OK.
Welcome, everybody.
Hello.
We're doing forum analysis.
This is a review.
We've done this in
class, but I wanted
to make a video for
you because it's not
well-covered in the Jamar book.
I'm not sure it's covered
at all in the Jamar book.
And it's hard, so I want to
kind of walk you through this
and see where we are.
We're going to do a
little work in here,
then we're going to
take it on the road.
Let's get our big
word up here first.
Forum analysis.
And we're excited about this,
I'll put an exclamation point.
All right.
Forum analysis.
What we're looking at here
is government properties,
different kinds of
government properties,
and how the First
Amendment works on them.
We're going to start with
the traditional public forum.
Traditional public forum.
Traditional public forum, the
court has said, is a place--
and here's the
language of the court--
time out of mind has been
reserved for free speech.
Now what is this place?
Well, things like sidewalks
or streets or public parks
are the typical locations.
But there may be others.
We don't really know.
The touchstone here is whether
the area, the government
property, has been reserved for
speech for a long, long time.
Again, time out of mind.
Parks, sidewalks, and streets,
the court says, have been.
Those are traditional
public forums.
On the other end of the spectrum
we have non-public forums.
Non-public forums.
Non-public forums are
the exact opposite
of traditional public forums.
Non-public forums are government
property that have never
been open to free speech.
These are places like, maybe
most obviously, prisons
or military bases or government
office buildings or schools.
These places have a
particular purpose,
and what the court has said
is if the government wishes,
the government can
restrict speech
in those locations for the
purpose for which the locations
are intended.
Government office building?
Well, government employees do
have some free speech rights,
and we'll cover that as well.
But as a general
matter, you can't
hold a protest in a
government office building.
The government office
building is not
open to free speech
in the same way
that the public park right
outside of the government
office building might be.
These are non-public forums.
Now traditional public
forum, non-public forum,
they come with two
different rules.
Let's go through
those rules before we
complicate the picture.
The traditional public
forum the government
can regulate using time,
place, and manner, regulations
of speech that are
content neutral
and satisfy that time, place,
and manner intermediate level
scrutiny test.
Now we've already
been through the test
in a different context.
It's the same test here.
Public forum time,
place, manner test.
What's important
for our purposes
is that the regulation in
the traditional public forum
has to be content neutral.
In the non-public forum, the
rule's a little bit different.
In the non-public forum, the
government can regulate speech,
but it can't regulate it in a
way that is viewpoint-based.
So the government regulation
in a non-public forum
has to be viewpoint neutral.
That begs the
question, of course,
what's the difference
between content-based speech
and viewpoint-based speech?
Well, I'll say very
briefly now, but then we're
going to illustrate it a
little bit later in the video
and go through this in a
little more careful detail,
and actually drill down a
little bit into the difference.
So a content of speech might be
something like political speech
or religious speech or speech
about your school or speech
about your family,
something like that.
Viewpoint-based speech is
a viewpoint on a content.
So if the content
of speech is, say,
political speech,
viewpoint-based speech
might be Republican
speech or Democrat speech
or Green Party speech, or even
politically independent speech.
If the content is
religion, the viewpoint
might be Christian speech
or Jewish speech or Buddhist
speech or Islamic speech
or atheist speech.
You get the idea.
Now that kind of
oversimplifies things, as we'll
see later in the video.
But for now, I think
that'll do, the difference
between content-based
and viewpoint-based.
Now, let's mess up the
picture a little bit.
We know there's a
traditional public forum
and we know there's
a non-public forum.
But a couple of
things can happen
that we need to watch out for.
One is when the government opens
up a non-public forum entirely.
The government can do that.
The government can
take a non-public forum
and open it up and designate
it as a public forum,
in other words, take
a non-public forum
and designate it
as a public forum.
We call this a
designated public forum.
What's the rule for
designated public forum?
Well, maybe you won't
be surprised to learn
that it's exactly
the same rule as
for a traditional public forum.
