to exchange thoughts and discuss public questions, are traditional public forums.
People access traditional public forums to exercise their First Amendment right to express themselves without the fear of government censorship. In these locations, the government may not take part in viewpoint discrimination, but they may enact content neural laws to “setup rules, hours, and policies to facilitate the use of traditional public forums” (Tragger 101). Without a compelling reason, public access cannot be entirely denied to this forum. For example, to “protect privacy, safety, or health interests,” the Supreme Court may “ban public picketing and protests from traditional public forums” (Tragger 102). Strict scrutiny applies to restrictions on speech in traditional public forums whereas the Supreme Court engages in intermediate scrutiny regarding speech regulation of designated forums.
Occasionally, the government creates designated forums, which allow the public to use government spaces or buildings for assembly and expression. Some examples of designated forums are public schools, fairgrounds, or public libraries. For instance, a public school may invite people to express their views on a particular topic at a meeting. While conversing in these designated forums, people have the same level of protection as if they spoke in a traditional public forum. However, they must abide by the content-neutral laws the government imposed on the space. These designated forums are limited by the “times, places or manners” of use to ensure the activities do not “conflict with the primary function of the property” (Tragger 102). In other words, the government may limit the area to specific topics or types of speakers and restrict speech if someone brings up a different topic inconsistent with the purpose of the forum. Spaces not classified as traditional public forums or designated forums are considered nonpublic forums.
Nonpublic forums are spaces not available for public use. The government may restrict speech (from a viewpoint-neutral standpoint) and public assembly because these actions may interfere with the operations of the space. Places such as military bases, post office sidewalks, airport terminals, and prisons are nonpublic forums where the government “behaves more like a private property owner and controls the space to achieve government objectives” (Tragger 102). In contrast, malls and large private parking lots are public forums, which exist on private property.
The Mall of America tried to block Black Lives Matter protests in 2015. According to the Mall of America attorney, Susan Gaertner, “The mall’s opposition to the Black Lives Matter protest is not about their message, but the venue and the protest’s potential for disrupting last-minute holiday shopping” (Holpuch). Although the mall is private property widely used by the public for assembly and expression, in this case, protecting the free expression rights of the protestors imposed the rights of the private property owners when they disobeyed the mall’s content-neutral laws. Therefore, one must be aware of where they choose to exercise their First Amendment rights because of the level of protection changes depending on the type of forum.
Holpuch, Amanda. “Black Lives Matter protest shuts down Mall of America and airport
terminal.” The Guardian, https://www.theguardian.com/us-news/2015/dec/23/black-lives-matter-organizers-protest-mall-of-america Accessed 30 Sept. 2019