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First Amendment for College Administrators

Lesson 3: Public Forums and Your Campus

Video 1: Overview

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Video Transcript

So now that you’ve learned a bit about the First Amendment, whom it applies to, and what speech it protects, I’d like to introduce you to some of the ways in which free speech protections can change based on where someone is speaking. The First Amendment applies on government property, but it can operate differently on a public sidewalk than it does inside the student union, or in the comments section of a school’s Instagram account. The way schools treat the spaces they have opened to students, faculty, and the public impacts administrators’ ability to regulate speech. In this video, we’ll teach you about the concept of the “public forum” for private speech, and the various kinds of forums courts have recognized under the First Amendment.

A “forum” is pretty much just what it sounds like: a place for people to express themselves. In the First Amendment context, courts use the term “forum” to describe a government-owned or operated space where private individuals are allowed to speak. Forums can be physical spaces, like the union or the quad, or they can be “metaphysical,” like a departmental listserv or the disbursement of student activities fees to student groups.  As for how the government can regulate speech in these forums: People can’t just walk into any government building and start protesting, of course – but depending on the forum in question, people may have the First Amendment right to speak based on tradition or at the government’s own invitation. Given such varying characteristics of government property, courts have recognized three types of forums for speech:

1. Traditional Public Forums;
2. Designated Public Forums; and
3. Limited Public or “Nonpublic” Forums

Traditional Public Forums are the public spaces that, throughout history, have been open to the public for free speech. The Supreme Court has held that “streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights” that the right to free speech in those places cannot be “abridged or denied.” On the campus of a public college or university, the sidewalks abutting public roadways, and outdoor malls or quads open to the public are traditional public forums.

Even though they are government property, these spaces have traditionally been “devoted to assembly and debate.” For this reason, the Court has long held that the government’s ability to regulate expressive activity in these places is very limited. In traditional public forums, the government:

1. Cannot impose a regulation based on the content of speech unless it clears a very high bar known as “strict scrutiny,’ meaning:
   1. The regulation serves a compelling state interest; and
   2. The regulation is narrowly tailored – that is, it doesn’t impact more speech than necessary to achieve the compelling state interest.
2. Cannot ban speech based on the viewpoint expressed; and
3. Cannot ban speech entirely from the forum.

You may be asking yourself right now, “Well, we don’t have to just let people march in the street whenever they want, right? What about cars?” That’s a good point! And one which we’ll come back to. So hold that thought because, in the next video, you’ll learn about the content-neutral restrictions the government can impose on the time, place or manner of speech in traditional public forums. And in subsequent lessons, you’ll learn more about how the First Amendment protects speech from content- and viewpoint-based discrimination.

For now, we’re on to the next two types of forum: Designated, and Limited Public Forums. 

On public property that is not traditionally a public forum for speech – inside government buildings, on the grounds of a military base or, more recently, in the comments to government-run social media accounts – government officials can regulate expressive activity to help preserve that property for its lawful purpose. That power to regulate speech is not unlimited though, and when the government invites members of the public to express themselves on government property, the way it opens up those spaces determines what kind of regulations it can constitutionally impose. In other words, in designated and limited public forums, the government can open up otherwise nonpublic spaces either to all speech, or to speech that has a specific purpose.

Designated Public Forums are spaces the government is not required to open to the public for the purpose of free expression, but intentionally does so anyway. For example, a college or university might open up the student union, or put up a bulletin board in a campus bookstore as a designated public forum where students, faculty and members of the general public can express themselves as if they were on the quad or walking down the sidewalk. When the government designates property as a public forum for free speech—either expressly or in practice—that space is governed by the same rules that apply to a traditional public forum: content-based regulations are subject to strict scrutiny, viewpoint-based regulations are prohibited, but the government can impose content-neutral time, place and manner restrictions. For example, the university can require all posters on the bulletin board to be a particular size

Limited Public Forums, sometimes called “nonpublic forums” are spaces the government is not required to open to the public for expression, but does so in a limited fashion. That is, it designates a space for a particular purpose, opening it up to speech from only certain groups of people, or only on certain topics. Some buildings on college and university campuses, for example, might be open to students and faculty, but not the public. Or the purpose of some campus bulletin boards might be only for posting flyers advertising upcoming events. More recently, courts have held that user comment sections on government social media posts are limited public forums, for example, where a government account maintains a policy of removing comments that are irrelevant to its posts. Even when limiting access to a forum in these ways though, the government can only impose regulations that are reasonable in light of the purpose of the forum and—like in other forums—it cannot keep a speaker out based on the viewpoint they express. 

In any public forum on government property – traditional, designated, or limited – restrictions on the content of speech must be both reasonable and viewpoint neutral. You’ll learn more about precisely what that means in a little bit. For now, let’s move on, as promised, to content-neutral time, place and manner restrictions.

Suggested Resources

• "Motion for Preliminary Injunction & Brief in Support" in Gaughen v. Dauphin County (2023)

• "Order and Opinion for Motion to Dismiss" in Shaw v. Burke (2018)

• McGlone v. Bell (6th Cir. 2012)

• Rosenberger v. Rector and Visitors of the University of Virginia (1995)