Forum (legal)

Designated space for public expression in the United States

In the Constitutional law of the United States, a forum is a property that is open to public expression and assembly.

Forums are classified as public or nonpublic.

A nonpublic forum is not specially designated as open to public expression. For example, jails, public schools, and military bases are nonpublic forums (unless declared otherwise by the government). Such forums can be restricted based on the content (i. e., subject matter) of the speech, but not based on viewpoint. Thus, while the government could prohibit speeches related to abortion on a military base, it could not permit an anti abortion speaker while denying an abortion rights speaker (or vice versa). Regardless of the type of forum, any exclusion must be done on a viewpoint neutral basis. Exclusion based on the speaker's viewpoint is unconstitutional.

In several important cases, courts have decided that what appeared to be viewpoint based censorship in a forum was actually the government's tailoring of its own speech, which need not be viewpoint neutral, and that no forum was in fact created. When a governmental entity, such as a public broadcaster, employs the speech of ordinary citizens to further its goals, the government speech doctrine blocks citizens' First Amendment claims that the government set up a forum for them, and unconstitutionally suppressed speech in it.

Prior to the legal development of substantive due process, state governments had the authority to regulate speech in public places without regard to the First Amendment. In the 1895 Massachusetts Supreme Judicial Court case Massachusetts v. Davis, Justice Oliver Wendell Holmes wrote that "For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house." The Supreme Court unanimously upheld Holmes' opinion in the 1897 appeal Davis v. Massachusetts. However, in 1939, Justice Owen Josephus Roberts stated that "use of the streets and public places has, from ancient times, been a part of the privileges [ ] of citizens." And in 1965, Professor Harry Kalven described such places as a "public forum that the citizen can commandeer".

The 1988 decision in Hazelwood v. Kuhlmeier relied on the notion of a public forum in determining the degree to which a public school newspaper that has not been determined as such a forum can be protected by the First Amendment. The Court decided that such newspapers are subject to a lower level of First Amendment protection than independent student newspapers established (by policy or practice) as forums for student expression.