It's that time, place, and
manner intermediate scrutiny
test.
But again, the key part that
we're concerned about now
is the content neutrality
of the regulation.
So a government that
might take, for example,
a school or a
government hospital,
or maybe a government
office building
that's no longer being
used for that purpose,
and transform it into a public
forum, an area for free speech.
Any commerce, any time.
Come and have your speech.
That's perfectly fine.
We call that a
designated public forum.
And we need to look for the
time, place, and manner test
for any government regulation,
the intermediate scrutiny,
and content neutrality.
The other thing the
government might
do with a non-public
forum is open it up
not entirely to speech, as it
did in the designated public
forum, but open it up maybe
just a wee little bit speech.
When the government
does that, it's
creating what's called
a limited public forum.
Limited public forum.
Now let me just say
something about the language.
The designated limited, this
can all be a little confusing.
I'm using the language
of the court itself,
and so it's important
to understand
designated versus limited.
Designated simply means you're
going full force public forum.
Limited means you're
opening yourself
up a wee little bit to some
speech, but not all speech.
When the government
opens up a building,
say a school, as a
limited public forum,
and maybe allows civic
groups to come in
to use the school
building after hours,
the rule is the same as
for a non-public forum.
The government regulation
has to be viewpoint neutral.
So if a public
school decides, you
know what, the
community really could
use our space after hours.
After we're done
with it, why don't we
just invite the community
in first come first serve?
Perfectly fine.
If the government does
that, as it turns out,
the government can discriminate
by content, but not
by viewpoint.
So for example, if the
government did that,
if the government created
a limited public forum
in a school or maybe
the side of a bus
or on the side of the subway,
or some other non-public forum,
the government could
say no political speech,
but we will allow
commercial speech.
What it couldn't do is
say no Republican speech,
but we will allow
Democrat speech.
Reason why is because
politics is content,
and in a limited public
forum, you can discriminate.
The government can
discriminate by content,
but it can't discriminate
by viewpoint.
That's the rule.
So traditional public
forum, non-public forum.
Non-public forum turning into
a public forum by designation
gets the same
content-based rule.
Non-public forum turning
into a limited public forum
gets the viewpoint-based rule.
Now we still have
a big problem here,
and that's what I hope we're
going to try to go solve.
That is, what's the difference
between content-based and
viewpoint-based speech?
All right.
Why don't you guys come with
us, and we're going to go
take this on the road and
see what we can figure out.
OK.
Hey, everybody.
Hey, here we are.
So this is new.
We're in the State Street Lobby.
You guys want to
get-- just for proof--
John Marshall Law School.
We see that, Right OK.
State Street Lobby.
We're going to go outside.
Come with me.
OK.
Come on this way.
It's cold out today, but
I still talked my friends
Joe and Johann into coming
and doing this video with us
out here in the park.
So we're walking
down State Street.
We're going to the
public park over here.
I want to show you guys
a couple of things.
OK.
There's a ton of stuff
out on the street
that has everything to
do with forum analysis.
We're going to take
it one step at a time.
We're going to
start with the easy
and then get to the
more interesting stuff.
Come on, let's do it.
OK.
Here we are in this public park.
You guys are familiar.
You probably hang
out here, right?
So this is a public park
right outside the law school.
This is one of those places
that time out of mind
has been reserved for public
speech, a public park.
The government can't regulate
speech in a public park
except in an ordinary time,
place, and manner restriction.
And it's got to be
content neutral.
So for example, the
government can say,
you can only speak in the
public park between, say,
9:00 AM and 6:00 PM.
No protests in the park except
between 9:00 AM and 6:00 PM.
The reason why?
Well, that's a content
neutral rule on speech.
But what the
government can't do is
say, for example, no
political speech in the park.
So for example, if I had--
this is a really lame poster,
and I'm sorry about that,
but check it out.
If I had this poster,
and I want to have
a political discussion
in the park,
this is what I want to do.
