30 U. Fla. J.L. & Pub. Pol'y 1 (2019)
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 *I

       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
             Media Accounts                     ..............................12

    II.  A FUNNY  THING HAPPENED:  WHEN   GOVERNMENT
         CLOSES A FORUM      ................................... ...........15
         A.  The Fourth Circuit View: Government's
             Motive 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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