[NOISE] In discussing freedom of speech, first I talked about why do we protect freedom of speech as a fundamental right? Next I talked about some basic aspects of free speech methodology. Then I considered what types of speech are unprotected and less protected. There's one other aspect of freedom of speech that I want to focus on, and that involves what places are available for speech? Many First Amendment cases involve a claim of a right to use government property for speech purposes. When is there such a right? Well, the Supreme Court has dealt with this by categorizing different types of government properties, and having different rules for each. So, let me tell you about these categories, and the kinds of cases that arise under them. The Supreme Court has said that some government properties are public forums. Public forums are government properties that the government is constitutionally required to make available for speech. Sidewalks and parks are the classic public forum. The Supreme Court has said that there is a First Amendment right to use a sidewalk or a park for speech purposes. In Hague v CIO in the 1930s, the Court said that sidewalks and parks have been held available for speech since time immemorial. But of course that doesn't mean there's a right to use any sidewalk, any street, for speech purposes at any moment in time. There's no right to have a demonstration that blocks a freeway in the middle of rush hour. The Court has said that when the government regulates speech in a public forum, the regulation has to be both subject matter and viewpoint neutral, or it is to meet strict scrutiny. Earlier I spoke of these concepts of subject matter and viewpoint neutrality. If the government is regulating speech base on the topic or based on the ideology, the government's going to have to meet strict scrutiny. Assuming the regulation is content neutral, subject matter and viewpoint neutral, then the government can regulate the speech if it's a time, place, and manner restriction that serves an important government interest, and leaves open adequate alternative places for communication. I am sure you've heard the phrase, time, place, and manner restriction. It relates to the ability of the government to regulate the use of its property, even when its property's a public forum, for speech purposes. It can regulate the time when the speech occurs, the place where it occurs, the manner where it occurs, so long as there's an important interest and so long as it leaves adequate alternate places for communication. Take a college campus. The campus can say, here are the places for demonstrations and the hours where you can have demonstrations. But say in a classroom building, or 100 feet of a classroom building, you can't have demonstrations where classes are in session because it might disturb that. I know we'd say here there's an important interest, but there's the adequate alternative places for communication. An example, case called Saia v New York. City adopted an ordinance saying no trucks with sound amplification equipment could operate in residential neighborhoods at night time. That was a time, place, and manner restriction, served important government interest, and it left open adequate alternate places for communication. So all of us have a right to use some government property, like sidewalks and parks, but we don't have an absolute right to use it for speech. The government can regulate so long as it's either content neutral and an appropriate time, place and manner restriction, or its content base meets strict scrutiny. There's another kind of government property which the Supreme Court has referred to as designated public forums. Designated public forums are government properties that the government could close to speech, but that the government voluntarily chooses to open to speech. Here is an example that comes up all the time. Public school facilities, evenings and weekends. Public schools could close their facilities evenings and weekends entirely. But imagine that a public school decides to open its facilities evenings and weekends to community groups. By doing that it's created what the Supreme Court calls a designated public forum. It's a place the government cold close the speech, but that the government voluntarily affirmatively opens to speech. The rules for public forums are identical to the rules for designated public forums. So long as the government chooses to open the places to speech, the government has to follow the rules for public forums. If it then wants to close the places to speech, then it's different. The third type of government property are called limited public forums. These are government properties that the government opens to only some speakers and messages. The government doesn't open the place to all speech, the government says we're going to only open this to some speakers and some messages. I'll give you an example, this case called Lehman v City of Shaker Heights. It's now 40 years ago. Shaker Heights, city in Ohio, it has a commercial bus service. It said it would allow commercial ads on its city buses, but it wouldn't allow political ads on its city buses, and the Supreme Court upheld this is constitutional. The Court said that the city was opening its buses to only some topics, it was creating a limited public forum. And the Supreme Court said that a limited public forum is subject to government regulation so long as the government's action is reasonable and viewpoint neutral. Notice the Shaker Heights ordinance quote that was reasonable, and protecting the sensibility of bus riders in some way, and the Court said, is viewpoint neutral, it prohibits all political ads. Finally, there are nonpublic forums. Nonpublic forums are government properties that the government can and does close to all speech activities. Let's go to nonpublic forums. The government can regulate so long as it's action is reasonable and so long as it's viewpoint neutral. Here's some examples of what are nonpublic forums. These are places where the government can prohibit all speech, so long as it's reasonable and viewpoint neutral. Military bases, even public areas of military bases are nonpublic forums. I argued a case in the Supreme Court a couple years ago, United States v Apel, about the ability to protest on public areas of military bases, and I lost by the close margin of nine to nothing. Military bases are nonpublic forums. Areas outside prisons and jails are nonpublic forums. The Court has for said for the sake of security, the government can regulate speech outside prisons and jails. Sidewalks on post office property. In Kokinda v United States in 1990, the Court said sidewalks on post office property are a nonpublic forum. Sidewalks are usually the quintessential public forum, but not if they're on post office property. Or an example that affects me, and I'm sure many of you often, airports are nonpublic forums. In International Society for Krishna Consciousness v Lee, in 1992, the Supreme Court said that airports are nonpublic forums. So the government, the Court said, can prohibit solicitation of money in airports. Interestingly the Court also said the government can't prohibit distribution of literature in airports. The Court said that fails rational basis review. So if someone wants to claim a right to use government property for speech purposes, the Court will ask, is it a public forum, a designated public forum, a limited public forum, a nonpublic forum? And the rules access depend on that. I've just been talking about government property, what about privately owned property? Is there a First Amendment right to use private property, like private shopping centers for speech purposes? The answer to this is not clear. There is no First Amendment right to use private property, like privately owned shopping centers, for speech purposes. Initially, in a case called Logan Valley, the Supreme Court said, private shopping centers are like what the town square used to be. They're a crucial place for disseminating a message. But then, in Hudgens v NLRB in 1972, the Court overruled Logan Valley. The Court said, private property isn't governed by the Constitution. To go back to a concept we discussed earlier, there's no state action, there's no government action, so there's no First Amendment right to use private property. Now some states like California, under their state constitutions, they found a right to use private property for speech. States can always provide more rights than the United States Constitution, but under the United States Constitution, there is no First Amendment right to use private property, like privately owned shopping centers for speech purposes. This then completes my discussion of freedom of speech. I've talked about why we protect speech. I've talked about the basic methodology of the First Amendment. I've discussed the categories of unprotected and less protected speech. And finally I've considered when is there a right to use government property for speech purposes?