And the government comes along.
They say, you can't have
a political discussion
in the park.
Well, that's invalid.
They can't do that.
But even more so,
if I wanted to have
a viewpoint-based discussion in
the park, this is what I want.
They can't do that, either.
Viewpoint is a kind of
content, so the government
can't regulate by that, either.
We'll see that more in a second.
But in the meantime, why
don't you come with me?
I want to show you a couple
of other things, too.
It's really cool.
First, guys, check that out.
You see the CTA trains up there?
What do you think?
The side of the CTA trains,
are they public forums,
or are they non-public forums?
Can the government
regulate speech
on the side of
CTA trains or not?
Well, they're probably
non-public forums.
In fact, we can
say with certainty
they're non-public forums.
What that means is if
the government wants
to regulate speech on the
side of the CTA train,
it can say you can
buy advertisment
on the side of the CTA train
for commercial purposes,
but not political purposes.
That's a content-based
restriction,
and they can regulate
a non-public forum
based on content.
But what they can't do is
say Republicans can buy ads
but Democrats can't.
Same principle.
Let's go check
something else out.
I'll show you this.
Bus, same thing.
Check that out.
Get to the Center
of Architecture,
for the Architecture Center
on the back of that bus.
Well, you know what
the bus probably said,
you can put commercial
advertisement on the bus,
but you can't put political
advertisement on the bus.
That's OK in a non-public
forum, the side of the bus.
And remember, the bus
is government property.
It's public transportation.
So that's why they can
regulate on the bus.
You want to see another example?
Come here.
Check this out.
You guys ride Divvy bikes?
You know about Divvy bikes?
OK, so this is a Divvy bike.
It's government property.
Look at the advertisement on it.
An advertisement for
Blue Cross Blue Shield.
Divvy probably has a rule that
says you can put commercial
advertising on the
side of our bikes--
these are non-public forums--
but no political advertisement.
And they probably have some
sort of content neutral rule
that says something like
first come, first serve.
You gotta pay a
certain amount of money
for your advertisement.
That kind of thing.
But what they couldn't
do is they couldn't say,
you can put a pro-health
Insurance sign
on the side of the
bike, but you can't
put an anti-health insurance
sign on the side of the bike.
Why?
Well, you already know why.
That's a viewpoint-based
restriction on speech.
Let me show you just
one other thing.
Come here.
Can you guys get a shot of that?
So that's the public library,
the Harold Washington Center.
We know that public library.
What you think a
public library is?
Public forum?
Non-public forum?
Well, here's the thing.
The sidewalks outside
the public library
are probably a public forum.
Inside the public library,
probably a non-public forum.
And the reason why is
because the library
is designed for the purpose of
reading and looking at books.
You can't have
protests in a library
when you're reading
and looking at books.
So the government
could discriminate
by content in the
library, but it
couldn't discriminate
by viewpoint
in the non-public
forum of the library.
OK let's go back to the school.
Subway stations, same thing.
Non-public forum.
You go into a
subway station, you
might see particular kinds of
speech in a subway station.
Probably not the sort of
thing time out of mind
is reserved to public speech.
They're probably
non-public forums,
which again, means the
government can discriminate
by content.
We can allow
commercial advertising.
We can allow, say,
advertising for civics
purposes or civil
society purposes,
but not for political purposes.
What they can't do is
discriminate by viewpoint.
So they can't say something
like, no Republican speech,
but you can have
Democratic speech.
Or no pro-choice speech,
but yes, pro-life speech.
That kind of thing.
Here we are.
We're on the sidewalk outside
of John Marshall Law School.
You can get a picture
of the school.
And here's my friend--
Eric?
Yes, Eric.
Eric, Steve.
Nice to meet you.
How you doing?
OK, so Eric's going to
help us out with us.
We're on a sidewalk.
This is one of those places.
Time out of mind has been
reserved for public speech.
It's a public forum.
