First Amendment Free Speech and Assembly:
The Public Forum Doctrine
The First Amendment to the United States Constitution reads that "Congress shall make no law...abridging the freedom of speech...." The Fourteenth Amendment makes this prohibition also applicable to the States. The United States Supreme Court has stated that "the constitutional guarantee of free speech is a guarantee only against abridgement by government, federal or state." Thus the First Amendment=s protections apply when the Federal or State governments regulate speech and expression on public property.
I. Permissible Government Restrictions on the Content of Speech
The First Amendment does not protect speech or expression that harms the health, safety, or welfare of persons in the community. As a result, content regulation or restriction of speech is permissible to stop: (a) incitements (provocation to engage in immediate violence); (b) fighting words (confrontational words or threats likely to lead to immediate fighting); (c) obscenity (appeals to carnal interests; clearly offensive, and without redeeming social value); (d) defamation (falsehoods that harm someone); (e) commercial speech (false or misleading); and (f) speech by public employees (matters not of public concern).
II. Classification of Public Property
1. Open Public Forum: State property that has traditionally been open to the public for speech, assembly and debate. Public forum property has traditionally included public streets, sidewalks, parks and city squares.
2. Closed Non-Public Forum: State buildings and property that are not by tradition or designation open for public communication, but are used for business, education or other devoted purposes. The State may reserve non-public property for its intended purpose, so long as the regulation of speech is reasonable and not an effort to suppress a particular viewpoint. Examples of non-public forums include courthouses, jails, government offices, city halls and public schools. While State property that is a non-public forum is required to be open for its devoted purposes, it is not required to be open to the public for other expressive purposes.
There is no legal requirement that University facilities be open for uses other than those devoted to education, research, administration and University endorsed extracurricular activities. Problems occur when non-public forum property abuts an open public forum sidewalk and is not so delineated as to put a speaker on notice that he or she has entered some special enclave where free speech is not protected (e.g., walkway from public street or sidewalk leading up to University building).
3. Limited Public Forum: Government property that is not required to be open to the public for expressive purposes, but which the State has intentionally designated as open for: (a) all expressive activities; (b) only certain speakers; or (c) the discussion of only certain topics. Although there is no legal requirement to open school facilities up to uses other than for normal educational and administrative functions, as a practical matter almost all Universities designate some non-public property for free speech and expressive uses. See, e.g., UA=s Policy and Regulations Governing the Use of the Campus. Examples of such designations include University facilities opened for meetings of student groups or other organizations, and the designation of the Mall as Afree speech@ and Areserved@ areas.
Once the State opens non-public property to the public for expressive activity, then such property becomes a limited public forum open for such designated uses.
III. Limits on the Exercise of Free Speech and Assembly Based Upon Forum Type
1. Public Forum: Expressive activity in an open public forum may not be suppressed, controlled or excluded unless it is necessary to achieve a compelling government interest, and is narrowly drawn to achieve that end. A compelling government interest means an interest of the greatest importance, such as protecting the health, safety and welfare of the community. However, reasonable time, place and manner restrictions may be used if applied neutrally to all similarly situated parties.
2. Limited Public Forum: A University setting most often fits into this category because it contains public buildings and property whose primary purpose is to provide education, but is often designated to allow access to the public at times when the property is not being used for its primary purpose. The uses of the property may be limited to those designated by policy, and reasonable time, place and manner restrictions may be imposed, but each must be exercised neutrally among similarly situated persons.
3. Non-Public Forum: The government may impose reasonable content-based restrictions on expressive activity in non-public forums in light of the function and purpose of the property. Some government buildings may have portions designated as limited public forums, such as meeting rooms, while other portions remain non-public forums such as areas that are used for internal business, and are not generally open to the public. A non-public forum may be reserved for its intended purpose as long as the regulation on speech is reasonable in light of the function of the property, and not an effort to suppress expression merely because public officials oppose the speaker=s viewpoint.
IV. Time, Place and Manner Restrictions
Time, place and manner restrictions may be placed on expressive activities that occur in or on public forums or limited public forums. Simply, this means that the Awhen, where and how@ of expressive activity may be reasonably regulated to serve a significant government interest if such regulation is: (a) narrowly tailored; (b) without reference to the content of the speech; and (c) leaves ample opportunity for speech in alternative areas or forums. A Asignificant government interest@ includes: (1) the protection and maintenance of University resources, facilities and property; and (2) the promotion of public health, safety and welfare.
The Supreme Court has recognized that the crucial question [for time, place and manner restrictions] is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time, To that end, time, place and manner restrictions may be placed on expressive activities that materially and substantially disrupt the operation or function of a University or interfere with the rights of its students to obtain an education.
Examples of time, place and manner restrictions at UA and other educational institutions:
1. See University of Arizona Policy and Regulations Governing the Use of the Campus, URL: http://w3.arizona.edu/~policy/campus-use.shtml#M
2. See Oregon State- Time, Manner, and Place Rules For Speech Activities, URL: http://osu.orst.edu/dept/budgets/genupol/gupspeak.htm
$ No speech activities shall impede pedestrian and vehicular traffic nor unreasonably disrupt regular or authorized activities in classrooms, offices, laboratories, and other University facilities or grounds. The Chief Business Officer may require any speech activity to be conducted 15 feet or more from any exit, entrance, staircase, parking lot, or roadway if necessary to allow access.
$ No speech activities shall be conducted at a volume which unreasonably disrupts the normal use of classrooms, offices and laboratories.
$ The Chief Business Officer may designate the portion of a street and the time of day during which a street is not available for speech activities in order to meet traffic, emergency access, and public transit needs.
See Southwest Missouri State University Public Forum Policy,
URL: http://www.smsu.edu/studev/policies/publicforum.htm
$ The public forum activity is not unlawful and does not violate or conflict with University policies or local, state, or federal laws.
$ The free expression of views and opinions does not violate any rights of others.
$ The public forum activity does not unduly disrupt the educational purposes of the University.
$ The public forum activity does not unduly disrupt traffic, either vehicular or pedestrian.
$ The public forum activity does not jeopardize public or individual safety.
$ The public forum activity does not prevent, unduly obstruct, or interfere with the regular academic and institutional activities, or other approved activities of the University.
$ There may be no amplification equipment used and no structure(s) may be erected.
$ Expression that is obscene, defamatory, or consists of fighting words, threats of physical harm, inciteful of imminent lawless action, or vulgar to the extent not entitled to protection as expression is not permitted as part of a campus public forum activity.
See ASU Freedom of Expression Policy, URL: http://www.asu.edu/clubs/sorc/freedom.htm
Prohibited conduct may include:
$ Unauthorized entry into, or occupation of, a private office, work or activity area.
$ Failure to maintain clear passage into or exiting from any part of a University building, campus mall, work or activity area.
$ Conduct that interferes with normal activities or traffic in a building, work or activity area, including failure to vacate upon normal closing time.
$ Causing physical harm, or reasonable apprehension of such harm, to any person on the University campus or at a University sponsored activity.
$ Substantially interfering with the freedom of expression of others on the University campus or at a University sponsored activity.
$ Violation of any federal law, state law, Board of Regents Policy, University rule or regulation including the American with Disabilities Act of 1990.
$ Prohibited conduct as specified in the Student Code of Conduct.
V. Role of the Office of the General Counsel
The role of the Office of the General Counsel is to give legal advice to the University President, as well as to Deans, Directors and Department Heads. The Office of the General Counsel will give legal advice to Deans, Directors and Department Heads on what speech or assembly is protected by the First Amendment and what is not. If you are not a Dean, Director or Department Head, please consult with your supervisor before calling the Office of the General Counsel.