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30 U. Fla. J.L. & Pub. Pol'y 1 (2019-2020)
Everybody out of the Pool: Recognizing a First Amendment Claim for the Retaliatory Closure of (Real or Virtual) Public Forums

handle is hein.journals/ufpp30 and id is 7 raw text is: 



    EVERYBODY OUT OF THE POOL: RECOGNIZING A FIRST
  AMENDMENT CLAIM FOR THE RETALIATORY CLOSURE OF
              (REAL  OR  VIRTUAL) PUBLIC FORUMS

                         Frank  D. LoMonte* *

       First Amendment  law, as developed by the Supreme Court
       over the past several decades, has as its primary, though
       unstated, object the discovery of improper governmental
       motives.... Or, to put the point another way, the application
       of First Amendment law is best understood and most readily
       explained as a kind of motive-hunting.

                                          Elena Kagan'

 INTRODUCTION  ..................................................................................... 2

     I.  THE FIRST AMENDMENT AND THE PUBLIC FORUM .................5
         A.  First Amendment  Basics................................................5
         B.  Evolution of the Forum Doctrine ..................................7
         C.  Rosenberger and  the Metaphysical Forum .................      10
         D.  Forums-dot-com:  Government-Run  Social
             M edia Accounts .......................................................... .  12

    II.  A FUNNY  THING HAPPENED:  WHEN   GOVERNMENT
         CLOSES A FORUM  ................................................................. 15
         A.  The Fourth Circuit View: Government's
             M otive Irrelevant......................................................... . 16
             1.  The City ofLexington Case: Closure in
                 Response to Divisive Political Speech................. 16
             2.  The Underpinnings of City ofLexington:
                 How  Courts Concluded that Motive is
                 Irrelevant ............................................................. . 17
         B.  The Better View: Retaliatory Closure
             Unconstitutional........................................................ . 22

   III. AN  UNFUNNY   THING HAPPENED:  THE KOALA  CASE .................24
        A.   District Court Rulings ..................................................26
        B.   The Ninth Circuit Ruling .............................................28

        Professor & Director of the Joseph L. Brechner Center for Freedom of Information at
the University of Florida in Gainesville, Fla.; B.A., 1992, Political Science, Georgia State
University; J.D. (Order of the Coif), 2000, University of Georgia School of Law. By way of
transparency, the author co-signed an amicus brief to the Ninth Circuit U.S. Court of Appeals in
the case of Koala v. Khosla, urging reversal in favor of the plaintiff-appellants, a case cited
extensively herein.
     1. Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in
First Amendment Doctrine, 63 U. CHI. L. REV. 413, 414 (1996).

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