What that means is the
government can't regulate it.
Now my friend Eric here is
not a government officer.
He's a John Marshall
officer, and John Marshall
is a private
organization, which means
I don't have any free
speech rights against Eric.
The First Amendment
doesn't apply.
Remember the state
actor doctrine.
But let's pretend for a
second that he is a government
officer.
I'm going to go
back to my signs.
What I'm going to say is,
let's talk politics out here
on the sidewalk.
Now Eric's going to come up and
Eric's going to say, hey, dude,
you can't talk politics
on the sidewalk.
Hey, dude, you cannot talk
politics on the sidewalk.
OK, did you get that?
Say it a little
louder into the mic.
Hey, dude, you cannot talk
politics on the sidewalk.
OK.
He said I can't talk
politics on the sidewalk.
And he's going to
take my sign, and he's
going to arrest me, right?
Oh, sweet.
Really?
You want it to go
through, or what?
Oh, yeah.
Yeah, for sure.
You have the keys, right?
Yes, I do.
OK.
OK, awesome.
So look.
I was making a political
speech and I'm arrested.
That's a violation of
the First Amendment.
No content-based
restriction on speech
in the traditional public forum.
Even more so-- it's OK.
I got it.
Remember my other sign?
You want to help me out?
OK.
Officers don't usually do
this, but today they are.
So this is viewpoint-based
restriction on speech.
Eric, tell me I can't
talk Democratic politics
on the street.
I can't talk Democratic
Socialist politics.
You cannot talk Democratic
Social politics.
Yeah, did you get that?
OK, good.
And I'm still arrested, right?
Viewpoint-based restriction,
even worse than content.
OK.
How often do you
guys get to do this?
Video shoots?
No, handcuffs.
Handcuffs?
Trainings, and if we have to
go ahead and put it on someone,
then we go ahead and
put it on someone.
But we usually carry our
keys with us already,
but I was ready to head out,
and they told me to come down
for this photo shoot.
Dude, I've got some
students that I would
like to see you put these on.
Would you do that for me?
Put 'em on some students?
Yeah.
I would have to go ahead
and let my boss first
know if it's OK to
go ahead and put it
on the students real quick.
You got to get permission
for that kind of thing?
It's not enough for a
professor to tell you?
Pretty much.
No?
We would have to
let him know what
are we going to be doing
for the video shoot.
All right.
All right.
All right, awesome,
guys, thanks.
I really appreciate it.
Thanks for getting me out.
Hey, how you doing?
Good, how are you?
Good.
What's up with the--
Yeah, we're just doing First
Amendment forum analysis.
Nice.
Yeah.
On the street.
That's awesome.
Yeah, it's pretty awesome.
Experiential learning
at its finest.
Yeah, yeah, yeah, exactly.
OK, guys.
Check this out.
So here's an advertiser
for New Buffalo, Michigan.
Great place.
I love New Buffalo, Michigan.
But look where it is.
This is on government
property, non-public forum.
What's the government rule?
Well, we don't know what it
is, but we might reasonably
guess that the
government says you
can do commercial advertising,
or maybe something like tourist
advertising on the bus stop.
But you can't do religious
advertising, for example.
Now when we start talking
about religious advertising,
things are going get a
little more complicated.
We're going to go inside
and take a look at that.
But for now, non-public forum.
And there's probably
a government rule
that says it's OK to do
commercial advertising, not
OK to do other
content-based advertising.
And that's perfectly fine.
What the government
rule couldn't say
is, you can advertise
for, say, New Buffalo,
but you can't
advertise for Las Vegas
because that would
be viewpoint-based.
So it can't make
viewpoint-based regulations
in the non-public forum.
OK.
You guys have been
really, really good.
I just want to do one
more thing because it's
starting to get cold out here.
Take a look at that.
Those two big black
buildings right there,
those are the federal courts.
Non-public forum.
