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59 U. Cin. L. Rev. 739 (1990-1991)
Reconsidering the Public Forum Doctrine

handle is hein.journals/ucinlr59 and id is 749 raw text is: RECONSIDERING THE PUBLIC FORUM DOCTRINE
Richard B. Saphire*
[O]ne man's cliche is another man's fundamental principle**
In its efforts to interpret and apply the first amendment's guaran-
tee of freedom of speech, the Supreme Court has created and relied
upon a number of principles or doctrines. One of these, the public
forum doctrine, is of relatively recent vintage.' It has served as a
principal point of departure in cases challenging official practices
and policies which restrict or deny access to public places2 for ex-
pressive purposes.3 In its current formulation, the doctrine divides
public property into three categories: The traditional public forum,
the limited or designated public forum, and the nonpublic forum.4
It is now fairly standard for courts to begin analysis of access-related
* Professor of Law, University of Dayton School of Law. A number of people
offered valuable criticisms and comments on an earlier draft of this essay. I want
particularly to thank Fred Schauer, David Goldberger, Michael Solimine, Francis Conte,
Susan Brenner, and Nadine Strossen.
** 56 U.S.L.W. 3764 (May 10, 1988) (comment by Justice Scalia during oral
argument in Frisby v. Schultz, 487 U.S. 474 (1988)).
1. Although the origin of the public forum doctrine is usually traced to Justice
Roberts' opinion in Hague v. Comm. for Indus. Org., 307 U.S. 496, 515-16 (1939), it
was seldom used prior to the early 1970's. Research by Professors Farber and Nowak
revealed that, as of 1984 [t]he phrase 'public forum' has appeared in only thirty-two
Supreme Court decisions. Only two of these decisions were rendered prior to 1970 and
thirteen of the thirty-two have been in the 1980's. Farber and Nowak, The Misleading
Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication, 70 VA. L.
REV. 1219, 1221-22 (1984) (footnote omitted). For discussions of the doctrine's
evolution, see id. at 1226-35; Cass, First Amendment Access to Government Facilities, 65 VA. L.
REV. 1287, 1288-98 (1979); Kalven, The Concept of the Public Forum: Cox v. Louisiana,
1965 Sup. CT. REv. 1: Post, Between Governance and Management: The History and Theory of
the Public Forum, 34 UCLA L. REV. 1713, 1718-57 (1987); Stone, Fora Americana: Speech in
Public Places, 1974 SuP. CT. REV. 233.
2. By public places, I mean property or places owned by, or under the control of,
governmental entities. Current first amendment doctrine treats speech on privately
owned property or places as within the control of the property owner, subject, of course,
to the general law of property applicable in a particular jurisdiction. See, e.g., Pruneyard
Shopping Center v. Robins, 447 U.S. 74, 88 (1980) (property owner may not prohibit
speech when state law guarantees access); Lloyd Corp v. Tanner, 407 U.S. 551, 567
(1972) (free speech guarantees are limitations on state action, not on action by the
owner of private property used nondiscriminatorily for private purposes only)
(emphasis in original).
3. For a discussion of the public forum doctrine as embodying notions of a right of
access, or of equal access, to public places, see G. GUNTHER, CONSTITUTIONAL LAw 1196-
1201 (1 lth ed. 1985).
4. The most frequently invoked formulation of the doctrine can be found in Perry
Educ. Ass'n v. Perry Local Educators Ass'n, 460 U.S. 37, 45-46 (1983).


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