The sidewalks on
the outside of them,
that park by the post office,
awesome park over there,
those are public forums.
But inside that building, that's
a government office building,
non-public forum.
In the park outside,
the government
can't regulate
speech by content.
Inside, it can, but it can't
regulate it by viewpoint.
OK.
I'll tell you what.
I think we've been
out here long enough.
You guys want to go inside?
You ready?
Let's do it.
OK.
OK.
Hey, everybody.
So here we are in a classroom
at John Marshall Law School.
And we're going to be
quiet because that's
what you do in a classroom.
Now we're at John
Marshall Law School, which
is a private school, so there's
no First Amendment protection
here.
Again, remember the
state actor doctrine.
But let's pretend for a
minute that we're not.
Let's pretend for
a minute, instead,
that we're in a public school,
a public primary school, K-12
school, and that they've
opened themselves up to us
after hours for
civics organizations
to have their meetings in
the available classrooms.
The rule is first
come, first serve,
it's got to be after
hours, after school.
Any night of the week is
fine, and you can reserve it
in a one-hour block.
And you might say, well,
is that a good regulation?
Is that a valid regulation
under the First Amendment?
Answer, sure it is.
Content neutral.
It meets all the requirements.
It meets intermediate
scrutiny because the school
has uses for the classroom
as well and so can limit it.
It doesn't have to
open it up entirely.
And so that rule is going
to be perfectly fine.
Now if the school
wants to discriminate
by content because
it's a limited
public forum, no worries.
So let's go back to my signs.
Let's talk politics.
The school can say no
politics talk in school.
This is for civics
organizations, but not
political organizations,
so you can't talk politics.
It's perfectly fine.
But what if I want to have my
Social Democratic talk here
at school?
And the school says,
you can talk politics,
but you can't talk Social
Democratic politics.
Well, that's a
viewpoint-based regulation.
A viewpoint-based regulation
in a limited public forum
like our classroom, the one
that we're in, that's invalid.
So the school can't
discriminate that way.
Now all that seems
really easy so far.
And, in fact, let's
whiteboard here,
just kind of remind
ourselves where we are.
So public forum,
content neutral.
Non-public forum, viewpoint
neutral is the rule.
Now what's really
hard about this,
other than what
we've done so far,
is the difference between
viewpoint neutrality
and content neutrality.
These things are going to spill
into each other at some point.
And we've got to
worry about that,
and figure out when are
we dealing with content,
when are we dealing
with viewpoint.
Here's the case.
It's called Lamb's Chapel.
We're going to take a
look at this in a second,
but let me give you the setup.
So a school decides
after hours that it's
going to open itself
up to civics groups
just like our hypothetical
school did in this case.
But it's not going to allow
religious talk in the schools.
I'll show you the
rule here in a second.
I've got the text here.
Not going to allow religious
talk in the schools.
Now this is a
limited public forum.
We think the rule
viewpoint neutrality,
and the government thinks
that it's discriminating
by content, not viewpoint.
No religious speech, but
we can have any other kind
of speech in the classroom.
The government
says, well, that's
a content-based restriction, not
a viewpoint-based restriction,
so no worries, even in
the non-public forum.
You might say, why in the
world would government
have this kind of rule?
A lot of schools
think that if they
allow religious
speech in the school,
they might violate the
Establishment Clause.
But we're going to see
in a couple of classes
that that's not so.
You can allow some religious
talk in the schools
without violating the
Establishment Clause.
Indeed, under the Free Exercise
Clause and the Establishment
Clause, a school probably has
to allow some religious speech
in the classroom if it's
allowing other kinds of speech.
For First Amendment free speech
purposes, for sure it does.
Let's take a look at the text.
This is a case
called Lamb's Chapel.
You can see the case
title right there.
1992 case from the United
States Supreme Court.
And this is the
citation, 508 US 384.
You don't have to read this
case if you don't want to.
I'm going to take
you through it here.
But if you want to read
it, that's perfectly fine.
OK, so here's the rule.
New York education law
authorizes school boards
to adopt reasonable regulations
for the use of school
property for 10
specified purposes--
social, civic, and recreational
meetings and entertainment,
but not religion.
No religious purposes.
The court in Lamb's Chapel went
on to say that in that context,
the discrimination
against religion
is actually a viewpoint-based
discrimination, not
a content-based discrimination.
Let me find the text for
you to show you exactly why.
Check this out.
There is no suggestion
from the courts below,
or from the district
or the state,
that a lecture or film about
child rearing and family
values, which is
the general content,
would not be used for social
or civic purposes otherwise
permitted by the
school rule, Rule 10.
That subject matter is
not one that the district
has placed off limits
to any and all speakers.
Nor is there any indication
in the record before us
that the application to
exhibit the particular film
series involved
here was or would
have been denied for any
reason other than the fact
that the presentation
would have been
from a religious
perspective, you see.
What the court's saying,
and it goes on here to say,
that you can have a
content of speech,
family values, and a religious
perspective on that content.
So we've previously
thought about religion
as a content of speech.
But in this context, it's
actually a viewpoint of speech.
And in Lamb's Chapel,
what the court said
is the government
regulation excluding
that religious viewpoint on
family values, that's invalid.
Let me quickly give
you another case
because we're going to get
kicked out by another class
here.
Professor Bond is my friend, so
I'm not too worried about it.
But I'm worried a little bit.
OK.
This case, McCullen
versus Coakley.
The citation is
incomplete-- it's 573--
because it's a recent case.
It's 2014.
Let me tell you what the
statute in the case says.
No person shall knowingly
enter or remain on a public way
or sidewalk adjacent to a
reproductive health care
facility, that is,
an abortion provider,
within a radius of 35 feet of
any portion of an entrance,
exit, or driveway of a
reproductive health care
facility or within the
area of a rectangular--
created by extending.This
kind of goes on from there.
But the idea is we're going to
create a kind of free speech
zone around the abortion clinic.
And the reason that the state
did this-- well, putatively
the reason was to allow free
access in and out of the clinic
without being
hassled by anybody.
But really, I think what the
clinic is concerned about
is anti-abortion
protesters prohibiting
access to the clinic by women
who are seeking an abortion.
Now this is a traditional
public forum, the sidewalk
outside the abortion provider.
And so we think that if
this is content-based,
then the regulation
is going to fail.
The court goes on here to say
this is not content based,
even though kind of everybody
knows why the state set up
the free speech zone in
order so that women can gain
free access to the
abortion without
anti-abortion protesters
impeding their access.
That's not only a content,
that's a viewpoint.
Even so, the court said that
the rule, on the face of it,
is content and
viewpoint neutral.
Here's why.
It's true that by limiting
the buffer zones to abortion
clinics, the act has
the inevitable effect
of restricting abortion-related
speech more than speech
on other subjects.
But a facially
neutral law does not
become content based
simply because it
may disproportionately affect
speech on certain topics.
On the contrary,
a regulation that
serves purposes unrelated
to the content of expression
is deemed neutral even if
it has an incidental effect
on some speakers or
messages, but not others.
The court then goes on to say
that Massachusetts adopted
the law for neutral reasons.
What neutral reasons?
Well, its stated
purpose is to increase
forthwith public safety at
reproductive health care
facilities.
Respondents have
articulated similar purposes
before this court, namely
public safety, patient access,
and unobstructed use of
public sidewalks and roadways.
That's enough for the court,
if that's the stated reason,
the court's going to treat it
as a content-neutral regulation
in this traditional
public forum.
All right.
We're going to wrap up because
we're going to get kicked out
of here in a second.
But I want to thank you guys.
Thank you, guys.
Thanks Joe and Johan,
who have been great
through this, and of
course our security guards,
who locked me up earlier.
And I hope this answers
questions on public forum
analysis.
Thanks.
